The EU framework for liberalisation and telecommunications commenced in 1990.
The role of the communications regulator is to promote and protect competition in the market. The EU policies envisaged that competition would be the primary driver as state monopolies are rolled back. The universal service concept is intended to service remote areas, notwithstanding that it may not be financially attractive, in order to maintain affordable access to universal service.
A package of new directives was adopted in 2002. Where an entity is dominant by having significant market power, the sector-specific regulation applies. Over time, sector-specific regulation has decreased as competition and liberalisation has taken hold and developed.
Over the last 25 years, various types of telecommunications media have converged. Internet and broadband services have converged with telephone and voice services. Fibre optic cable has replaced copper wires widely. Telecommunications and information technology have converged as traditional media have fused. Telephone and broadcast services can now be carried over the internet through a fixed point connection or through or mobile broadband.
ECN & ECS
An ECN is a transmission system involving routing switching or rerouting equipment and other resources that permit conveyance of signals by wire, radio, optical, electromagnetic means including satellite networks, mobile networks, electricity cable systems, networks for radio and television, broadcasting, cable TV networks.
An ECS is a service consisting wholly or mainly of the conveyance of electronic communications signals on a network (ECN) including telephone transmission and broadcasting. It excludes services providing or exercising editorial control over content and as an information society service which does not consist wholly or mainly of conveyance of signals on electronic communications networks.
Authorisations to ECN and ECS are issued in accordance with the EU authorisation directive. An authorised person may not transfer his registration, sub-grant it or authorise another.
Entities providing an ECS or ENN must obtain authorisation from COMREG. The authorisations are generally perpetual. COMREG may amend the right, conditions and procedures concerning the general authorisation. Where COMREG proposes making an amendment, it must consult and publish proposals.
Mobile phone operators and providers of fixed wireless service must obtain a licence for use of wireless telegraphy. It must be obtained in respect of the installation, maintenance and use a fixed satellite earth station. Certain regulations apply to satellite earth station equipment.
Internet providers are ECNs or ECSs depending if they operate their own transmission system. They thereby require authorisation. See the chapter on electronic communications and data privacy. There are restrictions on unsolicited marketing, cold e-mails, SMS messages without consent. There is a central opt-out register.
COMREG is the regulator of premium rate telecommunication services.
The grant of mobile telephony licence has been by way of competitive tenders.
There is a code of practice by COMREG in respect of sharing of sites by telecommunication providers. Fixed wireless point to multipoint access licences have been awarded by competition. Fixed wireless access local areas have been to wireless broadband providers.
Wireless licences are granted within the national frequency plan. Mobile licences are granted for 20 years and reviewed annually.
Obligations on Providers with Market Power
COMREG may impose obligations on operators. Under the EU legislation, COMREG analyses the markets taking account of guidelines. Where there is significant marker power, access directive sets out requiements. Universal service obligations should be imposed. When there is an effective market existing obligations should be removed.
The regulator’s options in relation to the SMP include
- obligations of transparency,
- non-discriminatory access,
- accounting separation,
- accounting and
- price control.
Public consultation pursuant to the framework directive is required. Each consultation is published. The entity has a right of reply and a right of appeal.
Significant Market Power
SNP/SMP refers to significant market power. Regulations are imposed on entities with significant market power where it exists in accordance with the EU criteria. Where there is an entity with significant market power, the measures taken should be tailored to the nature of the dominance or market power concerned. They should be proportionate and justified in the light of the objectives set out in the regulations.
Significant market power may exist in respect of certain markets. Eircom has been deemed to be have SMP in certain markets. Remedies have been applied including price caps and obligations.
O2, Meteor and Vodafone have SMP. Other providers have SMP in certain wholesale markets. RTE was found to have SMP in the market for wholesale broadcasting transmission services.Access, non-discrimination price control and transparency obligations apply.
A number of entities collectively such as Vodafone, O2, Meteor each have SMP. Obligations of non-discrimination, price control and transparency have been imposed.
USP Access Obligations
Eircom was USP until June 2009. Obligations are placed on the universal service provider to make available access to its electronic communication networks. Contracts with end users must contain minimum content.
The USP must satisfy reasonable requests to provide connections to the telephone network and access to publicly available services. Connections must be capable of carrying local, national, international, fax and narrowband internet access.
