S.I. No. 328/1994:

EUROPEAN COMMUNITIES (APPLICATION OF OPEN NETWORK PROVISION TO LEASED LINES) REGULATIONS, 1994.

EUROPEAN COMMUNITIES (APPLICATION OF OPEN NETWORK PROVISION TO LEASED LINES) REGULATIONS, 1994.

I, BRIAN COWEN, Minister for Transport, Energy and Communications, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 92/44/EEC of 5 June 1992⁽¹⁾ as amended by Commission Decision 94/439/EC⁽²⁾ do hereby make the following Regulations:

1. These Regulations may be cited as the European Communities (application of open network provision to leased lines) Regulations, 1994.

2. (1) In these Regulations, except where the context otherwise requires:--

"the Commission" means the Commission of the European Communities;

"the Company" means Bord Telecom Éireann;

"the directive" means Council Directive 92/44/EEC of 5 June 1992⁽¹⁾ as amended by Commission Decision 94/439/EC on amendment of Annex II of Council Directive 92/44/EEC⁽²⁾;

⁽¹⁾O.J. No. L165, 19 June 1992.

⁽²⁾O.J. No. L181, 15 July 1994.

"leased lines" means the telecommunications facilities provided in the context of the establishment, development and operation of the public telecommunications network, which provide for transparent transmission capacity between network termination points, and which do not include on-demand switching (switching functions which the user can control as part of the leased line provision);

"National Regulatory Authority" means the Minister for Transport, Energy and Communications;

"offerings" means the type or class of leased lines with specified technical characteristics as supplied by the Company from time to time.

(2) A word or expression that is used in these Regulations and is also used in the Directive or in Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision⁽³⁾ unless the context otherwise requires shall have in these Regulations the same meaning that it has in the Directive and in Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision.

⁽³⁾O.J. No. L192, 24 July 1990.

3. (1) The National Regulatory Authority shall publish in an appropriate manner (and include a reference in the Iris Oifigiúil) details of licensing and declaration requirements and conditions for the attachment of terminal equipment, in respect of users of leased lines, as outlined in Annex I to these Regulations.

(2) The Company shall provide that information in respect of the technical characteristics, tariffs and supply and usage conditions of leased lines are published in accordance with the presentation given in Annex II to these Regulations and in the manner provided for in section 90 of the Postal and Telecommunications Services Act, 1983 and shall insert a notice of such publication in each of the national newspapers.

(3) The Company shall publish information concerning changes in existing offerings in the manner provided for in paragraph (2) of this Regulation and no later than two months before the changes are implemented, unless the National Regulatory Authority agrees otherwise.

(4) The Company shall publish information concerning new types of leased lines in the manner provided for in paragraph (2) of this Regulation and no later than two months before they are first made available.

(5) The Company shall publish in the Iris Oifigiúil notice of the publication of the information required by this Regulation.

4. (1) The Company shall include in any information published pursuant to Regulation 3 of these Regulations information concerning:--

( a ) ordering procedures,

( b ) details of the typical delivery period, being the period counted from the date when the user has made a firm request for a leased line in which 80% of all leased lines of the same type have been put through to customers,

( c ) contractual periods, to include the period generally foreseen for the contract and the minimum contractual period which the user is obliged to accept,

( d ) the typical repair time which shall be the typical time taken to re-connect 80% of lines following notification of failure in the case of existing types of leased lines, and

( e ) any procedure for refunds.

(2) For the purpose of the period referred to in paragraph (1) (b) of this Regulation, the period shall be established, in the case of existing types of leased lines, on the basis of the actual delivery periods of leased lines during a recent time interval of reasonable duration. The calculation shall not include cases where the late delivery periods were requested by users.

(3) In the case of new types of leased lines the period referred to in paragraph (1) (b) of this Regulation shall be a target delivery period.

(4) In the case of new types of leased lines the period referred to in paragraph (1) (d) of this Regulation shall be a target repair time.

(5) Where different classes of quality of repair are offered for the same type of leased lines the different typical repair times shall be published.

