STATUTORY INSTRUMENTS.

S.I. No. 71 of 1999.

EUROPEAN COMMUNITIES (VOICE TELEPHONY AND UNIVERSAL SERVICE) REGULATIONS, 1999.

S.I. No. 71 of 1999.

EUROPEAN COMMUNITIES (VOICE TELEPHONY AND UNIVERSAL SERVICE) REGULATIONS, 1999.

I, Mary O'Rourke, Minister for Public Enterprise, 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 Directive No. 97/33/EC¹ of 30 June 1997 of the European Parliament and of the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) and Directive No. 98/10/EC² of the European Parliament and of the Council on the application of Open Network Provision (ONP) to Voice Telephony and on Universal Service for Telecommunications in a Competitive Environment, hereby make the following regulations--

Citation and commencement.

1. (1) These Regulations may be cited as the European Communities (Voice Telephony and Universal Service) Regulations, 1999.

(2) These Regulations shall come into operation on the fifteenth day of April, 1999.

Interpretation.

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

“Act of 1983” means the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983) ;

“Bord Telecom Éireann” includes any of its assigns or successors in title;

“Commission” means the Commission of the European Communities;

“Directive” means Directive No. 98/10/EC of the European Parliament and of the Council of 26 February 1998;

“Director” means the Director of Telecommunications Regulation;

“fixed operator” means a person who is authorised pursuant to section 111(2) of the Act of 1983 to provide fixed public telephone services, fixed public telephone networks or both such services and networks;

“Member State” means a Member State of the European Union;

“Minister” means the Minister for Public Enterprise;

“mobile operator” means a person who is authorised pursuant to section 111(2) of the Act of 1983 to provide public mobile telephone networks, public mobile telephone services or both such networks and services;

“organisation with significant market power” means a fixed operator which, for the purpose of these Regulations, has been designated by the Director as having signigicant market power in accordance with Regulation 4;

“universal service” means making available, in accordance with these Regulations, to all users within the geographic area or areas of the State designated by the Director under paragraph (2) of Regulation 3, the services to which the designation under paragraph (2) or (3) of that Regulation refers, which shall be one or more of the services referred to in paragraph (7) of that Regulation, at an affordable price, as determined in accordance with Regulation 8.

(2) A word or expression that is used in these Regulations and is also used in the Directive has exept where the context otherwise requires, the same meaning in these Regulations that it has in the Directive.

(3) In these Regulations, unless otherwise indicated--

(a) a reference to a regulation or a Schedule is a reference to a regulation of or a Schedule to these Regulations,

(b) a reference to a paragraph or a subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs,

(c) a reference to an Article or an Annex is a reference to an Article or Annex of the Directive, and

(d) a reference to an enactment or Regulation shall be construed as a reference to the enactment or Regulation as amended or extended by or under any subsequent enactment or Regulation.

Universal service obligation.

3. (1) Section 14 of the Act of 1983 shall be revoked 30 days after the date on which these Regulations come into operation.

(2) Within 30 days of the coming into operation of these Regulations, the Director shall designate--

(a) one or more than one fixed operator as having an obligation to provide universal service or any element thereof,

(b) the geographic area or areas of the State, which may include the whole of the State or any part thereof, within which the universal service obligation or any element thereof shall apply, and

(c) the services to which the designation refers which shall be one or more of the services referred to in paragraph (7).

(3) Notwithstanding paragraph (2)(a), the Director may designate any person to provide a universal service in respect of the services referred to in Regulations 10(2) and 11.

(4) The Director may designate one or more additional fixed operators or other persons, as the case may be, as having an obligation to provide universal service at any time after the expiration of the period of 30 days specified in paragraph (2).

(5) Without prejudice to Regulation 11(3), the Director may withdraw any designation made under paragraph (2) or (3) provided that, prior to the effective date of any such withdrawal, the Director has designated at least one other fixed operator or other person, as the case may be, under this Regulation in respect of the service concerned in the geographic area or areas of the State affected by such withdrawal.

(6) (a) In designating a fixed operator or other person, as the case may be, under paragraph (2) or (3), the Director shall take into account the ability of the designated fixed operator or other person concerned to satisfy all or part of the universal service obligation.

(b) The Director may also take into consideration the willingness of a fixed operator or other person to provide all or part of the universal service obligation and any other criteria which the Director considers relevant.

(7) A service to which this Regulation refers is a service referred to in Regulation 9, 10(2) or 11, taking into account any obligations imposed on the person under Regulations 8 and 12.

(8) (a) Prior to the Director making any designation under paragraph (2) or (3), Bord Telecom Éireann shall be obliged to provide universal service pursuant to section 14 of the Act of 1983.

(b) Nothing in this paragraph shall be construed as limiting the Director's authority to designate Bord Telecom Éireann or any other fixed operator or other person as having a universal service obligation pursuant to paragraph (2) or (3).

(9) Where the Director makes or withdraws a designation under this Regulation a notice thereof shall be published in the Iris Oifigiúil as soon as practicable thereafter.

Designation or organisations with significant market power.

4. (1) For the purposes of these Regulations and subject to paragraph (3), a fixed operator shall be designated by the Director from time to time as having significant market power where it has a share of 25 per cent or more of the relevant market within the geographical area in which the fixed operator is authorised to operate.

(2) The Director shall determine how market share referred to in paragraph (1) is to be measured for the purposes of these Regulations.

(3) The Director may determine--

(a) that a fixed operator with a market share of less than 25 per cent in the particular market has significant market power for the purposes of these Regulations, or

(b) that a fixed operator having a market share of 25 per cent or more in the particular market does not have significant market power.

