Originally plublished in Getting the Deal Through – Telecoms and Media 2012
Communications policy
1 Policy
Summarise the regulatory framework for the telecoms and media sector. What is the policymaking procedure? 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 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).
A number of changes have recently been 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).
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. A new bill amending the current legislation on media mergers is expected to be published in 2012. It is expected that this 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 contract, TV3. These 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 contracts in respect of various television programme services, for example, digital, satellite and cable-MMD content contracts.
A digital terrestrial television (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, suggesting that a more realistic time frame would be at or just before analogue switch off on 24 October 2012. The BAI has so far been unsuccessful in negotiating contracts for commercial DTT, and has stated that it will not be feasible to introduce commercial DTT in advance of the analogue switch-off. However, the BAI has noted that a competition may potentially be held in 2012 with a view to commercial DTT being operational in 2013.
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.
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. A new 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?
In July 2006, Eircom was designated as the universal service provider (USP) for a four-year period ending in June 2010. In June 2010, ComReg confirmed the re-designation of Eircom as the USP for a further two-year period (see below). The universal service obligation (USO) applies only to basic telecoms services and does not apply to Next Generation Access and VoIP.
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).
Following on from Eircom's designation as USP, 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 Com- Reg'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 accordance 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;
- 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.
In 2010, ComReg notified Eircom that it was not satisfied with the quality of service provided by Eircom in the provision of the USO. Eircom has subsequently committed itself to undertake a quality of service performance improvement programme. Implementation of the programme has been underpinned by Eircom by way of establishment of a €10 million performance bond. In the period July 2010 to June 2011 Eircom paid €115,000 to ComReg arising from its failure to achieve the relevant targets. ComReg has confirmed that no further action would be taken against Eircom in respect of that period, but reserved the right to take future action (ComReg Document No. 11/79, dated 2 November 2011). 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 the net 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, although Eircom has informed ComReg that it intends to submit an application for funding in respect of its USO for 2009/2010. The deadline for its application has now been pushed back to 31 May 2012, and ComReg intends to publish its determination within eight months of the application. Eircom's application for funding for 2010/2011 has also been extended to 31 March 2013.
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 proposes to issue a draft decision on a USO fund in the first quarter of 2012, with a view to publishing a final decision at the end of the second quarter of 2012.
10 Operator exclusivity and limits on licence numbers
Are there any services granted exclusively to one operator or for which there are only a limited number of licences? If so, how long do such entitlements 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, there are currently only four owners of 3G spectrum in Ireland: Meteor, O2, Vodafone and H3GI (see question 21 on the upcoming spectrum 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, structural separation could potentially be imposed as a remedy in cases entailing an abuse of dominance contrary to section 5 of the Competition Act 2002 (as amended).
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, non-discrimination, 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 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 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 & 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.
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 Wire less Telegraphy (Interim GSM Mobile Telephony Licence) Regulations 2011. These interim licences will expire on 31 January 2013. 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.
ComReg is proposing to hold an open auction for the entire spectrum in the 800MHz, 900MHz and 1800MHz bands on a liberalised basis at some point in 2012. To accommodate the current pattern of licence assignments, spectrum will be 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 21.
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