Ireland – The Role of Own-Use Requirements in Access Disputes

In Ireland, when a competing operator is locked into a dispute with a dominant operator about access to the network of the dominant operator, the operator may seek the assistance of the Irish Commission for Communications Regulation (ComReg) in resolving the dispute.  ComReg must assess the access request to determine whether the dominant operator is required to meet the request, whether the request is technically feasible, and whether the request is reasonable. Dominant operators are permitted to limit access to their facilities for their own use requirements.  However, ComReg will assess the claim to own use requirements to determine if the requirements are legitimate.  ComReg’s approach in this regard is illustrated in its 2009 decision[1] in a case involving a dispute between BT Communications Ireland Limited (BT) and Eircom Limited (Eircom) in relation to local loop unbundling (LLU) collocation at the Eircom Nutley exchange.

In 2006, BT submitted to Eircom a Full Survey & Offer request form with respect to Eircom’s Nutley exchange in accordance with the procedure set out in Eircom’s Access Reference Offer (‘ARO’). This form is used to request that Eircom survey an exchange to ascertain the availability of capacity for collocation for LLU. In its request BT, specified that it required 1900 Main Distribution Frame (MDF) terminations.[2]

Eircom responded that the survey indicated that there was insufficient MDF capacity at the Nutley exchange and that BT’s request for access could therefore not be accommodated.

BT then invoked its right under the Physical Collocation process manual to request a ‘Special Inspection’ on foot and further exercised its right to request that ComReg attend the inspection.  Following the inspection on foot, BT submitted a series of questions about the allocation and utilisation of MDF capacity at the Nutley exchange to Eircom.  After receiving Eircom’s reply to these questions, BT submitted a request to ComReg for dispute resolution.  BT alleged that Eircom was in breach of its obligations under ComReg Decision D8/04 by refusing to provide BT with the local loop unbundling (LLU) exchange capacity that BT had requested on the Eircom MDF in the Nutley exchange.  BT argued that its request for capacity on the MDF in the Nutley exchange could be satisfied if Eircom made reasonable efforts to accommodate the request.  Eircom’s refusal to supply the requested capacity was unreasonable and contravened the Access Regulations.

ComReg ultimately held that Eircom was required to provide the requested capacity notwithstanding Eircom’s arguments that BT’s requests could not be met due to insufficient capacity at the Nutley exchange.  Eircom was ordered to make an offer to BT within six weeks of the effective date of the final determination and to base this offer on the standard Access Reference Offer pricing at the effective date of the final determination, with no charge imposed for work necessary for the rearrangement of the associated Main Distribution Frame.

ComReg considered Eircom’s own use requirements in its assessment of whether BT’s request was technically capable of being met.  ComReg analysed the allocation of capacity at the Nutley exchange and concluded that in the context of overall demand for MDF capacity, there had been over allocation of the MDF capacity in favour of Eircom own use requirements.  In combination, these over allocations resulted in the shortfall in MDF capacity that Eircom claimed made it unreasonable to meet BT’s request for access.  ComReg further held that the totality of these over allocation was greater than the volume of terminations requested by BT.  ComReg considered that there were solutions that could free up adequate MDF capacity to meet BT’s access request.

ComReg also considered Eircom’s own use requirements in assessing whether BT’s request was reasonable.  ComReg noted that BT’s request could be technically met without any structural changes to the Nutley exchange.  Eircom’s claims about insufficient MDF capacity to meet BT’s requests were dismissed in part because ComReg considered that Eircom’s management of the MDF space in the Nutley exchange was not an ‘efficient access network design’ in light of the actual demands on the MDF.  Eircom unduly limited the range of MDF management techniques in determining that there was insufficient MDF space to meet BT’s demand; had a wider range of techniques been considered, BT could have been accommodated at this exchange.[3]

Eircom’s own use requirements also played a role in ComReg’s assessment of whether the costs of accommodating BT’s request were reasonable.  Eircom argued that the costs of accommodating BT’s request were “unrecoverable” by Eircom.  ComReg disagreed.   BT’s request for access fell within the standard product pricing and therefore did not impose new costs on Eircom.  The costs associated with making changes to the Nutley exchange to accommodate BT’s request were avoidable by Eircom.  These costs were not the result of BT’s request but rather were largely attributable to Eircom’s prior management of the MDF in making allocations to its own demands, such that a reasonable request for access might otherwise have been met without incurring these costs.  Not only did ComReg reject Eircom’s arguments that the costs of accommodating BT’s request were unreasonable, but ComReg also imposed the cost of making the necessary changes to the Nutley exchange on Eircom alone.

Related materials

Ireland – Commission for Communications Regulation, Final Determination in the dispute between BT Ireland and Eircom in relation to LLU collocation at Eircom Nutley Exchange, ComReg Document No. 09/13, 5 March, 2009

Footnotes

[1] See Commission for Communications Regulation, Final Determination in the dispute between BT Ireland and Eircom in relation to LLU collocation at Eircom Nutley Exchange, ComReg Document No. 09/13, 5 March, 2009.

[2] See Commission for Communications Regulation, Final Determination in the dispute between BT Ireland and Eircom in relation to LLU collocation at Eircom Nutley Exchange, ComReg Document No. 09/13, 5 March, 2009 at para. 19.

[3] See Commission for Communications Regulation, Final Determination in the dispute between BT Ireland and Eircom in relation to LLU collocation at Eircom Nutley Exchange, ComReg Document No. 09/13, 5 March, 2009 at para.146.

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