(4) In making a determination under paragraph (3), the Director shall have regard to--

(a) the ability of the fixed operator to influence market conditions,

(b) the turnover of the fixed operator relative to the size of the particular telecommunications market,

(c) the control exercised or capable of being exercised by the fixed operator concerned over the means of access to users,

(d) the access of the fixed operator to financial resources, and

(e) the experience of the fixed operator in providing the products or services in the particular market.

(5) The Director shall, as soon as practicable after the designation by the Director of a fixed operator as having significant market power for the purposes of these Regulations, notify the Commission of the name of each such fixed operator and, in the event of any change of designation, notify the Commission of such change as soon practicable thereafter.

(6) A list of the names of the fixed operators which have been notified by the Director to the Commission under paragraph (5) shall be made available on request being made to the Director to any interested party during normal working hours free of charge.

Financing schemes

5. (1) Where the Director designates a fixed operator or other person (in this Regulation referred to as a “designated organisation”) as having an obligation to provide universal service pursuant to Regulation 3, such designated organisation may receive funding, in accordance with this Regulation, for the net cost of meeting its obligation to provide universal service, taking into account any obligations on such organisation under Regulations 8 and 12.

(2) (a) Where Bord Telecom Éireann seeks to receive funding for the net cost of meeting its obligation to provide universal service pursuant to section 14 of the Act of 1983, it may submit to the Director a written request for such funding, in respect of a period commencing not earlier than the first day of December, 1998, and ending on the date upon which a designation by the Director under Regulation 3(2) is made, stating the estimated net cost of its universal service obligation in such period calculated in accordance with Annex III to Directive No. 97/33/EC and accompanied by such supporting information as may be reasonably required by the Director to enable a determination under paragraph (4) to be made.

(b) For the purposes of subparagraph (a), references to a “designated organisation” in this Regulation shall be deemed to include reference to Bord Telecom Éireann.

(3) (a) Where a designated organisation seeks to receive funding pursuant to this Regulation, it shall submit to the Director a written request for such funding--

(i) in respect of the year commencing on the day on which the designation takes effect, within 30 days of receipt of written notice of the Director's decision to designate the designated organisation as having a universal service obligation, or

(ii) in respect of each subsequent year, by such date as may be specified by the Director,

and stating the estimated net cost of this universal service obligation in the year in question calculated in accordance with Annex III to Directive No. 97/33/EC and accompanied by such supporting information as may be reasonably required by the Director to enable a determination under paragraph (4), to be made.

(b) The calculation referred to in subparagraph (a) may be based on such period as may be specified by the Director.

(4) The Director shall determine, in accordance with this Regulation, as soon as practicable after receipt of a request, supported by the required information, under paragraph (2) or (3), as the case may be, whether--

(a) the universal service obligation represents a net cost to the designated organisation, and

(b) in the opinion of the Director, the net cost represents an unfair burden on such organisation.

(5) In making his or her determination under paragraph (4), the Director shall take into account--

(a) the information provided by the designated organisation in the request for funding, including the calculation of net cost,

(b) any audit conducted under paragraph (7),

(c) any response received within any time period specified by the Director pursuant to any relevant public consultation conducted by the Director,

(d) any obligations on the designated organisations under Regulations 8 and 12, and

(e) any other information which the Director considers relevant.

(6) The Director shall, subject to the protection of the confidentiality of any information which he or she considers confidential, make available to any person his or her determination under paragraph (4) and the calculations and conclusions of any audit conducted under paragraph (7) on a written request being made to the Director.

(7) In making the determination under paragraph (4) or prior to making any adjustment under paragraph (13), the Director may audit the calculation referred to in paragraph (2) or (3) or the statement referred to in paragraph (13) or appoint a person to complete such an audit.

(8) Where the Director makes a determination under paragraph (4) that the obligation to provide universal service represents a net cost to the designated organisation and that in the opinion of the Director the net cost represents an unfair burden on such organisation, the Director shall establish a mechanism for sharing the net cost of universal service.

(9) The mechanism referred to in paragraph (8) may take the form of--

(a) a fund administered by or on behalf of the Director to which a fixed operator and any person specified under Regulation 7 shall contribute and from which the designated organisation shall be reimbursed in respect of the net cost associated with meeting its obligation to provide universal service, or

(b) a supplementary charge added to the charge for interconnection to the public telecommunications network or public telecommunications services of the designated organisation.

(10) Where the Director establishes a mechanism referred to in paragraph (8) in respect of a particular period or year, a designated organisation shall be entitled to compensation, determined by the Director, in respect of the net cost of providing its universal service obligation determined in accordance with this Regulation in that period or year.

(11) The Director shall notify each fixed operator and other person, if any, referred to in paragraph (9)(a), of its obligation to contribute to the cost of universal service including the amount, manner and timing of payments to be made and, in this regard, shall take account of the principles of transparency, non-discrimination and proportionality imposed by Directive No. 97/33/EC.

(12) The details of the mechanism referred to in paragraph (8) and the principles for cost sharing shall, subject to the protection of the confidentiality of any information which the Director considers confidential, be made available by the Director to any person on request.

(13) As soon as may be after the end of the year referred to in paragraph (3), the designated organisation shall submit to the Director a statement of the actual net cost of its universal service obligation for the year concerned and the Director shall, as necessary, adjust the obligation referred to in paragraph (11).

