Communications Regulation (Amendment) Act 2007
Acts of the Oireachtas
Source: Acts of the Oireachtas

num: 1
paragraphs: — (1) This Act may be cited as the Communications Regulation (Amendment) Act 2007.
(2) This Act comes into operation on such day or days as the Minister for Communications, Marine and Natural Resources may appoint by order or orders either generally or with reference to any particular purpose or provision. Different days may be appointed for different purposes or different provisions.
num: 2
paragraphs: — In this Act “ Principal Act ” means the Communications Regulation Act 2002 .
num: 3
paragraphs: — Section 2 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) the following definition after the definition of “Act of 1996”:
“ ‘ associate ’, in relation to an undertaking, means—
(a) a holding company of the undertaking, or
(b) a subsidiary company of the undertaking, or
(c) a company that is a subsidiary of a body corporate, if the undertaking is also a subsidiary of the body, but neither company is a subsidiary of the other, or
(d) a body corporate that is not a subsidiary of the undertaking but in respect of which the undertaking is beneficially entitled to more than 20 per cent of the nominal value of either—
(i) the allotted share capital of the body, or
(ii) the shares carrying voting rights (other than voting rights which arise only in specified circumstances) of the body,
or
(e) a partnership or joint venture in which the undertaking has a financial interest;”;
(b) by inserting in subsection (1) the following definition after the definition of “associated facilities”:
“ ‘ association of undertakings ’ means a body corporate that comprises one or more undertakings but is not itself an undertaking;”;
(c) by inserting in subsection (1) the following definition after the definition of “electronic communications service”:
“ ‘ end user ’, in relation to an electronic communications service or associated facility, means a person to whom such a service is supplied, or who has asked for the supply of such a service or facility, otherwise than for the purpose of resupply;”;
(d) by inserting in subsection (1) the following definitions after the definition of “establishment day”:
“ ‘ failure to comply ’ includes contravene;
‘ financial year ’, in relation to the Commission, means the financial year of the Commission as specified in or in accordance with section 31A;”;
(e) by inserting in subsection (1) the following definition after the definition of “prescribed”:
“ ‘ related enactment ’ means—
num: 4
paragraphs: — (1) Section 9 of the Principal Act is repealed.
num: 5
paragraphs: — Section 10 of the Principal Act is amended as follows:
(a) by substituting “are” for “shall be”, where first occurring;
(b) by inserting the following paragraph after subsection (1)(c):
“(ca) to monitor the quality and efficiency of the emergency call answering service established under Part 6,”;
(c) by substituting the following paragraphs for subsection (1)(d):
“(d) to carry out investigations into matters relating to the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmission of such services on such networks,
(da) for the purpose of contributing to an open and competitive market and also for statistical purposes, to collect, compile, extract, disseminate and publish information from undertakings relating to the provision of electronic communications services, electronic communications networks and associated facilities and the transmission of such services on those networks, and”;
(d) by substituting the following subsection for subsection (2):
“(2) The Commission may carry out an investigation referred to in subsection (1) either on its own initiative or as a result of a complaint made by an end user or an undertaking.”;
(e) in subsection (3), by substituting “under this or any other Act” for “under this Act”.
num: 6
paragraphs: — The Principal Act is amended by inserting the following sections after section 13:
“Purpose of sections 13B and 13C.
13A.— The purpose of sections 13B and 13C is to enable the Minister to obtain information in order to formulate policies and plans to deal with emergencies and network security issues that may arise in connection with the provision of electronic communications services.
Power of Minister to obtain information from Commission.
13B.— For the purpose specified in section 13A, the Minister may, by notice in writing, require the Commission to provide the Minister with written information concerning either or both of the following:
(a) the technical operation or performance of electronic communications networks and infrastructures in the State;
(b) the breakdown or malfunctioning of an electronic communications network.
Power of Minister to obtain information from undertaking.
13C.— (1) For the purpose specified in section 13A, the Minister may, by notice in writing, require an undertaking to provide the Minister with written information concerning all or any of the following:
(a) the technical operation or performance of the undertaking’s electronic communications service in the context of the relevant electronic communications network;
(b) the breakdown or malfunctioning of any part of the undertaking’s electronic communications service;
(c) the operation of the undertaking in relation to electronic communications infrastructure.
(2) An undertaking commits an offence if it—
(a) fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Minister allows, or
(b) in purporting to comply with such a requirement, provides information to the Minister that the undertaking knows to be false or misleading.
(3) In proceedings for an offence involving a failure by an undertaking to comply with a requirement made under subsection (1), it is a defence if the undertaking establishes—
(a) that it did not know and could not be reasonably expected to know or ascertain the required information, or
(b) that the disclosure of the information was prohibited by a law of the State.
(4) An undertaking that commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding €5,000.
(5) If, after being convicted of an offence under subsection (2) or this subsection, an undertaking continues to fail to do the relevant act, the person commits a further offence on each day or part of a day during which the failure continues and is liable on summary conviction to a fine not exceeding €1,000 for each such further offence. However, if an undertaking is tried for 6 or more such further offences that are alleged to have been committed on successive days, the maximum fine that can be imposed for those offences at the trial is €5,000.
Power of Commission to obtain information from undertaking.
13D.— (1) The Commission may at any time, by notice in writing, require an undertaking to provide it with such written information as it considers necessary to enable it to carry out its functions or to comply with a requirement made to it by the Minister under section 13B.
