STATUTORY INSTRUMENTS

S.I. No. 306 of 2003

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES)(AUTHORISATION) REGULATIONS 2003

Made by the Minister for Communications,

Marine and Natural Resources

S.I. No. 306 of 2003

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES)(AUTHORISATION) REGULATIONS 2003

I, Dermot Ahern, Minister for Communications, Marine and Natural Resources, 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. 2002/20/EC of the European Parliament and of the Council of 7 March 2002¹ , hereby make the following regulations:

Citation and commencement

1.         (1)       These Regulations may be cited as the European Communities (Electronic Communications Networks and Services)(Authorisation) Regulations 2003.

(2)       These Regulations come into operation on 25 July 2003.

Interpretation

2.       (1) For the purposes of these Regulations the definitions as set out in Regulation 2(1) of the Framework Regulations apply.

(2) In these Regulations, except where the context otherwise requires --

“Access Directive” means Directive No. 2002/19/EC² of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities;

“Access Regulations” means the European Communities (Electronic Communications Networks and Services)(Access) Regulations 2003 ( S.I. No. 305 of 2003 );

“Act of 1926” means the Wireless Telegraphy Acts 1926 ( No. 45 of 1926 );

“Act of 1983” means No. 24 of 1983 );

“Act of 2000” means the Planning and Development Act 2000 ( No. 30 of 2000 );

“Authorisation Directive” means Directive No. 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services;

“authorised undertaking” means an undertaking deemed to be authorised under Regulation 4;

“Framework Regulations” means the European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2003 ( S.I. No. 307 of 2003 );

“general authorisation” means an authorisation for an undertaking to provide an electronic communications network or service under and in accordance with Regulation 4;

“harmful interference” means interference which endangers the functioning of a radionavigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radiocommunications service operating in accordance with the applicable European Community or national regulations;

“licence” other than in Regulation 22, means a licence granted under section 5 of the Act of 1926 for apparatus for wireless telegraphy of a particular class or description for the provision of an electronic communications network or service;

“Minister” means the Minister for Communications, Marine and Natural Resources;

“Regulator” means the Commission for Communications Regulation;

“road authority” has the meaning assigned to it by the Act of 2000;

“Schedule” means the Schedule to these Regulations;

“undertaking” means a person providing an electronic communications network or service;

“Universal Service Regulations” means the European Communities (Electronic Communications Networks and Services)(Universal Service and Users' Rights) Regulations 2003 ( S.I. No. 308 of 2003 ).

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

(4)       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, and

(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.

(5)       In these Regulations, a reference to an enactment or Regulations is to be construed as a reference to the enactment or Regulations as amended by any subsequent enactment or Regulations, including these Regulations.

Confidentiality of information

3.       For the purpose of these Regulations, where the Regulator may consider whether information is confidential or not, it shall, subject to the Freedom of Information Acts 1997 and 2003, accept as confidential any information which is expressed to be confidential, except where it has good reasons to consider otherwise.

Authorisation of electronic communications networks and services

4.(1) Subject to paragraph (6), any person who intends to provide an electronic communications network or an electronic communications service shall, before doing so, notify the Regulator of his or her intention to provide such a network or service.

(2) A notification under paragraph (1) shall be in such form as the Regulator may, from time to time, determine and shall contain the following information --

(a)       the name of the person concerned including, in the case of a body corporate, the company registration number,

(b)       the names, addresses and contact numbers of relevant contact persons,

(c)       the business address of the person concerned and, in the case of a body corporate, where that address differs from the address of its registered office, the address of its registered office,

(d)       a short description of the network or service the subject matter of the notification, including a statement as to whether the relevant network or service is to be publicly available, and

(e)       the estimated date of commencement for the relevant activity.

(3) Upon receipt by the Regulator of a notification pursuant to paragraph (1), the person concerned is deemed to be authorised to provide an electronic communications network or electronic communications service or, as appropriate, both, subject to such conditions as may be specified by the Regulator under Regulation 8.

(4) An undertaking shall notify the Regulator of any changes to the information supplied under paragraph (1) in relation to the matters referred to in paragraph (2)(a) to (c) within 14 days of such change and in relation to the matters referred to in paragraph (2)(d) and (e) before commencement of the relevant activity.

(5) An undertaking which fails to comply with paragraph (1) or (4) is guilty of an offence.

(6) The Regulator may make a determination specifying an electronic communications network or service of a particular class or description as being a network or service in relation to which an undertaking is not subject to the requirements of paragraph (1).

(7) An undertaking not required to notify under paragraph (1) is deemed to be authorised under this Regulation.

(8) A reference in any enactment to a person licensed under section 111 of the Act of 1983 is to be construed as a reference to an undertaking deemed to be authorised under these Regulations.

