Competition Commission Of Pakistan’s Enquiry Report on PTCL Broadband DSL

“PTCL through the practice of margin squeeze has made the market for provision of broadband services through Digital Subscriber Line (DSL) technology uncompetitive and prohibitive”

(CCP inquiry report on PTCL DSL Broadband)

Introduction of Competition Commission of Pakistan (CCP)

The Competition Commission of Pakistan (CCP) is an independent quasi-regulatory, quasi-judicial body that helps ensure healthy competition between companies for the benefit of the economy.

The Commission prohibits abuse of a dominant position in the market, certain types of anti-competitive agreements, and deceptive market practices. It also reviews mergers of undertakings that could result in a significant lessening of competition. Combined with its advocacy efforts, the Commission seeks to promote voluntary compliance and develop a ‘competition culture’ in the economy.

The Competition Commission of Pakistan (CCP) was established on 2 October 2007 under the Competition Ordinance, 2007, which was repromulgated in November 2009. Major aim of this Ordinance was to provide for a legal framework to create a business environment based on healthy competition for improving economic efficiency, developing competitiveness and protecting consumers from anti-competitive practices.

Download Enquiry Report in In the Matter of PTCL Broadband DSL (PDF Format)

                                     Enquiry Report
In Re : PTCL Broadband DSL
Background

1.      A complaint was filed under Section 37 (2) of the Competition Act, 2010 (the

“Act”) on August 16, 2010 with the Competition Commission of Pakistan (the

“Commission”) by Aqlaal Advocates on behalf of their clients Mircronet

Broadband (Private) Limited (“Micronet”), LINKdotNET Telecom Limited

(“LinkDotNet”) and Nexlinx (Private) Limited (“Nexlinx”) (collectively referred

to as the “DSL Operators”) against Pakistan Telecommunication Company

Limited (“PTCL”) for alleged violation of Section 3(3) (h) and (f) of the Act.

2.      The DSL Operators alleged that under the current regime for provision of Digital

Subscriber Line (DSL) services, DSL Operators are dependent upon the

infrastructure of PTCL as it owns and controls the required copper line

infrastructure. This ownership and control of the copper line infrastructure, gives

PTCL a dominant position in the market, which is abused by PTCL by denying or

delaying access to the DSL Operators to the required infrastructure and/or

increase in the rates charged by PTCL for access to this infrastructure.

3.      The Commission decided to initiate an enquiry pursuant to Section 37 (2) of the

Act read with regulation 17 (2) of the Competition Commission (General

Enforcement) Regulations, 2007 (the “General Enforcement Regulations”) for

alleged violation of Section 3 of the Act by PTCL. The Commission exercising its

powers under Section 28 (2) of the Act, appointed Ms. Mehreen Ibrahim, Deputy

Director (Legal) and Mr. Syed Umair Javed, Deputy Director (Cartels and Trade

Abuses) as members of the enquiry committee (the „Enquiry Committee ‟) to

investigate whether (a) PTCL holds a dominant position and (b) PTCL has abused

its dominant position, thereby violating the provisions of the Act. During the

course of the enquiry, Syed Umair Javed, Deputy Director went on study leave

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and thus the Commission appointed Ms. Shaista Bano, Director (Cartels & Trade

Abuses) as a member of Enquiry Committee in his place.

4.      The Complainants filed an application dated March 7, 2011 for withdrawal of the

complaint filed against PTCL. The pretext on which the application for

withdrawal was made was that the Complaint was filed on the basis of a

determination of the Pakistan Telecommunication Authority (PTA) whereby

PTCL was declared as Significant Market Player (SMP) in the DSL market.

However, the said determination was suspended by the Honorable Lahore High

Court, Rawalpindi Bench and was still pending before the Islamabad High Court

upon transfer. Furthermore, the Complainants submitted that one of the relief‟s

sought through the Compliant was that PTCL be directed to separate its accounts

for DSL and other services and it is ambiguous to the Complainants whether the

Commission has the power to order such separation of accounts. Therefore, the

Complainants wished to file a complaint before PTA.

5.      The Commission, after considering the application, informed the Complainants

that while they were free to pursue alternate remedies under any other laws, the

Commission remains the competent forum for possible violations of competition

law. The Complainants were further informed that Regulation 21 of the General

Enforcement Regulations permitted the withdrawal of a complaint at any stage of

the proceedings but the enquiry or proceeding initiated by the complaint would

not necessarily abate on withdrawal. Given the nature of the case and the potential

impact on the market and consumers, the Enquiry Committee was directed to

proceed in respect of the matter. Notwithstanding the legal issues, it must be

mentioned that the Complainants remained engaged with the Enquiry Committee

throughout the duration of the enquiry and provided all the relevant information

as and when required.

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The Undertakings

6.      Following is a brief introduction of the complainant and respondent undertakings.

PTCL: PTCL is a public limited telecommunications company of Pakistan

established under Section 34 of the Pakistan Telecommunication (Re-

Organization) Act, 1996 (the “1996 Act”). It is engaged in the business of

providing telecommunications services from basic telephony to data, internet and

carrier services pursuant to license issued by the Pakistan Telecommunication

Authority (“PTA”). An integrated license has been issued by PTA for 14 regions

of Pakistan while a license on regional basis is issued for 3 regions in AJK and

Gilgit-Balistan. PTCL has the largest copper infrastructure spread all over

Pakistan. The network has over 6 million PSTN lines installed across Pakistan

with more than 3 million of these lines being operational. PTCL is an undertaking

in terms of Section 2 (1) (q) of the Act.

LINKDOTNET: LinkDotNet is a subsidiary of Orascom Telecom Holding

Company which is one of the integrated telecommunications service providers in

the region. It has regional offices in Dubai, UAE; Riyadh, KSA; Qatar; Algeria;

and Pakistan.  The company employs more than 1000 consultants, web developers

and support staff in Egypt and the region to deliver internet and e-solutions to its

users and clients. Products and services include Business DSL, Domain Hosting,

Home DSL, Dial-up, ISDN;Global, Connectivity, Data Network & VPNs, and

Dedicated IP Internet Access. LinkDotNet is an undertaking in terms of Section 2

(1) (q) of the Act.

MICRONET: Micronet Broadband Group of Companies constitutes of following

companies:

1. Micronet Broadband (Pvt.) Ltd. and

2. Nayatel (Pvt.) Ltd.

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Inspired by the broadband revolution of 21st century in the developed part of the

world, the founding team of Micronet, a then dialup ISP setup, conceived the idea

of broadband Internet services for Pakistan. They had put efforts of two years in

convincing and competitive bidding by the state-owned fixed line incumbent,

PTCL in order to open up its copper loop for DSL services. Micronet offers

variety of bandwidth and service packages. Micronet has designed DSL packages

to suit most organizations and individuals in Pakistan since 2002. Micronet offers

connectivity from 64 Kbps to 2 Mbps on its various pre-paid and post-paid

packages with the option for availing Value Added Services (VAS) like Video

Conferencing, Multiplayer gaming, Web Hosting, Email Hosting/Security,

LAN/WAN setup and configuration etc. at customer‟s premises, which are billed

separately.1 Micronet is an undertaking in terms of Section 2 (1) (q) of the Act.

NEXLINX: Nexlinx is a data network / internet service provider, currently

serving the clients in Pakistan. The services range from Simple Dial-up

connectivity to Extensive Wireless Networks which allow access to the internet.

It provides internet based communications and can provide Dialup, ISDN, DSL as

well as Wireless Broadband access solutions.2 Nexlinx is an undertaking in terms

of Section 2 (1) (q) of the Act.

Complaint

7.      The DSL Operators through a formal complaint filed with the Commission under

Section 37(2) of the Act, read with Regulation 18 of the Competition (General

Enforcement) Regulations, 2007 and request for submitting additional

information, made the following submissions:

(a)      That PTCL plays a dual role in the DSL services market, as on the one hand it

owns the requisite copper line infrastructure laid down across Pakistan upon

1 http://www.dsl.net.pk/thecompany.php

2  http://www.rozee.pk/nexlinx-company-8603.php

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which each DSL Operator is dependent due to the existing regulatory and

contractual framework. On the other hand it is a competitor of the DSL

Operators as it provides DSL services itself.

(b)      Under the current regime for provision of DSL services in Pakistan, all DSL

Operators are solely dependent upon PTCL for (i) co-location space within

PTCL exchanges for installation of DSL equipment; (ii) inter-exchange fiber

leased lines from PTCL to connect one DSL equipment to another; (iii)

interconnect exchange bandwidth and backbone internet and (iv) access to

copper lines up to customers premises to provide DSL services. PTCL uses its

ownership and control of the copper line infrastructure to deny or delay access

to the DSL Operators or increase rates, thus restricting, distorting and

preventing competition.

