The proceduralization of telecommunications law

Telecommunications Policy

Volumn 22, Issue 3, 1998, Pages 243-254

  Scott, Colin ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; EFFICIENCY; PUBLIC POLICY; SOCIETIES AND INSTITUTIONS; TELECOMMUNICATION;

INDUSTRIALIZED COUNTRY; PROCEDURALIZATION; TELECOMMUNICATION LAW;

LAWS AND LEGISLATION;

EID: 0032045855     PISSN: 03085961     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0308-5961(98)00008-1     Document Type: Article

References (102)

1. Habermas, J., Between Facts and Norms - Contributions to a Discourse Theory of Law and Democracy (William Rehg, Trans.). Polity Press, Cambridge, 1996, pp. 389, 438;
2. Ladeur, K.-H., Post-modern constitutional theory: a prospect for the self-organising society. Modern Law Review, 1997, 60, 617-629.
3. Rather than seeing the regulatory field as occupied by either general or particular legal rules, Cotterrell suggests there is a continuum, and that 20th century experience has seen a shift towards the particularistic end of the continuum. Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective, Oxford University Press, Oxford, 1995, p. 221.
4. Offe, C., Contradictions of the Welfare State (trans J. Keane). Hutchinson, London, 1984.
5. Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective. Oxford University Press, Oxford, 1995, pp. 280-282.
6. Habermas, J., Between Facts and Norms Contributions to a Discourse Theory of Law and Democracy (William Rehg, Trans.). Polity Press, Cambridge, 1996, 98, 136, pp. 137, 414.
7. Habermas, Between Facts and Norms Contributions to a Discourse Theory of Law and Democracy Ibid 144.
8. Habermas, Between Facts and Norms Contributions to a Discourse Theory of Law and Democracy Ibid 333.
9. Reich, N., The regulatory crisis: does it exist and can it be solved? Some comparative remarks on the situation of social regulation in the USA and in the European Economic Community. Environment and Planning C: Government and Policy, 1984, 2, 177-197.
10. Ladeur, K.-H., Post-modern constitutional theory: a prospect for the self-organising society. Modern Law Review, 1997, 60, 617-629, 620.
11. Hancher, L., and Moran, M., Organizing regulatory space. In Capitalism, Culture and Regulation, Chapter 10, ed. L. Mancher and M. Moran. Oxford University Press, Oxford, 1989;
12. Reichman, N., Moving backstage-uncovering the role of compliance practices in shaping regulatory policy. In White-Collar Crime Reconsidered, ed. K. Schlegel and D. Weisburd Northeastern University Press, Boston, 1992, pp. 244-268.
13. The New Zealand Commerce Commission (the competition authority) went so far as to say that in relation to interconnection the dominant incumbent, Telecom New Zealand, was effectively the regulator because of the power it exercised in the process: New Zealand Commerce Commission, Telecommunications Industry Inquiry Report, Wellington, NZCC, 1992.
14. Because of the failure to recognize the importance of the points at which regulatory rules are applied for understanding the meaning of such rules sociological theory (though not socio-legal studies of regulation) is deficient. This criticism applied equally to the model of 'Regulatory Negotiation': Demunck, J., and Lenoble, J. Negotiated law and proceduralization centre of Philosophy of Law, Louvain-la-Neuve, 1996.
15. Foreman-Peck, J. and Millward, R., Public and Private Ownership of British Industry 1820-1990. Clarendon Press, Oxford, 1994.
16. Majone, G., The rise of the regulatory state in Europe. West European Politics, 1994, 17(3), 77-101.
17. It was Hayek who observed that much of what the sociologists call 'materialized' law has the characteristic that it does not take the form of generally applicable rules, but rather of instructions to a limited range of actors: Hayek, F. A., Law, Legislation and Liberty: Vol. I - Rules and Order, Routledge, London, 1973, p. 128. This distinction, familiar in some civilian legal systems, is to be found formalized in the European Community legislative instruments, some of which have general application (regulations), whereas others affect only those to whom they are targeted (directives).
