S.I. No. 15/1998 - European Communities (Interconnection in Telecommunications) Regulations, 1998

S.I. No. 15 of 1998.

EUROPEAN COMMUNITIES (INTERCONNECTION IN TELECOMMUNICATIONS) REGULATIONS, 1998

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 97/33/EC^1 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) hereby make the following Regulations:

^1O. J. No. L199 of 26.7.1997, p. 32

1 Citation

1.

1. These Regulations may be cited as the European Communities (Interconnection in Telecommunications) Regulations, 1998.

2 Interpretation

2.

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);

"Act of 1996" means the Telecommunications (Miscellaneous Provisions) Act, 1996 (No. 34 of 1996);

"Commission" means the Commission of the European Communities;

"Directive" means Directive 97/33/EC of the European Parliament and the Council of 30 June 1997;

"Director" means the Director of Telecommunications Regulation;

"functions" includes powers and duties and references in these Regulations to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;

"interconnection" means the physical and logical linking of telecommunications networks used by the same or a different organisation in order to allow the users of one organisation to communicate with users of the same or another organisation, or to access services provided by another organisation;

"interconnection agreement" means the technical and commercial arrangements agreed between two organisations in relation to interconnection;

"leased lines" means the telecommunications facilities which provide for transparent transmission capacity between termination points on a telecommunications network other than on-demand switching (switching functions which the user can control as part of the leased line provision);

"Member State" means a Member State of the European Communities;

"Minister" means the Minister for Public Enterprise;

"national numbering scheme" means the scheme administered by the Director which sets out the sequence of numbers or other characters which shall be used to route telephony traffic to specific locations;

"national telecommunications numbering resource" means the resource administered by the Director which sets out the sequence of numbers or other characters which shall be used to route telephony traffic;

"network termination point" means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to and efficient communication through that network and which are individually identified by numbers allocated from the national numbering scheme;

"organisation" means an organisation authorised by a Member State to provide public telecommunications networks and public telecommunications services;

"public mobile telephony network" means a telecommunications network used inter alia, for the provision of public telecommunications services including public mobile telephony services to mobile users between termination points which are individually identified by numbers allocated from the national telecommunications numbering resource;

"public mobile telephony service" means a telephony service whose provision consists wholly or partly in the establishment of radio communications to one mobile user and makes use wholly or partly of a public mobile telephony network;

"public network" means a public telecommunications network or a public mobile telephony network;

"public telecommunications network" means a telecommunications network used, inter alia, for the purpose of the provision of public telecommunications services between network termination points;

"public telecommunications service" means a telecommunications service available to the public;

"special rights" means rights that are granted by the State to organisations which, within a given geographical area, limit to two or more the number of such organisations authorised to provide a service or undertake an activity, otherwise than according to objective, proportionate and non-discriminatory criteria, or designate, otherwise than according to such criteria, several competing organisations as being authorised to provide a service or undertake an activity, or confer on any organisation or organisations, otherwise than according to such criteria, legal or regulatory advantages which substantially affect the ability of any other organisation to provide the same service or to undertake the same activity in the same geographical area under substantially the same conditions;

"telecommunications network" means the transmission equipment and, where applicable, switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, by radio, by optical or other electromagnetic means;

"telecommunications services" means services whose provision consists wholly or partly in the transmission or routing of signals on a telecommunications network or both transmission and routing;

"Treaty" means the Treaty establishing the European Community signed in Rome on 25 March 1957;

"universal service" means the services which are made available by Bord Telecom Eireann, in accordance with section 14 of the Act of 1983, to all users independent of their geographical location;

"users" means individuals, including consumers or organisations, using or requesting public telecommunications services.

• (2) A word or expression that is used in these Regulations and is also used in the Directive or in Directive 90/387/EEC^2 of 28 June 1990 has, except where the context otherwise requires, the same meaning in these Regulations that it has in the relevant Directive.

^2O. J. No. L192 of 24.7.1990, p. 1

• (3) In these Regulations unless otherwise indicated—

• (a) a reference to a regulation is a reference to a regulation of 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, and

• (c) a reference to an Article or an Annex is to an Article or Annex of the Directive.

• (4) In these Regulations a reference to Annexes IV, V and VII shall be construed as references to those Annexes including any amendments to those Annexes determined by the Commission in accordance with the procedure laid down in Article 16.

• (5) In these Regulations, a reference to an enactment or Regulation shall be construed as a reference to the enactment or Regulation as amended by any subsequent enactment or Regulation.

• (6) Before the first day of January, 1999, nothing in these Regulations shall be construed as conferring upon the holder of a licence within the meaning of section 111(2B) (inserted by the European Communities (Mobile and Personal Communications) Regulations, 1996 ( S.I. No. 123 of 1996 )) of the Act of 1983 to provide public mobile telephony networks or services any entitlement or right to conclude an interconnection agreement with any organisation other than Bord Telecom Eireann for the delivery, in the context of the provision of public mobile telephony networks or services, of telecommunications traffic between points within the State and points outside the State or an obligation on any organisation other than Bord Telecom Eireann to provide such interconnection to the organisations licensed under section 111(2) of the Act of 1983.

