PART V

The Telecommunications Company

86. —In this Part “company” means the telecommunications company.

87. —(1) The company shall, subject to the provisions of this section, have the exclusive privilege of offering, providing and maintaining telecommunications services for transmitting, receiving, collecting and delivering telecommunications messages within the State up to (and including) a connection point in the premises of a subscriber for any such service.

(2) The said privilege is granted to the company—

(a) in view of its primary purpose of providing a national telecommunications service and of the general duty imposed on it by section 15 , and

(b) in recognition of the fact that a privilege of this kind is appropriate having regard to the area and population of the State and the present state of development of telecommunications technology, and

(c) because a viable national telecommunications system involves subsidisation of some loss-making services by profit-making services.

(3) Each of the following shall not be regarded as a breach of the exclusive privilege granted by this section—

(a) services provided and maintained by a person solely for his domestic use,

(b) services provided and maintained by a business for use between employees for the purposes of the business and not rendering a service to any other person,

(c) services provided and maintained by a person by means of apparatus situated wholly in a single set of premises occupied by him,

(d) the operation of a broadcasting station under licence granted by the Minister,

(e) radio communications systems provided under licences granted under the Wireless Telegraphy Acts, 1926 to 1972,

(f) cable television systems licensed under the Wireless Telegraphy Acts, 1926 to 1972,

(g) services provided in accordance with the terms and conditions of a licence granted by the company under section 89 or by the Minister under section 111 .

(4) A person who breaches the exclusive privilege granted by this section, or who attempts to breach that privilege or who aids, abets, counsels or procures such a breach, or who conspires with, solicits or incites any other person to breach that privilege, shall be guilty of an offence. In any proceeding in relation to that offence it shall lie upon the person proceeded against to prove that the act or omission in respect of which the offence is alleged to have been committed was done in conformity with this section.

88. —(1) Subject to subsection (3), the company shall be immune from all liability in respect of any loss or damage suffered by a person in the use of a service referred to in paragraph (a), (b) or (c) by reason of—

(a) failure or delay in providing, operating or maintaining a telecommunications service,

(b) failure, interruption, suspension or restriction of a telecommunications service,

(c) any error or omission in a directory published by the company or any telegrams or telex messages transmitted by the company.

(2) The members of the staff of the company shall be immune from civil liability except at the suit of the company in respect of any loss or damage referred to in subsection (1).

(3) (a) Section 39 of the Sale of Goods and Supply of Services Act, 1980 , shall not apply to the provision of international services by the company.

(b) The said section 39 shall not apply to the provision of telecommunications services within the State until such date as the Minister for Trade, Commerce and Tourism, after consultation with the Minister, by order provides, whether in relation to such services generally or in relation to services of a class defined in the order in such manner and by reference to such matters as the Minister for Trade, Commerce and Tourism, after such consultation, thinks proper.

89. —(1) The company may, with the consent of the Minister and subject to such terms and conditions as the Minister may approve, grant, on the application of any person, a licence to the person to provide a telecommunications service within the exclusive privilege granted to the company by section 87 .

(2) Where the company refuses to grant a licence under subsection (1) the applicant may appeal to the Minister against the refusal.

(3) The Minister may, as he sees fit, appoint an advisory committee or advisers to advise him in relation to appeals under this section.

(4) (a) The Minister may by order grant a licence on an appeal under this section if in his opinion the grant of the licence is in the public interest and is consistent with the reasons given in section 87 (2) for the grant of the exclusive privilege to the company.

(b) The Minister may by order revoke an order under paragraph (a) and if such an order is revoked or is annulled under section 3 , the licence granted by the order shall stand revoked.

90. —(1) Subject to this Act the company may make, as respects any of the telecommunications services provided by it, a scheme providing for—

(a) either or both of the following—

(i) all charges which (save in so far as may otherwise be agreed between the company and a person availing himself of any such service) are to be made by it,

(ii) the other terms and conditions which (save as aforesaid) are to be applicable to those services,

(b) the prohibition of transmission of objectionable matter.

(2) The company shall not increase any charge under a scheme under this section without the concurrence of the Minister.

(3) A scheme made under this section may revoke or amend any previous scheme made under this section and any regulations to which section 92 relates.

