PART 2
Amendment of Principal Act, etc.
3.
Amendment of section 2 of Principal Act (interpretation).
3.—
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—
(a)
an enactment specified in Part 1 of Schedule 1, or
(b)
a statutory instrument specified in Part 2 of that Schedule, or
(c)
a statutory instrument made by the Minister for the purpose of giving effect to an
act of an institution of the European Communities relating to—
(i)
the provision of an electronic communications service, an electronic communications
network or associated facility, or
(ii)
the radio frequency spectrum or national numbering resource, or
(iii)
a postal service,
or
(d)
a statutory instrument made by the Commission under an Act specified in Part 1 of
Schedule 1, or
(e)
any Act or statutory instrument declared by a provision of another Act or statutory
instrument to be a related enactment for the purposes of this Act;”;
(f)
by inserting in subsection (1) the following definition after the definition of “television set”:
“‘this Act’ includes all statutory instruments made under this Act;”;
(g)
by repealing subsection (2).
4.
Repeal of section 9 and miscellaneous amendments to other enactments.
4.—
(1)
Section 9 of the Principal Act is repealed.
(2)
The Acts specified in Schedule 1 are amended as indicated in that Schedule.
(3)
The statutory instruments specified in Schedule 2 are amended as indicated in that Schedule. The fact that those instruments are so
amended does not preclude their subsequent amendment by the relevant instrument-making
authority.
(4)
The savings and transitional provisions specified in Schedule 3
have effect.
5.
Amendment of section 10 of Principal Act (functions of Commission).
5.—
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”.
6.
Insertion into Principal Act of new sections 13A to 13E.
6.—
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.”.
7.
Insertion into Principal Act of new sections 24A to 24C.
7.—
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 Síochána).
(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 Síochána) 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.”.
8.
Amendment of section 30 of Principal Act (levies and fees).
8.—
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.”.
9.
Insertion into Principal Act of new sections 31A to 31C.
9.—
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 Oifigiúil, 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.”.
10.
Insertion into Principal Act of new Part 2A.
10.—
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.”.
11.
Substitution of section 43 of Principal Act (prosecution of summary offences by Commission).
11.—
The Principal Act is amended by substituting the following section for section 43:
“Prosecution of summary offences by Commission.
43.—
(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).”.
12.
Amendment of section 44 of Principal Act (notice of Commission of intention to prosecute,
etc.).
12.—
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).
13.
Substitution of sections 45 and 46 of Principal Act.
13.—
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.
45.—
(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.
46.—
(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.”.
14.
Insertion into Principal Act of new sections 46A to 46E.
14.—
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.
46A.—
(1)
If regulations specified in Part 2 of Schedule 1 (inserted by section
18 of the Communications Regulation (Amendment) Act 2007) that give effect to a provision of the treaties governing the European Communities,
or an act, or provision of an act, adopted by an institution of those Communities,
create an offence that is triable summarily, and the Minister considers it is necessary
to do so for the purpose of giving effect to the provision or act, the Minister may,
by regulations, amend the regulations—
(a)
to provide for the offence to be also triable on indictment, and
(b)
subject to subsection (6), to make such provision as the Minister considers necessary
for the purpose of ensuring that penalties in respect of the offence are effective
and proportionate, and have a deterrent effect, having regard to the acts or omissions
to which the offence relates.
(2)
If regulations specified in Part 2 of Schedule 1 that give effect to a provision of
the treaties governing the European Communities, or an act, or provision of an act,
adopted by an institution of those Communities, prohibit or require the doing of an
act, the Minister may, where he or she considers it necessary for the purpose of giving
effect to the provision or act, make regulations amending the first-mentioned regulations—
(a)
to provide that a contravention of the prohibited act, or a failure or refusal to
perform the required act, is an offence,
(b)
to provide for the offence to be triable—
(i)
summarily, or
(ii)
on indictment, if the Minister considers it necessary for the purpose of giving effect
to the provision or act concerned, and
(c)
subject to subsection (6), to make such provision as the Minister considers necessary
for the purpose of ensuring that penalties in respect of the offence are effective
and proportionate, and have a deterrent effect, having regard to the acts or omissions
to which the offence relates.
