Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts
description
Transcript of Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts
![Page 1: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/1.jpg)
1
Transparency in Communications Regulation:
Suggestions for RATEL
Part I: Basic Concepts
Michael J. Marcus, Sc.D., FIEEEMarcus Spectrum Solutions
Paris France
![Page 2: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/2.jpg)
2
Outline
• Why Transparency• Basics of Transparency• Why Waivers are Important
![Page 3: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/3.jpg)
3
Why? (1)
• Transparency encourages capital formation & investment - both domestic and foreign– May actually be necessary for significant
direct foreign investment• Investment/capital formation key to job creation
and GDP growth• National economies compete for DFI inflow• Important for technical innovation and improved
competitiveness
![Page 4: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/4.jpg)
4
Why (2)
– Discourages capital flight/exodus• Russian example shows how lack of
transparency discourages capital formation
• Lack of transparency can make– excess immediate consumption and – leaks of capital for more predictable foreign
markets a rational response!
![Page 5: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/5.jpg)
5
Macroeconomics of Telecom
• Telecom is a large industry in its own right
• Telecom is a basic commodity in today’s economies – its cost and efficiency can enhance or
decrease national productivity• New information/telecom services can
enable whole new industries– If not forbidden by overprotective
nontelecom regulations
![Page 6: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/6.jpg)
6
Legal System Issues
• US has common law legal system which differs from civil law (Napoleonic) model
• Some aspects of US transparency practice have been established by court decisions
• A civil law society would have to adopt such practices through a different mechanism
• Transparency issues should be considered on their merits, not how they were adopted
Seal of King John on original Magna Carta.
Magna Carta
![Page 7: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/7.jpg)
7
Transparency Approach
• Will use examples of personal familiarity– US practice– Former Japanese practice as observed while on exchange
to Japanese regulator in 1999
• US practice is appropriate for US environment and not fully applicable to other legal systems and environment
• Japanese system has evolved in recent years
![Page 8: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/8.jpg)
8
Woodrow Wilson’s 14 PointsAn Early Statement of Transparency
• “I. Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.”
January 8, 1918 http://www.lib.byu.edu/~rdh/wwi/1918/14points.html
![Page 9: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/9.jpg)
9
Basics of Transparency
• “Open regulations, openly arrived at, openly enforced” – Regulations should be publicly available
without special request– Adopted in open deliberations– Regulations should be comprehensive
enough to cover normal situations• Coverage of all situations impractical in practice
– Regulations should be enforced as consistently as possible
• Otherwise not credible
![Page 10: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/10.jpg)
10
Structural Issues
• Basic Issues:– Independent agency or not?– Scope of jurisdiction– Involvement in R&D
![Page 11: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/11.jpg)
11
Organizational Issues• Different
countries have various approaches to organizing NRAs
• R&D issue is important & controversial– Should
regulator fund R&D?
Country Agency Jurisdiction R&D?Ofcom Spectrum,broadcasting
telecomNo
総務省 Ministry of Internal Affairs and Communications
Spectrum,broadcastingtelecom
Yes
Industry Canada Spectrum, nonbroadcast licensing, technical telecom issues
Yes
Canadian Radio-television & Telecommunications Commission
Broadcast ownership and content, telecom ownership and pricing
No
Federal Communications Commission
Non-Federal Government spectrum use, telecom, broadcasting
No
National Telecommunications and Information Administration
Federal Government spectrum use
No
![Page 12: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/12.jpg)
12
Structural “Checks & Balances”• US regulatory agency decisions can be
appealed to court system with consideration based on:– Constitutionality– Jurisdiction authorized by law– Were transparency steps follows– NOT (in theory and usually in practice) on
whether agency considered facts correctly• Appeal possibility discourages arbitrary
action & enhances transparency
![Page 13: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/13.jpg)
13
US Court Review of Regulatory Agencies
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof…” 5 USC 702
![Page 14: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/14.jpg)
14
US Court Review of Regulatory Agencies
“To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed; and(2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” 5 USC 706
![Page 15: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/15.jpg)
15
• FCC also permits “petitions for review” and “petitions for reconsideration”– Any action taken by the staff under
“delegated authority” can be - and often is - appealed to the full Commission
– Any action by the full Commission may be appealed based on new information
• For example, final rule may address details not fully covered in proposal and which raise new issues
Structural “Checks & Balances”
![Page 16: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/16.jpg)
16
• While Japan, for example, allows similar reviews, cultural and institutional issues discourage most appeals– FCC participates in 2-4 court appeals each
month• Effective review and appeal process is
important to transparency
Structural “Checks & Balances”
![Page 17: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/17.jpg)
17
“Open Regulations” (1)
• What regulations apply on a specific date?– When US federal government regulatory
role expanded in 1933+ “New Deal”, one of the first decisions was to establish Federal Register and Code of Federal Regulations
– FR, a daily publication, contains new regulations and effective date
– CFR, updated annually, gives “snapshot” of all regulations
![Page 18: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/18.jpg)
18
“Open Regulations” (2)
– Allow ready determination of effective rules on a specific date
– With Internet, other options are possible BUT will lose credibility unless implemented with absolute integrity and accountabilit y
• Needs a clear and credible “audit trail” to keep credibility similar to paper technique
• Concern: Surreptitious modification of regulations
![Page 19: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/19.jpg)
19
“Open Regulations” (3)
– Why should regulations be available without special request?