(4) A scheme under this section shall come into operation on such day as is specified therein.

(5) Every scheme under this section shall be published as soon as may be.

91. —(1) A certificate purporting to be signed by an officer of the company that a specified sum is due to the company from a specified person for any subscription, fee, charge, expense, damage or loss in respect of any service provided by the company in the exercise of a function assigned to it under this Act shall, without proof, be prima facie evidence in any proceedings by or against the specified person, his personal representatives or successors in title.

(2) For the purposes of subsection (1) the reference to a sum due to the company shall include a sum originally due to the Minister under the regulations referred to in section 92 (1) which is due to the company on the vesting day.

92. —(1) Regulations in force immediately before the vesting day under the Telegraph Acts, 1863 to 1953, and not revoked by a scheme under section 90 or by any provision of this Act shall, with the substitution for references to the Minister for Posts and Telegraphs and the Department of Posts and Telegraphs of references to the company, unless otherwise provided in the Third or Fourth Schedule , have effect on and after the vesting day as if they were provisions of schemes made under section 90 .

(2) A certificate purporting to be signed by an officer of the company that charges fixed by the Minister under regulations to which subsection (1) relates applied on a specified date shall be prima facie evidence of the matters so certified.

(3) (a) If an agreement or licence in force immediately before the vesting day contains a reference to a provision in any regulations to which subsection (1) relates and that provision is revoked under section 90 during the currency of the agreement or licence, the reference shall be taken as referring to the corresponding provision (if any) of a scheme under that section.

(b) Any reference in any such agreement or licence to a provision in a regulation relating to limitation of liability shall continue to be read as if that provision were still in force.

93. —Any sum of money paid to the Minister before the vesting day as security for payment of any charge due in respect of telecommunications services which is not repaid before the vesting day shall be transferred by the Minister to the company as soon as may be after the vesting day.

94. —All proceedings in the nature of arbitration for the settlement of disputes and differences or the recovery of expenses under the Telegraph Acts, 1863 to 1953, which are pending on the vesting day and to which the Minister is a party shall be continued with the substitution for the Minister of the company.

95. —(1) The Minister, after consultation with the Minister for the Environment, may make regulations requiring persons engaged in the provision of housing and industrial estates and other building developments (including developments by local authorities) to provide such facilities as would enable telecommunications services to be provided in those buildings in the most expeditious and efficient manner.

(2) The regulations may specify the categories of development to which the regulations are to apply by reference to size, location and other relevant matters.

(3) The regulations may specify the types of facilities to be supplied or works to be carried out and may set out the conditions to be observed in the provision or construction of those facilities.

(4) The regulations may specify the rules and procedures for the inspection and certification by the company of such facilities and works.

(5) The regulations may specify any other relevant matters which the Minister considers to be desirable or necessary.

96. —The company may—

(a) determine the duration of any telephone or telex call,

(b) suspend or interrupt a telecommunications service or refuse to implement or terminate an agreement with a subscriber to such a service or with an applicant for such a service where the subscriber or applicant fails to comply with or contravenes a scheme under section 90 or any provision of this Act,

(c) require security for and advance payment in respect of charges for telephone, telex, telegram or other services provided or to be provided by the company,

(d) prohibit transmission of objectionable messages,

(e) disconnect telephone or telex calls or exchange lines or telex installations or alter exchange lines for technical reasons or recover exchange lines.

97. —(1) The shares in Irish Telecommunications Investments Limited held immediately before the vesting day by nominees of the Minister and the Minister for Finance, respectively, shall on that day stand transferred to such persons (one of whom may be the telecommunications company) as are nominated in that behalf by the telecommunications company with the concurrence of the said Ministers and shall be held by such persons in trust for the company.

(2) The memorandum of association and articles of association of Irish Telecommunications Investments Limited shall be appropriately amended with effect on the vesting day, with the concurrence of the said Ministers, to take account of the transfer effected by subsection (1).

98. —(1) A person who—

(a) intercepts or attempts to intercept, or

(b) authorises, suffers or permits another person to intercept, or

(c) does anything that will enable him or another person to intercept,

telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence.

