S.I. No. 306/2003 - European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2003

1. Designation of service for which the number shall be used, including any requirements linked to the provision of that service.

2. Effective and efficient use of numbers in conformity with Regulation 22 of the Framework Regulations.

3. Number portability requirements in conformity with the Universal Service Regulations.

4. Obligation to provide public directory subscriber information for the purposes of Regulations 4 and 21 of the Universal Service Regulations.

5. Maximum duration in conformity with Article 5 of the Authorisation Directive, subject to any changes in the national numbering plan.

6. Transfer of rights at the initiative of the right holder and conditions for such transfer in conformity with the Framework Regulations

7. Usage fees in accordance with Regulation 20.

8. Any commitments which the undertaking obtaining the usage right has made in the course of a competitive or comparative selection procedure.

9. Obligations under relevant international agreements relating to the use of numbers.

GIVEN under my Official Seal,

21 July 2003

Dermot Ahern T.D.

Minister for Communications, the Marine & 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 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive). The aim of the Regulations is to facilitate the freedom to provide electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions.

1

OJ No. L 108, 24.04.2002, p. 21

2

OJ No. L 108, 24.04.2002, p. 7

2

OJ L 24, 30.1.1998, p. 1

3

OJ L 178, 17.7.2000, p. 1.

4

OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

5

OJ L 281, 23.11.1995, p. 31

6

OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1).

10. Information to be provided under a notification under Regulation 4 and for other purposes as included in Regulation 18.

11. Enabling of legal interception by competent national authorities in conformity with Directive 97/66/EC and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

5

.

12. Terms of use during major disasters to ensure communications between emergency services and authorities and broadcasts to the general public.

13. Measures regarding the limitation of exposure of the general public to electromagnetic fields caused by electronic communications networks in accordance with European Community law.

14. Access obligations other than specific obligations applying to undertakings providing electronic communications networks or services, in conformity with the Access Regulations.

15. Maintenance of the integrity of public communications networks in accordance with the Access Regulations and the Universal Service Regulations including conditions to prevent electromagnetic interference between electronic communications networks or services or both such networks and services in accordance with Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibility

6

.

16. Security of public networks against unauthorised access according to Directive 97/66/EC.

17. Conditions for the use of radio frequencies, in conformity with Article 7(2) of Directive 1999/5/EC, where Regulation 9(1) applies.

18. Measures designed to ensure compliance with standards and specifications referred to in Article 17 of Directive 2002/21/EC (Framework Directive).

Part B. Conditions which may be attached to licences

19. Section 30 of the Act of 2002 is amended as follows —

(a) in subsection (1) —

(i) in subparagraph (a), by substituting “communications,” for “communications, and”

(ii) in subparagraph (b), by substituting “organisations, and” for “organisations”,

(iii) by inserting after subparagraph (b) the following

“(c) enabling the Minister to meet the expenses referred to in Regulation 14(4) of the European Communities (Electronic Communications Networks and Services)(Framework Regulations 2003 (

S.I. No. 307 of 2003

) of an Electronic Communications Appeal Panel, and

(iv) by substituting for “providers of electronic communications services” the following

“providers of electronic communications services and on providers of electronic communications networks which are deemed to be authorised under Regulation 4 of the European Communities (Electronic Communications Networks and Services)(Authorisation Regulations 2003 (

S.I. No. 306 of 2003

)”,

(b) in subsection (3), by substituting for “provider of postal or electronic communications services” the following

“provider of postal services or each provider of electronic communications services or electronic communications networks referred to in subsection (1)”,

(c) in subsection (11)(b), by deleting “services” after “electronic communications”,

(d) by inserting after subsection (1) the following

“(1A) For the purposes of subsection (1), the expenses of the Commission in relation to the discharge of its functions in relation to electronic communications shall —

