Communications Regulation (Amendment) Bill 2007 [Seanad]: Report Stage (Resumed) and Final Stage.

Debate resumed on amendment No. 9:
In page 10, between lines 22 and 23, to insert the following:
"(d) by inserting the following after subsection (1)(e):
"(f) to invigilate the volumes and revenues of international and national mobile telecom services including all termination rates,”;”.
(Deputy Broughan).

These are amendments of the Communications Regulation Act 2002. Amendment No. 12 provides for a universal service obligation for all broadband undertakings. When will the Minister make the famous announcement, which the communication industry tells us is imminent, of a tendering process whereby the country will be broadband enabled? It was disappointing that we did not hear this during the speech on Saturday night, although I did not hear the entire speech.

Amendment No. 13 provides for another function for ComReg, to ensure that the national broadband network is fully accessible to third party operators. One of the common themes in the communications portfolio of the past four years has been the failure to unbundle the networks and the local loop. We discussed the transmission network today in respect of electricity. The Minister put forward the case that the national electricity network should be preserved as a neutrally run network with full accessibility for all operators. This did not happen with the privatisation of the Eircom network. Many of our citizens have great respect for the ESB as a great national enterprise and one of the companies, along with RTE, that created public service industry in Ireland. This Government will not be trusted with handling the electricity network given the colossal failure of the communication networks. This amendment would ensure the broadband network is accessible to third party operators.

Amendment No. 14 is related to a later amendment tabled by Deputy Durkan. Each amendment is a matter about which we have had up to 12 questions over the past years. The amendment amends the principal Act to ensure that the national communications network is maintained to the highest current technical standards in every sector of the network. I recently received a petition from residents of Kilmoganny in the heart of the Leas-Cheann Comhairle's constituency. The constituents were devastated by the failure of the old incumbent telecoms company, Eircom, to provide an updated broadband service. I passed the correspondence on to the Minister.

It is shameful.

This constituency is at the forefront of national endeavour and not just in hurling. The area is bereft of broadband. The usual excuse is that the lines are deficient because we paired lines to cope with the number of houses in the 70s and 80s on a particular line. Why are failure levels on our network as high as 25% when the rate in Northern Ireland is 1%, according to the last ComReg survey? ComReg and Eircom sometimes deny that failure rates are so high. The network should be maintained to the highest standard.

As the incumbent transmission network operator, Eircom refers to launching next generation networks. There is a fear among telecoms companies that such next generation networks could be used as a cover to bypass unbundling the local loop. Even where the local loop is unbundled a roadblock will still result. An amendment along these lines should be considered. It is a national communications network and should be maintained to the highest standard.

Amendment No. 16 provides another function for ComReg to intervene directly on behalf of end users where service contracts or the universal service obligation have been broken and to ensure compliance by undertakings with the terms of those contracts. I am not sure which of these two Bills the Minister was present for because we debated them so quickly. He was out of the country for the Broadcasting (Amendment) Bill. I referred earlier to the collapse of Smart Telecom. We have also received complaints about NTL and the changes made to payment methods. Complaints have also been made against a host of other operators. "Liveline" dedicated a show to the difficulty for consumers in ensuring compliance with contracts. This amendment is similar to amendment No. 10 in requiring ComReg to undertake a direct role in ensuring compliance. The Minister may suggest that ComReg will be doing so in respect of the rest of the Bill by seeking information, calling in companies and pursuing court actions. This role should be listed among ComReg's functions.

Amendment No. 16 arose from complaints made by Deputy Stagg in respect of provision of a landline service in new estates in Kildare North. People had to wait more than nine months to have a landline connected. This is unacceptable. The last quarterly ComReg survey stated that 99% of cases were dealt with in less than 115 working days. The previous report estimated that it took 171 working days, the best part of a year. Under the terms of this amendment it shall be a function of the commission to ensure that any telecommunications service provider whose business includes the provision of landline telephone service shall provide such a service within three months of the receipt by that provider of a customer order.

People had to wait for a year in the 1970s to receive a landline. My predecessor in the Dublin North-East constituency was Minister for Posts and Telegraphs in the 1970s and invested in the communications network. Under the current Minister's regime estates in Kildare North must wait longer than people did in the 1970s. That is an indictment of the outgoing Administration.

I refer to the community of the Black Valley in Kerry who appeared before the Joint Committee on Communications, Marine and Natural Resources. Deputies also visited the area. A group of citizens in a particular geographical area did not receive a basic service from the incumbent operator. Through the period the Minister has been in office the Black Valley issue has not been resolved, despite his discussions with Deputy O'Donoghue, one of the local representatives. My party colleague, Deputy Moynihan-Cronin, has been very vocal on the matter. Unfortunately, this matter will have to be resolved under the next Government.

Amendment No. 16 seeks that providers of landlines — perhaps it will become a broadband service now — should ensure the service is provided within three months of receipt of a customer order. This is crucial in particular for new communities such as those in north Kildare and other expanding areas in the Leinster and Munster regions, for example, and is something the Minister should adhere to. This is a collection of what I believe would be good functions for ComReg. Perhaps the Minister will not accept any of the amendments. In the event, perhaps they will be the core of a better communications Bill in the next four or five years.

I reiterate my support for this series of amendments on the basis that they provide for improvements in delivery of service, reliability and advancing the infrastructure of telecommunications for the future in keeping with the demands of the population. On amendment No. 10, the withdrawal of communications services is something we have experienced over the last 12 months or so. One of the provisions which should be specifically placed in the Bill is the obligation facing utilities involved in delivering a service to the public. It is not good enough to say that negotiations have broken down and as a result the consumer must await the outcome. The problem is that the consumer is not responsible, and it is not his or her fault. The consumer has to take whatever happens whether he or she likes it or not.

