The Beesley Lectures: Lectures on Regulation
Concurrency or Convergence? Competition and Regulation Under the Competition Act 1998
28th November 2000
Speaker: Tom Sharpe QC
Chair: Sir Bryan Carsberg, INTERNATIONAL ACCOUNTING STANDARDS COMMITTEE
2000 Regulation Programme
Below is the draft of a lecture given on Tuesday 28th November 2000 as part of the 'The Beesley Lectures: Lectures On Regulation Series X 2000' organised by Professor David Currie of the London Business School and Professor Colin Robinson of the IEA. This is reproduced with the kind permission of Tom Sharpe QC. Comments by the chairman will be published along with the final version of the speaker's text.
In preparing this Lecture I reverted to a book written by David Boies entitled "Public Control of Business". (Little Brown, 1977). In his chapter on the application of anti-trust laws and policies to regulated markets he says this:
"The interface between anti-trust and regulation is a veritable no-man's land for students and practitioners alike. Since the theories of anti-trust and regulation reflect differing assumptions about Government intervention into the marketplace, it is often difficult to rationalise their impact on particular industry behaviour. The anti-trust laws, to borrow a phrase, are a brooding omnipresence, with a pervasive, almost constitutional meaning in our jurisprudence. Direct economic regulation (which is entrusted to agencies rather than the Courts) may supplant the anti-trust laws and specific industries for carefully carved-out purposes. But at the edges, these purposes thin out and the anti-trust laws inevitably reappear in the background. At this point it is no small matter to blend the policies of the two conflicting regimes into an overall regulatory purpose that preserves the values of both."
Boies' comments are set in time and space: they were made at the beginning of the de-regulation movement and concern the USA. At that time, the US had an anti-trust tradition of nearly 90 years. US regulation is often described as inimical to competition, constituting instances of safe havens from the rigours of anti-trust scrutiny, erecting barriers to entry, and occasionally deploying different and more lenient standards "in the public interest" than would be ordained by the anti-trust laws, especially mergers. There is some truth in this, although Fred Kahn's tenure at the CAB is an important and eloquent exception.
There are important differences with the U.K. First, in the U.K. since the beginning, nearly every sector, has been subject to a licensing regime and the enforcement of the licence has been a primary function of each regulator.
Secondly, each regulator has been charged, using various formulations, to "promote and maintain" effective competition. Professor Littlechild made special note of this in his response to Dr Stelzer's lecture in this series: he interpreted this objective to mean that where competition was possible, it should be maintained or promoted. Some regulators have seen this provision as a means of encouraging competitors and, conversely, viewed from the perspective of the incumbent regulated utility, this provision often places the regulator as unfairly favouring new entrants rather than efficient competition.
A third function of regulators, typically, has been to control prices or tariffs by way of variations of the RPI - X formula, at periodic intervals. The UK chose not to adopt "out-of-service" regulation but adopted, initially at least, a form of incentive regulation.
The RPI - X incentive regulation regime, in its pure form, was undoubtedly a major innovation but, with the possible exception of water, or natural monopolies, it was always seen as an interim solution to a problem which would ultimately be solved by the advent of new competitors or by so altering the structure of various industries or regulated utilities such that competition could be encouraged or introduced. It is perhaps trite that more than any other single factor, the underlying structure of the particular industry being regulated has defined the context in which regulatory agencies have operated.
The last element, and the subject of my lecture, is the application of what I shall call the general competition laws by the specialist regulator to the sector being regulated. From the beginning, regulators shared the power to make references to the (old) MMC, sometimes with the consent of the Secretary of State. The exception lay in mergers, the responsibility for which remained with the Secretary of State. So, a regulator could refer a particular practice or the structure of a utility to the MMC. An obvious example is found in the parallel reference of British Gas, under the Fair Trading Act, to the MMC, which culminated in the recommendations regarding the separation of the component elements of British Gas. Alternatively, it was possible for the regulator to refer utilities under the Competition Act 1980 in respect of any "anti-competitive practice". These powers were often threatened but seldom invoked.
