7.2.1 Overview of the Public Consultation Process

Public consultations can take different forms depending on: the nature of the issue being consulted; the number of people that could be affected by the decision; the impact on the market; and whether a formal written consultation process is mandated by legislation. Public consultations can range from informal meetings to more formalized and structured written consultations. Some of the forms of public consultations used by regulators are:1

• Formal invitations for written submissions;
• Individual meetings with one or more interested parties;
• Meetings, seminars, and workshops with representative groups and other interested parties;
• Issuing draft documents containing the preliminary view of the regulator and soliciting comments from the public at large before taking a final decision;
• Public hearings;
• Surveys;
• Consultation with independent advisers; and
• Discussions and consultation with regulatory professionals and regulatory institutions in other jurisdictions.

Generally, regulators use formal written consultation procedures as a minimum safeguard to ensure public participation in its decision-making process, but often supplement this process with informal consultation methods such as public hearings or surveys. (Box 7-5 summarizes the objectives for holding public consultations.) For example, in Peru, the Board of Directors of the regulator, Organismo Supervisor de Inversíon Privada en Telecomunicaciones (OSIPTEL), may form ad hoc consultative committees, composed of experts who, due to their authority, knowledge, and representation on the consultation issue can assist in the discussion or treatment of the regulatory initiative. Similarly, Hong Kong’s (SAR) Office of the Telecommunications Authority (OFTA) has formed various advisory committees composed of members of the public, industry professionals and representatives of other government departments, from whom it can seek opinions during public consultations. Additionally, OFTA will also form ad hoc work groups and committees to discuss specific issues from time to time that fall outside of the purview of the advisory committees.2

Many regulators find the written consultation process to be the most efficient means of conducting a public consultation. The U.K. regulator, The Office of Communications (Ofcom), will usually engage in a formal consultation process to seek written views of the public. However, recognizing that formal consultation has its limits in reaching smaller businesses or community groups or individuals who lack time and specialist skills, Ofcom supplements the formal written consultation with other methods of gathering information, such as running road shows, open meetings, online bulletin boards, or organizing focused discussion groups.3

Box 7-5: Objectives of a Public Consultation To obtain input, information and feedback from persons affected by the proposed decision, other stakeholders and the public so as to ensure that consumers have the best telecommunication services possible in terms of choice, quality and value for their money. To acquire substantive information and knowledge from stakeholders, regulatory and industry professionals and other regulatory institutions so as to effect an orderly transition to a fully liberalized and competitive marketplace. To ensure that the Commission has investigated all aspects of an issue; and To ensure transparency of decisions of the Commission. Source: Anguilla, Administrative Procedures Regulation, 2004.

The general public consultation process is based on a three-stage process, which can incorporate both informal and formal procedures depending on the nature of the proceeding.4 (See Figure 7-D.) In the first stage, an issue is identified and the regulator issues a formal consultation document soliciting public comment. This is followed by a comment period in the second stage. In addition to the receipt of written comments, the regulator may use the comment period to engage in informal consultations as well, such as public hearings, to gather additional information or clarify information that it receives. In the last stage, the regulator makes a decision based on public policy and the information received.

1. Public Notice of Consultations

In the first stage, the regulator issues a formal consultation paper after identifying and formulating an issue. The decision-making process is typically initiated by either the regulator or by an interested person requesting a formal consultation.5 For example, in the United States, the Federal Communications Commission (FCC) allows interested members of the public to file a Petition for Rulemaking requesting the FCC to amend an existing rule or to develop a new rule.6

The regulator can use this initial stage to conduct informal consultations on more complex issues to help it formulate the issue for the finalized consultation document. For example, in Hong Kong (SAR), prior to the OFTA consultation proceeding on the Interconnection and Related Competition Issues, OFTA provided written notice to all local fixed network operators informing them of its intent to initiate the review and inviting them to raise additional issues related to interconnection so that they could all be resolved in a single proceeding. Only after reviewing the responses received did OFTA issue a formal consultation paper outlining the specific issues and its own preliminary views on the issues.7 In the United Kingdom, Ofcom may hold informal talks with individuals and organizations before announcing a formal consultation. If Ofcom does not have enough time for the informal talks, it may hold an open meeting to explain its proposal and gather comments before announcing the consultation.8 The FCC in the United States sometimes initiates a Notice of Inquiry (NOI) to invite public comments and information about specific topics when it is interested in a particular issue but has not formulated a specific rule change proposal. NOIs are used by the FCC to gather information about a broad subject or as a means of generating ideas on a specific issue.

