Contents
Summary
Chapter
1 A
more innovative approach to public consultation
Summary
S.1. In February
2001, Oftel published a consultation document, Oftel’s
use of public consultation. This Statement summarises the conclusions
which Oftel has drawn from the responses made to that document, and
the action which Oftel will now take.
S.2. Public consultation
plays a central role in Oftel’s process of formulating strategies for
achieving its goal of the best deal for consumers in terms of quality,
choice and value for money. Oftel needs to ensure that it uses the most
efficient means of consulting with its stakeholders. Formal written
consultation on complex issues is time-consuming and imposes heavy demands
on stakeholders. This powerful but resource-hungry tool must, therefore,
be used with care. The consultation document addressed concern, primarily
from the communications industry, that consultation tends to be unduly
protracted and regulatory action consequently slow. The document sought
views on how public consultation, both written and face to face, can
be put to best use.
S.3. Responses were
received from a large number of organisations which represent the interests
of residential users, including the Consumers Association, the National
Consumer Council, a wide range of disability groups and the statutory
Advisory Committees on Telecommunications. In comparison, the number
of responses from groups representing the interests of business users
and providers of communications services was surprisingly small, although
detailed comments were received from the Communications Management Association
and the statutory advisory committee Communications for Business. Several
companies in the communications field also submitted individual responses,
as did one major corporate user of communications. A late submission
was also received from the Operators Group, which represents the interests
of some 26 network operators.
S.4. Oftel is grateful
for the time and resources devoted to this exercise by stakeholders.
The following key themes emerged:
- All respondents
agreed that public consultation, in its many forms, must continue
to take a central position in the way that Oftel conducts its business.
Respondents also agreed that consultation methods must vary according
to the circumstances, and that Oftel should continue to develop innovative
ways to consult with interested parties.
- Respondents were
strongly supportive of Oftel-hosted meetings, such as the Operator
Policy Forum and the Service Provider Forum, although they tended
to characterise the current importance of these fora as vehicles for
the dissemination of information rather than the debating of policy
options. Many reported that co-regulatory working groups and meetings
convened to discuss specific issues are often more productive, than
general fora, when stakeholders’ views on policy options are being
sought;
- Respondents supported
the proposition that Oftel should often establish contact with stakeholders
at an early stage in the development of strategy, by engaging in face
to face consultation before publishing a formal written consultation
document. These respondents emphasised that Oftel should be proactive
in identifying and contacting interested parties. Respondents welcomed
the proposal that Oftel should provide more advance information about
planned publication dates for consultation documents, their expected
readership and their scope, so that stakeholders could start to develop
their own views before the formal stage of written consultation has
started;
- Respondents agreed
that 12 weeks was a reasonable period for general consultation exercises,
particularly in the case of major market reviews and consultations
on significant policy options. However respondents agreed that there
will be circumstances when, with the support of stakeholders, consultation
periods should be reduced;
- The value of
the formal 14-day period set aside for respondents to comment on the
views expressed by others, ‘comment-on-comments’, was acknowledged,
especially in the case of wide-ranging consultations on matters of
significant regulatory policy. While many respondents confirmed that
they did not currently make use of that facility, there was general
agreement that on-line access to the responses of others would make
it much easier to participate in this stage of the consultation process.
S.5. Oftel has decided,
therefore, to take the following action:
- Regulatory issues
of broad interest to infrastructure providers and service providers
will be discussed at a new Oftel Forum to be held at quarterly intervals.
Alternate meetings of this new forum will also be open to representatives
of general consumer bodies and specific communications user groups,
and the agenda will be designed to encourage attendance by infrastructure
providers, service providers and user groups;
- The present Operator
Policy Forum and Service Provider Forum will continue. However these
will be refocused on issues which are of narrower interest to network
operators or services providers alone, including the output of working
groups. Meetings will be convened immediately before or after meetings
of the new quarterly Oftel Forum so that delegates can combine attendance
at both. Oftel envisages that, from time to time, the Operator Policy
Forum may also wish to meet between each of these quarterly dates
so that, overall, the present 6-week interval between meetings is
broadly maintained. Additional meetings of the Service Provider Forum,
which currently meets every 2 months, will also be held if required,
but Oftel envisages that quarterly meetings immediately before or
after the new Oftel forum may suffice;
- Oftel will continue
to develop its use of issue-specific working groups and co-regulatory
workshops which, in some circumstances, can minimise reliance on time-consuming
formal consultation;
- Oftel will publish
on its website, and make available in paper form, a more detailed
diary of planned consultation events, which, where appropriate, will
include additional information about the issues to be consulted on,
and the expected target readership. Oftel expects that this will make
it easier for stakeholders to identify those issues in which they
have a particular interest and on which they may wish to respond;
- In general, 12
weeks will be allowed for responses to be made to consultation exercises
which address matters of regulatory policy or market competitiveness.
However, Oftel will avoid over-reliance on a single pattern of written
consultation and, where necessary, may propose a shorter period. On
each occasion, before finally deciding to allow a lesser period of
time, Oftel will notify stakeholders of its intentions, providing
reasons for the proposed reduction, and will consider any comments
from interested stakeholders;
- Oftel will also
seek to make more frequent use of mechanisms other than formal written
consultation to obtain the views of stakeholder, including public
meetings and workshops, joint working groups with industry and consumers
and informal discussion papers;
- Oftel will publish
on its website copies of all non-confidential responses to consultation
documents so that, as a minimum, stakeholders may draw to Oftel’s
attention any inaccuracies or misrepresentations included in responses
made by others. (Paper copies will continue to be made available at
Oftel’s offices). The length of time, if any, allowed for more considered
comments-on-comments in relation to consultations on regulatory policy
or market competitiveness will vary from case to case, and will no
longer be a standard 14 days, as has been Oftel’s practice; the decision
in each case will depend on the expected volume and complexity of
responses and the urgency of the issue. Each consultation document
will make clear how much time, if any, is to be allowed for comments-on-comments;
- Oftel does not
intend to propose immediate changes to the present 3 stage 70-days
consultation process followed when making formal determinations such
as those in respect of Market Influence, Significant Market Power
or Universal Service. However, where possible, the formal making of
such determinations will follow more promptly after the conclusion
of any wider consultation on the state of the relevant market;
- Oftel will continue
to allow at least 28 days for stakeholders to respond to draft determinations
and directions other than those in respect of Market Influence, Significant
Market Power and Universal Service. However, in most cases, Oftel
will cease to allow a further 14 days for comments to be made on the
responses made by others. Where, exceptionally, an iterative approach
may be productive, such as where the implications of the determination
are particularly wide-ranging or stakeholders’ views are particularly
polarised, Oftel may specify a formal period for comments-on-comments;
- In the case of
consents, typically where the Director General agrees to the licensee’s
publication or notification obligations being waived or modified on
a particular occasion, the consent is often granted on the basis of
long standing published criteria. Here, the Director General will
continue to take the view that it is not appropriate to re-consult
on the issue if such a consent is granted on the basis of previously
published criteria.
S.6. Oftel also
welcomes the central role given to public consultation in the new European
framework. That framework also sets challenging targets for conducting
market reviews and resolving disputes. Oftel will have to keep its targets
and processes under active review to ensure that it meets its obligations
under European law, whilst also not compromising the principle of active
consultation. Oftel will continue to compare best practice with other
European regulators in seeking to meet this new challenge.
Chapter 1
A more innovative approach to public consultation
1.1. Public consultation,
whether a formal written exercise or a face to face meeting, plays a
central role in Oftel’s process of formulating strategies for achieving
its goal of the best deal for consumers in terms of quality, choice
and value for money. Oftel is crucially dependent on the information
and advice which stakeholders bring to decision-making, and Oftel remains
firmly committed to open-minded and transparent consultation with stakeholders.
Oftel’s growing reliance on co-regulatory initiatives will tend to emphasise
still further the central role of public consultation.
1.2. Oftel’s key
principles, of regulating only where it is likely to bring benefits
to consumers and of keeping regulation to the minimum necessary to obtain
appropriate outcomes, are dependent on consultation with relevant stakeholders.
Without consultation, regulation is unlikely to be appropriate and proportionate.
