Communications policy
1 Policy
Summarise the regulatory framework for the telecoms and media sector. What is the policymaking procedure? Has the EU regulatory framework (including the market reviews) been fully transposed into your national law, as far as currently required?
The Irish government's policy in the communications sector is to open up electronic communications networks and services. The stated policy in relation to broadcasting is to serve Irish society by regulating, shaping and supporting the broadcasting environment, so that broadcasting reflects Ireland's diverse and democratic nature. In terms of media ownership, the government's policy is to protect plurality of media by spreading ownership among individuals and undertakings. The minister for communications states the roll-out of broadband to be critical to Ireland's success.
The regulator for communications is the Commission for Communications Regulation (ComReg), which was established by the Communications Regulation Act 2002 (as amended). The objectives of ComReg are set out in section 12 of that Act and in section 16 of the Framework Regulations (defined below), and include the promotion of competition, contributing to the development of the internal market and promotion of the interest of users within the EU. Com- Reg's objectives reflect the objectives set for the national regulatory authorities by the European Community in Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communication networks and services (Framework Directive), as amended by Directive 2009/140/EC (Better Regulation Directive).
ComReg also has as one of its objectives the efficient use and effective management of radio spectrum and numbers. It is also responsible for regulating premium-rate services. The Department of Communications, Energy and Natural Resources (DCENR) is the relevant government department responsible for the telecoms and media sector. In terms of policymaking and policy development procedure, the minister for communications, energy and natural resources (minister for communications) has powers to issue directions to ComReg, some of which are subject to public consultation prior to their issue. ComReg regularly conducts public consultations on regulatory issues. The framework within which ComReg regulates the electronic communications industry is largely driven by the European Commission and the Body of European Regulators for Electronic Communications (BEREC).
Ireland has implemented the European regulatory framework governing the electronic communications sector by way of primary and secondary legislation (the Irish Regulatory Framework). Primary legislation includes the Communications Regulation Act 2002 (as amended).
In 2011 a number of changes were made to the secondary legislation underpinning the Irish regulatory framework following the adoption of the EU electronic communications reform package in November 2009 (including the Better Regulation Directive, Directive 2009/136/EC (Citizens' Rights Directive) and Regulation EC No. 1211/2009 (BEREC Regulation)). Five new regulations were signed into law on 1 July 2011 to transpose the reform package, namely:
- the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (the Framework Regulations);
- the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 (the Access Regulations);
- the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (the Authorisation Regulations);
- the European Communities (Electronic Communications Networks and Services) (Universal Service and User's Rights) Regulations 2011 (the Universal Service Regulations); and
- the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the Privacy Regulations).
ComReg took over from RegTel as the statutory independent regulator of premium rate services (PRS) in Ireland following the enactment of the Communication Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 on 12 July 2010. New regulations governing the provision of PRS were introduced in June 2012 (Communications Regulation (Licensing of Premium Rate Services) Regulations 2012) and ComReg launched a new code of practice for PRS which came into full effect on 25 July 2012.
ComReg is responsible for monitoring call-handling, fee-setting and quality of service relating to the Emergency Call Answering Service (ECAS), which is currently provided by BT Ireland Limited.
It is expected that the Consumer and Competition Bill will be published early in 2013. The bill is expected to include new rules on media mergers and provide for the amalgamation of the National Consumer Agency and Competition Authority. The Broadcasting Act 2009 established a single content regulator, the Broadcasting Authority of Ireland (BAI) (see questions 3, 36 and 40).
2 Convergence
Has the telecoms-specific regulation been amended to take account of the convergence of telecoms, media and IT? Are there different legal definitions of 'telecoms' and 'media'?
The Framework Directive (transposed in Ireland by the Framework Regulations) provides that the convergence of the telecoms, media and information technology sectors means all transmission networks and services should be covered by a single regulatory framework. The statutory instruments implementing the European regulatory framework cover all electronic communications networks (ECN) and electronic communications services (ECS) irrespective of their means of transmission and regardless of the type of information conveyed.
An ECN means transmission systems and, where applicable, switching or routing equipment and other resources (including network elements which are not active) which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including the internet) and mobile terrestrial networks, electricity cable systems (to the extent that they are used for the purpose of transmitting signals), networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed.
An ECS means a service normally provided for remuneration which consists wholly or mainly of the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but excludes services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, and information society services, as defined in article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks.
Media services could potentially be categorised as ECS depending on their method of transmission. Broadcasting licensing, content regulation and media ownership, however, are regulated separately and are not covered by the package of statutory instruments implementing the European regulatory framework. The statutory instruments implementing the European regulatory framework neither define nor make any explicit references to the terms 'telecoms' or 'media'. In February 2012 the minister for communications made a statement noting the move away from a traditional vertically integrated model of media provision towards a more disaggregated and internet-focused model, which has driven cross-media mergers with companies increasingly building a deliberately diverse portfolio of media interests. The minister also noted the challenge of adjusting to a changing market, and technological and social trends in a flexible and appropriate manner.
As mentioned in question 1, the Consumer and Competition Bill will amend the current legislation on media mergers. It is expected that the bill will include a definition of 'media' that explicitly includes news materials published on the internet.
3 Broadcasting sector
Is broadcasting regulated separately from telecoms? If so, how?