(c)      Pursuant   to   Rule   13   (2)   and   (3)   of   the   Pakistan   Telecommunication   Rules,

2000, PTCL is under an obligation to facilitate the request of other operators

in the market who wish to interconnect with PTCL.

(d)      PTCL has acted unlawfully by abusing its dominant position in violation of

Section 3 of the Act in terms of clauses (f) and (h) of sub-section 3 and caused

excess loss to the DSL Operators on numerous occasions.

(e)      Previously, the interconnect and co-location arrangements between DSL

Operators and PTCL were governed by a DSL agreement, which was

detrimental to the interests of the DSL Operators. DSL Operators approached

PTA in respect of the DSL agreement as PTCL did not satisfactorily respond

to the request to review and revise the DSL agreement.

(f)      After review for a period of 2 years, starting in 2007, PTA vide its

determination dated June 10, 2009 approved the DSL Interconnect Agreement

(the “IA”), which has to be signed within seven (7) days of the issuance of the

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above mentioned determination. PTCL violated the determination by delaying

the signing of the IA by a period of six (6) months and at the same time

approached PTA for further changes in the IA. PTA unilaterally reduced the

duration of the IA from period of the license and subsequent renewals to a

period of two (2) years.

(g)     Agreements such as the IA need to have a longer term in order to meet the

purpose which is to commercially validate the interconnection, without which

the DSL Operators are unable to function. This is one of many instances of

abuse of PTCL‟s dominance.

(h)     The DSL Operators remain dependent upon PTCL‟s leased lines, as their

request to be allowed to install their own fiber optic cables at all exchanges of

PTCL was denied by PTCL at the time of negotiating the IA. This has been

restricted to the DSL Operators being able to only connect to one exchange of

PTCL in each city. Subsequently, PTCL unilaterally increased the tariff for

such leased lines by 450%.

(i)     PTCL violated its own Standard Operating Procedure dated February 22, 2008

for DSL services (the “SOP”), according to which PTCL was obligated to

issue new connections within 48 hours of receipt of a request from a DSL

Operator. The timeline prescribed under the SOP were not followed but

delayed on many instances. PTA was informed of such delays in December

2009 and the DSL Operators were informed by PTA that PTCL was

upgrading its system and would cater to new requests from December 29,

2009 onwards. However, PTCL in the same duration was issuing new

connections to its customers, clearly showing that PTCL was refusing access

to the DSL Operators to increase its own consumer base. This was also

brought to PTA‟s attention.

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(j)     PTCL has shifted its public switched telephone network (PSTN) consumer

numbers from the copper network to an optical fiber network which the DSL

Operators do not have access to. PTCL has not only violated PTA‟s

Numbering Plan Regulations, 2005 but also clause 7.2.1 of the IA and PTA‟s

determination No. 15-70/07 (CA)/PTA dated August 3, 2007, according to

which PTCL may not change the copper pair of a customer to optical fiber

without the customers consent.

(k)     PTCL has created operational problems for the DSL Operators, such as denial

of their authorized staff to enter PTCL exchanges in violation of clause 7.2.1

(c) of the IA, delaying provision of infrastructure, cutting of cables, refusal to

provide collocation space, etc.

(l)     PTCL   has     forcefully   disconnected    the  connections    of  the  DSL   Operators

provided   to   customers   and   started   providing   these   customers   DSL   services

through PTCL‟s DSL connection without even informing the customers.

(m)     DSL Operators pay PTCL PKR 650 per month for use of essential facilities to

provide a single connection of 1Mbps, which PTCL provides to its customers

at price of PKR 299. PTCL through cross-subsidization and predatory pricing

is driving competitors out of the DSL market in violation of Section 3 (3) (f)

of the Act, Section 26 (e) of the Pakistan Telecommunication (Re-

Organization) Act, 1996 (the “PTA Act”) and Article 11 of Schedule 2 of the

2000 Rules.

(n)     PTCL charges DSL Operators in US$ parity rate while it‟s selling retail

services in Pak Rupees. Another example of predatory pricing.

(o)     PTCL does not maintain separate accounts for its retail DSL services,

therefore, not treating it at arms length basis.

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(p)     In 2001 when DSL services were initially introduced in Pakistan, DSL

Operators provided services under PTCL‟s license and paid 5% of their gross

revenue to PTCL pursuant to an Operations and Maintenance (O&M)

Agreement which subsisted for a term of 5 years. Later, PTA allowed all

inernet service providers (ISP‟s) to provide DSL services and fixed a tariff of

PKR 150 per customer per month which was 300% higher than the previous

tariff. PTA vide determination No. 15-5/99 (Tariff)/PTA/643 dated March16,

2006 decided to abolish the new tariff, against which PTCL filed an appeal on

the grounds that since PTCL was no providing DSL services, it was essential

to charge the said amount to cover costs. PTCL continues to charge customers

a flat rate of PKR200 per month for basic telephone service to cover costs of

maintenance of copper lines. Even on PTCL beginning to provide DSL

services, it continues to charge the DSL Operators the said amount, while

lowering its retail rates for DSL services, making it impossible for DSL

Operators to compete.

(q)     PTCL having Significant Market Power (SMP) status in the fixed line

segment, there is a real possibility of cross subsidization. This practice can

only be curtailed by separation of accounts for the DSL retail services.

Furthermore, PTCL is offering DSL customers packages that are priced lower

than the wholesale price offered to the DSL Operators, which is an example of

predatory pricing.

(r)     DSL Operators submitted that the Commission should direct PTCL to revert

the IA to its original form as approved by PTA vide its determination, allow

DSL Operators to bring their own optic fiber to all PTCL exchanges, abolish

the local loop sharing charges and separate its accounts of its own DSL retail

boroadband service and treat the said service at arm‟s length, thus eliminating

element of cross subsidy and predatory pricing.

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(s)     PTCL should also be asked to compensate the DSL Operators for the loss they

have sustained due to PTCL‟s abuse of dominant position and appropriate

penalty may be imposed on PTCL with direction to refrain from further

violations.

PTCL’s Reply

8.      The complaint filed by the DSL Operators was sent to PTCL for its

comments/reply and PTCL made the following submissions:

(a)     The determination of PTA that PTCL holds a dominant position has been

challenged before LHC, Rawalpindi Bench and has been suspended. The

matter is sub-judice  and the complaint is an attempt to frustrate the judicial

process.

(b)     PTCL reserves the right to challenge the validity of the Act and constitution of

the Commission at an appropriate forum as the Commission lacks jurisdiction

in this respect.

(c)     Pointed out that reference should be made to Competition Act, 2010 and not

Competition Ordinance.

(d)     The requirement for determining the relevant market as per the Act has not

been determined by the DSL Operators in their complaint before alleging

contravention of the provisions of the Act.

(e)     The Act requires determination of relevant market by the Commission before

conducting of enquiry and the Commission has failed to do that and initiated

an enquiry on allegations of violation.

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(f)     The complaint incorrectly defines DSL as a service in the market, when it is

merely one technology for provision of Broadband Internet Access. Therefore,

it cannot be said that consumers cannot interchange or substitute the DSL

technology for other technologies.

(g)     The complaint does not touch upon the homogeneity of the conditions of

competition in the geographic market, which has been presumed to be the

entire territory of Pakistan without considering that barriers to entry and exit

vary from region to region.

(h)     The market definition makes it impossible to determine market shares and

market power for the purpose of assessing dominance. The failure to

determine the relevant market in the complaint in accordance with the Act,

renders cognizance of the matter and holding of enquiry without jurisdiction,

lawful authority and of no legal effect.

(i)     Complaint fails to demonstrate the ability of PTCL to behave independently

of competitors, customers, consumers and suppliers and dominance cannot be

presumed as PTCL‟s share does not exceed 40% for provision of any service.

(j)     The DSL Operators misunderstand the concept of predatory pricing which is

clear as the allegations have not been substantiated by any legal argument. In

order to allege predatory pricing, certain criteria needs to be fulfilled which

includes:

(i)     Alleged predator must be offering services below an appropriate

measure of cost. Case law suggests that appropriate measure is either

prices below average variable costs or simply when the difference in

cost between the cost of manufacturing and price charged to

consumers is excessive. DSL Operators have not shown that prices of

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PTCL are below appropriate measure of cost and in fact several ISP‟s

are offering services at rates substantially lower than PTCL;

(ii)    Demonstrate that predator has a high probability of recoupment of

losses;

(iii)   Need to establish predator‟s conduct of extra ordinary price cutting to

lack business purpose or unnecessarily or unreasonably impedes the

efforts of other firms to compete for raw materials or customers, or if

the anticipated benefits of the conduct flow primarily from its

tendency to hinder or eliminate competition. In the case at hand no

barriers to entry and technologies used to provide broadband services

is so variable that competitors are free to use alternative means to

provide services.

