(2)Where the provision of access referred to in paragraph (1) is not part of an economic activity or is ancillary to an economic activity or a public service which is not dependent on the conveyance of signals on those networks, any undertaking, public authority or end-user providing such access shall not be subject to any general authorisation for the provision of electronic communications networks or services pursuant to Regulation 6, to obligations regarding end-users rights pursuant to Part 10, or to obligations to interconnect their networks pursuant to Regulation 42(1). Regulation 16 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S.I. No. 68 of 2003 ) shall apply.
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(3)Providers of public electronic communications networks or publicly available electronic communications services shall not be prevented by the Regulator or any other person from allowing access to their networks to the public through RLANs which may be located at the end-user’s premises, subject to compliance with the applicable general authorisation conditions and the prior informed agreement of the end-user.
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(4)In accordance with Article 3(1) of Regulation (EU) 2015/2120, providers of public electronic communications networks or publicly available electronic communications services shall not unilaterally restrict or prevent end-users from: (a) accessing RLANs of their choice provided by third parties; or (b) allowing reciprocally or, more generally, accessing the networks of such providers by other end-users through RLANs, including on the basis of third party initiatives which aggregate and make publicly accessible the RLANs of different end-users.
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(5)End-users shall not be limited or prevented by the Regulator or by a local authority from allowing access, reciprocally or otherwise, to their RLANs by other end-users, including on the basis of third party initiatives which aggregate and make the RLANs of different end-users publicly accessible.
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(6)The Regulator and local authorities shall not unduly restrict the provision of access to RLANs to the public: (a) by public authorities or in public spaces close to premises occupied by such public authorities, when that provision is ancillary to the public services provided on those premises; (b) by initiatives of non-governmental organisations or public authorities to aggregate and make reciprocally or more generally accessible the RLANs of different end-users, including, where applicable, the RLANs to which public access is provided in accordance with subparagraph (a).
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(7)A provider that fails to comply with an obligation under paragraph (4) commits an offence and is liable on summary conviction to a class A fine.
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Deployment and operation of small-area wireless access points 39. (1) A local authority shall not unduly restrict the deployment of small-area wireless access points.
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(2)Local authorities shall not subject the deployment of small-area wireless access points complying with the characteristics laid down pursuant to Commission Implementing Regulation (EU) 2020/1070 of 20 July 202011 , to any individual town planning permit or other individual prior permits.
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(3)Notwithstanding paragraph (2), a local authority may require statutory permits (within the meaning of the European Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 ( S.I. No. 391 of 2016 )) for the deployment of small-area wireless access points on buildings or sites of architectural, historical or natural value protected in accordance with law or where necessary for public safety reasons.
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(4)This Regulation is without prejudice to the essential requirements laid down in the European Union (Radio Equipment) Regulations 2017 ( S.I. No. 248 of 2017 ) and to the authorisation regime applicable for the use of the relevant radio spectrum.
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(5)(a) An operator has the right to access any physical infrastructure controlled by a local authority or public authority which is technically suitable to host small-area wireless access points or which is necessary to connect such access points to a backbone network, including street furniture, such as light poles, street signs, traffic lights, billboards, bus and tramway stops and metro stations. (b) Where an operator requests such access, the authority requested shall meet all reasonable requests for access on fair, reasonable, transparent and non-discriminatory terms and conditions, which shall be made public at a single information point operated by the Regulator.
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(6)Without prejudice to any commercial agreements, the deployment of small-area wireless access points shall not be subject to any fees or charges going beyond the administrative charges in accordance with Article 16 of the Directive.
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Part 8
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ACCESS AND INTERCONNECTION - RIGHTS, OBLIGATIONS AND REMEDIES
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CHAPTER 1
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General provisions, access principles General framework for access and interconnection 40. (1) Subject to these Regulations, an undertaking, whether established in the State or in another Member State, shall not be prevented from negotiating with any other such undertaking an agreement on technical and commercial arrangements for access or interconnection in accordance with European Union law.
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(2)An undertaking requesting access or interconnection in the State does not need to be authorised to operate in the State if it is not providing services and does not operate a network in the State.
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(3)The Regulator shall not maintain or impose measures which require undertakings, when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or measures imposing obligations that are not related to the actual access and interconnection services provided without prejudice to the conditions specified in Schedule 1.
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Rights and obligations of undertakings 41. (1) An operator of a public electronic communications network has the right to negotiate interconnection with another operator so authorised in accordance with Regulation 12 for the purpose of providing publicly available electronic communications services in order to ensure provision and interoperability of services throughout the European Union.
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(2)An operator of a public electronic communications network shall negotiate interconnection for the purpose of providing publicly available electronic communications services when requested to do so by another undertaking, authorised in accordance with Regulation 12, in order to ensure the provision and interoperability of services.
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(3)An operator shall offer access and interconnection to other undertakings on terms and conditions consistent with any obligations imposed by the Regulator under Regulation 42, 43 or 50.
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(4)Without prejudice to Regulation 99, an undertaking that acquires information from another undertaking before, during or after the process of negotiating access or interconnection arrangements shall not use that information for a purpose other than that for which it was supplied and shall respect at all times the confidentiality of information transmitted or stored.
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(5)An undertaking shall not pass any information referred to in paragraph (4) on to any other party, in particular, other departments, subsidiaries or partners of the undertaking for whom such information could provide a competitive advantage.
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(6)When the Regulator determines that the conditions of competition so require, it may direct that negotiations are to be conducted through neutral intermediaries. The direction is not limited to but may include a timeframe for negotiations to be concluded and the scope of the negotiations.
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(7)An operator that fails to comply with the requirements of paragraph (2) or (3) commits a hybrid offence.
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(8)An undertaking that fails to comply with the requirements of paragraph (4) or (5) commits a hybrid offence.
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(9)An operator or an undertaking that fails to comply with a direction under paragraph (6) commits an offence and is liable on summary conviction to a class A fine.
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(10)In proceedings for an offence under paragraph (7) in respect of a breach of paragraph (3) it is a defence for the operator charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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CHAPTER 2
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Access and interconnection Powers and responsibilities with regard to access and interconnection 42. (1) The Regulator shall, acting in pursuit of its objectives set out in section 12 of the Act of 2002 and Regulation 4, encourage and, where appropriate, ensure, in accordance with these Regulations, adequate access, interconnection and the interoperability of services in such a way as to — (a) promote efficiency, (b) promote sustainable competition, (c) promote the deployment of very-high-capacity networks, (d) promote efficient investment and innovation, and (e) give the maximum benefit to end-users.
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(2)The Regulator shall provide guidelines and make publicly available the procedures applicable to gain access and interconnection to ensure that small and medium-sized enterprises and operators with a limited geographical reach can benefit from the obligations imposed.
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(3)Without prejudice to any measures that may be taken in accordance with Regulation 50 in respect of undertakings designated by the Regulator as having significant market power, the Regulator may — (a) to the extent that is necessary to ensure end-to-end connectivity, impose obligations on undertakings subject to the general authorisation that control access to end-users including, in justified cases, the obligation to interconnect their networks where this is not already the case, (b) in justified cases and to the extent that is necessary, impose obligations on undertakings subject to the general authorisation that control access to end-users to make their services interoperable, (c) in justified cases, where end-to-end connectivity between end-users is endangered due to a lack of interoperability between interpersonal communications services, and to the extent necessary to ensure end-to-end connectivity between end-users, impose obligations on relevant providers of number-independent interpersonal communications services which reach a significant level of coverage and user uptake, to make their services interoperable, (d) after consultation with the Broadcasting Authority of Ireland, impose obligations set out in Regulation 43, to the extent that it is necessary to ensure accessibility for end-users to such digital radio and television broadcasting services and related complementary services as may be specified by the Broadcasting Authority of Ireland, on operators to provide access to application program interfaces (APIs) and electronic programme guides (EPGs) on fair, reasonable and non-discriminatory terms.
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(4)The obligations referred to in paragraph (3)(c) shall be imposed only: (a) to the extent necessary to ensure interoperability of interpersonal communications services and may include proportionate obligations on providers of those services to publish and allow the use, modification and redistribution of relevant information by the Regulator and other providers, or to use and implement standards or specifications laid down in accordance with Regulation 23 or of any other relevant European or international standards; and (b) where the European Commission has adopted implementing measures specifying the nature and scope of any obligations that may be imposed in accordance with Article 61(2) of the Directive.
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(5)In particular, and without prejudice to paragraphs (1), (2), (3) and (4), the Regulator may impose obligations, upon reasonable request, to grant access to wiring and cables and associated facilities inside buildings or up to the first concentration or distribution point as determined by the Regulator, where that point is located outside the building.
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(6)Where it is justified on the grounds that replication of such network elements would be economically inefficient or physically impracticable, the obligations referred to in paragraph (5) may be imposed on providers of electronic communications networks or on the owners of such wiring and cables and associated facilities, where those owners are not providers of electronic communications networks. The access conditions imposed may include specific rules on access to such network elements and to associated facilities and associated services, on transparency and non-discrimination and on apportioning the costs of access, which, where appropriate, are adjusted to take into account risk factors.
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(7)Where the Regulator concludes, having regard, where applicable, to the obligations resulting from any relevant market analysis, that the obligations imposed in accordance with paragraph (5) or (6) do not sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, it may extend the imposition of such access obligations, on fair and reasonable terms and conditions, beyond the first concentration or distribution point, to a point that it determines to be the closest to end-users, capable of hosting a sufficient number of end-user connections to be commercially viable for efficient access seekers. In determining the extent of the extension beyond the first concentration or distribution point, the Regulator shall take utmost account of relevant BEREC guidelines. If justified on technical or economic grounds, the Regulator may impose, by notifying the provider or owner concerned, active or virtual access obligations.
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(8)The Regulator shall not impose obligations in accordance with paragraph (7) on providers of electronic communications networks where it determines that— (a) the provider has the characteristics listed in Regulation 62(1) and makes available a viable and similar alternative means of reaching end-users by providing access to a very-high-capacity network to any undertaking, on fair, non-discriminatory and reasonable terms and conditions; the Regulator may extend this exemption to other providers offering, on fair, non-discriminatory and reasonable terms and conditions, access to a very-high-capacity network, or (b) the imposition of obligations would compromise the economic or financial viability of a new network deployment, in particular by small local projects.
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(9)Notwithstanding subparagraph (a) of paragraph (8), the Regulator may impose obligations on providers of electronic communications networks fulfilling the criteria laid down in that subparagraph where the network concerned is publicly funded.
