S.I. No. 444/2022 - European Union (Electronic Communications Code) Regulations 2022

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 9th September, 2022.

CONTENTS

Regulation
Part 1
PRELIMINARY AND GENERAL
1. Citation and commencement
2. Interpretation
3. Regulatory authority
Part 2
TASKS AND OBJECTIVES OF REGULATOR AND OTHER COMPETENT AUTHORITIES
4. Objectives of Regulator
5. National regulatory and other competent authorities
Part 3
GENERAL AUTHORISATION AND RIGHTS OF USE
CHAPTER 1 – GENERAL PART
6. General authorisation of electronic communications networks and services
7. Register of authorised undertakings
8. Conditions attached to general authorisation and specific obligations
9. Conditions attached to rights of use for radio spectrum
10. Conditions attached to rights of use for numbering resources
11. Declarations to facilitate exercise of rights to install facilities and rights of interconnection
CHAPTER 2 – GENERAL AUTHORISATION RIGHTS AND OBLIGATIONS
12. Minimum list of rights derived from general authorisation
13. Accounting separation and financial reports
CHAPTER 3 – AMENDMENT AND WITHDRAWAL
14. Amendment of rights and obligations
15. Restriction or withdrawal of rights
Part 4
INTERNAL MARKET PROCEDURES AND COORDINATION
CHAPTER 1 – RADIO SPECTRUM COORDINATION
16. Radio spectrum coordination among Member States
CHAPTER 2
17. Consolidating internal market for electronic communications
18. Procedure for consistent application of remedies
CHAPTER 3 – CONSISTENT RADIO SPECTRUM ASSIGNMENT
19. Peer review process
20. Harmonised assignment of radio spectrum
21. Joint authorisation process to grant individual rights of use for radio spectrum
CHAPTER 4 – HARMONISATION PROCEDURES
22. Harmonisation procedures
23. Standardisation
Part 5
MARKET ENTRY AND DEPLOYMENT
CHAPTER 1 - FEES
24. Fees for rights of use for radio spectrum and rights to install facilities
CHAPTER 2 – ACCESS TO LAND
25. Co-location and sharing of network elements and associated facilities for providers of electronic communications networks
26. Publication of information
Part 6
ACCESS TO RADIO SPECTRUM AND RELATED PROVISIONS
CHAPTER 1 - AUTHORISATIONS
27. Management of radio spectrum
28. Authorisation of use of radio spectrum
29. Conditions attached to individual rights of use for radio spectrum
CHAPTER 2 – RIGHTS OF USE
30. Granting of individual rights of use for radio spectrum
31. Duration of rights
32. Renewal of individual rights of use for harmonised radio spectrum
33. Transfer or lease of individual rights of use for radio spectrum
34. Competition
CHAPTER 3 - PROCEDURES
35. Coordinated timing of assignments
36. Procedure for limiting number of rights of use to be granted for radio spectrum
37. Publication of specification of conditions
Part 7
DEPLOYMENT AND USE OF WIRELESS NETWORK EQUIPMENT
38. Access to radio local area networks
39. Deployment and operation of small-area wireless access points
Part 8
ACCESS AND INTERCONNECTION - RIGHTS, OBLIGATIONS AND REMEDIES
CHAPTER 1 – GENERAL PROVISIONS, ACCESS PRINCIPLES
40. General framework for access and interconnection
41. Rights and obligations of undertakings
CHAPTER 2 – ACCESS AND INTERCONNECTION
42. Powers and responsibilities with regard to access and interconnection
43. Conditional access systems and other facilities
CHAPTER 3 – MARKET ANALYSIS AND SIGNIFICANT MARKET POWER
44. Definitions – Chapter 3
45. Undertakings with significant market power
46. Procedure for identification and definition of markets
47. Procedure for identification of transnational markets
48. Procedure for identification of transnational demand
49. Market analysis procedure
CHAPTER 4 - ACCESS REMEDIES IMPOSED ON UNDERTAKINGS WITH SIGNIFICANT MARKET POWER
50. Imposition, amendment or withdrawal of obligations
51. Obligation of transparency
52. Obligations of non-discrimination
53. Obligations of accounting separation
54. Access to civil engineering
55. Obligations of access to, and use of, specific network elements and associated facilities
56. Price control and cost accounting obligations
57. Termination rates
58. Regulatory treatment of new very-high-capacity network elements
59. Functional separation
60. Voluntary separation by vertically integrated undertaking
61. Commitments procedure
62. Wholesale–only undertakings
63. Migration from legacy infrastructure
CHAPTER 5 – REGULATORY CONTROL OF RETAIL SERVICES
64. Regulatory control of retail services
CHAPTER 6 – PUBLICATION OF INFORMATION – ACCESS OBLIGATIONS
65. Publication of notice of obligations and access to information
CHAPTER 7 – NOTIFICATION AND MONITORING – UNDERTAKINGS WITH SIGNIFICANT MARKET POWER
66. Notification of undertakings designated as having significant market power
CHAPTER 8 – DISPUTE RESOLUTION BETWEEN UNDERTAKINGS
67. Dispute resolution between undertakings
68. Resolution of cross-border disputes
Part 9
UNIVERSAL SERVICE OBLIGATIONS
69. Definition (Part 9)
70. Affordable universal service
71. Provision of affordable universal service
72. Availability of universal service and designation
73. Status of existing universal service
74. Control of expenditure
75. Cost of universal service obligations
76. Financing of universal service obligations and transparency
77. Additional mandatory services
78. Notification of universal service obligations
Part 10
ACCESS TO NUMBERS AND SERVICES, AND RELATED PROVISIONS
79. Numbering resources
80. Procedure for granting rights of use for numbering resources
81. Fees for rights of use for numbering resources
82. Missing children and child helpline hotlines
83. Access to numbers and services
Part 11
END-USER RIGHTS
84. Exemption of certain microenterprises
85. Non-discrimination
86. Fundamental rights safeguard
87. Information requirements for contracts
88. Transparency, comparison of offers and publication of information
89. Contract duration and termination
90. Provider switching and number portability
91. Bundled offers
92. Availability of services
93. Emergency communications and single European emergency number
94. Equivalent access and choice for end-users with disabilities
95. Directory enquiry services
96. Interoperability of car radio and consumer radio receivers and consumer digital television equipment
97. Provision of additional facilities
Part 12
PROVISION AND PUBLICATION OF INFORMATION, SURVEYS AND CONSULTATION MECHANISM
98. Information request to undertakings
99. Information required with regard to general authorisation, rights of use and specific obligations
100. Geographical surveys of network deployments
101. Consultation and transparency mechanism
102. Consultation of interested parties
103. Notices regarding imposition of obligations
Part 13
ENFORCEMENT
104. Directions
105. Compliance monitoring and obligations
106. Service of determinations, directions and notifications
107. Prosecution of offences
108. Hybrid penalties
109. Offences by bodies corporate
110. Suspension or withdrawal of authorisation, rights of use for radio spectrum or rights of use for numbers
Part 14
AMENDMENT OF ACT OF 2002, CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL ARRANGEMENTS
111. Amendments – Act of 2002
112. Consequential amendments
113. Transitional arrangements
Schedule 1
List of conditions which may be attached to general authorisations, rights of use for radio spectrum and rights of use for numbering resources
Schedule 2
Criteria for determination of wholesale voice termination rates
Schedule 3
Criteria for assessing co-investment offers
Schedule 4
Minimum set of services which adequate broadband internet access service in accordance with Regulation 70(2) shall be capable of supporting
Schedule 5
Description of facilities and services referred to in Regulation 74 (Control of expenditure), Regulation 97 (Additional facilities) and Regulation 90 (Provider switching and number portability)
Schedule 6
Calculating net cost, if any, of universal service obligations and establishing any compensation or sharing mechanism in accordance with Regulations 75 and 76
Schedule 7
Information requirements to be provided in accordance with Regulation 87 (Information requirements for contracts)
Schedule 8
Information to be published in accordance with Regulation 88 (Transparency and publication of information)

