Consultation on Draft Guidelines for Competition …...complaints by the licensees alleging another licensee on anti-competitive behaviours or on breach of its ex-ante obligations

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Consultation on Draft Guidelines for Competition

Complaints

Position Statement

July 2018

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1. INTRODUCTION

1.1 On 12th December 2017, the Telecommunications Regulatory Authority (the “TRA”)

issued the draft Guidelines for Competition Complaints (the “draft Guidelines”) for public

consultation.

1.2 Originally, the TRA set the deadline for provision of comments on the draft Guidelines

as 26th December 2017. However, considering the industry request, the stakeholders

were allowed to provide their comments on the draft Guidelines by 4th January 2018.

1.3 Comments on the draft Guidelines were received from Omantel, Ooredoo, Awasr, TeO

and Renna Mobile.

1.4 This document sets out a summary of the issues raised by stakeholders on the draft

Guidelines and the TRA’s position in relation to the comments received from

stakeholders. This document is divided into two sections; Section A deals with general

comments of stakeholders whereas Section B responds to specific comments of industry

on the draft Guidelines.

A. GENERAL COMMENTS

2. OBJECTIVE FOR ISSUING GUIDELINES

Issues raised by stakeholders

2.1 Ooredoo argued that it does not see a need for an outlined process to raise competition

issues to the TRA as in its views it will increase the difficulty and timeframe for resolving

competition complaints. As per Ooredoo, the procedures for making competition

complaints are simple and straightforward in other countries and also the complaints are

filed with the relevant Competition Authorities. Ooredoo quoted the examples of UK and

Canada where competition complaints are filed with Competition and Markets Authority

(CMA) and Competition Bureau respectively.

TRA position

2.2 Although Ooredoo did not explain as to why in its views the proposed process will

increase the difficulty and timeframe for resolving competition complaints, the TRA

disagrees with Ooredoo’s argument as the main objective behind developing such

guidelines is to make the process for competition complaint filing/handling transparent

for all the parties with given time limits. This will ease the complaint handling process

and reduce the timeframe for resolving the complaints, contrary to what Ooredoo has

presumed.

2.3 With regards to the comment that competition complaints should be filed with the

relevant Competition Authorities, the TRA notes that Article 8 of the Telecommunications

Regulatory Act (the “Act”) empowers the TRA to investigate the complaints filed by the

beneficiaries, licensees or any other person and to take necessary measures in this

regard. Moreover, even in other jurisdictions that have a general competition authority,

the telecom regulators are still mandated to address competition complaints related to

telecom sector. For instance, in UK, the CMA (which took over many of the functions

Competition Commission and Office of Fair Trading in 2014) has general powers relating

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to competition. At the same time, the sector specific regulators (including Ofcom) are

having concurrent powers in relation to sector specific competitions issues1. In fact,

Ofcom, has issued its guidance on submitting a complaint to Ofcom2 which, in principle,

is similar to the TRA’s draft Guidelines although not fully identical.

3. COEXISTENCE WITH OTHER LAW


3.1 Ooredoo wished to understand as to how the draft Guidelines coexist with the law,

regulations, and decisions related to competition that are currently in effect in Oman, and

whether they are in fact required. In particular, Ooredoo referred the below:

Royal Decree No. 67/2017 promulgating Competition Protection and

Monopoly Prevention Law

Royal Decree No. 30/2002 issuing the Telecom Regulatory Act

TRA Decision No. 144/2008 issuing the Executive Regulations of the Telecom

Regulatory Act

TRA Decision No. 70/2013 issuing the Ex Post Regulations and Guidelines

(Anti-Competitive Behaviour)

TRA Decision No. 69/2012 issuing the Ex Ante Regulations (The Regulation

of Dominance)

TRA Decision No. 27/2016 issuing the Retail Tariff Regulation (Price Control)

Market Definition and Dominance Guidelines

TRA position

3.2 The TRA believes that the draft Guidelines will not only coexist with the existing law but

rather it would help in implementing the same. With regards to Royal Decree No. 67/2017

promulgating Competition Protection and Monopoly Prevention Law, the above cited

example of UK can be seen for concurrent powers between sector specific regulator and

general competition authority. The TRA does not intend to provide further views on

Competition Protection and Monopoly Prevention Law since it is beyond the scope of

the subject consultation, the focus of which is on the procedure that should be followed

while submitting competition complaints to the TRA. With regards to all other legal

documents quoted by Ooredoo, the TRA notes that none of these documents contain

any procedure for handling competition complaints and hence no issue of conflict or

overriding would arise.

1 Please see CMA’s ‘Guidance on Concurrent Application of Competition Law to Regulated Industries’

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/288958/CMA10_Guidance_on_concurre

nt_application_of_competition_law_to_regulated_industries.pdf

2 Please see https://www.ofcom.org.uk/__data/assets/pdf_file/0029/37946/guidelines.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/288958/CMA10_Guidance_on_concurrent_application_of_competition_law_to_regulated_industries.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/288958/CMA10_Guidance_on_concurrent_application_of_competition_law_to_regulated_industries.pdf

https://www.ofcom.org.uk/__data/assets/pdf_file/0029/37946/guidelines.pdf

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4. SCOPE OF THE DRAFT GUIDELINES


4.1 Ooredoo was not clear on what kind of complaints the draft Guidelines applies to and on

what principles complaints will be assessed.

TRA position

4.2 The scope of the draft Guidelines are mentioned in Articles 2 and 3 which provide that

complaints by the licensees alleging another licensee on anti-competitive behaviours or

on breach of its ex-ante obligations will be covered under the draft Guidelines. However,

the draft Guidelines do not cover complaints from individual consumers, complaint

relating to spectrum issues and disputes between licensees.

4.3 The areas on which complaints on competition issues can be submitted to the TRA are

provided in Articles 40 and 41 of the Act, Article 26 of the Licenses, Article 79 of the

Executive Regulations, Article 1 of the Ex-Post Regulations as well as in the Guidelines

on Anti-competitive Behaviour. The breach of ex-ante obligations covered in the draft

Guidelines include, without limitations, remedies imposed on a dominant licensee

following a market review and general obligations imposed on licensees. For the

avoidance of doubt, the breach of ex-ante obligations specific towards the complainant

(e.g. refusal to negotiate an access and interconnection agreement or dispute on

implementation of an agreement) will be treated as disputes and shall not be covered

under the scope of the draft Guidelines.

