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Telecoms and MediaContributing editorsLaurent Garzaniti and Natasha Good

2016© Law Business Research 2016

Telecoms and Media 2016Contributing editors

Laurent Garzaniti and Natasha GoodFreshfields Bruckhaus Deringer LLP

PublisherGideon [email protected]

SubscriptionsSophie [email protected]

Business development managers Alan [email protected]

Adam [email protected]

Dan [email protected]

Published by Law Business Research Ltd87 Lancaster Road London, W11 1QQ, UKTel: +44 20 3708 4199Fax: +44 20 7229 6910

© Law Business Research Ltd 2016No photocopying without a CLA licence. First published 2000 (ISSN 1471-0447)Seventeenth editionISSN 2044-7183

The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of April 2016, be advised that this is a developing area.

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© Law Business Research 2016

CONTENTS

2 Getting the Deal Through – Telecoms and Media 2016

Global overview 7Laurent Garzaniti, Natasha Good and Hein HobbelenFreshfields Bruckhaus Deringer LLP

Net neutrality update for the United States 10Julie A VeachHarris, Wiltshire & Grannis LLP

Smart cities 12Angus Henderson and Daryl CoxWebb Henderson

Angola 16António Vicente MarquesAVM Advogados

Australia 22Simon Muys, Peter Waters and Adelina WidjajaGilbert + Tobin

Austria 30Bertram Burtscher and Gernot FritzFreshfields Bruckhaus Deringer LLP

Belgium 36Laurent Garzaniti, Hein Hobbelen and Anneleen StraetemansFreshfields Bruckhaus Deringer LLP

Brazil 45Ricardo Barretto Ferreira and Paulo BrancherBarretto Ferreira e Brancher Sociedade de Advogados (BKBG)

Bulgaria 51Violetta Kunze and Milka IvanovaDjingov, Gouginski, Kyutchukov & Velichkov

Canada 59Laurence J E Dunbar, Leslie J Milton, Scott M Prescott and Stephen P WhiteheadFasken Martineau DuMoulin LLP

Chile 67Alfonso Silva and Eduardo MartinCarey

China 75Chuan Sun and Diane NgFreshfields Bruckhaus Deringer

European Union 86Laurent Garzaniti, Thomas Janssens, Hein Hobbelen and Alexia Burckett St LaurentFreshfields Bruckhaus Deringer LLP

France 97Jérôme Philippe and Aude GuyonFreshfields Bruckhaus Deringer LLP

Germany 105Norbert Nolte, Theresa Ehlen and Christoph WerkmeisterFreshfields Bruckhaus Deringer LLP

Ghana 112Porcia Lauretta Mawuena Agbo and Susan-Barbara Adjorkor KumapleyBentsi-Enchill, Letsa & Ankomah

Greece 117Dina Th Kouvelou and Nikos Th NikolinakosNikolinakos – Lardas & Partners Law Firm

Hong Kong 123Chuan Sun and Diane NgFreshfields Bruckhaus Deringer

India 130Atul Dua, Gaurav Dhwaj and Arjun UppalSeth Dua & Associates

Indonesia 137Agus Ahadi Deradjat, Kevin Omar Sidharta and Serafina MuryantiAli Budiardjo, Nugroho, Reksodiputro

Ireland 145Helen KellyMatheson

Italy 153Tommaso Salonico and Luca UlissiFreshfields Bruckhaus Deringer LLP

Japan 161Chie KasaharaAtsumi & Sakai

Macedonia 166Gjorgji Georgievski and Marko NajdenovskiODI Law Firm

Mexico 173Julián J Garza C and Gustavo Díaz BNader, Hayaux & Goebel, SC

Myanmar 179Chester Toh, Alroy Chan and Tan Jen LeeRajah & Tann Singapore LLP

Netherlands 185Onno Brouwer, Winfred Knibbeler and Nima LorjéFreshfields Bruckhaus Deringer LLP

New Zealand 191Jordan Cox and Alexandra BlairWebb Henderson

Nigeria 197Tamuno Atekebo, Otome Okolo and Chukwuyere E IzuoguStreamsowers & Köhn

Poland 204Eligiusz Krześniak and Piotr ChochowskiSquire Patton Boggs


www.gettingthedealthrough.com 3

CONTENTS

Portugal 210Nuno Peres AlvesMorais Leitão, Galvão Teles, Soares da Silva & Associados

Russia 217Igor Gerber, Andrey Filippenko and Olga MelekhinaFreshfields Bruckhaus Deringer LLP

Singapore 223Chong Kin Lim, Charmian Aw and Shawn TingDrew & Napier LLC

South Africa 237Ridwaan Boda, Anneke Meiring, Mpho Thulare and Mpho ManyalaENSafrica

Switzerland 243Marcel Meinhardt, Astrid Waser and Mario StrebelLenz & Staehelin

Taiwan 249Robert C LeeYangMing Partners

Turkey 254Gönenç Gürkaynak and İlay YılmazELIG, Attorneys-at-Law

Ukraine 260Volodymyr Igonin and Taisiia AsadchykhVasil Kisil & Partners

United Kingdom 266Rod Carlton, Mark Sansom, Olivia Hagger and Matthew Sinclair-ThomsonFreshfields Bruckhaus Deringer LLP

United States 280Kent Bressie, Paul Margie, Julie A Veach and Michael NilssonHarris, Wiltshire & Grannis LLP


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IrelandHelen KellyMatheson

Communications policy

1 Regulatory and institutional structure

Summarise the regulatory framework for the communications sector. Do any foreign ownership restrictions apply to communications services?

The Department of Communications, Energy and Natural Resources (DCENR) is the relevant governmental department responsible for the telecoms and media sector. The regulator is the Commission for Communications Regulation (ComReg).

Ireland has implemented the European regulatory framework govern-ing the electronic communications sector by way of primary and secondary legislation. Primary legislation consists of the Communications Regulation Acts 2002–2011. In 2011, Ireland introduced a number of regulations to transpose the European reform package, namely:• the European Communities (Electronic Communications Networks

and Services) (Framework) Regulations 2011 (the Framework Regulations);

• the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 (the Access Regulations);

• the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 (the Authorisation Regulations);

• the European Communities (Electronic Communications Networks and Services) (Universal Service and User’s Rights) Regulations 2011 (the Universal Service Regulations); and

• the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (the Privacy Regulations).

No foreign ownership restrictions apply to communications services.

2 Authorisation/licensing regime

Describe the authorisation or licensing regime.

The provision of communications services is subject to the regime set out in the Authorisation Regulations, which confers a general right to provide an electronic communications network (ECN) or an electronic commu-nications service (ECS) (or both) provided certain conditions are com-plied with. No distinction is made as to the type of network or service (eg, mobile, fixed or satellite).

