Participation in the regulatory process by all stakeholders fosters commitment to and credibility in such process. In turn, notification by the regulatory agency is essential for participation and requires that all stakeholders are notified of regulatory decisions and, most importantly, of the reasons behind them. Such participation may be instrumented in various ways, through Notification, Consultation and Public Hearing Procedures.
Notification Procedures publicize the decisions of the regulator, stating the reasons behind those decisions; accordingly, they relate to the accountability principle, but also to those of communication and transparency. For instance, one way to render a decision to increase a service's rate credible for consumers is largely dependent upon the regulator publicizing the outcome of the service's technical and business monitoring procedure.
In general, particularly in the past few years, Notification Procedures have entailed the publication of decisions and their grounds, as well as any kind of information that the agency may desire to make public, on the agency's web site. However, publication in official gazettes or some other official publications is also used, as well as reporting in the media.
Consultation Procedures consist in gathering relevant information for the decision-making process and obtaining feedback from the players involved in such decisions; accordingly, they foster the consultation principle and, critically, participation. Depending on the nature of the subject put up for consultation, the number of players involved, and the legal formal requirements, these procedures may be instrumented as follows:129
■ Formal invitation to submit opinions and written observations.
■ Individual meetings with interested parties.
■ Meetings, seminars and workshops with groups of representatives and other interested parties.
■ Publication of drafts containing the regulator's preliminary version and the request for observations from the public prior to the passing of a final decision.
■ Polls and surveys.
■ Consultation with independent consultants.
■ Discussion and consultation with professional regulators and regulatory institutions from other jurisdictions.
Public Hearing Procedures are informal mechanisms for public consultation; hearings are open to all parties interested in participating and they are characterized by the fact that they allow oral presentations of the decisions and their discussion. Mainly, they allow the presentation of proposals, their oral discussion and a contrasting of the proposals submitted by different interested parties.
Also, public hearings can better adapt to consultation on highly complex issues as, in such cases, the written consultation procedures may take too long. They also allow greater participation than other consultation mechanisms and are highly useful in contexts in which changes to the regulatory rules are at stake. For instance, the Peruvian telecom regulator, OSIPTEL, uses public hearings prior to adopting new regulations.
BOX 21 : Public Hearing Procedure - OSIPTEL
| The discussion time lasts a maximum of two hours. Participants must register before entering the meeting, providing their company name or the institution that they are representing. The participants speak according to the order on the registration list. Each participant has a maximum of three minutes to speak. In the case of companies or associations, only one representative (the first registered participant) is allowed to speak, unless the moderator permits additional representatives to do so and sufficient time is available. The number of rounds or times that participants are allowed to speak depends on the number of participants who have registered. Comments or objections must address the specific subject of discussion. The moderator has the right to preserve the orderly development of the discussion, and may interrupt a participant if the commentary is not related to the topic of discussion or the participant's time has passed. The public hearing is filmed and transcribed. The public hearing concludes once all registered participants have spoken or the scheduled time has expired. |
Source: ITU Global Regulators Exchange Database, response by Carlos Gomez, G-REX advisor, on 29 November 2004 to the subject "Procedure for conducting open house discussion," posted on 15 September 2004 by the Telecom Regulatory Authority of India.
Prior to holding a public hearing, the regulator needs to provide the general public with the relevant details, by publicizing the hearing on the agency's website or through the media (on the radio, a newspaper or TV).
The decision on the type of consultation procedure will depend on the issues involved. However, when necessary, public consultation may be instrumented through a combination of all of the procedures mentioned above.
Usually the consultation process has three stages that may include formal or informal procedures, depending on the nature of the relevant topics set for discussion. At the first stage, the point is to identify and publicly present the subject for consultation. Accordingly, the regulator will issue a formal consultation document requesting the opinion of the interested public. The second stage involves an open period for the submission of opinions and observations by the public. The regulator's goal is to gather as much information as possible that is relevant for a better decision-making process.
Besides receiving opinions and written observations, the regulator may use this second stage to set up informal consultation procedures aimed at gathering additional information or obtaining clarification on information received. At the last stage, the regulator makes a decision based on the information received.
The public consultation document should contain, at least, the following information: (a) purpose of the consultation and description of relevant aspects covered; (b) time period for the consultation process; (c) name, information and contact address for the submission of opinions and observations; (d) references of the authority carrying out the consultation; (e) information on the next steps of the regulator and how and where to obtain related information.