4.4 With regards to the principles as to how the complaints will be assessed, the TRA would

like to clarify that the draft Guidelines propose a set of procedures as to how a complaint

should be filed by a licensee and handled by the TRA. As the nature of each complaint

can be significantly different from others, the TRA does not consider that a common set

of principles can be prescribed in advance by the TRA. However, Ooredoo may refer to

the Guidelines on Anti-competitive Behaviour which provides as to what factors the TRA

will consider while addressing a complaint relating to anti-competitive practices.

5. COMPETITION COMPLAINTS VS DISPUTES


5.1 Ooredoo considered that competition complaints are not disputes between parties; they

are disputes raised to the TRA to investigate regarding a breach of law and not a breach

of obligation towards such disputing party. Ooredoo believed that the TRA is incorrect in

dealing with competition complaints as a dispute between parties and utilizing a process

that involves the parties responding to each other’s complaints and this is also not in line

with competition complaints processes around the world.

5.2 Omantel strongly believed that the TRA should allow the operators to start the complaint

resolution through ‘dispute resolution process’ as there are strong chances that

operators would resolve the issues/complaints even before referring to the TRA. As per

Omantel, there is no additional requirement for the subject process as it will complicate

things and it will lead to operators and the TRA engaged for tiny matters. Omantel argued

that it is against the principles of market-economics and regulatory best practice based

on competition-friendliness and forbearance approach.

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5.3 Omantel submitted that initiating an entirely new dispute resolution framework and an

additional legal process for competition complaints shall cause chaos and regulatory

burden upon the competing licensees in the market which shall make business

cumbersome for genuine customer-friendly competitors. In Omantel’s views, it shall also

cause uncertainty and confusion affecting investments in the sector.

5.4 Omantel also quoted few references from the Act, Executive Regulation, Ex-Post

Regulation and Dispute Resolution Procedure and submitted that the TRA is already

empowered to process anti-competition complaints after maximum allowance is given to

resolve the issues at operator level. In its views, the complaints and disputes may or

may not be different with each other in nature but it hardly seems justified to add a new

and separate framework for competition complaints apart from the existing regulatory

framework. Omantel was of the view that subject consultation is not required as the

Dispute Resolution Procedure is adequately allowing the operators to follow a process

for resolution of disputes and then raise dispute/complaint to TRA for its resolution, if the

first stage (as provided in Article 15 of Dispute Resolution Procedure) was not

successful.

5.5 As per Omantel, new A&I regulation issued in April 2016 defines the dispute resolution

process in detail and it believed that adding another complaint handling process might

be an overkill for retail market and competition and will increase the work load on

operators and the Regulator as well.

TRA position

5.6 The TRA agrees that competition complaints are not disputes between licensees and for

this very reason, the TRA proposed to have a separate process for handling competition

complaints. The disputes between licensees shall be addressed through Access and

Interconnection Regulation and Dispute Resolution Procedure.

5.7 With regards to Ooredoo’s comments that requiring parties to comment on each other’s

submission is not in line with competition complaints processes around the world, the

TRA notes that it is not uncommon for regulators to involve the licensee against which

the complaint is received. In this regard, Ooredoo may refer to the frameworks of Bahrain

and Qatar. In TRA’s views, involving the other licensee will also enhance transparency

of the process and would provide a fair opportunity of hearing to the Respondent where

the circumstances so require.

5.8 While the TRA acknowledges that operators should be encouraged to first try to resolve

disputes between themselves before referring to the TRA, however, for competition

complaints there are strong chances that affected licensee would not get the desired

relief from the other licensee involved in anti-competition act and such a requirement

would only aggravate the harm. The TRA does not understand as to how the complaint

handling procedures, as provided in the draft Guidelines, will complicate things as

perceived by Omantel. The TRA does not agree with Omantel’s argument that it is

against the principles of market-economics and regulatory best practice, as it is common

for regulators (irrespective of level of competition and regulatory approach) to have

standard procedures to deal with competition complaints.

5.9 With regards to Omantel’s claim that an additional legal process for competition

complaints shall cause chaos and regulatory burden upon the competing licensees, the

TRA notes that no supporting evidences or explanation has been provided by Omantel

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for such claim. The TRA would also like to clarify that the draft Guidelines do not aim to

create an additional legal process, as wrongly perceived by Omantel, but to streamline

the existing process of complaint handling. The views of Omantel, that it shall cause

uncertainty and confusion, are also not valid as the Guidelines on the contrary will

provide more certainty to all licensees as to how the competition complaints will be

handled.

5.10 As provided in the ‘Background’ section of the said consultation, currently the disputes

between licensees are being dealt with in accordance with the Dispute Resolution

Procedure. However, keeping in view the different nature of complaints and disputes,

the TRA prefers to have a separate set of procedures to resolve each. This is in line with

the international best practices.

5.11 With regards to the A&I Regulation, the dispute resolution process provided therein

relates to the disputes arising from an access and interconnection agreement between

the parties. Whereas for complaints, there may not be an agreement between the

parties. Thus, the draft Guidelines is not an addition to the process, as wrongly assumed

by Omantel, but will be acting as a purpose-fit framework for resolution of competition

complaints.

6. CONIDENTIALITY


6.1 Ooredoo argued that the lack of confidentiality in the complaints process under the

proposed Guidelines is extremely worrying for licensees and related parties as in

Ooredoo’s views complaints procedures globally are handled confidentially for many

reasons.

TRA position

6.2 The draft Guidelines allow a party to provide any material to the TRA as confidential

during the course of investigation. The TRA will review the confidentiality claim and

decide accordingly. For the avoidance of doubt, the TRA will share the non-confidential

version of the complaint or any part, which TRA deems important to be shared with the

Respondent. As far as the final decision of TRA is concerned, the TRA, for each case,

shall decide whether to only share this with parties concerned or to publish the same for

the general public (Ref: Articles 34 and 35 of the draft Guidelines). This practice is in line

with the approach being practiced by many regulators. In fact, the guidelines issued by

CITC (the telecom regulator in KSA) treats complaints as part of public record and

require its publication on CITC’s website. The TRA, therefore, does not consider that

comments of Ooredoo are valid.

