The role of regulatory investigations in the ICT industry
By Joel Shikoyeni, CRAN Investigations officer.
As Namibia joins the Fourth Industrial Revolution (4IR), the Information and Communication Technology (ICT) industry starts to significantly impact the country’s economy, promoting equality of opportunity, industrial development, economic growth, and poverty eradication.
The government has put laws in place to encourage the growth of ICT due to its importance to economic development.
Through the Communications Regulatory Authority of Namibia (CRAN), the Ministry of Information and Communication Technology (MICT) oversees Namibia’s information technology, telecommunications, broadcasting, media, and postal sectors. CRAN was established in terms of Section 4 of the Communications Act (No. 8 of 2009) (the Act) to regulate the communications industry in Namibia. The communication industry consists of, but is not limited to, telecommunications, broadcasting, and postal service providers.
As in many other countries, regulatory investigations are essential to the ICT industry in Namibia. CRAN often carries out these investigations to make sure that laws, rules, and industry standards are being followed and they serve several important purposes including:
• Monitoring Compliance: Regulatory investigations assist in keeping track of how well ICT businesses, service providers, and operators abide by the applicable rules and regulations. This guarantees that operators follow laws that support ethical competition, consumer protection, and the effective operation of the industry.
• Consumer Protection: Investigations are frequently conducted to safeguard the interests of consumers. Regulatory agencies may look into complaints about billing disagreements, service quality, or other problems affecting ICT users. They do their best to guarantee that customers get the services they paid for and that their rights are protected.
• Fair Competition: Investigations by CRAN are meant to restrict anti-competitive behaviour in the ICT industry. CRAN may look into claims of unfair commercial practices like collusion among players in an industry or monopolistic activity. Fair competition encourages innovation and is advantageous for consumers.
• Spectrum Management: Spectrum is a valuable and finite resource in the ICT industry, particularly in telecommunications. To ensure effective use and equal access for various service providers, CRAN may look into the distribution and exploitation of spectrum.
• Policy Development: The result of regulatory investigations may be used to build or amend Namibia’s ICT laws and regulations. The information and insights gained from these studies may help policymakers respond to technological improvements and shifting market conditions.
• Dispute Resolution: In disagreements between various ICT industry parties, CRAN frequently acts as the mediator or arbitrator. Investigative procedures can assist in resolving disputes and conflicts, thus avoiding the need for expensive litigation.
• Promoting Innovation: Regulatory investigations can provide a level playing field that fosters innovation and investment in the ICT Industry by enforcing rules and standards. Both the industry and customers gain from this.
• Penalties and Enforcement: Enforcement actions and sanctions may result from regulatory investigations against operators that contravene the Act or its regulations. These fines may serve as deterrents and as incentives for conformity.
CRAN is required to conduct investigations into any behaviour that violates section 122 of the Act to effectively regulate the ICT sector. According to Section 123 of the Act, CRAN is free to designate any of its employees as inspectors to carry out the Act’s powers. In addition, Section 124 enables CRAN to designate anyone with specialist knowledge in a given field as a special investigator to look into any violations of the Act or its regulations.
To execute the mandate of investigations, Section 125 of the Act outlines the powers and functions of an inspector appointed under the Act. Inspectors play a crucial role in ensuring compliance with the provisions of the Act, particularly in matters related to electronic communications, broadcasting, and postal services. Some of the key roles and responsibilities of an inspector are:
• Investigation and Inspection: An inspector is authorized to investigate and inspect any books, telecommunication facility, telecommunications equipment, or any other object, to obtain any information required.
• Gathering Evidence: Inspectors have the power to gather evidence related to potential violations of the Act. This may include collecting documents, interviewing witnesses, and conducting on-site inspections to establish facts related to alleged breaches.
• Reporting: Inspectors are required to prepare and submit reports on their findings to CRAN. These reports may be used as the basis for further enforcement action.
• Assisting in Regulatory Proceedings: Inspectors may be called upon to provide evidence or testify in regulatory proceedings, including hearings, investigations, or legal actions related to violations of the Act.
• Securing Evidence: Inspectors may seize and secure evidence that is relevant to investigations, ensuring that it is preserved and can be used in regulatory or legal proceedings. This power to seize is set out in Section 126 of the Act.
• Access to Premises and Information: Service providers are generally required to provide inspectors with access to their premises, equipment, and information necessary for conducting inspections and investigations. Inspectors, however, cannot enter premises used for dwellings to conduct an investigation.
• Confidentiality: Inspectors are bound by confidentiality obligations regarding the information and evidence they gather during their investigations. They must handle sensitive information with care and by legal requirements.
• Cooperation with Other Authorities: Inspectors may cooperate and share information with other law enforcement agencies or regulatory bodies when necessary to enforce compliance with the Act. Section 127 encourages cooperation as it directs that a CRAN Inspector while conducting investigations in terms of the Act, may request a police officer to accompany them
It is important to note that the specific powers and procedures of inspectors may be further detailed in regulations or guidelines issued under the Act, and they are expected to carry out their duties with fairness and impartiality while upholding the law. Additionally, the exact roles and responsibilities of inspectors may evolve as regulations and industry practices change