The broadcasting sector in Ireland is regulated by the Broadcasting Act 2009 (Broadcasting Act), which updated and modernised the legislative framework for broadcasting in Ireland by repealing a large proportion of the broadcasting legislation enacted in Ireland over the past 50 years. The Broadcasting Act established a single content regulator, the BAI, which took over the regulatory functions of the Broadcasting Commission of Ireland (BCI), the Broadcasting Complaints Commission (BCC) and the RTÉ Authority (RTÉ). The Broadcasting Act also introduced stricter enforcement mechanisms and new financial penalties that result in television and radio stations facing fines of up to €250,000 if they infringe broadcasting codes of conduct or rules, or breach the duties of broadcasters within the Broadcasting Act or the provisions in respect of the recording of broadcasts and advertising or licence requirements.
Television broadcasting in Ireland was originally established under the Broadcasting Authority Act 1960. This established RTÉ as the regulator and operator of television broadcasting services, which now include RTÉ 1, RTÉ 2 and TG4 (the Irish language station) and the then-existing publicly owned radio services, which now comprise Radio 1, 2FM, Radió na Gaeltachta (the Irish-language station) and Lyric FM. TG4 was established as an independent statutory body in April 2007.
The Radio and Television Act 1988 (as repealed by the Broadcasting Act) provided for the establishment of commercially owned radio broadcasters both locally and nationally. It also provided for the establishment of a commercial television programme service, TV3. These commercial licences (broadcasting contracts) remain in force under the Broadcasting Act. The BAI is also responsible for licensing regional, local, community, community of interest and institutional radio services. The Broadcasting Act also provides for the issue by the BAI of broadcasting contracts in respect of various television programme services, for example, digital, satellite and cable-MMD content contracts.
Digital switchover occurred on 24 October 2012. Terrestrial television broadcasting will now be delivered through more spectrally efficient digital terrestrial television (DTT) signals, which can only be broadcast after going through a multiplex process. The Broadcasting Act provides for the award of multiplex licences, which are required for spectrum rights to provide multiplex services and for such licences to be provided by ComReg to BAI, which awards contracts to multiplex operators through a tendering process. A DTT multiplex operated by RTÉ was launched on 27 May 2011, known as Saorview, to ensure the continued availability of the existing free-to-air services in Ireland, namely RTÉ 1, RTÉ 2, TV3 and TG4 (see question 42 for further details). In February 2011 the minister for communications made an order under the Broadcasting Act conferring a number of additional functions on the BAI to consult with RTÉ and other parties in relation to the provision of services on the RTÉ DTT multiplex. The BAI has made recommendations that a number of new services merit consideration for inclusion on the RTÉ multiplex but has stated that none of these services are in a position to be included in the near future. The BAI has so far been unsuccessful in negotiating contracts for commercial DTT.
ComReg's role in respect of the broadcasting sector covers the issuing of licences under Ireland's Wireless Telegraphy Acts, 1926–2009 (Wireless Telegraphy Acts) in respect of wireless equipment and assignment of required radio spectrum.
ComReg previously designated RTE Transmission Network Limited (RTENL) as having SMP in two wholesale markets, namely the wholesale market for radio broadcasting services on analogue terrestrial networks and the wholesale market for television broadcasting transmission services on analogue terrestrial network, and imposed transparency and non discrimination obligations (ComReg Decision No. D/04/122). ComReg launched a market review in July 2012 to review the relevant Irish broadcasting transmission markets to determine whether ex-ante regulation remains appropriate. Com- Reg's proposals are set out in question 40.
Telecoms regulation − general
4 WTO Basic Telecommunications Agreement
Has your jurisdiction committed to the WTO Basic Telecommunications Agreement and, if so, with what exceptions?
Yes, without exception.
5 Public/private ownership
What proportion of any telecoms operator is owned by the state or private enterprise?
The Irish government no longer holds shares in any operator in the fixed or mobile telecoms sectors. See question 33 for government involvement in metropolitan area networks.
6 Foreign ownership
Do foreign ownership restrictions apply to authorisation to provide telecoms services?
No.
7 Fixed, mobile and satellite services
Comparatively, how are fixed, mobile and satellite services regulated? Under what conditions may public telephone services be provided?
As mentioned in question 2, no distinction is drawn in the Irish regulatory framework for ECN and ECS between the technology involved in the provision of networks and services, or between the provision of services via fixed, mobile or satellite technology.
General authorisation
The provision of communications services is subject to the regime set out in the Authorisation Regulations, which confers a general right to provide ECN or ECS (or both) provided certain conditions are complied with. Conditions which may be attached to a general authorisation are set out in the schedule to the Authorisation Regulations. Persons wishing to provide ECN or ECS (or both) to third parties must notify ComReg in advance. The notification must contain certain minimum information, and on receipt of a complete notification form, ComReg will add the notifying party to its register of authorised undertakings, which can be viewed at www.comreg.ie.
Additional obligations apply in respect of an authorised operator designated as having significant market power (SMP), or as being a universal service provider (see question 9).
Wireless telegraphy licences
In addition to complying with the conditions of the general authorisation, mobile phone operators and providers of fixed wireless services need to obtain a licence under the Wireless Telegraphy Acts. In respect of the installation, maintenance and use of fixed satellite earth stations, a licence must also be obtained under the Wireless Telegraphy Acts.
Publicly available telephone services
Whether an undertaking is providing a publicly available telephone service (PATS) or not will affect both its rights and obligations (see question 31 in respect of VoIP). PATS means a service available to the public for originating and receiving, directly or indirectly, national and international calls. PATS are provided through a number or numbers in a national or international telephone numbering plan.
Numbering
All undertakings and users of numbers from Ireland's National Numbering Scheme (NNS) must comply with the Irish Numbering Conventions, which set down rules relating to the allocation and permitted use of numbers allocated from the NNS. ComReg does not charge any fees for number allocations at present. The most recent version of the National Numbering Conventions (v. 7) was issued by ComReg on 9 March 2011 (ComReg Document No. 11/17).
