European Communities (Electronic Communications Networks and Services) (Access) Regulations, 2011

JurisdictionIreland
CitationIR SI 334/2011
Year2011

CONTENTS

Regulation

1. Citation

2. Interpretation

3. Confidentiality of information

4. General framework for access and interconnection

5. Rights and obligations for access and interconnection

6. Functions of the Regulator with regard to access and interconnection

7. Conditional access systems and other facilities

8. Imposition, amendment or withdrawal of obligations

9. Transparency

10. Non-discrimination

11. Accounting separation

12. Obligations of access to, and use of, specific network facilities

13. Price control and cost accounting obligations

14. Functional separation

15. Voluntary separation by a vertically integrated undertaking

16. Publication of notice of obligations and access to information

17. Notification

18. Directions

19. Enforcement — compliance with obligations

20. Service of directions and notifications

21. Prosecution of offences

22. Offences by bodies corporate

23. Penalties

24. Transitional arrangements

25. Revocations

Schedule

S.I. No. 334 of 2011

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES) (ACCESS) REGULATIONS 2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 5th July, 2011.

I, PAT RABBITTE, Minister for Communications, Energy and Natural Resources, 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 2002/19/EC of the European Parliament and of the Council of 7 March 20021 as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 20092 , hereby make the following regulations:

Citation

1. These Regulations may be cited as the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011.

Interpretation

2. (1) For the purpose of these Regulations the definitions set out in Regulation 2(1) of the Framework Regulations apply.

(2) In these Regulations—

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

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

“access” means the making available of facilities or services to another undertaking, under defined conditions, on either an exclusive or 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, and

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

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

“interconnection” means the physical and logical linking of public 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. Services may be provided by the parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between public network operators;

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

“Regulations of 2003” means European Communities (Electronic Communications Networks and Services) (Access) Regulations 2003 ( S.I. No. 305 of 2003 );

“Specific Regulations” means these Regulations, the Authorisation Regulations, the Framework Regulations, the Privacy and Electronic Communications Regulations and the Universal Service Regulations;

“wide-screen television service” means a television service that consists wholly or partially of programmes produced and edited to be displayed in a full height wide-screen format. The 16:9 format is the reference format for wide-screen television services.

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

(4) In these Regulations, a reference to an enactment or Regulations shall be construed as a reference to the enactment or Regulations as amended by any subsequent enactment or Regulations, including these Regulations.

(5) A reference in any enactment or Regulations to the Regulations of 2003 is to be construed as a reference to these Regulations.

Confidentiality of information

3. For the purpose of these Regulations the Regulator shall, subject to the Freedom of Information Acts 1997 and 2003, accept as confidential any information provided to the Regulator which is expressed to be confidential, except where the Regulator has good reason to consider otherwise.

General framework for access and interconnection

4. (1) Subject to these Regulations, an undertaking, whether established in the State or in another Member State, may negotiate with any other such undertaking an agreement on technical and commercial arrangements for access or interconnection in the State in accordance with European Union law for the purpose of the provision of electronic communications services.

(2) An undertaking requesting access or interconnection in the State does not need to be authorised to operate in the State if it is not providing services and does not operate a network in the State.

(3) The Regulator shall not maintain or impose administrative measures which oblige operators, when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or to impose obligations that are not related to the actual access and interconnection services provided without prejudice to the conditions specified in the Schedule to the Authorisation Regulations.

Rights and obligations for access and interconnection

5. (1) An operator has the right to negotiate interconnection with another operator for the purpose of providing publicly available electronic communications services in order to ensure provision and interoperability of services throughout the European Union.

(2) An operator shall negotiate interconnection for the purpose of providing publicly available electronic communications services when requested to do so by another undertaking, authorised in accordance with Regulation 4 of the Authorisation Regulations, in order to ensure provision and interoperability of services throughout the European Union.

(3) An operator shall offer access and interconnection to other undertakings on terms and conditions consistent with any obligations imposed by the Regulator under Regulations 6, 7 and 8.

(4) An operator of a public electronic communications network established for the distribution of digital television services shall ensure that the network is capable of distributing wide-screen television services and programmes.

(5) If an operator to which paragraph (4) relates receives and redistributes wide-screen television services or programmes, the operator—

(a) shall not alter a signal that it receives in wide-screen format, and

(b) shall ensure that the signal is redistributed in the same format.

(6) Without prejudice to Regulation 18 of the Authorisation Regulations, an undertaking that acquires information from another undertaking before, during or after the process of negotiating access or interconnection arrangements shall not use that information for a purpose other than that for which it was supplied and shall respect at all times the confidentiality of information transmitted or stored.

(7) An undertaking shall not pass any information referred to in paragraph (6) on to any other party, in particular, other departments, subsidiaries or partners of the undertaking for whom such information could provide a competitive advantage.

(8) An operator that—

(a) fails to comply with the requirements of paragraph (2), (3), (4) or (5)(b), or

(b) contravenes the requirements of paragraph (5)(a),

commits an offence.

(9) An undertaking that contravenes the requirements of paragraph (6) or (7) commits an offence.

(10) In proceedings for an offence under paragraph (8)(a) it is a defence to establish that—

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

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

Functions of the Regulator with regard to access and interconnection

6. (1) The Regulator shall, acting in pursuit of its objectives set out in section 12 of the Act of 2002 and Regulation 16 of the Framework Regulations, encourage and, where appropriate, ensure, in accordance with these Regulations, adequate access, interconnection and the interoperability of services in such a way as to—

(a) promote efficiency,

(b) promote sustainable competition,

(c) promote efficient investment and innovation, and

(d) give the maximum benefit to end-users.

(2) Without prejudice to any measures that may be taken...

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