S.I. No. 305/2003 - European Communities (Electronic Communications Networks and Services) (Access) Regulations 2003

1. Lead time for responding to requests for supply of services and facilities; service level agreements, fault resolution, procedures to return to a normal level of service and quality of service parameters.

2. Standard contract terms, including, where appropriate, compensation provided for failure to meet lead times.

3. Prices or pricing formulae for each feature, function and facility listed above.

GIVEN under my Official Seal,

21 July 2003.

Dermot Ahern T.D.

Minister for Communications, Marine and Natural Resources.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not it purport to be a legal interpretation)

The purpose of these Regulations is to give effect to Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of electronic communications networks and associated facilities (Access Directive). The aim of the Regulations is to establish a regulatory framework for the relationships among suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits.

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O.J. L 108, 24.4.2002, p. 7

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O.J. L 108, 24.4.2002, p. 7

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O.J. L 108, 24.4.2002, p. 21

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O.J.L 24, 30.1.1998 p. 1

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Availability of this information may be restricted to interested parties only, in order to avoid public security concerns.

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Availability of this information may be restricted to interested parties only, in order to avoid public security concerns.

4. Security issues: measures put in place by notified operators to ensure the security of their locations.

5. Access conditions for staff of competitive operators.

6. Safety standards.

7. Rules for the allocation of space where co-location space is limited.

8. Conditions for beneficiaries to inspect the locations at which physical co-location is available, or sites where co-location has been refused on grounds of lack of capacity.

C. Information systems

Conditions for access to notified operator's operational support systems, information systems or databases for pre-ordering, provisioning, ordering, maintenance and repair requests and billing.

D. Supply conditions

9. (1) Where an operator is designated as having a significant market power on a relevant market as a result of a market analysis carried out in accordance with Regulation 27 of the Framework Regulations, the Regulator shall impose on such operator such of the obligations set out in Regulations 10 to 14 as the Regulator considers appropriate.

(2) The Regulator may impose such of the obligations set out in Regulations 10 to 14 as the Regulator considers appropriate on an operator in order to ensure that the State can comply with an international agreement to which the State and the European Community are parties.

(3) Without prejudice to —

(a) Regulations 6(1) to (3) and 7(1) to (4),

(b) Part 5 of the Act of 2002, Condition 6 in Part B of the Schedule to the Authorisation Regulations as applied by virtue of Regulation 8 of the Authorisation Regulations, Regulations 23, 24 and 26 of the Universal Service Regulations and the relevant provisions of Directive No.97/66/EC

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of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, containing obligations on undertakings other than those designated as having significant market power, or

(c) the need to comply with an international commitment referred to in paragraph (2),

the Regulator shall not impose the obligations set out in Regulations 10 to 14 on operators that have not been designated in accordance with paragraph (1).

(4) In relation to paragraph (2), the Regulator shall notify any decision to impose, amend or withdraw obligations on operators to the European Commission in accordance with Regulation 20 of the Framework Regulations.

(5) Where, in exceptional circumstances, the Regulator intends to impose on operators with significant market power obligations for access or interconnection other than those set out in Regulations 10 to 14, the Regulator shall submit to the European Commission a request for permission to impose such other obligations. The Regulator shall not impose such other obligations pending the decision of the European Commission in accordance with Article 14(2) of the Access Directive to authorise or prevent the Regulator from taking such measures.

(6) Any obligations imposed in accordance with this Regulation shall —

(a) be based on the nature of the problem identified,

(b) be proportionate and justified in the light of the objectives laid down in section 12 of the Act of 2002, and

(c) only be imposed following consultation in accordance with Regulations 19 and 20 of the Framework Regulations.

Transparency

10. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations to ensure transparency in relation to interconnection, access or both interconnection and access, requiring such operator to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, and prices.

(2) The Regulator may, in particular where obligations under Regulation 11 are imposed on an operator, require such operator to publish a reference offer that is sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested and such offer shall include

(a) a description of the relevant offerings broken down into components according to market needs; and

(b) a description of the associated terms and conditions, including prices.

(3) The Regulator may specify in an obligation referred to in paragraph (1) or (2) the precise information to be made available the level of detail required and the manner of publication.

(4) Notwithstanding paragraph (3), where an operator has obligations under Regulation 13, concerning unbundled access to the twisted metallic pair local loop, the Regulator shall require such operator to publish a reference offer containing at least the elements set out in the Schedule.