• (7) These Regulations shall not apply to radio or television broadcasting, re-broadcasting, transmission or re-transmission within the meaning of the Broadcasting Authority Acts, 1960 to 1993, the Radio and Television Act, 1988 (No. 20 of 1988), the Wireless Telegraphy Acts, 1926 to 1988, and the Broadcasting Act, 1990 (No. 24 of 1990), governing the distribution of audio or audiovisual programmes intended for the general public.

• (8) Nothing in these Regulations shall entitle an organisation other than Bord Telecom Eireann to offer to provide voice telephony services within or from the State or to establish a public telecommunications network before the first day of January, 2000.

3 Interconnection

3.

3. (1) Subject to these Regulations, organisations may make technical and commercial arrangements for interconnection for the purpose of the provision of services by the parties involved or other parties who have access to the network concerned.

• (2) Without prejudice to the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 (No. 10 of 1993), and any requirements of the law relating to personal data and privacy, organisations which enter into interconnection agreements shall respect the confidentiality of information transmitted or stored.

4 Rights and Obligations for Interconnection

4.

4. (1) An organisation in any of the classes specified in paragraph (2)—

• (a) shall have a right to negotiate an interconnection agreement with any other organisation in any of the classes specified in paragraph (2), and

• (b) when requested by any other organisation in any of the classes specified in paragraph (2), shall have an obligation to negotiate an interconnection agreement with that organisation.

• (2) The organisations referred to in paragraph (1) are organisations—

• (a) which are authorised pursuant to the Act of 1983, and which provide all or any of the following:

• (i) a public telecommunications network,

• (ii) voice telephony services,

• (iii) a public mobile telephony network,

• (iv) a public mobile telephony service, or

• (v) leased lines to users' premises,

or

• (b) whose names have been notified to the Commission by other Member States on the basis that those organisations are subject to the provisions of the Directive concerning organisations with significant market power or to which Annex II applies.

• (3) At the request of an organisation in any of the classes specified in paragraph (2), the Director may agree to limit the obligation to negotiate interconnection referred to in paragraph (1) on a temporary basis and on the grounds—

• (a) that there are technically and commercially viable alternatives to the interconnection requested, and

• (b) that the requested interconnection is inappropriate in relation to the resources available to meet the request.

• (4) Any limitation imposed by the Director in accordance with paragraph (3) shall be effected by way of a notice issued to the parties concerned which shall have regard to the opinions of the organisation seeking interconnection and of the organisation seeking to limit the obligation to negotiate interconnection.

• (5) A notice issued for the purpose of paragraph (4) shall contain a full statement of the reasons for which it is issued and shall be published in accordance with regulation 15.

• (6) An organisation in any of the classes specified in paragraph (2) (a)—

• (a) which is designated as having significant market power in accordance with regulation 5, and

• (b) which fails to meet a reasonable request for access to the network including access at points other than the termination points offered to the majority of users,

shall be guilty of an offence.

• (7) It shall be a defence to a prosecution under paragraph (6)(b) for an organisation to prove that a request referred to in that paragraph was unreasonable having regard to the resources available to the organisation to meet that request.

• (8) Subject to regulation 2(8), an organisation in any of the classes specified in paragraph (2)(a) which has been designated by the Director as having significant market power in accordance with regulation 5 shall, when requested by an organisation authorised to provide a public telecommunications service, have an obligation to negotiate an interconnection agreement with that organisation.

• (9) Paragraph (8) shall not apply unless the organisation authorised to provide a public telecommunications service is providing a public telecommunications service at the time it seeks to enter into an interconnection agreement.

5 Designation of organisations with significant market power

5.

5. (1) Subject to paragraphs (2) and (3), an organisation shall be designated by the Director as having significant market power when it has a share of more than 25 per cent of a particular telecommunications market in the geographical area in the State within which the organisation is authorised pursuant to the Act of 1983 to provide services.

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

• (3) The Director may determine—

• (a) that an organisation with a market share of less than 25 per cent in the relevant market has significant market power and any such organisation shall be designated by the Director as having significant market power for the purposes of these Regulations,

or

• (b) that an organisation having a market share of more than 25 per cent in the relevant market has not significant market power.

• (4) The Director shall by the 31st day of January, 1998, and, in the event of any change, immediately thereafter, notify the Commission of the names of organisations which—

• (a) have been designated by the Director as having significant market power,

or

• (b) provide public mobile telephony networks or public mobile telephony services and have significant market power in the market in the State for interconnection determined in accordance with paragraphs (1) and (3).

• (5) A list of the names of the organisations which have been notified by the Director to the Commission pursuant to paragraph (4) shall be made available by the Director to any interested party on a request being made to the Director in accordance with regulation 15.

• (6) In making a determination under this regulation the Director shall have regard to—

• (a) the turnover of the organisations concerned,

• (b) the control exercised or capable of being exercised by the organisations concerned of the means of access to users,

• (c) the access to financial resources of the organisations concerned,

and

• (d) the experience of the organisations concerned in providing products and services in the market.

• (7) In this regulation "market power" includes the ability of the organisation concerned to influence market conditions.

