EU comms directives passed into law


24 Jul 2003

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Four EU directives that will shape the Irish electronic communications network and services sector were signed into law this afternoon by the Minister for Communications, Marine and Natural Resources, Dermot Ahern TD.

The new EU regulatory package is designed to bring current community legislation on electronic communications into line with the far-reaching changes, including technological convergence, taking place in the telecommunications, media and IT sectors.

The purpose of the legislation is to strengthen competition in the electronic communications markets throughout the EU while ensuring that basic services are available to all users at an affordable price and that the rights of consumers continue to be protected. The legislation also aims to simplify and clarify the current complex regulatory framework by reducing the number of specific legal measures. It is intended to provide a lighter regulatory touch in cases where markets have become more competitive.

Minister Ahern said: “I am particularly pleased that in addition to the new measues to strengthen competion in the market for both the consumer and the industry, the new regulations will continue to provide, and in some cases strengthen, the basic services for those with special needs and the economically and geographically disadvanted, so that they are not prevented from accessing or using the publicly available telephone service.”

The regulations had been the subject of a public consultation process initiated by the department last December.

The main features of the regulations are as follows:
* Markets assessed by ComReg as being competitive will not be subject to market power regulation.
* Operators designated as having significant market power in markets identified as being uncompetitive will be designated by the Commission for Communications Regulation (ComReg).
* Obligations imposed on these operators may include regulatory controls in relation to prices, separate accounting for specified activities, requirements to meet reasonable requests for access to facilities and obligations of non-discrimination and transparency.
* Operators offering services to the public will be free to commence the provision of services, without individual licensing, provided they notify ComReg in advance. ComReg will establish a register of authorised undertakings. Operators will be required to comply with specified conditions laid down by ComReg.
* Radio spectrum licensing procedures are laid down to ensure transparency and objectivity in the licensing process.
* Universal service obligations are specified. ComReg will designate one or more operators to ensure the provision of the services covered by the universal service obligation. The designated operator will be required to ensure that the services concerned are affordable and this will be supervised by ComReg.
* Full mobile number portability is mandated. This enables consumers to switch mobile operators at no charge, while retaining their full number.
* Consumer protection measures are specified, including clear information on charges for services. ComReg is to ensure that simple out-of-court dispute resolution procedures are available to consumers who have a grievance with an operator.
* Provisions for enforcement of regulatory decisions are specified. Where an operator is in breach of its obligations, ComReg will be able to seek an order from the High Court to pay a financial penalty proportionate to the gravity of the breach.
* Provision is made to handle appeals against regulatory decisions. These appeals will be heard by appeal panels, established by the Minister.

Regarding appeals against decisions of ComReg:
* The regulations provide for the establishment of three-person Appeal Panels to hear and decide on appeals against decisions of ComReg. Currently, appeals against decisions by ComReg are heard in the courts. The new approach is expected to enable appeals to be dealt with quicker and cheaper than if appeals were to continue to be handled by the courts. The members of the appeal panels will be appointed by the minister. The membership will include a practising barrister or solicitor with a minimum of seven years’ experience, as well as persons with commercial, technical, regulatory or financial experience. The minister will shortly identify a number of persons with appropriate experience who would be agreeable to serve as members of an appeal panel and, in the event of an appeal against a decision of ComReg being made, will constitute a three-person panel from among those persons to hear and determine the appeal.

Regarding the regulation of broadcasting transmission:
* The regulation of content is specifically excluded from the scope of the directives and thus the transposing regulations do not result in providers of television services being subject to regulation on broadcasting content in this State.
* In the context of the transposition into Irish law of the European regulatory package, the extent to which the package applies to other aspects of the provision of television services in the State by satellite as well as other platforms arises. Such aspects include access to facilities, quality of service and consumer protection.
* The minister will bring forward legislative proposals later this autumn to ensure a level playing field among television transmission operators to the maximum extent possible in relation to these issues.

Regarding enforcement of ComReg decisions:
* The maximum penalty that may be imposed for a breach of an obligation under the European Communities Acts is currently €3,000. The minister acknowledges that a maximum fine of €3,000, in itself, would, in many situations, be an insufficient enforcement power. Therefore, a new and innovative provision has been inserted into the regulations which is designed to ensure the enforcement of regulatory obligations in a proportionate way. The regulations enable the regulator to propose to the High Court an appropriate financial penalty in light of non-compliance and the court will be guided by this and other stated factors in their decision on what sum (if any) to award to the regulator. There is no specific limit to the penalty to be imposed which could be a substantial amount in line with the gravity of the non-compliance.
* The minister is satisfied that this measure has the potential to ensure substantial compliance with regulatory obligations. In addition, the minister will examine, in conjunction with the Office of the Attorney General, the creation of indictable offences for breaches of regulatory obligations and may include appropriate provisions in the legislative proposals for the broadcasting sector referred to above.

Data Protection Regulations:
The final element of the European regulatory package is a directive on data protection and privacy in the electronic communications sector. This must be transposed into national law by 31 October 2003. Draft regulations for this purpose are being prepared and the minister is expected to announce a public consultation on these regulations shortly.

The texts of each of the Regulations and the corresponding Directives as well as a report on the public consultation process are available from the Department of Communications, Marine and Natural Resources website at www.dcmnr.ie/communications.

By Lisa Deeney