Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

The Communications Regulation and Digital Hub Development Agency (Amendment) Bill 2022 is ambitious and broad-ranging legislation that will make a number of key changes to a range of areas, including the regulation of electronic communications, protection of electronic communications consumers, security of communications networks and changes to postal services and to the Digital Hub Development Agency. The first and primary purpose of the Bill is to update the regulatory framework for communications in the State. This is achieved in two ways, which I will address separately. The first is the provision of a new and enhanced enforcement regime for the Commission for Communications Regulation, ComReg. The second is ensuring the transposition of the European Electronic Communications Code.

In respect of the update to ComReg's enforcement powers, this Bill represents the biggest update to the regulation of the electronic communications sector since ComReg's establishment in 2002. It will provide the commission with the tools it needs to regulate the sector effectively and will bring its powers further in line with comparable regulators in the State and in Europe. ComReg will be empowered to find non-compliance, impose sanctions up to €5 million or 10% of annual turnover, require operators to pay refunds and compensation, and withdraw authorisation and rights of use for spectrum and numbering resources. These penalties will ensure the sanctions available to ComReg are effective, proportionate and dissuasive in a sector of the scale of electronic communications, which is worth approximately €3.5 billion every year to the Irish economy.

A range of new settlement options will be available, including a new section 62 resolution agreement, the acceptance of binding commitments and the entering into of a settlement agreement. A new urgent interim measure procedure will also be provided to ensure tools are available in advance of the conclusion of any adjudication to address instances of non-compliance that risk public safety, public security and public health or may lead to the creation of serious economic or operational problems for other providers or users.

In order to ensure this new regime complies with the Irish constitutional requirements in light of the Supreme Court judgment in the Zalewski case, comprehensive procedural safeguards have been included in the Bill that are similar to those provided in the Competition (Amendment) Act 2022. The safeguards were developed in close co-operation with the Office of the Attorney General. Adjudications of suspected breaches will be carried out by adjudicators, who may be internal ComReg staff or external experts nominated by ComReg and appointed by the Minister.These adjudicators will be independent in the performance of their functions, and I will publish regulations to give further effect to this requirement in the coming months.

Decisions of the adjudicators will also be subject to confirmation by the High Court and subject to appeals to that same body. The Bill also provides for the carrying out of oral hearings, rules for the admission of evidence and the taking of oaths and affirmations. In respect of the transposition of the European Electronic Communications Code, EECC, the directive consolidates and updates the previous regulatory framework for electronic communications in Europe, and it makes it fit for purpose in the digital age. The majority of that directive will be transposed through the European Electronic Communications Code Regulations 2022. These were signed on 6 September and they will be commenced concurrently with this Bill. The enforcement of those regulations and the designation of ComReg as the competent authority for this enforcement will be provided by this Bill. The security and the small number of consumer provisions of that directive will also be transposed by the Bill and I will address them shortly.

It is not possible to discuss all of the code regulations, but I want to highlight one particular aspect of them, namely, the introduction of a universal service obligation for broadband. This is an instrument that could be used in the future to ensure that gigabit broadband services continue to be deployed by commercial operators, and that small numbers of premises are not left behind within these commercial areas. The expectation is, however, that as commercial operators upgrade their existing infrastructure or build new gigabit broadband infrastructure, they will design their deployments to avoid leaving small pockets of households and businesses stranded where end users cannot connect to that network. Any future universal service obligation will not seek to compensate inefficient network designs that may be driven by a narrow short-term commercial focus to the detriment of end users in that area, potentially creating a future digital divide.

All the obligations created by the regulations will be civilly enforceable under this new civil enforcement regime. Particular obligations will also be subject to criminal enforcement, with a further select few subject to a maximum criminal penalty of €10 million if prosecuted on indictment. The Bill specifically provides for this higher level of maximum criminal penalty for these particular offences.

Ireland is currently subject to infringement proceedings for failing to meet its obligation to transpose the EECC by the deadline of 21 December 2020. The Commission initiated proceedings in the European Court of Justice against Ireland in respect of this infringement in July 2022. A hearing date is expected to be set down by the court in the coming months. These infringement proceedings have the potential to lead to extensive fines being imposed on Ireland. The only way to mitigate against the imposition of these potentially substantial fines is through the speedy transposition of the EECC, which this Bill will ensure.

The Bill will also update the Communications Regulation Act 2002 to align that Act with the EECC and to make necessary amendments to ComReg's current functions and powers to improve its functionality and to complement the new proposed enforcement regime. These changes will improve the overall coherence of the regulatory regime. These amendments will include, among others, a broadened information-gathering power, ability to reuse gathered information, ability to better assist with policymaking, and improvements to the notification, privilege and overcharging provisions.

The Bill will provide consumers with a suite of new protections when they are interacting with this sector. These provisions have been drafted in close consultation with ComReg, and they address the number of consumer service complaints that have arisen in recent years. The Bill will provide for an enhanced alternative dispute resolution process for consumers managed by ComReg, which retains the requirement for operators to have a code of practice for complaint handling. ComReg will be empowered to require operators to publish information on the quality of service they provide to their customers and to publish a customer charter. The customer charter will clearly set out the standards that consumers can expect their services to provide. If the service provided to customers is not adequate, ComReg will be permitted to set minimum quality of service standards that operators must guarantee to their consumers in a range of areas, including in respect of call-answering times, notification of outages, time taken to review billing queries and time taken for initial connection to the network. Failure to comply with these standards will constitute a breach for the purposes of the Bill and will also be capable of giving rise to the payment of compensation to a consumer pursuant to the new end user compensation regime also to be established by the Bill.

The Bill will also play a key role in contributing to the security of our electronic communications networks. While Ireland's networks have proven very resilient, electronic communications networks are an attractive target to malicious threat actors. They can disrupt our networks as well as steal sensitive data. We have seen the devastation that can be caused when those who wish to do us harm attack critical infrastructure when criminals attacked our health service in 2021. Disruption to our electronic communications infrastructure could be equally damaging, with the potential to have cascading effects through the rest of critical infrastructure, making the protection of these networks of paramount importance to the Government. Under the Bill, our next generation networks will be built upon a solid foundation that is resilient to future threats by ensuring operators manage the risks posed to their networks and services, as well as to report significant security incidents.

There have been three important additions to the Bill since it was published and introduced to the Dáil. These are a new Part that provides tools to address the issue of high-risk vendors, amendments to the Digital Hub Development Agency Act 2003 and amendments to the Postal and Telecommunications Act 1983 to provide additional funding to the post office network. Consideration is being given to amending the terminology utilised in the sections relating to high-risk vendors. I am looking forward to hearing the Senators comments on the Bill. I think my time is up.