8 Satellite facilities and submarine cables
In addition to the requirements under question 7, do other rules apply to the establishment and operation of satellite earth station facilities and the landing of submarine cables?
The Wireless Telegraphy (Fixed Satellite Earth Stations and Teleport Facility) Regulations 2007 apply in respect of the installation, maintenance and use of certain fixed satellite earth stations. Various statutory instruments have been passed exempting satellite earth stations from the requirements of the Wireless Telegraphy Acts. Satellite earth station equipment should comply with the provisions of the European Communities (Satellite Earth Station Equipment) Regulations 1998.
A foreshore licence is required from the DCENR in respect of the landing of a submarine cable in Ireland.
9 Universal service obligations and financing
Are there any universal service obligations? How is provision of these services financed?
Eircom Limited (Eircom) has been designated as the universal service provider (USP) since 2006, and in June 2012, ComReg confirmed the re-designation of Eircom as the USP for a further two-year period until June 2014 (see below). The universal service obligation (USO) applies only to basic telecoms services and does not apply to nextgeneration access and VoIP. ComReg recently consulted on whether broadband availability should be included in the USO, but made adecision to forbear from regulatory intervention in the area of broadband as a USO for the time being, to observe the effects of technological developments and market provision on broadband availability, although ComReg plans to re-examine the issue in 2014 (ComReg Document No. 12/71). Pursuant to its designation as USP, and pursuant to its obligations under section 3 of the Universal Service Regulations, Eircom must satisfy any reasonable request to provide, at a fixed location, connections to the public telephone network and access to a publicly available telephone service (PATS).
ComReg has imposed legally binding performance targets on Eircom in connection with Eircom's principal obligation to provide access at a fixed location. The performance targets came into effect on 28 May 2008, and Eircom is subject to monitoring and reporting obligations in respect of its compliance with the performance targets and is required to submit performance data to ComReg that is reported on ComReg's website on a quarterly basis. Further, Eircom, as USP, must also comply with the following obligations:
- Eircom is required to provide end-users with a comprehensive directory of subscribers, whether in printed or electronic form (or both), free of charge and updated at least once a year, based upon information supplied to it in accord nce with the National Directory Database (NDD). Eircom is also required to maintain the NDD, which is a record of all subscribers of PATS in the state who have not refused to be included in the NDD. ComReg recently consulted on the possibility of putting the maintenance and management of the NDD out to tender, but concluded that Eircom should continue to maintain the NDD until 30 June 2014 (see ComReg Document No. 12/11);
- Eircom is obliged to ensure that public pay telephones are provided to meet the reasonable needs of end-users in terms of geographical coverage, number of telephones, accessibility of such telephones to users with disabilities and the quality of services;
- Eircom is required to provide specific measures for users with disabilities and is required to maintain a code of practice concerning the provision of services for people with disabilities; and
- Eircom must also adhere to the principle of maintaining affordability for universal services, as discussed in question 17.
Failure by Eircom to comply with these obligations constitutes an offence under the Universal Service Regulations.
On 28 May 2008 ComReg set legally binding performance targets in relation to Eircom's quality of service performance with respect to certain aspects of the USO. These targets relate to timescales for connection, fault rate occurrence and fault repair times. Subsequently Eircom established a USO quality of service performance improvement programme for the periods 2010–2011 and 2011–2012. Eircom put in place performance bonds (totalling €10 million) to guarantee its performance. For the period 2011–2012 Eircom paid out €525,000 for failure to meet its fault repair targets. A new performance improvement programme has been put in place for the period 2012–2014, again backed by a financial security mechanism of up to €10 million per annum.
Pursuant to the Universal Service Regulations, a USP may apply to ComReg to receive funding for the net cost of meeting the USOs concerned where, on the basis of a calculation in respect of thenet cost of its provision, ComReg determines that the undertaking in question is subject to an unfair burden. There is currently no universal service fund in Ireland and the USO is self-financed by Eircom. However, in June 2012 Eircom submitted an application for funding in respect of its USO for 2009–2010, claiming a net cost of €6.22m (including the intangible benefit it receives for its provision of the USO). ComReg is currently assessing the application. Eircom's deadline for application for funding for 2010–2011 has also been extended to 31 March 2013.
ComReg published a decision on 29 June 2012 relating to the future of the USO, noting that Eircom's position as the USO provider is without prejudice to any other operator who may express an interest in providing all or part of the USO in all or part of the state (ComReg Document No. 12/71). ComReg recognised that in order to decide whether it would provide such services, operators would require certain information (eg, information about uneconomic customers or areas), which is not currently available. However, ComReg noted that this information would become available following Eircom's funding application, and so although ComReg considered that there is a continued need for a USO, it limited Eircom's designation to a further two years only in advance of a further review.
On 28 October 2011, ComReg published a consultation on a sharing mechanism for any USO fund, Principles and Methodologies (ComReg Document. No. 11/77), inviting the views of interested parties on an appropriate sharing mechanism for a USO fund between providers of ECNs and ECSs. ComReg has not yet published a response to this consultation.
In March 2012 Eircom sought court protection from its creditors in a process known as examinership, pursuant to which it was required to propose a plan to return the company to viability. It received court approval on 22 May 2012 for a debt restructuring deal to cut the group's gross debt and a five-year business plan which was endorsed by most of Eircom's creditors. Eircom exited the examinership process in June 2012.
10 Operator exclusivity and limits on licence numbers Are there any services granted exclusively to one operator or for whichthere are only a limited number of licences? If so, how long do suchentitlements last?
