Arbitration Acts 1954 to 1998
Broadcasting Act 2009	2009, No. 18
Communications Regulation (Amendment) Act 2007	2007, No. 22
Communications Regulation Act 2002	2002, No. 20
Companies Acts
Competition Act 2002	2002, No. 14
Dublin Transport Authority (Dissolution) Act 1987	1987, No. 34
Roads Act 1993	1993, No. 14
Roads Act 2007	2007, No. 34
Roads Acts 1993 to 2007
Road Traffic Act 1961	1961, No. 24
Road Traffic Acts 1961 to 2007

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Number 2 of 2010

COMMUNICATIONS REGULATION (PREMIUM RATE SERVICES AND ELECTRONIC COMMUNICATIONS INFRASTRUCTURE) ACT 2010

AN ACT TO PROVIDE FOR THE REGULATION OF PREMIUM RATE SERVICES BY THE COMMISSION FOR COMMUNICATIONS REGULATION AND TO AMEND THE COMMUNICATIONS REGULATION ACT 2002 AND TO PROVIDE FOR CONNECTED MATTERS.

[16th March, 2010]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

Preliminary and General

Short title, collective citation and construction.

1.— (1) This Act may be cited as the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010.

(2) The Principal Act, the Act of 2007 and this Act may be cited together as the Communications Regulation Acts 2002 to 2010 and shall be read together as one.

Definitions.

2.— In this Act—

“Commission” means Commission for Communications Regulation;

“ Principal Act” means Communications Regulation Act 2002 .

PART 2

Regulation of Premium Rate Services

Definitions (Part 2).

3.— In this Part—

“Act of 2007” means Communications Regulation (Amendment) Act 2007;

“broadcasting service” has the meaning assigned to it by the Broadcasting Act 2009;

“end user” has the meaning assigned to it by section 13 (5);

“facility” in relation to the provision of premium rate services, includes a facility—

(a) for making a payment for goods or services,

(b) for entering a competition or claiming a prize,

(d) for enabling access to a premium rate service;

“licence” means a premium rate service licence;

“Minister” means Minister for Communications, Energy and Natural Resources;

“premium rate service” means a service having all of the following characteristics:

(a) it consists in the provision of the contents of communications (other than a broadcasting service) through an electronic communications network or by using an electronic communications service, which may include or allow the use of a facility made available to the users of the service,

(b) there is a charge for the provision of the service which exceeds the cost attributable to communications carriage alone, and

(c) the charge referred to in paragraph (b) is paid by the end user of the service directly or indirectly to the provider of the electronic communications network or electronic communications service used in connection with the provision of the service by means of a billing or other agreed payment mechanism;

“premium rate service licence” means a licence authorising a premium rate service provider to provide a premium rate service under and in accordance with section 6 ;

“premium rate service provider” means a person who does any or all of the following, for gain:

(a) provides the contents of a premium rate service,

(b) exercises editorial control over the contents of a premium rate service,

(d) makes available a facility as part of a premium rate service,

(e) transfers a premium rate service from a content provider to one or more electronic communications networks, or

(f) provides the electronic communications service over which a premium rate service is provided, or provides the electronic communications network over which a premium rate service is transmitted;

“Regtel” means Regulator of Premium Rate Telecommunications Services Limited formed under the Companies Acts on 1 June 1995 (registration number 234027);

“specified premium rate service” means a premium rate service which is a premium rate service specified in regulations under section 7 as being a premium rate service which is required to be licensed under section 6 .

Appointed day.

4.— The Minister may appoint a day to be the appointed day for the purposes of this Part and upon which this Part has effect.

Function of Commission to regulate premium rate services.

5.— (1) Section 10(1) of the Principal Act is amended—

(a) by inserting after paragraph (ca) (inserted by section 5(b) of the Act of 2007) the following:

“(cb) to ensure compliance by premium rate service providers with their obligations in relation to the provision, content and promotion of premium rate services,”,

and

(b) by substituting for paragraph (d) (inserted by section 5(c) of the Act of 2007) the following:

“(d) to carry out investigations into matters relating to—

(i) the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmissions of such services on such networks, and

(ii) the provision, content and promotion of premium rate services,”,

and that subsection, as so amended, is set out in the Table to this subsection.

TABLE.