The notification procedure for obtaining a general authorisation involves the completion of a notification form, which can be completed online. Operators are free to commence operations once a properly and fully completed notification has been received by ComReg. A notifying party is, however, immediately subject to the Irish regulatory regime and the conditions set out in the general authorisation. Conditions that may be attached to a general authorisation are set out in the schedule to the Authorisation Regulations.

General authorisations are unlimited in duration. No fee is payable on notification; however, an annual levy (0.2 per cent of relevant turnover) is payable where an operator’s turnover in Ireland in the relevant financial year is €500,000 or more.

The European Framework as transposed also governs the granting of rights of use for numbers and radio spectrum. On 22 December 2015

ComReg decision 08/15 revised the numbering conditions of use and application process.

Fixed and mobile service providers may also need to obtain a licence under the Wireless Telegraphy Act 1926 (as amended) in connection with the use of wireless telegraphy apparatus. Non-compliance with the Wireless Telegraphy Act can be prosecuted by ComReg.

In 2013, ComReg granted liberalised use licences to the then four mobile network operators operating in Ireland (Hutchison 3G Ireland Limited (Three), Vodafone Ireland Limited (Vodafone), Telefónica Ireland Limited (O2 Ireland), Meteor Mobile Communications Limited (Meteor) (owned by eircom Limited (eir)) for liberalised use spectrum in the 800MHz, 900MHz and 1,800MHz bands, following an auction process. In May 2014, the European Commission approved the acquisition of O2 Ireland by Three.

ComReg does not propose to issue licences of indefinite duration or to include any implied or express right of renewal, extension or any other form of prolongation. It considers that periodic predetermined re-release of spectrum is the most appropriate mechanism for the release of new 3.6GHz spectrum rights to maximise the efficient use of spectrum.

In December 2015, ComReg commenced a consultation process with the publication of its Draft Radio Spectrum Management Strategy 2016 to 2018, which outlines the indicative work plan items that ComReg intends to carry out within that time frame, including further developing ComReg’s award proposals in relation to the 700MHz, 1.4GHz, 2.3GHz and 2.6GHz bands.

3 Flexibility in spectrum use

Do spectrum licences generally specify the permitted use or is permitted use (fully or partly) unrestricted? Is licensed spectrum tradable or assignable?

The legal framework controls ComReg’s management of the radio fre-quency spectrum in Ireland. ComReg has issued licences on a technology and service-neutral basis (eg, the ‘liberalised use’ licences issued follow-ing the 2012 spectrum auction were issued ‘to keep and have possession of apparatus for wireless telegraphy for terrestrial systems capable of provid-ing ECSs’). ComReg considers that spectrum trading is a spectrum manage-ment tool that, along with other measures, can increase the efficient use of spectrum rights.

However, ComReg may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for ECS where this is necessary (eg, to avoid harmful interference, safeguard the efficient use of spectrum, etc).

In February 2014, ComReg published regulations (the Wireless Telegraphy (Transfer of Spectrum Rights of Use) Regulations 2014) and guidelines for spectrum trading in the RSPP bands. ComReg considers the setting out of a spectrum leasing framework for the RSPP bands a prior-ity action within the 2016 to 2018 time frame. ComReg has imposed an ex-ante regime for reviewing notified spectrum transfers to determine whether such transfers would distort competition in the market. Where the transfer forms part of a wider transaction that is subject to merger control scrutiny by the Irish Competition and Consumer Protection Commission (CCPC) or by the European Commission, the framework and guide-lines will not apply and the appropriate competition body will be the sole


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decision-making body. ComReg must be informed of any such merger or acquisition at the same time it is notified to the relevant competition body. The framework and guidelines deal solely with spectrum trading; ComReg has indicated that it will deal with spectrum leasing and sharing or pool-ing on a case-by-case basis pending further consideration of the same. In September 2014, ComReg consulted on new spectrum awards in the 2.6GHz bands with possible inclusion of 700MHz, 1.4GHz, 2.3GHz and 3.6GHz bands. ComReg proposed to adopt a technology-neutral approach to licensing of the bands in question. In July 2015, ComReg consulted on the proposed release of spectrum rights of use in the 3.6GHz band in a separate competitive award process in advance of the 2.6GHz and other bands. ComReg published responses to both consultations and indicated that while competition caps would be regarded as fundamental during the bidding process to ensure a pro-competitive outcome, bidders would be free to trade, lease and combine rights of use of spectrum following the auction to the extent that such rights of use of spectrum are designated as being tradable or leasable in the award conditions and in line with competi-tion law and the legal framework for electronic communications in Ireland. ComReg stated that although it will not be obligatory, spectrum leasing will be permitted in the 3.6GHz band subject to procedures that it intends to put in place prior to the expiry of existing fixed wireless access local area (FWALA) licences on 31 July 2017.

In December 2015, ComReg published a response and draft deci-sion on the proposed 3.6GHz band spectrum award. In the case of spec-trum awards determined by reference to geographic area and established regional borders, ComReg considers that leasing of spectrum by operators is the most effective mechanism to ensure efficient use of high sites near regional borders. It does not intend to impose a sub-leasing licence condi-tion but it is proposed that licensees (both in city and rural regions) will be free, and indeed encouraged, to negotiate sub-leasing arrangements with other operators. ComReg considers that it is for the market to determine the price on the award and re-assignment of spectrum rights.

4 Ex-ante regulatory obligations

Which communications markets and segments are subject to ex-ante regulation? What remedies may be imposed?

The following communications markets are subject to ex-ante regulation:

Fixed communications• Retail access to the public telephone network at a fixed location: eir

has been designated with significant market power (SMP) in this mar-ket and the remedies imposed on eir include access and price control obligations, and an obligation not to unreasonably bundle this service with its other services.

• Wholesale call origination on the public telephone network provided at a fixed location: eir has been designated with SMP in this market and the remedies imposed on eir include access, non-discrimina-tion, transparency, accounting separation, price control and cost accounting.

• Wholesale call termination on individual public telephone networks provided at a fixed location: seven fixed service providers (namely, eircom Limited, BT Communications Ireland Limited, Verizon Ireland Limited, Virgin Media Ireland Limited (formerly UPC Communications Ireland Limited), Colt Telecom Ireland Limited, Smart Telecom Holdings Limited and Magnet Networks Limited) have been designated as having SMP. All operators are subject to a price control and cost accounting obligations, with separate price control and accounting obligations applying to eir.

• Wholesale (physical) network infrastructure access at a fixed location (AFL): eir has been designated with SMP in this market and the reme-dies imposed on eir include access, transparency, non-discrimination, accounting separation, price control and cost accounting obligations.