The advent of the Competition Act 1998 has completely transformed the powers available not only to the DGFT but also to the regulators. The deficiencies of the old general competition law are too well known to require repetition now. You may recall that the DGT regarded his concurrent powers under the Fair Trading Act as insufficient to enable him to deal with the practices he anticipated would arise in relation to British Telecom and so, in 1996, he proposed modifying British Telecom's Licence to include a "fair trading condition" modelled very closely upon Articles 85 and 86 of the EC Treaty. British Telecom sought to challenge whether it was within the DGT's powers to "arrogate" (the word is in the pleading) to himself powers parallel to those combined, at that time, in the OFT and MMC, and to acquire an essentially summary power, with no appeal only judicial review, under the guise of licence enforcement, which would circumvent the review/appeal function of the MMC.
This litigation foundered on the fact that BT chose to assent to the licence modification and then subsequently to seek judicial review of the modification. The High Court told BT that it could not have its cake and eat it and whatever conditions were either expressed or implied surrounding its acceptance of the Licence modification, the fact of its consent was conclusive and disabled it from further challenge. The interesting point about the judgement of Phillips J. (as he then was) was that he expressly left open the possibility (indeed he seemed to cast doubt) on whether it would have been possible for the DGT to "arrogate" powers and thus circumvent the existing statutory regime, with its checks and balances, especially the right to have matters investigated by the MMC.
The attraction of a licence condition, as opposed to the "general competition law," is that a licence condition may be enforced virtually summarily and, until very recently, was only susceptible to judicial review, a mechanism which provided the regulator with a good deal of discretion in the exercise of his judgement. Historically, this discretion was usually upheld by the Courts but this has not always been so, as Ofgem found out when confronted by Scottish Power.
Two developments are worth noting. First, the Utilities Act 2000 provides for financial penalties for breach of licence conditions and, perhaps prompted by the human rights background, the provision for appeal against such a finding. This has been enacted in modifications to, for example, the Electricity Act. It is doubtful whether the form of appeal chosen in the Utilities Act fully satisfies the requirements of human rights legislation in that it is unlikely (although the matter has yet to be tested) that the jurisdiction on appeal is "full" enough to satisfy the requirements of an effective appeal against punitive sanctions. At present, there is a stalemate in that the regulators insist that the jurisdiction is "full" and, perhaps not surprisingly, the regulated utilities insist to the contrary, with both sides waving QC's Opinions at each other.
The second major change has been, as noted above, the introduction of the Competition Act 1998. As you will be aware, this Act no longer confers any reporting role on the (renamed) Competition Commission. The DGFT has the power to investigate and make decisions, and impose penalties equivalent to 10% of United Kingdom turnover of any undertaking under investigation (with "turnover" being defined opportunistically as the sum of the last three years' sales). This Act is very closely modelled on what are now Articles 81 and 82 of the EU Treaty and Section 60 of the Act ensures that changes in EU competition law are binding upon the DGFT, the regulators and the courts within the United Kingdom. Moreover, the developing decisional practice of the Commission constitutes matters to which the DGFT, the regulators and the UK courts must have regard. Decisions are subject to appeal to the new Competition Appeal Tribunal, which is formally part of the Competition Commission.
As stated, these powers are shared concurrently with all the sectoral regulators. They essentially possess exactly the same power as the DGFT within their primary sphere of influence. The scope of that sphere of influence is not without difficulty in defining, especially, as in communications, the lines are very blurred as between different delivery systems of conveying information and so on. One solution is to concentrate regulatory power in overlapping areas in one regulator, a form of regulatory convergence. For the moment an Order is now in place empowering the Secretary of State to resolve any differences that may arise as between regulators: the most obvious source of difficulty may well arise in relation to the multi-utility companies, possessing water, electricity, gas and communications functions. The first problem arose in telecommunications, over a retail sale of fax machines, where the OFT took jurisdiction.
The arguments in favour of concurrence, endorsed by the Hansard Society investigation into utilities in 1996 and by the government since, rest upon the need for the specialist regulator to have powerful tools of competition enforcement as an essential element of his armoury. Moreover, the sectoral regulator is deemed to have the necessary technical and other expertise, thus enabling the competition powers to be enforced more effectively. To the extent that jurisdictional disputes arise, these can be resolved if necessary by recourse to the Secretary of State but, preferably, by administrative concordats.
The above certainly has superficial attraction and it would doubtless be considered apostasy if any material change were proposed. But, yet, I have doubts.
