How will Ofcom consult?

Ofcom Consultation Guidelines November 2007

A guide to our consultation process

We are the communications industry regulator spanning television, radio, telecoms and the use of spectrum. Our actions affect people and organisations across the UK . As a result, it is very important that we take our decisions at the right time and in the right way. These decisions must be based on evidence and they need to take account of the views of those who have an interest in the outcome.

Consultation plays an important part in achieving this. It allows those who could be affected by or concerned about a particular issue to give us their views before we decide on a course of action.

Consultation is an essential part of regulatory accountability the means by which those people and organisations affected by our decisions can judge what we do and why we do it.

This guide explains how we normally manage the way we consult those with a view on what we do. We will update this guide from time to time to take account of best practice and comments on our processes received from those affected by what we do. Although these guidelines set out the approach Ofcom expects to take, they do not have binding legal effect. If Ofcom decides to depart from the guidelines, we will normally set out our reasons for doing so.

If you have any comments on how we can improve our consultation processes, please let us know by e-mailing us at consult@ofcom.org.uk.

Effective consultation

For us, an effective consultation means allowing all those interested in the outcome of a particular decision to have their say before we make that decision.

We will try to:

• involve, as far as possible, all those whose voices need to be heard, whether big companies or small ones, industries, consumer and community groups or just individuals;
• explain fully the different options that we are considering before we make our decision;
• help those with views to respond fully and in an informed way; and listen to those responses and use them to help understand the effect of any action we take.

We will also try to:

• do this clearly and openly so everyone can see what is happening when, and why;
• deliver value for money by making sure the cost to us of running the consultation process is not too high; and
• avoid taking too much time as the markets we regulate change quickly.

Each consultation will be different

We are responsible for a very wide range of issues affecting the public from what appears on the television news to competition between telecommunications providers.

We need to be sure that we have judged our decisions well and that they are based on the widest range of information and views available. To do this we often need to issue full and detailed consultation documents which explain the different courses of action we are considering. In some circumstances, where our proposals affect a limited number of organisations, or where we need to act quickly, we may issue shorter documents, to a more limited range of stakeholders and with a shorter period for consultation.

We will approach each consultation differently depending on the type of industry issue and the type of people and organisations likely to take an interest.

How formal consultation will work

We usually run each consultation with a document asking for written responses of people and organisations who want to give us their views. We publish this document on our website (in soft copy) and we may additionally issue a paper (hard copy) version where our proposals are likely to be of interest to a large number of people.

But formal consultation has its limits. Some of those affected by our decisions are better placed to deal with regulation than others. Very big companies have experts available to analyse long and complicated documents but small companies usually do not. Consumer and community groups and individuals also lack both time and specialist skills. But the views of all concerned matter, and we want to hear them.

We think the best way to help achieve this is to make formal consultation as efficient as possible and to back this up with other ways of gathering opinions.

As well as asking people for written responses to formal consultations, we will therefore normally also do the following.

• We will use research to understand the views, needs and behaviour of people and organisations involved in or concerned about the communications industry. We particularly want to reach smaller companies and organisations who normally struggle to get their opinions heard. Some research will be based on surveys and opinion polls. Other studies will be based on techniques such as focus groups. And, others will use a balance of both. We may also hold public meetings, on occasion.
• We will continue to make sure that the independent Ofcom Consumer Panel has the people and resources that it needs to support our work, both before a consultation and during it.
• We will speak regularly to a number of different people and organisations in an informal way to help us understand their concerns. We may have a period of pre-consultation in some circumstances with stakeholders who might potentially be particularly affected so that we can understand the issue better. Any stakeholders views gathered during pre-consultation may help inform Ofcoms initial thinking but will not be treated as formal consultation responses, as these informal discussions will apply as well as not instead of the formal consultation process. We undertake pre-consultation through a mixture of informal meetings and seminars.
• We will communicate as widely as possible throughout each consultation. This may involve:

• holding as many face-to-face meetings as possible in the time available;
• using our website (www.ofcom.org.uk) to gather feedback online and to provide detailed background information;
• briefing the media using news releases and so on; and
• communicating directly through the media by writing articles for magazines and newspapers.

