S.I. No. 123/1996 - European Communities (Mobile and Personal Communications) Regulations, 1996.

S.I. No. 123 of 1996.

EUROPEAN COMMUNITIES (MOBILE AND PERSONAL COMMUNICATIONS) REGULATIONS, 1996.

I, MICHAEL LOWRY, Minister for Transport, Energy and Communications, 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 Commission Directive No. 90/388/EEC of 28 June 1990¹ and Commission Directive No. 96/2/EC of 16 January 1996², hereby make the following Regulations.

¹O.J. No. L92 of 24.7.90 P10.

²O.J. No L20 of 26.1.96 P59.

1. . These Regulations may be cited as the European Communities (Mobile and Personal Communications) Regulations, 1996.

2. . (1) In these Regulations, except where the context otherwise requires—

"the Act" means the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983);

"the Minister" means the Minister for Transport, Energy and Communications;

"mobile and personal communications services" means services other than satellite services whose provision consists, wholly or partly, in the establishment of radio communications to a mobile user, and makes use wholly or partly of mobile and personal communications systems;

"mobile and personal communications systems" means systems consisting of the establishment and operation of a mobile network infrastructure whether connected or not to public network termination points, to support the transmission and provision of radiocommunications services to mobile users;

"the Regulations" means the European Communities (Telecommunications Services) Regulations, 1992 ( S.I. No. 45 of 1992 );

(2) A word or expression that is used in these Regulations or in subsection (2B) (inserted by these Regulations) of section 111 of the Act and is also used in Commission Directive No. 90/388/EEC of 28 June 1990 or Commission Directive No. 96/2/EC of 16 January 1996 shall, except where the context otherwise requires, have in these Regulations or that subsection the meaning that it has in the Commission Directive concerned.

(3) In these Regulations—

( a ) a reference to a Regulation is a reference to a Regulation of these Regulations, unless it is indicated that reference to some other provision is intended, and

( b ) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

3. . Subsection (1) of section 87 of the Act and paragraph (1) of Regulation 3 of the Regulations shall be construed as not applying to mobile and personal communications services or mobile and personal communications systems and, accordingly,—

( a ) paragraph (e) of subsection (3) of that section shall be deleted, and

( b ) "mobile radio telephony services, paging services" shall be deleted from paragraph (2) of that Regulation.

4. . Section 111 of the Act is hereby amended by the insertion of the following subsections after subsection (2A) (inserted by the Regulations):

"(2B) ( a ) In this subsection, save where the context otherwise requires, `licence' means a licence under subsection (2) to provide a mobile and personal communications service or a mobile and personal communications system.

( b ) A person shall not provide mobile and personal communications services or mobile and personal communications systems otherwise than under and in accordance with a licence.

( c ) A licence shall remain in force for such period as may be specified therein and may, while it is in force, be continued in force by the Minister from time to time for such periods as may be specified in amendments of the licence.

( d ) A licence and the granting or the refusal to grant a licence shall be in conformity with the requirements of Commission Directive No. 90/388/EEC of 28 June 1990, as amended by Commission Directive 96/2/EC of 16 January 1996.

( e ) Without prejudice to subsection (3) but subject to paragraph (d), a licence shall be subject to such terms and conditions as the Minister may determine and specify in the licence including terms and conditions authorising the suspension or revocation of the licence by the Minister in such circumstances as may be specified in the licence and the amendment of the terms or conditions of the licence by the Minister; and an amendment of a term or condition of a licence shall be effected by the furnishing to the holder of the licence, by or on behalf of the Minister, of a document containing the amendment.

( f ) Whenever the Minister proposes to refuse to grant a licence or to revoke or suspend, or amend a term or condition of, a licence,—

(i) the Minister shall notify the applicant for the licence ('the applicant') or, as the case may be, the holder of the licence ('the holder') of the proposal and shall include in the notification a statement of the reasons for the proposal and of the rights of the applicant or holder under paragraph (g), and

(ii) before deciding to refuse such grant or, as the case may be, to revoke or suspend, or amend a term or condition of, the licence, the Minister shall take into account any representations made by the applicant or, as the case may be, the holder within the period specified in paragraph (g) in relation to the proposal aforesaid.

( g ) A person may, within 21 days of the receipt by him or her of a notification under paragraph (f), make representation to the Minister in relation to the proposals concerned.

( h ) The Minister shall notify the applicant or holder concerned in writing of a decision by the Minister to refuse to grant or to revoke or suspend a licence or to amend a term or condition of a licence and shall include in the notification a statement of the reasons for the decision and, where appropriate, of the rights of the applicant or holder under paragraph (i).

