Joint Committee on Statutory Instruments Twentieth Report


APPENDIX II

Memorandum by the Department of Trade and Industry

TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 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 that ­

        ­ regulation 8(1) and (2) provide for publication, and

        ­ regulation 8(3) provides for making information available to parties;

        ought not

        ­ regulation 6(4) to refer to regulation 8(1) or (2);

        ­ regulation 6(6) and (7) to refer to regulation 8;

        ­ regulation 10(2) to refer to regulation 8; and

        ­ regulation 12(1) 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 to:

    ­ the limitation on the obligation to interconnect,

    ­ 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 regulation 5(f).

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 2(2)?

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 contemplated.

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


 
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