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(10)(a) Without prejudice to paragraphs (1), (2), (3) and (4), the Regulator may impose obligations in relation to the sharing of passive infrastructure or obligations to conclude localised roaming access agreements, on undertakings providing or authorised to provide electronic communications networks, in both cases if: (i) the imposition of such obligations is directly necessary for the local provision of services which rely on the use of radio spectrum, in accordance with European Union law, and (ii) no viable and similar alternative means of access to end-users is made available to any undertaking on fair and reasonable terms and conditions. (b) The Regulator may impose such obligations only: (i) where the possibility of imposing the obligations is clearly provided for when granting the rights of use for radio spectrum, and (ii) where justified on the grounds that, in the area subject to such obligations, the market-driven deployment of infrastructure for the provision of networks or services which rely on the use of radio spectrum is subject to insurmountable economic or physical obstacles and therefore access to networks or services by end-users is severely deficient or absent.
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(11)Where access and sharing of passive infrastructure alone does not suffice to address the situations referred to in paragraph (10), the Regulator may impose obligations on sharing of active infrastructure.
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(12)When imposing obligations in accordance with paragraph (10) or (11) the Regulator shall have regard to: (a) the need to maximise connectivity throughout the European Union, along major transport paths and in particular territorial areas, and to the possibility to significantly increase choice and higher quality of service for end-users: (b) the efficient use of radio spectrum; (c) the technical feasibility of sharing and associated conditions; (d) the state of infrastructure-based as well as service-based competition; (e) technological innovation; (f) the overriding need to support the incentive of the host to roll out the infrastructure in the first place.
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(13)In the event of dispute resolution, the Regulator may, inter alia, impose on the beneficiary of the sharing or access obligation, the obligation to share radio spectrum with the infrastructure host in the relevant area.
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(14)Any obligations imposed by the Regulator under this Regulation shall be objective, transparent, proportionate and non-discriminatory and shall be applied in accordance with the procedures referred to in Regulations 17, 18 and 101.
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(15)The Regulator shall assess the results of any obligations or conditions imposed in accordance with this Regulation within a period of 5 years from the adoption of the previous measure adopted in relation to the same undertaking and assess whether it would be appropriate to withdraw or amend them in light of evolving conditions. The Regulator shall notify the outcome of its assessment in accordance with the procedures referred to in Regulations 17, 18 and 101.
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(16)With regard to access, interconnection and interoperability referred to in paragraph (1), (3) or (4) the Regulator may exercise its powers under these Regulations on its own initiative where justified in order to secure the policy objectives and regulatory principles set out in section 12 of the Act of 2002 and Regulation 4 in accordance with these Regulations and the procedures referred to in Regulations 17 and 101.
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(17)When defining the location of network termination points the Regulator shall take utmost account of any guidelines adopted by BEREC in accordance with Article 61(7) of the Directive.
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(18)A person who fails to comply with an obligation imposed by the Regulator under this Regulation commits an offence and is liable on summary conviction to a class A fine.
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Conditional access systems and other facilities 43. (1) In relation to conditional access to digital television and radio services broadcast to viewers and listeners in the State, irrespective of the means of transmission, the following conditions shall apply: (a) an undertaking providing conditional access services, irrespective of the means of transmission, which provide access services to digital television and radio services and the access services upon which broadcasters depend to reach any group of potential viewers or listeners shall — (i) offer to all broadcasters on a fair, reasonable and non-discriminatory basis, compatible with European Union competition law, technical services enabling the broadcasters’ digitally-transmitted services to be received by viewers or listeners authorised by means of decoders administered by the service operators, and (ii) keep separate financial accounts regarding his or her activity as a provider of such a service; (b) when granting a licence to a manufacturer of consumer equipment, a holder of industrial property rights to conditional access products and systems shall ensure that this is done on fair, reasonable and non-discriminatory terms. Taking into account technical and commercial factors, a holder of such rights shall not subject the granting of licences to conditions prohibiting, deterring or discouraging the inclusion in the same product of — (i) a common interface allowing connection with several other conditional access systems, or (ii) means specific to another conditional access system, provided that the licensee complies with the relevant and reasonable conditions ensuring, as far as he or she is concerned, the security of transactions of conditional access system operators.
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(2)Each duty referred to in paragraph (1) is a duty owed to any person who may be affected by a breach of it and without prejudice to any other cause of action which may arise from the duty — (a) any breach of such duty which causes that person to sustain loss or damage is actionable in tort, and (b) any condition included in a licence in contravention of the duty referred to in paragraph (1) is void.
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(3)Where, as a result of a market analysis in accordance with Regulation 49, the Regulator determines that one or more undertakings do not have significant market power on the relevant market, the Regulator may amend or withdraw the conditions with respect to those undertakings in accordance with the procedures referred to in Regulations 17 and 101 but only to the extent that — (a) accessibility for end-users to radio and television broadcasts and broadcasting channels and services, specified in accordance with the Act of 2009, would not be adversely affected by such amendment or withdrawal, and (b) the prospects for effective competition in the following markets would not be adversely affected by such amendment or withdrawal— (i) retail digital television and radio broadcasting services, and (ii) conditional access systems and other associated facilities.
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(4)The Regulator shall give such notice as it considers reasonable to any party affected by any such amendment or withdrawal of conditions.
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(5)Nothing in this Regulation shall prejudice the application of section 74 of the Act of 2009.
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(6)An undertaking providing conditional access services that fails to comply with the requirements of paragraph (1)(a) commits an offence and is liable on summary conviction to a class A fine.
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(7)A holder of industrial property rights to conditional access products and systems who fails to comply with the requirements of paragraph (1)(b) commits an offence and is liable on summary conviction to a class A fine.
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CHAPTER 3
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Market analysis and significant market power Definitions – Chapter 3 44. In this Chapter — “Recommendation” means a Recommendation on Relevant Product and Service markets adopted in accordance with Article 64(1) of the Directive; “SMP guidelines” means guidelines for market analysis and the assessment of significant market power published in accordance with Article 64(2) of the Directive.
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Undertakings with significant market power 45. (1) A reference in these Regulations to an undertaking with significant market power is a reference to an undertaking designated as such by the Regulator under Regulation 49 where the Regulator is satisfied, acting in accordance with European Union law and taking the utmost account of the SMP guidelines, that in relation to any relevant market, such undertaking (whether individually or jointly with others) enjoys a position which is equivalent to dominance, namely a position of economic strength affording it the power to behave to an appreciable extent, independently of competitors, customers and, ultimately, consumers.
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(2)Where an undertaking has significant market power on a specific market it may also be designated as having significant market power on a closely related market where the links between those two markets allow the market power held on the specific market to be leveraged into the closely related market, thereby strengthening the market power of the undertaking. Consequently, remedies aiming to prevent such leverage may be applied in the closely related market under Regulations 51, 52, 53 and 56 or any of them.
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Procedure for identification and definition of markets 46. (1) The Regulator shall, taking the utmost account of the Recommendation and the SMP guidelines, define relevant markets appropriate to national circumstances, in particular the relevant geographic markets within the State by taking into account, inter alia, the degree of infrastructure competition in those areas, in accordance with the principles of competition law.
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(2)The Regulator shall, where relevant, also take into account the results of the geographical survey conducted in accordance with Regulation 100 and it shall follow the procedures referred to in Regulations 17 and 101 before defining markets that differ from those identified in the Recommendation.
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Procedure for identification of transnational markets 47. (1) The Regulator may submit a reasoned request with supporting evidence to BEREC to conduct an analysis of a potential transnational market in accordance with Article 65(1) of the Directive.
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(2)Where a decision has been adopted by the European Commission in accordance with Article 65(1) of the Directive identifying a transnational market that covers all or part of the State, the Regulator shall, acting with such other national regulatory authorities concerned: (a) jointly conduct the market analysis taking the utmost account of the SMP guidelines, (b) in a concerted fashion, decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in Regulation 49(8), and (c) notify the draft measures regarding the market analysis and any regulatory obligations pursuant to Regulations 17 and 18.
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(3)In the absence of transnational markets, where two or more national regulatory authorities, one of which is the Regulator, consider that the market conditions in their respective jurisdictions are sufficiently homogeneous, the Regulator may, jointly with such other national regulatory authorities concerned, notify their draft measures regarding the market analysis and any regulatory obligations pursuant to Regulations 17 and 18.
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Procedure for identification of transnational demand 48. (1) The Regulator may request BEREC to conduct an analysis of transnational end-user demand in accordance with Article 66(1) of the Directive, for products and services that are provided within the State and in one or more of the markets listed in the Recommendation, where the Regulator considers there is a serious demand problem to be addressed. The request shall be reasoned and include supporting evidence.
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(2)The Regulator shall take into utmost account any guidelines issued by BEREC pursuant to Article 66(2) of the Directive on common approaches to meet identified transnational demand, when performing their regulatory tasks including, where appropriate, when imposing any remedies in accordance with Regulation 50.
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Market analysis procedure 49. (1) The Regulator shall carry out an analysis of a relevant market defined in accordance with Regulation 46, and determine whether that relevant market is such as to justify the imposition of the regulatory obligations set out in the Directive. This analysis shall be carried out, where appropriate, in collaboration with the Competition and Consumer Protection Commission.
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(2)The Regulator shall take utmost account of the SMP guidelines and shall follow the procedures referred to in Regulations 17 and 101 when making its determination in accordance with paragraph (1).
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(3)A market may be considered to justify the imposition of regulatory obligations set out in these Regulations if all of the following criteria are met: (a) high and non-transitory structural, legal or regulatory barriers to entry are present; (b) there is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry; (c) competition law alone is insufficient to adequately address the identified market failure.
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(4)Where the Regulator conducts an analysis of a market that is included in the Recommendation, it shall consider that subparagraphs (a), (b) and (c) of paragraph (3) have been met, unless it determines that one or more of such criteria is not met in the specific national circumstances.
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(5)Where the Regulator conducts the analysis required by paragraph (1), it shall consider developments from a forward-looking perspective in the absence of regulation imposed on the basis of this Regulation in that relevant market, and taking into account all of the following: (a) market developments affecting the likelihood of the relevant market tending towards effective competition; (b) all relevant competitive constraints, at the wholesale and retail levels, irrespective of whether the sources of such constraints are considered to be electronic communications networks, electronic communications services, or other types of services or applications which are comparable from the perspective of the end-user, and irrespective of whether such constraints are part of the relevant market; (c) other types of regulation or measures imposed and affecting the relevant market or related retail market or markets throughout the relevant period, including, without limitation, obligations imposed in accordance with Regulations 25, 41 and 42 or any of them; (d) regulation imposed on other relevant markets on the basis of this Regulation.
