Commission for Communications Regulation v Virgin Media Ireland Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Denis Mcdonald
• Judgment Date: 07 February 2025
• Neutral Citation: [2025] IEHC 66
• Docket Number: [Record No. 2022/229MCA]

IN THE MATTER OF REGULATION 31(5) OF THE EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES) (UNIVERSAL SERVICE AND USERS' RIGHTS) REGULATIONS 2011, S.I. NO. 337/2011

Between

Commission for Communications Regulation

Applicant

and

Virgin Media Ireland Limited

Respondent

[2025] IEHC 66

[Record No. 2022/229MCA]

THE HIGH COURT

COMMERCIAL

JUDGMENT of Mr. Justice Denis Mcdonald delivered on 7 ^th February 2025

Table of Contents

Introduction	3
The role of ComReg	5
The structure of this judgment	10
ComReg's information notice 14/77 dated 14 th July 2014 in relation to Eircom	11
The first ComReg notification to Virgin Media dated 1 th November 2019	13
The information request of 16 th March 2020	14
The response from Virgin Media of 19 th June 2020	15
The ComReg request for further information dated 19 th August 2020	19
The Virgin Media response of 9 th October 2020	19
The ComReg Notification of Non-compliance dated 29 th March 2021	20
The initial response of Virgin Media to the March 2021 notification	20
The substantive response to the March 2021 notice as set out in the Matheson letter of 11 th June 2021	21
ComReg's amended Notification of Non-compliance dated 23 th September 2021	22
Virgin Media's response of 30 th November 2021 to the Amended Notification	27
ComReg's opinion on non-compliance issued under Regulation 31 in advance of the commencement of proceedings	35
The commencement of these proceedings	70
The issues which require to be addressed	70
The approach to be taken by the Court on an application under Regulation 31(5)	71
Analysis of the provisions of Regulation 31	71
The submissions on behalf of Virgin Media in relation to the interpretation of Regulation 31	77
ComReg's submissions in relation to the interpretation of Regulation 31	79
Conclusions with regard to the approach to be taken by the Court under Regulation 31	79
The legal test to be applied under Regulation 25(6)(b)	84
Consideration of the evidence before the Court	107
The evidence in relation to “save activity”	108
The first affidavit of Ms. Miriam Kilraine sworn on behalf of ComReg	108
The replying affidavit of Ms. Bláithín Harnett sworn on behalf of Virgin Media	108
The replying affidavit of Ms. Miriam Kilraine sworn on 5 th December 2022	118
The second affidavit of Ms. Harnett	124
The further replying affidavit of Ms. Miriam Kilrane	127
Consideration of the transcripts of customer calls	128
Findings of fact in relation to “save activity”	146
The additional findings that follow from an analysis of the transcripts of customers' calls	153
The conclusions to be drawn from the Transcripts and the training materials	163
Has ComReg established that it is entitled to require Virgin Media to implement its suggested two step process?	169
The order sought by ComReg requiring Virgin Media to provide training to agents to ensure that no unverified or inaccurate criticisms are made in respect of rival service providers	175
ComReg's case in relation to the 30-day notice requirement	175
The evidence in relation to the 30-day notice requirement	177
Relevant aspects of Ms. Harnett's affidavits dealing with the 30-day notice requirement	178
Relevant aspects of Ms. Kilraine's replying affidavit with regard to the 30-day notice requirement	180
Relevant aspects of Ms. Harnett's second affidavit in the context of the 30 day notice requirement	193
Ms. Kilraine's final response in relation to the 30 day notice requirement	194
Conclusions in relation to ComReg's case on the 30-day notice requirement	195
The orders to be made	205