7. EFFECTIVENESS


7.1 Ooredoo viewed the draft Guidelines as ineffective because, in its views, they do not place any obligation on TRA in investigating or resolving competition complaints. Ooredoo finds the Guidelines lacking in principles of competition analysis, strict timelines on the TRA, clarity on available remedies, and any reassurances that competition complaints will be handled promptly, efficiently and in a confidential manner.

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7.2 Omantel submitted that the imposition of the proposed Guidelines may open another door for inefficient licensees to drag other licensees operating in the market into wasteful and additional processes of complaints, responses, counter-responses, disputes and stream of additional activities causing new costs to business.

7.3 TeO suggested that timeframe for TRA response to competition complaints should be shortened from 5-6 months as per the draft Guidelines. TeO was of the view that extended process will benefit the Respondent, as the Complainant will suffer economic losses with each day of delay.

TRA position

7.4 The TRA does not understand as to what kind of obligations Ooredoo is suggesting. The

fact of the matter is that the TRA, under the Act, is responsible to investigate the

complaints. With the spirit of honouring this obligation in an efficient manner, the TRA

has proposed these procedures for addressing a complaint. With regards to time lines,

the draft Guidelines provide a general time limit of 90 working days in which the TRA

shall issue its decision. However, the TRA will use its best endeavours to conclude the

process as expeditiously as possible. Having said that, there can be exceptional cases

which require more time for due investigations.

7.5 The TRA is of the view that concerns mentioned by Omantel are addressed in the draft

Guidelines as Article 7 puts certain requirements for complainant for admission of his

complaint for investigation by the TRA. This will ensure that only genuine complaints are

forwarded to the respondent to save its time and resources.

7.6 With regards to TeO’s suggestion, the TRA agrees that timely resolution of complaints

is critical for the complainants and at the same time due investigation also requires in

depth analysis of all facts and evidences. The TRA notes that Ofcom has a target

deadline of 6 months where no grounds for action decision is made and 12 months for

an infringement decision. The guidelines issued by MCA of Malta also provide for 6

months time period. CITC has put a timeline of 45 days (extendable) from the date of

submission of last material which CITC requires for investigation. CRA Qatar aims to

issue its decision within 60 calendar days of receiving a complaint with a possibility of

further extension of 60 calendar days (i.e. maximum 120 calendar days). Considering

the quoted benchmarks, the timeline proposed by TRA is reasonable and practicable.

8. EX-ANTE VS EX-POST REGULATION


8.1 Omantel submitted that TRA Oman is regulating the telecom sector based on ex-ante regulations in major competition related areas such as access and interconnection, accounting separation and tariffs. In its views, the subject competition complaints mechanism is more common in ex-post regulatory regimes where competition related matters are not micro-managed. Omantel also made reference to Ofcom which has published the Guidelines setting the procedures Ofcom will normally follow in Competition Act investigations.

8.2 Awasr submitted that some complaints by a licensee against another can relate to both ex post or ex ante anti-competitive aspects as well as other regulatory aspects. Awasr considers that it should be possible for licensees to submit complaints concerning anti-

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competitive behaviour as well as breach of other regulatory aspects in one procedure, without having to divide-up the complaints into different procedures.

TRA position

8.3 While the TRA agrees that the draft Guidelines aim to address competition complaints

on ex-post basis, however, it is not correct to assume that ex-ante and ex-post

regulations are mutually exclusive. In this regard, reference is invited towards

‘Guidelines on Anti-competitive Behaviour’ which clarifies that both ex-ante and ex-post

regulations may run concurrently.

8.4 With regards to Awasr’s proposal, the TRA would like to clarify that ex-post competition

complaints and complaints on breach of ex-ante obligations can be combined in one

application if they relate to the same issue having common details as required in the

application format. If this is not the case, then the licensees are advised to submit

separate complaints. For avoidance of doubt, the licensees are required to submit

separate applications for complaints and disputes owing to distinct procedures for each.

9. CONSUMER COMPLAINTS VS COMPETITION COMPLAINTS


9.1 Omantel argued that in case of consumer complaints, it is mandatory for a consumer to

file the complaint, at the first instance, with the concerned licensee before raising to TRA,

similarly, the operators’ complaints or concerns should first be resolved at the operator’s

level before referring them to TRA.

TRA position

9.2 The TRA notes that Omantel has not provided any supporting reference where

competition complaints are required to be first resolved at operators’ level. In TRA’s

view, it is not reasonable to compare consumer complaints with competition complaints.

While it is common practice for consumer complaints to be first lodged with concerned

licensees and in case it is not addressed then regulatory intervention can be sought.

However, competition complaints are normally filed with the concerned regulatory or

competition body without first raising it to the concerned licensee.

10. OTHERS


10.1 Referring to Article 2 of Ex-Post Regulations, Omantel expects that TRA will consider

the provision while deciding on any anti-competitive concern/complaint filed by the

licensee.

10.2 TeO requested clarity as to whether TRA’s decision can be challenged in the courts.

10.3 TeO also proposed that the Guidelines should clearly specify the principles as to how

the financial damages will be calculated so that complainant can compare the likely

benefits with cost of preparing the competition complaints.

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TRA position

10.4 The TRA may provide such exemptions only if the conditions provided in point (a) and

(b) of the same Article of Ex-post Regulation are fulfilled.

10.5 As per current legal framework, the TRA’s decisions can be challenged in the relevant

court of law.

10.6 With regards to the issue of financial damages, the TRA would like to clarify that the draft

Guidelines do not contain any provision for financial damages or compensation. The

financial penalties, as provided in Article 37, refer to amounts the Respondent has to

pay to the TRA (not the complainant) for the violation. For financial damages and

compensation, the complainant can seek the available remedy through court of law, as

this is out of the jurisdiction of the TRA.