(14) Where the Director establishes a mechanism under paragraph (8) the Director shall, on or before the first day of November in each calendar year, publish an annual report giving the calculated net cost of universal service obligations and identifying the contributions made by all the parties concerned and the payments made to all designated organisations.

(15) A fixed operator or other person which has been notified of its obligation to contribute an amount specified by the Director shall pay that amount in the time and manner specified by the Director and where that fixed operator or person fails to pay the amount in the time and manner specified it shall be guilty of an offence.

(16) Any amount payable to the Director in respect of a fund established under this Regulation that remains unpaid shall be recovered by the Director as a simple contract debt in any court of competent jurisdiction and any such amount shall include interest at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, on the amount or part thereof remaining unpaid in respect of the period between the date when such amount or part thereof fell due and the date of payment of such amount or part.

(17) In this Regulation “net cost” means the cost, if any, having regard to the direct and indirect costs and revenues associated with the provision of universal service including, in particular, any market benefits accruing to a person arising from its obligation to provide universal service.

Revocation of Regulation 6 of European Communities (Interconnection in Telecommunications) Regulations, 1998.

6. Regulation 6 of the European Communities (Interconnection in Telecommunications) Regulations, 1998 ( S.I. No. 15 of 1998 ) is hereby revoked.

Specification of persons by Director.

7. The Director may, having regard to the state of development of the telecommunications market and in accordance with the principles of non-discrimination and proportionality, specify a person in addition to a fixed operator as having an obligation pursuant to Regulation 5(11) to share in the cost of universal service, including a person licensed under section 111(3) of the Act of 1983 and any other person licensed under section 111(2) of that Act.

Availabliity and affordability of services.

8. (1) A person designated by the Director under Regulation 3 shall, without prejudice to any applicable order under section 7 of the Telecommunications (Miscellaneous Provisions) Act, 1996 ( No. 34 of 1996 ), ensure that tariffs for the services to which the designation refers are determined subject to the requirements specified in paragraph (2) and to any directions issued by the Director pursuant to paragraphs (4) or (5).

(2) The following requirements are specified for the purposes of paragraph (1)--

(a) that the affordability of the services to which the designation refers be maintained for users, particularly those in rural and high cost areas and vulnerable groups of users, such as the elderly, those with disabilities and those with special needs, and

(b) that except in so far as may be required for the purpose of (a), in relation to the services to which the designation refers, tariffs which are not in line with costs be progressively adjusted in order to achieve tariffs which are based on real costs.

(3) In carrying out his or her functions under section 7 of the Telecommunications (Miscellaneous Provisions) Act, 1996 ( No. 34 of 1996 ), the Director shall have regard to the requirements specified in paragraph (2).

(4) The Director may, taking into account views expressed to him or her pursuant to public consultations carried out in accordance with Regulation 26 and after consultation with the Minister, issue directions to a person designated by the Director under Regulation 3 for the purpose of satisfying the requirements specified in paragraph (2).

(5) The Director may, taking into account views expressed to him or her pursuant to further consultations of the types referred to in paragraph (4), amend or revoke a direction or issue further directions for the purpose of satisfying the requirements specified in paragraph (2).

(6) Where a person complies with directions issued by the Director under paragraphs (4) and (5), he or she shall be deemed to have satisfied the requirements of paragraph (2).

(7) The Director shall, subject to the protection of the confidentiality of any information which he or she considers confidential, make publicly available his or her conclusions on the consultations and any direction referred to in paragraphs (4) and (5).

(8) Any scheme designed to ensure affordability, including an order under section 7 of the Telecommunications (Miscellaneous Provisions) Act, 1996 ( No. 34 of 1996 ), shall follow the principles of transparency and non-discrimination.

(9) The Director shall publish annual reports on the evolution of tariffs for the services referred to in Regulation 3(7).

Provision of network connections and access to telephone services

9. (1) A fixed operator designated by the Director under Regulation 3 in respect of the services referred to in this Regulation shall ensure that, within the geographic area identified by the Director applicable to such fixed operator under Regulation 3, any request, in so far as the fixed operator considers it reasonable, by a person for connection to the fixed public telephone network at a fixed location and access to fixed public telephone services, is met.

(2) Where a fixed operator denies a request for connection and access referred to in paragraph (1), that operator shall inform the person concerned of his or her right to appeal the decision to the Director in accordance with Regulation 28 and any such appeal shall be resolved or conciliated in accordance with that Regulation.

(3) The connection referred to in paragraph (1) shall be capable of allowing users to make and receive national and international calls, enabling speech, facsimile and data communications.

(4) A fixed operator designated by the Director under Regulation 3 may satisfy its obligations under paragraph (1) using wire or, subject to the Wireless Telegraphy Acts 1926 to 1988, wireless technologies.

(5) The Director may issue directions to a fixed operator designated under Regulation 3 for the purposes of the services referred to in this Regulation which--

(a) determine the reasonableness of requests for connection to the fixed public telephone network and access to fixed public telephone services pursuant to paragraph (1).

(b) set out the terms upon which such connection and access shall be provided, and

(c) require a fixed operator designated under Regulation 3 to provide access where a refusal of access would be unreasonable.

Directory services.

10. (1) A person licensed under section 111(2) of the Act of 1983 shall ensure that his or her subscribers have the right to have an entry in publicly available subscriber directories at no charge for such entry and the right to verify and, if necessary, correct or request the deletion of that entry.

