The Office of the Director of Telecommunications Regulation (ODTR) should be given more powers and its role clarified, Mr Eddie Brennan, the chairman of a newly-formed telecoms lobby group has said. He also contends that an Eircom court challenge to an ODTR decision will tie up the already under-resourced office.
Mr Brennan's call for more powers which could, in turn, mean more regulation, may seem strange - given that he is chairman of the Association of Licensed Telecommunications Operators (ALTO), an organisation which includes several large operators, but not Eircom.
Many of his members have been critical of the regulator Ms Etain Doyle and her office in the past, accusing them of being inflexible and adopting too much of a "civil service" type approach to the market.
Mr Brennan says the ODTR "appears to be under-staffed" and he argues that current court actions involving the regulator are holding back the pace of liberalisation in the telecommunications sector. The regulator is engaged in a High Court action with Eircom and a Supreme Court action with Meteor and Orange over the third mobile phone licence.
Mr Brennan says valuable ODTR staff time is being absorbed by such legal actions. "I think the ODTR themselves would say that the office is under-resourced."
In the mobile licence case, the High Court found that the ODTR had been objectively biased in awarding the licence to Meteor, following a case brought by the other bidder, Orange. The court also found that documents relating to the tender process had been shredded and directed the ODTR to consider the tenders again.
Since then, operators in the industry have privately queried the regulator's position and Fine Gael's Ivan Yates has called on her to resign.
As the regulator has appealed the decision to the Supreme Court, Mr Brennan is reluctant to comment in detail, saying the case is very sensitive. However, he says, some criticism has to be directed at Andersen Consultants, the Danish consultancy which handled the process.
Mr Brennan is critical of the Eircom legal action. Last month, the newly-privatised former State operator issued a plenary summons against the ODTR in a dispute over the methods to be used in charging other operators for using its network.
Eircom was unhappy with proposed charges and conditions in a document known as the Reference Interconnect Offer (RIO). The case is currently going through the High Court.
Mr Brennan says "it is difficult to impute motives to Eircom", but "it serves the objective of delaying progress".
Included in the RIO were commercial terms and conditions which apply to interconnect arrangements between Eircom and the other operators. It also included proposals that Eircom should notify other operators when it intends to introduce new products. This would give its competitors time to introduce similar products if they wished.
But is this not unfair? Why would you notify the competition of your intentions? Mr Brennan says it is fair because Eircom is still considered to have significant market power. "We want a fair and structured approach to Eircom's introduction of new products," he adds.
He says advance notice of Eircom's intentions would give the other operators time to negotiate rates with Eircom and to prepare marketing and sales campaigns for their own products.
The ODTR's functions include regulating the telecoms market and overseeing the development of competition in the sector.
Mr Brennan says there seems to be some overlap between the regulator's powers and those of the Competition Authority and this, he maintains, should be changed. A Bill which should clarify the situation is currently proceeding through the Oireachtas.
"The Bill should give the regulator extra powers and introduce an appeal mechanism for decisions that she makes," he says.
This might then help to avoid some issues ending up in court, he believes.
At present, he says, the independent operators and Eircom may be debating an issue and the ODTR is taking part by listening to all the arguments. Despite lengthy debate, neither side may be able to reach agreement.
"In recent times the ODTR has tended to say it will not issue a summary decision on the matter. Instead it issues a consultation paper and gives interested parties four weeks to respond," says Mr Brennan.
He says the submissions then have to be considered by the ODTR. "This can result in an inordinate amount of time being wasted before a decision is made," he says. "It is not good in a sector which is changing so quickly."
Mr Brennan says there is a perception that the ODTR feels a summary decision can be more easily challenged than one which involves the long consultation process.
There are about 50 licensed telecoms operators in the Republic and Mr Brennan is looking at expanding the organisation. At present it includes companies such as Esat Telecom, Esat Digifone, Cable & Wireless, MCI/WorldCom, Interoute and NTL. Between them they have invested more than £1.25 billion (€1.60 billion) in telecommunications in the State. However, this figure includes the £535 million which NTL paid for Cablelink, earlier this year.
The organisation, which was formally incorporated earlier this year, has taken some time to put together. Mr Brennan says it makes perfect sense. His role is a part-time one, involving representing the industry's views, particularly to the ODTR.
He says it saves time for everyone - including the telecoms regulator - who in many cases now has to listen to one organisation airing its opinion instead of 11 operators trooping into her office to make the same point.
In addition, he says, any point his organisation makes to the ODTR is likely to have been very carefully considered.
At present it is talking to the ODTR about number portability - whereby businesses can keep the same number when changing operators and about freephone numbers. It's a safe bet that as the market continues to develop, Mr Brennan's part-time role will involve an increasing workload.