6 Universal Service

6.

6. (1) The Director shall, in accordance with this regulation, determine whether the obligation of Bord Telecom Eireann to provide universal service pursuant to section 14 of the Act of 1983 represents a net cost to that company.

• (2)
• (a) In order to facilitate a determination by the Director under paragraph (1), Bord Telecom Eireann shall, before the first day of April, 1998, and on the first day of April in each year thereafter, calculate the net cost of its universal service obligation in accordance with Annex III.

• (b) The calculation referred to in subparagraph (a) shall relate to such period of 12 months as may be specified by the Director from time to time.

• (3) The calculation referred to in paragraph (2) shall be audited by the Director or by a person appointed by the Director and the result of the cost calculation and the conclusions of the audit shall be made available by the Director to the public on a request being made to the Director for that purpose in accordance with regulation 15.

• (4) Where the Director determines that the obligation to provide universal service represents a net cost to Bord Telecom Eireann, and in the opinion of the Director the net cost represents an unfair burden on that company, the Director shall establish a mechanism in order to share the net cost of universal service between the organisations referred to in subparagraphs (i) and (ii) of regulation 4(2)(a).

• (5) In determining whether the obligation to provide universal service represents an unfair burden to Bord Telecom Eireann, the Director shall have regard to market benefits accruing to that company as a result of its obligation to provide universal service.

• (6) The mechanism referred to in paragraph (4), which shall not come into operation before the first day of January, 2000, may take the form of—

• (a) a fund established for the purpose of sharing the net cost of universal service in accordance with paragraph (4) and administered by or on behalf of the Director to which the organisations specified in subparagraphs (i) and (ii) of regulation 4(2)(a) shall contribute and from which Bord Telecom Eireann shall be reimbursed in respect of any net cost associated with the provision of universal service, or

• (b) a supplementary charge added to the charge for interconnection to the public telecommunications network or public telecommunications services of Bord Telecom Eireann.

• (7) The Director shall specify the contributions to be made in accordance with paragraph (4) and, in this regard, shall take account of the principles of transparency, non-discrimination and proportionality imposed by the Directive.

• (8) The details of the mechanism referred to in paragraph (4) and the principles for cost sharing shall be made available by the Director to the public on request on or before the first day of November, 1998, and in each calendar year thereafter no later than the first day of November, in accordance with regulation 15.

• (9) On or before the first day of November, 1998, and no later than the first day of November in each year thereafter, the Director shall publish an annual report giving the calculated net cost of universal service obligations and identifying the contributions made by all the parties involved.

• (10) The Director shall notify each organisation within the classes specified in subparagraphs (i) and (ii) of regulation 4(2)(a), from time to time, of its obligation to contribute to the cost of universal service including the amount, manner and timing of payments to be made.

• (11) An organisation 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 organisation fails to pay the amount in the time and manner specified it shall be guilty of an offence.

• (12) Any amount payable to the Director pursuant to this regulation that remains unpaid shall be recovered by the Director as a simple contract debt in any court of competent jurisdiction.

• (13) 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 indirect financial benefits accruing to the company arising from its obligation to provide universal service.

7 Non-discrimination and transparency

7.

7. (1) The organisations specified in regulation 4(2)(a) which have been designated by the Director as having significant market power pursuant to regulation 5 shall:

• (a) adhere to the principle of non-discrimination imposed by the Directive with regard to interconnection offered to others and—

• (i) shall provide similar conditions in similar circumstances to interconnected organisations providing similar services, and

• (ii) shall provide interconnection facilities and information to others under the same conditions and of the same quality as they provide for their own services or those of their subsidiaries or partners;

• (b) provide on request such information and specifications to organisations considering interconnection in order to facilitate conclusion of an agreement and the information provided shall include changes planned for implementation within the next six months following that request, unless otherwise agreed by the Director;

• (c) provide copies of any interconnection agreements to the Director and such agreements shall, subject to paragraph (3), with the exception of those parts which deal with the commercial strategy of the parties, be made available by the Director to interested parties on a request being made to the Director in accordance with regulation 15, and

• (d) ensure that information received from an organisation seeking interconnection is used only for the purpose for which it was supplied and that it shall not be passed to other parts of the organisation concerned or subsidiaries or partners for whom such information could provide a competitive advantage.

• (2) The Director shall determine which parts of interconnection agreements deal with the commercial strategy of the parties to an agreement.

• (3) For the purposes of paragraph (1)(c), copies of the agreements made available to interested parties shall include details of interconnection charges, terms and conditions and any payments towards the net cost of universal service.

• (4) An organisation which fails to comply with paragraph (1)(a), (c) or (d) shall be guilty of an offence.

8 Principles for interconnection charges and cost accounting systems

8.

8. (1) This regulation shall apply to organisations specified in subparagraphs (i), (ii) and (v) of regulation 4(2)(a) which have been designated by the Director as having significant market power in accordance with regulation 5.

• (2) Paragraphs (3), (4), and (5) shall apply to organisations specified in subparagraphs (iii) and (iv) of regulation 4(2)(a) which have been designated by the Director as having significant market power in the market in the State for interconnection.