(2) An undertaking commits an offence if it—
(a) fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Commission allows, or
(b) in purporting to comply with such a requirement, provides to the Commission information that the undertaking knows to be false or misleading.
(3) In proceedings for an offence involving a failure by an undertaking to comply with a requirement made under subsection (1), it is a defence if the undertaking establishes—
(a) that it did not know and could not be reasonably expected to know or ascertain the required information, or
(b) that the disclosure of the information was prohibited by a law of the State.
(4) An undertaking that commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding €5,000.
(5) If, after being convicted of an offence under this section, an undertaking continues to fail to do the relevant act, the undertaking commits a further offence on each day or part of a day during which the failure continues and is liable on summary conviction to a fine not exceeding €1,000 for each such further offence. However, if an undertaking is tried for 6 or more such further offences that are alleged to have been committed on successive days, the maximum fine that can be imposed for those offences at the trial is €5,000.
Alternative procedure for enforcement of section 13C or 13D.
13E.— (1) As an alternative to bringing a prosecution for an offence against section 13C or 13D, the Minister or the Commission may apply to the High Court to make a compliance order under subsection (4). Such an application is to be by motion.
(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, the undertaking becomes the respondent to the application.
(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Minister or Commission may not suffer damage if relief were not granted pending determination of the application.
(4) On the hearing of an application made under subsection (1), the High Court may make an order requiring the undertaking to comply with the relevant section or may refuse the application.
(5) If the High Court makes an order under subsection (4), it may make such ancillary orders as it considers appropriate.”.
num: 7
paragraphs: — The Principal Act is amended by inserting the following sections after section 24:
“Protection of whistleblowers.
24A.— (1) A person who makes an appropriate disclosure of information to the Commission about the conduct of an undertaking, an associate of an undertaking or an association of undertakings incurs no civil or criminal liability for having done so.
(2) For the purpose of subsection (1), a person makes an appropriate disclosure of information about the conduct of an undertaking, or an associate of an undertaking or an association of undertakings only if—
(a) the conduct relates to the provision of an electronic communications network or service or an associated facility, and
(b) the person—
(i) believes on reasonable grounds that the information is true, or
(ii) not being able to form a belief on reasonable grounds about the truth of the information, believes on reasonable grounds that the information may be true and to be of sufficient significance to justify its disclosure with a view to enabling its truth to be investigated by the Commission or by a law enforcement authority that has a legitimate interest in receiving the information (such as the Garda SÃ­ochÃ¡na).
(3) The Commission may not divulge the identity of a person who has made an appropriate disclosure to it without first obtaining the person’s consent, except in so far as it may be necessary to ensure proper investigation of the matters to which the disclosure relates. This subsection applies despite any other enactment or rule of common law to the contrary.
(4) If a person has made an appropriate disclosure to the Commission, the Commission shall, so far as practicable and in accordance with the law, notify the person of the outcome of any investigation into the matters to which the disclosure relates.
(5) The Commission may decline to accept or deal with a disclosure of information made to it by a person about the conduct of an undertaking, an associate of an undertaking or an association of undertakings if it is satisfied on reasonable grounds that the information is false or misleading or that the disclosure is frivolous or vexatious.
Tortious liability of undertaking or associate for victimising whistleblower.
24B.— (1) If an undertaking, an associate of an undertaking or an association of undertakings causes detriment to a person because the person or a third person has made, or threatened to make, an appropriate disclosure of information to the Commission or a law enforcement authority (such as the Garda SÃ­ochÃ¡na) either about the conduct of the undertaking or about the conduct of the associate or association, the person has a right of action in tort against the undertaking, associate or association.
(2) In this section, ‘detriment’ includes—
(a) injury, damage or loss, or
(b) intimidation or harassment, or
(c) discrimination, disadvantage or adverse treatment in relation to a person’s employment, or
(d) a threat of reprisal.
Offence to make false disclosure.
24C.— A person who makes a disclosure of information about the conduct of an undertaking, an associate of an undertaking or an association of undertakings, knowing the information to be false or misleading commits an offence and is liable—
(a) on conviction on indictment, to a fine not exceeding €50,000, or
(b) on summary conviction, to a fine not exceeding €5,000.”.
num: 8
paragraphs: — Section 30 of the Principal Act is amended by substituting the following subsection for subsection (6):
“(6) Subject to subsections (7) and (8), the Commission is entitled to retain for its own use all fees and levies paid to or recovered by it under this Act, a related enactment or any other enactment that expressly provides for a fee or levy to be paid to the Commission.”.
num: 9
paragraphs: — The Principal Act is amended by inserting the following sections after section 31:
“Financial year of Commission.
31A.— (1) The financial year of the Commission is—
(a) the period of 12 months beginning on 1 July in each year, or
(b) if the Commission has published a notice in accordance with subsection (2), the period specified in the notice.
(2) The Commission may, by notice published in Iris OifigiÃºil, specify as the Commission’s financial year a period different from that specified in subsection (1)(a) or previously specified under this subsection.
Commission to prepare annual action plan.
31B.— (1) Before the end of each financial year of the Commission, the Commission shall—
(a) prepare an action plan setting out the principal activities that it proposes to undertake during the ensuing financial year, and
(b) present the plan to the Minister and arrange for a copy of the plan to be laid before each House of the Oireachtas.
(2) The action plan shall segregate the relevant activities according to the Commission’s functions relating to—
(a) regulating electronic communications, and
(b) managing the radio frequency spectrum, and
(c) regulating postal services.
(3) In preparing the action plan, the Commission shall have regard to its current strategy statement.