I know the Minister will say that within the Bill certain obligations are placed on service providers to ensure we do not have any replication of what happened as regards Smart Telecom, etc. That should be provided for specifically in the Bill, and this is the right type of legislation in which to do it. It would serve as a warning and we should not have to visit that particular area again.

Regarding amendment No. 11, I have tabled a couple of similar amendments on the same issue. We debated this at length on Committee Stage. We also debated it at Question Time over the last couple of years. The content of services provided by some of the modern telecommunications media is something that worries parents. I refer to pornography, Internet grooming and so on. Glibly, they are being told they have the control in their own hands. Unfortunately, it is not that simple. Parents do not necessarily have access to the means of preventing those who stalk through the Internet from making contact with their children.

The European Commission has already expressed concern about this issue. In supporting this amendment, I emphasise there are concerns among the general public and we need to be aware of that. When we put down questions, they are referred to the Department of Justice, Equality and Law Reform on the basis that this is a justice matter. It is too late when it becomes a justice matter and the damage has already been done. We have got to find a means to intervene through advanced technology to ensure that those with nefarious intent are not allowed to pursue, at their pleasure, youngsters through the Internet, the mobile telephone service, bullying or whatever. The time has come to deal with that.

I support Deputy Broughan's amendment No. 12 on universal service obligations. In general Deputy Broughan has covered the broadband network issue adequately. He has reiterated what we, and the Minister, have said many times in this House over the last couple of years. This is not a criticism of the Minister. However, it is a fact of life that we have seen Ireland sliding, as it were, while the rest of Europe and the world has advanced towards cutting edge telecommunications technology. This is simply because of old-fashioned ideas. The structure was not right, something was not moving fast enough, competition did not kick in, the regulator did not have the power, the type of direction that should have been given at the appropriate time was unavailable, etc. As a result, we can speak to the man in the moon, but there are still parts of this country where proper telecommunications cannot be installed. It is absolutely ridiculous. That is not a personal criticism, however, and the Minister should not take it as such, but it is a fact of life that whether we like it or not technology has advanced to an enormous extent, yet for some unknown reason we cannot adapt it to suit the situations that exist in Ireland. This applies not only to the Black Valley, but to other parts of the country such as the midlands and along western seaboard. It is time for somebody to intervene and tell all those involved that while they play their turf wars, others who are entitled to service have to do without. That is not the way it should be.

I want to mention amendment No. 14 which seeks to ensure that the national communications network "is maintained to highest technical current standards in every sector of the network". We have spoken about this so often, but sadly it is not so. Neither is it true that the degree of investment in infrastructure has been sufficient to meet today's needs, let alone the needs of the future. Technology has a very short lifespan. In order to stay with the pack, let alone ahead of it as we once were, we need to upgrade and plan all the time. That should be done every year. A financial report must be made available to inform the Minister that not only is the technology advancing but the investment and the infrastructure generally is being lifted to meet the requirements in an area of international competition. There is no reason a country such as ours, which is involved in the production of high technology, cannot compete with the best. Again, I am not blaming the Minister and I am sure that were he to revisit the scene he would look at matters differently.

We set about, with electronic voting, to become the most technologically advanced country in Europe. Of all the things to pick, that was the wrong one, because it meant interfering with our traditional version of democracy, which the people have lived with, loved and enjoyed, instead of putting the emphasis on the area which is required most, namely, investment in the actual infrastructure. This will entail a review of the structures and investment in those companies that are likely to provide the services in the future.

We shall come back to this issue again, although not perhaps in the lifetime of this Dáil. I hope we shall all be back to engage on these matters at a later stage. However, I would emphasise that this is an area that will justify a great deal of supervision from whoever is Minister, lest we replicate what has been experienced in the area of telecommunications.

Ultimately it does not seem to matter whether the consumer suffers, and that seems to be the modus operandi. The consumer, as the most important party of all, is the one whom these utilities exist to service. Profit for investment is fine and very desirable and can go hand in hand with meeting the requirements of the consumer. The consumer, however, is the most important party, even in this highly impersonal age.

On Committee Stage, we went into some detail on the provision of landline telephony. The Minister is aware that counties Meath and Kildare have seen major housing developments. Many people in these new estates cannot get access to broadband or telephone services, a situation that requires attention.

I support the amendments because they spring from a clear need that has emerged in the past few years. This is not an attack on the Minister or the Department but it is a matter we need to resolve.

I support these amendments which cover the concerns raised by many. If ComReg is not given the powers to tackle the problems outlined by Deputy Broughan, we will have to return with a new Bill and this process will have been wasted.

One Member referred to people bringing up their problems with telecommunications service providers on Joe Duffy's show. It is Joe Duffy who seems to have become the champion people are seeking. ComReg must become the champion of the consumer and have responsibility for the changes required.

As I have often said, it was a mistake to sell Eircom. The idea behind it was that it would improve competition but it did not help the consumer. What did the sale achieve? We are still paying the price for the Eircom sell-off with the unsatisfactory roll-out of broadband. A universal services obligation must be written into the Bill.

We have all experienced the difficulties with unwanted and unsolicited text messages, telephone calls and e-mails. Some Members referred to protecting vulnerable young people from these. Vulnerable adults must also be protected. For instance, a person receives a text message with football results and is forced to reply to it, for which he or she is charged both times. They have entered a cycle where they are charged very high rates. It is difficult to break out of such a cycle.

Every time one turns on the computer, one is bombarded with spam e-mails. I do not know how many times I have received an e-mail informing me I am a millionaire, having been the 999,999th person to log on. We may laugh at it but some people are conned by it. I do not know how many times I have received a message requesting me to lodge a sum into one bank account to receive a larger amount. It plays on people's greed and naivety.

Deputy Broughan's amendments will strengthen the Bill and provide the telecommunications champion people want. During the recent events involving Smart Telecom, a man whose son was dying of cancer and who needed to keep in contact with the hospital contacted me over the difficulties he was having just getting a telephone switched back on. The problem dealing with monolithic telephone companies is they give many excuses but no one seems to be able to make a decision.

