Dáil debates
Thursday, 17 December 2009
Communications Regulation (Premium Rate Services) Bill 2009 - Report Stage (Resumed) and Final Stage
1:00 pm
Willie Penrose (Longford-Westmeath, Labour)
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I move amendment No. 26:
In page 10, line 5, after "licence" to insert "or who infringes the terms of a licence".
I am not well up on this Bill so the Minister for Communications, Energy and Natural Resources, Deputy Ryan, will have an easy target. The thrust of this amendment is to make the breach of the conditions of a licence an offence. Section 10 of the Bill creates an offence for providing an unlicensed service, but there is no offence for breaching the terms of a licence once it has been granted. There is a carte blanche in that respect. Regulatory experience shows clearly that the breaches of the terms under which it is provided are much more frequent than instances of unapproved services being offered. Penalties need to be extended to punish breaches of the terms of the licence.
Eamon Ryan (Dublin South, Green Party)
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I accepted a number of amendments on Committee and Report Stages, but this is one which I cannot accept. As a matter of policy it is not considered appropriate that the breach of the condition of a licence should be an offence. The powers contained in the Bill to ensure compliance with the conditions of a licence are adequate for that purpose. The possible revocation, suspension or amendment of a licence provides a strong incentive for service providers to be compliant. The offence provision for operating an unlicensed premium rate service is intended to incentivise intending premium rate service providers to obtain a licence for such services.
Willie Penrose (Longford-Westmeath, Labour)
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In the context of the Minister's assurance that it is not the normal practice to provide such an insertion in this type of legislation, I withdraw the amendment.
Jan O'Sullivan (Limerick East, Labour)
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Amendments Nos. 27, 28 and 29 are related and may be discussed together.
Willie Penrose (Longford-Westmeath, Labour)
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I move amendment No. 27
In page 10, line 5, after "licence" to insert "or who infringes the terms of a licence".
"(d) which is in respect of a service different to that promoted, which involved non-delivery of messages, failure of stop command, no or inadequate price warnings, blank messages or a service incompatible with the handset from which it was requested.".
Section 11 appears to be somewhat limited and confined to overcharging above the advertised charge. The insertion of this amendment would broaden this considerably and provide a clear definition and approach to this issue. I ask the Minister to give some degree of consideration to it because it would be consumer-oriented. It would be welcomed by the public as it would give them another layer of protection.
Eamon Ryan (Dublin South, Green Party)
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Will I deal with all three amendments in turn?
Jan O'Sullivan (Limerick East, Labour)
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The amendments are grouped. If any Deputies want to speak on them, they may do so now. I will allow Deputy Penrose to continue.
Willie Penrose (Longford-Westmeath, Labour)
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Amendment No. 28 states:
In page 10, between lines 26 and 27, to insert the following:
"(2) Where a premium rate service provider contravenes subsection (1), the Commission shall establish a speedy mechanism to ensure redress for the consumer.".
This is also consumer-oriented to ensure the consumer has access to the most speedy resolution and adequate redress regarding any complaint. The amendment seeks to address the fact the Bill seems to be primarily focused on the courts, with no simple remedy for the consumer who has been charged inappropriately. The amendment proposes a mechanism other than the courts for redress - that may be a bigger problem and the courts might be the first port of call. We have advocated the use of the small claims court to resolve various other disputes. It can be hard to get access to the courts because of long waiting lists. It can be time consuming and costly. The thrust of the amendment is to try to facilitate that aspect.
Noel Coonan (Tipperary North, Fine Gael)
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I look forward to the Minister's response on these amendments. Young people often receive unsolicited premium rate text messages. They may occur on a regular basis without their consent because once they receive the message and accept it, other messages are likely to follow and they can build up a substantial bill without knowing it. Redress through courts is not easy and can be very expensive. The matter is of concern to me and my party.
Eamon Ryan (Dublin South, Green Party)
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I shall deal with the amendments in turn.
I cannot accept amendment No. 27. As I stated during the debate on Committee Stage, the purpose of section 11 is to prevent overcharging for premium rate services or for charging for services that were not requested or for services that were not supplied. A similar provision is made in the principal Act in respect of telecommunications services. The issues mentioned in the proposed amendment are matters that are more appropriately addressed in the terms and conditions of a licence rather than in primary legislation. Where a service provider breaches any of these conditions, the provisions under sections 7 and 8 will apply.