(3)
The Minister may make regulations for the purpose of giving effect to a provision
of the treaties governing the European Communities, or an act, or provision of an
act, adopted by an institution of those Communities, relating to—
(a)
the provision of an electronic communications service, an electronic communications
network or an associated facility, or
(b)
the radio frequency spectrum or national numbering resource, or
(c)
a postal service.
(4)
Regulations under subsection (3) may contain such incidental, supplementary and consequential
provisions as appear to the Minister to be necessary for the purposes of those regulations
(including provisions repealing, amending or applying, with or without modification,
a related enactment).
(5)
Regulations under subsection (3) may—
(a)
provide for an offence under those regulations to be triable—
(i)
summarily, or
(ii)
on indictment, if the Minister considers it necessary for the purpose of giving effect
to the provision or act referred to in subsection (3),
and
(b)
subject to subsection (6), make such provision as the Minister considers necessary
for the purpose of ensuring that penalties in respect of the offence are effective
and proportionate, and have a deterrent effect, having regard to the act or omission
to which the offence relates.
(6)
The maximum fine that may be provided for in regulations under this section shall—
(a)
in respect of the conviction on indictment of a body corporate of an offence under
the regulations, not be greater than—
(i)
€5,000,000, or
(ii)
if 10 per cent of the turnover of the body is greater than that amount, an amount
equal to that percentage,
or
(b)
in respect of the conviction on indictment of any other person of such an offence,
not be greater than €500,000.
(7)
If the Minister considers it necessary to do so for the purpose of giving full effect
to a provision of the treaties governing the European Communities, or to an act, or
provision of an act, adopted by an institution of those Communities, the Minister
may, in regulations under subsection (1), (2) or (3), provide―
(a)
for the High Court, on application by the Commission or some other person specified
in the regulations, to make―
(i)
an order requiring a specified person, or a person belonging to a specified class,
to comply with an obligation imposed by or under the regulations, or
(ii)
an order restraining such a person from continuing to contravene a prohibition or
restriction specified in or under the regulations,
and
(b)
for the High Court, on being satisfied that such a person has failed to comply with
such an obligation, or has contravened such a prohibition or restriction, to order
the person to pay a financial penalty of such amount as the Court considers appropriate,
having regard to the circumstances of the failure to comply or contravention, including―
(i)
the duration of the failure to comply or the contravention,
(ii)
the effect of the failure to comply or contravention on consumers or users of the
service or product provided or supplied by the person and on the person’s competitors,
(iii)
the submissions of the Commission as to the appropriate amount of the penalty to be
imposed, and
(iv)
any excuse or explanation given by the person with respect to the failure to comply
or contravention.
(8)
If the Minister considers it necessary to do so for the purpose of giving full effect
to a provision of the treaties governing the European Communities, or to an act, or
provision of an act, adopted by an institution of those Communities, the Minister
may, in regulations under subsection (1), (2) or (3), provide—
(a)
that if, after being convicted of an offence, a person continues to do the prohibited
act, or to fail to do the required act, the person commits a further offence on each
day or part of a day during which the act or failure continues, and
(b)
that the person is to be liable on conviction for the further offence―
(i)
if tried summarily, to a fine not exceeding €500, or
(ii)
if tried on indictment, to a fine not exceeding €5,000.
However, if the regulations concerned provide for a person to be tried summarily for
further offences that are alleged to have been committed on successive days, then,
irrespective of anything to the contrary in the regulations concerned, the maximum
fine that can be imposed for those offences under those regulations is €5,000.
(9)
Section 2 of the Ministers and Secretaries (Amendment) (No. 2) Act 1977 does not apply to a power to make regulations for a purpose referred to in subsection
(1), (2) or (3).
(10)
In this section—
‘European Communities’
and
‘treaties governing
the European Communities’
have the same meanings as they have in the European Communities Act 1972; and
‘turnover’
means, in relation to a body corporate, the turnover of the body in the financial
year of the body ending immediately before the financial year in which the offence
of which the body has been convicted was committed.
Admissibility of expert evidence in proceedings under this Act and related enactments.