• Wholesale broadband access: eir has been designated with SMP in this market and the remedies imposed on eir include access, transpar-ency, non-discrimination, accounting separation, price control, cost accounting obligations, a national cost orientation obligation and obli-gations not to cause a retail margin squeeze.

• Wholesale terminating segments of leased lines: eir has been des-ignated with SMP in this market and the remedies imposed on eir include access, transparency, non-discrimination, accounting separa-tion, price control and cost accounting obligations.

Mobile communications• Wholesale voice call termination on individual mobile networks: six

mobile network operators were designated as having SMP in this mar-ket (namely, Vodafone, O2 Ireland (acquired by Three), Meteor, Three, Tesco Mobile Ireland Limited and Lycamobile Ireland Limited). Remedies imposed on these operators include access, non-discrimina-tion, transparency and price control obligations. The methodology for the price control obligation was challenged and the High Court found in part favour of Vodafone. The Court did not conclude the appeal on the applicable pricing methodology pending completion of a cost model by ComReg. Vodafone was ordered to charge a rate of no more than 2.6 cents per minute in the interim. Other MNOs and MVNOs in the market remain under a general cost orientation obligation. ComReg has appealed the judgment which is currently pending before the new Court of Appeal. On 11 April 2014, ComReg published a consultation on the parameters for the draft bottom-up Pure LRIC MTR model and this consultation included a detailed discussion of the design of the model. In June 2014 ComReg received six submissions in response to that consultation, which were subsequently published. In light of these responses and following a subsequent request by ComReg for further information in September 2014, ComReg updated certain aspects of the draft bottom-up Pure LRIC MTR model. ComReg issued a sup-plementary consultation on 26 February 2015, together with consul-tation reports prepared by Deloitte and Analysys Mason and a final decision is to follow once ComReg has received and considered the responses to this supplementary consultation. ComReg published the submissions to the supplementary consultation on 17 November 2015. The final decision (and consultation responses) was published on 12 February 2016, a year later than originally planned. ComReg adopted the Final MTR Model which calculates the pure LRIC maximum MTR for Ireland on an annual basis (2016–2018), as follows: (i) 0.84 euro cents per minute for 2016; (ii) 0.82 euro cents per minute for 2017; and (iii) 0.79 euro cents per minute for 2018. Pursuant to Regulations 13 and 18 of the Access Regulations, for each year of the price control period, each MSP designated with SMP shall ensure that its MTR is no more than the rate determined for that year in accordance with the Final MTR Model.

The Telecom Single Market EU regulation on mobile roaming is to be enforced in Ireland from 30 April 2016.

Non-compliance with requests for information to inform market analysis can be prosecuted by ComReg. Recent cases in the Dublin District Court had the Probation Act applied to Vodafone on condition that it donate €7,500 to charity and Vodafone agreed to make a contribution to ComReg’s costs in the amount of €15,000, and indicated it would put in place a range of measures to prevent any recurrence of such an offence.

5 Structural or functional separation

Is there a legal basis for requiring structural or functional separation between an operator’s network and service activities? Has structural or functional separation been introduced or is it being contemplated?

Structural separation has not been provided for in the Irish communica-tions regulatory framework. Structural separation can be imposed under the Competition Acts 2002–2014 as a remedy in cases entailing an abuse of dominance contrary to section 5 of the Competition Acts 2002–2014.

Functional separation powers do exist as an exceptional remedy in respect of vertically integrated operators with SMP under the regulatory framework, in circumstances where ComReg concludes that: (i) transpar-ency, non-discrimination, accounting separation, access and price control obligations have failed to achieve effective competition; and (ii) where it has identified important and persisting competition problems or market failures in relation to the wholesale provision of certain access markets.

6 Universal service obligations and financing

Outline any universal service obligations. How is provision of these services financed?

Eir has been designated as universal service provider (USP) since 2006. On 7 July 2014, eir was re-designated as USP for a period of 18 months and this term lasted until 31 December 2015. ComReg has decided to continue to apply the current obligations in respect of the provision of AFL on eir for six months from 1 January 2016 to 30 June 2016, until the future provision


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of AFL universal service obligation (USO) is completed. ComReg is now engaged in a detailed review of the access at a fixed location (AFL) obliga-tion and published a consultation on the matter in August 2015. ComReg has said that it is considering and taking account of the views of all respondents to its consultations and requires the additional time to prepare and issue a further consultation, allow time for receipt of responses, consider them and then publish a final decision.

For the current designation, ComReg has chosen to forbear from regulatory intervention in the area of broadband as a USO. Accordingly, ComReg has not currently defined the USO of functional internet access at a rate necessary to deliver broadband for the time being to observe the effects of technological developments and market provision on broadband availability. The following points should be noted in relation to the USO:• eir must satisfy any reasonable request to provide, at a fixed location,

connections to the public telephone network and access to a publicly available telephone service (PATS);

• eir must provide end-users with a comprehensive directory of sub-scribers, whether in printed or electronic form (or both), free of charge and updated at least once a year, based upon information supplied to it in accordance with the National Directory Database (NDD) (in 2014, ComReg decided that the obligation should be amended to allow for consumer preferences for receiving the directory to be recorded on an opt-out basis for two years followed by an opt-in basis for a further two years);

• the maintenance of the NDD is no longer a USP obligation;• eir must ensure that public pay telephones are provided to meet the

reasonable needs of end-users (although ComReg decided in 2014 that where usage of such public payphones falls below a certain level, removal may be permitted);

• an accessibility statement must be published to ensure equivalence in access and choice for disabled end-users is now an obligation of all undertakings and the provision of specialised terminal equipment for disabled end-users is no longer an obligation of the USP or any under-taking as of 1 January 2016; and

• eir must adhere to the principle of maintaining affordability for univer-sal services.

On 1 August 2014, eir appealed to the High Court against ComReg’s deci-sion to designate eir to provide AFL under the USO. On 11 November 2014, eir withdrew the appeal and entered into an out-of-court settlement agreement: • eir would automatically provide refunds for customers (both whole-

sale and retail) who suffered outages for a period exceeding 10 work-ing days during the period of 20 December 2013 to 30 April 2014 and going forward during the period of 31 October 2014 to 31 December 2015;

• resolution of compliance issues with respect to the eir’s QoS perfor-mance for 2013–2014, including the payment of a penalty by eir;

• establishment of a performance improvement programme for 2015; and

• ComReg would commence a forward-looking review of the future requirement for the AFL element of the USO and publish a series of consultations during the first half of 2015. As detailed below, this con-sultation process is ongoing.

