STATUTORY INSTRUMENTS

S.I. No. 305 of 2003

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES)(ACCESS) REGULATIONS 2003

Made by the Minister for Communications,

Marine and Natural Resources.

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES)(ACCESS) REGULATIONS 2003

I, DERMOT AHERN, Minister for Communications, Marine and Natural Resources, 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. 2002/19/EC¹ of the European Parliament and of the Council of 7 March 2002, hereby make the following regulations:

Citation and commencement

1.       (1)         These Regulations may be cited as the European Communities (Electronic Communications Networks and Services)(Access) Regulations 2003.

(2)         These Regulations come into operation on 25 July 2003.

Interpretation

2.       (1)         For the purposes of these Regulations the definitions as set out in Regulation 2(1) of the Framework Regulations apply.

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

“Act of 2002” means the Communications Regulation Act 2002 ( No. 20 of 2002 )

“access” means the making available of facilities, services or both facilities and services, to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services. It covers, inter alia, access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop), access to physical infrastructure including buildings, ducts and masts, access to relevant software systems including operational support systems, access to number translation or systems offering equivalent functionality, access to fixed and mobile networks, in particular for roaming, access to conditional access systems for digital television services, access to virtual network services; access does not include, apply or refer to access by end users;

“Access Directive” means Directive No. 2002/19/EC¹ of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities;

“Authorisation Directive” means Directive No. 2002/20/EC² of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services;

“Authorisation Regulations” means the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2003 ( S.I. No. 306 of 2003 );

“Framework Regulations” means the European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2003 ( S.I. No. 307 of 2003 );

“interconnection” means the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking. Services may be provided by the parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between the public network operators;

“local loop” means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public telephone network;

“Minister” means the Minister for Communications, Marine and Natural Resources;

“operator” means an undertaking providing or authorised to provide a public communications network or an associated facility;

“Regulator” means the Commission for Communications Regulation;

“wide screen television service” means a television service that consists wholly or partially of programmes produced and edited to be displayed in a full height wide-screen format. The 16:9 format is the reference format for wide-screen television services.

(2)         A word or expression that is used in these Regulations, the Access Directive or in the Framework Regulations has, except where the context otherwise requires, the same meaning in these Regulations that it has in that Directive or those Regulations.

(3)         In these Regulations, unless the contrary intention appears,

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

(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.

(4)         In these Regulations, a reference to an enactment shall be construed as a reference to the enactment as amended by any subsequent enactment, including these Regulations.

Confidentiality of information

3.           For the purpose of these Regulations, where the Regulator may consider whether information is confidential or not, it shall, subject to the Freedom of Information Acts 1997 and 2003, accept as confidential any information which is expressed to be confidential, except where it has good reasons to consider otherwise.

General framework for access and interconnection

4.       (1)         Subject to these Regulations, an undertaking, whether established in the State or in another Member State, may negotiate with any other such undertaking an agreement on technical and commercial arrangements for access, interconnection or both access and interconnection in the State in accordance with European Community law for the purposes of the provision of electronic communication services.

(2)         An undertaking requesting access or interconnection in the State does not need to be authorised to operate in the State if it is not providing services and does not operate a network in the State.

(3)         The Regulator shall not maintain or impose administrative measures which oblige operators when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or to impose obligations that are not related to the actual access and interconnection services provided without prejudice to the conditions specified in the Schedule to the Authorisation Regulations.

Rights and obligations for interconnection and access

5.       (1)         An operator has the right to negotiate interconnection with another operator for the purpose of providing publicly available electronic communications services in order to ensure provision and interoperability of services throughout the European Community.

(2)         An operator has an obligation to negotiate interconnection for the purpose of providing publicly available electronic communications services when requested to do so by another operator in order to ensure provision and interoperability of services throughout the European Community.

(3)         An operator shall offer access and interconnection to other undertakings on terms and conditions consistent with any obligations imposed by the Regulator pursuant to Regulations 6, 7, 8 and 9.

(4)         An operator of a public electronic communications network established for the distribution of digital television services shall ensure that the network is capable of distributing wide-screen television services and programmes.