46B.—
(1)
In civil or criminal proceedings under this Act or a related enactment, the opinion
of any witness who appears to the court to possess the appropriate qualifications
or experience about the matter to which the witness’s evidence relates is admissible in evidence of matters that call for expertise or
special knowledge relevant to the proceedings.
(2)
A court that admits evidence under subsection (1) may, if it is of the opinion that
it is in the interests of justice to do so, direct that the use of the evidence is
to be limited to specified purposes only.
Power of court to order copies of certain documents to be given to juries in certain
criminal proceedings.
46C.—
In a trial on indictment of an offence under this Act or a related enactment, the
trial judge may order copies of any of the following documents to be given to the
jury in such form as the judge considers appropriate:
(a)
any document admitted in evidence at the trial;
(b)
the transcript of the opening speeches of counsel;
(c)
any charts, diagrams, graphics, schedules or agreed summaries of evidence produced
at the trial;
(d)
the transcript of the whole or any part of the evidence given at the trial;
(e)
the transcript of the closing speeches of counsel;
(f)
the transcript of the trial judge’s charge to the jury.
Presumptions to apply in civil and criminal proceedings under this Act and related
enactments.
46D.—
(1)
The presumptions specified in this section apply in civil and criminal proceedings
under this Act and under the related enactments.
(2)
A document purporting to have been created by a person is presumed, unless the contrary
is shown, to have been created by the person. Any statement contained in the document
is, unless the document expressly attributes the statement to some other person, presumed
to have been made by that person.
(3)
A document purporting to have been created by a person and addressed and sent to a
second person is presumed, unless the contrary is shown, to have been created and
sent by the person and received by the second person. Any statement contained in the
document is, unless the contrary is shown, presumed—
(a)
to have been made by the person unless the document expressly attributes the statement
to a third person, and
(b)
to have come to the notice of the second person.
(4)
The author of a document retrieved from an electronic database is, unless the contrary
is shown, presumed to be the person who ordinarily uses the database in the course
of that person’s business.
(5)
If an authorised officer who has, in the exercise of the officer’s powers under this Act, removed one or more documents from a place, gives evidence
in proceedings under this Act or a related enactment that, to the best of the officer’s knowledge and belief, the material is the property of a specified person, the material
is, unless the contrary is shown, presumed to be that person’s property.
(6)
If, in accordance with subsection (5), an authorised officer gives evidence that material
is the property of a specified person and also gives evidence that, to the best of
the officer’s knowledge and belief, the material relates to a particular trade, profession or
other activity carried on by that person, the material is, unless the contrary is
shown, presumed to be material that relates to such a trade, profession or activity.
(7)
A reference in this section to a document is a reference to anything that is in writing.
Admissibility of statements contained in certain documents.
46E.—
(1)
For the purposes of this section, a person is a competent person if the person is
one who might reasonably be expected to have knowledge of the act or omission in question.
(2)
A document that contains a statement by a competent person asserting that an act was
done or was omitted to be done by a specified person is admissible in evidence in
proceedings for an offence under this Act, or under a related enactment, that involves
or relates to doing or omitting to do the act, but only if the document satisfies
the conditions set out in subsection (3).
(3)
The conditions referred to in subsection (2) are that the document—
(a)
came into existence before proceedings for the offence were initiated, and
(b)
was prepared otherwise than in response to an enquiry made or question put by a Commissioner,
a member of the Commission’s staff, a member of the Garda Síochána or an authorised officer relative to any aspect of the proceedings.
(4)
In estimating the weight (if any) to be attached to a statement contained in a document
admitted in evidence in the proceedings, the court shall take into account the circumstances
from which any inference can reasonably be drawn as to the accuracy or otherwise of
the statement.
(5)
If a document containing a statement is admitted in evidence under this section—
(a)
evidence that, if the person making the statement had been called as a witness, would
have been admissible as relevant to the person’s credibility as a witness is admissible for that purpose, and
(b)
evidence may, with the leave of the court, be given of any matter that, had the person
been called as a witness, could have been put in cross-examination as being relevant
to the person’s credibility but of which evidence could not be adduced by the cross-examining party,
and
(c)
evidence tending to prove that the person, whether before or after making the statement,
made (whether orally or not) a statement that is inconsistent with it is (if not already
admissible by virtue of another enactment or a rule of common law) admissible for
the purpose of showing that the person had contradicted himself or herself.