I also cannot accept amendment No. 28. As I stated on Committee Stage, there is an existing mechanism under section 44 of the principal Act that enables a more speedy redress for the consumer. That section provides that if a person, who is alleged to have committed an offence, remedies to the satisfaction of the commission within 21 days of being notified of the alleged offence the matter giving rise to the offence and pays to the commission €1,500, the person will not be prosecuted for the offence. This mechanism applies to all summary offences under the principal Act and will also apply to this Bill when enacted.
I also cannot accept amendment No. 29. As I started on Committee Stage, the maximum financial penalty that can be imposed by the District Court is €5,000. Regarding reimbursement, I amended the Bill on Committee Stage to provide that where a service provider is convicted summarily of an offence under this section, the court may on application to it by the commission order that any charge wrongly imposed on the end user be repaid by the service provider concerned. That gives real power for the commission via the court procedure to ensure that refunds are paid.
While I cannot accept any of the three amendments, the provisions of the Bill allow us to deliver the remedies the Members seek.
Willie Penrose (Longford-Westmeath, Labour)
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In the light of the Minister's assurances that the thrust of what is incorporated into the amendments have been dealt with by Committee Stage amendments, I shall withdraw the amendment.
Noel Coonan (Tipperary North, Fine Gael)
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I also accept the Minister's assurances. I have no reason to doubt what he says to us. I hope what he has said will protect people about whom we are concerned.
Jan O'Sullivan (Limerick East, Labour)
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Amendments Nos. 30 to 33, inclusive, are related and may be discussed together by agreement.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 30:
In page 11, lines 36 to 38, to delete all words from and including "such" in line 36 down to and including "relevant" in line 38 and substitute the following:
"premium rate service providers, other interested persons and, as it considers relevant, other regulatory bodies in the State".
On Committee Stage, Deputy Coveney proposed an amendment to section 13(2) to provide that, in addition to premium rate service providers, "members of the public or user representatives" should be also allowed to make representations to ComReg on a published draft code of practice. Following further consideration of the matter, I am happy to provide for such wider consultation by amending section 13(2) to include consultation with other interested persons and other regulatory bodies in the State. The term "interested persons" will encompass members of the public and user representatives. For consistency, I am also introducing amendments Nos. 30 and 33 to sections 13(1) and 13(3) to allow such wider consultation at all stages of the preparation and publication of a code of practice, including where the commission amends or revokes a code of practice.
I cannot accept amendment No 32. However, following further consideration of the points made by Deputy Coveney on Committee Stage, amendments Nos. 30, 31 and 33 have been introduced to allow consultation. In other words, amendments Nos. 30, 31 and 33 implement the intent of what Deputy Coveney was seeking.
Noel Coonan (Tipperary North, Fine Gael)
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I am not sure whether it was the trip to Copenhagen to discuss climate change that has confused the Minister. We accept his commitments. It is important that the user is protected. The Bill provides for serious penalties including that they be banned or prohibited from reapplying for a licence. The most important thing is that the person be repaid in full. In light of the Minister's comments I shall not be moving amendment No. 32.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 31:
In page 12, line 5, after "providers" to insert the following:
", other interested persons and, as it considers relevant, other regulatory bodies in the State".
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 33:
In page 12, lines 24 to 26, to delete all words from and including "such" in line 24 down to and including "relevant" in line 26 and substitute the following:
"premium rate service providers, other interested persons and, as it considers relevant, other regulatory bodies in the State".
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 34:
In page 14, line 18, to delete "regulatory" and substitute "regulating".
This amendment has been proposed by the Parliamentary Counsel to amend a drafting error in the text of the Bill as published.
Jan O'Sullivan (Limerick East, Labour)
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Amendment No. 35 was discussed with amendment No. 1. Recommittal is necessary in respect of this amendment as it relates to the instruction to commit a motion.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 35:
In page 14, line 34, to delete "Act" and substitute "Part".
Noel Coonan (Tipperary North, Fine Gael)
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I move amendment No. 36:
In page 15, to delete lines 33 to 38.
Eamon Ryan (Dublin South, Green Party)
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I do not propose to accept the amendment. This is a standard provision in legislation where staff transfer from one body to another. It provides that the transferred staff will have the same terms and conditions that they currently have as required under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. I understand the intent of the Deputy's amendment. As we amalgamate agencies we will need to ensure we get real efficiencies and changes to work practices so that we benefit from such amalgamation of agencies. However, in this instance given the number of staff and the increased demands on ComReg it is appropriate for us to allow for the transfer in the way provided for.