Introduction

1 In these proceedings, the applicant (“ ComReg”) seeks a declaration that the respondent (“ Virgin Media”) has failed to comply with Regulation 25(6)(b) of the European Communities (Electronic Communications Networks and Services) (Universal Service and Users Rights) Regulations 2011 ( S.I. No. 337 of 2011) (“ the Universal Service Regulations”). Under Article 25(6)(b) of the Universal Service Regulations, electronic communications service providers are required, without prejudice to any minimum contractual period which may apply, to ensure that conditions and procedures for contract termination do not act as a disincentive to a consumer changing service provider. The Universal Service Regulations were enacted to give effect to the Universal Service Directive (i.e. Directive 2002/22/EC, as amended by Directive 2009/136/EC). ComReg is the statutory body responsible for the regulation of the electronic communications sector. Virgin Media holds a general authorisation as an authorised operator in the provision of electronic communications services. It has approximately 400,000 fixed customers on its cable network and approximately 140,000 mobile customers in Ireland. The proceedings are brought pursuant to Regulation 31 of the Universal Service Regulations which empowers the High Court to make a number of orders including a declaration of non-compliance with an obligation imposed on providers of electronic communication services. In addition, an order is sought directing Virgin Media to remedy the alleged non-compliance by taking a number of specific steps which I describe further in para. 93(b) to (g) below.

2 While it will be necessary to examine ComReg's allegations in more detail in due course, ComReg makes the case that Virgin Media is in default of its obligations under the Universal Service Regulations in two respects:—

• (a) In the first place, it is alleged that Virgin Media is in breach of the obligation imposed by Regulation 25(6)(b) as a consequence of the procedure for cancellation operated by Virgin Media via 1908 calls. ComReg contends that the Virgin Media procedures involve mandatory “save activity” on the part of Virgin Media employees who are incentivised to seek to persuade customers to stick with Virgin Media. 1908 is a freephone number which Virgin Media customers can use to speak to a member of Virgin Media's customer support team. ComReg contends that Virgin Media should operate a “two step” process under which the customer would first be explicitly offered the choice to proceed directly to cancellation or, in the event that the customer so consents, to listen to save activity on the part of Virgin Media agents about Virgin Media's products and services. Under this process, customers who opt to go directly to cancellation would not have to listen to any such save activity;

• (b) The second aspect of the case made against Virgin Media is that it is alleged that Virgin Media has unlawfully imposed a 30-day notice requirement on customers who wish to change electronic communications service providers outside the minimum contractual period. Clause 3.1 of Virgin Media's terms and conditions states that, unless otherwise specified, the minimum period of a contract is 12 months from the date of activation of service. But it also states that: “If you want to terminate this Agreement after the Minimum Period, one month's written notice is required.” This is reinforced by clause 11.6 which states that: “After the Minimum Period expires this Agreement will continue unless it is terminated by either of you or us giving the other one month's prior written notice. You must pay all relevant Charges up to the end of that one month notice period.” ComReg contends that this requirement constitutes a breach of Regulation 25(6)(b) of the Universal Service Regulations because it allegedly charges customers for switching and, according to ComReg, it is likely to have a dissuasive effect on switching. ComReg also contends that the 30-day notice requirement amounts to a charge in that a switching customer may not require the service for 30 days and may wish to switch immediately (subject to completion of the switching process between providers) and that the customer should have the option to do so. ComReg has calculated that the average amount charged to a customer in respect of this 30-day notice period is €88.52.

The role of ComReg

3 I should explain, by way of background, that ComReg was established under s. 6 of the Communications Regulation Act 2002 (“ the 2002 Act”). Its functions are specified in s. 10 of the 2002 Act. Under s. 10(1)(a), one of its functions is to ensure compliance by undertakings under its remit with the obligations that apply to them in relation to the supply of and access to electronic communications services. Furthermore, under s. 10(1)(d), it is also empowered to carry out investigations into matters relating to the supply of and access to electronic communications services. Section 12 of the 2002 Act deals with the objectives of ComReg in exercising its functions. Under s. 12(1)(a), ComReg is required, in relation to the provision of electronic communications services, to promote competition and to promote the interests of users. In addition, under s. 12(2), the Commission is to take all reasonable measures aimed at achieving its objectives including, in so far as the promotion of competition is concerned, ensuring that users derive maximum benefit in terms of choice, price and quality, and ensuring that there is no distortion or restriction of competition in the electronic communications sector. In addition, under s. 12(2)(c), ComReg is required, in so far as the promotion of the interests of users is concerned, to ensure a high level of protection for consumers in their dealings with suppliers and to promote the provision of clear information “in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services”. ComReg also has significant additional powers and obligations under the Universal...