Publication of the Consultation Notice

Today, most regulators post consultation documents on their websites, in addition to publishing them in a government gazette or other official publication, or disseminating the documents through other forms of media such as newspapers, television or radio. In South Africa, the Telecommunications Act requires a three month’s notice of the proposed adoption of a regulation, which must be published in the national Gazette.9 In Bahrain, the TRA publishes public consultation documents on its website, and may use other means to keep the public informed of ongoing consultations, including publication in the national or international media and/or sending individual notices to potentially interested parties.10 Some regulators, such as the Canadian Radio-television and Telecommunications Commission (CRTC), also maintain a mailing list of individuals who wish to be contacted when certain activities occur, such as when licence applications are filed. The regulator will inform those on the mailing list where they can inspect the filings and submit comments.11 Box 7-6 provides an example from the CRTC illustrating the different methods that regulators use to inform stakeholders regarding public consultation proceedings.

Box 7-6: Finding Out about Canadian Radio-television and Telecommunications Commission Public Processes The different ways that one can find out about CRTC public proceedings are: Official CRTC announcement – These are available from any CRTC office and the CRTC website. Official announcements about broadcasting applications or issues also appear in the Canada Gazette. Information sheets – The CRTC sends these to target groups and, in rural communities, ensures they are posted in rural post offices. Newspaper advertisements – In affected communities, the CRTC places advertisements in newspapers of general circulation as well as community papers. Public Service Announcements – These are made on the cable community channel serving the affected area. Billing Inserts – These allow telephone companies to inform subscribers about CRTC public processes that involve them. Tariff Notices – These are filed by telephone companies and are available from any CRTC office and the CRTC website. Source: Adapted from the Canadian Radio-television and Telecommunications Commission. Content of the Consultation Document.

At a minimum, the public consultation document should contain the following information: (a) purpose of the consultation and substance of the proposed decision or description of the subjects and issues involved; (b) consultation timeframe and deadline for submitting comments; (c) contact name and details of how and where to submit comments; (d) reference to the authority under which the consultation matter is proposed; and (e) information on the regulator’s next steps following the consultation and/or where and how to obtain further information.

For example, in the United States, the FCC is required to provide the following information in a Notice of Proposed Rulemaking (NPRM): (a) statement of the time, nature, and place of any public rulemaking proceeding to be held; (b) reference to the authority under which the issuance, amendment or repeal of a rule is proposed; (c) either the terms or substance of proposed rule or a description of subjects and issues involved; (d) docket number assigned to the proceeding; and (e) statement of the time for filing comments and replies.12 The FCC requirements are typical of the contents of a consultation document issued by regulators worldwide.

2. Consultation Period

In the second stage, interested parties submit comments on the issue under consultation. The regulator’s goal is to gather as much relevant information as possible so that it can make an informed decision, taking into account the information provided by interested parties. To make the consultation more efficient, the regulator should establish a schedule for submissions of comments in the consultation document. Timeframes for submission of comments can vary depending on the complexity or urgency of the issue, and the overall effect of the proposal on the market. For instance, in Bahrain, parties are allowed at least 28 days from the date of publication of the consultation to submit comments. In Portugal, the comment period cannot be less than 20 days. In the United Kingdom, 10 weeks are usually allowed for responses on more complex issues and five weeks for shorter consultations. If Ofcom conducts shorter consultations, it will issue an explanation (e.g., the issue or community involved is small or only affects a particular group, the proposal is a limited amendment to existing policy, an issue requires urgent review, or it is the second consultation on the same issue.)13

When deciding how long a consultation period should last, regulators should balance the need to deal with an issue as quickly as possible with the need to allow enough time for the public to prepare and their responses. If the consultation period is too short, the public may not have enough time to prepare their submissions. On the other hand, if the consultation period is too long, the relevant market may have changed significantly from the time the issue under consultation was identified.

Some regulators, such as the TRA in Bahrain, will not accept unsolicited comments. They will only accept comments in response to a notice of consultation. In the absence of a notice of consultation, however, an interested party may submit comments where such party can show that the particular measure that forms the subject matter of the comments will have a material effect on a particular telecommunications market.14 In addition to initial comments, some regulators, such as the FCC in the United States and the NTRC in St. Vincent and the Grenadines, specifically allow for reply comments15 while other regulators, such as the TRA in Bahrain usually only invite a single round of comments per consultation.16 The benefits of allowing replies to comments are that it allows interested parties to challenge the comments made by others, and also provides the regulator with additional information regarding the issue under consultation.

Submission of Comments

The goal of the consultation process is to gather as much information as possible; therefore, the regulator should make it easy for the public to submit their comments. Most regulators encourage the use of the Internet for electronic submissions, as well as submissions in writing by fax and standard mail.17 Some regulators specify the particular format for written submissions.

