Getting The Deal Through: Telecoms And Media 2014

Author:Ms Helen Kelly and Claire Morgan
Profession:Matheson
 
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COMMUNICATIONS POLICY

1 Regulatory and institutional structure

Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?

The Department of Communications, Energy and Natural Resources (DCENR) is the relevant governmental department responsible for the telecoms and media sector. The regulator for communications is the Commission for Communications Regulation (ComReg).

Ireland has implemented the European regulatory framework governing the electronic communications sector by way of primary and secondary legislation. Primary legislation consists of the Communications Regulation Acts 2002-2011. In 2011 Ireland introduced a number of regulations to transpose the European reform package, namely:

the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (the Framework Regulations); the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 (the Access Regulations); the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (the Authorisation Regulations); the European Communities (Electronic Communications Networks and Services) (Universal Service and User's Rights) Regulations 2011 (the Universal Service Regulations); and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the Privacy Regulations). No foreign ownership restrictions apply to communications services.

2 Authorisation/licensing regime

Describe the authorisation or licensing regime.

The provision of communications services is subject to the regime set out in the Authorisation Regulations, which confers a general right to provide an electronic communications network (ECN) or an electronic communications service (ECS) (or both) provided certain conditions are complied with. No distinction is made as to the type of network or service (eg, mobile, fixed or satellite).

The notification procedure for obtaining a general authorisation involves the completion of a notification form, which can be completed online. Operators are free to commence operations once a properly and fully completed notification has been received by ComReg. A notifying party is, however, immediately subject to the Irish regulatory regime and the conditions set out in the general authorisation. Conditions that may be attached to a general authorisation are set out in the schedule to the Authorisation Regulations.

General authorisations are unlimited in duration. No fee is payable on notification; however, an annual levy (0.2 per cent of relevant turnover) is payable where an operator's turnover in Ireland in the relevant financial year is €500,000 or more.

Fixed and mobile service providers may also need to obtain a licence under the Wireless Telegraphy Act 1926 (as amended) in connection with the use of wireless telegraphy apparatus.

In 2013, ComReg granted liberalised use licences to the four mobile network operators currently operating in Ireland (Hutchison 3G Ireland Limited, Vodafone Ireland Limited, Telefónica Ireland Limited, Meteor Mobile Communications Limited (owned by Eircom Limited)) for liberalised use spectrum in the 800MHz, 900MHz and 1800MHz bands, following an auction process.

3 Flexibility in spectrum use

Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?

Previous licences issued by ComReg tended to specify permitted use (eg, 'to keep and have possession of apparatus for wireless telegraphy for the purpose of providing 3G and GSM mobile telephony'). However, more recently ComReg has issued licences on a technology- and service-neutral basis (eg, the 'liberalised use' licences issued following the 2012 spectrum auction were issued 'to keep and have possession of apparatus for wireless telegraphy for terrestrial systems capable of providing ECSs').

However, ComReg may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for ECS where this is necessary (eg, to avoid harmful interference, safeguard the efficient use of spectrum, etc).

ComReg recently published regulations (the Wireless Telegraphy (Transfer of Spectrum Rights of Use) Regulations 2014) and guidelines for spectrum trading in the RSPP bands. ComReg has imposed an ex-ante regime for reviewing notified spectrum transfers to determine whether such transfer would distort competition in the market based on a substantial lessening of competition (SLC) test (which is applied under Irish merger control rules). Where the transfer forms part of a wider transaction which is subject to merger control scrutiny at Irish Competition Authority or European Commission level, the framework and guidelines will not apply and the appropriate competition body will be the sole decision-making body. ComReg must be informed of any such merger or acquisition at the same time it is notified to the relevant competition body. The framework and guidelines deal solely with spectrum trading; ComReg has indicated that it will deal with spectrum leasing and sharing or pooling on a case-by-case basis pending further consideration of the same.

4 Ex-ante regulatory obligations

Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed?

The following communications markets are subject to ex-ante regulation:

Fixed communications

Retail access to the public telephone network at a fixed location: eircom has been designated with significant market power (SMP) in this market and the remedies imposed on eircom include access and price control obligations, and an obligation not to unreasonably bundle this service with its other services. Wholesale call origination on the public telephone network provided at a fixed location: eircom has been designated with SMP in this market and the remedies imposed on eircom include access, non-discrimination, transparency, accounting separation, price control and cost accounting. Wholesale call termination on individual public telephone networks provided at a fixed location: seven fixed service providers (namely, eircom Limited, BT Communications Ireland Limited, Verizon Ireland Limited, UPC Communications Ireland Limited, Colt Telecom Ireland Limited, Smart Telecom Holdings Limited and Magnet Networks Limited) have been designated as having SMP. All operators are subject to a price control and cost accounting obligations, with separate price control and accounting obligations applying to eircom. Wholesale (physical) network infrastructure access at a fixed location: eircom has been designated with SMP in this market and the remedies imposed on eircom include access, transparency, non-discrimination, accounting separation, price control and cost accounting obligations. Wholesale broadband access: eircom has been designated with SMP in this market and the remedies imposed on eircom include access, transparency, non-discrimination, accounting separation, price control and cost accounting obligations. Wholesale terminating segments of leased lines: eircom has been designated with SMP in this market and the remedies imposed on eircom include access, transparency, non-discrimination, accounting separation, price control and cost accounting obligations. Mobile communications

Wholesale voice call termination on individual mobile networks: six mobile network operators have been designated as having SMP in this market (namely, Vodafone Ireland Limited, Telefónica Ireland Limited, Meteor Mobile Communications Limited, Hutchison 3G Ireland Limited, Tesco Mobile Ireland Limited and Lycamobile Ireland Limited). Remedies imposed on these operators include access, non-discrimination, transparency and price control obligations. The methodology for the price control obligation was challenged and the High Court found in part favour of...

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