(5)         An operator to which paragraph (4) refers that receives and redistributes wide-screen television services or programmes shall not alter by any means whatsoever any signal received by it in a wide-screen format and shall redistribute that signal in that format.

(6)         Without prejudice to Regulation 18 of the Authorisation Regulations, an undertaking that acquires information from another undertaking before, during or after the process of negotiating access or interconnection arrangements shall use that information solely for the purpose for which it was supplied and shall respect at all times the confidentiality of information transmitted or stored.

(7)         An undertaking shall not pass any information referred to in paragraph (6) on to any other party, in particular, other departments, subsidiaries or partners of the undertaking for whom such information could provide a competitive advantage.

(8)         An undertaking which fails to comply with paragraph (6) or (7) is guilty of an offence.

Functions of Regulator with regard to access and interconnection

6. (1)   The Regulator shall, acting in pursuit of the objectives set out in section 12 of the Act of 2002, encourage and, where appropriate, ensure, in accordance with these Regulations, adequate access, interconnection and interoperability of services in such a way as to --

(a) promote efficiency,

(b) promote sustainable competition, and

(c) give the maximum benefit to end-users.

(2)   Without prejudice to any measures that may be taken in accordance with Regulation 9 regarding undertakings with significant market power, the Regulator may:

(a) to the extent that it is necessary to ensure end-to-end connectivity, impose obligations referred to in Regulations 10 to 14 inclusive on undertakings that control access to end-users, including in justified cases, the obligation to interconnect their networks where this is not already the case;

(b) after consultation with the Broadcasting Commission of Ireland, impose obligations set out in Regulation 7, to the extent that it is necessary to ensure accessibility for end-users to such digital radio and television broadcasting services as may be specified by the Broadcasting Commission of Ireland, on operators to provide access to application programme interfaces and electronic programme guides, on fair, reasonable and non-discriminatory terms.

(3)   The Regulator, when imposing obligations on an operator in accordance with Regulation 13, may lay down technical or operational conditions to be met by the provider, beneficiaries or both the provider and beneficiaries of such access in accordance with European Community law, where necessary to ensure normal operation of the network. Conditions that refer to implementation of specific technical standards or specifications shall respect Article 17 of the Framework Directive.

(4)   Any obligations imposed by the Regulator pursuant to paragraphs (1), (2) and (3) shall be objective, transparent, proportionate and non-discriminatory and shall be applied in accordance with Regulations 19 and 20 of the Framework Regulations.

(5)   With regard to access and interconnection, the Regulator may exercise its powers under these Regulations, the Framework Regulations, the Authorisation Regulations and the Universal Service Regulations on its own initiative, where justified, or, in the absence of agreement between undertakings, at the request of either of the parties involved, in order to secure the policy objectives and regulatory principles set out in section 12 of the Act of 2002, in accordance with these Regulations and Regulations 19, 20, 31 and 32 of the Framework Regulations.

Conditional access systems and other facilities

7.       (1)         An operator of a system for conditional access to digital television and radio services broadcast to viewers and listeners in the European Community by any means of transmission shall ensure that the system has the necessary technical capability for cost-effective transcontrol at redistribution system head-ends allowing the possibility for full control by operators of redistribution systems at local or regional level of the services using any such conditional access system.

(2)         An operator of conditional access services, irrespective of the means of transmission, who produces or markets access services to digital television and radio services and upon whose access services broadcasters depend to reach any group of potential viewers or listeners, shall --

(a) offer to all broadcasters, on a fair, reasonable and non-discriminatory basis, compatible with European Community competition law, technical services enabling the broadcasters' digitally-transmitted services to be received by viewers or listeners authorised by means of decoders administered by the service operator, and

(a) keep separate financial accounts regarding his or her activity as a provider of such a service.

(3)         A holder of industrial property rights to conditional access products and systems shall, when granting a licence to a manufacturer of consumer equipment in respect of those products or systems, ensure that this is done on fair, reasonable and non-discriminatory terms.

