S.I. No. 96/1998 - European Communities (Telecommunications Licences) Regulations, 1998

S.I. No. 96 of 1998.

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS LICENCES) REGULATIONS, 1998

I, Mary O Rourke, T.D, 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. 90/388/EEC¹ of the Commission of 28 June 1990, Directive No. 96/2/EC² of the Commission of 16 January 1996, Directive No. 96/19/EC³ of the Commission of 13 March 1996 and Directive No. 97/13/EC⁴ of the European Parliament and of the Council of 10 April 1997, hereby make the following regulations:

¹O.J. No. L. 192, 24.7.90.

²O.J. No. L. 20, 26.6.96.

³O.J. No. L. 74, 22.3.96.

⁴O.J. No. L. 117, 7.5.97.

1 Citation.

1. These Regulations may be cited as the European Communities (Telecommunications Licences) Regulations, 1998.

2 Interpretation.

2. (1) In these Regulations, unless the context otherwise requires:

"Act of 1926" means the Wireless Telegraphy Act, 1926 (No. 45 of 1926);

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

"Act of 1996" means the Telecommunications (Miscellaneous Provisions) Act, 1996 (No. 34 of 1996);

"Commission" means the Commission of the European Communities;

"Directive" means Directive No. 97/13/EC of the European Parliament and of the Council of 10 April 1997;

"Director" means the Director of Telecommunications Regulation;

"national numbering scheme" means the scheme administered by the Director which sets out the sequence of numbers or other characters which shall be used to route telephony traffic to specific locations;

"network termination point" means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to and efficient communication through that public network and which are individually identified by numbers allocated from the national numbering scheme;

"public telecommunications network" means a telecommunications network used, inter alia, for the purpose of the provision of public telecommunications services between network termination points;

"Regulations of 1997" means the European Communities (Telecommunications Infrastructure) Regulations, 1997 ( S.I. No. 338 of 1997 );

"telecommunications network" means the transmission equipment and, where applicable, switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, by radio, by optical or other electromagnetic means;

"telecommunications services" means services whose provision consists wholly or partly in the transmission or routing of signals on a telecommunications network or both transmission and routing;

"voice telephony" means the commercial provision for the public of the direct transport and switching of speech in real-time between public switched network termination points, enabling any user to use equipment connected to such a network termination point in order to communicate with another termination point.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations, unless the contrary intention appears—

(a) a reference to a regulation or Schedule is a reference to a regulation of or 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, and

(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) Every licence granted under a provision revoked or amended by these Regulations shall, if and in so far as it was operative immediately before the coming into operation of these Regulations, have effect on and after the coming into operation of these Regulations as if it had been granted by the Director under section 111 (amended by these Regulations) of the Act of 1983 or under section 5 of the Act of 1926 and regulations 8 and 9.

3 Limits of applicability.

3. (1) Nothing in these Regulations shall oblige the Director to grant a licence to any person for the purpose of providing a public telecommunications network or a voice telephony service before the first day of January, 2000.

(2) Nothing in these Regulations shall entitle an organisation other than Bord Telecom Éireann to offer to provide voice telephony services within or to and from the State or to establish a public telecommunications network before the first day of January, 2000.

4 Clarification of existing legal provisions.

4. (1) The reference in section 6 (amended by the Act of 1983) of the Telegraph Act, 1869, to subsection (2) (amended by these Regulations) of section 111 of the Act of 1983 shall be construed as including a reference to subsection (3) (amended by these Regulations) of that section.

(2) The reference in section 4(10) of the Act of 1996 to section 111(2B)(inserted by the European Communities (Mobile and Personal Communications) Regulations, 1996 ( S.I. No. 123 of 1996 )) of the Act of 1983 shall be construed as a reference to section 111(2) (amended by these Regulations) of the Act of 1983.

5 Amendment of Act of 1983.

5. The Act of 1983 is hereby amended:

(a) in section 111—

(i) by the substitution for subsection (2) of the following subsection:

"(2) (a) In this subsection, save where the context otherwise requires, 'licence' means a licence to provide —

(i) a public telecommunications network,

(ii) a voice telephony service,

(iii) a mobile and personal communications system,

(iv) a mobile and personal communications service, or

(v) any other network, service or system which requires the allocation to users of numbers from the national telecommunications numbering resource.

(b) The Director may grant a licence in accordance with this subsection.

(c) It shall be an offence for a person to provide a network, service or system referred to in paragraph (a) otherwise than under and in accordance with a licence granted by the Director under paragraph (b) or otherwise authorised by law.

(d) 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 Director from time to time for such periods as may be specified in amendments of the licence.

