IJAZ UL AHSAN, J.---The petitioner seeks leave t6 appeal against order dated 23.02.2018 passed by the .Islamabad High Court, Islamabad in F,A.O. No,124/2017. Through the impugned order, an appeal filed by the petitioner with Pakistan Telecommunication Authority (PTA) was dismissed and the order impugned therein was upheld.
2. The brief facts necessary for decision of this lis are that the petitioner is a licensed cellular mobile service provider in Pakistan. A wholly owned subsidiary of the appellant namely CMPAK LDI (Pvt.)
Limited has been licensed by PTA to provide Long Distance International service under an LDI license issued to it. The respondent in its capacity as the regulatory authority inter alia for telecommunication services in Pakistan addressed a letter dated 24.07.2014 to the petitioner. It asked for details regarding unauthorized use of White Listed IP addresses of the appellant. White Listed IP addresses are made available to cellular Mobile Companies for the purposes of providing GPRS/EDGE data internet services to their customers. The letter alleged that the petitioner was misusing the White Listed IP addresses for terminating international calls which was in contravention of the telecommunication regulatory laws of Pakistan. The petitioner denied such allegation of the respondent authority. Subsequently despite carrying out testing and data analysis, the respondent Authority could not detect unauthorized use and cleared the petitioner of the allegation of termination of LDI calls on its White Listed IP addresses. It appears that such exoneration occurred on account of lack of requisite technical capacity and equipment for testing and data analysis. On acquisition of such technology, the respondent issued a show cause notice dated 10.10.2014 to the petitioner containing almost the same allegations. However, this time it identified more than one IP address and quantified a total of around 2.2 million international calls accounting for around 11 million minutes which had allegedly been directly received and terminated on nationwide mobile numbers through the system of the petitioner between 1st March, 2014 to 4th September, 2014. This was done by the petitioner by allegedly using Voice Over IP (VoIP) protocol, session initiation protocol (SIP) etc.
3. It was alleged that by misusing White Listed IP addresses (which were allocated only for the purpose of providing GPRS/EDGE data services) for terminating international calls, the petitioner had violated and contravened regulatory laws and had exposed itself to penal provisions including section 23 of the Pakistan Telecommunication (Reorganization), Act of 1996 as well as the Pakistan Telecommunication Rules, 2000 and the Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2006. In addition, the terms and condition of the licence had also been violated.
4. The petitioner responded to the show cause notice denying the allegations. A position was taken that the White Listed IP address may have been used for the limited purpose of testing the LDI platform of its subsidiary CMPAK LDI but there was no large scale use of said addresses for the purpose of terminating international calls.
5. The respondent was dissatisfied with the reply and it proceeded to fix the matter for hearing.
After a series of hearings, the respondent decided against the petitioner. It declared that the petitioner was guilty of using White Listed IP Addresses for terminating international calls and levied fine of Rs.40 million on the petitioner. Aggrieved of the order, the petitioner assailed the decision of the respondent through F.A.O. No,99 of 2016 before the Islamabad High Court which allowed the same vide order dated 05.04.2017, set aside the decision of the authority and remanded the matter for decision afresh. The record indicates that when fresh hearing took place, it was noticed that the petitioner had admitted that the IP Addresses in question were used for testing of LDI platform and the same were used for termination of international calls by a wholly owned subsidiary of the petitioner namely; CMPAK LDI. Further, the petitioner informed the Respondent that it was conducting an internal investigation to determine if there had been unauthorized use of White Listed IP addresses. The respondent repeatedly directed the petitioner to share the findings of the investigation, but no such findings were shared by the petitioner with the Respondent.
6. In post remand proceedings, on the basis of material examined by the authority, it came to the conclusion that the petitioner had been unable to defend itself against the allegations levelled in the show cause notice. Therefore, it proceeded to reject the reply and issued an enforcement order on 31st July, 2017. This was again challenged before the Islamabad High Court. This time the Enforcement Order dated 31.07.2017 was upheld. Hence, this petition.