(k)     Allegations of refusal to deal have not been substantiated.

(l)     No evidence of violation of Section 3 of the Act. In failing to define the

relevant market, DSL Operators have failed to recognize that unlike them

PTCL provides various other services other than broadband services and

provides the same all over Pakistan which the DSL Operators failed to due to

lack of feasibility.

(m)     That due to the definition of „interconnection‟ provided under regulation 2 of

the Pakistan Telecommunication Rules, 2000, PTCL and the DSL Opeartors

cannot be said to be interconnected as there is no interdependency between the

customers of both parties.

(n)     All annexed documents are not reflective of any abuse on part of PTCL but

only include determinations and directions of PTA which have been followed

by PTCL.

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(o)     Violative of principles of natural justice and an attempt to cause unnecessary

harassment to PTCL due to mala fide and ulterior motives.

(p)     Broadband is a type of telecommunication that uses high speed data channels

to send large volumes of information. There are several types of broadband

internet services and DSL is one of the technologies, which enables creation

of additional bandwidth for transfer of date on ordinary telephone cables. DSL

is not a service but a technology used for provision of broadband services and

PTCL cannot be alleged have dual role in the DSL services market, as its

neither a service nor a market.

(q)     It is incorrect that the DSL Operators are solely dependent upon PTCL for

infrastructure as Nayatel provides broadband services through use of optical

fiber technology (FTTH) instead of depending upon PTCL‟s copper lines.

(r)     The complaint is based on a misunderstanding of competition law, the purpose

of which is not to punish market leaders but to enhance economic efficiency

and protect consumers.

(s)     PTCL signed O&M agreements in 2001 for provision of broadband (high

speed internet) service through DSL technology at which time it did not itself

provide DSL connections. In 2003 PTA introduced regime of individually

charging for copper loop at rental of PKR 670 per month which was

challenged by Micronet which was remanded back to PTA by the High Court

which maintained its orders. PTCL signed DSL agreements with ISP‟s for

provision of DSL service on instructions of PTA which did not have provision

of Voice and VPN and these still continue.

(t)     In 2003 PTA allowed all ISP‟s to provide broadband services and fixed local

loop charges at PKR 670 per month as opposed to 5% revenue sharing

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arrangement which was difficult to maintain due to different packages and

multiple operators. Fixed local loop charge regime reflected cost of the loop

and was transparent and simple.

(u)     GOP introduced the Broadband Policy 2004 through which it revised the local

loop charges to PKR 250 per month for DSL connection and also reduced

backhaul bandwidth charges significantly to proliferate the broadband market.

Despite this reduction in costs the ISP‟s did not proliferate the market as this

required additional investment and broadband services remained limited to

few metropolitan cities.

(v)     PTCL entered the retail broadband market in 2007/08 and by making huge

investments made the service available throughout the country, which led to

large scale awareness among customers and rationalization of retail tariffs.

(w)     DSL Agreements as alleged by the DSL Operators are not one sided but have

been thoroughly negotiated over the span of 2 years between PTCL and the

ISP‟s and PTCL has acted in accordance with PTA‟s determinations and

amendments.

(x)     DSL Operators should be aware that laying of unrestricted and unlimited

installation of independent fiber optic cables is harmful to PTCL and DSL

Operators as provides opportunity for selling unauthorized bandwidth to third

parties and/or grey operators and hence misuse of facilities. PTCL had

increased the lease line tariff in view of inflation but these were revoked vide

PTCL letter No. DD (Tariff) 064/2005/DPLC dated July 8, 2008.

(y)     Allegations of violation of PTCL‟s SOP of 2008 are denied and PTCL has at

all times endeavored to perform within given timelines. There have been

exceptions where extra time has been required by the DSL Operators have

been timely informed by PTCL and PTA. PTCL customers were not given

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preference over DSL Operators customers and had to face the same problems.

The fault incidence is not attributed to PTCL only as numerous external

factors are also responsible, such as poor in-house wiring, large scale damage

to PTCL outside plant, utility companies, malicious cable cuts and theft and

right of way (ROW). Supreme Court also took notice of the problems faced by

PTCL and directed Secretary Interior and Secretary Home Department,

Government of Punjab to ensure that no unauthorized digging is done leading

to cutting or causing damage to telephones lines and allied services by or

through semi-autonomous/autonomous bodies, organizations or by city district

government or local governments. Also PTCL provides voice services on the

same lines that DSL Operators use, therefore undue long duration results in

significant revenue loss to PTCL.

(z)     PTCL denies violation of applicable law and PTA determinations. Also PTCL

submitted that the DSL Operators cannot blame PTCL for upgrading its

technologies when they have themselves failed to do so. The shift from copper

infrastructure which is an older technology is for the benefit of the customers

and customers have an option to choose the new numbers given upon shift

from copper to optic fiber. In some cases there is an automatic change of

numbers, but the customer has option to use that number or forgo the service.

(aa)    PTCL denies that it has intentionally or illegally ever created problems for

DSL Operators at PTCL‟s installation and collocation at exchange. PTCL

accommodates all operators provided the PTCL exchange has space.

(bb)    PTCL denies that it has forcefully disconnected customers of other DSL

Operators and only provides services on request of customers. PTCL also

informed that it has offered the ISPs to work in partnership with PTCL for its

white label DSL broadband services on revenue sharing basis. Under which

PTCL will provide end to network infrastructure and resources and DSL

Operators will provide marketing, sales, provision and installation of customer

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premises equipment, billing and revenue collection and after sales support

services.

(cc)    PTCL denied that it provides 1 Mbps broadband at a monthly rate of PKR 299

which is actually PKR 1199 and the PKR 299 is for a connection of 256 Kbps.

Other operators provide broadband services at much lower rates in non USF

areas. USF subsidizes investment for broadband services in areas where no

operator is willing to provide services and these were open for bidding to all

but PTCL obtained these as others were not interested. PTCL submitted that

the copper line cannot be said to be an essential facility as firms have access

to the infrastructure and also has other alternate means such as laying optical

fiber.

(dd)    PTCL only charges the DSL Operators for IP Bandwidth in US dollars which

PTCL itself also pays for in US Dollars. Other charges are paid in Pakistan

rupees and DSL Operators have the option to obtain IP Bandwidth from other

sources.

(ee)    Broadband services are being provided in line with established business

practices and costing principles and in accordance with legal framework, as

well as PTA determinations and regulated tariffs.

(ff)    Facts have been miss-stated and important details have been left out. PTCL

entered into Operation and Management agreements with the DSL Operators

on a 5% revenue sharing basis. As number of customers increased and

revenues per customer increased, it became difficult for PTCL to verify the

charges being paid by customers. In order to increase transparency, it was

suggested that fixed line loop charge be determined at PKR 670/- which was

gradually reduced to PKR 150/- per month. DSL Operators have an option not

to use PTCL infrastructure by investing in its own infrastructure.

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(gg)    Offer of student packages by PTCL is an example of market segmentation

which enables a marketer to create sub-sets of its markets and clusters

customers/clients into groups with similar characteristics, which causes them

to demand similar products/services based on quality of those products such

as price, specifications, etc. Sub sets or clusters are created on various bases,

such as gender, age, income/purchasing power, education, social status,

geographical location, etc.

(hh)    Allegations of DSL Operators that PTCL is providing 4MB package at PKR

1999 and 10MB at 9999 and putting negative impact on competitors in the

market is absolutely false and frivolous. PTCL explained:

(i)     PKR 28,000 per MB relates to rates for clear pipe (unshared-

committed information rate (CIR) connectivity which are given in US

Dollars. Service provider sets contention ratio.

(ii)    The 4 MB and 10 MB packages are not linked to CIR and come with a

contention ratio of 1:40 and not 1:10 as alleged.

(iii)   Sale of clear pipe connectivity is based on requirement of customers

which may range form 1MB to STM-4 (155 Mbps) or more.

(iv)    Allegation of cross subsidization in terms of PTCL student bundles

package is false and malicious and PTCL has been providing the same

since 2 years. Giving free SMS is a PTCL value added service.

(ii)    Complaint is frivolous, vexatious, based on insufficient facts and should be

rejected.

Issues

9. Although many issues have been raised in the complaint, the Enquiry Committee has

determined that only the following issues are relevant for the purposes of this report.

(a) What is the relevant market?

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(b) Whether PTCL holds a dominant position in the relevant market?

(c) Whether PTCL has violated the Section 3 of the Act by abusing its dominant

position in the relevant market?

Relevant Market

10.     In terms of Section 2 (1) (k) of the Act, the relevant market comprises of two

aspects, one being the product market and the other the geographic market. Since

the case in hand pertains to broad band access using DSL technology, it would

therefore, be pertinent to explain the DSL technology first.