Publication and Confidentiality of Information

To maintain transparency throughout the consultation process, regulators should publish comments so that they are publicly accessible either online or at the regulator’s office. This assures the public that their submissions have been received and allows them to view the comments of other parties. It also facilitates “buy-in” or “consensus building” within the industry, thereby facilitating compliance with the proposed rule.18 In Brazil, Anatel’s consultation documents and related public comments are available on the regulator’s website, where it maintains a virtual library of all of its regulatory proceedings.

Regulators, however, need to maintain a just balance between the requirement for a transparent public record and the need to respect confidential information from parties. Most regulators will post public comments received in a consultation process, or summaries of such comments on their websites, omitting any confidential information. Recognizing that companies may be reluctant to submit information considered commercially confidential, most regulators, including Singapore19 and Bahrain20, have implemented regulations regarding treatment of confidential information. Usually, regulators will require persons requesting confidential treatment of information to submit an abridged version to be circulated publicly. In some cases, such as the NTRC in St. Vincent and the Grenadines, the regulator will allow for anonymous respondents, provided that such persons employ the services of a lawyer to respond on their behalf.

Many regulators also have rules regarding ex parte (private) communications during a pending proceeding. Regulators should maintain transparency and fairness in the regulatory proceedings by giving equal access to all stakeholders and preventing any one single person from having an advantage in influencing the regulator’s decision through secret or private contacts. Ex parte rules can ensure transparency in the decision-making process by requiring all communication made by the public to the regulator to be published and accessible to other stakeholders, and ensuring that all stakeholders are informed whenever one party has an undisclosed meeting with the regulator. Regulators also may exempt certain communication from ex parte rules, such as inquiries about the status of a decision (as opposed to arguments for or against a certain action or decision), inquiries about procedural rules (so long as the rules are not themselves the subject of the proceeding) and statements that are inadvertently or casually made about a pending issue.21

Public Hearings

During the consultation period, the regulator has the flexibility to use other informal means of gathering additional information or clarifying the information it receives, such as seminars and workshops, visits by or to representative groups and interested parties, Internet discussions, surveys, and public hearings. A common informal consultation procedure is the public hearing, which is open to all interested parties so that they may express their views in person. The CRTC in Canada generally relies on the public hearing process when dealing with applications for new broadcasting licences and when considering a major policy issue or amendment to its regulations.22

Before holding a public hearing, the regulator should make the details of such meetings publicly available on their website or published in a newspaper, or announced on television or radio. In addition, in order to enhance transparency in the consultation procedure, if possible, public hearings should be recorded and transcribed so that they are publicly available. Brazil’s regulator, Anatel, and the FCC in the United States both post the agendas, schedules and subsequent minutes of public hearings on their websites. The FCC also “webcasts” its hearings and meetings on the Internet. On the other hand, the Telecommunications Authority of Turkey does not usually keep the minutes of the public hearings because “it causes a formal mood preventing a sincere and efficient discussion.”23

In Peru, OSIPTEL organizes public hearings before adopting normative and regulatory decisions. The procedure for public hearings is summarized as follows:24

• The discussion time lasts a maximum of two hours.
• Participants must register before entering the meeting, providing their company name or the institution that they are representing.
• The participants speak according to the order on the registration list. Each participant has a maximum of three minutes to speak. In the case of companies or associations, only one representative (the first registered participant) is allowed to speak, unless the moderator permits additional representatives to do so and sufficient time is available.
• The number of rounds or times that participants are allowed to speak depends on the number of participants who have registered.
• Comments or objections must address the specific subject of discussion.
• The moderator has the right to preserve the orderly development of the discussion, and may interrupt a participant if the commentary is not related to the topic of discussion or the participant’s time has passed.
• The public hearing is filmed and transcribed.
• The public hearing concludes once all registered participants have spoken or the scheduled time has expired.

3. Publication of Final Decision

After the conclusion of the consultation period, the regulator should publish a final decision. As shown in Figure 7-C, the majority of regulators worldwide publish their regulatory decisions. It is important that a final decision is issued within a reasonable period of time upon conclusion of the consultation period to ensure credibility and effectiveness of the decision-making process. An important measure of a truly transparent decision-making process is the publication of the regulator’s justification for its decision, as well as a summary and response to the comments and reply comments received during the consultation proceeding. This demonstrates to the public that the regulator has taken into account the input received during the public consultation process. For example, in the United Kingdom, Ofcom will provide reasons for its decisions and give an account of how the view of the interested parties shaped their decisions.25 Furthermore, requiring that the regulator provide reasons for their decisions forces them to engage in rational decision-making, gives parties the ability to analyse the decision and decide whether there may be grounds for review or appeal, and ensures the legitimacy and accountability of the regulator.