(2) Subsection (1) shall not apply to any person who is acting—

(a) (i) for the purpose of an investigation by a member of the Garda Síochána of a suspected offence under section 13 of the Post Office (Amendment) Act, 1951 (which refers to telecommunications messages of an obscene, menacing or similar character) on the complaint of a person claiming to have received such a message, or

(ii) in pursuance of a direction issued by the Minister under section 110 , or

(iii) under other lawful authority, or

(b) in the course of and to the extent required by his operating duties or duties for or in connection with the installation or maintenance of a line, apparatus or equipment for the transmission of telecommunications messages by the company.

(3) (a) The company may, with the consent of the Minister, make regulations to carry out the intentions of this section in so far as concerns members of its staff.

(b) The Minister, after consultation with the company, may direct the company to make regulations under paragraph (a) or to amend or revoke regulations made under that paragraph and the company shall comply with that direction.

(c) A person who contravenes any regulation under this subsection shall be guilty of an offence.

(4) (a) The Minister may make regulations prohibiting the provision or operation of overhearing facilities in relation to any apparatus (including private branch telephone exchanges) connected to the network of the company otherwise than in accordance with such conditions as he considers to be reasonable and prescribes in the regulations.

(b) A person who contravenes any regulation under this subsection shall be guilty of an offence.

(5) In this section, “interception” means listening to, or recording by any means, or acquiring the substance or purport of, any telecommunications message without the agreement of the person on whose behalf that message is transmitted by the company and of the person intended by him to receive that message.

99. —(1) A person who wilfully causes the company to suffer loss in respect of any rental, fee or charge properly payable for the use of the telecommunications system or any part of the system or who by any false statement or misrepresentation or otherwise with intent to defraud avoids or attempts to avoid payment of any such rental, fee or charge shall be guilty of an offence.

(2) A person who connects or causes to be connected any apparatus or device to, or places or causes to be placed any apparatus or device in association or conjunction with, the telecommunications system operated by the company or any part of the system the effect of which might result in the provision by the company of a service to any person without payment of the appropriate rental, fee or charge shall be guilty of an offence.

100. —(1) Notwithstanding anything in the Telecommunications Capital Acts, 1924 to 1981, the company shall become liable on the vesting day to pay to the Minister for Finance the amount by which sums issued by him under those Acts which have not been repaid before that day exceed the sum of £355,000,000 plus the amount of the outstanding liability of the Minister to Irish Telecommunications Investments Limited immediately before the vesting day, together with the interest on that amount at such rate or rates as he, after consultation with the Minister and the company, may appoint.

(2) The company shall pay to the Minister for Finance the moneys due under subsection (1) at such times and in such instalments as he, after consultation with the Minister and the company, may appoint.

(3) (a) If the company fails to make a payment as required under subsection (2), the company shall remain liable to the Minister for Finance in respect of the unpaid amount and interest on the unpaid amount at such rate or rates as he may appoint shall become payable immediately by the company.

(b) Interest due under paragraph (a) together with the unpaid amount shall be a debt due to the Minister for Finance and, without prejudice to any other method of recovery, shall be recoverable by him as a simple contract debt in any court of competent jurisdiction.

(4) All moneys paid by the company to the Minister for Finance under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as he may direct.

101. —(1) The company shall pay to or in respect of every member of the staff of the Department of Posts and Telegraphs transferred to the service of the company any amount due to or in respect of that member in respect of service with the Department and unpaid on the vesting day and the company shall, with the concurrence of the Minister for Finance, be reimbursed by the Minister.

(2) The Minister shall, with the concurrence of the Minister for Finance, pay to the company an amount equal to advance payments received by him in respect of telecommunications services to be provided by the company.

(3) The company shall pay to the Minister an amount equal to sums collected by it on or after the vesting day in respect of services provided by the Minister before the vesting day in respect of functions assigned by this Act to the company.

(4) All sums required to be paid under this section shall become due and payable on such date as the Minister, in consultation with the company and with the concurrence of the Minister for Finance, may determine.

(5) The company shall supply the Minister with such information, records and documents as the Minister may require for the purposes of this section and the Minister and his officers shall have the right to inspect and take copies of all relevant records and documents of the company.

(6) In the event of a disagreement as to any amount to be paid by the company to the Minister or by the Minister to the company under this section the decision of the Minister, given with the concurrence of the Minister for Finance, shall be final.