Copies of ComReg’s Final Determinations are available from ComReg’s website:
Vodafone dispute final determination and eircom dispute final determination.
In our September 2014 ezine, we reported on two separate requests for dispute resolution submitted by alternative roaming provider Cloud9 Mobile Communications Limited (“Cloud9”) to ComReg under the dispute resolution framework in regulation 31 of the Framework Regulations 2011 (SI 333 of 2011). The requests related to certain terms and conditions imposed by eircom Ltd (“eircom”) and Vodafone Ireland Ltd (“Vodafone”) on Cloud9 for facilities and support services for the separate sale of roaming services.
ComReg confirmed on 8 August 2014 that it would accept both disputes. At the same time, ComReg confirmed the scope of the disputes. In summary, the scope of the disputes included an assessment by ComReg as to whether eircom / Vodafone were entitled to impose the following charges on Cloud9:
- one-off connection and set-up charges;
- monthly / recurring charges; and
- wholesale charges for the making of regulated roaming calls,
and specifically to the Cloud9/eircom dispute, eircom’s requirement for a bank guarantee.
In reaching the two Decisions, ComReg took into account the requirements under EU Regulation 531/2012 which provides that mobile users must have a choice of roaming provider, leading to an unbundling of domestic services from roaming services. In each Decision, ComReg found that:
- Where access to a facility / service is necessary for implementation of the separate sale of regulated roaming services (“SSRRRS”), eircom / Vodafone are not entitled to charge Cloud9.
- Where however access to a facility / service is not necessary for implementation of SSRRRS – but is optional - eircom / Vodafone may charge Cloud9 ‘fair and reasonable prices’. Neither Decision provides clarification as to what ‘fair and reasonable prices’ might be in practice but it seems this should be determined in accordance with regulation 3(4) of EU Regulation 531/2012.
- Where access to network elements, associated facilities, relevant services, software and information systems is necessary for provision of Wholesale Roaming Resale Access, eircom / Vodafone can charge but must do so within the limits set out in the EU Regulation 531/2012 (in particular, articles 7, 9 and 12).
- Where a component is not necessary for the provision of Wholesale Roaming Resale Access, eircom / Vodafone may charge Cloud9 ‘fair and reasonable prices’ under article 3(4) of EU Regulation 531/2012.
- With respect to the eircom dispute and specifically eircom’s request for a bank guarantee, ComReg found that a bank guarantee would be permissible in principle (provided certain conditions were fulfilled eg, it should be based on three months’ forecasted traffic and subscriber numbers provided by Cloud9). It must not, however, pose an insuperable barrier to entry.