S.I. No. 51/1998 - Telecommunications (Amendment) (No. 2) Scheme, 1998.

S.I. No. 51 of 1998.

TELECOMMUNICATIONS (AMENDMENT) (NO. 2) SCHEME, 1998.

BORD TELECOM ÉIREANN plc, in exercise of the powers conferred on it by Section 90 of the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983) hereby makes the following Scheme:

1. This Scheme may be cited as the Telecommunications (Amendment) (No. 2) Scheme, 1998.

2. (1) The collective citation "the Telecommunications Schemes, 1994 to 1998" includes this Scheme.

(2) Article 4 shall be deemed to come into operation on the date of sealing hereof.

3. The Interpretation Act, 1937 (No. 38 of 1937) applies to this Scheme.

4. The Telecommunications Scheme, 1994 ( S.I. No. 177 of 1994 ) is hereby amended by;

(a) the insertion of the following, after the definition of "videoconference subscriber" in Article 5(1) thereof;

"Working Day" for the purposes of Article 53(3) means a day which is not a Saturday, Sunday or Irish public holiday.";

(b) the renumbering of the existing Articles 53(2) and 53(3) thereof as Articles 53(8) and 53(9); and

(c) the addition therein of the following new Articles 53(2), 53(3), 53(4), 53(5), 53(6), and 53(7).

"53 (2) Except as provided in Article 53 (3), and without prejudice to the provisions of section 88 (1) of the Postal and Telecommunications Services Act, 1983 , and Article 53(1), Bord Telecom Éireann plc shall not be liable in contract, tort or otherwise, for any loss, injury or damage (other than death or personal injury as a direct result of the negligence of Bord Telecom Éireann plc) arising directly or indirectly from:—

(a) any act, omission, error, default, failure or delay in respect of the provision, installation, operation, maintenance, use or termination of a telecommunications service;

(b) any failure of a telecommunications service; or

(c) any failure of, or defect in, anything provided as part of or in association with a telecommunications service.

53 (3) Where Bord Telecom Éireann plc has:—

(a) fail to provide a telecommunications service within 15 Working Days after the agreed date for its completed provision;

(b) failed to restore a telecommunications service after its failure, within 2 Working Days after the agreed date for its restoration or, if no such date has been agreed, within 2 Working Days after the day on which a subscriber reported the failure of his or her telecommunications service to Bord Telecom Éireann plc; or

(c) made any error or omission in a directory published by it or on its behalf or any telecommunications message transmitted by it except where such error or omission is based on information furnished by or otherwise requested by a subscriber;

Bord Telecom Éireann plc shall be liable for the loss or damage suffered by subscriber (which term shall for the purposes of this Article 53(3) include a licensee under Section 111 of the Postal and Telecommunications Services Act, 1983 ) and caused by Bord Telecom Éireann plc's said failure, error or omission to the limited extent set out in Article 53 (4) below and subject to the other provisions of this Article 53.

53 (4) Bord Telecom Éireann plc's liability under sub-Articles 53 (3)(a), (b) and (c) is limited to a sum equal to two months rental of a telecommunications line for each subscriber in respect of each incident (or series of related incidents) of failure, error, omission or delay subject to a maximum of IR£10,000 in aggregate for all subscribers for each incident or series of related incidents;

PROVIDED ALWAYS that

(i) Bord Telecom Éireann plc is only liable to pay the amounts set out in this Article 53 (4) if:—

(a) the subscriber makes his or her claim in writing within 3 months of liability under Article 53 (3) having arisen; and

(b) the failure, error, omission or delay is not as a result of circumstances beyond the reasonable control of Bord Telecom Éireann plc;

(ii) the amount payable to each subscriber pursuant to Article 53(4) shall be reduced pro rata if Bord Telecom Éireann plc considers that the number of subscribers who are likely to make a claim in respect of any incident or series of related incidents is such that the maximum, aggregate sum of£10,000 payable by Bord Telecom Éireann plc is likely to be exceeded;

(iii) Bord Telecom Éireann plc may credit the subscriber's account with any sum payable under Article 53(4).

(iv) No liability shall attach to Bord Telecom Éireann plc as a result of a failure to provide or restore telecommunications service within the periods specified in Article 53(a) or (b) if such failure is as a result of the allocation of resources by Bord Telecom Éireann plc as it sees fit to preserve the integrity of its network for the benefit of all subscribers.

53 (5) Bord Telecom Éireann plc will not be liable in any circumstances for any indirect, special or consequential loss, corruption or destruction of data, any loss of business revenue or profits, anticipated savings or wasted expenditure or for any financial loss whatever.

53 (6) Nothing in this Article 53 shall be taken as in any way excluding or limiting any liability which Bord Telecom Éireann plc may have to a subscriber under Section 2 of the Liability for Defective Products Act, 1991 .

53 (7) Each provision of this Article 53, limiting or excluding liability, operates separately in itself and survives independently of each other provision.

PRESENT when the common Seal of Bord Telecom Éireann plc was affixed thereto this 6 day of February, 1998.

A. KANE,

Director.

RONALD BOLGER,

Director.

MARTIN GIFFNEY,

Telecom Éireann plc.

114 St. Stephen's Green, Dublin 2.

EXPLANATORY NOTE.

The purpose of this Scheme is to effect certain amendments to the Telecommunications Scheme, 1994.