Declarations to facilitate the exercise of rights to install facilities and rights of interconnection

5 (1) The Regulator shall, within one week of the receipt by it of a request from any authorised undertaking, issue to that undertaking, in such form as the Regulator may, from time to time, determine, a standardised declaration--

(a)   confirming, where applicable, that the undertaking has submitted a notification pursuant to Regulation 4(1), and

(b)   detailing under what circumstances any undertaking has the right to --

(i)        apply for a consent under section 53 of the Act of 2002 or a licence under section 254(1) of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure,

(ii)        negotiate interconnection, and

(iii)       obtain access or interconnection,

in order to facilitate the exercise of those rights.

(2) Where it considers it appropriate to do so, the Regulator may issue such declaration as an automatic reply upon receipt of a notification pursuant to Regulation 4(1).

Register of authorised undertakings

6.(1) The Regulator shall establish and maintain a register of undertakings that have notified the Regulator of an intention to provide a network or service pursuant to Regulation 4(1) and such information contained in any such notification pursuant to that paragraph as the Regulator considers appropriate, other than information which the Regulator reasonably considers confidential, shall be entered in the register established and maintained under this paragraph.

(2) The Regulator may, as occasion requires, amend or delete an entry in the register.

(3) Members of the public may inspect the register free of charge at all reasonable times and may take copies of, or extracts from, entries in the register.

(4) In any proceedings a certificate bearing the seal of the Regulator stating that the register shows that on the date or during the period specified in the certificate the name of the person identified by the certificate was not entered in the register, is admissible as evidence of the fact that a person identified by the certificate did not notify the Regulator of his or her intention to provide a network or service pursuant to Regulation 4(1) before that date or during that period.

(5) A document purporting to be a certificate under paragraph (4) is deemed to be such a certificate, unless the contrary is shown.

Rights of undertaking under general authorisation

7.(1) An authorised undertaking may --

(a) subject to Regulation 8(3), provide the electronic communications networks or services as described in a notification under Regulation 4(2) or 4(4) or, where a notification is not required, as described in a determination referred to in Regulation 4(6),

(b) apply for a consent under section 53 of the Act of 2002, and

(c) apply for a licence under section 254(1) of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure.

(2)    Where an authorised undertaking is providing an electronic communications service or network to the public, it has the right --

(a)    under the conditions of and in accordance with the Access Regulations and the Access Directive, to negotiate interconnection with and where applicable obtain access to or interconnection from another undertaking deemed to be authorised in the State or in another Member State to provide a publicly available electronic communication network or service, and

(b)    to be given an opportunity by the Regulator to be designated under Regulation 7 of the Universal Service Regulations to carry out obligations referred to in that Regulation.

Conditions attached to general authorisation

8.(1)    The Regulator shall, as soon as practicable after the commencement of these Regulations, specify conditions to be attached to a general authorisation as are listed in Part A of the Schedule. The Regulator may specify that certain conditions may not apply to undertakings of such class or type as may be specified by the Regulator.

(2) Any attachment of conditions to the general authorisation or non-application of conditions to undertakings of such class or description as may be specified by the Regulator under paragraph (1) shall be objectively justified in relation to the electronic communications network or service concerned and shall be non-discriminatory, proportionate and transparent.

(3) An authorised undertaking shall comply with the conditions attaching to the general authorisation applicable to it.

(4) The Regulator shall not attach as a condition to the general authorisation any specific obligations that it may impose on an undertaking nor any conditions which are applicable to undertakings by virtue of other law.

(5) The criteria and procedures for imposing any specific obligations referred to in paragraph (4) shall be referred to by the Regulator in the specification of conditions referred to in paragraph (1).

(6) The Regulator shall ensure that where a requirement is specified as a condition of a licence such a requirement shall not be specified as a condition of the general authorisation in respect of the services or networks concerned.

(7) An undertaking that fails to comply with any conditions attached to its general authorisation is guilty of an offence.

Licences under section 5 of the act of 1926

9.(1) Where the Regulator considers that --

(a) the risk of causing harmful interference, arising out of the use, for the provision of an electronic communications network or service of any class or description, of apparatus for wireless telegraphy is negligible, and

(b) the effective and appropriate management of the radio spectrum would not be adversely affected thereby,

the Regulator shall make an order under section 3(6) (inserted by section 11(c) of the Wireless Telegraphy Act 1972 ) of the Act of 1926 declaring that such apparatus is a class or description of apparatus for wireless telegraphy to which section 3(1) of that Act is not to apply.

(2) Where the Regulator makes an order referred to in paragraph (1) it may specify in such order conditions for use of the class or description of apparatus concerned.

(3) Where the Regulator considers that any class or description of apparatus for wireless telegraphy used or to be used for the provision of an electronic communications service or network ought to be subject to a licence under section 5 of the Act of 1926, decisions on the grant of such a licence to any undertaking shall be subject to the Regulations 10, 11 and 18(1)(c) and any other applicable provisions of the Act of 1926 or any relevant regulations made under that Act.