18. Moon, J., Richardson, J. and Smart, P., The privatisation of British Telecom: a case study of the extended process of Legislation. European Journal of Political Research, 1986, 14, 339-355.
19. For example, there is in the UK a debate developing as to whether Oftel and the various broadcasting regulators should be subsumed within a single Office of Communications, with similar scope (if not powers) to the US Federal Communications Commission: Collins, R. and Murroni, C., New Media New Policies. Polity Press, Cambridge, 1996.
20. See generally Stevenson, J., New Zealand. In Telecommunications Law and Practice ed. C. Long. Sweet & Maxwell, London, 1995, pp. 563-589.
21. Flood, C., Regulation of Telecommunications in New Zealand - Faith in competition law and the Kiwi share. Competition and Consumer Law Journal, 1995, 3, 199-221.
22. See the Disclosure Regulations, SR 1990 no. 120, and amended by Amendment no. 1 SR 1993 No 380, issued under the Telecommunications Act 1987.
23. Among the more public examples of this 'regulation through coaxing' role see Ministry of Commerce, Regulation of Access to Natural Monopolies. Report to Cabinet from the Office of the Minister of Commerce, Office of the Minister of Communications, 1996.
24. Figures 1 and 2 are based on the models developed by Ayres, I. and Braithwaite, J., Responsive Regulation. Oxford University Press, Oxford, 1992. The pyramid is used to show the chief effort will be in the base portion of the pyramid, provided that there are credible and appropriate further steps which may be taken above the base should action at the base fail. Thus, a credible and effective regime is effective without being intrusive because the threat of more interventionist (and less desirable) measures encourages the actors to cooperate at the base.
25. Clear Communications v. Telecom New Zealand [1995] 1 NZLR 385 (PC).
26. New Zealand Herald, 21 July 1997.
27. Interconnection Agreement 1996 between Telecom New Zealand Limited and Clear Communications Ltd, Wellington, 1996.
28. See generally Armstrong, M. (Ed.), Communications Law and Policy. Butterworths, Melbourne, 1990- (looseleaf).
29. King, S., and Maddock, R., Unlocking the Infrastructure - The Reform of Public Utilities in Australia, Chapter 3 Allen & Unwin, St Leonards, NSW, 1996;
30. Leonard, P., Waters, P., and Fisse, B., Essential facilities in Telecommunications I. Telecommunications Law and Policy Review, 1995, 3(6), 56-60;
31. Leonard, P., Waters, P. and Fisse, B., Essential facilities in Telecommunications II. Telecommunications Law and Policy Review, 1995, 3(7), 66-69.
32. Initially through a Network Interworking Industry Forum (NIF) to be replaced by a Communications Industry Forum (CIF). An Access Code is to be negotiated through another industry body, the Telecommunications Access Forum (TAF): Horton, B., Post '97 Regulation: An Unknown Culture. In the papers of the Communications Research Forum, Bureau of Transport and Communications Economics, Melbourne, 1996.
33. The simplification put in place by the new, 1997 regime, does not prevent the main legislative enactment (which is supplemented by others) running to 594 sections, which appears exceedingly long to a British lawyer's eyes. Telecommunications Act 1997 (Australian Commonwealth). The full text is available at http://www/austlii.edu.au/au/legis/cth/ consol_act/ta1997214/.
34. Only in the event that such codes are not forthcoming is the ACA to determine industry standards in a number of key areas. Telecommunications Act 1997 (Australian Commonwealth), s.123.
35. Department of Trade and Industry, Licence Issued to British Telecommunications plc. HMSO, London, 1984 (as amended) Condition 13.
36. Oftel Network Charges from 1997 Office of Telecommunications, London, 1997.
37. Oftel Pricing of Telecommunications Services from 1997 Office of Telecommunications, London, 1996;
38. Oftel Fair Trading Condition - Incorporation into Existing Telecommunications Licences. Office of Telecommunications, London, 1997.
