Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010

PART 1 Preliminary and General

1. Short title, collective citation and construction.

1.— (1) This Act may be cited as the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010.

(2) The Principal Act, the Act of 2007 and this Act may be cited together as the Communications Regulation Acts 2002 to 2010 and shall be read together as one.

2. Definitions.

2.— In this Act—

“Commission” means Commission for Communications Regulation;

“Principal Act” means Communications Regulation Act 2002.

PART 2 Regulation of Premium Rate Services

3. Definitions (Part 2).

3.— In this Part—

“Act of 2007” means Communications Regulation (Amendment) Act 2007;

“broadcasting service” has the meaning assigned to it by the Broadcasting Act 2009 F1[, except that it does not include any audio or audiovisual services provided by way of the internet];

“end user” has the meaning assigned to it by section 13 (5);

“facility” in relation to the provision of premium rate services, includes a facility—

(a) for making a payment for goods or services,

(b) for entering a competition or claiming a prize,

(c) for registering a vote or recording a preference, or

(d) for enabling access to a premium rate service;

“licence” means a premium rate service licence;

“Minister” means Minister for Communications, Energy and Natural Resources;

“premium rate service” means a service having all of the following characteristics:

(a) it consists in the provision of the contents of communications (other than a broadcasting service) through an electronic communications network or by using an electronic communications service, which may include or allow the use of a facility made available to the users of the service,

(b) there is a charge for the provision of the service which exceeds the cost attributable to communications carriage alone, and

(c) the charge referred to in paragraph (b)is paid by the end user of the service directly or indirectly to the provider of the electronic communications network or electronic communications service used in connection with the provision of the service by means of a billing or other agreed payment mechanism;

“premium rate service licence” means a licence authorising a premium rate service provider to provide a premium rate service under and in accordance with section 6;

“premium rate service provider” means a person who does any or all of the following, for gain:

(a) provides the contents of a premium rate service,

(b) exercises editorial control over the contents of a premium rate service,

(c) packages together the contents of a premium rate service for the purpose of facilitating its provision,

(d) makes available a facility as part of a premium rate service,

(e) transfers a premium rate service from a content provider to one or more electronic communications networks, or

(f) provides the electronic communications service over which a premium rate service is provided, or provides the electronic communications network over which a premium rate service is transmitted;

“Regtel” means Regulator of Premium Rate Telecommunications Services Limited formed under the Companies Acts on 1 June 1995 (registration number 234027);

“specified premium rate service” means a premium rate service which is a premium rate service specified in regulations under section 7 as being a premium rate service which is required to be licensed under section 6.

4. Appointed day.

4.— The Minister may appoint a day to be the appointed day for the purposes of this Part and upon which this Part has effect.

5. Function of Commission to regulate premium rate services.

5.— (1) Section 10(1) of the Principal Act is amended—

(a) by inserting after paragraph (ca) (inserted by section 5(b) of the Act of 2007) the following:

“(cb) to ensure compliance by premium rate service providers with their obligations in relation to the provision, content and promotion of premium rate services,”,

and

(b) by substituting for paragraph (d) (inserted by section 5(c) of the Act of 2007) the following:

“(d) to carry out investigations into matters relating to—

(i) the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmissions of such services on such networks, and

(ii) the provision, content and promotion of premium rate services,”,

and that subsection, as so amended, is set out in the Table to this subsection.

TABLE.

10.— (1) The functions of the Commission are—

(a) to ensure compliance by undertakings with obligations in relation to the supply of and access to electronic communication services, electronic communications networks and associated facilities and the transmission of such services on such networks,

(b) to manage the radio frequency spectrum and the national numbering resource, in accordance with a direction under section 13,

(c) to ensure compliance by providers of postal services with obligations in relation to the provision of postal services,

(ca) to monitor the quality and efficiency of the emergency call answering service established under Part 6,

(cb) to ensure compliance by premium rate service providers with their obligations in relation to the provision, content and promotion of premium rate services,

(d) to carry out investigations into matters relating to—

(i) the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmissions of such services on such networks, and

(ii) the provision, content and promotion of premium rate services,

(da) for the purpose of contributing to an open and competitive market and also for statistical purposes, to collect, compile, extract, disseminate and publish information from undertakings relating to the provision of electronic communications services, electronic communications networks and associated facilities and the transmission of such services on those networks, and

(e) to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service of radio equipment.

