Case Study Single Sector Regulator - Instituto das Comunicações de Portugal (ICP-ANACOM) [6.1.1]
The case of the Portuguese telecommunications regulator, Instituto das Comunicações de Portugal (ICP-ANACOM) (formerly ICP) is interesting in terms of how a single-sector regulator has adapted to the evolving nature of the telecommunications market. Although ICP-ANACOM’s mandate has been expanded several times since its establishment, it has not been converted into a converged regulator, such as Ofcom in the United Kingdom. Indeed, the creation of a new entity called Entidade Reguladora da Comunicação Social was approved by Parliament on 15 September 2005 to regulate broadcasting and media content and to specifically regulate content provided over new communications systems such as the Internet and mobile phone networks.
As noted above, ICP-ANACOM, established in 1981,1 had its mandate modified several times2 to clarify the different aspects of its activities. For example, one modification related to the effect of Community Law on liberalization and competition in the sector and to accommodate convergence), and helped adapt the institution so as to make it better equipped to cope with economic and legislative transformations in the communications sector. Over a time period spanning 15 years, the gradual liberalization of the communications sector, particularly telecommunications, extensively marked by the influence of EU Law, resulted in the development of a large number of norms, leading to the recognition of various new responsibilities for ICP-ANACOM. Among these is ICP-ANACOM’s explicit designation as a “regulatory entity” for the telecommunications sector, as determined by Law no. 91/97 of 1 August, and then the communications sector, as determined by Decree-Law no. 309/2001. ICP-ANACOM is also the postal regulatory entity, under terms of provisions of article 18, paragraph 2, of Law no. 102/99 of 26 July.
The publication on 7 December of Decree-Law no.309/20013 aimed, above all, to join in one single legal text various responsibilities which were until then contained in separate measures. It also sought to transpose the "acquis communautaire" embodied in EU legal and regulatory texts that over time have imposed new and additional duties on national regulatory authorities in the European Union member states into national law. Decree-Law no. 309/2001 also renamed ICP to become ICP-ANACOM (Autoridade Nacional de Comunicações).
The technical specificity and constant innovations of the communications sector was seen to require the existence of a broad mandate to enable the regulatory authority to regulate effectively. Thus the change in statute and mandate was based on the recognition that only ICP-ANACOM, because of its technical specialization and accumulated knowledge, has the resources to quickly and flexibly respond to the constant needs and changes produced by the sector, particularly the telecommunications market. Expanding liberalization in the sector has meant that the regulatory authority for communications is increasingly called on to ensure real and effective competition in the sector, and to act as a neutral and unbiased arbiter. This means that the guaranteed existence of effective competition between operators and service providers, not just concerning access but also market activity, obviates greater functional and organic independence for ICP-ANACOM.
The need to adapt to innovations stemming from constant technical progress and globalization also implies that the regulatory body for communications should be endowed with instruments that give it flexibility, not only at the tangible legal level, but also with regard to the economic/financial regime governing contracts for the acquisition of goods and services. ICP-ANACOM is the continuation of the ICP’s corporate entity, and under the new statute, is released from its previous legal status as a public institute, to become a public corporation endowed with administrative and financial autonomy and its own assets, thus enabling it to better respond to the needs of the market.
ICP-ANACOM is the regulatory authority for postal communications and electronic communications, in accordance with the base law for postal services, article 18 of Law no. 102/99 of 26 July, and also the law for electronic communications, articles 4 and 5 of Law no. 5/2004, of 10 February.
To that end, ICP-ANACOM is endowed with the following responsibilities:
- In the context of market regulation: to guarantee network access for communications operators under conditions of transparency and equality; to promote competition and development in communications markets, namely in the context of convergence of telecommunications, media and information technologies; to grant rights for the exercise of postal and telecommunications activities; to assure management of the radio spectrum, guaranteeing coordination between civil, military and paramilitary communications, along with management of numbering in the communications sector.