39. Pitt, E., Licensing under the UK Telecommunications Act 1984 - the fair trading condition. European Competition Law Review, 1997, 18, 329-332.
40. Maher, I., Alignment of competitition laws in the EC. Yearbook of European Law, 1996, 16, 223-242.
41. Oftel Guidelines on the Operation of Fair Trading Condition, Office of Telecommunications, London, 1997;
42. Oftel, Procedural Notes of the Advisory Body on Fair Trading in Telecommunications. Office of Telecommunications, London, 1997;
43. Oftel Fair Trading Condition - Enforcement Procedure Office of Telecommunications, London, 1997
44. . Additionally, a regular Competition Bulletin published by Oftel provides details of current and decided cases, indicating the approach Oftel has taken.
45. EC Council and Parliament Directive 97/13/EC on a Common Framework for General Authorizations and Individual Licences in the Field of Telecommunications Services OJ L 117 07/05/97, p.0015, article 3-available at http://www.ispo.cec. be/infosoc.telecompolicy/en/licences.htm.
46. Indeed, it has been noted that many of the 'heavier' regulatory issues' are neglected, including privatization, cross-subsidization, accounting standards for telecommunications organizations, universal service and licensing: Bronckers, M. and Larouche, P., Telecommunications services and the World Trade Organization. Journal of World Trade, 1997, 31, 5-48.
47. The World Trade Organization 'Reference Paper' was not formally published but is referred to in the Introductory Note to the Agreement on Telecommunications Services 36 International Legal Materials 354, 1997 and reproduced at 36 ILM 367.
48. It may be noted that there is no requirement that the regulatory authority is independent of ministers, a factor which permitted the New Zealand government to sign up to the Reference Paper. A helpful discussion of the WTO Agreement is provided in: Fredebeul-Krein, M. and Freytag, A., Telecommunications and WTO discipline: an assessment of the WTO agreement on telecommunications services, Telecommunications Policy, 1997, 21, 477-491. Fredebeul-Krein and Freytag describe the interconnection principles of the Reference Paper as 'rather specific' (490) but these things are relative.
49. This description obviously excludes the experience of the United States where regulated private monopoly has been the general rule in this century, though this has given way to competition in the long distance telecommunications market since the 1960s and the Communications Act of 1996 holds out the prospect of competition developing in local telecommunications markets.
50. McEldowney, J., Law and regulation: current issues and future directions. In The Regulatory Challenge, ed. M. Bishop, J. Kay and C. Mayer, pp. 408-422. Oxford University Press, Oxford, 1995.
51. It has been suggested that the procedural requirements appropriate to future UK communications regulation would include: the holding of public hearings; the right of representation for all individuals and groups affected by the decision at hand; and a requirement that the regulator give reasons for decisions. This would be accompanied by the creation of a Consumer Council 'to initiate proposals, to conduct research, and to advise complainants': Collins, R. and Murroni, C., New Media New Policies. Polity Press, Cambridge, 1996, p. 178.
52. Oftel, Improving Accountability: Oftel's Procedures and Processes. Office of Telecommunications, London, 1997.
53. Cave, M., Telecommunications Regulation 1993. In Regulatory Review 1994, ed. T. Gilland and P. Vass, pp. 5-16. Centre for the Study of Regulated Industries, London, 1994.
54. The fact that Oftel proposed regimes which were less burdensome in respect of interconnection and price controls than might have been anticipated, following extensive consultation, might be taken as evidence of capture by the dominant firm. However, the very fact of extensive consultation has meant that other firms and consumer groups have better information than hitherto, as do analysts, and there has been no suggestion of hidden motives. Where there has been some questioning, particularly the slippage in the terms on which competition rules based on Articles 85 and 86 were to be applied to BT, this may be attributed to a statutory structure which encourages Oftel and BT to negotiate behind closed doors in the final stages of a licence modification.