(2) Where a specified premium rate service is advertised or promoted by means of a broadcasting service, it is the function of the Commission to ensure that the premium rate service provider, whose specified premium rate service is advertised or promoted, complies with the conditions attached to the licence in respect of that premium rate service.

6. Licence to provide premium rate services.

6.— (1) A person who intends to provide a specified premium rate service shall, before doing so, submit an application to the Commission for a licence to provide that service.

(2) An application under subsection (1) shall be in such form as the Commission may, from time to time, determine and shall contain, as decided by the Commission, in the case of any particular type or class of service all or any of the following information—

(a) the name of the person (“applicant”) intending to provide the premium rate service including, in the case of a body corporate, the company registration number,

(b) the names, addresses and contact details of relevant contact persons provided by the applicant including, in the case of a body corporate the names, addresses and contact details of the directors of the company,

(c) the business address of the applicant and, in the case of a body corporate, where that address differs from the address of its registered office, the address of its registered office,

(d) a description of the type of premium rate service to be provided, including—

(i) the trading and brand names under which each service is to be marketed to end users, including any short versions or variants of those names that appear in advertising,

(ii) the customer service contact information for each service, including website address, telephone number and e-mail address, and

(iii) a list of individual services that are being offered along with their linked premium rate numbers or any other service identifier which may be communicated to the customer or used as a billing reference on the customer’s bill,

(e) the potential end users for which each premium rate service is intended,

(f) the estimated date of commencement of the provision of each premium rate service, and

(g) such other relevant information the Commission considers appropriate.

(3) The Commission upon receipt of an application under subsection (1) may grant to the applicant a licence (“premium rate service licence”) to provide premium rate services, subject to any condition attached to the licence, or it may refuse a licence in accordance with subsection (4).

(4) The Commission may refuse to grant a licence on one or more of the following grounds:

(a) that the information required to be provided under subsection (2) has not been received by the Commission, or has been received but is deemed by the Commission to be incomplete, inaccurate or false,

(b) that the applicant or any company (within the meaning of the Companies Acts) with which the applicant was connected was, during the previous 5 years, convicted of an offence for—

(i) contravening section 12 or 13, or

(ii) failing to comply with Regulation 13 of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 (S.I. No. 535 of 2003),

(c) that any person responsible or proposed to be responsible for the management of the applicant’s business in relation to providing premium rate services has been refused a licence or had a licence suspended or revoked.

(5) The Commission shall notify the applicant of its decision to refuse to grant the applicant a licence and state the appeal procedure set out in section 11.

(6) A licensed premium rate service provider may provide any of the premium rate services set out in his or her licence.

(7) A licence is in force for the period stated in it. Different periods may be specified for different classes or types of premium rate services.

(8) A licence may be amended by the Commission following a notification to it under subsection (9).

(9) A licensed premium rate service provider shall notify the Commission of—

(a) any change to the information provided in accordance with subsection (2), at least 14 days before the change takes effect, or

(b) any new premium rate service which he or she wishes to provide, at least 14 days before the date of commencement of provision of that service.

(10) A premium rate service provider, who is authorised by Regtel to provide premium rate services under an authorisation which is in force immediately before the appointed day, is deemed to be granted a licence by the Commission under this section, which shall be in force for the period of 6 months after that day.

7. Regulations specifying conditions attached to premium rate service licence.

7.— (1) The Commission shall make regulations specifying—

(a) the class or type of premium rate services which require to be licensed under section 6,

(b) conditions (including the basis and circumstances upon which refunds may be made to end users) to be attached to licences to be observed by the holders of licences,

(c) that certain conditions do not apply to certain classes or types of premium rate services or premium rate service providers, and

(d) the information that licensed premium rate service providers shall, upon request, provide to the Commission.

(2) Any attachment of conditions, or non-application of conditions, under subsection (1)shall be objectively justified in relation to the premium rate service concerned and shall be non-discriminatory, proportionate and transparent.

(3) A premium rate service provider shall comply with all of the conditions attached to the licence applicable to the provider and the condition referred to in section 15(6).