(4) As soon as practicable after preparing an action plan, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.
Commission to prepare annual financial forecast.
31C.— (1) Before the end of each financial year of the Commission, the Commission shall—
(a) prepare a financial forecast showing estimates of the Commission’s revenue and expenditure for the ensuing financial year in relation to the activities referred to in the Commission’s action plan for that year, and
(b) present the forecast to the Minister.
(2) In preparing its annual financial forecast, the Commission shall estimate the amounts of revenue expected to be derived, and the amount of expenditure expected to be made, in respect of each of its functions relating to electronic communications, managing the radio frequency spectrum and postal services.
(3) As soon as practicable after preparing its annual financial forecast, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.”.
num: 10
paragraphs: — The Principal Act is amended by inserting the following Part after section 38:
“PART 2A
Special Powers to Require Persons to Give Evidence or Produce Documents
Commission may require persons to give evidence or produce documents.
38A.— (1) If the Commission believes on reasonable grounds that a person may be able to give evidence, or to produce a document, that relates to a matter concerning the performance or exercise of any of the Commission’s functions or objectives, it may serve on the person a notice requiring the person to appear before it—
(a) to give evidence about the matter, or
(b) to produce the document for examination.
(2) The notice shall specify—
(a) the matter to which the evidence or document relates, and
(b) the date, time and place at which the person is required to appear before the Commission.
(3) The notice may require the person concerned to appear before a specified Commissioner or a specified member of the Commission’s staff and, if it does so, a reference in this Part to the Commission is to be read as a reference to the Commissioner or staff member concerned.
Conduct of proceeding under this Part.
38B.— (1) A person who appears before the Commission in compliance with a requirement made under section 38A may be required to swear an oath or make an affirmation.
(2) An oath or affirmation must be administered by the Commission.
(3) A person who appears before the Commission under section 38A is entitled to be accompanied by a barrister or solicitor or, with the approval of the Commission, any other person.
Proceeding under this Part to be normally in private.
38C.— (1) Except as provided by this section, evidence to be given, or a document to be produced, to the Commission by a person who appears before it in compliance with a requirement made under section 38A is to be given or produced in private.
(2) If a person who appears before the Commission in compliance with a requirement made under section 38A requests the matter to be dealt with in public, the Commission shall comply with the request.
(3) If the Commission is satisfied that it is desirable in the public interest that the evidence to be given, or the document to be produced, should be given or produced in public, the Commission may direct accordingly.
(4) If the evidence is to be given, or the document is to be produced, in private, the Commission may do either of the following:
(a) give directions as to the persons who may be present during the proceeding;
(b) give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.
(5) Nothing in a direction given under subsection (4) may prevent the presence of—
(a) a barrister, solicitor or other person who is representing the person who is appearing before the Commission, or
(b) a Commissioner or a member of the Commission’s staff.
(6) If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Commission, that person’s barrister, solicitor or other representative, a Commissioner or a member of the Commission’s staff) may be present only if entitled to be present because of a direction given under subsection (4)(a).
(7) A person who contravenes subsection (6) commits an offence.
Offence to fail to appear before Commission.
38D.— (1) A person commits an offence if, having been required to appear before the Commission in compliance with a requirement made under section 38A, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Commission.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Offence to refuse to be sworn or to answer question.
38E.— (1) A person appearing before the Commission in compliance with a requirement made under section 38A, commits an offence if the person—
(a) refuses or fails to swear an oath, or to make an affirmation, on being required to do so by the Commission, or
(b) refuses or fails to give evidence in compliance with a requirement made under section 38A, or refuses or fails to answer a question put to the person by the Commission in relation to any such evidence, or
(c) refuses or fails to produce a document that is required to be produced in compliance with such a requirement.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
(3) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.
(4) It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.
(5) Subsections (3) and (4) do not limit what is a reasonable excuse for the purposes of subsection (2).
Protection of persons appearing before Commission under section 38A.
38F.— Subject to this Part, a person who appears before the Commission in compliance with a requirement made under section 38A has the same protection, and is, in addition to the offences under this Part, subject to the same liabilities, as a witness in proceedings in the High Court.
Payment of allowances and expenses to persons who appear before Commission.
38G.— (1) A person who appears before the Commission in compliance with a requirement made under section 38A is entitled to be paid such allowances and travelling or other expenses as are payable to or in respect of a witness attending in civil proceedings before the High Court.
(2) All allowances and expenses payable under subsection (1) are payable by the Commission.
Trial of offences under this Part.
38H.— (1) An offence under this Part is triable summarily.
(2) A person found guilty of an offence under this Part is liable to a fine not exceeding €5,000.”.
num: 11
paragraphs: — The Principal Act is amended by substituting the following section for section 43:
“Prosecution of summary offences by Commission.
num: 43
paragraphs: — (1) Subject to subsection (2), a summary offence under this Act or a related enactment may be prosecuted only by the Commission or by some other person authorised by law to prosecute offences.