(e) (i) In granting a licence the Director shall not attach conditions other than—

(I) those listed in points 2, 3 and 4 of the Annex to the Directive, and

(II) those corresponding to offers made by the applicant for a licence in the course of a comparative bidding procedure.

(ii) The conditions referred to in subparagraph (i)(I) shall be objectively justified in relation to the service or network concerned, non-discriminatory, proportionate and transparent.

(iii) The conditions referred to in subparagraph (i)(II) shall be objectively justified in relation to the service or network concerned, transparent and shall not affect the rights of other undertakings under European Community law including the Directive.

(iv) Subject to subsection (10), the Director may amend the conditions of a licence in objectively justified cases and in a proportionate manner and an amendment of a licence shall be effected by furnishing to the holder of the licence, by or on behalf of the Director, a document containing the amendment.

(v) Subject to subparagraph (vi), the Director shall inform an applicant for a licence of his or her decision not more than six weeks after receipt of the application, including all of the information required by the Director.

(vi) The Director may extend the time limit referred to in subparagraph (v) by up to four months in the case of comparative bidding procedures for the award of licences.

(vii) The time limits referred to in subparagraphs (v) and (vi) shall be without prejudice to any applicable international agreements relating to international frequency and satellite coordination.

(f) The rights given under and the conditions attached to a licence under subsection (3) shall not be restricted or complemented by the grant or amendment of a licence under this subsection, except in objectively justified cases and in a proportionate manner, in particular, to reflect obligations relating to the provision of universal service or the control of significant market power or both, or obligations corresponding to offers made by an applicant in the course of comparative bidding procedures for the award of a licence.

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

(h) This section shall be without prejudice to section 3 of the Wireless Telegraphy Act, 1926 .

(i) It shall be an offence for the holder of a licence to fail to comply with a condition of the licence.",

(ii) by the substitution for subsection (3) of the following subsection:

"(3) (a) In this subsection, save where the context otherwise requires, 'licence' means a licence to provide a telecommunications network (including the use of an existing telecommunications network for the purpose of providing a service to any other person) or a telecommunications service not being—

(i) a network or service to which subsection (2)(a) relates, or

(ii) a service, network, operation or system specified in section 4A (inserted by the European Communities (Telecommunications Infrastructure) Regulations, 1997 ( S.I. No. 338 of 1997 )) of the Telegraph Act, 1869.

(b) A licence may be granted by the Director on the basis of a declaration by the applicant for the licence that the network or service in respect of which the licence is being sought shall, at all times, comply in all respects with conditions attached by the Director to the licence as being applicable to the provision of the service or network for which the licence is being sought.

(c) It shall be an offence for a person to provide a network or service referred to in paragraph (a) otherwise than under and in accordance with a licence granted by the Director under paragraph (b).

(e) (i) In granting a licence the Director shall not attach conditions other than those listed in points 2 and 3 of the Annex to the Directive.

(ii) The conditions referred to in subparagraph (i) shall be objectively justified in relation to the network or service concerned, nondiscriminatory, proportionate and transparent.

(iii) Subject to subsection (10), the Director may amend the conditions attached to a licence in objectively justified cases and in a proportionate manner and an amendment of a licence shall be effected by the furnishing to the holder of the licence, by or on behalf of the Director, a document containing the amendment.

(iv) Subject to subparagraph (v), a person may exercise the rights conferred by a licence from a date four weeks after the submission to the Director of an application for a licence together with any application fee for the licence unless the Director has notified the applicant before that date that the application is incomplete.

(v) Where the Director has notified an applicant that an application for a licence is incomplete, the rights conferred by the licence which is sought may be exercised from a date four weeks after the submission to the Director of the further information required unless the Director further notifies the applicant before that date that the application remains incomplete.

(f) It shall be an offence for the holder of a licence to fail to comply with a condition of the licence.",

(iii) by the insertion after subsection (3) of the following subsection:

"(4) (a) Where, in the opinion of the Director, the holder of a licence granted under subsection (2) or (3) fails to comply with a condition of the licence, the Director may, by notice in writing, without prejudice to any conditions of the licence concerning suspension or revocation thereof, or any powers of prosecution of the Director, impose on that holder, in a proportionate manner, specific measures aimed at ensuring compliance.

(b) The imposition of specific measures under paragraph (a) on the holder of a licence shall be in accordance with the procedures specified in subsection (10).

(c) Where the holder of the licence concerned fails to comply with the condition referred to in paragraph (a) within a period of one month from the date of imposition of specific measures by the Director under that paragraph, the Director may, in accordance with the procedures specified in subsection (10), revoke the licence concerned.