• (3) An organisation imposing a charge for interconnection shall ensure that charges for interconnection shall follow the principles of transparency and cost orientation imposed by the Directive.

• (4) Where a dispute or a difference arises in relation to a charge for interconnection and the Director intervenes under regulation 10(8), the burden of proving to the Director that charges are derived from actual costs (including a reasonable rate of return on investment) shall lie with the organisation providing interconnection to its facilities.

• (5) The Director may direct an organisation to justify its charges for interconnection and, where appropriate, shall direct that charges be adjusted in cases where an interconnection charge does not comply with paragraph (3).

• (6) An organisation to whom a direction is issued under paragraph (5) to adjust its charges for interconnection shall comply with the direction.

• (7) An organisation obliged to offer to provide interconnection shall publish a reference interconnection offer and shall re-publish the offer where there is any change made and shall notify the Director as to the manner in which such information is published, and it shall include the elements identified in Annex IV as appropriate.

• (8) Different terms and conditions for interconnection may be set for different classes of organisations which are authorised to provide networks and services where such differences can be objectively justified on the basis of the type of interconnection provided.

• (9) The Director may direct an organisation to justify its reference interconnection offer and, where appropriate, shall direct that the offer be adjusted so as to ensure that the offer is transparent and cost-oriented and satisfies the requirements of these Regulations.

• (10) Where an organisation adjusts the reference interconnection offer and the Director subsequently directs the organisation concerned to implement changes to the adjusted offer in accordance with this regulation, the changes required by the Director may be retrospective in effect to the date of introduction of changes in the reference interconnection offer by the organisation concerned.

• (11) An organisation to whom a direction is issued under paragraph (9) or (10) shall comply with the direction.

• (12) An organisation providing interconnection shall ensure that—

• (a) charges for that interconnection shall be sufficiently unbundled so that an applicant is not required to pay for anything not strictly related to the service requested and that any charges relating to the sharing of the net cost of providing universal service shall be identified separately,

• (b) its cost accounting systems are suitable for implementation of the requirements of this regulation and are documented to a sufficient level of detail as indicated in Annex V, and

• (c) that a description of the cost accounting system showing the main categories under which costs are grouped and the approach used for the allocation of costs to interconnection is made available to interested parties on a request being made to the organisation.

• (13) The Director shall verify that the cost accounting systems of the organisations referred to in paragraph (1) comply with this regulation and verification may be carried out, at the option of the Director, by the Director or by a person engaged by, but independent of, the organisation concerned, and approved of in advance by the Director.

• (14) Where justified in accordance with this regulation, the Director may direct the organisation concerned to carry out adjustments to its cost accounting system.

• (15) An organisation to whom a direction is issued under paragraph (14) shall comply with the direction.

• (16) An organisation which fails to comply with paragraphs (3), (6), (7), (11) and (15) shall be guilty of an offence.

• (17) In this regulation "reference interconnection offer' means an offer to provide an interconnection facility that includes a description of the interconnection offerings setting out the particular components according to market needs and all of the terms and conditions for interconnection to be satisfied by a person wishing to enter into an interconnection agreement.

9 Accounting Separation and Financial Reports

9.

9. (1) Any organisation which provides a public network or a public telecommunications service and which has special or exclusive rights for the provision of services in other sectors within or outside the State—

• (a) shall keep a separate audited profit and loss account and audited balance sheet for the telecommunications activities as if these activities were undertaken by a company for the purposes of section 148 of the Companies Act, 1963 (No. 33 of 1963), and

• (b) shall ensure that such accounts identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to their telecommunications activities including an itemised breakdown of fixed assets and structural costs, or that the telecommunications activities are identifiable in the accounts.

• (2) The organisations specified in regulation 4(2)(a) and designated by the Director as having significant market power in accordance with regulation 5 and which offer interconnection services to other organisations shall keep separate accounts for—

• (a) their activities related to interconnection covering both interconnection provided to their own services and subsidiaries and interconnection services provided to other organisations, and

• (b) other activities,

so as to identify elements of cost and revenue with the basis of their calculation and the detailed attribution methods used, related to their interconnection activity, including an itermised breakdown of fixed asset and structural costs.

• (3) Any organisation which provides a public network or a public telecommunications service shall provide such financial information as may be required by the Director from time to time and to the level of detail required.

• (4) An organisation which fails to comply with the requirements of paragraph (3) within a reasonable time period or a period specified by the Director shall be guilty of an offence.

• (5) The Director may publish such information obtained pursuant to paragraph (3) as he or she considers shall contribute to an open and competitive market and shall take account of considerations of commercial confidentiality.

• (6) The financial reports relating to the accounts of the organisations referred to in this regulation shall be submitted to independent audit and published by the organisations concerned following their audit within six months of the end of the accounting year of those organisations unless otherwise agreed by the Director.

• (7) An organisation which fails to comply with paragraphs (1), (2) or (6) shall be guilty of an offence.

10 General functions of the Director

10.

