In a landmark ruling, the Electronic Communications Appeals Panel (ECAP) has found in favour of 3G network operator 3 Ireland and against the Commission for Communications Regulation (ComReg) in a dispute over the mobile operator’s level of market dominance.
The decision reverses the significant market power (SMP) designation made by ComReg against 3 Ireland on 29 July 2004. The decision is believed to be the first occasion on which a telecoms operator has successfully appealed against a SMP designation by a national regulatory authority.
In its decision, the ECAP stated: “The onus is on the regulator when carrying out its market analysis to establish whether the appellant [3 Ireland] has significant market power. This means examining fully all the constituent elements … all the relevant factors … this was not done.”
Commenting, Bob Fuller, 3 Ireland’s chief executive officer, said: “We welcome the ruling that highlights the need for thoroughness and clarity in regulatory decision making. Specifically, it emphasises the importance of a comprehensive economic analysis in looking at market power issues. This decision will allow 3 Ireland to move on and concentrate its efforts on rolling out its services in Ireland to the considerable benefit of Irish consumers.”
3 Ireland spokesperson Graeme Slattery added: “We didn’t believe we had SMP as a new entrant. In order to invest in new technology we wanted to improve our legal certainty and make sure we weren’t going to be excessively regulated.”
The ECAP was set up by former Communications Minister Dermot Ahern TD to adjudicate on telecoms disputes. It offers aggrieved parties a forum for appealing decisions made by ComReg, without affecting their right to take subsequent legal action, if they so decide.
The body is currently considering appeals brought by O2 and Vodafone against the dual-market dominance designation by ComReg. It is also due to hear two appeals from Eircom. The first — concerning a leased-line market direction from ComReg — is due to be heard this Friday. The second appeal is over a review into wholesale broadband access. Eircom recently dropped a third appeal against ComReg’s local loop enforcement direction after the regulator decided to withdraw its enforcement order aimed at forcing Eircom to open up its local network to other operators.
By Brian Skelly
