The accountability of regulators can be monitored by implementing regulatory transparency and reporting regulatory activities to the government. Additionally, the regulator is also accountable to the public whose interests are affected by the regulator’s activities, so adequate mechanisms should be implemented to educate and protect consumers, and allow consumers to voice their opinions and concerns with the regulator. This section will provide an overview of different approaches to ensure the accountability of regulators.
Parliamentary oversight and judicial review
The accountability of regulators is determined by various factors, but principally by the organizational structure of the regulator and its place within the governmental structure. In many cases, telecommunications regulators report administratively to sector ministries or other governmental agencies.1 (See Figure 7-E below on Reporting Requirements.) Accountability can be facilitated if regulators adopt internal procedures to guarantee transparency in their activities (such as ensuring an open and participatory decision- making process through public consultations, as discussed in Section 7.2) and staff accountability, and by fulfilling obligations to report to the legislature which provides external control. Additionally, most telecommunications regulators have the obligation to provide annual reports to Parliament or other executive branch entities such as ministries. According to a recent ITU survey of 138 countries, 126 have reporting requirements to the sector ministry and/or the legislature.2 Only four countries, Brazil, Bahrain, Ecuador and Pakistan, have no reporting requirements.3
Figure 7-E: Reporting Requirements by Regulators
Source: ITU World Telecommunication Regulatory Database 2005.
The Canadian Radio-television and Telecommunications Commission (CRTC), which was established by Parliament in 1968, is a typical example of an independent public authority that reports to Parliament, in this case, through the Minister of Canadian Heritage. The accountability of the CRTC is addressed by various mechanisms. The CRTC must submit annual Departmental Performance Reports (DPR) to Parliament. These reports are based on specific principles contained in the DPR Preparation Guide and must reflect a comprehensive, balanced, and transparent picture of the organization’s performance for each fiscal year. This report is made available on the CRTC’s website.4 The CRTC also must prepare and publish its financial results in accordance with Treasury Board Guidelines and submit an annual report to the Standing Committee on Justice and Human Rights.
Additionally, Canada has implemented a “Proactive Disclosure” public policy so that all Canadians are better able to hold Parliament, their government, and public sector officials accountable. Under this policy, there is a requirement of mandatory publication on departmental websites of travel and hospitality expenses for selected government officials, contracts entered into by the Government of Canada, and reclassification of positions.
Procedures to overturn regulatory decisions
Another mechanism to ensure the accountability of regulators is to allow for appeals of regulatory decisions to a higher level in the regulatory and institutional framework. The legal framework for individual countries is of paramount importance when considering what mechanisms are available for appealing or overturning regulatory decisions. The effectiveness of the regulator can be undermined if the appeal process is closely linked to the executive branch, if regulatory decisions are put on hold or “stayed” during the appeal process, or if the appeal process is easily manipulated for the benefit of particular stakeholders.
In the first instance, the country’s telecommunications law usually articulates the general process for appeals or reconsiderations of the regulator’s decisions, and then the regulatory authority implements detailed internal procedures for reviewing and appealing administrative decisions. Clear and transparent appeal procedures enhance the independent regulator’s credibility and give operators and other stakeholders, including consumers, a sense of stability in the regulatory process.
(a) To whom regulatory decisions are appealed
Typically, regulatory decisions may be appealed to the regulatory authority itself as an initial step.5 After reconsideration by the regulator, the decision usually may be appealed to a higher authority, such as the sector ministry, or to a court. In the Philippines, for example, appeals of the National Telecommunications Commission Board’s decisions, rulings, orders, and resolutions can be filed with the Supreme Court.6 In many countries, including Malaysia and Nigeria, the regulator may require that all other remedies for review and appeal provided under the telecommunications law be exhausted before a person can seek judicial review.7 Sometimes regulatory decisions may be appealed to a specialized body established within the regulatory agency itself, such as an Appeal Tribunal or Appeal Board. For example, Hong Kong (SAR)’s OFTA has established an Appeal Board comprised of a chairman and deputy chairman that are “eligible to be appointed a judge of the High Court” and panel members who are not public officers. The decision of the Appeal Board is final.8 In Kenya, the Communications Act established an Appeals Tribunal with powers to adjudicate matters between the regulator and consumers, with powers of the High Court.9
When the appeal to the judiciary concerns policy matters or technical issues, the trend is for courts to defer to the specialized regulatory authority. Rather than making a decision on policy or technical matters, courts will often “remand” or refer a decision back to the authority for further review and action, sometimes indicating the scope of the further review.10
The ITU World Telecommunication Regulatory Database indicates that the judiciary has the authority to overturn a decision of the regulatory authority in almost two-thirds of the countries responding to the survey. Only 14 per cent of the respondents stated that the sector ministry had ultimate authority to overturn the regulator’s decisions. Appeals to other government authorities also may be possible. For example, in the Maldives, parties who believe that a decision by the regulator, the Telecommunications Authority of Maldives (TAM), adversely affects their interests may first appeal to the minister charged with the responsibility of telecommunications, and if the aggrieved party remains dissatisfied with the decision of the minister, then a petition of appeal may be presented to the President of the Maldives.11 The President’s decision is final and binding on the aggrieved person.
