the building blocks of a national regulatory authority 05 th march 2013 dr nicholas borg mca –...

The Building Blocks of a National Regulatory Authority

05th March 2013 Dr Nicholas BorgMCA – Legal Advisor

Objective of presentationProvide overview of:

- The Role of the National Regulatory Authority and its Enforcement Powers

- Overview of the MCA and its Structural Set-up

- Challenges faced by the MCA

- Convergence of Roles: Competition Law & other powers/Ministerial powers

- Electronic Commerce to transform business; Guides and Take up

- Overview of the Telecoms Regulatory Framework: recent changes and why they were introduced

The National Regulatory Authority

- Advent of the NRAs across the EU in the 1990’s (liberalisation policy)

- Following the adoption of several EU directives that liberalised important sectors such as electronic communications (previously telecommunications), postal services, transport and electricity, regulation by NRAs rapidly became the most important mode of regulation.

- Liberalisation = innovation and competition in electronic communications = Sector-specific, independent institutions established to perform regulatory functions in the context of new ICT policy frameworks.

The National Regulatory AuthoritySo why were NRAs introduced and what is their mandate?

- National regulatory authorities were established in order to ensure non-discriminatory treatment of all players in the liberalised market by:

Cooperation Equal treatment Level playing field Customer care

- The Framework Directive requires all MS to have a NRA and most MS have NRAs that have been active for a rather long time.

- An NRA’s mandate is the application of national sector specific legislation (generally)

- NRAs in the liberalised utility markets have a significant role in policy making and policy enforcement.


What is the role of an ICT NRA?

Regulating competition

Implementing the authorization framework

Interconnecting networks and

facilities

Universal Services

Consumer Protection

Minimize cost and burden of regulation

Spectrum Management

The National Regulatory AuthorityWhat are the Key elements for an effective NRA

Legally Distinct

Transparent

Impartial

Functionally Independent

Accountable


How are the key elements achieved?

- Distinct statutory authority, free of ministerial control- Professional criteria for appointments and their removal (e.g. misconduct)- Appointing members for a fixed period of time - Prohibiting their removal (due cause)- Providing a reliable and adequate source of funding (e.g. Fees/charges for

specific services can be used insulating the NRA from political interference)- Permitting the regulator to offer non-civil service salaries- NRAs decisions should be absolute (subject to new legislation or appeals)- Right of Appeal- Consulting- Publishing decisions, reports and statutes


The Malta Communications Authority (MCA) and its Role

The MCA was established on the 1st January 2001.

MCA is the statutory body responsible for the regulation of the electronic communications sector (telecommunications, radiocommunications and broadcasting transmission), ecommerce and the postal sector in Malta.

More recently, the MCA became the responsible body for the implementation of national strategies and initiatives aimed at addressing the digital divide and proliferating the use of ICTs amongst private citizens and businesses.

A complete revolution achieved in an evolutionary manner

1995

2001

2003

2004

2006

2011

1997

2006

2001

First ISPs enter the Market

Liberalisation policy adopted – partial privatisation of MaltacomSplit between regulatory and operational functions

MCA established

Broadcasting market liberalised

Fixed telephony market fully liberalised

EU accession - Current legal framework adopted

Competition in broadcasting

Full privatisation of Maltacom - Competition in fixed telephony

Revised framework in place

2000 Competition in the mobile sector

2011 Switch from analogue to digital broadcasting


The Malta Communications Authority (MCA) Mission statement

‘To regulate the electronic communications, ecommerce and postal sectors with a view to achieving sustainable competition, enabling customer choice and value-for-money; To facilitate the development of an environment that is conducive to investment, innovation and continued social and economic growth.’

This goal is to be attained in a Transparent, proportionate, non-discriminatory and objective manner.


The Malta Communications Authority (MCA) and its Regulatory framework comprises

The MCA's mission, mandate and functions derive from:

- The Malta Communications Authority Act (Cap. 418 of the Laws of Malta)

- Electronic Communications (Regulations) Act (Cap. 399)

- Electronic Communications Networks & Services [General] Regulations (SL 399.28)

- Postal Services Act (Cap. 254)

- Postal Services [General] Regulations (SL 254.01)

- Electronic Commerce Act (Cap. 426)

- Electronic Commerce [General] Regulations (SL 246.02)

BoardIvan BartoloCelia Falzon

Berta SullivanAntoinette Vassallo

Chairman / DGAntonio Ghio

Communications Appeals Board

Ancillary functions:Galileo Board memberHLIG memberGAC / ICANN memberBEREC/IRGITUUPU

Organisation Chart

Legal Affairs GroupPaul Micallef

Litigation Inter-operator disputesLegal adviceLegal draftingRegulation

Operations GroupActing CEO:

Ian Agius

Regulatory accountingRegulatory operationsMarket frameworkCost modelling

External Relations Group

Celia Falzon

Co-ordination / relations with external entitiesExternal communicationsEcommerceConsumer relations

Spectrum Management and Technology Group

Helga Pizzuto

Radio spectrum managementRadio spectrum monitoringTechnologyEMF monitoring

Financial managementInformation managementHuman resources ManagementGeneral admin. servicesFacilities management

Corporate Services Group

Ian Agius (acting)

Policy and Strategic Planning Group

Patrick Vella

Strategic & business planningPolicy formulation & review Market analysis

MC

Administrative Review Tribunal

PA to the Chairman

Policy and Strategic Planning

Chief, Policy and Planning

Manager, policy & Panning

Senior Market Analyst

Market Analyst

Policy Analyst X2

Programme Support Officer

Office assistant

Staff complementFunctions

Strategic & business planning/corporate performance review Policy review Market Analyses in order to establish the level of competition in the

various sectors and propose relevant remedies

Chief of Operations Manager, Financial and

Economic Analysis Senior Analyst Market

Operations Market Analyst Financial Analyst

Regulatory Analyst

Staff complement

Functions

Access and interconnection, Financial and economic analysis, Implementation of measures to facilitate competition and

monitoring of the market

Operations

Chief Manager Spectrum

Management Senior Technical Specialist Technical Specialist X2 Technician

Staff complement

Functions

Monitoring of technological developments Radio spectrum management Radio equipment licensing & market surveillance EMF audits and interference investigations

Spectrum Management & Technology

Chief of External Relations Manager, External Relations Senior Manager Information Society

Services External Relations Officer Ecommerce Analyst Communications

Coordinator Consumer Affairs Officer X3 Information Society Project Coordinators

4

Staff complementFunctions

EU and international matters Relations with external entities Public relations and communications Consumer affairs Ecommerce Information Society Services

External Relations

Chief Legal Adviser Legal Adviser X2

Staff complement

Functions

Providing legal advice to MCA Representing MCA in litigation Handling of inter-operator disputes Ensuring compliance with laws and regulatory decisions

Legal Affairs

Acting Chief of Corporate Services Chief Information Officer Information and Records Manager, Finance Co-ordinator, HR & Admin. Administrative Officer IM Officer Network Technician Accounts Clerk X3 Receptionist Administrative Assistant Messenger Cleaner

Staff complement

Functions

Financial Management Information Management Human Resource Management General Administrative Services

Corporate Services

MCA – Enforcement

What are MCA’s Enforcement powers?- Entry into property & make inspections at reasonable time- Require production of documents - Remove/retain documents or require that same is maintained for specified

period- Require switching off/lowering/desist from use of harmful

radiocommunications apparatus - Obstruct etc MCA officers in exercise of duties- Furnishes misleading/false information

Constitutes criminal offence

MCA – Sanctions

What Sanctions can MCA impose in instances of non-compliance with law, decision or authorisation condition?

- main tool administrative fines [unless stated otherwise, daily up to max €11,646 &/or one off up to max of €349,406]

- Repeated & serious may suspend/withdraw authorisation or licence

- Order delay of service/bundle which if continued may lead to “significant harm” to competition

Enforcement procedure What are MCA’s Enforcement procedures?

- MCA issues letter of warning stating infringement & envisaged sanction. Giving of a minimum period of 15 days of reply/rectify non-compliant act/omission. After receipt of submissions/lapse of period MCA issues final decision

- HOWEVER if prima facie infringement: represents “immediate & serious threat” to public

safety/security/health; or significant harm to competition creates/may create serious economic/operational problems for

other provider or usersthen MCA may take urgent interim measures pending taking of a final decision

Contestation of MCA sanctions

How can one contest?

Until last year aggrieved persons could appeal from any MCA regulatory decisions including decisions imposing sanctions by filing an appeal before the Communications Appeals Board.

However this process has as of last year been reviewed. The competent entity to receive and hear such appeals is now the Administrative Review Tribunal (ART)

CAB decisions and eventually ART decisions may be contested on point of law before Court of Appeal

Some Challenges faced by MCA

MOU with the MCCAA

Competition

Consumer Affairs

Standards

ContentExpress Mail

Convergence of Roles

The Potential for Regulatory Inconsistencies and Jurisdictional Confusion between NRAs and -Competition Authorities-Consumer Affairs Authorities-Broadcasting Authorities

Similarities between sector specific regulation and competition rules should limit the risk of conflicts (both sets of rules pursue related and complementary objectives), there is nonetheless a possibility that the decisions adopted under each body of rules may differ lead to regulatory inconsistencies (e.g. Access conditions).