(4) In making regulations under subsection (1), the Commission shall consult with the Broadcasting Authority of Ireland or such other regulatory bodies in the State as it considers relevant, in particular in relation to any class or type of premium rate service that comes under the definition of F2[audiovisual on-demand media service under the Broadcasting Act 2009].

(5) F3[…]

8. Application to High Court for immediate suspension of licence, etc.

8.— (1) Where the Commission considers that the immediate suspension of a licence is necessary to protect the users or potential users of any premium rate service provided by the licensee, until steps or further steps are taken under this Act, the Commission may, on notifying the licensee, make an application to the High Court for an order to suspend the licence.

(2) The High Court may determine an application under subsection (1) by—

(a) making any order that it considers appropriate, including an order suspending the licence of the licensee, the subject of the application, for such period or until the occurrence of such event, as is specified in the order, and

(b) giving to the Commission any other direction that the High Court considers appropriate.

(3) The Commission shall, on complying with a direction of the High Court under subsection (2)(b), notify the licensee concerned of the Commission’s compliance with the direction.

9. Investigation to ensure compliance.

9.— (1) Where the Commission conducts an investigation under section 10(1)(d)(ii) of the Principal Act—

(a) to ensure that the conditions of a licence are being complied with, or

(b) in respect of an alleged breach of a condition attached to a licence,

and finds, on foot of the investigation, that a premium rate service provider has not complied with or has breached a condition attached to his or her licence, it shall notify the provider of the findings and require the provider to remedy any non-compliance or breach and to refund any charge imposed by the provider on any end user in respect of any premium rate service that is connected with the non-compliance or breach not later than—

(i) one month after issue of the notification,

(ii) such shorter period as is agreed by the Commission with the provider concerned or stipulated by the Commission for reasons stated in the notification, or

(iii) such longer period as may be specified by the Commission.

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

10. Revocation, amendment or suspension of premium rate service licence.

10.— (1) Where the Commission decides, on foot of an investigation under section 10(1)(d)(ii) of the Principal Act and at the end of the period referred to in section 9(1), that a premium rate service provider has failed to comply with or breached any condition attached to its licence, the Commission, if it considers it appropriate to do so, may revoke, amend or suspend for a period, the licence.

(2) Subject to subsection (3), where the Commission—

(a) proposes to revoke, amend or suspend a licence it shall notify the holder of the proposal and afford the holder an opportunity to make representations within 7 days of the issue of notification of the proposal, and

(b) decides having considered any representations under paragraph (a) to revoke, amend or suspend the licence, it shall notify the holder of its decision stating the appeal procedure set out in section 11, when the decision takes effect and, in the case of a suspension, the duration of the suspension.

(3) Where the Commission considers that the failure to comply with or breach of a condition attached to a licence is a serious failure or breach which should cease immediately or is of an urgent nature which should so cease, subsection (2) and the period of time referred to in section 9(1) does not apply, and, accordingly, the investigation takes place and any revocation, amendment or suspension of the licence takes effect upon notification.

11. Right of appeal.

11.— (1) An appeal against a decision taken by the Commission to refuse to grant or to revoke, amend or suspend a licence lies with the Circuit Court in whose circuit the provider carries on business or where the provider carries on business in the whole of the State, the Dublin Circuit Court.

(2) An appeal must be lodged within 7 days after the affected party has been notified of the decision.

(3) A copy of the appeal must be served on the Commission, whereupon the Commission becomes the respondent to the appeal.

(4) The Circuit Court shall hear and determine an appeal and may make such orders as it considers appropriate, which may include but are not limited to—

(a) an order affirming or setting aside the whole or any part of the decision of the Commission, and

(b) an order remitting the case to the Commission to be redetermined, either with or without the hearing of further evidence, in accordance with the directions of the Court.

12. Offence — prohibition on providing premium rate service without licence.

12.— (1) A person who provides a specified premium rate service without holding a licence in respect of the service provided commits an offence.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment—

(i) in the case of a body corporate, to a fine not exceeding €250,000, or

(ii) in the case of any other person, to a fine not exceeding €50,000.

13. Premium rate service provider not to overcharge or charge for services not supplied.

13.— (1) A pemium rate service provider shall not impose, or purport to impose, in respect of a specified premium rate service, a charge—

(a) for supplying the premium rate service to an end user that exceeds the amount for the service specified—

(i) in the provider’s published charges, or