It must consider all requests for connection as reasonable if the expenditure is less than a set amount. The cost of the applicant should not exceed the standard connection fees. Where the connection fee is higher it is considered reasonable that the applicant pays standard connection charge plus incremental costs.
Connections provided by Eircom must carry local, national, and international calls, fax, narrow-band internet service. Eircom must keep a directory of all subscribers of publicly available telephone services including fixed and mobile numbers and allow access in accordance with criteria approved by ComReg.Eircom has been designated as the universal services provider.
The USP must provide measures to assist disabled persons including hearing devices, visual alerts and facilities for translation of voice messages for those with speech impairments. Provision is required for those with limited dexterity and mobility.
The universal service provider must maintain affordability. There is a price cap on the provision of subsidies and payments from the Department of Social Protection. Eircom was obliged pre-2009 to publish information on quality and service.
Other USP Obligations
Universal service directive and regulations require minimum services to end-users at affordable prices. They may include a range of services such as directories, directory enquiries services, operator assistance, public payphones and the provision of special facilities. Their obligations in relation to emergency services are higher than the case of other providers.
A directory of subscribers was formerly provided free of charge and updated annually. It was based on information in the national director database. This is maintained by Eircom and updated annually.
Publicly available telephone services for originating and receiving national and international calls are provided through numbers under the national telephone numbering plan. Numbering must comply with numbering conventions.
Public payphones must be provided to meet reasonable users end needs in terms of geographic coverage, numbers of telephones, access for disabled persons and quality of services. Specific measures are required for persons with disabilities, limited dexterity or mobility.
Certain facilities, amplifier phones, flashing lights etc must be provided. Affordability must be maintained.
The Department of Social and Family Affairs free rental scheme and vulnerable user scheme must be implemented by the USP.
Eircom is required to publish information on the quality of service, performance and providing universal services.
The roaming regulations provide for civil enforcement and compliance orders. Where an undertaking operating a network fails to comply with its obligations on the roaming or visiting network in relation to wholesale charges or a home provider has failed to comply with its obligations to roaming customers is should notify the undertaking of the findings and give it an opportunity to state its views or remedy any non-compliance within a month or such other period as agreed.
Where COMREG is of the opinion that the undertaking has not complied with the obligation it may apply to the High Court for such Order as may be appropriate. The Application may include application to pay up to €500,000 to COMREG by a financial penalty as COMREG may propose in light of non-compliance. The criteria set out above and circumstances are relevant to the High Court’s determination.
Emergency Call Service
The Minister may enter into a contract with an undertaking for the provision of emergency call answering services. The Commission may regulate the price and charges for handling emergency calls.
The price per call is to be fixed by contract with the Minister at the outset and is thereafter regulated by the Commission. The Commission is to be paid by the emergency call answering service. The emergency call answering system operator has a defence for acts done in the course of operating the service unless it is established the acts are done or omitted in bad faith or with gross negligence.
The Competition Act was amended in 2007 to give the Commission the powers of the Competition Authority in relation to breaches of competition law in the telecommunication sector. The Commission may investigate, at its own initiative or on foot of a complaint, breaches of competition law in the communication sector. It may delegate certain of its functions to any member of the Commission or its staff. It is to notify the Competition Authority before performing its functions under the Act.
There are obligations on the Commission and the Competition Authority to notify each other of suspected breaches of competition law. The bodies may enter agreements regarding the investigation and prosecution of offences in the telecommunication sector. The matter may be referred to the Minister in the event of a dispute. An undertaking is not liable to be prosecuted by both bodies for the same breach.
EU Regulation 2007 limits mobile network charges from foreign networks at the wholesale level. There is a limit on the retail market. The EU roaming regulations have measures to provide very good transparency in international roaming services.
The universal service obligation seeks to provide services to all end users and at affordable prices by providing obligations on universal service providers and providers of publicly available communication networks and services.
The numbering convention provides rules on the allocation and permitted use of numbers in the national numbering scheme. ComReg determines whether to issue number and rights to use numbers upon application. In the case of numbers allocated for specific purposes, where there is a right to use a number has exceptional economic value, it may be granted through a selective or competitive procedure.
Internet providers providing voice over internet protocol services may accordingly be ECS or ECN thereby requiring authorisation.
ComReg makes available has published guidelines on VOIP regulation. VOIP can be publically available telephone services. They require an authorisation.