I, Eamon Ryan, Minister for the Environment, Climate and Communications, 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 (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018¹ and giving full effect to Commission Implementing Regulation (EU) 2019/2243 of 17 December 2019² , Commission Delegated Regulation (EU) 2021/654 of 18 December 2020³ , hereby make the following regulations:

Part 1 PRELIMINARY AND GENERAL

Citation and commencement

1.

• (2) These Regulations come into operation on such day as the Minister appoints and publishes in Iris Oifigiúil.

Interpretation

2.

“access” means the making available of facilities or services to another undertaking, under defined conditions, either on an exclusive or a non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services. Among other things, it covers:

• (a) access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop);

• (b) access to physical infrastructure including buildings, ducts and masts;

• (c) access to relevant software systems including operational support systems;

• (d) access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing;

• (e) access to number translation or systems offering equivalent functionality;

• (f) access to fixed and mobile networks, in particular for roaming;

• (g) access to conditional access systems for digital television services and access to virtual network services;

“Access Regulations” means European Communities (Electronic Communications Networks and Services)(Access) Regulations 2011 ( S.I. No. 334 of 2011 );

“Act of 1926” means Wireless Telegraphy Act 1926 (No. 45 of 1926);

“Act of 1983” means Postal and Telecommunications Services Act 1983 (No. 24 of 1983);

“Act of 2000” means Planning and Development Act 2000 (No. 30 of 2000);

“Act of 2002” means Communications Regulation Act 2002 (No. 20 of 2002);

“Act of 2009” means Broadcasting Act 2009 (No. 18 of 2009);

“application programming interface” or “API” means the software interface between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services;

“associated facilities” means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets;

“associated service” means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service;

“Authorisation Regulations” means European Communities (Electronic Communications Networks and Services)(Authorisation) Regulations 2011 ( S.I. No. 335 of 2011 );

“authorised undertaking” means an undertaking deemed to be authorised under Regulation 6;

“BEREC” means the Body of European Regulators for Electronic Communications;

“call” means a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication;

“caller location information” means, in a public mobile network, the data processed, derived from network infrastructure or handsets, indicating the geographic position of an end-user’s mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point;

“CEPT” means the European Conference of Postal and Telecommunications Administrations;

“conditional access system” means any technical measure, authentication system or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation;

“consumer” means any individual who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business, craft or profession;

“data protection law” means the requirements of the Data Protection Act 2018 (No. 7 of 2018) and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016⁴ ;

“Directive” means Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018¹ establishing the European Electronic Communications Code;

“durable medium” has the same meaning as in Regulation 2 of the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 ( S.I. No. 484 of 2013 );

“ECAS operator” means the person who operates an emergency call answering service in accordance with a contract entered into under section 58B of the Act of 2002;