(d) The holder of a licence who fails to comply with specific measures imposed by the Director under paragraph (a) shall be guilty of an offence.

(e) It shall be a defence to a prosecution under paragraph (d) for the holder of a licence to prove that a specific measure imposed by the Director under paragraph (a) was unreasonable having regard to the scope and terms of the condition of the licence which, in the opinion of the Director, that holder is failing to comply with.",

(iv) in subsection (6), by the insertion after paragraph (b) of the following paragraphs:

"(c) Subject to paragraph (d), any fees imposed by the Director in respect of the grant of licences under subsection (2) or (3) shall not exceed the administrative costs incurred in the issue, management, control and enforcement of those licences.

(d) Notwithstanding paragraph (c), but subject to paragraph (a), the Director may, in respect of the grant of licences under subsection (2), where scarce radio frequencies are to be used, impose charges which reflect the need to ensure the optimal use of the radio frequency spectrum, and those charges shall be nondiscriminatory and shall take into particular account the need to foster the development of innovative services and competition.",

(v) by the insertion after subsection (6) of the following subsections:

"(7) (a) In this subsection 'authorised officer' means a person authorised in writing by the Director to exercise, for the purposes of this section, the powers conferred by this subsection.

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

(i) an offence under subsection (2)(c) or (i), subsection (3)(c) or (f) or subsection (4)(d) has been or is being committed on or at any premises or other place, or

(ii) evidence that such an offence has been or is being committed is on or at those premises or that place,

enter the premises or place and there—

(I) make such inspections, tests and measurements of machinery and apparatus and other equipment found on the premises or at the place 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 subsection, and

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

(c) Any person on or at a premises or place entered by an authorised officer under this subsection shall give to the officer such information as he or she may reasonably require for the purposes of this subsection and shall not hinder or obstruct him or her in the performance of his or her functions under this subsection.

(d) A person who fails to comply with paragraph (c) shall be guilty of an offence.

(8) (a) Where a notice is authorised or required by or under this section to be sent or given to a person, other than the Director, it shall be addressed to the person and may be served on or given to that person in one of the following ways—

(i) where it is addressed to the person by name, by delivering it to the person, or

(ii) by sending it by ordinary prepaid post addressed to the person at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address.

(b) Where a notice is required by this section to be given to the Director, it shall be sent by post in a prepaid registered letter to the Director of Telecommunications Regulation, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1.

(9) (a) Telecommunications links may be monitored in accordance with paragraph (b) by or on behalf of the Director to establish whether or not telecommunications services are telecommunications services to which subsection (3) applies and, if they are, that such services at all times comply in all respects with any service conditions attached to a licence granted by the Director under that subsection.

(b) Telecommunications links may be monitored for the purposes of paragraph (a) by any measurement or surveillance (other than interception within the meaning of section 1 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 )(No. 10 of 1993)) of traffic carried on telecommunications links and the recording by any means of such traffic.

(10) (a) Where the Director proposes—

(i) to refuse to grant a licence under this section, or

(ii) to revoke, suspend, or amend a licence granted under this section, or

(iii) to impose specific measures under subsection (4)(a) on the holder of a licence granted under this section,

paragraphs (b) to (j) shall apply.

(b) The Director 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 referred to in paragraph (a) 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 (c).

(c) The applicant or the holder may, within 21 days of the receipt by the applicant or the holder of a notification under paragraph (b), make representations to the Director in relation to the proposal concerned.

(d) (i) The Director shall publish a notice in the Iris Oifigiúil of any proposed amendment to a licence granted under this section.

(ii) Any interested party may, within 21 days of the date of publication of the notice referred to in subparagraph (i), make representations to the Director in relation to the proposed amendment.

(e) Before deciding to refuse the grant or, as the case may be, to revoke, suspend, or amend a licence, or to impose specific measures on the holder of a licence, the Director shall take into account any representations made by—

(i) the applicant or the holder within the period specified in paragraph (c), or

(ii) any interested party within the period specified in paragraph (d)(ii),

in relation to the proposal concerned.

(f) The Director shall notify the applicant or holder concerned in writing of a decision by the Director to refuse to grant a licence or to revoke, suspend or amend a licence or to impose specific measures on the holder 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 (g).

(g) The applicant or the holder may, within 28 days of the receipt by the applicant or the holder of a notification under paragraph (f), appeal to the relevant Court against the decision concerned and the Court may confirm the decision or direct the Director, as may be appropriate, to refrain from—

(i) refusing to grant,

(ii) revoking,

(iii) suspending,

(iv) amending, or

(v) imposing specific measures on the holder of,

the licence concerned, and the Director shall comply with a direction under this paragraph and shall not implement the decision unless and until it is appropriate to do so having regard to the outcome of the appeal.