10.— (1) The functions of the Commission are—

(a) to ensure compliance by undertakings with obligations in relation to the supply of and access to electronic communication services, electronic communications networks and associated facilities and the transmission of such services on such networks,

(b) to manage the radio frequency spectrum and the national numbering resource, in accordance with a direction under section 13,

(c) to ensure compliance by providers of postal services with obligations in relation to the provision of postal services,

(ca) to monitor the quality and efficiency of the emergency call answering service established under Part 6,

(cb) to ensure compliance by premium rate service providers with their obligations in relation to the provision, content and promotion of premium rate services,

(d) to carry out investigations into matters relating to—

(i) the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmissions of such services on such networks, and

(ii) the provision, content and promotion of premium rate services,

(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

(e) to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service of radio equipment.

(2) Where a specified premium rate service is advertised or promoted by means of a broadcasting service, it is the function of the Commission to ensure that the premium rate service provider, whose specified premium rate service is advertised or promoted, complies with the conditions attached to the licence in respect of that premium rate service.

Licence to provide premium rate services.

6.— (1) A person who intends to provide a specified premium rate service shall, before doing so, submit an application to the Commission for a licence to provide that service.

(2) An application under subsection (1) shall be in such form as the Commission may, from time to time, determine and shall contain, as decided by the Commission, in the case of any particular type or class of service all or any of the following information—

(a) the name of the person (“applicant”) intending to provide the premium rate service including, in the case of a body corporate, the company registration number,

(b) the names, addresses and contact details of relevant contact persons provided by the applicant including, in the case of a body corporate the names, addresses and contact details of the directors of the company,

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

(d) a description of the type of premium rate service to be provided, including—

(i) the trading and brand names under which each service is to be marketed to end users, including any short versions or variants of those names that appear in advertising,

(ii) the customer service contact information for each service, including website address, telephone number and e-mail address, and

(iii) a list of individual services that are being offered along with their linked premium rate numbers or any other service identifier which may be communicated to the customer or used as a billing reference on the customer’s bill,

(e) the potential end users for which each premium rate service is intended,

(f) the estimated date of commencement of the provision of each premium rate service, and

(g) such other relevant information the Commission considers appropriate.

(3) The Commission upon receipt of an application under subsection (1) may grant to the applicant a licence ( “premium rate service licence” ) to provide premium rate services, subject to any condition attached to the licence, or it may refuse a licence in accordance with subsection (4).

(4) The Commission may refuse to grant a licence on one or more of the following grounds:

(a) that the information required to be provided under subsection (2) has not been received by the Commission, or has been received but is deemed by the Commission to be incomplete, inaccurate or false,

(b) that the applicant or any company (within the meaning of the Companies Acts) with which the applicant was connected was, during the previous 5 years, convicted of an offence for—

(i) contravening section 12 or 13 , or

(ii) failing to comply with Regulation 13 of the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 ( S.I. No. 535 of 2003 ),

(c) that any person responsible or proposed to be responsible for the management of the applicant’s business in relation to providing premium rate services has been refused a licence or had a licence suspended or revoked.

(5) The Commission shall notify the applicant of its decision to refuse to grant the applicant a licence and state the appeal procedure set out in section 11 .

(6) A licensed premium rate service provider may provide any of the premium rate services set out in his or her licence.

(7) A licence is in force for the period stated in it. Different periods may be specified for different classes or types of premium rate services.

(8) A licence may be amended by the Commission following a notification to it under subsection (9).

(9) A licensed premium rate service provider shall notify the Commission of—

(a) any change to the information provided in accordance with subsection (2), at least 14 days before the change takes effect, or

(b) any new premium rate service which he or she wishes to provide, at least 14 days before the date of commencement of provision of that service.

(10) A premium rate service provider, who is authorised by Regtel to provide premium rate services under an authorisation which is in force immediately before the appointed day, is deemed to be granted a licence by the Commission under this section, which shall be in force for the period of 6 months after that day.

Regulations specifying conditions attached to premium rate service licence.

7.— (1) The Commission shall make regulations specifying—

(a) the class or type of premium rate services which require to be licensed under section 6 ,

(b) conditions (including the basis and circumstances upon which refunds may be made to end users) to be attached to licences to be observed by the holders of licences,

(c) that certain conditions do not apply to certain classes or types of premium rate services or premium rate service providers, and

(d) the information that licensed premium rate service providers shall, upon request, provide to the Commission.

(2) Any attachment of conditions, or non-application of conditions, under subsection (1) shall be objectively justified in relation to the premium rate service concerned and shall be non-discriminatory, proportionate and transparent.

(3) A premium rate service provider shall comply with all of the conditions attached to the licence applicable to the provider and the condition referred to in section 15 (6).

(4) In making regulations under subsection (1), the Commission shall consult with the Broadcasting Authority of Ireland or such other regulatory bodies in the State as it considers relevant, in particular in relation to any class or type of premium rate service that comes under the definition of on-demand audiovisual media services under the Council Directive.