55. Compare Demunck, J. and Lenoble, J. Negotiated law and proceduralization. Unpublished paper, Centre of Philosphy of Law, Louvain-la-Neuve, 1996.
56. Baxt, B., Proposals for telecommunications reform. Australian Law Journal, 1996, 70, 359-362.
57. This argument is made in relation to the enforcement of the environmental obligations of the Member States: Williams, R., The European Commission and the enforcement of environmental law: an invidious position. Yearbook of European Law, 1995. 14, 351-399.
58. For telecommunications the view is echoed in a recent survey of elite opinion: National Economic Research Associates, & Denton Hall, Issues Associated with the Creation of a European Regulatory Authority for Telecommunications. Report for European Commission (DG XIII), 1997, para 3.8.
59. This concern applies more generally to the issue of the creation of EU-level regulatory authorities. No agency has been created distinct from the Commission which has classical regulatory powers of rule-making, monitoring and enforcement. The European Environment Agency, for example, exists chiefly to gather and disseminate information: Ladeur, K.-H., The European Environment Agency and prospects for a European network of environmental administrations. In The New European Agencies ed. A.Kreher European University Institute, Florence, 1996;
60. Majone, G., New agencies in the EC: regulation by information. In The New European Agencies ed A. Kreher, (Ed.) pp. 5-11 European University Institute, Florence, 1996.
61. The creation of a distinct EU level agency with wide powers would almost certainly require a Treaty amendment: National Economic Research Associates, & Denton Hall, Issues Associated with the Creation of a European Regulatory Authority for Telecommunications. Report for the European Commission (DG XIII), 1997, para. 4.3.1.
62. See National Economic Research Associates & Denton Hall, Issues Associated with the Creation of a European Regulatory Authority for Telecommunications. Report for the European Commission (DG XIII), March 1997.
63. See Huntley, J., Levine, N. and Pitt, D., Laboratories of de-regulation: implications for Europe of American State Telecommunications Policy. Journal of Information, Law and Technology, 1997 (http://elj. warwick.ac.uk/jilt/telecoms/p7_1hunt/).
64. Hood, C., Explaining Economic Policy Reversals. Open University Press, Buckingham, 1994.
65. Hayek, F. A., Law, Legislation and Liberty: Vol. I- Rules and Order. Routledge, London, 1973, 141-2.
66. Hayek notes of a certain type of 'social' legislation: The aim of it is to direct private activity towards particular ends and to the benefit of particular groups. It was as the result of such endeavours, inspired by the will-o-the-wisp of 'social justice' that the gradual transformation of purpose-independent rules of just conduct (or the rules of private law) into purpose-dependent rules of organisation (or rules of public law) has taken place.' (142). This is not to say that Hayek opposes the development of mechanisms to supply collectively goods which would not be supplied by the market alone. Indeed, he anticipates the administration of levies and funds by firms for the provision of collective goods, resonant with EC proposals for the creation of universal service funds to finance universal service in voice telephony: Hayek, F. A., Law Legislation and Liberty, Vol. 3: The Political Order of a Free People. Routledge, London, 1979, p. 146.
67. Peltzman, S., Towards a more general theory of regulation. Journal of Law and Economics, 1976, 19, 211-240;
68. Wilson, J. Q., The politics of regulation. In The Politics of Regulation, ed J. Q. Wilson. Basic Books, New York, 1980;
69. Hills, J., De-regulating Telecoms. Frances Pinter, London, 1986;
70. Wenders, J. T., The economic theory of regulation and the US Telecoms Industry. Telecommunications Policy, 1988, 12(1), 16-26;
71. Habermas, J., Between Facts and Norms-Contributions to a Discourse Theory of Law and Democracy (William Rehg, Trans.), pp. 333-334. Polity Press, Cambridge, 1996.
