Guidelines for Legal Proceedings in case of malicious damage to telecom and Cable TV infrastructure

Note: These guidelines are specific to Pakistani laws. Each country would have its own telecom related laws and protections provided to the licensed telecom operators.

Telecom operators (“telcos”) face continuous threat of malicious damage to their infrastructure, particularly aerial and underground optical fiber cables. Most of this damage is done by disgruntled Cable TV operators and occasionally done for extortion and blackmailing purposes by local vagabonds and mafias. Purpose of these guidelines is to know the rights of telcos and how to proceed legally against the culprits in case of such malicious damages which not only causes financial and reputation loss to telcos but also encourages lawlessness and crime. Telcos, being good corporate citizens are duty bound to take these occurrences seriously and fight the cases till end so that it sends strong message to all local mafias that telcos are here to stay and no one should take law in own hands. The real life experience tells that if one or two such cases are taken seriously by the telco, no one will dare to do such mischief again.

         The guidelines do not apply to accidental cuts caused during any excavation, construction or other activities. In such cases, both parties can talk, negotiate and settle damages in a civilised way.

         Most telcos, in addition to their licenses by Pakistan Telecommunication Authority (PTA), also hold Cable TV/IPTV license from Pakistan Electronic Media Regulatory Authority (PEMRA). Both laws, i.e., Pakistan Telecommunication (Re-organisation) Act, 1996 (“Telecom Act”) and Pakistan Electronic Media Authority Ordinance, 2002 (“PEMRA Ordinance”) provide sufficient protection to licensed telecom and distribution infrastructure and its damage is classified as criminal offence. In case a telco doesn’t hold PEMRA license, it can adopt prosecution route under Telecom Act only.

         Following remedies are available to licensed operators in case of malicious damage to their infrastructure:

         a.      Proceedings under Criminal Procedure Code (CrPC)

         b.      Proceedings under PEMRA Ordinance

c.      Parallel Proceedings if culprit is a licensed Cable TV operator

         c.      Proceedings under Telecom Act

a & b. Proceedings under Criminal Procedure Code (CrPC) and PEMRA Ordinance

         Damage to anyone’s property is a non-cognizable and bailable offence under Section 427 of PPC. If part of fiber cables and/or network equipment is stolen, then offence is cognizable and non-bailable under PPC 379. In many cases, miscreants steal cables, joints, network equipment, etc., so the offence under PPC 379 is committed.  

Cognizable offences are those where police can act independently for registration of FIR (First Information Report) against the suspected culprits. Non-cognizable offences require permission of a third party, mostly a court of law or a regulator before Police can take any action against the accused.

Section 33(4) and 34-A of PEMRA Ordinance state:

33(4) Whosoever damages, removes, tampers with or commits theft of any equipment of a broadcast media or distribution service station licensed by the Authority, including transmitting or broadcasting apparatus, receivers, boosters, converters, distributors, antennae, wires, decoders, set-top boxes or multiplexers shall be guilty of an offence punishable with imprisonment which may extend to three years, or with fine, or both.

34-A Offences to be compoundable and cognizable. The offences under sub-section (3) and sub-section (4) of section 33 of this Ordinance shall be compoundable and cognizable.

Since Offences under Section 33(4) of PEMRA Ordinance are cognizable, no prior complaint by PEMRA is required for the Police to register and FIR. Telcos having a valid PEMRA license of particular area can ask Police to invoke action under this section of PEMRA Ordinance.

The first step by the telco should be to move an application to the relevant SHO Police in whose jurisdiction, offence has occurred. The application should be preferably in Urdu language. Application should include the crime site, time, date, nature of crime (damage, theft, or both of them) and name of suspects. Application should also make a reference to Section 33(4) of PEMRA Ordinance so that Police mentions the relevant section in the FIR.

