Effective Dispute Resolution by Independent National Communications Regulatory Authorities

1. Effective Dispute Resolution by Independent National Communications Regulatory Authorities Joe McNamee Serbian Agency for Telecommunications, Belgrade 25 May 2007

2. Political Intelligence • Research and public affairs consultancy • Conducts research on impact of legislation for major international telcos and Internet companies • Runs two European and four national ICT-related trade associations • Three studies for the European Commission – numbering, local loop unbundling, ICT in Russia and former Soviet states • Contracted to European Parliament for ICT research • Previously worked on Southern Caucasus with GIPI for Eurasia foundation on E-Commerce regulation

3. Overview • Introduction • EU Approach • Disputes between Communications Service Providers • Some best and worst practice/experience • Consumer disputes • Good and less good experiences from the UK • Conclusions

5. Dispute Resolution - Aims • Skilled understanding of the problem combined with • Resources to ensure rapid solutions with • Authority to make politically difficult decisions allowing • Confidence of all parties that • A balanced solution will be found ensuring • Equality, transparency and consistency

6. Dispute Resolution – The Stakes *Failure to resolve disputes quickly can: • Delay the introduction of new services and infrastructure • Block or reduce the flow of capital from investors • Limit competition, increasing prices and reducing service quality • Retard liberalisation – and with it, general economic, social and technical development • “Too often, telecommunications disputes have caused unnecessary disruptions and delays in the development of telecommunications markets” *ITU – Dispute Resolution in the Telecom Sector “In most EU Member States dispute resolution procedures have taken longer than the four months timeframe mandated in the EC Framework” – ECTA 2006Regulatory scorecard

7. EU Approach - 1 • Consumers - “Simple and effective” dispute resolution by a body independent of the parties (EU Framework Directive) • “Consumer protection goes hand in hand with the growth and diversification of electronic communications services and a growing number of service providers” (European Commission, 12th Implementation Report) • Communications Service Providers – NRA must provide: • At the request of either party • A binding decision to resolve the dispute • In the shortest timeframe • In any case within four months • The State must ensure that all parties cooperate • If mediation or other options offer a better chance of success, these should be used – in this case NRAs can decline resolving dispute • After four months, if no decision and no court action, either party can ask NRA to decide to…decide within another four months • Decisions must be in line with the objectives and letter of the law • Decisions are made public • Parties are free to take actions to court

8. SECTION 1 Communications Service Provider Disputes

9. EU Approach - 2 • International Disputes • Any party to the dispute can refer a complaint to an NRA concerned • NRAs to work together to resolve disputes • Judgments must respect the objectives and letter of the law • If mediation or other options offer a better chance of success, these should be used – in this case NRAs can decline resolving dispute • After four months, and in the absence of court actions, NRAs should coordinate efforts to reach a resolution • Parties are always free to take cases before the courts

10. EU Best Practice – Dispute Resolution(2006 Implementation Report) • Perception of independence increases effectiveness • Effective separation of regulatory and ownership functions improves real and perceived impartiality • Clear determination of the NRA to encourage market parties to consult each other or informal mediation procedures before formal dispute resolution may reduce the number of disputes • Informal mechanisms to report their positions to the NRA as well as internal mechanisms in associations can serve to provide additional dispute resolution mechanisms

11. EU Problems – Dispute Resolution(2006 Implementation Report) • Some NRAs’ procedures are so cumbersome that it drives operators to other mechanisms • Some NRAs lack resources and therefore avoid intervening in disputes • Some NRAs do not have the powers to enforce their judgments • Some NRAs experience of long appeals procedures and/or enforcement problems dissuade them from dispute resolution

12. EU Problems – Court Action(2006 Implementation Report) • Right of appeal “is a fundamental principle of the framework” • Appeals take 4 to 6 years in Italy and Portugal • The Greek courts have never issued a decision, with some cases outstanding since 2001 • Some decisions are systematically appealed in Belgium, Cyprus, Estonia, Hungary, the Netherlands, Slovakia and Sweden • “Action may be necessary to incentivise a more reasonable approach by market players”

13. Problematic incumbent approach • It’s good to talk… and talk… and talk • And then take the NRA decision to court • And then appeal the decision • And then question the implementation of the decision • And then appeal • Complaints are often life or death for competitive operators • Sometimes talk is not cheap

14. Problematic competitive operator approach • Automatically complain • Take the most aggressive approach rather than testing less confrontational approaches first • Demand more than the legal framework requires • Leave it to the NRA to start dialogue with incumbent • Leave it to the NRA to study the legal background