(4)         Without prejudice to the generality of paragraph (3), taking into account technical and commercial factors, a holder of such rights as are referred to in paragraph (3) shall not subject the granting of licences to conditions prohibiting, deterring or discouraging the inclusion in the same product of --

(a)     a common interface allowing connection with several other conditional access systems, or

(b)     means specific to another conditional access system, provided that the licensee complies with the relevant and reasonable conditions ensuring, as far as he or she is concerned, the security of transactions of conditional access system operators.

(5)         Each duty referred to in paragraph (3) and (4) is a duty owed to any person who may be affected by a breach of it, and without prejudice to any other cause of action which may arise therefrom --

(a) any breach of such duty which causes that person to sustain loss or damage is actionable in tort, and

(b) any condition included in a licence in contravention of the duty referred to in paragraph (4) is void.

(6)         In paragraph (1), “redistribution” in relation to television or radio signals, means the retransmission or relaying of those signals and “redistribute” shall be construed accordingly.

(7)         The Regulator may, if it considers it appropriate so to do, review any conditions applied in accordance with paragraphs (1) to (4) by carrying out a market analysis in cooperation, where appropriate, with the Competition Authority in accordance with an agreement under section 34 of the Competition Act 2002 and taking utmost account of the guidelines referred to in Article 15(2) of the Framework Directive, to determine whether to maintain, amend or withdraw any such conditions.

(8)         Where, as a result of any such market analysis, the Regulator determines that one or more operators do not have significant market power on the relevant market, the Regulator may amend or withdraw the conditions with respect to those operators in accordance with Regulations 19 and 20 of the Framework Regulations but only to the extent that:

(a) accessibility for end-users to radio and television broadcasts and broadcasting channels and services specified in accordance with the Broadcasting Act 2001 ( No. 4 of 2001 ), would not be adversely affected by such amendment or withdrawal, and

(b) the prospects for effective competition in the markets for:

(i)  retail digital television and radio broadcasting services, and

(ii)  conditional access systems and other associated facilities would not be adversely affected by such amendment or withdrawal.

(9)         The Regulator shall give such notice as it considers reasonable to any party affected by any such amendment or withdrawal of conditions.

(10)        Nothing in this Regulation, Regulation 4(3) or Regulation 6 shall prejudice the application of section 16 of the Broadcasting Act 2001 .

Review of former obligations for access and interconnection

8. (1)   Notwithstanding Regulation 38 of the Framework Regulations, an operator shall continue to comply with any obligations concerning access and interconnection under the European Communities (Interconnection in Telecommunications) Regulations 1998 ( S.I. No. 15 of 1998 ), the European Communities (Voice Telephony and Universal Service) Regulations 1999 ( S.I. No. 109 of 1998 ) applicable to it prior to entry into force of the Access Directive until such time as specific obligations pursuant to Regulation 9 are imposed on any undertaking designated under Regulation 27(4) of the Framework Regulations.

(2)   The Regulator shall give such notice as it considers reasonable to any party affected by the amendment or withdrawal of obligations referred to in paragraph (1) as a result of the imposition of specific obligations.

Imposition, amendment or withdrawal of obligations

9. (1)   Where an operator is designated as having a significant market power on a relevant market as a result of a market analysis carried out in accordance with Regulation 27 of the Framework Regulations, the Regulator shall impose on such operator such of the obligations set out in Regulations 10 to 14 as the Regulator considers appropriate.

(2)   The Regulator may impose such of the obligations set out in Regulations 10 to 14 as the Regulator considers appropriate on an operator in order to ensure that the State can comply with an international agreement to which the State and the European Community are parties.

(3)   Without prejudice to --

(a)       Regulations 6(1) to (3) and 7(1) to (4),

(b)       Part 5 of the Act of 2002, Condition 6 in Part B of the Schedule to the Authorisation Regulations as applied by virtue of Regulation 8 of the Authorisation Regulations, Regulations 23, 24 and 26 of the Universal Service Regulations and the relevant provisions of Directive No.97/66/EC³ of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, containing obligations on undertakings other than those designated as having significant market power, or

(c)       the need to comply with an international commitment referred to in paragraph (2),

the Regulator shall not impose the obligations set out in Regulations 10 to 14 on operators that have not been designated in accordance with paragraph (1).

