TRAINING WORKSHOP ON EFFECTIVE REGULATION

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TRAINING WORKSHOP ON EFFECTIVE REGULATION

• INTERNAL PROCEDURES
• SOFIE MADDENS TOSCANO

Accra 4-8 July 2005
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AGENDA

• Benefits of Institutionalized Procedures
• Transparency of Conduct
• Transparency of Operations
• Transparency of Procedures

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Benefits of Institutionalized Procedures
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1. Benefits of Institutionalized Procedures

• Transparency in the regulators activities
• Accountability
• Credibility
• Increase in public participation
• Formalizes ad-hoc procedures and increases
  efficiency
• Reduces risk of litigation
• Creates uniformity in procedures
• Non-discrimination

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Transparency of Conduct
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2. Transparency of Conduct
Ethical Considerations

• To regulate objectively and efficiently as an
  independent regulator, the public must have
  confidence in the integrity and impartiality of
  the regulators individual officers and staff
• An agencys transparency and impartiality in
  decision-making could be jeapordized if its
  employees are seen to be influences by gifts from
  outside sources, financial and personal conflict
  of interest or post-employment prospects
• Ethical standards should stress
• Independence
• Impartiality
• Legality
• Honesty
• Transparency

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2. Transparency of Conduct
Ethics Framework

• Single Centralized Guideline for Civil Servants -
  e.g. Canada
• Guideline that functions as a General Ethical
  Framework, with supplemental guidelines for the
  individual agencies (in casu telecommunications)
  based on this framework which takes into account
  the specific functions and circumstances - e.g.
  Hong Kong, US, UK

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2. Transparency of Conduct
Approaches to Ethics

• Generally speaking, there are three approaches
  which apply to staff
• Avoidance of Conflict
• Rules on gifts
• Rules on confidentiality of information
• Rules on contact with media
• Disclosure of interests
• Prohibitions on Financial and Personal Gain
• Divestment of interests
• Resignation
• Recusal
• Post Employment

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2. Transparency of Conduct Avoidance of Conflict
Rules on Gifts

• The acceptance of gifts that are (seen to be)
  inappropriate is generally prohibited in all
  countries
• Exceptions
• Gifts which are low in monetary value
• Where the local custom mandates some form of
  gift-giving to show hospitality
• Where the employee has obtained prior permission
  from his superior

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2. Transparency of Conduct Avoidance of Conflict
Country Examples on Gift Rules

• Canada Gifts or other benefits which may
  influence employees in their judgement and
  performance of official duties must be declined.
  Employees may accept gifts of incidential value,
  customary hospitality and that do not give rise
  to appearance of conflict of interest or
  compromise the integity of governmment . In
  circumstances where it is not possible to refuse,
  the employee must inform his supervisor
  immediately.
• Ireland ComReg Policy is that
• Gifts from authorised operators subject to
  regulation by ComReg will be refused or, if
  delivered, will be returned immediately
• Gifts from providers/suppliers of services to
  ComReg other than unsolicited items of small
  intrinsic value (less than 100.00) such as
  diaries, calendars, bottles of wine/spirits -
  will be refused or, if delivered, will be
  returned immediately.

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2. Transparency of Conduct Avoidance of Conflict
Country Examples on Gift Rules

• Hong Kong Employees can accept gifts from
  sources and on accasions approved by regualtions.
  For example, they may accept gifts from a close
  relative or on occasions such as their wedding
  anniversary, where it is a customary tradition to
  give gifts. In other circumstances they must
  obtain specific permission. The Authority may
  either prohibit or permit the acceptance with
  condition.
• USA Employees may not accept gifts from
  proibited sources including persons seeking
  official action by the employees agency, persons
  regualted by the employees agency and persons
  that have interests that may be substantially
  affected by the employees official actions.
  Gifts are allowed where the vlaue of the gift is
  US 20 or less, or in some instances where gifts
  are truly given because of the personal nature of
  a relationship. If the employee accepts a
  prohibited gift, he may return the gift or pay
  its market value.

