Comreg...EU Framework, more work to be done by you Minister

spongebob

Comreg replied to the DCMNR and published their response.

It runs to 34 pages and is not light reading. They reply to the 4 Statutory Instruments that will in turn transpose 4 EU Directives into Irish Laws in July.

The full document is Here in word.doc format

There are some relics of their age old 'we have no power to do anything' mantra but much of the submission is correctly concerned with procedural matters and the risk of their being their own legal appeal body and/or the risk of an appeals body being set up to frustrate Comreg in its duty.

This gives rise to justifiable concerns of being found in breach of Eircoms entitlement to Natural Justice in the way that Comreg operates and in Comreg dealing with appeals about themselves or in shenanigans and no shows at appeals.....in particular under the Audi Alterem Partem dictum if me latin is right. Eircom could have a field day in court if another body is not designated to deal with appeals. (their Competition Authority got the job in the UK is seems) and could also have a field day with the appeals body if the appeals body were a high court surrrogate.

On Page 12 I found a rather snotty note as to WHO could appeal a Comreg decision. Comreg appear to object to their activities being appealed by the like of Ireland Offline for example....they appear to want their activities in an appeal to be a matter of Them VS Eircom or Them VS RTÉ and appear unimpressed at the idea of having to justify themselves in a case such as IoffL Vs Comreg (because Comreg ballsed something up)

Locus Standi
There is no expressed mechanism for the appeal panel or Minister to decide issues of locus standi. ComReg considers that it is necessary to provide a mechanism to filter out frivolous appeals and to avoid use of the appeal panel by, for example, a user or undertaking that is not affected by an appealable decision or by a body not within the definition of an undertaking in the Regulations or by a person who is not ‘affected’ by the decisions. Such a mechanism could be exercised by the Minister or by an Appeal Panel and in the interests of fairness such a decision should be capable of appeal to the High Court. ComReg preference is that the issue should be decided by the Minister to prevent the unnecessary establishment of an appeals panel where the matter is not an appealable decision or the appellant lacks locus standi.

Because it is so procedural it often reads like

Dear Dermot.

sort this,
clarify that,
link a and z for us please,
sort the other,
see what the Danes did in situation x
clarify etc. etc.

Communications policy and the like dont really come into it.

Not a smeggin sign of the end user rights consultation paper under the USO timeline either.......hop to it Comreg willye. That was due today, the 31/01. An explanation on the website would be nice.

M

yellum

Muck, you make sense all the time, but can you rephrase this ? I'm lost. Too many rat references. Injokes are too high in this post I think.

dahamsta

I'll have a go:

ComReg responded to the DCMNR consultation. It's available on their website. It's a big horse of a yoke. They did some of the usual "we can't because we're impotent" crap but for the most part concerned themselves with addressing procedural issues.

They're worried that ComReg itself will be appointed as the appeals body, which will prompt - probably justifiable - complaints from the telcos; or that an external appeals process will used to frustrate their actions[1]. They also want to make sure that not every TD&H[2] can file an appeal.

It was all about procedures, and had very little commentary on genuine communications issues. I wouldn't swear to it, but I get the impression that Muck is saying that they're whining about the flavour of the tea when there's none in the cupboard.

And finally, ComReg should get up off their fat arses and release the consultation paper that was due today, or at least have the courtesy to put a note on the website about it.

That any help?

Muck, Google says it's "audi alteram partem". Everyone else, that means "hear the other side", and "locus standi" means "recognised position, acknowledged right or claim". Google Is My Friend Too.

adam

[1] Strikes me as a bit "damned if you do, damned if you don't", that.
[2] Tom, Dick & Harry. This is the last time.

spongebob

thanks for paraphrasing my version after I cleaned up as per yellums request.

anyway, its a treatise on administrative law, due process and natural justice and has very little to do with what we mutter about darkly in here

/plug me will apply for cushty number as appeals commisioner (chairdroid) with dahamsta to sit on my sinister side .

wheels = Alfa 166 (black) or Beemer
whack = €100k
pension huge
exercisable at 45 coz i'll be jailbait in the comms industry by then

/end plug

M

yellum

Thanks for the clarification Muck and Adam.

Page 12 of that which you pointed out Muck. Cheek of them.

spongebob

So IoffL appears to be dismissed as:

a body not within the definition of an undertaking in the Regulations

Must head to the crapper for a while with the rest of this document....

Submission time (to DCMNR) ends on 07/02/2003

dahamsta

plug me will apply for cushty number as appeals commisioner (chairdroid) with dahamsta to sit on my sinister side .

Only if I can do the evil laugh.

wheels = Alfa 166 (black) or Beemer
whack = €100k
pension huge
exercisable at 45 coz i'll be jailbait in the comms industry by then

And a bargain at that.

adam

yellum

Muck ,
C'mere a while youngfella. Explain some things to us. Whats the deal with Comreg having a USO doc and the Dept having one, and do they want feedback from us plebs on both ?

What are the other docs at that link and how do they affect us ?