(4)   In relation to paragraph (2), the Regulator shall notify any decision to impose, amend or withdraw obligations on operators to the European Commission in accordance with Regulation 20 of the Framework Regulations.

(5)   Where, in exceptional circumstances, the Regulator intends to impose on operators with significant market power obligations for access or interconnection other than those set out in Regulations 10 to 14, the Regulator shall submit to the European Commission a request for permission to impose such other obligations. The Regulator shall not impose such other obligations pending the decision of the European Commission in accordance with Article 14(2) of the Access Directive to authorise or prevent the Regulator from taking such measures.

(6)   Any obligations imposed in accordance with this Regulation shall --

(a) be based on the nature of the problem identified,

(b) be proportionate and justified in the light of the objectives laid down in section 12 of the Act of 2002, and

(c) only be imposed following consultation in accordance with Regulations 19 and 20 of the Framework Regulations.

Transparency

10.   (1)   The Regulator may in accordance with Regulation 9 impose on an operator obligations to ensure transparency in relation to interconnection, access or both interconnection and access, requiring such operator to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, and prices.

(2)   The Regulator may, in particular where obligations under Regulation 11 are imposed on an operator, require such operator to publish a reference offer that is sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested and such offer shall include:

(a)       a description of the relevant offerings broken down into components according to market needs; and

(b)       a description of the associated terms and conditions, including prices.

(3)   The Regulator may specify in an obligation referred to in paragraph (1) or (2) the precise information to be made available the level of detail required and the manner of publication.

(4)   Notwithstanding paragraph (3), where an operator has obligations under Regulation 13, concerning unbundled access to the twisted metallic pair local loop, the Regulator shall require such operator to publish a reference offer containing at least the elements set out in the Schedule.

(5)   The Regulator may issue directions requiring an operator to which this Regulation applies to make changes to a reference offer to give effect to obligations imposed under these Regulations and to publish the reference offer with such changes.

Non-discrimination

11.   (1)     The Regulator may in accordance with Regulation 9 impose on an operator obligations of non-discrimination in relation to interconnection, access or both interconnection and access.

(2)     Any such obligations shall ensure, in particular, that the operator:

(a) applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and

(b) provides services and information to others under the same conditions and of the same quality as the operator provides for its own services or those of its subsidiaries or partners.

Accounting separation

12. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations for accounting separation in relation to specified activities related to interconnection, access or both interconnection and access.

(2) Without prejudice to the generality of paragraph (1), the Regulator may require an operator which is vertically integrated to make transparent its wholesale prices and its internal transfer prices, inter alia, to ensure compliance with any obligation imposed under Regulation 11 or, where necessary, to prevent unfair cross subsidy and, where it does so, may specify the format and accounting methodology to be used.

(3) A requirement upon an operator under Regulation 17 of the Framework Regulations may, in order to facilitate the verification of compliance by an operator with any obligations of transparency under Regulation 10 and non-discrimination under Regulation 11, include a requirement that accounting records, including data on revenues received from third parties, are provided by any such operator to the Regulator on request.

(4) Subject to the protection of the confidentiality of any information which the Regulator considers confidential, the Regulator may publish any information obtained by it under paragraph (3) to the extent that the Regulator considers that such information would contribute to an open and competitive market.

Obligations of access to and use of specific network facilities

13. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations to meet reasonable requests for access to, and use of, specific network elements and associated facilities inter alia in situations where the Regulator considers that the denial of such access or the imposition by operators of unreasonable terms and conditions having a similar effect --

(a) would hinder the emergence of a sustainable competitive market at the retail level,

(b) would not be in the interests of end-users, or

(c) would otherwise hinder the achievement of the objectives set out in section 12 of the Act of 2002.

(2) Without prejudice to the generality of paragraph (1), the Regulator may require an operator, inter alia:

(a)       to give third parties access to specified network elements, facilities or both such elements and facilities, including unbundled access to the local loop;

(b)       to negotiate in good faith with undertakings, requesting access;

(c)        not to withdraw access to facilities already granted;

(d)        to provide specified services on a wholesale basis for resale by third parties;

(e)       to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;

(f)        to provide co-location or other forms of facility sharing, including duct, building or mast sharing;

(g)       to provide specified services needed to ensure interoperability of end-to end services to users, including facilities for intelligent network services or roaming on mobile networks;

(h)        to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services; or

(i)         to interconnect networks or network facilities.

