Regulatory objectives and public consultation processes
Public consultations promote two important regulatory objectives. First, they provide the regulator with valuable input from industry members and other stakeholders. Public consultations therefore help regulators to make informed decisions. Second, public consultations help to foster a transparent regulatory environment.
Types of public consultation processes
There are a range of different types of public consultations. At one end of the spectrum are formal consultation processes involving the publication of a government white paper. These consultation processes often involve detailed proposals. In some cases, the regulator may pose specific questions to industry stakeholders for consideration.
An example of a detailed consultation paper published by a regulator is the Consultation Paper on the Unified Licensing Regime published by the Telecommunications Regulatory Authority of India (“TRAI”) in 2004. This Consultation Paper featured a detailed discussion about a number of policy issues related to the implementation of a unified licensing regime in India. The discussion in the Consultation Paper included reference to current international practices and feedback that TRAI had received about these issues during an earlier consultation process. In the Consultation Paper, TRAI invited interested parties to respond to a lengthy list of questions related to the issues raised in the Consultation Paper. Some of the questions posed by TRAI were narrow, while other questions invited a broader discussion.
The Irish regulator published a similarly detailed consultation paper concerning the market analysis for retail fixed narrowband access services. This public consultation paper set out background information about a number of issues related to this market analysis, in addition to initial analysis of these issues and a preliminary conclusion. The paper then asked certain questions about the analysis and preliminary conclusion outlined in the consultation paper. A similar consultation paper was published in relation to the market analysis for retail fixed calling services.
At the other end of the spectrum are simple calls for comment on a particular issue or set of issues. A “call for comment” may be included in a public notice issued by a regulator. In some cases, a “call for comment” refers interested parties to a particular website or document where such parties can find more information about the consultation process. “Calls for comment” may also include some background information or analysis concerning the issue or issues raised for consideration. Although simple “calls for comment” may not be formally published as a government white paper or include as detailed analysis as consultation papers, they may be just as effective as promoting the aforementioned two regulatory objectives.
The Jordanian public consultation on the licensing of a new mobile operator is an example of a public consultation document that takes the form of a “call for comment”. The Jordanian regulator, the Telecommunications Regulatory Authority (the “TRA”), issued a “Notice Requesting Public Comment on the Licensing of a New Mobile Operator in Jordan” (the “Notice”). This Notice provides background information related to the possible licensing of a new mobile operator and then outlines a number of issues for comment. The Notice was published on the website of the TRA.
Another example of a simple “call for comments”-type approach to a public consultation is the ECTEL consultation on draft Telecommunications (Fees) Regulations that it proposed to recommend for adoption in its Member States. ECTEL published the draft Regulations on its website, along with a note inviting the Commissions of its Member States and other stakeholders to submit comments on the draft Regulations. The only other information presented besides the actual draft Regulations was the time frame for the consultation period and information about how and where to submit comments.
The “Licensing of Data Services” public consultation document published by the Saudi Arabian regulator falls between the two ends of the spectrum of approaches to public consultation. Although the document is not as lengthy as some of the formal consultation papers, it contains more information than a simple “call for comments”. For example, the Saudi public consultation document includes general background information, in addition to a survey of issues relevant to the licensing of data services and a series of questions and requests for comments on these issues.
Structuring public consultation processes
There are a number of practices or strategies that are commonly adopted when structuring public consultation processes. These practices frequently promote the aforementioned regulatory objectives. One common practice is to communicate important information about the public consultation to stakeholders at all stages of the consultation. This not only improves the transparency of the process, but also increases the likelihood of participation of stakeholders in the process by keeping stakeholders well informed about the consultation.
Regulators frequently make use of public notices to inform stakeholders of public consultations. For example, the Saudi Arabian regulator issued a public notice that summarized key information about its consultation on the licensing of data services. This public notice was placed on the website of the regulator, along with a link to the public consultation document.
In Jordan, a note about the public consultation concerning mobile licensing was placed on the main page of the Jordanian regulator under “New”. This note contains a link to another webpage where the Notice of Public Consultation is posted, along with a number of other related documents.
The website of the Irish regulator makes a variety of information about public consultations readily accessible. For example, the home page of the Irish regulator features a “What’s New” section that contains notices about recently-initiated public consultations. There is also a specific webpage dedicated to public consultations, where information can be found about public consultations dating back several years. The website of the Irish regulator thus contains an extensive repository of documents relating to past and present public consultations.
A public consultation is an on-going process. During the course of the consultation, it may become necessary to issue additional documents to clarify matters or to provide further information about one or more of the issues. In some public consultations, the regulator may include procedures for submitting clarifying questions.
In the Jordanian consultation on the issuance of a mobile operator licence, for example, provision was made for the submission of clarifying questions and for the publication of answers to frequently asked questions. The Jordanian regulator specified a deadline for the submission of clarifying questions and also provided a date by which it committed to publishing all relevant questions, along with answers, on its website. (See section 6.3 of the public notice for the Jordanian consultation.) The result was a guide to frequently asked questions about the consultation.
A practice that promotes the regulatory objectives associated with public consultations is to facilitate the ability of stakeholders to participate in the consultation process. One of the most basic ways to ensure that stakeholders can participate in the consultation process is to ensure that the public consultation document clearly identifies how interested parties can contribute their comments. Although some regulators prefer to receive contributions by post or by e-mail only, other regulators, such as the Irish regulator, invite responses to be filed by post, e-mail, facsimile, or on-line.
Useful information to include in a public consultation document includes the address, facsimile number, and e-mail address to which contributions to the consultation process may be sent, as well as information about whether stakeholders must use a particular format or form for their comments.
In some cases, regulators may hold a public hearing or meeting to discuss the issues raised in the public consultation. For example, the Jordanian regulator held a public forum as part of its consultation concerning the issuance of a mobile telecommunications licence. The Jordanian regulator issued a press release announcing the public forum that provided key details, including the date and location of the forum. The regulator also posted information about the public forum on its website, including schedule for the event, some background information, and a link to the public consultation document. The web page also contained a link for on-line registration for the forum.
The Jordanian regulator made a power-point presentation at the public forum about the proposals contained in its public consultation document concerning the issuance of a mobile licence. This power-point presentation has been made available on the Jordanian regulator’s website.
A third consideration related to the promotion of the aforementioned regulatory objectives in the public consultation process is the follow-up taken by the regulator after the deadline for filing comments has passed. A public consultation does not end with the collection of submissions and comments from stakeholders. The regulator should give fair consideration to such submissions and comments, even if the proposals contained therein are not adopted. To this end, regulators may consider publishing a report on the public consultation that summarises the submissions received during the consultation and that sets out the regulator’s determinations about the matters raised in the consultation. Such a report provides certainty about the regulatory direction that will be taken on the matters raised in the public consultation, as well as bolsters the transparency of the process through which determinations are made.
Alternatively, the regulator may choose to use the submissions as input for the next stage of its licensing process, for example, the issuance of a licensing regulation or a call for applications for licences. TRAI integrated the comments that it received in public consultations it conducted during the initial stages of the Indian transition to a unified licensing regime into the public consultation held during the latter phase of this transition. TRAI made reference to submissions that had been made in earlier public consultations in the public consultation document issued in 2004 concerning the unified licensing regime. The 2004 public consultation document also included an annexure that summarized comments received during earlier stages in the transition to a unified licensing regime.