Eir, in its capacity as the USP, was obliged by law to maintain the NDD. Since the coming into force of the Universal Service Regulations a USP des-ignated as such under the 2011 Regulations, cannot be mandated to main-tain the NDD merely by virtue of being the USP. There is a specific power for ComReg under Regulation 19(4) of the Universal Service Regulations to require an undertaking to maintain the NDD. ComReg decision D06/144 directed eir to manage and maintain the NDD until the end of June 2015. ComReg conducted a consultation to require eir to maintain and oper-ate the NDD from July 2015 for a three-year period, in the absence of any interest from any other undertaking and the fact that it would create legal certainty for many stakeholders. All four respondents to the consultation agreed that eir should continue to be required to manage and maintain the NDD until 30 June 2018. ComReg agreed and issued its decision in D02/15, together with its final response to consultation in document 15/44.

In May 2014, ComReg specified certain requirements to be complied with by all undertakings in order to ensure equivalence in access and choice for disabled end-users. Following consultation in June 2015 and considera-tion of stakeholder responses, the obligation to publish and continue to

maintain an accessibility statement was extended to August 2015 (ComReg Decision 15/98). The accessibility statement is to be developed to ensure that it is easy for disabled end-users to read and understand and is to be made available in a range of accessible formats including HTML, acces-sible PDF and large print. Additionally it is to be provided in Braille and audio upon request.

Prior to the introduction of this universal obligation, eir was desig-nated, as the USP, as the only undertaking with obligations in respect of a Code of Practice concerning the provision of services for people with dis-abilities. As part of this, it was the only undertaking obliged to provide ter-minal equipment to meet the needs of certain disabled end-users. In July 2015, ComReg issued a response to a consultation, decision and further consultation regarding eir’s USO to provide specialised terminal equip-ment for disabled end-users. Following a response from eir in September 2015, it decided in November 2015 not to designate eir, or any other under-taking to provide specialised terminal equipment for disabled end-users for the period post 31 December 2015. ComReg published information on the usage and take-up of measures for disabled end users including specialised terminal equipment, had regard to the wide commercial availability of the necessary equipment and committed to monitoring the general availability of terminal equipment which allows access by disabled end-users to elec-tronic communications services at a fixed location, particularly in light of new networks and technologies.

Eir is subject to legally binding performance targets relating to time-scales for connection, fault rate occurrence and fault repair times, and was subject to a performance improvement programme for 2015, backed by a financial security mechanism of up to €10 million per year. ComReg issues quarterly reports detailing eir’s performance data covering its legally bind-ing and non-legally binding performance targets.

There is currently no USO fund in Ireland. Eir, as the USP, may apply to receive funding for the net cost (if any) of meeting the USO where ComReg determines there is a net cost and that it represents an unfair bur-den. In 2012, eir made an application for funding in respect of the USO for 2009/2010. ComReg issued its determination in January 2014 rejecting the application as the net cost of providing the USO did not represent an unfair burden on eir. While eir appealed this decision, the proceedings were set-tled on 7 November 2014. ComReg received applications from eir for fund-ing for the provision of the universal service for the periods 2010/2011, 2011/2012 and 2012/2013. These are currently being evaluated.

On 18 December 2014, ComReg reached a decision in relation to the cost of capital to be included in certain price controls. As a result, the nomi-nal pre-tax cost of capital for each sector is estimated by ComReg as: (i) 8.63 per cent in respect of the market for mobile telecommunication; (ii) 8.18 per cent in respect of the market for fixed line telecommunication; and (iii) 8.11 per cent in respect of broadcasting.

7 Number portability

Describe the number portability regime in your jurisdiction.

All operators providing a PATS must provide number portability to sub-scribers at no direct charge. Operators must ensure that the porting of numbers is carried out within the shortest possible time; numbers must be activated within one working day and loss of service during the process may not exceed one working day. ComReg may specify the payment of compensation to subscribers for delays in porting. ComReg has set a maxi-mum wholesale porting charge for fixed and mobile operators.

ComReg confirmed, as part of a 2013 decision on machine-to-machine numbering, that number portability is in principle an entitlement of machine-to-machine number holders.

In December 2014, ComReg also facilitated an initial review of the current fixed number portability arrangements.

8 Customer terms and conditions

Are customer terms and conditions in the communications sector subject to specific rules?

Operators providing a publicly available ECN or ECS must provide certain standard contract conditions to consumers in a clear, comprehensive and easily accessible form (eg, details of price/tariffs, duration of contract, etc). Operators must notify customers one month in advance of any proposed changes to their terms and conditions and of their right to withdraw with-out penalty if they do not accept the changes. Failure to do so may be pros-ecuted as a criminal matter as failure to comply is an offence. It is a defence


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to establish that reasonable steps were taken to comply, or that it was not possible to comply, with the requirement. ComReg also has the choice of bringing a civil action for non-compliance to the High Court. ComReg has not specified a medium to be used for contract change notifications, but provides that notifications must be presented to customers clearly, unam-biguously and transparently, and must include certain minimum informa-tion. ComReg has initiated enforcement actions regarding a number of alleged breaches of the rules.

ComReg has also issued a number of requirements in relation to bills and billing mediums. By way of example, consumers must have a choice about whether to receive paper bills or alternative billing mediums, and a paper bill must be provided free of charge where access to online billing is not possible.

ComReg’s enforcement powers in relation to consumer contracts have been strengthened as a result of the transposition of the Consumer Rights Directive (2011/83/EC) that was transposed into Irish law by the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 and that took effect in June 2014. ComReg notes in its Strategy Statement 2014–2016 (ComReg 14/75) that it intends to use the powers provided for by the new regulations to improve consumers’ expe-rience of contracts and switching. For example, on 19 December 2014, ComReg issued a notice of non-compliance to Yourtel with respect to pro-visions of the Privacy Regulations. It also imposed obligations on Yourtel after finding in January 2015 that Yourtel was not in compliance with the Consumer Information Regulations because it did not inform custom-ers of their right to cancel their contracts pursuant to Regulations 10, 14, 15, 17 and 19 of the Consumer Information Regulations. Yourtel was required to submit a written undertaking in relation to the contravention containing terms and conditions decided by ComReg including inform-ing customers of their right to cancel their contract and providing custom-ers with a cancellation form. It also required Yourtel to provide refunds to customers who exercise their right to cancel of the full amount paid by the customer and will provide details of customer cancellations and refunds provided to ComReg. In April 2015, ComReg notified Yourtel of a finding of non-compliance with respect to Yourtel’s obligations under the Universal Service Regulations. Yourtel implemented a contract change without notifying customers of the change and of their right to withdraw without penalty from such contract if they did not accept the modification. A similar notification was issued to Imagine for its breaches of the Universal Service Regulations in relation to its WiMax terms and conditions in April 2015.

