ECAP abolition ‘could hurt smaller telcos’

22 Jun 2007

A barrister with prominent law firm Matheson Ormsby Prentice European Commission Competition Group has lamented the decision to abolish the Electronic Communications Appeal Process (ECAP).

The Department of Communications, Marine and Natural Resources signed an order on 12 June abolishing the ECAP, which was originally provided for as part of the Irish regulatory framework for electronic communications in 2003.

The ECAP was set up as a means of speeding up the appeals process that followed decisions by the Commission for Communications Regulation (ComReg) and preventing lengthy and expensive High Court appeals.

However, the proceedings didn’t go as quickly as envisaged. One of the landmark decisions of the ECAP was to force ComReg to abolish an order directing existing mobile operators to host mobile virtual network operators (MVNOs) on their networks.

However, with the advent of the Communications Regulation (Amendment) Act that grants vital powers akin to those of the Competition Authority to enable ComReg to police the telecoms market, ECAP was seen as no longer necessary.

The telecoms regulator now has the long demanded powers to threaten errant telecoms operators with fines of up to 10pc of their turnover.

“The decision was made in the issuing of the new regulations and the feeling was the department wasn’t happy with ECAP,” said barrister Helen Martin, who specialises in the telecoms sector. “Our feeling is that there should have been wider consultation before abolishing it.”

As a result of the abolition of ECAP, future appeals will have to go through the High Court.

“The benefit of ECAP compared to the High Court was that it was made up of a panel of experts. If you needed to appeal on a specific technology issue, a member of that panel might be an economist or technologist with knowledge of the area.

“It was also run very informally compared with courts and the idea was to make it more accessible for parties looking to appeal.”

Martin said that smaller telecoms companies could be the losers in the absence of ECAP. “The High Court is not as accessible for smaller operators as it is for larger players.”

Martin admitted that there were aspects of ECAP that needed to be amended. One of the problems that stymied ECAP’s progress, she said, was that each appeals panel had to be set up by the Minister and after notifying the Minister it could take at least two months before a panel was set up.

“This certainly affected timelines and I can understand how it could be felt that ECAP hadn’t led to shortened proceedings but still I feel it could have been given more time,” Martin said.

By John Kennedy