While Oftel can rely, to an extent, on the advice of its expert advisers
and the statutory Advisory Committees, it is essential that Oftel remains
firmly in touch with the views of consumers and suppliers. This is particularly
important given the fast-moving and increasingly diverse nature of the
market and rapid changes in market conditions.
1.3. Oftel’s long-standing
practice of engaging in extended written consultation is in accordance
with the recommendations of the Code of Practice on Written Consultation,
which was recently published by the Cabinet Office. Oftel will continue
to use this form of consultation frequently and extensively. Nevertheless,
as the consultation document which preceded this Statement emphasised,
Oftel is facing strong pressure from many quarters to streamline its
decision-making processes. Oftel recognises the fears expressed by some
stakeholders that accelerated consultation risks disenfranchising consumer
groups with limited resources and also major communications companies
which may require many weeks to compile a complex economic, legal and
technical response to a set of far-reaching proposals. A faster and
more efficient approach to decision-making may, therefore, need to involve
not just shorter timescales but, as many respondents to this consultation
exercise pointed out, a more innovative approach to consultation, including
the use of mechanisms other than formal written consultation with conventional
12 week consultation rounds followed by 14 days for comments-on-comments.
1.4. In July 2001,
some months after publication of the consultation document which preceded
this Statement, the Better Regulation Task Force, chaired by Lord Haskins,
published its report Economic Regulators. alhough, clearly, that document
was not intended as a response to the consultation document, Oftel was
pleased to see that its own initiative in seeking to find more effective
means of consultation reflected the views expressed by the task force.
One of the 5 key recommendations of the report was that regulators,
such as Oftel, should "include in their work plans proposals to
encourage an innovative approach to consultation, allow a real dialogue
between different stakeholders and demonstrate how proposals have been
amended following consultation."
15. Written consultation,
conducted to an extended 12-week timetable with a further 14 days for
comments-on-comments, is perhaps the best known aspect of Oftel’s consultative
work, made visible to other regulatory authorities and communications-watchers
around the world via the Oftel website. In practice, however, Oftel
has successfully used a much more varied array of consultative techniques
than this might suggest, particularly in the case of major consultation
exercises which have addressed a wide range of complex issues.
1.6. For example,
the development of a Telecommunications Ombudsman scheme arose after
extensive consultation with stakeholders on alternative forms of dispute
resolution. Despite the lack of clear consensus on the most appropriate
form, industry has been receptive to alternative proposals and demonstrated
its commitment to working with Oftel and consumer groups to devise a
suitable scheme. Following a series of workshops hosted by Oftel, an
Oftel-chaired working group consisting of operators, service providers
and consumer groups was set up in September 2000. Its task was to consider
the practicalities and feasibility of setting up an Ombudsman scheme.
The output of the group formed the basis of a public consultation document,
which was published in March 2001. As part of the consultation, Oftel
hosted a public workshop to encourage open discussion of the proposals
made. A formal written Statement published in July 2001, set out a critical
path for the implementation of a voluntary wide-ranging Ombudsman
scheme, covering both fixed and mobile operators. The Director General
has given his full support to the initiative, both in its own right
and as an exemplar of the scope for self- and co-regulation generally.
Industry will be encouraged to take formal responsibility for implementation
but Oftel will play an active facilitation role and monitor progress
against the indicative critical path. Should there be significant slippage
in the timetable or failure by industry to participate, the Director
General has stated he is prepared to use statutory powers to compel
participation in a scheme of his own devising.
1.7. The present
major review of controls on BT’s retail prices and network charges is
another example of a public consultation exercise which has not followed
a well-established pattern. This started, some 2 years before the present
price controls were originally due to expire, with the publication of
a consultation document in July 1999. That document invited views on
likely market developments which Oftel would need to consider when deciding
whether new controls should be imposed on BT. An extended 19-week period
was allowed for comments to be made. During this period a series of
public hearings were held at which Oftel, BT and a number of consumer
organisations were represented. Whilst these hearings failed to attract
as much public interest as had been hoped, they did give stakeholders
an opportunity to discuss the issues. A further 4 documents have been
published during the course of 2000 and 2001 and, given that each has
built on ideas discussed in previous documents, a shorter than usual
period, sometimes as little as 6 weeks, has been allowed for responses
to be made to each. This long series of linked consultations has allowed
Oftel and its stakeholders to consider a very wide range of complex
regulatory options at a level of detail which would not, perhaps, have
been possible during a single round of consultation.
1.8. A further example
of consultation tailored to the circumstances can be seen in the case
of Oftel’s continuing review of competition in the mobile market. This
review started with meetings between Oftel and UK mobile operators and
consumer groups to gather initial views on the scope of the review.
Presentations were also made to the Service Provider Forum and Operator
Policy Forum. A formal "kick-off" statement was then published
outlining the scope and methodology of the review. That document invited
stakeholders to register an interest in receiving further papers as
and when they were published. Further meetings were held with interested
parties and a formal consultation document was issued some 6 months
after discussion with stakeholders first started. A Statement summarising
the conclusions of the review will be published later this year.
1.9.
The preceding cases have each been examples of extended consultation
involving multiple exchanges of views and data using a variety of written
and verbal mechanisms. However, innovative forms of consultation can
also be used to conclude other narrower and less complex issues, and
Oftel will be alert to such possibilities in the future.
1.10. Extended public
consultation exercises, of the kind which Oftel has deployed since its
formation, are not common amongst other European national telecommunications
regulators. For example, the Spanish, French, Belgian, Austrian, Swedish
and Finnish national regulatory authorities generally allow only 3 to
6 weeks for stakeholders to respond, and the Italians, German and Irish
up to 8 weeks. The Norwegian and Swiss authorities, alone, come close
to sharing Oftel’s practice of allowing 12 weeks. Other national regulatory
authorities are also more inclined to vary the timing of consultation
exercises, according to the complexity and significance of the subject
matter, and a few, such as the Swiss, Belgian and German authorities
have used public hearings more often than Oftel has. Informal meetings
with interested parties are also used to familiarise stakeholders with
the issues before engaging in a relatively short round of written consultation.
Oftel will explore the use of some of these alternative mechanisms for
consulting stakeholders.
Chapter 2
The European dimension
Introduction
2.1. The European
Commission has proposed a package of new Directives which will create
a new framework for regulation of electronic communication networks
and services. The package is currently being negotiated by the Council
of Ministers and in the European Parliament. The Directives are intended
to ensure a harmonised approach across Europe, although member states
will retain some discretion to decide how regulation should be applied.
They are expected to come into force in the spring of 2002, replacing
the existing Directives. Whilst these Directives were not referred to
in the consultation document which preceded this Statement, it may be
helpful to stakeholders if the provisions of these Directives are outlined,
so that Oftel’s plans for modifying its use of public consultation can
now be put into the European context. The comments below are based on
the current texts of the draft Directives and negotiations to date.
As the texts have not been finalised, the comments below could be subject
to change.
General obligation
to consult
2.2. The new Framework
Directive is intended to create a common regulatory framework for electronic
communications networks and services. The common position on the draft
Directive, which was adopted by the Council of Ministers at the Telecoms
Council on 27 June 2001, recognises that it is important that national
regulatory authorities consult all interested parties on proposed decisions
and take full account of their comments before adopting a final decision.
Article 6 of the Directive, as envisaged by the common position, will
require that where national regulatory authorities intend to take measures,
in accordance with one of the new Directives, which have a significant
impact on the market, they must give interested parties the chance to
comment within a reasonable period.
2.3. The Universal
Service Directive too, as currently envisaged, will require national
regulatory authorities to take into account the views of interested
parties, and the Directive specifies users, consumers, manufacturers,
undertakings providing communications networks and service providers
as groups which should be consulted on issues related to user and consumer
rights in respect of publicly available communications services.
2.4. While it is
Oftel’s current practice to engage in public consultation and, in some
limited cases, the Telecommunications Act 1984 and the licences granted
under that Act require consultation, the Framework Directive and Universal
Service Directive will formalise a wider obligation to consult interested
parties. The Framework Directive will also require national regulatory
authorities to publish their national consultation procedures, and Oftel
envisages that this Statement or, where appropriate, a subsequent updating,
will form the basis of that publication.
Market reviews
2.5.To ensure that
national decisions do not have an adverse effect on the single European
market or on other objectives of the European Union, the Framework Directive
will require national regulatory authorities to make certain draft measures,
together with the reasoning on which the measures are based, available
to the European Commission and to other national regulatory authorities.