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B. COMMENTS SPECIFIC TO THE DRAFT GUIDELINES

SCOPE AND APPLICATIONS

11. ARTICLE 2


11.1 Awasr argued that one possible reading of the Guidelines is that any allegation that

another licensee’s behaviour is anti-competitive in nature or in breach of its ex ante

obligations can only be considered as part of a complaint by one licensee against

another pursuant to these Guidelines, and not part of a dispute between licensees that

is subject to the separate procedure for such disputes before the TRA. Awasr proposed

that it should be clearly stated in the Guidelines, by a new point after Article 3, that

“Nothing shall prevent a licensee from alleging that another licensee’s behaviour is anti-

competitive in nature or in breach of that licensee’s ex ante obligations as part of a

dispute between those licensees”.

TRA position

11.2 The TRA acknowledges that ‘anti-competitive behaviour’ is a broad term and can also

relate to disputes e.g. if one party delays the provision of wholesale services to the

complainant or unduly increases the wholesale prices with the intention to drive the

complainant out of the retail market. Considering this, the affected party in its application

for dispute can allege the other party of anti-competitive practices in relation to an

agreement. However, the resolution of such disputes will be carried out under the

provision of A&I Regulation and Dispute Resolution Procedure and not under the subject

Guidelines. Since the proposed Article from Awasr relates to the disputes, the TRA does

not consider it appropriate to incorporate the same in the Guidelines. Section 12 below

further clarifies the difference between competition complaints and disputes.

12. ARTICLE 3


12.1 Ooredoo submitted that “disputes between licensees” is a broad term and should be

defined further. For Ooredoo, it is not clear whether a dispute between licensees

regarding an issue related to anti-competitiveness or a party’s ex ante obligations would

be handled under the Dispute Resolution Process or under these Guidelines. Ooredoo

was of the view that all disputes between licensees should be resolved under the Dispute

Resolution Process as complaints should not be considered disputes between licensees,

however the Guidelines suggest otherwise since it treats the complaint in a similar

manner as a dispute.

TRA position

12.2 Since it is important to understand the difference between complaints and disputes, the

TRA considers it appropriate to elaborate the issue for the benefit of licensees. A dispute

relates to specific obligation of an alleged party towards the alleging party whereas a

complaint relates to general obligations of the alleged party. The focus of a dispute is

resolution of a specific issue between the two operators whereas the focus of a complaint

is to ensure compliance with an operator’s general obligations. The matters on which

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complaint applications can be submitted, under the draft Guidelines include, without

limitation, the following:

A licensee alleges that retail tariffs of another licensee are predatory.

A licensee alleges that retail tariffs of another licensee is resulting in margin

squeeze.

A licensee alleges that a dominant licensee has launched a tariff without TRA

approval.

A licensee alleges another licensee on launching misleading advertisements.

12.3 The matters on which dispute applications can be submitted under the Dispute

Resolution Procedures include, without limitation, the following:

The alleged party is not negotiating or reviewing an access and interconnection

agreement with the alleging party.

The alleged party is not implementing an access and interconnection agreement

with the alleging party.

12.4 The TRA does not agree with Ooredoo that the Guidelines treat complaints in similar

manner as disputes. Rather, the aim of the Guidelines is to devise a separate set of

procedures for handling competition complaints owing to their different nature as

compared with disputes.

FILING OF A COMPLAINT

13. ARTICLE 7


13.1 Commenting on points (i) and (ii) of Article 7, Awasr considered that it may be difficult in

some cases for licensees to identify the exact characterisation of the type of infringement

involved (particularly in relation to a breach of the ex post competition obligations), and

it may be difficult to correctly identify the precise relevant market involved. Awasr

considered that complaints should not be rejected if they fail to precisely and correctly

characterise the form of the competition violation alleged or the relevant market, so long

as the rough nature of the allegation is clear and the relevant market definition is roughly

identified (even though it may not be the correct definition according to the TRA).

13.2 On points (iii) and (iv) of Article 7, Awasr argued that it may be difficult for a licensee

making a complaint to obtain proof of elements which may be solely within the knowledge

of the other licensee complained of, such as, for example, its costs, and it may be difficult

to show direct evidence of the ultimate effect on the licensee making the complaint in

future of the relevant behaviour complained of (will it be forced out of the market). Awasr

also noted that section 4 of Annex I (i.e. Application Format) suggests that alternatives

to producing evidence of the costs of the other licensee can be submitted such as own

costs, it nevertheless considers that a general statement should be included in the

Guidelines to the effect that a complaint will not be deemed to be inadmissible by virtue

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of the fact that evidence is not produced, where that evidence is inherently unavailable

to the complainant, either because it is not disclosed to the complainant by the licensee

complained of, or because it relates to future events for which there can be no direct

evidence.

13.3 Ooredoo, while commenting on point (iv) of Article 7, proposed that the requirement

should be subject to availability of such evidence, as TRA should investigate competition

complaints even where the evidence is not available to the complainant. In Ooredoo’s

views, the TRA is usually in a better position to investigate and procure such evidence.

It suggested to reword the provision as “submit any available factual evidence to support

its allegations”. Ooredoo indicated that this has been done in UAE and Qatar procedures.

13.4 Commenting on point (v) of Article 7, Ooredoo opposed this requirement as licensees

are not well-placed nor authorized to specify which remedies are legally correct and

appropriate. In its views, suggestions of remedies may be made, however they should

not be required and the TRA as regulator should assess which remedies are appropriate

for the violation.

TRA position

13.5 With regards to Awasr’s comments on points (i), (ii) and (iii) of Article 7, the TRA

recognizes that investigating a complaint can potentially utilize significant resources from

both the TRA as well as the Respondent. For this purpose, it is important to only admit

those complaints which are genuine and supported with full facts and details. Having

said that, the TRA acknowledges that licensees who are small in scale and new in the

market may not have enough expertise to fulfil these requirements. In such

circumstances, the TRA (similar to the practice being adopted by other regulators) offers

to provide guidance to such licensees and may waive few submission requirements on

a case-to-case basis.

13.6 The TRA agrees with Awasr and Ooredoo that requirement (iv) should be subject to

availability of evidence to the complainant. The TRA will, therefore, require that all

available factual evidences to be submitted with the application. The TRA, however, will

decide on case-to-case basis whether such evidences can in fact be provided by the

complainant or not. This is to encourage the filing of only genuine complaints from the

complainants.

