Regulatory governance and independence28.08.2020
The regulatory framework, as well as the regulatory governance and independence of the institution, are key elements for effective regulation. Today, regulators and policy-makers face multiple challenges: they must address the traditional aspects of information and communication technologies (ICTs) and assess their appropriate roles in addressing the regulatory and policy issues arising from new digital technologies and services.
In addition to more traditional issues, such as connectivity and infrastructure development, the digital environment prompts consideration of a broader range of sectors beyond ICTs, such as health, finance, education, transportation, and energy. The issues to be addressed include content regulation, privacy, consumer protection, competition, and artificial intelligence (AI), among others. Depending on their competencies and capacity, traditional ICT regulators may be less familiar with these topics, have limited resources to address them, or lack clear authority to cover them or coordinate with other entities on these issues under their current mandates.
Overall, these discussions are still in nascent stages around the world. While some countries are already seeking to fit digital technologies into their regulatory frameworks, many others have yet to begin the process. Thus, there is ample space for countries to innovate, to adapt, and to evolve. Because there is no well-worn path forward that can easily apply across jurisdictions, outreach and open consultations are crucial to engaging stakeholders while evidence-based decision-making processes are essential for each country to find workable, reasonable, flexible solutions.
With these issues in mind, Chapter 1 of the Digital Regulation Handbook offers a forward-looking analysis of how ICT regulatory governance is changing to accommodate digital developments. The chapter begins by reviewing the evolution of regulation and policy implementation from the traditional telecommunication environment, through ICTs, and into digital technologies. The role and institutional design of the regulator address common regulatory structures found worldwide and traditional areas of regulation. This analysis then focuses on how the regulator’s mandate may shift in a digital environment, emphasizing the importance of inclusive and effective decision-making. Next, this chapter addresses a key element of future regulation – regulatory collaboration – that involves coordination among various sectoral agencies and government institutions. Alternative models to regulation, such as self-regulation or industry/government collaboration, are also discussed. Finally, the chapter highlights some of the main factors for building digital frameworks, including issues relating to network and service licensing, spectrum authorization, and innovative, evidence-based approaches to sector regulation.
Policy and implementation
Evolution of regulation
Sector regulation has evolved over the past three decades, beginning with the development of telecommunication regulatory frameworks as countries started opening their markets to competition. Regulation then expanded to encompass ICTs to address new technologies and services enabled by the Internet. Now, the transformation from ICTs to the digital space is underway, leading policy-makers and regulators to examine the wide-reaching social and economic impacts of online platforms, 5G, cloud computing, and the Internet of Things (IoT), among other emerging technologies that engage all sectors of the economy.
From traditional telecommunication environment to digital landscape
The ITU has developed a comprehensive model to assess regulatory evolution, which tracks generations of regulation (see Figure 1.1). Generation 1 (G1) to Generation 4 (G4) presents the evolution in telecommunication and ICT regulation, starting from the command and control regime typically associated with state-owned monopolies, through privatization and liberalization, the need to encourage investment, and the shift to meeting socioeconomic objectives. Generation 5 (G5) is reflected as the latest generation, but is “seen as complementary to the previous generations”, highlighting the increased importance of more flexible and collaborative regulatory frameworks capable of addressing the broad impacts of the digital economy across sectors (ITU 2020a, 26).
Figure 1.1. Generations of regulation: G1 to G5
Source: ITU, ICT Regulatory Tracker 2018, https://www.itu.int/net4/itu-d/irt/#/generations-of-regulation; ITU 2020a.
Note: Generations 1 through 4 are measured through the ICT Regulatory Tracker.
Generation 5 is measured through the G5 Benchmark.
The Organisation for Economic Co-operation and Development (OECD) similarly recommends that “[d]igital transformation policies need to be coordinated among all policy domains and actors affected by (and affecting) digital transformation” (OECD 2019, 147). The OECD also recognizes that there is no single solution for governance, which must be adapted based on each country’s institutions and regulatory culture and capacity, as well as understanding that these structures will continue to change over time.
While recognizing that the new shift in regulatory perspectives is important, the regulatory frameworks of many countries still lack fundamental elements. These limitations impede the development of their ICT sector. The State of Broadband 2019 report from the Broadband Commission for Sustainable Development noted that 72 countries are still at either a G1 basic level of ICT regulatory policy with regulated public monopolies and a command-and-control regime or entering a G2 level with the beginning of market liberalization, partial liberalization, or privatization (Broadband Commission for Sustainable Development 2019). These countries may miss out on development opportunities, leading them to further lag behind G3 and G4 countries that have enabled innovation and integrated ICTs into socio-economic policy. The adoption of comprehensive digital strategies, as addressed below, are key tools, but reform of the underlying systems and structures may need updating as well.
Implementation of comprehensive and technology-specific digital strategies
Digital strategies, plans, and roadmaps help identify policy goals and set targets. At least 73 countries have adopted a digital strategy or plan (ITU 2020), including Colombia, Uruguay, Niger, and Kenya. For example, in Colombia, the Ministry of Telecommunications and Information Technologies (MINTIC) released a new ICT Plan 2018-2022, The Digital Future is for Everyone (MINTIC 2018). Similarly, in Uruguay, the Digital Agenda 2020 seeks to advance the country’s digital transformation in an inclusive and sustainable manner with “proximity government” as one of the main objectives. Proximity government encourages different methods of approaching the relationship between citizens and the state, while promoting transparency, accountability, participation, and the development of better services. This is intended to generate direct contact channels between citizens and government and improve the quality of care in services provided (AGESIC 2017). In the African region, numerous countries have also issued digital plans. In 2017, the Nigerian government adopted the Smart Nigeria Digital Economy Project aimed at improving economic opportunity and competitiveness. This project includes ICT-related initiatives, such as expanding broadband connectivity, while also focusing on digital solutions, such as increasing e-government, engaging young Nigerians in innovation, training engineers in software development, and fostering e-commerce (World Bank 2019). Kenya, too, adopted a Digital Economy Blueprint in 2019, as a roadmap for its digital transformation journey, to ensure that the digital economy benefits become their reality (Republic of Kenya 2019). The blueprint proposes five pillars as foundations for the growth of a digital economy: digital government; digital business; infrastructure; innovation-driven entrepreneurship; and digital skills and values. Beyond the digital-specific, at least 118 countries have a national development strategy, digital agenda, or economic stimulus strategy that includes broadband (see Figure 1.2).