(5) In this section “Council Directive” means Council Directive 89/552/EEC of 3 October 1989 1 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 2 and by Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 3 .

Application to High Court for immediate suspension of licence, etc.

8.— (1) Where the Commission considers that the immediate suspension of a licence is necessary to protect the users or potential users of any premium rate service provided by the licensee, until steps or further steps are taken under this Act, the Commission may, on notifying the licensee, make an application to the High Court for an order to suspend the licence.

(2) The High Court may determine an application under subsection (1) by—

(a) making any order that it considers appropriate, including an order suspending the licence of the licensee, the subject of the application, for such period or until the occurrence of such event, as is specified in the order, and

(b) giving to the Commission any other direction that the High Court considers appropriate.

(3) The Commission shall, on complying with a direction of the High Court under subsection (2)(b), notify the licensee concerned of the Commission’s compliance with the direction.

Investigation to ensure compliance.

9.— (1) Where the Commission conducts an investigation under section 10(1)(d)(ii) of the Principal Act—

(a) to ensure that the conditions of a licence are being complied with, or

(b) in respect of an alleged breach of a condition attached to a licence,

and finds, on foot of the investigation, that a premium rate service provider has not complied with or has breached a condition attached to his or her licence, it shall notify the provider of the findings and require the provider to remedy any non-compliance or breach and to refund any charge imposed by the provider on any end user in respect of any premium rate service that is connected with the non-compliance or breach not later than—

(i) one month after issue of the notification,

(ii) such shorter period as is agreed by the Commission with the provider concerned or stipulated by the Commission for reasons stated in the notification, or

(iii) such longer period as may be specified by the Commission.

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

Revocation, amendment or suspension of premium rate service licence.

10.— (1) Where the Commission decides, on foot of an investigation under section 10(1)(d)(ii) of the Principal Act and at the end of the period referred to in section 9 (1), that a premium rate service provider has failed to comply with or breached any condition attached to its licence, the Commission, if it considers it appropriate to do so, may revoke, amend or suspend for a period, the licence.

(2) Subject to subsection (3), where the Commission—

(a) proposes to revoke, amend or suspend a licence it shall notify the holder of the proposal and afford the holder an opportunity to make representations within 7 days of the issue of notification of the proposal, and

(b) decides having considered any representations under paragraph (a) to revoke, amend or suspend the licence, it shall notify the holder of its decision stating the appeal procedure set out in section 11 , when the decision takes effect and, in the case of a suspension, the duration of the suspension.

(3) Where the Commission considers that the failure to comply with or breach of a condition attached to a licence is a serious failure or breach which should cease immediately or is of an urgent nature which should so cease, subsection (2) and the period of time referred to in section 9 (1) does not apply, and, accordingly, the investigation takes place and any revocation, amendment or suspension of the licence takes effect upon notification.

Right of appeal.

11.— (1) An appeal against a decision taken by the Commission to refuse to grant or to revoke, amend or suspend a licence lies with the Circuit Court in whose circuit the provider carries on business or where the provider carries on business in the whole of the State, the Dublin Circuit Court.

(2) An appeal must be lodged within 7 days after the affected party has been notified of the decision.

(3) A copy of the appeal must be served on the Commission, whereupon the Commission becomes the respondent to the appeal.

(4) The Circuit Court shall hear and determine an appeal and may make such orders as it considers appropriate, which may include but are not limited to—

(a) an order affirming or setting aside the whole or any part of the decision of the Commission, and

(b) an order remitting the case to the Commission to be redetermined, either with or without the hearing of further evidence, in accordance with the directions of the Court.

Offence — prohibition on providing premium rate service without licence.

12.— (1) A person who provides a specified premium rate service without holding a licence in respect of the service provided commits an offence.

(2) A person who commits an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment—

(i) in the case of a body corporate, to a fine not exceeding €250,000, or

(ii) in the case of any other person, to a fine not exceeding €50,000.

Premium rate service provider not to overcharge or charge for services not supplied.

13.— (1) A premium rate service provider shall not impose, or purport to impose, in respect of a specified premium rate service, a charge—

(a) for supplying the premium rate service to an end user that exceeds the amount for the service specified—

(i) in the provider’s published charges, or

(ii) in a written statement previously made or given to the end user by the provider in relation to that supply,

(b) for supplying a premium rate service to an end user that was not requested by the end user, or

(2) A premium rate service provider that contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000.

