ComReg & Post

COMREG Regulation

COMREG regulates the postal sector.  An Post was established as a public company in 1984.  Its sole shareholder is the State.  A Post may return or refuse postal packets which do not comply with the terms of its scheme or contain objectionable matter.  Providers of postal services must obtain an authorisation.

EU regulations allow for the provision of a compensation fund where the State determines that the ESO obligation is an unfair financial obligation.  Granting of authorisations may be subject to ESO requirements regarding the quality and availability of services and obligations not to infringe exclusive or special rights granted to the USP.

Third Postal Directive

The Communications Regulation Postal Services Act 2011 transposed the third postal Directive into Irish law.  It provides a regulatory framework to safeguard the permanent provision of universal postal service and to encourage competition in a liberalised market.  The general principles of regulation are set out. The Commission for Communications Regulation is to flesh out the principles of regulation in the Act.

There is provision for the designation of the universal postal service provider, financial support for the UPS provider, authorisation procedures, the imposition of conditions for postal service and enforcement. The objectives, powers and functions of the Commission in the postal sector are extended. The Act makes provision for the establishment and maintenance of postcode systems.

Role of Commission

The Commission is to ensure the provision of a universal postal system in compliance with the principles of legislation.  It is to promote the interests of users and enable competition and innovation.  The Commission has information-gathering powers and powers of enforcement.

The Commission is the national regulatory authority for the purpose of the Postal Services Directive.  Where it is required to consult publicly in performing its functions in relation to postal services, it is to establish a postal public consultation procedure and allow persons to make representations.

The Commission may recoup operating costs and expenses from postal service providers. Certain costs may be recouped from those providing services within the scope of universal postal service.

Universal Service Provider

The essential element of the universal postal service is the collection and delivery of mail to every household on a working day.  The Commission is obliged to ensure that the reasonable needs of end-users are met.  It is to specify the services to be provided by the universal postal service provider. Document exchange and express courier services are not within the scope of the universal service.

An Post is designated universal postal service provider for seven years.  It must continue to provide a universal service.   The Commission is to review its designation prior to the end of this period. It may re-designate An Post or designate another universal postal service provider.  It may decide no designation is necessary if the market is meeting users’ reasonable needs. The designation of An Post is subject to compliance with obligations in the 2011 Act and with conditions agreed with the Commission.

USP Pricing

A postal service provider other than USP with an annual turnover of more than €500,000 must apply to the regulator for postal service authorisation.  They must give undertakings not to breach An Post’s reserved area.  The universal service includes, as a minimum, clearing, sorting, transport, distribution of postal items up to 2 kg, clearing, sorting, transport, postal packages of up to 10 kg, delivery and postal packages from other member States up to 20 kg, and services for registered items.

The USP provides a uniform tariff.  There is an obligation for delivery and collection at least five days a week to every home and premise.  Prices must be affordable such that users have access to the service.  It should be cost-orientated, transparent and non-discriminatory.

In the reserved area, COMREG’s consent is required to the scheme of pricing charges.  Where a USP gives access to its networks by providing a service less than a complete range of features, for example, bulk mailers, it shall set a tariff to take account of the costs of providing full clearance, transport, sorting and delivery service.

Funding for USP obligations and Accounts

The third postal directive contemplates financing the universal service through direct compensation from public funds and sharing of costs of the universal provider between providers of services and users.  Provided certain principles are complied with, direct compensation from public funds will not breach State aid rules.

USP is obliged to keep separate accounts for the reserved area and non-reserved area. The main regulatory obligations of the USP include universal service, quality of service, financial requirements, transparency of tariffs, pricing controls, non-discrimination, and uniform power for universal service.

Funding for USP Obligations

The universal postal service provider may apply to the Commission for funding for the universal postal service obligations.  The Commission considers the application and determines whether or not the universal postal service obligation represents a net cost and whether it is an unfair burden.

Where a determination is made, it may require the costs to be shared by other postal service providers who provide postal services within the scope of the universal service.  The Commission is to establish the cost-sharing mechanism and administer the funds. It may appoint an independent person to do so.

Authorising Providers

The Commission may authorise postal service providers. The Commission is to maintain a register of postal service providers.  A postal services provider is to notify the Commission of the services they provide or propose to provide. Failure to do so or the submission of false and misleading information is an offence. At least three months’ notice of a proposal to withdraw a service must be given, and users must be given prior notice.

Conditions may be applied to authorisations, including, in particular, those set out in the legislation. There must be provision for complaints and redress procedures and for the provision of information to the Commission.  There are provisions for removal of authorisation where there is serious or repeated noncompliance with the conditions of the authorisation.

Terms to be Approved

The terms and conditions on which services are to be provided is to be submitted to the Commission for approval. Where a postal services provider wishes to amend these terms and conditions, it must give 30 days’ notice to the Commission and seek approval.  The Commission may give directions in relation to the conditions.

An Post’s terms and conditions, which are set out in schemes under the 1983 Act, are to remain operative until the Commission approves new terms and conditions.

The limitation on liability for loss and damage for failure to maintain and provide the Universal Postal Service in the 1983 Act is confirmed.

Access to Infrastructure

A network operator has rights to negotiate an agreement to share physical infrastructure.  It may serve notice on COMREG, which may make requirements in relation to the period in which the negotiation must be completed.  COMREG may resolve disputes regarding the contents of the agreement and negotiations.  It must establish procedures in respect of such resolutions.  It may decide not to intervene or discontinue intervention if appropriate.