In July 2015, ComReg notified eir of a finding that, during the period November 2011 to July 2015, eir did not comply with the transparency obli-gation imposed in respect of its Bitstream product. It did not publish on its website sufficient information to identify and justify any differences between the services and facilities set out in the wholesale broadband access reference offer and the comparable services and facilities which eir provided to itself during this period.

In relation to the premium rate services (PRS) sector, ComReg pub-lished a finding in March 2015 of non-compliance against Dragonfly Mobile Ltd with the PRS Code of Conduct and breaches of its licence. This resulted in €390,000 being refunded to 12,000 end-user consumers. ComReg also withdrew the allocated 57741 and 57575 short codes.

Finally, ComReg and the CCPC have each stepped up enforcement action in relation to consumer issues. ComReg brought enforcement action against a number of service providers (eir, Meteor, Virgin Media, Three, Vodafone) in relation to the incorrect charging of customers for electronic communication services. The cases were brought in the Dublin District Court and total fines of €21,000 (eir) and €10,000 (Vodafone) were imposed. The Probation Act was applied to Meteor, Virgin Media and Three. Each of the companies committed to putting remediation plans in place to prevent such issues arising in future.

During 2015, the CCPC (under its consumer law powers) initiated a number of enforcement actions by way of compliance notice against cer-tain providers of telecommunication services (ie, Vodafone, Three, Eir, Meteor, Virgin Media) for failing to make available information to custom-ers, including the right to cancel distance contracts and the right to return the contract goods or services. No fines were applied to the respective undertakings to the extent that compliance was demonstrated within 14 days of the notice.

9 Net neutrality

Are there limits on an internet service provider’s freedom to control or prioritise the type or source of data that it delivers? Are there any other specific regulations or guidelines on net neutrality?

The Telecom Single Market Regulation which is directly applicable in Ireland requires the rules on penalties and measures necessary to ensure they are implemented are notified by 30 April 2016. No legislation or guide-lines have been introduced in Ireland in relation to network neutrality to date. ComReg has stated that its approach to network neutrality will be informed by ongoing BEREC work, EU consultation results and the revised 2009 European framework for electronic communications. In particular, ComReg is closely watching the outcome of the BEREC Guidelines for the implementation of net neutrality provisions under the Telecom Single Market Regulation. It is anticipated that BEREC will publish the guidelines by August 2016.

10 Platform regulation

Is there specific legislation or regulation in place, and have there been any enforcement initiatives, relating to digital platforms?

Other than Part 8 of the Broadcasting Act 2009, which provides for digital broadcasting and the associated migration from analogue television, no legislation or guidelines have been introduced in Ireland in relation to digi-tal platforms to date. To the extent that a digital platform provides an ECS or ECN (or both), it would be subject to the authorisation regime set out in the Authorisation Regulations, which confers a general right to provide ECN or ECS (or both) subject to certain conditions.

11 Next-Generation-Access (NGA) networks

Are there specific regulatory obligations applicable to NGA networks? Is there a government financial scheme to promote basic broadband or NGA broadband penetration?

In 2013–2014, the DCENR conducted a national broadband mapping exer-cise to identify areas where government intervention remains necessary to ensure the roll-out of the NGA in line with the national broadband plan and to assess where further state-funded broadband schemes were required. In June 2014, an initial stakeholder consultation on certain technical aspects of the proposed plan was launched. EU state aid clearance will be required for the scheme, once finalised. A procurement process is in place in order to commence construction of the fibre network and provision of service.

While ComReg does not have direct responsibility for implementation of the national broadband plan (NBP), in December 2014 ComReg proac-tively issued a call for regulatory input from stakeholders to assist with pro-viding regulatory clarity on the NBP.

In 2013, ComReg imposed NGA remedies on eir in both the WBA and WPNIA markets, including access, non-discrimination, transparency, price control and cost accounting obligations.

There have been a number of state-funded broadband schemes in operation in Ireland:• the Metropolitan Area Networks Scheme (MANs), which aims to cre-

ate open-access fibre networks in over 120 Irish towns at a cost of €170 million with support from EU structural funds;

• the National Broadband Scheme (NBS), operated by Three provided mobile broadband to all premises in locations where no services were available or likely to be made available by the market (this contract expired in August 2014); and

• the Rural Broadband Scheme (RBS), which aims to provide broad-band to parts of Ireland where it is not available commercially, to meet the needs of the last 1 per cent of the population not covered by any service.


Matheson IRELAND


12 Data protection

Is there a specific data protection regime applicable to the communications sector?

The communications sector is subject to the general Irish data protection regime as set out in the Data Protection Acts 1998 and 2003.

The Communications (Retention of Data) Act 2011 sets out a specific regime for the retention of certain communications data for the purpose of, inter alia, the investigation, detection and prosecution of criminal offences. A regime is also in place for the interception of communications by the Irish police force and the defence forces. The Court of Justice of the European Union (CJEU) recently found that the Data Retention Directive (2006/24/EC) (Data Directive), the basis for the Communications (Retention of Data) Act 2011, was invalid. As a result of the CJEU decision, no specific legal act at the EU level obliges Ireland to maintain a data reten-tion regime in place. Nevertheless, even though the Data Directive has been struck down, the national implementing measure (ie, the 2011 Act) remains in effect as a matter of Irish law. The legal status of the 2011 Act is not affected by the decision beyond providing a number of grounds on which the 2011 Act may be challenged as unconstitutional or invalid.

The 2011 Privacy Regulations from the EU electronic communications reform package referred to above also apply.

13 Big data

Is there specific legislation or regulation in place, and have there been any enforcement initiatives in your jurisdiction, addressing the legal challenges raised by big data?

No new data protection legislation has been introduced in Ireland to deal specifically with big data, so the debate has focused on the application of existing data protection rules to each new way in which personal data are collected, stored, used and analysed.

For instance, current data protection law requires that personal data is only used for specific purposes which, naturally, restricts the trend in big data to make use of data in previously unknown ways. This means that big data systems should ideally be set up with this purpose limitation in mind, with each new use of personal data generating its own risk profile. There have been discussions around the use of techniques to effectively anonymise or pseudonymise personal data as a solution to this, so that the data falls outside the scope of data protection rules, though achieving this can sometimes be difficult.

While this may somewhat limit the ability to commercially exploit big data, the enforcement of data protection law in Ireland is not static, and is adaptable to each new innovation. The Irish Data Protection Commissioner takes a pragmatic approach to the treatment of big data and considers meaningful consultation with organisations operating in this space, including the many leading multinational technology companies based in Ireland, as essential to this strategy.