10. (1) In the exercise of his or her functions under these Regulations, the Director shall encourage and secure adequate interconnection in the interests of all users in a manner that promotes economic efficiency and gives the maximum benefit to users and in doing so shall have regard to:

• (a) the need to ensure satisfactory communications for users;

• (b) the need to stimulate a competitive market in telecommunications services;

• (c) the need to ensure the fair and proper development of a harmonised European telecommunications market;

• (d) the need to cooperate with regulatory authorities in other Member States;

• (e) the need to promote the establishment and development of trans-European networks and services, and the interconnection of national networks and interoperability of services, as well as access to such networks and services;

• (f) the principles of non-discrimination (including equal access) and proportionality, and

• (g) the need to maintain and develop universal service.

• (2) The Director may in relation to interconnection agreements—

• (a) set conditions which the Director may specify as a condition precedent to the conclusion of an interconnection agreement in the areas listed in Part 1 of Annex VII which said conditions shall be published by the Director in accordance with regulation 15, and

• (b) encourage coverage of the issues listed in Part II of Annex VII.

• (3) The Director may, from time to time, intervene on his or her initiative, and shall intervene if requested by any party concerned, in order to specify issues which shall be included in an interconnection agreement or to lay down specific conditions to be observed by one or more parties to such an agreement and the Director may direct that those issues or conditions be included in the interconnection agreement and it shall be an offence to fail to comply with a direction of the Director under this paragraph.

• (4) In exceptional cases, the Director may direct that changes be made to an interconnection agreement in order to ensure effective competition or interoperability of services for users and it shall be an offence to fail to comply with a direction of the Director under this paragraph.

• (5) The conditions set or changes directed by the Director pursuant to paragraphs (3) and (4) may include, inter alia, conditions designed to ensure effective competition, technical conditions, tariffs, supply and usage conditions, conditions as to compliance with relevant standards, compliance with essential requirements, protection of the environment or maintenance of end-to-end quality of service.

• (6) The Director may, at any time on his or her own initiative or if requested by either party, set the period within which negotiations on interconnection shall be completed and if agreement is not reached within that period the Director shall take steps to conclude an agreement under procedures to be laid down by the Director.

• (7) The Director shall establish and maintain procedures in order to procure the agreement referred to in paragraph (6) and the procedures shall be made available to the public in accordance with regulation 15.

• (8) In the event of a dispute between organisations in relation to interconnection, the Director shall, at the request of either party, take steps to resolve the dispute within six months of that request being made and the resolution of the dispute (in these Regulations referred to as a "finding" of the Director) shall represent a fair balance between the legitimate interests of both parties.

• (9) In seeking to resolve a dispute under this regulation, the Director shall take into account, inter alia, —

• (a) the user interest,

• (b) regulatory obligations or constraints imposed on any of the parties,

• (c) the desirability of stimulating innovative market offerings, and of providing users with a wide range of telecommunications services in the State and in the European Community,

• (d) the availability of technically and commercially viable alternatives to the interconnection requested,

• (e) the desirability of ensuring equal access arrangements,

• (f) the need to maintain the integrity of the public telecommunications network and the interoperability of services,

• (g) the nature of the request in relation to the resources available to meet the request,

• (h) the relative market positions of the parties,

• (i) the public interest (including but not restricted to the protection of the environment),

• (j) the promotion of competition, and

• (k) the need to maintain a universal service.

• (10) The Director shall make any finding under paragraph (8) available to interested parties on a request being made to the Director and the parties to the dispute shall be given a full statement of the reasons on which the decision is based.

• (11) An organisation which fails to comply with a finding of the Director under paragraph (8) shall be guilty of an offence.

• (12) In cases where organisations specified in regulation 4(2)(a) have not interconnected their facilities, the Director, in compliance with the principle of proportionality and in the interest of users, may, by way of a written direction, direct the organisations concerned, to interconnect their facilities in order to protect essential public interests and, where appropriate, may specify terms of interconnection for this purpose.

• (13) An organisation which fails to comply with a written direction issued by the Director under paragraph (12) shall be guilty of an offence.

11 Essential Requirements

11.

11. (1) Notwithstanding the provisions of this regulation, the Director shall ensure that conditions attached to interconnection agreements are not inconsistent with any measures which may be adopted pursuant to Articles 3(5) or 5(3) of Directive 90/387/EEC in relation to essential requirements.

• (2) The organisations specified in regulation 4(2)(a)—

• (a) shall not refuse to negotiate terms for interconnection by reason of any obligations related to the security of network operations or the maintenance of network integrity,

• (b) shall ensure that any conditions for interconnection related to the security of network operations or the maintenance of network integrity are proportionate and non-discriminatory in nature and are based on objective criteria, and

• (c) shall notify the conditions referred to in paragraph (b) to the Director and the Director may require those organisations, by way of a written direction, to effect changes to such conditions in interconnection agreements.

• (3) An organisation shall take such steps as may be reasonably practicable to maintain the availability of the network or service in exceptional cases of force majeure such as extreme weather conditions, flood, lightning or fire.

• (4) In the event of the occurrence of the exceptional cases of force majeure referred to in paragraph (3), the organisation concerned shall maintain the highest level of service possible to meet any priorities which may be specified by the Director.

