The intention of this paper is provide a framework that can form the basis for new approaches to the regulation of telecommunication. Three points are fundamental in this regard and have implications for the regulation of telecommunications: First, governments and regulators ought to focus on the prevention of harms and the serving of human needs, in the order of their priority, when they make decisions about the allocation of scarce public resources. These scarce resources must be allocated, across the entire economy, in a manner that will optimally reduce harm and maximize well-being. This approach puts the regulation of telecommunications in its proper perspective. Simply put, we should ask whether it is wise to put significant public resources into the continued detailed regulation of virtually all facets of telecommunications when that money might be spent more wisely in other sectors that prevent harm to people. These sectors include health, the environment and security. This leads to our next point. Second, it is important to emphasize that regulation of competitive markets will encompass risk management and social regulation. Robust regulation that ensures proper risk management and transparency is essential in a competitive economy. In addition, antitrust rules will target anti-competitive behaviour in line with other competitive industries. Third, the regulatory state should offer multiple models that reflect the different needs and interests at stake within both the ex ante and the ex post paradigms. There is growing recognition in legal circles that any sophisticated system ought to offer a full range of models based on the seriousness and economics of the case. In the field of telecommunications regulation, this insight requires (i) that a menu of regulatory approaches be acknowledged and available to regulators, (ii) that principles be articulated for making choices within these approaches, and (iii) that these approaches be applied with an alert sensitivity to subject-matter, the human needs at stake and the economics of a given case. Telecommunication regulation in many countries has suffered as a result of the lack of recognition of the different models available to regulators. A new approach to telecommunications regulation, duly informed by the principles in this paper, would occasion different focal points, different resource allocations, and the use of different tools than is the case at present. Three observations can be made. First, the most intrusive (ex ante, rule-based) approaches are reserved for situations where serious harms are at issue. Such harms may reveal themselves as health and safety issues but may, as well, have an economic dimension - for example, where the pricing of an essential service supplied on a monopoly basis is at issue. Second, principles-based regulation is advocated in situations where technological and market change can quickly overtake any short-term prescriptive rules. Principles thus help the law keep up with technology - something that is crucial in telecommunications. Third, economic regulation has a limited role (in recognition of the competitive nature of most telecommunications markets) and is imposed largely via a principles-based approach. Each one of these systems is ultimately enforced ex post, but will vary with the degree of difficulty. For example, it is easier to enforce a breach of specific terms of prior approval contained in a license compared to proving a breach of general principles. On the other hand, we may want the flexibility of principles that are applied after the fact in certain areas as outlined in this paper
