The European Electronic Communications Code (the “EECC”) is expanding the remit of national telecoms regulation across the EU to cover ‘interpersonal communication services’ (“ICS”) as well as traditional telecoms services. While the ICS definition has yet to be interpreted by the courts, it is clear that it covers many OTT messaging and calling services (for consumers and enterprises) such as IM, Skype, Viber, cloud services and content providers that were not regulated on the basis of the current framework.
Once the Communications Regulation (Enforcement) Bill 2022 and the European Union (Electronic Communications Code) Regulations 2022 have been enacted, transposing the EECC into Irish law, the OTTs will be required to obtain an authorisation and comply with the rules set out in the general telecoms framework. See our Cracking the Code: Ireland upgrades its telecommunications regulatory enforcement regime & paves the way for delayed transposition of the EECC in 2022 article summarising the recently published Bill and Regulations.
General Authorisation for the Provision of Telecoms Services in Ireland
The provision of communications services in Ireland is subject to the regime set out in the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (the "Authorisation Regulations"), which confer operators a general right to provide an electronic communications network ("ECN") or an electronic communications service ("ECS") (or both) provided certain conditions are complied with (the "General Authorisation"). No distinction is made as to the type of network or service (eg, mobile, fixed (including public Wi-Fi) or satellite).
Separate licensing regimes govern the possession and use of transmission equipment (Point-to-Point and Point-to-Multipoint) and radio spectrum under the Wireless Telegraphy Act 1926 (as amended).
As there are no eligibility requirements and no individual authorisation is required for a service, the provider declares an intention to provide ECN or ECS to the Commission for Communications Regulation ("ComReg") via its online portal (Electronic Register of Authorised Undertaking ("ERAU")).
This notification form requires general information about the company, including a description of the services they are intending to provide, the relevant geographic area where the service will be available, and an estimate of the launch date of the service. There is no requirement for documentary evidence to supplement this.
Operators are free to commence operations once a properly and fully completed notification has been received by ComReg. The details of notified authorised operators are automatically listed on the ERAU register and the notifying party is immediately subject to the Irish regulatory regime and the conditions set out in the General Authorisation.
A standardised declaration is issued by ComReg within seven days of notification, which confirms that the service provider or network operator has submitted a notification and outlines their rights in terms of planning regulations and access, and interconnection from which they benefit.
Failure to notify ComReg of intention to provide ECN and ECS is an offence under the Authorisation Regulations and may attract a fine of up to (i) €5,000 on a summary conviction, or (ii) €500,000 on conviction on indictment.
There are no fees associated with making such a notification. However, authorised operators must pay an annual licence fee. The annual fee is equal to 0.2% of operator's turnover in Ireland achieved from the provision of ECN or ECS, subject to a minimum annual turnover of €500,000.
Operators may also be asked to contribute to a universal service fund, however no such fund has been established in Ireland yet.
There is no requirement to renew this type of licence as the General Authorisation is unlimited in duration.