5. (1) The Company shall continue the provision of existing offerings for a reasonable period of time.

(2) The Company shall not withdraw a particular class or type of leased line until it consults the users affected.

(3) Without prejudice to other rights provided for in law, users shall have the right of appeal to the National Regulatory Authority in the event of a dispute concerning a termination date decided upon as part of a decision by the Company to withdraw a particular type of leased lines.

6. (1) ( a ) Without prejudice to the European Communities (Telecommunications Services) Regulations, 1992 (S.I. 45 of 1992), access to and usage of leased lines may be restricted only to ensure compliance with the essential requirements, as specified in Article 6.3 of the Directive, compatible with all relevant legal enactments.

( b ) With regard to the maintenance of network integrity (one of the essential requirements) the Company may restrict access to or use of leased lines only when a user's terminal equipment is of a type which has not been approved or does not stand approved for connection to the public telecommunications network under the provisions of Council Directive 9½63/EEC on the approximation of the laws of the member states concerning telecommunications terminal equipment including the mutual recognition of their conformity⁽⁴⁾ and may continue the interruption until the equipment has been disconnected from the network or stands approved.

⁽⁴⁾O.J. No. L128, 23 May 1991.

(2) No technical restrictions shall be introduced or maintained for the interconnection of leased lines among each other nor for the interconnection of leased lines and the public telecommunications network.

(3) When access to and use of leased lines are restricted, on the basis of all or any of the essential requirements, specified in Article 6.3 of the Directive, the reasons therefor shall be notified to the National Regulatory Authority and the user concerned.

(4) When the Company interrupts service on the basis of paragraph (1) (b) of this Regulation it shall immediately inform the user of the interruption and the reasons therefor.

7. (1) The Company shall make available the minimum set of leased lines types with the associated technical characteristics as specified in Annex III to these Regulations.

(2) The provision of other leased lines beyond those specified in Annex III of these Regulations shall not impede the provision of this minimum set of leased lines.

8. (1) The National Regulatory Authority shall establish procedures whereby, in the shortest practicable time period, it decides on a case by case basis in disputes between the Company and users in matters relating to any refusal to provide leased lines, or the interruption of the provision of leased lines or any reduction of the availability of leased lines features for reasons of alleged failure to comply with the usage conditions.

(2) The procedures established by the National Regulatory Authority for the purposes of paragraph (1) of this Regulation shall at a minimum provide for;--

( a ) a transparent decision making process in which due respect is given to the rights of the parties concerned,

( b ) all parties to the dispute having the opportunity to state their case, and

( c ) the notification of any decision to the parties concerned within one week of its making.

(3) Nothing in this Regulation shall prohibit the National Regulatory Authority from establishing or approving, a priori, specific measures in the case of defined infringements of usage conditions.

(4) A user who has been or may be injured by an infringement of any part of these Regulations shall have the right to make written submissions on the matter to the National Regulatory Authority. In the event of agreement not being reached the aggrieved party may notify the matter in writing to the National Regulatory Authority and the Commission of the European Communities. The party invoking this procedure shall bear its own costs.

(5) Nothing in this Regulation shall prejudice the right of the parties concerned to apply to the Courts under Irish law.

(6) When the Company uses leased lines for the provision of services not covered by special or exclusive rights or not covered by both special and exclusive rights, the same types of leased lines shall be provided to other users on request and under equal conditions.

(7) The Company shall adhere to the principle of non-discrimination when it uses the public telecommunications network for providing services which are or may be provided by other service providers.

(8) The National Regulatory Authority shall monitor the Company's compliance with paragraph (7) of this Regulation.

(9) Where, in response to a particular request, the Company considers it unreasonable to provide leased lines under its published tariffs and supply conditions, it must seek the agreement of the National Regulatory Authority to vary those conditions in that case.

(10) A decision referred to in paragraph (2) of this Regulation shall not be enforced before its notification.

9. (1) Subject to paragraph (2) of this Regulation, the Company shall set tariffs for leased lines which follow basic principles of cost orientation and transparency and which are independent of the type of application to which the users of the leased lines apply them.