(2) Subsection (1) does not apply to a prosecution for―
(a) an offence under section 53(2) of this Act,
(b) an offence under the European Communities (Electronic Communications Networks and Services)(Universal Services and Users’ Rights) Regulations ( S.I. No. 308 of 2003 ), or
(c) an offence under the European Communities (Electronic Communications Networks and Services)(Data Protection and Privacy) Regulations ( S.I. No. 535 of 2003 ).”.
num: 12
paragraphs: — Section 44 of the Principal Act is amended as follows:
(a) by substituting the following subsection for subsection (1):
“(1) If the Commission believes on reasonable grounds that a person has committed a summary offence under this Act or under a related enactment, the Commission may give to the person (or, if the person believed to have committed the offence is a body corporate, to an officer of the body) a notice stating that—
(a) the person is alleged to have committed the offence, and
(b) if, within 21 days from the date on which the notice was given, the person, as far as is practicable, remedies to the satisfaction of the Commission the matter giving rise to the offence and pays to the Commission €1,500, accompanied by the notice, the person or body will not be prosecuted for the offence.”;
(b) by repealing subsections (5) and (7).
num: 13
paragraphs: — The Principal Act is amended by substituting the following sections for sections 45 and 46:
“Undertaking not to overcharge or charge for services not supplied.
num: 45
paragraphs: — (1) An undertaking shall not impose, or purport to impose, a charge—
(a) for supplying an electronic communications service or electronic communications product to a consumer that exceeds the amount for that service or product specified—
(i) in the undertaking’s published tariff of charges, or
(ii) in a written statement previously made or given to the consumer by the undertaking in relation to that supply,
or
(b) for supplying an electronic communications service or electronic communications product to a consumer that was not requested by the consumer, or
(c) for an electronic communications service or electronic communications product that was requested by a consumer but was not supplied.
(2) An undertaking that contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000.
(3) In carrying out an investigation under this Act to ascertain whether an undertaking may be contravening or may have contravened subsection (1), the Commission may conduct an audit of the undertaking’s billing system.
(4) In this section—
‘ consumer ’ means a person to whom an electronic communications service or electronic communications product is supplied, otherwise than for the purpose of resupply;
‘ tariff of charges ’, in relation to an undertaking, includes any list setting out the prices charged by the undertaking for providing electronic communications services or electronic communications products to consumers.
Commission may apply to High Court for order to restrain repeated or apprehended contravention of section 45.
num: 46
paragraphs: — (1) If it appears to the Commission that an undertaking—
(a) is contravening subsection (1) of section 45, or
(b) has contravened that subsection in the past and may contravene that subsection in the future,
the Commission may apply to the High Court to make a restraining order under subsection (4). Such an application is to be by motion.
(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, that undertaking becomes the respondent to the application.
(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.
(4) On the hearing of an application made under subsection (1), the High Court—
(a) may make a restraining order requiring the undertaking to cease contravening section 45 and not to repeat the contravention, or
(b) if it is of the opinion that the application is not substantiated, refuse the application.
(5) An application for a restraining order may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention or contraventions of section 45 committed by the respondent.
(6) On hearing the further application, the High Court may, having previously been satisfied that the respondent has contravened section 45 and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount can be more or less than the amount proposed by the Commission.
(7) The circumstances referred to in subsection (6) include (but are not limited to) the following:
(a) the duration of the contravention;
(b) the effect of the contravention on other parties to the relevant decision and on consumers;
(c) the submission of the Commission with respect to what it considers to be the appropriate amount;
(d) any excuse or explanation for the contravention provided by the respondent.
(8) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.
(9) In this section, ‘consumer’ has the same meaning as in section 45.”.
num: 14
paragraphs: — The Principal Act is amended by inserting the following sections after section 46 (as substituted by section 13 ):
“Special powers enabling Minister to make regulations to give effect to European Communities instruments relating to communications matters.
num: 15
paragraphs: — The Principal Act is amended by inserting the following section after section 57:
“Power of High Court to make compliance orders in respect of conditions imposed under section 57.
57A.— (1) If, in making a decision under section 57, the Commission has imposed conditions for infrastructure sharing, and it appears to the Commission that a network operator or physical infrastructure provider to whom the decision relates is failing, or has failed, to comply with any of those conditions, the Commission may apply to the High Court to make a compliance order under subsection (5). Such an application is to be by motion.
(2) However, the Commission may make an application under subsection (1) only if—
(a) at least one month previously, it has served on the network operator or physical infrastructure provider concerned a notice in writing requiring the operator or provider to comply with a condition imposed by it under section 57 and has given the operator or provider an opportunity to make representations to it about the matter and to comply with the requirement, and
(b) the operator or provider has failed to comply with the requirement.
(3) The High Court may hear the application only if it is satisfied that the Commission has complied with subsection (2)(a) and has served a copy of the application on the network operator or physical infrastructure provider concerned. On being served with a copy of the application, that network operator or physical infrastructure provider becomes the respondent to the application.
(4) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.
(5) On the hearing of an application made under subsection (1), the High Court may make an order requiring the respondent to comply with the relevant section or may refuse the application.
(6) An application for a compliance order may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the non-compliance.
(7) On hearing the further application, the High Court may, having previously been satisfied that the respondent has not complied with a condition imposed under section 57 and having regard to the circumstances surrounding the non-compliance, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount can be more or less than the amount proposed by the Commission.
(8) The circumstances referred to in subsection (7) include (but are not limited to) the following:
(a) the duration of the non-compliance;
(b) the effect of the non-compliance on other parties to the relevant decision and to end users;
(c) the submission of the Commission with respect to what it considers to be the appropriate amount;
(d) any excuse or explanation for the non-compliance provided by the respondent.
(9) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.”.
num: 16
paragraphs: — The Principal Act is amended by inserting the following Part after section 58:
“PART 6
Emergency Call Answering Service (ECAS)
Interpretation: Part 6.
