Is SMP restriction procedure legal?

The High Court has asked the Bangladesh Telecommunication Regulatory Commission (BTRC) to explain why the procedure through which it imposed four restrictions on Grameenphone after declaring it a Significant Market Power will not be termed illegal.

Following a short hearing on Wednesday on a writ petition GP filed two days ago challenging the procedure, the HC also stayed one of the restrictions on conducting nationwide promotional campaigns.

“This means Grameenphone faces no restriction right now on advertisements and overall communication through any medium or channel,” Barrister Mustafizur Rahman Khan, who is representing the mobile operator, told The Daily Star yesterday.

The first three restrictions are still applicable, he said. According to a BTRC letter, all the restrictions were to come into effect from March 1. On February 10, the BTRC declared GP as the country's first SMP operator for holding 40 percent of the subscribers, revenues and spectrum.

Eight days later, the BTRC imposed the four restrictions, which include a ban on signing exclusive deals with goods and service providers. Currently, vendors are allowed to extend offers to only GP customers, shutting out other operators from negotiating such deals. Moreover, the acceptable call drop for GP has been set at no more than 2 percent.

According to a market drive run by the regulator on November 6 to 8, GP's call drop rate was found to be 3.38 percent, which is higher than its competitors.

The last restriction was on making it easier for a user to leave GP under the mobile number portability facility.

Currently, if a subscriber wants to switch to a network they will have to stay with the new carrier at least for 90 days. But such subscribers can quit the GP network after 30 days.

Khan said according to the SMP regulations, the regulator can tag any operator with the title if it was satisfied with the reasons to do so.

But there are procedures to follow before the declaration can be made and those have not been abided by in GP's case, he said.

According to section 9 of the regulation, the BTRC will have to inform the operator of the restrictions or regulatory bars and give 15 days for it to respond. The reply must be given consideration before the regulator could uphold its previous decision.

But in this case, the BTRC did not share any idea with GP, breaching its own regulation, Khan added.

The court did not verbally mention any deadline for the clarification but it can be known once the written order was made available, said Khan. 

BTRC Chairman Md Jahurul Haque said they would respond to the court's query and describe the procedure the commission followed.

On the stay on one of the four restrictions, Haque said the BTRC would settle on whether to contest it after consulting its own legal office.

Khan said there would be a bigger hearing on the issue after the court's vacation, which is scheduled for March 15-29.