(h) In this subsection, 'relevant Court' means-

(i) the High Court, in the case of an application for a licence or a licence granted by the Director under subsection (2)(b).

(ii) the District Court, in the case of an application for a licence or a licence granted by the Director under subsection (3)(b).

(i) (i) An appeal under paragraph (g) shall be preceded by a notice, in the form set out in the Fifth Schedule to this Act or in a form to the like effect expressed to be made under this section, signed by the appellant or by his or her solicitor.

(ii) A notice referred to in subparagraph (i) shall be served on the Director at least 21 days before the date of the hearing of the appeal.

(iii) A copy of the notice referred to in subparagraph (i) together with a statutory declaration of service thereof shall be lodged—

(I) in the case of an appeal to the High Court, in the Central Office, Four Courts, Dublin,

(II) in the case of an appeal to the District Court, with the Clerk of the District Court,

at least seven days before the date of the hearing of the appeal.

(j) This subsection shall not, in so far as it relates to a refusal to grant a licence, apply to such a refusal in relation to applications for the grant of a licence made before the coming into operation of this subsection.

(11) (a) A person who is guilty of an offence under subsection (2)(c) or (i), subsection (3)(c) or (f), subsection (4)(d) or subsection (7)(d) shall be liable on summary conviction to a fine not exceeding£1,500 or to imprisonment for a term not exceeding 12 months or to both.

(b) Where an offence under this section is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate 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.

(d) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this section may be brought within 12 months from the date of the offence.

(12) In this section—

'Directive' means Directive No. 97/13/EC of the European Parliament and of the Council of 10 April 1997;

'Director' means the Director of Telecommunications Regulation;

'mobile and personal communications services' means services other than satellite services whose provision consists, wholly or partly, in the establishment of radiocommunications 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;

'national numbering scheme' means the scheme administered by the Director which sets out the sequence of numbers or other characters which shall be used to route telephony traffic to specific locations;

'national telecommunications numbering resource' means the resource administered by the Director which sets out the sequence of numbers or other characters which shall be used to route telephony traffic;

'network termination point' means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to and efficient communication through that public network and which are individually identified by numbers allocated from the national numbering scheme;

'public telecommunications network' means a telecommunications network used, inter alia, for the purpose of the provision of public telecommunications services between network termination points;

'public telecommunications service' means a telecommunications service available to the public;

'telecommunications network' means the transmission equipment and, where applicable, switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, by radio, by optical or by other electromagnetic means;

'telecommunications services' means services whose provision consists wholly or partly in the transmission or routing of signals on a telecommunications network or both transmission and routing;

'users' means individuals, including consumers, or organisations, using or requesting publicly available telecommunications services;

'voice telephony' means the commercial provision for the public of the direct transport and switching of speech in real-time between public switched network termination points, enabling any user to use equipment connected to such a network termination point in order to communicate with another termination point.

(13) A word or expression that is used in this section and is also used in Directive No. 90/388/EEC of the Commission of 28 June 1990, Directive No. 96/2/EC of the Commission of 16 January 1996, Directive No. 96/19/EC of the Commission of 13 March 1996 and the Directive has, unless the contrary intention appears, the same meaning i in this section as it has in those Directives.", and

and the section as so amended is set out in Schedule 1,

and

(b) by the insertion after the Fourth Schedule of the following Schedule:

"FIFTH SCHEDULE

Section 111

Notice of Appeal

Section 111(10)(g) of the Postal and Telecommunications Services Act, 1983

TAKE NOTICE THAT, I of being aggrieved by the (refusal of the Director to grant a licence)* (decision by the Director to revoke a licence)* (decision by the Director to suspend a licence)* (decision by the Director to amend a licence)* (decision by the Director to impose specific measures under section 111(4)(a) of the Postal and Telecommunications Services Act, 1983 , on the holder of a licence)* hereby appeal against such (refusal)* (decision)* to the Judge sitting at the (District)* (High)* Court to be held on the day of , 19 .

*Delete where not applicable.".

Dated this day of , 19 .

Appellant

Solicitor for the Appellant

(To the District Court Clerk at)*

(To the High Court Registrar at the Central Office, Four Courts, Dublin)*

To the Director, Office of the Director of Telecommunications Regulation, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1.

*Delete where not applicable.".

6 Revocation.

6. The statutory instruments mentioned in column (2) of Schedule 2 are hereby revoked to the extent mentioned in column (3) of that Schedule.

7 Duties of Director.

7. (1) The Director shall not disclose information covered by the obligation of professional secrecy, in particular, information about undertakings, their business relations or their cost components.