Figure 1.2. Countries with/without overall national development strategy, digital agenda, or economic stimulus strategy including broadband
Source: ITU, Data from the ITU World Telecommunication/ICT Regulatory Survey 2019.
Although some of these digital strategies may not contain certain key components, such as application across multiple sectors or addressing international development goals, countries are increasingly implementing comprehensive plans that encompass all sectors. Moreover, these plans are key mechanisms for setting connectivity targets and goals, and reinforcing the importance of the digital space in the overall economic and social spheres of a country. They are also valuable tools to advocate for collaborative regulation and the engagement of multiple stakeholders, promoting a holistic approach to digital development and planning.
Another recent trend is for countries to adopt strategies tailored to specific technologies or issues, such as automation, robotics, 5G, AI, and the IoT. In 2017, for example, Malaysia’s Ministry of Science, Technology and Innovation (MOSTI) adopted a National IoT Strategic Roadmap focusing on three key goals: create a conducive IoT industry ecosystem; strengthen technology entrepreneur capabilities; and become a regional development hub for the IoT (MOSTI 2017). Numerous countries, including Germany, have published artificial intelligence strategies. Australia, Germany, the United Kingdom, and Singapore, among others, have adopted 5G policies or strategy documents. In 2015, the government of Japan issued a New Robot Strategy, which includes measures for “realizing the robot revolution”, as well as a five-year plan addressing cross-cutting and specific sector issues (Headquarters for Japan’s Economic Revitalization 2015).
Assessing the need to modernize and streamline
As policy-makers start to implement their digital plans and adapt their regulatory frameworks to the digital economy, it is crucial that they avoid the mere extrapolation or expansion of existing, potentially outdated laws and regulations to new players or new topics. Instead, policy-makers should adopt measures – which may include deregulation, a self-regulation, or a coregulatory approach – that will lead to greater innovation, easier deployment of new and emerging technologies, incentivize investment, and focus on inclusivity and collaboration.
Not only does this entail a regulatory impact assessment approach to decision-making, the full scope of past, current, and emerging risks should be reviewed in terms of how well they will meet the country’s targets. This will better position regulators to introduce flexible policies that support investment and innovation, thereby promoting a strong digital economy (ICC 2016).
In this sense, governments should shift from a rules-based to a principles-based approach. In the digital era, guidance by high-level principles “are better suited for finding balanced, sound solutions, especially in complex areas” (ITU 2020a, 7). The United Kingdom’s House of Lords, for instance, proposed in 2019 ten principles for regulating in a digital world, including parity, accountability, privacy, and ethical design (House of Lords 2019).
Role and institutional design of regulator
Institutional structure of regulator
There are three primary institutional design models for regulators overseeing the ICT sector – the sector-specific regulator, the multisector regulator, and the converged regulator. Traditionally, single-focus, sector-specific regulators were common for the telecommunication sector. In today’s ICT and digital landscapes, regulators tasked solely with overseeing telecommunications are less common than converged or multisector regulators. Telecommunication regulators tend to also manage postal services or be responsible for spectrum management. For instance, the Afghanistan Telecom Regulatory Authority (ATRA) and the Barbados Telecoms Unit (TU) manage both telecommunication and spectrum matters.
In addition, multisector regulators, which typically involve a utilities-based regulatory authority, were often established before liberalization of the telecommunication sector. One example is the Office of Utilities Regulation (OUR) in Jamaica, which oversees the telecommunication, power, water, and transportation sectors, although spectrum and broadcasting are handled by two separate agencies. Notably, between 2014 and 2016, Jamaica drafted a bill to create a converged ICT regulator, and this effort remains a goal of the Ministry of Science, Energy and Technology (MSET) (Angus 2014). Other countries with multisector regulators include Denmark (Danish Energy Agency), Bahamas (Utilities Regulation and Competition Authority), and Belize (Public Utilities Commission).
Jamaica’s path to a converged ICT regulator is in line with a decades-long trend towards converged regulatory authorities whereby one regulator is responsible for telecommunications, spectrum, and broadcasting/media. In 2007, converged regulators made up about one-third of institutional structures globally (ITU 2018a). By 2017, over 70 per cent of regulators worldwide were converged. Some countries that have established converged regulators over the past several years include Botswana and Singapore. In Singapore’s case, the creation of a converged regulator provided an improved way to navigate “advances in technology that have blurred the distinction between broadcasting and telecommunications” (MCI 2016). Likewise, in 2013, the Botswana Communications Regulatory Authority (BOCRA) was created from the Botswana Telecommunications Authority and the National Broadcasting Board to address all matters relating to ICTs, broadcasting, Internet, spectrum, and postal services (Botswana 2012).
Traditional areas of responsibilities
Under the first three generations of regulation(G1-G3), and somewhat in G4, the telecommunication or ICT regulator’s areas of responsibilities centre on setting and enforcing relatively stringent rules deemed necessary to protect competition and consumers as countries transition from monopoly telecommunication markets. Licensing has been the cornerstone of the regulator’s responsibility, often involving extensive application processes to ensure that new entrants possess the needed technical and financial capacity to be successful.