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(6)Where the Regulator concludes that a relevant market does not justify the imposition of regulatory obligations in accordance with the procedures referred to in paragraphs (1) to (5), or where the conditions set out in paragraph (8) are not met, it shall not impose or maintain any specific regulatory obligations in accordance with Regulation 50. Where there already are sector specific regulatory obligations imposed in accordance with Regulation 50, it shall withdraw such obligations placed on undertakings in that relevant market.
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(7)The Regulator shall ensure parties affected by a withdrawal of obligations in accordance with paragraph (6) receive an appropriate notice period and in setting such a notice period the Regulator shall balance the need to ensure: (a) a sustainable transition for the beneficiaries of those obligations and end-users, (b) end-user choice, and (c) that regulation does not continue for longer than necessary.
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When setting such a notice period the Regulator may determine specific conditions and notice periods in relation to existing access agreements.
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(8)Where the Regulator determines that in a relevant market the imposition of regulatory obligations in accordance with paragraphs (1) to (5) of this Regulation is justified it shall designate undertakings which individually or jointly have a significant market power on that relevant market in accordance with Regulation 45 and it shall impose on such undertakings appropriate specific regulatory obligations in accordance with Regulation 50 or maintain or amend such obligations where they already exist if it considers that the outcome for end-users would not be effectively competitive in the absence of those obligations.
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(9)Measures taken in accordance with paragraphs (6) to (8) shall be subject to the procedures referred to in Regulations 17 and 101. The Regulator shall carry out an analysis of the relevant market and notify the corresponding draft measure in accordance with Regulation 17 — (a) within 5 years from the adoption of a previous measure where the Regulator has defined the relevant market and determined which undertakings have significant market power; that 5 year period may, on an exceptional basis, be extended for up to one year where the Regulator has notified a reasoned proposal for an extension to the European Commission no later than 4 months before the expiry of the 5 year period, and the European Commission has not objected within one month of the notified extension, or (b) within 3 years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the European Commission.
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(10)Where the Regulator considers that it may not complete or has not completed its analysis of a relevant market identified in the Recommendation within the time limit laid down in paragraph (9), it may request the assistance of BEREC in completing the analysis of the specific market and the specific obligations to be imposed. With this assistance, the Regulator shall, within 6 months of the time limit laid down in paragraph (9), notify the draft measure to the European Commission in accordance with Regulation 17.
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CHAPTER 4
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Access remedies imposed on undertakings with significant market power Imposition, amendment or withdrawal of obligations 50. (1) Where an undertaking is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Regulation 49, the Regulator, acting proportionately and using the least intrusive way shall, as appropriate, impose by notification on such undertaking such of the obligations set out in Regulations 51 to 56, 58 and 62 as the Regulator considers appropriate.
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(2)The Regulator shall impose such of the obligations set out in Regulations 51 to 56, 58 and 62 only on those undertakings that have been designated with significant market power in accordance with paragraph (1) without prejudice to— (a) Regulations 42 and 43, (b) Regulations 13 and 25, (c) Condition 7 in Part D of Schedule 1 as applied by virtue of Regulations 8 and 9, (d) Regulations 83 and 90, (e) the relevant provisions of the Privacy and Electronic Communications Regulations containing obligations on undertakings other than those designated as having significant market power, or (f) the need to comply with international commitments.
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(3)In relation to paragraph (2), the Regulator shall notify any decision to impose, amend or withdraw obligations on undertakings to the European Commission in accordance with Regulation 17.
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(4)Where, in exceptional circumstances, the Regulator intends to impose on undertakings designated as having significant market power obligations for access or interconnection other than those set out in Regulations 51 to 56, 58 or 62, the Regulator shall submit to the European Commission a request for authorisation to impose such other obligations. Without prejudice to Regulation 17(9), the Regulator shall not impose such other obligations pending the decision of the European Commission in accordance with Article 68(3) of the Directive to authorise or prevent the Regulator from taking such measures.
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(5)Any obligations imposed in accordance with this Regulation shall — (a) be based on the nature of the problem identified by the Regulator in its market analysis, where appropriate taking into account the identification of transnational demand pursuant to Regulation 48, (b) be proportionate, having regard where possible, to the costs and benefits, and justified in the light of the objectives laid down in section 12 of the Act of 2002 and Regulation 4, and (c) only be imposed following consultation in accordance with Regulations 17 and 101.
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(6)The Regulator may impose any of the obligations set out in Regulations 51 to 56, and 58 and 62, on undertakings to ensure that the State can comply with any international commitments referred to in paragraph (2) and where it does so it shall notify decisions to impose, amend or withdraw obligations on undertakings to the European Commission, in accordance with the procedure referred to in Regulation 17.
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(7)The Regulator shall monitor the impact of new market developments, such as in relation to commercial agreements, including co-investment agreements, influencing competitive dynamics. If the Regulator considers that those developments are not sufficiently important to require a new market analysis in accordance with Regulation 49, the Regulator shall assess without delay whether it is necessary to review the obligations imposed on undertakings designated as having significant market power and amend any previous decision, including by withdrawing obligations or imposing new obligations, in order to ensure that such obligations continue to meet the conditions set out in paragraph (5). Such amendments shall be imposed only after consultations in accordance with Regulations 17 and 101.
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Obligation of transparency 51. (1) The Regulator may in accordance with Regulation 50 impose on an undertaking obligations to ensure transparency in relation to access or interconnection requiring such undertaking to make public specific information such as accounting information, prices, technical specifications, network characteristics and expected developments thereof, as well as terms and conditions for supply and use, including any conditions altering access to or use of services and applications, in particular with regard to migration from legacy infrastructure, where such conditions are permitted by law.
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(2)The Regulator may, in particular where obligations under Regulation 52 are imposed on an undertaking, require such undertaking to publish a reference offer that is sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested and such offer shall include — (a) a description of the relevant offerings broken down into components according to market needs, and (b) a description of the associated terms and conditions including prices.
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(3)The Regulator may issue a direction requiring an undertaking to which this Regulation applies to make changes to a reference offer to give effect to obligations imposed under these Regulations and to publish the reference offer with such changes.
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(4)The Regulator may specify in an obligation referred to in paragraph (1) or (2) or in a direction referred to in paragraph (3) the precise information to be made available, the level of detail required and the manner of publication.
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(5)Notwithstanding paragraph (4), where an undertaking has obligations under Regulation 54 or 55 concerning wholesale access to network infrastructure, the Regulator shall require such undertaking to publish a reference offer taking utmost account of the BEREC guidelines on the minimum criteria for a reference offer issued in accordance with Article 69(4) of the Directive, shall ensure that key performance indicators are specified, where relevant, as well as corresponding service levels, and closely monitor and ensure compliance with them.
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(6)An undertaking that fails to comply with — (a) an obligation imposed under paragraph (1), (b) a requirement imposed under paragraph (2) or (5), or (c) a direction issued under paragraph (3), commits a hybrid offence.
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(7)In proceedings for an offence under paragraph (6) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Obligations of non-discrimination 52. (1) The Regulator may in accordance with Regulation 50 impose on an undertaking obligations of non-discrimination in relation to access or interconnection.
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(2)Any obligations referred to in paragraph (1) shall ensure, in particular, that the undertaking — (a) applies equivalent conditions in equivalent circumstances to other providers of equivalent services, and (b) provides services and information to others under the same conditions and of the same quality as it provides for its own services or those of its subsidiaries or partners.
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(3)The Regulator may impose on an undertaking obligations to supply access products and services to all undertakings, including to itself, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes, in order to ensure equivalence of access.
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(4)An undertaking that fails to comply with an obligation imposed under paragraph (1) or (3) commits a hybrid offence.
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(5)In proceedings for an offence under paragraph (4) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Obligation of accounting separation 53. (1) The Regulator may in accordance with Regulation 50 impose on an undertaking obligations for accounting separation in relation to specified activities related to interconnection or access. In particular, the Regulator may require an undertaking which is vertically integrated to make transparent its wholesale prices and its internal transfer prices, inter alia, to ensure compliance with any obligation imposed under Regulation 52 or, where necessary, to prevent unfair cross-subsidy.
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(2)For the purpose of paragraph (1) the Regulator may specify the format and accounting methodology to be used.
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(3)A requirement upon an undertaking under Regulation 98 may, in order to facilitate the verification of compliance by an undertaking with any obligations of transparency under Regulation 51, and non-discrimination under Regulation 52, include a requirement that accounting records, including data on revenue records received from third parties, are provided by any such undertaking to the Regulator on request.
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(4)Subject to the protection of the confidentiality of any information which the Regulator considers confidential, the Regulator may publish any information obtained by it under paragraph (3) to the extent that the Regulator considers that such information would contribute to an open and competitive market.
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(5)An undertaking that fails to comply with an obligation or requirement imposed under paragraph (1) commits a hybrid offence.
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(6)In proceedings for an offence under paragraph (5) it is a defence for the undertaking to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Access to civil engineering 54. (1) Where, as a result of a market analysis carried out in accordance with Regulation 49, the Regulator concludes that denial of access or access given under unreasonable terms and conditions having a similar effect, would hinder the emergence of a sustainable competitive market and would not be in the end-user’s interest, the Regulator may, in accordance with Regulation 50, impose obligations on an undertaking to meet reasonable requests for access to, and use of, civil engineering including, but not limited to, buildings or entries to buildings, building cables, including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets.
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(2)The Regulator may impose obligations on an undertaking to provide access in accordance with paragraph (1), irrespective of whether the assets that are affected by the obligation are part of the relevant market in accordance with the market analysis, provided that the obligation is necessary and proportionate to meet the objectives of Regulation 4.
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(3)An undertaking that fails to comply with an obligation imposed under paragraph (1) commits a hybrid offence.
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(4)In proceedings for an offence under paragraph (3) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Obligations of access to, and use of, specific network elements and associated facilities 55. (1) The Regulator may in accordance with Regulation 50 impose on an undertaking obligations to meet reasonable requests for access to, and use of, specific network elements and associated facilities in situations where the Regulator considers that the denial of such access or the imposition by undertakings of unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, and would not be in the interests of end-users.
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(2)The Regulator may require an undertaking, inter alia — (a) to give third parties access to and use of, specific physical network elements and associated facilities, as appropriate, including unbundled access to the local loop and sub-loop, (b) to give third parties access to specific active or virtual network elements and services, (c) to negotiate in good faith with undertakings requesting access, (d) not to withdraw access to facilities already granted, (e) to provide specific services on a wholesale basis for resale by third parties, (f) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services, (g) to provide co-location or other forms of associated facilities sharing, (h) to provide specific services needed to ensure interoperability of end-to-end services to users, or roaming on mobile networks, (i) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services, (j) to interconnect networks or network facilities, or (k) to provide access to associated services such as identity, location and presence service.