( i ) A person may, within 28 days of the receipt by him or her of a notification under paragraph (h), appeal to the High Court against the decision concerned (not being a decision to amend a term or condition of the licence concerned) and the High Court may confirm the decision or direct the Minister, as may be appropriate, to refrain from granting, revoking or suspending the licence concerned, and the Minister shall comply with a direction under this subparagraph and shall not implement the decision unless and until it is appropriate to do so having regard to the outcome of the appeal.

( j ) (i) In this paragraph 'an authorised officer' means a person authorised in writing by the Minister to exercise, for the purposes of this section, the powers conferred by this paragraph.

(ii) An authorised officer may, if he or she reasonably suspects that—

(I) an offence under this subsection has been or is being committed on or at any premises or other place, and

(II) evidence that the offence has been or is being committed is on or at those premises or that place, enter the premises or place and there—

(III) make such inspections, tests and measurements of machinery and apparatus and other equipment found on the premises and inspections of such records and other information, in whatever form kept, so found as he or she considers appropriate for the purposes of this section, and

(IV) take copies of, or of extracts from, any record or other information in any form found by him or her on the premises or at the place.

(iii) The person in charge of a premises or place entered by an authorised officer pursuant to this paragraph and any person found on such a premises or in such a place by an authorised officer shall give to the officer such information as he or she may reasonably require for the purposes of this section and shall not hinder or obstruct him or her in the performance of his or her functions under this paragraph.

( k ) A person who contravenes this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or both.

( l ) Where an offence under this subsection is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

( m ) A person who applies for a licence shall, if so requested by the Minister, furnish the Minister with such information as the Minister may reasonably require for the purposes of his or her functions under this section in relation to the grant of a licence; and the Minister may refuse to grant a licence to a person who fails or refuses to comply with a request under this paragraph.

( n ) (i) The Minister may grant a licence to the person who was selected by the Minister, pursuant to the competition held by the Minister for that purpose in 1995, to provide and operate in the State a public pan-European cellular digital land-based mobile communications system (GSM).

(ii) Paragraphs (f), (g), (h) and (i) shall, in so far as they relate to a refusal to grant a licence, not apply to such a refusal in relation to applications for the grant of a licence under this section made before the commencement of this subsection whether pursuant to the competition aforesaid or otherwise.

( o ) The Minister may grant a licence to Eircell Limited in respect of the mobile and personal communications services and the mobile and personal communications systems provided by it immediately before the commencement of these regulations.

(2C) This section is without prejudice to section 3 of the Wireless Telegraphy Act, 1926 (No. 45 of 1926).".

5. Section 111 is hereby further amended as respects licences (within the meaning of subsection (2B) (inserted by these Regulations) of that section)—

( a ) in subsection (2), by the deletion of "after consultation with the telecommunications company".

( b ) in subsection (3), by the substitution of "may" for "shall", and

( c ) by the deletion of subsection (4).

6. (1) Operators of mobile communications systems shall be entitled to interconnect their systems with the public telecommunications network of Bord Telecom Éireann and shall be entitled to access to such number of points of interconnection thereto as is necessary for the purposes of their systems and to technical interfaces at those points that are the least restrictive available as regards the features of the mobile services.

(2) The conditions for such interconnection as aforesaid shall be determined on the basis of objective criteria and shall be transparent, non-discriminatory and compatible with the principle of proportionality.

(3) The parties to an interconnection agreement shall furnish a copy thereof to the Minister as soon as may be.

(4) If the operator of a mobile telecommunications system and Bord Telecom Éireann are unable to agree upon the conditions of a proposed interconnection agreement, the Minister may by notice in writing to the parties specify the conditions subject to which the interconnection concerned shall be effected and, if the Minister does so, the parties concerned shall comply with those conditions but shall not be precluded from entering into such an interconnection agreement as they may determine and, if they do so, the agreement shall have effect in accordance with its terms, and the conditions specified by the Minister shall cease to have effect.

7. The reference (inserted by the Act) in section 6 of the Telegraph Act, 1869, to subsection (2) of section 111 of the Act shall be construed as including a reference to subsection (2A) (inserted by the Regulations) of that section.

GIVEN under my Official Seal, this 16th day of May, 1996.

MICHAEL LOWRY,

Minister for Transport, Energy and Communications.

EXPLANATORY NOTE.

The purpose of these Regulations is to provide for amendment of the exclusive privilege of Telecom Éireann in relation to the provision of certain telecommunications services as prescribed in the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983) as amended by the European Communities (Telecommunications Services) Regulations, 1992 ( S.I. No. 45 of 1992 ) to exclude the provision of mobile and personal communications systems and services and to make provisions in relation to the licensing of such systems and services.