(4) The Regulator shall, establish open, transparent and non-discriminatory procedures for the grant of licences and shall cause any such procedures to be made publicly available. Such procedures are without prejudice to specific criteria and procedures for the grant of a licence in relation to apparatus for wireless telegraphy under any enactment to providers of radio or television broadcast content services with a view to pursuing general interest objectives in accordance with European Community law.

(5) The Regulator shall, subject to Regulation 11(4), make any decision on the grant of a licence as soon as possible after receipt by it of the complete application and in the case of radio frequencies that have been allocated for specific purposes within the national frequency plan but within 6 weeks after such receipt. That time limit shall be without prejudice to any applicable international agreements relating to the use of radio frequencies or of orbital positions.

(6) The Regulator shall communicate a decision referred to in paragraph (5) to an applicant for a licence referred to in that paragraph as soon as possible after the decision is made and, subject to any restrictions which the Regulator considers appropriate in order to protect the confidentiality of any information which the Regulator considers confidential, make public such a decision as soon as possible thereafter.

(7) The Regulator shall not limit the number of licences to be granted in respect of a particular class or description of apparatus for wireless telegraphy for the provision of an electronic communications network or service except where this is necessary to ensure the efficient use of radio frequencies in accordance with Regulation 11.

(8) A licence shall be in force for such period as the Regulator considers appropriate having regard to the network or service concerned.

Conditions attached to licences

10.(1) Notwithstanding section 5 of the Act of 1926, but subject to any regulations under section 6 of the Act of 1926, where the Regulator attaches conditions to a licence, it may only attach such conditions as are listed in Part B of the Schedule. The Regulator may specify that certain conditions may not apply to undertakings of such class or type as may be determined by the Regulator.

(2) Any --

(a) attachment of conditions under paragraph (1), or

(b) non-application under paragraph (1) to undertakings of a class or description as may be determined by the Regulator of conditions listed in Part B of the Schedule,

to a licence shall be objectively justified in relation to the electronic communications network or service concerned and shall be non-discriminatory, proportionate and transparent.

Procedure for limiting the number of licences

11.(1) Where the Regulator proposes to issue, pursuant to its powers under the Act of 1926, licences for a particular class or description of apparatus for wireless telegraphy for the provision of an electronic communications network or service and considers that the number of such licences ought to be limited, it shall, without prejudice to sections 13 and 37 of the Act of 2002 --

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

(b) give all interested parties, including users and consumers, the opportunity to express their views on any proposed limitation in accordance with Regulation 19 of the Framework Regulations.

(2) The Regulator shall cause to be published, in such form as the Regulator may determine, any decision to limit the granting of a licence referred to in paragraph (1) including the reasons therefor.

(3) Where the Regulator decides, having taken into account the matters referred to in paragraph (1)(a) and (b), that the number of licences referred to in that paragraph ought to be limited it shall grant such licences on the basis of selection criteria which are objective, transparent, non-discriminatory and proportionate and which give due weight to the achievement of the objectives set out in section 12 of the Act of 2002.

(4) Where the Regulator decides to use a competitive or comparative selection procedure for the purposes of granting a licence referred to in paragraph (1), the Regulator may extend the maximum period of 6 weeks referred to in Regulation 9(5) for as long as is necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months.

(5) The time limits referred to in paragraph (4) shall be without prejudice to any applicable international agreements relating to the use of radio frequencies and satellite co-ordination.

(6) The Regulator shall review any limitation referred to in paragraph (2) at intervals which it considers reasonable or at the reasonable request of any undertaking affected.

(7) Without prejudice to section 13 or 37 of the Act of 2002, where the Regulator decides that further licences ought to be offered, it shall cause its decision to be published and invite applications for such licences.

Harmonised assignment of radio frequencies

12. When granting a licence, in relation to which --

(a) the harmonised usage of the radio frequencies involved in accordance with any international agreements or European Community rules,

(b) any relevant access conditions and procedures under any international agreements or European Community rules, and

(c) any selection procedure in accordance with international agreements and European Community rules,

apply, the Regulator shall not impose any further conditions, additional criteria or procedures which would restrict, alter or delay the grant of the licence concerned provided that all conditions which may be specified by the Regulator to be complied with by the holder of the licence in the State have been satisfied.

Rights of use for numbers

13.(1) The Regulator may, on receipt of an application in such form as it may, from time to time, determine, grant a right of use for any class or description of number, to any undertaking or such other person of a class or description as the Regulator considers appropriate, subject to Regulations 14 and 18(1)(c) and to Regulation 22 of the Framework Regulations.

(2) The Regulator shall establish open, transparent and non-discriminatory procedures for the grant of rights of use of numbers and shall cause any such procedures to be made publicly available.

