Cracking The Code: Overview Of Major Irish Telecommunications Law Changes Ahead – Media, Telecoms, IT, Entertainment


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Cracking The Code: Overview Of Major Irish Telecommunications Law Changes Ahead


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Matheson held a webinar on 29 March 2022 to discuss the key
changes introduced by the European Electronic Communications Code
(the “EECC“) and learn from the
experience of various representatives of the telecommunications
industry in implementing these changes to date. We were joined by
Niamh Hodnett, the Head of Regulatory Affairs at
Three Ireland and Ronan Lupton
SC
, who acts as independent chair to the
telecommunications industry association ALTO.

Here we present some key takeaways from the webinar:

  • End-User Rights: Regarded as the main impact
    of the EECC on telcos and seen by the attendees as drivers of
    future enforcement activity, telcos implemented the following
    changes, to the give effect to the new end-user rights introduced
    in the EECC:

    • Developing pre-contract summary templates in line with the
      prescriptive guidelines set out in the EECC (outlined in our Cracking the Code: New Customer Contract
      Obligations article);

    • Building in the provision of best tariff advice
      (“BTA“) and best tariff information
      (“BTI“) into the contract process
      (outlined in our Cracking the Code: Ongoing Obligations
      article). In this regard, it is important for telcos to observe the
      provisions of the ePrivacy Regulations and ensure that the BTA and
      BTI notices are not perceived as direct marketing by their
      customers;

    • Updating the scripts of the customer service representatives to
      comply with the obligations set out in the EECC in relation to
      cancellation, renewal and automatic prolongation of contracts,
      while ensuring a positive customer experience.


  • Transparency, Comparison and Information:
    Implementation of Article 103 of the EECC has proved to be complex
    for Irish telcos industry, resulting in a high cost of compliance
    and extraordinary business impact.

  • Right of Exit: Provisions relating to the
    right of exit are of great significance to telcos. In particular,
    the right of exit provided in Article 105(4) of the EECC has been
    extended to bundles, while certain elements of bundles would be
    otherwise unregulated.

  • ComReg’s Role: There remains some
    ambiguity in relation to automatic prolongation, cancellation,
    contract issues and quality of service elements of the EECC. Telcos
    would welcome a more active role for ComReg in guiding the industry
    towards compliance with the EECC.

  • Poll Results: Our poll results highlight the
    impact of end-user rights on telcos.























WHAT IS THE MAIN IMPACT OF THE CODE FOR YOU?


Coming under electronic communications regulation for the first
time

21%

End-user rights

64%

Roll back of wholesale regulation

14%

What end-user right do you see being a main driver of ComReg
enforcement?


Contract summary

0%

Renewal terms (best tariff information /
advice)

54%

Termination (including ‘contractual modification’)

38%

Other

8%

Do you think administrative sanctions will improve the delivery
of telco services or the functioning of the market?


Yes

58%

No

42%

Preparing for the Major Irish Telecommunications Law Changes
Ahead: What You Need to Know

  1. The EECC will strengthen and harmonise consumer
    protection across the EU



    The EECC will align protections for end-users of over-the-top
    service providers (“OTTs“) with those of
    traditional telecoms providers. The measures will require maximum
    harmonisation across the EU, but Member States are invited to
    introduce additional measures where needed.

    Key changes include enhanced end-user rights in relation to
    sign-up, renewal, automatic prolongation, termination, the
    switching of internet access services and the porting of phone
    numbers, establishing a universal service ensuring availability and
    affordability of both broadband and voice communications, and
    enhancing security of networks and services.

    End-user rights were seen by the attendees as the main drivers of
    future enforcement activity by ComReg.


  2. The EECC and the implementing Communications Regulation
    (Enforcement) Bill 2022 will enhance ComReg’s investigatory and
    enforcement powers

    ComReg is one of the most active regulators in Ireland, having
    completed around 30 enforcement cases (about a third of which were
    criminal court cases) and dealt with more than a few judicial
    reviews in the last three years, despite the disruption of the
    pandemic.

    The Communications Regulation (Enforcement) Bill 2022 (the
    Bill“) will introduce a range of new
    offences to enforce the changes brought in by the EECC and will
    give ComReg enhanced investigatory and enforcement powers. The new
    civil enforcement regime will comprise new investigation and
    adjudication powers for ComReg, where it considers there to be a
    ‘regulatory breach’ in the electronic communications
    sector. These powers will enable ComReg to (i) impose
    administrative financial sanctions on undertakings up to a maximum
    of ?5 million or 10% of annual turnover (whichever is the greater),
    and (ii) require undertakings to pay compensation to end-users
    (identical monetary caps to apply), subject to confirmation of the
    High Court.

    In respect of ComReg’s criminal enforcement regime, the Bill
    also provides for a higher penalty for the commission of an
    indictable offence so as to ensure parity with the above-described
    civil fine limits (a fine not exceeding ?5 million).

    ComReg has been particularly active in enforcing contract issues,
    signing up, and termination / right of exit obligations and as
    such, we expect to see an increase in enforcement activity and
    robust appeals and defences process. See our Cracking the Code: Ireland upgrades its
    telecommunications regulatory enforcement regime article
    summarising the recently published Bill.


  3. Interpersonal communication service providers will be
    regulated in the same manner as traditional telcos under the
    EECC
    The EECC extends telecoms regulation and rules to OTTs
    such as interpersonal communication apps and services
    (“ICS“) (eg, IM, Skype, Viber, cloud
    services and content providers, etc) that were not regulated on the
    basis of the current framework to even out the playing field
    between traditional telcos and OTTs and ensure continued investment
    and competition in line with EU’s Digital Agenda goals.

    OTTs will now be required to:

    – obtain an authorisation;

    – comply with the rules set out in the general telecoms framework
    (including regulatory levies, information requests and
    ‘authorised officer’ visits (ie, dawn raids);

    – introduce ‘state of the art’ security system requirements
    to ensure network / service integrity; and

    – comply with end-user rights obligations, which vary depending on
    whether the ICS provider is number-based or number-independent
    ICS.


  4. Becoming a regulated telco will have a significant
    knock-on effect for OTTs
    and technology
    companies



    In addition to the requirements imposed by the EECC, OTTs should
    prepare for the significant knock-on effects of becoming a
    regulated telco, such as compliance with the ePrivacy Regime and
    the Interception Regime.

    The ePrivacy Regime, which sits alongside the GDPR rules, will
    apply to the regulated services imposing obligations in relation to
    security, secrecy of communications and use of traffic data, among
    others.

    While it is unclear to what extent the Interception Regime will
    apply to OTTs as the Department of the Environment, Climate and
    Communications has indicated that the regime would not apply to
    number-based ICS, the regime is certainly in need of reform and the
    applicability of the regime to OTTs may change in the future.


  5. The EECC enhances cybersecurity measuresTelcos and now OTTs will have to implement the relevant
    network and service security provisions contained in Articles 40
    and 41 of the EECC. This will enhance the existing security
    measures and introduce ‘state of the art’ security system
    requirements to ensure network security and service integrity.
    Telcos and OTTs will also have to report significant incidents to
    ComReg. Regulated telcos should prepare for the additional
    reporting responsibilities, alongside GDPR, ePrivay and other
    overlapping notifications. See further in Cracking The Code: New Security and Outage
    Reporting Obligations for Internet-Based Providers.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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