• Need for special request or viewing only at government offices is intimidating and damages credibility - Why does government want to know who is viewing regulations?
– Why not publish only basic issues and then maintain flexibility for administration?
• Destroys credibility
![Page 20: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/20.jpg)
20
“Open Regulations” (4)Observations from Previous Japanese Practice
• Before recent advances in transparency, Japanese agencies published regulations (shourei and seirei) and “judgment standards” (shinsei kijun)– Regulations were very vague addressing
issues like new radio licenses should not cause interference
![Page 21: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/21.jpg)
21
“Open Regulations” (5)Observations from Previous Japanese Practice
– Under Japanese law, “judgment standards” were available for inspection - but only at offices of regulator.
• Asking for document may raise suspicions• Bureaucrats not educated in legal requirement
for public inspection and so intimidated people seeking document
![Page 22: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/22.jpg)
22
“Open Regulations” (5)Observations from Previous Japanese Practice
• But “judgment standards” did not even give the real criteria– Focused on what data and analysis had to
be submitted, e.g. power contours and D/U ratios
– Bust what was acceptable D/U with respect to an existing station?
– Was in a 20 years old committee report!– Do applicants know it? - “Some applicants
know, some don’t”
![Page 23: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/23.jpg)
23
“Openly Arrived At”
• Creating new regulations in a transparent way
• Public petitions for change should receiver some real consideration
• Rule changes should be proposed with explanation of why they may be needed, nature of proposed change, and sincere interest in public comment
![Page 24: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/24.jpg)
24
“Openly Arrived At”
• Allow reasonable time for public comment and possibly “reply comments” - comments on comments of others– FCC usual minimum 30 days and 15 days,
• US law does not require reply comments• Some agencies have only one round of comments• Reply comments usually help clarify issues
– Usually longer for complex issues– Including specific questions in proposal can be
helpful
![Page 25: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/25.jpg)
25
“Openly Arrived At”
• US law does not require full details/text of proposals be published– Often impractical to give full text due to
pending questions– Proposal should be clear enough to permit
effective comments– Practice varies within parts of FCC
• Technical proposals usually complete
![Page 26: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/26.jpg)
26
“Openly Arrived At”• Website use for comments• In US all comments must be made public promptly
with rare exceptions– UK allows comments to be with held– FCC allows both web-based comment submission and
physical submission– FCC comments posted on website within a few hours
• After review for spam and obscenity• In rare cases of massive e-mail campaigns, repetitive
comments are not posted online but available for review at FCC
![Page 27: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/27.jpg)
27
• Ex Parte Procedures– Unlimited ability of interested parties to
discuss pending decisions with agency personnel outside of public view may undermine agency credibility
– Need to balance reasonable access to public and transparency
– Although not required by US law for rulemakings, all US agencies adopted ex parte rules in 1970s
“Openly Arrived At”
![Page 28: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/28.jpg)
28
• Ex parte procedures– For some legal issues no verbal
discussions allowed, all contact much be in writing
• Applies to “adjudications”: enforcement actions, license awards, challenges to licenses, etc.
