The EU is well aware that if it is to have any hope of competing with the USA in e-commerce, then Europeans must have access to inexpensive telecoms infrastructure and services.
Last March at the conclusion of the intergovernmental conference in Lisbon, a commitment was issued to dramatically shake up European and national telecoms markets. In July the European Commission issued eight items of draft legislation, with the objective that Europe should have a fully integrated and liberalised telecoms sector by the end of next year.
These commitments and the draft legislation are reflected in the outline legislative proposals in relation to the regulation of the communications sector. This promises to dramatically change Irish telecoms.
It will create a three-member commission for communications regulation to replace the Office of the Director of Telecommunications Regulation.?. The primary objective of this commission will be to promote and sustain a competitive telecommunications market in Ireland with a view to achieving maximum benefit for users in terms of choice, price, quality, value for money and access. The achievement of other objectives such as universal access, integrity and safety of communications, consumer protection and the development of the European internal market are stated to be desirable, but will not be mandatory.
The main way the proposal will achieve an open and competitive market is by allowing Eircom's competitors unbundled access to Eircom's "local loop" network, which is the last mile of wire connecting homes and businesses to telephone exchanges and the wider telecoms network. The proposal will force Eircom to provide the same facilities to its competitors as itself. It will have to allow its competitors physical access to any technically feasible point of the local loop and allow them to connect their own equipment and facilities. Eircom's competitors will be able to run their wires wherever they want. Customers wanting a phone will no longer have to pay Eircom to connect them if a competitor is willing to do so.
If this is insufficient to ensure an effective market, then the commission can force Eircom to provide facilities to competitors, including ducts, buildings or masts, as well as intellectual property. Although Eircom will be able to charge for the use of its facilities, it must publish a price list and it cannot charge itself a preferential rate. The commission will be able to force it to provide transparent accounts and to vary its prices.
This will all seriously interfere with Eircom's constitutional right to property and the similar rights of its shareholders, but there may be very little that it can do about it. Insofar as the proposal simply implements European legislation, the Irish constitution will be of little relevance.
Any Irish review of the proposal's effects and the commission will be very difficult. The proposal is designed to ensure that litigation will not be allowed to embarrass or delay the future deregulation of the Irish telecoms market, as occurred in the case of Orange versus The Office of the Director of Telecommunications Regulation & Meteor. The proposal provides that the commission's decisions cannot be "questioned", save by means of a judicial review.
This will mean that a decision can only be questioned on very limited grounds. These grounds could include allegations such as that the commission had exceeded its legal authority, failed to follow fair procedures or was biased. It might prove to be very difficult to get the leave of the courts to bring such a review.
Before allowing such a review to be initiated, the courts must have regard to the fact that the commission has to efficiently regulate the telecoms market. Even if it could be proven that the commission was biased or acting unfairly, if the commission felt that its decisions were in the interests of those employing or relying on electronic communications, then the courts would not be able to permit the initiation of a judicial review.
It should be kept in mind that the courts' unwillingness to substitute their opinion for the regulator's was set out by the Supreme Court in Orange versus The Office of the Director of Telecommunications Regulation & Meteor.
The commission will have to report to an Oireachtas committee, but only in a general way and it will not be bound by any recommendation that an Oireachtas committee makes. The only Irish institution with any real power to review the commission's work will be the Minister for Public Enterprise. She will be empowered to direct the commission, but only in very limited circumstances: the Minister must consult the commission first; only general directions can be given; she cannot give a direction in respect of an individual undertaking, telecoms licence-holder or person; and, the Minister can only issue directions in the interests of the proper and effective regulation of the telecoms market.
If the Minister or Oireachtas should disagree with the commission they cannot withhold funds to bring it into line. The commission will fund itself with a levy imposed on telecommunications companies, which it will collect and may retain. Nor can recalcitrant commissioners be fired - they can only be removed if they become incapable through ill-health or for stated misbehaviour.
Denis Kelleher is a practising barrister; deniskelleher@ireland.com