13.7 The TRA does not agree with Ooredoo’s comments on point (v) of Article 7, as it is

common for the complainant to state in its application the relief it is actually seeking e.g.

CRA Qatar and Ofcom have such requirement. Perhaps, Ooredoo might have confused

the term ‘remedies’ with the TRA’s ex-ante list of remedies. The TRA will therefore

amend this point in the Guidelines accordingly for clarity.

REVIEW OF COMPLAINT

14. ARTICLE 8


14.1 Ooredoo, while commenting on point (ii) of Article 8, submitted that 10 working days is

too long to simply confirm the Complaint is in compliance with the requirements. This

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prolonged timeline will only delay remedial measures and thus increase any negative

impact on other players in the market and consumers.

TRA position

14.2 The TRA does not agree with Ooredoo that 10 working days is too long period to confirm

that the complaint is meeting the prescribed requirements. For clarity, 10 working days

is a maximum time limit and does not restrict the TRA in admitting the complaint within

a shorter timeline. The TRA also notes that Ofcom is taking 15 working days for the same

task.

15. ARTICLE 9


15.1 Awasr considered that it is ambiguous as to whether the obligation to “notify the

Complainant accordingly” only refers to the matters mentioned in Article 9. Awasr

suggested that it should be made clearer that the obligation to notify refers to all

applications mentioned under Articles 8 (i) and 8 (ii) and that the obligation is to notify

within the periods specified, i.e. 10 working days.

15.2 Ooredoo proposed that the TRA should provide the option to either not investigate or to

request further information from Complainant to bring the Complaint into compliance so

as to avoid the scenario where a Complaint has been filed but TRA determines a minor

element is missing.

TRA position

15.3 For avoidance of doubt, the obligation to notify the Complainant is applicable for all cases

mentioned in Article 8. Awasr may note that Article 8 (i) has specific reference to such

obligation whereas the reference of this obligation in Article 9 applies to case mentioned

in Article 8 (ii). Similarly, 10 working days is also applicable for all cases. The TRA will

amend the text in the Guidelines to provide more clarity.

15.4 The TRA agrees with Ooredoo’s proposal and will add such option in Article 8.

INVESTIGATION

16. ARTICLE 10


16.1 Renna believed that the total period of 20 working days (including 10 working days for

admission of complaint) before any formal investigation is even initiated may be sufficient

time for lasting damages to non-dominant players. As such, Renna suggested that the

timeframe for initiating an informal contact be reduced as much as possible.

16.2 Omantel proposed that the Complainant should be notified if informal communication

took place and issue was closed informally.

16.3 Ooredoo questioned as to how does the TRA conclude that there is indeed an issue to

resolve without initiating an investigation. Ooredoo suggested that in order to preserve

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the interests of the Respondent and to avoid unnecessary measures that inhibit free

competition, the TRA must determine the issue raised is anti-competitive and this can

only be done through investigation (of whatever kind). Ooredoo submitted that to say

that the TRA will not initiate an investigation but request the issue to be resolved within

10 days denotes that the TRA will require an issue to be resolved simply because a

Complaint has been raised. Ooredoo demanded that an investigation must be done prior

to requiring any party to resolve any alleged issue.

16.4 Awasr suggested that the TRA should further explain in the Guidelines when the informal

resolution procedure is applicable, and the conditions of its use must be:

(i) That a formal settlement is signed between the TRA and the relevant party. (ii) That the Complainant is informed of the terms of the settlement and agrees with

those terms. (iii) That proceedings automatically start again on the request of any complainant if

the party with whom such a settlement is made fails to implement its obligations under the settlement in a full and timely manner.

TRA position

16.5 The TRA would like to clarify that 20 working days period before a formal investigation

is initiated will not be applicable in all cases as the TRA may decide to initiate formal

investigation without the requirement of first resolving the issue informally. In such cases,

the TRA will initiate formal investigation soon after admitting the complaint within 10

working days. The TRA also notes that CRA Qatar aims to resolve an issue informally

within 15 days period. As such, the TRA does not consider that 10 working days is a

longer period.

16.6 Regarding Omantel’s proposal to notify the Complainant in informal investigation, the

TRA does not consider it necessary to notify the Complainant. However, the TRA may

informally approach the Complainant to verify whether the issue has been addressed

before initiating the formal investigation.

16.7 With regards to Ooredoo and Awasr’s query, the decision to initiate formal investigation

or to contact the Respondent informally will largely depend on the nature of complaints.

If the Respondent is willing to address the complaint without formal investigation from

the TRA, then this would save time and resources of all the parties. The TRA, therefore,

does not consider that formal investigation should be initiated in all cases. As indicated

above, the TRA may informally approach the Complainant to verify whether the issue

has been addressed before initiating the formal investigation.

17. ARTICLE 11


17.1 Omantel proposed that the TRA should define timeframe for rejoinder to be submitted

by respondent.

17.2 While Renna acknowledged that the timeframe for any investigation will differ on a case

to case basis, it suggested to include specific timelines (e.g. 3 working days for the

Respondent or Complainant to respond to queries from the TRA) for each party to

14

respond / take action unless the TRA, at its discretion, extends the deadline based on

the specific nature of the complaint itself.

17.3 Ooredoo believed that the original complaint should not be shared with the Respondent.

This lack of confidentiality, as per Ooredoo, will inhibit parties from raising complaints as

well as restrict the contents of their complaints. In Ooredoo’s views that if complaints are

shared with other parties, licensees will be careful not to raise complaints for fear of

retaliation from and negative effects on their relationships with other licensees. To

Ooredoo, the competition complaints process is akin to the whistle-blower policy found

in corporations and public authorities; since whistleblowing is viewed as a positive act

and protects the public interest, the whistle-blower is always treated in a confidential

manner and this confidentiality encourages a culture where licensees are able to raise

concerns and challenge anti-competitive behaviour for the ultimate interest of

consumers.

TRA position

17.4 The TRA agrees with Omantel and Renna’s suggestion and will provide 7 working days

for submission of Rejoinder unless other timeline is specified by the TRA.