(3) The Regulator shall make any decision on the grant of a right to use a class or description of number as soon as possible after receipt by it of the complete application and in the case of a number that has been allocated for a specific purpose within the national numbering scheme, within 3 weeks after such receipt.

(4) The Regulator shall communicate a decision referred to in paragraph (3) to an applicant for a right of use referred to in that paragraph as soon as is reasonably practicable after the decision is made and, subject to any restrictions which the Regulator considers appropriate in order to protect the confidentiality of any information which the Regulator considers confidential, make public such a decision as soon as is reasonably practicable thereafter.

5) Where the Regulator decides, after consultation pursuant to Regulation 19 of the Framework Regulations, that rights for use of numbers of exceptional economic value are to be granted through competitive or comparative selection procedures, the Regulator may extend the maximum period of 3 weeks referred to in paragraph (3) by up to 3 weeks.

Conditions attached to rights of use for numbers.

14.(1)  The Regulator shall, as soon as practicable after the commencement of these Regulations, specify conditions which shall attach to a right of use for numbers provided that it may only attach such conditions as are listed in Part C of the Schedule. The Regulator may decide that certain conditions may not apply to undertakings of such class or type as may be determined by the Regulator.

(2)   Any attachment or non-application of conditions under paragraph (1) to a right of use for numbers shall be objectively justified in relation to the electronic communications network or service concerned and shall be non-discriminatory, proportionate and transparent.

(3)   The Regulator shall ensure that where a requirement is specified as a condition of a right of use for numbers such a requirement shall not be specified as a condition of the general authorisation in respect of the right of use concerned.

(4)   An undertaking granted a right of use for numbers which fails to comply with any conditions attached to such right under paragraph (1) is guilty of an offence.

Amendment of rights and obligations

15.(1) The Regulator may amend the rights, conditions and procedures concerning the general authorisation, licences and rights of use for numbers provided that any such amendments may only be made in objectively justified cases and in a proportionate manner.

(2)  A road authority may amend the conditions of a consent under section 53 of the Act of 2002 provided that such amendments may only be made in objectively justified cases and in a proportionate manner.

(3)  A planning authority (within the meaning of the Act of 2000) may amend the conditions of a licence under section 254 of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure provided that such amendment may only be made in objectively justified cases and in a proportionate manner.

(4)  Before making any amendment under this Regulation the Regulator, a road authority or a planning authority, as the case may be, shall --

(a)     give notice in such manner as it considers appropriate of its intention, inviting interested parties, including users and consumers, to make representations on the proposed amendments within such period (not, except in exceptional circumstances, being less than 28 days from the date of the notice) as may be specified in the notice, and

(b)     have regard to any representations made to it pursuant to subparagraph (a).

Enforcement - Compliance with obligations

16.(1)      The Regulator may require an undertaking covered by a general authorisation or other person enjoying rights of use for numbers granted under Regulation 13 to provide the Regulator with such information, as the Regulator considers necessary, to verify compliance by the undertaking with the conditions of the general authorisation or of the rights of use.

(2)     Where the Regulator finds that a person has not complied with one or more of the conditions attached to its general authorisation, licence or rights of use of numbers granted to it or with a direction under Regulation 23, the Regulator shall notify the person of those findings and give the person a reasonable opportunity to state its views or remedy any non-compliance, not later than --

(a)        one month after notification,

(b)        a shorter period agreed by the undertaking or stipulated by the Regulator in the case of repeated non-compliance, or

(c)        a longer period decided by the Regulator.

(3)     The Regulator may publish, in such manner as it thinks fit, any notification given by it under this Regulation subject to the protection of the confidentiality of any information which the Regulator considers confidential.

(4)     The Regulator may amend or revoke any notification under this Regulation.

(5)     Where, at the end of the period referred to in paragraph (2), the Regulator is of the opinion that the person concerned has not complied with the condition or direction, the Regulator may, subject to paragraph (15), apply to the High Court for such order as may be appropriate by way of compliance with the condition or direction. The Court may, as it thinks fit, on the hearing of the application make an order compelling compliance with the condition or direction or refuse the application. An order compelling compliance shall stipulate a reasonable period for the person to comply with the condition or direction.

(6)     An application for an order under paragraph (5) shall be by motion and the Court when dealing with the matter may make such interim or interlocutory order as it considers appropriate.

(7)     The Court shall not deny interim or interlocutory relief solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

(8)     (a)      An application for an order under paragraph (5) or (13) may include an application for an order to pay to the Regulator such amount, by way of financial penalty, as the Regulator may propose as appropriate in the light of the non-compliance.

(b)     In deciding on such an application, the Court shall decide the amount (if any) of the financial penalty which should be payable and shall not be bound by the amount proposed by the Regulator.