(6)
This section does not affect the admissibility, in proceedings for an offence under
this Act or a related enactment, of a document as evidence of matters stated in it,
if the document would be admissible in the proceedings because of the operation of
any other enactment or a rule of common law.”.
15.
Insertion into Principal Act of new section 57A.
15.—
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.”.
16.
Insertion into Principal Act of new Part 6.
16.—
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 Síochána, 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 Oifigiúil, 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 Oifigiúil, 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.”.
17.
Insertion into Principal Act of new Part heading.
17.—
The Principal Act is amended by inserting the following Part heading before section
59:
“PART 7
Miscellaneous Provisions”.
18.
Substitution of Schedule 1 to Principal Act.
18.—
The Principal Act is amended by substituting the following Schedule for Schedule 1:
“SCHEDULE 1
Related Enactments for the Purposes of this Act
PART 1
Acts
(1)
The Wireless Telegraphy Act 1926:
(a) section 2;
(b) section 2A;
(c) section 3(3B) to 3(3C) (except in relation to television sets);
(d) section 3(6);
(e) section 5 (except in relation to licensing television sets);
(f) section 6 (except in relation to licensing television sets);
(g) section 7 (except in relation to licensing television sets);
(h) section 8 (except in relation to licensing television sets);
(i) Section 9(1) (except in relation to aircraft);
(j) section 10A(2);
(k) section 12(2) (except in relation to television sets or broadcasting matters or
aircraft as appropriate);
(l) section 13 (except as regards prosecutions for offences under section 3 in respect
of television sets);
(2)
the Broadcasting Authority Act 1960, section 16(3)(a);
(3)
the Wireless Telegraphy Act 1972, sections 5, 7 and 8;
(4)
the Postal and Telecommunications Services Act 1983:
(a) section 5(6) (the functions of the Minister in so far as they relate to the company);
(b) section 70(2);
(5)
the Radio and Television Act 1988, sections 2, 4, 5 and 7;
(6)
the Broadcasting and Wireless Telegraphy Act 1988, sections 1, 3, 6, 7, 13, 14 and 20;
(7)
the Broadcasting Act 1990, sections 1, 9(1), 12, 16 and 17;
(8)
the Irish Aviation Authority Act 1993, section 70;
(9)
the Telecommunications (Miscellaneous Provisions) Act 1996, sections 1 and 7 (subsection (5) excepted).
PART 2
Statutory Instruments
(1)
Wireless Telegraphy (Business Radio Licence) Regulations 1949 (S.I. No. 320 of 1949);
(2)
Telecommunications Tariff Regulation Order 1996 (S.I. No. 393 of 1996) (as amended by S.I. No. 438 of 1999);
(3)
European Communities (Mobile and Personal Communications) Regulations 1996 (S.I. No. 123 of 1996);
(4)
European Communities (Telecommunications Services Monitoring) Regulations 1997 (S.I. No. 284 of 1997);
(5)
European Communities (Telecommunications Infrastructure) Regulations 1997 (S.I. No. 338 of 1997);
(6)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Mobile Telephones) Order 1997
(S.I. No. 409 of 1997);
(7)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Sound Broadcasting Receivers)
Order 1972 (S.I. No. 211 of 1972);
(8)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Certain Wired Broadcast Relay
Stations) Order 1976 (S.I. No. 200 of 1976);
(9)
Wireless Telegraphy (Community Repeater Licence) Regulations 1988 (S.I. No. 83 of 1988);
(10)
Wireless Telegraphy (Radio Link Licence) Regulations 1992 (S.I. No. 319 of 1992);
(11)
Wireless Telegraphy (Cordless Telephones)(Exemption) Order 1997 (S.I. No. 410 of 1997);
(12)
Wireless Telegraphy (GSM and TACS Mobile Telephony Licence) Regulations 1997 (S.I. No. 468 of 1997);
(13)
European Communities (Electromagnetic Compatibility) Regulations 1998 (S.I. No. 22 of 1998);
(14)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Short Range Business Radios)
Order 1998 (S.I. No. 93 of 1998);
(15)
European Communities (Interconnection in Telecommunications) Regulations 1998 to 2000,