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2. Transparency of Conduct Avoidance of Conflict
Country Examples on Gift Rules

• Botswana Employees of the Authority shall not
  accept, or solicit, gifts, fees or hospitality
  from any person with whom they have official
  dealings, either in respect of services rendered
  ot in exchange for services to be rendered. Any
  such offer of gifts, or simlar considerations,
  must be reported promptly to the Executive
  Chairman.

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2. Transparency of Conduct Avoidance of Conflict
Rules on Treatment of Confidential Information

• Definition Confidential Information is
  information not generally available to the public
  or not known in its final version and not easily
  accessible
• Can be related to or include
• business plans
• commercial or trade secrets
• information subject to non-disclosure agreements
  etc.
• Information the disclosure of which would result
  in specific and direct harm to the party
  disclosing it or the party having the right to
  disclose such information

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2. Transparency of Conduct Avoidance of Conflict
Rules on Confidential Information Procedures
for handling such information

• Request for confidentiality must be made at the
  time of submission of the information
• Request for confidential treatment must indicate
• the nature of the information,
• reasons for withholding the information from
  public inspection,
• the specific harm that would result from public
  disclosure of such information,
• the period of time for maintaining
  confidentiality of the information

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2. Transparency of Conduct Avoidance of Conflict
Rules on Confidential Information Procedures
for handling such information

• Confidential portion of the document should be
  marked as such and submitted separately
• If regulator deems the information confidential,
  it must only publish the abridged version of the
  document and protect the confidential portion
  from public access

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2. Transparency of Conduct Avoidance of Conflict
Rules on Confidential Information Country
Example ComReg (Ireland)

• Respondents who supply information and
  observations to ComReg are asked to supply a
  non-confidential document, with any information
  for which confidentiality is claimed supplied in
  a separate annex. This is particularly important
  as ComReg intends to publish respondents
  submissions on its website.
• Where a respondent supplies only a document for
  which confidentiality is claimed (in other words,
  where the request as described above has not been
  complied with), or where the document contains
  various paragraphs or other material spread
  throughout the document which are alleged to be
  confidential, the following procedure will apply
• In the first place ComReg will request that a
  non-confidential version be supplied within a
  short timescale, usually seven days.
• If the respondent fails to supply a
  non-confidential version within the stipulated
  timescale, ComReg will assess the information
  supplied to see whether, as a matter of fact and
  law, the material is confidential.

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2. Transparency of Conduct Avoidance of Conflict
Rules on Confidential Information Country
Example ComReg (Ireland)

• Where ComReg determines that the material has the
  necessary quality of confidence for it to be
  confidential, ComReg will apply the tests laid
  down by law, which are based on the following
  criteria
• Whether the material is material which the
  respondent believes would be injurious to him (or
  advantageous to his competitors or others) if it
  were released.
• Whether the respondent believes the material to
  be confidential.
• Whether that belief is reasonable.
• The usages and practices of the communications
  sector with regard to the material in question
• If ComReg concludes that the material is not
  confidential it will so inform the respondent and
  give reasons for the conclusion it has reached.

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2. Transparency of Conduct Avoidance of Conflict
Rules on Confidential Information Country
Example ComReg (Ireland)

• If ComReg proposes to publish the material in
  question, it will give the respondent a period of
  seven days within which to make representations.
• In urgent cases, the period of seven days may be
  abridged. If the period is abridged ComReg will
  state the reasons for this.
• Having considered any representations which the
  respondent has made, ComReg may publish the
  material in question if it considers that the
  case for confidentiality has not been made out.
  Before publishing the material ComReg will notify
  the respondent of the date on which it proposes
  to publish.
• Where ComReg does publish the material, it will
  state its reasons for so doing.

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2. Transparency of Conduct Avoidance of Conflict
Rules on disclosure of information and contact
with industry and the media

• BTAs Conditions of Service
• Except with the prior authority of the
  Executive Chairman, no employee of the Authority
  shall issue any press statement, or take part in
  any public debate or discussion, on any matter
  relating to the business of the Authority or
  purporting to express the views of the Authority
  in any manner.
• ComReg Regulation Act
• Staff shall not at any time, except in the
  proper performance of duties, whether during or
  after the termination of employment, disclose to
  any person, firm, or company whatsoever any
  confidential information or any other information
  relating to the business of ComReg, affairs or
  activities of which he/she has or shall hereafter
  possess or acquire in the course of employment.
• Staff undertake not to give any interviews or
  information to the media, electronic, print or
  otherwise in relation to ComReg without the
  consent of a member of the Commission.