It would be easy to say that the best definition of "regulation" is that it is what regulators do and that further definition is unnecessary. This will be deeply unsatisfactory though probably quite accurate. What are the defining characteristics of a regulator which distinguishes a "regulator" from a national competition authority?
I set out above four actions which, uncontroversially, regulators perform in fact. In my view, by far the most important function of a regulator is to act as a positive stimulant to introduce competition. For a time, certainly for Professors Littlechild and Carsberg, there is no doubt that this view was shared. I have a strong if mischievous suspicion that there might well have been a first draft of Professor Littlechild's report to the DTI which said that all that was needed to regulate British Telecom was complete liberalisation, open licensing for competitors, the introduction of resale to encourage arbitrage and, possibly, the structural separation of BT in 1982. This, of course, is mere fantasy but if such a report existed and is unearthed by some diligent researcher after the expiry of 30 years, I suspect none of us would be surprised. We might also find an original copy with Michael Beesley's annotations all over it suggesting that Professor Littlechild had not gone far enough!
Similarly, Professor Carsberg's tenure at Oftel is peppered (perhaps "characterised" would be a better word) with attempts to introduce competition at every juncture and to elevate the introduction of competition and the facilitation of entry as key considerations.
Professor Littlechild is on record as describing (in his Wincott lecture, Privatisation, Competition and Regulation IEA No.110, 2000) his efforts to introduce competition both in generation and in supply to industrial and then domestic customers. He took his legal power from the statutory injunction to promote and maintain effective competition and he interpreted this to mean seeking new opportunities to provide effectively structural remedies to enable competitors to enter. What is interesting is the apparent resistance he found from civil servants, interpreting the wishes of politicians, and his resort to subterfuge. A similar story could be told in relation to the introduction of resale in telecommunications and the development of a strong open-licensing policy for new entrants, and in the progressive unbundling of British Gas. I refer, in particular, to storage, as well as supply.
The sustained pressure exerted by these regulators, and others, toward opening up markets and, I might add in the case of gas, ensuring structural separation which facilitated competition, should not be confused with the control of anti-competitive behaviour. The former are concerned with creating competitive structures. To some extent, I put it no higher, they remedy the initial political defects in the opening privatisation settlements. This is perhaps particularly true of electricity generation and supply; in relation to gas, the management of British Gas saw the opportunities to enhance shareholder value in separating gas transmission from domestic supply and also, perhaps with some encouragement, in relation to storage facilities. The progression has now been completed by the separation of gas transmission and oil and gas exploration. The transition from a vertically integrated monopoly, over which Sir Dennis Rooke presided in 1986, to the current situation, has been a remarkable achievement, achieved (although neither side would probably ever admit it) by an uneasy partnership between management and regulator, each, at various times, wielding both carrot and a stick at each other).
The position of BT is more delicate. The structural settlement of 1984, presided over resolutely by Sir George Jefferson, has survived but the management itself is seeking ways of effecting a divisional structure, retaining majority interests in each, at least for the time being.
I want, however, to address a fundamental issue where competition and regulation come together in the choice of structure. Competition laws are essentially about prohibiting anti-competitive behaviour. There are, of course, rare situations in which the behaviour is such that the only appropriate remedy lies in a structural solution. Such a solution has seldom been invoked successfully. In the United Kingdom, the MMC required divestiture of cross-shareholdings in the tobacco industry and did, in fact, find that the (then) monopoly in the manufacture of contraceptives by the London Rubber Company was contrary to the public interest and considered divestiture. (On noting there was only one production line, the MMC backed off, considering the production to be comparable to a natural monopoly.)
It is very unlikely indeed that the Competition Act 1998 would ever allow a structural remedy. Structure remains a matter for the Competition Commission to make recommendations about, in the course of a scale monopoly reference. This is why, I think, the FTA was not repealed in its entirety. In the end, the decision to divest is a political one. Similarly, in EU competition law, structural remedies have hardly ever been invoked, although, using different powers, EU law is soon to insist on local loop unbundling. By contrast, in the United States, the reconstruction of the telecommunications industry was the product of a consent decree administered by Judge Greene in the context of anti-trust proceedings brought by the Department of Justice. Something similar may emerge from the Microsoft litigation.
In the United Kingdom, in assenting to a Licence Modification in August 2000, BT consented to local loop unbundling, which required BT to surrender exclusive use of "metallic path facilities" from its exchanges to domestic and business premises. This also involved co-location of competitors' DSL equipment within or near to BT's exchanges.