COMREG may impose conditions in relation to conformity with standards relating to the operation, maintenance and repair of electronic infrastructure, compliance with and maintenance of the quality of electronic services, and rules for apportionment of loss of physical infrastructure sharing.

The dispute resolution procedures must include provisions for public consultation with interested parties.  In making the decision COMREG is to take account of the interests of consumers, legal requirements, public interest, the desirability of encouraging sharing infrastructure, provision of new services, availability of physical infrastructure for a sharing request, availability of alternatives to physical infrastructures, sharing request, need to maintain universal service, nature of the request in relation to resources available to the network operator, need to maintain security, need to provide access to the markets for electronic communications to network operators.

The Commission may make directions to the universal postal service provider to grant access to its infrastructure, such as post office boxes and address databases.  The Commission may give a direction requiring agreement between a postal service provider and the universal service provider in relation to access to the latter’s network. Where no agreement is reached, the Commission may resolve the issue and impose terms and conditions for access.

Dispute Resolution

There are dispute resolution mechanisms under the EU regulations.  In the event of a dispute between wholesale undertakings, ComReg must initiate an investigation and make a determination within four months of the request.  It must provide a binding decision within four months unless exceptional circumstances apply.  Dispute resolution does not preclude the matter being brought before the Courts.

The EU regulations require out of Court procedures to deal with unresolved disputes involving consumers in relation to issues under the universal services directives.  Procedures must be transparent, simple and inexpensive.  They must be settled fairly and promptly.  A system of compensation and reimbursement may be adopted by member states where appropriate

Transparency

Transparent and non-discriminatory access conditions must be made available to postcode address databases, post office packs, collection and delivery dockets, information on change of address, redirection services, return to sender services.  Single uniform tariffs are generally applied to services forming part of the universal service.  Tariff uniforms may be lifted for single-piece postal items subject to a single-piece tariff.

COMREG and the Competition Authority are jointly responsible for competition in the electronic publication sector.  Enforcement of communications regulations is through civil and criminal means.  There is no formal mechanism for making complaints to COMREG.  There is no fee.  COMREG deals with matters confidentially.  ComReg publishes guidelines regarding the treatment of confidential information.

User Complaints

A Post must provide simple, transparent, and express procedures for user complaints, particularly in relation to loss and non-compliance with service quality standards.  The procedures must enable the disputes to be settled fairly and promptly with provision for reimbursement or compensation where appropriate.

ComReg has provided legally enforceable guidelines for An Post and other operators providing services.  These guidelines assist in drawing up procedures for user complaints and achieving appropriate redress in the event of loss or substantial delay, theft, damage, or non-compliance with standard requirements.

Every postal service provider must draw up and implement a code of practice for dealing with complaints from users.  The Commission may issue directives in relation to this requirement.  The Commission or an independent person appointed by it, may resolves disputes which remain unresolved after the procedure in the code of practice has been followed.

Mail Carriage Price and Caps

The universal postal service provider may require ships or aircraft to carry postal packets on commercial terms, so as to ensure the provision of a universal postal service. The 2011 Act sets out  principles with which the universal postal service provider’s tariffs must comply with.  They must be affordable and costs-orientated.

The cost charge for inbound international mail must reflect the underlying cost.  This reflects the Directive.  The universal postal service provider may recover underpayments in relation to inbound international post.

The Commission is to impose a price cap for five years on services provided by the universal postal services, which are not likely to be subject to competition.  It is to provide incentives for efficiency.  It may be reviewed by the Commission after three years.  While the cap is in place, certain prices for services within the scope of the universal postal service may not be changed.

There is a provision for free postal service at elections. The postal service provider and the Minister for the Environment is to be consulted in the making of the scheme.

The Commission may give directions to the provider in relation to internal accounting.  It may monitor service targets and issue directions in the event of non-compliance.

Enforcement

Where the Commission determines that a postal service provider has not complied with a direction, it notifies it and gives it the opportunity to respond. It may apply to the High Court for an order requiring compliance and may seek financial penalties.

The provisions of the Communications Regulation Act are extended to the postal sector by the 2011 Act.  The Commission may prosecute offences summarily.  Indictable offences may be prosecuted by DPP.

Regulation of Mail and Postal Offences

The general inviolability of postal packets and mail is restated.  A postal service provider has the power to open postal packets in certain circumstances.  They have the power to detain a packet and forward it to Revenue Commissioners if it is suspected that it contains contraband or if insufficient duty has been paid. If no contraband is found, Revenue is  to return the item to the postal system.

A number of offences are restated and confirmed.  It is an offence to delay, detain, interfere with or open a postal packet or mail.  There are exemptions.  The offence may be prosecuted summarily or on indictment.

The posting of some items is prohibited under legislation. It is an offence to send by post any item which may damage any other postal packet or injure any person. It is an offence to enclose anything or have on its cover any words or marks that are obscene, grossly offensive or menacing.  This does not apply to items that are expressly permitted under the terms and conditions of the postal service provider concerned.  The offence may be prosecuted summarily or on indictment.

It is an offence to obstruct the universal postal service provider in the course of its duties.  A person commits an offence if he does not leave a post office or related premises when required to do so by an employee who suspects that the person has interfered with the provision of the service. The offences are subject to summary prosecution.

It is an offence to insert a non-postal item in a post box or interfere with the exterior of a post box. A first offence is subject to summary conviction.  Later offences may be prosecuted on indictment.