- Regarding market oversight: to ensure application and supervision of laws, regulations and technical requirements applicable in the context of its responsibilities, as well as compliance by communications operators with provisions of the respective licences or concession contracts; to guarantee the existence and availability of a universal communications service, assuring fulfillment of the corresponding obligations; to ensure the correct use of spectrum resources and granted numbering; to protect consumer interests, namely the users of universal service, in coordination with the appropriate bodies and by encouraging consumer clarification.
- Regarding representation of the communications sector: to assure technical representation of the Portuguese State in international counterpart bodies, accompany the activities of similar regulatory entities and foreign experience in regulating communications, besides establishing relations with other regulatory entities; to collaborate with other public and private entities in fostering scientific investigation applied to telecommunications, and national and international divulgation of the sector; to promote technical standardization, in collaboration with other organizations, in the communications sector and related fields; to collaborate in defining civil emergency planning policies for the communications sector, providing technical support for the bodies and services responsible for establishing and operating the integrated network of emergency communications; to assure that studies are carried out in the areas of postal communications and telecommunications; and to undertake projects in the context of promoting access to the information and knowledge society.
To fulfill its responsibilities, ICP- ANACOM is empowered to:
- Assist the Government upon request or by own initiative in the definition of strategic guidelines and general policies for communications and the activities of communications operators, suggesting or proposing legislative or policy measures on issues related to its responsibilities, and to participate in setting comprehensive strategy for communications development, particularly in the context of convergence, undertaking such studies as deemed necessary;
- Elaborate regulations, in cases anticipated by law and when shown to be necessary for the exercise of its responsibilities, to effect processes of public consultation and manifestations of interest, particularly with regard to the introduction of new services or technologies;
- Assign spectral and numbering resources;
- Coordinate with the appropriate entity application of the competition law for the communications sector;
- Assess the conformity of equipment and materials, and define the requirements necessary for their commercialization;
- Arbitrate and resolve disputes that arise in the context of communications.
The efficient accomplishment of its incumbent responsibilities and the specific nature of the communications sector, along with the constant innovations affecting same, obviate the need for ICP-ANACOM to be granted wide-ranging normative power, in order to make it a true authority for the regulation and supervision of communications. Thus, beyond issuing tangible and individual binding acts, formulating concrete recommendations, initiating and accompanying legal cases and punishing infractions within its jurisdiction, overseeing compliance with laws and regulations applicable to the communications sector and monitoring the activity of entities subject to its oversight, as well as the functioning of the communications market, ICP-ANACOM may issue regulations that are deemed necessary for the pursuit of its functions.
In addition to this competence framework, with the publication of Decree-Law no. 7/2004 of January 7, which rules certain legal aspects associated with the information society services, namely e-commerce, as a result of the transposition of the European Parliament and Council Directive no. 2000/31/EC of 8 June 2000, ICP-ANACOM will act as central supervision entity, with competences at all levels ruled by this diploma, except as otherwise set forth in the special law, whereby sectorial competences are allocated to other entities.
In the constitutionally accepted model of an independent administrative body, ICP-ANACOM is a regulatory authority organically, financially and functionally separate from the Government as well as from regulated enterprises, endowed with the necessary means to perform its duties. Its acts of authority are, however, subject to jurisdictional control, by the common and administrative courts. Furthermore, its financial activity is subject to rulings of the accounts court, and the members of its board of directors are civilly and criminally answerable for their actions.
Although observance of the rules of public accounting is not required, the respective budget, plan and activities report are subject to approval by the government. Furthermore, the government upon finding which may extinguish or merge this authority with another one; the practice of serious irregularities and unjustified budget deviations may dissolve the board of directors.
The specific nature of ICP-ANACOM's independence is also established from the organic and functional standpoints, with the peculiarity of a direct relationship with the Assembly of the Republic (Parliament). ICP-ANACOM is thus required to annually send a report on its regulatory activities to the Government, which is also to be submitted to the Assembly of the Republic.4
The Chairperson of the Board of Administration will likewise respond when solicited by the appropriate committee of the Assembly of the Republic for hearings to provide information or clarifications on the activities of ICP-ANACOM.