• (5) An organisation shall not refuse to negotiate terms for interconnection by reason of any obligations imposed under or by virtue of paragraphs (3) or (4).

• (6) The Director may impose conditions in interconnection agreements—

• (a) in order to ensure interoperability of services, including conditions designed to ensure satisfactory end-to-end quality of service and conditions imposed under this regulation may include implementation of specific technical standards or specifications or codes of conduct agreed by operators in the telecommunications market, or

• (b) in order to ensure the protection of data to the extent necessary to promote compliance with relevant regulatory or statutory provisions on the protection of data including protection of personal data, the confidentiality of information processed, transmitted or stored and the protection of privacy.

• (7) An organisation which fails to comply with a condition imposed by the Director under paragraph (6) shall be guilty of an offence.

• (8) Where the Director proposes to impose conditions based on essential requirements in interconnection agreements pursuant to this regulation, these conditions shall be published in accordance with regulation 15.

• (9) An organisation which fails or refuses to comply with a direction or fails or refuses to provide information under paragraph (2)(c) or which falls to comply with paragraph (2)(a) or (b), (3), (4) or (5) shall be guilty of an offence.

• (10) In this regulation—

"essential requirements" means non-economic reasons in the public interest which may cause the Director to impose conditions on the establishment or operation of telecommunications networks or the provision of telecommunications services and shall include the security of network operations, the maintenance of network integrity and, where justified, the interoperability of services, data protection, the protection of the environment and town and country planning objectives as well as the effective use of the radio frequency spectrum and the avoidance of harmful interference between radio-based telecommunications systems and other space-based or terrestrial technical systems;

"data protection" includes protection of personal data, the confidentiality of information transmitted or stored and the protection of privacy.

12 Facility sharing

12.

12. (1) Notwithstanding paragraph (5), an organisation shall have the right to negotiate a facility sharing agreement with any other organisation and such agreement shall, subject to paragraphs (2) and (3), be a matter for commercial and technical agreement between the parties concerned.

• (2) The Director may, at the request of any party to a dispute in relation to facility sharing, intervene to resolve the dispute in accordance with paragraphs (8), (9), (10) and (11) of regulation 10 and a facility sharing agreement shall be deemed to be an interconnection agreement for this purpose.

• (3) Notwithstanding paragraph (2), the Director may impose conditions in relation to facility sharing arrangements only after an appropriate period of public consultation during which all interested parties must be given an opportunity to express their views and those conditions may include rules for the apportionment of the costs of facility sharing.

• (4) In this regulation "facility-sharing" means the sharing of the use of all physical infrastructures for the purposes of providing telecommunications services including, but not limited to ducts, poles, antennae support structures, property, buildings and cabins.

• (5) Subject to paragraphs (6) and (7), where an organisation has either made an application to a road authority or invoked a right under existing law to carry out road works which include the opening of a public road for—

• (a) the establishment of telecommunications infrastructure underground, or

• (b) the carrying out of maintenance on that infrastructure including repair, replacement or addition or removal of cable or other telecommunications equipment,

and where town planning or environmental control considerations as determined by the relevant road authority could be reasonably expected at some future date to deprive other organisations from applying for or invoking such rights on similar terms, a road authority may require the sharing of unutilised underground telecommunications infrastructure by two or more organisations operating in its functional area as a precondition for the carrying out of such road works by those organisations in any part of its functional area.

• (6) Paragraph (2) shall apply in respect of any dispute concerning the negotiation of a facility sharing agreement entered into by organisations pursuant to paragraph (5).

• (7) A road authority may not make a requirement under paragraph (5) unless there has been an a fair and reasonable period of public consultation by the road authority during which time any interested parties have been given an opportunity to express their views.

• (8) An organisation shall, on a request being made by a road authority, provide:

• (a) such information as the authority may require in relation to the utilisation of underground telecommunications infrastructure owned or operated by it, and,

• (c) such access to underground telecommunications infrastructure owned or operated by it as may be necessary,

to enable the road authority exercise its functions under this regulation.

• (9) An organisation which—

• (a) fails to comply with a requirement regarding the sharing of unutilised underground telecommunications infrastructure made by a road authority under paragraph (5), or

• (b) fails to comply with a request to provide information or to permit access under paragraph (8),

shall be guilty of an offence.

• (10) Summary proceedings for an offence under paragraph (9) may be brought by the road authority.

• (11) In this regulation—

"road authority" means a road authority within the meaning of the Roads Act, 1993 (No. 14 of 1993);

"public road" means a public road within the meaning of the Roads Act, 1993 ;

"road" means a public road within the meaning of the Roads Act, 1993 ;

"road works" means the opening of any public road for the purpose of the establishment or the undertaking of work on telecommunications infrastructure.

13 Numbering

13.

13. (1) The national telecommunications numbering resource shall be administered by the Director, subject to directions issued by the Minister pursuant to paragraph (b) of section 3(7) of the Act of 1996.

• (2) An organisation which allocates to users numbers or other characters from the national numbering scheme that have not specifically been allocated to that organisation by the Director for the purpose of providing public telecommunications services shall be guilty of an offence.