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(3)The Regulator may subject an obligation imposed under paragraph (1) or a requirement imposed under paragraph (2) to conditions covering fairness, reasonableness and timeliness.
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(4)Where the Regulator considers the appropriateness of imposing an obligation under paragraph (1) or a requirement under paragraph (2) and, in particular, where it assesses, in accordance with the principle of proportionality, whether and how such obligations are to be imposed, the Regulator shall analyse whether other forms of access to wholesale inputs, either on the same or on a related wholesale market, would be sufficient to address the identified problem in the end-user’s interest. That assessment shall include commercial access offers, regulated access pursuant to Regulation 42, or existing or planned regulated access to other wholesale inputs pursuant to this Regulation. The Regulator shall take account in particular of the following factors — (a) the technical and economic viability of using or installing competing facilities, in light of the rate of market development, taking into account the nature and type of access or interconnection involved, including the viability of other upstream access products such as access to ducts, (b) the expected technological evolution affecting network design and management, (c) the need to ensure technology neutrality enabling the parties to design and manage their own networks, (d) the feasibility of providing the access offered in relation to the capacity available, (e) the initial investment by the facility owner taking account of any public investment made and the risks involved in making the investment, with particular regard to investments in, and risk levels associated with, very-high-capacity networks, (f) the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition and innovative business models that support sustainable competition, such as those based on co-investment in networks, (g) where appropriate, any relevant intellectual property rights, and (h) the provision of pan-European services.
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(5)Where the Regulator considers in accordance with Regulation 50, imposing obligations on the basis of Regulation 54 or this Regulation, it shall examine whether the imposition of obligations in accordance with Regulation 54 alone would be a proportionate means by which to promote competition and the end-user’s interest.
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(6)When imposing obligations on an undertaking to provide access in accordance with this Regulation the Regulator may lay down technical or operational conditions to be met by the provider or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications as laid down in accordance with Regulation 23.
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(7)An undertaking that fails to comply with — (a) an obligation imposed under paragraph (1), (b) a requirement imposed under paragraph (2), or (c) a condition attached to an obligation under paragraph (3), commits a hybrid offence.
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(8)In proceedings for an offence under paragraph (7) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Price control and cost accounting obligations 56. (1) The Regulator may in accordance with Regulation 50 impose on an undertaking obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection or access, in situations where a market analysis indicates that a lack of effective competition means that the undertaking concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users.
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(2)In determining whether price control obligations would be appropriate, the Regulator shall take into account the need to promote competition and long-term end-user interests related to the deployment and take-up of next-generation networks, and in particular of very-high-capacity networks. In particular, to encourage investments by the undertaking, including in next generation networks, the Regulator shall, when considering the imposition of obligations under paragraph (1), take into account the investment made by the undertaking which the Regulator considers relevant. Where the Regulator considers price control obligations to be appropriate, it shall allow the undertaking a reasonable rate of return on adequate capital employed, taking into account any risks involved specific to a particular new investment network project.
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(3)The Regulator shall consider not imposing or maintaining obligations pursuant to this Regulation, where it establishes that a demonstrable retail price constraint is present and that any obligations imposed in accordance with Regulations 51 to 55, including, in particular, any economic replicability test imposed in accordance with Regulation 52, ensures effective and non-discriminatory access.
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(4)When the Regulator considers it appropriate to impose price control obligations on access to existing network elements, it shall also take account of the benefits of predictable and stable wholesale prices in ensuring efficient market entry and sufficient incentives for all undertakings to deploy new and enhanced networks.
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(5)The Regulator shall ensure that any cost recovery mechanism or pricing methodology that it imposes under this Regulation serves to promote the deployment of new and enhanced networks, efficiency and sustainable competition and maximises sustainable end-user benefits. In this regard, the Regulator may also take account of prices available in comparable competitive markets.
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(6)Where an undertaking has an obligation under this Regulation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs, including a reasonable rate of return on investment shall lie with the undertaking concerned. For the purpose of calculating the cost of efficient provision of services, the Regulator may use cost accounting methods independent of those used by the undertaking. The Regulator may issue a direction requiring an undertaking to provide full justification for its prices and may, where appropriate, require prices to be adjusted.
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(7)The Regulator shall ensure that, where implementation of a cost accounting system is imposed under this Regulation in order to support price control, a description of the cost accounting system is made publicly available showing at least the main categories under which costs are grouped and the rules used for the allocation of costs. Compliance with the cost accounting system shall, at the choice of the Regulator, be verified by the Regulator or by a suitably qualified independent body.
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(8)The Regulator shall cause to be published annually a statement concerning compliance with any cost accounting system imposed under this Regulation.
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(9)An undertaking that fails to comply with — (a) an obligation imposed under paragraph (1), or (b) a direction issued under paragraph (6), commits a hybrid offence.
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(10)In proceedings for an offence under paragraph (9) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Termination rates 57. (1) Where the European Commission decides, following a review in accordance with Article 75(2) of the Directive, not to impose a maximum mobile voice termination rate or a maximum fixed voice termination rate, or neither, the Regulator may conduct market analyses of voice termination markets in accordance with Regulation 49, to assess whether the imposition of regulatory obligations is necessary.
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(2)If the Regulator imposes cost-oriented termination rates as a result of a market analysis referred to in paragraph (1), it shall follow the principles, criteria and parameters set out in Schedule 2 and its draft measure shall be subject to the procedures referred to in Regulations 17, 18 and 101.
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(3)The Regulator shall closely monitor, and ensure compliance by providers of voice termination services, with the application of the European Union-wide voice termination rates set in accordance with Article 75(1) of the Directive.
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(4)A provider of mobile or fixed voice termination services shall comply with Article 3 of Commission Delegated Regulation (EU) 2021/654 of 18 December 20203 .
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(5)A provider of mobile or fixed voice termination services who contravenes paragraph (4) commits a hybrid offence.
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(6)The Regulator shall annually report to the Commission and to BEREC with regard to the application of this Regulation.
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Regulatory treatment of new very-high-capacity network elements 58. (1) An undertaking which has been designated as having significant market power in one or several relevant markets in accordance with Regulation 49 may offer commitments to the Regulator, in accordance with the procedure set out in Regulation 61 and subject to paragraph (2), to open the deployment of a new very-high-capacity network that consists of optical fibre elements up to the end-user premises or base station to co-investment, for example by offering co-ownership or long-term risk sharing through co-financing or through purchase agreements giving rise to specific rights of a structural character by other providers of electronic communications networks or services.
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(2)When the Regulator assesses commitments offered by an undertaking in accordance with paragraph (1), it shall determine, in particular, whether the offer to co-invest complies with all of the following conditions: (a) it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services; (b) it would allow other co-investors which are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active, on terms which include: (i) fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment; (ii) flexibility in terms of the value and timing of the participation of each co-investor; (iii) the possibility to increase such participation in the future; and (iv) reciprocal rights awarded by the co-investors after the deployment of the co-invested infrastructure; (c) it is made public by the undertaking in a timely manner and, if the undertaking does not have the characteristics listed in Regulation 62(1), at least six months before the start of the deployment of the new network; that period may be prolonged by the Regulator based on relevant circumstances; (d) access seekers not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the deployment, accompanied by a mechanism of adaptation over time confirmed by the Regulator in light of developments on the related retail markets, that maintains the incentives to participate in the co-investment; such mechanism shall ensure that access seekers have access to the very-high-capacity elements of the network at a time, and on the basis of transparent and non-discriminatory terms, which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the deployment and take into account the competitive situation in retail markets; (e) it complies at a minimum with the criteria set out in Schedule 3 and is made in good faith.
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In carrying out its assessment and making its determination in accordance with this paragraph, the Regulator shall also take utmost account of guidelines published by BEREC in accordance with Article 76(4) of the Directive.
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(3)If the Regulator concludes, taking into account the results of the market test conducted in accordance with Regulation 61(3) to (6), that the co-investment commitment offered complies with the conditions set out in paragraph (2), it shall make that commitment binding pursuant to Regulation 61(7) to (11), and shall not impose any additional obligations pursuant to Regulation 50 as regards the elements of the new very-high-capacity network that are subject to the commitments, if at least one potential co-investor has entered into a co-investment agreement with the undertaking designated as having significant market power.
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(4)Paragraph (3) shall be without prejudice to the regulatory treatment of circumstances that do not comply with the conditions set out in paragraph (2) of this Regulation, taking into account the results of any market test conducted in accordance with Regulation 61(3) to (6), but that have an impact on competition and are taken into account for the purposes of Regulations 49 and 50.
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(5)Notwithstanding paragraph (3), the Regulator may, in duly justified circumstances, impose, maintain or adapt remedies in accordance with Regulations 50 to 56 as regards new very-high-capacity networks in order to address significant competition problems on specific markets, where the Regulator establishes that, given the specific characteristics of these markets, those competition problems would not otherwise be addressed.
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(6)The Regulator shall, on an ongoing basis, monitor compliance with the conditions set out in paragraph (2) and may require the undertaking designated as having significant market power to provide it with annual compliance statements.
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(7)This Regulation is without prejudice to the power of the Regulator to take decisions pursuant to Regulation 67(2) in the event of a dispute arising between undertakings in connection with a co-investment agreement considered by it to comply with the conditions set out in paragraph (2).
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(8)When carrying out its tasks under these Regulations relating to very- high-capacity networks, the Regulator shall take into utmost account any guidelines issued by BEREC in accordance with Article 82 of the Directive.
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Functional separation 59. (1) Where the Regulator concludes — (a) that the appropriate obligations imposed under Regulations 51 to 56 have failed to achieve effective competition, and (b) that there are important and persisting competition problems or market failures identified in relation to the wholesale provision of certain access product markets, it may, on an exceptional basis, in accordance with Regulation 50(4), impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in a business entity operating independently.
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(2)The independently operating business entity referred to in paragraph (1) shall supply access products and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.
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(3)Where the Regulator intends to impose an obligation of functional separation under this Regulation, it shall submit a request to the European Commission that includes — (a) evidence justifying the conclusions of the Regulator as referred to in paragraph (1), (b) a reasoned assessment concluding that there is no or little prospect of effective and sustainable infrastructure-based competition within a reasonable timeframe, (c) an analysis of the expected impact — (i) on the Regulator, (ii) on the undertaking concerned, in particular on the workforce of the separated undertaking, (iii) on the electronic communications sector as a whole, and on incentives to invest therein, in particular with regard to the need to ensure social and territorial cohesion, and (iv) on other stakeholders including, in particular, the expected impact on competition and any potential resulting effects on consumers, and (d) an analysis of the reasons justifying that this obligation would be the most efficient means to enforce remedies aimed at addressing the competition problems or the market failures identified.