(2) Paragraph (1) shall not apply where disclosure is essential for the purpose of the fulfilment by the Director of his or her duties and the Director shall ensure that the disclosure shall be proportionate and shall have regard to the interests of undertakings in the protection of their business secrets.

(3) Paragraph (1) shall not preclude publication of information in the conditions of licences which does not include information of a confidential nature.

(4) The Director shall ensure that the conditions of licences granted under—

(a) subsections (2) and (3) (both amended by these Regulations) of section 111 of the Act of 1983, or

(b) section 5 of the Act of 1926 which relate to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which subsection (2) of section 111 of the Act of 1983 relates, conform with the requirements of these Regulations before the first day of January, 1999.

(5) (a) Before the first day of September, 1998, the Director shall make available on request, to interested parties, information concerning the procedures relating to the grant of licences under—

(i) subsection (3) of section 111 of the Act of 1983, or

(ii) section 5 of the Act of 1926 which relate to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which subsection (3) of section 111 of the Act of 1983 relates,

including information in relation to licence fees and the conditions attached to those licences.

(b) The procedures referred to in subparagraph (a) shall conform with Directive No. 90/388/EEC of 28 June 1990 and the Directive.

(c) The Director shall publish before the first day of September, 1998, a notice in the Iris Oifigiúil and the Official Journal of the European Communities in relation to the manner in which the information referred to in subparagraph (a) may be obtained.

(6) (a) Before the first day of January, 1999, the Director shall make available, on request to interested parties, information concerning the procedures relating to the grant of licences under—

(i) subsection (2) of section 111 of the Act of 1983, or

including information in relation to licence fees and the conditions which may be attached to those licences.

(b) The procedures referred to in subparagraph (a) shall conform with Directive No. 90/388/EEC of 28 June 1990 and the Directive.

(c) The Director shall publish before the first day of January, 1999, a notice in the Iris Oifigiúil and the Official Journal of the European Communities in relation to the manner in which the information referred to in subparagraph (a) may be obtained.

(7) (a) The Director shall notify to the Commission the information to be made available under paragraphs (5) and (6).

(b) The Director shall notify to the Commission any changes to that information within one month of the coming into operation of those changes.

(8) Any regulations made by the Director under section 6 of the Act of 1926 shall conform with the requirements of these Regulations in so far as they affect licences under section 5 of the Act of 1926 which relate to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which section 111 of the Act of 1983 relates.

(9) The Director shall ensure that any regulations made under section 6 of the Act of 1926 before the coming in to operation of these Regulations conform with the requirements of paragraph (8) before the first day of January, 1999.

8 Issue of licences under section 5 of the Act of 1926.

8. (1) In this regulation, "licence" means a licence granted by the Director under section 5 of the Act of 1926 which relates to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which section 111 (amended by these Regulations) of the Act of 1983 relates.

(2) The Director shall ensure that:

(a) licences are granted according to open, transparent and nondiscriminatory procedures in accordance with the Directive and that the grant of a licence is subject to the applicant being the holder of or being granted the appropriate licence in respect of the network, system or service concerned under section 111 of the Act of 1983;

(b) the conditions of licences are objectively justified, nondiscriminatory, proportionate and transparent and are limited to those listed in points 2, 3, and 4 of the Annex;

(i) not exceed the administrative costs incurred in the issue, management, control and enforcement of the licences, or

(ii) be designed to ensure the optimal use of the radio frequency spectrum in which case account should be taken of the need to foster the development of innovative services and competition; and

(d) subject to paragraph (3)(a), an applicant for a licence shall be informed of the decision of the Director not more than six weeks after receipt of the application, including all of the information required by the Director.

(3) (a) The Director may extend the time limit referred to in paragraph (2)(d) by up to four months in the case of comparative bidding procedures for the award of licences.

(b) The time limits referred to in paragraph (2)(d) and subparagraph (a) shall be without prejudice to any applicable international agreements relating to international frequency and satellite co-ordination.

(4) (a) Subject to paragraph (6), the Director may amend the conditions of a licence in objectively justified cases and in a proportionate manner and an amendment of a licence shall be effected by furnishing to the holder of the licence, by or on behalf of the Director, a document containing the amendment.

(b) The rights given under and the conditions attached to a licence under subsection (3)(amended by these Regulations) of the Act of 1983 shall not be restricted or complemented by the grant or amendment of a licence under section 5 of the Act of 1926 and these Regulations, except in objectively justified cases and in a proportionate manner, in particular, to reflect obligations relating to the provision of universal service or the control of significant market power or both, or obligations corresponding to offers made by an applicant in the course of comparative bidding procedures for the award of a licence.