“electronic communications service” means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:

• (a) ‘internet access service’ within the meaning of Article 2 of Regulation (EU) 2015/2120⁵ ;

• (b) interpersonal communications service; and

• (c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting;

“electronic communications network” means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

“electronic programme guide” means any electronic means of providing information to members of the public in relation to the schedule of programme material the subject of any broadcasting service and which electronic means is an integral part of the distribution and reception system by which the broadcasting service is provided;

“emergency communication” means communication by means of interpersonal communications services between an end-user and the PSAP with the goal to request and receive emergency relief from emergency services;

“emergency service” means the Garda Síochána, a fire brigade, ambulance service, the Irish Coast Guard or a civil emergency service;

“end-user” means a user not providing public electronic communications networks or publicly available electronic communications services;

“enhanced digital television equipment” means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services;

“European Commission” means the Commission of the European Union;

“Framework Regulations” means European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2011 ( S.I. No. 333 of 2011 );

“general authorisation” means an authorisation for an undertaking to provide an electronic communications network or service under and in accordance with Regulation 6;

“geographic number” means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point;

“harmful interference” means interference which endangers the functioning of a radio navigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable international, Union or national regulations;

“harmonised radio spectrum” means radio spectrum for which harmonised conditions relating to its availability and efficient use have been established by way of technical implementing measures in accordance with Article 4 of the Radio Spectrum Decision;

“hybrid offence” means an offence punishable under Regulation 108;

“interconnection” means a specific type of access implemented between public network operators by means of the physical and logical linking of public electronic communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking where such services are provided by the parties involved or other parties who have access to the network;

“International Telecommunication Union Radio Regulations” means the decisions of the World Radiocommunication Conferences, including all appendices, resolutions, recommendations and International Telecommunication Union Radiocommunication Sector recommendations incorporated by reference;

“interpersonal communications service” means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s) and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;

“ITU” means the International Telecommunications Union;

“licence”, unless it is otherwise indicated, means a licence granted under section 5 of the Act of 1926 to keep and have possession of apparatus for wireless telegraphy for the provision of an electronic communications network or service and which grants a right of use for radio spectrum;

“local loop” means the physical path used by electronic communications signals connecting the network termination point to a distribution frame or equivalent facility in the fixed public electronic communications network;

“medium-sized enterprise” means a company that is not a microenterprise or small enterprise, that has fewer than 250 employees and an annual turnover below €50 million or balance sheet below €43 million;

“microenterprise” means a company with fewer than 10 employees and an annual turnover or balance sheet below €2 million;

“Minister” means the Minister for the Environment, Climate and Communications;

“MMS” means a Multimedia Messaging Service which sends messages that include multimedia content between mobile or fixed numbers assigned in accordance with a national numbering plan;

“most appropriate PSAP” means a PSAP designated as such by the Minister to cover emergency communications from a certain area or for emergency communications of a certain type, but in the absence of such a designation means the ‘ECAS operator’ as referred to in section 58A of the Act of 2002;

“national numbering plan” means the national numbering plan administered by the Regulator under section 12 of the Act of 2002;

“national regulatory authority” in relation to another Member State, means the body or bodies charged by the other Member State with any of the regulatory tasks assigned in the Directive;

“network termination point” means the physical point at which an end-user is provided with access to a public electronic communications network, and which, in the case of networks involving switching or routing, is identified by means of a specific network address, which may be linked to an end-user’s number or name;

“non-geographic number” means a number from the national numbering plan that is not a geographic number, such as mobile, freephone and premium-rate numbers;

“not-for-profit organisation” means a body, organisation or association —

• (a) that provides its services on a not-for-profit basis,

• (b) that has been properly constituted in accordance with the law of the State or another Member State, and

• (c) whose objectives, as specified in the documents establishing the body, organisation or association concerned, are in the public interest;

“NRA” means National Roads Authority;

“number” includes a character and a combination of numbers or characters or both;

“number-based interpersonal communications service” means an interpersonal communications service which connects with publicly assigned numbering resources, namely, a number or numbers in a national or international numbering plan, or which enables communication with a number or numbers in a national or international numbering plan;

“number-independent interpersonal communications service” means an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in a national or international numbering plan, or which does not enable communication with a number or numbers in a national or international numbering plan;

“operator” means an undertaking providing or authorised to provide a public electronic communications network or an associated facility;

“other competent authority”, in relation to another competent authority in the State means a local authority, the NRA, a road authority, the Competition and Consumer Protection Commission or the Minister, as the case may be;

“Privacy and Electronic Communications Regulations” means European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications) Regulations 2011 ( S.I. No. 336 of 2011 );

“provision of an electronic communications network” means the establishment, operation, control or making available of such a network;

“public authority” has the meaning assigned to it in the Local Government Act 2001 (No. 37 of 2001);

“public electronic communications network” means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points;

“public pay telephone” means a telephone available to the general public for the use of which the means of payment may include coins, credit cards, debit cards or prepayment cards, including cards for use with dialling codes;

“public safety answering point” or “PSAP” means a physical location where an emergency communication is first received under the responsibility of a public authority or a private organisation recognised by the Member State;

“radio local area network” or “RLAN” means a low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum;

“radio spectrum allocation” means the designation of a given radio spectrum band for use by one or more types of radio communications services, where appropriate, under specified conditions;

“Radio Spectrum Decision” means Decision No. 676/2002/EC of the European Parliament and of the Council of 7 March 2002⁶ ;