Currently, there are no special or exclusive rights reserved for any operator. Article 4 of European Commission Directive 2002/77/EC 'on competition in the markets for electronic communications networks and services' prohibits member states from granting exclusive or special rights of use for the operation of an ECN or the provision of ECS.
Regulation 11 of the Authorisation Regulations sets out the procedures to be followed by ComReg when it considers that the number of licences to be issued under the Wireless Telegraphy Acts ought to be limited. Regulation 11 of the Authorisation Regulations also requires ComReg to give due weight to the need to maximise benefits for users and to facilitate the development of competition, in circumstances where it proposes to issue licences for a particular class or description of apparatus for wireless telegraphy for the provision of an electronic communications network or service pursuant to its powers under the Wireless Telegraphy Acts, and considers that the number of such licences ought to be limited. Where ComReg decides to limit the number of rights of use to be granted, it is required to ensure that any rights granted will be on the basis of objective, transparent, proportionate and non-discriminatory selection criteria. ComReg must also publish any decision to limit the granting of rights of use, along with reasons for that decision. There are no limits on licence numbers except where resources are scarce, eg, radio frequencies. For example, following the spectrum auction held in autumn 2012, there are currently only four owners of the liberalised use spectrum in the 800MHz, 900MHz and 1,800MHz bands in Ireland: Meteor, O2, Vodafone and H3GI (see question 20 on the recent auction in Ireland).
11 Structural or functional separation
Is there a legal basis for requiring structural or functional separation between an operator's network and service activities? Has structural or functional separation been introduced or is it being contemplated?
Structural separation has not been provided for in the Irish regulatory framework. However, under section 14 of the Competition Act 2002–2012 (Competition Act), structural separation could potentially be imposed as a remedy in cases entailing an abuse of dominance contrary to section 5 of the Competition Act
Following the significant reform of the EU Regulatory Framework in 2009 and, in particular, the amendment of the Access Directive by the Better Regulation Directive, a new exceptional remedy of functional separation has been provided for pursuant to Regulation 14 of the Access Regulations. In the case of operators found to have significant market power (SMP), a remedy of functional separation can be imposed as a last resort by ComReg where other remedies have failed to achieve effective competition. Where ComReg concludes that Regulations 9 to 13 of the Access Regulations (ie, transparency, nondiscrimination, accounting separation, access and price control obligations) have failed to achieve effective competition, and where it has identified important and persisting competition problems or market failures in relation to the wholesale provision of certain access product markets, it may, as an exceptional measure, impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity. That independently operating business must supply access products and services to all undertakings on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.
Any proposal which ComReg wishes to make in terms of a functional separation must be submitted to the European Commission.
The Access Regulations also provide that ComReg must be notified of any voluntary separation in a vertically integrated undertaking with SMP.
12 Number portability
Is number portability across networks possible? If so, is it obligatory?
All undertakings providing a publicly available telephone service, including a mobile service, have a regulatory obligation to provide number portability as a customer right under Regulation 25(1) of the Universal Service Regulations.
There are three different types of number portability: geographic, non-geographic and mobile. Geographic number portability (GNP) enables any fixed-line customer to move or port their telephone number(s) to any other available operator. Non-geographic number portability enables customers to transfer their non-geographic number service (eg, freephone, lo call, VoIP numbers between host providers). Mobile number portability (MNP) enables mobile customers to retain their mobile number when moving between mobile telephony operators. The Universal Service Regulations do not cover the porting of numbers between fixed and mobile networks.
In November 2007, ComReg published a Response to Consultation and Specification on Number Portability in the Fixed and Mobile Sectors (ComReg Decision No. 05/07), which specified that there shall be no direct charges to subscribers for number portability.
Regulation 25 of the Universal Service Regulations provides that undertakings must ensure that the porting of numbers and their subsequent activation are carried out within the shortest possible time. In the case where a subscriber has concluded an agreement to port a number to a new undertaking, that number must be activated within one working day, and loss of service during the porting process may not exceed one working day. ComReg may specify requirements to be complied with by undertakings in relation to this obligation including, but not limited to, arrangements for the payment of compensation to subscribers relating to delay in porting.
In January 2009, ComReg published a Response to Consultation and Final Specification: Setting a Maximum Fixed and Mobile Number Porting Charge (ComReg Decision No. D01/09) specifying the maximum charges that fixed and mobile operators are permitted to charge for wholesale number porting charges going forward. The maximum charges set out in that decision will remain in place for a period of two to three years; however, ComReg has reserved its powers to review the maximum number porting charges within this time frame if exceptional circumstances arise. No review of the charges has been undertaken at the date of publication.
In May 2012 ComReg launched a preliminary consultation calling for input from telecommunications operators on a range of topics related to inter-operator switching processes (ComReg Document No. 12/40). ComReg noted that a number of issues had arisen at a series of meetings on GNP, and the consultation is intended to provide industry with an opportunity to submit formal views on issues identified for discussion at those meetings and more generally, and in particular any views on possible technical and procedural improvements which could be made to inter-operator switching processes. Topics to be considered as part of the consultation include: coordination of switching between service bundles; switching processes in the context of new technologies, particularly the emergence of next-generation networks and fixed mobile convergence; the role of customer authorisation forms in inter-operator processes and central database arrangements for fixed and mobile services including their future functionality, management structures and access arrangements.
13 Authorisation timescale
Are licences or other authorisations required? How long does the licensing authority take to grant such licences or authorisations?
Once an operator notifies ComReg of its intention to provide an ECN or ECS (or both), it is deemed to be authorised under the Authorisation Regulations and must comply with all applicable conditions of the general authorisation.