Regulators have also traditionally imposed a range of obligations. Tariff-filing requirements, for example, require providers to submit prices and rates for regulatory approval, which are intended to protect consumers against unfair charges. Interconnection obligations and termination rates have been imposed to ensure that operators, especially new entrants, can access one another’s networks. This has also protected consumers by making sure that they can connect to any other person, regardless of which operator provides their service. Regulators often become dispute resolution bodies in cases where parties cannot come to an interconnection agreement, as well as to resolve consumer complaints.
Other traditional areas of regulation include spectrum management and broadcasting, although these responsibilities may be hosted within separate authorities outside of the ICT regulator. Spectrum regulation is essential to protecting against harmful interference and to promote efficient use of spectrum resources while broadcasting has generally focused on content issues.
Shifting mandate/roles of regulators and policy-makers in the digital era
The regulator’s traditional areas of responsibilities and institutional design are expected to largely continue in the digital environment. However, implementation of regulation should become less rigid and more flexible. Similarly, regulators’ mandates and roles may need to be amended to fully capture the new digital realities, as highlighted starting in G4.
With the increasing prevalence of digital services, regulators are finding that they must address a host of new issues and potentially new areas of responsibility. Many of these focus on online services, such as online Voice over Internet Protocol (VoIP) or online video, and other digital platforms, as well as navigating the IoT, AI, data privacy, competition, cybersecurity, and other technological challenges.
These new areas are not always clearly incorporated into existing regulatory frameworks. Many countries are debating whether their ICT and broadcasting regulators possess the jurisdictional authority to address digital services, digital platforms, and other emerging technologies. As countries begin assessing whether to adapt telecommunication or content regulation to digital services, determining the scope of a regulator’s authority can be complex without clear legislative guidance, as highlighted in Box 1.1.
Box 1.1. Jurisdictional challenges for OTT video in India
In India, various courts have been examining whether online video is subject to the Cinematograph Act and therefore within the regulatory purview of the Ministry of Information and Broadcasting (MIB), particularly for certification/licensing requirements. In August 2019, the High Court of Karnataka dismissed a case against several over-the-top (OTT) video providers on the grounds that OTT video is not subject to the Cinematograph Act. Rather than adopt a regulatory framework, the MIB stated in March 2020 that the OTT video industry should create a code of conduct and an adjudicatory authority by mid-2020 (see section on “Self-regulatory models”).
Source: Dutta 2020, Oka 2019.
Governments are taking different approaches to ensure that regulators hold jurisdictional authority. Some countries are reforming their legislative frameworks to clearly accommodate new digital services, as the European Union has done with the European Electronic Communications Code (EECC) (see section on “Provider perspectives: managing regulatory compliance”). Another option is to review regulators’ competencies to determine whether it is appropriate to expand their mandate or establish a new digital regulator. This is further detailed in the section on “Digital regulators”.
Whether a country expands a regulator’s jurisdiction or chooses to merge different regulatory authorities, it is important to ensure that the regulator possesses adequate resources to execute its role. This includes staffing considerations in order to have qualified administrators and trained employees. Merging existing authorities into a converged regulator means that experienced staff in different areas, such as broadcasting and ICTs, can be brought together with relative ease. Integration of the staff is essential to help establish a cohesive team. Where a regulator’s mandate is expanded, training and capacity-building are vital to ensure that staff understand the various stakeholder positions and underlying legal and market issues. The use of open consultations, stakeholder outreach, and other collaborative, evidence-based decision-making mechanisms are key components to building sound, effective regulatory teams. When it is not feasible to expand the regulator’s mandate, cooperation mechanisms to implement collaboration with other agencies may be an alternative to increase knowledge and resources.
Advancing the regulator’s skills, independence, and accountability
According to ITU data, in over 80 per cent of countries, the regulatory authority for telecommunications and ICTs is independent from the sectoral ministry in terms of its financing, structure, and decision-making, as of the end of 2018. The regulator’s sources of funding can strongly influence its level of autonomy. Generally, a financially independent regulator obtains direct funding through legislative and budgetary allocations, allowing the regulator to identify its budget requirements in a transparent manner. In addition to direct budget allocations, regulators may be funded by licensing and other fees. Particularly if fees from licensees is the regulator’s sole source of funding, they face the challenge of setting the appropriate fee for cost recovery that balances adequate funding while not imposing unnecessarily high fees on licensees. A third mechanism is to allocate government appropriations to the ministry that oversees the regulator and, in turn, the ministry distributes funding to the regulator. However, this mechanism risks decreasing the regulator’s independence by introducing the possibility of greater political influence in the regulator’s decision-making processes.
In traditional, converged, and digital regulatory settings, an independent regulator is crucial to promoting objective, well-reasoned, and predictable decision-making. In the digital era, an independent regulator is particularly important to ensuring that it can effectively collaborate with other cross-sector agencies, as well as conduct open consultations. These matters are further addressed in the section on “Decision-making and rule-making in a multistakeholder environment”.
In addition to independence, regulators should be accountable by remaining free from undue political or market influence. An element of accountability is the publication of all laws, rules, guidelines, and other legal texts – both in draft and final form. In the digital environment, stakeholders from an array of sectors are likely to participate, making online publication the main mechanism for promoting inclusion and collaborative decision-making.
To fully realize the potential of an independent and accountable regulator, its staff should have the necessary skills. Regulators must introduce mechanisms to keep up-to-date on sector developments, both domestically and globally, to understand the financial, legal, social, and technical setting in which they operate. Furthermore, this knowledge must be rooted in experience dealing with these issues to serve as case studies – not exact blueprints – for how to respond to new challenges. They must then put this knowledge to use through effective leadership. This leadership means having the ability to choose the path that fosters innovation and the introduction of new technologies benefits consumers through decision-making and rule-making in a multistakeholder environment, as expanded on further below.
