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The Building Blocks of a National Regulatory Authority 05 th March 2013 Dr Nicholas Borg MCA – Legal Advisor.

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Presentation on theme: "The Building Blocks of a National Regulatory Authority 05 th March 2013 Dr Nicholas Borg MCA – Legal Advisor."— Presentation transcript:

1 The Building Blocks of a National Regulatory Authority 05 th March 2013 Dr Nicholas Borg MCA – Legal Advisor

2 Objective of presentation Provide 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

3 The National Regulatory Authority -Advent of the NRAs across the EU in the 1990s (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.

4 The National Regulatory Authority So 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 NRAs 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.

5 The National Regulatory Authority 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

6 The National Regulatory Authority What are the Key elements for an effective NRA Legally Distinct Transparent Impartial Functionally Independent Accountable

7 The National Regulatory Authority 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

8 The National Regulatory Authority The Malta Communications Authority (MCA) and its Role The MCA was established on the 1st January 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.

9 A complete revolution achieved in an evolutionary manner First ISPs enter the Market Liberalisation policy adopted – partial privatisation of Maltacom Split 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 2000Competition in the mobile sector 2011Switch from analogue to digital broadcasting

10 The National Regulatory Authority 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.

11 The National Regulatory Authority 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 ) -Postal Services Act (Cap. 254) -Postal Services [General] Regulations (SL ) -Electronic Commerce Act (Cap. 426) -Electronic Commerce [General] Regulations (SL )

12 Board Ivan Bartolo Celia Falzon Berta Sullivan Antoinette Vassallo Board Ivan Bartolo Celia Falzon Berta Sullivan Antoinette Vassallo Chairman / DG Antonio Ghio Chairman / DG Antonio Ghio Communications Appeals Board Ancillary functions: Galileo Board member HLIG member GAC / ICANN member BEREC/IRG ITU UPU Ancillary functions: Galileo Board member HLIG member GAC / ICANN member BEREC/IRG ITU UPU Organisation Chart Legal Affairs Group Paul Micallef Legal Affairs Group Paul Micallef Litigation Inter-operator disputes Legal advice Legal drafting Regulation Litigation Inter-operator disputes Legal advice Legal drafting Regulation Operations Group Acting CEO: Ian Agius Operations Group Acting CEO: Ian Agius Regulatory accounting Regulatory operations Market framework Cost modelling Regulatory accounting Regulatory operations Market framework Cost modelling External Relations Group Celia Falzon External Relations Group Celia Falzon Co-ordination / relations with external entities External communications Ecommerce Consumer relations Co-ordination / relations with external entities External communications Ecommerce Consumer relations Spectrum Management and Technology Group Helga Pizzuto Spectrum Management and Technology Group Helga Pizzuto Radio spectrum management Radio spectrum monitoring Technology EMF monitoring Radio spectrum management Radio spectrum monitoring Technology EMF monitoring Financial management Information management Human resources Management General admin. services Facilities management Financial management Information management Human resources Management General admin. services Facilities management Corporate Services Group Ian Agius (acting) Corporate Services Group Ian Agius (acting) Policy and Strategic Planning Group Patrick Vella Policy and Strategic Planning Group Patrick Vella Strategic & business planning Policy formulation & review Market analysis Strategic & business planning Policy formulation & review Market analysis MC Administrative Review Tribunal PA to the Chairman

13 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 complement Functions 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

14 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

15 Chief Manager Spectrum Management Senior Technical Specialist Technical SpecialistX2 Technician Staff complement Functions Monitoring of technological developments Radio spectrum management Radio equipment licensing & market surveillance EMF audits and interference investigations Spectrum Management & Technology

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

17 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

18 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

19 MCA – Enforcement What are MCAs 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

20 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

21 Enforcement procedure What are MCAs 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 users then MCA may take urgent interim measures pending taking of a final decision

22 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

23 Some Challenges faced by MCA MOU with the MCCAA Competition Consumer Affairs Standards Content Express Mail

24 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).

25 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 actual restrictions 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

26 Convergence of Roles Confused 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 Rules 2. 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.

27 Electronic Commerce to transform business; Guides and Take up. Complianc e 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.

28 Electronic Commerce to transform business; Guides and Take up. ecommerce Enablers Study Market Research Annual Conference 2008 Ecommerce Forums Ecommerce Workshops ForaInitiatives / Projects Trustmark Scheme Monitoring Ecommerce Guides for Business Ecommerce Usage by Households Ecommerce Usage by Business

29 What are the obligations? Name of Service Provider Geographic address Contact details (e.g. , tel. no.) VAT registration no. Trade register / Professional body / Supervisory body (if applicable) Prices should be clearly indicated and inclusive of tax & delivery costs Filing & accessibility of concluded contract Steps to conclude contract The technical means for amending mistakes Easy access to terms and conditions Language/s for concluding contract General Information Contract Information

30 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 orders sell goods/services online online newspapers, search engines

31 The Telecoms Regulatory Framework -Telecoms networks and services are the backbone of Europes 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.

32 The Telecoms Regulatory Framework 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 competition b)improving innovation c)creating a strong and efficient telecoms industry across the EU d)promoting users rights e)removing barriers across the EU for the supply and operation of telecommunication services and equipment.

33 The Telecoms Regulatory Framework 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

34 The Telecoms Regulatory Framework What is covered? Transmission Networks and Services Telephony POTSIP basedMobile Broadcasting Data Cable Satellite Digital Terrestrial ADSLCable BWAOthers Convergence onto IP based networks capable of delivering all forms of regulated services

35 The Telecoms Regulatory Framework What is not covered? ICT related fields regulated under different frameworks Content Information Society Services Equipment

36 The Telecoms Regulatory Framework 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 – Revised telecoms package which gives emphasis to Growth, Competitiveness and Employment

37 The Telecoms Regulatory Framework Key areas – Independence of National Regulatory Authorities (NRAs) Legally distinct Functionally independent Impartial and Transparent Right of appeal

38 The Telecoms Regulatory Framework 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

39 The Telecoms Regulatory Framework 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

40 The Telecoms Regulatory Framework 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 TradingService NeutralityTechnology Neutrality

41 The Telecoms Regulatory Framework 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)

42 The Telecoms Regulatory Framework 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

43 The Telecoms Regulatory Framework Key areas – Users 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.

44 The Telecoms Regulatory Framework 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

45 The Telecoms Regulatory Framework -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.

46 The Telecoms Regulatory Framework 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.

47 The Telecoms Regulatory Framework 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.

48 The Telecoms Regulatory Framework 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

49 The Telecoms Regulatory Framework 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 NGAs 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

50 The Telecoms Regulatory Framework Aims of the changes introduced The 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.

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