Normally, Police will not register a case. They will take application from telco and try to bury it after few days as miscreants normally have connections with rouge Police officials. If SHO doesn’t register FIR in 15 days, an application be submitted to the relevant Superintendent of Police (Complaints). If SP Complaints doesn’t take any action, then an application of 22-A needs to be moved by telco in Court of Sessions and court will definitely order the SHO to register FIR. After FIR is registered, Police needs to be followed up to arrest the culprits and do legal proceedings. After arrest of accused, telcos should oppose their bail applications as and when moved by them in relevant courts. More time the culprits spend behind the bars, more potent the message will be and then no one will dare to damage the network of telco in future. The process requires patience, consistence and follow-up with good criminal legal representation in district courts. Corporate lawyers can not handle such cases so a good criminal lawyer active at district court levels should be engaged.

It is desirable that telco should do on ground investigations to identify suspects carrying out sabotage. Telcos should have their security, patrolling and vigilance staff on ground who should track all suspicious activities by gathering on ground information from people of surrounding areas of crime scene. Suspected persons, their vehicles/motorbikes should be noted wherever possible. Hence suspects where available should be nominated in the FIRs. In case no suspect could be pinpointed, then FIR should be against “unknown” culprits. Benefit of such FIRs is when anyone caught or identified as culprit during any subsequent investigation, burden of all previous FIRs can be diverted to this culprit.

c.      Parallel Proceedings if culprit is a licensed Cable TV operator

A separate application be submitted to PEMRA Regional Office with details of damage and name of suspect Cable TV operator requesting PEMRA to take action against the operator under PEMRA Ordinance. PEMRA is bound to act on this application. If nothing happens in 15 days, a reminder be sent to PEMRA. In case of no action in next 7-10 days, an application be submitted to Chairman PEMRA. In case of no action, a writ petition could be filed in relevant High Court and court would definitely direct PEMRA to take action. If PEMRA still takes no action, a contempt of court application be moved in High Court.

These proceedings should be done in parallel to (a) and (b).

d.      Proceedings under Telecom Act

Section 31(1) of Pakistan Telecommunication (Re-organisation) Act, 1996 states:

Whoever:

(h)  commits mischief;

(i)        damages, removes, interferes or tampers with any telecommunication equipment;

(k)  assaults or intentionally obstructs a person engaged in the operation of a public switched network or the establishment maintenance or operation of telecommunication services over a public switched network or intentionally obstructs the course of business of that person;

shall be guilty of an offence under this Act.

(2)     Every offence specified in sub-section (1) shall be punishable with imprisonment which may extend to three years, or with fine which may extend to ten million rupees, or with both.

(3)     Whosoever conspires to commit or attempts to commit or aids or abets the commission of any offence punishable under this Act shall be liable to same punishment as is provided in sub-section(2).

 (5)    No court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorized by the Authority or the Board.

Federal Investigation Agency (FIA) is the designated agency to investigate and prosecute Telecom Act related offences and Police has no jurisdiction on these cases. This process should run in parallel to prosecution under PPC/PEMRA Ordinance by Police as telcos are dual licensees of PEMRA and PTA and hence both laws have concurrent jurisdiction for prosecution of culprits by different agencies, i.e., PEMRA and PTA.

Under Section 31(5) of Telecom Act, FIA will not take cognizance of the matter unless PTA in writing asks them to do so. This is standard practice that PTA adopts in all offences under Section 31 including those of grey traffic, etc. So an application should be moved to PTA’s Zonal Office with details of mischief, crime site, time, date, nature of crime (damage, theft, or both of them) and name of suspects. Reference should also be made to Section 31(h)(i) and (k) of Telecom Act. If PTA takes no action, a reminder be sent after 15 days. In case of no action, an application be submitted to Chairman PTA. In case of no action, a writ petition be filed in relevant High court against PTA and court will direct PTA to take action in accordance with law. If no action is taken by PTA, a contempt of court application be moved in High Court.

After PTA writes to FIA for action against the culprits, matter needs to be pursued by the telco with relevant FIA staff so that FIR is registered and culprits are arrested. Telco should oppose the bail applications of accused as and when moved by them in relevant courts.

These proceedings should be done in parallel to (a), (b) and (c).