17.5 The TRA does not agree with Ooredoo that competition complaint process is akin to

whistle-blower policy. However, the confidentiality concerns of Ooredoo are already

addressed as the Guidelines allows the Complainant to provide confidential and non-

confidential versions of the complaint to the TRA where only the non-confidential version

of the complaint will be shared with the Respondent. The TRA acknowledges that there

are circumstances in which a lack of anonymity may substantially affect an applicant’s

current or future ability to negotiate with a dominant licensee, at the same time anonymity

may also hinder full explanation of the problem to the Respondent. In light of this, the

TRA will modify the Guidelines to allow keeping the identity of the Complainant

confidential, at its request, where the TRA considers it appropriate to do so.

18. ARTICLE 12


18.1 Ooredoo viewed that this step in the process is completely unnecessary and the TRA

should obtain written statements from both Complainant and Respondent and

subsequently conduct its independent investigations and analyses to determine the

matter.

18.2 Omantel suggested that the Rejoinder should be passed to complainant as well and the

timeframe should also be specified.

TRA position

18.3 Considering Ooredoo’s comments, the TRA feels that after receiving written statements

from both Complainant and Respondent it should be in a position to conduct its own

investigation. In case any additional information is required, the TRA can seek this under

Article 14 anyway. The TRA will, therefore, remove contents of Article 12 from the

Guidelines.

15

18.4 Based on the above change, the TRA considers that the proposal of Omantel will be no

more valid.

19. ARTICLE 13


19.1 Ooredoo argued that this step in the process is completely unnecessary and the TRA

should obtain written statements from both Complainant and Respondent and

subsequently conduct its independent investigations and analyses to determine the

matter. Ooredoo stated that the TRA providing a date in this Article leaves the timeline

for resolving the complaint open and this is not an improvement on the status quo.

TRA position

19.2 Similar to Article 12, the TRA will also remove contents of Article 13 from the Guidelines.

20. ARTICLE 14


20.1 Awasr considered that if either party requests an oral hearing, then this should be

granted where reasonable in order to allow the hearing of witnesses and practical

demonstration of relevant aspects complained of.

TRA position

20.2 The TRA agrees with Awasr’s proposal and will incorporate this in the Guidelines

accordingly.

21. ARTICLE 16


21.1 Omantel suggested that TRA action needs to be defined clearly and there should not be

uncertainty on the action taken by TRA to investigate the complaint.

TRA position

21.2 The intent of the Article is to allow the TRA to carry out the investigation without any

limitations. As the nature of complaints vary, it is not feasible to list all TRA actions in

advance.

22. ARTICLE 17


22.1 Ooredoo suggested that the TRA should not require any complainant to submit issues

not covered in the original complaint. Ooredoo proposed that if competition issues arise

that are outside the scope of the investigation, TRA should go ahead and investigate the

same as part of its role of as a regulator and should not require the issue to be raised by

a licensee in order to have the discretion to investigate. Ooredoo was of the view that it

16

is against ethical practice to force a licensee to submit an issue or part of a complaint at

the request of the TRA where that licensee did not raise such issue at its own discretion.

TRA position

22.2 There seems to be a misunderstanding on the part of Ooredoo, as the said Article does

not allow a complainant to expand the issues beyond the contents of the original

complaint. However, where the TRA investigation indicates further anti-competitive

behaviour or breach of ex-ante obligations, the TRA will address the same to meet its

obligation under the Act and shall not be unduly bound by the scope of the original

complaint. The aim is to address any possible anti-competitive practice in the pursuit of

public interest without bureaucratic approach.

23. ARTICLE 18


23.1 In Omantel’s opinion, once the complainant no longer wishes to pursue the complaint

because of settlement of issue/complaint between the operators, then TRA should not

continue the investigation. According to Omantel, this point will hamper the process of

mutual understanding between the operators and will create an atmosphere where the

operators will never have any commercial in the market. In Omantel’s views, TRA should

consider establishing a process of withdrawn complaints & shall not pursue with any

withdrawn complaint. As it is not practical and goes against the principles of commercial

negotiations and settlements.

23.2 Ooredoo was of the view that if the Complainant no longer wishes to pursue the

Complaint, then TRA should not share the Complaint with any parties following such

date. Ooredoo suggested that the TRA may continue to investigate the complaint

however this should be without reference to the original complaint submitted and without

reference to the Complainant in order to protect the complainant from negative reactions

and to encourage complaints in the public interest.

TRA position

23.3 The comment of Omantel may be valid in case of dispute where the complainant is the

only aggrieved party, however, in case of complaint other licensees or consumers may

also be affected. In such cases, the TRA reserves the right to continue with the

investigation even if the complainant is no more interested to pursue its complaint.

23.4 The TRA notes the comments of Ooredoo and will decide whether or not to disclose

identity of the complainant on case-to-case basis.

24. ARTICLE 20


24.1 Omantel argued that there is a defined process to determine the market dominance and

that process is well defined and requires a detailed study instead of only gathering

evidence through a complaint process and therefore this clause is suggested to be

removed from the framework.

17

24.2 In Ooredoo’s view this is a separate issue that should not be dealt with under the

Competition Complaints Guidelines. As per Ooredoo, reference to it here cannot stand

alone without further clarification. This, in Ooredoo’s opinion, is and should be covered

in the Dominance Guidelines.

TRA position

24.3 Omantel and Ooredoo seem to confuse ex-ante market review with ex-post market

review, which can be initiated as a result of investigation on a complaint. The TRA would

like to refer ‘Guidelines on Anti-competitive Behaviour’, which further explain the issue

in Sections 3 and 5. In particular, it states that market definitions in an ex-post review

can subtly differ from those established in an ex-ante review as ex-post review tends to

focus on specific services and is defined by the scope of the complaint received or the

anti-competitive behaviour alleged. It also provides that the TRA will generally follow the

same approach, as described in Market Definition and Dominance Report, when defining

markets and determining dominance for ex-post purposes but its enquiry will be into the

market that is relevant to the actual complaint. The TRA also notes that such an

approach is also followed by TRA UAE.

25. ARTICLE 21


25.1 Ooredoo was not clear what is meant by “further directions on procedures”.

TRA position

25.2 This means that the TRA may change the procedures if it feels the need during the

course of an investigation. It may be noted that the aim of setting out the procedures is

to provide guidance to the industry, however, at the same time it should not unduly

restrict the TRA in discharging its obligations under the law.

