Independent Communications Authorities: truly independent?

Some practical suggestions.

Following the liberalisation of the communications market, fundamentally stimulated in this

sense by EU competition policy, various legal systems have witnessed the birth of a new

public body: the National Regulatory Authority. A specific feature of these public bodies

should have been their independence from both the political power and the actors

operating in the regulated market. Such authorities were indeed deemed necessary in

order to oversee the proper functioning of the market, especially bearing in mind the

particular structure of this market before its liberalisation. In other words, through the

establishment of these independent authorities, the legislator wanted to avoid any possible

abuse from the incumbent, which in most of the cases was represented by the State itself.

Thus, understanding the independence of these authorities, as its defining feature, is

fundamental. Furthermore, one should also consider the peculiarity of the communications

market, which plays a crucial role in the proper functioning of the democratic state. In light

of this, we should ask ourselves whether such regulatory authorities today are truly

independent, or whether in reality this remains pure rhetoric. To put it differently the

fundamental question is if, after the establishment of such regulatory authorities, their

independence (i.e. from politics and the actors in the market) has been properly

implemented and guaranteed or it has remained on paper.

Firstly, concerning the political independence, it only suffices to have a quick look at

current legislation to see that these authorities are not truly independent from politics. This

is true for a plethora of Communications authorities in the EU: the OfCom (Office of

Communications) in UK, the “Agenzia per le Garanzie nelle Comunicazioni”

(Communications Regulatory Authority) in Italy, the “Conseil Supérieur de l’Audiovisuel”

(Senior Audiovisual Council) in France and Belgium, the “Bundesnetzagentur“ (Federal

Network Agency) in Germany, the “Comisión Nacional de los Mercados y de la

Competencia” (National Markets and Competition National Commission). Indeed with

regard to all these authorities, the government – and in certain limited cases (Italy, France,

Belgium) also the Parliament - has the power to appoint the president and its members.

Thus, it cannot be said that there is a veritable independence from the political power.

Furthermore, the selection process is in most cases opaque and follows the logic of

political convenience (and often that of political carving-up – from the Italian expression

 

“lottizzazione”) instead of the logic of the competence of candidates. Consequently,

governments are not held responsible for the activity of the supposedly independent

authority even if, de facto, they have the power to intervene. Indeed, the independence of

the president and the members lies on the integrity of politicians not to use their power of

influence. In this regard, giving the power to appoint the president and the members of the

authority exclusively to the Parliament could be a possible solution to this situation. A

specific parliamentary committee could be set up and be responsible for these

aforementioned appointments, which should be made on the basis of an open public

competition to select the best applicants. Such a solution would give the power to the

public opinion to be informed and actively participate in the selection process. This would

also make it more difficult for political parties to follow the logic of political carving up of

public seats (“logica di lottizzazione”). This very same committee could also be charged to

control the activity of the authority by evaluating the degree of competition present in the

market. Additionally, the committee could be assisted by a panel of experts selected

amongst civil society according to a system of rotation.

The other profile of independence that deserves analysis concerns the independence of

the regulatory authorities from the actors in the market. In this regard, it is important to

highlight a specific provision that is recurrent in the legislation of some important EU

member states (like Italy and the UK). In particular, I refer to the fact that the activities of

these authorities are funded by certain fees imposed on actors present in the market,

subject to control by that very same authority. This situation risks gravely undermining the

independence of these regulatory authorities. The obvious objection is that this rule is

provided for guaranteeing the financial autonomy of the authorities from the political

power. However, if on the one hand this could be true, on the other hand, less

controversial solutions could be put forward. For instance, the activity of the authorities

could be funded using financial resources (potentially billions of euros) gathered by issuing

the call for tenders for the radio frequencies assignment, with regard to both the

broadcasting and telecommunication services. This solution has two potential beneficial

effects. It could encourage the authority to periodically issue the call for tenders in order to

maximise the value of the frequencies, whilst contemporaneously ensuring the financial

independence of this authority in order to attain effective independence from the political

power.

In conclusion, it is important to highlight that above all, in order for these authorities to

achieve real independence, cultural and social changes should take place within the

 

political class. In other words, politics should abandon the logic of “lottizzazione” and

embrace the logic of transparency, competence and merit. Only in such a way the

activities exerted by these authorities would be truly independent.

Michele FAILLA