OPTA has the task of promoting competition in the communications markets. It is for this reason that it analyses the markets and imposes remedies on any party which has significant market power. This is referred to as regulation. In addition, it considers disputes and complaints on the initiative of other parties. OPTA maintains a tip-off line which businesses, their current or former employees, market parties and similar parties can use to submit a tip-off or complaint. In addition, OPTA engages in regulatory work on its own initiative.
OPTA has far-reaching investigative powers. Its staff may enter places, request information, demand disclosure and remove data. In addition, everyone is required to assist OPTA with its investigations.
Prevention is better than cure
In 2008 OPTA published Vision on Regulation and Enforcement. As far as possible OPTA would like to ensure that the market does not suffer any harm as a result of contraventions of the relevant legislation and regulations. Prevention is therefore very important. Market parties have a duty to comply with the relevant legislation and regulations. OPTA encourages them to abide by those regulations.
What does this entail? Where possible, OPTA urges market parties to prepare compliance programmes. The market parties are themselves responsible for implementing and carrying them out. OPTA can assist them in this respect. This is referred to as compliance assistance. In this case OPTA and a market party may enter into a compliance charter with each other. It clarifies what OPTA deems to be the least it expects of a properly functioning compliance programme. The compliance charter which OPTA and KPN have entered into is an example of this. Nevertheless, it is always the market party that is responsible for ensuring that such a compliance programme works.
Contraventions
In its Policy Rules on Fines OPTA sets out how it imposes fines for contraventions. What factors determine the amount of a fine? These policy rules make it possible for OPTA to reduce a fine where the relevant market party itself notices a contravention, puts an end to it and reports it to OPTA, be it with the aid of a properly functioning compliance programme or not. The relevant regulations also allow OPTA to raise a fine by a significant margin, if an investigation reveals that a compliance programme is being used as window dressing.
Disputes
As stated, OPTA may adjudicate disputes. This refers to disputes between telecommunications service providers. Very often they concern access to a network (belonging to a provider) and the conditions subject to which such access has to be granted, for example, those pertaining to tariffs. The parties concerned may ask OPTA to hand down a decision in such a dispute. The OPTA Enforcement and Dispute Procedural Regulations set out the rules which apply in such a case. For example, they deal with the hearing, the exchange of documents and the process involved in hearing both sides. In the end OPTA draws up a decision in which it sets out its ruling on the matter. Such a decision may take the form of a ruling on the question as to whether a party has contravened the law or an OPTA decision. OPTA may also issue instructions which the relevant parties are required to obey.