Convergence of Roles

Regulation of access conditions:

-sector specific frameworks often take into account the investments incurred by the owner of the infrastructure, the existence of intellectual property rights or the necessity to preserve competition in the long run.

-Competition rules are less concerned with the above objectives. Competition authorities are primarily concerned with the elimination of actualrestrictions of competition. They give little importance to the necessity that access conditions ensure sufficient rates of return on investments and do not undercut incentives for innovation etc

Convergence of RolesConfused regulatory signals to the industry could prove potentially harmful to investments.

The existence of regulatory divergences between NRAs and competition authorities creates a risk of forum shopping for complainants.

Existence of a variety of remedial routes for complainants

The absence of rules of exclusivity, ‘litis pendentia’ and joining of claims creates a risk of duplication of proceedings.

Mechanisms for Limiting these Risks:

1. The NRAs’ General Duty to Observe Competition Rules2. Specific Mechanisms of Conflict Avoidance (‘lex specialis’, MOU)3. Joining the NRA with the NCA or giving the NRA exclusive competition jurisdiction in sector specific cases.

Electronic Commerce to transform business; Guides and Take up.

Compliance with e-Commerce Act & Regulations

Stimulate & facilitate take-

up by businesses & consumers

“Facilitating e-commerce uptake, via the ongoing development of the legal, institutional

and regulatory

frameworks, and related

public awareness-

raising.”

Electronic Commerce to transform business; Guides and Take up.

• ecommerce Enablers Study

• Market Research

• Annual Conference 2008

• Ecommerce Forums

• Ecommerce Workshops

• Fora • Initiatives / Projects

• Trustmark Scheme

• Monitoring

• Ecommerce Guides for Business

• Ecommerce Usage by Households

• Ecommerce Usage by Business

What are the obligations?

Name of Service ProviderGeographic addressContact details (e.g. e-mail, tel. no.)VAT registration no.Trade register / Professional body / Supervisory body (if applicable)

Prices should be clearly indicated and inclusive of tax & delivery costsFiling & accessibility of concluded contractSteps to conclude contractThe technical means for amending mistakesEasy access to terms and conditionsLanguage/s for concluding contract

General Information

Contract Information

What are Information Society Services?

At a distance

By electronic means

At the individual request of a recipient of the service

Examples of Sites that provide Information Society Services

allow online orderssell goods/services online

online newspapers, search engines

The Telecoms Regulatory Framework

- Telecoms networks and services are the backbone of Europe’s developing information society and the digital economy.

- Ever growing demand for more advanced, reliable and efficient telecoms networks and services.

- The European Telecoms sector has, over the past two decades evolved from one with strong public service monopolies to one with increasing privatisation, effective competition and harmonisation.


The EU telecoms regulatory framework consists of a set of Regulations, Directives, Decisions and other legal instruments, developed with the aim of providing a better functioning internal market with the scope of:a) promoting free and fair competitionb) improving innovation c) creating a strong and efficient telecoms industry across the EU d) promoting users rightse) removing barriers across the EU for the supply and operation of

telecommunication services and equipment.


• The Framework Directive (2002/21/EC)

• The Authorisation Directive (2002/20/EC)

• The Access Directive (2002/19/EC)

• The Universal Services and Users’ Rights Directive (2002/22/EC)

• The Directive on Privacy and Electronic Communications (2002/58/EC)

• The Roaming Regulation EC/717/2007

• Recommendation on Relevant Markets

• Various technical Decisions concerning spectrum

The Telecoms Regulatory Framework What is covered?

•

Transmission Networks and Services

Telephony POTS IP basedMobile

Broadcasting

DataCable

SatelliteDigital

Terrestrial

ADSL Cable

BWA Others

Convergence onto IP based networks capable of deliveringall forms ofregulated services

The Telecoms Regulatory FrameworkWhat is not covered?

ICT related fields regulated under different frameworks

Content

Information Society Services

Equipment


A brief history of telecommunications regulation in the EU (Working together towards a single market for electronic communications)

1984 – establishment of a common technical development

1987 – liberalisation as the main focus (transition from monopoly to competition)

1998 – liberalisation of all telecommunications services and networks (open network provision)

2002 – Review of 1998 framework focusing on convergence with limited regulation.

