Ofcom Respond To Ofcomwatch Consultation Enquiry

We recently wrote to Ofcom asking them clarify their consultation process. As currently drafted, it appeared - to us at least - that the process would be less transparent than it was being promoted as being.

In particular, we felt that regulatory decisions would be strengthened if submissions were made public at the point they were received, allowing other parties to respond and possibly refute comments, analysis, data and evidence presented to the regulator by others. But Ofcom has confirmed that submissions will only be made available for public scrutiny after a decision has been made.

This approach - during the consultation - may hold some validity. As Ofcom point out many submissions are posted close to end of a consultation, which gives little time for parties to analyse and respond to the claims of others. Indeed, making submissions public at the point of receipt may encourage some stakeholders to post at the very last possible moment in order to avoid third party scrutiny.

However, Ofcom’s further decision to not allow a period of ‘comments on comments’ after the submission deadline makes less sense. The rationale here is based on an institutional belief that - ‘from experience this rarely improves the quality of information available’.

To us, who advocate a public domain document management system similar to that used in US by the FCC this appears an unproven and convenient blanket statement. The FCC - by law - provide a period for public comments, allowing both the public and companies (small and large) to assess claims made by others which may, through the actions of the regulator, impact upon them. Ultimately this is seen to give everyone a fair chance to offer an opinion, adding an extra layer of vigilance, which ultimately serves to strengthen the final decision.

Ofcomwatch’s Letter To Ofcom - 6/11/03

Dear Ofcom,

Having read your document - ‘How Will Ofcom Consult’ - we were left confused as to whether submissions would be available to the public during the consultation process - i.e. before a decision or indeed whether they would even be available for comment after a decision.

The document states,

‘We [Ofcom] think it is important for everyone interested in an issue to see the views of others during a consultation. We [Ofcom] would usually publish all the responses we have received on our website.’

But this statement is placed in a section titled - ‘After the Consultation’ - hence the confusion. On this basis there would be no opportunity to make a submission to the consultation to refute a position proposed, claim made or evidence used by another consultation respondent.

Reinforcing this, the document goes on to state,

‘Once the consultation period has come to an end, some regulators ask all those who have responded to a consultation if they would like to comment on the views others have given. We would not usually do this but may do so in particular cases.’

These statements taken together suggest that submissions will not be available for comment during or after a consultation, outside of ‘particular cases’. Even in those ‘particular cases’ the opportunity to comment (as it is currently outlined) will be limited to the original respondents. We feel that an important opportunity for public comment, transparency and accountability is likely to be missed if this is indeed the case.

We would advocate a document management system such as the one used by the FCC. The FCC makes all submissions (other than those deemed commercially sensitive) available to the public during a consultation - allowing alternate positions to posted in response to submissions.

In addition, the FCC also provides - by law - a period for comment in response to submissions after the conclusion of a consultation - i.e. before the regulator makes a decision. This allows public analysis of ‘evidence’ based submissions - adding an extra layer of vigilance, which ultimately serves to strengthen the final decision.

Some guidance and comment would be appreciated on these points.

Yours sincerely,

Luke Gibbs and Russ Taylor

Ofcom’s Response - 21/11/03 - Robin Hull - Ofcom

Thank you for your enquiry. Ofcom would expect its normal practice to be as follows.

We would publish all consultation responses on our website soon after a consultation has closed. We would only not publish responses if those submitting them had indicated that they were confidential and had therefore withheld consent from publication.

We therefore intend to be as open as possible about the responses that we receive. You suggest that responses should be published on our website as they are received during the consultation. In practice, we think that this would have no significant benefits, as a very high proportion of responses to any consultation are received in the closing days of the consultation period. We think it is more equitable to respondents to publish all responses at the same time, after a consultation has closed.

We will not normally invite comments from other parties on the consultation responses received. There may be cases where we would do this, but they would be the exception rather than the norm. In the past some UK regulators have allowed a period for such responses (so called ‘comments on comments’), but experience suggests that this rarely improves the quality of information available. There is a tendency for those with strong interests in a particular issue to put a lot of time into rebutting others’ arguments, but by using well-established arguments and assertions rather than supplying fresh evidence.

Ofcom’s view is therefore that in the interests of a more speedy and effective process it will not generally seek ‘comments on comments’.