(2) A person designated under Regulation 3 in respect of the services referred to in this Regulation shall--

(a) ensure that one more subscriber directories setting out all subscribers of public telecommunications networks, including those with fixed, mobile and personal numbers, and who have not refused to be included in such directories, are available to users of any such networks in a form approved of by the Director, whether printed or electronic, or both, and are updated at least once in each year, and

(b) keep a record of all subscribers in the State, including those with fixed, mobile and personal numbers, who have not refused to be included in that record, and allow access to any information contained in such record to any person requesting such information.

(3) A person licensed under section 111(2) of the Act of 1983 shall, subject to all statutory requirements relating to the protection of personal data and privacy, make available upon written request and in an agreed format on terms which are fair, cost oriented and non-discriminatory, the name, address and telephone number of each of its subscribers to each person designated by the Director under Regulation 3 as having an obligation to provide directory services for the purposes of paragraph (2).

(4) A person providing the services referred to in paragraph (2) shall respect the principle of non-discrimination in his or her treatment and presentation of subscriber information referred to in paragraph (2) in his or her possession or which he or she receives in accordance with paragraph (3).

(5) In this Regulation, “subscriber directories” means printed telephone directories that are produced for use by the public containing at a minimum an alphabetical listing of subscriber names, addresses and telephone numbers.

(6) This Regulation is subject to the law relating to the protection of personal data and privacy.

Public pay telephones.

11. (1) A person designated under Regulation 3 in respect of the service referred to in this Regulation shall, subject to paragraph (2), provide public pay telephones in sufficient numbers, taking into account the population density in the geographic area or areas designated by the Director under Regulation 3, to satisfy all reasonable needs for such services throughout such area or areas.

(2) (a) The Director may issue directions as are necessary to a person referred to in paragraph (1) for the purpose of determining the number of public pay telephones required under paragraph (1) to satisfy the reasonable needs for such services in any geographic area or areas of the State.

(b) When issuing directions referred to in subparagraph (a), the Director shall take into account the advice of appropriate public authorities and any other information the Director considers relevant.

(3) Subject to paragraph (4), where the Director makes a finding that there exists sufficient numbers of public pay telephones in any geographic area to satisfy the reasonable needs for such services in that area as determined in accordance with paragraph (2), taking into account the population density in such geographic area and the state of development of the telecommunications market in that area, the Director shall publish a notice in the Iris Oifigiúil stating that the obligation referred to in paragraph (1) shall not apply in that area or in a specified part of that area, as the case may be.

(4) (a) Where the Director makes a finding under paragraph (3) he or she shall at least once in each year conduct a review of that finding with respect to the current status of the availability of public pay telephones.

(b) Where the Director makes a finding in any subsequent year that the number or availability of public pay telephones is no longer sufficient to serve the reasonable needs for such services in that area, the Director may designate a person under Regulation 3 as having a universal service obligation with respect to public pay telephones in that area.

(5) A person providing public pay-telephones shall ensure that it is possible to make emergency calls from those public pay telephones using the single European emergency call number “112” and other national emergency numbers that may be specified by the Director, free of charge and without the necessity to use coins or cards.

(6) A person providing public pay telephones shall ensure that users of those telephones have access to a directory enquiry service referred to in Regulation 10.

Specific measures for disabled users and users with special social needs.

12. (1) The Director may, taking into account views expressed to him or her pursuant to public consultations carried out in accordance with Regulation 26 and any other consultations carried out by the Director, issue directions to a person designated under Regulation 3 for the purpose of ensuring equal access to and affordability of fixed public telephone services, including public pay telephone services and directory services, for disabled users and users with special social needs.

(2) Without prejudice to the generality of paragraph (1), directions issued by the Director may include--

(a) a requirement that public pay telephones have such features as may be specified by the Director to make public pay telephone services accessible to people with disabilities,

(b) a requirement that the information referred to in Regulation 15(1) be made available on request in a form that enables access to the information by users with disabilities, and

(c) a requirement that a basic level of itemised bills specified by the Director shall be available on request in a form that enables access to the information contained in such bills by users with disabilities.

Connection of terminal equipment and use of the network.

13. (1) A fixed operator shall use standard technical interfaces complying with European standards so as to ensure that all users provided with a connection to its fixed public telephone network can connect and use terminal equipment suitable for the connection provided in accordance with national and Community law.

(2) A person licensed under section 111(2) of the Act of 1983 shall ensure that all users of his or her telecommunications network or services, including users of mobile and personal communications services, can access--

(a) operator assistance services and directory enquiry services referred to in Regulation 10(2)(b), and

(b) emergency services, free of charge, using the dialling code “112” and any other dialling codes that may be specified by the Director.

Contracts.

14. (1) Where a person licensed under section 111(2) of the Act of 1983 provides access to the fixed public telephone or mobile telephony networks he or she shall provide such service in accordance with a written contract.

(2) A contract referred to in paragraph (1) shall specify the services covered and the terms and conditions thereof or shall make reference to publicly available terms and conditions, including--

(a) the supply time for initial connection,

(b) the types of maintenance service offered,

(c) the compensation or refund arrangements for subscribers which apply if the contracted service is not met including any applicable penalties,

(d) a summary of the method of initiating procedures for the settlement of disputes in accordance with Regulation 28,

(e) information on service quality levels, and

(f) the conditions referring to suspension or interruption of the service in case of non-payment by the subscriber consistent with Regulation 25.

(3) Without prejudice to the rights of a person under any other enactment, the Director may, on his or her own initiative or upon request by an organisation representing user or consumer interests, issue directions requiring the alteration of the conditions of contracts referred to in paragraph (1) and the conditions of any compensation or refund schemes used, in so far as they concern the provisions of these Regulations, in order to protect the rights of users and subscribers.

