Overview of. Telecommunications Business Dispute Settlement Commission

Transcription

1 0 Overview of Telecommunications Business Dispute Settlement Commission June 2009 Telecommunications Business Dispute Settlement Commission Secretariat

2 1. Establishment and Organization of TBDSC 1 The Telecommunications Business Dispute Settlement Commission was established on November 30, 2001 as a special agency for prompt and fair settlement of interconnection and other disputes between telecommunication carriers. One of the factors that led to the establishment of the commission was the increase in the number and complexity of disputes, including interconnection disputes, arising from the increasingly advanced and diversified telecommunication services. The Commission s specialized position is ensured by having a Secretariat that is independent from the Telecommunications Bureau, which is in charge of developing competition rules for the telecommunications business. On the other hand, collaboration between the development of competition rules and dispute settlement is promoted through such means as the Commission s recommendation system. From April 1, 2008, the Commission began offering mediation and arbitration services related to preventing interference by new radio stations. Minister for Internal Affairs and Communications Minister's Secretariat Telecommunications Bureau Global ICT Strategy Bureau Information and Communications Bureau (Note) The Telecommunications Business Dispute Settlement Commission is an organization set up under Article 8 of the National Government Organization Law (a council organization for study and deliberation), and it is grounded on the Telecommunications Business Law. Telecommunications Business Dispute Settlement Commission 5 Commissioners (part-time/3-year term) Appointed by the minister with the consent of both the Upper and Lower Houses Up to 2 commissioners may be full-time Secretariat Established within the Commission to handle administrative duties Consists of Director-General and other required staff The Director-General is in charge of the Secretariat under the direction of the Chair of the Commission (The Director-General is served by the Deputy Director- General for Policy Evaluation, Minister s Secretariat) 8 Special Commissioners (part-time/2-year term) Appointed by the minister Participates in mediation and arbitration Director-General 事 務 局 長 Deputy 参 Director-General 事 官 紛 争 Director 処 理 調 査 官 上 席 Senior 調 査 専 Advisor 門 官 (2(2) 名 ) 調 査 Advisor 専 門 官 (3 (3) 名 )

3 2-1.Commissioners 2 [Commissioners] Experts in law, economics/accounting, communication engineering, etc./term of office: 3 years Name Occupation Appointment date End of term Sukeaki Tatsuoka (Chair) Year of Birth (Gender): 1941 (Male) November 30 Professor, Gakushuin University, Professional School of Law(Law School) 2007 (reappointed) November Kohichi Sakaniwa (Acting Chair) Year of Birth (Gender): 1948 (Male) November 30 Professor, Tokyo Institute of Technology, Graduate School of Science and Engineering 2007 (newly appointed) November Hiroshi Obata Year of Birth (Gender): 1958 (Male) November 30 Professor, Hitotsubashi University, Graduate School of Commerce and Management 2007 (newly appointed) November Konomi Tomisawa Year of Birth (Gender): 1947 (Female) November 30 Part-Time Lecturer, Hosei University, Graduate School of Regional Policy Design 2007 (reappointed) November Reiko Huchigami Year of Birth (Gender): 1954 (Female) November 30 Registered lawyer 2007 (newly appointed) November

4 2-2. Special Commissioners 3 [Special Commissioners] Appointed by the Minister for Internal Affairs and Communications for participation in mediation procedures/ Term of office: 2 years Name Year of Birth (Gender) Occupation Appointment date End of term Takemi Ono 1956 (Male) Professor, Tokyo Keizai University, Faculty of Business Administration November 30, 2007 (newly appointed) November 29, 2009 Hiroshi Shirai 1958 (Male) Professor, Chuo University, Faculty of Science and Engineering November 30, 2007 (newly appointed) November 29, 2009 Kaoru Sezaki 1961 (Male) Associate Professor, Tokyo University, Center for Spatial Information Science November 30, 2007 (reappointed) November 29, 2009 Yukihiro Terazawa 1965 (Male) Registered lawyer November 30, 2007 (newly appointed) November 29, 2009 Yukiko Hasebe 1957 (Female) Professor, Gakushuin University, Professional School of Law(Law School) November 30, 2007 (reappointed) November 29, 2009 Kazuo Higuchi 1948 (Male) Registered lawyer November 30, 2007 (reappointed) November 29, 2009 Yumiko Mori 1967 (Female) Professor, Kanto-Gakuen University, Faculty of Economics November 30, 2007 (newly appointed) November 29, 2009 Arisa Wakabayashi 1967 (Female) Professor, Komazawa University, Graduate Division of Legal Research and Training (Law School) November 30, 2007 (newly appointed) November 29, 2009