In respect of a wireless telegraphy licence granted under the Wireless Telegraphy Acts, ComReg must make a decision on the granting of a licence as soon as possible after the receipt of a complete application.
In the case of radio frequencies that have been allocated for specific purposes within the national frequency plan, ComReg must make a decision within six weeks of receipt of a complete application. Where ComReg decides to use a competitive or comparative selection procedure for the purposes of granting a licence, it may extend this six-week period for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months. These time limits are without prejudice to any applicable international agreements relating to the use of radio frequencies, or orbital positions or satellite coordination.
For numbers that have been allocated for a specific purpose within the NNS, ComReg must make a decision within three weeks of receipt of a complete application. Where ComReg decides, after public consultation, that rights of use for numbers of exceptional economic value are to be granted through competitive or comparative selection procedures, it may extend the three-week period by a further three weeks.
14 Licence duration
What is the normal duration of licences?
The general authorisation is not limited in duration. The duration of wireless telegraphy licences varies for radio frequencies depending on the type of licence but they are generally renewed on an annual basis.
Spectrum in the 900MHz band is currently assigned under 2G mobile licences to Vodafone, O2 and Meteor. Vodafone and O2's previous 15-year licences expired in May 2011, and after a consultation process, ComReg granted interim 2G licences for this spectrum to Vodafone and O2 on 13 May 2011 under the Wireless Telegraphy (Interim GSM Mobile Telephony Licence) Regulations 2011. These interim licences were due to expire on 31 January 2013. Following completion of the spectrum auction in November 2012 ComReg considered that it was unlikely that the relevant transition activities (ie, relocation) in the 900MHz band would be completed by 1 February 2013. Following a consultation (ComReg Document No.12/127), ComReg issued a decision on 15 January 2013 which will result in an extension to those licences of no more than three months, with two further possible extension of no more than two months each. Com- Reg believes this will enable the existing GSM licensees to complete their respective transition activities in the 900MHz band (Decision D13/05).
Meteor's 15-year 2G licence will expire in June 2015. The current 3G mobile licences were granted for a term of 20 years to O2, Vodafone, H3GI and Meteor and are also renewed on an annual basis.
To accommodate the current pattern of licence assignments, the 800MHz, 900MHz and 1,800MHz spectrum auctioned off as part of the spectrum auction in November 2012 was auctioned across two time periods; from 1 February 2012 until 12 July 2015, and from 13 July 2015 to 12 July 2030.
The auction is discussed further in question 20.
15 Fees
What fees are payable for each type of authorisation?
Annual levies are payable under section 30 of the Communications Regulation Act 2002 and the Authorisation Regulations and pursuant to the Levy Order SI No. 346/2003 in respect of ECNs and ECS excluding broadcasting transmission networks. The amount of the annual levy payable is 0.2 per cent of relevant turnover in the relevant financial year of the authorised service provider, unless the relevant turnover is less than €500,000, in which case no levy is payable. The 'relevant turnover' is the gross revenue of the authorised service provider excluding VAT paid to it in respect of the provision of ECN or ECS (or both).
Under section 19 of the Authorisation Regulation, ComReg may impose fees for rights of use of radio frequencies or rights of use for numbers which reflect the need to ensure the optimal use of the radio frequency spectrum and the NNS. These fees must be objectively justified, transparent, non-discriminatory and proportionate. There is currently no fee imposed for the use of numbers. Licence fees are also payable in respect of radio frequency licences issued in accordance with the Wireless Telegraphy Acts.
As mentioned in question 14, the winning bidders (H3GI, Vodafone, O2 and Eircom (which owns Meteor)) in the recent spectrum auction paid €481.7 million in upfront fees for the spectrum rights on offer and will pay a further €373 million in spectrum usage fees in the period 2013 to 2030. The annual spectrum usage fee for each spectrum block in the 800MHz and 900MHz bands is €1.08 million (subject to Consumer Price Index (CPI) adjustment) and €0.54 million (subject to CPI adjustment) for each spectrum block in the 1,800MHz band.
16 Modification and assignment of licence
How may licences be modified? Are licences assignable or able to be pledged as security for financing purposes?
Regulation 15(1) of the Authorisation Regulations provides that ComReg may amend the rights, conditions and procedures concerning the general authorisation, rights of use for radio frequencies and rights for use of numbers provided that any such amendments are objectively justified and proportionate. Before making any amendment under Regulation 15(1), ComReg must publicly consult on its intended proposal to modify a licence for a period, other than in exceptional circumstances, of not less than 28 days and invite all interested parties to make representations on the amendment, except where the proposed amendment is minor in nature and has been agreed with the holder of a general authorisation/licence.
Wireless telegraphy legislation and licences may contain additional amendment provisions.
A general authorisation is not transferable. An authorisation is personal to an authorised person. An authorised person may not sub-authorise or grant or otherwise transfer any right, interest or entitlement in a general authorisation.
The holder of a wireless telegraphy licence may not assign a licence without the consent of ComReg, although this consent may not be unreasonably withheld.
Article 9(3)(b) of the Framework Directive provides that member states shall ensure that undertakings may transfer or lease individual rights to use radio frequencies. Regulation 19 of Framework Regulations transposes this provision into Irish law and provides that ComReg shall ensure that undertakings may transfer or lease to other undertakings, in accordance with conditions attached to the rights of use for radio frequencies and any procedures specified by ComReg, individual rights to use radio frequencies in the bands for which this is provided, in accordance with article 9(3)(b) of the Framework Directive. Under Regulation 19(4) where an undertaking intends to transfer the right to use a radio frequency it shall notify ComReg of its intention to do so, in a manner specified by ComReg. ComReg must ensure that this notification is made public. Regulation 9(5) of the Authorisation Regulations requires that ComReg, when granting rights of use for radio frequencies, must specify whether such rights may be transferred by the holder of the rights and under what conditions such a transfer may take place, having regard to Regulation 19 and Regulation 17 (which governs the management of radio frequency for ECSs) of the Framework Regulations.