“Recommendation 1999/519/EC” means Council Recommendation 1999/519/EC of 12 July 1999⁷ ;

“Regulation (EU) 2015/2120” means Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015⁵ ;

“Regulator” means Commission for Communications Regulation;

“regulatory decision” means a decision of the Regulator that requires a person to do, or refrain from doing something, including the making of a requirement, the giving of a direction, the making of a determination, designation or specification;

“rights to install facilities” means –

• (a) a consent under section 53 of the Act of 2002, or

• (b) a licence under section 254(1) of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure;

“road authority” has the meaning assigned to it by section 2 (as amended by section 11 of the Roads Act 2007 (No. 34 of 2007)) of the Roads Act 1993 (No. 14 of 1993);

“RSC” means the Radio Spectrum Committee established pursuant to Article 3(1) of the Radio Spectrum Decision;

“RSPG” means the Radio Spectrum Policy Group established by Commission Decision No. 622/2002/EC of 26 July 2002⁸ ;

“security of networks and services” means the ability of electronic communications networks and services to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of those networks and services, of stored or transmitted or processed data, or of the related services offered by, or accessible via, those electronic communications networks or services;

“shared use of radio spectrum” means access by two or more users to use the same radio spectrum bands under a defined sharing arrangement, authorised on the basis of a general authorisation, individual rights of use for radio spectrum or a combination thereof, including regulatory approaches such as licensed shared access aiming to facilitate the shared use of a radio spectrum band, subject to a binding agreement of all parties involved, in accordance with sharing rules as included in their rights of use for radio spectrum in order to guarantee to all users predictable and reliable sharing arrangements, and without prejudice to the application of competition law;

“small-area wireless access point” means low-power wireless network access equipment of a small size operating within a small range, using licenced radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks regardless of the underlying network topology, be it mobile or fixed;

“small enterprise” means a company that is not a microenterprise and that has fewer than 50 employees and an annual turnover or balance sheet below €10 million;

“SMS” means a Short Message Service text message, composed principally of alphabetical or numerical characters, capable of being sent between mobile or fixed numbers assigned in accordance with national numbering plans;

“specific obligations” means obligations that may be imposed by the Regulator on an undertaking providing electronic communications networks and services under Regulation 42(1), (14) and (15) and Regulations 43, 50 and 64 or on those designated to provide universal service under these Regulations;

“subscriber” means any natural person or legal entity who or which is party to a contract with a provider of publicly available electronic communications services for the supply of such services;

“terminal equipment” means:

• (a) equipment directly or indirectly connected to the interface of a public telecommunications network to send, process or receive information; in either case (direct or indirect), the connection may be made by wire, optical fibre or electromagnetically; a connection is indirect if equipment is placed between the terminal and the interface of the network;

• (b) satellite earth station equipment;

“total conversation service” means a multimedia real time conversation service that provides bidirectional symmetric real time transfer of motion video, real time text and voice between users in two or more locations;

“transnational markets” means markets identified by the European Commission in accordance with Article 65 of the Directive, which cover the European Union or a substantial part thereof located in more than one Member State;

“undertaking” means a person engaged or intending to engage in the provision of electronic communications networks or services or associated facilities;

“Universal Service Obligation” means an obligation imposed on an undertaking designated under Regulation 71(5), 72(3) or 73(2), or a measure imposed under Regulation 71(3);

“Universal Service Regulations” means European Communities (Electronic Communications Networks and Services)(Universal Service and Users’ Rights) Regulations 2011 ( S.I. No. 337 of 2011 );

“user” means a natural or legal person using or requesting a publicly available electronic communications service;

“very-high-capacity network” means either an electronic communications network which consists wholly of optical fibre elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation; network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point;

“voice communications service” means a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international numbering plan;

“wireless broadband networks and services” means wireless broadband electronic communications networks and services.

• (2) A word or expression that is used in these Regulations and that is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations that it has in the Directive.

• (3) A reference in any enactment or Regulations to the Framework Regulations, the Access Regulations, the Authorisation Regulations or to the Universal Service Regulations, is to be construed as a reference to these Regulations.

Regulatory authority

3.

Part 2 TASKS AND OBJECTIVES OF REGULATOR AND OTHER COMPETENT AUTHORITIES

Objectives of Regulator, etc.

4.

• (2) The Regulator and other competent authorities shall contribute within their competences to ensuring the implementation of policies aimed at the promotion of freedom of expression and information, cultural and linguistic diversity, as well as media pluralism.

• (3) In the context of its tasks, the Regulator and other competent authorities shall pursue each of the following general objectives which are not listed in order of priority —

• (a) promote connectivity and access to, and take-up of, very-high-capacity networks, including fixed, mobile and wireless networks, by all consumers and businesses in the State;

• (b) promote competition in the provision of electronic communications networks and associated facilities, including efficient infrastructure-based competition, and in the provision of electronic communications services and associated services;

• (c) contribute to the development of the internal market by removing remaining obstacles to, and facilitating convergent conditions for, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the European Union, by developing common rules and predictable regulatory approaches, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity;

• (d) promote the interests of the consumers and businesses in the State, by ensuring connectivity and the widespread availability and take-up of very-high-capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities.