5 3. The Functions of TBDSC 4 Mediation/ arbitration Deliberation/report for inquiries Recommendation Mediation or Arbitration is conducted for disputes regarding interconnection between telecommunications carriers or for preventing interference from new radio stations. A report is submitted after deliberation for inquiries received from the Minister for Internal Affairs and Communications. The Minister may issue an inquiry when enforcing administrative measures, such as 1) awards regarding details of the interconnection agreements or 2) orders to improve business activities. Recommendation is sent to the Minister regarding the improvement of the competition rules that were identified in the above processes. Telecommunications Carriers, etc. Minister for Internal Affairs and Communications TBDSC Disputes between telecommunications Carriers, etc. Application Application, etc. Award, etc. Inquiry Mediation Arbitration Complaints submitted by other operators, etc; Situation regarding the violation of law Order to improve business activities, etc. Report Deliberation/Report Improvement of competition rules, etc. Recommendation Consulting The Secretariat has a consultation desk where they accept requests for consultation, such as those regarding trouble between operators.

6 (Reference) Overview of Mediation and Arbitration 5 «Mediation» Mediation is a process in which the mediation commissioners act as mediators to help the disputants reach a mutual agreement to achieve a prompt resolution. There is no mandatory requirement to adopt a solution. This is a process which aims to help the disputants reach a voluntary resolution in minor disputes where the disputants can be expected to make mutual concessions. Mediation commissioners are appointed by the TBDSC (3 commissioners are usually appointed). Mediation commissioners prepare and present a mediation proposal to the disputants. «Arbitration» Arbitration is a means to solve disputes in which the disputants agree to follow the arbitration award made by the arbitration commissioner. Even if the disputants are not satisfied with the award, they cannot take the matter to court unless there had been a defect in the process. 3 arbitration commissioners are basically selected under agreement by the disputants and appointed by the commission. The provisions of the Arbitration Law will be applied mutatis mutandis. The arbitration award will take effect between the disputants in the same manner as a final decision in a court of law. «Main examples of cases handled» (1) Agreements on interconnection/shared use of telecommunications facilities (charges, terms of interconnection, etc.) (2) Contracts related to providing wholesale telecommunications services (charges, terms of provision, etc.) (3) Agreements/contracts for ensuring a smooth provision of telecommunications services (charges, terms, etc.) Installation/maintenance of telecommunications facilities for interconnection, use of land/buildings/conduit lines for interconnection, etc. Providing information on the above Subcontracting contract administration or fee collection services etc. (4) Contracts regarding measures to prevent interference from radio stations or any other disruptions

7 (Reference) Overview of Mediation Procedure 6 [Done by] TBDSC Disputant Voluntary resolution, etc. Application withdrawn Apply for mediation Notify the other party Appoint the mediation commissioners The other party submits a written reply If not appropriate for mediation (If the other party refuses mediation, or if the application is found to be aimed at undermining the other party s social credibility, etc.) Mediation If no prospect of reaching an agreement Terminated Proposed mediation accepted Dismissed

8 4. Dispute Settlement by TBDSC 7 1 Mediation: 48 cases 2 Arbitration: 3 cases Order to improve business activities (2) Award of the right to set fees (1) Authorization regarding land use (1) Order to restart consultations on interconnection (1) Award of the interconnection agreement between MVNO and MNO (1) Recommendation on improving collocation rules (1) 3 Inquiry/Report: 6 cases 4 Recommendation: 3 cases Recommendation on developing a system to enable the setting of appropriate interconnection charges (1) Recommendation on measures to help facilitate consultation between MVNO and MNO for matters including how to calculate interconnection charges (1) 5 Consultation: some tens of cases a year [Number of dispute settlement cases per year] 16 年 度 17 年 度 18 年 度 19 年 度 20 年 度 2 件 2 件 1 件 3 件 4 件 5 件 13 年 度 1 件 Mediation あっせん Arbitration 仲 裁 14 年 度 19 件 Inquiry/Report 1 件 3 件 諮 問 答 申 1 件 勧 告 15 年 度 1 件 Consultation 相 談 2 件 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 件 34 件 40 件 (Note) The number of consultations consists of only those from FY 2006 on, and includes multiple consultations (by phone, , visit, etc.) for single cases. [Time required for dispute settlement] Recommendation 59 件 Mediation/Arbitration: average 44 days From inquiry to report: average 33 days

9 (Reference) Details of Mediation (48 Cases) 8 1 Details of disputes 2 Mediation results Others (*) 4 cases (8.5%) Use/operation of facilities 3 cases (6%) Dismissed/ Terminated 3 cases (6%) Consent for or refusal of interconnection 3 cases (6%) Use of structures required for interconnection 4 cases (8.5%) Sharing of interconnection costs 34 cases (71%) Withdrawn without reaching an agreement 16 cases (33%) Resolved by reaching an agreement 29 cases (61%) (Disputes regarding collocation, etc.) (*) Others includes: 2 cases regarding the details of an interconnection agreement, 1 case on the installation of facilities required for interconnection, and 1 case regarding the intermediary service for a contract related to the provision of telecommunication services (Note) Resolved by reaching an agreement includes 26 cases that were resolved through mediation as well as 3 cases that were withdrawn when the disputants reached an agreement before any mediation. Withdrawn without reaching an agreement includes cases which were withdrawn after the start of mediation.