It is a scandal that many new housing estates have no telephone or broadband services. It is not acceptable that people must wait nine months for a telephone line. Various excuses are made such as the lines have not yet been rolled out in the area or works on improving the service are ongoing. That is due to the sell-off of Eircom. E-mail, broadband and telephone lines are basic necessities if we want to encourage people to work from home and see new business develop. These amendments would strengthen the Bill.

The intention of amendment No. 9 is that the development of the mobile telephony sector should be monitored and provide a basis for intervention. The framework regulations, which transposed the framework directive in 2003, have already set out the procedures for the imposition of specific obligations in the electronic communications sector. All interventions must be evidence-based. The regulator has to complete an analysis of the relevant market, the results of which have to be notified to the European Commission along with the measures intended to be imposed to address any competition problems which have been identified.

ComReg already has the power to collect the information required for the conduct of such tasks. It also has the power to require the provision of information for reporting on general market developments. Subject to statutory requirements and confidentiality, it publishes a quarterly report on the communications market. Amendment No. 9 is, therefore, not necessary. I accept Deputy Broughan's intent in tabling this amendment. We had a number of discussions on this matter during the Smart Telecom crisis. This amendment would introduce an unnecessary rigidity into commercial negotiations and could end up being detrimental to an operator experiencing temporary financial difficulties with negative consequences for its customers. That is not the Deputy's intent. I appreciate the concerns he may have, which I share, to safeguard the protection of consumers. What happened in the case of Smart Telecom last year was unacceptable. Subsequent to that crisis, Deputy Broughan said I did not do anything about this matter but I did.

I said the Minister did not introduce emergency legislation. Where is that legislation?

I asked the ComReg commissioners to advise me on how that type of a situation could best be prevented. I said in the House at that time that if legislation was necessary, we would introduce it.

I read the Minister's press statements.

The commissioners examined the matter at my request and decided they could handle it without causing too much damage in the market by putting a protocol in place to help protect customers should a similar situation arise in the future. That protocol seeks to manage the risks associated with such a situation and to try to minimise disruption to customers. There was no statutory provision at that stage required for this protocol.

I listened carefully to what Deputy Broughan said on this matter and I discussed it again with my officials. To strengthen the protocol in place, I propose to request ComReg to make it a condition of an authorisation that all operators granting wholesale access to other operators to their networks or products would be obliged to give ten days notice to ComReg of an intention to withdraw such access or product. That would enable ComReg to engage with the operator concerned to try to minimise disruption to consumers. I am advised that no legislation is necessary to do that. ComReg has those powers and I intend to ask it to use them.

Regarding amendment No. 11, neither the Minister for Communications, Marine and Natural Resources nor the Communications Regulator, ComReg, has a role with regard to content. The regulation of premium rate services is the responsibility of Regtel, which is a self-regulatory industry body that authorises and supervises the content and promotion of premium rate telecom services.

What is at issue in recent coverage of premium rate telecom services is not primarily the product or the service on offer but rather the nature of the contract between the retailer, which in these cases is not a mobile phone operator, and an individual consumer. The second issue is the question of the sales practices involved. This is not an area of responsibility for the Department. It is an area of consumer protection within which Regtel operates. It falls under the remit of the Minister for Enterprise, Trade and Employment and the National Consumer Agency. Therefore, two bodies are responsible for this area.

Nobody is responsible for it. Is that not right? If two or more are responsible for something, nobody is responsible for it.

The Deputy is right. That is the reason I will not accept this amendment. There is no point in having three bodies responsible for this area. In addition to that, the Data Protection Commissioner also has some strong investigatory and prosecution powers with regard to unsolicited electronic communications for direct marketing purposes.

Amendment No. 11 is unnecessary. What it proposes is well catered for.

On amendment No. 12 on the universal services obligation in the electronic communications sector, this is provided for under the European Communities (Electronic Communications) (Universal Service and Users' Rights) Regulations which came into force in 2003. These regulations do not include broadband services as an obligation. The European Commission reviewed the scope of the universal service directive the year before last and concluded that broadband need not be required as an obligation under it. The Commission examined the technological market and social developments affecting consumers of e-communication services before concluding that broadband Internet services do not fulfil the criteria for inclusion in the scope of a universal service as the current level of take-up does not meet the criterion of use of the service by a majority of consumers.

Universal services in the communications area is a safety net for those whose financial resources or geographical location do not allow them to access the basic communication services that are already available to the great majority of citizens. Broadband does not yet have the ubiquity that would warrant a universal service obligation.

That is the reason it does not have that.

On amendment No. 13, I understood from what the Deputies said on this amendment that they were concerned about local loop unbundling.

This is already legally mandated. Responsibility for the promotion and regulation of local loop unbundling lies with ComReg under section 10(4) of the Communications Regulation Act 2002 and the transposed EU regulatory framework for electronic communications networks and services. Access to Eircom's or any other operator's network is governed by the directives that comprise the EU regulatory framework and in particular the access directive. ComReg can impose access obligations on an operator on foot of a finding of significant market power in an appropriately defined market and any such finding is subject to the approval by the European Commission. The Bill allows the Minister to make the breach of such obligations an indictable offence with proportionate penalties. On that basis, amendment No. 13 is not necessary.

Regarding amendment No. 14, the telecoms market is fully liberalised and regulated by ComReg whose objectives include the promotion of competition and the promotion of the interest of users. In an open market decisions on investment, the provision of telecommunications services and the development and roll-out of telecommunications technology are primarily a matter for the industry itself based on commercial considerations.

On amendment No. 15, section 10 of the principal Act, as amended, already enables ComReg to carry out investigations on its own initiative and as a result of a complaint made by an end user or an undertaking. However, the primary responsibility for a complaint resolution must be retained by the operator as it has the direct relationship with the consumer and every consumer is entitled to receive a minimum quality of service standard.

