This function consists of the regulator’s ability to monitor the performance of telecommunications companies and ensure compliance with the telecommunications regulation and other subordinate rules. To ensure the effectiveness and transparency of the oversight function, regulators must put in place detailed subordinate guidelines such as dispute resolution and enforcement procedures.
Dispute resolution regulations generally include procedures for handling and resolving disputes between: (i) licensees and consumers; (ii) licensees, and (iii) the regulator and investors, operators or service providers.
Additionally, to ensure compliance and enforcement of regulations and licence conditions, the regulator must have the authority to investigate the activities and company records of all service providers when needed, and to impose penalties for violation of laws, regulations or licence conditions. This need is accentuated in markets transitioning to a competition market. Here, the regulator must focus on facilitating the development of the marketplace to ensure that the market power of previous monopolies, or dominant players, does not damage the prospects and opportunities for commercial development in the sector by the newer participants. In these conditions, incumbents have clear incentives to delay the entry of such new market players (e.g., by obstructing interconnection) in order to prolong their dominance. Therefore, the overall success of a regulator’s mandate is directly related to the adequate discharge of oversight powers in order to track the performance of incumbent operators, as well as their compliance with regulatory obligations.
Generally, regulations regarding monitoring and enforcement include procedures for conducting investigations regarding violations, determining fault standards, imposing penalties, requesting the regulator’s review of enforcement decisions, and submitting appeals to the regulator or to the courts.
The following are examples of various procedures implemented by regulators as part of their oversight functions (Box 7-2):
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Box 7-2: Procedure to request information from market players and the public
Regulators have implemented internal procedures and guidelines to ensure that information requests to stakeholders and the public are issued in accordance with pre-established parameters. These information requests are to effectively monitor and analyse telecommunications markets.
Peru
The regulator, Organismo Supervisor de Inversión Privada en Telecomunicaciones (OSIPTEL), has oversight functions that include the power to request information from both public and private parties. For instance, OSIPTEL may request telecommunications companies to provide information regarding items such as their financial records, customer contracts, and installed infrastructure. Any information provided to OSIPTEL in response to its request will be considered as having been submitted in the form of a sworn legal statement. If the information provided is incomplete, unclear or equivocal in any way, the providing party may be deemed in breach of its statutory obligation to supply information and documentation to OSIPTEL.1
Portugal
Regulators have also implemented oversight procedures allowing their personnel to access a licensee’s premises. Portugal’s regulator, Autoridade Nacional de Comunicações (ICP-ANACOM), for example, has regulations governing the inspection of a licensee’s premises or sites.2
Article 12 - Exercise of Oversight
1. Under terms of the law, ICP-ANACOM may proceed with inquiries and tests at any site or entity within the scope of those functions.
2. For effects of the aforementioned paragraphs, ICP-ANACOM may accredit especially skilled or qualified persons or entities.
Article 48 - Supervisory Functions
ICP-ANACOM’s workers, respective attorneys and the qualified and duly accredited personnel or entities who perform oversight functions, when exercising their functions, shall be considered agents of the authority and thus shall enjoy the following prerogatives:
- Access to installations, equipment and services of entities subject to inspection and control by ICP- ANACOM;
- Authority to requisition documents and analysis, as well as material to conduct tests;
- To identify, for subsequent action, all individuals who violate the laws and/or regulations whose observance they are obliged to respect;
- To demand the collaboration of the proper authorities when deemed necessary for the performance of their duties.
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(a) Enforcement
The regulator must be given sufficient power to enforce telecommunications laws and regulations, and must have the ability not only to enforce rules of general applicability, but also to issue directions and mandate operators to carry out or to stop a particular activity. The Telecommunications Regulatory Authority (TRA) of Bahrain provides a good example of the necessary tools that regulators must have to carry out their responsibilities. Among other rights, the TRA has the power to:
- Issue regulations, orders and determinations as necessary to implement the provisions of the Telecommunications Law;
- Monitor and enforce compliance with licence terms;
- In coordination with the Radiocommunications Authority, monitor and enforce spectrum usage in accordance with the Telecommunications Law and to ensure efficient spectrum usage;
- Encourage, regulate and facilitate adequate access, interconnection and interoperability of services, including enforcing sharing of facilities and property by operators;
- Examine complaints and resolve disputes between licensees, subscribers, and other interested parties, as well as take any necessary and proportionate measures in relation to such matters.3
Except in emergency cases, if a TRA enforcement action is expected to have a material impact on a particular telecommunications market, it must give affected parties an adequate opportunity to submit comments on the planned action.4
(b) Sanctions
The ability to sanction operators is closely related to enforcement and consists of the ability of the regulator to establish a fault standard for violations as well as the level of fine applied due to the violation. Most regulators’ competencies include the ability to impose sanctions in order to enforce compliance with applicable laws, regulations, and licence conditions. See Section 7.4 for a detailed discussion on dispute resolution, enforcement, and sanctions issues.
ENDNOTES
1 OSIPTEL Regulations Law No. 27336, Articles 16, 18 and 19, 5 August 2000.
2 Portugal, Decree-Law no. 309/2001, 7 December 2001.
3 Bahrain, Legislative Decree No. 48 of 2002 Promulgating the Telecommunications Law, Chapter 2, Section 3 (c).
4 Bahrain, Legislative Decree No. 48 of 2002 Promulgating the Telecommunications Law, Chapter 2, Section 3 (f).