(2) Tariffs for leased lines shall normally contain the following elements;--

( a ) an initial connection charge,

and

( b ) a periodic rental charge, i.e., a flat-rate element.

(3) When tariff elements other than those provided for in paragraph (2) of this Regulation are applied these must be transparent and based on objective criteria.

(4) ( a ) Tariffs for leased lines shall apply to the facilities provided between network termination points at which the user has access to the leased lines.

( b ) Where a leased line is provided by more than one telecommunications organisation, half-circuit tariffs, i.e. from one network termination point to a hypothetical mid-circuit point, can be applied.

(5) The Company shall operate and maintain a cost accounting system suitable for the implementation of paragraphs (1), (2), (3) and (4) of this Regulation and which conforms to Article 10.2 of the Directive.

(6) Any changes to the Company's cost accounting system may be implemented only following approval by the National Regulatory Authority after notification by it to the Commission.

(7) The Company shall provide to the National Regulatory Authority such information as it requests for the purposes of complying with Article 10.3 of the Directive.

(8) The National Regulatory Authority shall provide to the Commission the information required by Article 10.3 of the Directive on request.

10. (1) The Company shall furnish to the National Regulatory Authority not later than 31 March of each year statistical reports for the proceding calendar year showing delivery times and repair times as specified in Regulation 4 of these Regulations.

(2) The National Regulatory Authority shall provide to the Commission the reports required under Article 11.2 of the Directive.

(3) In accordance with Article 11 of the Directive, the National Regulatory Authority shall keep available and submit to the Commission on request data on cases where access to or use of leased lines has been restricted.

GIVEN under my Official Seal, this 2nd day of November, 1994.

BRIAN COWEN,

Minister for Transport, Energy

and Communications.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive 92/44/EEC.

ANNEX I

Presentation of the information to be published in accordance with Regulation 3 (1).

Licensing requirements:

The information on licensing requirements, licensing procedures and/or licensing conditions shall provide a complete overview of all factors which have an impact on the usage conditions set out for leased lines. It shall include the following information, where applicable:

1. a clear description of service categories for which the licensing procedures have to be followed and for which the licensing conditions have to be met by the user of the leased lines or by his customers;

2. information on the character of the licensing conditions, in particular whether such licence is of a general nature which does not require individual registration and/or authorisation, or whether the licensing conditions require registration and/or authorisation on an individual basis;

3. a clear indication of the validity in time of the licence, including a review date, where applicable;

4. the conditions resulting from the application of the essential requirements in conformity with Regulation 6;

5. other obligations which may be imposed on the users of leased lines in accordance with Directive 90/388/EEC as regards packet-switched or circuit-switched data services, requiring adherence to conditions of permanence, availability, or quality of service;

6. a clear reference to conditions aiming at the enforcement of the prohibition to provide services for which exclusive and/or special rights have been maintained in conformity with Community law;

7. a list referring to all documents containing licensing conditions imposed on the users of leased lines when using lines for the provision of services to others.

Conditions for the attachment of terminal equipment

The information on the attachment conditions shall include a complete overview of the requirements which terminal equipment to be attached to the relevant leased line has to fulfil in accordance with Directive 9½63/EEC.

ANNEX II

Presentation of the information to be published in accordance with Regulation 3 (2).

A. Technical characteristics:

The technical characteristics include the physical and electrical characteristics as well as the detailed technical and performance specifications which apply at the network termination point. Clear reference shall be made to the standards implemented.

B. Tariffs:

The tariffs include the initial connection charges, the periodic rental charges, and other charges. Where tariffs are differentiated, e.g. for reasons of different levels of quality of service, or the number of leased lines provided to a user (bulk provision), this must be indicated.

C. Supply conditions:

The supply conditions include at least the elements defined in Regulation 4 of these Regulations.

ANNEX III

Definition of a minimum set of leased lines with harmonized technical characteristics, in accordance with Regulation 7.1

For the types of leased lines listed above, the specifications referred to also define the network termination points (NTPs), in accordance with the definition given in Article 2 of Directive 90/387/EEC.