58A.— In this Part—
‘ ECAS ’ means an emergency call answering service operated under a contract entered into under section 58B;
‘ ECAS contract ’ means a contract for the operation of an emergency call handling service;
‘ ECAS operator ’ means the person who operates an emergency call answering service in accordance with a contract entered into under section 58B;
‘ emergency call ’ means an electronic communication (such as a telephone call) that is forwarded from an undertaking to the ECAS operator for onward transmission to an emergency service, and includes a call that may not be a genuine one;
‘ emergency service ’ means the Garda SÃ­ochÃ¡na, a fire brigade, ambulance service, the Irish Coast Guard or a civil emergency service.
Power of Minister to enter into contract for the operation of emergency call answering service (ECAS).
58B.— (1) The Minister may enter into a contract with a person under which the person undertakes to operate an emergency call answering service for a specified period. The contract shall specify terms and conditions for the effective operation of the service and, in particular, shall—
(a) specify the maximum call handling fee that the operator is permitted to charge during the first 2 years of the operation of the contract, and
(b) specify that the Commission can increase or reduce the amount of that fee after conducting a review in accordance with section 58D.
(2) On entering into a contract with a person for the operation of the service, the Minister shall, by notice published in Iris OifigiÃºil, designate the person as its operator.
(3) While the contract remains in force, the ECAS operator shall provide such information as the Minister or Commission requires to enable the Minister or Commission to perform their respective functions under this or any other enactment.
(4) The Minister may terminate a contract entered into under this section without paying compensation if it is proved that the ECAS operator has failed or is failing to comply with a term or condition of the contract or a requirement imposed under this section.
(5) The Minister may from time to time vary a contract entered into under this section, but, subject to section 58D, only with the consent of the ECAS operator.
Payment of ECAS call handling fees.
58C.— (1) An entity that forwards emergency calls to the ECAS operator during a month shall, within 45 days after the end of that month, pay to that operator the call handling fees charged by that operator for emergency calls forwarded by the entity during that month.
(2) The maximum amount that the ECAS operator may charge for forwarding an emergency call is—
(a) during the first 2 years of the ECAS contract, the amount specified in that contract, and
(b) during the remainder of the period for which that contract is in force, the amount determined by the Commission under section 58D.
(3) If a call handling fee is not paid by the deadline fixed for payment, the ECAS operator may, by proceedings brought in a court of competent jurisdiction, recover the amount of the fee as a debt due to that operator.
(4) A call handling fee is payable in respect of an emergency call even if the call is not forwarded to the emergency service concerned.
Commission to conduct review of maximum call handling fee.
58D.— (1) Not later than 2 months before the second anniversary of the date on which an ECAS contract was entered into, and not later than 2 months before each subsequent anniversary of that date while the contract remains in force, the Commission shall conduct a review of the maximum permitted call handling fee that the ECAS operator can charge for handling emergency calls.
(2) As soon as practicable after conducting a review in accordance with subsection (1), the Commission shall determine the maximum call handling fee that the ECAS operator can charge for handling emergency calls during the period of 12 months beginning with the date of the relevant anniversary of the date on which the ECAS contract was entered into. In determining that fee, the Commission may either confirm the existing maximum call handling fee or, after consulting the ECAS operator, determine a higher or lower maximum fee.
(3) In making a determination under subsection (2), the Commission shall have regard to—
(a) the need for the ECAS operator to cover the reasonable costs likely to be incurred by it in operating the service and, in particular, to recover a guaranteed rate of return for providing the ECAS, and
(b) the cost likely to be incurred by the Commission in monitoring the ECAS.
ECAS operator to pay reasonable costs of Commission in monitoring service.
58E.— (1) The ECAS operator shall pay to the Commission such amount as the Commission certifies in writing as being the amount it has reasonably incurred in monitoring the operation of the ECAS during a specified period.
(2) The ECAS operator shall pay such an amount by such date, or within such period, as the Commission specifies in the certificate or separately notifies in writing to that operator.
(3) If an amount payable under this section is not paid by the deadline fixed for payment, the Commission may, by proceedings brought in a court of competent jurisdiction, recover the amount as a debt due to the Commission.
ECAS operator not liable for certain actions done in good faith.
58F.— An ECAS operator is not liable in damages to any person for any act done or omitted to be done in the course of operating the ECAS unless it is established that the act was done or omitted in bad faith or with gross negligence.
Commission to report to Minister on operation of service.
58G.— The Commission shall provide the Minister with a report concerning the operation of the ECAS at such times, or within such periods, as the Minister specifies in writing to the Commission. If an event occurs with respect to the operation of the ECAS and the Commission considers that the Minister should be made aware of the event, the Commission shall provide the Minister with a report on the event.
Interim measure pending the Minister entering into contract under section 58B.
58H.— (1) In this section―
‘ call handling fee ’ means a fee fixed under subsection (2), and includes that amount as varied under that subsection;
‘ current operator ’, in relation to the emergency call answering service operating at the commencement of this section, means Eircom plc;
‘ payment period ’ means the period beginning with the date on which an order made under subsection (2) takes effect and ending with―
(a) the date (as publicly notified by the Minister) on which a contract entered into under section 58B becomes fully effective, or
(b) the day that falls 18 months after the date on which the order takes effect, or such extended period as the Minister may allow,
whichever first occurs.
(2) The Commission may, by notice published in the Iris OifigiÃºil, fix the amount of the call handling fee payable under subsection (5), and may from time to time, by similar order, vary the amount of that fee. In fixing the amount of the fee, the Commission shall take into account the need to ensure the effectiveness and efficiency of the operator of the service.