(3) The Regulator may attach to any obligations imposed under paragraphs (1) and (2) conditions covering fairness, reasonableness and timeliness.

(4) When considering whether to impose obligations referred to in paragraphs (1) and (2) and, in particular, when assessing whether such obligations would be proportionate to the objectives set out in section 12 of the Act of 2002 the Regulator shall take into account in particular the following factors:

(a)       the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and access involved;

(b)       the feasibility of providing the access proposed, in relation to the capacity available;

(c)        the initial investment by the facility owner, bearing in mind the risks involved in making the investment;

(d)        the need to safeguard competition in the long-term;

(e)       where appropriate, any relevant intellectual property rights; and

(f)        the provision of pan-European services.

Price control and cost accounting obligations

14. (1) The Regulator may in accordance with Regulation 9 impose on an operator obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection, access or both such interconnection and access in situations where a market analysis indicates that a lack of effective competition means that the operator concerned might sustain prices at an excessively high level, or apply a price squeeze to the detriment of end-users.

(2) When considering the imposition of obligations under paragraph (1), the Regulator shall, take into account any investment made by the operator in electronic communications networks or services or associated facilities which the Regulator considers relevant and allow the operator a reasonable rate of return on adequate capital employed, taking into account the risks involved.

(3) The Regulator shall ensure that any cost recovery mechanism or pricing methodology that it imposes under this Regulation serves to promote efficiency and sustainable competition and maximise consumer benefits. In this regard, the Regulator may also take account of prices available in comparable competitive markets.

(4) Where an operator has an obligation under this Regulation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs, including a reasonable rate of return on investment shall lie with the operator concerned. For the purpose of calculating the cost of efficient provision of services, the Regulator may use cost accounting methods independent of those used by the operator. The Regulator may issue directions requiring an operator to provide full justification for its prices, and may, where appropriate require prices to be adjusted.

(5) The Regulator shall ensure that, where implementation of a cost accounting system is imposed under this Regulation in order to support price controls, a description of the cost accounting system is made publicly available, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs. Compliance with the cost accounting system shall, at the choice of the Regulator, be verified by the Regulator or by a suitably qualified independent body.

(6) The Regulator shall cause to be published annually a statement concerning compliance with any cost accounting system imposed under this Regulation.

Publication of notice of obligations and access to information

15.      (1)         The Regulator shall cause to be published in a newspaper circulating in the State notice of the imposition of obligations under these Regulations and such notice shall include information on where copies of a statement of the obligations can be obtained.

(2)         The Regulator may amend or revoke any obligations imposed by it and paragraph (1) applies accordingly.

(3)         The notice referred to in paragraph (1) shall identify the specific product, service and geographical markets in respect of which the specific obligations are imposed.

(4)         The Regulator shall ensure that up-to-date information in relation to the application of these Regulations, provided that information is not, in the opinion of the Regulator, confidential and, in particular, does not in its opinion comprise business secrets, is made publicly available in a manner that guarantees all interested parties easy access to that information.

(5)         The Regulator shall send to the European Commission a copy of any information published in accordance with this Regulation.

Notification

16. (1) The Regulator shall notify the European Commission of the names of operators deemed to have significant market power for the purpose of these Regulations and the obligations imposed upon them under these Regulations.

(2) The Regulator shall notify the European Commission of any changes affecting the obligations imposed upon undertakings by or under these Regulations and of any changes of any undertakings affected by or under these Regulations, as soon as is practicable after any such change.

Directions

17.       The Regulator may, for the purpose of further specifying requirements to be complied with relating to an obligation imposed by or under these Regulations, issue directions to an undertaking to do or refrain from doing anything which the Regulator specifies in the direction.