(5) The Regulator may issue directions requiring an operator to which this Regulation applies to make changes to a reference offer to give effect to obligations imposed under these Regulations and to publish the reference offer with such changes.

Non-discrimination

11. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations of non-discrimination in relation to interconnection, access or both interconnection and access.

(2) Any such obligations shall ensure, in particular, that the operator

(a) applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and

(b) provides services and information to others under the same conditions and of the same quality as the operator provides for its own services or those of its subsidiaries or partners.

Accounting separation

12. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations for accounting separation in relation to specified activities related to interconnection, access or both interconnection and access.

(2) Without prejudice to the generality of paragraph (1), the Regulator may require an operator which is vertically integrated to make transparent its wholesale prices and its internal transfer prices,

inter alia

, to ensure compliance with any obligation imposed under Regulation 11 or, where necessary, to prevent unfair cross subsidy and, where it does so, may specify the format and accounting methodology to be used.

(3) A requirement upon an operator under Regulation 17 of the Framework Regulations may, in order to facilitate the verification of compliance by an operator with any obligations of transparency under Regulation 10 and non-discrimination under Regulation 11, include a requirement that accounting records, including data on revenues received from third parties, are provided by any such operator to the Regulator on request.

(4) Subject to the protection of the confidentiality of any information which the Regulator considers confidential, the Regulator may publish any information obtained by it under paragraph (3) to the extent that the Regulator considers that such information would contribute to an open and competitive market.

Obligations of access to and use of specific network facilities

13. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations to meet reasonable requests for access to, and use of, specific network elements and associated facilities

inter alia

in situations where the Regulator considers that the denial of such access or the imposition by operators of unreasonable terms and conditions having a similar effect —

(a) would hinder the emergence of a sustainable competitive market at the retail level,

(b) would not be in the interests of end-users, or

(c) would otherwise hinder the achievement of the objectives set out in section 12 of the Act of 2002.

(2) Without prejudice to the generality of paragraph (1), the Regulator may require an operator,

inter alia

(a) to give third parties access to specified network elements, facilities or both such elements and facilities, including unbundled access to the local loop;

(b) to negotiate in good faith with undertakings, requesting access;

(c) not to withdraw access to facilities already granted;

(d) to provide specified services on a wholesale basis for resale by third parties;

(e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;

(f) to provide co-location or other forms of facility sharing, including duct, building or mast sharing;

(g) to provide specified services needed to ensure interoperability of end-to end services to users, including facilities for intelligent network services or roaming on mobile networks;

(h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services; or

(i) to interconnect networks or network facilities.

(3) The Regulator may attach to any obligations imposed under paragraphs (1) and (2 conditions covering fairness, reasonableness and timeliness.

(4) When considering whether to impose obligations referred to in paragraphs (1) and (2 and, in particular, when assessing whether such obligations would be proportionate to the objectives set out in section 12 of the Act of 2002 the Regulator shall take into account in particular the following factors

(a) the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and access involved;

(b) the feasibility of providing the access proposed, in relation to the capacity available;

(c) the initial investment by the facility owner, bearing in mind the risks involved in making the investment;

(d) the need to safeguard competition in the long-term;

(e) where appropriate, any relevant intellectual property rights; and

(f) the provision of pan-European services.

Price control and cost accounting obligations

14. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection, access or both such interconnection and access in situations where a market analysis indicates that a lack of effective competition means that the operator concerned might sustain prices at an excessively high level, or apply a price squeeze to the detriment of end-users.

(2) When considering the imposition of obligations under paragraph (1), the Regulator shall, take into account any investment made by the operator in electronic communications networks or services or associated facilities which the Regulator considers relevant and allow the operator a reasonable rate of return on adequate capital employed, taking into account the risks involved.

(3) The Regulator shall ensure that any cost recovery mechanism or pricing methodology that it imposes under this Regulation serves to promote efficiency and sustainable competition and maximise consumer benefits. In this regard, the Regulator may also take account of prices available in comparable competitive markets.

(4) Where an operator has an obligation under this Regulation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs including a reasonable rate of return on investment shall lie with the operator concerned. For the purpose of calculating the cost of efficient provision of services the Regulator may use cost accounting methods independent of those used by the operator. The Regulator may issue directions requiring an operator to provide full justification for its prices, and may, where appropriate require prices to be adjusted.