Publication of and access to information.

15. (1) A person licensed under section 111(2) of the Act of 1983 shall publish in accordance with paragraph (4) current and accurate information and any changes to that information in respect of its standard terms and conditions with regard to access to and use of the public telephone network and publicly available telephone services which shall include--

(a) tariffs for end-users,

(b) the contract period and, where applicable, any minimum contractual period, and

(c) any conditions for renewal of contracts.

(2) Within 60 days of the coming into operation of these Regulations, a fixed operator shall provide the Director, in such form and manner as may be specified by the Director, with details of its technical interface specifications for network access, as identified in Annex II, part 1.

(3) Changes in existing technical interface specifications and information on new technical interface specifications shall be communicated by a fixed operator to the Director in the same form and manner as is required under paragraph (2) at least 15 days in advance of implementation or such other period as may be specified by the Director.

(4) Subject to any other publication requirements that may be specified by the Director, a person referred to in paragraph (1) or (2) shall ensure that the information in relation to the matters specified in paragraph (1), (2) or (3), as the case may be, is made publicly available and, on request, in a form accessible to users with disabilities, by--

(a) publishing a notice in one or more newspapers circulating in the State of how copies of the information may be obtained,

(b) displaying the information in each of its public offices, and

(c) publishing a notice in the Iris Oifigiúil as to the manner in which the information referred to in paragraphs (1), (2) and (3), as the case may be, is made available.

(5) A person referred to in paragraph (1) or (2) shall notify the Director of the manner in which the information is made publicly available under paragraph (4).

(6) A fixed operator shall inform the Director without any unreasonable delay of any particular network characteristics which are found to affect the correct operation of terminal equipment.

Quality of service.

16. (1) (a) The Director may issue directions which lay down performance targets specified by the Director in relation to the parameters specified in Annex III to a person-

(i) who has significant market power in the provision of either fixed public telecommunications networks or voice telephony services or both, or

(ii) who has been designated under Regulation 3.

(b) Any performance targets set out in a licence in force on the coming into operation of these Regulations shall continue in force or be amended by the Director in accordance with this paragraph.

(2) A person referred to in paragraph (1) shall establish and maintain records concerning its performance based on the parameters, definitions and measurement methods specified in Annex III.

(3) A fixed operator, other than a person referred to in subparagraph (a) of paragraph (1), which has been licensed under section 111(2) of the Act of 1983 for at least 18 months, shall, if requested by the Director, keep current records concerning its performance based on the parameters, definitions and measurement methods specified in Annex III.

(4) The information referred to in paragraphs (2) and (3) shall be provided by the person concerned to the Director on request.

(5) The Director may, where appropriate, and taking account of the views of interested parties in accordance with Regulation 26 issue directions requiring the publication, in accordance with Regulation 15(4), of the performance data referred to in paragraphs (2) and (3).

(6) (a) The Director may, no more than once in each year, issue directions requiring a person referred to in this Regulation to arrange for an independent audit of the performance data of that person to verify the accuracy of the information concerned.

(b) The cost associated with any audit conducted pursuant to this paragraph shall be the responsibility of the person concerned.

Conditions of access and use and essential requirements.

17. (1) (a) A fixed operator which is designated under Regulation 4 shall not interrupt, terminate, significantly vary or reduce the availability of services to organisations providing telecommunications networks or services except in accordance with procedures for this purpose laid down by the Director.

(b) The Director shall make publicly available the procedures referred to in subparagraph (a) on request and any modifications thereof and shall publish notice of their availability in the Iris Oifigiúil

(2) (a) The procedures referred to in paragraph (1) shall provide for a transparent decision-making process in which account is taken of the rights of the parties concerned and all parties have an opportunity to state their case.

(b) The decision of the Director under the procedures referred to in paragraph (1) shall be in writing and shall give reasons for the decision and shall be notified by the Director to the parties within one week of the making of that decision.

(3) The Director may issue directions to a fixed operator identifying those cases where access to or use of fixed public telephone networks or fixed public telephone services, or both such networks and services, may be restricted on the basis of essential requirements specified in Article 13.2 of the Directive and Article 3(5) and 5(3) of Directive No. 90/387/EEC³ . The Director shall cause such directions to be published in the Iris Oifigiúil and any updates or modifications thereof.

(4) Without prejudice to Articles 3(5) and 5(3) of Directive No. 90/387/EEC, the essential requirements specified in Article 13.2 of the Directive shall apply to all fixed operators with respect to their fixed public telephone networks and fixed public telephone services in the manner specified therein and in accordance with the directions issued by the Director pursuant to paragraph (3).

(5) The Director may designate other fixed operators as having the obligations imposed under paragraph (1) other than those determined by the Director as having significant market power pursuant to Regulation 4.

(6) Paragraphs (a), (b), (c) and (e) of section 96 of the Act of 1983 are hereby repealed.

Itemised billing, tone dialling and selective call barring.

18. (1) The Director may issue directions to one or more fixed operators to ensure that by the 31st day of December, 2001, users of its fixed public telephone networks have access to the facilities of--

(a) tone dialling, as defined in Annex I, part 1,

(b) itemised billing, as specified by the Director pursuant to paragraph (3), and

(c) selective call-barring, as defined in Annex I, part 1, as a facility available on request.

(2) Subject to paragraph (4) and the requirements of the law on the protection of personal data and privacy, a fixed operator shall ensure that itemised bills contain a sufficient level of detail to allow verification of the charges incurred in using the fixed public telephone network, fixed public telephone services or both such networks and services.