(c) A person who applies for a licence shall, if so requested by the Director, furnish the Director with such information as the Director may reasonably require for the purposes of the functions of the Director under this regulation in relation to the grant of a licence, and the Director may refuse to grant a licence to a person who fails or refuses to comply with a request under this subparagraph.

(d) It shall be an offence for the holder of a licence to fail to comply with a condition of the licence.

(5) (a) Where, in the opinion of the Director, the holder of a licence fails to comply with a condition of the licence, the Director may, by notice in writing, without prejudice to any conditions of the licence concerning suspension or revocation thereof or any powers of prosecution of the Director, impose on that holder, in a proportionate manner, specific measures aimed at ensuring compliance.

(b) The imposition of specific measures under subparagraph (a) on the holder of a licence shall be in accordance with the procedures specified in paragraph (6).

(c) Where the holder of the licence concerned fails to comply with the condition referred to in subparagraph (a) within a period of one month from the date of imposition of specific measures by the Director under that subparagraph, the Director may, in accordance with the procedures specified in paragraph (6), revoke the licence concerned.

(d) The holder of a licence who fails to comply with specific measures imposed by the Director under subparagraph (a) shall be guilty of an offence.

(e) It shall be a defence to a prosecution under subparagraph (d) for the holder of a licence to prove that a specific measure imposed by the Director under subparagraph (a) was unreasonable having regard to the scope and terms of the condition of the licence which, in the opinion of the Director, that holder is failing to comply with.

(6) (a) Where the Director proposes—

(i) to refuse to grant a licence, or

(ii) to revoke, suspend, or amend a licence, or

(iii) to impose specific measures under paragraph (5)(a) on the holder of a licence, subparagraphs (b) to (h) shall apply.

(b) The Director 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 referred to in subparagraph (a) and shall include in the notification a statement of the reasons for the proposal and of the rights of the applicant or holder under subparagraph (c).

(c) The applicant or the holder may, within 21 days of the receipt by the applicant or the holder of a notification under subparagraph (b), make representations to the Director in relation to the proposal concerned.

(d) (i) The Director shall publish a notice in the Iris Oifigiúil of any proposed amendment to a licence.

(ii) Any interested party may, within 21 days of the date of publication of the notice referred to in clause (i), make representations to the Director in relation to the proposed amendment.

(e) Before deciding to refuse the grant or, as the case may be, to revoke, suspend, or amend a licence, the Director shall take into account any representations made by—

(i) the applicant or the holder within the period specified in subparagraph (c), or

(ii) any interested party within the period specified in subparagraph (d)(ii),

in relation to the proposal concerned.

(f) The Director shall notify the applicant or holder concerned in writing of a decision by the Director to refuse to grant a licence or to revoke, suspend or amend a licence or to impose in the notification a statement of the reasons for the decision and, where appropriate, of the rights of the applicant or holder under subparagraph (g).

(g) The applicant or the holder may, within 28 days of the receipt by the applicant or the holder of a notification under subparagraph (f), appeal to the High Court against the decision concerned and the High Court may confirm the decision or direct the Director, as may be appropriate, to refrain from —

(i) refusing to grant,

(ii) revoking,

(iii) suspending,

(iv) amending, or

(v) imposing specific measures on the holder of,

the licence concerned, and the Director 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.

(h) (i) An appeal under subparagraph (g) shall be preceded by a notice, in the form set out in Schedule 3 or in a form to the like effect expressed to be made under these Regulations, signed by the appellant or by his or her solicitor.

(ii) A notice referred to in clause (i) shall be served on the Director at least 21 days before the date of the hearing of the appeal.

(iii) A copy of the notice referred to in clause (i) together with a statutory declaration of service thereof shall be lodged in the Central Office, Four Courts, Dublin at least seven days before the date of the hearing of the appeal.

(i) This paragraph shall not, in so far as it relates to a refusal to grant a licence, apply to such a refusal in relation to applications for the grant of a licence made before the coming into operation of this regulation.

(7) (a) A person who is guilty of an offence under paragraph (4)(e) or (5)(d) shall be liable on summary conviction to a fine not exceeding£1,500 or to imprisonment for a term not exceeding 12 months or to both.

(b) Where an offence under this regulation is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate 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.

(d) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence may be brought within 12 months from the date of the offence.

(8) (a) Where a notice is authorised or required by or under this regulation to be sent or given to a person, other than the Director, it shall be addressed to the person and may be served on or given to that person in one of the following ways—

(i) where it is addressed to the person by name, by delivering it to the person, or

(b) Where a notice is required by this regulation to be given to the Director, it shall be sent by post in a prepaid registered letter to the Director of Telecommunications Regulation, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1.