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(4)The draft measure shall include the following elements — (a) the precise nature and level of separation specifying, in particular, the legal status of the separate business entity, (b) an identification of the assets of the separate business entity and the products or services to be supplied by that entity, (c) the governance arrangements to ensure the independence of the staff employed by the separate business entity, and the corresponding incentive structure, (d) rules for ensuring compliance with the obligations, (e) rules for ensuring transparency of operational procedures, in particular, towards other stakeholders, and (f) a monitoring programme to ensure compliance, including the publication of an annual report.
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(5)Following the European Commission’s decision taken in accordance with Article 68(3) of the Directive on that draft measure, the Regulator shall conduct a coordinated analysis of the different markets related to the access network in accordance with the procedure set out in Regulation 49. On the basis of that analysis, the Regulator shall impose, maintain, amend or withdraw obligations, in accordance with the procedures set out in Regulations 17 and 101.
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(6)Where the Regulator has imposed an obligation under paragraph (1) on an undertaking, it may also impose on the undertaking any of the obligations referred to in Regulations 51 to 56, in any specific market where the undertaking has been designated as having significant market power in accordance with Regulation 49, or any other obligations authorised by the European Commission under Article 68(3).
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(7)An undertaking that fails to comply with an obligation imposed under paragraph (1) commits a hybrid offence.
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(8)In proceedings for an offence under paragraph (7) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Voluntary separation by vertically integrated undertaking 60. (1) An undertaking which has been designated as having significant market power in one or several relevant markets in accordance with Regulation 49 shall notify the Regulator at least three months before any intended transfer of their local access network assets or substantial part thereof to a separate legal entity under different ownership, or establishment of a separate business entity in order to provide all retail providers, including its own retail divisions, with fully equivalent access products.
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(2)An undertaking referred to in paragraph (1) shall also inform the Regulator of any change of intent notified under that paragraph within 6 weeks of the change of intent, as well as the final outcome of the process of separation within 6 weeks of the separation.
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(3)An undertaking referred to in paragraph (1) may also offer commitments regarding access conditions that are to apply to their network during an implementation period after the proposed form of separation is implemented, with a view to ensuring effective and non-discriminatory access by third parties. The offer of commitments shall include sufficient details, including in terms of timing of implementation and duration, in order to allow the Regulator to conduct its tasks in accordance with paragraph (4). Such commitments may extend beyond the maximum period for market reviews set out in Regulation 49(9).
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(4)(a) The Regulator shall assess the effect of the intended transaction, together with the commitments offered, where applicable, on existing regulatory obligations under these Regulations. For that purpose, the Regulator shall conduct an analysis of the different markets related to the access network in accordance with the procedure set out in Regulation 49. (b) The Regulator shall take into account any commitments offered by the undertaking, having regard in particular to the objectives set out in Regulation 4. In so doing, the Regulator shall consult third parties in accordance with Regulation 101, and shall address, in particular, those third parties which are directly affected by the intended transaction. (c) On the basis of its analysis, the Regulator shall impose, maintain, amend or withdraw obligations in accordance with the procedures set out in Regulations 17 and 101, applying, if appropriate, Regulation 62. In its decision, the Regulator may make the commitments binding, wholly or in part. Notwithstanding Regulation 49(9), the Regulator may make the commitments binding, wholly or in part, for the entire period for which they are offered.
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(5)Without prejudice to Regulation 62, the Regulator may impose on the legally or operationally separate business entity any of the obligations referred to in Regulations 51 to 56 in any specific market where it has been designated as having significant market power in accordance with Regulation 49, or any other obligations authorised by the European Commission under Article 68(3) of the Directive where any commitments offered are insufficient to meet the objectives set out in Regulation 4 and section 12 of the Act.
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(6)The Regulator shall monitor the implementation of the commitments offered by the undertakings that it has made binding in accordance with paragraph (4) and shall consider their extension before the period for which they are initially offered has expired.
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(7)An undertaking that fails to comply with a requirement of paragraph (1) or (2) commits an offence and is liable on summary conviction to a class A fine.
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(8)In proceedings for an offence under paragraph (7) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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Commitments procedure 61. (1) An undertaking designated as having significant market power in one or several relevant markets in accordance with Regulation 49, may offer commitments to the Regulator regarding conditions for access, co-investment, or both, applicable to its networks in relation, inter alia, to — (a) cooperative arrangements relevant to the assessment of appropriate and proportionate obligations pursuant to Regulation 50, (b) co-investment in very-high-capacity networks pursuant to Regulation 58, or (c) effective and non-discriminatory access by third parties pursuant to Regulation 60, both during an implementation period of voluntary separation by a vertically integrated undertaking and after the proposed form of separation is implemented.
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(2)The offer for commitments referred to in paragraph (1) shall be sufficiently detailed including as to the timing and scope of their implementation and their duration, to allow the Regulator to undertake its assessment pursuant to paragraph (3). Such commitments may extend beyond the periods for carrying out market analysis provided in Regulation 49(9).
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(3)In order to assess any commitments offered by an undertaking pursuant to paragraph (1), the Regulator shall, except where such commitments clearly do not fulfil one or more relevant conditions or criteria, perform a market test, in particular on the offered terms, by conducting a public consultation of interested parties, in particular third parties which are directly affected. Potential co-investors or access seekers may provide views on the compliance of the commitments offered with the conditions provided, as applicable, in Regulation 50, 58 or 60 and may propose changes.
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(4)As regards the commitments offered under this Regulation, the Regulator shall, when assessing obligations pursuant to Regulation 50(5), have particular regard to: (a) evidence regarding the fair and reasonable character of the commitments offered; (b) the openness of the commitments to all market participants; (c) the timely availability of access under fair, reasonable and non-discriminatory conditions, including to very-high-capacity networks, before the launch of related retail services; and (d) the overall adequacy of the commitments offered to enable sustainable competition on downstream markets and to facilitate cooperative deployment and take-up of very-high-capacity networks in the interest of end-users.
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(5)Taking into account all the views expressed in the consultation referred to in paragraph (3), and the extent to which such views are representative of different stakeholders, the Regulator shall communicate to the undertaking designated as having significant market power its preliminary conclusions whether the commitments offered in accordance with paragraph (1) comply with the objectives, criteria and procedures set out in this Regulation and, as applicable, in Regulation 50, 58 or 60, and under which conditions it may consider making the commitments binding.
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(6)Following the communication referred to in paragraph (5), the undertaking may revise its initial offer to take account of the preliminary conclusions of the Regulator and with a view to satisfying the criteria set out in this Regulation and, as applicable, in Regulation 50, 58 or 60.
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(7)Without prejudice to Regulation 58(3), the Regulator may issue a decision to make the commitments binding, wholly or in part.
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(8)Notwithstanding Regulation 49(9), the Regulator may make some or all commitments binding for a specific period, which may be the entire period for which they are offered, and in the case of co-investment commitments made binding pursuant to Regulation 58(3), it shall make them binding for a minimum period of seven years.
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(9)Subject to Regulation 58, this Regulation is without prejudice to the application of the market analysis procedure pursuant to Regulation 49 and the imposition of obligations pursuant to Regulation 50.
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(10)Where the Regulator makes commitments binding pursuant to this Regulation, it shall assess under Regulation 50 the consequences of that decision for market development and the appropriateness of any obligation that it has imposed or would, absent those commitments, have considered imposing pursuant to Regulations 50 to 56.
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(11)When notifying the relevant draft measure under Regulation 50 in accordance with Regulation 17, the Regulator shall accompany the notified draft measure with the commitments decision.
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(12)The Regulator shall monitor, supervise and ensure compliance with the commitments that it has made binding in accordance with paragraph (7) in the same way in which it monitors, supervises and ensures compliance with obligations imposed under Regulation 50 and shall consider the extension of the period for which they have been made binding before the initial period expires.
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(13)An undertaking shall comply with commitments that have been made binding in accordance with paragraph (7).
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(14)Without prejudice to paragraph (13), the Regulator may reassess the obligations imposed in accordance with Regulation 50(7).
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(15)An undertaking that fails to comply with a commitment made binding in accordance with paragraph (7) commits a hybrid offence.
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Wholesale-only undertakings 62. (1) Where the Regulator designates an undertaking which is absent from any retail markets for electronic communications services as having significant market power in one or several wholesale markets in accordance with Regulation 49, it shall consider whether that undertaking has the following characteristics: (a) all companies and business units within the undertaking, all companies that are controlled but not necessarily wholly owned by the same ultimate owner, and any shareholder capable of exercising control over the undertaking, only have activities, current and planned for the future, in wholesale markets for electronic communications services and therefore do not have activities in any retail market for electronic communications services provided to end-users in the European Union; (b) the undertaking is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which de facto amounts to an exclusive agreement.
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(2)If the Regulator concludes that the conditions laid down in paragraph (1) of this Regulation are fulfilled, it may impose on that undertaking only obligations pursuant to Regulations 52 and 55 or relative to fair and reasonable pricing if justified on the basis of a market analysis including a prospective assessment of the likely behaviour of the undertaking designated as having significant market power.
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(3)The Regulator shall review obligations imposed on the undertaking in accordance with this Regulation at any time if it concludes that the conditions laid down in paragraph (1) of this Regulation are no longer met and it shall, as appropriate, apply Regulations 49 to 56.
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(4)The Regulator shall also review obligations imposed on the undertaking in accordance with this Regulation if, on the basis of evidence of terms and conditions offered by the undertaking to its downstream customers, it concludes that competition problems have arisen or are likely to arise to the detriment of end-users which require the imposition of one or more obligations provided in Regulation 51, 53, 54 or 56, or the amendment of the obligations imposed in accordance with paragraph (2).
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(5)The imposition of obligations and their review in accordance with this Regulation shall be implemented in accordance with the procedures referred to in Regulations 17, 18 and 101.
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(6)Undertakings shall, without undue delay, inform the Regulator of any change of circumstances relevant to subparagraphs (a) and (b) of paragraph (1).
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Migration from legacy infrastructure 63. (1) An undertaking which has been designated by the Regulator as having significant market power in one or several relevant markets in accordance with Regulation 49 (“an SMP undertaking”) shall notify the Regulator in advance and in a timely manner of when it plans to decommission or replace with a new infrastructure parts of the network, including legacy infrastructure necessary to operate a copper network, which are subject to obligations pursuant to Regulations 50 to 62.
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(2)The SMP undertaking referred to in paragraph (1) shall, prior to any decommissioning or replacement of legacy infrastructure, submit a decommissioning or replacement process, as appropriate, to the Regulator, which the Regulator shall ensure — (a) includes a transparent timetable and conditions, including an appropriate notice period for transition, and (b) establishes the availability of alternative products of at least comparable quality providing access to the upgraded network infrastructure substituting the replaced elements, that in the opinion of the Regulator, are necessary to safeguard competition and the rights of end-users.