Appropriate institutional structure for digital environment
A handful of governments have begun assessing whether their current regulatory authorities are properly equipped to handle issues relating to a digital environment. Although these discussions are generally in the early stages, analysis involves assessing whether a new separate regulatory body solely dedicated to digital issues is required, whether to expand the functions/mandate of an existing ICT regulator, and/or whether the better model is an ICT regulator with other government authorities responsible for consumer protection, privacy, and cybersecurity, respectively. Examples include Australia, Ireland, and the United Kingdom, as highlighted in Box 1.2. This trend may shift over the coming years as more countries begin reviewing the existing regulator’s mandate given the digital transformation.
Box 1.2. Review of digital regulators in Australia, Ireland, and the United Kingdom
Australia. In 2018, the Australian Competition and Consumer Commission (ACCC) launched a digital platforms inquiry in 2018 that consulted on market power issues of digital platforms, including social media, search engines, and other online content platforms (ACCC 2018). In the final report issued in July 2019, the ACCC tasked itself with addressing competition issues in the context of digital platforms while entrusting the Australian Communications and Media Authority (ACMA) with numerous key roles (ACCC 2019).
Ireland. In January 2020, the Irish government tabled the draft Online Safety and Media Regulation Bill in the legislature (DCCAE 2020). Rather than create a new regulator to oversee digital content, one of the bill’s key proposals was to replace the existing Broadcasting Authority of Ireland (BAI) with a new Media Commission. The Media Commission would regulate broadcasting and take on the additional role of regulating the audiovisual media sector, including online video.
United Kingdom. In April 2019, the United Kingdom’s Department for Digital, Culture, Media and Sport (DCMS) launched a consultation that called for an independent regulator to implement, oversee, and enforce a proposed new regulatory framework to address illegal or harmful content online (DCMS 2019). In February 2020, the DCMS responded to the consultation comments, finding that the existing ICT regulator, Ofcom, was the only regulator referenced as a possible candidate for the online harms regulator. The DCMS reasoned that expanding Ofcom’s authority – rather than create a new agency – would enable Ofcom to leverage its expertise, avoid fragmentation of the regulatory landscape, and enable quick progress on the issues (DCMS 2020).
Source: ACCC 2018; ACCC 2019; Department of Communications, Climate Action and Environment (DCCAE), General Scheme Online Safety Media Regulation Bill 2019, https://www.dccae.gov.ie/en-ie/communications/legislation/Pages/General-Scheme-Online-Safety-Media-Regulation.aspx; DCMS 2019; DCMS, Online Harms White Paper: Initial Consultation Response, https://www.gov.uk/government/consultations/online-harms-white-paper/public-feedback/online-harms-white-paper-initial-consultation-response
The European Commission (EC) is also in the early stages of considering digital regulation. In its 2020 Work Programme, the EC stated its plan to publish a proposed Digital Services Act (DSA) for public consultation in late 2020 (European Commission 2020). The proposed DSA will update the European Union (EU) e-Commerce Directive and is expected to include digital platform regulation. According to media reports in August 2019, the EC has at least considered various types of digital authorities to “ensure oversight and enforcement of the rules”, which could be a “central regulator, a decentralised system, or an extension of powers of existing regulatory authorities” (Fanta 2019). Although it is too soon to determine how the EC will propose to structure the authority in the DSA, it highlights the various options available.
Decision-making and rule-making in a multistakeholder environment
Evidence-based decision-making, regulatory impact analysis, open consultations
Effective regulators ensure that their decisions are sound and reached as objectively as possible to promote regulatory certainty while minimizing legal challenges. Stakeholder confidence in regulatory decisions may be instilled through various key components, including the use of evidence-based decision-making, regulatory impact analyses (RIAs) that assess the likely positive and negative effects of the proposed rule, public consultations, and a commitment to transparency and non-discrimination (OECD 2020). Together, these practices are founded on data collection and analysis, which afford regulators substantial, high-quality information from a wide range of interested parties so that they can base their decisions on sound policy rationales. In contrast, decisions made hastily or through closed-door proceedings can undermine the regulator’s credibility and create a perception of undue influence. Figure 1.3 highlights effective processes adopted in Brazil, Colombia, Qatar, and Singapore.
Figure 1.3. Examples of decision-making processes in Brazil, Colombia, Qatar, and Singapore
Source: National Agency of Telecommunications (ANATEL), Resolution 612/2013, https://www.anatel.gov.br/legislacao/resolucoes/2013/450-resolucao-612; Ministry of Information Technology and Communications (MINTIC), Decree 2696 of 2004, https://www.mintic.gov.co/portal/inicio/14705:Decreto-2696-de-2004; Communications Regulatory Authority (CRA), https://www.cra.gov.qa/en/Regulatory-Framework/Public-Consultations; Infocomm Media Development Authority (IMDA), https://www.imda.gov.sg/regulations-and-licensing/Regulations/consultations.
Engaging the full range of stakeholders through open consultations is particularly important when adopting digital regulation because impacted parties extend beyond traditional telecommunication providers. Stakeholders in this setting include consumers, digital platforms, commercial players in other sectors, such as finance, transportation, and health, as well as other government agencies with overlapping interests and jurisdictions.
Regulator perspective: managing internal procedures and monitoring
An important part of the decision-making process is determining how the outcomes will be implemented. Effective regulators must manage the internal procedures for assessing compliance, which may be accomplished through regular reporting requirements or other inquiries. Regulators should also monitor the progress of implementation. This includes monitoring regulated entities to ensure that they are complying with the rules and covers periodic review of the rules to determine whether they are effective and serving their intended purpose.
Monitoring can challenge many countries, particularly where the regulator has a limited budget, staff, or other necessary resources. These challenges are compounded in a digital environment in which multiple stakeholders must be managed and monitored. Thus, capacity building is a crucial element for an effective regulator.