(3) An order made under subsection (2) ceases to have effect at the end of the payment period.
(4) Before making an order under subsection (2) (including an order varying the call handling fee), the Commission shall convene one or more meetings to which it must invite all undertakings that carry on business in the State and such users of electronic communications services as it thinks appropriate.
(5) During the payment period, each entity that forwards emergency calls to the current operator during a month or part of a month that falls during that period, shall, within 45 days after the end of that month, pay to that operator for each of those calls a call fee fixed in accordance with subsection (2).
(6) If call handling fees are not paid by the deadline fixed for payment, the current operator may, by proceedings brought in a court of competent jurisdiction, recover as a debt due to that operator any amount of fees that remain outstanding.
(7) A call handling fee is payable in respect of an emergency call even if the call is not forwarded to the emergency service concerned.
(8) To enable the Minister to award and enter into an ECAS contract, the current operator shall, so far as it is able to do so, provide the Minister with such co-operation and assistance as the Minister reasonably requires in writing.
(9) If it appears to the Minister that the current operator is failing to provide the level of co-operation and assistance required under subsection (8), the Minister may apply to the High Court to make a compliance order under subsection (12). Such an application is to be by motion.
(10) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the current operator. On being served with such a copy, the current operator becomes the respondent to the application.
(11) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (9). The Court may not refuse interim or interlocutory relief merely because the Minister may not suffer damage if relief were not granted pending determination of the application.
(12) On the hearing of an application made under subsection (9), the High Court may make an order requiring the current operator to comply with the relevant requirements or may refuse the application.
(13) If the High Court makes an order under subsection (12), it may make such ancillary orders as it considers appropriate.”.
num: 17
paragraphs: — The Principal Act is amended by inserting the following Part heading before section 59:
“PART 7
Miscellaneous Provisions”.
num: 18
paragraphs: — The Principal Act is amended by substituting the following Schedule for Schedule 1:
num: 19
paragraphs: — Section 2 of the Electronic Commerce Act 2000 is amended by inserting the following definition after the definition of “certification service provider”:
“ ‘Commission’ means the Commission for Communications Regulation established under the Communications Regulation Act 2002 ;”.
num: 20
paragraphs: — Section 4 of the Electronic Commerce Act 2000 is amended by substituting “Every order made under this Act (other than an order made under section 1(2)), and every regulation made under section 3 or 32,” for “Every order (other than an order made under section 1(2)) or regulation made by the Minister under section 3”.
num: 21
paragraphs: — The Electronic Commerce Act 2000 is amended by substituting the following Part for Part 4 (section 31):
“PART 4
Registration of Domain Names
Interpretation: Part 4.
num: 31
paragraphs: — In this Part, ‘ “.ie” domain name’ means the top level of the global domain name system assigned to Ireland according to the two-letter code in the International Standard ISO 3166-1 (Codes for Representation of Names of Countries and their Subdivision) of the International Organisation for Standardisation.
Registration of ‘.ie’ domain names.
num: 32
paragraphs: — (1) The purpose of this Part is to facilitate easy comprehension, fairness, transparency, avoidance of deception, promotion of fair competition and public confidence with respect to the use of ‘.ie’ domain names.
(2) A person shall not use an ‘.ie’ domain name unless the name is registered in accordance with regulations made under this section.
(3) The Commission may make regulations for the purposes of this section, but only after consultation with the Minister for Enterprise, Trade and Employment and such other persons and public bodies (if any) as the Commission thinks appropriate.
(4) In particular, regulations under subsection (3) may do all or any of the following:
(a) specify an entity as the authority authorised to register ‘.ie’ domain names;
(b) prescribe the form and manner in which an application for registration or renewal of registration of an ‘.ie’ domain name is to be made;
(c) prescribe the circumstances and manner in which, the terms on which and the period for which an ‘.ie’ domain name may be registered;
(d) prescribe the circumstances and manner in which, the terms on which and the period for which registration of an ‘.ie’ domain name may be renewed;
(e) prescribe the circumstances and manner in which an application for registration or renewal of registration of an ‘.ie’ domain name can be refused by the registering authority;
(f) empower the registering authority to revoke the registration of an ‘.ie’ domain name in specified circumstances;
(g) confer a right of appeal against—
(i) a refusal of an application for registration or a renewal of registration of an ‘.ie’ domain name, and
(ii) the revocation of the registration of such a name;
(h) provide for the procedure for hearing and determining appeals;
(i) prescribe the fees (if any) to be paid on registering and renewing the registration of an ‘.ie’ domain name and the time within which and the manner in which such fees are to be paid;
(j) provide for such other matters relating to registration as appear to the Commission to be necessary or desirable for the purposes of this section.
(5) The regulations shall provide that persons who have registered ‘.ie’ domain names before the regulations came into operation are taken to have registered those names in accordance with the regulations.
(6) A person who contravenes subsection (2), or contravenes a regulation made under this section, is liable on summary conviction to a fine not exceeding €5,000.
Commission may impose levy.
num: 33
paragraphs: — (1) In order to provide a fund to meet the expenses properly incurred by the Commission in performing its function with respect to the use of ‘.ie’ domain names, the Commission may, by order, impose a levy on the entity authorised to register ‘.ie’ domain names in the State. The order shall specify the deadline for payment of such a levy.
(2) While an order made under subsection (1) remains in force, the entity shall, before the deadline specified in the order, pay to the Commission the amount of levy so specified.
(3) If the entity fails to pay a levy by the deadline fixed for payment, the Commission may, by proceedings brought in a court of competent jurisdiction, recover from the entity the amount of the levy as a debt due to the Commission.