(a) in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme, the licensing scheme for the licence concerned, the schemes for the grant of rights of use for numbers and specific obligations and may include costs for international co-operation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of any orders under section 3(6) (inserted by

section 11

(c) of the

Wireless Telegraphy Act 1972

) of the

Wireless Telegraphy Act 1926

or regulations under section 6 of that Act relating to apparatus for wireless telegraphy for the provision of an electronic communications network or service and administrative decisions, such as decisions on access and interconnection, and

(b) be imposed by the Commission on an individual undertaking in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.”, and

(e) by inserting after subsection (12) the following

“(12A) The Commission shall, in relation to a levy order, cause to be published, whether in its annual report and accounts referred to in section 32 or otherwise, an annual overview of its administrative costs and of the total sum of the charges collected under subsection (1).

(12B) The Commission shall, in the case of charges imposed on an annual basis, make appropriate repayments or compensation in the case of overcharging or additional charges in the case of undercharging by a person to whom a charge is imposed in the light of any difference between the total sum of the administrative charges collected under subsection (1) and the administrative costs incurred.”.

Fees for rights of use and rights to install facilities

20.(1) The Regulator may, subject sections 13 and 37 of the Act of 2002, impose fees for a licence or for rights of use for numbers which reflect the need to ensure the optimal use of the radio frequency spectrum and the national numbering scheme.

(2) The Regulator shall ensure that any such fees shall be objectively justified, transparent non- discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives of the Regulator as set out in section 12 of the Act of 2002.

(3) A charge imposed by a road authority for a consent under section 53 of the Act of 2002

(a) may reflect the need to ensure the optimum use of the relevant road, but

(b) shall be objectively justified, transparent, non- discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives set out in Article 8 of the Framework Directive.

Publication of information

21.(1) The Regulator shall ensure that all relevant information on rights, conditions procedures, charges, fees and decisions concerning the general authorisation, licences and rights of use for numbers is published and kept up to date in an appropriate manner so as to provide easy access to that information for all interested parties.

(2)The Regulator shall make all reasonable efforts, bearing in mind the costs involved, to create a user-friendly overview of information regarding procedures and conditions relating to consents under section 53 of the Act of 2002 and licences under section 254 of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure in order to facilitate applications for such consents and licences.

Transitional

22.(1) A person who holds a licence under section 111 of the Act of 1983 which is in force immediately before the commencement of these Regulations is deemed on the commencement to be authorised under Regulation 4. Without prejudice to the continuation in force of any obligations under such a licence in accordance with Regulation 8 of the Access Regulations or Regulation 13 of the Universal Service Regulations, any such licence ceases to be in force from the commencement of these Regulations.

(2) A person who holds a licence under —

(a)

section 16

(3)(a) of the

Broadcasting Authority Act 1960

,

(b)

section 4

(3) of the

Radio and Television Act 1988

,

(c) the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations 1974 (

S.I. No. 67 of 1974

),

(d) the Wireless Telegraphy (Community Repeater Licence) Regulations 1988 (

S.I. No 83 of 1988

),

(e) the Wireless Telegraphy (Programme Services Distribution) Regulations 1999 (

S.I. No. 73 of 1999

),

(f) the Wireless Telegraphy (UHF Television Programme Retransmission) Regulations 1999 (

S.I. No. 348 of 1999

), or

(g) the Wireless Telegraphy (Carrigaline UHF Television Programme Retransmission) Regulations 1999 (

S.I. No. 347 of 1999

),

which is in force immediately before the commencement of these Regulations, is authorised under Regulation 4 on the commencement.

(3) A person referred to in paragraphs (1) and (2) shall as soon as may be after the commencement of these Regulations make a notification to the Regulator in accordance with Regulation 4.

(4) Notwithstanding paragraphs (1) to (3), where the Regulator considers that the application of those paragraphs would result in a reduction of rights or extension of obligations of a person referred to in paragraph (1) or (2) under a licence existing immediately before the commencement of these Regulations, the Regulator may, upon request by such person, extend the validity of a licence under paragraph (1) or (2) until at the latest 25 April 2004, provided that the rights of other undertakings under European Community law are not adversely affected thereby.

