Ofcom Consultation Procedures, Reprise…

Ofcom have rearranged the links to responses to consultations on its website - for the better, I’m pleased to report.

I’ve been so busy lately (it’s March Madness here in the U.S. ~ a cultural phenomenon largely lost on Europeans) that I’ve not really had a chance to review - from a substantive perspective - many of the responses that were filed. However, I would like to call out one in particular, the response of the Communications Management Association, or CMA.

The CMA’s comments go to the core of regulatory practice and procedure, and express concerns about Ofcom’s regulatory ‘touch’. The CMA asserts, among other things:

* That Ofcom should pay particular attention to the culture clash between vestiges of OFTEL (which purportedly had a wider perspective) and the Radiocommunications Agency (which purportedly had a narrower perspective). CMA suggests that Ofcom is not following OFTEL’s approach, and is instead acting in a narrow, over-regulatory fashion. That’s my take on it anyway. This is an area that Ofcom Watch co-founder Luke Gibbs has explored in his research.

* That Ofcom is not performing a meaningful consultation because it has already made up its mind about its intended course of action and has signaled this in its consultation document. Interesting comment. I’m not sure this is such a bad thing, however. I think regulatees should expect the agency to have an opinion on key issues. At the FCC, the opinions are usually expressed in the forms of proposed rules and statements made at the time the proposed rules are introduced. Of course, it’s the regulator’s duty to be flexible and consider new information; that’s the entire reason for the consultation process. This is an area of unavoidable tension in the regulatory process: how do experts go about their business whilst remaining somewhat accountable to the public and industry.

* That Ofcom is rushing toward an outcome (spectrum trading) without placing its goals in a wider context of competition, overseas investment, and other objectives (Broadband Britain and deregulation).

These are clearly not stinging criticisms, but I thought CMA’s comments were especially worthy of review and commentary.