(5) The Regulator shall ensure that, where implementation of a cost accounting system is imposed under this Regulation in order to support price controls, a description of the cost accounting system is made publicly available, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs. Compliance with the cost accounting system shall, at the choice of the Regulator, be verified by the Regulator or by a suitably qualified independent body.

(6) The Regulator shall cause to be published annually a statement concerning compliance with any cost accounting system imposed under this Regulation.

Publication of notice of obligations and access to information

15. (1) The Regulator shall cause to be published in a newspaper circulating in the State notice of the imposition of obligations under these Regulations and such notice shall include information on where copies of a statement of the obligations can be obtained.

(2) The Regulator may amend or revoke any obligations imposed by it and paragraph (1) applies accordingly.

(3) The notice referred to in paragraph (1) shall identify the specific product, service and geographical markets in respect of which the specific obligations are imposed.

(4) The Regulator shall ensure that up-to-date information in relation to the application of these Regulations, provided that information is not, in the opinion of the Regulator, confidential and, in particular, does not in its opinion comprise business secrets, is made publicly available in a manner that guarantees all interested parties easy access to that information.

(5) The Regulator shall send to the European Commission a copy of any information published in accordance with this Regulation.

Notification

16. (1) The Regulator shall notify the European Commission of the names of operators deemed to have significant market power for the purpose of these Regulations and the obligations imposed upon them under these Regulations.

(2) The Regulator shall notify the European Commission of any changes affecting the obligations imposed upon undertakings by or under these Regulations and of any changes of any undertakings affected by or under these Regulations, as soon as is practicable after any such change.

Directions

17. The Regulator may, for the purpose of further specifying requirements to be complied with relating to an obligation imposed by or under these Regulations, issue directions to an undertaking to do or refrain from doing anything which the Regulator specifies in the direction.

Enforcement - Compliance with obligations

18. (1) Where the Regulator finds that a person has not complied with an obligation under these Regulations or a direction under Regulation 17, the Regulator shall notify the person of those findings and give the person an opportunity to make representations in relation to the notification or remedy any non-compliance not later than —

(a) one month after issue of the notification,

(b) such shorter period as is agreed by the Regulator with the person concerned or stipulated by the Regulator in case of repeated non-compliance, or

(c) such longer period as may be specified by the Regulator.

(2) The Regulator may publish, in such manner as it thinks fit, any notification given by it under this Regulation subject to the protection of the confidentiality of any information which the Regulator considers confidential.

(3) The Regulator may amend or revoke any notification under this Regulation.

(4) Where, at the end of the period referred to in paragraph (1), the Regulator is of the opinion that the person concerned has not complied with an obligation or direction, the Regulator may, subject to paragraph (13), apply to the High Court for such order as may be appropriate by way of compliance with the obligation or direction. The Court may, as it thinks fit, on the hearing of the application make an order compelling compliance with the obligation or direction or refuse the application. An order compelling compliance shall stipulate a reasonable period for the person to comply with the obligation or direction.

(5) An application for an order under paragraph (4) shall be by motion and the Court when dealing with the matter may make such interim or interlocutory order as it considers appropriate.

(6) The Court shall not deny interim or interlocutory relief solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

(7) (a) An application for an order under paragraph (4) or (12) may include an application for an order to pay to the Regulator such amount, by way of financial penalty, as the Regulator may propose as appropriate in the light of the non-compliance.

(b) In deciding on such an application, the Court shall decide what amount (if any) of the financial penalty which should be payable and shall not be bound by the amount proposed by the Regulator.

(c) Any financial penalty ordered by the Court to be paid by a person under this paragraph shall be paid to and retained by the Regulator as income.

(d) In deciding what amount (if any) should be payable, the Court shall consider the circumstances of the non-compliance, including —

(i) its duration,

(ii) the effect on consumers, users and other operators,

(iii) the submissions of the Regulator on the appropriate amount, and

(iv) any excuse or explanation for the non-compliance.

(8) Where the Regulator has evidence of non-compliance with an obligation under these Regulations or a direction under Regulation 17 that represents an immediate and serious threat to public safety, public security or public health the Regulator may issue a direction to the person concerned requiring that the use of such apparatus or part of it, as may be specified in the direction, cease with immediate effect or, on or before such date and time, as may be so specified.