I'll buy ya a dice and a nodding dog ( called E-Tain ) for the Alfa or Beemer

spongebob

a yellow dawg to the address in the PM head. I like em on the rear screen and not hanging.

In a nutshell.

1. The DCMNR (I linked to the details in this thread back) is accepting submissions on the Statutory Instruments that will make the EU framework part of Irish law. This consultation ends in a week. There are 4 of these (another will follow later)

2. The organisation most affected in Comreg, they published their submission to DCMNR today. I commented on that at the beginning of the thread to get us going. Other bodies may also make submissions of course.

3. The Comreg world view seems to indicate that industry pressure groups such as IoffL should not be allowed to appeal Comreg decisions.....but there is a lot more as I said. That bodes ill for point 4 below.

4. Comreg have invited submissions from the public and industry on what they will do once they have the powers I allude to in point 1 , IE once the SI's become law thus completing the transposition. These are consultations initiated by Comreg. These were published in December and concern 3 of the SI's (Access and USO and Authorisation ) ...they will consult on the Framework one later I suppose ...I think the final SI is data protection related.

Part of one consultation closes on the 180203 (the USO)

Another part of the same consultation should have been published today.......lazy sods..... see their own published timeline on page 42 of the USO consultation Here.

M

dahamsta

Locus Standi is a tricky one. Certainly, IrelandOffline and organisations like it should be allowed to appeal decisions if they believe they are invalid, incorrect or damaging, but there obviously needs to be controls here too. Eircom could keep their appeals level down by encouraging the ESOT or TWU into making appeals. OLOs could do the same with ISPs and enterprise customers. Even small businesses and consumers could bring ill-conceived appeals based on grudges or maliciousness.

The critical part in my view is how "a person who is not ‘affected’ by the decisions" is defined. I mean, how do you define "affected" - I love the way they put that in quotes by the way - and how do you decide /by how much/ you need to be affected? Obviously, the answer is that a neutral third-party person or body must make the decision, but how ComReg decided that it should be the Minister is beyond me. Don't get me wrong, I haven't made any decisions about Ahern yet, but what about 2006 or the next reshuffle? (Or a revolution, for that matter!) Can you say "Mary O'Rourke"?

What's the solution? Well, obviously it can't be ComReg, that would just be silly; and as I said above, I don't think it should be the Minister either. Should it be the appeals panel itself? In an ideal world, yes, but this isn't an ideal world -- they're hardly going to work pro bono, so if their renumeration is based on workload, they're going to want more appeals; if it's a fixed salary, they're going to want less appeals. That said, if you make it a separate person or agency, it's just another layer to hold things up, and we can't afford that. Like I said, tricky.

Finally, I have to say that their suggestion that parties to an appeal should be allowed appeal the decision of the Appeal Panel to the High Court isn't just an idiotic mouthful, it's an idiotic idea. The entire concept of a dedicated appeals panel should be to accelerate the appeals process, not slow it down still further by adding another layer. It's quite simple, either the industry has to come to an agreement on a code of practice - including acceptance of the appeals panel - or the courts system has to be fast-tracked for issues like these.

The latter just ain't going to happen - there are many issues that are far more deserving of a fast-track process - so perhaps we should just get it all out of the way now by mandating a code of practice on the industry, and let them appeal /that/ decision all the way to Europe, and let /that/ be and end to it. God knows, it's not as if we don't have clear-cut evidence that competition in the industry is illusory and all-but non existant; and it's not as if we couldn't prove with one hand tied behind our backs that the industry has failed utterly to regulate itself.

Sure, it would take a long time to wind its way through the process, but that option is already open to them for /every/ issue that comes up. Wouldn't it be better if we could put a stop to the neverending process of a trickle here and a trickle there? A process that ComReg seems to want to make worse...

adam

spongebob

if IoffL have sorted out the constitution and committee elections by July they should be added to a panel of automatically ínterested' parties along with say

IDA
IBEC
Chambers of Commerce
ESRI
County Enterprise Boards
MABS
Udarás

(there are others but not that Maureen Gaffney :rolleyes: I hope

who are deemed to have locus standi in a schedule of bodies attached to the SI ( or Comms Act) that sets up this vapourous appeals panel.

But I digress.

Comreg gave IoffL the finger in that submission.

M

yellum

My head hurts. Too many documents to process, specially with all that Shovel Service waffle.

I'll nudge daveirl too about the constitution

theking

There must be a final appeal to the High Court built into the mechanism. Following the case of Re: The Solicitors Act 1954(?) where the Law Society had attempted to disbar a solicitor from practice, this was seen as a judicial function.

The Courts are jealous of being the only place judicial functions can be exercised. (pace the Constitution). Therefore a compromise system was reached whereby an industry regulator may have a decision-making system, and even an appeals mechanism, but if there is to be any 'Significant' impact on the party in question they must be able to appeal it to the Courts, who are not bound to follow the previous findings.

This keeps the judges happy, while also making sure that most cases don't have to clog up the system.