Enforcement - Compliance with obligations

18.      (1)         Where the Regulator finds that a person has not complied with an obligation under these Regulations or a direction under Regulation 17, the Regulator shall notify the person of those findings and give the person an opportunity to make representations in relation to the notification or remedy any non-compliance, not later than --

(a)     one month after issue of the notification,

(b)     such shorter period as is agreed by the Regulator with the person concerned or stipulated by the Regulator in case of repeated non-compliance, or

(c)     such longer period as may be specified by the Regulator.

(2)         The Regulator may publish, in such manner as it thinks fit, any notification given by it under this Regulation subject to the protection of the confidentiality of any information which the Regulator considers confidential.

(3)         The Regulator may amend or revoke any notification under this Regulation.

(4)         Where, at the end of the period referred to in paragraph (1), the Regulator is of the opinion that the person concerned has not complied with an obligation or direction, the Regulator may, subject to paragraph (13), apply to the High Court for such order as may be appropriate by way of compliance with the obligation or direction. The Court may, as it thinks fit, on the hearing of the application make an order compelling compliance with the obligation or direction or refuse the application. An order compelling compliance shall stipulate a reasonable period for the person to comply with the obligation or direction.

(5)         An application for an order under paragraph (4) shall be by motion and the Court when dealing with the matter may make such interim or interlocutory order as it considers appropriate.

(6)         The Court shall not deny interim or interlocutory relief solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

(7)         (a)    An application for an order under paragraph (4) or (12) may include an application for an order to pay to the Regulator such amount, by way of financial penalty, as the Regulator may propose as appropriate in the light of the non-compliance.

(b)    In deciding on such an application, the Court shall decide what amount (if any) of the financial penalty which should be payable and shall not be bound by the amount proposed by the Regulator.

(c)    Any financial penalty ordered by the Court to be paid by a person under this paragraph shall be paid to and retained by the Regulator as income.

(d)    In deciding what amount (if any) should be payable, the Court shall consider the circumstances of the non-compliance, including --

(i)         its duration,

(ii)        the effect on consumers, users and other operators,

(iii)       the submissions of the Regulator on the appropriate amount, and

(iv)       any excuse or explanation for the non-compliance.

(8)         Where the Regulator has evidence of non-compliance with an obligation under these Regulations or a direction under Regulation 17 that represents an immediate and serious threat to public safety, public security or public health, the Regulator may issue a direction to the person concerned requiring that the use of such apparatus or part of it, as may be specified in the direction, cease with immediate effect or, on or before such date and time, as may be so specified.

(9)         A person to whom a direction has been issued under paragraph (8) shall cease to use the apparatus or part of it to which the direction relates, unless and until such direction has been withdrawn by the Regulator, and shall take such measures as may be specified by the Regulator in the direction to remedy the non-compliance.

(10)       Where the Regulator has evidence of non-compliance by a person with an obligation under these Regulations or a direction under Regulation 17 that will in the opinion of the Regulator create serious economic or operational problems for undertakings or for users of electronic communications networks or services, the Regulator may issue a direction to the person requiring immediate compliance.

(11)       A person may make representations to the Regulator concerning a requirement made of the person under paragraph (8) or (10) and the Regulator having considered the representations may confirm, amend or withdraw the requirement.

(12)       Where a person fails to comply with a requirement under paragraph (8) or (10), the Regulator may, subject to paragraph (13), apply in a summary manner to the High Court for an order compelling compliance.

(13)       Where the Regulator has brought proceedings for an offence under these Regulations or given a notice under section 44 of the Act of 2002 in respect of a failure by a person to comply with an obligation under these Regulations, the Regulator shall not make an application for an order under this Regulation to the High Court to compel compliance by the person with the obligation.

Service of directions and notifications

19.      (1)         Where the Regulator issues a direction or notification under these Regulations, such direction or notification 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,

(c)        by sending it by pre-paid registered post to the address at which the person carries on business,

(d)        if an address for the service of directions or notifications has been furnished by the person to the Regulator, by leaving it at, or sending it by pre-paid registered post to, that address, or

(e)        in any case where the Regulator considers that the immediate giving of the direction or notification is required, by sending it, by means of a facsimile machine or by electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the person ordinarily carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the direction or notification, as the case may be, or the sender's facility for the reception of electronic mail generates a message confirming receipt of the electronic mail.