(9) A person to whom a direction has been issued under paragraph (8) shall cease to use the apparatus or part of it to which the direction relates, unless and until such direction has been withdrawn by the Regulator, and shall take such measures as may be specified by the Regulator in the direction to remedy the non-compliance.

(10) Where the Regulator has evidence of non-compliance by a person with an obligation under these Regulations or a direction under Regulation 17 that will in the opinion of the Regulator create serious economic or operational problems for undertakings or for users of electronic communications networks or services, the Regulator may issue a direction to the person requiring immediate compliance.

(11) A person may make representations to the Regulator concerning a requirement made of the person under paragraph (8) or (10) and the Regulator having considered the representations may confirm, amend or withdraw the requirement.

(12) Where a person fails to comply with a requirement under paragraph (8) or (10), the Regulator may, subject to paragraph (13), apply in a summary manner to the High Court for an order compelling compliance.

(13) Where the Regulator has brought proceedings for an offence under these Regulations or given a notice under section 44 of the Act of 2002 in respect of a failure by a person to comply with an obligation under these Regulations the Regulator shall not make an application for an order under this Regulation to the High Court to compel compliance by the person with the obligation.

Service of directions and notifications

19. (1) Where the Regulator issues a direction or notification under these Regulations, such direction or notification shall be in writing, state the reasons on which it is based and be addressed to the person concerned, and, as soon as practicable, be sent or given in any of the following ways—

(a) by delivering it to the person,

(b) by leaving it at the address at which the person carries on business,

(c) by sending it by pre-paid registered post to the address at which the person carries on business,

(d) if an address for the service of directions or notifications has been furnished by the person to the Regulator, by leaving it at, or sending it by pre-paid registered post to, that address, or

(e) in any case where the Regulator considers that the immediate giving of the direction or notification is required, by sending it, by means of a facsimile machine or by electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the person ordinarily carries on business or, if an address for the service of notices has been furnished by the person, that address provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the direction or notification, as the case may be, or the sender's facility for the reception of electronic mail generates a message confirming receipt of the electronic mail.

(2) For the purposes of paragraph (1), a company within the meaning of the Companies Acts 1963 to 2001 is deemed to be carrying on business at its registered office and every other body corporate and every unincorporated body is deemed to be carrying on business at its principal office or place of business.

Proceedings and penalties

20. (1) Subject to paragraph (2), proceedings for an offence under these Regulations may be brought and prosecuted by the Regulator.

(2) Where the Regulator has made an application under Regulation 18 to the High Court to compel compliance with an obligation under these Regulations, the Regulator shall not bring proceedings for an offence under these Regulations committed by the person concerned or give a notice under section 44 of the Act of 2002 in respect of a failure to comply with the obligation.

(3) A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000.

(4) Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person, being a director, manager secretary or other similar officer of such body or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence and is are liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) Where the affairs of a body corporate are managed by its members, paragraph (4) applies in relation to the acts and defaults of a member of that body in connection with the member's functions of management as if he or she were a director or manager of it.

(6) An offence under these Regulations is an offence to which section 44 of the Act of 2002 applies.

Regulation 10

SCHEDULE

MINIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE OFFER FOR UNBUNDLED ACCESS TO THE TWISTED METALLIC PAIR LOCAL LOOP TO BE PUBLISHED BY NOTIFIED OPERATORS

For the purposes of this Schedule the following definitions apply

(a) “local sub-loop” means a partial local loop connecting the network termination point at the subscriber's premises to a concentration point or a specified intermediate access point in the fixed public telephone network;

(b) “unbundled access to the local loop” means full unbundled access to the local loop and shared access to the local loop; it does not entail a change in ownership of the local loop;

(c) “full unbundled access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator authorising the use of the full frequency spectrum of the twisted metallic pair;

(d) “shared access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator, authorising the use of the non-voice band frequency spectrum of the twisted metallic pair; the local loop continues to be used by the notified operator to provide the telephone service to the public;

A. Conditions for unbundled access to the local loop

I,

DERMOT AHERN

, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by

section 3

of the

European Communities Act, 1972

(No. 27 of 1972) and for the purpose of giving effect to Directive No. 2002/19/EC

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of the European Parliament and of the Council of 7 March 2002, hereby make the following regulations

Citation and commencement