The independence of a regulator, both from those it regulates and from the government, is essential to establish confidence about the integrity of its regulatory decisions (OECD, 2014c). Regulators, therefore, should have the instruments necessary to prevent undue influence in their regulatory decision making to maintain trust in their competence. The independence of the Board of Commissioners and the qualification of its members are essential to ensure a high degree of regulatory integrity through objective, impartial, consistent decision making, and to avoid the risks of conflict, bias or improper influence. The process of selection and appointment of the commissioners is, therefore, crucial for the independence of the regulator.
The ICT Modernisation Law provides that the ICT Minister – or the Vice Minister of Connectivity and Digitalisation if the ICT Minister wishes to delegate that function – should be a member of the CRC Board of Commissioners. As discussed in the 2014 OECD Review, the government should not have a seat on the board as this will undermine its independence (OECD, 2014a).
The mechanisms to appoint the Board of Commissioners are equally important. The appointment should be independent from any political influence from the government or any entities reporting to it. In addition, the process should be transparent and the commissioners appointed based on their merit, according to a clear set of criteria. Direct appointment of the commissioners by the president does not seem to meet these conditions. Other mechanisms can ensure the involvement of the president in the process while preserving an independent and merit-based appointment. For instance, the president could choose the commissioners among a shortlist of candidates selected through an open competition, a mechanism that is, indeed, considered in the law.
The appointment of one commissioner by the regional public TV operators raises concerns about a potential conflict of interest, i.e. a commissioner being appointed by some of the entities that it will have to regulate. While the commissioner must have broadcasting expertise, his appointment should follow the same transparent and merit-based process as for the other commissioners.
The ICT Modernisation Law, as recently approved by the congress, establishes a rather unusual governance system for the converged regulator by creating two parallel boards within the CRC. Article 20 states that the CRC will have an Audio-visual Content Commission (ACC) and a Communication Commission (CC).
The ACC will be composed of three commissioners. One is appointed by the regional public service operators of the television service. A second commissioner is selected by the civil society through a public competition managed by a university. The audiovisual sector commissioner is selected in an open public competition. These two commissioners are publicly elected by third parties, although the law states that they represent civil society and TV channels. The commissioners are in charge of guaranteeing pluralism and impartiality of information in audiovisual services, protecting informational pluralism, competition and the rights of viewers. The ACC is further tasked to monitor and sanction behaviours that may threaten the pluralism of information and promotes citizen participation. It has the power to fine operators, television space concessionaires and national television contractors for violations of constitutional and legal provisions that specifically protect the rights of families and children.
This leads to a potential conflict of powers between the ACC and the CC when regulating the audiovisual content market, as the CC is also in charge of this market,2 especially with respect to competition in the “television market”.
Having two boards has no precedent in other OECD countries and will be challenging, at least from an administrative and legal perspective. There is no legal framework in Colombia that specifies how to deal with those conflicts of competences as the General Code of Administrative Proceedings applies to different entities and not to conflicts within the same entity. It is also unclear whether the CRC Chairman should be part of the ACC or whether the ACC may take decisions autonomously; and whether the ACC can request information from private parties or even sanction operators that do not comply with regulation. While a government decree may help solve these issues, the establishment of two boards within the CRC will undermine the holistic approach that is at the very foundation of the converged regulator.
Finally, the article ruling the transition to the converged regulator should have deserved a closer examination. The transitional provision in the law that prescribes the suspension – until the new regulatory authority is established and at least three commissioners are appointed – of all proceedings and analyses currently undertaken by the CRC. This could set back the regulatory work by several years.
Similarly, in order to ensure some institutional memory in the converged regulator, the confirmation of the current commissioners should be based on their knowledge and experience, rather than on the residual length of their mandate.