comprising:
(a)Regulation 3 of the European Communities (Telecommunications) (Amendment) Regulations,
1998 (S.I. No. 286 of 1998);
(b)Regulation 6 of the European Communities (Voice Telephony and Universal Service)
Regulations 1999 (S.I. No. 71 of 1999); and
(c)the European Communities (Interconnection in Telecommunications) (Amendment) Regulations
1999 (S.I. No. 249 of 1999);
(16)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Satellite Earth Stations for
Satellite Personal Communications Services (S-PCS)) Order 1998 (S.I. No. 214 of 1998);
(17)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Citizens’ Band (CB) Radios) Order 1998 (S.I. No. 436 of 1998);
(18)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of DCS 1800 Mobile Terminals)
Order 1999 (S.I. No. 107 of 1999);
(19)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of ERMES Paging Receivers) Order
1999 (S.I. No. 108 of 1999);
(20)
Wireless Telegraphy (Fixed Wireless Point-to-Multipoint Access Licence) Regulations
1999 (S.I. No. 287 of 1999);
(21)
Wireless Telegraphy (GSM and TACS Mobile Telephony Licence) Regulations 1999 (S.I. No. 442 of 1999);
(22)
European Communities (Conditional Access) Regulations 2000 (S.I. No. 357 of 2000);
(23)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Certain Fixed Satellite Receiving
Earth Stations) Order 2000 (S.I. No. 273 of 2000);
(24)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Mobile Satellite Earth Stations
for Satellite Personal Communication Systems operating in bands below 1 GHz (S-PCS<1
GHz)) Order 2000 (S.I. No. 173 of 2000);
(25)
Wireless Telegraphy (Fixed Satellite Earth Stations) Regulations 2000 (S.I. No. 261 of 2000);
(26)
Wireless Telegraphy (Teleport Facility) Regulations 2001 (S.I. No. 18 of 2001);
(27)
European Communities (Radio Equipment and Telecommunications Terminal Equipment) Regulations
2001 (S.I. No. 240 of 2001);
(28)
Telecommunications (Miscellaneous Provisions) Act 1996 (Section 6) (Postal Levy) Order
2001 (S.I. No. 282 of 2001);
(29)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of certain classes of Land Mobile
Earth Stations) Order 2001 (S.I. No. 398 of 2001);
(30)
Telecommunications (Miscellaneous Provisions) Act 1996 (Section 6) (Postal Levy) No.
2 Order 2001 (S.I. No. 474 of 2001);
(31)
Wireless Telegraphy (Teleport Facility) Regulations 2001 (S.I. No. 18 of 2001);
(32)
Wireless Telegraphy (Third Generation and GSM Mobile Telephony Licence) Regulations
2002 (S.I. No. 345 of 2002);
(33)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Short Range Devices) Order
2002 (S.I. No. 405 of 2002);
(34)
Wireless Telegraphy (Mobile Radio Systems) Regulations 2002 (S.I. No. 435 of 2002);
(35)
Wireless Telegraphy (Experimenter’s Licence) Regulations 2002 (S.I. No. 450 of 2002);
(36)
European Communities (Postal Services) Regulations 2002 (S.I. No. 616 of 2002);
(37)
Telecommunications Tariff Regulation Order 2003 (S.I. No. 31 of 2003);
(38)
Wireless Telegraphy (Fixed Wireless Access Local Area Licence) Regulations 2003 (S.I. No. 79 of 2003);
(39)
European Communities (Electronic Communications Networks and Services) (Access) Regulations
2003 (S.I. No. 305 of 2003);
(40)
European Communities (Electronic Communications Networks and Services) (Authorisation)
Regulations 2003 (S.I. No. 306 of 2003);
(41)
European Communities (Electronic Communications Networks and Services) (Framework)
Regulations 2003 (S.I. No. 307 of 2003);
(42)
European Communities (Electronic Communications Networks and Services) (Universal
Services and Users’ Rights) Regulations 2003 (S.I. No. 308 of 2003);
(43)
Communications Regulation Act 2002 (Section 30) Levy Order 2003 (S.I. No. 346 of 2003);
(44)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Certain Classes of Fixed Satellite
Earth Stations) Order 2003 (S.I. No. 505 of 2003);
(45)
Wireless Telegraphy (Multipoint Microwave Distribution System) Regulations 2003 (S.I. No. 529 of 2003);
(46)
European Communities (Electronic Communications Networks and Services) (Data Protection
and Privacy) Regulations 2003 (S.I. No. 535 of 2003);