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2. Transparency of Conduct Disclosure of
Interest

• Definition Generally include rules relating to
  potential conflict due to family connections
  and/or relationships, personal affiliations and
  financial interests
• Basis Authorizing Legislation and Code of
  Conduct

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2. Transparency of Conduct Disclosure of
Interest

• Country Examples
• Morocco the group of designated individuals
  meaning one of the two classes of members of the
  Conseil dAdministration, is subject to
  prohibitions on holding a personal interest in a
  telecommunications or information technology
  company
• Botswana Board Members are always required to
  declare their interests in any matter before the
  Board and may be asked to recuse themselves.
• South Africa The Telecommunications Act
  stipulates that a councillor may be disqualified
  if that person, or any family member, hold a
  direct financial or controlling interest in any
  company in the industry.

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2. Transparency of Conduct Disclosure of
Interest

• Country Examples
• Canada Other than those permitted, employees
  are not to have private interests in companies
  whose interests are affected by government
  decisions. The employees must make a
  confidential report to a designated official of
  all assets prescribed by the code. They include
  any assets or liabilities that could give rise to
  real or potential conflicts of interests due to
  the particular nature of the employees duties
  and responsibilities. Finally, employees should
  not assist others in their dealings with the
  government that could result in preferential
  treatment.
• Hong Kong All OFTA employees are required to
  declare upon appointment and bianually personal
  information, including domestic and foreign
  investments and investments and occupation of
  spouse. Investments in telecommunications
  companies are strongly discouraged but not
  prohibited. Direct investments in
  telecommunications companies must be disclosed,
  indirect investments are permitted. The employee
  must report to a direct superior when a potential
  conflict is identified.

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2. Transparency of Conduct Post Employment
Guidelines

• Aim
• To maintain the independence of a government
  officials decision-making process
• To prevent suspicion that an officer might be
  influenced by the hope or expectation of future
  employment
• To avoid the risk that a particular Firm might
  gain an improper advantage over its competitors
  by employing someone who had access to
  information on the competitor through official
  capacities
• Guidelines
• Requirement to report an outside appointment if
  there is a potential conflict
• Generally applies to companies with whom employee
  had significant contacts with while in
  employment, or companies which were party to a
  matter which the employees department was in
  charge of resolving
• Timing Canada, US, UK one or two years after
  employment or in the case of UK and US, 3 months
  and 1 year respectively for high level officials

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Transparency of Operations
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Transparency of Operations

• Information Disclosure on Regulator Activities
• Annual reports
• http//www.opta.nl/asp/en/newsandpublications/annu
  alreports/
• http//www.bakom.ch/en/medieninfo/geschaeftsberich
  t/index.html
• http//www.odtr.ie/pr_annual_reports.asp
• Management Plan/Work Plan
• http//www.ucc.co.ug/profile/uccbplan2001.pdf
• PR Brochures and other tools (e.g. media,
  workshops, seminars, involvement in academic
  activities) to make public Regulator Activities

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Transparency of Operations

• Transparent and Publicly available operation
  rules and procedures, e.g
• Office hours
• Published Rules of proceeding
• Publication of Meeting schedules, agendas,
  outcomes
• Information on enforcement of procedures
• License application forms and rules,

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Transparency of Decision-Making Procedures
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Decision-making Procedures

• Principles
• Encourage public participation in regulators
  decision-making process
• Publish advance notice of upcoming proposals or
  decisions e.g. FCC Notice of Inquiry or
  Discussion Papers (assists the regulator
  determine its position or gather additional
  information on a specific issue prior to issuing
  a formal consultation document)
• Directly notify stakeholders (email, post, press,
  media, radio)
• Hold open press conferences or public hearings
• Fund public participation
• Set up specific call centers or other
  communications centers for stakeholders e.g.
  Anatel in Brazil has fully staffed and equipped
  Citizen Rooms and costumer call centers
  throughout the country to encourage and
  facilitate communication with the public
  regarding Anatels activities
• Obtain public feedback
• Formal or informal
• Need for consistent and predictable practices
• Address public concerns on particular issues
  before the regulator
• Avoid policy fatigue
• Explain and Justify reasons for decisions