72. Dezalay, Y., Between the state, law and the market: the social and professional stakes in the construction and definition of a regulatory arena. In International Regulatory Competition and Coordination, ed. J. McCahery, W. Bratton, S. Picciotto and C. Scott, pp. 59-87. Oxford University Press, Oxford, 1996.
73. Whereas the competition/antitrust community is dominated by economists, with others such as lawyers broadly subsuming themselves within economic paradigms such a disciplinary dominance is not so recognizable in relation to regulation. See the discussion of the triumph of economics in US anti-trust thinking in Eisner, M., Antitrust and the Triumph of Economics: Institutions, Expertise, and Policy Change. University of North Carolina Press, Chapel Hill, 1991.
74. Gardner, A., The Velvet Revolution: Article 90 and the Triumph of the Free Market in Europe's Regulated Sectors. European Competition Law Review, 1995, 16(2), 78-86.
75. Such a generalization of norms in economic form is, however, unlikely to be complete as a social regulatory agenda, for example in relation to provision of universal service, continues to be reflected in evolving rule-systems: Scott, C., Changing patterns of European Community utilities law and policy: an institutional hypothesis. In New Legal Dynamics of European Union, ed. J. Shaw and G. More. Oxford University Press, Oxford, 1996.
76. Clear Communications case (above).
77. R v Director General of Electricity Supply ex p Scottish Power (Divisional Court, unreported) noted in Public Law, 1997 (3), 400-409.
78. Contrast the more hands-off approach of the Court of Appeal in R v Director General of Telecommunications ex p British Telecom (unreported) noted in Utilities Law Review, 1997, 8, 82-83.
79. Fenoulhet, T. R., The regulatory dynamics of the information society. In The Economics of the Information Society, ed A. Dumort and J. Dryden, pp. 20-30. Office for Official Publications of the European Communities, Luxembourg, 1997, p. 21.
80. In some cases such barriers are intended, as in the case of the prohibition on the two main UK public telecommunications operators on providing broadcast entertainment services over their national telecommunications networks. This prohibition, intended to last until 2001 (though it may be subject to earlier review by the new Labour government) was to protect the investments of cable TV operators during their early years.
81. Marsden, C., The European Digital Convergence Paradigm: from structural pluralism to behavioural competition. Law Journal of Information, Law and Technology, 1997 http://elj.warwick. ac.uk/jilt/.
82. Collins, R. and Murroni, C., New Media New Policies. Polity Press, Cambridge, 1996, p. 175.
83. Collins and Murroni adopt the term 'fuzzy law' to capture the notion of general rules. 'Regulation needs to apply general principles to particular issues case by case and needs to steer an optimal path between contradictory policy goals'. They recognize that the deployment of such general principles must be accompanied by regulatory discretion so as to avoid risks of political interference: New Media New Policies op. cit. pp. 175-176.
84. This is not to say the national governments implementing supranational norms will necessarily retain the simplicity and general characteristics of supranational norms. However, at least within the European Union, the promulgation of unduly complex regulatory systems might create barrier to trade, thereby falling foul of either the specific duties to implement the relevant legislation, or the general duty of loyalty of the Member States, Article 5 EC.
85. McCahery, J., Bratton, W., Picciotto, S. and Scott, C. Introduction: regulatory competition and institutional evolution. In , International Regulatory Competition and Coordination ed. J. McCahery, W. Bratton, S. Picciotto and C. Scott, pp. 1-56. Oxford University Press, Oxford, 1996.
86. Peltzman, S., The economic theory of regulation after a decade of regulation. Brookings Papers: Macroeconomics, 1989, 1-59.
87. Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective. Oxford University Press, Oxford, 1995, p. 249.
88. Cotterrell suggests that it is the ideological positions associated with the 'minimal state' and the rule of law (in the sense of an objection to particularised rules and wide discretion) which lies behind the sort of position adopted by Hayek. Such concerns do, in his view, obscure the contemporary problems of the legal system: Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective. Oxford University Press, Oxford, 1995, pp. 253-260.
89. Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective. Oxford University Press, Oxford, 1995, 262-263;
90. Teubner, G., Juridification - concepts, aspects, limits, solutions. In Juridification of Social Spheres, ed. G. Teubner, pp. 3-48. Walter de Gruyter, Berlin, 1987.
91. Teubner, G., Juridification-concepts, aspects, limits, solutions. In Juridification of Social Spheres, ed. G. Teubner, pp. 3-48 Walter de Gruyter, Berlin, 1987, p. 38.
92. See also Black, J., Constitutionalising self-regulation. Modern Law Review, 1996, 59(1), 24-55.
93. Cotterrell's communitarian vision is of collective participation in political decision making, and of law which, instead of directing behaviour, seeks to build on the existing behavioural incentives of individuals, encouraging actions that are favoured and constraining those which are not. Thus law approves some motivations, purports to reinforce and reward some attitudes, 'officially' confirms some assumptions about what counts as merit and demerit, and potentially discourages, deters, and disconfirms other motivations, attitudes and assumptions.' Cotterrell, R., Law's Community: Legal Theory in Sociological Perspective. Oxford University Press, Oxford, 1995, 270.
94. Such a programme would involve subtle changes to power relations, and recognition that general legal rules and specific and discretionary rules are in a continuum in which both forms are likely to be part of any regulatory strategy: Cotterrell Law's Community: Legal Theory in Sociological Perspective op. cit. p. 271.
95. The Guardian 11 September 1996.
96. The most developed model, 'responsive regulation', is one in which the capacity of firms to develop their own regulatory rules is exploited through the development of general regulatory norms. 'Enforced self-regulation' is a model under which the content of regulatory rules is determined by the firm, which also monitors for compliance, each aspect being subject to the approval of a state regulatory authority. Ayres, I. and Braithwaite, J., Responsive Regulation - Transcending the Deregulation Debate, Chapter 4, Oxford University Press, Oxford, 1992.
97. Prosser, T., Law and The Regulators. Oxford University Press, Oxford, 1997.
98. This is what Ayres and Braithwaite refer to as 'tripartism': Ayres, I., and Braithwaite, J., Responsive Regulation-Transcending the Deregulation Debate, Chapter 3, Oxford University Press, Oxford, 1992.
99. Paradoxically such requirements may reduce the extent to which domestic governments can rely on non-legal and less formal oversight mechanisms: Wilks, S., Regulatory compliance and capitalist diversity in Europe. Journal of European Public Policy, 1996, 3, 536-59, 547. Supranational regulatory developments may therefore reduce the extent to which problems of regulatory law may be overcome.
100. Oftel, Pricing of Telecommunications Services from 1997. Office of Telecommunications, London, 1996.
101. This is precisely contrary to the arguments of Tony Prosser who suggests that whereas most issues of utilities regulation should be proceduralized with the regulator supervising transparent procedures for rule making, the protection of certain social continued from page 253 obligations is so important that social principles should, in a sense, trump other concerns and be protected by regulators absolutely: Prosser, T., Law and the Regulators. Oxford University Press, Oxford 1997.
102. The British regulator, Oftel, has eschewed the use of legislative powers to regulate the quality of dominant firms' service and persuaded all firms to develop codes of practice on such matters. Oftel has abandoned access deficit contributions and universal service funds in favour of a decision that the reputational and other advantages of meeting loss-making universal service obligations exceed the cost to British Telecom of providing the services. The regulator is withdrawing from a role in regulating the closure of public call-boxes and putting such decisions down to negotiation between local authorities and BT. Such steps have occurred alongside more traditional regulatory involvement in requiring BT to offer low-cost services which permit incoming and emergency calls only, and the development of principles under which disconnection for non-payment is greatly reduced. See generally Murroni, C., Universal service in liberalised telecommunications markets. In The Economics of the Information Society ed A. Dumort and J. Dryden, pp. 109-116 . Office for Official Publications of the European Communities, Luxembourg; 1996.