With regard to universal service obligations, ComReg will conduct a public consultation on the setting of appropriate performance targets for the delivery of the universal service during April of this year. Where there is a persistent failure to meet performance targets, the regulations already provide ComReg with a mechanism to take court action to secure compliance. What Deputy Broughan's proposes in this amendment is already covered in legislation.

Regarding amendment No. 16, it would therefore not be appropriate to impose such a mandatory requirement on all fixed line operators as suggested in this amendment. It particularly would not be right to do it in primary legislation. Eircom, however, as the designated universal service provider is obliged to satisfy any reasonable request for a land line and ComReg has set out the guidelines for the timescales in meeting the requests for connections.

I will deal with the other questions raised on the roll out of broadband. Apart from the work being done by the Department and the Government on the roll-out of the metropolitan area networks, the steering group was set up in my Department in association with ComReg at the end of last year and it is finalising a scheme to bring a broadband service to those parts of the country where the private sector is unable to justify the commercial provision of broadband connectivity. When fully rolled out, the national broadband scheme will ensure that all reasonable requests for broadband from households and businesses in rural areas can be met.

How much will the Minister spend on the scheme?

It will be a tendering process. It would not be advisable to come into the House and suggest we were willing to pay millions of euro to somebody to provide this service and provide them with a map showing the last 10% or 15% of the country which needs to be covered by broadband and invite offers. It would not be very smart to intimate the amount we would pay as it might be possible that somebody would be willing to provide it free of charge or for the commercial return they might receive.

The Deputy need not fret so much about the Taoiseach's speech last Saturday and worry about the fact that perhaps——

He was very specific last Saturday. Would that be Saturday night fever?

I want an orderly Report Stage. The Members will have an opportunity to contribute again.

The Minister for Social and Family Affairs, Deputy Brennan, has disappeared.

I would not want to regard this intervention as the Deputy's second contribution.

That would be like a red card before a red card was warranted.

Allow the Minister to continue and the Deputy will then have an opportunity.

I assure the Deputies opposite that the Taoiseach's speech, which was so well received by most of the public and which so upset the Opposition——

Not in my house.

——is only a small portion of the very considerable policy manifesto Fianna Fáil will be putting before the people in a few months. The Deputies should not be too upset at this stage. They will be very upset — they will probably have a nervous breakdown — by the time the election is called given that they are becoming so excited now.

I thank Deputy Broughan for his customary gracious manner in which he acknowledged the achievement of more than 500,000 broadband subscribers.

That was a great achievement in 2004.

The Deputy will be aware that there were 63,600 broadband subscribers in 2004 but there is now much more than 500,000. When the Deputy is still in opposition next December I will expect that figure to be approximately 700,000.

(Interruptions).

The Deputy is probably considerably younger than me but he is incorrect when he states that people are forced to wait longer for a telephone now than in the mid-1970s when his colleague was Minister for Posts and Telegraphs and there were waiting lists of up to five and seven years in my area——

The Cruiser is still going strong.

——when I was a young county councillor in the mid to late 1970s. I inform the Deputy of that fact because he is such a young fellow.

I tabled a question today but it was not dealt with. I was fascinated by a press statement from the Minister referring to a tsunami warning system. Will this system be in place by mid to late May? Many of us believe a tsunami is heading for this Government. The Taoiseach's speech was the early warning alarm that it is happening.

The Deputy is looking in the wrong direction for it.

I wish to make a final comment on the amendments. All sides of the House are browned off talking about roaming and about the need for a more competitive market. The information was not forthcoming from ComReg to the joint committee and neither did the Minister's Department have the information. There is a dearth of information.

I welcome the Minister's announcement about amendment No. 10 as it will bring the amendment into effect. The proposal for ten days notice of withdrawal is a step forward. It would be preferable if it were legislated for but I acknowledge the Minister has made a step forward and I hope the statutory instrument will be enacted speedily.

I acknowledge that Regtel is well intentioned but the issue of convergence is not dealt with in this Bill. All the experts who discussed the Broadcasting Bill with the committee referred to convergence which will allow users to view television stations and websites on their mobiles.

Amendment No. 12 is the most important of these amendments. The EU has noted that broadband in not ubiquitous but it cannot become so if a universal service obligation is not in place. The amendment dealing with service is important. I observed the Taoiseach speaking about the health services when I was doing the Johnny Giles commentary on the Order of Business for RTE with the political commentators. We commentated on the performance of Deputies Kenny and Rabbitte and the Taoiseach. I thought the Taoiseach was living on a different planet when he was speaking about health. Does the Minister not receive complaints about the service providers in telecommunications as Deputies Durkan and Crowe have observed? Drastic action is required.

Senior citizens living in my constituency complained that when one telephones a certain company, one is passed from Dublin to Belfast to Limerick to Cork and back to Dublin. A person is left in cyberspace, floating around the island.

The Deputy will have another opportunity to contribute as the proposer of the motion.

I will not return to it. The Minister is missing an opportunity for a more punchy response to demand. If a person signs a contract he or she should receive service and should not need to talk to six different people.

Deputy Durkan has two minutes.

I will try to make the most of them.

I recognise what the Minister has said about all the amendments. For some unknown reason we seem to be burdened with a vast amount of legislation, regulations, statutory instruments and protections of all descriptions which are deemed to serve the needs of the consumer, but they have not done so. This is the kernel of the problem. The legislation and regulation exist but they do not suffice for some unknown reason. They do not kick in when they are supposed to and if they do, they are ineffective. When those of us in opposition are asked to explain what we are doing about the situation, we explain we are doing all we can do in the House because we must bring the matter to the attention of the Minister and the Minister replies that it is already provided for. I do not want to repeat what I said earlier but I am not sure that it is provided for or that the system works adequately. Obstacles continually arise in respect of the delivery of services. I wish to emphasise that customers deserve some degree of service and that they have a right to harbour reasonable expectations when entering into contracts. Operators inform their customers that if they do not pay, the service will be discontinued. What is the position when, through no fault of the customer, the service disappears?

