Right to appeal ComReg directions won by Eircom

Eircom has won a High Court challenge to the procedure adopted by the Commission for Communications Regulation (ComReg) in seeking to enforce directions aimed at advancing "local loop unbundling", the process of opening the last mile of Eircom's telephone network to rival firms.

Mr Justice Liam McKechnie yesterday held that ComReg, in requiring Eircom to comply by February 14th last with two directions from ComReg concerning local loop unbundling, had deprived Eircom of its rights of appeal.

He found ComReg was not entitled to limit Eircom's right of appeal, including its right to seek suspension of implementation of the directions complained of pending the appeal's outcome. The judge noted that Minister for Communications Noel Dempsey had said he would not set up an appeal panel because of the proceedings. It was difficult to see why that approach was taken, he said.

He awarded costs of the proceedings to Eircom but placed a stay on that costs order in the event of an appeal.

ComReg was established to ensure compliance with obligations regarding the supply of, and access to, telecommunications services.

In June 2004 ComReg designated Eircom as having significant market power in the market for LLU. In November 2004 ComReg drafted a Market Requirements Document (MRD) setting out requirements of other companies in relation to LLU, which envisaged those requirements would be made available by February 2005.

Eircom argued that the MRD did not adequately define the requirements being requested. ComReg did not accept it was appropriate for Eircom to analyse the MRD and an agreement was not reached at meetings between Eircom and ComReg.

On January 18th ComReg issued a decision notice (D/105), which included two directions to Eircom regarding LLU to be adhered to by February 18th.

In its High Court proceedings, Eircom claimed the requirement to adhere to those directions by February 18th infringed its right to appeal those directions within a 28-day period and to seek a suspension of those directions pending that appeal.

Mr Justice McKechnie said that as part of the appeal process, Eircom was entitled to apply to have the decisions suspended until its appeal was determined by an appeal panel. The 28-day period within which to appeal was due to expire on February 14th. ComReg had said that Eircom must comply with its two directions on February 1st and February 14th. On February 2nd it issued an enforcement notice regarding the first direction and issued a second enforcement notice on February 14th.

In imposing those time limits in circumstances where Eircom had a right to appeal and where it was also entitled to seek a suspension of the January 18th, 2005 decision pending that appeal, ComReg had deprived Eircom of its right to appeal and had acted unlawfully, the judge held.