However, wide-ranging changes to the EU data protection regime (to which Ireland is subject) are expected. The Edward Snowden allega-tions of large-scale access by US authorities of EU citizens’ personal data have brought the treatment of ‘big data’ to the fore of political discus-sion in Europe, including Ireland. Significant changes are likely to come about as a result of the EU General Data Protection Regulation (GDPR). On 15 December 2015, the European Parliament, the Council and the Commission reached political agreement on the GDPR. Once formally adopted, it will be applicable two years thereafter. Further, on 2 February 2016, the European Commission announced that it had reached political agreement with the United States on a new framework for trans-Atlantic data transfers, following the invalidation of Safe Harbour by the CJEU in the Schrems case in October 2015. The framework agreement, rebranded the ‘EU-US Privacy Shield’, was concluded between the EU and US through an ‘exchange of letters’, and has been approved by the College of Commissioners. The effectiveness of the Privacy Shield will, however, depend on its precise drafting and the implementation by the US of its commitments under the arrangement.

14 Key trends and expected changes

Summarise the key emerging trends and hot topics in communications regulation in your jurisdiction.

In its Strategy Statement for 2014–2016, ComReg noted that it ‘will con-tinue to monitor the competitive dynamic of the mobile markets, and plans to release further radio spectrum in order to promote competition and further promote innovation and network investment’. On 10 October 2014, Vodafone issued a legal challenge against ComReg to seek further review of the spectrum allocation in the Irish market following the Three/O2 Ireland transaction. The case subsequently settled out of court.

Further, there is likely to be further development in respect of ComReg’s investigation into eir’s adherence to its USO obligations. In January 2016, ComReg found that eir provided information to its retail arm about plans to roll out fibre to homes three weeks before other service operators. ComReg issued eir with a finding of non-compliance under the non-discrimination obligations and may impose a sanction on eir.

Elsewhere, the new media merger regime (described in question 16) has been in effect since 31 October 2014. Since then, seven media merg-ers have been notified to the CCPC and the Minister for Communications, Energy and Natural Resources (the Minister for Communications). The DCENR published Media Merger Guidelines in May 2015, following a public consultation process. The additional delay and information burden for media merger notifications received criticism during the consultation process, and after only seven cases it remains to be seen whether there will be efficient decision-making by the Minister for Communications. Unfortunately, one of the most prominent media mergers subject to the new regime (Liberty Global/TV3) is not a good example of a timely review in that it spent 53 working days in an extended Phase I review before being cleared by the CCPC. It was subsequently cleared by the Minister for Communications. There also remain transparency concerns as the Minister for Communications has published only limited details of the rationale for clearing the media mergers he has considered.

Other key issues in the communications market include:• implementing quad-play roll-out, and LTE roll-out in line with licence

targets;• ongoing debate surrounding changes to the European telecoms regu-

latory framework as part of the European Commission’s connected continent package, including regulations concerning ‘net neutrality’;

• a review of the future provisions of AFL as part of the USO (due by July 2016 – see question 6); and

• the upcoming ComReg decision on the proposed 3.6GHz spectrum band award.

Media

15 Regulatory and institutional structure

Summarise the regulatory framework for the media sector in your jurisdiction.

The broadcasting sector in Ireland is regulated by the Broadcasting Act 2009 (the Broadcasting Act), which established a content regulator, the Broadcasting Authority of Ireland (BAI). ComReg’s role in respect of the broadcasting sector covers the issuing of licences under the Wireless Telegraphy Acts, in respect of wireless equipment and assignment of required radio spectrum. In July 2013, ComReg also analysed the wholesale access to the national terrestrial broadcast transmission services market and the wholesale access to the DTT multiplexing services market, finding RTÉ Transmission Networks Limited and RTÉ to have SMP respectively. ComReg has imposed obligations of access, non-discrimination, transpar-ency, accounting separation, price control and cost accounting.

16 Ownership restrictions

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Non-EU applicants for broadcasting contracts are required to have their place of residence or registered office within the EU or as otherwise required by EU law.


IRELAND Matheson


The framework for the ownership and control policy of the BAI is set out in the Broadcasting Act, which requires the BAI, in awarding a sound broadcasting contract or television programme service contract (or con-senting to a change of control of the holder of a broadcasting contract), to have regard, inter alia, to the desirability of allowing any person or group of persons to have control of or substantial interests in an ‘undue number’ of sound broadcasting services, or an ‘undue amount’ of communications media in a specified area. In 2012, the BAI published a revised Ownership and Control Policy, setting out the regulatory approach that the BAI will take and the rules that will be enforced regarding ownership and control of broadcasting services. The Policy will be used by the BAI to assess appli-cations for broadcasting contracts and requests for variations to ownership and control structures of contract holders.

On 31 October 2014, the Competition and Consumer Protection Act 2014 (the 2014 Act) came into effect and radically amended the existing media merger control regime. As a result, media mergers must be now noti-fied to both the CCPC and the Minister for Communications. The CCPC is responsible for carrying out the substantive competition review to determine whether the merger is likely to give rise to a substantial lessening of compe-tition. It is the role of the Minister for Communications to assess ‘whether the result of the media merger will not be contrary to the public interest in protecting the plurality of the media in the State’ and this includes a review of ‘diversity of ownership and diversity of content’. The 2014 Act provides for a set of ‘relevant criteria’ by which the Minister for Communications must assess whether the media merger will be likely to affect plurality of the media in the state. In particular, the relevant criteria include considering, inter alia, the undesirability of allowing one undertaking to hold significant interests within a sector of media business, the promotion of media plurality and the adequacy of the existing state-funded broadcasters to protect the public interest in plurality of the media in the state. The DCENR published Media Merger Guidelines in May 2015. Thus far, only limited details of the rationale for clearing the media mergers considered have been published.

17 Licensing requirements

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

The BAI is responsible for the licensing of the national television service, and content on digital, cable, MMD and satellite systems. The licensing of content on these systems is an ongoing process with no time frame for appli-cations and no competitive licensing process.

The BAI is responsible for the licensing of independent radio broad-casting services in Ireland and part 6 of the Broadcasting Act sets out the mechanism by which the BAI shall undertake the licensing process for com-mercial, community temporary and institutional radio services.

18 Foreign programmes and local content requirements

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

The European Communities (Audiovisual Media Services) Regulations 2010 (the AVMS Regulations) implement the Audiovisual Media Services Directive 2007 (amending the Television without frontiers (TVWF) Directive). The AVMS Regulations provide that broadcasters, where prac-ticable and by appropriate means, must progressively reserve for European works a majority proportion of their transmission time (excluding the time appointed to news, sporting events, games, advertising and teletext ser-vices) having regard to their various public responsibilities. At a minimum, the proportion of transmission time cannot be lower than the average pro-portion of transmission time devoted to European works, if any, in 1988.