(b)Timeframe for an appeal to be filed and decided
The timeframe for aggrieved parties to file an appeal varies from 10 days, such as in the Dominican Republic,12 to 30 days, as in the United States.13 Countries such as Singapore, and the Philippines have deadlines of 14-15 days for filing an appeal against the regulator.14
The timeframe for resolving an appeal can range from under a month (e.g., 10 days from filing the appeal with the Dominican Republic regulator, Instituto Dominicano de las Telecomunicaciones (Indotel), to no specific timeframe (e.g., the United States). Most countries responding to the 2005 ITU World Telecommunication Regulatory Database indicated that they did not have a defined timeframe for resolving an appeal; among those which did have a timeframe, it was usually one to six months.
(c)Reasons for filing an appeal
An aggrieved party may file an appeal of a decision made by the regulatory authority in specific instances usually set forth in the telecommunications law. The reasons can be quite broad (any decision made by the regulator) or more narrowly focused to allow only procedural appeals. In New Zealand, for example, appeals from the Telecommunications Commission to the High Court are limited to questions of law.15 On the other hand, in the Philippines, the authority to appeal a decision is very broadly defined, where “a party adversely affected by a decision, order, ruling or resolution may, within 15 days from receipt of a copy thereof, file a motion for reconsideration.”16 In Hong Kong (SAR), the scope of an acceptable appeal is more carefully defined as:
(1) Any person aggrieved by:
(a) an opinion, determination, direction or decision of the Authority relating to:
(i) anticompetitive practices, abuse of position, misleading or deceptive conduct, and non-discrimination, or
(ii) any licence condition relating to any such section; or
(b) any sanction or remedy imposed or to be imposed under this Ordinance by the Authority in consequence of a breach of any such section or any such licence condition, may appeal to the Appeal Board against the opinion, determination, direction, decision, sanction or remedy, as the case may be, to the extent to which it relates to any such section or any such licence condition, as the case may be.17
(d) Effect of an appeal on a regulatory decision
The question of what happens to a regulatory decision during the appeal process can have a serious effect on the regulator’s ability to enforce its decisions. If decisions can easily be appealed and are stayed or put on hold, then parties have an incentive to appeal every decision of the regulator to delay the implementation process of new rules and regulations that might affect them. This is particularly true of incumbent operators when faced with new rules dealing with the introduction of new licensing regimes or competition.
When asked about the effect of an appeal on a regulatory decision in the 2005 ITU World Telecommunication Regulatory Database, the vast majority of responding countries reported that they either: (i) allowed a regulatory decision to remain in force while it is under appeal; or (ii) depending on the merits of the particular case, either permitted suspension of the decision (or a stay) or allowed a choice between putting the decision on hold or allowing the regulation to remain in force. Hong Kong (SAR) is an example of the latter case, where it is the subject matter of the appeal that determines whether the appeal suspends the operation of the decision.18 A much smaller number of countries, about ten per cent of those responding, automatically stay a regulation when it is undergoing an appeal process.19
ENDNOTES
1ITU World Telecommunication Regulatory Database 2005.
2 Id.
3 Id.
4 For the Fiscal Year 2003-2004 Departmental Performance Report see http://www.crtc.gc.ca/eng/publications/reports.htm.
5 According to the 2005 ITU World Telecommunication Regulatory Database, of the 71 responding countries, 70 responded that appeals were allowed to the regulatory authority (94 countries did not respond to the question).
6 See Part VII of the NTC Practices and Procedures Manual, available at http://portal.ntc.gov.ph/
7 See Malaysia Communications and Multimedia Act of 1998, Sec. 121. See also Nigerian Communications Act 2003, Art. 88 (3).
8 See Hong Kong (SAR) Telecommunications Ordinance, Gazette No. 26, Sec. 32M and 32Q (2000).
9 Kenya Communications Act 1998, Second Schedule.
10 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 [hereinafter WB/ITU, Dispute Resolution in the Telecommunications Sector].
11 Maldives Telecommunications Regulation, Art. 17 (2003), available at http://www.tam.gov.mv.
12 Dominican Republic General Telecommunications Law No. 153-98, Art. 96.1 (1998), available athttp://www.indotel.org.do/(mwdsynvni4l2o255jolhyna5)/ley_153-98.aspx.
13 47 C.F.R. § 1.276(a)(1) (2004).
14 See Hong Kong (SAR), OFTA Telecommunications Ordinance No. 36 of 2000, as amended by Ordinance No. 30 of 2003. See also Singapore, IDA Code of Practice for Competition in the Provision of Telecommunication Services 2005 (Telecom Competition Code), No. S87/2005, and Philippines, NTC Practices and Procedures Manual, Part VII, 1 May 1992.
15 New Zealand Telecommunications Act 2001, Art. 60, available at http://www.comcom.govt.nz/TheLegislation/Overview.aspxhttp://www.comcom.govt.nz/TheLegislation/Overview.aspx.
16 NTC Practices and Procedures Manual,at 129, 1 May 1992, available at http://www.ntc.gov.ph.
17 Section 32N of the Hong Kong (SAR) Telecommunications Ordinance, Gazette No. L.N. 98 of 2004, available at http://www.legislation.gov.hk/blis_ind.nsf/CurAllengDoc?OpenView&Start=106&Count=25&Expand=106#106.
18 Id.
19 It should be noted that 45 countries chose not to respond to this survey question so the conclusions were based on 120 responses.