(5) Where the Regulator extends the validity of a licence under paragraph (4) it shall notify such extension to the European Commission and state the reasons therefor.

(6) Where immediately before the commencement of these Regulations any legal proceedings are pending in any court or tribunal in relation to a provision of a licence under section 111 of the Act of 1983 such proceedings shall not abate by reason of the revocation of that section.

(7) Where a person who holds a licence under section 5 of the Act of 1926, conditional on also holding a licence under section 111 of the Act of 1983, the licence under the Act of 1926 shall not be invalidated by virtue of paragraph (1).

(8) A licence under —

(a) section 5 of the Act of 1926, other than a licence under the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations 1974 (

S.I. No. 67 of 1974

),

(b) section 16(3)(a) of the

Broadcasting Authority Act 1960

, and

(c)

section 4

(3) of the

Radio and Television Act 1988

,

in force immediately before the commencement of these Regulations continues in force as and from the commencement. The holder of such a licence is only required to comply with such conditions, referred to in Part B of the Schedule, as are specified by the Regulator to be applicable to such licence.

(9) Where a licence referred to in paragraph (8) expires and is renewed, the holder of the licence is, notwithstanding any provision to the contrary in such licence or in or under the enactment under which such licence is issued, only required to comply with such conditions, referred to in Part B of the Schedule as are specified by the Regulator to be applicable to such licence.

(10)Where the Regulator grants a licence under section 5 of the Act of 1926 to an undertaking, the holder of the licence is only required to comply with such conditions referred to in Part B of the Schedule as are specified by the Regulator to be applicable to such licence.

(11)Paragraphs (8), (9) and (10) are without prejudice to the continuation in force of any condition, compatible with European Community law, attached to a licence referred to in such paragraphs for the purpose of pursuing general interest objectives relating to content regulation or audio-visual policy.

(12)The Regulator shall notify a holder of a licence to which paragraph (8), (9) or (10 applies of the conditions applicable to such licence as soon as practicable after the commencement of these Regulations.

(13)In this Regulation “licence under section 5 of the Act of 1926” means a licence granted under section 5 of the Act of 1926 for apparatus for wireless telegraphy of a particular class or description for the provision of an electronic communications network or service.

Directions

23. The Regulator may, for the purpose of further specifying requirements to be complied with relating to a condition of a general authorisation, a licence or a right of use for numbers, issue directions to an undertaking to do or refrain from doing anything which the Regulator specifies in the direction.

Service of directions and notifications

24 (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 undertaking concerned, and as soon as practicable, be sent or given in any of the following ways—

(a) by delivering it to the undertaking,

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

(c) by sending it by pre-paid registered post to the address at which the undertaking 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

(d) 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 undertaking ordinarily carries on business or, if an address for the service of notices has been furnished by the undertaking, 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

25.(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 16 to the High Court to compel compliance with a condition of a general authorisation, a licence or a right of use for numbers, 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 condition.

(3) Where an offence under these Regulations has been 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 officer of the body corporate, 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 shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(4) Where the affairs of a body corporate are managed by its members, paragraph (3 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.

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

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

Publication of specification of conditions

26 (1) The Regulator shall cause to be published in the

Iris Oifigiul

and in a newspaper published and circulating in the State notice of the specification of conditions under Regulation 8, 10 or 14 and of a determination under Regulation 4(2) or (6). The notice shall include information on where copies of the specification or determination can be obtained.

(2) Where the Regulator amends or revokes any such conditions in accordance with Regulation 15 or any such determination, paragraph (1) applies accordingly.

Schedule

Regulations 8

,

10

and

14

Part A. Conditions which may be attached to a general authorisation

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. 2002/20/EC of the European Parliament and of the Council of 7 March 2002

1

, hereby make the following regulations

Citation and commencement