15. UK Example – CSP DR Principles • Disputes (alleged failures to respect Competition Act) submitted to NRA must: • Have a clearly defined scope • Provide evidence of failed commercial negotiation • A statement by a company officer (ideally CEO) confirming best endeavours have been used to achieve agreement by commercial negotiation • Complaints (alleged failures to respect ex ante obligations) submitted to the NRA must: • Identify specificex ante obligation or competition abuse • Provide factual evidence supporting the allegation • Include a statement by a company officer (ideally CEO) confirming the completeness and accuracy of information provided negotiation • The NRA strictly enforces these rules but does undertake to help smaller business comply, if they wish to make a complaint

16. UK Example 2 – DR Deadlines • Deadlines: • Disputes (breaches of ex ante obligations) – 4 Months • Competition Law • 6 months if no grounds for action • 12 months if infringement • NRA avoids involvement unless one party is dominant or competition or consumers would suffer • Where NRA avoids involvement, it does so in preference for alternative methods of dispute resolution

17. UK Example 3 – DR Methodology • Scope is established at the outset (based on complaint) and NRA avoids deviation unless breaches of competition law are identified • NRA insists on timely access to information and has formal powers to take enforcement action against companies failing to provide data • Consultations will be undertaken with all parties for whom the outcome is of interest • Investigation first establishes whether the Competition Act (preferred) or Communications or Broadcasting Acts should be used

18. UK Example 3 – DR Scope • General conditions imposed on CSPs • Universal service obligations • SMP conditions imposed after market review • Access conditions for access control services • Access conditions for electronic programme guides • Competition conditions in Broadcasting Act Licenses • Conditions related to spectrum trading • Misuse or improper use of public electronic communications networks

20. SECTION 2 Consumer Disputes

21. Consumer dispute resolution – UK Example • Two DR schemes • Telecommunications Ombudsman • Communications and Internet Services Adjudication Scheme • ISPA works with CISAS to improve efficiency of system for consumers and Internet service providers • Ombudsman scheme members are 96% of fixed line market, 55% of mobile market and 33% of ISP market • Adjudication scheme has well over 200 member companies • Huge increase in membership of these independent schemes in recent years

22. UK Example 2 • NRA must ensure that Code of Practice is available. If a CSP is not a member of dispute resolution body, NRA will not approve the Code of Practice • Failure to comply can result in a penalty of 10% of turnover • DR must: • Be independent • Be easy to use, fair and transparent • Be free of charge for consumers • Have access to all necessary information to make judgments • Investigate disputes effectively • Must be able to make awards of appropriate compensation • Must be able to ensure that compensation awards are properly implemented • Consumers are not bound by DR decision and are free to take court action, if they wish. In 2004/2005, consumers accepted 80% of decisions

23. UK Example 3 - Problems • CSP staff failed to identify complaints that should have been referred to ADR (0.5% of all complaints referred) • Due to failure to refer, complaints went directly to NRA • Consumers are not given information enabling them to use scheme correctly, so only a small proportion of complaints are actually treated by ADR body • One of the two ADR bodies had too few staff, resulting in significant backlogs and deadlines being missed in 85% of cases • On the basis of a small sample, NRA reports about half of complainants happy with ADR body response, compared with one third happy with CSP response

24. UK Example 4 – Suggested Solutions • CSPs to improve procedures and information to consumers about ADR options • CSPs to log all expressions of dissatisfaction as complaints to provide consistent statistics • ADR providers to take action against CSPs that fail to respect rules or best practice – alerting the NRA as appropriate • ADR providers should monitor demographics of complaints to ensure that action can be taken to improve information for underrepresented groups • ADR providers should use an independent third party to handle complaints about its own procedures • NRA to develop best practice guidelines for CSPs

25. UK Example 5 – Basic Approach • NRA has prepared guidelines for CSPs to design their code of practice http://www.ofcom.org.uk/telecoms/ioi/g_a_regime/gce/ccodes/ccodes.pdf • British and Irish Ombudsman Association has established guidelines for DR mechanisms http://www.bioa.org.uk/BIOA-New/criteria.htm

26. EU Experience • Various options used • Belgium – Ombudsman • Czech Republic – NRA • UK – Independent bodies • Spain – Ministry • European Commission argues for cooperation between competent bodies and clear division of competences

27. Lessons from global experience • Domain name disputes • Plaintiff picks the arbitration body • Arbitration bodies need to be picked by plaintiffs to survive • Likely consequences for: • Credibility? • Consistency? • Balance? • WIPO Decision on “vivendiuniversalsucks.com” “By the same reasoning, being satisfied that certain members of the public in general and "Internauts" in particular, not being English speakers and/or aware of the meaning of the word "sucks" in the Internet world, would be likely to understand "sucks" as a banal and obscure addition to the reasonably well-known mark VIVENDI UNIVERSAL and that, accordingly, <vivendiuniversalsucks.com> refers to goods or services provided by the Complainant, this Panel, by majority, finds the requirements of paragraph 4(a)(i) of the Policy to have been met. WIPO Arbitration and Mediation Centre Case D2001-1121

28. Feedback Thank you for your attention Joe@political-intelligence.com