(c)     Any financial penalty ordered by the Court to be paid by a person under this paragraph shall be paid to and retained by the Regulator as income.

(d)     In deciding what amount (if any) should be payable, the court shall consider the circumstances of the non-compliance, including --

(i)      its duration,

(ii)      the effect on consumers, users and other operators,

(iii)     the submissions of the Regulator on the appropriate amount, and

(iv)    any excuse or explanation for the non-compliance.

(9)     Where the Regulator has evidence of a breach by a person of any of the conditions of a general authorisation, a licence or a right of use for numbers or a direction under Regulation 23 that represents an immediate and serious threat to public safety, public security or public health, the Regulator may issue a direction to the person, requiring that the use of such apparatus or part of it, as may be specified in the direction, cease with immediate effect or, on or before such date and time, as may be so specified.

(10)   A person to whom a direction under paragraph (9) has been issued shall cease to use the apparatus or part of it to which the direction relates, unless and until such direction has been withdrawn by the Regulator, and shall take such measures as may be specified by the Regulator in the direction to remedy the breach.

(11)   Where the Regulator has evidence of non-compliance by a person with a condition of a general authorisation, a licence or a right of use for numbers or a direction under Regulation 23 that will in the opinion of the Regulator create serious economic or operational problems for undertakings or for users of electronic communications networks or services, the Regulator may issue a direction to the person requiring immediate compliance.

(12)  A person may make representations to the Regulator concerning a requirement made of the person under paragraph (9) or (11) and the Regulator having considered the representations may confirm, amend or withdraw the requirement.

(13)  Where a person fails to comply with a requirement under paragraph (9) or (11), the Regulator may, subject to paragraph (15), apply in a summary manner to the High Court for an order compelling compliance.

(14)   In so far as a licence is concerned, this Regulation applies, notwithstanding anything to the contrary in the Act of 1926, in Regulations under section 6 of that Act relating to that licence or in the licence itself.

(15)   Where the Regulator has brought proceedings for an offence under these Regulations or given a notice under section 44 of the Act of 2002 in respect of a failure by a person to comply with a condition of a general authorisation, a licence or a right of use for numbers, the Regulator shall not make an application for an order under this Regulation to the High Court to compel compliance by the person with the condition.

Suspension or withdrawal of authorisation, licence or right of use

17.(1)     Where the Regulator considers that there is or has been serious or repeated non-compliance by an undertaking with the conditions attached to its general authorisation or a licence, or a right of use for numbers granted to it or a specific obligation and that undertaking has, in the opinion of the Regulator, failed to comply with such conditions or obligations the Regulator may decide, having considered any representations, that the undertaking is no longer authorised under Regulation 4 and may suspend or withdraw any licence, or right of use for numbers granted to the undertaking.

(2)     The Regulator shall notify an undertaking where the Regulator proposes to take action under paragraph (1) against it and shall allow the undertaking 28 days to make representations to the Regulator before taking the action.

Information required under the general authorisation, for rights of use and for specific obligations

18.(1)      The Regulator may require an undertaking to provide information under the general authorisation in respect of a licence or a right of use for numbers or a specific obligation but only where such requirement is proportionate and objectively justified for:

(a)    systematic or case-by-case verification of compliance with, as appropriate, conditions 1 and 2 of Part A, condition 5 of Part B and condition 7 of Part C of the Schedule and of compliance with any specific obligations as aforesaid,

(b)    case-by-case verification of compliance with conditions as set out in the Schedule where a complaint has been received by the Regulator or where the Regulator has other reasons to believe that a condition is not complied with or in case of an investigation by the Regulator on its own initiative,

(c)    procedures for and assessment of requests for granting rights of use,

(d)    publication of comparative overviews of quality and price of services for the benefit of consumers,

(e)    clearly defined statistical purposes, and

(f)    market analysis for the purposes of the Access Regulations or the Universal Service Regulations.

(2)     The information referred to in subparagraphs (a), (b), (d), (e) and (f) of paragraph (1) may not be required prior to or as a condition for market access.

(3)     Where the Regulator requires a person to provide any such information as is referred to in paragraph (1), the Regulator shall inform the person concerned of the specific purpose for which this information is to be used.