10 5. TBDSC s Role 9 1 Prompt dispute settlement through expertise Time to reach settlement: average of 1.5 months (2 weeks to 8 months) Reduces burden of the disputants in costs/time; improves user convenience by enabling early start of services [Reference] Council for Regulatory Reform: 2002 Interim Report (July 23, 2002) Chapter 3 1. (3) 2) Development of specialized agencies 1. In the area of telecommunications business, the Telecommunications Business Dispute Settlement Commission was established in 2001, providing prompt service under a framework with ensured expertise and neutrality. 2 Prevention of disputes Consultation desk for telecommunications carriers is set up to provide consultation service at a stage prior to escalation into a dispute ( some cases are resolved at this stage) Information on past dispute settlement cases is actively disclosed (website, Handbook for Dispute Settlement Procedures) Enabling the carriers to see past cases of settlement by the Commission prevents many similar disputes. 3 Safety net function Telecommunications carriers can feel safe in conducting their business operations, having TBDSC, a guaranteed fair, neutral, third-party forum for asserting their view in case negotiations with other carriers turn into disputes. 4 Improvement of competition rules through recommendations to the Minister These have helped promote competition in broadband services, lower rates for calls from landline phones to mobile phones, and market entry of the MVNOs

11 6. Mediation/Arbitration Started for the Opening of Radio Stations 10 Before With available frequencies becoming more scarce, required adjustments with existing radio stations for preventing interference when introducing new systems are prolonged to 1 to 2.5 years in some cases, hampering the prompt launch of new services. Partial revision of the Radio Law/ Telecommunications Business Law (April 1, 2008) The mediation/arbitration system by the Telecommunications Business Dispute Settlement Commission was set up to promote discussions for preventing interference between existing radio stations and new stations to be built. TBDSC prepared and distributed its Handbook for Dispute Settlement Procedures as well as a pamphlet to publicize the new system. [Radio stations to which mediation/arbitration are applicable] those for use in telecommunications those for use in broadcasting those for use by local governments in administrative affairs for disaster prevention those for use by electric utilities business in supplying electricity those for use by train business in providing train service those for use by gas utilities business in supplying gas those for use in MCA land mobile communication Radio waves from a new station A will disrupt the existing station B s communications A is not allowed to be built. License not granted New System Through TBDSC S mediation/arbitration, changes are made in B so there is no disruption from A 新 設 基 地 局 A A can be built. 既 存 基 地 局 B Both A and B can use radio waves New station A License granted New station A Existing station B Terminal B Mediation/arbitration by TBDSC Existing station B Terminal B Major issues that need discussion between radio stations: Reaching a shared understanding on the allowable interference level Selecting the avoidance measure (such as: reducing output, changing antenna direction, adding interference reduction filter, changing frequencies) Deciding on how avoidance measure costs are shared

12 7. Initiatives to Enhance the Functions of TBDSC 11 1 Enhance information collection abilities related to dispute settlement New types of disputes are expected with the building of next-generation networks (NGN) and market entry by wireless broadband operators/mvnos Exchange of views with telecommunications experts, facilities study tours, research on other countries, enhancing the collection of basic reference documents 2 Improve TDBSC s visibility and accessibility New pamphlet created (Feb 08, Jun 08)/revised (Apr 09); Website revamped (Apr 08)/improved (Mar 09) Regional presentation sessions to explain TBDSC s operations and consulting fairs (Nov 08 to Feb 09) Questionnaire/hearings with telecommunication operators, etc. (Dec 07 to Feb 08, Nov 08 to Feb 09) Enhancing visibility-raising activities for telecommunications carriers associations, etc. 3 Enhance communication of TBDSC s knowledge and views (feedback on competition rules) Appropriately conducted recommendation activity (Nov 07) Improvements in the annual report to the Minister (Apr 08, Apr 09) 4 Enhance dispute settlement functions/respond to development in the institutional systems Publicize the mediation/arbitration system related to opening of new radio stations (Since Apr 08) Exchange of views with experts and relevant MIC divisions/bureaus Reference MIC New Competition Promotion Program 2010 (released Sep 19 06, revised Oct 23 07) The scope of dispute settlement handling will be expanded by making required enhancements in the system as soon as possible. This includes enabling the settlement handling of dispute cases between telecommunications carriers and upper layer operators such as the content providers, as well as providing mediation/arbitration, in addition to the awards currently provided, for dispute cases related to the use of land and others (including utility poles/conduit lines). Expanding the scope of TBDSC is also being considered in such groups as the Telecommunications Council s Committee on Comprehensive Legal System for Communication and Broadcasting.