11.     DSL is a service that is offered using copper infrastructure available at the local

loop to the end user. The copper pair coming into the house for voice is being

used to provide broadband data services. Both voice and data is supported on the

same pair though both could be from different service providers. This is most

prevalent model for broadband services as it is the quickest to deploy wherever

copper is available. The operator that owns the copper infrastructure makes good

money by pricing the copper infrastructure and offering co-location and leased

lines to broadband service providers using DSL technology.     This model is being

very successfully used around the world and typically is called Local Loop

Unbundling or Sharing.

12.     The changes that take place to go from a pure voice connection on copper to an

additional DSL service are two-folds. The first change is the change at the

exchange where the pair is moved from the Main Distribution Frame (MDF) to

the DSLAM which is an additional frame that comes in for DSL which then

connects to the Broadband Remote Access Server (BRAS) which provides the

authentication and connection to the internet, which is via the Pakistan Internet

Exchange (PIE). On the subscriber end additional devices also come in which is

the splitter and the Asymmetric Digital Subscriber Line (ADSL) Router. The

splitter is a device which is used to separate the voice which is signal at 3KHz,

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Low Frequency, and data which is above 3KHz, High Frequency. The voice goes

to the telephone set while the data goes into the ADSL router which connects to

the BRAS via the DSLAM to connect to the internet. The quality of the copper

pair coming into the subscriber home and the distance to the MDF, are factors

which affect the quality of the data connection and the bandwidth it can carry. It is

possible to carry in excess of 10MB easily on a good quality copper pair provided

the distance to the MDF/DSLAM is less than 2 Km. DSL allows different service

levels which the service provider controls which is the connection from the

service providers Point of Presence (POP) to the subscriber home on the dedicated

copper. From the DSLAM onwards to the POP the bandwidth is shared. The DSL

at home is asymmetric which means that the speed varies from download to

upload, with more through-put available on the downlink side which is what the

service provider will guarantee versus the uplink speed. As most people use the

internet for browsing they are more interested in the downlink speed.

13.     It is evident from the above discussion that there are two relevant product markets

in question, one being the upstream market of copper wire infrastructure,

including related network elements, and the other being the downstream retail

market for provision of broadband service through DSL technology using the

copper infrastructure. In order to provide retail broadband access through DSL,

the availability of copper infrastructure is essential.

14.     PTCL being the incumbent provider of fixed line telecommunication services in

the country is the only company in Pakistan that has a nation wide network of

copper infrastructure. The PTCL network has over 6 million PSTN lines installed

across Pakistan with more than 3 million of these lines being operational. It is not

practically possible for any other telecom operator/ competitor of PTCL to

duplicate the facility of copper infrastructure in Pakistan.

15.     Now we come to the other product market i.e. the market for providing broadband

services to customers using DSL technology. Presently in the Pakistan market

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there are four dominant technologies being used to deliver Broadband services to

end users. They are DSL, Wimax, EVDO and FTTH.  We have already discussed

DSL technology that is the most dominant of all other technologies. Here is the

description of other technologies being used in Pakistan to provide Broadband

services.

16.    Wireless Broadband in the local loop is being offered to subscribers by two means

in Pakistan Code Division Multiple Access (CDMA) and Wimax. CDMA

1XRTT/Evolution Data Optimized (EVDO) is based on the CDMA Wireless

standard and can be offered by companies who have licensed frequency in the

local loop. CDMA like Global System for Mobile Communications (GSM) is a

digital standard used primarily for voice but offers data capability. Depending on

the infrastructure in place this can offer 1XRTT or EVDO which is a 3G

equivalent service. This is primarily a mobile broadband connection where the

user has the ability to move and allows roaming. The subscriber end device is

mostly a USB dongle which has the SIM or subscriber module built in it. The

infrastructure for this is very similar to a GSM infrastructure where the subscriber

connects to the POP by registering to a BTS like a phone and then registers to a

gateway which allows the internet connection. For the subscriber who does not

want fixed connectivity and wants broadband mobility this is very useful. As

frequency is a scarce resource this service is typically more expensive than DSL.

CDMA in Pakistan operates in 450MHz for rural and 1900Mhz for Urban areas.

The licenses were sold as part of deregulation and were auctioned by region.

17.    Wimax is another Wireless Technology which is primarily being used for

Broadband Data with limited voice application. In Pakistan the frequency

allocated for Wimax is 3.5GHz. This has the same infrastructure as cellular

meaning that there are BTS with towers to which a subscriber connects and

typically backhaul to core is via Micro Wave(MW). Wimax can be of two

variants fixed also called IEEE 802.16d and mobile IEEE 802.16e. The reason

why Wimax is predominantly a Broadband data technology is the unavailability

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of handsets which can be used for voice. At the subscriber end a CPE comes into

play which then connects via BTS to the core network where it connects to the

internet pipe. Like other wireless technologies the farther away from the BTS the

weaker the signal, hence slow data rates. There is a limit to the available

bandwidth typically 9.3 Mbps at the BTS so limit on the number of subs that can

be supported at BTS and their SLA levels. Most Wimax operators in Pakistan

support roaming where one can take their CPE to another service area where their

service provider has coverage and start using the service. The USB dongle is also

available allowing mobility in cell.

18.      Fiber to the Home (FTTH) is the delivery of a communications signal over optical

fiber from the operator‟s switching equipment all the way to a home or business,

thereby replacing existing copper infrastructure such as telephone wires and

coaxial cable. Fiber to the home is a relatively new and fast growing method of

providing vastly higher bandwidth to consumers and businesses, and thereby

enabling more robust video, internet and voice services. Connecting homes

directly to fiber optic cable enables enormous improvements in the bandwidth that

can be provided to consumers. Current fiber optic technology can provide two-

way transmission speeds of up to 100 megabits per second. Further, as cable

modem and DSL providers are struggling to squeeze increments of higher

bandwidth out of their technologies, ongoing improvements in fiber optic

equipment are constantly increasing available bandwidth without having to

change the fiber. That‟s why fiber networks are said to be “future proof.”3

19.      As per section 2 (1) (k) the product market comprises all those products or

services which are regarded as interchangeable or substitutable by consumers by

reason of the products characteristics, prices and intended use. Although, the

intended use of each of the technologies is the same, which is to allow consumers

to access broadband data services but the characteristics and prices ranges result

3 FTTH Council website – http://www.ftthcouncil.org/pt-br/content_themes/what-is-ftth

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in differentiation. Wimax and CDMA are both wireless technologies and as a

result have different product characteristics as opposed to DSL and FTTH.

Furthermore, FTTH uses the optical fiber network while DSL uses the copper

infrastructure for provision of Broadband services. Also, optic fiber is a relatively

new technology and at present its availability is limited to few big cities of

Pakistan.  Therefore, the downstream market is not that for broadband services as

submitted by PTCL but for Broadband services using DSL technology.

20.     The second element of the relevant market is the relevant geographic market.      The

copper infrastructure of PTCL is available all over the territory of Pakistan and it

has a nationwide license for provision of DSL services. Furthermore, the mode

and manner of connectivity to the PTCL copper infrastructure is the same all over

Pakistan, thus making the conditions of competition sufficiently homogenous and

therefore, the relevant geographic market for both the product markets is whole of

Pakistan.

Dominant Position of PTCL

2 1.    In view of the above discussion it is clear that PTCL holds a dominant in the

market for provision of copper infrastructure in Pakistan that is an essential

facility for the undertakings engaged in the business of providing broadband

services to customers using DSL technology. In fact PTCL is the only company

which has a copper network.

22.     As regards the other product market i.e provision of broadband services using

DSL technology, it would be appropriate to review the present scenario of

broadband market in Pakistan.

23.     The Broadband market in Pakistan has grown tremendously in the last few years

with the start of Wimax and then the explosion in DSL. Both have benefited from

new entrants coming into the market. DSL has seen the explosive growth when

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PTCL entered the market in 2008 prior to this the other DSL operators were

content to milk the limited number of corporate and high end residential users

they had. PTCL opened it up to the masses by aggressive marketing and lowering

the entry barrier by offering ADSL routers at no cost. Currently, PTCL is very

effectively bundling the copper voice/broadband in packages which are quite

attractive for users. The table below shows the number of users using the different

Broadband technologies and the percentage of DSL penetration as compared to

total Broadband penetration.