The Wireless Telegraphy (Liberalised Use and Preparatory Licences in the 800MHz, 900MHz and 1,800MHz bands) Regulations 2012 (Liberalised Use Licence Regulations) were introduced in July 2012 and are to apply in respect of the liberalised use licences issued following the auction. The Regulations provide that ComReg may amend the liberalised use licences from time to time in accordance with the Authorisation Regulations, and a licensee can request that a liberalised use licence is amended by adding to, deleting or altering the radio frequencies specified in the licence.
17 Retail tariffs
Are national retail tariffs regulated? If so, which operators' tariffs are regulated and how?
Eircom's retail tariffs for fixed retail calls are no longer subject to ex-ante regulation. In December 2008, ComReg removed its finding that Eircom had SMP on the retail market for the minimum set of leased lines (up to 2MBs). ComReg's decision to remove regulation in this market followed the European Commission's review of the product and service markets that may be susceptible to ex-ante regulation and the Commission's proposal that the minimum set of retail leased lines should be removed from the list of relevant markets, since wholesale regulation should ensure that there is competitive supply at the retail level.
However, retail tariffs for fixed narrowband access (ie, retail line rental) services in Ireland are regulated. In September 2007 ComReg reviewed the fixed voice access (FVA) market and imposed a retail price cap on Eircom on each of the higher-level fixed voice access (HLVA) and lower-level voice access (LLVA) services for a period of 12 months from the start date of the proposed price cap, and a CPI zero per cent cap in subsequent years. In addition, pursuant to ComReg's 2007 decision, Eircom has an obligation not to unreasonably bundle fixed narrowband access with other retail services.
In October 2012 ComReg launched a market review on retail access to the public telephone network at a fixed location for residential and non-residential customers (ComReg Document 12/117), noting when ComReg last reviewed the FVA markets in 2007 it considered the state of competition in relation to analogue (PSTN) and digital (ISTN) telephone lines for consumers (lower-level access or LLVA) and businesses (higher-level access or HLVA), ie, fixed narrowband access. ComReg proposed new market definitions to include copper PSTN and ISTN BRA access and broadband using managed VoIP over cable, fibre, FWA and DSL. ComReg's preliminary view is that Eircom has SMP in both the LLVA and HLVA markets, and that it is appropriate to impose retail obligations on Eircom in the LLVA market including price control via a retail price cap measure, an obligation not to bundle services, transparency, cost accounting obligations and an obligation not to show undue preference to specific end-users. In view of developments in the HVLA market, Com- Reg is of the view that it is appropriate to rely on wholesale SMP obligations alone and that it will not impose any SMP obligations at retail level for HVLA.
Currently, Eircom's obligation not to unreasonably bundle services requires that Eircom, as SMP operator, 'must ensure that any bundle avoids a margin squeeze and passes a net revenue test'. ComReg issued a consultation and draft decision on 10 October 2011 (ComReg Document No. 11/72) to consider whether ComReg should further specify the existing regulatory controls on Eircom bundles that include retail fixed narrowband access and in particular whether the current net revenue test and margin/price squeeze test should be revised. ComReg published a supplementary consultation on 15 June 2012 (ComReg Document No. 12/63). No response to these consultations had been published at the time of writing.
18 Customer terms and conditions
Must customer terms and conditions be filed with, or approved by, the regulator or other body? Are customer terms and conditions subject to specific rules?
There is no obligation on undertakings to have contract terms and conditions filed with or approved in advance by ComReg. Under Regulation 14 of the Universal Service Regulations, an undertaking who provides a public ECN or publicly available ECS must provide to end-users and consumers certain standard contract conditions. The minimum terms and conditions are set out in Regulation 14(2) and must be specified in a clear, comprehensive and easily accessible form. For example, consumer contracts must specify information on the minimum service quality levels, details of prices and tariffs, the duration of the contract and the conditions for renewal and termination of services and of the contract.
Regulation 14(4) provides that operators must notify customers one month in advance of any proposed changes to their terms and conditions and of their right to withdraw if they do not accept the changes. This obligation applies in respect of not only changes which are detrimental to the customer, but those changes which improve the customer's terms and conditions. Failure to provide the relevant notification is an offence. It is a defence to establish that reasonable steps were taken to comply, or that it was not possible to comply, with the requirement. A subscriber may withdraw from his/her contract without penalty if he/she does not accept a proposed contract modification.
Previously, the general practice of operators was to notify customers of proposed changes via the national press or customer notifications on the operator's own website, or both. However, in 2010 ComReg intervened on behalf of consumers to assert the right to individual notification (eg, via SMS, e-mail) in the case of contract changes and the consumers' right of assent to changes in billing medium (eg, switching to e-billing). ComReg has been particularly vigilant regarding enforcement of these provisions, and in January 2011, ComReg notified O2 and UPC respectively of a finding of non-compliance in respect of failure to furnish subscribers with proper individual and prior notification of a proposed change to their contract terms and conditions, and the customers' statutory right to withdraw from the contract without penalty in the event that the customer does not agree to the proposed change. Both O2 and UPC proposed to ComReg a proactive programme of individual customer communications covering all of the customers affected, so as to properly advise customers of the changes in question and allow them to exercise their right to withdraw from their contracts. Accordingly, ComReg indicated that it does not propose to take any further enforcement action.