BT consented to this structural solution notwithstanding the fact that, as Oftel acknowledged, more than 50% of homes have access to cable, which could carry wide band voice and data transmissions, and that for many, particularly dense city areas, BT's share of new connections was low and, as in the City of London, its market share was quite small in relation to its principal competitor. It also consented to it in the full knowledge that unlimited Internet access is pretty secondary: I predict wide band will be used mainly for voice conveyance. I mention this because a very respectable anti-trust defence could have been erected, if the CA 98 had been invoked. The ENS* judgment of the CFI in 1998 marked a legal watershed in determining what a competition authority should have to prove before parting with resources to competitors.
New structures such as that represented by unbundling create significant problems of supervision. For example, what obligation does the incumbent owe to its competitors if, for example, its own demands over its own facilities are such that there is no surplus capacity available to facilitate entry by the competitors? Must it rein in its own plans or, if the regulator was satisfied that the claims on its own resources were justified, should the competitors be obliged to live with it. The "regulatory" solution may be to encourage entry by disabling the incumbent from utilising its own resources for its own genuine purposes. This would be to elevate the "promotion" of effective competition over any other value, including "efficiency".
It is by no means clear that a competition authority would arrive at the same conclusion, although the analysis would be based upon the necessity for access to the facility to be so essential as to facilitate any form of competition before any obligation to a third party could crystallise. While it is clear that a dominant incumbent would run grave risks if it refused facilities to a competitor, when such facilities were essential for competition to exist, if spare capacity existed, it is by no means clear that a competition authority would oblige a dominant undertaking to cut back its own facilities and services in order to achieve this.
Nearly all of the cases, perhaps with the exception of ENS involving railway paths through the Channel Tunnel, have been instances where no issue of scarce capacity appeared to have arisen. Moreover, EC cases such as Bronner appear to impose a heavy burden upon the applicant to show that the resources could not be duplicated. In other examples, such as the compulsory licensing of intellectual property rights - as in Magill (the TV listing case), no issue of scarce resources arose. In relation to local loop unbundling, and this is a very live issue, in which I declare an interest, it would be strange indeed if BT were required to curtail its own efforts (after such public encouragement from the Chancellor of the Exchequer and others) in order to make way for other parties.
But assuming that such an obligation exists, is it suggested that the applicant or competitor should be furnished with the facilities for free? Hardly. But what is the proper basis of charging? It seems to me that there are two extreme cases: the first represents the opportunity cost of providing such facilities, using the unmodified Baumol-Willig rule, capitalising monopoly profits; alternatively, or the resources should be furnished at some measure of cost, allowing only a "competitive" rate of return, if that, irrespective of the actual rate of return.
This choice is fundamental and goes to the heart of a difference between regulation and competition. Regulation, with its stress on promoting effective competition may nevertheless concede that if the basis of charging should be opportunity cost, where the new entrant's choice should lie in a neutral selection of taking the resources or building them for itself, it is likely that the end result would be no entry and consequent frustration of the regulator's ambitions.
The latter case, of a compulsory contract at some measure of cost, runs the risk of endangering the survival, maintenance or renewal of the assets if the rate of return is too low or regulatory uncertainty too high. This resolves into a question of what is the appropriate "cost" - should this be long run or short run cost, average or incremental cost, or average incremental cost? Should it seek to simulate or mimic what the price would be in a competitive market when, by definition, there is no competitive market? In a competitive market, price tends to the level of costs and therefore the competitive price must relate to cost. Then, I am told by experts, that this is not so because price reflects "option values". I am also reminded that there is uncertainty in this world and this should be reflected in a premium over cost; I am also told that in the long run all costs are variable and this too should be reflected in the cost calculation. I am reminded of my trying to get to grips with Lange and James Meade and recall why Pareto gave up economics (and why I did so too!).
So, should regulators be trusted with the development of competition law? Is it their mé?©er? I am not sure it is. I understand and appreciate arguments based upon speciality and expertise but this argument works both ways. To express it at its most generous, our public agencies are not over-endowed with staff with a clear appreciation of competition law and proper policies. I acknowledge the great efforts being made by the OFT, which remains in very good hands, in the training of its staff, and applaud their efforts. But the problem goes beyond the difficulties created by spreading talent over so many agencies.