• (3) The Director shall provide adequate numbers and number ranges or other characters for all public telecommunications services in a manner that gives fair and equal treatment to all organisations providing public telecommunications services.

• (4) The Director shall put in place procedures to ensure that the allocation of individual numbers or number ranges or other characters by the Director is carried out in an objective, transparent, non-discriminatory and timely manner.

• (5) The Director may lay down conditions for the use of certain prefixes or certain short codes, in particular where these are used for services of general public interest or to ensure equal access and without prejudice to the generality of the aforesaid these services shall include, but are not limited to freephone services, kiosk billed services, directory services and emergency services.

• (6) In this regulation "equal access" means a facility to ensure that users may gain access to the services of particular organisations on an equitable basis in relation to the digits which must be dialled.

• (7) The Director shall publish the main elements of the national telecommunications numbering resource, and all subsequent additions or amendments, in accordance with regulation 15, subject to limitations which may be imposed by the Minister on the grounds of national security.

• (8) The Director shall encourage the earliest possible introduction of a number portability facility whereby users who so request can retain particular telephone numbers on public networks independent of the persons providing the service.

• (9) Notwithstanding paragraph (8), organisations to which numbers have been allocated by the Director from the national numbering scheme shall ensure that a number portability facility is available before the first day of January, 2003.

• (10) Organisations providing or offering to provide interconnection shall ensure that charges for interconnection related to the provision of a number portability facility shall be reasonable.

• (11) Organisations which are allocated numbers from the national telecommunications numbering resource shall not discriminate in the allocation of number sequences used to give access to the services of other telecommunications operators and an organisation which fails to comply with this requirement shall be guilty of an offence.

• (12) An organisation may, subject to such terms and conditions as it may specify to its customers, allocate to each of its customers a distinctive number or numbers to be used to deliver telephony traffic to that customer from the range of customer numbers allocated to the organisation by the Director.

14 Technical Standards

14.

14. (1) Organisations specified in regulation 4(2)(a) shall take full account of standards listed in the Official Journal of the European Communities as being suitable for the purpose of interconnection.

• (2) In the absence of the standards referred to in paragraph (1), the organisations referred to in paragraph (1) shall provide technical interfaces for interconnection according to all or any of the following—

• (a) standards adopted by European standardisation bodies such as the European Telecommunications Standards Institute or the European Committee for Standardisation/European Committee for Electrotechnical Standardisation,

• (b) in the absence of the standards referred to in subparagraph (a), international standards or recommendations adopted by the international Telecommunications Union, the International Organisation for Standardisation or the International Electrotechnical Committee,

• (c) in the absence of the standards referred to in subparagraphs (a) and (b), such standards as may be approved by the Director having regard to standards in use elsewhere in the European Community.

• (3) An organisation which fails to comply with a requirement of this regulation to provide technical interfaces according to the standards referred to in this regulation shall be guilty of an offence.

15 Publication and Access to Information

15.

15. (1) With regard to the information referred to in regulations 10(2), 10(7), (11)(8) and 13(7), the Director shall ensure that up to date information is published in an appropriate manner in order to provide easy access to that information for interested parties.

• (2) The Director shall publish a notice in the Iris Oifilgiúil as to the manner in which the information referred to in paragraph (1) and the reference interconnection offer referred to in regulation 8(6) is published.

• (3) The Director shall ensure that the information referred to in regulations 4(5), 5(5), 6(3), 6(8), 7(1)(c) and 9(5) is made available from his or her office on request to interested parties, free of charge, during normal working hours.

• (4) The Director shall publish a notice in the Iris Oifilgiúil as to the times and locations at which the information referred to in paragraph (3) shall be available.

• (5) The Director shall notify the Commission before the 31st day of January, 1998, and, in the case of any change, immediately thereafter, of the manner in which the information referred to in paragraphs (1) and (3) is made available.

16 Procedures for resolving disputes between organisations operating under authorisations provided by different Member States

16.

16. (1) Where an organisation has a complaint against another organisation in relation to interconnection, that organisation may refer the complaint to the national regulatory authority of the Member State that has granted the authorisation to the organisation against which the complaint is made.

• (2) The national regulatory authority to whom a complaint has been referred under paragraph (1) shall take steps to resolve the dispute in accordance with regulation 10(8).

• (3) Where there are concurrent disputes between the same two organisations, the national regulatory authorities concerned shall, on request of either party in dispute, coordinate their efforts in order to bring about resolution of the disputes, in accordance with the general functions set out in regulation 10(1), within six months of referral.

• (4) The resolution of disputes to which this regulation relates shall represent a fair balance between the legitimate interests of both parties to the dispute and be consistent with the requirements of these Regulations and European Community law.

• (5) Without prejudice to—

• (a) any action the Commission or any Member State may take pursuant to the Treaty, or

• (b) the rights of the party invoking the procedure in paragraphs (1) to (3) or of any other party under the law of the State;

the procedure set out in paragraphs (1) to (4) shall be available for the resolution of interconnection disputes between organisations operating under authorisations granted by different Member States, where such dispute does not fall within the responsibility of a single national regulatory authority exercising its power in accordance with Article 9.