Noel Coonan (Tipperary North, Fine Gael)
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The Minister spoke about efficiencies and we have clearly pointed out how they can be achieved. I am disappointed he cannot accept the amendment. However, I will not press it.
Jan O'Sullivan (Limerick East, Labour)
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Amendment No. 37 was discussed with amendment No. 1.
Bill recommitted in respect of amendment No. 37.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 37:
In page 15, between lines 42 and 43, to insert the following:
"18.—The Telecommunications (Premium Rate Telephone Services) Scheme 1995 (S.I. No. 194 of 1995) is revoked.".
Jan O'Sullivan (Limerick East, Labour)
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Amendments Nos. 38 and 39 are logical alternatives to one another. If amendment No. 38 is agreed to amendment No. 39 cannot be moved. Amendment No. 38 was discussed with amendment No. 1. Recommittal is necessary in respect of this amendment because it relates to the instruction to committee motion.
Bill recommitted in respect of amendments Nos. 38 and 39.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 38:
In page 15, between lines 42 and 43, to insert the following:
'roadworks' means the opening of a public road or any act or work that requires or causes the closing of a public road or part of a public road, including the opening or closing of a public road or part of a public road for the purposes of opening ducts, for the purpose of the establishment, extension, replacement, repair, removal or maintenance of works on electronic communications infrastructure.".
(4) Subject to regulations made in respect of emergency roadworks under section 56(2), a consent shall be deemed to be granted where the proposed roadworks are emergency roadworks, subject to any conditions the authority concerned may decide while the emergency roadworks are in progress or completed. The network operator shall inform the authority concerned as soon as is practicable in advance of the commencement of those roadworks.
(a) provide that network operators meet any losses, liabilities and costs suffered or incurred by the authority, under contractual arrangements with a third party, where such losses, liabilities and costs arise as a result of any act undertaken by the network operator, under section 53(3) or (4), in relation to electronic communications infrastructure,
(b) where ducts on national roads are provided and made available by an authority to a network operator, provide that the authority shall not be liable to that network operator for any loss or damage howsoever caused to the electronic communications infrastructure in those ducts, which is the property of the network operator except for such loss or damage caused by the wilful act or gross negligence of the authority or its agents acting on its behalf, and
(c) provide that the authority may have representatives present at work sites for the purpose of determining compliance with any conditions imposed in connection with any act undertaken by the network operator, under a consent issued under section 53(3) or (4), in relation to electronic communications infrastructure.
(8) The NRA, in the case of a national road, following consultation, not exceeding 21 days, with a road authority in whose functional area the national road exists, or a road authority, in the case of regional and local roads in its functional area, may, subject to any regulations under section 56(2), impose charges on network operators—
(9) The NRA, may in the case of national roads, make a scheme which will allow for the NRA to impose charges for the use of ducts on national roads, which are provided and made available by an authority to a network operator, subject to the approval of the Minister for Transport following consultation with the Minister and the Minister for Finance.
(c) to withdraw a consent granted by it, the authority shall notify the network operator concerned in writing of the proposal and shall include in the notification a statement of the reasons for the proposal and of the right of the network operator to make representations to the authority under subsection (16).
(iii) to withdraw its consent, the authority shall, not more than 21 days after the expiration of the period specified in subsection (16), notify the network operator in writing of its decision and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision under subsection (18).
55.—(1) Notwithstanding section 254(4) of the Act of 2000 and subject to this section, where an authority undertakes work for the purposes of improving a public road, it shall pay to a network operator all reasonable costs incurred by the operator in the relocation (except in relation to the relocation of ducts as referred to in subsection (2)) of its electronic communications infrastructure and any associated physical infrastructure necessitated by and directly attributable to that work.
(3) Where a network operator makes an application for consent under section 53(3), the NRA shall, where it proposes to grant consent to the network operator in respect of the application, inform the network operator of the responsibility imposed on the network operator for relocation costs incurred by the network operator referred to in subsection (2)(b).
(4) Where electronic communications infrastructure and any associated physical infrastructure is replaced or improved by a network operator in the course of relocation due to road improvement, the authority concerned shall pay only the costs directly attributable to work done to electronic communications infrastructure and any associated physical infrastructure as a result of roadworks which would have been incurred if the electronic communications infrastructure and any associated physical infrastructure existing immediately before the road improvement had been relocated.
(6) Where an authority, on an application to it by a network operator to carry out roadworks over, along, on (under section 254 of the Act of 2000) or under (under section 53) a public road, gives the operator notice that the road is due to be improved by the authority within the period of 2 years of the date from which the operator intends to carry out the works, the authority shall not be responsible for the cost of relocating electronic communications infrastructure or anything connected with the works where the road improvement proceeds within that period.