These additional obligations will apply where a national regulatory
authority intends to remove or apply regulation as a consequence of
finding that a particular market is, or is not, effectively competitive,
or where the national regulatory authority intends to define markets
in a way which differs from that in guidelines to be published by the
Commission. These obligations will have particular relevance where,
for example, Oftel wishes to impose obligations concerning interconnection
and access to networks in accordance with the new Access and Interconnection
Directive.
2.6. In the circumstances
described in paragraph 2.5 above, a consultation period of at least
1 month must be allowed, during which time the European Commission and
other national regulatory authorities, as well as other interested parties,
may comment. The national regulatory authority must take the utmost
account of the comments of other national regulatory authorities and
the Commission before adopting such draft measures. Where, in response
to this public consultation, the Commission indicates to the national
regulatory authority that it has serious doubts that the proposed decision
is compatible with Community law or the objectives referred to elsewhere
in the Framework, or where the final draft decision is significantly
different in substance to that which had previously been made available,
it shall not be implemented for a further 1 month, during which time
the Commission may make public a detailed opinion. If the national regulatory
authority chooses not to follow the detailed opinion of the Commission,
it shall communicate its reasons to the Commission, before implementing
the measure in question.
2.7. National regulatory
authorities may take action, of the kind described in paragraph 2.5
above, without prior consultation, but only in exceptional circumstances
in order to safeguard competition and to protect the interests of users.
In these circumstances, they must explain to the Commission and other
national regulatory authorities what has been done, and why.
2.8. Draft guidelines,
which are currently being consulted upon by the Commission, envisage
that market reviews will be conducted annually. Oftel’s current practice
of allowing stakeholders not less than 12 weeks to respond to consultations
on market competitiveness will probably not be feasible if reviews are
to be repeated so frequently. It is conceivable that where, after a
thorough and lengthy review, a market is found not to be effectively
competitive, a swifter approach might be taken to subsequent reviews,
unless the structure of the market, or other fundamental aspects, have
changed significantly. As was explained in Chapter 1 above, Oftel’s
use of extended written consultation is not generally matched by other
European NRAs, many of whom allow a much shorter time for responses
to be made. Oftel will review these issues again, when the text of the
new Directives and the associated Guidelines has been finalised, to
ensure that it can meet its obligations under European law.
2.9. Oftel’s current
practice of conducting a 3-stage 70-day public consultation before formally
making determinations in respect of Significant Market Power, even where
it has already concluded a major public consultation on the state of
competition in the relevant market, contrasts sharply with the streamlined
arrangements envisaged by the new Directive and with the practices of
other European national regulatory authorities. Although the present
consultation has revealed little stakeholder enthusiasm for change,
Oftel’s practices will, nevertheless, need to be reviewed when the text
of the new Directive has been finalised, and the new definition of Significant
Market Power agreed, both to ensure that Oftel can comply with its legal
obligations and also to ensure that unduly protracted regulatory procedures
do not place UK industry at a disadvantage compared to its European
competitors. Where a full consultation on the level of competition in
the relevant market has been concluded and the implications of a finding
that an operator has Significant Market Power have previously been defined,
it may be appropriate to adopt the minimum timescales set out in the
Directive, which are currently 1 month plus a further 1 month in the
event that the Commission has serious doubts about the compatibility
of the decision with Community law or objectives, or where the final
draft decision is significantly different in substance to that which
had previously been made available.
Dispute resolution
2.10. The Framework
Directive also sets out procedures which national regulatory authorities
must follow when asked to determine disputes between companies which
provide communications networks or services. These rules apply to any
form of dispute, between such organisations, which concern obligations
arising under one of the new Directives, and not merely to disputes
concerning interconnection. In these circumstances, the national regulatory
authority must issue a binding decision to resolve the dispute as quickly
as possible and, except in exceptional circumstances, within no more
than 4 months. The decision of the national regulatory authority must
be made available to the public, and the parties to the dispute must
be given a full statement of the reasons on which it is based. However,
there is no explicit obligation to consult publicly. Such disputes are
specifically excluded from the wider Article 6 obligation to consult
interested parties.
2.11. It is currently
Oftel’s practice to consult publicly before making determinations and
directions, even in respect of interconnection disputes between 2 parties.
It will be necessary to review, in the light of the new European framework,
timescales for consultations in the course of dispute resolution and
the nature of the consultation methods used; it is possible, for example,
that public hearings or other innovative forms of consultation might
be used. It is notable that the form of public consultation employed
by the UK in the context of dispute resolution is not widely used across
Europe, and most authorities limit such consultation to the parties
directly involved in the dispute. Oftel recognises, nevertheless, that
where the determining of a dispute necessarily requires the development
of new regulatory policy, it will almost always be appropriate to consult
all parties which have an interest in the development of that policy
Chapter 3
The way ahead
Management of
public consultation
Current practice
3.1. Written consultation
plays a central role in the way Oftel carries out its duties. Plans
to engage in public consultation are published within its annual Management
Plan and impending publication of consultation documents is often notified
to industry stakeholders at routine open meetings or at meetings convened
to discuss the issues before publication. In addition, in some cases
a ‘Kick-off Statement’ may be published, before the consultation
proper, outlining the scope and methodology of the review. An outline
monthly diary which lists the publications planned for that month can
also be viewed on Oftel’s website (www.oftel.gov.uk) under the section
Press Office. Consultation documents are published on Oftel’s web site
and are notified electronically to those on the self-selected e-mail
notification list. Further electronic or paper copies are circulated
to groups or individuals who may have a particular interest in the subject
matter. Copies of consultation documents (and statements) may be made
available in large print, Braille and audio format. Non confidential
responses to consultation documents can be viewed at Oftel’s London
offices and reasonable requests for paper copies are met.
Views expressed
3.2. Many respondents,
and especially the consumer groups, agreed that more advance warning
of consultation exercises would make it more likely that they could
respond. While respondents found Oftel’s annual Management Plan helpful
in this respect, many found that as the year progresses new consultation
exercises are planned and changes are made to planned publication dates
and projects’ scope. Respondents confirmed that a rolling web-based
diary of planned publications would be helpful, particularly if some
indication of the scope and target readership could be given.
3.3. Respondents
also recommended that Oftel should ensure that publication of consultation
documents is co-ordinated to ensure that multiple documents, of interest
to particular groups, are not published at the same time. There was
widespread agreement that it would be helpful to be able to view non-confidential
responses on the web. A number of practical suggestions were also made,
including recommendations that all documents should be dated, and should
have a unique reference number and descriptive title. Groups which represent
the interests of disabled people also expressed concern that, although
consultation documents are available in alternative formats, documents
in these formats are not readily available.
3.4. Although consumer
groups were concerned that extensive pre consultation would consume
scarce resources, operators and providers of communications services
emphasised the importance of providing much more information, at an
early stage, about the issues which the consultation document was expected
to address, and whether Oftel expected to express a particular view
or preferred option. Many stakeholders also recommended that Oftel should
take greater care to identify key stakeholders at an early stage, well
before each consultation document is published.
3.5. The consultation
document sought the views of stakeholders on whether Oftel tends to
engage in public consultation at the optimum point in the decision-making
process. Some stakeholders reported a perception that Oftel has already
made up its mind on the issues before some consultation documents are
published, thereby diminishing the value of the consultation exercise.
However, most were concerned mainly that Oftel should make clear on
each occasion whether it had already identified a preferred course of
action.
3.6. Several consumer
organisations reminded Oftel that written consultation is just one of
many alternative ways in which organisations can communicate with stakeholders,
including public meetings, citizens’ juries and conferences. As respondents
pointed out, some of these arrangements are more participative than
others, and whether one or another will be most productive and efficient
will depend on the circumstances and the objectives of the exercise.
The future
3.7. For the foreseeable
future, written consultation will continue to play a crucial part in
the way Oftel obtains views and information from its stakeholders. However,
Oftel recognises that there are many other ways in which views and information
can be gathered, and will be alert to the possibility of taking a more
innovative approach to public consultation, particularly where, for
example, meetings can be used to gather information and views more swiftly
and efficiently than formal written consultation.