We will keep accurate records of discussions which help us to understand the issues involved. But we will also respect the confidentiality of our sources and will not reveal details if we have agreed to keep discussions private.

We dont just want to know whether people agree or disagree with our proposals. We also want to know why people hold the views they do. How would our proposals affect each individual as a citizen and a consumer? How would they affect each persons business?

Wherever possible we would like people to back up their statements with evidence. We also encourage membership groups such as trade associations and consumer and community groups to explain who they represent.

How we will approach each formal consultation

There are seven principles which we will normally follow for each written consultation.

Before the consultation

1. Where possible, we will hold informal talks with people and organisations before announcing a big consultation to find out whether we are thinking in the right direction. If we do not have enough time to do this, we will usually hold an open meeting to explain our proposals shortly after announcing the consultation.

During the consultation

1. We will be clear about who we are consulting, why, on what questions and for how long.
2. We will make the consultation document as short and simple as possible with a summary in plain English. We will try to make it as easy as possible to give us a written response. If the consultation is complicated, we may provide a shortened plain English Guide for smaller organisations or individuals who would otherwise not be able to spare the time to share their views.
3. We will consult for up to 10 weeks depending on the potential impact of our proposals.
4. A person within Ofcom will be in charge of making sure we follow our own guidelines and reach out to the largest number of people and organisations interested in the outcome of our decisions. Ofcoms Consultation Champion will also be the main person to contact with views on the way we run our consultations.
5. If we are not able to follow one of these principles, we will explain why.

After the consultation

1. We think it is important for everyone interested in an issue to see the views of others during a consultation. We would usually publish all the responses we have received on our website.

We believe it is important for everyone interested in an issue to see the views expressed by consultation respondents. We therefore usually publish all responses on our website, www.ofcom.org.uk, ideally on receipt. If you think your response should be kept confidential, you should specify what part or whether all of your response should be kept confidential, and specify why. Please place confidential parts in a separate annex.

If someone asks us to keep part or all of a response confidential, we will treat that request seriously and try to respect it. But sometimes we will have to publish all responses, including those that are marked as confidential, in order to meet legal obligations.

We do not usually acknowledge receipt of responses.

In our statement, we will give reasons for our decisions and will give an account of how the views of those concerned helped shape those decisions.

We will also:

• list these seven principles in every consultation document that we publish;
• run a consultation helpdesk to help organisations such as small businesses and consumer and community groups make their views heard in response to our consultations; and
• keep a table on our website at www.ofcom.org.uk listing all current consultations and those recently closed. Annually, we will also publish a list of projects we are planning, and whether these have an associated consultation document, indicating whether we will be publishing these in quarter 1, 2, 3 or 4.

What will a typical consultation look like?

We will aim to follow a consistent approach in designing each formal consultation document. The contents will vary depending on the issue, but will usually include:

• a front cover with the name of the consultation and the closing deadline for responses to it;
• a page listing the contents;
• an executive summary in plain English;
• the main body of the document (this will include a description of the different options we are considering and the advantages and disadvantages of each);
• a list of questions that people responding to the consultation might want to consider;
• a contact name and details of where responses should be sent;
• conclusions and a summary of the next steps we are going to take after the consultation period has come to an end; and
• annexes and a glossary, if these are necessary.

Some of the issues we will be exploring are technically complicated. However, we will always try to make formal consultation documents as short and simple to understand as we can.

Wherever possible we will also try to publish self-contained documents so that those who want to respond to a consultation do not need to refer to our other papers when considering what to write. If we do need to refer to other papers, we will only do so if the alternative would mean publishing a consultation document that was too big and too difficult to understand and take in.