First, there are obvious difficulties in seeking to combine two distinct philosophies (and they are distinct). In the main, regulation is about structure, facilitating in a positive way new entrants, remedying examples of market failure other than abuse of a dominate position, as well as putting in place formulae for price controls. It is also about constant political pressure to introduce new opportunities for competition and innovation.
Chapter 1 and Chapter 2 of the 1998 Act are about conduct or behaviour. Competition specialists should be quite modest. I would be the first to acknowledge that the mere absence of anti-competitive behaviour does not inevitably mean (without more) the presence of a competitive market. The role of competition law in forcing people to compete is negative rather than positive.
When the Competition Bill was first introduced, it set out to endow the regulators with concurrent powers and stated that the regulators, in exerting these concurrent powers under the CA 98 should have regard not only to their duties under the competition legislation but also should have regard to their disparate statutory objectives laid down in sectoral regulation statutes. The competition legislation would have primacy. I was not alone in regarding this formulation as inherently unstable: the regulators could hardly ride two bicycles, especially, as events have shown, they may be going in different directions. Happily, the Government relented and formally at least "broke the bridge" between the sectoral statutes and the competition provisions. But I think we should be realistic in assuming that a regulator cannot turn off and ignore long-cherished regulatory objectives if the Competition Act 1998 offers an opportunity to achieve those objectives. My concern is that in so doing, violence will be done to the development of competition law at this especially sensitive stage and, moreover, the resulting appeals, successful or otherwise, would seek to frustrate the effective development of the law.
Secondly, there are issues of consistency between the regulators. Plainly, men and women of the distinction of the regulators we have appointed will have different views about the proper application of competition laws, as well as their own regulatory remit, and I anticipate profound differences in approach, the risk of which is unnecessary. The OFT has published an extensive set of guidelines to the application of the Act. The regulators, too, have produced their own guidelines in specific matters, in consultation with the OFT. It is interesting to identify the differences of emphasis and approach in these documents. For example, in telecommunications, the regulator is not content with the conventional approach toward predation, as laid down in the EC Akzo judgements of the ECJ, but has developed new criteria based upon the specific situation found in network industries where fixed costs are very large and where marginal costs are very small (following the EC Commission's telecommunications Access Notice, which I understand was largely prompted by the British authorities, which need not be followed by the EC competition authorities or by the UK competition authorities).
Similarly, in relation to energy, the distinctly different situation relating to electricity, a commodity which cannot be stored and where the system must always balance, gives rise to specific problems which are addressed by the regulator in a specific way. But, even acknowledgement of such differences in the 1998 energy guidelines was thought insufficient by the energy regulator because he judged his powers under the 1998 Act to be inadequate to deal with what he regarded as untoward practices conducted by some of the generators, thus his attempted introduction of the "market abuse licence condition".
As you know, two companies refused to accept any modification to their licence to include such a Condition and the Competition Commission is now proceeding to its conclusions and a report is expected to be published within the next two weeks or so. I wish I could comment more fully (and indeed expected to be able to do so) but it is sufficient to say that the regulator's position is that the general competition law is inadequate for his purposes because, as he has been advised, the courts are unlikely to hold any generator possessing sufficient ability to cause significant short-term price increases to be in a dominant position owing to the relatively low market shares of such companies, both absolutely and relative to their competitors. Again, this is one of those cases where one QC has been matched against another (in doubtless unequal combat) and, uniquely, where the Opinions of both have been posted on the internet for the inadequacies of at least one of them to be revealed to all. It is a curious reprise that the telecommunications regulator sought such a power in the absence of tough and effective general competition law; the energy regulator seeks such a power because he had been advised that the new tough and effective laws are nevertheless inadequate for his purposes.
The inadequacies of general competition laws in the eyes of the regulators is not a new theme. Again, in relation to telecommunications, the history of EC and UK regulation has been to impose standards on undertakings deemed to have something called "significant market power", "market influence" or "well-established operator 'status'", all defined administratively, that is, without any necessity to adopt and observe the principles set out over the last 30 years by the ECJ to define a dominant position. It is a case of when in doubt, change the rules, in order to achieve the "legitimate" regulatory objective.