Administrative charges

19.      Section 30 of the Act of 2002 is amended as follows --

(a)       in subsection (1) --

(i)      in subparagraph (a), by substituting “communications,” for “communications, and”

(ii)     in subparagraph (b), by substituting “organisations, and” for “organisations”,

(iii)     by inserting after subparagraph (b) the following:

“(c)     enabling the Minister to meet the expenses referred to in Regulation 14(4) of the European Communities (Electronic Communications Networks and Services)(Framework) Regulations 2003 ( S.I. No. 307 of 2003 ) of an Electronic Communications Appeal Panel, and

(iv)      by substituting for “providers of electronic communications services” the following:

“providers of electronic communications services and on providers of electronic communications networks which are deemed to be authorised under Regulation 4 of the European Communities (Electronic Communications Networks and Services)(Authorisation) Regulations 2003 ( S.I. No. 306 of 2003 )”,

(b)       in subsection (3), by substituting for “provider of postal or electronic communications services” the following:

“provider of postal services or each provider of electronic communications services or electronic communications networks referred to in subsection (1)”,

(c)    in subsection (11)(b), by deleting “services” after “electronic communications”,

(d)    by inserting after subsection (1) the following:

“(1A) For the purposes of subsection (1), the expenses of the Commission in relation to the discharge of its functions in relation to electronic communications shall --

(a)     in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme, the licensing scheme for the licence concerned, the schemes for the grant of rights of use for numbers and specific obligations, and may include costs for international co-operation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of any orders under section 3(6) (inserted by section 11(c) of the Wireless Telegraphy Act 1972 ) of the Wireless Telegraphy Act 1926 or regulations under section 6 of that Act relating to apparatus for wireless telegraphy for the provision of an electronic communications network or service and administrative decisions, such as decisions on access and interconnection, and

(b)     be imposed by the Commission on an individual undertaking in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.”, and

(e)    by inserting after subsection (12) the following:

“(12A) The Commission shall, in relation to a levy order, cause to be published, whether in its annual report and accounts referred to in section 32 or otherwise, an annual overview of its administrative costs and of the total sum of the charges collected under subsection (1).

(12B) The Commission shall, in the case of charges imposed on an annual basis, make appropriate repayments or compensation in the case of overcharging or additional charges in the case of undercharging by a person to whom a charge is imposed in the light of any difference between the total sum of the administrative charges collected under subsection (1) and the administrative costs incurred.”.

Fees for rights of use and rights to install facilities

20.(1) The Regulator may, subject sections 13 and 37 of the Act of 2002, impose fees for a licence or for rights of use for numbers which reflect the need to ensure the optimal use of the radio frequency spectrum and the national numbering scheme.

(2) The Regulator shall ensure that any such fees shall be objectively justified, transparent, non- discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives of the Regulator as set out in section 12 of the Act of 2002.

(3) A charge imposed by a road authority for a consent under section 53 of the Act of 2002

(a) may reflect the need to ensure the optimum use of the relevant road, but

(b) shall be objectively justified, transparent, non- discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives set out in Article 8 of the Framework Directive.

Publication of information

21.(1) The Regulator shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning the general authorisation, licences and rights of use for numbers is published and kept up to date in an appropriate manner so as to provide easy access to that information for all interested parties.

(2)The Regulator shall make all reasonable efforts, bearing in mind the costs involved, to create a user-friendly overview of information regarding procedures and conditions relating to consents under section 53 of the Act of 2002 and licences under section 254 of the Act of 2000 for the establishment of overground electronic communications infrastructure and any associated physical infrastructure in order to facilitate applications for such consents and licences.

Transitional

22.(1) A person who holds a licence under section 111 of the Act of 1983 which is in force immediately before the commencement of these Regulations is deemed on the commencement to be authorised under Regulation 4. Without prejudice to the continuation in force of any obligations under such a licence in accordance with Regulation 8 of the Access Regulations or Regulation 13 of the Universal Service Regulations, any such licence ceases to be in force from the commencement of these Regulations.

(2) A person who holds a licence under --

(a)     section 16(3)(a) of the Broadcasting Authority Act 1960 ,

(b)     section 4(3) of the Radio and Television Act 1988 ,

(c)     the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations 1974 ( S.I. No. 67 of 1974 ),

(d)     the Wireless Telegraphy (Community Repeater Licence) Regulations 1988 ( S.I. No 83 of 1988 ),

(e)     the Wireless Telegraphy (Programme Services Distribution) Regulations 1999 ( S.I. No. 73 of 1999 ),

(f)     the Wireless Telegraphy (UHF Television Programme Retransmission) Regulations 1999 ( S.I. No. 348 of 1999 ), or

(g)     the Wireless Telegraphy (Carrigaline UHF Television Programme Retransmission) Regulations 1999 ( S.I. No. 347 of 1999 ),

which is in force immediately before the commencement of these Regulations, is authorised under Regulation 4 on the commencement.

(3) A person referred to in paragraphs (1) and (2) shall as soon as may be after the commencement of these Regulations make a notification to the Regulator in accordance with Regulation 4.

(4) Notwithstanding paragraphs (1) to (3), where the Regulator considers that the application of those paragraphs would result in a reduction of rights or extension of obligations of a person referred to in paragraph (1) or (2) under a licence existing immediately before the commencement of these Regulations, the Regulator may, upon request by such person, extend the validity of a licence under paragraph (1) or (2) until at the latest 25 April 2004, provided that the rights of other undertakings under European Community law are not adversely affected thereby.