3.8. Oftel will
ensure that, where appropriate, it continues to identify and meet with
key stakeholders at an early stage in the preparation of consultation
documents. In many instances, the existing industry fora, or sub groups
reporting to them, will provide an appropriate forum for early discussion
of the issues. Early discussion will ensure that public consultation
is generally used as a means to obtain the views of interested parties,
and not merely as a mechanism for making transparent Oftel’s internal
thought processes. However, Oftel also recognises that this function
of making decisions transparent is important, and where it has identified
a preferred option before engaging in public consultation this will
be made plain when a consultation document is published. Oftel will
also ensure that Statements issued at the conclusion of a consultation
exercise make clear what account has been taken of the responses made
to that consultation exercise.
3.9. Oftel will
include on its website a rolling diary of events covering the remainder
of the Management Plan year. This will be updated weekly to include
provisional publication dates for consultation documents, as well as
the dates of other events being organised by Oftel. Where appropriate,
the diary will include additional information about the issues to be
consulted on and the expected target readership, and Oftel hopes that
this will make it easier for stakeholders to identify those issues in
which they have a particular interest and on which they may wish to
respond.
3.10. When a consultation
document or statement is published Oftel will also ensure that the date
of publication is included on the electronic copy of document and that
each document is given a short, but descriptive, title. Oftel is also
planning to improve its cataloguing of published documents, including
the use of reference numbers which can uniquely identify each document.
3.11. Oftel will
continue to make copies of consultation documents available on disk,
so that individuals with computer access can access the information
in the format most convenient to themselves. Oftel also has arrangements
in place with organisations providing transcription services so that
formats such as large print, Braille and audiocassette can be made available
on request. Oftel is mindful of the needs of disabled people, and of
its own legal responsibilities under the Disability Discrimination Act
1995, and will, of course, make reasonable adjustments to its practices
to ensure that disabled people are not discriminated against.
General consultation
on regulatory policy and market competitiveness
Current practice
3.12. Oftel generally
allows 12 weeks for stakeholders to respond to consultation documents
which address matters of general regulatory policy or assessments of
competition. In exceptional circumstances, where the issue has been
the subject of successive rounds of consultation (such as the continuing
review of controls on BT’s prices); or where urgent intervention is
required to resolve a serious breakdown in negotiations between opposing
interests (such as occurred on several occasions in the case of local
loop unbundling), a lesser period has been allowed, reflecting the particular
circumstances.
Views expressed
3.13. All respondents
agreed that 12 weeks was a reasonable period for general consultations,
and most agreed that there might be a case for reducing this period
in specific instances, on a case-by-case basis. Almost all respondents
believed that shorter consultation periods should be applied only in
exceptional circumstances and only after reasons had been given and
the views of stakeholders canvassed. Although BT argued that accelerated
consultation processes should be applied to deregulatory measures, communications
companies did not, generally, favour the proposal that consultation
exercises should be conducted in "Internet time" and were
concerned that Oftel might use accelerated consultation processes to
implement potentially damaging or costly initiatives before those companies
could mount a reasoned objection. Groups which represent the interests
of communications users were mainly concerned that shortened timescales
would, in effect, disenfranchise them from Oftel’s consultation processes
if the short window for responding to a document failed to coincide
with their own timetable for convening meetings.
The future
3.14. Oftel will
continue to allow 12 weeks for comments to be made on most general consultation
documents. Where necessary, Oftel may, however, apply shorter periods,
but on each such occasion, before publishing the consultation document,
Oftel will give stakeholders reasonable notice of its intention, providing
an explanation for the proposal to allow a reduced consultation period,
and will consider any comments on the proposal. These proposals will
be published on Oftel’s web site and will be notified to those on Oftel’s
e-mail notification list. (Stakeholders which wish to be included on
or deleted from Oftel’s e-mail notification list should visit the Whats
New section of Oftel’s website www.oftel.gov.uk.). Shortened consultation
periods will be applied only in exceptional circumstances such as where
delay is likely to cause significant customer detriment, where the issues
are subject to a series of linked consultations or where urgent regulatory
intervention is required to resolve a serious breakdown in negotiations
between opposing interests.
Comments-on-comments
Current practice
3.15. Oftel generally
allows a period of 14 days during which stakeholders may comment on
the responses made by others to consultation exercises which address
matters of general regulatory policy or assessments of competition.
In practice, Oftel takes into account all responses submitted up to
the point at which the preferred policy option is decided upon or the
assessment of the state of competition is completed. Whilst a few European
national regulatory authorities publish copies of responses made to
consultation documents (and the Italians have recently adopted this
practice), most publish only summaries of those responses. The Danish
national regulatory authority, alone, has reported that it invites comments-on-comments
in selected instances when engaged in extended multi-stage consultation
on interconnect issues. Other sector-specific UK regulators and other
parts of the UK public sector do not generally deploy a comments-on-comments
stage.
Views expressed
3.16. There were
mixed views on the merits of the formal 14 days comments-on-comments
stage. Many respondents confirmed that they do not currently make use
of this facility. Consumer groups, in particular, reported that resource
constraints often make it impossible to participate in this stage of
the consultation process. Nevertheless most respondents to this consultation
exercise reported that they value the ability to read and, potentially,
comment in some way on the responses of others. There was strong support
for the proposal that all responses, except those marked confidential,
should be published on Oftel’s website.
The future
3.17.Oftel will
publish on its website copies of all non-confidential responses to consultation
documents so that, as a minimum, stakeholders may draw to Oftel’s attention
any inaccuracies or misrepresentations included in responses made by
others. (Paper copies will continue to be made available at Oftel’s
offices). Oftel will endeavour to achieve this publication by the end
of the working day after the initial consultation period closes; this
will be made much more feasible if stakeholders can provide electronic
copies of their responses, particularly the larger documents which,
in paper form, may be time-consuming to scan. The length of time, if
any, allowed for more considered comments-on-comments in relation to
consultations on regulatory policy or market competitiveness will vary
from case to case, and will no longer be a standard 14 days, as has
been Oftel’s practice; the decision in each case will depend on the
expected volume and complexity of responses and the urgency of the issue.
How much time, if any, is to be allowed for formal comments-on-comments
will be made clear in each consultation document.
Consultation
which precedes the making of determinations in respect of Significant
Market Power, Market Influence and Universal Service
Current practice
3.18. Before making
a determination that an operator has Significant Market Power or Market
Influence or is a provider of Universal Services, the Director General
must conduct a 3-stage 70-day consultation exercise in accordance with
paragraph 6 of Part 1 of Schedule 1 to the relevant PTO licences. This
lengthy consultation process often follows a 12 week consultation (and
subsequent 14 day period for comments-on-comments) on the market conditions
which inform the decision to make the determination. Thus, the total
process can take a minimum of 6 months (excepting the additional time
needed by Oftel to evaluate responses and draft the necessary documents).
Views expressed
3.19. Many respondents,
including communications providers, agreed that current consultation
processes look very protracted. However, there was widespread concern
that Oftel might seek to reduce these; as providers pointed out, such
determinations can lead to the imposition or removal of significant
regulatory obligations. There was some acceptance, however, that, where
a determination must be remade for purely administrative reasons and
little time has elapsed since the original determination had been made,
a lesser period of consultation should be allowed. However, in general,
respondents were concerned that the issues should be debated fully before
the serious decision is taken to make a determination in respect of
Significant Market Power, Market Influence or Universal Service.
The future
3.20. Oftel does
not intend to propose immediate modifications to those parts of operators’
licences which specify timescales for the making of such determinations.
Nevertheless, Oftel remains concerned that, in some circumstances, management
of current processes can be unduly time-consuming. Oftel will endeavour
to initiate these formal consultations, which are defined in operators’
licences, as soon as possible after concluding the wider consultation,
on the policy options or the state of competition in a particular market,
which often precedes the making of a determination. The first part of
the formal consultation process, defined in paragraph 6 of Part 1 of
Schedule 1 to the PTO licences, requires the Director General to serve
notice on the licensee, with reasons, informing him that, for example,
the licensee is an operator with Significant Market Power. The Director
General is also obliged to copy that notice to interested parties at
the same time that it is served on the licensee. Where this formal process
is preceded by a wider consultation on, for example, competition in
the relevant market, it may be possible for Oftel to serve notice on
the licensee, with reasons, simultaneously with the issuing of the Statement
on the conclusions of the market review.