2009 – Revised telecoms package which gives emphasis to Growth, Competitiveness and Employment


Key areas – Independence of National Regulatory Authorities (NRAs)

• Legally distinct• Functionally independent• Impartial and Transparent• Right of appeal


Key areas – More open market

From individual licences to general authorisations for services and networks

The framework sets:Rights- To provide services and networks subject to conditions- To install facilities (rights of way, antennae, co-location and facility sharing)- To negotiate interconnection

Obligations- Interoperability , contribution to US funding, data and privacy protection and

consumer protection

Administrative charges and usage fees


Key areas – Competition law approach to regulation

• Some European markets are still dominated by incumbent operators, in most cases former monopolies

• Regulators need to ensure that they do not use their position unfairly to squeeze out new competitors

• Market analysis procedure (regulation of services)• Recommendation on relevant markets • Market definition Market analysis Remedies where necessary


Key areas – Radio Frequency Spectrum

From individual licences to predominantly general authorisations • Increasing use of spectrum – scarce resource• Limited number of available frequencies that need to be shared between many• Ensuring no interference between devices and services

Procedures for limiting the rights of use of spectrum

Harmonisation of spectrum allocation policies at an EU level (CEPT, RSPG, RSCom)Eg. RFIDs, WiFi, Mobile Satellite Services, Mobile TV)

Spectrum Trading Service Neutrality Technology Neutrality


Key areas – Broadcasting related issues

Spectrum (VHF, UHF)

Technologies (Digital / Analogue, Networks – Sat, Cable, DTTv, mobile)

Digital Dividend

ITU RRC, WRC

Access

Must-carry obligations (General Interest Objectives)


Key areas – Universal Service

- Services which a free market would not provide commercially and which competition law alone cannot guarantee.

- Access to basic fixed telephone service capable of voice and internet use, for a fair price

- Provision of universal service that ensure reasonable quality of service at affordable prices regardless of geographical location. This must include the possibility to access the emergency services (‘112’) when necessary, and also enable people with disabilities or specific needs to access telecoms services.

- Directory enquiry services and directories- Public pay telephones


Key areas – User’s Rights

- Written contracts that include specific details (tariffs, costs)- Possibility to terminate contract should supplier change the terms of the

contract- Network and service security and integrity- Data protection for personal data stored or transmitted over the

telecommunication network- Protection of user identity- Portability of user numbers - Fair prices for mobile calls whilst roaming in the EU.


Key areas – Privacy

Operators have access to consumers’ private information and/or data

- Secure networks- Data protection - Data retention- SPAM- Public Directories- Calling Line Identification


- The recent changes were needed to keep up with this fast developing sector.

- The Better Regulation Directive 2009/140/EC and the Citizens’ Rights Directive 2009/136/EC revised the existing framework rules by focusing on regulating those market sectors where competition is still lacking.

- The Commission monitors the timely and correct implementation of these revised rules by Member States.


Better Regulation Directive (Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009)

This Directive amends the following 3 Directives which were agreed in 2002 – • Framework Directive which established the objectives of a framework to

regulate electronic communication networks and services.

• Authorisation Directive which creates a legal framework to allow the freedom to provide electronic communications networks and services.

• Access Directive which covers access to and interconnection arrangements between publicly available electronic communications networks.


Citizens’ Rights Directive (Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009)

This Directive amends the following 2 Directives which were agreed in 2002 –

• Universal Services Directive which ensures that a defined minimum set of services is provided to all end-users at an affordable price.

• E-Privacy Directive which protects the fundamental rights and freedoms of citizens with regard to automated storage and processing of data.


Key principles of the Framework prior to changes

• General Authorisation for the provision of electronic communications

networks and services

• Individual licences for spectrum and numbers

• Competition Law approach to Regulation

• End-users rights (limited)

• Spectrum assignment by regulatory authorities

• Universal Service Obligations

• ePrivacy


Key principles identified as being at the centre of the revised regulatory framework

• BEREC ( Body of European Regulators in Electronic Communications): consistency of regulation across all 27 Member States

• Independence of National Regulatory Authorities strengthened• European Commission say on remedies• Functional separation as a last resort• Competition and investment in NGA’s• Broadband access through better spectrum management• Consumer Information: minimum quality of service levels• Consumer Protection: data breaches• Change provider in 1 day• Citizens rights: relating to internet access (new internet freedom provision)• Neutral net: minimum quality levels• Emergency Services: new technologies and disabled access


Aims of the changes introducedThe aims of the changes introduced by the two new Directives are – • The consistent and effective regulation of the sector throughout the

European Union,• Strengthening the rights of users, particularly disabled users,• Creating the right conditions to promote development of the single

market, • Promoting the efficient and effective use of radio spectrum through more

flexible assignment mechanisms and rights of use,• Encouraging investment in new and existing infrastructure, and • Enhancing the security and reliability of communications networks.

http://www.mca.org.mt/

the building blocks of a national regulatory authority 05 th march 2013 dr nicholas borg mca –...

Documents

regulatory functions

telecoms regulatory

distinct statutory authority

digital broadcasting

mca convergence

electronic commerce

postal services act

independent accountable