Provider perspective: managing regulatory compliance
From the providers’ perspective, managing regulatory compliance can be a burden, especially for newcomers unaccustomed to the highly regulated telecommunication sector. Expanded definitions of telecommunication services add to these challenges. For example, the EU overhauled its telecommunication framework in 2018 with the adoption of the EECC (European Union 2018). The EECC redefined electronic communications services to include all voice communications, even if they do not use public telephone numbers, as well as to include transmission services for IoT, machine-to-machine communications, connected cars, and other digital activities outside of the traditional ICT sector (see Box 1.3). EU Member States must transpose the EECC into national law by the end of 2020. It will be incumbent on digital players to determine whether – and how – these new rules will impact them.
Box 1.3. Expanded definition of electronic communications services in the EECC
Article 2 of the EECC defines electronic communications service as: “a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:
(a) ‘Internet access service’;
(b) interpersonal communications service; and
(c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting.”
Interpersonal communications services (ICS) that do not use public telephone numbers are classified as number-independent ICS (NI-ICS). Although NI-ICS are subject to lighter regulation than number-based ICS (e.g. NI-ICS are not required to obtain a general authorization), many online VoIP providers are facing the prospect of regulatory compliance requirements that they have not encountered before.
Source: European Union 2018.
In addition to expanding the definition of regulated activities, current and new regulated entities must comply with a host of compliance requirements. Although obtaining relevant information, such as revenues, subscriber data, and network deployment data, is an important role of the regulator in order to understand market developments, regulators should be aware of the costs that unnecessary reporting requirements impose on providers. Thus, reporting requirements should be streamlined and based on a reasoned, well-articulated need for information. Further, reporting and other compliance obligations should be fit-for-purpose and target the appropriate entities. For example, in 2017, the U.S. Federal Communications Commission (FCC) eliminated an onerous annual reporting obligation requiring international telecommunication service providers to submit revenue and traffic data (FCC 2017). The FCC had used this data for decades to monitor competition among international carriers. The FCC reasoned that collection of this information from every international carrier was “no longer necessary as the costs of this data collection now exceed its benefits” (FCC 2017, 2). Instead, the FCC now relies on commercially available data and makes targeted data collection requests to specific providers, if needed.
New stakeholders in the digital regulatory environment must also manage compliance on a potentially global basis. Unlike traditional telecommunication providers that build networks in countries where they have a local presence, digital players often make their services available through the Internet, enabling anyone with an Internet connection anywhere in the world to access the services. The challenge is that digital providers may become subject to domestic law if a country determines that making an online service available to users in the country is sufficient. These new players face the additional challenge of navigating patchworks of regulations where various jurisdictions adopt different, or even contradictory, rules. This underscores the importance of intergovernmental cooperation and collaboration to ensure consistency and predictability for the private sector.
Enforcement and sanctions in the digital landscape
Regulators should approach enforcement similarly to the rule-making process – that is, they should be systematic, objective, and clearly identify the reasons for their decisions only after a thorough investigation. Any sanctions should be proportional to the violation and sanctioned parties should have access to timely review and appeals processes to help hold regulators accountable also. These principles also apply to dispute resolution mechanisms overseen by the regulator.
Policy-makers play an important role in enforcement, even if they are not directly engaged in issuing penalties. This entails ensuring that regulators have sufficient enforcement authority to conduct necessary investigations to find wrongdoing, as well as powers to effectively remedy contraventions. Both policy-makers and regulators may need to clarify procedures with other regulatory agencies, and sometimes courts, where there is sectoral overlap, such as data privacy, cybersecurity, law enforcement, finance, transportation, or competition authorities. This cross-sectoral cooperation can help to safeguard against conflicting outcomes among regulators, as highlighted in Box 1.4.
Box 1.4. The Netherlands: Cross-sectoral cooperation in enforcement
Source: DPA 2017.
The ubiquity of ICTs across all sectors calls for greater regulatory collaboration among ministries, sector and multisector regulators, and a multitude of stakeholders in order to effectively address the impacts and promote the progress of digitalization. The ITU’s concept of collaborative regulation under the five generations of regulation model offers mechanisms and targets for implementing regulatory collaboration at domestic, regional, and international levels.
At the 2016 Global Symposium for Regulators (GSR-16), the ITU introduced the concept of collaborative, or G5, regulation to describe a cross-sectoral approach toward regulation that allows stakeholders to shape a common digital future (ITU 2016). As previously noted, G5 regulation does not mean more regulation, but instead involves more inclusive, evidence-based, and decision-oriented regulation between the ICT regulator and other sectoral agencies.
Box 1.5. G5 definition of regulatory collaboration
Regulatory collaboration refers to the ICT regulator working closely with peer regulators in other sectors. It is defined by:
Source: ITU 2018a, 129.
In line with this definition, governments should strive to establish meaningful and sustainable regulatory collaboration between ICT and other regulators.
Formalized and informal collaboration occurring across governments
Government institutions can work together along a spectrum of informal, semi-formal, and formal collaboration mechanisms. Informal collaboration results from outreach between regulators due to mutual interests and capacity building rather than from a planned, institutional framework. Conversely, formal collaboration “…involves systematic efforts to collaborate and define terms of engagement…”, such as through memoranda of understanding or legislative means (ITU 2018a). Semi-formal collaboration involves elements of both and is often part of the evolution from an informal to formal structure. Figure 1.3 provides an overview of the state of regulatory collaboration between the ICT regulator and agencies in charge of other matters in countries around the world, with these relationships further detailed below. This data is based on self-reported information from the ITU World Telecommunication/ICT Regulatory Survey 2017 and 2018 (ITU 2018b).
Figure 1.4. State of regulatory collaboration between ICT regulators and other authorities in cases where both exist and are separate entities, worldwide, 2018
Source: ITU 2018a, 130-150.
Note: Country sample size in order from top to bottom: 48, 22, 92, 116, 172, 72, 101, 92.
