S.I. No. 337/2011 - European Communities (Electronic Communications Networks and Services) (Universal Service and Users' Rights) Regulations 2011

Enforcement — compliance with obligations

• (2) Where the Regulator finds that an undertaking has not complied with an obligation, term or condition, requirement, specification or direction under these Regulations, the Regulator shall notify the undertaking of those findings and give the undertaking an opportunity to state its views or, if the non-compliance can be remedied, to remedy the non-compliance within a reasonable time limit as specified by the Regulator.

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

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

• (5) Where, at the end of the period specified by the Regulator under paragraph (2), the Regulator is of the opinion that the undertaking concerned has not complied with an obligation, term or condition, requirement, specification or direction, the Regulator may, whether or not the non-compliance is continuing, subject to paragraph (10), apply to the High Court for such order as the Regulator considers appropriate including—

• (a) a declaration of non-compliance,

• (b) an order directing compliance with the obligation, term or condition, requirement, specification or direction,

• (c) an order directing the remedy of any non-compliance with the obligation, term or condition, requirement, specification or direction, or

• (d) an order as provided for in paragraph (9).

• (6) The High Court may, on the hearing of the application referred to in paragraph (5), make such order as it thinks fit which may include—

• (a) a declaration of non-compliance,

• (b) an order directing compliance with the obligation, term or condition, requirement, specification or direction,

• (c) an order directing the remedy of any non-compliance with the obligation, term or condition, requirement, specification or direction, or

• (d) an order as provided for in paragraph (9),

or refuse the application.

An order of the High Court compelling compliance may stipulate that the obligation, term or condition, requirement, specification or direction must be complied with immediately or may specify a reasonable time limit for compliance and may also stipulate appropriate and proportionate measures aimed at ensuring compliance.

• (7) The High Court when dealing with an application under paragraph (5) may make such interim or interlocutory order as it considers appropriate.

• (8) The High Court shall not deny interim or interlocutory relief, referred to in paragraph (7), solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

(9)(a) An application for an order under paragraph (5) may be for, or include an application for, an order to pay to the Regulator such amount, by way of financial penalty, which may include penalties having effect for periods of non-compliance with the obligation, term or condition, requirement, specification or direction, as the Regulator may propose as appropriate in the light of the non-compliance or any continuing non-compliance. Such an application for an order in respect of a financial penalty for a period of non-compliance may be made even if there since has been compliance with the obligation, term or condition, requirement, specification or direction.

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

• (c) Any financial penalty ordered by the High Court to be paid by an undertaking under this paragraph shall be paid to and retained by the Regulator as income.

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

• (i) its duration,

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

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

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

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

Enforcement by National Consumer Agency

• (2) The National Consumer Agency may appoint a person to be an authorised officer for the purpose of Regulation 18(3) or (5).

• (3) Section 39 (2), (3), (4) and (5) and sections 40 and 41 of the Act of 2002 apply in respect of an authorised officer appointed under paragraph (2) and, for the purpose of this Regulation, references to the Commission for Communications Regulation or Commission in those provisions should be read as including references to the National Consumer Agency.

Service of determinations, directions and notifications

• (a) by delivering it to the undertaking,

• (b) by leaving it at the address at which the undertaking ordinarily carries on business,

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

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

• (e) in any case where the Regulator considers that the immediate giving of the determination, direction or notification is required, by sending it, by means of a facsimile machine or by electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the undertaking ordinarily carries on business or, if an address for the service of notices has been furnished by the undertaking, that address, but only if—

• (i) the senders facsimile machine generates a message confirming successful delivery of the total number of pages of the determination, direction or notification, or

• (ii) the recipients facility for the reception of electronic mail generates a message confirming receipt of the electronic mail,

and it is also given in one of the other ways mentioned in subparagraphs (a) to (d).

• (2) In paragraph (1), a company within the meaning of the Companies Acts is deemed to be ordinarily resident at its registered office and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

Offence not to comply with requirement of National Consumer Agency

• (2) In proceedings for an offence under paragraph (1) it is a defence to establish that—

• (a) reasonable steps were taken to comply with the relevant direction, or

• (b) it was not possible to comply with the relevant direction.

Prosecution of offences

• (a) Regulation 34,

• (b) section 39(6) of the Act of 2002 relating to an authorised officer appointed under Regulation 32(2),

may be brought and prosecuted by the National Consumer Agency or by any other person authorised by law to prosecute offences.

• (2) Except as provided by paragraph (1), proceedings for an offence under these Regulations may be brought and prosecuted by the Regulator or by any other person authorised by law to prosecute offences.

