Panel to rule on appeal of ComReg decision

The Electronic Communications Appeals Panel (Ecap) will make its first ruling on an appeal against a decision by the communications regulator in September.

The panel will also conclude hearings on three appeals lodged by Vodafone, O2 and Eircom before the end of the year, Ecap's chairman said yesterday.

In an interview with The Irish Times, Hugh Mohan SC said it was Ecap's intention to speed up the hearing of appeals by firms. But he said the appeals panel had to be mindful of the need to establish procedures that gave all parties natural justice.

He said he was also conscious of the fact that parties to appeals could potentially go to the High Court to seek judicial reviews of any decisions by Ecap, making it all the more important to establish good procedures.

Ecap was set up by the Government in August 2004 to hear appeals made against decisions by the communications regulator (ComReg). But it only heard its first case last month - an appeal by the mobile operator Hutchison 3G Ireland (known by the brand 3) against a decision by ComReg to label it with "significant market power". This designation would enable ComReg to regulate the company, potentially placing a cap on the fees it charges other firms to terminate calls on its network.

Mr Mohan said the panel would issue a judgement on this first appeal in early September.

He said the procedures and framework set out in this first case could be used as a model for future appeals.

Ecap issued a crucial decision on the scope of its powers in preparation for the Hutchison case.

This decision ruled that the panel would not undertake a fundamental reassessment of the principle issue that had already been ruled on by the regulator - in this case whether Hutchison holds significant market power.

Instead, Ecap will focus on the evidence and material upon which ComReg based its decision, and look at the inferences and conclusions it drew from it.

Ecal can annul a ComReg decision in full or in part if, under examination, the panel finds there are errors in fact or law.

To overturn a decision by ComReg the error should not be trivial. But neither does it have to go to the root of a ruling, according to Ecap's decision.

Ecap will take into account the view of the regulator given its expertise on certain technical matters, but ultimately it can substitute its own opinion if its takes a different view from ComReg.

One of the previous cases Ecap reviewed in its deliberations was the landmark Orange v Director of Telecommunications case in 2000. In this case the Supreme Court upheld the regulator's decision to award the third mobile licence to Meteor, and set a precedent of deference to decisions by the national regulator.