S.I. No. 338/1997 - European Communities (Telecommunications Infrastructure) Regulations, 1997

S.I. No. 338 of 1997.

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS INFRASTRUCTURE) REGULATIONS, 1997

 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 Commission Directive 95/51/EC of 18 October, 1995¹ (amending Commission Directive 90/388/EEC of 28 June, 1990² with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services) and Commission Directive 96/19/EC of 13 March, 1996³ (amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets) hereby make the following Regulations:

¹ O.J. No. L256 of 26 October, 1995

² O.J. No. L 192 of 24 July, 1990

³ O.J. No. L74 of 22 March. 1996

1 Citation

1. These Regulations may be cited as the European Communities (Telecommunications Infrastructure) Regulations, 1997.

2 Interpretation

2. (1) A word or expression that is used in these Regulations or in the amendments effected by these Regulations and is also used in Commission Directive 90/388/EC of 28 June, 1990 or Commission Directive 95/51/EC of 18 October, 1995 or Commission Directive 96/19/EC of 13 March, 1996 shall, except where the context otherwise requires, have in these Regulations or in the amendments effected by these Regulations the meaning that it has in the Commission Directive concerned.

3 Interpretation of exclusive privilege of Telecom Éireann

3. (1) Notwithstanding the definition of "public telecommunications network" contained in Regulation 2 of the European Communities (Telecommunications Services) Regulations, 1992 ( S.I. No. 45 of 1992 ), subsection (1) of section 87 (as amended by Regulation 3 of the European Communities (Telecommunications Services) Regulations, 1992) of the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983), shall be construed having regard to the definition of "public telecommunications network" in this Regulation.

(2) In this Regulation

 "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;

 "national numbering scheme" means the scheme administered by the Director of Telecommunications Regulation which sets out the sequence of numbers or other characters which must be used to route telephony traffic to specific locations; "public telecommunications network" means a telecommunications network used, inter alia, for the provision of public telecommunications services between network termination points;

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

 "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;

 "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 optical, by radio, or by other electromagnetic means.

4 Restriction on the establishment of telecommunications networks

4. (1) ( a ) No person shall establish in the State a telecommunications network other than in accordance with a licence, or otherwise authorised by law.

( b ) A person who has established a telecommunications network under a licence granted under subsection (2D) (as inserted by these Regulations) of section 111 of the Postal and Telecommunications Services Act, 1983 , shall not operate or allow the operation of that network otherwise than in accordance with the terms and conditions of a licence.

(2) Every person who establishes or operates a telecommunications network in contravention of this Regulation shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(3) An offence under this Regulation may be prosecuted by the Director of Telecommunications Regulation.

(4) In this Regulation

 "licence" means a licence granted under subsection (2D) (as inserted by these Regulations) of section 111 of the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983), to establish a telecommunications network not being a public telecommunications network;

 "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 optical, by radio or by other electromagnetic means.

5 Exceptions from a breach of privilege of Minister for Public Enterprise

5. The Telegraph Act, 1869, is hereby amended by the addition of the following section after section 4:

"4.A Each of the following shall not be regarded as a breach of the exclusive privilege granted by section 4 of this Act

( a ) services and networks provided and maintained by a person solely for his or her own use (including by a business for use between employees for the purposes of the business) and not rendering a service to any other person,

( b ) the operation of a broadcasting station under licence granted by the Minister pursuant to the Broadcasting Authority Act, 1960 (No. 10 of 1960) or the Radio and Television Act, 1988 (No. 20 of 1988), and

( c ) radio communications systems provided under licences granted in accordance with the Wireless Telegraphy (Community Repeater Licence) Regulations, 1988 ( S.I. No. 83 of 1988 ), or exempted from licensing in accordance with the Wireless Telegraphy Acts, 1926 to 1972,

( d ) A cable television system licensed under the Wireless Telegraphy Acts, 1926 to 1972, when used solely for the purpose identified in the licence."

6 Award of Licences for the establishment of a telecommunications network for the purposes of providing telecommunications services

6.  Section 111 of the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983), is hereby amended by the insertion of the following subsection after subsection (2C) (inserted by the European Communities (Mobile and Personal Communications) Regulations, 1996 ( S.I. No. 123 of 1996 ))—

"(2D) (1) ( a ) In this subsection, save where the context otherwise requires, "licence" means a licence to establish a telecommunications network not being a public telecommunications network.

( b ) A person shall not establish a telecommunications network otherwise than in accordance with a licence within the meaning of this subsection or subsection (2B).

( c ) A licence to establish a telecommunications network may be granted by the Director under this subsection on the basis of a declaration by the applicant for the licence that the telecommunications network in respect of which the licence is being sought shall, at all times, comply with conditions prescribed by the Director as being applicable to the provision of a telecommunications network.

( 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 ) A licence and the granting or the refusal to grant a licence shall conform with Commission Directive 90/388/EEC of 28 June, 1990.