3.21. Oftel has
on occasion also consulted informally on policy proposals before starting
the formal 3-fold process. However practise on this issue has been inconsistent.
Oftel believes that, when a full market review has been carried out,
it would be unnecessarily time consuming to add a further layer of consultation
before beginning the formal process, except in the most exceptional
of circumstances.
3.22. Consultative
processes used for making determinations of this kind will need to be
reviewed again in the light of the obligations which the new Framework
Directive will impose on national regulatory authorities. Oftel’s initial
view is that the periods may need to be reduced and that it will no
longer be desirable to retain a three-fold structure to the consultation.
Consultation
which precedes the making of directions, consents and other kinds of
determinations
Current practice
3.23. Paragraph
4 of Part 1 of Schedule 1 to PTO licensees also require the Director
General to notify licensees, with reasons, and give the licensees and
interested parties a reasonable opportunity to make representations
before a direction, consent or any either kind of determination is made
(ie determinations other than those referred to in paragraph 3.18 above).
Licences do not, however, specify how much time should be allowed for
responses to be made, neither do they specify how many stages of consultation
should be used. With the exception of consents, Oftel has generally
allowed a period of 28 days for representations to be made, followed
by a further period of 14 days during which comments may be made on
the comments of others.
3.24. Directions
in respect of interconnection disputes are made using powers granted
to the Director General under the Interconnection Regulations. These
regulations also allow the Director General to intervene on his own
initiative. Although the regulations do not require the Director General
to consult publicly, in practice Oftel has applied the same consultative
processes as have been applied to directions, consents and determinations
under paragraph 4 to Part 1 of Schedule 1 of the PTO licences. Across
Europe, few, if any, other national regulatory authorities publish draft
determinations and, in some cases, determinations in respect of disputes
between just two parties remain confidential. The German national regulator
appears to be the only one which, in some circumstances, recognises
the legal right of other interested parties to take part in the proceedings.
It is also interesting to note that the German regulator relies in large
part on public oral hearings when making determinations in respect of
interconnect disputes. The Danish regulator too has reported having
used an oral hearing when determining the outcome of a dispute which
had implications for other parties, although this appears to have been
an unique case.
Views expressed
3.25. Respondents
expressed some concern that reduced consultation periods might prevent
the parties to a dispute from engaging in last minute negotiations prior
to the direction or determination being made, and there was a widely
expressed view that 28 days should be viewed as the minimum period for
consultation on these issues. Whether an additional 14 days should be
allowed for comments to be made on the responses of others was less
clear, but many respondents accepted that a single formal consultation
period should suffice where any new regulatory policy had already been
consulted upon.
The way ahead
3.26. Such determinations
and directions are almost always preceded by commercial contact between
the parties and, subsequently, detailed discussion or exchange of correspondence
with Oftel. As a consequence, the practice of issuing a draft determination
or direction is usually intended to allow the precise details and form
of the determination or direction to be commented upon, rather than
the broader policy objective debated. A single 28-day consultation period
should suffice to allow the parties to comment. The Director General
intends, therefore, to allow not less than 28 days for comments to be
made on his proposed decisions to issue directions and determination
under paragraph 4 of Part 1 of Schedule 1 to PTO licensees, or directions
in accordance with the Interconnection Regulations. A further formal
period of 14 days, for comments-on-comments, will not generally be built
into the process for making directions and determinations of this kind.
In exceptional instances where, for example, the issue is expected to
be particularly contentious and subject to opposing views from different
stakeholder groups, and an iterative approach is expected to be productive,
Oftel may specify a formal period for comments-on-comments; this will
be made plain when the draft determination or direction is issued. Whether
each such determination is preceded by a wider consultation on the issues
involved, will depend on whether the making of the determination necessarily
involves significant development of regulatory policy. It is likely
that, in most instances, this will not be the case.
3.27. In the case
of consents, typically where the Director General agrees, on a particular
occasion, to waive or modify the licensee’s publication or notification
obligations in respect of new technical interfaces, the consent has
often been granted on the basis of long standing published criteria.
Here, the Director General continues to take the view that it is not
appropriate to re-consult on the issue as such a consent is granted
on the basis of previously published criteria.
Public and industry
meetings
Current practice
3.28. Oftel currently
hosts an Operator Policy Forum at approximately 6-week intervals, a
Service Provider forum at approximately 2-month intervals, a Numbering
Forum every 6 months and an Internet forum on a more ad hoc basis. A
number of focus groups meet under the auspices of the Operator Policy
Forum, and these generally address the practical issues faced by the
industry when implementing new initiatives such as Carrier Pre-Selection,
Number Portability, and Local Loop Unbundling. The groups are usually
chaired by a manager from one of the operators which is participating
in the group, and Oftel’s role is limited to that of co-ordination and
provision of general guidance on the likely course of regulatory intervention
should commercial negotiation and discussion break down. In some instances
Oftel has also taken over the chairmanship when relations between operators
have deteriorated. Focus groups report on their progress to the Operator
Policy Forum. Other groups, such as the Public Network Operators’ Interest
Group, meet under the auspices of the Network Interoperability Consultative
Committee (NICC) which is chaired by an independent academic and for
which Oftel provides secretarial support. The NICC groups address technical
issues of concern to the industry although, on occasions, Oftel has
taken the initiative and asked the NICC to establish a group to consider
a specific issue. Although the NICC groups are not answerable to the
Operator Policy Forum, the forum takes a close interest in their activities.
Views expressed
3.29. Operators
and service providers which responded to the consultation document,
generally reported that they valued the various open meetings hosted
by Oftel, predominantly as a mechanism for disseminating information.
The converging interests of network operators and service providers
was also acknowledged. The likelihood that groups representing end users
could add value to these meetings was also widely accepted. However,
few groups which represent the needs of business users chose to respond
to this consultation document, which may suggest that they have little
interest in attending forum meeting hosted by Oftel. The Communications
Management Association, which did reply, shared the view of the Operators’
Group that Oftel has a significant role in informing and alerting stakeholders
to changing regulation. While welcoming the proposal that a business
users' forum might be started, the Association also emphasised that
Oftel should host more one-day workshops at which the impact of particular
new technologies and regulation is discussed. Groups which represent
the interests of residential consumers were more concerned than business
groups about the resource implications of attending regular forum meetings
and these groups tended, instead, to emphasise the importance of appropriate
institutional arrangements for ensuring that the interests of domestic
consumers are properly represented.
The future
3.30. As many respondents
acknowledged, there is considerable overlap between the various fora.
Oftel will host a new Oftel Forum, initially at quarterly intervals,
which will be open to operators and service providers. Alternate meetings
of this forum, at 6 monthly intervals, will also be open to representatives
of general consumer groups and specific communications user groups and
the agenda will be focused on the impact of regulation on users of communications
services. To keep numbers down to a manageable size, attendance at all
meetings will be limited to 1 delegate per organisation. Oftel intends
that these meetings should be used as a means for Oftel to disseminate
information about regulatory issues of current concern and to provide
some advance warning of forthcoming public consultations. Oftel will
also encourage attendees to present to Oftel on matters of current concern.
Oftel anticipates that the first such forum will be held in the third
quarter of 2001/2.
3.31. The present
Operator Policy Forum and Service Provider Forum will continue. However
these will be refocused on issues which are of narrower interest to
network operators or services providers alone, including the output
of working groups. Meetings will be convened immediately before or after
meetings of the new quarterly Oftel Forum so that delegates can combine
attendance at both. Oftel envisages that the Operator Policy Forum may
wish to meet, additionally, between these quarterly dates so that, overall,
the present 6-week interval between meetings is broadly maintained.
Additional meetings of the Service Provider Forum, which currently meets
less often than the Operator Policy Forum, will also be held if required.
Issue-specific meetings, such the Internet Forum and the Numbering Forum,
will continue to be held to address specific issues of concern to users
and/or industry, and Oftel will welcome proposals for issues for such
meetings to tackle.
3.32. Oftel shares
the concern of consumer groups that there should be proper institutional
arrangements for the representation of consumers. The December 2000
White Paper,A New future for Communications, announced that the government
would establish a new consumer panel to advise the regulator. The White
Paper envisaged that the panel would be able to research consumer views
and concerns on service delivery, represent these concerns to OFCOM
and other relevant bodies, and publish its findings and conclusions.