9 New Services.

9. (1) Where an application is made to the Director for a licence under section 5 of the Act of 1926 which relates to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which section 111 (amended by these Regulations) of the Act of 1983 relates and in respect of which regulations under section 6 of the Act of 1926 have not been made, the Director shall—

(a) grant a licence under section 5 of the Act of 1926 allowing the applicant for the licence to start providing the network, system or service, as the case may be, or

(b) reject the application and inform the applicant, in writing, of the reasons for that rejection.

(2) Regulation 8(2), (4), (5), (6), (7) and (8) shall apply, as appropriate, to—

(a) a licence granted by the Director under paragraph (1)(a),

(b) a rejection of an application for a licence under paragraph (1)(b).

(3) Where a licence has been granted under paragraph (1)(a), the Director shall, no later than 6 months after the grant of the licence—

(a) with the consent of the Minister, make regulations under section 6 of the Act of 1926 in relation to that licence, or

(b) inform the holder of that licence, in writing, of the reasons for any refusal to make those regulations.

(4) Where the Director has made regulations referred to in paragraph (3), the Director shall ensure that the licence granted under paragraph (1)(a) conforms with the requirements of those regulations.

(5) Subparagraphs (b) to (h) of regulation 8(6) shall apply to—

(a) a refusal by the Director to make regulations referred to in paragraph (3), and

(b) any proposal by the Director in accordance with paragraph (4) to amend a condition of a licence granted under paragraph (1)(a) after the making of regulations referred to in paragraph (3).

10 Limitations on licence numbers.

10. (1) The Director may limit the number of licences issued under subsection (2)(amended by these Regulations) of section 111 of the Act of 1983 or under section 5 of the Act of 1926 which relate to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which section 111(2) of the Act of 1983 relates, only to the extent required to ensure the efficient use of radio frequencies.

(2) Where the Director proposes to limit the number of licences in accordance with paragraph (1), the Director shall—

(i) give due weight to the need to maximise benefits for users and to facilitate the development of competition,

(ii) enable all interested parties to express their views on any limitation,

(iii) publish the decision to limit the number of licences, stating the reasons therefor,

(iv) review the limitation at reasonable intervals, and

(v) where appropriate, invite applications for licences.

(3) Where the number of licences which may be awarded for a particular service is limited, the Director shall award licences according to objective, transparent, non-discriminatory and proportionate selection criteria giving due weight to the need to facilitate the development of competition and to maximise benefits for users.

(4) On a request being made to the Director, he or she shall make available information on the criteria against which licences are awarded and the Director shall ensure that a notice in relation to the availability of such information is published in the Iris Oifigiúil and the Official Journal of the European Communities.

(5) If the Director is of the opinion that the number of licences issued under subsection (2) of section 111 of the Act of 1983 or under section 5 of the Act of 1926 which relate to apparatus for wireless telegraphy to be used for the purposes of providing telecommunications networks, systems or services to which subsection (2) of section 111 of the Act of 1983 relates, may be increased, the Director shall publish a notice in the Iris Oifigiúil and the Official Journal of the European Communities and invite applications for licences.

SCHEDULE 1

regulation 5

111. (1) (a) The Minister may, with the consent of the Minister for Finance, by order provide for the grant of a licence by the Minister, subject to such terms and conditions as the Minister may think fit to impose, to any person to provide a postal service or a telecommunications service of a class or description specified in the order to which an exclusive privilege granted to either company under this Act relates -

(i) after consultation with the appropriate company, and

(ii) if in his opinion the grant of the licence is in the public interest and is consistent with the reasons given in section 63(2) or section 87(2), as appropriate, for the grant of the exclusive privilege to the company,

and may, with the like consent, revoke any such order.

(b) If an order made under paragraph (a) is annulled under section 3 or is revoked a licence granted under that order shall stand revoked.

(2) (a) In this subsection, save where the context otherwise requires, "licence" means a licence to provide —

(i) a public telecommunications network,

(ii) a voice telephony service,

(iii) a mobile and personal communications system,

(iv) a mobile and personal communications service, or

(v) any other network, service or system which requires the allocation to users of numbers from the national telecommunications numbering resource.

(b) The Director may grant a licence in accordance with this subsection.

(e) (i) In granting a licence the Director shall not attach conditions other than—

(I) those listed in points 2, 3 and 4 of the Annex to the Directive, and

(II) those corresponding to offers made by the applicant for a licence in the course of a comparative bidding procedure.

(ii) The conditions referred to in subparagraph (i)(I) shall be objectively justified in relation to the service or network concerned, non-discriminatory, proportionate and transparent.