The Board of Administration is comprised by a Chairperson and two or four members, appointed by the Council of Ministers upon proposal by the Minister of Tutelage, for a non-renewable period of five years. It is responsible for defining and accompanying the activity strategy of ICP-ANACOM. The members of the Board of Administration, who are subject to a regime of specific incompatibilities, have five-year non-renewable mandates.
The Board of Administration is endowed with the following powers:
- To define the general orientation of ICP-ANACOM and monitor its execution;
- To approve regulations and effect the deliberations anticipated in this measure or necessary for the performance of its functions;
- To draft the findings anticipated in the current statutes;
- To annually elaborate a report on the situation of communications and on its regulatory and oversight activity, and to disseminate same to the public by the most appropriate means, submitting it to the Ministry of tutelage by the date set for elaboration of the annual report and accounts;
- To approve the organization and functioning of ICP-ANACOM;
- To constitute attorneys and designate representatives of ICP-ANACOM to other entities;
- To collect revenues and authorize expenditures;
- To manage the property of ICP-ANACOM; it may acquire, alienate or encumber moveable or immoveable property, and accept donations, inheritances or legacies;
- To submit for tutelary approval the multi-annual activity and financial plans, the budgets and the annual report and accounts of ICP-ANACOM;
- To submit for approval by the Ministry of tutelage the opening or closing of branch offices or agencies of ICP-ANACOM;
- To practice all the divers acts necessary to fulfil the responsibilities of ICP-ANACOM where no other body has jurisdiction.
Important to note is that in addition to the Board of Directors, two further entities are foreseen within ICP-ANACOM, namely the advisory council and the statutory audit council. Only the Board or ICP-ANACOM employees to whom such power has been explicitly granted can legally bind ICP-ANACOM by signature.5
The advisory council is a body for consultation, support and participation in the definition of the general guidelines for ICP-ANACOM, as set out in the terms of article 35 of Decree Law no. 309/2001 of 7 December. In accordance with article 37, it is incumbent on the Advisory Council to provide opinions on the following matters:
- The general orientations of ICP-ANACOM’s plan of activities and budget;
- The annual report, as well as the report stipulated in article 51;
- Universal service prices and rates;
- The overall communications development strategy and its relationship to national participation in the global information society;
- Any other matter that the ICP-ANACOM Board of Directors, on its own initiative or that of the Government, should submit for its consideration.
The advisory council is composed of representatives of interested parties in the telecommunications and postal sector and has members from central government, the autonomous regional governments, the National Association of Municipalities, the Anti-Trust Council, the entities holding concessions for the universal telecommunications and postal services, representatives of service operators and providers, sellers and installers of telecommunications systems, manufacturers, companies using communications and individual consumers. The Advisory Council is presided over by a representative of the minister overseeing this sector of activity and its members are nominated by the entities represented on the council for a three-year renewable term of office.
The statutory audit council comprises a chairperson and two members, one of whom must be a statutory auditor, appointed by the Minister of Finance and by the Minister of Tutelage, for a three-year renewable period. This body is responsible for the legal control and for economic nature of the financial and patrimonial management of ICP-ANACOM.
ICP-ANACOM currently has 407 staff, of which 195 are in managerial positions and 212 in non-managerial positions. ICP-ANACOM has adapted its organizational model to the new requirements of the market.6 The organizational model in force in April 2005 is:
2 See Decrees-Law nos. 283/89 of 23 August; 379/90 of 7 December; 165/92 of 5 August; 95/96 of 17 July; and 100/98 of 21 April as well as Decree-Law no. 309/2001, of 7 December.
4 Annual Reports can be found at http://www.anacom.pt/template20.jsp?categoryId=132920&contentId=243443.
5 See Article 30 of Decree Law 309/2001 of 7 December available at http://www.icp.pt/template20.jsp?categoryId=4675&contentId=17645.
6 See http://www.anacom.pt/template12.jsp?categoryId=135245 for a description of the functions of the different departments.