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(3)The Regulator may specify the requirements to be complied with by an SMP undertaking for the purposes of paragraphs (1) and (2).
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(4)With regard to assets which are proposed for decommissioning or replacement, the Regulator may withdraw the obligations after having ascertained that the SMP undertaking: (a) has established the appropriate conditions for migration, including making available an alternative access product of at least comparable quality as was available using the legacy infrastructure enabling access seekers to reach the same end-users; and (b) has complied with the conditions and process notified to the Regulator in accordance with this Regulation.
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Such withdrawal shall be implemented in accordance with the procedures referred to in Regulations 17, 18 and 101.
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(5)This Regulation shall be without prejudice to the availability of regulated products imposed by the Regulator on the upgraded network infrastructure in accordance with the procedures set out in Regulations 49 and 50.
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(6)An undertaking that fails to — (a) provide notification in accordance with paragraph (1), or (b) comply with a requirement specified by the Regulator under paragraph (3), commits an offence and is liable on summary conviction to a class A fine.
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CHAPTER 5
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Regulatory control of retail services Regulatory control of retail services 64. (1) Where the Regulator — (a) determines, as a result of market analysis carried out by it in accordance with Regulation 49 that a given retail market identified in accordance with Regulation 46(1) is not effectively competitive, and (b) concludes that the obligations imposed under Regulations 51 to 56 would not result in the achievement of the objectives set out in section 12 of the Act of 2002 and Regulation 4, the Regulator shall impose such obligations, as it considers appropriate to achieve those objectives, on undertakings identified by the Regulator under Regulation 49(9), as having significant market power on a given retail market.
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(2)Any obligations imposed by the Regulator under paragraph (1) shall be based on the nature of the problem identified under the market analysis and be proportionate and justified in the light of the objectives set out in section 12 of the Act of 2002 and Regulation 4, and may include requirements to ensure that the undertaking concerned does not — (a) charge excessive prices, (b) inhibit market entry or restrict competition by setting predatory prices, (c) show undue preference to specific end-users, or (d) unreasonably bundle services.
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(3)The Regulator may require an undertaking to which paragraph (1) applies to comply with — (a) measures to control individual tariffs, (b) retail price cap measures, or (c) measures to orient tariffs towards costs or prices on comparable markets, in order to protect end-users’ interests whilst promoting effective competition.
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(4)An undertaking that is subject to retail tariff regulation or other relevant retail controls shall operate and maintain a cost accounting system that is— (a) based on generally accepted accounting practices, (b) suitable for ensuring compliance with this Regulation, and (c) capable of verification by the Regulator or a suitably qualified independent person nominated by the Regulator.
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(5)The Regulator may specify the format and accounting methodology to be used by an undertaking to which paragraph (4) applies.
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(6)Compliance by an undertaking with a cost accounting system referred to in paragraph (4) shall be verified by a qualified independent person.
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(7)An undertaking to which paragraph (4) applies shall publish in its annual accounts a statement concerning compliance by it with a cost accounting system referred to in that paragraph.
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(8)Without prejudice to Regulations 71 and 74, the Regulator shall not apply retail control mechanisms under paragraph (1) in a relevant market in relation to which the Regulator is satisfied that effective competition exists.
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(9)An undertaking that fails to comply with (a) an obligation imposed under paragraph (1), or (b) a requirement imposed under paragraph (3), commits an offence and is liable on summary conviction to a class A fine.
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(10)An undertaking that fails to comply with the requirements of paragraph (4) or (7) commits an offence and is liable on summary conviction to a class A fine.
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(11)In proceedings for an offence under paragraph (9) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
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CHAPTER 6
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Publication of information – access obligations Publication of notice of obligations and access to information 65. (1) The Regulator shall cause to be published on its website notice of the imposition of the obligations imposed under this Part. Such notice shall include information on where copies of a statement of the obligations imposed can be obtained.
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(2)Where the Regulator amends or revokes an obligation imposed under this Part, it shall publish a notice referred to in paragraph (1).
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(3)The notice referred to in paragraph (1) shall identify the specific product, service and geographical markets in respect of which the obligations are imposed.
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(4)The Regulator shall ensure, subject to the need to protect commercial confidentiality, that the information published under paragraph (1) is up to date and is made publicly available in a manner that guarantees all interested parties easy access to that information.
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(5)The Regulator shall provide the European Commission with information published in accordance with this Regulation.
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CHAPTER 7
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Notification and monitoring – undertakings with significant market power Notification of undertakings designated as having significant market power 66. (1) The Regulator shall notify the European Commission of the names of undertakings deemed to have significant market power for the purpose of these Regulations and the obligations imposed upon them under these Regulations.
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(2)The Regulator shall notify the European Commission of any changes affecting these obligations imposed upon undertakings referred to in paragraph (1) by or under these Regulations and of any changes to such undertakings affected as soon as practicable after any such change.
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CHAPTER 8
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Dispute resolution between undertakings Dispute resolution between undertakings 67. (1) This Regulation applies to disputes — (a) arising between providers of electronic communications networks or services in the State, in connection with existing obligations under these Regulations, (b) between such undertakings and other undertakings benefiting from obligations of access or interconnection arising under the Directive and under these Regulations, or (c) between providers of electronic communications networks or services and providers of associated facilities in connection with existing obligations under the Directive and under these Regulations.
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(2)Where a dispute is referred to the Regulator in accordance with paragraph (1) and the Regulator has decided that it is appropriate for it to handle the dispute, the Regulator shall, subject to paragraph (4), at the request of either party, initiate an investigation of the dispute and as soon as possible but, except in circumstances which the Regulator considers exceptional, within 4 months from the date of the decision of the Regulator that it is appropriate for it to handle the dispute, make a binding determination to resolve the dispute. The Regulator shall provide the parties concerned with a full statement of the reasons on which its determination is based.
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(3)The Regulator shall publish clear and efficient dispute resolution procedures and shall ensure that all investigations and determinations are handled in accordance with those procedures.
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(4)The Regulator may decide not to initiate an investigation referred to in paragraph (2) where it is satisfied that other mechanisms, including mediation, are available to the parties that would better contribute to resolution of the dispute in a timely manner in accordance with the objectives set out in Regulation 4, or if legal proceedings in relation to the dispute have been initiated by either party.
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(5)Where the Regulator decides, under paragraph (4), not to initiate an investigation it shall inform the parties of such decision as soon as possible thereafter and the notification shall include the reasons for its decision.
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(6)If after the expiry of 4 months from the date of a decision referred to in paragraph (4) the dispute is not resolved and legal proceedings by either party in relation to the dispute are not in progress, the Regulator shall at the request of either party initiate an investigation and make a determination in accordance with paragraph (2).
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(7)In making a determination under this Regulation the Regulator shall have regard to its objectives under section 12 of the Act of 2002 and Regulation 4.
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(8)An undertaking to which a determination under this Regulation applies shall comply with the determination applicable to it.
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(9)An undertaking that — (a) fails to cooperate with an investigation under this Regulation, or (b) fails to comply with a determination made under this Regulation, commits an offence and is liable on summary conviction to a class A fine.
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(10)Any obligations imposed on an undertaking by the Regulator in resolving a dispute shall respect the Directive, these Regulations and the relevant provisions of the Act of 2002.
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(11)The Regulator, having regard to the requirements of commercial confidentiality, shall publish a notice of a determination under this Regulation and the notice shall indicate where copies of, or information regarding, the determination may be obtained.
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(12)The procedure referred to in this Regulation does not preclude either party from bringing an action before the courts and is without prejudice to the right to bring an appeal.
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Resolution of cross-border disputes 68. (1) In the event of a dispute arising under these Regulations, or under the Directive between undertakings in different Member States, paragraphs (2) to (4) shall apply. Those provisions shall not apply to disputes relating to radio spectrum coordination covered by Regulation 16.
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(2)Any party may refer such a dispute to the Regulator or to the other national regulatory authority or authorities concerned. Where the dispute affects trade between Member States the Regulator shall notify the dispute to BEREC in order to bring about a consistent resolution of the dispute in accordance with the objectives set out in Regulation 4.
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(3)Where a notification is made by the Regulator in accordance with paragraph (2), the Regulator shall await the opinion of BEREC before taking any action to resolve the dispute. In exceptional circumstances, where there is an urgent need to act, in order to safeguard competition or protect the interests of end-users, the Regulator may, either at the request of the parties or on its own initiative, adopt interim measures. Any interim measures adopted shall cease where the Regulator is satisfied that the dispute is resolved.
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(4)Any obligations imposed by the Regulator on an undertaking as part of the resolution of a dispute shall comply with the provisions of the Directive, take the utmost account of the opinion adopted by BEREC and be adopted within one month of such opinion. Where the Regulator makes a determination for the purpose of resolving a dispute under this Regulation paragraphs (8) to (12) of Regulation 67 shall apply.
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Part 9
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UNIVERSAL SERVICE OBLIGATIONS Definition (Part 9) 69. In this Part “adequate broadband” means the adequate broadband internet access service defined by the Minister under Regulation 70(2).
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Affordable universal service Designation 70. (1) An undertaking designated as having a universal service obligation in accordance with Regulation 72(3) shall, as appropriate to the specific obligation for which it has been designated, satisfy any reasonable request by a consumer, microenterprise, small enterprise, medium-sized enterprise or not-for-profit organisation for access, in the case of the service the subject of the designation, to either or both — (a) adequate broadband, in accordance with paragraph (2), made available to the consumer, or (b) a voice communications service at the quality specified by the Regulator, including the underlying connection, at a fixed location.
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Definition of adequate broadband
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(2)(a) The Minister shall — (i) define adequate broadband for the purpose of these Regulations in accordance with Article 84(3) of the Directive and shall publish any such definition in Iris Oifigiúil and in any other manner as he or she may think fit, and (ii) specify the quality standards applicable to adequate broadband.
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Before making a definition of adequate broadband or specifying the quality standards applicable to it, the Minister may consult with the Regulator. (b) The Minister shall review the quality not later than 5 years after defining adequate broadband and in each 5 year period thereafter.
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Quality of service (voice), terms and conditions, reasonableness
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(3)The Regulator may — (a) specify requirements to be complied with by an undertaking providing voice communication services in accordance with paragraph (1), including the quality standards to be provided and the terms and conditions upon which the connection at a fixed location is to be provided, and (b) with the consent of the Minister, specify requirements to be complied with by an undertaking providing — (i) adequate broadband in accordance with paragraph (1), regarding the terms and conditions upon which the connection at a fixed location is to be provided, and (ii) adequate broadband or voice communications service in accordance with paragraph (1) in relation to the reasonableness of requests for connection at a fixed location to these services.
