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Rule of law in the telecom sector
Free market dictates calls charges
S.A.T.M. Badrul Hoque

          In order to materialise the strategic vision behind liberalisation of the Telecom sector, the government announced the National Telecom Policy 1998, with the main objective of creation of an environment of competition by establishing market-oriented regime, appropriate sets of regulations, standards, procedures, conditions and investment climate so that the users have multiple choices for access to networks and markets of different services, systems and carriers at a competitive and reasonable price.
With a view to ensuring a level playing field for all operators in a multi-operator environment, the government, in exercise of the powers given in the Bangladesh Telecom Act (BTA) 2001, established in July 2001, the Bangladesh Telecom Regulatory Commission (BTRC) which started its operation from 31st January, 2002. Previously, the government's telecom Deptt. BTTB, as per the Telegraph Act 1885, had the exclusive privilege of acting as both telecom operator and regulator until 1995 when the regulatory power was transferred to the Ministry of P&T.
Telecom regulatory affairs having been vested solely in BTRC after enactment of the BTA 2001, the onus is now on the BTRC to establish, from a neutral point of view, rule of law in Bangladesh telecommunications sector which was as a natural phenomenon not free from being affected by partisan treatment, given the fact that regulation and operation was beforehand in the same entity. Prudent and impartial role of BTRC must be evidenced by its actions - in optimising the number of operators consistent with the actual requirement of services and limited availability of resources -- in ensuring level playing field for all operators, public and private alike - in monitoring that licensees establish systems and offer services as per provision of their respective licenses - and in issuing orders and directives strictly in tune with the provisions of BTA 2001. Other government agencies/bodies concerned and the Telecom operators themselves as well have to cooperate with the BTRC to effectively accomplish this techno-judicial task.
The BTA 2001 has not fixed any set process for issuance of license, rather it has been kept open for BTRC to adopt any process as it deems fit as per requirement of the situation. Until making in January 2004 of Licensing Procedure Regulations, open licensing procedure was followed in issuing licenses except three mobile licenses issued by MOPT in 1996. Licensing Procedure Regulations 2004, however, mandates issuance of license for some services (Cellular Mobile Phone, Satellite Mobile Phone, Overseas Telecommunication, Commercial Paging & Radio Trunking) through competitive bidding and for some services (Public Switched Telephone, National Long Distance, Internet, VSAT & Data Communication) through open licensing procedure. Until and unless these Licensing Procedure Regulations 2004 are nullified / modified or new regulations are substituted, actions taken contrary to these regulations will be illegal and will remain prone to being challenged in the court of law.
As per BTA 2001, an operator whether public or private, in spite of so many legal obligations and limitations to be complied with, shall have some rights that used to be enjoyed by the Government T&T department. as per the Telegraph Act 1885. The most important one is the Right of Way, which empowers an operator to install any apparatus, thing or facility on, above or over any land for the purpose of establishing a telecom system or for providing telecom service. An operator shall ordinarily exercise this Right of way on the land owned or possessed by the government or a local authority or statutory body -- and the government agency or the local authority or the statutory body shall not ordinarily obstruct the exercise of the Right of way. Given this privileged position of the Telecom operators, any government agency or local body discriminating between public operator and private operators or hanging back or hanging up according to right of way to any Telecom operator on any plea (aesthetic or some other considerations), does not only violate law of the land, but also deter telecom development of the country thereby acting against the very political will and intent of the government.
Prior to the BTA 2001, the operators were free to fix charges of their services at their will. Not to speak of the private operators, even the public operator used to fix the charges arbitrarily to achieve a pre-fixed revenue-earning target by taking advantage of the monopolistic or less competitive situation. With a view to remove this profiteering tendency, the BTA 2001 has made it mandatory that an operator shall, before providing service, submit to the Commission, with proper justification, a tariff containing maximum and minimum charges that may be realised for such service. And until the tariff is approved by the Commission, the operator shall not start providing the service or realising charges for the service.
Notwithstanding what has been stated, there is no denying the fact that in free market economy, price is determined by the market force itself. Reduction of NWD call charges by BTTB in the wake of comparatively much low charge in country-wide mobile to mobile calls, and gradual reduction of mobile call charges as a result of some recent aggressively marketed packages by the mobile operators are glaring examples in support of this economic doctrine. The consultant engaged in determining tariff principles, should, therefore, be provided with correct information and perception as to the operators' status and subscribers' expectation in terms of economy, coverage and quality so that the consultant, instead of recommending for rigidly fixing the tariff, recommends for some bench marks as has been done in other countries.
The writer is former BTTB Chairman and an ITU expert


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