Competition authorities and ICT regulators often have long-standing coordination arrangements to address overlapping areas of jurisdiction, particularly mergers or market dominance in the telecommunication and ICT sector. Formal collaboration is already the norm among many regulators, including in Namibia, Nepal, Serbia, and the United Kingdom. Ireland, Romania, and Saudi Arabia are among the countries with a joint program or committee between the competition and ICT regulators.
As consumer protection authorities typically are not concerned with one specific sector, their roles have generally relied on collaboration and/or support with other sector-specific regulators. Trends in data privacy and protection, net neutrality, and consumer use of ICT services have all paved the way for collaboration between ICT regulators and consumer protection authorities. As of 2018, two-thirds of existing ICT and consumer protection regulators collaborate in some manner – half of them doing so through an informal framework. Croatia, the Dominican Republic, the Arab Republic of Egypt, Iran, and Moldova use an informal collaboration, while Armenia, Jamaica, Norway, and Thailand, for instance, have formal arrangements.
Digitalization relies on data flows. Whether for commercial, government, health, or other institutional purposes, ensuring that information may be collected and processed is crucial to a digital economy but must be balanced with protecting users’ privacy rights. Given the role data plays in all aspects of the digital economy, collaboration between data protection authorities and other topic/sector-specific regulators is paramount to creating properly scoped and harmonized digital regulation. Countries have adopted a wide range of data protection frameworks, with the EU model based on the General Data Protection Regulation (GDPR) setting the international trend (European Union 2016). Under the GDPR, which came into effect in May 2018, a stand-alone data protection authority (DPA) sets and enforces the rules. The DPA generally has a clear mandate without significant jurisdictional overlap with the ICT regulator. Although some ICT regulators and DPAs may collaborate, the majority do not have formal mechanisms for collaboration in place, as highlighted in Figure 1.3. Where practised, collaboration is typically informal. In many jurisdictions, an independent DPA is fairly new so this continues to be an area where greater cooperation may evolve.
Collaboration between ICT regulators and other sectoral regulators is also important. Innovation accelerated by ICTs are disrupting and reshaping all sectors and markets. Governments should carefully consider the roles that ICTs play in each sector and what level of collaboration is required between regulators. Table 1.1 presents some of the many topics that ICT regulators should consider for collaboration with other regulators.
Table 1.1. Example points of collaboration between ICT regulators and other agencies
|Non-ICT regulator||Topics of potential collaboration with the ICT regulator|
|Commerce/trade||Digital taxation, online digital services|
|Cybersecurity||Data use, end-user devices, IoT|
|Education||Child online protection, digital divide|
|Energy||AI, blockchain, IoT|
|Finance||Blockchain, cybersecurity, financial inclusion, mobile financial services, privacy|
|Transportation||Cybersecurity, IoT, privacy|
Source: TMG 2020.
Singapore has recently stepped up collaborative efforts between the ICT regulator and data protection authority in order to enhance mutually relevant efforts concerning AI, as shown in Box 1.6.
Box 1.6. Singapore government collaborates on artificial intelligence
The Personal Data Protection Commission (PDPC) and the Infocomm Media Development Authority (IMDA) jointly published the first edition of the Model Artificial Intelligence Governance Framework in January 2019, intending to frame discussions around the challenges and possible solutions to harnessing AI in a responsible manner. The model framework seeks to collect a set of principles, organize them around key themes, and compile them into an easily understandable and applicable structure. It provides guidance on measures promoting responsible AI usage that organizations should adopt in four key areas: internal governance structures and measures, determining an AI decision-making model, operations management, and customer relationship management.
Source: TMG 2020.
A self-regulatory model allows the government to offload much of its regulatory responsibility to the players most impacted by regulation. These frameworks often stem from a government ultimatum: either industry regulates itself in a satisfactory manner or the government will step in. In India, for instance, the MIB is favouring a self-regulatory model for online video streaming services content. In response, some members of the Internet and Mobile Association of India (IAMAI) are preparing a Voluntary Code of Conduct to be overseen by a Digital Content Complaint Council that will act as an adjudicatory body for digital content matters.
Industry and government collaboration
Representing a bridge between self-regulation and traditional full regulation, the industry-regulatory collaboration model offers governments some control while maintaining industry autonomy. For example, the COVID-19 pandemic has further highlighted the importance of industry and regulator collaboration. To maintain network stability while an unprecedented number of individuals work, learn, and shelter-in-place in their homes, governments have worked to increase the flexibility of their regulatory frameworks and rely on industry-guided efforts. For example, on March 19, 2020, the EC and Body of European Regulatory for Electronic Communications (BEREC) issued, a joint statement on how to cope with increased broadband network demand as a result of the COVID-19 pandemic. BEREC and the EC stated that Internet service providers are authorized to take necessary measures to mitigate traffic congestion – representing a shift toward a more collaborative regulatory approach (BEREC 2020, European Commission 2020). Simultaneously, digital service providers, such as Netflix, Facebook, Microsoft, and Google, have taken steps to reduce the amount of bandwidth consumed by their services both of their own accord and at the request of regulators. Notably, the ITU has begun curating other examples of these actions and facilitating collaborative discussions through its Reg4Covid initiative.
Building frameworks for digital regulation
The rise of digital services can impact how telecommunication services are defined and regulated. Amending the definition of telecommunications to encompass new digital services may expand the scope of which types of activities are subject to regulation. For example, whether and how to regulate various types of VoIP services has sparked policy debate worldwide. Although governments may opt for a light-touch regulatory approach, changes to who is regulated and how have broader implications on licensing, competition, and other compliance obligations.
Licensing frameworks for networks, services, and applications
The licensing framework and approach to licensing are key factors determining how easy or difficult market entry is in a country. Choices on licensing regimes and approaches are generally set through high-level policy decisions and adopted in telecommunication legislation, which are then implemented through rules and regulations.