(3) Subject to subsection (4), where a premium rate service provider is convicted summarily of an offence under subsection (2), the court may, on application to it by the Commission, after having regard to the nature of the offence and the circumstances in which it was committed, order that—

(a) the licence, or all the licences, held by the licensee be revoked and that the former licensee be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new licence or a particular type or class of new licence, or

(b) any charge imposed on any end user concerned in the contravention of subsection (1) to which the offence relates be repaid to the end user by the provider,

or both.

(4) An order under subsection (3), does not take effect until—

(a) the ordinary time for bringing an appeal against the conviction concerned has expired without any such appeal having been brought,

(b) any such appeal has been withdrawn or abandoned, or

(5) In this section—

“charges”, in relation to a specified premium rate service, includes any list setting out the prices charged by a premium rate service provider to end users;

“end user” means a person to whom a premium rate service is supplied or who has requested the supply of such a service, otherwise than for the purpose of resupply.

14.— (1) The Commission shall establish and maintain a register (“register”) of licensed premium rate service providers and shall include in it such information, as provided in any application under section 6 , as the Commission considers appropriate, other than information which it reasonably considers confidential.

(2) The register shall be in electronic form and such other form (if any) as the Commission decides.

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

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

(5) In any proceedings a certificate bearing the seal of the Commission stating that the register shows that on the date or during the period specified in the certificate the name of the person identified by the certificate was not entered in the register, is admissible as evidence of the fact that a person identified by the certificate was not licensed by the Commission to provide a premium rate service under section 6 before that date or during that period.

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

Code of practice.

15.— (1) The Commission shall, following consultations with premium rate service providers, other interested persons and, as it considers relevant, other regulatory bodies in the State, prepare and publish, as soon as is practicable after the appointed day, a code of practice to be followed by premium rate service providers with respect to—

(a) the provision, content and promotion of specified premium rate services, and

(b) the conditions set for specified premium rate services under regulations under section 7 .

(2) Before publishing a code of practice or any part of a code of practice, the Commission—

(a) shall publish in such manner as it considers appropriate a draft of the code of practice or the part of the draft code of practice and shall give premium rate service providers, other interested persons and, as it considers relevant, other regulatory bodies in the State one month from the date of publication of the draft code or the part of the draft code within which to make written representations to the Commission in relation to the draft code or the part of the draft code, or for such further period, not exceeding 2 months, as the Commission in its absolute discretion thinks fit,

(b) shall, having considered the representations, if any, publish the code or the part of the code with or without modification as the Commission in its absolute discretion thinks fit, and

(c) where the Commission publishes a code of practice or any part of a code of practice, it shall publish a notice of such publication in the Iris Oifigiúil and that notice shall—

(i) identify the code,

(ii) specify the matters concerned in respect of which the code is published, and

(iii) specify the date on which the code comes into operation.

(3) The Commission may, following consultation with premium rate service providers, other interested persons and, as it considers relevant, other regulatory bodies in the State amend or revoke any code of practice or part of any code of practice prepared and published by it under this section.

(4) Where the Commission amends or revokes a code of practice or any part of a code of practice published under this section, it shall publish notice of the amendment or revocation in the Iris Oifigiúil.

(5) The Commission shall make available for public inspection, without charge, on the Commission’s website on the internet and at its principal office, during normal working hours—

(a) a copy of each code of practice, and

(b) where a code of practice has been amended, a copy of the code as so amended.

(6) It is a condition of a premium rate service licence that any code of practice is complied with.

(7) The code of practice in relation to the matters referred to in subsection (1) prepared and published by Regtel on 1 October 2008 continues and is the code of practice until a code of practice replacing it is prepared and published by the Commission under this section.

Consequential amendments of Principal Act.

16.— The Principal Act is amended—

(a) in section 2(1)—

(i) by substituting for the definition of “Minister” the following:

“ ‘Minister’ means Minister for Communications, Energy and Natural Resources;”,

(ii) by inserting after the definition of “postal services” the following:

“ ‘premium rate service’ has the meaning assigned to it by the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;

‘premium rate service licence’ means a licence granted under section 6 of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 to provide premium rate services;

‘premium rate service provider’ has the meaning assigned to it by the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;”, and

(iii) in the definition of “end user” (inserted by section 3(c) of the Act of 2007) by inserting “or a premium rate service” after “associated facility”,

(b) in section 12(1)—

(i) in paragraph (b), after “under section 13,” by deleting “and”,

(ii) in paragraph (c), by substituting “users, and” for “users”, and

(iii) by inserting after paragraph (c) the following:

“(d) to protect the interests of end users of premium rate services.”,

(c) in section 13(1), by substituting “electronic communications, premium rate services” for “electronic communications”,

(d) in section 30—

(i) by inserting after subsection (2) the following:

“(2A) For the purpose of meeting expenses properly incurred by the Commission in the discharge of its function in relation to premium rate services, the Commission may make an order imposing a levy on premium rate service providers.”,

(ii) in subsection (3) by inserting “or premium rate services” after “electronic communications services”,

(iii) by substituting for subsection (11) the following:

“(11) The Commission shall not impose a levy on providers of—

(a) electronic communications for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of postal services or premium rate services,

(b) postal services for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of electronic communications services or premium rate services, or

(c) premium rate services for the purposes of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of postal services or electronic communications services.”,

and

(iv) in subsection (13) by substituting “this section” for “subsection (1) or (2)”,

(e) in section 31(2) by inserting “premium rate services,” after “communications,”,

(f) in section 31B(2) (inserted by section 9 of the Act of 2007) by substituting for paragraph (c) the following:

“(c) regulating postal services, and

(d) regulating premium rate services.”,

(g) in section 31C(2) (inserted by section 9 of the Act of 2007) by inserting “premium rate services,” after “communications,”,

(h) in section 32(1) by inserting “and premium rate services” after “electronic communications”, and

(i) in section 39—

(i) in subsection (1), by inserting “or the Competition Act 2002” after “this Act”,

(ii) in subsection (3), by inserting “the Competition Act 2002” after “under this Act,”, and

(iii) in subsection (3), by inserting “or premium rate services” after “postal services” in each place it occurs in paragraphs (a), (b), (c) and (g).

Notifications.

17.— (1) Where a notification is required to be given by the Commission under this Part to a premium rate service provider, it shall be in writing and addressed to the provider and shall be given to the provider in one of the following ways—

(a) by delivering it to the provider,

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

(c) by sending it by post in a pre-paid registered letter addressed to the provider at the address at which the provider carries on business,

(d) if an address for the service of a notification has been furnished by the provider, by leaving it at, or sending it by pre-paid registered post addressed to the provider to, that address, or

(e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the provider carries on business or, if an address for the service of a notification has been furnished by the provider, that address, but only if—

(i) the sender’s—

(I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or

(II) facsimile machine generates a message confirming successful transmission of the total number of pages of the notification,

and

(ii) the notification is also given in one of the other ways mentioned in any of the preceding paragraphs.

(2) For the purposes of subsection (1), a company registered under the Companies Acts is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.

(3) A copy of a notification, which has endorsed on it a certificate purporting to be signed by an officer of the Commission stating that the copy is a true copy of the notification may, without proof of signature of that person, be produced in every court and in all legal proceedings and is evidence, unless the contrary is shown, of the notification.

Transfer to Commission of staff of Regtel.

18.— (1) Every person who immediately before the appointed day is a member of the staff of Regtel shall on that day become a member of the staff of the Commission.

(2) Subject to the consent of the Minister and the Minister for Finance, a person transferred under subsection (1) shall not while in the service of the Commission receive a lesser scale of pay or be subject to less beneficial conditions of service or less favourable tenure of office than that to which he or she was entitled or enjoyed immediately before the appointed day.

Transitional provision — Regtel.

19.— Any legal proceedings, in connection with the regulation of premium rate services, pending immediately before the appointed day to which Regtel is a party shall be continued with the substitution in the proceedings for Regtel of the Commission.

Revocation.

20.— The Telecommunications (Premium Rate Telephone Services) Scheme 1995 ( S.I. No. 194 of 1995 ) is revoked.

PART 3

Electronic Communications Infrastructure

Amendment of Part 5 of Principal Act — electronic communications infrastructure roadworks and sharing.

21.— (1) Section 52 of the Principal Act is amended by—

(a) inserting after the definition of “Act of 2000” the following:

“ ‘ authority’ means NRA or a road authority, as the case may be;”,

(b) substituting for the definition of “consent” the following:

“ ‘consent’ means a consent granted by an authority under section 53(3) or, in the case of emergency roadworks, deemed to be granted under section 53(4);”,

“ ‘NRA’ means National Roads Authority;”,

and

(d) by substituting for the definitions of “public road”, “road”, “road authority” and “roadworks” the following:

“ ‘public road’ means a national road, regional road or local road;

‘road’, ‘national road’, ‘regional road’ and ‘local road’ have the meanings assigned to them, respectively, by the Roads Act 1993;

‘road authority’ has the meaning assigned to it by section 2 (inserted by section 11 of the Roads Act 2007 ) of the Roads Act 1993 ;

‘roadworks’ means the opening of a public road or any act or work that requires or causes the closing of a public road or part of a public road, including the opening or closing of a public road or part of a public road for the purposes of opening ducts, for the purpose of the establishment, extension, replacement, repair, removal or maintenance of works on electronic communications infrastructure.”.