Broadband Market

May-11       Jul-10     Jul-09

DSL                          654,707    486,409     476,722

Wimax                         397,155    261,864     257,616

EvDO                         294,161    134,927     111,194

HFC                           42,490     39,529      49,110

FTTH                           6,222       5,255      5,002

Others                         1,873       1,077      1,004

1,396,608    929,061     900,648

Total Wimax                   397,155    261,864     257,616            Wimax is predominantly Data

Total Fixed Line            3,417,802   3,417,802  3,533,275

Total Wireless Local Loop   2,791,609   2,720,112  2,658,685

Total Fixed + Wireless      6,606,566   6,399,778  6,449,576

Broadband Penetration          21.1%       14.5%       14.0%

Copper Access Lines        3,373,461   3,373,461  3,479,641

DSL Penetration                19.4%       14.4%       13.7%

24.     Apart from having a dominant position in the market for providing access to

copper infrastructure, PTCL is also a dominant player in the market for provision

of broadband services using DSL technology in Pakistan. It is also pertinent to

mention that PTCL has the nation wide presence in the DSL based broadband

services in Pakistan, whereas the DSL Operators operate only in few metropolitan

cities of Pakistan i.e Lahore, Karachi and Islamabad.  Accordingly there is a huge

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difference in PTCL‟s number of customers and the number of customers of other

DSL Operators.

Abuse of Dominance by PTCL

25.     It has been alleged in the complaint that PTCL is abusing its dominant position

through the practices of predatory pricing and refusal to deal thus violating

Section 3(3) (f) and 3(3) (h) of the Act.

26.     It has been alleged by the DSL Operators in their complaint that PTCL has

refused to provide access to its copper infrastructure by refusing to cater requests

of DSL Operators for issuance of new connections in a timely manner as required

by SOP on DSL services. The DSL Operators submitted that PTA informed the

DSL Operators that such delays were caused in December 2009 as PTCL was

upgrading its system. However, the DSL Operators have stated that PTCL was

issuing new connections to its own customers during this period of system up

gradation. PTCL has denied that it issued any new connections at the time the

DSL Operators were not being issued new connections.

27.     As the DSL Operators have been unable to provide substantive evidence which

shows that new connections were being issued by PTCL at the time that DSL

Operators were refused access to new connections, it does not seem that PTCL

has abused its dominant position by refusing to deal with the DSL Operators.

Furthermore, the allegations of the DSL Operators seem to be related to an

isolated event that has been attributed to system up gradation and not an on going

practice of PTCL.

28.     It has also been alleged by the Complainants that PTCL has also violated the

provisions of Section 3 (3) (f). According to Section 3 of the Act, an undertaking

shall be deemed to have abused its dominant position in terms of clause (f) of sub-

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section (3) if the undertaking is involved in practices such as predatory pricing,

prevention of new entry and monopolization of the market.

29.     Predatory pricing is a commercial strategy by which a dominant firm first lowers its

price to a level which will ultimately force its rivals out of the market. The incentive

is short-term losses for an overall control of the market in the long run. Generally the

average variable costs are taken into account while calculating what price would be

predatory. Another form of abuse by a dominant firm is the concept of margin

squeeze which has the effect of preventing new undertakings from entering the

market and monopolizing the relevant market. When a firm is engaged in retailing its

products at prices which make it unfeasible for the competitor to remain in the market

at a similar price, it could be a case of margin squeeze as well as that of predatory

pricing.

30.     However, for predatory pricing it is not essential that the dominant firm be present in

the upstream market as well as the downstream market. Secondly, in cases of

predatory pricing, the incumbent makes a loss with regards to that specific product.

However it may be recovered through profits from other products, but it is able to

sustain that loss for the period of time it takes to exclude the competitor from the

market. In margin squeeze the incumbent might not be making a loss because in all

probability its wholesale charges on the upstream market ensures that it makes an

overall profit.

31.      In light of the above discussion and the facts of the case, it seems relevant to

discuss the concept of margin squeeze as it appears that PTCL may be

monopolizing the market and preventing new entry into the market by this

practice.

32.     A margin squeeze occurs when the incumbent, by its actions, reduces the

difference between upstream and downstream prices, for the others, to such an

extent, that entering the market becomes prohibitive and staying in the market

becomes uncompetitive. Or we can say that margin squeeze is associated with a

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firm that is vertically integrated and by virtue of its dominant position in the

upstream market prevents its (non-vertically integrated) downstream competitors

from achieving an economically viable price cost margin.

33.      Margin squeeze evolved as a way of excluding competitors from the market after the

telecom sector was liberalized around the world. It could be done in a number of

ways. The incumbent could raise wholesale prices to such an extent that the margin

between that and the retail price could become negligible or even negative.

Alternatively the existing operator could lower its prices in the retail market, while it

makes an overall profit due to its wholesale charges. It could even carry out both

these steps simultaneously.

34.      The European Commission has this definition of a margin squeeze (or price squeeze):

A price squeeze could be demonstrated by showing that the

dominant company’s own downstream operations could not

trade profitably on the basis of the upstream price charged to

its competitors by the upstream operating arm of the

dominant company…. In appropriate circumstances, a price

squeeze could also be demonstrated by showing that the

margin between the price charged to competitors on the

downstream market (including the dominant company’s own

downstream operations, if any) for access and the price which

the network operator charges in the downstream market is

insufficient to allow a reasonably efficient service provider in

the downstream market to obtain a normal profit (unless the

dominant company can show that its downstream operation is

exceptionally efficient).

35. The case laws4  on margin squeeze suggest following pre-conditions need to be met in

order to establish the case.

(a)  The incumbent should have a dominant position in the upstream market

4  Deutsche Telekom, Decision of the Commission dated 21 May 2003; Wanadoo Espana Vs Telefonica,

Decision of the Commission dated 7 July 2007.

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(b)  The incumbent should be vertically integrated to leverage its dominant position in

the upstream market to negatively effect competition in the downstream market.

(c)  the upstream input should be essential for the downstream operators and

downstream competition

(d)  The margins available to the efficient downstream competitor should be

insufficient

(e)  The margin squeeze should continue for a sufficient duration

(f) Foreclosure of downstream market/harm to the consumer

36.     Here in the present case PTCL has a dominant position in the upstream market for

provision of access to copper infrastructure, and related network elements. It is also

vertically integrated and is providing broadband internet access in the downstream

market. The upstream input, that is the copper infrastructure of PTCL, is an essential

input for the downstream competitors. A facility that is controlled by a single firm

will be considered „essential’ only if control of the facility carries with it the power to

eliminate competition in the downstream market. It has to shown that duplication of

the facilities or an alternative is not feasible because when there are other feasible

options available with regards to the input, a finding of margin squeeze will probably

not be in order. In case of PTCL, laying of copper infrastructure is neither feasible

economically but also would require obtaining a license from PTA for this purpose

which would be a time consuming process.        There would be additional issues as

obtaining right of way for laying such copper lines. The copper network is therefore,

an essential facility for any of the undertaking that intends to provide broadband

services using DSL technology.

37.     The most important question, however, is to determine the existence of a margin

squeeze. As already mentioned, one of the ways to determine a margin squeeze is by

showing that the dominant operator‟s own downstream concern would not be able to

compete effectively at the prices at which the input is being supplied to the

competitor. In the present case PTCL is offering the downstream services by itself

and there is no separation of entities or accounts. Thus, the accounts cannot be

checked to assess if the downstream competitor would be able to compete effectively

with the same difference in prices, therefore, this test cannot be used.

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38.     The second way one could test for a price squeeze is by seeing if the margin is

sufficient for a reasonably efficient service provider to obtain a normal profit. In

order to use this test an analysis of the prices at which PTCL and other DSL

Operators provide DSL services to their customers needs to be done.

PTCL Packages

39.     As per the website of PTCL, currently following packages are being offered to the

customers with dynamic IP

*DSL-1MB Unlimited

PKR 1,250 / month

Unlimited download

Free Modem

PKR 1000 Installation ( w.e.f 1st Aug

2011)

*DSL-2MB Unlimited

PKR 1,499 / month

Unlimited download

Free Modem

PKR 1000 Installation ( w.e.f 1st Aug

2011)

*DSL-4MB Unlimited

PKR 1,999 / month

Unlimited download

Free Modem .

PKR 1000 Installation ( w.e.f 1st Aug 2011)

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40.         PTCL has doubled its broadband data rate speed and upgraded all its existing

2Mbps customers to 4Mbps data rate on the same tariff and all existing 4Mbps

customers have been upgraded to 6Mbps data service at the same tariff. In

addition a new 8Mbps package has also been introduced.