Earlier, I hinted elliptically that the bicycles may be heading in different directions. What I have in mind is the current statutory objective of achieving consumer benefits. When this was first proposed, when the present Government was in opposition, I regarded it as simply as a not unwelcome but nevertheless cosmetic device to focus regulators' attention on consumers and their interests, and perhaps to be less forgiving of the regulated utilities and the problems of their management. I was in good company, judging by my conversations with various regulators who always thought that in the long run their actions were directed toward improving the lot of consumers. Of course, I was wrong in this. It seems that short term consumer benefits are what the government had in mind.
As George Yarrow pointed out so persuasively in his lecture last year, there is a fundamental difference, actually or potentially, between the short-term interests of the consumer and economic efficiency. As he cogently pointed out, there will be situations where the regulator will seek to enforce the "consumers' interest" at the expense of economic efficiency, where the latter would involve price increases or other benefits to shareholders, including a higher rate of return on capital. I had assumed, in my naï¶¥té¬ that the primacy of market solutions was equivalent to maximising benefits to consumers. This is wrong. A hard struggle to make competition law accord with basic economics is therefore being questioned.
I cite one very thoughtful example contained in Oftel's strategy document of January 2000. The document cites "competition plus" as the guiding principle, in that it recognises that there are circumstances where some formal or informal regulatory action is needed to protect consumers' interests in addition to the achievement of effective competition. The provision of universal telecommunication service is given as an example. I took this to mean, at first, that there are acknowledged market failures and what was being considered was a policy of promoting competition subject to remedying obvious market failures. If this is so, it is not clear on a closer reading of the document. As the document states (as 2.17):
"The starting point for the re-assessment is as follows:
Competition between telecom suppliers is likely to be the best regulator provided it is effective in delivering benefits to customers;
"Effective competition" will not always be present and, even if it is there are some circumstances where it cannot deliver the best deals to consumers.
Consequently, even in the longer run, there is likely to be a residual role for sectoral regulation." (Emphasis added)
This marks, to me at least, a significant development away from the stress placed upon competition and goes well beyond an acknowledgement of the well-known (but occasionally exaggerated) limitations on competition by way of market failure, such as information failures to consumers, and so on. It sets out something called the consumers' interest yet does not offer any criteria indicating when the consumers' interests (or "best deals") will be furthered other than by way of the existence of effective competition, or in other words the basis for predictable intervention. In the absence of either recourse to the market or clear and pre-determined principles of intervention, recourse to the "consumers' interest" is a recipe not only for ad hoc intervention but regulatory survival. Or to put it another way, when faced with a demand by a regulator to do something, an appeal to efficiency based upon the existence of competitive markets and the absence of anti-competitive conduct will, by definition, be insufficient in certain circumstances. But those circumstances are at present unknown. Regulation is thus guaranteed a long life. I do not regard this as a satisfactory situation.
Under these circumstances, it is probably sensible for a creative institutional tension to exist between the OFT and the regulators. The former will uphold competition, in the light of the developing case law in the United Kingdom and EU. The latter will be able to qualify such an objective by references to whatever principles animate regulators. As David Boies suggested in my opening quotation, competition and regulation do reflect different assumptions. There can be no harmony if, wearing one hat, the regulator has, by statute, the ability to intervene and impose provisions based upon very loose and thus far unspecified criteria detached from competition. If both policies are pursued by the same individual or agency the "looming omnipresence" of competition laws, even in the United Kingdom setting, will be evanescent and ineffective. There will be no counterpoint to random intervention getting better short term deals "in the interests of the consumer" notwithstanding the fact that markets may, in fact, be competitive (where no criteria for intervention are proposed save random periodic checks) or, more pertinently, where there is a complete absence of anti-competitive conduct.
As a rational pessimist, I have to say I am certain that no changes will be made. The regulators will continue to perform a dual and conflicting role. There are opportunities for regulatory games to be played, using whichever powers are most apt, and least reviewable. When faced with the possibility of appeal by recourse to established principles of competition law, which might frustrate their ambitions, as in energy and communications, regulators will invariably adopt "regulatory" solutions requiring licence enforcement or modifications, occasionally, as with the "market abuse licence condition" and "market influence" tests, moving goal posts away from established notions of dominance in the process. Even under the new "appeal" process in licence enforcement, such an appeal can only be conducted by recourse to principles which are as yet unspecified.
I think I can hear a wry chuckle from the grave.