(2) The following section is substituted for section 53 of the Principal Act:

“Opening of public road for establishment of underground electronic communications infrastructure.

53.— (1) A network operator shall not commence or carry out or cause to be commenced or carried out any roadworks unless—

(a) the operator—

(i) has obtained the prior written consent under subsection (3) of—

(I) in the case of a national road, the NRA, or

(II) in the case of any regional or local road, the road authority, in whose functional area the operator proposes to carry out the roadworks,

(ii) is deemed to have been granted consent under subsection (4), where the roadworks are emergency roadworks,

(b) the network operator or any person engaged by the network operator complies with any conditions contained in the consent.

(2) A network operator or a person engaged by the network operator who contravenes subsection (1) commits an offence and is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €1,000,000.

(3) Subject to this section and any regulations under section 56(2)—

(a) the NRA, following consultation, not exceeding 21 days, with the road authority in whose functional area the national road exists, may grant consent to a network operator, upon application to it by the operator, to carry out roadworks on a national road, or

(b) a road authority may grant consent to a network operator, upon application to it by the operator, to carry out roadworks on a regional road or local road in the functional area of the road authority,

for the purposes of—

(i) establishing underground electronic communications infrastructure and any associated physical infrastructure,

(ii) extending the underground electronic communications network to parts of the road under which electronic communications infrastructure has not previously been placed by that network operator,

(iii) carrying out roadworks on underground electronic communications infrastructure, being maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure, or

(iv) installing electronic communications infrastructure in ducts, which are the responsibility of an authority, on public roads,

subject to any conditions contained in the consent.

(4) Subject to regulations made in respect of emergency roadworks under section 56(2), a consent shall be deemed to be granted where the proposed roadworks are emergency roadworks, subject to any conditions the authority concerned may decide while the emergency roadworks are in progress or completed. The network operator shall inform the authority concerned as soon as is practicable in advance of the commencement of those roadworks.

(5) A consent may contain conditions. Any conditions contained in a consent—

(a) shall not discriminate unfairly between network operators, and

(b) shall be consistent with the need for the authority to carry out its functions under this Part and under the Roads Acts 1993 to 2007 and the Road Traffic Acts 1961 to 2007.

(6) Where an authority proposes to grant consent to a network operator under subsection (3) or a consent is granted under subsection (4), the consent may contain conditions which, without prejudice to any other conditions it proposes to impose on the network operator, may—

(a) provide that network operators meet any losses, liabilities and costs suffered or incurred by the authority, under contractual arrangements with a third party, where such losses, liabilities and costs arise as a result of any act undertaken by the network operator, under section 53(3) or (4), in relation to electronic communications infrastructure,

(b) where ducts on national roads are provided and made available by an authority to a network operator, provide that the authority shall not be liable to that network operator for any loss or damage howsoever caused to the electronic communications infrastructure in those ducts, which is the property of the network operator except for such loss or damage caused by the wilful act or gross negligence of the authority or its agents acting on its behalf, and

(c) provide that the authority may have representatives present at work sites for the purpose of determining compliance with any conditions imposed in connection with any act undertaken by the network operator, under a consent issued under section 53(3) or (4), in relation to electronic communications infrastructure.

(7) An authority granting consent shall notify the network operator, in writing, of the reason for any conditions contained in the consent.

(8) The NRA, in the case of a national road, following consultation, not exceeding 21 days, with a road authority in whose functional area the national road exists, or a road authority, in the case of regional and local roads in its functional area, may, subject to any regulations under section 56(2), impose charges on network operators—

(a) for the grant of consents to cover the administrative costs, including costs involved in monitoring compliance with consents, incurred by the authority under this section, and

(b) for reasonable costs it may incur in making good long term damage to a public road as a result of road openings carried out by the network operator.

(9) The NRA, may in the case of national roads, make a scheme which will allow for the NRA to impose charges for the use of ducts, which are provided and made available on those roads by an authority to a network operator, subject to the approval of the Minister for Transport following consultation with the Minister and the Minister for Finance.