(7) Where a dispute or difference arises between a network operator and an authority in respect of the cost of the relocation of electronic communications infrastructure, the dispute or difference shall be determined by agreed conciliation procedures between both parties or, in default of such agreement, by arbitration under the Arbitration Acts 1954 to 1998.
56.—(1) The Minister may, with the consent of the Minister for Transport, for the purposes of section 54(2) and 55, make regulations to establish the basis for the calculation by a network operator of costs reasonably attributable to costs incurred by the network operator as a result of roadworks, and to establish an objective measure of works to be deemed to be improvements to electronic communications infrastructure for the purposes of this Part.
"(e) by sending it by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the person carries on business or, if an address for the service of a notification has been furnished by the person, that address, but only if—
We do not need to go through all the arguments raised on Committee Stage but it is important to increase our provision of broadband to provide ducting in State assets where available and this amendment will significantly improve our ability to do that. I hope it can be agreed and put into action to provide fibre optic ducting across the country.
Jan O'Sullivan (Limerick East, Labour)
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Acceptance of amendment No. 40 involves the deletion of section 19 of the Bill. The amendment was recommitted with amendment No. 1 and for the same reason recommittal is necessary in respect of this amendment as it relates to the instruction to committee motion. It has already been discussed with amendment No. 1.
Bill recommitted in respect of amendment No. 40.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 40:
In page 16, to delete lines 35 and 36.
Jan O'Sullivan (Limerick East, Labour)
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Acceptance of amendment No. 41 involves the deletion of section 20 of the Bill. It was recommitted with amendment No. 1 and for the same reason recommittal is necessary in respect of this amendment as it relates to the instruction to committee motion. It has already been discussed with amendment No. 1.
Bill recommitted in respect of amendment No. 41.
Eamon Ryan (Dublin South, Green Party)
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I move amendment No. 41:
In page 16, to delete lines 37 to 41.
This is a technical amendment.
Eamon Ryan (Dublin South, Green Party)
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I thank my officials for their work on this Bill. It has been complex on the fibre optic ducting side and crucially in dealing with how to regulate premium rate services. I am pleased that we have been able to pass legislation that will have a real effect and do the job we are supposed to do, protecting the public. We have all received submissions from people, often young people, who have been subjected to scams by tapping into a ringtone or some other premium rate service without understanding that extortionate charges would be applied. Our ability to protect consumers from that sort of illegal behaviour is important. It encourages confidence in the State in commercial transactions and the rule of law.
This Bill allows us to protect consumers from such scams through legislation. It enables them to get refunds when they have been unduly charged, and enables us to stop companies engaging in such practices. It is important legislation. It continues the good work done by Regtel but gives it a real legal effect as it moves under the remit of ComReg.
I thank the Deputies opposite for assisting in the development of the Bill. They tabled several progressive amendments which improve it. I look forward to seeing action on the basis of these legislative changes from ComReg and across the country.
Noel Coonan (Tipperary North, Fine Gael)
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I thank the Minister and his officials for their co-operation with the Bill. He might not have done everything we wanted him to do but he met us part of the way. I agree with the Minister's comments but another group who should benefit from this Bill are older people who did not grow up in a technological era and have suffered from premium costs because they responded to messages and received ongoing unsolicited messages which cost a lot of money. Compensation claims also cost a great deal.
I welcome the Minister back from Copenhagen and wish him, the officials and the Acting Chairman a happy Christmas.
Willie Penrose (Longford-Westmeath, Labour)
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I thank the Minister for bringing forward an important Bill because consumer protection must ensure that people get the best service and do not have to accept or pay for services they did not seek in the first place. That is a very important point.
Deputy McManus had been strongly advocating amendments to ensure that refunds would be made. The absence of such a provision was a weakness on the early Stages of the Bill. Deputy McManus has championed that across the political and public arenas.
This is an important Bill. I had very little input into it but our spokesperson on telecommunications did. I hope the Minister will keep an eye on this matter because if new defects come to light it is important that somebody is ready and able to take up the baton to accept that there are inadequacies and be able to deal with them. While ComReg will issue reports and so on I hope that if some irregularity appears at the end of an annual report steps will be taken to remedy that, promote consumer interests and put consumer protection at the top of the agenda.
Jan O'Sullivan (Limerick East, Labour)
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A message shall be sent to the Seanad acquainting it accordingly.