• (4) The Regulator shall —

• (a) having regard to its objectives under section 12 of the Act of 2002 and its tasks under these Regulations, actively support the goals of BEREC of promoting greater regulatory coordination and consistency,

• (b) take the utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting decisions for markets in the State,

• (c) provide assistance to and cooperate with the European Commission upon its request, in accordance with Article 3(3) of the Directive, and

• (d) engage and cooperate with the national regulatory and competent authorities of other Member States, the ITU, the RSPG, the RSC and the European Commission and Council upon their request, in the strategic planning, coordination and harmonisation of the use of radio spectrum in the European Union and in accordance with the aims and considerations referred to in Article 4(1), (2) and (3) of the Directive.

• (5) The Regulator and other competent authorities, in pursuit of the policy objectives referred to in paragraph (3), shall apply impartial, objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia —

• (a) promoting regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods and through cooperation with each other, with BEREC, with the RSPG and with the European Commission,

• (b) ensuring that, in similar circumstances, there is no discrimination in the treatment of providers of electronic communications networks and services,

• (c) applying European Union law in a technologically neutral fashion, to the extent that this is consistent with the achievement of the objectives set out in paragraph (3),

• (d) promoting efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, while ensuring that competition in the market and the principle of non-discrimination are preserved,

• (e) taking due account of the variety of conditions relating to infrastructure, competition, the circumstances of end-users and, in particular, consumers that exist in the various geographic areas within the State, including local infrastructure managed by individuals on a not-for-profit basis, and

• (f) imposing ex-ante regulatory obligations only to the extent necessary to secure effective and sustainable competition in the interest of end-users where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as that condition is fulfilled.

National regulatory and other competent authorities

5.

• (a) implementing ex ante market regulation, including the imposition of access and interconnection obligations;

• (b) ensuring the resolution of disputes between undertakings;

• (c) carrying out radio spectrum management and decisions;

• (d) contributing to the protection of end-user rights in the electronic communications sector, in coordination, where relevant, with other competent authorities;

• (e) assessing and monitoring closely market-shaping and competition issues regarding open internet access;

• (f) assessing the unfair burden and calculating the net cost of the provision of universal service;

• (g) ensuring number portability between providers;

• (h) performing any other tasks reserved to the Regulator in accordance with these Regulations.

• (2) The Regulator and other competent authorities shall —

• (a) where appropriate, consult and cooperate with each other and with relevant national and competent authorities in other Member States entrusted with the implementation of competition law or consumer law, on matters of common interest, and

• (b) where necessary, enter into cooperative arrangements with each other and with relevant national regulatory and competent authorities in other Member States, to foster regulatory cooperation.

• (3) The Regulator and other competent authorities, shall exercise their powers under these Regulations and the Directive impartially, transparently and in a timely manner.

• (4) For the purposes of contributing to BEREC’s tasks, the Regulator shall be entitled to collect necessary data and other information from market participants.

• (5) The Regulator and other competent authorities shall provide each other with the information necessary for the application of these Regulations.

• (6) Subject to the Freedom of Information Act 2014 , in respect of the information exchanged under paragraph (5), the receiving authority shall ensure the same level of confidentiality as that of the originating authority.

• (7) The Regulator and other competent authorities shall ensure compliance of their processing of personal data with data protection law.

Part 3 GENERAL AUTHORISATION AND RIGHTS OF USE

CHAPTER 1 General part

General authorisation of electronic communications networks and services

6.

• (2)
• (a) Upon receipt by the Regulator of a notification under paragraph (1), the undertaking concerned is deemed to be authorised to provide an electronic communications network or electronic communications service or, as appropriate, both, subject to such conditions as may be specified by the Regulator under Regulation 8, 9 or 10 or rights of use referred to in Regulations 28 and 80.

• (b) The Regulator may decide to prevent an undertaking from providing electronic communications networks or services only where this is necessary for the reasons set out in Article 52(1) TFEU. Such a decision shall be by way of direction to the undertaking concerned. Any such limitation to the freedom to provide electronic communications networks and services shall be duly reasoned and shall be notified to the European Commission.

• (3) The Regulator may make a determination specifying an electronic communications network or electronic communications service of a particular class or description as being a network or service in relation to which an undertaking is not subject to the requirements of paragraph (1).

• (4) Where the Regulator determines under paragraph (3) that an undertaking is not required to notify under paragraph (1), that undertaking is deemed to be authorised under this Regulation.

• (5) A notification under paragraph (1) shall be in such form as the Regulator may, from time to time, determine and shall contain the following information —

• (a) the name of the provider concerned,

• (b) the provider’s legal status, including in the case of a body corporate, the company form and registration number,

• (c) the geographical address of the provider’s main establishment in the Union, if any, and, where applicable, if different, its registered office in the State, and the geographical address of any secondary branch of the provider in a Member State,

• (d) the provider’s website address, where applicable, associated with the provision of electronic communications networks or services,

• (e) names, addresses and contact numbers of relevant contact persons,

• (f) a short description of the network or services intended to be provided,

• (g) the Member State concerned, and

• (h) the estimated date of commencement of the relevant activity.

• (6) The Regulator shall, by electronic means, forward each notification received in accordance with paragraph (1) to BEREC without undue delay.

• (7) An undertaking shall notify the Regulator of any changes to the information supplied under paragraph (1) in relation to the matters referred to in paragraph (5)(a) to (e) within 14 days of such change and in relation to the matters referred to in paragraph (5)(f) and (g) before the commencement of the implementation of the change related to the relevant activity.