The type of licensing framework that a country selects can directly impact growth in the sector. Service-specific licensing can restrict market entry by requiring a licensee to obtain a new license each time it wants to add a network or service to its offerings. While service-specific licensing remains in use around the world, multiservice and unified licensing frameworks have emerged as international best practice because they can better streamline licensing, promote technological convergence, and encourage competition. Figure 1.5 highlights the characteristics of these frameworks.
Figure 1.5. Three main types of licensing frameworks
For example, between 2013 and 2015, Myanmar reformed its telecommunication sector by moving from a service-specific regime to a multiservice framework involving three main licence categories, differentiating between whether or not the activity is facilities-based (Seint Seint Aye 2015). These reforms led to a digital boom in Myanmar, with mobile penetration rates increasing dramatically from 13 per cent in 2014 to 124 per cent in 2019 (Liu 2019).
These licensing frameworks are oriented for a telecommunications environment rather than a digital, environment. As discussed in the section on “Shifting mandate/roles of regulators and policy-makers in the digital era, how digital services fit into licensing schemes depends on their characteristics and whether their regulation even falls within the mandate of the ICT regulator.
There are multiple ways to authorize the use of spectrum, including through individual licensing of spectrum on a first-come, first-served basis; an administrative award; a competitive mechanism, such as an auction or beauty contest; a class or blanket licence that authorizes a large number of devices (e.g. terminals for satellite broadband or satellite TV dishes); or by identifying certain frequency bands as licence-exempt or unlicensed. For example, in June 2019, the European Conference of Postal and Telecommunications Administrations (CEPT) issued recommendations to European regulators to allow for unlicensed use of the 60 GHz band for 5G services under specified technical conditions (CEPT 2019).
Generally, policy-makers use competitive award procedures for spectrum in which demand exceeds supply. Mobile spectrum, for example, is typically awarded by auction or beauty contest because it is both in high-demand and of high-value. With the promise of 5G technologies, countries worldwide are awarding a large amount of spectrum for 5G, including in Germany, Japan, Singapore, and the Republic of Korea (MIC 2019, IMDA 2020, MSIT 2018).
Alternative approaches to licensing
In addition to the licensing framework, the approach taken to licensing and regulation impact market entry, competition, and availability of networks and services. The chosen approach should be based on a review of international best practices, meeting regulatory needs without imposing burdensome requirements that unnecessarily impede entry. Even under unified licensing frameworks with quick approval timeframes of one week or less, onerous information requirements can require new entrants to expend large amounts of resources – time and money – simply to prepare application forms.
In some instances, more stringent approaches may be adopted to achieve specific public policy goals, such as coverage obligations in mobile licences. However, a light-touch approach is generally preferred to encourage greater sectoral growth, with any regulatory interventions implemented in a targeted and reasonable manner. Thus, the overall goal is to adopt the least rigid regulatory measures possible to meet policy goals. Figure 1.6 identifies several approaches to licensing frameworks, licensing mechanisms, and market entry in terms of less to more onerous requirements.
Figure 1.6. Licensing approaches: less to more onerous
Innovative approaches to sector regulation
Simply applying existing – and potentially outdated – regulation to new technologies and services risks stifling innovation. To better keep pace with technological developments, policy-makers are examining different measures to provide clear, flexible, and objectively applied rules that avoid hampering progress. These styles of digital regulation include innovative ways to use spectrum, license new technologies, and facilitate universal access.
Innovative spectrum use rules
As new wireless technologies enter the field with existing services, there is an ever-increasing demand for spectrum, including for commercial 5G, satellite services, and fixed wireless, as well as increased spectrum needs for government use. More than ever, rules are needed to ensure efficient use of scarce spectrum resources. Table 1.2 briefly describes some of these creative approaches, including spectrum sharing, unlicensed spectrum, and private-use licences for the IoT.
Table 1.2. Creative approaches to spectrum use rules
|Spectrum use rules||Description||Benefits||Challenges|
|Spectrum sharing||Multiple users of different applications/technologies share the same band||Accommodates many users for more efficient spectrum use||Requires some level of management with potential for interference|
|Unlicensed spectrum||No limit on the number of users in the band on a licence-exempt basis||Enables easy access to spectrum for new and varied uses||No spectrum management means higher potential for interference|
|Private uses for IoT||Enables local network use for specific industrial functions, such as mining, ports, or health care||Supports IoT for a range of sectors with relatively low risk of interference owing to localized use||May limit the availability of 5G spectrum for wider commercial use|
Source: Sayed 2019, Bedi 2018, LVM 2020.
Creative licensing to spur deployment of emerging technologies
Governments are seeking new licensing models to encourage market players, including from outside traditional telecommunication operators, to test and develop technologies. These models include the “regulatory sandbox” and streamlining of demonstration or trial licences. Evolved from the fintech industry, regulatory sandboxes in the telecommunication sector enable technologies and business models to be tested for a specified period. Sandbox licensees are generally not subject to the full regulatory regime but may receive more regulatory guidance than standard licensees. The flexibility of such an approach may also prove valuable in times of crises as temporary measures to test innovative solutions to ensure connectivity. Regulators may also reduce or eliminate fees to further encourage players. Countries pursuing this approach include France and Thailand, as shown in Figure 1.7.
Figure 1.7. Elements of the regulatory sandbox model in France and Thailand
Source: Regulatory Authority for Electronic Communications and Posts (ARCEP). Bac à sable réglementaire (Regulatory Sandbox), https://www.arcep.fr/professionnels/startups-entrepreneurs/bac-a-sable-reglementaire.html; NBTC 2019.
Creative mechanisms to facilitate universal access
To facilitate access to digital technologies and services, governments continue to use conventional universal service programs driven by universal access and service funds (UASFs) along with other financing mechanisms. However, because of difficulties with accountability or oversight in implementing UASFs in many countries, other financial mechanisms are preferred, such as pay-or-play arrangements or smart subsidies.
