1.6.1 Institutional arrangements

A spectrum regulator is buffeted by representatives of private sector stakeholders, some of whose interests are not fully aligned with the public interest. It has to retain the capacity for independent decision-making. This clearly requires the necessary authority and access information necessary to make that authority effective.

Secondly, it is something desirable to make the spectrum regulator independent of government in its day-to-day operations. This has the effect of making spectrum regulation free from political interference. As a result, operators may be more willing to invest in spectrum-using activities if they are to some degree protected from political pressure.

In practice, the institutional arrangements for spectrum regulators differ throughout the world, but broadly fall into two categories:

The regulator is an independent agency, normally established by statute, with specified powers and responsibilities, and
The regulator is part of a government ministry.

In the former case, the regulator regime may combine responsibility for spectrum regulation with regulation of broadcasting and/or regulation of the telecommunication sector (converged regulator). In the United Kingdom, for example, the task of regulating all spectrum was transferred in 2003 from the Department of Trade and Industry (part of Government) to Ofcom. In the United States, the Federal Communications Commission is responsible for regulating broadcasting and telecommunications and for those spectrum frequencies which are not used by the federal government. In Canada, spectrum regulation is the responsibility of the Industry Canada, a government ministry, while the telecommunications and broadcasting sectors are independently regulated by the Canadian Radio-television and Telecommunications Commission.

Two remarks can be made about the efficiency in these arrangements:

First, there is a good case for unified regulation of all spectrum by the same body to ensure a consistent and logical approach to all frequencies. This is shown by the adverse consequence of the bifurcated system in the United States, where there are two spectrum agencies, the FCC and the NTIA. The FCC is responsible for managing private sector spectrum including broadcasting and spectrum used by state governments; the NTIA is part of the Department of Commerce which is responsible for managing the US government’s use of spectrum. The involvement of both the FCC and the NTIA in the use and management of spectrum has resulted in major problems of co-ordination.
Second, combining spectrum regulation with broadcasting and telecommunications regulation creates a better basis for providing analysis of both sets of problems – for example – ensuring that spectrum is available simultaneously to support opportunities for new competitive broadcasting and telecommunication services. There is, however, the risk that the regulator of these two industries (broadcasting and telecommunications) may become captured by these two large groups of spectrum users to the detriment of other users of the spectrum with less contact with the regulator.

It must also be recognised that there are many gradations of independence from government. An independent spectrum regulator might be created, but it might be granted little authority over major allocation and assignment decisions, being instructed instead to focus, for example, on licence enforcement or monitoring. Equally, the staffing of an ‘independent’ agency might in effect make it an instrument of government.

Whether an independent agency or a government body is better for spectrum regulation is likely to depend on particular circumstances. In some countries, agencies may be more subject to capture by special interests, and regulation by government may be preferable while in other countries, government may be prove to interfere in regulatory decisions, for political or other reasons and in this may make it desirable to have an agency independent from governments, but operating within government policies guidelines making decisions.