(3) (a) The Director may specify a minimum level of information to be provided in itemised bills which shall be made available at no extra charge.

(b) Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or free of charge.

(4) Calls which are free of charge to the calling subscriber shall not be identified in the calling subscriber's itemised bill.

Provision of additional facilities.

19. (1) Subject to paragraph (2), a fixed operator providing voice telephony services which has been designated by the Director under Regulation 4 as having significant market power shall provide, subject to technical feasibility and economic viability, the facilities listed in Annex I, part 2.

(2) (a) Where a person referred to in paragraph (1) determines, pursuant to that paragraph, that it is neither technically feasible nor economically viable to provide the facilities listed in Annex I, part 2, the person shall notify the Director and provide the reasons, including any information in support of that determination.

(b) Where the Director disagrees with the determination of the person concerned based on the information provided and any other information the Director considers relevant, including the state of network development, market demand and progress with standardisation, the Director may issue a direction to that person to provide the facilities in Annex I, part 2.

(c) In making his or her decision, the Director may authorise the person concerned to provide the facilities listed in Annex I, part 2 over a reasonable period of time in order to comply with that direction.

(3) A fixed operator shall ensure, pending the introduction of the facility of number portability as referred to in Article 12(5) of Directive No. 97/33/EC, that for a reasonable period after a subscriber has changed supplier, a telephone call to the last number most recently used by that subscriber as a subscriber can be re-routed to his or her new number for a reasonable fee or callers are informed of the new number, without charging the said subscriber for this service.

Special network access.

20. (1) An organisation with significant market power in the provision of fixed public telephone networks as determined by the Director pursuant to Regulation 4 (in this Regulation referred to as a “requested organisation”) shall, in accordance with this Regulation, on a request being made by a person providing telecommunications services (in this Regulation referred to as a “requesting organisation”) provide special network access.

(2) A requested organisation may refuse a request for special network access on the grounds that there are technically and commercially viable alternatives to the special network access requested, and that the requested special network access is inappropriate in relation to the resources of the requested organisation available to meet the request.

(3) (a) Whenever a requested organisation proposes to refuse a request under paragraph (2), it shall, within 15 working days, provide the requesting organisation and the Director with written notification that the request is being refused and the basis of such refusal.

(b) The notification referred to in subparagraph (a) shall also include a statement as to the rights of the requesting organisation under paragraph (4).

(4) Without prejudice to the procedure established by the Director pursuant to Regulation 28, a requesting organisation may, within one calendar month of receipt by him or her of a notification under paragraph (3), make representations to the Director in relation to the refusal of special network access and the alternative proposal or proposals concerned.

(5) (a) Where the requesting organisation makes representations under paragraph (4), the Director shall decide on the proposal by the requested organisation to limit such access to the fixed public telecommunications network in the particular case.

(b) The Director, in making a decision, shall take into account the representations made by the requesting organisation and the notification by the organisation under paragraph (3) and the requested organisation shall comply with that decision.

(6) The Director shall notify the requested organisation and the requesting organisation concerned in writing of his or her decision under paragraph (4) within 90 days of receipt of the representations referred to in paragraph (4) and shall include in the notification a statement of the reason or reasons for the decision.

(7) Subject to paragraphs (5) and (8), technical and commercial arrangements for special network access shall be a matter for agreement between the parties concerned.

(8) The Director may intervene on his or her own initiative at any time in order to ensure effective competition or interoperability of services or both and shall do so, if requested by either party, in order to specify conditions for the provision of special network access which are non-discriminatory, fair and reasonable for the parties concerned and which offer the greatest benefit to all users.

(9) The Director may review any agreements entered into pursuant to paragraph (7) to ensure that the agreements satisfy the criteria specified in paragraph (8) and include conditions in respect of all or any of the following

(a) conformity with relevant technical standards,

(b) compliance with essential requirements, and

(c) the maintenance of network quality.

(10) An agreement referred to in paragraph (7) may include reimbursement to the organisation providing special network access of the costs incurred in providing the special network access requested.

(11) Charges levied for the purpose of reimbursement referred to in paragraph (10) shall fully respect the principles of cost orientation set out in Annex II of Directive No. 90/387/EEC.

(12) (a) An organisation with significant market power referred to in paragraph (1) shall adhere to the principle of non-discrimination when it makes use of the fixed public telephone network and, in particular, uses any form of special network access for providing publicly available telecommunications services.

(b) An organisation referred to in subparagraph (a) shall apply similar conditions in similar circumstances to organisations providing similar services and shall provide special network access facilities and information to others under the same conditions and of the same quality as it provides for its own services or those of its subsidiaries or partners.

(13) (a) An organisation referred to in paragraph (1) or a party to an agreement referred to in paragraph (7) shall, on a request being made by the Director, make available to the Director details of agreements for special network access.

(b) Without prejudice to the rights and obligations referred to in Article 20(2) of Directive No. 97/13/EC⁴ , the Director shall keep confidential those parts of the agreements which deal with the commercial strategy of the parties.

(14) For the purposes of this Regulation “special network access” means access to any fixed public telephone network operated by an organisation designated by the Director under Regulation 4 at termination points other than the commonly provided network termination points referred to in Annex II, part 1.

Tariff principles.

21. (1) This Regulation shall apply without prejudice to any requirements relating to the affordability of services specified under Regulation 8.