The government is committed to establishing a panel that has a high
degree of independence and public visibility, and anticipates that the
panel’s authority will be significantly enhanced by the ability to commission
its own research.
3.33. The Director
General has recently appointed a number of consumer consultants each
of whom, individually, will provide specialist advice to the Director
General and his staff on specific consumer issues. These consultants
are expected to help significantly to sharpen Oftel’s consumer focus.
3.34. Several respondents,
from both industry and consumer groups, recommended that some meetings
should be held outside London. Oftel is mindful of the danger of assuming
that London is a convenient location for most stakeholders. Nevertheless,
it is true that many communications companies, consumer groups and groups
which represent the business community are based in and around London.
Where appropriate, Oftel will host meetings away from London, particularly
where the subject matter is such that stakeholders based away from London
may have a distinct view (for example where matters to do with Universal
Service or rural services are being discussed). However, Oftel is not
persuaded that it would be efficient to host regular open fora outside
London.
3.35.
During the next 12 months, and beyond, Oftel will continue to explore
a wide variety of consultation techniques, with a view to ensuring that
public consultation remains an effective and transparent means of achieving
Oftel’s goal of the best deal for consumers in terms of quality, choice
and value for money. The initiatives outlined in this Statement will,
inevitably, need to be tested and refined, but Oftel believes that they
represent a package of measures which will help to maintain a dynamic
and constructive relationship between Oftel and its stakeholders.
Annex A
List of stakeholders
contacted individually
Age Concern
British Chambers of Commerce
Communications for Business
Communications for England
Communications Management Association
Computing Services and Software Association
Confederation of British Industry
Consumers Association
DIEL
Direct Marketing Association
Federation of Communication Services
Federation of Electrical Industries
Federation of Small Businesses
Institute of Directors
Internet Service Providers Association
Large Business Users Forum
Local Government Association
London Internet Exchange
National Association of Citizens Advice Bureaux
National Consumer
Council
Northern Ireland Advisory Committee on Telecommunications
Operators Group
Public Utilities Access Forum
Ricability
Royal National Institute for the Blind
Royal National Institute for the Deaf
Scottish Advisory Committee on Telecommunications
Telecommunications Industry Association
Telecommunications Users’ Association
Welsh Advisory Committee
on Telecommunications
Annex B
List of respondents
to the consultation document
BAA
BT
Centrica
Communications Management Association
Concert
Consumers’ Association
Communications for Business
Communications for England
DIEL
Easynet
Energis
Mencap
National Association of Citizens Advice Bureaux
National Consumer Council
Northern Ireland Advisory Committee on Telecommunications
Nottinghamshire Area TAC
ONDigital
One 2 One
Operators Group
Orange
Vivienne Pozo
Public Utilities Access Forum
Royal National Institute
for the Blind
Scottish Advisory Committee on Telecommunications
Telecommunications Action Group
Thus
Welsh Advisory Committee on Telecommunications
In addition, meetings
to discuss Oftel’s use of public consultation had been held, before
preparation of the consultation document, with the following organisations;
Communications Management
Association
Computing Services and Software Association
Consumers Association
Federation of Communication Services
National Consumer Council
Operators Group
Telecommunications Industry Association
Telecommunications Users’ Association
Annex C
Detailed summary
of responses to specific questions raised
1. Do stakeholders
agree that, in general, 12 weeks is still an appropriate period for
allowing comments to be made on consultations documents which address
matters of general policy which have not been addressed in that form
before?
(i) All respondents
agreed that 12 weeks is an appropriate period of time, although the
National Consumer Council warned that due account may need to be taken
of substantial holiday periods.
2. Do respondents
agree that it is appropriate to consider reducing, on a case by case
basis, the usual consultation period of 12 weeks where most of the issues
have previously been consulted upon?
(i) The statutory
Telecommunications Advisory Committees, the Consumers Association (CA)
and the National Consumer Council (NCC) all agreed that there might
be advantages, but all advised that Oftel should exercise caution. In
particular, the NCC recommended that Oftel should give specific reasons
for each reduced consultation period, should accept provisional responses
from organisations which had not had an opportunity to obtain sign-off
from their decision-making body, and should be receptive to requests
for extensions to the consultation period. The NCC also recommended
that 2 months should be the minimum period for re-consultation, except
where the issues are very simple, and here the new document should summarise
the results of the prior consultation. CA argued that shortened consultation
periods should be applied only where this is needed to address serious
and urgent customer detriment, and not where the pressure is commercial.
CA also argued that reduced consultation periods need to be agreed with
consumer representatives on a case by case basis. However CA acknowledged
the merit of applying reduced consultation periods where an issue is
subject to multiple re-consultations, such as the review of BT Price
Controls. The Public Utilities Access Forum (PUAF) agreed with NCC that
2 months should generally be seen as the minimum consultation period
except where the re-consultation involves insignificant or procedural
matters. PUAF also recommended that advance notice of plans to re-consult
should be given.
(ii) The Communications
Management Association (CMA), which was the only representative of business
users which responded to the consultation exercise, viewed the proposal
positively but warned that it could create difficulties when large numbers
of consultation documents require responses simultaneously.
(iii) Communications
companies too had reservations. The Operators Group (OG) which represented
the views of 26 networks operators (excluding BT) recognised that there
might be scope to apply shortened consultation periods where an obvious
link is maintained between 2 or more consultations or if, at the start
of the consultation process, there is a clear commitment to reconsult.
However OG argued that reduced consultation periods must be applied
only in limited and unavoidable circumstances, and that Oftel should
provide clear reasons for the departure from the norm. Energis, which
submitted an individual response, agreed that reduction of consultation
periods on a case by case basis is a sensible approach, provided that
it is applied conservatively. EasyNet, Concert and Centrica too favoured
reduced consultation periods where a complete consultation process has
previously been undertaken, though Energis shared the views of many
that Oftel would need to take into account the ability of all interested
stakeholders to respond. However, One2One and Orange which also submitted
their own responses, were less favourably disposed to the idea of reduced
consultation periods even in limited circumstances such as those referred
to by the Operators Group. BT was more strongly in favour of shortened
consultation periods than most companies, particularly where a policy
consultation needs to be supplemented by a further round of consultation.
However, BT argued that stakeholders should be given an opportunity
to object to the proposed shortened consultation period.
3. Do stakeholders
agree that it is appropriate to consider reducing the consultation period,
on a case by case basis, where the key issues are of direct interest
only to a narrow class of stakeholders, most of whom are able and willing
to respond within less than 12 weeks?
(i) Responses to
this proposal were similar to those made to the previous proposal, and
tended to emphasise the importance of ensuring that all interested stakeholders
are able to respond within the shortened consultation period.
(ii) The Consumers
Association was concerned that Oftel might seek unilaterally to determine
who are the relevant stakeholders in a given context, and the National
Consumer Council (NCC) and the Public Utilities Access Forum too were
concerned that the addressing of consultation documents to a narrow
set of stakeholders might result in a wider loss of transparency; both
argued that Oftel should explain why such consultation exercises had
been judged to be of minor significance to consumers. The Communications
Management Association, while supporting accelerated consultation exercises,
recommended that where possible advance warning should be provided in
Oftel’s Annual Management Plan.
(iii) Communications
companies shared the concern of consumer groups that Oftel might seek
to determine who are the relevant stakeholders in a particular scenario.
The Operators Group also warned that Oftel should take care to ensure
that all stakeholders, including those not directly affected by the
issue being consulted on, are able to express a view notwithstanding
the fact that a narrow group of core stakeholders already holds a clear
view. This concern was also expressed individually by Energis and Orange.
Orange argued that if such consultation periods were reduced to a matter
of a few days, this would not allow sufficient time for stakeholders
outside the core group to respond. Concert too recommended that such
consultation exercises should be notified to a wider group than the
core of identified stakeholders. Centrica, while generally supportive
of the proposal, recommended that accelerated consultation processes
should be preceded by a formal proposal explaining the reasons for the
departure from the norm and inviting agreement from identified stakeholders.
4. Do stakeholders
agree that, in general, it is appropriate to allow 28 days for comments
on consultation documents which are intended to precede the issuing
of a direction or determination [ie those subject to paragraph 4 of
Part 1 of Schedule 1 to PTO licences]?