7. The learned counsel for the petitioner has argued that the decision of the respondent as well as the High Court is based upon an alleged admission which was never made. Further, the respondent did not have any evidence/record to substantiate the bulk of the allegations contained in the show cause notice and that disproportionate penalty had been imposed arbitrarily and without any lawful justification. The learned counsel has further submitted that the allegations contained in the show cause notice were unsubstantiated in view of an admitted lack of capability on the part of the respondent for monitoring in-bound international traffic in real time for the period alleged in the show cause notice. Finally, he submits that no grey traffic had been terminated by the appellant on the White Listed IP addressed and this was a case of no evidence.
8. We have heard the learned counsel for the petitioner and gone through the record. There is no denial of the fact that the White Listed IP addresses were made available to the petitioner only for the purpose of GPRS/Data services required by it in its capacity as cellular mobile service provider.
Neither the law nor the license given to the petitioner authorized it to use such IP addresses for terminating international calls. There was clearly an admission on the part of the petitioner that such addresses were actually used for testing the LDI platform of CMPAK A LDI, It was however, for the petitioner to establish that in the first place such use was permitted and further, that unauthorized use was limited to merely testing of the LDI platform and not more. No effort has made on the part of the petitioner to satisfy the respondent on this score.
9. We have further noticed that initially PTA lacked the capacity and capability to trace real time traffic for an IP address. However, in September 2014 this capability was acquired by way of acquisition of Grey Traffic Monitoring System (GTMS). By using the said system the data provided by Trans world Associates (which admittedly was one of the service providers of the petitioner) call termination activity was identified against IP addresses of the petitioner. It was on the basis of the said data and analysis of the same that the respondent came to the B conclusion that the petitioner had used White Listed IP addresses to terminate 2.2 million international calls accounting for around 11 million minutes from 1st March, 2014 to 4th September, 2014 by using Voice over IP
(VoIP) protocol and session initiation protocol (SIP). On the basis of the said material and results which were obtained by analyzing undisputed data provided by the service provider of the petitioner, the respondent reached the conclusion that the White Listed IP addresses of the petitioner were misused for termination of international voice calls. It is also noticed that despite clear and specific allegations made, the denial on the part of the respondent was evasive and unconvincing. Further, despite having made a categorical statement that it was conducting an internal inquiry, the petitioner never submitted any report despite C repeatedly being asked for by the respondent. Such report could have lent some credence to the stance taken by the petitioner that it had not misused its White Listed IP addresses for terminating international calls. Further the requisite information regarding unauthorized termination of international calls on White Listed IP Addresses was gleaned from data provided by a third party (Transworld Associates) by using GTMS (Grey Traffic Monitoring System). The petitioner never disputed the data provided by Transworld. In fact, the learned counsel for the petitioner admitted before us that Transworld are Service Providers of the petitioner. The petitioner failed to rebut, explain or effectively dispute the results of such data analysis which ihdicated that by unauthorized use of its system, the petitioner had terminated 2.2 million calls amounting to 11 million minutes through its White Listed IP Addresses. In these circumstances, the findings recorded by the Appellate Court as affirmed by the High Court are duly supported by the record. The penalty imposed is neither excessive nor exaggerated and quite in line with the gravity of acts and omissions of the petitioner. The learned counsel for the petitioner has not been able to point out any illegality, misreading or non-reading of material on record or perversity of reasoning on the part of both fora. Further, no error of law or fact, calling for interference has been demonstrated before us. On careful examination of the record and perusal of the order of the authority as well as the order of the High Court, we are not persuaded to disagree with the conclusions arrived at by the lower fora to take a different view. We find no reason to discard their findings and substitute the same by our own.
10. For reasons recorded above, we do not find any merit in this petition which is accordingly dismissed. Leave to appeal is refused.