Identifier
Created
Classification
Origin
05BAGHDAD2807
2005-07-03 09:06:00
CONFIDENTIAL
Embassy Baghdad
Cable title:  

NCMC BOARD UNDER QUORUM

Tags:  ECPS ECON IZ 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 002807 

SIPDIS

E.O. 12958: DECL: 06/02/2011
TAGS: ECPS ECON IZ
SUBJECT: NCMC BOARD UNDER QUORUM

REF: A. 04 BAGHDAD 2296


B. BAGHDAD 1800

C. BAGHDAD 2191

Classified By: Economic Minister Counselor Anne Derse for reasons 1.4 (

b) and (d).

C O N F I D E N T I A L SECTION 01 OF 03 BAGHDAD 002807

SIPDIS

E.O. 12958: DECL: 06/02/2011
TAGS: ECPS ECON IZ
SUBJECT: NCMC BOARD UNDER QUORUM

REF: A. 04 BAGHDAD 2296


B. BAGHDAD 1800

C. BAGHDAD 2191

Classified By: Economic Minister Counselor Anne Derse for reasons 1.4 (

b) and (d).


1. (C) SUMMARY: Membership of the National Communications
and Media Commission (NCMC) Board of Commissioners is below
the legally required quorum and, therefore, its decisions are
subject to legal challenge. NCMC Director General (who
prefers to be known as the CEO) Othman plans on presenting a
list of commissioner candidates to President Talabani in
July. The UK's Media Development and Advisory Team (MDAT)
contract has been extended for 3 months and they will
immediately begin lobbying the ITG for the appointment of a
full nine member NCMC Board of Commissioners, which must be
confirmed by the TNA. We will support MDAT's efforts and
focus on the telecom initiatives pending before the NCMC. END
SUMMARY

--------------
ORDER 65 REQUIRES QUORUM
--------------


2. (SBU) CPA Order 65 created the Iraqi Communications
and Media Commission (since re-named the NCMC),the Board of
Commissioners (&the Board8) of which consists of nine
members. Decisions of the Board are made by majority vote,
"provided that at least six (6) of the members are present
and vote." The Board has been without the legally required
quorum since November 23, 2004, when former PM Allawi forced
the resignation of four of the nine commissioners, leaving
the Board with five commissioners (REF A). In the interim,
former NCMC Commissioner Masum's recent appointment as
Minister of Communications leaves the Board with only 4
members. Therefore, any decisions by the current Board are
subject to legal challenge. We have pointed this out to
Othman and discussed it with senior advisers to Prime
Minister Ja,afari, since only Ja,afari has the authority to
appoint NCMC commissioners subject to approval by majority
vote of the Transitional National Assembly (REF B).


3. (SBU) In addition, Order 65 requires monthly meetings.
Board members who fail to participate in three or more
successive meetings are subject to dismissal. We have been
unable to verify whether regular monthly meetings occur, but
if they do, there is no record or procedure in place
memorializing the meetings and the decisions made. Again,

challenging current board members' right to their appointed
seats will inflict further damage to the NCMC. We have
discussed the situation with Othman who agreed with the
necessity of complying with Order 65.

--------------
NCMC INITIATIVES SUBJECT TO CHALLENGE
--------------


3. (SBU) The NCMC has several critical initiatives
scheduled for completion in 2005. The Wireless Local Loop
(WLL) RFI and the mobile license re-tender are the most
visible. The mobile license re-tender, in particular, has
been specifically designed and advertised to attract high
level foreign investors and is expected to bring in tens of
millions of dollars per bidder. The greatest vulnerability to
the NCMC is the challenge to its authority to grant licenses
to operate and assign spectrum to new entrants and winning
bidders. For example, the mobile licensing re-tender, if not
conducted according to Order 65, is open to legal challenge.
A legal challenge to the award of mobile licenses in December
would create uncertainty for mobile customers, the industry
and irreparably harm the NCMC.

--------------
NCMC CEO PLANS TO SUBMIT LIST TO PM
--------------


4. (SBU) NCMC CEO Othman told us June 22 that he plans to
submit a list of commissioner candidates to President
Talabani at the beginning of July. The list includes himself
in the combined position of the Chair of the Board and Acting
CEO. Othman stated that while he appreciated our help, he
did not want the US involved in picking candidates and if he
needed help "I will come to you" (REF C). Order 65 prohibits
the Director General (CEO) from holding any other government
positions, to include serving as a member of the Board, and
it is clear that the intent of the Order contemplates a clear
separation between oversight and implementation.

--------------
UK MDAT CONTRACT EXTENDED FOR THREE MONTHS
--------------


5. (SBU) The USG and UK have coordinated closely on the
creation and development of the NCMC as an independent
regulatory body for telecommunications and broadcast. The
British Foreign Service Office has been responsible for the
media and broadcast institutional framework at the NCMC
through the MDAT, while the USG is concentrating its
technical advice on the telecommunications area. Upon
learning a few weeks ago that the MDAT's contract would not
be renewed by the UK, the Charge sent a letter to UK
Ambassador Patey suggesting that continued funding and
support of the MDAT through the December elections is
important. MDAT informed us on June 28 that their contract
is renewed for 3 months. We will continue to pursue an
extension of their services through the election.