13 Dispute Settlement Cases 12

14 (Ref.) Dispute Case (1): Mediation regarding the use of NTT building space 13 Summary An ADSL operator was denied the use of collocation space, power supply and others for setting up a point of interface at 12 of NTT East's buildings. The operator requested mediation to allow them the use. (filed on February 1, 2002) Result of mediation Both sides agreed that they would cooperate so that the ADSL operator could start installation works at the 12 buildings by the end of February Recommendation (One factor behind this case was that another operator had already reserved a large amount of resources including space) Currently, collocation is provided solely on a first-come-first-served basis of the request from the operators. MIC should ensure that measures are taken for type-1 carriers installing category I designated telecommunications facilities so that, in addition to the timing of the request, the urgency of use will also be considered in deciding the priority of the request. Subsequent developments NTT East and NTT West Articles of Agreement Concerning Interconnection were revised to establish collocation rules.

15 (Ref.) Dispute Case (2): Award of setting rates for calls between landline phone and mobile phone 14 Summary A landline operator filed with the Minister for Internal Affairs and Communications an application for an award regarding interconnection with mobile phone operators, stating that rates for calls made from landline phones to mobile phones should be set by the landline operator. (filed July 18, 2002) Inquiry It is appropriate for mobile phone operators to set user call rates Report It is appropriate for landline operators to set user call rates Recommendation In the above report, recommendation was made that a rational and transparent scheme to enable fair pricing in interconnection must be urgently developed Subsequent developments The Minister rendered an award based on the submitted report (November 22, 2002). The Telecommunications Bureau started a study group, and, based on its report, released the Policy Concerning the Setting of Charges for Calls to Cell Phones from Fixed Line Phones (June 25, 2003). Since then, there has been increased competition for landline to mobile call rates, leading to the introduction of lower pricing plans.

16 (Ref.) Dispute Case (3): Mediation regarding ADSL operator s interconnection with NTT s relay dark fiber 15 Summary An ADSL operator filed a request for interconnection with relay dark fiber connecting NTT East and NTT West buildings in order to expand its service offerings, but the request was denied because there were no free lines available. The operator requested mediation to allow them the use of the relay dark fiber. (filed August 31, 2004) Result of mediation Both sides accepted the below proposed mediation, concluding the mediation process. 1) NTT East and NTT West will answer the ADSL operator s questions with an objectively reasonable explanation. 2) NTT East and NTT West will ensure the equality in providing relay dark fiber for use in its own business and for the requests received from other operators. In doing so, they will make certain that equality is ensured in a manner that will raise no objective doubts. It was also agreed that discussions would be held, including discussions on installing WDM devices at the end of NTT East and NTT West lines to provide them to the ADSL operator.

17 (Ref.) Dispute Case (4): Award of interconnection agreement between MVNO and MNO 16 Summary An MVNO operator using PHS wanted to use NTT DoCoMo s mobile phone network (3G) to provide MVNO services, but the discussions on interconnection held with NTT DoCoMo failed. The operator filed with the Minister for Internal Affairs and Communications an application for an award regarding the details of the interconnection agreement. (filed July 9, 2007) Inquiry The pricing scheme in the interconnection in question should be based on end-to-end pricing, meaning that the MVNO operator should be granted the right to set the user rates. In addition, the pricing scheme should be bandwidth-based. Other matters, such as the amount of interconnection charges and functionalities required to be developed, have not reached the point of discussion, so they will not be included in the award. Report What is stated in the inquiry is basically reasonable, but for bandwidth-based pricing, there should be a condition attached stating that discussion must be held regarding the measures against network congestion Recommendation The award should be incorporated in the Guidelines concerning Applications of the Telecommunications Business Law and the Radio Law pertaining to MVNO. Issues, such as how interconnection charges are calculated, that would facilitate discussion between MVNO and MNO should be studied in a timely and appropriate manner, to put required measures in place. Subsequent developments The Minister rendered an award based on the submitted report (November 30, 2007). On July 28, 2008, NTT DoCoMo submitted the Articles of Agreement Concerning Interconnection to the Minister, stating that the interconnection charges will be bandwidth-based for layer 3 connections. The same for layer 2 connections was submitted on March 6, Taking the recommendation also into consideration, the Telecommunications Bureau issued the revised MVNO guideline on May 19, 2008.