Facilitating Cooperation between Regulatory Agencies – Memorandums of Understanding and Cooperation Protocols

It is rare for an ICT regulator to have complete and exclusive jurisdiction over all legal and regulatory aspects of the ICT sector.  In many cases, there are a number of different agencies and government ministries involved in the oversight of the ICT sector.  The relationship between the ICT regulator and some bodies such as the courts and governmental ministries is frequently defined in legislation; the division of responsibilities between the regulator and such bodies is often relatively clear. 

The same is not always true in cases where the ICT regulator has concurrent jurisdiction with another regulatory agency.  Two types of regulatory agencies that frequently have some degree of concurrent jurisdiction with the ICT regulator are competition authorities and consumer protection agencies.  Such regulatory agencies are often created by separate pieces of legislation and are subject to different legislative frameworks.  Although these agencies may have concurrent jurisdiction over various matters, it is not uncommon for the enabling legislation for each agency to fail to specify how the agencies are to cooperate with each other.  This situation creates uncertainty and confusion for industry stakeholders and risks inconsistent regulation of various matters.  Moreover, it can result in a waste of scarce regulatory resources as various agencies complete the same or similar tasks.  It may even result in competition between regulatory agencies to assert jurisdiction and control over a matter, to the detriment of all sector stakeholders.

In a number of countries, regulatory agencies have responded to the need to coordinate their actions in matters of concurrent jurisdiction by adopting memoranda of understanding or cooperation protocols.  For example, the Dutch ICT regulator and the Dutch competition authority have established a cooperation protocol to provide clarity on how they will cooperate on matters of mutual interest. Similarly, the Nigerian Communications Commission (NCC) and the Nigerian Consumer Protection Council (CPC) have adopted a memorandum of understanding that establishes how the agencies will collaborate on matters related to consumer protection.

There is no set formula for creating a cooperation protocol or a memorandum of understanding on matters of concurrent jurisdiction.  However, the following is a summary of provisions that are frequently included in such protocols or memoranda.

Provision Purpose
Title

Identifies the document and the agencies subject to the agreement.

There is no particular significance to whether the agreement is described as a “cooperation protocol” or a “memorandum of understanding” or some other term.
Preamble or Recitals This section typically identifies the regulatory agencies that are subject to the agreement, their enabling legislation, their respective roles in general terms, the legislative background to the agreement (if any), and the purpose of the agreement.  It provides clarity about which agencies are party to the agreement and what the purpose and scope of the agreement are.
Identification of concurrent powers This section identifies and describes the matters over which the agencies have concurrent powers, and describes the co-incidence of the agencies’ respective powers.  This section provides guidance about when the agreement applies.
Division of responsibilities This section sets out which agency will take the lead on various matters.  It provides clarity to industry stakeholders about which agency has the lead jurisdiction when certain issues arise and thus increases regulatory certainty and transparency.  The division of responsibilities also ensures that the agencies do not do the work of the other and thus helps to avoid the duplication of tasks and the waste of scarce resources.
Consultations

This section sets out the circumstances in which the agencies commit to consulting with each other.  The commitment to consult with each other helps to ensure that the agencies coordinate their actions on various matters.  This promotes regulatory coherence and reduces the chance that regulatory agencies may adopt different approaches to matters of concurrent jurisdiction.

Where one or more of the agencies has special expertise, mandating consultations when certain issues arise ensures that the non-expert agency receives the benefit of the special knowledge and experience of the expert agency.  This promotes better regulatory decision-making, particularly in areas that are highly technical and complex.
Referrals This section specifies when an agency may or must refer a matter to the other agency.  This section can be used to ensure that the agency that is best placed to address certain matters takes the lead when those matters arise.  It also helps to prevent companies from “forum shopping”, that is, from bringing a matter before the agency that a company feels is most sympathetic to its cause rather than before the agency best-placed to hear the matter.
Exchange of Information This section commits the agencies to exchange information about various matters or persons where such information is relevant to the performance of an agency’s statutory functions.  This section also commits the agencies to keep each other apace of matters and developments that are relevant to the other agency.  This ensures that the agencies can coordinate their responses to matters of concurrent jurisdiction. 
Implementation Teams

This section identifies contact persons at each agency who are responsible for implementing the agreement.  These persons serve as liaisons between the agencies.  This section facilitates cooperation by establishing lines of communication. 

The agreement may also specify that the implementation teams are required to meet at regular intervals.  Such a provision ensures that there is regular communication between the agencies to facilitate their collaboration.
Review and renewal or termination This section sets out the length of the agreement.  It typically commits the agencies to review the substance of the agreement at the end of each term of the agreement with a view to renewing the agreement.  This section ensures that the agreement remains current and attuned to the changing conditions of the sector.

Related Materials

Netherlands – OPTA – NMa Cooperation Protocol

Nigeria – Memorandum of Understanding between Consumer Protection Council and the Nigerian Communications Commission

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