Memorandum by the Department
of Trade and Industry
1997 (S.I. 1997/2931)
1. The Committee requested the Department
to submit a memorandum on the following points. The Department
sets out below the questions raised by the Committee with the
Department's response after each question.
(1) In regulation 2(2),
in the definition of "European Public Operator", identify
"the Directive" referred to.
2. The Directive to which reference
is made in regulation 2(2) is the European Parliament and Council
Directive 97/33 on Interconnection cited in regulation 2(1)(a)
of the Regulations. It is the Department's intention to amend
the regulations in the near future to take account of the points
raised in these questions and this reference will be made clear
in those regulations.
(2) Regulation 6(3) states
that "the Director may intervene....in order to make a direction".
Is not the legal form of his intervention the giving (or making)
of a direction?
3. Regulation 6(3) states that "the
Director may intervene.....in order to make a direction"
to give effect to the precise obligation on the national regulatory
authority which is set out in Article 9(3) of the Interconnection
Directive. The Department considers that the effect of the words
used is clear. However, it is accepted that the same result would
be achieved by recasting the provision along the lines of "the
Director may make a direction ... or may make a direction."
This will be substituted in the amending regulations referred
to in the answer to Question 1.
(3) Regulation 6(4), (6)
and (7), 10(2) and 12(1) refer to publishing or notifying to parties
certain information in accordance with regulation 8(3). Given
and (2) provide for publication, and
provides for making information available to parties;
to refer to regulation 8(1) or (2);
and (7) to refer to regulation 8;
to refer to regulation 8; and
to refer to regulation 8(1) or (2).
4. Article 14(1) of the Directive,
which is implemented by regulation 8(1) and (2) is designed to
ensure publication and regular updating of general information
which may be applicable to all operators, whereas Article 14(2)
imposes an obligation on the national regulatory authority to
ensure that interested parties have access to decisions which
have been made by that authority in individual cases in relation
the limitation on the obligation
disputes which have been brought
before the national regulatory authority, and
the calculation of costs of
the universal service obligation.
The regulations to which the Committee
refers in Question 3 are all consistent with the terms of the
Directive with the exception of the point made in paragraph 6.
5. Regulation 6(4) implements Article
9(3) of the Directive which provides that the procedures which
the national regulatory authority lays down in order to bring
about an agreement are to be published in accordance with Article
14(2). Article 14(2) of the Directive imposes an obligation on
the national regulatory authorities to ensure that uptodate
specific information is made available to interested parties under
conditions laid down in Article 14(2). The Department therefore
considered that in order to be consistent with the provisions
of the Directive, regulation 6(4) should refer to regulation 8(3)
which implements Article 14(2).
6. Regulation 6(6) and 6(7) implement
the dispute resolution provisions in Articles 9(5) and 17(2) of
the Directive, respectively and regulation 10(2) implements the
dispute resolution provision in relation to collocation and facility
sharing in Article 11. The Department considered that decisions
reached by the national regulatory authority should be available
under the conditions set out in Article 14(2) of the Directive.
The word "published" in regulations 6(6), 6(7) and 10(2)
will be replaced with the words "made available" in
the amending regulations so that it is consistent with the provisions
of Article 14(2).
7. Regulation 12(1) implements Article
5(5) of the Directive which imposes an obligation on the national
regulatory authority to ensure that the principles for cost sharing,
and details of the mechanism used, are open to public inspection
in accordance with Article 14(2). Article 14(2) is implemented
by regulation 8(3) of the Directive.
(4) In regulation 6(11),
verify the reference to information provided to the Director under
8. The reference in regulation 6(11)
should be to regulation 5(e). This will be corrected in amending
regulations. The amending regulations referred to in the response
to Question 1 will be made available free of charge.
(5) Regulation 7(1) empowers
the Director to specify conditions based on "essential requirements"
to be included in interconnection agreements. Are these requirements
the ones defined in Article 2 of the ONP Framework Directive?
If so, why was no definition by reference included in regulation
9. The "essential requirements"
are defined in the ONP Framework Directive and definitions in
that Directive are incorporated into these Regulations by virtue
of regulation 2(1)(b).
(6) Regulation 7(5) empowers
the Director to specify conditions in such agreements to ensure
protection of data to the extent necessary to ensure compliance
with "relevant regulatory provisions on the protection of
data". Is this a reference to the Data Protection Act 1984
and instruments under it? If it is, why was this not specified?
Is any other legislation also intended to be referred to?
10. The words "relevant regulatory
provisions on the protection of data" refers to the Data
Protection Act 1984 with respect to personal data and to provisions
on personal data and the confidentiality of commercial information
in licences granted under section 7 of the Telecommunications
Act 1984. This will be made clear in amending regulations.
(7) Regulation 10(1) refers
to a public operator having the right under the Telecommunications
Act 1984 to "take advantage of a procedure for the expropriation
..... of property". Is this meant to be a reference to the
recognised legal procedure for the acquisition of land compulsorily?
If so, identify the powers of compulsory acquisition which are
11. The powers of compulsory acquisition
referred to in regulation 10(1) are those set out in sections
3440 and Schedule 2, paragraphs 27 of the Telecommunications
Act 1984. This will be made clear in the amending regulations.
19th January 1998