Eircom wins ‘unbundling’ challenge

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 14 last with two directions from ComReg concerning local loop unbundling, had deprived Eircom of its rights of appeal and therefore acted unlawfully.

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 outcome of the appeal.

The judge noted the Minister for Communications, Noel Dempsey, had said he would not set up an appeal panel because of the court 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. The legal proceedings arose from various directions issued by ComReg to Eircom regarding requests for new forms of access to Eircom’s local loop.

Local Loop Unbundling (LLU) describes a service provided by Eircom which allows other phone companies to take possession of Eircom’s local loops for the purposes of providing services to customers.

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 the MRD was seriously deficient and did not adequately define the requirements being requested.

ComReg did not accept it was appropriate for Eircom to analyse the MRD and meetings between Eircom and ComReg failed to reach agreement on the matter.

On January 18, 2005, ComReg issued a decision notice which included two directions to Eircom regarding LLU to be adhered to by February 18, 2005.

In its High Court proceedings, Eircom claimed the requirement to adhere to those directions by February 18, 2005, infringed its right to appeal those directions within a 28-day period and to seek a suspension of those directions pending that appeal.