Wednesday, 3 March 2010
Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Bill 2009: From the Seanad
Seanad amendments Nos. 1 to 3, inclusive, are related and will be discussed together.
Seanad amendment No. 1:
Section 2: In page 3, lines 27 and 28, to delete section 2 and substitute the following new section:
2.—In this Act—
"Commission" means Commission for Communications Regulation;
"Principal Act" means Communications Regulation Act 2002.".
Seanad amendments Nos. 1 to 3, inclusive, are technical amendments proposed by the Parliamentary Counsel consequential to the splitting of the Bill into three parts on Report Stage in the Dáil.
Amendments Nos. 1 and 2 delete the definition of "commission" from section 3 in Part 2 and insert it in section 2 of Part 1. As the term "commission" occurs in both Parts 1 and 2, its inclusion in section 2 of Part 1 is correct, as the section applies to the whole Bill.
Seanad amendment No. 3 deletes section 4(2), which refers to section 22. Section 4 provides for an appointed day for the coming into effect of Part 2, which deals with the regulation of premium rate services. This is necessary to give ComReg time to put in place the necessary licensing regulations and a code of practice as part of assuming the function of regulating the sector. Section 22 is now in Part 3, which will come into effect on the signing of the Bill into law.
I wish to raise a question which relates to the legislation. I do not intend to cause any difficulties because these are largely technical amendments but I thought they would cover a specific issue. A press statement from the Minister concerned an issue raised by the Labour Party during the earlier debate in the Dáil and indicated it was being addressed. I want to be clear on where exactly in the Bill it is being addressed.
The Minister's press release states:
Under the new law, TV3 for Play TV and RTÉ for competitions such as on the "Late Late Show" will come under the regulatory regime of ComReg. They will be obliged to have a licence to operate and must abide by the conditions of that licence. Failure to comply will result in possible suspension or revocation of the licence and broadcasters can be fined up to €250,000.
As I understand it, those operating without a licence can be fined up to €250,000 but failure to comply with the conditions of a licence does not have this penalty attached. On an earlier Stage, Deputy Penrose proposed an amendment which suggested this kind of penalty for the offence of providing an unlicensed service. There would also be an offence for breaching the terms of a licence. It was described as a carte blanche.
At the time the Minister stated:
I accepted a number of amendments but this is one 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.
My legal advice is that there is a problem in this. The legal advice is quite strong and indicates that the statement made by the Minister by way of a press release is untruthful and grossly misleading. I do not know if that is the case but it is certainly a very serious matter.
It seems that the press release is very specific in stating that the Minister has presented this Bill and there are new provisions in it. There is nothing wrong with that. The Minister is indicating in the press release that the premium rate service providers will be obliged to have a licence to operate and must abide by the conditions of that licence, with a failure to comply resulting in possible suspension or revocation of the licence. He also indicates broadcasters can be fined up to €250,000.
I do not see provision in the Bill where a broadcaster who breaks the conditions of licence could be fined €250,000, although the Minister has indicated this. I do not want to challenge the Minister but I cannot see it. I am looking for information on what was put into a press statement on this legislation. Where is the provision as the Labour Party thought it should be included and put forward an amendment to that effect which was rejected because the Minister did not think it appropriate? The press release makes it very clear that a breach in the conditions of a licence would leave a company open to being fined €250,000.
The press release is from 27 January 2010 and perhaps the Minister will clarify the issue.
I would be pleased to do so. The fine of €250,000 applies for somebody providing a service without a licence. Where someone is in possession of a licence but in breach of conditions, we are giving the power to revoke the licence. If somebody was to continue in operation in those circumstances, the €250,000 fine would apply. The immediate effect is revocation, which does not have the fine attached, but this comes into play if somebody continued a service without a licence.
With all due respect, that is not what the press release stated. It did not indicate that if a person continues after losing a licence he or she thereby runs the risk of the fine. That is a couple of stages down the road. It states that "failure to comply will result in possible suspension or revocation of the licence and broadcasters can be fined up to €250,000." Anybody reading that would think that unless the conditions are complied with, there is the possibility of a fine.
Play TV is operating at the moment and I hope TV3 sorts this out by simply ending the contract it has with Play TV. I urge it to do so as this legislation does not seem to tackle the scam being perpetrated by Play TV on a particular station on television. It is up to TV3 to sort it out and I hope it does so.
I am concerned by the statement made by a Minister - which may have been inadvertent - and my legal advice called it dishonest. The Minister might retract the press release and say that at the very least it was ambiguous. To any person reading the statement, it was grossly misleading. We pursued the matter in the House and tried to convince the Minister about it. We now see a subsequent press release claiming that what was not the case is now the case. If people read that, they would read that failure to comply will result in possible suspension or revocation, and that broadcasters can be fined up to €250,000.
Accusations are being made that people are dishonest, are hypocrites, and are this, that and the other. The Deputy is entitled to throw out such accusations, but I am confident that the intention here is in the public interest. The Bill provides powers that will allow for fines if somebody operates without a licence. That is what I want to put into law as quickly as possible.