(2) An organisation providing voice telephony services which has been designated under Regulation 4 shall ensure that tariffs for use of its fixed public telephone networks and fixed public telephone services follow the basic principles of transparency and cost orientation specified in Annex II of Directive No. 90/387/EEC.

(3) Without prejudice to paragraphs (7), (8), (9) and 10) of Regulation 8 of the European Communities (Interconnection in Telecommunications) Regulations, 1998 ( S.I. No. 15 of 1998 ), an organisation referred to in paragraph (2) shall ensure that tariffs for access to and use of its fixed public telephone networks shall be independent of the type of application which the user implements, except in so far as such user requires different services or facilities.

(4) An organisation referred to in paragraph (2) shall ensure that tariffs for facilities additional to the provision of connection to its fixed public telephone network and fixed public telephone services, shall be sufficiently unbundled, so that the user is not required to pay for facilities which are not necessary for the service requested.

(5) (a) An organisation referred to in paragraph (2) shall implement tariff changes on the 21st day after public notice has been given, or some other period as may be specified by the Director.

(b) For the purposes of this paragraph public notice shall be given in the same manner as specified in Regulation 15(4).

(6) This Regulation shall not apply in an area of the State in relation to which the Director has determined that effective competition in the fixed public telephone services market exists.

Cost accounting principles

22. (1) (a) An organisation which has an obligation in respect its tariffs under Regulation 21 shall operate and maintain a cost accounting system based on generally accepted accounting practices and varifiable pursuant to paragraph (2) which is suitable for compliance with that Regulation.

(b) the Director may issue directions establishing standards for cost accounting systems required pursuant to this paragraph and an organisation subject to this paragraph shall comply with any such directions.

(2) Compliance by an organisation referred to in paragraph (1) with a cost accounting system referred to in that paragraph shall be verified by a person or body independent of the organisation and selected by the organisation with the prior approval of the Director.

(3) An organisation referred to in paragraph (1) shall publish in its annual accounts a certificate of compliance with its obligations in relation to its cost accounting system.

(4) (a) An organisation referred to in paragraph (1) shall, when requested to do so by the Director, make available to the Director a description of the cost accounting system referred to in paragraph (1) showing the main categories under which costs are compiled and the rules used for allocation of costs.

(b) the Director may issue directions requiring the organisation concerned to modify its cost accounting system to comply with any standards the Director may establish pursuant to paragraph (1).

(5) An organisation referred to in paragraph (1) shall, when requested by the Director, make available to the Director detailed accounting information without prejudice to the rights and obligations of the Director referred to in paragraphs (1), (2) and (3) of Regulation 7 of the European Communities (Telecommunications Licences) Regulations, 1998 ( S.I. No. 96 of 1998 ).

(6) The Director shall protect the confidentiality of any information referred to in paragraph (5) which he or she considers to be confidential.

Discounts and other special tariff provisions.

23. (1) An organisation which has an obligation under Regulation 19 shall ensure that discount schemes for users are published in accordance with Regulation 15(4) and are applied in accordance with the principles of transparency and non-discrimination.

(2) The Director may, following consultation with the organisation and such other persons as he or she may determine, issue directions requiring discount schemes to be modified or withdrawn.

(3) The Director may specify a period by which information on discount schemes is published in advance of implementation.

Specifications for network access, including the socket.

24. Where the services referred to in these Regulations are supplied by a fixed operator to subscribers over an Integrated Services Digital Network (ISDN) at the S/T reference point, the fixed operator shall ensure that the ISDN network termination points comply with the relevant physical interface specifications, in particular those for the socket, as described in the list of standards in this regard published in the Official Journal of the European Communities.

Non-payment of bills.

25. (1) (a) A fixed operator shall establish measures, which shall be proportionate, and non-discriminatory, to be taken in relation to non-payment of telephone bills for use of the fixed public telephone network.

(b) The measures referred to in subparagraph (a) shall comply with any directions issued by the Director under paragraph (3) and shall ensure that sufficient warning is provided to the subscriber prior to taking any action to impose penalties, including service interruption or disconnection for non-payment of bills.

(2) Except in cases of fraud, persistent late payment or non-payment, the measures referred to in paragraph (1) shall ensure, in so far as it is technically feasible, that any service interruption is confined to the service concerned.

(3) (a) The Director may issue directions for the purposes of paragraph (1), including determining categories of cases where service interruption or disconnection is approprite.

(b) The Director may require that a fixed operator include in its measures established pursuant to paragraph (1) a stated period during which calls which do not incur a charge to the subscriber are permitted prior to a fixed operator interrupting or disconnecting service.

Consultation with interested parties.

26. (1) (a) The Director shall take into account the views of interested parties, including representatives of persons providing public telecommunications networks, users, consumers, manufacturers and service providers in relation to his or her functions under these Regulations in acordance with procedures drawn up by the Director for that purpose.

(b) The procedures referred to in subparagraph (a) shall specify the functions under these Regulations in relation to which views may be sought and may include a provision that views received after a period specified by the Director may not be taken into account.

(2) The Director shall publish a reference to the procedures referred to in paragraph (1) in the Iris Oifigiúil.

Notification and reporting.

27. (1) Except where the Commission has previously been notified pursuant to Directive No. 95/62/EC⁵ , the Director shall notify to the Commission the names of the persons in the State to which these Regulations apply and which are authorised to interconnect their fixed public telecommunications networks directly with those of telecommunications organisations in other Member States in order to provide voice telephony services.

(2) The Director shall notify the Commission of--

(a) any designation which he or she makes under Regulation 4 with respect to organisations with significant market power,

(b) the details of situations where a fixed operator no longer has to follow the principle of cost orientation of tariffs in accordance with Regulation 21(5), and

(c) any person designated under Regulation 3.