Micronet Packages

Monthly Charges per

Package                      Download Speed              Monthly Volume

month

128 Kbps(Day)

DSL Econo

1Mbps(Night) 8 p.m. to 8    Unlimited                           PKR 749/-

(Dynamic IP)

a.m. & Sundays

DSL Moderate

512 Kbps 24×7               Unlimited                           PKR 850/-

(Dynamic IP)

512 Kbps(Day)

DSL Pro

1Mbps(Night) 8 p.m. to 8    Unlimited                           PKR 950/-

(Dynamic IP)

a.m. & Sundays

512 Kbps(Day)

DSL Cruise*

2Mbps(Night) 8 p.m. to 8    Unlimited                          PKR 1,149/-

(Dynamic IP)

a.m. & Sundays

Ultimate Plus

1Mbps 24×7                  Unlimited                          PKR 1,199/-

(Dynamic IP)

1 Mbps(Day)

DSL Nitro*

2 Mbps(Night) 8 p.m. to     Unlimited                          PKR 1,499/-

(Dynamic IP)

8 a.m. & Sundays

w.e.f from 09 December 2009

* Due to technical limitations DSL Cruise and DSL Nitro are not available in Bahria,

DHA, Gulraiz and PIA exchanges.

Note: Package speed availability is dependant upon your telephone line condition.

Sr.No                                      Service Description                                                   Charges

a.       Monthly Advanced Charges                                                          as per package!

b.       Installation & Line Conditioning Charges                                                           PKR 750/-

c.       Choice of hardware (either of the following as per requirements)

DSL Modem (1 USB Port)                                                                            PKR 2,000/-

DSL Combo Router (1 Ethernet Port, 1 USB Port)                                                    PKR 2,500/-

DSL Wireless Router (4 Ethernet Ports)                                                            PKR3,000/-

Reach Router                                                                                      PKR 8,000/-

Note: Above mentioned prices are inclusive of GST.

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Bandwidth: Upto 2 Mbps dedicated as per chosen Package with Dynamic IP

CPE Warranty (Limited): 12 Months by Manufacturer.

Time and usage Limit: 30 days or usage of (as per subscribed package) volume

(whichever comes first).

Free Multiplayer Gaming.

Free 25MB E-mail Box.

24×7 Technical Support (Phone, Email and SMS).

Nexlink Packages

41.     No information on the packages being offered by Nexlink was made available to

Enquiry Committee, neither it is available online.

Link dot Net Packages

Price of Connections Offered toUsers:

Monthly Internet

Package                   Speed                 Charges (PKR)

LINK DSL 1M                1 Mbps                    1,050

LINK DSL 2M               2Mbps                      1,850

LINK DSL 4M               4Mbps                      3,750

Apart from these monthly internet charges, monthly CPE rental fee for non Wi Fi CPE @

PKR 150/month and PKR250 per month incase of Wi Fi CPE

Cost Models Submitted by DSL Operators and PTCL

42.     During the course of enquiry various cost models were submitted by the DSL

operators including PTCL. If we review these cost models, no conclusion can be

made, because for each undertaking‟s individual circumstance, there is a drastic

variation in costs and resultant profit margins. Following are few of those cost

models presented to the enquiry committee. The table below summarizes the cost

model submitted by PTCL in relation to different contention ratios:-

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Cost of 2 Mbps DSL

Contention

Description                                        Comments         Unit      1:12      1:21      1:30       1:40

IP Bandwidth

Cost of IP Bandwidth/month(1Mbps@US$80/month)                       2Mbps/Month        US$         160        160       160       160

Cost of IP Bandwidth/month                              2Mbps/Month        PKR      13,760    13,760    13,760    13,760

Cost of DPLC data/month based on 25Km Av distance                   2Mbps/Month        PKR       1,458     1,458      1,458     1,458

Contention Used                                                                   12         21        30        40

Cost of (IP Bandwidth + DPLC) per customer of 1 Mbps                   2Mbps/Month                  1,268        725       507       380

ADSL Cost

ADSL Capital cost per port                                                US$          22         22        22        22

ADSL Capital cost per port                                                PKR       1,892     1,892      1,892     1,892

ADSL port cost (Amortized at 5 years life and 17% annual interest rate)     Per port/year      PKR         576        576       576       576

Over head 50% of annual cost (power, co-location etc,)              Per port/year      PKR         288        288       288       288

Hardware maintenance cost 5% of Capex                         Per port/year      PKR          95         95        95        95

Total Annual cost of Network per customer                                         PKR         959        959       959       959

Total cost of Network per customer per month                                         PKR          80         80        80        80

Cost of Modem (10$ cost amortized over 02 years at 17% annual interest

rate)                                                          PKR          45         45        45        45

Cost of access network

Per

Local loop charges                                 customer/month     PKR         150        150       150       150

Per

Operations, maintenance and customer supports                      customer/month     PKR         200        200       200       200

Total cost of DSL customer (A+B+C+D+E)                                   PKR       1,743     1,200        982       855

Cost of 4 Mbps DSL

Contention

Description                                        Comments         Unit      1:12      1:21      1:30       1:40

IP Bandwidth

Cost of IP Bandwidth/month(1Mbps@US$80/month)                       4Mbps/Month        US$         320        320       320       320

Cost of IP Bandwidth/month                              4Mbps/Month        PKR      27,520    27,520    27,520    27,520

Cost of DPLC data/month based on 25Km Av distance                   4Mbps/Month        PKR       2,916     2,916     2,916     2,916

Contention Used                                                                   12         21        30        40

Cost of (IP Bandwidth + DPLC) per customer of 1 Mbps                   4Mbps/Month                  2,536     1,449     1,015        761

ADSL Cost

ADSL Capital cost per port                                                US$          22         22        22        22

ADSL Capital cost per port                                                PKR       1,892     1,892      1,892     1,892

ADSL port cost (Amortized at 5 years life and 17% annual interest rate)     Per port/year      PKR         576        576       576       576

Over head 50% of annual cost (power, co-location etc,)              Per port/year      PKR         288        288       288       288

Hardware maintenance cost 5% of Capex                         Per port/year      PKR          95         95        95        95

Total Annual cost of Network per customer                                         PKR         959        959       959       959

Total cost of Network per customer per month                                                        PKR          80         80        80        80

Cost of Modem (10$ cost amortized over 02 years at 17% annual interest

rate)                                                                                               PKR          45         45        45        45

Cost of access network

Per

Local loop charges                                                               customer/month     PKR         150        150       150       150

Per

Operations, maintenance and customer supports                                    customer/month     PKR         200        200       200       200

Total cost of DSL customer (A+B+C+D+E)                                   PKR       3,011     1,924     1,489      1,236

Description                                        Comments         Unit            Cost of 6 Mbps DSL

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———————– Page 31———————–

Contention

1:12      1:21      1:30       1:40

IP Bandwidth

Cost of IP Bandwidth/month(1Mbps@US$80/month)                       6Mbps/Month        US$         480        480       480       480

Cost of IP Bandwidth/month                              6Mbps/Month        PKR      41,280    41,280    41,280    41,280

Cost of DPLC data/month based on 25Km Av distance                   6Mbps/Month        PKR       4,374     4,374     4,374     4,374

Contention Used                                                                   12         21        30        40

Cost of (IP Bandwidth + DPLC) per customer of 1 Mbps                   6Mbps/Month                  3,805     2,174     1,522      1,141

ADSL Cost

ADSL Capital cost per port                                                US$          22         22        22        22

ADSL Capital cost per port                                                PKR       1,892     1,892      1,892     1,892

ADSL port cost (Amortized at 5 years life and 17% annual interest rate)     Per port/year      PKR         576        576       576       576

Over head 50% of annual cost (power, co-location etc,)              Per port/year      PKR         288        288       288       288

Hardware maintenance cost 5% of Capex                         Per port/year      PKR          95         95        95        95

Total Annual cost of Network per customer                                         PKR         959        959       959       959

Total cost of Network per customer per month                                                        PKR          80         80        80        80

Cost of Modem (10$ cost amortized over 02 years at 17% annual interest

rate)                                                                                               PKR          45         45        45        45

Cost of access network

Per

Local loop charges                                                               customer/month     PKR         150        150       150       150

Per

Operations, maintenance and customer supports                                    customer/month     PKR         200        200       200       200

Total cost of DSL customer (A+B+C+D+E)                                   PKR       4,279     2,649     1,997      1,616

Cost of 8 Mbps DSL

Contention

Description                                        Comments         Unit      1:12      1:21      1:30       1:40

IP Bandwidth

Cost of IP Bandwidth/month(1Mbps@US$80/month)                       8Mbps/Month        US$         640        640       640       640

Cost of IP Bandwidth/month                              8Mbps/Month        PKR      55,040    55,040    55,040    55,040

Cost of DPLC data/month based on 25Km Av distance                   8Mbps/Month        PKR       5,832     5,832     5,832     5,832

Contention Used                                                                   12         21        30        40

Cost of (IP Bandwidth + DPLC) per customer of 1 Mbps                   8Mbps/Month                  5,073     2,899     2,029      1,522

ADSL Cost

ADSL Capital cost per port                                                US$          22         22        22        22

