S.I. No. 45/1992 - European Communities (Telecommunications Services) Regulations, 1992.

S.I. No. 45 of 1992.

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS SERVICES) REGULATIONS, 1992.

I, MÁIRE GEOGHEGAN-QUINN, Minister for Tourism, Transport 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 Council Directive No. 90/387/EEC of 28 June 1990⁽¹⁾, and Commission Directive No. 90/388/EEC of 28 June 1990⁽²⁾, hereby make the following Regulations:

⁽¹⁾O.J. No. L192 of 24 July 1990, pp. 1 to 9.

⁽²⁾O.J. No. L192 of 24 July 1990, pp. 10 to 16.

1. These Regulations may be cited as the European Communities (Telecommunications Services) Regulations, 1992.

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

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

"the Company" means Bord Telecom Éireann;

"data protection" includes the protection of personal data, the confidentiality of information transmitted or stored and the protection of privacy;

"the Directives" means Council Directive No. 90/387/EEC of 28 June 1990⁽¹⁾, and Commission Directive No. 90/388/EEC of 28 June 1990⁽²⁾;

⁽¹⁾O.J. No. L192 of 24 July 1990, pp. 1 to 9.

⁽²⁾O.J. No. L192 of 24 July 1990, pp. 10 to 16.

"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;

"public telecommunications network" means the public telecommunications infrastructure which permits the conveyance of signals between defined network termination points by wire, microwave, optical means or other electromagnetic means;

"telex service" means the commercial provision for the public of direct transmission of telex messages, in accordance with the relevant recommendations of the Comité Consultatif International Télégraphique et Téléphonique, between public switched network termination points so as to enable any user to use equipment connected to such a network termination point in order to communicate with another termination point;

"terminal equipment", in relation to telecommunications, means equipment intended to be connected to the public telecommunications network, that is to say—

( a ) connected directly to the termination of a public telecommunications network, or

( b ) to interwork with a public telecommunications network, being connected directly or indirectly to the termination of a public telecommunications network,

in order to send, process or receive information and the system of connection may be wire, radio, optical or other electromagnetic system;

"voice telephone service" 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 Directives shall, unless the context otherwise requires, have in these Regulations the same meaning that it has in the Directives.

3. (1) The exclusive privilege of the Company granted under section 87 of the Act of 1983 shall, subject to paragraph (2) of this Regulation, be restricted to offering, providing and maintaining the public telecommunications network and offering, providing and maintaining voice telephony services.

(2) Nothing in paragraph (1) of this Regulation shall be construed as affecting the offer, provision or maintenance by the Company within the State of telex services, mobile radio telephony services, paging services and satellite services which are within the exclusive privilege of the Company by virtue of section 87 of the Act of 1983.

(3) Section 87 of the Act of 1983 is hereby amended by the insertion, in subsection (1) of "and Regulation 3 of the European Communities (Telecommunications Services) Regulations, 1992" after "subject to the provisions of this section", and the said subsection (1), as so amended, is set out in the Table to this Regulation.

TABLE.

(1) The Company shall, subject to the provisions of this section and Regulation 3 of the European Communities (Telecommunications Services) Regulations, 1992, have the exclusive privilege of offering, providing and maintaining telecommunications services for transmitting, receiving, collecting and delivering telecommunications messages within the State up to (and including) a connection point in the premises of a subscriber for any such service.

4. (1) ( a ) The Company shall comply with the provisions of paragraphs 1, 2 and 3 of Article 3 of Council Directive No. 90/387/EEC of 28 June 1990, the text of which is set out in the Schedule to these Regulations.

( b ) (i) The Company shall ensure that as regards service providers the conditions (including charges payable) governing access to and use of the public telecommunications network are objective, non-discriminatory and are published.

(ii) In this subparagraph "service providers" includes the Company itself when acting as a provider of a telecommunications service of a kind not within the exclusive privilege granted to it by section 87 (1) (as amended by Regulation 3 of these Regulations) of the Act of 1983.