The Minister is aware of the problems that exist. These amendments, if accepted, would prove helpful.

I thank Deputy Broughan for his acknowledgement we have taken a step forward in respect of the matter to which amendment No. 10 relates.

I do not disagree with Members regarding the levels of service that are sometimes given by telecommunications companies. I take on board Deputy Broughan's point that when customers contact companies they are transferred from Billy to Jack. Such behaviour is not acceptable. This matter should perhaps be raised more frequently with the National Consumer Agency. I will take it up with the telecommunications companies, one or two of which are worse than others. My Department raised this matter on previous occasions. I also intend to bring it to the attention of ComReg because this is an area which should be monitored. People are entitled to a service. However, they are also entitled to be treated with a level of civility when that service does not reach the required standard.

We have discussed these amendments in some detail and provision is made in the Bill in respect of the matters to which they relate. For that reason, I cannot accept them.

Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.

I move amendment No. 12:

In page 10, between lines 22 and 23, to insert the following:

"(d) by inserting the following after subsection (1)(e):

"(f) to regulate a universal service obligation for all broadband undertakings,“;”.

Amendment put.
The Dáil divided: Tá, 28; Níl, 57.

  • Boyle, Dan.
  • Breen, James.
  • Broughan, Thomas P.
  • Connaughton, Paul.
  • Connolly, Paudge.
  • Cowley, Jerry.
  • Crowe, Seán.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • Ferris, Martin.
  • Higgins, Michael D.
  • Kehoe, Paul.
  • Lynch, Kathleen.
  • McGrath, Paul.
  • McHugh, Paddy.
  • Moynihan-Cronin, Breeda.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Rabbitte, Pat.
  • Ryan, Eamon.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.

Níl

  • Ahern, Noel.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Browne, John.
  • Callanan, Joe.
  • Carty, John.
  • Cassidy, Donie.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Cregan, John.
  • Curran, John.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Devins, Jimmy.
  • Ellis, John.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Harney, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Keaveney, Cecilia
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Lenihan, Conor.
  • Martin, Micheál.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Parlon, Tom.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Michael.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
  • Wright, G. V.
Tellers: Tá, Deputies Stagg and Kehoe; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.

I move amendment No. 13:

In page 10, between lines 22 and 23, to insert the following:

"(d) by inserting the following after subsection (1)(e):

"(f) to ensure that the national broadband network is fully accessible to third party operators,”;”.

Amendment put and declared lost.
Amendments Nos. 14 and 15 not moved.

I move amendment No. 16:

In page 10, between 29 and 30, to insert the following:

6.—It shall be a function of the Commission to ensure that any telecommunications service provider whose business includes the provision of landline telephone service shall provide such a service within 3 months of the receipt by that provider of a customer order.

Amendment put and declared lost.

Amendments Nos. 18 to 24, inclusive, are related to amendment No. 17. Amendments Nos. 17 to 24, inclusive, will be discussed together.

I move amendment No. 17:

In page 10, line 33, after "information" to insert "and make provision by way of directive".

Amendment No. 21 seeks to insert the following: "(c) the level of investment required to provide the level of service expected”. This relates to the need to ensure ongoing investment in the infrastructure so it is upgraded in keeping with the requirement of the services expected by the community. We have discussed at length on Committee Stage the need to recognise the interests of the consumer.

Amendment No. 22 deals with the necessity for regular upgrades to infrastructure, a matter which Deputy Broughan and other Members have raised in the past. There is little sense in crying about the dark if the ways and means are available to light it. If insufficient investment in upgrading infrastructure is the cause of the failure to provide the level of service expected by consumers, we should address the issue by making legislative provision for upgrades. The Minister will say the legislation already makes sufficient provision for this but unfortunately the issue has not been addressed despite the existing legislation.

Telecommunications services are being exposed to competition, deregulation and different circumstances to the monopoly and direct State involvement of the past. We will have to face similar issues in respect of other utility services and it is important to decide how best to proceed. We should be certain the financial structures are correct, service providers are capable and the utility service is used as a service deliverer in the first instance and not solely as an investment project. It should operate in the interests of consumers, be they commercial or domestic.

Amendment No. 23 provides for similar matters. With regard to amendment No. 24, I referred earlier to the need for modern infrastructure. Technology has a short lifespan, so it is necessary to modernise on a regular basis. I do not want to revisit our discussions on the last group of amendments, in which we referred to places such as the Black Valley, but there are similar problems in other parts of the country. Given recent technological advances, it is not credible to have telecommunications blackspots. I thought it was possible to do anything with modern telecommunications, which is what the experts tell us. It was technically possible to provide broadband services throughout the country three years ago but they were not put in place. The technology is available to provide a high quality service similar to that in the parts of Europe which have passed us by. I do not blame the Minister or his officials for that because we have not yet become accustomed to the changes which have taken place in this country's systems. In the US, these services have been provided for many years by putting the onus on the service provider to develop strong company structures and by fostering competition. An integral part of competition is that the customer benefits from lower prices and continuity of service.

Amendments Nos. 19 and 20 are in my name. In the three or four years since the establishment of metropolitan area networks, MANs, I have put parliamentary questions on a number of occasions to seek essential information about them. However, the Ceann Comhairle has ruled nearly all my questions out of order on the basis the matter is not directly in the Minister's remit. With MANs, the previous Minister, Deputy Dermot Ahern, seems to have begun a process, which the current Minister is continuing, of establishing a second national communications network. This has arisen from the mistakes made in the sale of the Eircom.