(47)
Wireless Telegraphy (UHF Television Programme Retransmission) Regulations 2003 (S.I. No. 675 of 2003);
(48)
Communications Regulation Act 2002 (Section 30) Postal Levy Order 2003 (S.I. No. 733 of 2003);
(49)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Low Power Aircraft Earth Stations)
Order 2004 (S.I. No. 7 of 2004);
(50)
Wireless Telegraphy (Research and Development Licence) Regulations 2005 (S.I. No. 113 of 2005);
(51)
Wireless Telegraphy (Third-Party Trial Licence) Regulations 2005 (S.I. No. 114 of 2005);
(52)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of certain classes of Land Mobile
Earth Stations) Order 2005 (S.I. No. 128 of 2005);
(53)
Wireless Telegraphy Act 1926 (Section 3) (Exemption of Receive Only Apparatus for
Wireless Telegraphy) Order 2005 (S.I. No. 197 of 2005);
(54)
Wireless Telegraphy (Wideband Digital Mobile Data Services) Regulations 2005 (S.I. No. 642 of 2005);
(55)
Wireless Telegraphy (Third-Party Business Radio Licence) Regulations 2005 (S.I. No. 646 of 2005);
(56)
Wireless Telegraphy (National Point-to-Point and Point-to-Multipoint Block Licences)
Regulations 2006 (S.I. No. 296 of 2006);
(57)
Wireless Telegraphy (Wireless Public Address System) Regulations 2006 (S.I. No. 304 of 2006);
(58)
Wireless Telegraphy (Ship Station Radio Licence) Regulations 2006 (S.I. No. 414 of 2006).”.
PART 4
Amendment of Competition Act 2002
22.
Amendment of section 3 of Competition Act 2002 (interpretation).
22.—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;”.
23.
Amendment of section 4 of Competition Act 2002 (anti-competitive agreements, decisions
and concerted practices).
23.—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”.
24.
Amendment of section 6 of Competition Act 2002 (offence in respect of breach of section
4(1) or Article 81(1) of the Treaty).
24.—Section 6 of the Competition Act 2002 is amended by substituting “European Commission” for “Commission” wherever occurring.
25.
Amendment of section 8 of Competition Act 2002 (penalties and proceedings in relation
to offences under section 6 and 7).
25.—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”.
26.
Amendment of section 13 of Competition Act 2002 (admissibility of statements contained
in certain documents).
26.—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 Síochána, an officer of the European Commission or an authorised officer relative to any
matter the subject of those proceedings.”.
27.
Amendment of section 14 of Competition Act 2002 (right of action for breaches of competition
rules).
27.—Section 14 of the Competition Act 2002 is amended by substituting “the competent authority” for “the Authority”, wherever occurring.
28.
Amendment of section 18 of Competition Act 2002 (obligation to notify certain mergers
and acquisitions).
28.—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”.
29.
Amendment of section 34 of Competition Act 2002 (provisions for co-operation between
the Authority and statutory bodies).
29.—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.”.
30.
Substitution of section 47 of Competition Act 2002.
30.—
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.
47.—
(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 Síochána, 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 Oifigiúil, designate a person or a class of persons for the purpose of paragraph (c) of the definition of ‘authorised person’ in subsection (4).”.
31.
Insertion into Competition Act 2002 of new Part4A.
31.—
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.”.
32.
Amendment of Schedule 1 to Competition Act 2002.
32.—
Schedule 1 to the Competition Act 2002 is amended by—
(a)
the deletion of the item of the Schedule relating to the Director of Telecommunications
Regulation, and
(b)
the substitution—
(i)
in column (1), of “Commission for Communications Regulation” for “Director of Telecommunications Regulation”, and
(ii)
in column (2), of “Minister for Communications, Marine and Natural Resources” for “Minister for Public Enterprise” wherever it occurs.