In order to carry out an efficient consultation process, the regulator should have that same consultation document include a schedule for the submission of opinions. The time period for the consultation process will be defined based on the complexity and urgency of the decision at stake.
However, such considerations must also be balanced against the time required by the public to prepare their comments and opinions. In fact, if, on the one hand, the open consultation period is too short, the public will not have sufficient time to prepare their observations and comments. On the other hand, if the open consultation period is excessively long, a definition on the subject is delayed, and the original issues that gave rise to it may change.
At this stage, the regulator is required to publish all observations in order to maintain transparency over the consultation process. There must be public access to such documents, whether through the regulator's website or at the actual offices of the agency. The interested public may thus make sure that the regulator has actually received their opinion or comment, while checking those sent in by other interested parties.
At this stage, the regulator also has flexibility to use other informal means to gather additional information or to obtain clarification on information it has already received. Indeed, regulators often organize seminars, workshops, visits to representative groups and interested parties, Internet forums, polls, surveys and even public hearing processes.
Once the open consultation period is over, the regulator is required to publish its final decision. It is important that the time elapsed between the end of such period and the moment of publication be reasonable, so as to ensure the process' credibility and effectiveness. In fact, process transparency is largely dependent on the regulator's publishing the document containing the reasons for its decision, as well as a full summary of the information exchanged with the interested parties.
BOX 22 : OFWAT's public consultation process
| The consultation process | ■ OFWAT will issue a press release or similar announcement about every consultation. The website has a link to UKonline (www.ukonline.gov.uk) which is the central, web-based entry point to government information. This holds a central register of current public written consultations. If someone registers with UKonline, they will send her an e-mail when a consultation starts on a particular subject (such as gas, electricity and water companies). ■ Paper copies of documents will always be available. Each consultation paper will contain a list of people OFWAT has told about the consultation. ■ OFWAT will also consider other 6 methods to effectively reach interested people. For example: contributing articles to relevant journals, and holding meetings, workshops or seminars with organizations or individuals - to explain the issues, and to properly understand their points of view. ■ OFWAT put all responses to consultations in its library unless they are marked confidential. ■ OFWAT will publish its final decisions, including its reasons for them. |
| Timetable for consultations | ■ The Government's code of practice recommends that national public consultations should last at least 12 weeks. In the past, OFWAT has usually allowed up to eight weeks for consultations. ■ OFWAT will consider extending deadlines for complicated issues. ■ Many of OFWAT consultations are in response to events with timetables set by other organizations, for example, mergers where the timetable is set by the Office of Fair Trading. Other consultations are in connection with matters where the water companies' license sets out the timetable. And many of OFWAT consultations do not cover the whole of England and Wales. |
| Consultation documents will include | ■ A summary written in plain English, highlighting the main issues. ■ A description of the purpose and aims of the consultation. ■ The issues on which OFWAT is asking for people's views in the form of clear questions, wherever possible. ■ Areas of an issue on which OFWAT has already made decisions. ■ Details of any advice OFWAT has received. ■ Where appropriate and practical, the possible costs or benefits, details of who is likely to be affected and how. ■ Where appropriate and practical, an assessment of how an issue could affect the environment. ■ The deadline for responses. ■ The timetable for decision-making and the introduction of new policies. ■ Details of who to contact for more information. ■ Details of who will deal with complaints or comments about the consultation process. ■ OFWAT will ask respondents to give it their names or details of who they represent. This will help OFWAT to get a balanced view of responses. ■ OFWAT will also ask for an electronic copy of each response. OFWAT will put these on our website. ■ Details of which parts of England and Wales the document relates to, and whether it contains proposals which are the responsibility of more than one organization. ■ Who the consultation is particularly aimed at and a list of people OFWAT has told about the consultation. ■ A glossary of terms. |
| The decision document | This will usually include the following. ■ A summary of all the responses received to each issue. ■ OFWAT decisions and explanations for these. ■ Where appropriate, details of how the issues discussed will affect particular groups such as the water companies, or particular groups of customers (small households, large families and so on). ■ The timetable for introducing any changes arising from the consultation. ■ Details of who to contact for more information. ■ A list of people who responded to the consultation. |
Source: OFWAT, Having Your Say: OFWAT's code of practice on consultations, January 2002
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129 ICT Regulation Toolkit. Overview of the Public Consultation.