“It is very ironic that, thanks to the 1991 Constitution, this was one of the first countries in the region to create the figure of an autonomous regulatory body, thus leading the way in the separation of powers, and managing for over 15 years this body in the form of the National Television Commission (CNTV) … however, the present government, through a constitutional reform, has now eliminated this entity, leading to a major historical set back in this area.”
Observacom Staff/ Colombia, May 2015
The Organization for Economic Cooperation and Development (OECD) recently issued an opinion concerning the Republic of Colombia, and regarding the need to ensure the independence of regulatory bodies in that country, especially in terms of television, fixed line, mobile and broadband markets, a move that clearly underlined the problems of the Communications Regulation Commission (CRC) being a separate entity from the television regulatory body (National Television Authority – ANTV), and reporting directly to the executive branch. This is because such interference is deemed detrimental to the democratic principle of the separation of powers within the rule of law, and undermines the independence required by this sector. The OECD thus recommended merging the two bodies whenever possible, and that the ensuing governing board should not be directly answerable to the central government:
“It is recommended that the Communications Regulation Commission (CRC) and the National Television Authority (ANTV) are merged, as there exists a lack of independence and sanctioning power in terms of the instruments created for curbing market domination. The five commissioners should be completely independent, as there is (at present) a lack of separation between policy design and the sector’s regulation”
Summary of OECD recommendations
Although Colombia would appear not to be fulfilling the international standards recommended for this area, it is very ironic that, thanks to the 1991 Constitution, this was one of the first countries in the region to create the figure of an autonomous regulatory body, thus leading the way in the separation of powers, and managing for over 15 years this body in the form of the National Television Commission (CNTV). Although many problems were encountered, particularly of an administrative nature, the body was able to maintain an adequate distance from central government, which was perhaps why on various occasions the executive tried to eliminate it, something that the present government has finally achieved through a constitutional reform, finally dismantling this body, leading to a major historical set back in this area.
Following the act terminating the CNTV, law 1507 was enacted in 2012; this regulated the three new agencies responsible for overseeing the sector. The legal nature of these three agencies represents a level of much greater dependence on the legislature, as the alteration of the power of a constitutional body demands a highly complex and lengthy legislative process over time (over the life of various parliaments), while reconfiguration of a legal body is much simpler and quicker. That is to say, in the same way such bodies are created by the legislature, they can also be modified or terminated by that same power, thus limiting the actions and independence of the administrative heads of such bodies, in comparison to the entity that preceded them.
With regard to the internal set up of the three bodies established by Law 1507, setbacks were noted in terms of their independence and autonomy. The body that maintained the greatest level of independence was the National Television Authority (ANTV), which through the National Television Board, was formed by representatives of civil society, of the universities, of the country’s regional governors, of the president, plus the Ministry of Information Technologies and Communications, so maintaining a certain level of independence, although 3 of the 5 positions, or rather a simple majority, were controlled by the executive branch, two directly by the President and one in terms of the regional authorities. Such a set up is unable to guarantee true independence, which would require that the majority favored civil society representatives and not those of the executive branch, as underlined by the OECD.
For its part, the CRC is a body that is partially dependent on the Ministry of Information Technologies and Communications, thus affecting the independence of its commissioner experts, and in contrast to the provisions set down by the OECD: this situation clearly benefits the interests of the executive branch as opposed to the body’s plurality, independence and regulatory autonomy.
The National Agency for the Radioelectric Spectrum (NSA) is a special administrative unit at nationwide level, with a legal personality, technical, administrative and financial autonomy, and its own assets: it is attached to the Ministry of Information Technologies and Communications. This means to say that the NSA reports directly to the ministry: in this case although the socio-political impact is not so severe, and the situation facilitates administrative processes, it is still an undemocratic set up, given that the radio spectrum is a limited resource, which on being awarded, grants the license holder a significant protective trade barrier, which favors their economic and operational interests.
Ministerial Super Powers
Both law 1507 promulgated in 2012, and law 1341 in 2009, as well as all the regulatory decrees that have been issued, define the role of the Minister as head of the ICT sector and provide this position with the powers of competence, intervention and direct involvement in all related bodies, including autonomous entities such as ANTV, thus concentrating a high level of power in one government official in benefit of the powers of State, in this case the executive branch.
Such a concentration of power is unhealthy in a democracy and undermines the separation of powers and the balance of the regulatory system, making it necessary and urgent that ANTV has a majority civil society representation and that the CRC is allowed to be a body mainly independent of executive power, and that the powers of intervention of the minister are limited by law. Regarding the latter, particularly in terms of those powers vested in the minister for the allocation of concessions, sanctioning powers, access, market diversification, content intervention, procurement of services and any other aspect which may favor a competitor in virtue of the interests or political agreements that may emanate from the executive branch.
Summing up, there is deep concern regarding the actual concentration of power in the ICT Ministry, the lack of independence of the CRC and the NSA, the deciding majority of the executive on the board of ANTV. Added to which, is the concern regarding the powers granted to the executive branch, through the Ministry of Information Technologies and Communications, to intervene in this sector in the areas of regulation, concessions, sanctioning powers and service operation. This is totally in contravention of the recommendations made by the OECD and other multilateral international organizations, as well as the universal principle of the separation of powers in a democracy.
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