Further, where practicable and by appropriate means, broadcasters must progressively reserve at least 10 per cent of their transmission time (excluding the time applied to news, sports events, games, advertising and teletext services) for European works created by producers who are independent of broadcasters, or reserve 10 per cent of their programming budget for European works that are created by producers who are independ-ent of broadcasters, having regard to its various public responsibilities.

The AVMS Regulations require member states to ensure that on-demand audiovisual media services also promote European works; how-ever, quotas for European works are not imposed on non-linear audiovisual services.

19 Advertising

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

The BAI is tasked with the development, review and revision of codes and rules in relation to advertising standards to be observed by broadcasters, and consideration of and adjudication on complaints concerning material that is broadcast, including advertising. The Broadcasting Act provides that advertising codes must protect the interests of the audience and in particular, any advertising relating to matters of direct or indirect inter-est to children must protect the interests of children and their health. By way of example, the BAI has issued General and Children’s Commercial Communications Codes, including rules to be applied to the promotion of high fat, salt and sugar (HFSS) foods to children. Further rules are set out in the AVMS Regulations in relation to ‘audiovisual commercial communi-cations’ on on-demand services. In December 2015, the Irish government published proposals to restrict the advertising and marketing of alcohol from 2016 including a broadcast watershed on television and radio, with further restrictions due on cinema and outdoor advertising. Among a wide range of measures including the introduction of minimum pricing for alco-hol, it would be illegal to market or advertise alcohol in a manner that is appealing to children. It is proposed that the BAI Codes would be amended to reflect the requirements of the Public (Health) Alcohol Bill 2015 and that these measures would be subject to a three-year review to gauge their effectiveness. These proposals were not signed into law prior to the disso-lution of the government before the 2016 general election.

The Broadcasting Act does not apply to broadcasting services that are provided through the internet.

A voluntary self-regulatory code is also in operation and is adminis-tered by the Advertising Standards Authority of Ireland (ASAI), which sets out guidelines for advertising in relation to a range of topics including food, financial services and business products. This code is applicable to online advertising.

In addition to the above, broadcasters should observe relevant national and European rules on advertising of specific types of products and services (eg, tobacco, health foods, air fares, etc) and consumer protec-tion rules on types of advertising practice permitted (eg, consumer infor-mation requirements, misleading information rules, etc).

20 Must-carry obligations

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

The Broadcasting Act requires ‘appropriate network providers’ to ensure, if requested, the retransmission by or through their appropriate network of each free-to-air television service provided for the time being by RTÉ, TG4 and TV3’s free-to-air service. Appropriate network is defined as an ECN provided by a person (the ‘appropriate network provider’) that is used for the distribution or transmission of broadcasting services to the public. The appropriate network provider is not permitted to impose a charge for the above-mentioned channels.

A public service broadcasting charge was not introduced by the gov-ernment prior to the general election in February 2016. However, the Minister for Communications previously referred to the possibility of introducing such a charge in future. Speaking in April 2015, the Minister for Communications noted that ‘a public service broadcasting charge could contribute to [providing adequate funding for public service broadcasting], while reflecting the changing ways that viewers now access public service broadcasting. However, we cannot replace the TV licence fee with a public service broadcasting charge until we have built public understanding and support for such a move.’

21 Regulation of new media content

Is new media content and its delivery regulated differently from traditional broadcast media? How?

The Internet Services Providers Association of Ireland (ISPAI) has respon-sibility for supervising the ongoing evolution of self-regulation of the inter-net in Ireland and has set out guidelines in its Code of Practice and Ethics (the Code) that ISPAI members should take into account when operating.


Matheson IRELAND


In its statement of policy, the ISPAI acknowledges that its mem-bers must observe their legal obligation to remove illegal content when informed by organs of the state or as otherwise required by law. The gen-eral requirements of the Code issued by the ISPAI include a requirement on all members to use best endeavours to ensure that services (excluding third-party content) and promotional material do not contain anything that is illegal, or is likely to mislead by inaccuracy, ambiguity, exaggera-tion, omission or otherwise. They must also ensure that services and pro-motional material are not used to promote or facilitate any practices that are contrary to Irish law, nor must any services contain material that incites violence, cruelty, racial hatred or prejudice or discrimination of any kind.

Members’ ISPs are also required to register with www.hotline.ie, which is a notification service to facilitate the reporting of suspected breaches under the Child Trafficking and Pornography Act, 1998 (as amended by the Child Trafficking and Pornography (Amendment) Act, 2004) and the removal of illegal material from internet websites.

22 Digital switchover

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

Digital switchover occurred on 24 October 2012. The 800MHz band had been used for analogue terrestrial television services. This spectrum was auctioned off (along with 900MHz and 1,800MHz spectrum) in autumn 2012 for use in electronic communications services.

23 Digital formats

Does regulation restrict how broadcasters can use their spectrum (multi-channelling, high definition, data services)?

As required by the legislative framework, ComReg is moving towards a position where it will issue licences on a technology and service-neutral basis. When ComReg comes to issue new licences in the 2.6GHz band following the expiry of the current MMDS licences (on 18 April 2016), ComReg has indicated that new rights of use will issue on a service and technology-neutral basis (ie, holders of the new rights of use may choose to provide any service capable of being delivered using 2.6GHz spectrum). For instance, they could distribute television programming content, sub-ject to complying with the relevant technical conditions and with any necessary broadcasting content authorisations, or they could adopt some other use.

As mentioned in question 3, ComReg may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restric-tions to the types of radio network or wireless access technology used for ECSs where this is necessary (eg, to avoid harmful interference, safeguard the efficient use of spectrum, etc).

24 Media plurality

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

The Competition Acts 2002–2014 provide for special additional rules for ‘media mergers’ (ie, a merger or acquisition in which two or more of the undertakings involved carry on a media business in the state, or alterna-tively that one or more of the undertakings involved carries on a media business in the state and one or more of the undertakings involved carries on a media business elsewhere).

A ‘media business’ means the business (whether all or part of an undertaking’s business) of:• the publication of newspapers or periodicals consisting substantially

of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet;

• transmitting, re-transmitting or relaying a broadcasting service;• providing any programme material consisting substantially of news

and comment on current affairs to a broadcasting service; or• making available on an electronic communications network any writ-

ten, audiovisual or photographic material, consisting substantially of news and comment on current affairs, that is under the editorial con-trol of the undertaking making such material available.

As mentioned in question 16, media mergers must be now notified to both the CCPC and the Minister for Communications (regardless of the turno-ver of the undertakings concerned) to assess whether the media merger would be contrary to the public interest in protecting the plurality of the media in the state. The 2014 Act provides for a set of ‘relevant criteria’ by which the Minister for Communications must assess whether the media merger will be likely to affect plurality of the media in the state. In particu-lar, the relevant criteria include considering, inter alia, the undesirability of allowing one undertaking to hold significant interests within a sector of media business, the promotion of media plurality and the adequacy of the existing state-funded broadcasters to protect the public interest in plurality of the media in the state. As mentioned in question 10, the BAI also plays a role in assessing media plurality.