Commission to have access to domain database.
num: 34
paragraphs: — The Commission is at all times entitled to have access to all internet ‘.ie’ domain name databases and any associated records.
Power of Commission to designate interim registration authority.
num: 35
paragraphs: — (1) If the Commission considers it necessary to do so, it may, with the consent of the Minister, designate a person on an interim basis as the registration authority for the purposes of regulations in force under section 32.
(2) A designation under subsection (1) or subsection (3) is to be for a period not exceeding 12 months and is to be on such terms as may be specified in the designation.
(3) A designation under subsection (1) or this subsection may, with the consent of the Minister, be renewed for a further period not exceeding 12 months on such terms as may be specified in the renewal of the designation.
(4) This section has effect despite anything to the contrary in regulations in force under section 32.”.
num: 22
paragraphs: — Section 3 of the Competition Act 2002 is amended as follows:
(a) by inserting in subsection (1) the following definition before the definition of “authorised officer”:
“ ‘ associated facilities ’, in relation to an electronic communications undertaking, has the same meaning as in section 2(1) of the Communications Regulation Act 2002 (No. 20 of 2002);”;
(b) in subsection (1), by repealing the definition of “Commission”;
(c) by inserting in subsection (1) the following definitions before the definition of “conditional determination”:
“ ‘ Commission’ means the Commission for Communications Regulation established by Part 2 of the Communications Regulation Act 2002 ;
‘ competent authority ’—
(a) except as provided by paragraph (b), means the Competition Authority, and
(b) if the Competition Authority and the Commission have, under section 47E, agreed that the Commission should, in relation to a particular matter, perform the functions conferred on the relevant authority by Part 2, or the Minister has made a determination under that section that the Commission should exercise those functions in relation to that matter, also means the Commission;
‘ Competition Authority ’ means the Authority continued by section 29;”;
(d) by inserting in subsection (1) after the definition of “director” the following definitions:
“ ‘ electronic communications network ’ has the same meaning as in section 2 of the Communications Regulation Act 2002 ;
‘ electronic communications service ’ has the same meaning as in section 2 of the Communications Regulation Act 2002 ;
‘ electronic communications undertaking ’ means an undertaking that provides an electronic communications network or an electronic communications service or associated facilities;”.
num: 23
paragraphs: — Section 4 of the Competition Act 2002 is amended as follows:
(a) by substituting the following subsection for subsection (3):
“(3) Either competent authority may in writing declare that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5), but only with the concurrence of the other competent authority. If the competent authority that made the declaration later forms the opinion that the category no longer complies with those conditions, it may revoke the declaration, but only with the concurrence of the other competent authority.”;
(b) in subsection (4), by substituting “the competent authority” for “the Authority”.
num: 24
paragraphs: — Section 6 of the Competition Act 2002 is amended by substituting “European Commission” for “Commission” wherever occurring.
num: 25
paragraphs: — Section 8 of the Competition Act 2002 is amended as follows:
(a) in subsection (4)—
(i) by substituting “the competent authority” for “the Authority”, where firstly occurring, and
(ii) by substituting “that authority” for “the Authority”, where secondly, thirdly, fourthly and fifthly occurring;
(b) in subsections (5) and (9), by substituting “the competent authority” for “the Authority”.
num: 26
paragraphs: — Section 13 of the Competition Act 2002 is amended by substituting the following paragraph for paragraph (b) of subsection (3):
“(b) has been prepared otherwise than in response to any enquiry made or question put by a member or officer of the competent authority, a member of the Garda SÃ­ochÃ¡na, an officer of the European Commission or an authorised officer relative to any matter the subject of those proceedings.”.
num: 27
paragraphs: — Section 14 of the Competition Act 2002 is amended by substituting “the competent authority” for “the Authority”, wherever occurring.
num: 28
paragraphs: — Section 18 of the Competition Act 2002 is amended as follows:
(a) in subsections (13) and (14), by substituting “the European Commission” for “the Commission”;
(b) in subsection (14), by substituting “that Commission’s” for “the Commission’s”.
num: 29
paragraphs: — Section 34 of the Competition Act 2002 is amended by inserting the following subsection after subsection (12):
“(13) To the extent that a cooperation agreement entered into under this section is inconsistent with a cooperation agreement to which section 47G (inserted by section 31 of the Communications Regulation (Amendment) Act 2007) applies, the second-mentioned cooperation agreement shall apply.”.
num: 30
paragraphs: — The Competition Act 2002 is amended by substituting the following section for section 47:
“Power to disclose certain information relating to offences under this Act.
num: 47
paragraphs: — (1) An authorised person may disclose to the Authority, a member of the Authority, a member of the Authority’s staff or an authorised officer of the Authority any information that, in the person’s opinion, relates to the commission of an offence against this Act.
(2) However, in the case of an offence under section 6 or 7 relating to the provision of an electronic communications service or electronic communications network, or associated facilities, an authorised person may also disclose the information to the Commission, a member of the Commission or a member of the Commission’s staff.
(3) This section has effect despite any other law to the contrary.
(4) In this section, ‘ authorised person ’ means—
(a) the Director of Corporate Enforcement, or
(b) a member of the Garda SÃ­ochÃ¡na, or
(c) a person, or a person belonging to a class of persons, designated under subsection (5).