17 Notifications to the Commission

17.

17. The Director shall notify to the Commission by the 31st day of January, 1998, and, in the event of any change, immediately thereafter, the names of those organisations which—

• (a) have universal service obligations within the State for the provision of the public telecommunications network telecommunications services and which are authorised to collect directly a contribution to the net cost of universal service, and

• (b) are covered by Annex II.

18 Penalties

18.

18. (1) An organisation which is guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding£1,500.

• (2) Summary proceedings for an offence under these Regulations may be brought and prosecuted by the Director.

• (3) Where an offence under these Regulations is committed by a body corporate and is proved to have been 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 similar 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 proceeded against and punished as if he or she were guilty of the first-mentioned offence.

19 Monitoring of compliance

19.

19. (1) An organisation which enters into an interconnection agreement shall provide a copy of the agreement to the Director.

• (2) An organisation which fails to comply with paragraph (1) within 30 days of the conclusion of an interconnection agreement shall be guilty of an offence.

• (3) For the purposes of monitoring compliance with these Regulations or a decision, request or direction of the Director made under these Regulations, the Director may in response to a complaint by a third party or on his or her own initiative, require an organisation, which in the opinion of the Director may be subject to an obligation contained in these Regulations, to produce, within such time period as may be laid down by the Director, such information as may be required by the Director to prove that the relevant obligation or decision is being complied with.

• (4) An organisation which fails to produce information required by the Director under paragraph (3) when requested to do so shall be guilty of an offence.

• (5) The functions of the Director under these Regulations shall be deemed to be included in the functions conferred on the Director under the Act of 1996.

• (6)
• (a) Where the Director is authorised or required by or under these Regulations to issue a decision, request, direction or notice, to specify a matter or to communicate a matter to an organisation it shall be done in writing and addressed to the organisation by name and may be served on or given to that organisation in one of the following ways—

• (i) by delivering it to the organisation,

• (ii) by leaving it at the address at which the organisation ordinarily resides, or in a case in which an address for service has been furnished, at that address,

• (iii) by sending it by post in a prepaid letter to the address at which the organisation ordinarily resides or, in a case in which an address for service has been furnished, to that address.

• (b) For the purposes of this paragraph, an organisation which is a company within the meaning of the Companies Act, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

• (7) Where a notice or other matter is required by these Regulations to be given to the Director it shall be sent by post in a prepaid registered letter to the Director of Telecommunications Regulations, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1, or such other address as may be specified by the Director in a public notice in a newspaper circulating in the State.

• (8) Subject to regulation 20 and notwithstanding any dispute or complaint arising from a decision or direction of the Director under these Regulations, whether as to the reasonableness or lawfulness of these Regulations or for any other reason, the organisation to which the decision is addressed or the direction issued shall comply with the decision or direction pending the determination of the dispute or complaint and, notwithstanding any legal proceedings contemplated or commenced in connection with that decision or direction, the organisation concerned shall continue its operations in compliance with the decision or direction pending that determination.

• (9) An organisation may, within 30 days of receipt of a decision or direction from the Director pursuant to paragraph (1), appeal to the High Court and the High Court may confirm the decision or direction or direct the Director, as may be appropriate, to rescind the decision or direction and the Director shall do so.

20 Compliance with directions and findings by Director

20.

20. (1) This Regulation applies to obligations to comply with a direction issued by the Director under regulations 8(5), 8(9), 8(10), 8 (14), 10 (3), and 10 (4) and a finding by the Director under regulation 10(8).

• (2) A direction or finding to which this regulation applies shall take effect—

• (a) if no appeal is taken against the direction or finding, on the expiration of the period during which such an appeal may be taken or the day specified in the direction or finding as that on which it is to come into effect, whichever is the later, or

• (b) in case an appeal is taken, on the day next following the day on which the direction or finding is confirmed on appeal or the appeal is withdrawn or the day specified in the direction or finding as that on which it is to come into effect whichever is the later.

• (3) The bringing of an appeal shall have the effect of suspending the operation of the direction or finding.

• (4) A person who does not wish to comply with a direction or finding may within the period of 7 days beginning on which the direction or finding is served on that person appeal to a judge of the High Court against the direction or finding and the High Court may—

• (a) if the High Court is satisfied that in the circumstances of the case it is reasonable to do so, confirm the direction or finding with or without modification, or

• (b) annul the direction or finding.

• (5) A person who appeals against a direction or finding to which this regulation applies shall at the same time notify the Director of the appeal and the grounds of the appeal and the Director shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

GIVEN under my Official Seal, this 22nd day of January, 1998.

Mary O'Rourke, T.D.,

Minister for Public Enterprise.

EXPLANATORY NOTE

The purpose of these Regulations is to provide for a legal framework for agreement between providers of telecommunications networks of arrangements for the interconnection of their networks including the principles governing the rates to be charged for such services and related matters, to provide a basis for sharing between competing operators of the uneconomic costs of providing universal access to certain telecommunications services, to provide for the sharing of telecommunications facilities by telecommunications service providers and to empower the Director of Telecommunications Regulation to ensure that the regulatory requirements are complied with.