Regulation 14(5) of the Universal Service Regulations provides that ComReg can specify the format of any notification to subscribers. In August 2012 ComReg launched a consultation (ComReg Document No. 12/85) on contract change notification, noting the considerable variation in the approaches and media being used by ECS providers when giving notifications to subscribers. As a result of this consultation, new requirements were introduced, effective from 1 March 2013. ComReg did not specify a medium to be used, but provided that notifications must be presented to customers clearly, unambiguously and transparently and in accordance with Decision D13/12 (ComReg Document No. 12/128). The decision requires that certain minimum information must be included in the notification, that 'full' information be given and sets down specific rules relating to SMS, print and telephone / meeting notifications.
On 28 October 2011 ComReg issued a consultation on proposed consumer protection measures in respect of consumer bills and billing mediums (ComReg Document No. 11/78). ComReg noted that, in the absence of uniform and specified obligations applicable to all operators and service providers, various approaches are being used for billing mediums, and in some cases charges were being placed on subscribers for paper bills. ComReg advocated, inter alia, the use of itemised bills provided free of charge as a hard copy (unless the service provider can be reasonably assured that the subscriber can access and use an alternative billing system). No response to consultation had been published at the time of writing. On 25 October 2011 ComReg notified Vodafone of non-compliance with respect to e‑billing, noting that any move to e‑billing should take full account of, and safeguard the legitimate preferences and interests of consumers. ComReg stated in May 2012 that Vodafone had proposed a comprehensive and proactive programme of customer communications, covering all of the customers affected so as to verify customer preferences and agreement regarding the type of billing they wish to receive. As ComReg considered these proposals addressed its concerns, it stated that it would not take further action against Vodafone.
19 Changes to telecoms law
Are any major changes planned to the telecoms laws?
As indicated in question 1, many changes were made to the Irish regulatory framework in July 2011 following the adoption of the EU electronic communications reform package. The new European regulatory framework has now been implemented into Irish law.
Telecoms regulation – mobile
20 Radio frequency (RF) requirements
For wireless services, are radio frequency (RF) licences required in addition to telecoms services authorisations and are they available on a competitive or non-competitive basis? How are RF licences allocated? Do RF licences restrict the use of the licensed spectrum?
For wireless services such as mobile and fixed wireless, a licence must be obtained under the Wireless Telegraphy Acts in connection with the use of wireless telegraphy apparatus. ComReg may limit the number of wireless telegraphy licences issued under section 5 of the Wireless Telegraphy Act 1926-2009 (as amended), to the extent required to ensure the efficient use of radio frequencies. Some classes of spectrum use have been exempted from the requirement to obtain a radio frequency licence, eg, short-range devices.
Prior to the 2012 auction, and with the exception of the award of the first mobile telephony licence, the award of all mobile telephony licences had been made by way of comparative evaluation processes. ComReg indicated in its Spectrum Management Strategy Statement 2011–2013 (ComReg Document No. 11/89) that it does not favour any specific approach for awarding spectrum rights, but that it has found it beneficial to use auctions as an award mechanism for certain spectrum bands where demand exceeds supply and the number of licences to be awarded is limited. ComReg stated that auctions have proved a quick, fair and transparent method for assigning frequencies and are, as a result, the preferred assignment method where the demand for spectrum exceeds supply.
As noted above, after carrying out six consultations on the future of spectrum allocation, ComReg held an open auction for liberalised use of the entire spectrum in the 800MHz, 900MHz and 1,800MHz bands in 2012. Meteor, O2 and Vodafone were awarded lots in the 800MHz band, while all four operators (Meteor, O2, Vodafone and H3GI) were awarded lots in both the 900MHz and 1,800MHz bands. All four operators stated that they will be in a position to roll out 4G services in 2013, giving customers connection speeds roughly four times faster than existing 3G services. The auction raised almost €482 million in upfront fees with a further €373 million due in ongoing spectrum usage fees between 2013 and 2030.
In relation to spectrum allocations after the commencement of the new regulations (1 July 2011), under Regulation 17(2) of the Framework Regulations, ComReg must ensure that all types of technology used for ECS may be used in the radio frequency bands that are declared available for ECS in the radio frequency plan. This is subject to section 17(3), which provides that ComReg can provide for proportionate and non-discriminatory restrictions on use of the type of radio network or wireless access technology in certain circumstances, which is described further in question 21.
21 Radio spectrum
Is there a regulatory framework for the assignment of unused radio spectrum (refarming)? Do RF licences generally specify the permitted use of the licensed spectrum or can RF licences for some spectrum leave the permitted use unrestricted?
Under Regulation 17 of the Framework Regulations ComReg has responsibility for the effective management of radio frequencies for ECN and ECSs, and allocations of spectrum must be based on objective, transparent, non-discriminatory and proportionate criteria. Recent changes to the Irish regulatory framework which allow for spectrum refarming or liberalisation have been largely informed by the European Commission's Wireless Access Policy for Electronic Communication Services (WAPECS), which is an EU-level framework for the provision of electronic communications services within a set of frequency bands to be identified and agreed between EU member states. In these bands, it is proposed that a range of electronic communications networks and services could be offered on a technology and service-neutral basis, provided that certain technical requirements are met. The WAPECS approach is designed to move away from narrowly specifying particular uses for different spectrum.