(vi) The Director may extend the time limit referred to in subparagraph (v) by up to four months in the case of comparative bidding procedures for the award of licences.

(vii) The time limits referred to in subparagraphs (v) and (vi) shall be without prejudice to any applicable international agreements relating to international frequency and satellite co-ordination.

(h) This section shall be without prejudice to section 3 of the Wireless Telegraphy Act, 1926 .

(i) It shall be an offence for the holder of a licence to fail to comply with a condition of the licence.

(3) (a) In this subsection, save where the context otherwise requires, "licence" means a licence to provide a telecommunications network (including the use of an existing telecommunications network for the purpose of providing a service to any other person) or a telecommunications service not being—

(i) a network or service to which subsection (2)(a) relates, or

(c) It shall be an offence for a person to provide a network or service referred to in paragraph (a) otherwise than under and in accordance with a licence granted by the Director under paragraph (b).

(e) (i) In granting a licence the Director shall not attach conditions other than those listed in points 2 and 3 of the Annex to the Directive.

(ii) The conditions referred to in subparagraph (i) shall be objectively justified in relation to the network or service concerned, non-discriminatory, proportionate and transparent.

(f) It shall be an offence for the holder of a licence to fail to comply with a condition of the licence.

(4) (a) Where, in the opinion of the Director, the holder of a licence granted under subsection (2) or (3) fails to comply with a condition of the licence, the Director may, by notice in writing, without prejudice to any conditions of the licence concerning suspension or revocation thereof or any powers of prosecution of the Director, impose on that holder, in a proportionate manner, specific measures aimed at ensuring compliance.

(b) The imposition of specific measures under paragraph (a) on the holder of a licence shall be in accordance with the procedures specified in subsection (10).

(d) The holder of a licence who fails to comply with specific measures imposed by the Director under paragraph (a) shall be guilty of an offence.

(5) Where a licence is granted under this section to any person to perform any function every provision of this Act or any other enactment relating to the appropriate company which is specified in regulations made by the Minister under this section shall in respect of that function and subject to such conditions, limitations or modifications as may be prescribed in such regulations, apply to the licensee as it applies to the company.

(6) (a) The Minister may, with the consent of the Minister for Finance, charge fees for the grant of licences under this section.

(b) The Public Offices Fees Act, 1879, shall not apply to fees charge under this subsection.

(c) Subject to paragraph (d), any fees imposed by the Director in respect of the grant of licences under subsection (2) or (3) shall not exceed the administrative costs incurred in the issue, management, control and enforcement of those licences.

(d) Notwithstanding paragraph (c), but subject to paragraph (a), the Director may, in respect of the grant of licences under subsection (2), where scarce radio frequencies are to be used, impose charges which reflect the need to ensure the optimal use of the radio frequency spectrum, and those charges shall be non-discriminatory and shall take into particular account the need to foster the development of innovative services and competition.

(7) (a) In this subsection "authorised officer" means a person authorised in writing by the Director to exercise, for the purposes of this section, the powers conferred by this subsection.

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

(i) an offence under subsection (2)(c) or (i), subsection (3)(c) or (f) or subsection (4)(d) has been or is being committed on or at any premises or other place, or

(ii) evidence that such an offence has been or is being committed is on or at those premises or that place,

enter the premises or place and there —

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

(d) A person who fails to comply with paragraph (c) shall be guilty of an offence.

(i) where it is addressed to the person by name, by delivering it to the person, or

(b) Telecommunications links may be monitored for the purposes of paragraph (a) by any measurement or surveillance (other than interception within the meaning of section 1 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 ) (No. 10 of 1993)) of traffic carried on telecommunications links and the recording by any means of such traffic.

(10) (a) Where the Director proposes—

(i) to refuse to grant a licence under this section, or

(ii) to revoke, suspend, or amend a licence granted under this section, or

(iii) to impose specific measures under subsection (4)(a) on the holder of a licence granted under this section,

paragraphs (b) to (j) shall apply.

(b) The Director 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 referred to in paragraph (a) 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 (c).

(d) (i) The Director shall publish a notice in the Iris Oifigiúil of any proposed amendment to a licence granted under this section.

(ii) Any interested party may, within 21 days of the date of publication of the notice referred to in subparagraph (i), make representations to the Director in relation to the proposed amendment.

(i) the applicant or the holder within the period specified in paragraph (c), or

(ii) any interested party within the period specified in paragraph (d)(ii),

in relation to the proposal concerned.

(i) refusing to grant,

(ii) revoking,

(iii) suspending,

(iv) amending, or

(v) imposing specific measures on the holder of,

(h) In this subsection, "relevant Court" means-