In some cases, public consultations
are not undertaken due to lack of resources or other immediate constraints that
make it difficult to hold them. In Botswana, for example, when the
Telecommunications Regulations were promulgated in 1997, the regulator did not
include public consultations because it did not have sufficient staff resources
to conduct consultations and it had a tight timetable. In subsequent years,
however, the regulator added extra staff and developed more expertise, so that
in 2000, the Botswana Telecommunications Authority (BTA) prepared its first
consultation document on telecommunications services pricing.4
Other countries mandate public
consultations in certain occasions. In Bahrain, the Telecommunications Law
requires that, except in emergency cases, the
Telecommunications Regulatory Authority (TRA) must provide interested parties
the opportunity to present their opinions within a reasonable period on
measures having a material effect on the telecommunications market.
Procedurally, the TRA issues a bylaw regarding such consultations ensuring that
the public is informed from a single information source of the ongoing
consultations, excluding confidential information.5 The EU Framework Directive mandates national regulatory authorities of
member states to publish their consultation procedures and the subsequent
results when they intend to take measures in accordance with the Directive or
other directives that have significant impact on the relevant market. This is
intended to ensure that interested parties are given the opportunity to comment
on the draft measure within a reasonable period.6
Where the requirements for holding
public consultations are mandatory, the legislation typically specifies the
particular instances when public consultations are compulsory and must be held
by the regulator. For example, in Portugal, the Electronic Communications Law
specifies that the regulator, the Autoridade Nacional de Comunicações
(ICP-ANACOM), has discretion to determine matters that are subject to formal
written public consultations, except for the following:7
§ Change
in the conditions, rights and procedures applicable to the exercise of the
activity;
§ Limitations
on the rights to use frequency;
§ Allocation
of rights to use numbers that are exceptionally valuable through competitive or
comparative selection procedures;
§ Definition
of quality of service parameters;
§ Release
from the obligation to offer additional resources;
§ Definition
of portability regulations;
§ Definition
of the relevant markets for products and services, determination of a relevant
market as being effectively competitive or not, identification of companies
with significant market power in the relevant markets, and the imposition,
maintenance, change or elimination of obligations by companies with or without
significant market power;
§ Definition
of carrier selection and pre-selection regulations;
§ Definition
of obligation pertaining to the universal service providers applicable to the
offer of public telephones;
§ Definition
of the terms and conditions of the service offers specifically for people with
disabilities;
§ Definition
of the performance objectives applicable to universal service obligations.
Although public consultation
procedures can vary from country to country, minimum procedural safeguards are
generally instituted to make sure that there is maximum participation in the
decision-making process, such as: issuing public notice of consultations;
allowing for a proper comment and reply comment period; and publishing the
consultation results and final decisions.
ENDNOTES
1 OECD, Good Governance for Development in
Arab Countries Initiative Working Group IV: Public Service Delivery,
Public-Private Partnership and Regulatory Reform, Background Document, Public Consultation (Feb. 2007) at http://www.oecd.org/dataoecd/45/56/38403695.pdf.
2 International Telecommunication Union, Trends in Telecommunication Reform
2002: Effective Regulation, Chapter 6, (2002) at Section 6.1. “It
is worth noting that many regulatory authorities are not bound by explicit
statutory requirements to follow transparent procedures. Even so, many agencies
are engaging in public consultation voluntarily.”
3 ITU survey on Public Participation. In the Americas, out of the 31
countries surveyed, 27 countries responded, resulting in a response rate of 87
per cent. In the Arab States, 13 responses were received out of 19 countries
surveyed, resulting in a response rate of 68.4 per cent. 28 countries were
surveyed in the Asia Pacific region, and 20 countries responded, resulting in a
response rate of 71.4 per cent. In Europe, 45 countries were surveyed, and 38
responded, resulting in a response rate of 84.4 per cent. In Africa, 41
countries were surveyed, but only 27 countries responded, resulting in a
response rate of 65.8 per cent.
4 ITU Effective Regulation Case Study: Botswana (2001).
5 Bahrain Telecommunications Law, Legislative Decree No. 48 (2002), Art.
3(f).
6 Council Directive 2002/21/EC on a common regulatory framework for
electronic communications networks and services (Framework Directive), Art. 6,
7 March 2002. The exceptions to the public consultation requirement include:
(a) exceptional circumstances where there is an urgent need to act, (b) dispute
resolution between undertakings, and (c) resolution of cross-border disputes.
7 ICP-ANACOM Consultation Procedures, adopted pursuant to the Electronic
Communications Law no. 5/2004 available
at http://www.anacom.pt/template12.jsp?categoryId=95282.