The High Court has refused Eircom’s application to suspend lower regulated wholesale broadband prices while it appeals the decision that set them. The ruling leaves ComReg’s Decision D11/2021 in operation pending the appeal; it does not determine whether the decision is valid.
ComReg made the decision on 17 December 2021 and published it on 20 December. It sets lower maximum prices Eircom can charge in the Wholesale Local Access and Wholesale Central Access markets, focusing mainly on fibre-to-the-cabinet services. Sky Ireland and Vodafone Ireland are wholesale customers in those markets and opposed the stay application alongside ComReg.
Eircom lodged its appeal on 14 January 2022, seeking to have the decision set aside or remitted to ComReg for reconsideration. Its separate stay application asked the court to pause implementation while that appeal was pending. The judgment concerns only that interim application. The court said the appeal was listed for July 2022.
Justice Denis McDonald found that Eircom had shown a risk of irrecoverable lost revenue if the new prices took effect. The evidence before the court put the annualised loss at between €4.5 million and €7 million. The judge did not accept Eircom’s other claimed harms as sufficiently established: the proposed effect on fibre-to-the-home rollout was undermined by a joint-venture investment announcement, while claims about competitive constraints and customer contracting lacked supporting detail. Administrative costs were irrecoverable but unquantified.
The judge weighed Eircom’s potential losses and the need for an effective appeal against the interests of wholesale customers, consumers and the public interest in implementing a regulator’s decision. Sky and Vodafone offered to repay Eircom the difference between the decision prices and pre-decision prices, or a lower price that Eircom might ultimately be found entitled to charge. The court required the undertaking to cover the period through determination of the appeal.
On 9 March 2022, Sky and Vodafone confirmed an undertaking covering relevant wholesale charges they incurred from 1 March until the appeal is determined. The judge received the undertaking and refused the stay. The underlying appeal remained to be decided; the judgment made no final finding on the merits of Eircom’s challenge.