• (3) If—

• (a) the Regulator has made an application under Regulation 31 to the High Court to secure an undertaking’s compliance with an obligation, term or condition, requirement, specification or direction imposed by or under these Regulations, and

• (b) a provision of these Regulations makes it an offence to fail to comply with the obligation, term or condition, requirement, specification or direction,

the Regulator may not bring proceedings against the person for such an offence or give a notice under section 44 of the Act of 2002 for failing to comply with the obligation, term or condition, requirement, specification or direction.

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

Offences committed by bodies corporate

• (a) an offence under these Regulations is committed by a body corporate, and

• (b) the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person who is a director, manager, secretary, or other similar officer of the body, or is a person who was purporting to act in any such capacity,

that person as well as the body corporate commits an offence and is liable to be proceeded against and punished as if that person had committed the first-mentioned offence.

• (2) If the affairs of a body corporate are managed by its members paragraph (1) applies in relation to the acts and omissions of a member of that body in connection with the member’s functions of management as if the member were a director or manager of it.

• (3) A person may be proceeded against for an offence under paragraph (1) whether or not the body corporate has been proceeded against or been convicted of the offence committed by the body.

Penalties

• (2) An undertaking that commits an offence under Regulation 25 is liable, on summary conviction, to a class A fine or, on conviction on indictment—

• (a) in the case of a body corporate, to a fine not exceeding €500,000, or

• (b) in the case of a natural person, to a fine not exceeding €50,000.

Transitional arrangements

• (2) For the purpose of this Regulation, “measure” means a decision, designation, determination, direction, notice, notification (other than a notification under Regulation 32(2) of the Regulations of 2003), requirement, specification or other act of an equivalent effect made by the Regulator.

• (3) Notwithstanding the revocation of the Regulations of 2003, notifications by the Regulator on a person under Regulation 32(2) of those Regulations—

• (a) continue in force, and

• (b) may continue to be issued, revoked or amended,

as if the Regulations of 2003 had not been revoked.

Revocations

• (a) the Regulations of 2003; and

• (b) the European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) (Amendment) Regulations 2007 ( S.I. No. 374 of 2007 ).

SCHEDULE 1 DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN REGULATIONS 9 AND 24

Regulations 9(2) and 24

Part A: Facilities and services referred to in Regulation 9:

• (a) Itemised Billing.

The Regulator may, subject to the requirements of relevant legislation on the protection of personal data and privacy, lay down the basic level of itemised bills which are to be provided by undertakings to subscribers free of charge in order that they can—

• (i) allow verification and control of the charges incurred in using the public communications network at a fixed location or related publicly available telephone services, and

• (ii) adequately monitor their usage and expenditure and thereby exercise a reasonable degree of control over their bills.

Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or at no charge.

Calls which are free of charge to the calling subscriber, including calls to helplines, are not to be identified in the calling subscriber’s itemised bill.

• (b) Selective barring for outgoing calls or premium SMS or MMS or, where technically feasible, other kinds of similar applications, free of charge.

i.e. the facility whereby a subscriber can, on request to the designated undertaking that provides telephone services, bar outgoing calls or premium SMS or MMS or other kinds of similar applications of defined types or to defined types of numbers free of charge.

• (c) Pre-payment systems.

The Regulator may require designated undertakings to allow consumers to pay for access to the public communications network and use of publicly available telephone services on pre-paid terms.

• (d) Phased payment of connection fees.

The Regulator may require designated undertakings to allow consumers to pay for connection to the public communications network on the basis of payments phased over time.

• (e) Non-payment of bills.

The Regulator may authorise specified measures, which are proportionate, non-discriminatory and published, to cover non-payment of telephone bills issued by undertakings. These measures are to ensure that due warning of any consequent service interruption or disconnection is given to a subscriber beforehand. Except in cases of fraud, persistent late payment or non-payment, these measures are to ensure, as far as is technically feasible, that any service interruption is confined to the service concerned. Disconnection for non-payment of bills should take place only after due warning is given to subscribers. The Regulator may allow a period of limited service prior to complete disconnection, during which only calls that do not incur charges to the subscriber (e.g. “112” calls) are permitted.

• (f) Tariff advice.

i.e. the facility whereby subscribers may request the undertaking to provide information regarding alternative lower-cost tariffs, if available.

• (g) Cost control.

i.e. the facility whereby undertakings offer other means, if determined by the Regulator to be appropriate, to control the cost of publicly available telephone services, including free of charge alerts to consumers in case of abnormal or excessive consumption patterns.

Part B: Facilities referred to in Regulation 24:

• (a) Tone dialling or DTMF (dual-tone multi-frequency operation)

i.e. the public communications network or publicly available telephone service supports the use of DTMF tones as defined in ETSI ETR 207 for end-to-end signalling throughout the network both within a Member State and between Member States.

• (b) Calling-line identification

i.e. the calling party’s number is presented to the called party prior to the call being established.

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, in particular the Privacy and Electronic Communications Regulations.

