European Communities (Voice Telephony and Universal Service) Regulations, 1999

• Jurisdiction: Ireland
• Citation: IR SI 71/1999

I, Mary O'Rourke, Minister for Public Enterprise, 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 No. 97/33/EC1 of 30 June 1997 of the European Parliament and of the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) and Directive No. 98/10/EC2 of the European Parliament and of the Council on the application of Open Network Provision (ONP) to Voice Telephony and on Universal Service for Telecommunications in a Competitive Environment, hereby make the following regulations—
	Citation and commencement.	1. (1) These Regulations may be cited as the European Communities (Voice Telephony and Universal Service) Regulations, 1999.
(2) These Regulations shall come into operation on the fifteenth day of April, 1999.
	Interpretation.	2. (1) In these Regulations, except where the context otherwise requires—
“Act of 1983” means the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983);
“Bord Telecom Éireann” includes any of its assigns or successors in title;
“Commission” means the Commission of the European Communities;
“Directive” means Directive No. 98/10/EC of the European Parliament and of the Council of 26 February 1998;
“Director” means the Director of Telecommunications Regulation;
“fixed operator” means a person who is authorised pursuant to section 111(2) of the Act of 1983 to provide fixed public telephone services, fixed public telephone networks or both such services and networks;
“Member State” means a Member State of the European Union;
“Minister” means the Minister for Public Enterprise;
“mobile operator” means a person who is authorised pursuant to section 111(2) of the Act of 1983 to provide public mobile telephone networks, public mobile telephone services or both such networks and services;
“organisation with significant market power” means a fixed operator which, for the purpose of these Regulations, has been designated by the Director as having signigicant market power in accordance with Regulation 4;
“universal service” means making available, in accordance with these Regulations, to all users within the geographic area or areas of the State designated by the Director under paragraph (2) of Regulation 3, the services to which the designation under paragraph (2) or (3) of that Regulation refers, which shall be one or more of the services referred to in paragraph (7) of that Regulation, at an affordable price, as determined in accordance with Regulation 8.
(2) A word or expression that is used in these Regulations and is also used in the Directive has exept where the context otherwise requires, the same meaning in these Regulations that it has in the Directive.
(3) In these Regulations, unless otherwise indicated—
(a) a reference to a regulation or a Schedule is a reference to a regulation of or a Schedule to these Regulations,
(b) a reference to a paragraph or a subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs,
(c) a reference to an Article or an Annex is a reference to an Article or Annex of the Directive, and
(d) a reference to an enactment or Regulation shall be construed as a reference to the enactment or Regulation as amended or extended by or under any subsequent enactment or Regulation.
	Universal service obligation.	3. (1) Section 14 of the Act of 1983 shall be revoked 30 days after the date on which these Regulations come into operation.
(2) Within 30 days of the coming into operation of these Regulations, the Director shall designate—
(a) one or more than one fixed operator as having an obligation to provide universal service or any element thereof,
(b) the geographic area or areas of the State, which may include the whole of the State or any part thereof, within which the universal service obligation or any element thereof shall apply, and
(c) the services to which the designation refers which shall be one or more of the services referred to in paragraph (7).
(3) Notwithstanding paragraph (2)(a), the Director may designate any person to provide a universal service in respect of the services referred to in Regulations 10(2) and 11.
(4) The Director may designate one or more additional fixed operators or other persons, as the case may be, as having an obligation to provide universal service at any time after the expiration of the period of 30 days specified in paragraph (2).
(5) Without prejudice to Regulation 11(3), the Director may withdraw any designation made under paragraph (2) or (3) provided that, prior to the effective date of any such withdrawal, the Director has designated at least one other fixed operator or other person, as the case may be, under this Regulation in respect of the service concerned in the geographic area or areas of the State affected by such withdrawal.
(6) (a) In designating a fixed operator or other person, as the case may be, under paragraph (2) or (3), the Director shall take into account the ability of the designated fixed operator or other person concerned to satisfy all or part of the universal service obligation.
(b) The Director may also take into consideration the willingness of a fixed operator or other person to provide all or part of the universal service obligation and any other criteria which the Director considers relevant.
(7) A service to which this Regulation refers is a service referred to in Regulation 9, 10(2) or 11, taking into account any obligations imposed on the person under Regulations 8 and 12.
(8) (a) Prior to the Director making any designation under paragraph (2) or (3), Bord Telecom Éireann shall be obliged to provide universal service pursuant to section 14 of the Act of 1983.
(b) Nothing in this paragraph shall be construed as limiting the Director's authority to designate Bord Telecom Éireann or any other fixed operator or other person as having a universal service obligation pursuant to paragraph (2) or (3).
(9) Where the Director makes or withdraws a designation under this Regulation a notice thereof shall be published in the Iris Oifigiúil as soon as practicable thereafter.
	Designation or organisations with significant market power.	4. (1) For the purposes of these Regulations and subject to paragraph (3), a fixed operator shall be designated by the Director from time to time as having significant market power where it has a share of 25 per cent or more of the relevant market within the geographical area in which the fixed operator is authorised to operate.
(2) The Director shall determine how market share referred to in paragraph (1) is to be measured for the purposes of these Regulations.
(3) The Director may determine—
(a) that a fixed operator with a market share of less than 25 per cent in the particular market has significant market power for the purposes of these Regulations, or
(b) that a fixed operator having a market share of 25 per cent or more in the particular market does not have significant market power.
(4) In making a determination under paragraph (3), the Director shall have regard to—
(a) the ability of the fixed operator to influence market conditions,
(b) the turnover of the fixed operator relative to the size of the particular telecommunications market,
(c) the control exercised or capable of being exercised by the fixed operator concerned over the means of access to users,
(d) the access of the fixed operator to financial resources, and
(e) the experience of the fixed operator in providing the products or services in the particular market.
(5) The Director shall, as soon as practicable after the designation by the Director of a fixed operator as having significant market power for the purposes of these Regulations, notify the Commission of the name of each such fixed operator and, in the event of any change of designation, notify the Commission of such change as soon practicable thereafter.
(6) A list of the names of the fixed operators which have been notified by the Director to the Commission under paragraph (5) shall be made available on request being made to the Director to any interested party during normal working hours free of charge.
	Financing schemes	5. (1) Where the Director designates a fixed operator or other person (in this Regulation referred to as a “designated organisation”) as having an obligation to provide universal service pursuant to Regulation 3, such designated organisation may receive funding, in accordance with this Regulation, for the net cost of meeting its obligation to provide universal service, taking into account any obligations on such organisation under Regulations 8 and 12.
(2) (a) Where Bord Telecom Éireann seeks to receive funding for the net cost of meeting its obligation to provide universal service pursuant to section 14 of the Act of 1983, it may submit to the Director a written request for such funding, in respect of a period commencing not earlier than the first day of December, 1998, and ending on the date upon which a designation by the Director under Regulation 3(2) is made, stating the estimated net cost of its universal service obligation in such period calculated in accordance with Annex III to Directive No. 97/33/EC and accompanied by such supporting information as may be reasonably required by the Director to enable a determination under paragraph (4) to be made.
(b) For the purposes of subparagraph (a), references to a “designated organisation” in this Regulation shall be deemed to include reference to Bord Telecom Éireann.
(3) (a) Where a designated organisation seeks to receive funding pursuant to this Regulation, it shall submit to the Director a written request for such funding—
(i) in respect of the year...