Enforcement

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Investigatory Powers

COMREG has significant investigation powers.  It has wide information gathering powers.  It can carry investigations in relation to matters relating to supply, access to electronic telecommunications and networks.  It can compile and disseminate information.

It can collect, compile, extract and publish information from undertakings relating to the provision of electronic services.  COMREG may gather such information as may be required to provide it with information that it considers necessary for its functions.  Failure to disclose is an offence.

COMREG can require persons to appear before it to be examined under oath.  Failure to appear is an offence. Authorised officials may visit premises for the purpose of gathering information.  This applies both to electronic communications and postal sector.  It may enter any premises where a service is undertaken, search and inspect the premises, books vehicles and books documents and records found in it.

Books and Documents

It may require persons to produce documents, records and books relating to the provision of a service, networks or associated facility within the person’s power or control.  It may require production in legible form of non-legible information.  It may secure premises for later inspection.

It may inspect and make copies of books, documents and records.  It may remove books, documents and records for further examination.  It may require the person to maintain books, documents and records as may be reasonable and directed.

It may require the person to give information which he or she reasonably requires in relation to the provision of electronic services.  It may make such inspections, tests and measurement of apparatus as it considers appropriate.  It may require persons on the premises or place to afford reasonable assistance.  It may take records and photographs. The powers are conferred on authorised officers.

Where a person is prevented from entering a premises an application may be made for a search warrant.  A person in a private dwelling may not be entered other than with the consent of the occupier or a search warrant.  A search warrant authorises entry with the assistance of the Garda Siochana including the use of reasonable force to effect entry within one month of the warrant.

Enhanced Investigatory Powers

The Commission and Minister are given increased information gathering powers in 2007 legislation.  The Minister may, by notice, require the Commission to provide written information in relation to communication networks and infrastructure.  The Minister is given the power to gather information in relation to the technical operation and performance of relevant electronic communication networks, breakdowns or malfunctioning of any part of the service, and the operation of the undertaking in relation to electronic communications infrastructure.

The powers of the Commission to require persons to attend, give evidence and produce documents is enhanced.  The Commission may serve a notice on a person requiring him to attend before it, to give evidence.  Sworn evidence may be required. Proceedings are generally in private unless Commission requires that the proceedings be in public.  The Commission may direct that the whole or part of the proceedings be held in private because of the confidential nature of the information. It is an offence to fail to attend, give evidence or to fail to produce a document as required. It is an offence to give false evidence.

Enforcement

COMREG has powers of civil enforcement.  It may issue a civil compliance notice with notice to prosecute and providing undertaking with an opportunity to remedy, non-compliance if the undertaking has overbilled.  COMREG may apply to the High Court for an Order restraining the breach.

For the purpose of specifying requirements under the framework regulations, COMREG may make directions to an undertaking to do or refrain from doing anything in the direction.  Where COMREG finds a person has not complied obligations under framework regulations or direction it can notify the persons of the findings and give them an opportunity to state their views.

Where at the end of the period COMREG is of the opinion that the person has not complied with the condition or direction they may apply to the High Court for an Order seeking compliance with the condition or directions.  The High Court can make an Order compelling compliance with conditions or directions or it may refuse the Application.

The Application may include an Application to pay a penalty to COMREG as COMREG may propose and the Court may determine.  The Court should consider circumstances of non-compliance including its duration, submissions of the parties, excuses and effects on end-users.  Where there is an immediate serious threat to safety COMREG may issue an urgent direction.

COMREG must consider the representations made.  An Order may not be made under this regulation and where criminal proceedings are pending.  Determinations, directions and notifications shall be in writing and state the reason on which they are based.

The Competition and Consumer Protection Commission has powers to give directions to undertaking the comply with certain provisions of the universal services regulations.  It may appoint an authorised officer and has the powers of COMREG.

If COMREG proposes to refuse to grant an authorisation or withdraw it, it must give reasons and give 28 days to respond.  COMREG may refuse to grant or withdraw the authorisation by notifying the holder.  The holder may then appeal to the High Court.  The Court can either confirm the decision, allow the appeal or make a further appropriate Order.

Enhanced Powers

The Communications Regulation (Amendment) Act 2007 increased the enforcement powers of the Commission for Communications Regulation. It gave greater powers to compel compliance by telecommunication providers with EU regulatory framework obligations on electronic communication networks and services. It increased penalties for breach of certain obligations.

The 2007 Act allowed the Commission to investigate breaches of competition law in the telecommunication sector.  It established an emergency call answering service.  It amended the Electronic Commerce Act to transfer responsibility for oversight and management of the “.ie “domain name to the Commission.

The functions of the Commission were expanded to include the operation of call handling services.  It was granted additional powers relating to telecommunication services, increased powers to investigate at its own initiative or as a result of a complaint.

