Eircom challenges how decision over access to its infrastructure was made

High Court reporters

Eircom, trading as Eir, has brought a High Court challenge over how the communications regulator decided on the way in which other service providers access its underground piping or ducting system to put in their own communications cables.

In June last year, Comreg issued a direction in which other providers can access the Eircom network which, among other things, involves unblocking silt and other material which has built up in the ducts.

Only where the other providers request a repair of the duct, so it can get access should Eircom carry out certain works, the direction stated.

The obligation was imposed on Eircom as a provider with significant market power and was designed to address associated competition problems, according to the direction.

However, the court heard, Eircom itself will now carry out the unblocking works and bear the cost of it which will be recouped over the years from other providers through rental charges for access to its infrastructure.

Eircom's appeal now centres on whether Comreg was obliged to carry out a public consultation process before it made the decision. The case is being heard by Mr Justice Michael Quinn in a Trialview online/physical hearing.

Fair procedures

In submissions on behalf of Eircom, Jonathan Newman SC, with Joe Jeffers BL, said the court had to address a number of critical issues in his client's appeal.

These include whether Comreg can decide not to conduct a public consultation process as per framework and access regulations covering these matters.

Counsel said the court must determine whether there was any proportionality and analysis in the Comreg direction. There was a requirement for the regulator to give reasons for its decision and the court must look and say whether they are coherent and cogent and that there is no error in law in it.

The court must also ask if there is compliance with fair procedures and in particular with regulations in relation to the principle of transparency and the domestic duty of candour setting out the reasons for decisions, he said.

Opening Comreg's submissions, Brian Kennedy SC disputed the claims made on behalf of Eircom. He said a number of grounds of Eircom's appeal, including the reasons for triggering an entitlement to public consultation grounds, had fallen away.

Eircom is separately appealing another direction of Comreg in relation to the wholesale market price access for other providers.