Today, many regulators post their regulatory instruments on their websites, as well as in the official government publication or gazette. For example, in Brazil, laws, decrees, decisions, regulations and other regulatory instruments related to Anatel’s competencies are published in the Official Gazette and posted on its website. In Venezuela, the telecommunications law mandates that the regulator establish and maintain a register of all administrative acts. Additionally, in various countries regulatory decisions are made public in national newspapers, television or radio and through postal mailings or e-mails to parties affected by the decision.26

Figure 7-C: Percentage of Regulatory Decisions Made Public Worldwide

Source: ITU World Telecommunication Regulatory Database 2005.27

ENDNOTES

1 See Cayman Islands Information Communications Technology (ICT) Authority, The ICT Authority Public Consultation Process, 12 May 2003, available athttp://www.icta.ky/docs/CD(2003)1a%20-%20Public%20Consultation.pdf. See also Anguilla Administrative Procedures Regulation, R.A. 21/2004, Part II (2004) available athttp://www.gov.ai/telecommunications/tel_policy.htm.

2 ITU Global Regulators Exchange Database, response by Stella Chan of OFTA on 29 November 2004 to the subject “Procedure for conducting open house discussion,” posted on 15 September 2004 by the Telecom Regulatory Authority of India.

3 Ofcom, How will Ofcom Consult? A guide to our consultation process, available on Ofcom’s website at http://www.ofcom.org.uk/consult/consult_method/consult_guide.pdf.

4 Irene Wu and Cathleen Xue, Decision-making procedures ethics rules: The practical enablers of integrity and impartiality in telecommunications regulation, Part II, 15 August 2002.

5 Id.

6 47 C.F.R. § 1.401 (2005).

7 Irene Wu and Cathleen Xue, Decision-making procedures ethics rules: The practical enablers of integrity and impartiality in telecommunications regulation, Part II, 15 August 2002.

8 How will Ofcom Consult? A guide to our consultation process, at http://www.ofcom.org.uk/consult/consult_method/consult_guide.pdf

9 South Africa, Telecommunications Act No. 103 of 1996, November 1996, Art. 96.

10 Bahrain Telecommunications Regulatory Authority, Consultation Process Regulation, 10 August 2003, available athttp://www.tra.org.bh/en/pdf/Consultation_Process_ERU_RN_001_v1.0.pdf.

11 Further information on the CRTC mailing lists and instructions on how to register are available on the CRTC website at http://www.crtc.gc.ca/eng/lists.htm.

12 47 C.F.R. § 1.413 (2005).

13 How will Ofcom Consult? A guide to our consultation process, at http://www.ofcom.org.uk/consult/consult_method/consult_guide.pdf.

14 Bahrain Telecommunications Regulatory Authority, Consultation Process Regulation, 10 August 2003.

15 See St. Vincent and the Grenadines National Telecommunications Regulatory Commission, Guidelines for Conducting Public Consultations, June 2003.

16 See Bahrain Telecommunications Regulatory Authority, Consultation Process Regulation, 10 August 2003. Under exceptional circumstances, the TRA may, but is not obliged to, invite additional comments, particularly to invite the opinions of other interested parties in relation to the comments received from specific interested parties.

17 Bahrain Telecommunications Regulatory Authority, Consultation Process Regulation, 10 August 2003.

18 International Telecommunication Union, Trends in Telecommunication Reform 2002: Effective Regulation, Chapter 6, Sec. 6.3.3.3 (2002).

19 Singapore Info-communications Development Authority, Code of Practice for Competition in the Provision of Telecommunication Services, Government Gazette S 87/2005, Article 1.5.1 (2005).

20 Bahrain Telecommunications Regulatory Authority, Consultation Process Regulation, 10 August 2003.

21 International Telecommunication Union, Trends in Telecommunication Reform 2002: Effective Regulation, Chapter 6, (2002).

22 See CRTC Public Process, available at www.crtc.gc.ca.

23 ITU Global Regulators Exchange Database, response by Handan Karacabey of the Telecommunications Authority of Turkey, on 4 December 2004 to the subject “Procedure for conducting open house discussion,” posted on 15 September 2004 by the Telecom Regulatory Authority of India.

24 ITU Global Regulators Exchange Database, response by Carlos Gomez, G-REX advisor, on 29 November 2004 to the subject “Procedure for conducting open house discussion,” posted on 15 September 2004 by the Telecom Regulatory Authority of India.

25 How will Ofcom Consult? A guide to our consultation process, at http://www.ofcom.org.uk/consult/consult_method/consult_guide.pdf.

26 ITU World Telecommunication Regulatory Database 2005.

27 ITU Survey on Transparency. There was a 100% response rate for each region, out of the 31 countries surveyed in the Americas, 41 in Africa, 28 in Asia Pacific, 19 in the Arab States, and 45 in Europe.