Telecommunications regulatory authorities around the world have a variety of responsibilities that fit loosely into various categories reflecting elements of the three branches of government. The classic case often quoted in literature regarding the judicial capacity of telecommunications regulators can be found in the United States. The concentration of different competencies, including quasi-judicial powers, is the most important aspect of the U.S. regulatory framework. In the case of the U.S. public utility commissions (PUCs), which have jurisdiction over “public utilities” operating within the state, the PUC acts in both a quasi-legislative capacity by setting rates and approving tariffs, and a quasi-judicial capacity in hearing complaints and adjudicating rule violations against specific parties.
The state PUCs are generally multi-member boards, replete with numerous structural and procedural protections to insulate the government’s decision making from political manipulations or other undue influence. In addition, to ensuring that no single branch of government dominates their actions and decisions, these regulatory commissions are “hybrid institutions,” administrative agencies housed in the executive branch, vested with both judicial and legislative authorities and responsibilities.
A clear example is provided by Bull (2002)1 in describing the powers of the Minnesota PUC:
Legislative. The PUC acts in a legislative2 manner when it establishes policies to be applied in the future. Among the commission’s most important legislative functions are the:
- Establishment of rates for electric and natural gas service;
- Development and adoption of broad industry policies and standards applying in the future, such as rules and orders governing service quality, resource planning, and customer service.
Although for most people, the dominant impression of the PUC is akin to that of a court, the commission’s primary duties, in terms of the amount of time and resources it expends, relate to policymaking in the performance of its legislative function.
Quasi-judicial. The PUC acts in a quasi-judicial3 capacity when it adjudicates disputes involving past behaviour. Examples include the:
- Determination of the reasonableness of a utility’s rates or its allowed rate of return set in the past by the commission;
- Resolution of consumer complaints regard utility services; or
- Finding of a violation of state law or PUC order or rule by a utility, and the imposition of sanctions penalizing the violation.
This situation, however, is not unique to the United States PUCs. Regulators in many countries have judicial or quasi-judicial powers, depending on their specific mandate. This is most evident in the dispute resolution mandates of regulators and in the enforcement capacity of regulators, where, in some cases, the staff is considered to be judicial officers.
In Morocco, the regulator’s (Agence Nationale de Réglementation des Télécommunications – ANRT) employees have the power to investigate and establish by written report particular violations, to access sites, request and collect the communication of any professional documents, and seize materials which are the object of a violation.4 Designated ANRT employees may investigate and establish, by written report, violations of the law, and are required to file reports within five days to the King’s prosecutor. These reports are considered valid until proven to the contrary.
In Portugal, ICP-ANACOM workers, respective attorneys, and qualified and duly accredited people or entities that perform oversight functions, when exercising their functions, are considered to be agents of the regulator and thus enjoy the following prerogatives:
- Access to installations, equipment, and services of entities subject to inspection and control by ICP-ANACOM;
- Authority to requisition documents for analysis, as well as equipment and material to conduct tests;
- To identify, for subsequent action, all individuals who violate legislation and regulations with which they must comply;
- To demand the collaboration of the proper authorities when deemed necessary for the performance of ICP-ANACOM agents’ duties.5
In Portugal, an ICP-ANACOM decision has the same executive status as a decision by a court of first instance. ICP-ANACOM can proceed to juridical execution under the terms of the Civil Law Code.6
The officers of the Info-Communications Development Authority of Singapore (IDA) have the power to discharge their functions, require information, have full and free access to all buildings and documents and inspect, copy and take possession of such documents or equipment, arrest and search without warrant in respect of certain offenses, and compound offenses. Any person who obstructs a police officer or chief executive or employee of the IDA in the execution of his duty is guilty of an offense.7
Under the Telecommunications Act of Taiwan, the Directorate General of Telecommunications (DGT) may dispatch personnel or cooperate with the police, with search warrants and evidentiary documents, to enter the establishments that harbor violations of the Act, to conduct inspections, or extract relevant information.8
Civil law countries distinguish between public law, administrative law and private commercial law and frequently carry this distinction into their respective institutional structures, particularly with regard to the judicial or quasi-judicial status of the regulator vis-à-vis dispute resolution.9
Like many countries, France has administrative courts with specific responsibility for reviewing administrative actions. The telecommunications regulatory authority, ARCEP (formerly ART), however, was the first independent administrative authority in France to be granted quasi-judicial power to settle disputes, a power that is exercised under the supervision of the court, in compliance with the litigation guarantees for a fair trial.
The French Constitutional Council explicitly recognized that the law may “grant an independent administrative authority the responsibility for ensuring compliance with the constitutional principles in the field of audiovisual communications with sanctioning power, within the limits required to accomplish its task” and it is the responsibility of legislators to “include further measures for exercising such powers, intended to safeguard constitutionally guaranteed freedom and rights.”10 Specifically, the Constitutional Council acknowledged ART’s sanctioning powers in cases of failure to comply with the legislative and regulatory provisions set forth in the Post and Telecommunications Code, without this affecting in any manner the principle of separation of powers.11
OPTA in the Netherlands presents another interesting example. It is formally considered to be an administrative body, but is authorized to influence relationships between civil parties. Thus, although OPTA cannot prescribe generally binding rules, it may offer guidelines for clarity among parties.
ENDNOTES
1 Mike Bull, The Minnesota Public Utilities Commission and Related Agencies: Structure and Function, September 2002, available at http://www.house.leg.state.mn.us/hrd/pubs/mpucagen.pdf.
2 Minnesota law defines the PUC’s legislative function as “the establishment and promulgation of all rules,orders, and directives of general or particular applicability, governing the conduct of the regulated persons or businesses, together with such investigative procedures as are incident thereto and all valid acts and procedures which are historically or functionally legislative in character.” Minnesota. Statute § 216A.0, subd. 2.
3 Minnesota law specifies that the PUC’s quasi-judicial function is “the promulgation of all orders and directives of particular applicability governing the conduct of the regulated persons or businesses, together with procedures inherently judicial.” Minn. Stat. § 216A.02, subd. 4.
4 Morocco Law No. 24-96.
5 Portugal, Statute of the ICP-ANACOM, Article 48, as established pursuant to Decree Law No. 309/2001 available at http://www.icp.pt/template20.jsp?categoryId=4675&contentId=17645.
6 ECC Report 43, Dispute Resolution Settlement Procedures, Bornholm, 2003.
7 Singapore Telecommunications Act of 1999, Part VIII.
8 Taiwan Telecommunications Act, as amended, Article 55.
9 See Robert R. Bruce, Rory Macmillan, Timothy St. J. Ellam, Hank Intven and Theresa Miedema, Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions, World Bank/ International Telecommunication Union, October 2004.
10 Ruling number 88-248 DC, Rec. 18, RJC I-339, 17 January 1989, available at http://www.conseil-constitutionnel.fr/decision/1988/88248dc.htm.
11 Elisabeth Rolin, Settlement of disputes brought before the Telecommunications Regulatory Authority, at http://www.art-telecom.fr/index.php?id=8442&L=1.