In terms of steps the authorities may require companies to take as a result of a media merger review, the Minister for Communications may determine that the media merger be put into effect, determine that the media merger be put into effect subject to conditions or determine that the media merger may not be put into effect.

The DCENR published Media Merger Guidelines in May 2015.

25 Key trends and expected changes

Provide a summary of key emerging trends and hot topics in media regulation in your country.

In February 2014, the BAI published a strategy statement for 2014–2016 setting out seven strategic goals and objectives for the period. The imple-mentation of these strategies remains ongoing.

A consultation on the transformation of the TV licence regime into a household-based Public Service Broadcasting Charge (PSBC) applied to all households and applicable businesses, regardless of the device they use to access content was carried out in 2013. However, at the time of writing, the PSBC has yet to come into effect and remains a politically contentious issue. Debate as to adequate provision for broadcasting funding is ongoing.

Another area to watch in 2016 relates to the role of the BAI under the revised media merger review process following introduction of the 2014 Act (discussed in question 24). The BAI is now required to provide the Minister for Communications with a report and form a view on whether a media merger is likely to be contrary to the public interest in protect-ing plurality of the media in the state in a full media merger examination (ie, Phase II). In particular, treatment of media mergers concerning print and online media by the BAI are also likely to raise interesting questions. None of the seven media mergers notified since the implementation of the regime have been subject to a Phase II review.

Finally, ITV is set to acquire UTV’s television businesses in a deal that was notified to the CCPC less than a year after UTV launched its Irish TV channel. The acquisition is due to complete in early 2016, provided it is cleared by the Minister for Communications under the media merger regime. It has been cleared by the CCPC and is currently being reviewed by the Minister for Communications.

Regulatory agencies and competition law

26 Regulatory agencies

Which body or bodies regulate the communications and media sectors? Is the communications regulator separate from the broadcasting or antitrust regulator? Are there mechanisms to avoid conflicting jurisdiction? Is there a specific mechanism to ensure the consistent application of competition and sectoral regulation?

The BAI is responsible for the regulation of the broadcasting and audio-visual content sector.

The CCPC is responsible for administering and enforcing the Competition Acts 2002–2014 across all sectors.

ComReg is responsible for the regulation of the electronic com-munications sector and ComReg has co-competition powers with the CCPC that enable it to pursue issues arising in the electronic communica-tions sector under competition law and to take action in respect of anti- competitive agreements and abuse of dominance. ComReg and the BAI are each party to a cooperation agreement with the CCPC to facilitate cooperation, avoid duplication and ensure consistency between the parties insofar as their activities consist of, or relate to, a competition issue.


IRELAND Matheson


27 Appeal procedure

How can decisions of the regulators be challenged and on what bases?

A decision of ComReg may either be challenged by way of judicial review or for decisions made under the Regulatory Framework a merits-based appeal in accordance with the Framework Regulations in the High Court. Under the Framework Regulations the appeal must be brought by a user or undertaking that is ‘affected’ by the decision, and must be lodged within 28 calendar days of the date after the user or undertaking has been notified of the decision. An appeal can be brought on the basis of law or errors of fact. Where the appeal is made to the High Court either party may seek for the matter to be transferred to the Commercial Court, which is a specialist part of the High Court that generally hears appeals within six months of the date the appeal is lodged. Lodgement of an appeal against a decision of ComReg does not automatically ‘stay’ that decision, unless an application for a stay or for interim relief has been made.

Judicial review proceedings should be launched at the earliest oppor-tunity or in any event within three months from the date when grounds for the application first arose (eg, date of a ComReg decision (although this can be extended by the court if it considers that there is good and suffi-cient reason to do so)). The Irish courts have jurisdiction to examine the procedural fairness and lawfulness of decisions of public bodies in judicial review proceedings, rather than the merits of a decision.

Any other procedures available to remedy the matter must usually be exhausted before bringing judicial review proceedings.

A decision of the BAI may be challenged by way of judicial review in the High Court (as above). In addition, a decision by the BAI to terminate or suspend a contract made under part 6 or part 8 of the Broadcasting Act may be appealed by the holder of the contract to the High Court pursuant to section 51 of the Broadcasting Act.

A decision by the Minister for Communications in respect of a media merger must be brought in the High Court not later than 40 working days from the date of determination. Alternatively, this period may be extended by the High Court if it considers that there is a substantial reason why the application was not brought in the period and it is just to grant leave to appeal outside the period.

28 Competition law in the communications and media sectors

Describe the key merger and antitrust decisions in the communications and media sectors adopted over the past year by your antitrust authority.

Acquisition by Liberty Global of TV3This merger involved the acquisition by global cable network operator Liberty Global of the Irish television broadcaster TV3. The transaction was cleared by the CCPC in October 2015 after an extended Phase I review period. The CCPC found that the only horizontal overlap within the state was the limited production of television content of both operators. The vertical overlap in the activities of the parties centred on the acquisition of television content for broadcast, a licence of TV3’s linear and non-linear broadcasting rights to Liberty Global and the sale of TV3 advertising space to Liberty Global. The acquisition was also a ‘media merger’ under the new regime in the 2014 Act, requiring separate notification to and approval from the Minister for Communications following clearance by the CCPC. Liberty Global completed the acquisition of TV3 in December 2015, how-ever at the time of writing the Minister for Communications has not pub-lished his determination.

Acquisition by Discovery Networks Asia-Pacific PTE Limited (Discovery) of sole control of Setanta Sports Asia Limited (Setanta)In March 2015, the CCPC cleared the acquisition by Discovery of Setanta. They found that there was no horizontal or vertical overlap between the parties in Ireland and as such the transaction would not substantially lessen competition. The Minister for Communications made a determina-tion on 12 May 2015 that the proposed merger would not negatively affect the plurality of media in Ireland and as such that it could proceed. No fur-ther details on the rationale of the Minister for Communications in clear-ing the merger have been published to date.

Acquisition by ITV Broadcasting Limited (ITV) of UTV Limited and UTV Ireland Limited (UTV)The proposed acquisition of UTV by ITV has been cleared by the CCPC. The merger is subject to approval by the Minister for Communications. His decision is awaited at the time of writing, along with the CCPC’s written determination. The proposed transaction concerns only UTV’s television businesses. UTV is active in the operation of television channels in Ireland and Northern Ireland.

Helen Kelly [email protected]

70 Sir John Rogerson’s QuayDublin 2Ireland

Tel: +353 1 232 2000Fax: +353 1 232 [email protected]


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