(10) When considering an application for a consent, an authority shall have regard to—

(a) the existing and potential use and availability of space under the surface of the public road concerned, including—

(i) the requirements of the authority in the performance of its functions and responsibilities,

(ii) the course and depth of ducts to be laid by the applicant,

(iii) the existence of ducts in addition to those which are immediately required by any network operator, and

(iv) the existence of duct space in addition to that which is reasonably required by any network operator,

(b) the safe and efficient operation of the public road,

(d) the protection of the environment and of amenities including residential amenities,

(e) the manner and timing of the reinstatement of the road,

(f) any scheme adopted under subsection (11), and

(g) any contractual arrangements which an authority may have with a third party.

(11) The NRA, in the case of national roads, following consultation, not exceeding 60 days, with road authorities, or a road authority, in the case of regional and local roads in its functional area, may formulate and, after public consultation, adopt a scheme setting out its policy regarding—

(a) the use of underground road capacity, including the rationing of any particular underground spaces below roads,

(b) conditions (including restrictions and requirements) that may be imposed by it in relation to the grant of consents, either generally or with respect to specific areas or circumstances,

(d) charges under this Part, and

(e) emergency roadworks.

(12) The Minister for Transport, in consultation with the Minister, may issue guidelines to be followed by an authority in relation to public consultation regarding a scheme drawn up by it under subsection (11).

(13) An authority shall consult with the Commission before attaching a condition to a consent it proposes to grant requiring the applicant to lay additional ducts.

(14) Where the holder of a consent fails to comply with any condition attached to a consent, the authority which granted the consent may withdraw the consent.

(15) Where an authority proposes—

(a) to refuse to grant consent,

(b) to grant consent subject to conditions, or

the authority shall notify the network operator concerned in writing of the proposal and shall include in the notification a statement of the reasons for the proposal and of the right of the network operator to make representations to the authority under subsection (16).

(16) A network operator may, within 21 days of the receipt by the operator of a notification under subsection (15), make representations to the authority concerned in relation to the proposal.

(17) Where an authority—

(a) after consideration of any representations made to it by a network operator under subsection (16), or

(b) does not receive representations from the network operator concerned within the period specified in subsection (16),

decides—

(i) to refuse to grant consent,

(ii) to grant consent subject to conditions, or

(iii) to withdraw its consent,

the authority shall, not more than 21 days after the expiration of the period specified in subsection (16), notify the network operator in writing of its decision and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (18).

(18) A network operator may, within 28 days of the receipt by the operator of a notification under subsection (17), appeal to the High Court against the decision concerned and the Court may—

(a) confirm the decision,

(b) amend the decision, or

(19) A network operator shall be responsible for all costs incurred in the reinstatement of a road which the operator has opened for the purpose of—

(a) the establishment of underground electronic communications infrastructure, or

(b) maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure,

to a standard satisfactory to the authority concerned.

(20) The requirement to hold a licence under section 254 of the Act of 2000 in respect of subsection (1)(e) of that section does not apply where a network operator has been granted a consent.

(21) A network operator shall, on a request being made by an authority, provide among other things—

(a) such information as the authority may require in relation to the utilisation of underground electronic communications infrastructure owned or operated by the operator, and

(b) such access to underground electronic communications infrastructure owned or operated by the operator, as may be necessary to enable the authority to exercise its functions under this section.

(22) An authority may apply to the High Court for an order—

(a) by way of injunction, to prohibit any non-compliance, or

(b) by way of mandamus, to direct any compliance,

with a requirement of this section or the conditions of consent. The Court may grant such order as it sees fit.

(23) This section is without prejudice to section 101D (inserted by the Dublin Transport Authority (Dissolution) Act 1987 ) of the Road Traffic Act 1961 (which relates to directions given by local authorities to persons carrying out roadworks).

(24) A summary offence under subsection (2) may be prosecuted by—

(a) where the offence relates to a national road, the NRA or the road authority in whose functional area the offence is committed, or

(b) where the offence relates to a regional or local road, the road authority within whose functional area the offence is committed.”.

(3) The following are substituted for sections 55 and 56 of the Principal Act:

“Cost apportionment for electronic communications infrastructure relocation due to road improvements.

55.— (1) Notwithstanding section 254(4) of the Act of 2000 and subject to this section, where an authority undertakes work for the purposes of improving a public road, it shall pay to a network operator all reasonable costs incurred by the operator in the relocation (except in relation to the relocation of ducts as referred to in subsection (2)) of its electronic communications infrastructure and any associated physical infrastructure necessitated by and directly attributable to that work.