--------------
UK MDAT WILL LOBBY FOR FULL NCMC BOARD
--------------


6. (C) MDAT's first priority is to get the ITG to appoint
a full complement of nine commissioners to the Board, in
accordance with Order 65, thereby ensuring that NCMC
decisions are legal and less vulnerable to challenge by the
industry. Simon Haselock, the lead member of the MDAT,
stated that MDAT's strategy is to educate the ITG on the
importance of the NCMC, its role in bringing in foreign
investment and the vulnerability of all of its decisions,
particularly the mobile re-tender, while operating without a
quorum. MDAT will not recommend particular candidates, but
will stress the need to meet the requirements set out in
Order 65. MDAT will not oppose or support Othman's current
position or his quest to be Chair, other than to advise the
ITG that he cannot, without violating Order 65, be both a
commissioner, chair or otherwise, and CEO at the same time.
(NOTE: Order 65 states that the CEO of the NCMC may not hold
any executive or legislative position, appointed or elected,
at any level of government. END NOTE).


7. (C) Othman will initially present his suggested list of
commissioners to fellow Kurd, President Talabani, in order to
enlist his help with the PM. Haselock, therefore, met with
President Talabani's Chief of Staff, Kamran Karadaghi, on
June 29, to discuss the need for a properly established
board. Karadaghi stated that he is familiar with Order 65.
He is also familiar with Othman and told Haselock he is well
aware of Othman's management style alluding to, according to
Haselock, Othman's micromanagement of issues. Karadaghi
agreed that the NCMC is an important regulatory institution
and must be made to fully comply with the law so that future
decisions are not challenged, the mobile re-tender among the
most important. Haselock told Karadaghi that Othman intends
to submit a list of candidates with himself in the combined
Chair/CEO role. Karadaghi agreed that the combined role was
inconsistent with the intent of Order 65 and that he would
counsel against it. Karadaghi agreed to use his influence to
assist in the process of appointing new commissioners.


8. (C) MDAT will also enlist the assistance of Minister of
Communication, Jowan Masum, as an advocate within the
government for a NCMC that is operating in full accord with
existing law. Karadaghi agreed with Haselock's strategy to
engage Masum on this issue.

--------------
USG WILL COMPLEMENT MDAT'S EFFORTS
--------------

9.(C) We will assist MDAT in its efforts to educate the ITG
on the need to appoint five commissioners to the NCMC and
create a full complement of board members as set out in Order

65. Our strategy will complement MDAT's focus on educating
the ITG on what is required by current law and the risks
attendant to NCMC decisions made while there is no legal
quorum. Our focus will remain on telecommunications, while
MDAT focuses on the risk to broadcasting/media decisions.


10. (SBU) We plan to use the following talking points:

--Order 65 requires six sitting and voting commissioners for
a quorum, but given the substantive challenges and the amount
of work in front of the NCMC today, we recommend five new
appointments to create a fully staffed Board.

--NCMC has several initiatives that will increase local
telecommunications penetration. The mobile license re-tender
will bring in millions to the treasury while offering
world-class mobile services to customers throughout Iraq.
Both are vital to the economic growth of the country and
legal challenges to the NCMC's decisions on these initiatives
will severely impede that growth.

--The eligibility criteria for commissioner candidates must
be consistent with Order 65.

--Order 65 clearly contemplates a separation between
executive and administrative functions and offices, and
commissioners should not hold any other NCMC positions.

--Order 65 defines that the PM recommends candidates and the
Transitional National Assembly ratifies by simple majority.
This process, because it is based on consensus building, is
time consuming and must start immediately.
--NCMC's Broadcast Program Code of Practice will be essential
in the upcoming election. This code prohibits all
broadcasters (including terrestrial and satellite) from
inciting violence or public disorder, transmitting terrorist
messages, or airing unfair or inaccurate broadcasts. A legal
challenge on the validity of the NCMC's authority would
impede enforcement.
--NCMC established a code for media during election campaign
periods. This code, which was in effect during the period
leading up to the January 2005 elections, requires all media
to report on elections accurately and fairly and requires
broadcast media to provide equitable and balanced coverage of
all political parties. Again, a legal challenge on the
validity of the NCMC's authority would impede enforcement.

11. (C) COMMENT: Our support of MDAT's efforts to engage the
government on the need to nominate and confirm five
commissioners to the Board is warranted despite Othman's
request that we not get involved. First, Othman's concerns
over US involvement stems from his fear that we will
challenge his choices and the combined Chair/CEO role he
desires. Our joint strategy with MDAT is not to get involved
in any way on individual nominees but to educate the ITG on
the requirements set out in Order 65. We will continually
stress the need to comply with the law. Second, based on
experience with Othman, he will not move quickly enough, or
be tenacious enough, to accomplish the task in time for the
mobile license re-tender. We need to convince him that it is
appropriate for us to engage the government on an issue of
compliance with Iraqi law, especially in a situation where
the viability of an important institution is at stake. END
COMMENT.
Satterfield