(5) The Minister may, by notice published in Iris OifigiÃºil, designate a person or a class of persons for the purpose of paragraph (c) of the definition of ‘authorised person’ in subsection (4).”.
num: 31
paragraphs: — The Competition Act 2002 is amended by inserting the following Part after section 47:
“PART 4A
Performance of Functions of Commission Under this Act
Function of the Commission to investigate complaints relating to the electronic communications market.
47A.— The Commission has, in addition to its other functions under this Act or any other enactment, the function of investigating, either on its own initiative or in response to a complaint made to it by any person, the existence of an agreement, decision or practice of a kind specified in section 4, or the occurrence of an abuse of the kind specified in section 5, involving the provision of an electronic communications service or electronic communications network, or associated facilities.
Delegation of functions of Commission.
47B.— (1) Except as provided by subsection (2), the Commission may delegate the performance of any of its functions under this Act to any member of the Commission or any member of the Commission’s staff.
(2) The Commission may not delegate the performance of—
(a) its function under section 4(3), or
(b) the power to prosecute an offence under section 6 or 7, or for relief under section 14.
Commission to notify Authority before acting under this Act.
47C.— Before performing any of its functions under this Act, the Commission shall notify the Authority in writing of its intention to perform that function.
Responsibilities of Authority with respect to notifying existence of certain agreements, decisions, practices and abuses.
47D.— (1) If—
(a) at any time the Authority suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified in section 4, or there is occurring or has occurred an abuse of the kind specified in section 5, and
(b) it appears to the Authority that the agreement, decision or practice, or the abuse, relates to the provision of an electronic communications service or electronic communications network, or an associated facility,
it shall notify its suspicion in writing to the Commission, together with particulars setting out the basis for the suspicion.
(2) If at any time the Commission suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified in section 4, or there is occurring or has occurred an abuse of the kind specified in section 5, it shall notify that suspicion in writing to the Authority. This subsection applies irrespective of whether it appears to the Commission that the suspected breach relates to the provision of an electronic communications service or electronic communications network, or an associated facility.
Authority and Commission to make every effort to settle disputed questions.
47E.— (1) The Authority and the Commission shall make every effort to settle by agreement any question arising as to which of them should perform the functions conferred on a competent authority by Part 2 (section 4(3) excepted) that may relate to the provision of an electronic communications service or electronic communications network, or associated facilities.
(2) If at any time the Authority or the Commission considers that the question cannot be resolved by agreement, it may refer the question for resolution by the Minister.
(3) As soon as practicable after the question has been referred under subsection (2), the Minister shall determine the question and then notify the Authority and the Commission of the determination. In making a determination, the Minister shall—
(a) consult with the Minister for Communications, Marine and Natural Resources, and
(b) take into account any representations made with respect to the question by the Authority or the Commission.
(4) The determination of the Minister under subsection (3) is final.
Undertaking not liable to be prosecuted by both Authority and Commission for same offence.
47F.— If an undertaking that provides an electronic communications service or electronic communications network, or associated facilities, is being, or has been, prosecuted for an offence under section 6 or 7 by the Authority or by the Commission, the undertaking is not liable to be prosecuted for the same offence by the other of those entities.
Co-operation agreement between Authority and the Commission with respect to performing their respective functions under this Act.
47G.— (1) As soon as practicable after the commencement of this Part, the Authority and the Commission shall enter into negotiations for a co-operation agreement that will—
(a) facilitate the performance of their respective functions under this Act, and
(b) avoid duplicating activities by the Authority and the Commission in relation to the performance of those functions, and
(c) ensure, as far as practicable, consistency between decisions made, and other steps taken, by the Authority and the Commission so far as any part of those decisions or steps relates to the performance of those functions.
(2) As far as practicable, a co-operation agreement shall—
(a) require the Authority and the Commission to consult each other before performing any of their respective functions under this Act if the performance of the functions concerned involves the same issues, and
(b) enable the Authority and the Commission to provide each other with information in its possession if the information is required by the other to perform its functions under this Act.
(3) The Authority and the Commission may vary a co-operation agreement by further agreement.
(4) The Authority and the Commission shall respectively provide the Minister for Enterprise, Trade and Employment and the Minister for Communications, Marine and Natural Resources with a copy of a co-operation agreement, or a variation of such an agreement, as soon as practicable after the agreement or variation has been entered into.
(5) A co-operation agreement, and any variation to it, is to be in writing.
(6) As soon as practicable after a co-operation agreement, or variation of the agreement, is entered into, the Authority and the Commission shall publish in such manner as they think appropriate a notice to the effect that the agreement or variation has been entered into. The notice shall state—
(a) that a copy of the agreement or variation can be inspected at premises of the Authority and premises of the Commission, or by a means, specified in the notice, and
(b) that a copy of the agreement or variation can be purchased from either the Authority or the Commission in a manner so specified.
However, if either the Authority or the Commission has complied with this subsection, the other of them is taken to have so complied.
(7) As soon as practicable after a co-operation agreement, or a variation of the agreement, is entered into, the Authority shall arrange for a copy of the agreement or variation to be laid before each House of the Oireachtas.
(8) The Authority and the Commission shall each make available to members of the public copies of a co-operation agreement, or a variation of the agreement, for inspection and for purchase (at a cost not exceeding the reasonable cost of making a copy and the cost (if any) of posting it).
(9) If information is provided by the Authority or the Commission under a co-operation agreement to which this section applies, any enactment restricting or prohibiting the disclosure of that information by the provider of the information also applies to the receiver of the information.”.
num: 32
paragraphs: — Schedule 1 to the Competition Act 2002 is amended by—