To the extent technically feasible, operators should provide data and signals to facilitate the offering of calling-line identity and tone dialling across Member State boundaries.

SCHEDULE 2 CALCULATING THE NET COST, IF ANY, OF UNIVERSAL SERVICE OBLIGATIONS AND ESTABLISHING ANY RECOVERY OR SHARING MECHANISM IN ACCORDANCE WITH ARTICLES 12 AND 13 OF THE UNIVERSAL SERVICE DIRECTIVE (TRANSPOSED BY REGULATIONS 11 AND 12 OF THE UNIVERSAL SERVICE REGULATIONS)

Regulations 11(4) and 12(3)

Part A: Calculation of net cost:

Universal service obligations refer to those obligations placed upon an undertaking by a Member State which concern the provision of a network and service throughout a specified geographical area including, where required, averaged prices in that geographical area for the provision of that service or provision of specific tariff options for consumers with low incomes or with special social needs.

National regulatory authorities are to consider all means to ensure appropriate incentives for undertakings (designated or not) to provide universal service obligations cost efficiently. In undertaking a calculation exercise, the net cost of universal service obligations is to be calculated as the difference between the net cost for a designated undertaking of operating with the universal service obligations and operating without the universal service obligations. This applies whether the network in a particular Member State is fully developed or is still undergoing development and expansion. Due attention is to be given to correctly assessing the costs that any designated undertaking would have chosen to avoid had there been no universal service obligation. The net cost calculation should assess the benefits, including intangible benefits, to the universal service operator.

The calculation is to be based upon the costs attributable to:

• (i) elements of the identified services which can only be provided at a loss or provided under cost conditions falling outside normal commercial standards.

This category may include service elements such as access to emergency telephone services, provision of certain public pay telephones, provision of certain services or equipment for disabled people, etc.;

• (ii) specific end-users or groups of end-users who, taking into account the cost of providing the specified network and service, the revenue generated and any geographical averaging of prices imposed by the Member State, can only be served at a loss or under cost conditions falling outside normal commercial standards.

This category includes those end-users or groups of end-users which would not be served by a commercial operator which did not have an obligation to provide universal service.

The calculation of the net cost of specific aspects of universal service obligations is to be made separately and so as to avoid the double counting of any direct or indirect benefits and costs. The overall net cost of universal service obligations to any undertaking is to be calculated as the sum of the net costs arising from the specific components of universal service obligations, taking account of any intangible benefits. The responsibility for verifying the net cost lies with the national regulatory authority.

Part B: Recovery of any net costs of universal service obligations:

The recovery or financing of any net costs of universal service obligations requires designated undertakings with universal service obligations to be compensated for the services they provide under non-commercial conditions. Because such a compensation involves financial transfers, Member States are to ensure that these are undertaken in an objective, transparent, non-discriminatory and proportionate manner. This means that the transfers result in the least distortion to competition and to user demand.

In accordance with Article 13(3) of the Universal Service Directive, a sharing mechanism based on a fund should use a transparent and neutral means for collecting contributions that avoids the danger of a double imposition of contributions falling on both outputs and inputs of undertakings.

The independent body administering the fund is to be responsible for collecting contributions from undertakings which are assessed as liable to contribute to the net cost of universal service obligations in the Member State and is to oversee the transfer of sums due or administrative payments to the undertakings entitled to receive payments from the fund.

SCHEDULE 3 INFORMATION TO BE PUBLISHED IN ACCORDANCE WITH REGULATION 15

Regulation 15(2)

• (i) the scope of the services offered,

• (ii) standard tariffs indicating the services provided and the content of each tariff element (e.g. charges for access, all types of usage charges, maintenance charges), and including details of standard discounts applied and special and targeted tariff schemes and any additional charges, as well as costs with respect to terminal equipment,

• (iii) compensation and refund polices, including specific details of any compensation or refund schemes offered,

• (iv) types of maintenance services offered, and

• (v) standard contract conditions, including any minimum contractual period, termination of the contract and procedures and direct charges related to the portability of numbers and other identifiers, if relevant.

GIVEN under my Official Seal,

1 July 2011.

PAT RABBITTE,

Minister for Communications, Energy and Natural Resources.

EXPLANATORY NOTE

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

The purpose of these Regulations is to give effect to Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), and the amendments to that Directive as introduced by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009.

As well as transposing the amendments made by Directive 2009/136/EC, these Regulations consolidate the provisions of the existing Statutory Instruments transposing the Universal Service Directive, namely, the “European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) Regulations 2003 ( S.I. No. 308 of 2003 )” and the “European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) (Amendment) Regulations 2007 ( S.I. No. 374 of 2007 )”, which have been revoked by these Regulations.

The aim of these Regulations is, inter alia, to ensure the provision of specified electronic communications services and the affordability of those services.

Footnotes