(2) The Company shall ensure that requests for leased lines are met within a reasonable period and that there are no restrictions on their use other than those required to ensure—

( a ) non-provision of voice telephony services,

( b ) the security of network operations,

( c ) the maintenance of network integrity, and

( d ) in justified cases, the interoperability of services and data protection.

(3) The Company shall ensure that, as regards the provision of telecommunications services, no restrictions are imposed on the processing of signals before transmission via the public network or after their reception unless such restrictions are demonstrably necessary on the grounds of public policy or for the purpose of ensuring the security of network operations, the maintenance of network integrity or, in justified cases, the interoperability of services and data protection.

5. The Minister for Tourism, Transport and Communications shall be responsible for surveillance of the Company's usage conditions.

6. Every contract, whether a contract to which a scheme under section 90 of the Act of 1983 relates or not, between the Company and any of its customers for the provision of a telecommunications service of a kind to which Article 8 of Commission Directive 90/388/EEC applies and which has more than one year from the commencement of these Regulations to run, shall be terminable by the customer at 6 months notice notwithstanding anything to the contrary in the contract.

7. (1) Section III of the Act of 1983 is hereby amended—

( a ) by the insertion of the following subsection after subsection (2):

"(2A) A licence to provide a telecommunications service may be granted by the Minister under this subsection on the basis of a declaration by the applicant for the licence that the telecommunications service in respect of which the licence is being sought shall, at all times, comply, in all respects, with service conditions prescribed by the Minister as being applicable to the provision of a telecommunications service of the kind for which the licence is being sought.",

( b ) by the addition of the following subsection after subsection (6):

"(7) ( a ) Whenever the Minister refuses to grant a licence under subsection (2A) or proposes to revoke or suspend a licence granted under that subsection, he shall notify in writing the applicant for the licence or the holder of the licence of his decision or of his proposal, as the case may be, and of the reasons therefor and shall, if any representations are made in writing by such applicant or such holder within 21 days of the date of the notification, consider the representations.

( b ) Whenever the Minister—

(i) maintains his decision, having considered any representations made by the applicant for a licence, to refuse such licence, or

(ii) decides, having considered any representations that may have been made by the holder of a licence, to revoke or suspend the licence,

he shall notify in writing the applicant for or, as the case may be, the holder of the licence of the refusal or decision and such applicant or such holder may within 21 days of such notification appeal in the prescribed manner to the District Court against such a decision.

( c ) On the hearing of an appeal under this subsection, in relation to a refusal to grant a licence under subsection (2A) or a decision of the Minister to revoke or suspend a licence granted under that subsection, the District Court may either confirm the refusal or decision or may allow the appeal and, where an appeal is allowed, the Minister shall grant the licence or shall not revoke or suspend the licence, as the case may be.

( d ) A decision of the District Court on an appeal under this subsection shall be final save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a question of law.

( e ) In this subsection 'prescribed' means prescribed by regulations made under this Act by the Minister, with the consent of the Minister for Justice, which regulations the Minister is hereby empowered to make.".

(2) Subject to Regulation 10 of the Regulations, the Minister may charge fees in accordance with subsection (6) of section 111 of the Act of 1983 in respect of a licence granted under subsection (2A) (inserted by this Regulation) of that section.

8. (1) Telecommunications terminal equipment shall not be connected to or used in conjunction with the public telecommunications network unless such equipment is of a type which has been approved by the Minister for such purposes.

(2) The Minister may approve telecommunications terminal equipment which conforms to—

( a ) A Norme Européenes de Télécommunications (NET) published by the European Conference of Postal and Telecommunications Administrations (CEPT), references to which have been published in the Official Journal of the European Communities, for the purposes of Council Directive 86/361/EEC of 24 July 1986*, or

*O.J. No. L217 of 24 July 1986, pp. 21 to 25.

( b ) a specification approved by him for the purposes of this paragraph as being applicable for the purposes of connection to, or use in conjunction with, the public telecommunications network.

