Do you agree that the transparency obligations outlined above (and set out in the Draft Decision Instrument at Appendix 4) should be imposed on eircom?

Are there other approaches that would address the identified competition problems? Please explain the reasons for your answer, clearly indicating the relevant paragraph numbers to which your comments refer, along with all relevant factual or other evidence supporting your position.

eircom do not agree that an obligation of transparency is appropriate or justified. In this regard, we note that contrary to what ComReg suggests at para 6.89, an obligation of transparency is not among the obligations listed in Regulation 13 of the Universal Service Regulations which the Regulator may impose by way of control on retail markets, where and if justified.

At paragraphs 6.91 and 6.92, ComReg sets out the measures which apply to all retail providers of electronic communication services and refers in particular to Regulation 15 of the Universal Service Regulations and Decision D11/04 re: ComReg‟s Code of Practice for Tariff Presentation. eircom notes in this respect that to date, ComReg has refrained from imposing publication requirements on all operators but has taken other measures to achieve transparency in retail communications services markets, including, for example, through its website “callcosts.ie”. Other requirements, including, in particular, under Regulation 14 of the Universal Service Regulations (which requires that prices and terms and conditions are specified in contracts in a clear, comprehensible and easily accessible form, and that customers be advised one month in advance of any changes), ensure that end-users have access to adequate and accurate information. In this context, it is not clear why there should be a specific SMP obligation imposed on eircom.

eircom notes further that,in any event, eircom is subject, as the USP, to an obligation under Regulation 8(4) of the Universal Service Regulations to publish the conditions of any scheme to provide special tariff options, and common tariffs, including geographical averaging. As such, eircom‟s terms and conditions for line rental are published in its website and no further obligation can be justified in this respect. This also means that ComReg‟s proposed obligation to supply services only at the relevant published price is entirely redundant having regard to Regulation 8(4).

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eircom also disagrees that it is necessary to maintain an obligation to notify ComReg five days in advance of changes to LLVA services. eircom particularly does not see that this can be justified by reference to “SMP margin squeeze obligations” because the terms of relevant price obligations would, in any event, trigger such an obligation. It is thus the case that in the event of a reduction in FVA prices, eircom would have to seek ComReg‟s approval for corresponding changes to SB-WLR and satisfy ComReg that the WLR price did not squeeze LLU or NWBA alternatives. The mechanism used under Decision D01/06 shows that a retail minus/margin squeeze price control does not require retail obligations to operate.

An increase in FVA prices is unlikely due to the competitive constraints. However, an increase in SB-WLR would require ComReg‟s approval, while an increase in retail prices without a corresponding SB-WLR increase would create arbitrage opportunities for other operators (whose incremental retailing cost might be below the current 14% margin already), especially given the requirements of D13/12.

Finally, ComReg has wide ranging powers to seek information from eircom, so it is misleading to suggest (as in Para. 6.94) that a transparency obligation is needed to to monitor evolution of prices in order to ensure compliance with the USO. If advance notice is required to ensure compliance with obligations of affordability or otherwise, this should be provided for by amending the USO designation.

In this context, and for the avoidance of doubt, noting ComReg‟s reference to bundles at para. 6.96, the regulatory controls that ComReg may impose at the retail level are of course limited to the regulated product, in this case LLVA, and could not be lawfully applied to any other products on the pretext that they are sold in a bundle including the regulated product. Any other interpretation would be fundamentally at odds with the regulatory scheme as set out in Regulation 13 of the Universal Service Regulations which only allows for regulation in restrictive circumstances.We also note that the European Commission has emphasised in its Article 7 letters the requirement of proportionality of any measures that are imposed. It cannot be considered that the application of an extensive set of regulatory controls not only to the regulated products – LLFVA – but also, effectively, to any other products when sold with it, can be considered to be a proportionate measure. Regulation 13 allows for the imposition of an obligation not to unreasonably bundle: eircom is of the firm view that this is the only extent to which bundles may fall within the scope of regulatory controls at the retail level.

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The requirement at Para. 7.1 to “publish in its public offices” is obsolete. Eircom does not have public office and does not have printed material with this information. If publication is required, it should be sufficient to publish on the website and to make material available to customers on request.

Q.22 Do you agree that, insofar as the LLVA market is concerned, eircom should be