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Voice only connection
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(4)Where a consumer, enterprise or organisation so requests, the connection referred to in paragraph (1)(b) shall be limited to support voice communications services.
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Denial of access to universal service
\n
(5)Where an undertaking designated in accordance with Regulation 72(3) denies any request for access made under paragraph (1) on the basis that it is an unreasonable request, it shall inform the person making the request of the reasons the request was unreasonable in its view and the person’s right to pursue dispute resolution procedures.
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Enforcement
\n
(6)An undertaking providing a service referred to in paragraph (1) that fails to comply with — (a) a request under paragraph (1) or (4), (b) a requirement imposed by the Regulator in accordance with paragraph (3), or (c) an obligation under paragraph (5), commits an offence and is liable on summary conviction to a class A fine.
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(7)In proceedings for an offence under paragraph (6)(b) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.
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Provision of affordable universal service 71. (1) The Regulator shall regularly monitor the evolution and level of retail prices of adequate broadband and of voice communications services, in particular in relation to national consumer prices and income (including affordability for consumers), and shall report to the Minister on a regular basis on these matters or when requested by the Minister to do so.
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(2)Where the Minister considers that retail prices for adequate broadband or for voice communications services are not affordable or are likely to become unaffordable, because consumers with a low income or special social needs may be prevented from accessing such services, the Minister may require the Regulator, in light of conditions in the State, to impose measures to be complied with by relevant undertakings to ensure affordability for such consumers of adequate broadband or voice communications services at least at a fixed location.
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(3)The Regulator may, where required by the Minister under paragraph (2), impose measures requiring relevant undertakings to — (a) offer to consumers with a low income or special social needs tariff options or packages different from those provided under normal commercial conditions, or (b) apply common tariffs including geographical averaging throughout the State, in the light of national conditions.
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(4)Where the Regulator considers that any of the services referred to in paragraph (2) have become affordable it may request the Minister to allow it to withdraw any requirement under that paragraph.
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(5)In exceptional circumstances, where the Regulator considers that the imposition of measures referred to in paragraph (2) on all providers would result in a demonstrated excessive administrative or financial burden for providers of the service, the Regulator may decide to impose the obligation to offer those specific tariff options or packages to consumers with a low income or special social needs, only on such undertakings designated by the Regulator. Regulation 72 shall apply to such designations mutatis mutandis.
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(6)Where the Regulator designates undertakings in accordance with paragraph (5), it shall ensure that all consumers with a low-income or special social needs benefit from a choice of undertakings offering tariff options addressing their needs, unless ensuring such choice is impossible or would create an excessive additional organisational or financial burden.
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(7)Consumers entitled to the tariff options or packages referred to in paragraph (3) or (5) have a right to conclude a contract either with a provider of adequate broadband or a provider of voice communications services or with an undertaking designated in accordance with paragraph (5), and such providers and undertakings shall ensure that consumers’ numbers remain available to them for an adequate period and unwarranted disconnection of their service is avoided.
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(8)Undertakings which provide tariff options or packages to consumers with a low income or special social needs pursuant to paragraph (3) or (5) shall keep the Regulator informed of the details of such offers. The Regulator may specify requirements with regard to the timing and format of the provision of information to it in accordance with this paragraph.
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(9)The conditions of any scheme to provide special tariff options or packages, common tariffs, including geographical averaging, shall be fully transparent and shall be published and applied in accordance with the principle of non-discrimination. The Regulator may require, where it considers a scheme does not comply with this paragraph, that the scheme be modified or withdrawn.
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(10)The Regulator shall, with regard to consumers with disabilities and in consultation with the Minister, take appropriate measures with a view to ensuring that related terminal equipment, and specific equipment and specific services that enhance equivalent access, including where necessary total conversation services and relay services, are available and affordable.
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(11)The Minister and the Regulator shall seek to minimise market distortions when acting pursuant to this Regulation.
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(12)An undertaking that fails to comply with — (a) a measure referred to in paragraph (2) or (10), or (b) an obligation or requirement imposed under paragraph (5), (8) or (9), commits an offence and is liable on summary conviction to a class A fine.
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(13)In proceedings for an offence under paragraph (12) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.
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Availability of universal service and designation 72. (1) Where the Regulator establishes, taking into account the results, where available, of the geographical survey conducted in accordance with Regulation 100 and any additional evidence it deems necessary, that the availability at a fixed location of adequate broadband or of voice communications services cannot be ensured under normal commercial circumstances in the State or different parts of it, and the Minister is of the opinion that other potential public policy tools cannot ensure access to adequate broadband or to voice communications services in the State or any part of it as identified by the Regulator, then the Regulator may make a designation under paragraph (3) to impose appropriate universal service obligations to meet all reasonable requests by those end-users for accessing such services.
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(2)The Minister, in forming his or her opinion under paragraph (1) shall have regard to Article 86(2) of the Directive.
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(3)The Regulator may designate for such period as it may determine — (a) one or more undertakings to guarantee the availability at a fixed location of either or both of the services referred to in paragraph (1), at the quality specified in Regulation 70, throughout the State, or (b) different undertakings or sets of undertakings, to ensure the availability of such services at a fixed location or to cover different parts of the State.
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(4)In designating an undertaking under paragraph (3), the Regulator shall use an efficient, objective, transparent and non-discriminatory designation mechanism whereby no undertaking is in principle excluded from being designated. The designation methods adopted shall ensure that the services referred to in paragraph (1) are provided in a cost-effective manner and may be used as a means of determining the net cost of the universal service obligation in accordance with Regulation 75.
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(5)Where an undertaking designated in accordance with paragraph (3) intends to dispose of a substantial part or all of its local access network assets to a separate legal entity under different ownership, it shall inform the Regulator at the time of the decision to dispose or 6 months prior to the transaction whichever is the earlier date in order to allow the Regulator to assess the effect of the intended transaction on the provision at a fixed location of the services referred to in paragraph (1). Such notification shall include details as to the effect of the intended transaction on either or both of the services referred to in paragraph (1). The Regulator may impose, amend or withdraw specific obligations on the separate legal entity.
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(6)An undertaking that fails to inform the Regulator in accordance with paragraph (5) commits an offence and is liable on summary conviction to a class A fine.
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(7)In proceedings for an offence under paragraph (6) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.
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Status of existing universal service 73. (1) The Regulator may continue to ensure the availability or affordability of services other than the adequate broadband internet access service as defined in accordance with Regulation 70(2) or voice communications services at a fixed location that were in force on 20 December 2018, if the need for such services is established in light of circumstances in the State.
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(2)The Regulator, with the consent of the Minister, may designate an undertaking to provide the services referred to in paragraph (1) in the State or part of the State.
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(3)Any designation made by the Regulator for the purposes of paragraph (2) shall comply with Regulation 72. Financing of those obligations shall comply with Regulation 76.
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(4)The Regulator shall review the status of universal service obligations referred to in paragraph (1) within three months after the commencement of these Regulations and every three years thereafter.
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Control of expenditure 74. (1) An undertaking designated in accordance with Regulation 72(3) or 73(2) shall, where it provides facilities and services additional to adequate broadband or voice communications services as set out in Regulations 70, 71 and 72 or the continuation of the existing universal service as set out in Regulation 73, establish terms and conditions for the provision of such additional facilities and services in such a way that the end-user is not obliged to pay for facilities or services which are not necessary or not required for the service requested.
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(2)An undertaking designated in accordance with Regulation 72(3) shall — (a) for the purpose of ensuring that consumers can monitor and control expenditure, provide the specific facilities and services set out in Part A of Schedule 5 as applicable, and (b) put in place a system to avoid unwarranted disconnection of voice communications services or of adequate broadband with regard to consumers referred to in Regulation 71, including an appropriate mechanism to check continued interest in using the service.
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(3)Without prejudice to Regulation 97(1), the Regulator may specify the requirements of the specific facilities and services referred to in paragraph (2)(a) and the system and mechanism referred to in paragraph (2)(b).
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(4)Paragraph (1) shall also apply to end-users that are microenterprises and small and medium-sized enterprises and not-for-profit organisations.
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(5)The Regulator may waive any requirement imposed under paragraph (2) in relation to all or any part of the State if it is satisfied that the relevant facility or service is widely available in, or in any part of, the State.
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(6)A designated undertaking that fails to comply with the requirements of paragraph (1) or (2) commits an offence and is liable on summary conviction to a class A fine.
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(7)In proceedings for an offence under paragraph (6) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.
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Cost of universal service obligations 75. (1) Where, following a request for compensation from a provider, the Regulator considers that the provision of a universal service obligation may represent an unfair burden on the provider, the Regulator shall, in accordance with paragraph (3), calculate the net costs of such provision.
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(2)A request under paragraph (1) shall be accompanied by such supporting information as may be reasonably required by the Regulator for the purpose of paragraph (3). The data may be based on such period as may be specified by the Regulator.
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(3)The Regulator shall calculate the net costs of its provision based on — (a) the net costs, taking into account any market benefit which accrues to a provider designated for — (i) the provision of a universal service obligation, or (ii) the continuation of the existing universal service as set out in Regulation 73, in accordance with Schedule 6, or (b) where applicable, the net costs identified by a designation method in accordance with Regulation 72(4).
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(4)The Regulator shall, on the basis of such information, including information supplied under paragraph (2), as it considers sufficient to enable a determination under this Regulation to be made, determine whether an obligation referred to in paragraph (1) represents an unfair burden on the undertaking concerned.
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(5)The Regulator shall ensure that the principles for net cost calculation, including the details of methodology to be used are publicly available.
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(6)Where the Regulator makes a determination under this Regulation it shall notify the undertaking concerned of that determination together with the reasons for the determination as soon as reasonably practicable after the determination is made.
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(7)The accuracy of the accounts or other information, serving as the basis for the calculation of the net cost of an obligation, shall be audited or verified, as appropriate, by the Regulator or by a body approved of by the Regulator and independent of the undertaking concerned.
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(8)The Regulator shall make publicly available the results of the cost calculations and the conclusions of any audit or verification undertaken under this Regulation.
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(9)A designated undertaking that fails to comply with the requirements of paragraph (2) commits an offence and is liable on summary conviction to a class A fine.
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(10)In proceedings for an offence under paragraph (9) it is a defence for the undertaking charged to show that it took all reasonable steps and exercised due diligence to avoid committing the offence.