(5) Where the Regulator extends the validity of a licence under paragraph (4) it shall notify such extension to the European Commission and state the reasons therefor.

(6) Where immediately before the commencement of these Regulations any legal proceedings are pending in any court or tribunal in relation to a provision of a licence under section 111 of the Act of 1983 such proceedings shall not abate by reason of the revocation of that section.

(7) Where a person who holds a licence under section 5 of the Act of 1926, conditional on also holding a licence under section 111 of the Act of 1983, the licence under the Act of 1926 shall not be invalidated by virtue of paragraph (1).

(8) A licence under --

(a) section 5 of the Act of 1926, other than a licence under the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations 1974 ( S.I. No. 67 of 1974 ),

(b) section 16(3)(a) of the Broadcasting Authority Act 1960 , and

(c) section 4(3) of the Radio and Television Act 1988 ,

in force immediately before the commencement of these Regulations continues in force as and from the commencement. The holder of such a licence is only required to comply with such conditions, referred to in Part B of the Schedule, as are specified by the Regulator to be applicable to such licence.

(9) Where a licence referred to in paragraph (8) expires and is renewed, the holder of the licence is, notwithstanding any provision to the contrary in such licence or in or under the enactment under which such licence is issued, only required to comply with such conditions, referred to in Part B of the Schedule as are specified by the Regulator to be applicable to such licence.

(10)Where the Regulator grants a licence under section 5 of the Act of 1926 to an undertaking, the holder of the licence is only required to comply with such conditions referred to in Part B of the Schedule as are specified by the Regulator to be applicable to such licence.

(11)Paragraphs (8), (9) and (10) are without prejudice to the continuation in force of any condition, compatible with European Community law, attached to a licence referred to in such paragraphs for the purpose of pursuing general interest objectives relating to content regulation or audio-visual policy.

(12)The Regulator shall notify a holder of a licence to which paragraph (8), (9) or (10) applies of the conditions applicable to such licence as soon as practicable after the commencement of these Regulations.

(13)In this Regulation “licence under section 5 of the Act of 1926” means a licence granted under section 5 of the Act of 1926 for apparatus for wireless telegraphy of a particular class or description for the provision of an electronic communications network or service.

Directions

23.      The Regulator may, for the purpose of further specifying requirements to be complied with relating to a condition of a general authorisation, a licence or a right of use for numbers, issue directions to an undertaking to do or refrain from doing anything which the Regulator specifies in the direction.

Service of directions and notifications

24        (1)       Where the Regulator issues a direction or notification under these Regulations, such direction or notification shall be in writing, state the reasons on which it is based and be addressed to the undertaking concerned, and as soon as practicable, be sent or given in any of the following ways--

(a)     by delivering it to the undertaking,

(b)     by leaving it at the address at which the undertaking carries on business,

(c)     by sending it by pre-paid registered post to the address at which the undertaking carries on business,

(d)     if an address for the service of directions or notifications has been furnished by the person to the Regulator, by leaving it at, or sending it by pre-paid registered post to, that address, or

(d)     in any case where the Regulator considers that the immediate giving of the direction or notification is required, by sending it, by means of a facsimile machine or by electronic mail, to a device or facility for the reception of facsimiles or electronic mail located at the address at which the undertaking ordinarily carries on business or, if an address for the service of notices has been furnished by the undertaking, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the direction or notification, as the case may be, or the sender's facility for the reception of electronic mail generates a message confirming receipt of the electronic mail.

(2)       For the purposes of paragraph (1), a company within the meaning of the Companies Acts 1963 to 2001, is deemed to be carrying on business at its registered office, and every other body corporate and every unincorporated body is deemed to be carrying on business at its principal office or place of business.

Proceedings and penalties

25.(1)  Subject to paragraph (2), proceedings for an offence under these Regulations may be brought and prosecuted by the Regulator.

(2) Where the Regulator has made an application under Regulation 16 to the High Court to compel compliance with a condition of a general authorisation, a licence or a right of use for numbers, the Regulator shall not bring proceedings for an offence under these Regulations committed by the person concerned or give a notice under section 44 of the Act of 2002 in respect of a failure to comply with the condition.

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

(4) Where the affairs of a body corporate are managed by its members, paragraph (3) applies in relation to the acts and defaults of a member of that body in connection with the member's functions of management as if he or she were a director or manager of it.

(4) A person guilty of an offence under these Regulations is liable on summary conviction to a fine not exceeding €3,000.

(5) An offence under these Regulations is an offence to which section 44 of the Act of 2002 applies.

Publication of specification of conditions

26      (1)     The Regulator shall cause to be published in the Iris Oifigiul and in a newspaper published and circulating in the State notice of the specification of conditions under Regulation 8, 10 or 14 and of a determination under Regulation 4(2) or (6). The notice shall include information on where copies of the specification or determination can be obtained.