ADSL Capital cost per port                                                PKR       1,892     1,892      1,892     1,892

ADSL port cost (Amortized at 5 years life and 17% annual interest rate)     Per port/year      PKR         576        576       576       576

Over head 50% of annual cost (power, co-location etc,)              Per port/year      PKR         288        288       288       288

Hardware maintenance cost 5% of Capex                         Per port/year      PKR          95         95        95        95

Total Annual cost of Network per customer                                         PKR         959        959       959       959

Total cost of Network per customer per month                                                        PKR          80         80        80        80

Cost of Modem (10$ cost amortized over 02 years at 17% annual interest

rate)                                                                                               PKR          45         45        45        45

Cost of access network

Per

Local loop charges                                                               customer/month     PKR         150        150       150       150

Per

Operations, maintenance and customer supports                                    customer/month     PKR         200        200       200       200

Total cost of DSL customer (A+B+C+D+E)                                   PKR       5,548     3,374     2,504      1,997

Cost of 10 Mbps DSL

Contention

Description                                        Comments         Unit      1:12      1:21      1:30       1:40

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IP Bandwidth

Cost of IP Bandwidth/month(1Mbps@US$80/month)                     10Mbps/Month      US$         800      800       800       800

Cost of IP Bandwidth/month                            10Mbps/Month      PKR     68,800    68,800    68,800    68,800

Cost of DPLC data/month based on 25Km Av distance                 10Mbps/Month      PKR      7,290     7,290     7,290     7,290

Contention Used                                                                 12       21        30        40

Cost of (IP Bandwidth + DPLC) per customer of 1 Mbps                 10Mbps/Month               6,341     3,623     2,536     1,902

ADSL Cost

ADSL Capital cost per port                                              US$          22       22        22        22

ADSL Capital cost per port                                              PKR       1,892    1,892     1,892     1,892

ADSL port cost (Amortized at 5 years life and 17% annual interest rate)   Per port/year     PKR         576      576       576       576

Over head 50% of annual cost (power, co-location etc,)            Per port/year     PKR         288      288       288       288

Hardware maintenance cost 5% of Capex                       Per port/year     PKR          95       95        95        95

Total Annual cost of Network per customer                                      PKR         959      959       959       959

Total cost of Network per customer per month                                                     PKR          80       80        80        80

Cost of Modem (10$ cost amortized over 02 years at 17% annual interest

rate)                                                                                            PKR          45       45        45        45

Cost of access network

Per

Local loop charges                                                             customer/month    PKR         150      150       150       150

Per

Operations, maintenance and customer supports                                  customer/month    PKR         200      200       200       200

Total cost of DSL customer (A+B+C+D+E)                                 PKR      6,816     4,098     3,011     2,377

43.      The cost model submitted by Micronet is attached below.

Bandwidth cost                                                        PKR 24,182,850/-

Charges of PTCL copper line                                           PKR 13,168,055/-

PTCL inter-exchange media Charges                                     PKR 4,247,611/-

PTCL co-location Charges                                              PKR 3,690,615

PTA Fees                                                              PKR 2,149,713

Other Operational and Administrative costs                            PKR 61,984,877

Total Cost of DSL Services                                            Rs. 109,423,721/-

44.       The cost model submitted by LinkDotNet is as follows. The following costs have

been calculated based on the contention ratio of 1:23. These costs are direct

service costs and are exclusive of other operational costs incurred in running the

business.

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Cost Allocation per Subscriber (PKR)            1Mbps      2Mbps     4Mbps

IP BW                                278       556      1,112

Stream/Media Connectivity                       424       848      1,697

Co-Location                             160       160        160

Unbundle Fee                             150       150        150

Total Cost                           1,012     1,714     3,118

Price Per Package                        1,050     1,850     3,750

Margin                                 38       136        632

Margin %age                              4%        7%        17%

Costs after reduction of BW to half

Cost Allocation Per Subscriber (PKR)                 1M        2M        4M

IP BW                                139       278        556

Stream/Media Connectivity                       424       848      1,697

Colocation                             160       160        160

Unbundle Fee                             150       150        150

Total Cost                             873     1,436     2,562

Price Per Package                        1,050     1,850     3,750

Margin                                177       414      1,188

Margin %age                             17%       22%       32%

Costs after Unbundled fee is waived and Alternative Media is allowed

Cost Allocation Per Subscriber

(PKR)                                     1M        2M         4M

IP BW                         278         556      1112

Stream/Media Connectivity              212         424       848

Colocation                      160        160       160

Unbundle Fee                 –         –          –

Total Cost                      650       1140      2120

Price per Package                  1050       1850      3750

Margin                        400         710      1630

Margin %                       38%       38%        43%

45.     The complainant Nexlink has not submitted a cost model.

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Cost Model for an as Efficient Competitor

46.     From the above costing tables it appears that cost of providing DSL based broad

band services vary from company to company. Although PTCL is charging every

company at the same rate for PTCL related charges, however, other expenses like

bandwidth charges, marketing expense, administrative expenses etc are company

specific. Based on the cost calculations provided above by PTCL and by other

operators and independent evaluation of each cost item, the Enquiry Committee

has developed a hypothetical cost model that can closely represent the cost of

providing DSL based broad band services by an as efficient competitor as PTCL.

This is a hypothetical model based on some key assumptions that are presented

below. The Enquiry Committee mostly relied on the costs provided by PTCL.

However, some of the costs provided by PTCL appeared unrealistic when

compared with the costs provided by other operators. The Enquiry Committee

verified these costs independently from market sources and relevant evidences are

annexed to the report.

Description                          Comments              Unit     Cot of       Cost of      Cost of

1Mbps        2Mbps        4Mbps

DSL          DSL          DSL

IP Bandwidth

Cost of IP Bandwidth/month                                 US$      80           160          320

(1Mbps@US$80/month)

Cost of IP Bandwidth/month                                 PKR      6880         13760        27520

Cost of IP DPLC data/month           Annex C               PKR      1021         2042         4084

based on 35km Av Distance

Contention used                      Annex D                        27           27           27

Cost of (IP Bandwidth + DPLC)                                       293          585          1170

per customer

ADSL Cost

ADSL Cost per port                   Annex A               US$      53           53           53

ADSL Cost per port                                         PKR      4767         4767         4767

ADSL Port Cost (Amortized at 5       Per Port/Year         PKR      1457         1457         1457

year life and 17% annual interest    Annex B

rate)

Overhead 50% of annual cost          Per Port/Year         PKR      729          729          729

Hardware maintenance cost 5% of      Per Port/Year         PKR      238          238          238

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Capex

Total annual cost of network per                          PKR      2424         2424        2424

customer

Total cost of network per                                 PKR      202          202         202

customer per month (A)

Cost of Modem (10$ cost              Per customer/        PKR      47          47           47

amortized over 02 years at 17%       month

annual interest rate) (B)

Cost of access network

Local loop charges (C)               Per customer/        PKR      150          150         150

month

Operations, maintenance and          Per customer/        PKR      200          200         200

customer supports (D)                month

Sales & Marketing                    Per                  PKR      30           30          30

customer/month

Total cost of DSL customer                                PKR      922          1304        191

(A+B+C+D+E)

Price being offered to customers                                   PKR850       PKR1499     PKR1999

by PTCL                                                            student

PKR1250

others

Withholding tax @ 6% of price                             PKR      75           90          120

Total Cost Per Customer Per                               PKR      997          1304        1919

Month

Price/Cost Margin Per                                     PKR      (147)        195         80

Customer Per Month                                                 253

% Margin                                                           20%          13%         4%

Assumptions for the Model

47.     The following assumptions have been taken in the model above.

(a)  Cost of IP Bandwidth has been used as per the figures provided by PTCL and has

been kept at minimum. It is to be clarified that cost of IP Bandwidth may vary

from company to company and it is cheaper when bought in bulk. Since we are

applying an „as efficient competitor test‟ it would be most relevant to use the costs

provided by PTCL, except where the cost provided by PTCL appear significantly

unrealistic.

(b) Dollar rate for conversion has been taken as the most recent US$ to PKR rates.

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(c) Although PTCL in their costing assumed minimum 25KM distance, however, in

actual PTCL charges other DSL operators a minimum of 35 KM distance.

Relevant evidence in this regard is attached with the report as Annex C.

(d) Contention Ratio of 1:27 has been used, based on the determination of PTA and

copy thereof is enclosed herewith. Annex D

(e)  Costing for ADSL port along with the diagram is annexed to the report. Annex A

(f)  The cost for operations maintenance and customer support has been taken from

the costing provided by PTCL

(g) Sales and marketing expenses have been estimated following the principle of

prudence from PTCL‟s DSL related accounts provided by PTCL during the

course of enquiry.

