Quality of Service Survey and Show Cause Notices

The Supreme Court of Pakistan, in the case of Pakistan Telecommunication Authority (PTA) vs. Pakistan Mobile Communication Limited (PMCL), reported as 2019 SCMR 924, adjudicated on the procedural and jurisdictional aspects concerning the enforcement actions of PTA against PMCL. The case centered on the legality of a Quality of Service (QoS) survey conducted by PTA and the subsequent issuance of show cause notices.

Background:

PTA, exercising its powers under the Pakistan Telecommunication (Re-organization) Act, 1996 ("the Act"), conducted a QoS survey on PMCL’s services, which revealed that the services were below the required standard. PTA issued a show cause notice to PMCL under Section 23 of the Act, calling for remedial actions and an explanation for the deficiencies identified. Instead of complying with the show cause notice, PMCL challenged the legality of the survey and the subsequent notices, first before PTA and then before the Islamabad High Court (IHC), arguing that PTA had exceeded its jurisdiction.

Key Issues:

Jurisdiction to Conduct QoS Survey: Whether PTA had the authority to conduct the QoS survey without prior notice to PMCL and whether the survey was conducted in accordance with the law.

Maintainability of Appeals: Whether PMCL’s appeal to the High Court under Section 7(1) of the Act was competent, given that there was no final decision or order passed by PTA.

Appellate Jurisdiction of High Court: The scope of the High Court's appellate jurisdiction under Section 7(1) of the Act, particularly whether it could entertain an appeal against show cause notices.

Court’s Analysis:

PTA’s Authority to Conduct Surveys: The Supreme Court upheld PTA's authority to conduct the QoS survey, citing Regulation 10 of the Cellular Mobile Quality of Service Regulations, 2011, which explicitly empowers PTA to conduct inspections, surveys, and performance audits to ensure service quality. The court dismissed PMCL's argument that prior notice was required, emphasizing that PTA's actions were within the scope of its regulatory mandate.

Maintainability of the High Court Appeal: The Supreme Court ruled that the appeal before the High Court was not maintainable. It clarified that under Section 7(1) of the Act, an appeal to the High Court could only be filed against a final "decision or order" of PTA. Since PTA had not yet made any final determination or imposed any penalties, the High Court lacked the jurisdiction to entertain the appeal. The court underscored that procedural steps, such as show cause notices, do not constitute a "decision or order" and therefore cannot be challenged under the appellate jurisdiction provided in the Act.

High Court’s Error in Jurisdiction: The Supreme Court found that the IHC had exceeded its jurisdiction by striking down the show cause notices and ordering a new survey. The court emphasized that the High Court's appellate jurisdiction under Section 7(1) only commences once a final decision or order is issued by PTA. The court reiterated that PTA was entitled to complete its enforcement process without interference, and any challenge should only arise after PTA had issued a final decision.

Court’s Conclusion: The Supreme Court allowed PTA’s appeal, setting aside the judgment of the Islamabad High Court. The court reinforced the principle that regulatory authorities must be allowed to exercise their statutory powers without undue interference and that the judicial review of regulatory actions should be confined to final decisions or orders. The decision also clarifies the procedural rights and obligations of telecom operators in responding to regulatory surveys and enforcement actions.

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