Like my colleagues, I regularly meet e-net, the company which won the contract to run MANs, and know Mr. Conal Henry and his colleagues. It is an efficient organisation and its turnover is increasing with the lighting of additional MANs. When the previous Minister, Deputy Dermot Ahern, announced MANs, he planned to introduce the service to 123 towns with populations of 1,500 or more. That number currently stands at 27 in the first group for which e-net won the tender. The company has lit the bulk of those projects and is currently trying to sell space on them. It has been successful at doing so in some parts of the country. However, the question arises of what happens to the second phase of MANs. Is the Minister, Deputy Noel Dempsey, going to do anything about this before he leaves office? The total cost of MANs thus far is up to €120 million. He announced a tendering process for 100% broadband enablement but what will be the cost of meeting the demands? A range of important national decisions on MANs remains to be taken. I am aware of e-net's goodwill in terms of reporting to Deputies and spoke with representatives of the company as recently as last Friday about its current performance.

People might say at some point in the future that MANs resembles the genesis of a new national communications network. It arose because the Minister's predecessor, Senator O'Rourke, made a grave error with regard to Eircom from which we have never recovered. We sold the network. MANs has been likened to a big stick which we hold over Eircom to make it perform as if it was still a national asset. However, is a lot of money not being spent on this big stick? According to the Ceann Comhairle's interpretation of Standing Orders, the Minister cannot report to Deputies on the progress of MANs, even though €100 million in taxes is being spent on the project. It is now beginning to make an impact on communications but reporting to this House should be first and foremost. E-Net told me it would be happy for the Minister to report to the House on MANs. I hope such reports will be accessible to Members of the 30th Dáil because MANs has become a major national asset and we should know how it is progressing.

Amendment No. 20 is similar to my earlier amendment on mobile telephones and termination rates. According to the Minister, we will get the relevant information under the 2003 legislation. Through no fault of their own, the Department and the regulator do not have the information. When the phrase "termination rates" is mentioned to mobile telephone operators, they get very upset and worried. It is akin to asking them about their internal structures or whatever. However, the fees they charge for access to each other's networks are key drivers of revenues and profits and nobody knows what is happening, despite the Minister's comments on the previous group of amendments. Ms Reding, the EU Commissioner, for example, found it difficult to do so. When she issued her first proposal on roaming charges, all the powerful international mobile companies, which control three out of four such companies in Ireland, came out swinging in the Financial Times, The Sunday Business Post, The Irish Times and Irish Independent. They were upset about the investigation into termination rates.

Both these issues should be covered by legislation. The companies should be accountable to the Minister and the House regarding MANs expenditure, while full information should be available about mobile telephone charges so that proper assessments can be made of how companies are behaving in the context of competition. I commend my two amendments.

I do not propose to accept the amendments because the purpose of this section is solely to obtain information to formulate policies and plans to deal with emergencies and network security issues. Deputy Broughan referred to MANs and his amendment regarding the provision of information on the technical and financial performance of such networks. That is covered by way of contract between the Department and the manager of the networks, which is e-net.

It is proposed that information on national and international telecommunications, financial stability and investment in infrastructure can be gathered by ComReg pursuant to its functions and pursuant to section 13(d). That issue is, therefore, covered.

With regard to amendment No. 20, the purpose of the provision of information under section 13(b) is to enable the Minister to formulate plans and policies to deal with emergencies and network security issues. The information referred to in the amendment is collated by ComReg and, therefore, there is no need for it.

The Deputy asked a number of questions about MANs. Companies that oppose the concept generally make a case against such networks on the basis that they represent a duplication of facilities and so on. However, these are fibre-based telecommunications networks, which are the networks of the future, because fibre, unlike copper, does not suffer bandwidth restrictions. It is also future proofed in terms of its ability to adapt to new technologies. The Deputy referred to convergence and increased customer demand. A number of commentators have written nonsense to the effect that we have spent a significant amount on these networks but they are not making money. However, they are not expected to make money in the first few years and it will take 15 years for them to pay for themselves. MANs are a classic example of future investment and the provision of infrastructure before it might be used or in demand. They offer bandwidth more than 100 times greater than that available currently.

MANs have performed another useful function, to which the Deputy adverted but to which the critics do not refer, in that they provide open access. Anybody who wishes to access a MAN can do so, unlike other networks. We have spent a great deal of time debating the difficulties of local loop unbundling over the past two or three years. One of the effects of MANs is they have driven down prices in various places because they have provided competition. I do not suggest the programme is perfect but MANs are a vital part of the telecommunications infrastructure because they will permit operators to graduate to next generation networks or NGNs, which is extremely important.

A total of 27 towns and cities have MANs, all of which are being managed by e-net. This company maintains, manages, markets and operates them on behalf of the State. Phase 2 involves the construction of 90 additional networks nationwide. Construction has started on 23 towns — approximately one third — in the north east, Galway, Longford and Donegal and it is scheduled to be completed by the end of the year along with construction works in Cork, Roscommon, Mayo, Wicklow and Fingal. It is anticipated that the remaining MANs will be completed by the end of the third quarter of 2008.

Will the operation of those MANs be put out to tender?

Yes. All the networks would have been constructed by now only for the many questions asked in Brussels by people who do not like the concept. The Commission, in turn, asked the Government many questions, which we answered. We received the all clear from Brussels from a state aid point of view but that took 12 months. The only stipulation laid down by the Commission regarding the second phase was that there would have to be a fresh tender for the management entity. When the new MANs come on stream, the Department will have to advertise and tender for a management services entity, which will be open to anybody to apply. I appreciate what the Deputies are striving to do in the amendments.

However, these sections and subsections are for specific purposes and are not simply for gathering particular information. For that reason, I will not accept the amendments.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 10, line 45, after "State" to insert the following:

"including the ongoing financial investment in the infrastructure".

Amendment put and declared lost.
Amendments Nos. 19 to 23, inclusive, not moved.