Thus, legacy UASF-based initiatives may be supplemented or replaced with market-based solutions, such as in-kind contributions, to promote demand and reduce operator costs. For example, winning bidders from Germany’s 5G auction held in 2019 must comply with extensive coverage obligations, including a requirement to set up 500 base stations in unserved rural areas, called white spots (BNetzA 2019). Licensees must build out the base stations to white spot areas by the end of 2022.
During the COVID-19 crisis, some countries are assigning high-demand mobile spectrum on a temporary basis to ensure access. The Independent Communications Authority of South Africa (ICASA), for instance, announced in April 2020 that it is temporarily assigning spectrum in the 700 MHz, 800 MHz, 2600 MHz, and 3500 MHz bands to existing mobile network operators (MNOs) “for the duration of the national state of disaster in order to ease network congestion, maintain good quality of broadband services, and enable licensees to lower cost of access to consumers”.
Chapter 3 on “Access for all” details UAS mechanisms, further analysing trends and best practices to connect the unconnected.
Development of national digital strategies and roadmaps
- National ICT policies and digital strategies, implemented in many countries, are key mechanisms for setting connectivity targets and goals, and reinforcing the importance of the digital space in the overall economic and social spheres of a country. They are also valuable tools to advocate for collaborative regulation and the engagement of multiple stakeholders – promoting a holistic approach to digital development and planning.
Institutional structure and role of regulator
- The ICT regulator, regardless of the institutional structure, requires appropriate independence in terms of funding and day-to-day operations and making decisions, but its framework should recognize and encourage that it plays a collaborative role, sometimes primary, other times secondary, in developing the appropriate framework for a digital landscape.
- Given the impact of ICT in multiple sectors and the broad range of issues brought on by a digital economy, the digital landscape depends on a collaborative and interdependent environment between the regulator, other relevant government authorities, industry, and other key stakeholders.
- Governments need to establish mechanisms – formal and informal – to collaborate with industry and consumer groups on setting policies, rules, and guidelines. Many of the technologies and innovations being deployed are nascent and merit a tempered regulatory environment in order to better assess the appropriate path to promote innovation while protecting against consumer harm.
- Whenever possible, regulators should encourage industry to develop its own guidelines and codes of conduct before taking enforceable measures, since industry often is better equipped to handle dynamic and new issues.
- Policy-makers and regulators should take this digital environment as an opportunity to reassess the need for existing, potentially outdated laws and regulations and should adopt measures—which may include deregulation, self-regulation, or a co-regulatory approach – that will lead to greater innovation, easier deployment of new and emerging technologies, incentivize investment, and focus on inclusivity and collaboration.
- While G5 or collaborative regulation is a key component in developing inclusive policies for a digital environment, certain fundamental regulatory tools will remain under the primary purview of the ICT regulator, such as developing regulations to facilitate connectivity, infrastructure development and foster a competitive sector.
- Regulators should continue to make evidence-based decisions after holding public consultations. Robust consultations are crucial for digital regulation that involves multiple types of stakeholders, which may hail from sectors outside of traditional telecommunication players.
- Implementation and monitoring of regulations is important, both to ensure that regulated entities are complying with the rules and that the rules themselves are achieving their intended purpose. Expanding rules to cover digital services should be carefully considered, including the potential impact of imposing a patchwork of regulation.
- Enforcement should be subject to systematic and objective investigation prior to imposing sanctions while any remedies should be proportional to the violation. Cooperation with other sectoral agencies is useful to ensure consistent outcomes.
Building frameworks for digital regulation
- Licensing frameworks for networks and services should be as streamlined as possible and focus on easing market entry with unified or multiservice licensing representing best practices. For spectrum resources, there are various authorization mechanisms with each serving different policy needs.
- Regardless of the licensing framework, regulators should adopt licensing approaches that achieve regulatory goals without imposing burdensome requirements that impede market entry and growth. Generally, a light-touch regulatory approach is preferred, particularly for digital regulation that now encompasses a broad range of players.
- Emerging technologies and services may be fostered through innovative approaches to regulation, such as spectrum sharing, regulatory sandboxes, or alternatives to UASF mechanisms to achieve universal service. Regulators are positioned to adopt clear, flexible, and objectively applied rules to promote innovation.
- For more detailed examination of the topics covered in this chapter, see relevant thematic sections on the Digital Regulation Platform. ↑
- ITU, National Telecommunication Agencies, available here. ↑
- Ibid. ↑
- Ministry of Science, Energy, and Technology (MSET). Invest in Technology, available here. ↑
- ITU, ICT-Eye: Key ICT Data and Statistics 2018, available here. ↑
- These issues are detailed further in Chapter 2 on “Competition and economics” and Chapter 8 on “Technical regulation”. ↑
- ITU, ICT Regulatory Tracker 2018, available here. ↑
- Chapter 4 on “Consumer affairs” delves further into these issues. ↑
- See Chapter 5 on “Data protection and trust” for more information. ↑
- These issues are addressed in greater depth in Chapter 7 on “Regulatory response to evolving technologies”. ↑
- ITU, Reg4Covid, available here (accessed May 13, 2020) ↑
- These issues are detailed in Chapter 2 on the “Competition and economics” and Chapter 7 on the “Regulatory response to evolving technologies”. ↑
- Chapters 6 on “Spectrum management” examines the various mechanisms for authorizing the use of spectrum, as well as the benefits and drawbacks of each approach. ↑
- Bundesnetzagentur (BNetzA). Frequenzauktion 2019. available here; Infocomm Media Development Authority (IMDA), Close of 5G Call for Proposal, available here. ↑
- Chapter 7 on “Regulatory response to evolving technologies” and Chapter 6 on “Spectrum management” detail these and other spectrum matters. ↑
- Independent Communications Authority of South Africa (ICASA), Emergency Release of Spectrum to Meet the Spike in Broadband Services Demand due to COVID-19, available here. ↑
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