The legal status of the authority is generally based on providing the most appropriate organizational structure in order to ensure consistency with the legal and administrative framework of the country. Portugal and Austria are two examples of countries that structured their regulatory authority as a corporate body instead of as an administrative body. In Portugal, the new statutes of the Instituto das Comunicações de Portugal (ICP) changed the previous legal status of ICP from a public institute to a public corporation named ICP-AUTORIDADE NACIONAL DE COMUNICAÇÕES (ICP-ANACOM) endowed with administrative and financial autonomy, as well as its own assets.1 This new legal form was intended to enhance the powers and procedures of the regulator and to provide greater legal and financial flexibility through its regulatory instruments. In practice, the change of legal status had an impact on the internal administration of ICP-ANACOM because the Board was granted more flexibility with regard to internal administrative matters, including salaries of the Board Members and staff, the internal organization of the Institute and procurement of goods. However, the budget is still approved by the Ministry of Public Works, Transportation and Communications and the members of the Board of Administration are appointed by resolution of the Council of Ministers, upon a proposal from the member of government responsible for communications. In terms of regulatory functions, ICP-ANACOM has wide-ranging powers, with the Ministry responsible for the establishment of licence fees. ICP-ANACOM, however, must coordinate with other entities as follows:
- Numbering Plan: The member of government responsible for the communications sector approves the guidelines and general principles of the national numbering plan and then ICP-ANACOM administers the plan and grants the numbers.2
- Tariff approval: The pricing system of the provision of universal service is established through an agreement signed between the central government, represented by the Department of Commerce and Competition (DGCC), ICP-ANACOM and the organization with universal service obligations.3
- Technical standards: ICP-ANACOM must coordinate with the National Standardization Organization (Instituto Português da Qualidade).
- Frequency allocation: ICP-ANACOM must coordinate with the sector ministry which is responsible for public tender procedures.4
In Austria, the independent regulator (RTR GmbH) is also a corporate body – specifically, a private sector, non-profit, limited-liability company, and 100 per cent of its shares are owned exclusively by the Austrian federal government. These shares are administered by the Federal Chancellery in cooperation with the Federal Ministry for Transport, Innovation and Technology. RTR’s share capital totals €5,741,153.90 and was solely contributed by the federal government. Additional financing of the regulatory authority is governed by law, and inflows of funds include licence fees and financing amounts contributed by telecommunications providers operating in Austria. RTR’s regulatory activities with regard to broadcasting are financed by contributions from broadcasting organizations located in Austria.
RTR is in charge of running the day-to-day regulatory business and also acts as the managerial unit of the Austrian Communications Authority (KommAustria – the broadcasting regulator)5 and the Telekom Control Commission (TKK, which acts as the judicial arm of the regulator.)6 The members of the RTR Advisory Board are appointed by the Austrian Federal Ministry of Transport, Innovation and Technology and by the Federal Chancellery. RTR is split into two specialized sections (broadcasting and telecommunications) and has fairly typical functions and duties of a telecommunications authority.
Thus, in practice, regulators legally established as corporate bodies appear to function in much the same way as regulators which are administrative bodies in terms of reporting lines, budget and internal administration.
ENDNOTES
1 Decree Law No. 309/2001, in I Series-A of the Diário da República of December 7, 2001, available at
http://www.anacom.pt/template20.jsp?categoryId=4675&contentId=17645.
2 Decree Law No. 415/98, Art. 28.
3 Decree Law No. 458/9. Art. 11
4 Article 31 of Law 5/2004 of February 10, 2004 (Regicom) allows for a limitation of the number of rights of use where this is necessary to ensure the efficient use of radio frequencies, but also provides that where the granting of rights of use for frequencies needs to be limited, the procedures and selection criteria shall be objective, transparent, non-discriminatory and proportionate. In the case of public tender procedures, ICP-ANACOM must coordinate with the sector ministry.
5 On April 1, 2001, the Austrian Communications Authority (KommAustria) was established under the KommAustria Act (KOG, BGBl. I No. 32/2001) to handle broadcasting regulatory activities. The new authority thus assumed the roles of the Private Broadcasting Authority and the Regional Radio Act Commission, which also served as the Cable and Satellite Act Commission. Since then, KommAustria has taken over responsiblility for the administration of broadcasting frequencies, a task which was formerly under the responsibility of the telecommunications authorities. See http://www.rtr.at/.
6 Tasks of the Telekom-Control-Commission can be found at http://www.rtr.at/.