I move amendment No. 24:

In page 11, between lines 18 and 19, to insert the following:

"(d) the financial stability or credibility of the undertaking with particular reference to future requirements in respect of investment in modern infrastructure.”.

Amendment put.
The Dáil divided: Tá, 28; Níl, 53.

  • Allen, Bernard.
  • Boyle, Dan.
  • Breen, James.
  • Broughan, Thomas P.
  • Connaughton, Paul.
  • Connolly, Paudge.
  • Cowley, Jerry.
  • Crowe, Seán.
  • Deenihan, Jimmy.
  • Durkan, Bernard J.
  • Ferris, Martin.
  • Higgins, Michael D.
  • Kehoe, Paul.
  • Lynch, Kathleen.
  • McGrath, Paul.
  • McHugh, Paddy.
  • Moynihan-Cronin, Breeda.
  • Murphy, Catherine.
  • Naughten, Denis.
  • Ó Caoláin, Caoimhghín.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Pattison, Seamus.
  • Ryan, Eamon.
  • Stagg, Emmet.
  • Stanton, David.
  • Twomey, Liam.

Níl

  • Ahern, Noel.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Browne, John.
  • Callanan, Joe.
  • Carty, John.
  • Cassidy, Donie.
  • Coughlan, Mary.
  • Cowen, Brian.
  • Cregan, John.
  • Curran, John.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Devins, Jimmy.
  • Ellis, John.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Dermot.
  • Gallagher, Pat The Cope.
  • Glennon, Jim.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Conor.
  • Martin, Micheál.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Donoghue, John.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Parlon, Tom.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
Tellers: Tá, Deputies Kehoe and Stagg; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.

I move amendment No. 25:

In page 12, between lines 18 and 19, to insert the following:

"(c) fails to provide at least 24 hours of prior notice for the withdrawal of any electronic communications service or electric communications product to an end user.”.

This amendment proposes an insertion into the new section 13D which concerns the power of ComReg to obtain information from a telecommunications undertaking. It reiterates a previous amendment I wanted to make to the provisions on the functions of ComReg under the 2002 Act. Under this amendment, an undertaking would commit an offence if it failed to provide at least 24 hours' prior notice for the withdrawal of any electronic communications service or electric communications product to an end user.

On Committee Stage, we discussed the definition and use of the phrase "end user" and the fact that the word "consumer" was not used. The word "consumer" is used later in the Bill and I wondered whether an ambiguity or discretion arose through the use of both.

We also discussed the collapse of Smart Telecom. When ComReg was before the Oireachtas Joint Committee on Communications, Marine and Natural Resources, it stated that although it was aware of the difficulties for a number of months, it was not aware during the days prior to the collapse, which were over a weekend, of how serious the matter was. The outstanding bills owed by Smart Telecom to Eircom were called in immediately.

This amendment seeks at least 24 hours' notice of withdrawal of service and I asked for 30 days as a general requirement. No business or household should be left without a service if another matter like the Eircom-Smart Telecom debacle emerged. An interesting aspect explored in some sections of the media was the extent to which ComReg knew and whether it should have been in a position to warn people the service would disappear.

While it is a re-run of the earlier amendment and in the same spirit, it is slightly different in that it is an attempt to insert the provision into the new section 13D and create an offence if a telecommunications provider unilaterally withdraws service. The Smart Telecom situation was terrible. References were made to people's health in the context of depriving them of a service, particularly local GPs and health centres not being able to have a communications service, which was completely ludicrous.

We dealt with this previously and I gave an undertaking to the Deputy with regard to this type of condition being included in authorisation. The same applies to this amendment. I will not accept the amendment for the reasons I stated previously. I reiterate what I stated about asking ComReg to amend authorisations to take this into account and give due notice.

Amendment put and declared lost.

I move amendment No. 26:

In page 13, line 8, after "application" to insert the following:

"provided the interests of the end user or customer are acknowledged".

This is very similar to the amendment in the name of Deputy Broughan in the sense that it attempts to ensure the protection of the interests of the customer or end user, whichever title is used. They could be one and the same, although this is not necessarily true.

I await the Minister's response. We discussed a similar theme on Committee Stage when we spent a considerable time on the issue, as Deputy Broughan mentioned in speaking to the previous amendment.

It is a question of reiterating our concerns about how the consumer might be left sitting high and dry and how information is necessary for the Minister to be able to take action, even if it is somebody else's responsibility. There is always a place for political action and reaction. In the political arena, the Minister has the best chance of acting and must be informed of the requirements on an ongoing basis.

This is no disrespect to the regulator, but who will, after all, get the blame but the political system? That is why I put the amendment for the Minister's consideration.

The Deputy raised this matter previously and argued his case. An indication was given that we would consult further, which we did. We received further legal advice on the issue from the Office of the Attorney General, which indicates that section 13E(3) is a standard provision in legislation allowing for a ministerial application to derogate from the common law defence that an applicant for an injunction must suffer some individual loss.

Unfortunately, the Attorney General advises that the proposed amendment put forward by the Deputy alters the meaning of the provision unnecessarily and would not be helpful in achieving what the Deputy is seeking. For that reason I cannot accept the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 27 to 32, inclusive, are related and may be discussed together by agreement.

I move amendment No. 27:

In page 13, line 19, after "disclosure" to insert ", as defined in the Whistleblowers Act,".

Deputy Broughan and I did not discuss this issue and both our amendments on this matter were put down spontaneously. Reference is made to whistleblowers and disclosure of information and evidence. We agree that a person divulging information which could be beneficial to the consumer or industry should receive adequate cover. I also felt a number of other protections might be put in place.

One of these would be the introduction of a primary Act, the Whistleblowers Act, to which it is proposed to refer. On Committee Stage the Minister indicated it was the intention of the Government to split the Act through the various line Departments instead of having a single Act which could be referred to as primary legislation. I am interested in the Minister's comments on this.