• (8) An undertaking that fails to notify the Regulator in accordance with paragraph (1) or (7) commits a hybrid offence.

• (9) An undertaking that fails to comply with a direction under paragraph (2)(b) commits an offence and is liable on summary conviction to a class A fine.

• (10) A reference in any enactment to a person licensed under section 111 of the Act of 1983 is to be construed as a reference to an undertaking deemed to be authorised under these Regulations.

Register of authorised undertakings

7.

• (2) The Regulator may, as occasion requires, amend or delete an entry in the register.

• (3) Members of the public may inspect the register free of charge at all reasonable times and may take copies of, or extracts from, entries in the register.

• (4) In any proceedings a certificate bearing the seal of the Regulator, stating that the register shows that on the date or during the period specified in the certificate the name of the undertaking identified by the certificate was not entered in the register, is admissible as evidence of the fact that an undertaking identified by the certificate did not notify the Regulator in accordance with Regulation 6(1) of its intention to provide a network or service before that date or during that period.

• (5) A document purporting to be a certificate under paragraph (4) is deemed to be such a certificate unless the contrary is shown.

Conditions attached to general authorisation and specific obligations

8.

• (2) Any attachment of conditions to the general authorisation or non-application of conditions to undertakings of such class or type as may be specified by the Regulator under paragraph (1) shall be non-discriminatory, proportionate and transparent.

• (3) An authorised undertaking shall comply with the conditions attaching to the general authorisation applicable to it.

• (4) The Regulator shall not attach as a condition to the general authorisation any specific obligations that it may impose on an undertaking nor any conditions which are applicable to undertakings by virtue of other law. Specific obligations which may be imposed on undertakings providing electronic communications networks and services under Regulation 42(1), (14) or (15) or Regulation 43, 50 or 64 or on those designated to provide universal service under these Regulations, shall be legally separate from the rights and obligations under the general authorisation.

• (5) The criteria and procedures for imposing any specific obligations referred to in paragraph (4) shall be referred to by the Regulator in the specification of conditions referred to in paragraph (1).

• (6) The Regulator shall ensure that where a requirement is specified as a condition of a licence such a requirement shall not be specified as a condition of a general authorisation in respect of the networks or services concerned.

• (7) An undertaking that fails to comply with any conditions attached to its general authorisation commits a hybrid offence.

• (8) In proceedings for an offence under paragraph (7) it is a defence for the person charged to show that he or she took all reasonable steps and exercised all due diligence to avoid committing the offence.

Conditions attached to rights of use for radio spectrum

9.

• (2) Any —

• (a) attachment of conditions under paragraph (1), or

• (b) non-application under paragraph (1) of conditions to undertakings of a class or type as may be determined by the Regulator,

to rights of use for radio spectrum shall be non-discriminatory, proportionate and transparent and shall be in accordance with Regulation 27.

• (3) An undertaking shall comply with the conditions attaching to rights of use for radio spectrum applicable to it.

• (4) The Regulator shall ensure that where a requirement is specified as a condition of a right of use for radio spectrum such a requirement shall not be specified as a condition of the general authorisation in respect of the right of use concerned.

• (5) Conditions attached by the Regulator to rights of use for radio spectrum shall ensure the effective and efficient use of such rights and be in accordance with Regulations 27 and 33.

• (6) An undertaking that fails to comply with a condition that the Regulator has attached to rights of use for radio spectrum in accordance with paragraph (1) commits a hybrid offence.

• (7) In proceedings for an offence under paragraph (6) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.

Conditions attached to rights of use for numbering resources

10.

• (2) Any attachment or non-application of conditions under paragraph (1) to a right of use for numbering resources shall be non-discriminatory, proportionate and transparent.

• (3) An undertaking shall comply with the conditions attaching to rights of use for numbering resources applicable to it.

• (4) The Regulator shall ensure that where a requirement is specified as a condition of a right of use for numbering resources such a requirement shall not be specified as a condition of the general authorisation in respect of the right of use concerned.

• (5) An undertaking that fails to comply with a condition that the Regulator has attached to the undertaking’s rights of use for numbering resources in accordance with paragraph (1) commits a hybrid offence.

• (6) In proceedings for an offence under paragraph (5) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.

Declarations to facilitate exercise of rights to install facilities and rights of interconnection

11.

• (a) confirming, where applicable, that the undertaking has submitted a notification under Regulation 6(1), and

• (b) detailing under what circumstances any undertaking has the right to—

• (i) apply for rights to install facilities,

• (ii) negotiate interconnection, and

• (iii) obtain access or interconnection, in order to facilitate the exercise of those rights.

• (2) Where it considers it appropriate to do so, the Regulator may issue such declaration as an automatic reply upon receipt of a notification under Regulation 6(1).

CHAPTER 2 General authorisation rights and obligations

Minimum list of rights derived from general authorisation

12.

• (a) subject to Regulations 8, 9 and 10, provide the electronic communications networks or services as described in a notification under Regulation 6(1) or (7) or where a notification is not required as described in a determination referred to in Regulation 6(3),

• (b) apply for rights to install facilities,

• (c) use, subject to Regulations 8 and 9, 28 and 36, radio spectrum in relation to electronic communications networks and services, and

• (d) have their application for the necessary rights of use for numbering resources considered in accordance with Regulation 80.

