Telecommunications (Amendment No. 2) (Jersey) Law 201-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 25 October 2011:

Decision Reference: MD-E-2011-0177
Decision Summary Title :	Telecommunications (Amendment No. 2) (Jersey) Law 201-		Date of Decision Summary:	19 October 2011
Decision Summary Author:	Strategy Manager, Policy and Regulation		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Telecommunications (Amendment No. 2) (Jersey) Law 201-		Date of Written Report:	19 October 2011
Written Report Author:	Strategy Manager, Policy and Regulation		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Decision to lodge the draft Telecommunications (Amendment No. 2) (Jersey) Law 201-
Decision(s): The Minister approved the draft Telecommunications (Amendment No. 2) (Jersey) Law 201-, and directed that the draft Law be lodged au Greffe for debate by the States as soon as possible.
Reason(s) for Decision: Having considered several reviews of the regulation of the telecommunications industry in Jersey, the Minister is of the opinion that it is appropriate to amend the Telecommunications (Jersey) Law 2002 to grant additional powers to the JCRA and to simplify the consultation system.
Resource Implications: There are no immediate financial or manpower implications for the States, as the amendment only affects the operation of the JCRA. There new consultation requirements should improve the efficiency of the JCRA. Revenue from civil penalties will flow to the Treasury.
Action required: The draft Law to be lodged au Greffe for debate by the States as soon as possible.
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Telecommunications (Amendment No. 2) (Jersey) Law 201-

Accompanying report

Summary

The purpose of this amendment is:

To provide the Jersey Competition Regulatory Authority (the JCRA) with civil powers to fine licensees if they are found to be in breach of one or more of their licensing conditions up to a maximum of 10% of their turnover averaged over three years;

To clarify the right of the Authority to include conditions in licences which require operators to comply with directions issued by the JCRA; and

To simplify the current consultation processes to remove the obligation on the JCRA in Article 11(10) of the Telecommunications Law to issue a fresh initial notice in the event of any change to a proposal.

Current regime

Jersey's current regulatory regime for telecommunications is broadly satisfactory in that it is comparable with a number of other jurisdictions in terms of powers and relative resourcing.

However, several studies into the effectiveness of the JCRA in regulating the telecoms industry have been conducted, and the conclusions of those studies together with the JCRA’s experience of regulating the telecommunications industry since 2002 have led to the modifications to the telecommunications law made by this amendment.

Studies

In July 2007 Oxera completed a review entitled ‘Possible Sale of Jersey Telecom: Additional Analysis’. A conclusion of this work was that the regulator needed to have appropriate intermediate sanctions for contravention of licence conditions.

The Economic Affairs Scrutiny Panel reported on the proposed privatisation of Jersey Telecom in March 2006 and recommended that a comprehensive review of the current capabilities of the JCRA, including its skill base, resources and legal powers, be carried out.

Consistent with the recommendations of both the Scrutiny Panel and the Oxera report into the sale of Jersey Telecom, a further review was undertaken into the JCRA’s regulation of telecommunications in Jersey.

LECG (a global consulting and expert services firm) in association with law firm Charles Russell LLP were commissioned to conduct the review, with the following main objectives-

to undertake a review of the JCRA’s regulatory powers, resources and functions as a telecoms regulator within the Jersey market; and

to produce a report detailing the efficiency of the JCRA in the telecom sector and making any such recommendations for change or improvement that might be considered.

The LECG Report was published in the spring of 2009 and made a series of recommendations, half of which centred on the working practices of the JCRA, generally in respect of the function of telecommunications regulation and its ability to undertake the role.

The recommendations within EDD's authority to deliver are primarily amendments to the Telecommunications (Jersey) Law 2002, specifically-

the streamlining of the law’s consultation procedures,

providing the JCRA with the ability to fine operators in breach of a licence condition and providing a mechanism to formally clarify licence conditions.

This amendment is therefore primarily based upon the outcome of the review, but also includes provisions to allow the JCRA to include conditions in its licences which could ensure that telecoms operators must follow its directions.

Powers to impose penalties

In considering this recommendation of the 2007 Oxera report, the Minister noted the existing powers of the JCRA under the Competition (Jersey) Law 2005 and those of comparable regulators in the United Kingdom and elsewhere.

The only sanction available under the current Telecommunications Law is the power to revoke a telecoms licence if a provider does not comply with its licence conditions. This means that in practice the regulator can only try and persuade its licensees to conform with their licence obligations because the ultimate sanction, revocation, often may not be realistic.

Other telecommunications regulators have the power to enforce fines up to a maximum of 10% of turnover for breaches of licensing conditions and the Minister considers that this would be a valuable tool for the regulator before being forced into civil litigation or recourse to the criminal law.

Conditions of licences - requirement to obey directions

The amendment is also intended to resolve an ambiguity in Article 16 of the law. Currently, while the conditions imposed as part of a licence imply that the JCRA has the authority to direct licensees, this authority is not explicitly stated, unlike in the telecommunications laws in similar jurisdictions like the Isle of Man or Guernsey.

The amendment would amend Article 16 to expressly permit the JCRA to include conditions in licences requiring operators to follow its directions.

Requirement for repeated consultation

The amendment revises the manner in which the JCRA is required to consult upon regulatory decisions.

The JCRA is obliged to undertake public consultations in response to a wide range of proposals and initiatives. Currently, if it consults upon a regulatory decision, and then changes its proposed decision in any way in response to feedback that it has received as a result of the consultation, it is then required to begin the consultation again more or less from scratch. The burden that this imposes may have a number of negative consequences-

Repeated consultation on the same issue may create ‘voter apathy’ and reduce the overall effectiveness of consultation.

It will divert JCRA resources from other, potentially more significant, matters.

The need to repeat a consultation if changes are made in response to it could create a perverse incentive not to adopt the findings of a consultation. This is particularly likely to be the case where resources are constrained.

The LECG review recommended that this procedure should be reconsidered so that there was no absolute obligation to issue fresh notifications when changes to consultations are made, but that the JCRA should be able to start a new notification in cases where it feels that the proposals have changed so significantly that there would be benefit from starting a new consultation.

For these reasons, the amendment provides discretion in such circumstances.

Financial and manpower implications

There are no additional financial or manpower implications for the States arising from this amendment.