CONFIDENTIALITY

26. ARTICLE 22


26.1 In Ooredoo’s view, the lack of confidentiality will mean licensees will be reluctant to come

forward with complaints and this will be to the detriment of the consumers and the

market.

TRA position

26.2 The TRA does not consider the comments of Ooredoo as valid since this Article allows

the complainant to designate any material as confidential.

18

27. ARTICLE 23


27.1 Ooredoo argued that if a party has claimed confidentiality over any material submitted

by it, it should not have to justify why it is confidential as this goes against the principle

of sharing confidential information. In its views, when any entity signs an NDA to share

information it deems confidential, the receiving party should not have the right to state

that it is not confidential unless the disclosing party can justify the same. As per Ooredoo,

the same is true with all information it shares with the TRA at the moment i.e. it does not

have to justify why it is confidential, so it is not clear how a sensitive topic such as anti-

competition complaints would be dealt with at a lower standard. Ooredoo indicated that

this clause essentially means that the complaints process is not confidential in any

manner because even if a party submits a non-confidential version and a confidential

version, the TRA could share the confidential version on the basis that the licensee has

not justified to TRA’s standards why it is confidential. From the viewpoint of a licensee,

it will not be in the interest of corporation or shareholders to issue any complaints under

these Guidelines where such clause exists.

TRA position

27.2 Considering Ooredoo’s comments, the TRA will remove the requirement of providing

justifications for confidentiality claim. At the same time, the TRA is cognizant that this

may result in a significant portion of complaint or response to a complaint to be treated

as “confidential” and in result may not be shared with the other party for its views, which

will limit its ability to provide a response thereon. To address this issue, the TRA will

amend the Guidelines so that in case the TRA is not satisfied with a confidentiality claim,

it would provide opportunity to the Complainant (or the Respondent) to either withdraw

its confidentiality claim or to withdraw such material from its Complaint (or the

Response).

28. ARTICLE 24


28.1 Omantel suggested that complainant shall be notified when TRA sees that information

is not deemed confidential and it should be based on relative party mutual agreement

confirmed officially (in written).

28.2 Ooredoo repeated its comments provided on Article 23.

TRA position

28.3 As indicated above, the TRA will amend the Guidelines so that in case the TRA is not

satisfied with a confidentiality claim, it would provide opportunity to the

Complainant/Respondent to either withdraw its confidentiality claim or to withdraw such

material from its Complaint/Response.

19

29. ARTICLE 26


29.1 Omantel requested that “a party” should be defined as it can be anyone including the

competitor.

29.2 Ooredoo argued that the fact that the TRA may, at its discretion, share confidential

information is an issue that will prevent any licensee from sharing any information it

deems confidential. In essence, this disregard of confidentiality obligations restricts the

usage of the complaints procedure outline in these Guidelines.

TRA position

29.3 The term “a party” refers to any party with which the TRA will share the confidential

information for the purpose of investigation. For example, it can be an independent party

for the purpose of verifying any figure or data provided by the complainant.

NO FURTHER ACTION

30. ARTICLE 27


30.1 Ooredoo believed that the word “unlikely” should be deleted as the TRA should not close

the matter until it has confirmed that the behaviour does not warrant further action.

Further, this clause does not outline on what principles the TRA will deem the behaviour

unlikely to be anti-competitive or in breach of ex-ante obligations.

30.2 Awasr proposed that where the TRA decides that it will take no further action, there must

be an obligation to do so at least within the 90 day period mentioned in Article 31, and

that the Complainant and other licensees who have participated in the investigation

should be informed in writing within that period of the full reasoning pursuant to which

the TRA has decided not to take further action.

TRA position

30.3 The TRA will delete the words as proposed by Ooredoo. With regards to principles on

the basis of which the TRA will deem the behaviour is not anti-competitive, Ooredoo may

refer to TRA “Guidelines on Anti-competitive Behaviour”.

30.4 As proposed by Awasr, the TRA will notify such outcome to all concerned parties within

the same period of issuing the decision.

INTERIM DECISION

31. ARTICLE 28


31.1 Omantel claimed that interim decision is not practiced anywhere in any of the quasi-

judicial authority level as the respondent or the complainant should always have the right

20

to appeal the decision of the TRA, to its CE or to the TRA Board or to the higher courts

and interim decision will not allow the grieving party to use the allowed jurisdiction for

appeal until the full decision is out and acting on the interim decision may hamper the

grieving party without going through the full decision as only then the grieving party can

take its decision to accept or appeal the decision of the TRA. In Omantel’s views, the

only thing that is allowed by law is the status quo which is maintaining the existing state

of affairs, other than that there is no interim decision is practiced in law. Omantel argued

that interim decisions may not be convenient as they might come before proper

investigation and may affect the respondent adversely. In its view, this clause contradicts

with the purpose of this process as to have a clear defined process to avoid allegation

with no basis. Omantel proposed that instead, the TRA may consider shortening the time

taken to come up with “the Decision” to less than 90 working days in case the matter is

urgent.

31.2 Ooredoo requested clarity on what an interim decision would include.

31.3 Renna proposed that TRA should include the option to issue an interim decision at the

start or at any point of time during the course of the investigation. Further, it requested

that the TRA mandatorily issue an interim decision to freeze the alleged anti-competitive

activity till its investigation is completed so that no further harm is caused to the affected

parties while the investigation is ongoing.

TRA position

31.4 The claim of Omantel that interim decision is not practiced anywhere in any of the quasi-

judicial authority level is incorrect. On the contrary, this has been practiced by many

regulatory authorities including, without limitations, CRA Qatar, Ofcom and CITC.

31.5 Regarding Ooredoo’s query as to what an interim decision would include, this will

depend on each complaint.

31.6 With regards to Renna’s proposals, the TRA considers that these have already been

incorporated in the Guidelines.

DECISION

32. ARTICLE 31


32.1 Ooredoo strongly believed that ninety (90) working days which amounts to 4-5 months

is unacceptably long to issue a decision. As per Ooredoo, the markets, consumer, and

other players will be seriously affected or damaged by such time. In its view, this

prolonged period is not an improvement on the status quo.