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Financing of universal service obligations and transparency 76. (1) Where the Regulator, on the basis of the net cost calculation referred to in Regulation 75, finds that the net cost of meeting an obligation under Regulations 70 to 73 represents an unfair burden on an undertaking it shall, unless the Minster intends to introduce a mechanism to compensate the undertaking for the determined net costs under transparent conditions from public funds, establish a sharing mechanism administered by it or by a body independent from the designated undertakings, which body shall be under the supervision of the Regulator. Only the net cost, as determined in accordance with Regulation 75, of the obligations provided for in Regulations 70 to 73 may be financed.
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(2)Any sharing mechanism established under paragraph (1) shall respect the principles of transparency, least market distortion, non-discrimination and proportionality in accordance with the principles of Part B of Schedule 6. The Regulator may decide not to require contributions from undertakings whose audited national turnover is less than such amount as may, from time to time, be specified by the Regulator, having regard to any views expressed to it under any consultations carried out in accordance with Regulations 101 and 102, as appropriate.
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(3)Any charges related to the sharing of the cost of a universal service obligation shall be unbundled and identified separately for each undertaking.
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(4)The Regulator shall not under this Regulation, impose on, or collect from, an undertaking that is not providing services within the State, any charge.
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(5)The Regulator shall notify each undertaking required to share the cost of a universal service obligation of that undertaking’s obligation to contribute to such cost including the amount, manner and timing of payments to be made.
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(6)An undertaking which has been notified of its obligation to contribute an amount specified by the Regulator under paragraph (5) shall pay that amount in the time and manner specified by the Regulator.
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(7)Any amount payable to the Regulator under this Regulation that remains unpaid may be recovered by the Regulator as a simple contract debt in any court of competent jurisdiction and any such amount shall include interest at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act 1840 on the amount or part of it remaining unpaid in respect of the period between the date when such amount or part of it fell due and the date of payment of such amount or part.
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(8)The Regulator shall, subject to the protection of the confidentiality of any information which it considers confidential, publish an annual report setting out the calculated net cost of universal service obligations, identifying the contributions made by all the undertakings involved and identifying any market benefits that may have accrued to any undertaking designated by the Regulator under Regulation 71, 72 or 73.
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(9)The Regulator shall, subject to the Freedom of Information Act 2014 , accept as confidential any information provided under these Regulations by an undertaking providing electronic communications networks or services expressed by it to be confidential, except where the Regulator has good reason to consider otherwise.
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(10)The Regulator shall publish and make publicly available all information in relation to the principles used for cost sharing, including the details of the mechanism used.
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(11)An undertaking that fails to comply with the requirements of paragraph (6) commits an offence and is liable on summary conviction to a class A fine.
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Additional mandatory services 77. (1) Where the Minister considers that a service additional to those included in the universal service obligations referred to in Regulations 70 to 73 should be made publicly available in, or in any part of, the State, the Minister may request the Regulator to carry out a consultation in accordance with Regulations 101 and 102, as appropriate, on the imposition of an obligation to provide the service.
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(2)Upon conclusion of the consultation in accordance with paragraph (1), the Regulator may, with the consent of the Minister, designate an undertaking or sets of undertakings to provide the service referred to in paragraph (1) in all or part of the State. The Regulator may attach conditions or obligations to any such designation.
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(3)In designating an undertaking under paragraph (2), the Regulator shall adopt an efficient, objective, transparent and non-discriminatory designation mechanism whereby no undertaking is in principle excluded from being designated.
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(4)No compensation mechanism involving specific undertakings shall be imposed in respect of services provided in accordance with this Regulation.
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Notification of universal service obligations 78. The Regulator shall notify to the European Commission, and immediately following any change, the names of undertakings designated as having universal service obligations under Regulation 71(3) or (5), 72(3) or 73(2) and of the universal service obligations imposed.
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Part 10
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ACCESS TO NUMBERS AND SERVICES, AND RELATED PROVISIONS Numbering resources 79. (1) The Regulator shall, subject to ensuring the proper management of the national numbering plan in accordance with its objectives under section 12 of the Act of 2002 and Regulation 4, grant rights of use for all national numbering resources for all publicly available electronic communications services.
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(2)The Regulator shall establish objective, transparent and non-discriminatory procedures for granting rights of use for national numbering resources.
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(3)The Regulator shall ensure that adequate numbering resources are provided for the provision of publicly available electronic communications services.
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(4)A person who assigns to locations, terminals, other persons or functions on public electronic communications networks numbers from the national numbering plan that the Regulator has not specifically allocated to the person in connection with the provision of publicly available electronic communications services commits a hybrid offence.
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(5)(a) The Regulator may also grant rights of use for numbering resources from the national numbering plan for the provision of specific services to a person who is not the provider of electronic communications networks or services, provided that adequate numbering resources are made available to satisfy current and foreseeable future demand. (b) In order to be granted such rights of use such a person shall demonstrate their ability to manage the numbering resources and to comply with any relevant requirements set out pursuant to Regulation 80. (c) The Regulator may suspend the further granting of rights of use for numbering resources to such persons if it is demonstrated that there is a risk of exhaustion of numbering resources. (d) In assessing the ability of a person to manage numbering resources in accordance with subparagraph (b) or the risk of exhaustion of numbering resources in accordance with subparagraph (c), the Regulator shall have regard to the guidelines adopted by BEREC in accordance with Article 93(2) of the Directive.
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(6)The Regulator shall, subject to ensuring the proper management of the national numbering plan, grant rights of use for numbering resources and number ranges for all publicly available electronic communications services in a manner that gives equal treatment to all providers of publicly available electronic communications services and the persons eligible in accordance with paragraph (5).
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(7)The Regulator may, without prejudice to the generality of Regulation 10, attach conditions to rights of use for numbering resources — (a) to ensure efficient and effective management of all numbering resources, and (b) to ensure that a person to which the right of use for numbering resources has been granted under this Regulation does not discriminate against a provider of publicly available electronic communications services as regards the numbering resources used to give access to its services.
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(8)The Regulator shall make available a range of non-geographic numbers which may be used for the provision of electronic communications services other than interpersonal communications services, throughout the territory of the European Union, without prejudice to Regulation (EU) No. 531/2012 of the European Parliament and of the Council of 13 June 201212 and Regulation 83(2).
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(9)Where rights of use for numbering resources have been granted in accordance with paragraph (5) to persons other than providers of electronic communications networks or services, paragraphs (8), (10) and (11) shall apply to the specific services for the provision of which the rights of use have been granted.
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(10)The Regulator shall ensure that — (a) the conditions listed in Part E of Schedule 1 that may be attached to the rights of use for numbering resources used for the provision of services outside the State, and their enforcement, are as stringent as the conditions and enforcement applicable to services provided within the State, in accordance with the Directive; (b) in accordance with Regulation 80(9) and (10), and without prejudice to the enforcement powers of the competent authorities in other Member States, that providers using numbering resources of their country code in the State comply with consumer protection and other national rules related to the use of numbering resources applicable in those Member States where the numbering resources are used.
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(11)The Regulator shall, upon request, provide to BEREC such information relating to persons as is relevant to BEREC’s role in establishing and maintaining a database on the numbering resources with a right of extraterritorial use within the European Union as referred to in Article 93(4) of the Directive.
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(12)The Regulator shall ensure that the ‘00’ code is the standard international access code.
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(13)The Regulator may specify requirements for compliance by persons for the purpose of ensuring that special arrangements for the use of number-based interpersonal communications services between locations adjacent to one another across borders between the State and another Member State may be established, and any such arrangements in place at the date of the making of these Regulations may be continued.
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(14)The Regulator may agree to share a common numbering plan for all or specific categories of numbers.
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(15)End-users affected by an arrangement or agreement referred to in paragraph (13) or (14) shall be fully informed by the Regulator.
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(16)Without prejudice to Regulation 90, the Regulator shall promote over-the-air provisioning, where technically feasible, to facilitate switching of providers of electronic communications networks or services by end-users, in particular providers and end-users of machine-to-machine services.
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(17)The Regulator shall, subject only to limitations which may be specified by the Minister on the grounds of national security, from time to time publish the details of the national numbering plan and significant subsequent additions or amendments to it.
\n
(18)The Regulator shall, in so far as is practicable, having regard to its objectives under section 12 of the Act of 2002 and Regulation 4 and to its tasks under these Regulations, support the harmonisation of specific numbers or numbering ranges within the European Union where it promotes both the functioning of the internal market and the development of pan-European services.
\n
(19)A person that fails to comply with a requirement specified under paragraph (13) commits an offence and is liable on summary conviction to a class A fine.
\n
(20)In proceedings for an offence under paragraph (19) it is a defence for the person charged to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.
\n
Procedure for granting rights of use for numbering resources 80. (1) Where it is necessary to grant individual rights of use for numbering resources, the Regulator shall, 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 for the provision of electronic communications networks or services covered by a general authorisation referred to in Regulation 6 as the Regulator considers appropriate, subject to Regulation 10 and to Regulation 99(1)(c) and to any other rules ensuring the efficient use of those numbering resources in accordance with the Directive.
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(2)The rights of use for numbering resources shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures and shall be made publicly available.
\n
(3)When granting a right of use in accordance with paragraph (1), the Regulator shall specify whether such right may be transferred by the holder and under what conditions such a transfer may take place.
\n
(4)Where the Regulator grants rights of use for numbering resources for a limited period, the duration of that period shall be appropriate for the service concerned with a view to the objective pursued, taking due account of the need to allow for an appropriate period for investment amortisation.
\n
(5)Subject to paragraph (7), the Regulator shall make any decision on the grant of a right to use numbering resources as soon as possible after receipt by it of a complete application and in the case of numbering resources that have been allocated for a specific purpose within the national numbering plan, within 3 weeks after such receipt.
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(6)The Regulator shall communicate a decision referred to in paragraph (5) 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 after informing the applicant.
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(7)Where the Regulator decides, after consultation in accordance with Regulation 101 that rights of use for numbering resources of exceptional economic value are to be granted through competitive or comparative selection procedures, the Regulator may extend the maximum period of three weeks referred to in paragraph (5) by up to a further 3 weeks.
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(8)The Regulator shall not limit the number of individual rights of use to be granted, except where this is necessary to ensure the efficient use of numbering resources.
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(9)Where the rights of use for numbering resources include their extraterritorial use within the European Union in accordance with Regulation 79(8) to (11), the Regulator shall attach to those rights of use specific conditions in order to ensure compliance with all the relevant national consumer protection rules and national law related to the use of numbering resources applicable in the Member States where the numbering resources are used.
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(10)Upon request from a national regulatory authority or other competent authority of another Member State where the numbering resources are used, demonstrating a breach of relevant consumer protection rules or national laws related to the use of numbering resources of that Member State, the Regulator shall enforce the conditions attached under paragraph (9), including, in serious cases, by withdrawing the rights of extraterritorial use for the numbering resources granted to the person concerned.