(2) Where ducts, which are provided and made available on a national road by an authority for use by network operators, are required to be moved arising from any works undertaken by an authority to improve the road, then—

(a) the authority shall only cover the costs of relocating the ducts, necessitated and directly attributable to that work,

(b) the network operator or network operators using those ducts shall be responsible for any costs incurred by the operator in the relocation of its electronic communications infrastructure in those ducts necessitated by and directly attributable to that work, and

(3) Where a network operator makes an application for consent under section 53(3), the NRA shall, where it proposes to grant consent to the network operator in respect of the application, inform the network operator of the responsibility imposed on the network operator for relocation costs incurred by the network operator referred to in subsection (2)(b).

(4) Where electronic communications infrastructure and any associated physical infrastructure is replaced or improved by a network operator in the course of relocation due to road improvement, the authority concerned shall pay only the costs directly attributable to work done to electronic communications infrastructure and any associated physical infrastructure as a result of roadworks which would have been incurred if the electronic communications infrastructure and any associated physical infrastructure existing immediately before the road improvement had been relocated.

(5) A network operator shall be responsible to an authority for any costs incurred by the authority where the network operator fails to carry out the relocation of its electronic communications infrastructure in a safe, expeditious and efficient manner.

(6) Where an authority, on an application to it by a network operator to carry out roadworks over, along, on (under section 254 of the Act of 2000) or under (under section 53) a public road, gives the operator notice that the road is due to be improved by the authority within the period of 2 years of the date from which the operator intends to carry out the works, the authority shall not be responsible for the cost of relocating electronic communications infrastructure or anything connected with the works where the road improvement proceeds within that period.

(7) Where a dispute or difference arises between a network operator and an authority in respect of the cost of the relocation of electronic communications infrastructure, the dispute or difference shall be determined by agreed conciliation procedures between both parties or, in default of such agreement, by arbitration under the Arbitration Acts 1954 to 1998.

Regulations and policy directions to authorities.

56.— (1) The Minister may, with the consent of the Minister for Transport, for the purposes of sections 54(2) and 55, make regulations to establish the basis for the calculation by a network operator of costs reasonably attributable to costs incurred by the network operator as a result of roadworks, and to establish an objective measure of works to be deemed to be improvements to electronic communications infrastructure for the purposes of this Part.

(2) The Minister for Transport may, with the consent of the Minister, for the purposes of section 53 make regulations, in relation to—

(a) any conditions, restrictions or requirements to be made in a consent,

(b) the imposition of charges by authorities,

(d) emergency roadworks.

(3) The Minister for Transport after consultation with the Minister, may, subject to any regulations under this section, issue policy directions to authorities in connection with the exercise of the powers of authorities under this Part.”.

(4) Section 60(1) of the Principal Act is amended by substituting for paragraph (e) the following:

“(e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the person carries on business or, if an address for the service of a notification has been furnished by the person, that address, but only if—

(i) the sender’s—

(I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or

(II) facsimile machine generates a message confirming successful transmission of the total number of pages of the notification,

and

(ii) the notification is also given in one of the other ways mentioned in any of the preceding paragraphs.”.

Emergency directions — termination of electronic communications services.

22.— (1) The Commission may, in the case of the termination of an electronic communications service affecting a substantial number of users, issue an emergency direction to an undertaking—

(a) providing wholesale access to the copper access network associated with the service, to reconnect the copper to the network in order to minimise disruption of service to those users and to provide access to emergency services,

(b) providing wholesale access to carrier pre-selection and single billing wholesale line rental in the relevant market, to reconfigure the switching in respect of the wholesale service used directly or indirectly by another undertaking providing the retail service in order to minimise disruption to those users and to provide access to emergency services, or

(c) that is directly or indirectly a wholesale provider of another undertaking that has caused the termination of the electronic communications service, whose network is necessary for the provision of an electronic communications service to users, to take whatever technical steps are required to provide a network connection in order to minimise disruption to those users and to provide access to emergency services,

without first having to consult interested parties. The first-mentioned undertaking shall comply with the emergency direction issued to it.

(2) Where an undertaking fails to comply with an emergency direction the Commission may make an application to the High Court for an order directing compliance with the emergency direction and the Court may make such order as it sees fit.

(3) In this section—

“copper access network” means the copper cables connecting a user’s premises as part of an electronic communications network to the local exchange of the undertaking that is a wholesale provider of access to that network;

“emergency direction” means a direction under subsection (1);

“termination” means where an electronic communications service ceases to be provided and will not be restored in the immediate future;

“substantial number” means 2,000 users in the case of any termination of an electronic communications service.

¹ OJ No. L. 298/23, 17.10.1989

² OJ No. L. 202/60, 30.07.1997

³ OJ No. L. 332, 18.12.2007

Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 Permanent Page URL

Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010

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