• Agency may permit on a case-by-case basis with justification
• Prohibition does not apply to rulemakings
“Openly Arrived At”
![Page 29: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/29.jpg)
29
• Ex parte procedures for rulemakings– All contact between agency personnel and outsiders who
have a position on outcome of proceeding must be documented in the public record
– Does not apply to status inquiries – Does apply to outside agencies, except agencies with
overlapping jurisdiction, and legislators– Most agencies document the contact with a memo written by
agency staff but FCC requires outsiders to file memo by the next working day.
“Openly Arrived At”
![Page 30: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/30.jpg)
30
• Ex parte procedures for rulemakings– Enhances credibility of transparency– If new issues are brought up in discussions
or new data provided the public disclosure enables others to review new material and rebut it if necessary
– Speeds convergence of parties as everyone knows what the current debate is
“Openly Arrived At”
![Page 31: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/31.jpg)
31
“Openly Enforced”
• Enforcement of rules should be consistent, fair, and objective– But a transparent approaches to
waivers/special cases is essential also to make the whole process work
![Page 32: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/32.jpg)
32
• Same rules should consistently apply to all entities all the time
• Enforcement is more credible if enforcement personnel are more isolated from politics than policy makers
• Enforcement should encourage confidential complaints as well as public complaints– And adequately protect source of confidential complaints
“Openly Enforced”
![Page 33: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/33.jpg)
33
• Enforcement actions should be subject to reviews and appeal like policy deliberations
“Openly Enforced”
![Page 34: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/34.jpg)
34
Waivers
• Waiver - allowing dispensation from a stated rule under special circumstance
• But aren’t waivers just a contradiction of “open enforcement”?
![Page 35: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/35.jpg)
35
• Waivers are not specifically authorized by US law, but since US has a “common law” legal system the concept was created by the courts
• Concept also applicable and important to civil law systems but has to be created consistent with basic legal system concepts
Waivers
![Page 36: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/36.jpg)
36
• Regulatory system faces a delicate balancing act– Be clear enough to be transparent– Be flexible enough to handle all cases -
including cases that evolve from rapidly changing technology and other circumstances that could not have been reasonably expected when rules were drawn
– Transparent rule development is always slow
Waivers
![Page 37: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/37.jpg)
37
• " A regulation which is not required by statute may, in appropriate circumstances, be waived and must be waived where failure to do so would amount to an abuse of discretion" NTN Bearing Corp. v. US 74 F3d 1204,1207 (Fed. Cir. 1995).
Waivers - Court Decisions
![Page 38: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/38.jpg)
38
Waivers - Court Decisions• "The court's insistence on the agency's observance of its
obligation to give meaningful consideration to waiver applications emphatically does not contemplate that an agency must or should tolerate evisceration of a rule by waivers. On the contrary, a rule is more likely to be undercut if it does not in some way take into account considerations of hardship, equity, or more effective implementation of overall policy, considerations that an agency cannot realistically ignore, at least on a continuing basis. The limited safety valve permits a more rigorous adherence to an effective regulation…. We have examined the significance of the waiver procedure and pointed out that it is not necessarily a step-child, but may be an important member of the family of administrative procedures, one that helps the family stay together." WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969)).
![Page 39: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/39.jpg)
39
• FCC waivers must articulate an "appropriate general standard," show special circumstances warranting a deviation from the general rule, and show such a deviation will serve the public interest. Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969)).
Waivers - Court Decisions
![Page 40: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/40.jpg)
40
• Simplest reaction to flexibility issues is to keep rules vague and have staff interpret them “creatively”– But this is inconsistent with basic
transparency goals• Challenge is to bring in flexibility while
maintaining transparency• Similar issues apply to
interpretations/questions on rules
Waivers
![Page 41: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/41.jpg)
41
• In FCC practice waivers can be specifically requested or considered sua sponte if agency decides that a pending request is inconsistent with rules but worthy of consideration due to special circumstances
• Multiple waivers on same issue indicate a rule problem that must be addessed
Waivers
![Page 42: Transparency in Communications Regulation: Suggestions for RATEL Part I: Basic Concepts](https://reader036.fdocuments.us/reader036/viewer/2022081520/56815bc6550346895dc9bedd/html5/thumbnails/42.jpg)
42
• While agency does not have to ask for public comment on waivers, in practice comments are requested on waivers that set a significant precedent or will have a broad impact– Also minimizes threat of court review
• Text of waivers (and rule interpretations) are made public
Waivers