( f ) Subject to paragraph (e), a licence shall be subject to such terms and conditions as the Director may determine and specify in the licence including terms and conditions authorising the suspension or revocation of the licence by the Director in such circumstances as may be specified in the licence and the amendment of the terms or conditions of the licence by the Director; 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 Director, of a document containing the amendment,

( 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 his or her functions under this section 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 ) Whenever the Director proposes to refuse to grant a licence or to revoke or suspend, or amend a term or condition of, a licence

 (i) 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 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 (i), 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 Director shall take into account any representations made by the applicant or, as the case may be, the holder within the period specified in paragraph (i) in relation to the proposal.

( i ) A person may, within 21 days of the receipt by him or her of a notification under paragraph (h), make representations to the Director in relation to the proposals concerned.

( j ) The Director shall notify the applicant or holder concerned in writing of a decision by the Director 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 (k).

( k ) A person may, within 28 days of the receipt by him or her of a notification under paragraph (j), appeal to the District Court against the decision concerned (not being a decision to amend a term or condition of the licence concerned) and the District Court may confirm the decision or direct the Director, as may be appropriate, to refrain from granting, revoking or suspending the licence concerned, and the Director shall comply with a direction under this subparagraph.

( l ) (i) In this section an "authorised officer" means a person authorised in writing by the Director 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, or

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

   (A) 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

   (B) 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.

  (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 obstruct or impede him or her in the performance of his or her functions under this paragraph.

 ( m ) It shall be an offence to contravene subsection (2D)(l)(b) or (2D)(1)(1)(iii) of this section or to obstruct or interfere with an authorised officer in the exercise of his or her functions under this subsection.

 ( n ) Where an offence under this subsection is committed by a body corporate and is proved to have been committed with the consent or connivance 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.

 ( o ) A person who contravenes this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

 ( p ) Offences under this section may be prosecuted by the Director.

(2) ( 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 that person and may be served on or given to him or her in one of the following ways

(i) where it is addressed to him or her by name, by delivering it to him or her, or

(ii) by leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address, or

(iii) by sending it by ordinary prepaid post addressed to him or her at the address at which he or she 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 these Regulations 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.

(3) In this section—

"Director" means the Director of Telecommunications Regulation;

"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;

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

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

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

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

"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 optical, by radio or by other electromagnetic means.".

7 Use of cable television networks for the provision of already liberalised telecommunications services

7. (1) Nothing in these Regulations shall entitle a cable television network operator to contravene the provisions of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations, 1974 ( S.I. No. 67 of 1974 ).

(2) Paragraph (c) of Regulation 10 of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations, 1974, is hereby amended by the insertion of the following after the words "other than":

"(i) the relay to the service points of the programmes the relay of which is authorised by the licence, or

(ii) for the provision of telecommunications services but without prejudice to the requirements of the Postal and Telecommunications Services Act, 1983 , in relation to the licensing of telecommunications networks and telecommunications services".

(3) Paragraph (d) of Regulation 10 of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations, 1974, is hereby amended by the addition of the following after "licence":

"or for the provision over a cable television network of telecommunications services but without prejudice to the requirements of the Postal and Telecommunications Services Act, 1983 , in relation to the licensing of telecommunications networks and telecommunications services"

(4) In paragraphs (c) and (d) of Regulation 10 of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations, 1974,

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

"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 optical, by radio or by other electromagnetic means.

9 Provisions Relating to Financial Accounts of Telecom Éireann

9. (1)  Telecom Éireann shall operate and maintain a system which ensures the separation of financial accounts in respect of—

( a ) its activity as a provider of telecommunications services, and

( b ) its activity as a provider of a cable television network (being any mainly wire-based infrastructure licensed by the Minister in accordance with the provisions of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulation, 1974 (S.I. N. 67 of 1974), for the delivery or distribution of radio or television signals to the public in the State.

(2) The Director shall ensure compliance with paragraph (1) of this Regulation.

(3) Section 12 of the Telecommunications (Miscellaneous Provisions) Act, 1996 (No. 34 of 1996), shall apply for the purposes of obtaining any information necessary for the exercise by the Director of his or her functions under this Regulation and the provisions of that section shall have effect as if the functions carried out by the Director under this Regulation were functions under that Act.

(4) Where Telecom Éireann fails to comply with paragraph (1) of this Regulation it shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500,

(5) An offence under this Regulation may be prosecuted by the Director.

(6) In this Regulation:

"Director" means the Director of Telecommunications Regulation;

"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 of signals on a telecommunications network;

"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 optical, by radio or by other electromagnetic means.

GIVEN under my Official Seal, this 31st day of July 1997

 MARY O'ROURKE

Minister for Public Enterprise.

EXPLANATORY NOTE

The purpose of these Regulations is to provide for amendment of the exclusive privilege of Telecom Eireann as prescribed in the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983), as amended, to exclude both the establishment of telecommunications networks, other than the public telecommunications network, and the use of cable television networks for the provision of liberalised telecommunications services; to provide for the amendment of existing provisions restricting the use of cable television networks and the making of provisions in relation to licensing the establishment of telecommunications networks; and to provide for the maintenance by Telecom Eireann of separate financial accounts in respect of its activities as a provider of telecommunications services and as a provider of cable television networks.