(3) The Director may issue directions requiring any person to whom these Regulations apply to supply information for the purpose of enabling the Director to carry out his or her functions under these Regulations.

Conciliation and resolution of disputes.

28. (1) Without prejudice to any right of action which may apply, a fixed operator shall implement a code of practice for handling complaints in respect of an alleged infringement of the provisions of the Directive.

(2) The code of practice referred to in paragraph (1) shall make provision for the following matters--

(a) a first point of contact for complainants,

(b) a means of recording complaints,

(c) a timeframe within which the licensee shall respond to complaints,

(d) procedures for resolving complaints, and

(e) retention of records of complaints (including copies of the complaint, any response thereto, any determination in respect of the complaint and any documentation considered in the course of such determination) for a period of not less than one year following resolution of the complaint.

(3) The Director may, from time to time, issue directions to a fixed operator specifying modifications or additions that he or she considers should be made to the code or as to the publication, re-publication, implementation or further modification of the code.

(4) The Director may, in accordance with procedures established by him or her, intervene or appoint an independent person to resolve disputes which remain unresolved after due completion of all the procedures of a code of practice referred to in paragraph (1) except where the matters fall within the scope of the District Court (Small Claims Procedure) Rules, 1993 to 1995.

(5) The Director shall make publicly available such procedures on request and any updates or modifications thereof and shall publish notice of their availability in the Iris Oifigiúil.

(6) Persons representing the interests of users or consumers or both may bring to the attention of the Director cases where such persons consider the terms and conditions upon which telephone service is provided are unsatisfactory for users.

(7) The procedures established for the purposes of paragraphs (1), (3) and (4) shall be easily accessible, available on request in a form which enables access to the information contained in such procedures to persons with disabilities and, inexpensive, and shall facilitate the resolution of disputes in a fair, transparent and timely manner.

(8) A person may, where the dispute involves telecommunications organisations in more than one Member State, invoke the conciliation procedure provided for in Article 26(3) and (4), by means of a written notification to the Director and to the Commission.

(9) Where the Director finds that there is a case for further examination, following receipt of a notification under paragraph (8), he or she may refer the matter to the Chairman of the ONP Committee.

(10) The party invoking the procedures established pursuant to this Regulation shall bear its own costs of participating in the procedures.

Enforcement.

29. (1) It shall be a function of the Director to monitor compliance with these Regulations and the Directive.

(2) The functions of the Director under these Regulations shall be deemed to be included in the functions conferred on the Director under the Telecommunications (Miscellaneous Provisions) Act, 1996 (No. 34 of 1996) .

(3) The Director may issue directions to any person to which a provision of these Regulations or the Directive applies, requiring that person to take specified measures or to refrain from taking specified measures for the purpose of complying with such provision.

(4) A person to whom these Regulations or the Directive apply shall furnish the Director with any such information as the Director may reasonably require for the purposes of his or her functions under these Regulations and the Directive.

(5) A direction issued under these Regulations shall be in writing, state the reasons on which it is based and be addressed to the person concerned, and as soon as practicable, be sent or given in any of the following ways--

(a) by delivering it to the person,

(b) by leaving it at the address at which the person carries on business, or

(c) by sending it by prepaid registered post to the address at which the person carries on business.

(6) For the purposes of paragraph (5), a company within the meaning of the Companies Acts, 1963 to 1990, shall be deemed to be carrying on business at its registered office, and every other body corporate and every unincorporated body shall be deemed to be carrying on business at its principal office or place of business.

(7) Where the Director is of the opinion that a person has not complied with a direction issued by him or her under these Regulations, he or she may apply to the Circuit Court for an order to direct the person to comply with--

(a) the requirement or any stipulation contained therein, or

(b) any modification of the direction or any other condition or both made by the Court.

(8) An application under this Regulation to the Circuit Court shall be determined by the Judge of the Circuit Court for the circuit in which the alleged non-compliance took place or the defendent carries on business.

Offences and penalties.

30. (1) A person who is guilty of an offence under Regulation 5(15) shall be liable on summary conviction to a fine not exceeding £1,500.

(2) Summary proceedings for an offence under Regulation 5(15) may be brought and prosecuted by the Director.

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under Regulation 5(15) may be brought within 12 months from the date of the offence.

(4) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be preceeded against and punished as if he or she were guilty of the first-mentioned offence.

Revocation of the European Communities (Application of Open Network Provision to Voice Telephony) Regulations, 1997.

31. The European Communities (Application of Open Network Provision to Voice Telephony) Regulations, 1997 ( S.I. No. 445 of 1997 ), are hereby revoked without prejudice to the repeal, under Regulation 7(8) of those Regulations, as amended, of section 88(1) of the Act of 1983.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be legal interpretation.)

The purpose of these Regulations is to give legal effect to Directive 98/10/EC of 26 February, 1998 of the European Parliament and of the Council on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment and to amend the European Communities (Interconnection in Telecommunications) Regulations, 1998 ( S.I. No. 15 of 1998 ), giving effect to Directive No. 97/33/EC of 30 June 1997 of the European Parliament and of the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP).

¹ O.J. L199, 26.7.1997, p. 32.

² O.J. L101, 1.4.1998, p. 24.

³ O.J. L192, 24.7.1990, p. 1.

⁴ O.J. L117, 7.5.1997, p. 15.

⁵ O.J. L321, 30.12.1995, p. 6.