32.2 As per Renna, an extended investigation can provide the Respondent with an

opportunity to continue with anti-competitive behaviour while the Complainant suffers

economic losses on a daily basis till a decision is issued. For non-dominant licensees,

this extended period can cause permanent damage to their brand and financials. Renna

requested the TRA to seek to review the timeline for issuing a decision to the earliest

date possible unless the circumstances and complexity of the case requires otherwise.

21

32.3 Awasr considered that there should be an ultimate time limit within which the TRA must

issue a Decision, and that maximum should be 150 working days.

TRA position

32.4 On the issue of 90 working days timeline, please see the TRA’s position provided in

section 7 above.

33. ARTICLE 32


33.1 Ooredoo argued that this should not be a remedy under the Guidelines as such decision

should be made in accordance with Market Dominance procedures and believed that

this sub-clause should be removed. In its views, TRA is always able to use evidence

found during the complaints process in future dominance reviews, but such evidence

cannot be the sole factor in issuing a dominant designation. The fact that the Guidelines

herein do not provide any principles for investigation or guidelines for determining

dominance means any such designation may be unsupported and against dominance

regulations and best practice. This, in Ooredoo’s views, is and should be covered in the

Dominance Guidelines.

TRA position

33.2 Please see TRA’s position on this issue as provided in section 24 above.

34. ARTICLE 34


34.1 Awasr suggested that there should be a procedure whereby licensees can review a

decision and make submissions as to which parts should be redacted for confidentiality

in any published version, such as exists under EU competition law.

TRA position

34.2 The TRA notes the proposal, however, this can potentially delay the issuance of

decision. Moreover, the TRA, if considers appropriate, may take the views of parties on

the issue where circumstances so require. There is nothing in the Guidelines which

prohibit following such an approach, if the circumstances so require.

35. ARTICLE 35


35.1 Ooredoo again raised the issue of non-confidentiality under the Guidelines and argued

that it is against usual practice by regulators.

35.2 Awasr considered that an important part of a competition regime is the deterrent effect

of publication and also considered that it is important that decisions are published in

order to inform market participants and customers of the way in which competition rules

are applied by the TRA.

22

TRA position

35.3 Please see the TRA position on the issue of confidentiality, as provided in other sections.

The TRA notes the comments of Awasr and considers that the issue has already been

addressed in the Guidelines. As such, there is no change required in this Article.

WAIVER

36. ARTICLE 36


36.1 Awasr was concerned that in some cases, the threat to competition may be significant

and urgent, and the TRA should be able to modify the procedure in these circumstances.

TRA position

36.2 The TRA agrees with Awasr and notes that Article 4 of the Guidelines allows the TRA to

modify these procedures if the circumstances require so.

REMEDIES

37. ARTICLE 37


37.1 Omantel did not agree to point (ii) as this, in its views, can harm the shareholders interest

and requested to remove this from the guidelines. Omantel, while commenting on point

(iii), believed that the decision in this kind of complaint should be to stop the action by

the respondent at maximum and not to take this complaint to open-ended financial

penalty.

37.2 Ooredoo, while commenting on point (ii), believed that the remedy of publishing an

acknowledgment or apology should only be utilized where a specific party has requested

such a remedy. In its views, apologies are utilized in litigation when requested by a

plaintiff and usually in cases where an injustice has been done to an individual e.g.

medical malpractice. As such this remedy may be appropriate in cases of consumer

complaints where the consumer has been treated unethically or in defamation cases but

would not be appropriate for a breach of ex-ante obligations claimed by another licensee.

This, in Ooredoo’s views, is due to the fact that the value of apology remedies is more

psychological. Ooredoo suggested that the TRA should also consider the remedy only

where the aim and purpose of such acknowledgment or apology makes sense. Ooredoo

suggested removing such sub-clause or rewording to “where appropriate and requested

by the Complainant, requiring ….”.

37.3 On point (iii), Ooredoo commented that the limits of this financial penalty should be

specified and subject to the Telecom Act.

37.4 Renna commented that the TRA may put any remedy on the Respondent including

financial penalty. However, Renna observed that there is no mention of any

compensation to be provided to the complainant who has suffered economic damages

23

due to anti-competitive behaviour from a dominant licensee. It suggested to include such

a provision to allow for such remedial measures to the complainant and specify the

principles behind how such financial damages shall be calculated in the event that the

TRA finds the Respondent engaged in anti-competitive behaviour.

TRA position

37.5 With regards to licensees’ views on point (ii), the TRA notes that Article 6 of Ex-Post

Regulation has similar remedy. Moreover, CITC under its guidelines can also put such

a sanction on the licensee involved in abuse of its dominant position.

37.6 The apology referred by Ooredoo is for cases where an injustice has been done to an

individual whereas the scope of apology referred in this Article is broader as the affected

parties may possibly include more than one licensee as well as the general public. The

TRA will obviously consider whether such a remedy is appropriate, depending on each

case, however, in its views it is not right to link this with requests made in the complaint

.

37.7 The TRA does not agree with Omantel’s views on point (iii). For avoidance of doubt, the

limit of financial penalty will be subject to Telecom Act but cannot be specified in the

Guidelines, as proposed by Ooredoo, and will vary for each case.

37.8 Regarding Renna’s comments on financial compensation and damages, the TRA would

like to clarify that these are beyond the TRA’s jurisdiction. For such claims, the licensees

can approach the court of law.

CONTINUING VIOLATIONS

38. ARTICLE 38


38.1 Ooredoo commented the limits of this financial penalty should be specified and subject

to the Telecom Act.

TRA position

38.2 For avoidance of doubt, the penalties are is subject to Telecom Act, however the same

cannot be specified in the Guidelines as this will vary from case-to-case.

FORMAT OF COMPLAINT

39. SECTION 4


39.1 Awasr suggested modifying last sentence of section 4 as “Where direct evidence about

a target service/product’s costs is not available, the costs used to support an allegation

could be based on the Complainant’s own costs or any other evidence that suggests the

level of the service/product’s costs.”

24

TRA position

39.2 The TRA agrees in principle with the proposed modification from Awasr.

Documents

Consultation on Draft Guidelines for Competition …...complaints by the licensees alleging another licensee on anti-competitive behaviours or on breach of its ex-ante obligations