Reflecting that recommendation, Regulation 17(5) of the Framework Regulations provides that ComReg shall ensure that all types of technology used for ECSs may be used in the radio frequency bands that are declared available for ECS in the Radio Frequency Plan. However, ComReg may, through licence conditions or otherwise, provide for proportionate and non discriminatory restrictions to the types of radio network or wireless access technology used for ECS where this is necessary to:
- avoid harmful interference;
- protect public health against electromagnetic fields;
- ensure technical quality of service;
- ensure maximisation of radio-frequency sharing;
- safeguard the efficient use of spectrum; or
- ensure the fulfilment of a general-interest objective as defined by or on behalf of the government or a minister of the government in accordance with Regulation 17(6) (which gives examples of general-interest objectives such as safety of life; promotion of social, regional or territorial cohesion; the avoidance of inefficient use of radio frequencies; or the promotion of cultural and linguistic diversity and media pluralism, for example, by the provision of radio and television broadcasting services.
As mentioned above, ComReg held an auction in respect of liberalised spectrum in the 800MHz, 900MHz and 1,800MHz bands in 2012. Licences were awarded on a liberalised, technology-neutral basis. In relation to spectrum allocations which occurred prior to 1 July 2011 and which remain valid for a period of over five years after that date, Regulation 18 of the Framework Regulations provides that holders of these rights can submit an application to ComReg for reassessment of their rights under Regulation 17.
Regulation 17(10) provides that ComReg may lay down rules to prevent 'spectrum hoarding', in particular by setting out strict deadlines for the effective exploitation of the rights of use by the holder of rights and by withdrawing the rights of use in cases of noncompliance with the deadlines. The Liberalised Use Licence Regulations provide that operators must comply with any rules to prevent spectrum hoarding laid down by ComReg under the Framework Regulations as a condition of their licence.
22 Spectrum trading
Is licensed RF spectrum tradable?
Article 9(3)(b) of the Framework Directive (as amended) provides that national regulatory authorities shall ensure that undertakings may transfer or lease individual rights to use radio frequencies. Regulation 19 of the Framework Regulations transposes this provision into Irish law and provides that ComReg shall ensure that undertakings may transfer or lease individual rights to use radio frequencies to other undertakings in accordance with article 9(3)(b) of the Framework Directive. Under Regulation 19(4) where an undertaking intends to transfer the right to use a radio frequencies it must notify ComReg of its intention to do so and ComReg must ensure that this notification is made public.
ComReg issued a consultation on spectrum trading on 11 December 2012, setting out a draft framework and guidelines for spectrum transfers (ComReg Document No. 12/76). A final decision on consultation and guidelines is likely to be published in early 2013.
The Liberalised Use Licence Regulations provide that the rights of use under the liberalised use licences are capable of being traded. Operators must notify ComReg of their intention to transfer rights of use, and may only effect transfers in accordance with procedures specified by ComReg. In advance of such procedures being put in place (ie, before the final decision on consultation), operators must not transfer rights of use without the prior consent of ComReg, which may not be unreasonably withheld.
23 Mobile virtual network operator (MVNO) and national roaming traffic
Are any mobile network operators expressly obliged to carry MVNO or national roaming traffic?
Only H3GI's 3G licence contains a condition in respect of MVNO access that requires H3GI, for so long as it holds its 3G licence, to negotiate an agreement with an MVNO within a reasonable period, if that MVNO requires H3GI to provide it with such access as may be reasonable to H3GI's 3G network. The first MVNO in the Irish market was Tesco Mobile, which launched in 2007 using O2's network. Other MVNOs currently operating in the Irish market at the time of publication are: postfone (using Vodafone's network), eMobile (using Eircom's/Meteor's network), 48 (using O2's network) and Blueface (using H3GI's network).
There are no express obligations on mobile network operators (MNOs) to carry national roaming traffic. It is up to individual operators to negotiate and agree the commercial terms for roaming.
On 14 February 2012 ComReg notified O2 and Lycamobile that it had opened an own-initiative investigation arising out of potential concerns it had in respect of a particular clause in a roaming agreement between the two parties that appeared to suggest an agreement between competitors not to compete or to share customers at a retail level, contrary to section 4 of the Competition Act and/or article 101 of the Treaty on the Functioning of the European Union (TFEU). Correspondence ensued between the parties and ComReg over the period March to August 2012 which ultimately resulted in the parties providing ComReg with a number of contractual and operational commitments, following which ComReg closed its investigation.
24 Mobile call termination
Does the originating calling party or the receiving party pay for the charges to terminate a call on mobile networks? Is call termination regulated, and, if so, how?
In Ireland, the originating calling party is responsible for charges to terminate a call on mobile networks. Previously, ComReg imposed access obligations, non-discrimination obligations, price control and transparency obligations on Vodafone, O2, Meteor and H3GI, the four MNOs in Ireland, with additional accounting separation and cost accounting obligations on Vodafone and O2.
On 21 November 2012 ComReg published Decision D11/12 which designated six operators with SMP in the market for wholesale voice call termination on individual mobile networks, namely H3GI, Vodafone, Meteor, O2, Tesco Mobile and Lycamobile. ComReg imposed access obligations, non-discrimination obligations, price control and transparency obligations on all six operators.
ComReg also published Decision D12/12 on the same date, which further specified the cost-orientation obligation imposed under ComReg Decision No. D11/12. The decision specified that call termination rates should be set in accordance with pure long-run incremental cost (LRIC) methodology by July 2014, and that prior to this rates would be benchmarked against other jurisdictions where the use of pure LRIC had been notified to the Commission. On 18 December 2012 Vodafone launched an appeal in the High Court against Decision D11/12 (insofar as it imposed a cost obligation) and against Decision D12/12 arguing, inter alia, that ComReg had failed to consider more proportionate cost-orientation obligations less intrusive of the interests of operators. Proceedings are ongoing at the time of writing.
To view the original article, please click here.
Published by Getting the Deal Through, 2013.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