(3) An approval given under this Regulation may specify conditions which shall be complied with if the approval is to apply to any telecommunications terminal equipment which is specified in the approval or is of a type so specified.

(4) Specifications, other than those to which paragraph (2) (a) of this paragraph relates, or any variation to such a specification, shall be decided by the Minister after consultation with the Company.

(5) A person who—

( a ) places on the market, or

( b ) connects to or uses in conjunction with the public telecommunications network, or who causes or permits to be so connected or used,

telecommunications terminal equipment which has not been approved by the Minister shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding 12 months, or to both.

9. (1) A judge of the District Court may, upon the information on oath of a member of the Garda Síochána that there is reasonable ground for believing that at any specified place, or specified vehicle, telecommunications terminal equipment is connected to or is being used in connection with the public telecommunications network, or is being kept for the purpose of supplying (including offering to supply) such equipment to the public in contravention of any provision of these Regulations or of the Act of 1983 or of any regulations thereunder, grant to such member of the Garda Síochána a search warrant which shall be expressed and shall operate to authorise the member of the Garda Síochána to whom it is granted to enter, and if need be by force, the place or vehicle named in the said information and there to search for and examine all such equipment there found and to seize and take away all or any part of such equipment.

(2) ( a ) A search warrant granted under this Regulation shall operate to authorise any one or more of the following, namely, any Member of the Garda Síochána or any person authorised by the member of the Garda Síochána to whom the warrant is granted to accompany and assist him in the exercise of the powers thereby conferred on him.

( b ) The member of the Garda Síochána to whom the warrant is granted may retain anything seized under this section which he believes to be evidence of an offence or suspected offence relating to telecommunications terminal equipment for use as evidence in proceedings in relation to any such offence, for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and the member of the Garda Síochána shall, as soon as may be, deliver any such thing to the person who in his opinion is the owner thereof, and in case the member of the Garda Síochána decides that he is unable to ascertain such person, then, on and from the date of his decision, the Police (Property) Act, 1897, shall apply to the thing so seized.

(3) Any person who by act or omission impedes or obstructs a member of the Garda Síochána or any other person in the exercise of a power conferred by this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800.

10. (1) The Minister may, with the consent of the Minister for Finance, charge fees for the purpose of recouping some or all of the expenses necessarily incurred by him as a consequence of these Regulations.

(2) The Public Offices Fees Act, 1879, shall not apply to fees charged by virtue of these Regulations.

SCHEDULE.

Regulation 4 (1) (a).

Text of paragraphs 1, 2 and 3 of Article 3 of Council Directive No. 90/387/EEC.

1. Open network provision conditions must comply with a number of basic principles set out hereafter, namely that:

—they must be based on objective criteria,

—they must be transparent and published in an appropriate manner,

—they must guarantee equality of access and must be non-discriminatory, in accordance with Community law.

2. Open network provision conditions must not restrict access to public telecommunications networks or public telecommunications services, except for reasons based on essential requirements, within the framework of Community law, namely:

—security of network operations,

—maintenance of network integrity,

—interoperability of services, in justified cases,

—protection of data, as appropriate.

In addition, the conditions generally applicable to the connection of terminal equipment to the network shall apply.

3. Open network provision conditions may not allow for any additional restrictions on the use of the public telecommunications networks and/or public telecommunications services except the restrictions which may be derived from the exercise of special or exclusive rights granted by Member States and which are compatible with Community law.

GIVEN under my Official Seal, this 3rd day of March, 1992.

MÁIRE GEOGHEGAN-QUINN,

Minister for Tourism, Transport and

Communications.

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive 90/387/EEC on the establishment of the internal market for telecommunications services through the implementation of Open Network Provision (ONP) and Commission Directive 90/388/EEC on competition in the markets for telecommunications services.

Directive 90/387/EEC (ONP) is a framework Directive which sets out harmonised conditions under which users will have access to public telecommunications networks.

Directive 90/388/EEC deals with liberalisation of the markets for telecommunications services in the value added and data transmission areas.