(2)     Where the Regulator amends or revokes any such conditions in accordance with Regulation 15 or any such determination, paragraph (1) applies accordingly.

Schedule

Regulations 8 , 10 and 14

Part A. Conditions which may be attached to a general authorisation

1.       Financial contributions to the funding of universal service in conformity with the Universal Service Regulations.

2.       Administrative charges in accordance with section 30 of the Act of 2002.

3.       Interoperability of services and interconnection of networks in conformity with the Access Regulations.

4.       Accessibility of numbers from the national numbering plan to end-users including conditions in conformity with the Universal Service Regulations.

5.       Environmental and town and country planning requirements, as well as requirements and conditions linked to the granting of access to or use of public or private land and conditions linked to co-location and facility sharing in conformity with the Act of 2002 and the Act of 2000 and including, where applicable, any financial or technical guarantees necessary to ensure the proper execution of infrastructure works.

6.       Must carry obligations in conformity with Directive 2002/22/EC (Universal Service Directive).

7.       Personal data and privacy protection specific to the electronic communications sector in conformity with Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector² .

8.       Consumer protection rules specific to the electronic communications sector including conditions in conformity with the Universal Service Regulations.

9.       Restrictions in relation to the transmission of illegal content, in accordance with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market³ and restrictions in relation to the transmission of harmful content in accordance with Article 2a(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities⁴ .

10.     Information to be provided under a notification under Regulation 4 and for other purposes as included in Regulation 18.

11.     Enabling of legal interception by competent national authorities in conformity with Directive 97/66/EC and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.⁵ .

12.     Terms of use during major disasters to ensure communications between emergency services and authorities and broadcasts to the general public.

13.     Measures regarding the limitation of exposure of the general public to electromagnetic fields caused by electronic communications networks in accordance with European Community law.

14.     Access obligations other than specific obligations applying to undertakings providing electronic communications networks or services, in conformity with the Access Regulations.

15.     Maintenance of the integrity of public communications networks in accordance with the Access Regulations and the Universal Service Regulations including conditions to prevent electromagnetic interference between electronic communications networks or services or both such networks and services in accordance with Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic compatibility⁶ .

16.     Security of public networks against unauthorised access according to Directive 97/66/EC.

17.     Conditions for the use of radio frequencies, in conformity with Article 7(2) of Directive 1999/5/EC, where Regulation 9(1) applies.

18.     Measures designed to ensure compliance with standards and specifications referred to in Article 17 of Directive 2002/21/EC (Framework Directive).

Part B. Conditions which may be attached to licences

1.       Designation of service or type of network or technology for which the licence has been granted, including, where applicable, the exclusive use of a frequency for the transmission of specific content or specific audiovisual services.

2.       Effective and efficient use of frequencies in conformity with Regulation 23 of the Framework Regulations, including, where appropriate, coverage requirements.

3.       Technical and operational conditions necessary for the avoidance of harmful interference and for the limitation of exposure of the general public to electromagnetic fields, where such conditions are different from those included in the general authorisation.

4.       Maximum duration in conformity with Article 5 of the Authorisation Directive, subject to any changes in the national frequency plan.

5.       Usage fees in accordance with Regulation 20.

6.       Any commitments which the undertaking obtaining the usage right has made in the course of a competitive or comparative selection procedure.

7.       Obligations under relevant international agreements relating to the use of frequencies.

Part C. Conditions which may be attached to rights of use for numbers

1.       Designation of service for which the number shall be used, including any requirements linked to the provision of that service.

2.       Effective and efficient use of numbers in conformity with Regulation 22 of the Framework Regulations.

3.       Number portability requirements in conformity with the Universal Service Regulations.

4.       Obligation to provide public directory subscriber information for the purposes of Regulations 4 and 21 of the Universal Service Regulations.

5.       Maximum duration in conformity with Article 5 of the Authorisation Directive, subject to any changes in the national numbering plan.

6.       Transfer of rights at the initiative of the right holder and conditions for such transfer in conformity with the Framework Regulations

7.       Usage fees in accordance with Regulation 20.

8.       Any commitments which the undertaking obtaining the usage right has made in the course of a competitive or comparative selection procedure.

9.       Obligations under relevant international agreements relating to the use of numbers.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not it purport to be a legal interpretation)

The purpose of these Regulations is to give effect to Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive). The aim of the Regulations is to facilitate the freedom to provide electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions.

¹ OJ No. L 108, 24.04.2002, p. 21

² OJ No. L 108, 24.04.2002, p. 7

² OJ L 24, 30.1.1998, p. 1

³ OJ L 178, 17.7.2000, p. 1.

⁴ OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

⁵ OJ L 281, 23.11.1995, p. 31

⁶ OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1).