On 23 October 2014, ComReg issued Vodafone with a notice of intention to prosecute as a result of Vodafone’s failure to provide certain information requested by ComReg in its Fixed Access and Call Origination (“FACO”) and Transit Market Analysis. Fast forward by a month, and ComReg issues a similar notice to Digiweb for failure to provide information requested by ComReg in the same market analysis.
The legal basis for ComReg’s enforcement action against each of Vodafone and Digiweb is section 13D of the Communications Regulation Acts 2002-2011 (the “Act”). Readers of our previous ezines will be aware from the September 2014 publication of this section being used by ComReg against Vodafone in June 2014 for failure to provide requested information concerning ComReg’s Leased Line market review.
As noted in the September 2014 ezine, section 13D of the Act confers on ComReg a wide ranging power to request information from telecoms undertakings as ComReg “considers necessary to enable it to carry out its functions”. Section 13D is often used by ComReg when requesting data to compile its Key Quarterly Reports. Failure to comply with a section 13D information request is a summary offence and attracts fines of up to €5,000. Alternatively, ComReg can apply to the Irish High Court for a compliance order.
However, consistent with ComReg’s approach in the June 2014 notice against Vodafone, instead of seeking to bring summary proceedings for an order of compliance against Vodafone or Digiweb, ComReg used section 44 of the Act which enables ComReg to first issue a notice of intention to prosecute. The notices issued to Vodafone and Digiweb in October and November respectively, confirmed that if within 21 days of the notice Vodafone / Digiweb provided the information to ComReg and paid ComReg a sum of €1,500 ComReg would not take the matter any further.
It’s not clear if Vodafone and Digiweb have ‘paid-up’ but it seems that this would be a prudent course of action as – at least in Vodafone’s case where it has had recent experience of ComReg’s section 13D powers – were the matter to go to the High Court, it’s not as if Vodafone could claim it has not been warned!
Indeed, Vodafone has previously showed itself willing to avail of the €1,500 payment option under section 44(1) of the Act. In that case, ComReg was investigating an unresolved customer complaint that Vodafone was continuing to charge a customer for landline and broadband services supplied by Vodafone, despite the customer having switched to another provider. According to ComReg’s Information Notice (issued in September 2014) Vodafone paid the €1,500 requested by ComReg. In addition, Vodafone was required to confirm to ComReg that the technical issue had been remedied, and agree to refund all consumers affected by the issue. It is not clear how much money is at stake here in terms of refunds, but the approach alone shows ComReg is certainly willing and able to hit operators where it hurts!