Politicians, regulators, viceroys and 5G auctions

Abstract

Under a positive view, underlying this paper, independent regulation has been widely accepted in the European Union to solve some problems created by the discretionary power of politicians. However, independent regulators also enjoy substantial discretion. This is constrained by widely accepted good regulation practices, at least in part enshrined in law. Failure to comply with good regulatory practices is a source of regulatory discretion that jeopardizes the case for independent regulation. It is argued that the process followed by Anacom to issue the 5G auction regulation misses important steps inherent to good regulatory practice and so it risks weakening, or wipe out, social support for regulatory independence in electronic communications markets. This outcome is not inevitable. Improving regulatory governance is still an option, eventually supported by the public, and some proposals are offered along these lines.