Regulation and Convergence in Ireland
As a member state of the European Union, the Republic of Ireland has recently changed is regulatory framework to conform with the new European Regulatory Framework (See Practice Note: Summary of the EU Framework Directive). However, Ireland has chosen not to move as far as the UK in developing a new ‘converged regulatory framework’ (See Practice Note on the UK’s OFCOM). This situation in Ireland is summarized below.
The Commission for Communications Regulation (ComReg) was established on December 1, 2002, with implementation of the Communications Regulation Act, 2002. ComReg is the successor to the Office of the Director of Telecommunications Regulation, which exercised regulatory authority over telecommunications prior to implementation of the 2002 Act.
ComReg is the statutory body responsible for the regulation of the electronic communications sector (telecommunications, radio-communications and broadcasting transmission) and has overseen implementation of the new EU telecoms regulatory framework in Ireland. ComReg’s authority extends to all kinds of transmission networks including:
(a) traditional fixed line telephone networks;
(b) mobile networks providing voice or data services;
(c) television and radio transmission networks;
(d) cable television distribution networks; and
(e) radio communications including fixed wireless, MMDS (multipoint microwave distribution) and satellite services.
Under the 2002 Act, the primary functions of ComReg are:
(a) to ensure compliance by undertakings with obligations in relation to the supply and access to electronic communications services, electronic communications networks and associated facilities and the transmission of services on such networks;
(b) to manage the use of the radio-frequency spectrum and the national numbering resource;
(c) to investigate complaints from undertakings and consumers in regard to the supply of and access to electronic communications services and electronic communications networks; and
(d) to ensure compliance in relation to the placing on the market of communications equipment and radio equipment.
Ireland’s Minister for Communications, Marine and Natural Resources (who oversees ComReg) is permitted to make directions under the 2002 Act “in the interests of proper and effective regulation of the electronic communications market”. The currently stated priorities of the Minister include the introduction of flat-rate Internet access and advancement of the Government’s broadband strategy. ComReg is required to prepare and submit to the Minister a strategy statement every two years. Network operators, service providers and other interested parties have the opportunity to comment on each strategy statement through a public consultation process.
Licensing and Other Regulation
The legal basis for the provision of networks and services is the Authorisation Regulations made by the Minister for Communications, Marine and Natural Resources. Under the Regulations, which transpose and implement the Authorisation Directive, there is a general entitlement to provide electronic communications networks or electronic communications services subject to compliance with standard conditions set out in the General Authorisation. Before providing facilities or services to third parties, operators are required to submit a notification to ComReg for the purposes of compiling a register of operators.
Under the Wireless Telegraphy Act 1926 the possession and operation of radio-communications equipment requires the possession of a license. ComReg issues licenses in accordance with this Act (equipment) and the Broadcasting & Wireless Telegraphy Act 1988 (wireless distribution networks). Where the operation of an electronic communications network involves spectrum use, an operator must obtain an appropriate license under one or more of these Acts.
Prior to 25 July 2003, the provision of telecommunications networks and services was subject to the granting of individual licenses under Section 111 of the Postal and Telecommunications Services Act 1983. These licenses ceased with the implementation of the Authorisation Regulations, and were replaced by the General Authorisation under those Regulations.
The General Authorisation published by ComReg defines the “conditions for the provision of electronic communications networks and services”, and reflects the requirements of the new EU regulatory framework. Specifically, the General Authorisation:
(a) permits an “Authorised Person” (i.e., a person who has the benefit of the General Authorisation) to provide the networks or services identified in the notification submitted by the person to ComReg;
(b) anticipates application by the Authorised Person for planning and development approvals required in connection with the construction of network infrastructure;
(c) addresses interconnection and access to the network of another Authorised Person; and
(d) includes other conditions that reflect the rights and obligations of network operators and service providers under the EU Directives.
In addition to its licensing authority, ComReg oversees the commercial terms and relationships between network operators and other operators, service providers and subscribers. Accordingly, ComReg oversees interconnection and facilities access terms and conditions, wholesale and retail price controls (including implementation of price cap regulation for the dominant fixed line operator, Eircom), and the operation of industry groups such as the Consumer Group Forum, the Numbering Advisory Panel and the Operations and Maintenance Forum. ComReg also manages and allocates the radio-frequency spectrum and administers numbers in accordance with the national numbering plan.
Public broadcasting services by the national broadcaster, RTE, are authorised by the RTE Authority, acting under the Public Service Broadcasting Charter. The Broadcasting Commission of Ireland (“BCI”) licenses commercial television and radio services in Ireland in accordance with the Radio and Television Act 1988 and the Broadcasting Act 2001. The RTE Authority and BCI implement applicable program and advertising codes, and monitor compliance by broadcasters with license terms and codes. ComReg issues the radio equipment and radio-frequency spectrum licenses for broadcasting transmission purposes.
Convergence and Regulation
The exercise of licensing authority by ComReg reflects the new EU regulatory framework, and so does not differentiate among types of network or technologies except that networks making use of radio-communications remain subject to spectrum licensing requirements.
Ireland has abandoned individual licenses that are tied to network or service characteristics, and has fully adopted the mechanism of general authorisation.
As a result of its technological neutrality, and use of the broadly defined terms “electronic communications networks” and “electronic communications services”, the new licensing framework in Ireland supports technological and commercial convergence including convergence (and competition) between conventional public telecommunications networks and cable television distribution networks.
Ireland has not adopted a converged or unified structure for its regulatory authority, but instead maintains distinct regulatory authorities governing 1) the licensing and operation of electronic communications networks as a means of transmission, and 2) the licensing and operation of radio and television broadcasters.