(h) The analysis only contains operational costs relevant for calculating gross profit

margins. It does not include costs like interest, depreciation of capital cost,

vehicles, transportation, the cost of salaries of administrative staff, other

administrative cost, provision of taxation etc.

Analysis

48. From the above table following points emerge:

(a) At   the   current   prices   offered   by  PTCL,   an   as   efficient   competitor   as   PTCL

would     incur   an   average   gross    margin   of   PKR    95.25    (assuming      equal

distribution of customers across various packages) per customer per month, if

it offers all the packages currently being offered by PTCL.

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———————– Page 37———————–

(b) An     as  efficient   competitor     as  PTCL     can   only   offer  student    package    by

incurring a loss of PKR 147 per customer per month.

(c) Margins      are   highly   insufficient   and    unattractive   for   the 4  MB     package.

Moreover,      the margins     available    at  1Mb    and   2Mb   cannot    be  considered

sufficient to allow for profitable operation for an equally efficient competitor .

PTCL upgraded free of cost all its 1Mb customers to 2Mb, 2Mb to 4Mb and

4Mb to 6Mb. This means that the actual margins for these packages are even

lower than what appears on paper.

(d) Moreover, as mentioned above, it should be kept in mind that these margins

are   not   the   net   margins  but   gross   margins   from   which   means   that   actual

margins would be even lower.

(e) Due     to  the  vertical   integration,   and  lack    of  arms   length   transactions    and

separate   accounting,  PTCL  may   appear   to  have   significantly   high   margins.

However,  this  is  not  true  in  reality  since  arm‟s  length  transactions  are  not

being recorded.

Profitability Analysis5

Micronet

49.      According to the financials of Micronet, its sales are showing a decreasing trend

over   last   three   years.   The  sales   declined   by  18%   from   FY   08   to   FY   09   and   by

35%   from   FY   09   to   FY   10.   Total   expenses   have   reduced   over   the   period   of   3

years but they have not helped in reaping the profits. The gross margins show a

decrease of 33% from FY 08 to FY 09 and 46% from FY 09 to FY 10. The same

is the trend with Operating Profits that from declining profits to FY 09, incurred

losses in FY10. Operating profits decline from FY08 to FY09 by 31 % and then in

FY10 by 56%.

5 Done on the basis of financial reports submitted to the Enquiry Report

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50.      If we look at the expenses that Micronet is incurring the biggest chunk is that of

salaries which is around 35% for last two years, down from 41% in 2007-8.

Salaries are followed by PIE at around 20% and similar number for the PTCL

related expenses which include Copper pair rent, co-location charges and

bandwidth charges. The other opex, rent, depreciation and OH make up the rest of

25%.

51.      It appears that with the entry of PTCL revenues have come down as tariffs have

come down and also loss of customers plus higher Opex. The result is that the

service which was profitable in 2008-9 is running into a loss in 2009-10.

LinkDotNet

52.      LinkDotNet is a subsidiary of Mobilink and its portfolio includes ISP services,

DSL services and Wimax Broadband trial they were running. The financials

provided show losses in all the years even though revenue is growing slightly year

over year. Unlike Micronet, which was getting a premium, LinkDotNet was

pricing its products at low levels and possibly going after the low end market. It is

also interesting that they have very low GM of around 35% which is suggesting

that for them the PTCL related costs are very significant and crippling. As they

are operating in Islamabad, Lahore and Karachi their bandwidth costs are higher

as longer distances covered and possibly had expected customers to move to

higher transmission rate so getting more capacity from PTCL than was needed.

The fact that they may have had Wimax backhaul also driving bandwidth could

partly explain higher bandwidth requirement.

Nexlinx

53.      Sales for Nexlinx got reduced by 53% from FY10 to FY11 along with a decrease

in   total   expenses   by   26%   from   FY10   to   FY11.   Gorss   margins   show   a   drastic

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decrease    from   FY10    to  FY11   by   106%   and   the  losses  are  also  showing   an

increase   for   consecutive   years.   The   operating   losses   increased   by   106%   from

FY10 to FY11.

Operating Profits

50000000

0

R                   Year 2008            Year 2009           Year 2010

K   -50000000                                                                       Micronet

P

s                                                                                   LinkDotNet

t

i

f

o  -100000000                                                                       Nexlinx

r

P

-150000000

-200000000

Year

PTCL

54.     PTCL financials have confirmed that without the additional burden of copper pair

rent, bandwidth charges and co-location charges they have a very healthy gross

margin of 88% in 2010-11 and similarly in the previous year. What is also

interesting to note that their stated revenue of PKR 6.66B is significant portion of

their overall revenue of PKR 55.25B at 12% for 2010-11. The operating profit of

31% is very good and is better than 21% which PTCL posts for overall

operations, suggesting how important broadband is for PTCL. It is reaping profit

from investment made ages ago in the copper network. It is also apparent from

PTCL financials that device charges are 66.5% of marketing and selling expenses

confirming the importance of lowering cost of entry for a new subscriber, a key

factor in strong uptake of the service for PTCL.

55.     What is different for PTCL vis-à-vis other DSL Operators is that, given its

vertical integration, and lack of arms length transactions or separate accounting, it

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would not incur any additional OPEX in the form of copper pair rent, bandwidth,

and co-location charges that other DSL Operators would have to pay for.

Moreover, salaries would be negligible so around 70-80% of the expense a DSL

operator incurs would not be born by PTCL. They already have a wire-line

network with personnel who manage its operations and sales. PTCL might need

the additional DSLAM investment with BRAS but the incremental OPEX for this

would be negligible.

56.     It would be pertinent to mention here that since the entry of PTCL in the DSL

retail market, almost half the number of firms providing DSL have exited the

market. In 2005, eleven companies namely Micronet, World Online, Cybernet,

Habib Rafique, Dancom, Nexlinxs, Brainnet, GOI, Comsats, Multinet, and

Nexcom were providing DSL packages. By 2012 only six companies namely

Micronet, LinkDotNet, Comsats, Multinet, Nexlinxs, and Cybernet are left.

Moreover, since PTCL‟s entry no new player has entered into the market.

Conclusion

57.     From the above discussion it can be concluded that PTCL is a dominant player in

the upstream market for provision of access to country wide copper infrastructure,

which is an essential input for the undertakings operating in the market of

providing DSL based broad band services. Based on the findings of cost analysis

it appears that the margins in the DSL retail market due to PTCL‟s pricing for the

access to its copper network are insufficient for an efficient competitor to operate

profitably. The analysis of financial statements of DSL Operators appears to

confirm that as a result of such low prices the profit margins of DSL Operators

have gradually reduced and now they are operating under huge losses. Many of

the players in the DSL retail market have exited the market. The cost analysis of

PTCLs DSL operations shows that it has been able to record profits despite

offering very low retail prices and having very low margins.  PTCL being a

vertically integrated company, its DSL business does not incur/record some of the

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expenses such as co-location charges, copper pair rent, additional overheads etc

that other operators have to bear. Additionally, the offers like double the speed

without additional cost, upgrading of package etc are impossible for the

competitors of PTCL to match. Resultantly, prima facie , DSL operators are losing

market shares and incurring huge operational losses and if this continues, it may

lead to exclusion of further competitors and thus monopolizing the relevant

market by PTCL.

58.     Apparently the lower tariffs are beneficial for the customers and are a good way

to penetrate in a growing market for DSL based broadband services. However,

such low tariffs and low margins are making this market unattractive for further

investment, research and development. This may result in competitors leaving the

market and creating a monopolistic situation in the long run, thus leaving the

customers on the mercy of a super dominant player who will be at its free will to

exploit customers. This also has the effect of preventing new undertakings from

entering the DSL market.

59.     Section 3(1) read with Section 3 (2) of the Act prohibits practices by a dominant

player which prevent, restrict, reduce or distort competition in the relevant

market. Price squeezing has been established as an abusive practice in all the

leading jurisdictions of the world and has the impact of monopolizing the market

and preventing new entrants and thereby preventing, reducing and distorting

competition within the relevant market.

60.     PTCL‟s pricing strategy in the broadband wholesale market is inducing a margin

squeeze in the DSL retail market thereby making it impossible for an equally

efficient competitor to conduct profitable operations in the DSL retail market.

This margin squeeze is not only driving out competition in the downstream DSL

retail market, but is also preventing new entrants from coming in. This pricing

strategy appears to be a prima facie violation of Section 3 of the Act.

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Recommendation

61.     In view of the above, and given the importance of the broadband DSL sector in

the development of the country, it is proposed that proceedings under Section 30

may be initiated against PTCL for prima facie violation of Section 3( 1) read with

Section 3 (2) of the Act.

Shaista Bano                                   Mehreen Ibrahim

Director                                       Deputy Director

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