(2)         For the purposes of paragraph (1), a company within the meaning of the Companies Acts 1963 to 2001 is deemed to be carrying on business at its registered office and every other body corporate and every unincorporated body is deemed to be carrying on business at its principal office or place of business.

Proceedings and penalties

20.    (1)    Subject to paragraph (2), proceedings for an offence under these Regulations may be brought and prosecuted by the Regulator.

(2)   Where the Regulator has made an application under Regulation 18 to the High Court to compel compliance with an obligation under these Regulations, the Regulator shall not bring proceedings for an offence under these Regulations committed by the person concerned or give a notice under section 44 of the Act of 2002 in respect of a failure to comply with the obligation.

(3)   A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000.

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

(5)   Where the affairs of a body corporate are managed by its members, paragraph (4) applies in relation to the acts and defaults of a member of that body in connection with the member's functions of management as if he or she were a director or manager of it.

(6)   An offence under these Regulations is an offence to which section 44 of the Act of 2002 applies.

Regulation 10

SCHEDULE

MINIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE OFFER FOR UNBUNDLED ACCESS TO THE TWISTED METALLIC PAIR LOCAL LOOP TO BE PUBLISHED BY NOTIFIED OPERATORS

For the purposes of this Schedule the following definitions apply:

(a)      “local sub-loop” means a partial local loop connecting the network termination point at the subscriber's premises to a concentration point or a specified intermediate access point in the fixed public telephone network;

(b)      “unbundled access to the local loop” means full unbundled access to the local loop and shared access to the local loop; it does not entail a change in ownership of the local loop;

(c)      “full unbundled access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator authorising the use of the full frequency spectrum of the twisted metallic pair;

(d)      “shared access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator, authorising the use of the non-voice band frequency spectrum of the twisted metallic pair; the local loop continues to be used by the notified operator to provide the telephone service to the public;

A. Conditions for unbundled access to the local loop

1.       Network elements to which access is offered covering in particular the following elements:

(a)     access to local loops;

(b)     access to non-voice band frequency spectrum of a local loop, in the case of shared access to the local loop;

2.       Information concerning the locations of physical access sites¹ , availability of local loops in specific parts of the access network;

3.       Technical conditions related to access and use of local loops, including the technical characteristics of the twisted metallic pair in the local loop;

4.       Ordering and provisioning procedures, usage restrictions.

B. Co-location services

1.       Information on the notified operator's relevant sites.¹

2.       Co-location options at the sites indicated under point 1 (including physical co-location and, as appropriate, distant co-location and virtual co-location).

3.       Equipment characteristics: restrictions, if any, on equipment that can be co-located.

4.       Security issues: measures put in place by notified operators to ensure the security of their locations.

5.       Access conditions for staff of competitive operators.

6.       Safety standards.

7.       Rules for the allocation of space where co-location space is limited.

8.       Conditions for beneficiaries to inspect the locations at which physical co-location is available, or sites where co-location has been refused on grounds of lack of capacity.

C. Information systems

Conditions for access to notified operator's operational support systems, information systems or databases for pre-ordering, provisioning, ordering, maintenance and repair requests and billing.

D. Supply conditions

1.       Lead time for responding to requests for supply of services and facilities; service level agreements, fault resolution, procedures to return to a normal level of service and quality of service parameters.

2.       Standard contract terms, including, where appropriate, compensation provided for failure to meet lead times.

3.       Prices or pricing formulae for each feature, function and facility listed above.

EXPLANATORY NOTE

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

The purpose of these Regulations is to give effect to Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive). The aim of the Regulations is to establish a regulatory framework for the relationships among suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits.

To be purchased through any Bookseller or directly from the Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2.

¹ O.J. L 108, 24.4.2002, p. 7

¹ O.J. L 108, 24.4.2002, p. 7

² O.J. L 108, 24.4.2002, p. 21

³ O.J.L 24, 30.1.1998 p. 1

¹ Availability of this information may be restricted to interested parties only, in order to avoid public security concerns.

¹ Availability of this information may be restricted to interested parties only, in order to avoid public security concerns.