• (2) Where an authorised undertaking is providing an electronic communications network or service to the public, it has the right —

• (a) under the conditions of and in accordance with these Regulations and the Directive, to negotiate interconnection with and, where applicable, obtain access to or interconnection from another undertaking deemed to be authorised in the State or in another Member State to provide a publicly available electronic communications network or service, and

• (b) to be given an opportunity by the Regulator to be designated under Regulation 72(3) or 73(2) to carry out obligations referred to in those Regulations.

Accounting separation and financial reports

13.

• (a) keep separate accounts audited in accordance with generally accepted auditing practices for the activities associated with the provision of that network or service, to the extent that would be required if those activities were carried out by one or more legally independent entities in order to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to such activities including an itemised breakdown of fixed assets and structural costs, or

• (b) have structural separation for the activities associated with the provision of electronic communications networks or services.

• (2) Where an undertaking providing a public electronic communications network or a publicly available electronic communications service is not subject to the Companies Act 2014 and does not satisfy the small and medium sized enterprise criteria of European Union law accounting rules, it shall ensure that —

• (a) annual accounts are drawn up, submitted to independent audit and published, and

• (b) such audit is carried out in accordance with generally accepted auditing practices.

• (3) Paragraph (2) shall also apply to the separate accounts required under subparagraph (a) of paragraph (1).

• (4) An undertaking that fails to comply with the requirements of paragraph (1) or (2) commits a hybrid offence.

CHAPTER 3 Amendment and withdrawal

Amendment of rights and obligations

14.

• (2) The NRA or a road authority may amend the conditions of a consent under section 53 of the Act of 2002 provided that such amendments may only be made in objectively justified cases and in a proportionate manner.

• (3) A local authority may amend the conditions of a licence under section 254 of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure provided that such amendment may only be made in objectively justified cases and in a proportionate manner.

• (4) Except where the proposed amendments are minor in nature and have been agreed with the holder of a general authorisation, a right of use for radio spectrum, a right of use for numbering resources, a consent referred to in paragraph (2) or a licence referred to in paragraph (3), before making any amendment under this Regulation, the Regulator, the NRA, a road authority or a local authority, as the case may be, shall —

• (a) give notice, in such manner as it considers appropriate, of its intention to make the amendment and invite interested parties, including users and consumers, to make representations on the proposed amendment within such period as may be specified in the notice but not being, except in exceptional circumstances, less than 28 days from the date of the notice, and

• (b) have regard to any representations made to it under subparagraph (a).

• (5) Amendments made in accordance with this Regulation shall be published by the Regulator, the NRA, a road authority or a local authority as appropriate, together with the reasons therefor.

Restriction or withdrawal of rights

15.

• (2) In line with the need to ensure the effective and efficient use of radio spectrum, or the implementation of the technical implementing measures adopted under Article 4 of the Radio Spectrum Decision, the Regulator may restrict or withdraw rights of use for radio spectrum, including the rights referred to in Regulation 31.

• (3) The Regulator shall establish clearly defined procedures in advance for the restriction or withdrawal of rights of use in accordance with this Regulation and any restriction or withdrawal of rights shall follow the established procedures and be in accordance with the principles of proportionality and non-discrimination.

• (4) Where the Regulator restricts or withdraws rights of use in accordance with this Regulation, the holders of the rights may, where appropriate, be compensated in accordance with law.

• (5) A modification in the use of radio spectrum as a result of the application of any of the obligations under Regulation 27(3) to (8) shall not alone constitute grounds to justify the withdrawal of a right of use for radio spectrum.

• (6) Where the Regulator intends to restrict or withdraw rights under the general authorisation or individual rights of use for radio spectrum or for numbering resources without the consent of the holder of the rights, it shall consult with interested parties in accordance with Regulation 101.

Part 4 INTERNAL MARKET PROCEDURES AND COORDINATION

CHAPTER 1 Radio spectrum coordination

Radio spectrum coordination among Member States

16.

• (2) The Regulator, in carrying out the tasks assigned to it under these Regulations, shall cooperate with national regulatory authorities in other Member States and, where appropriate, through the RSPG, in the cross-border coordination of the use of radio spectrum in order to —

• (a) ensure compliance with paragraph (1), and

• (b) resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Member States, as well as with third countries, which prevent Member States from using the harmonised radio spectrum in their territory.

• (3) In order to ensure compliance with paragraph (1), the Regulator, having notified the Minister, may request the RSPG to use its good offices to address any problem or dispute in relation to cross-border coordination or cross-border harmful interference.

• (4) Where the actions referred to in paragraph (2) or (3) have not resolved the problem or dispute, the Regulator may, having notified the Minister, request the European Commission to adopt a decision in accordance with Article 28(4) of the Directive to resolve cross-border harmful interference which prevents use of the harmonised radio spectrum in the State.

• (5) This Regulation is without prejudice to the Act of 1926.

CHAPTER 2 Consolidating internal market for electronic communications

17.

• (2) In carrying out its tasks under these Regulations the Regulator shall, taking the utmost account of its objectives under section 12 of the Act of 2002 and Regulation 4, contribute to the development of the internal market by working with national regulatory authorities in other Member States, BEREC and the European Commission in a transparent manner to ensure the consistent application of the Directive.

• (3) For the purpose of paragraph (2), the Regulator shall, in particular, work with the European Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the market.