5. Do respondents
agree that, in the case of formal consultations undertaken as part of
a process of making determinations about market power or universal service
obligations [ie determinations subject to paragraph 6 of Part 1 of Schedule
1 to PTO licences], the three stage 70 day consultation process should
be reduced to a one stage process of 28 days? Do respondents agree that
where the argument in favour of making the determination has previously
been the subject of public consultation, formal consultation on the
form of the determination could be further reduced to 14 days?
6. Do respondents
agree that, in these circumstances too [ie where a determination needs
to be remade for legal or administrative reasons,] the 3 stage 70 day
consultation should be reduced to a single period of not less than 28
days?
(i) Responses to
questions 4,5, and 6 can most usefully be summarised together. As with
the proposition that consultations on matters of general policy might
be conducted in less than 12 weeks, most respondents expressed reservations
about the proposals to reduce the periods of time allowed for making
responses to formal proposals to issue determinations or directions.
(ii) The English
and Scottish statutory Telecommunications Advisory Committees and the
statutory Committee for Business, plus the Consumers Association, the
National Consumer Council and the Public Utilities Access Forum all
agreed that the three stage 70 days consultation process currently operated
before making formal determinations in respect of Market Influence,
Significant Market Power and Universal Service obligations was excessively
long, and some of these organisations recommended that the three stages
should be replaced by two or even one stage. However, a reduction to
a single 28-day period was thought extreme, even when the broader issues
had been debated immediately before starting the process of making the
determination. The Communications Management Association (CMA), representing
a section of business users, was a little more favourably disposed to
the proposal, but advised trialing this before committing to permanent
adoption. BAA plc agreed, however, with all of the proposals to reduce
consultation periods. All of these groups accepted that a single 28
days period would provide adequate time to comment on other types of
draft determinations and directions (which generally require an operator
to take specific action), and took a relaxed view of the proposal to
shorten the consultation process where determinations were being remade
for legal or administrative reasons. The CMA also argued more positively
for a reduction in the length of time allowed for comments to be made
on draft determinations and directions which require specific action
and which may well require a fast response.
(iii) Communications
companies, too, generally accepted that the present 3-stage 70 days
consultation process appeared to be unduly protracted, but they were
concerned that Oftel’s proposals were too extreme. The Operators Group
argued that the present 3 stage process provides for checks and balances
that a single stage process would not deliver and suggested that if
Oftel wished to reduce the actual time involved in consultation it could
provide the relevant information at an earlier stage. Centrica, while
agreeing that the process should be shortened, recommended that two
stages, of 28 days and 14 days, would be appropriate. Energis, too,
recommended a two-stage approach and recommended that the draft determination
should be issued with the initial consultation on the state of the market.
One2One and Orange were adamant that there should be no alteration of
the present 3 stage process, particularly when making determinations
on contentious issues. Concert, alone, agreed without reservation that
a single 28 days period is appropriate where the proposal to issue a
determination follows directly from a wider market consultation. BT
shared this view but applied the caveat that stakeholders should be
entitled to request a longer period. BT also recommended that Oftel
should consider adopting shorter time frames where it proposed to remove
existing determinations. The Operators Group felt that where a determination
had to be remade for legal reasons, a shorter consultation process could
be adopted, but only with the consent of all parties. One2One, Orange
and Centrica also took a relaxed view of the proposal to reduce consultation
periods where determinations had to be remade for legal reasons, provided
that, as Orange warned, the circumstances had not changed.
7. Do respondents
agree that Oftel should abandon its current practice of allowing a formal
period, currently 14 days, during which comments can be made on responses
made by others to Oftel consultation documents, while continuing to
consider points raised before final decisions are made?
(i) Views on this
proposal were varied, even between stakeholders with similar interests,
though most respondents were strongly in favour of responses being made
publicly available as a check against others making false claims. Acceptance
of the proposal was, generally, made conditional on Oftel being willing,
nevertheless, to consider representations made about the responses of
others.
(ii) The Welsh,
Scottish and Irish Advisory Committees saw little value in the comments-on-comments
loop, while the English Advisory recommended that this should be retained
and the Royal National Institute for the Blind argued that electronic
posting of responses might advance the debate more rapidly. The Consumers
Association and the National Consumer Council both observed that, as
consumer groups are often not resourced to contribute to the short comments-on-comments
stage, the process favours commercial respondents who are able to respond
within the short timeframe allowed. Indeed the Public Utilities Access
Forum reported that it was not resourced to use comment-on-comments.
The Communications Management Association, representing business users,
also agreed that the formal comments-on-comments stage should be abandoned
though, like the consumer organisations, it favoured publication of
responses on Oftel’s website. The Telecommunications Action Group while
agreeing that, on balance, the formal stage should be abandoned, shared
the views of other consumer groups that Oftel should continue to accept
comments which respondents choose to make on the responses of others.
BAA plc, the only end user to respond, agreed that the comments-on-comments
stage should be abandoned.
(iii) The Operators
Group observed that all interested parties should have a reasonable
opportunity to comments on issues of concern to them and a loss of the
14 days comments-on-comments stage, if combined with a reduction in
consultation periods generally, might make it difficult for some stakeholders
to make their views know. The Operators Group made no comment, however,
on the merits of the comments-on-comments stage as an element in its
own right. Energis agreed that, provided responses are made publicly
available and Oftel continues to be willing to consider representation
made about the responses of others, a formal comments-on-comments stage
is not necessary. One2One, too, agreed that the loop adds no value to
the overall process. Concert and Easynet agreed that the 14 days period
could, at least, be reduced, particularly if, as Easynet argued, responses
can be viewed electronically. BT, Orange and Centrica, however, felt
that the 14 days comments-on-comments stage should be retained. Centrica
argued that the ability to submit comments-on-comments is particularly
valuable in the case of consultations on new policy issues, and that
if responses could be viewed on Oftel’s website more stakeholders would
participate in this part of the consultation process. Centrica also
recommended that Oftel should try to dissuade respondents from subjecting
their responses to a confidentiality marking, though Centrica recognised
that an element of confidentiality might be inevitable. BT, too, commented
that comments-on-comments provides an important element of transparency
and, like Centrica, believed that electronic publication of responses
would greatly increase participation in the comments-on-comments process.
Orange claimed that it was "disingenuous" to conclude that
comments-on–comments have little merit because only a few comments are
received, pointing that "quality not quantity" should be the
test. Orange went on to conclude that the proposal suggested that Oftel
does not consider the additional views put forward during this period
are relevant.
8. Would stakeholders
find it helpful to be given more advance warning of the expected timetable
for publishing written consultation documents?
(i) There was widespread
agreement that more advance warning of public consultation exercises
should be given. While many respondents agreed that Oftel Management
Plan is useful in this respect, many observed that publication dates
change, and new projects are initiated during the course of the year.
The Advisory Committees, which meet infrequently, reported that they
would welcome more advance notice, as did the Telecommunications Action
Group, the Consumers Association and the National Consumer Council (NCC).
NCC also observed that Oftel should take care to co-ordinate publication
of consultation document to avoid overloading groups of stakeholders
with large numbers of consultation documents in a short period of time.
This view was also shared by the Public Utilities Access Forum. The
Communications Management Association agreed that publication of details
in the annual Management Plan should be followed by a web based rolling
update.
(ii) The Operators
Group agreed that more advance warning would be helpful, but added that
the availability of more detail at an early stage is also important.
Other communications companies which submitted their own responses tended
to share this view and Centrica advised that the target readership should
be made clear too. Easynet proposed that Oftel should create a consultation
diary page on its website, including key milestones such as the start
and end date of the consultation period. Many industry respondents also
drew attention to the need to co-ordinate publication of consultation
documents to minimise the occasions when 2 or more major consultations
are run simultaneously. Orange also made the point that early notification
of plans to consult may enable stakeholders not involved in any early
discussions to make known their interest and to participate in those
discussions. BT, however, saw little value in Oftel providing more advance
warning than that already contained in the annual Management Plan.
9. Oftel would
welcome comments on how a balance can reliably be achieved between relatively
early publication, when the nature of a problem and its possible solution
may still be unclear, and relatively late publication, when Oftel may
already have formed a view or specific proposals.
