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

Effective Dispute Resolution by Independent National Communications Regulatory Authorities

Joe McNamee

Serbian Agency for Telecommunications, Belgrade

25 May 2007

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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

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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

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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

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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 2006 Regulatory scorecard

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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

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SECTION 1

Communications Service Provider Disputes

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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

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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

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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

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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”

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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

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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

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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 specific ex 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

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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

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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

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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

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SECTION 2

Consumer Disputes

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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

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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

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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

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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

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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

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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

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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

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