Communications Regulation Act 2002

Physical infrastructure sharing by infrastructure providers.

57

57.—(1) This section applies to that part of the infrastructure of a physical infrastructure provider which is used to support electronic communications infrastructure and to no other part of the infrastructure.

(2) A network operator has the right to negotiate an agreement to share physical infrastructure with other infrastructure providers and may, upon the commencement of any negotiations, serve notice on the Commission of such negotiations.

(3) The Commission may, on its own initiative, or shall, if so requested by either party, specify the period within which negotiations on physical infrastructure sharing shall be completed.

(4) Where agreement is not reached within the period specified by the Commission under subsection (3), the Commission shall take such steps as are necessary to resolve the dispute in accordance with the procedures referred to in subsection (6).

(5) With regard to any intervention by the Commission referred to in subsection (3) or (4), the Commission may—

( a) having carried out a preliminary examination of the matter, decide not to intervene in those negotiations, or

( b) discontinue the intervention in those negotiations where the Commission considers that—

(i) the request for intervention is trivial or vexatious, or

(ii) the person making the request has not taken reasonable steps to reach an agreement on physical infrastructure sharing.

(6) The Commission shall resolve a dispute referred to in subsection (4) in accordance with procedures established and maintained by it and the procedures shall be made available, on a request being made for that purpose, to interested parties free of charge.

(7) In making a decision in relation to a dispute, the Commission may impose conditions for physical infrastructure sharing and such conditions may include, but not necessarily be limited to—

( a) conditions in respect of conformity with the relevant standards relating to establishment, operation, maintenance and repair of electronic communications infrastructure and physical infrastructure,

( b) compliance with essential requirements or the maintenance of the quality of electronic communications services or both, or

( c) rules for the apportionment of the costs of physical infrastructure sharing,

and the Commission shall notify, in writing, the network operator and physical infrastructure provider, as appropriate, of the reasons for such conditions.

(8) The procedures referred to in subsection (6) shall include provisions for public consultation during which all interested parties shall be given an opportunity to express their views.

(9) The Commission, in reaching a decision pursuant to the procedures referred to in subsection (6), shall take into account, inter alia

( a) the interests of consumers of electronic communications services,

( b) any requirements imposed by an enactment or instrument made thereunder,

( c) the public interest, including traffic control and the protection of the environment and of amenities,

( d) the desirability of encouraging the sharing of electronic communications infrastructure,

( e) the provision of electronic communications services that are not available at the time of the making of the conditions,

( f) the availability of alternatives to the physical infrastructure sharing requested,

( g) the need to provide access to the market for electronic communications services to network operators,

( h) the need to maintain the security of electronic communications networks and the ability of providers of electronic communications services to use different types of electronic communications infrastructure and physical infrastructure,

( i) the nature of the request in relation to the resources available to the network operator or physical infrastructure provider concerned to meet that request,

( j) the promotion of competition between electronic communications services providers, and

( k) the need to maintain a universal service.

(10) In this section, “universal service” means the services which are made available, in accordance with the European Communities (Voice Telephony and Universal Service) Regulations 1999 ( S.I. No. 71 of 1999 ) or any regulations amending or replacing those Regulations, to all consumers of electronic communications services independent of their geographical location.

Annotations:

Modifications (not altering text):

C30

Section applied with modifications (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. No. 333 of 2011), reg. 21(6).

Co-location and sharing of network elements and associated facilities for providers of electronic communications networks

21. ...

(6) Any measure or decision taken by the Regulator in accordance with this Regulation or section 57 of the Act of 2002 shall be objective, transparent, non-discriminatory and take full account of the principle of proportionality.

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