10. Do stakeholders
believe Oftel should more frequently engage in consultation before and/or
after publication of a written consultation document?
(i) Responses to
questions 9 and 10 can most usefully be summarised together. Most respondents
agreed that a pragmatic approach to the timing of publications is necessary,
and recognised that in some cases Oftel will necessarily have formed
a clearer view of the preferred options than on other occasions. However,
many recommended that Oftel should make it clearer when it had identified
a preferred option.
(ii) The Consumers
Association (CA) reported a perception that Oftel tends towards the
"white" option and frequently presents a limited number of
policy options. Early pre-consultation was recommended by many, and
the National Consumer Council, the English Advisory Committee and the
Communications Management Association (CMA) reported that this was essential.
CA, the Public Utilities Access Forum and the National Consumer Council
were concerned that pre-consultation might be resource hungry, but CA
advised that, if it is used in a targeted manner, it could streamline
the subsequent process of consultation, especially if consumer organisations
were involved in identifying issues of consumer detriment at an early
stage. CMA also recommended that Oftel should engage in a "post
mortem" to review the success or otherwise of each consultation
exercise, with a view to improving efficiency.
(iii) The Operators
Group (OG) saw some merit in a Green and White consultation system,
particularly where early "green" consultation can be used
to identify policy options. However OG recommended that Oftel should
make it clearer to stakeholders when it is employing such a system.
These views were shared by BT. Both One2One and Orange recommended that
Oftel should take care to listen to respondents, and should not merely
use consultation as a means to inform stakeholders of Oftel’s thinking;
both of these operators reported that they believed Oftel is inclined
to consult after it has already formed a view. Centrica argued in support
of greater use of pre-consultation which outlines the expected scope
and methodology of forthcoming consultation exercises, as a means to
greater transparency and minimisation of delays. Concert observed that
informal early consultation can help to determine whether a "green"
information gathering exercise is needed or whether Oftel can move directly
to exploration of one or more formed view. ONDigital warned that efficient
and timely consultation is often reliant on involvement by all interested
parties at an early stage in the consultative process.
11. Are stakeholders
broadly satisfied with the way in which Oftel disseminates information?
More specifically, should Oftel take more care to invite views selectively
from specific stakeholder groups, without necessarily limiting the wider
dissemination of its consultation documents.
(i) Respondents
were broadly content with the way in which Oftel disseminates information,
although the Royal National Institute for the Blind and the Public Utilities
Access Forum expressed concern that copies of documents in alternative
media (Braille, audio tapes, etc), while available, are time-consuming
to obtain. DIEL recommended that Oftel should plan in advance for the
preparation of documents in alternative media, particularly where the
issues covered could be expected to be of interest to people with special
needs. The National Consumer Council (NCC) while welcoming improvements
in Oftel’s use of the web, warned that over-reliance can disenfranchise
voluntary groups without web access. NCC and the Scottish Advisory Committee
both warned that care needs to be taken to ensure that when targeting
consultation documents at specific groups, Oftel identifies all interested
parties, including consumer groups, even though the subject matter may,
at first sight, appear to be technical and of interest only to the industry.
The English Advisory Committee, DIEL and the Committee for Business
recommended that "consumer impact statements" should be used
to help determine which consumer groups should be approached for their
views on a particular issue. For similar reasons, the RNIB recommended
that "disability impact statements" should be used to ensure
that the impact of policy initiatives on disabled people is not overlooked.
Many of the consumer and disability groups which responded also took
the opportunity to express support for the use of market research as
a tool for consulting users of communications services.
(ii) Communications
companies, including those within the Operators Group (OG), were broadly
satisfied with the way Oftel disseminates information. OG was concerned,
however, that informal consultation targeted on a particular segment
of stakeholders should not cause Oftel to pre-judge the issues before
all other stakeholders have been given an opportunity to comment. While
strongly favouring open and transparent consultation with the growing
number of stakeholders, ONDigital expressed some concern that Oftel
relies excessively on statutory advisory committees and consumer panels
which can create a barrier to transparency. ONDigital argued that those
who respond to consultation documents should be self-selecting, not
selected by ministers or regulators. One2One, mirroring the comments
of consumer groups, also called for "impact statements" which
would compare the costs to industry with the benefits to consumers.
12. Would stakeholders
value the ability to read the responses of others on Oftel’s website?
This proposal was
warmly welcomed by consumer groups, business groups and the industry,
although the Welsh Advisory Committee warned that responses should be
accessed directly from Oftel’s website, rather than via a link to the
respondent’s website where it could be modified. In common with consumer
groups, the Operators Group favoured electronic publication of responses,
pointing out that this would offer significant benefits to operators
which are based away from London.
13. What do stakeholders
see of value in the current composition of the Oftel/industry fora,
and the frequency with which they meet? How could the fora be improved?
14. Do groups
which represent the interests of Corporate, Business and Residential
users of telecommunications think one or more Oftel hosted User Fora
would be useful? If so, what form should these take?
15. Oftel would
welcome the views of stakeholders on the opportunities for co-operative
working between user groups and providers of infrastructure and services.
(i) Comments on
questions 13, 14 and 15 can best be summarised together. While consumer
groups, including the statutory advisory groups, the Consumers Association
(CA) and the National Consumer Council (NCC) all agreed that a forum
for representatives of user groups might be useful, all of these groups
emphasised the greater importance of ensuring that consumers were adequately
represented by institutional arrangements. CA, NCC, the English and
Scottish Advisory Committees and the Telecommunications Action Group
(TAG) all looked ahead to the development of appropriate institutions
to represent consumers’ interests to OFCOM. NCC reminded Oftel of the
wide array of different mechanisms, including market research, consumer
juries, public meetings and conferences, which can be used, in addition
to public consultation, to explore issues with consumers. Involvement
of consumer organisations in co-regulatory working with industry, including
attendance at joint fora for industry and users, was viewed positively,
though, by some, with an element of scepticism; NCC, the Scottish Advisory
Committee and TAG raised concern about the cost and ownership of co-regulatory
initiatives. The Northern Ireland Advisory Committee reported that,
on the provider side, willingness to engage in co-operative work with
user groups has not yet been tested. The Welsh Advisory Committee warned
that if all such meetings are held in London, the views of urban users
might be over-represented, and the RNIB, too, urged Oftel to get out
of London more. Mencap and Hearing Concern both stated that some contact
between manufacturers and user groups would be useful. The Communications
Management Association (CMA) observed that the old distinction between
operators and service providers would increasingly become blurred, and
CMA reported that it has found joint fora between operators, service
providers and users particularly useful. CMA recommended that a forum
for business users should be held twice a year to discuss strategic
issues, and also called for more one-day sessions and workshops designed
to explore specific issues. CMA also draw attention to the importance
of Oftel’s role in informing and alerting stakeholders to the potential
impact of new technologies and the significance of these for regulation.
(ii) The Operators
Group (OG) shared the view of the Communications Management Association
that the present industry fora are useful opportunities for Oftel to
disseminate information to stakeholders. Energis reiterated this view,
while playing down the feasibility of attendees providing immediate
feedback to ideas presented. OG also reported that the working groups
which currently report to the various industry fora are important links
between policy formation and implementation. BT, while valuing the various
industry fora, warned against these being used as a short cut to the
taking of policy decisions. OG agreed that feedback from user groups
could be useful, particularly at the early "green" stage of
consultation. BT agreed that user groups have a role to play particularly,
in BT’s view, in areas to do with consumer protection. OG warned, as
did some consumer organisations, that companies which are based outside
London may be disadvantaged by Oftel’s practice of holding most meetings
at its London office. Thus plc submitted an individual response which
further emphasised this concern. Centrica agreed that what is described
as the dichotomy between the Operator Policy Forum and the Service Provider
forum should be addressed and there should be more joint working between
operators and service providers particularly with a view to discussing
longer term strategic issues. ONDigital also argued for involvement
by a much wider range of stakeholders and a move away from reliance
on what it characterised as closed industry working groups. Some companies,
including Concert, were concerned that if a wider range of stakeholders
was invited to some of the present fora, the resulting large numbers
would reduce the effectiveness of these fora. Orange, too, warned that
existing fora are often too large to allow for effective debate, and
expressed concern that joint meetings between users and providers could
end up lacking focus.
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