Enhanced Enforcement

The power of the Commission to prosecute summary offences was confirmed and restated by 2007 legislation. There is a provision for administrative penalties. If the penalty is paid, no prosecution can take place.

It is a (summary) offence to overcharge for a service or product supplied to an end-user, to charge for a  product or service that was supplied but not requested, or that was requested but not supplied.  In investigating the contravention, the Commission may undertake an audit of the regulated undertaker.

Where the undertaking is contravening the above provisions, in cases where it may commit a further contravention, the Commission may apply to the High Court for a restraining order.  The Commission may also seek an order imposing a financial penalty, having regard to the circumstances of the contravention.

Regulations made under the European Communities Act for the purpose of transposing EU law may provide for indictable offences.  The 2007 Act allows for significant penalties with fines up to €4,000,000  or 10 percent of turnover together, with significant additional daily fines. There are provisions which seek to facilitate the prosecution of serious offences. They provide for the admissibility of evidence, expert evidence, documents to assist juries and presumptions regarding the content of certain documents.

Civil enforcement mechanisms are provided for the enforcement of conditions requiring physical infrastructure sharing, against network operators and physical infrastructure operators, such as property developers.

Prior to the 2007 Act, the Commission could only enforce conditions against operators attached to the authorisation to operating electronic communication services. In some cases, developers had entered into arrangements for access to physical infrastructure such as ducts,  with one operator.  The Commission has the power to ensure that any operator is given access to the physical infrastructure controlled by other operators.

Offences

COMREG has sole power prosecute and invite them to rest with the DPP.  There are numerous offences created by the communications legislaiton providing for summary or prosecution on indictment.  In the case of offences by companies with the consent or connivance of directors or managers that person can also be guilty of an offence.

penalties on summary trial are €5,000 or up to €5 million or 10% of turnover on indictment.  Where the Defendant is an individual €500,000 maximum fine, €5,000 for a continuing offence on indictment, €500 for summary trial.  Various defences are available under the regulations.

Framework regulation offences include

  • failing to provide the requested information as COMREG considers necessary to ensure compliance with decisions,
  • allotting numbers not approved by COMREG,
  • failure to keep separate accounts and reports where public communications network undertakes other functions,
  • failure to comply with SMP obligation,
  • failure to comply with directions,
  • failure to appear in enforcement proceedings.

Access regulation offences include

  • using information acquired from another undertaking other than that for which is provided,
  • failure by an operator to have the necessary technical capability
  •  control of distribution system heads,
  • failure to comply with transparency obligation in relation to interconnection or access,
  • discrimination in relation to interconnection access, failure to perform access obligation, f
  • failure to comply with directions.

Regulation 36 relates to the prosecution of universal service regulations by COMREG or the CCPC.

  •  failure to provide fixed-location connections for public telephone network,
  • access to public telephones,
  • failure to include numbers in directory service,
  • failure to provide public telephones,
  • failure to provide disabled users access, affordable tariffs,
  • an obligation to publish information relating to universal service obligation based on service criteria,
  • failure to contribute to universal service obligation provider as required,
  • failure to comply with the obligations in the retail market
  • failure to comply with measures control tariffs,
  • failure to comply with contract minimum terms and information, failure to comply with authorisation obligations,
  • failure to comply with directions.

Civil Enforcement

There is provision for civil enforcement apply in the postal sector.  COMREG can issue directions in respect of universal service .  COMREG can direct tariff principles.

COMREG may issue directions to the universal service provider under the postal regulations.  Where the direction is not complied COMREG shall notify the USP giving it an opportunity to state its views or remedy any non-compliance.  COMREG may amend or revoke a notification.  Where COMREG is of the opinion the USP has not complied with regulations it may apply to the High Court for an Order to direct it to comply.

COMREG may withdraw a postal service or authorisation if the authorisation has not been complied with or has breached An Post’s reserved area.

It is an offence not to comply with COMREG’s request for information.  It is an offence to impede an authorised officer, to fail to appear when attendance is required.  A person operating a postal service with an annual turnover of more than €500,000 without authorisation may be prosecuted in the District Court.

Whistleblower Protections

A person who makes a whistleblower disclosure about the conduct of an undertaking or associates in relation to the provision of electronic communications network or service or associated facilities on reasonable grounds that it is true or that it may be true and to be of significant significance to justify disclosure incurs no civil or criminal liability.  COMREG may not divulge identity without consent except as may be necessary to ensure a proper investigation.  It is a civil wrong to victimize a whistleblower.

The 2007 Act provided increased protections for whistleblowers who divulge information to the Commission in good faith.  They enjoy increased protection against victimisation and other adverse treatment and consequences.  No civil or criminal liability is incurred in relation to a protected disclosure.