The curious case of telecom right of way (R.O.W) 

As per legal definition Right of way (“RoW”) is the right to pass over or through real property owned by someone else, usually based upon an easement; also, “right-of-way.” The right of way may specify the parameters of the easement or maybe a general right to pass over or through, known as a floating easement.

The question here arises why is the telecom sector so much agitated and why are so many public and private authorities intrigued to charge for the right of way from the telecom sector?

Looking at it in a broader sense, internet and data communication services are the need of the hour and have now become a necessity just like other utilities. People may forego gas connections or water connections, especially in Karachi and other urban cities but will not compromise on the internet connection and its speed.

Public and private authorities including National Highway, Pakistan Railways, semi-autonomous bodies like Defense Housing Authority, Cantts all across Pakistan, and private housing authorities have understood the dilemma and the requirements of the telecom sector and the consumer and are trying to squeeze maximum income.

The income generated by these Authorities is in form of fees, charges, revenue share, license fees, etc. from the telecom companies however, the sole purpose of these Authorities in generating this income is not the Right of Way charges. 

In addition to the above, these public and private authorities do not provide any service against these charges paid to them including any security of optical fiber cable, or a proper ducting system for laying of these cables, thus they only enjoy these charges and probably some may not be accounted for when and if the proper audit of these charges is conducted. 

Public authorities including railways and highways considering their current statuses of infrastructure lack the vision of giving the end users the benefits/ facilities that they pay against their services like free WiFi or any such hot spots where the users can avail fast internet speed.

All the Authorities have made RoW their prime revenue-generating vehicle considering the Fiber to the Home (“FTTH”) services and now tower fiberization for 5G services. They believe that since the internet is now a necessity and telecom companies ought to provide these services thus, they would be willing to give whatever they demand.

The Authorities in most cases are of the view that the land where fiber is being laid belongs to them therefore, they have the right to charge whatever exorbitant rates they want despite throwing the country into dark ages if all telecom companies boycott laying the fiber in that area thus no internet services would be provided. 

Ministry of Information Technology and Telecommunication 2020 passed a policy directive called the “Public & Private Right of Way Policy Directive” which is as vague as the standard operating procedure of some of these Authorities. Despite rationalizing the rates of the right of way and thinking forward to the next five years or ten years, stakeholders were quite accepting to get things off their shoulders and have a star. Telecom company’s viewpoints were not considered as a whole and the policy was enacted with various loopholes and open-ended clauses which are being interpreted separately by each Authority.

On the one hand, any government in power talks about digitization and technology-based companies to prosper in Pakistan and give a comparison with developed countries however on other hand, the government is not interested at all in resolving these issues which are basically the major costs of telecom companies and are not brought forward on any forums. 

The objective to streamline Right of Way was to have a level playing field for all the telecom companies and have healthy competition in the provisioning of service and adding value to it. However, telecom companies are now in the race to obtain the right of way and those having more capital with them are able to get the Authorities on their side thus getting the advantage over others. 

The regulator, the Ministry related, and those having authority are quietly enjoying the telecom sector being held hostage by these authorities on the right of way. No long-term plan with rationalization is being considered and all are at the helm of each other expecting one or the other to act. 

Despite many telecom companies having approached the respective provincial governments to nominate any senior officer of the law not below the rank of secretary to act on their behalf, many have knocked on the doors of the Courts on an individual basis and have sought relief.

Still, the time is now to get Right of Way sorted out at least for ten or fifteen years removing the uncertainty of the incremental overpriced right of way charges and looking forward to having a uniform rate all across Pakistan and letting the telecom sector grow.  If these issues are not addressed soon the end users/ businesses must be ready to face an increase in per-month rates again due to RoW. 

The question still remains as to who would bell the cat and get stakeholders on board.


Hamza Nizam Kazi is a corporate lawyer having experience of advising companies on various business laws applicable in Pakistan. Apart of his corporate career, Hamza believes in guiding the upcoming startups and entrepreneurs on legal and business challenges faced. He can be reached on [email protected] for advice on legal and government relations.
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