The legislative approach consists of developing legislation that responds to convergence, either in the immediate term or in anticipation of convergence trends. Legislative solutions define new laws or create new regulatory frameworks to respond to convergence and guide future policy direction. This can be done by developing and implementing a reform of the entire legal framework for telecommunications or by amendments to existing laws.
An advantage of the legislative approach is that it allows the introduction of a new framework to deal with convergence, without constraints imposed by other regulations or by the existing telecommunications law that may contain categories in which converged services do not fit. A new law or an amendment of an existing law aimed at addressing convergence through a technology-neutral approach with a simplified service category can eliminate contradictions and inconsistencies in regulatory classifications. This ultimately makes the regulator more efficient and effective.
Korea (Rep.) overhauled its
telecommunications legislation in 2008 in order to accommodate convergence
between telecommunications and television.
Under the previous legislative framework, the Korean Broadcasting
Commission held jurisdiction over television broadcasting while the Ministry of
Information and Communication (MIC) held jurisdiction over the ICT
sector.1 Since these regulatory
authorities could not come to agreement on the provision of real-time IPTV by
telecommunications operators, the converged technology was effectively banned
in the country. To remedy this issue,
the Korean Government passed a new law creating a converged regulator, called
the Korea Communications Commission (KCC), which has jurisdiction over both
television and telecommunications-related matters. In addition, the Korean Government enacted a
new law, entitled “Internet Multimedia Broadcasting Business Act” that specifically
addressed the licensing requirements and service obligations of IPTV.2 With
extensive build-out of broadband infrastructure, the new law facilitated fast
growth of IPTV services in Korea. By the
end of 2010, Korea’s IPTV market was the fourth largest in the world with about
3.65 million IPTV subscribers and was also the fastest growing IPTV market with
an increase of 54% between 2009 and 2010.3 By July 2012, the number of IPTV
subscribers in Korea had reached 4.42 million.4
When designing new legislative frameworks to address convergence, flexibility and foresight are critical elements. Given that the market of new services and technologies is extremely dynamic, legislators must be mindful not to develop legislation that may rapidly become outdated. Legislation should allow the regulator sufficient flexibility for interpretation so that solutions can be implemented as needed despite the evolving nature of convergence, and can do so without constricting future applications and technologies that could benefit the economy and consumer welfare.
In addition, the evolution of convergence, combined with the uncertainty about which technologies and services will succeed in the marketplace, requires a continuous review of the applicable legislation. Some jurisdictions, such as the EU and Malaysia, have established a permanent legislative review process to address convergence.5
Legislative approach through amendment of existing laws
Although a legislative approach commonly involves a modification of the entire legal framework, it may also be carried out through a process of amendments. Through an amendment process, policy-makers can obtain the feedback of industry, consumers and other affected parties for each amendment and address external input before carrying out the legal reform. The amendment process can be quite effective to address urgent convergence challenges without the time-consuming process required for an entire legal framework reform, and is useful to prepare industry and consumers for further regulatory changes. For example, in Hong Kong (SAR), the Government introduced numerous reforms by amending existing legislation, such as the Telecommunications Ordinance, as well as introducing new legislation including the Electronic Transactions Ordinance.6
Table 4-2 summarizes the advantages and disadvantages of the legislative approach.
1 Korea IT Times, Back-and-Forth
with IPTV (Sept. 30, 2006) at http://www.koreaittimes.com/story/2804/back-and-forth-iptv.
2 KCC, Internet Multimedia Broadcasting Business Act (2008) at http://eng.kcc.go.kr/user.do?page=E02090000&dc=E02040000.
3 Point Topic, Global IPTV subscription had a record 34.6% growth in 2010 (Mar.
23, 2011) at http://www.digitaltvnews.net/content/?p=18601.
4 IPTV News, Korea’s SK Broadband
reaches 1.2mn IPTV subs (July 11, 2012) at http://www.iptv-news.com/2012/07/koreas-sk-broadband-reaches-1-2mn-iptv-subs/.
5 Directive 2002/21/EC on a common
regulatory framework for electronic communications networks and services
(Framework Directive), Article 25, 7 March 2002, and Malaysia, Communications
and Multimedia Act 1998 (CMA), Section 122, available
6 OFTA Virtual Training Centre, ICT
Legislations, FAQ, at http://www.itu-coe.ofta.gov.hk/vtm/ict/faq/q1.htm.