The Minister stated the following:
Under the new law, TV3 for "Play TV" and RTE for competitions such as the "Late Late Show" will come under the regulatory regime of ComReg. They will be obliged to have a licence to operate and must abide by the conditions of that licence. Failure to comply will result in possible suspension or revocation of the licence and broadcasters can be fined up to €250,000.
The legal advice is that the underlined words clearly state that failure to comply with conditions of a licence will result in a fine of up to €250,000. This is totally false. The Bill provides a fine of that amount only for operating without a licence, under section 12(1).
I am glad the Deputy read this out. The exact wording is "can lead to possible revocation or suspension of a licence and then a fine for operating in that purpose". The sentences follow an order that makes sense.
Can the Minister explain amendment No.3? I think he is deleting a section which had previously made an exception for section 22, which deals with emergency measures. I would like to hear the rationale for that deletion.
Amendment No.3 deletes section 4(2), which refers to section 22. Section 4 provides for an appointed day for the coming into effect of Part 2 of the Bill, which deals with the regulation of premium rate services. This will give ComReg time to put in place the necessary licensing regulations and codes of practice prior to assuming the function of regulating the sector. Section 22 is now in Part 3 of the Bill and that part will come into effect when the Bill is signed into law.
As I understand, it is purely an ordering of the Bill as we have to split it into three parts. The amendment transfers the import of that section to make it coherent with the overall division within the Bill.
Seanad amendments Nos. 4, 5, and 7 to 10, inclusive, are related and may be discussed together by agreement.
Seanad amendment No.4:
Section 6: In page 7, subsection (2)(d)(i), lines 9 and 10, to delete "the services are" and
substitute "each service is".
Amendments Nos. 4, 5, and 7 to 10, inclusive, are minor drafting amendments agreed with the Parliamentary Counsel. They provide consistency in the wording of section 6(2) and section 15(2) of the Bill.
Amendment No. 6 has again been agreed with the Parliamentary Counsel. The intention of this provision is that if one or more services provided under licence is causing harm to consumers, or may cause harm to potential consumers, then the licence covering all the services under that licence may be suspended pending an investigation by ComReg. The amendment clarifies that intention.
Seanad amendments Nos. 11 to 13, inclusive, are related and may be discussed together by agreement.
Seanad amendment No.11:
Section 21: In page 20, lines 39 to 41, to delete all words from and including "NRA" in line 39 down to and including "operator," in line 41 and substitute the following:
"NRA to impose charges for the use of ducts, which are provided and made available on those roads by an authority to a network operator,".
These are minor drafting amendments agreed with the Parliamentary Counsel. Amendments Nos. 11 and 13 provide better clarity of meaning of the text. The purpose of amendment No.12 is to include within the provision all consents that can be granted under section 53. This includes consents under section 53(3), which pertain to consents to carry out underground electronic communications infrastructure, and consents under section 53(4), which pertain to consents that allow for emergency road works.
Is amendment No.11 simply about improving the wording? It acknowledges that the NRA, through the local authority, provides a duct to a telecommunications company and charges for that. There is no effective change, but is purely a language issue to recognise the three different bodies involved. The local authority was not as explicitly mentioned in the previous version.
That is a fair summary. It is a syntax issue, rather than a change in the meaning or purpose of the Bill. It is about ordering the language in a better fashion.
I would like to commend my officials for the work they have done. We are a small Department with a large amount of legislation to deal with at the moment. We are getting through very important work in difficult times, including the provision of ducting and protecting the people from the sort of programming that Deputy McManus rightly slights.
They are also protecting their Minister, which is a very important part of the work of any civil servant. I would like to thank them for their work on this and on other Bills, which they carry out to the highest standard. I also thank the Deputies opposite for their assistance with this Bill.
I wish the Minister well on this. The origins of the Bill came with an attempt to move from RegTel. It has been a long journey and it has gone into ducts and all kinds of unexpected places. The Bill changed title three times along the way, so it has been a curious journey, but for that reason it has been more demanding on the civil servants, and their work is appreciated.
Although I still harbour some concerns, I have no doubt that greater safeguards for the public good will be put in place and that national broadcasters will not carry services such as Play TV, which is essentially a scam and which takes advantage of people. There has been a great deal of publicity in respect of the latter as a result of comments made by the Minister and Deputy Coveney. This, more than anything, illustrated the kind of rip off that can occur when the proper oversight and scrutiny are not in place. I welcome the Bill.
I am glad the Bill has been passed. We took some liberties in respect of it that are not part of common practice in the House. Halfway through the process, we added an entirely new section which has nothing to do with premium rate services. That section is designed to facilitate the State in opening up ducting that is already in place in various areas in order to allow public and private companies to lay broadband fibre. That is an important development and we were probably right in facilitating it in this Bill because legislation which would be suitable for this purpose is not forthcoming at present. Opposition parties, even though they pointed out the unusual nature of the process, assisted in facilitating this development.
I encourage the Minister and his Department to go a little further in respect of broadband and ducting. Now that we have done what we should be doing with State-owned ducting infrastructure, we should consider, by means of regulation, opening privately-owned infrastructure up to fibre to be provided from the marketplace. In addition, the promised one-stop-shop - which has been on the agenda for some time- should be put in place.
I thank the Minister's officials for the briefings they provided. Whenever Members have sought advice from them, it was given.
Seanad amendments reported.