2023 CLD 429 COMPETITION COMMISSION OF PAKISTAN

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VS Ss. 3 & 2(k)---abuse of dominant position---Relevant market---Scope---Complainants (Internet Service Providers) alleged that the respondent (Electricity Supply Company) was in a dominant position in the relevant market for "right of way for aerial cables across electricity poles" and had violated Ss. 3 & 4 of the Competition act, 2010---Contention of respondent was that it did not operate in the relevant market and was active in a separate market altogether---Validity---Issue at hand did not concern supply/distribution of electricity but the public right of way to be/or being provided by respondent---Electricity distribution facilities covered an area of approximately 78,088 sq. km, which further strengthened the aspect of dominance of the respondent in the relevant market of right of way as it owned/managed a significant number of electric poles and no other adequate substitutes were available in the relevant market---Respondent's argument was rejected. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 2(k)---Relevant market---Scope---Relevant market definition for the purposes of competition law is an open definition and revolves around the concerned product/service being offered, taking into consideration both demand-side and supply-side factors. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 3---abuse of dominant position---Unfair trading conditions---Scope---Complainants (Internet Service Providers) alleged that the respondent (Electricity Supply Company) was in a dominant position in the relevant market for "right of way for aerial cables across electricity poles" and had imposed unfair conditions on the complainants by stipulating 10 minutes free advertising for it and free internet facility for its offices on top of charging a rent for use of the relevant service---Validity---Conditions appeared onerous and not freely negotiated upon by the parties concerned---It could also be treated as an added barrier for undertakings to compete effectively and efficiently in the market for provision of internet cable and telephony services---In terms of monetary value, it was also an added cost---Competition Commission declared that the contravention in terms of S. 3(3)(a) of the Competition act, 2010 had been committed by the respondent---Respondent was directed to provide access to the right of way to the complainants on fair, reasonable and non-discriminatory terms and not to repeat the prohibited act. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 3---abuse of dominant position---Refusal to deal---Scope---Complainants (Internet Service Providers) alleged that the respondent (Electricity Supply Company) was in a dominant position in the relevant market for "right of way for aerial cables across electricity poles" and had violated Ss. 3 & 4 of the Competition act, 2010---Contention of respondent was that it had annulled the Pole Renting Policy---Complainants claimed that refusal to provide right of way amounted to refusal to deal in violation of S. 3(3)(h) of the Competition act, 2010---Validity---Section 27a of the Pakistan Telecommunication (Re-organization) act, 1996 and Policy Directive issued by the Federal Government had imposed a legal obligation on the respondent to provide right of way---Conduct of the respondent was discriminatory as admittedly, decommissioning notices related to the removal of cables were only sent to the complainants---No other action was taken against normal cable TV operators---annulment of the Pole Renting Policy and denial of right of way might not be a 'classic refusal to deal' under S. 3(3)(h) on the part of respondent i.e. solely based on a monopolistic intent to of keeping the facility/poles for its own commercial benefit or to strengthen its own dominant position, nevertheless, a clear contravention of S. 3 of the Competition act, 2010, was established through the respondent's discriminatory and unfair conduct concerning the complainants---Respondent was directed to restore access to the right of way to the complainants on fair, reasonable and non-discriminatory terms and not to repeat the prohibited act. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 3---abuse of dominant position---Unfair trading conditions---Scope---Term "unfair trading conditions" is indeed wide in scope and deals with either or both exclusionary and exploitative forms of abuse of dominance---It includes unfairly coercing customers by forcing an entity to sell services against their will and unfairly taking advantage of one's superior bargaining position to impair free decision making of a transacting party. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 3---abuse of dominant position---Price discrimination---Scope---Complainants (Internet Service Providers) alleged that the respondent (Electricity Supply Company) was in a dominant position in the relevant market for "right of way for aerial cables across electricity poles" and had committed price discrimination by charging different prices for the same service from the complainants as compared to the price charged from normal TV cable operators---Validity---Respondent charged complainants PKR 100 per pole/structure, while TV cable operators paid only PKR 10---Such discriminatory conduct was solely for the reason of the dominant position it held rather than for any objective reasons and could be deemed to be exploitative and harmful for undertakings deploying aerial Optical Fiber Cable---Respondent was found to have acted in violation of S. 3(3)(b) of the Competition act, 2010---Respondent was directed to provide access to the right of way to the complainants on fair, reasonable and non-discriminatory terms and not to repeat the prohibited act. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS S. 3--- abuse of dominant position--- Scope--- Section 3(3) is not exhaustive and only enumerative---Section 3 prohibits any abuse by an undertaking that is in a dominant position. Head NotesCase Description Citation Name: 2023 CLD 429 COMPETITION COMMISSION OF PAKISTANBookmark this Case VS Ss. 3 & 2(k)---abuse of dominant position---Relevant market---Substitutability---Scope---Complainants (Internet Service Providers) alleged that the respondent (Electricity Supply Company) was in a dominant position in the relevant market for "right of way for aerial cables across electricity poles" and had violated Ss. 3 & 4 of the Competition act, 2010---Contention of respondent was that the complainants had substitutes for right of way---Validity---Developing and digging underground passages required heavy investment cost and prior approvals from the relevant authorities and there also existed practical impediments for laying down underground cables such as lack of access to corridors/green belts on road, streets, etc---as for PTCL (telecommunication company) poles, the same were customized to PTCL's own requirements i.e. installed at the end of PTCL's underground network of cables---Streetlight poles were not a suitable substitute due to being scattered, positioned in different areas and not being available in all areas---Respondent's argument was rejected. 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