The government has recently issued a policy directive on the long-awaited issue of Right of Way (RoW). This was one of the pillars of the deregulation of telecom sector in Pakistan and single most painful roadblock in building the digital infrastructure. The telecom operators have been facing inordinate delays and paying hefty fees to meet their Quality of Service (QoS) and roll-out obligations. RoW is a scarce resource and was first time recognized in the Pakistan Telecommunication (Re-organization) Act 1996 (the Act) by way of adding definition and broad framework in Section 27A through an amendment in 2006. It is a good news that the government and the IT task force have finally managed to do something about this chronic issue.
The government has recently issued a policy directive on the long-awaited issue of Right of Way (RoW). This was one of the pillars of the deregulation of telecom sector in Pakistan and single most painful roadblock in building the digital infrastructure. The telecom operators have been facing inordinate delays and paying hefty fees to meet their Quality of Service (QoS) and roll-out obligations. RoW is a scarce resource and was first time recognized in the Pakistan Telecommunication (Re-organization) Act 1996 (the Act) by way of adding definition and broad framework in Section 27A through an amendment in 2006. It is a good news that the government and the IT task force have finally managed to do something about this chronic issue.
Issues around RoW are complex and multi-fold. Typically, RoW is about 70 to 80 percent of the cost of laying fiber. The telecom operators have to meet the QoS standards set by Pakistan Telecommunication Authority (PTA) and also have to meet their roll-out obligations. In addition to PTA, Universal Service Fund (USF) has also stipulated additional QoS and roll-out obligations in the USF areas. The operators have to deal with multiple owners of RoW in both public and private sectors. Even in the public sector, there are many players who own RoW like federal and provincial governments, autonomous bodies, corporate entities, city development authorities, local authorities, defense authorities etc.
There is no uniform RoW framework in the public sector and every owner dictates its own terms to the telecom operators and invariably the fees asked, have no linkage to the costs, rather they see it as a rent seeking opportunity. In some instances, the owners of RoW refused to provide any access to the telecom operators without stating any reasons e.g., one part of Multan city remained without telecom services for over a decade. It has also been seen that RoW owners, whether in public or private sector, tries to reduce competition by allowing only one or two operators against hefty fees, to provide services in their areas of control. This not only reduces choice for the residents of those areas but also provides no incentive to improve the QoS by the incumbent telecom operators. Some of such cases were brought to the notice of Competition Commission of Pakistan.
Lack of uniform process of granting RoW is also a serious challenge and the operators have to meet the different requirements for processing their applications stipulated by different RoW owners. No set timelines are prescribed for processing RoW requests.
Because of all these challenges like heavy costs, long processes and inordinate delays, the telecommunication roll-out remained slow and QoS compromised. Almost after two decades of deregulation in the telecom sector and introduction of new players, less than 10 percent of the BTSs of mobile cellular operators are connected with fiber. Telecom users are not getting the best internet experience from 3G and 4G technologies and it would not be possible to introduce 5G, if the digital infrastructure situation does not improve significantly.
Unfortunately the announced policy has not been able to address all the challenges mentioned above. Policy is meant to be a direction of the government and is normally followed by changes in laws to make it enforceable.
The very first issue with the policy is that it is not binding on all owners of RoW and can not be used as a substitute for binding laws. Supreme Court of Pakistan has declared in many cases that policy can not be placed on a higher pedestal than binding law (2015 SCMR 397). A similar observation was also made in Ufone’s case (PLD 2014 SC 478) that policy directive can not override the law. There may be a chance that the some organs of the government may honor parts of the policy directive, however it is certainly not binding on RoW owners of private sector and autonomous bodies.
The power of the federal government to make policy or issue policy directive under section 8 of the Act does not override rule making power under section 57 of the same Act. Even under section 8 sub-section 2A, there is a distinction between policy and policy directive and the power of the federal government to issue policy directive is only binding on PTA. Preamble of the policy directive also confirms that, but in the body of the policy there is no direction given to PTA relating to RoW.
Creating offenses through policy directive is a novel step and unheard of, in the criminal jurisprudence.
Policy objectives stated in the RoW policy directive are to increase broadband, resolve issues of licensees concerning RoW, and introduce fast-track process associated with RoW. However the Policy has failed to provide any certainty about the grant of RoW or how this would be helpful in bringing cost efficiency, reduced timelines, thereby improving QoS.
Policy has set no target as to how much money and time would be saved because of it. There is nothing in the policy to quantify, if the policy objectives are met or not in next 2 to 5 years. In the absence of the targets and action plan, there is no way to determine which part of the policy has worked and which has not. There is no policy review period defined.
No effort has been made to map the current status of digital infrastructure and where it should be before introduction of 5G. Mapping of current routes of optic fiber could be a good start as it would bring the visibility as to where the RoW challenges lie.
The policy mostly talks about RoW matter going forward, whereas the fate of the already executed long-term expensive and burdensome RoW contracts enforced by the owners of RoW, also need to be decided.
In fact the policy has not made any meaningful contribution to the existing provision of section 27-A in the Act. Rather some good stuff mentioned in Sections 27 and 27A of the Act, regarding rights of telecom operators, has been ignored. There are quite a few things to be done to improve the RoW framework, the policy directive could be considered as a first step and the government should continue engagement with the owners of RoW, PTA and the telecom operators. PTA should be given some role in the process being the guardian of the rights of licensees.
There are many policy matters, which need to be addressed by this policy directive. ‘Dig Once policy’ should be made mandatory for all public sector organizations. There may be a road map as to when and how government offices at grassroots level are to be brought on-line by connecting them with optic fiber. Provincial governments may be encouraged to get bandwidth from telecom operators instead of fees and taxes on laying optic fiber as has been done in some parts of India.
The policy may make it mandatory for all RoW owners to support digital infrastructure in every way. Refusal should be an exception and only available on ground of threat to national security.
Dispute resolution mechanism needs to be available at provincial levels and a uniformed procedure for dispute resolution may be developed to avoid inconsistent decisions.
Last but not least, anything which is required to be addressed by a binding law, should be done through rule making process.
The writer is an IT regulatory expert