Some consultations will also include our Impact Assessment if relevant. This will explain our view of the benefits and costs of the different options we are considering. Regulatory Impact Assessments are an important part of best practice for a regulator and we undertake them whenever our proposals would be likely to have a significant effect on businesses or the general public.

For more information on our Impact Assessment process, see http://www.ofcom.org.uk/consult/condocs/ia_guidelines/.

How long will our consultation last?

If a consultation is too short, some of those with important views to share may not have enough time to prepare their responses. If it is too long, the market involved may have changed dramatically. This could affect our ability to deal with an issue as quickly as the organisations involved would like.

When we decide how long a consultation should last, we need to strike the right balance between the two. There are generally 3 categories of consultation:

Category 1: Consultations which contain major policy initiatives and/or of interest to a wide range of stakeholders (especially those who may need a longer time to response); we will consult for 10 weeks.

Category 2: Consultations which, whilst containing important policy proposals, will be of interest to a limited number of stakeholders who will be aware of the issues; we will consult for 6 weeks.

Category 3: Consultations which fall within one or more of the following

1. detailed technical issues;
2. where there is a need to complete the project in a specified timetable because of market developments or other factors which require the project to be concluded within a short period;
3. the issue has already been the subject of a consultation;
4. a proposal will have a limited effect on a market;
5. a proposal is only a limited amendment to existing policy or regulation.

The time period for consultations in this category is one month.

Under the law we must allow at least one month for consultation on many issues relating to electronic communications networks and services. We think this period will be long enough for most of these consultations, but we will extend this period in some cases if needed.

We will usually also make allowances for holiday periods in setting our timetable, adding 2 weeks to the usual timescales for consultation issued during July and August and the Christmas/New Year period.

When we begin a formal consultation we will also say when we expect to publish our decision.

Areas these guidelines do not cover

These guidelines cover instances where Ofcom is publicly consulting on policy proposals. It does not cover Ofcom guidelines. It also does not cover Ofcoms investigatory functions or areas of Ofcoms work in which we have published specific guidelines to cover how we conduct business and how we will consult. Given this, the areas to which these guidelines do not apply include:

Competition complaints[ (-1-)]

Broadcast procedures for statutory sanctions[ (-2-)]

The handling of standards complaints and cases (in programmes and sponsorship);[ (-3-)]

Procedures for handling fairness and privacy.[ (-4-)]

These guidelines also do not apply to areas where Ofcom only seeks representation from one party, which may be the case, for example, if we are proposing to amend a broadcasting licence. They also do not apply to consultations concerning the giving of a consent, approval or recommendation by Ofcom.

How will we announce our plans for future consultations?

We issue a calendar which lists when we expect to begin specific consultations as well as other important dates such as our board meetings. The calendar will include a brief summary of the purpose of each consultation. It is available on our website at www.ofcom.org.uk.

We invite everyone interested in the issues we will be examining to register online with us to receive e-mails about consultations and news of our other activities.

We distribute large amounts of material covering many areas so it is important to allow individuals and organisations to choose the information which interests them most. People who register with us will be able to choose updates on:

• all sectors and areas that we regulate; or
• individual sectors such as radio, television, telecommunications or uses of the radio spectrum.

We also ask those who register with us to tell us whether they are individual consumers, business customers, suppliers (either of retail or wholesale services) or public organisations.

What happens after the end of the consultation deadline?

The team in charge of the consultation will review all the responses we have received. They will then prepare a summary for our Board or another group responsible for making the relevant decision. We usually aim to produce this summary within 2 weeks of the consultation closing. The summary will also include other important and relevant information. This might include the results of market research, the views given in seminars and meetings and the outcome of informal talks with people and organisations who have an interest or concern. It will also identify any issues which might merit further analysis.

Footnotes:

1.-See: http://www.ofcom.org.uk/bulletins/

2.-See: http://www.ofcom.org.uk/tv/ifi/guidance/

3.-See: http://www.ofcom.org.uk/tv/ifi/guidance/

4.- See: http://www.ofcom.org.uk/tv/ifi/guidance/