• (4) Except where otherwise provided in recommendations or guidelines adopted by the European Commission under Article 34 of the Directive, upon completion of the public consultation, if required under Regulation 101, where the Regulator intends to take a measure which —

• (a) falls within the scope of Regulation 42, 46, 49, 50 or 64, and

• (b) would affect trade between Member States,

the Regulator shall publish the draft measure and communicate it to the European Commission, BEREC and the national regulatory authorities in other Member States at the same time, stating the reasons for the measure, in accordance with Regulation 98(12) to (14).

• (5) Where a draft measure referred to in paragraph (4) aims to —

• (a) define a relevant market which is different from any defined in a Recommendation adopted in accordance with Article 64(1) of the Directive, or

• (b) designate an undertaking as having, either individually or jointly with others, significant market power under Regulation 49(6), (7) or (8),

and it would affect trade between Member States, and the European Commission has indicated to the Regulator that it considers the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law and, in particular, the objectives referred to in Regulation 4, the draft measure shall not be adopted for a further 2 months.

• (6) Where the European Commission has adopted a decision in accordance with point (a) of the first subparagraph of Article 32(6) of the Directive requiring the Regulator to withdraw a draft measure, the Regulator shall, within 6 months of the date of the decision of the European Commission —

• (a) withdraw the draft measure, or

• (b) amend it, undertake a public consultation in accordance with the procedures referred to in Regulation 101, and notify the amended draft measure to the European Commission in accordance with the procedure set out in paragraph (4).

• (7) The Regulator shall take the utmost account of any comments of the European Commission, BEREC and a national regulatory authority in another Member State and may, except in cases covered by paragraph (5) and subparagraph (a) of paragraph (6), adopt the resulting draft measure and, where it does so adopt the draft measure, shall communicate it to the European Commission.

• (8) The Regulator shall communicate to the European Commission and BEREC all adopted final measures which fall within the scope of subparagraphs (a) and (b) of paragraph (4).

• (9) Where the Regulator considers that there are exceptional circumstances justifying an urgent need to act in order to safeguard competition and protect the interests of users it may, notwithstanding the procedures set out in paragraphs (4) and (5), immediately adopt proportionate measures on a provisional basis.

• (10) Where the Regulator acts in accordance with paragraph (9), it shall without delay communicate the measures concerned, with full reasons for their adoption, to the European Commission, to BEREC and to the national regulatory authorities in other Member States.

• (11) A decision by the Regulator to render a measure referred to in paragraph (9) permanent or extend the time for which it is applicable is subject to paragraphs (4) and (5).

• (12) The Regulator may withdraw a draft measure at any time.

Procedure for consistent application of remedies

18.

• (a) a draft measure referred to in Regulation 17(4) aims to impose, amend or withdraw an obligation on an undertaking in application of Regulation 42 or 49 in conjunction with Regulations 51 to 58 and Regulation 64, and

• (b) the European Commission has, within the period of one month specified in Article 32(3) of the Directive, notified the Regulator that it considers that the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law,

then the draft measure shall not be adopted by the Regulator for a further three months following the notification referred to in subparagraph (b) from the European Commission.

• (2) In the absence of a notification referred to in paragraph (1)(b), the Regulator may adopt the draft measure taking the utmost account of any comments made by the European Commission, BEREC or a national regulatory authority in another Member State.

• (3) Within the three-month period referred to in paragraph (1), the Regulator shall cooperate closely with the European Commission and BEREC to identify the most appropriate and effective measure, having regard to its objectives under section 12 of the Act of 2002 and Regulation 4, whilst taking due account of the views of market participants and the need to ensure the development of consistent regulatory practice.

• (4) Before the end of the three-month period referred to in paragraph (1), the Regulator may —

• (a) amend or withdraw its draft measure taking the utmost account of the notification from the European Commission referred to in paragraph (1) and the opinion of BEREC issued in accordance with Article 33(3) and (4) of the Directive, or

• (b) maintain its draft measure.

• (5) Within one month of the European Commission issuing a recommendation in accordance with point (a) of Article 33(5) of the Directive or such extended period allowed by the European Commission, lifting its reservations in accordance with point (b) of Article 33(5), the Regulator shall communicate to the European Commission and BEREC the adopted final measure.

• (6) Where the Regulator decides not to amend or withdraw the draft measure on the basis of the recommendation of the European Commission issued in accordance with point (a) of Article 33(5) of the Directive, the Regulator shall provide reasons.

• (7) The Regulator shall withdraw a draft measure where the European Commission takes a decision under Article 33(5)(c) requiring it to withdraw such measure.

• (8) The Regulator may withdraw the proposed draft measure at any stage of the procedure set out in this Regulation.

CHAPTER 3 Consistent radio spectrum assignment

Peer review process

19.

• (2) For the purposes of paragraph (1), the Regulator shall inform the RSPG about a draft measure at the moment of its publication.

• (3) During a Peer Review Forum convened, or reconvened by the RSPG, whether on its own initiative or following a request from the Regulator, the Regulator shall provide an explanation on how the draft measure —

• (a) promotes the development of the internal market, the cross-border provision of services, as well as competition, and maximises the benefits for the consumer, and overall achieves the objectives set in Regulations 4, 27, 28 and 29, as well as in the Radio Spectrum Decision and Decision No. 243/2012/EU of the European Parliament and of the Council of 14 March 2012⁹ ,

• (b) ensures effective and efficient use of radio spectrum, and

• (c) ensures stable and predictable investment conditions for existing and prospective radio spectrum users when deploying networks for the provision of electronic communications services which rely on radio spectrum.