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Decision-making Procedures

• Main Stages
• Commencement e.g. by issuing a public notice
  regarding the proposed decision-making activity
  and requesting public feedback
• Public Consultation is conducted
• Evaluation of comments received
• Issuance of Final Decision
• Appeal Procedures

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Decision-making Procedures

• Why is it commenced?
• Whenever there is a requirement by law for the
  regulator to issue a decision
• Upon the regulators own motion and view that a
  certain rule requires consideration, adoption,
  amendment, repeal or replacement
• Upon request filed by an interested party which
  the regulator agrees to consider

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Decision-making Procedures

• Exceptions
• Any matter relating to the national security
  function of the regulator
• Matters relating to the regulators internal
  management, organizational structure, financial
  affairs or contracts pertaining thereto
• Decision to amend typographical mistakes or minor
  errors that do not affect the substance of the
  instrument or rule in question

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Public Consultations
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Public Consultations

• Provide due process and opportunity for parties
  affected by the regulators decision to comment
  on the issue
• Increase transparency and regulatory
  accountability
• Force regulator to provide reasoning to support
  and substantiate its decisions

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Public Consultation Procedure

• Five Main Stages
• Invitation to participate
• Consultation period and receipt of comments
• Analysis of comments
• Publication of Decision or Rule in final form
• Appeal of Decision

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Invitation to Participate

• Usually published on the regulators website
  and/or in newspapers of wide circulation and in
  any other manner the regulator sees fit
• Consultation Document will generally include
  details such as
• Format and method for submission of comments
• Timeframe to submit comments and reply comments
• Language of submission of comments
• Title, date and number assigned to the
  consultation proceeding
• Reference to the authority under which the
  issuance, amendment or repeal of a rule is
  proposed
• Terms and substance of the proposed rule or
  description of the issues involved

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Consultation Period

• Comments should be submitted on or before the
  specified deadline
• Timeframe for receiving comments vary
• Bahrain at least 28 days from publication of
  consultation
• UK usually 10 weeks for comments, shorter
  consultations may be restricted to 5 weeks
• Regulator may invite additional rounds of
  comments where necessary

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Analysis of Comments

• Regulator may decide to conduct public hearings
  in addition to receiving written comments
• Regulator may also decide to consult with experts
  in academia or the industry on more complex
  issues
• Comments and reply comments are usually published
  on the regulators website, taking into account
  confidentiality of the information submitted

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Publication of Decision

• Regulator should consider all relevant comments
  in issuing its final decision
• Submission of a comment, however, does not bind a
  regulator to make a decision in conformity with
  that comment
• Decision should be published in the official
  government publication and posted on the
  regulators website

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Appeal Procedures
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Appeal of Decision

• Main issues
• Timeframe for appeal
• Avenues of appeal
• Whether appeal stays the decision

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Appeal of DecisionCountry Examples

• Singapore
• Parties have 14 days from publication of decision
  to either request a reconsideration from the IDA
  or file an appeal with the Minister
• IDA will seek to issue its decision on the
  reconsideration within 30 days of when it issued
  its original decision
• Unless IDA provides otherwise, the decision which
  requires reconsideration shall be complied with
  until such time, if ever, as IDA or the Minister
  reverses or modifies the decision

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Appeal of DecisionCountry Examples

• US
• After FCC has publicly released its initial
  decision, interested parties who disagree have 30
  days to file an exception
• Pursuant to filing of an exception, the initial
  decision will not become effective while the FCC
  reviews the case
• If no exceptions are filed and the FCC has not
  ordered a review of the initial decision, the
  initial decision will become a final decision 50
  days after it is issued.

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• Thank you for your attention!
• Sofie Maddens Toscano
• Senior Regulatory and Policy Advisor
• Telecommunications Management Group Inc.
• 1600 Wilson Blvd., Suite 710
• Arlington, VA 22209
• USA
• Tel [phone] Fax [phone]
• Email sofie_at_tmgtelecom.com