The rest of the amendments under discussion are along similar lines. Amendment No. 28 refers to the need to ensure the information provided is not false, groundless or malicious, and we also discussed that at length on Committee Stage. It is a protection to ensure deliberate damage is not done by a competitor, for example. It would also protect the system, the Minister and the service provider.

Amendment No. 29 is in Deputy Broughan's name. Amendment No. 30 provides that information, if sensitive, does not become public knowledge until its veracity has been established. The reason for that amendment is that we know, for example, information has often come before tribunals which is initially quite damaging to the reputation of a person central to an allegation.

There would be virtually no way the person against whom the allegation is made — the accused for want of a better description — could recover the ground. Mud thrown might well be ground lost but it would at least cause damage. It has done so to people's reputations, and the matter has been a subject of contention in legal terms, as well as everything else.

Amendment No. 31 is again a reference as defined under the Whistleblowers Act. Amendment No. 32 is something similar, and I have already spoken on the matter.

This section is clearly welcome, amending the principal Act of 2002 to include these new sections 24A to 24C, relating to whistleblowers. As I stated on Committee Stage, the Labour Party would have preferred if Deputy Rabbitte's Bill, which was brought before the House to Committee Stage a number of years ago, had been brought forward as a whole. In other words, whistleblowers, in certain circumstances where it was believed serious wrongdoing was evident by a company, agency or other organisation, could speedily and safely bring the matter to the attention of the relevant authorities.

These are the kinds of developments we have had over the past 15 years of politics, from the beef tribunal through the other tribunals, including the Moriarty, Mahon and Flood tribunals. There would have been comprehensive legislation to protect people in general terms.

Through the years the Taoiseach and Deputy Rabbitte have had a number of discussions on this matter across the floor on the Order of Business. The Taoiseach has indicated it is the intention of the Government to proceed in a sectoral way but this is not the right way to proceed. We could have moved on the issue in general terms and we had legislation in Deputy Rabbitte's name and on behalf of the Labour Party which the Government thought to be fair, reasonable and adequate. Perhaps that legislation could have been brought through. We are left with the whistleblowers' protection through this Bill, which I welcome.

Everybody wants the whistleblower to be protected. It is indicated in the Bill that ComReg has discretion in pursuing an investigation and would have to believe the matters brought to its attention to be serious and important. I have sought to amend this. In response, the Minister might argue that I am trying to narrow the grounds.

The relevant section is 24A(2), which states:

For the purpose of subsection (1), a person makes an appropriate disclosure of information about the conduct of an undertaking, or an associate of an undertaking or an association of undertakings only if—

(a) the conduct relates to the provision of an electronic communications network or service or an associated facility, and...

That could include everything. My addition is "where a whistleblower believes on reasonable grounds that an undertaking, an associate of an undertaking or an association of undertakings are involved in anti-competitive practices or collusion". We should spell this out, as it is the key concern of the Bill. Some telecommunications companies engage in the anti-competitive practices outlined in earlier amendments. Some people have made allegations of collusion in the mobile telephone sector, which we should highlight in the legislation.

While whistleblowers could bring other matters to the attention of ComReg and the general public, I wanted to refer to these areas specifically. After the Bill's passage through the Oireachtas, powers will be exercised under the Competition Authority in this regard. From that point of view, I believed the Bill could be improved. I would prefer a whistleblowers Act because there are many areas in which this Bill's provisions will not apply. In local government and elsewhere, some believe the business of the people is not being carried on transparently or in an accountable way. Anyone who wants to bring such a situation to the public's attention should be protected. I welcome the Bill's provision, but I wanted to make a simple improvement.

The Deputies have confirmed my assumption that they were referring to the Whistleblowers Protection Bill 1999. The provision for the protection of whistleblowers in this Bill follows a Government decision on 3 March 2006, which stated that all legislation in preparation should, where relevant, include provisions for the protection of whistleblowers. For the purpose of this Bill, "appropriate disclosure" is defined. Protection is offered to any whistleblower, who is generally accepted by people to be an employee who communicates to ComReg any incidence of non-compliance with the obligations under the Bill or related enactments that the person believes is occurring.

It is not proposed to accept amendment No. 28 because the proposed section 24A provides protection from liability for any person who makes an appropriate disclosure to the commission about the conduct of an undertaking and is designed to encourage such disclosures. The proposed section 24C provides for a summary or indictable offence for the disclosure of false or misleading information. The fines for the summary conviction shall not exceed €5,000 and those for the indictable conviction shall not exceed €50,000. This provision offers protection to undertakings from malicious disclosures of information.

The Government amendment introduced on Committee Stage enhanced the whistleblowers provision by providing that ComReg may use its discretion when information is disclosed to it. If satisfied on reasonable grounds, it can decide not to accept or deal with the information. For example, it would not need to act if frivolous or vexatious information was offered to it. The provision will also offer operators protection from a disgruntled employee who might, for example, seek to disclose commercially sensitive information to ComReg. This is in addition to the protection from mischievous claims offered by the proposed section 24C.

The whistleblower provision allows for appropriate disclosures to be made about any conduct relating to the provision of electronic communication network services and associated facilities. According to our legal advice, the proposed amendment No. 29 would restrict the areas where information could be given to the commission to two, namely, anti-competitive practices and collusion. For that reason, I do not propose to accept the amendment. I accept that it is not Deputy Broughan's intent to restrict the obligations. All other non-compliance with obligations under the framework would not be disclosable if the amendment were accepted. The Deputy feared such a situation, but his amendment would have the opposite effect to his intention.

The proposed section 24A(2) sets out what is meant by "appropriate disclosure of information". A person must believe the information to be true, but the onus not to make something public knowledge should not lie with the whistleblower. The duty of care lies with the body to which the information has been disclosed and natural justice protections would apply.

Why is "whistleblower" not defined in the Bill? We know what one is. For example, we know what an elephant is, but it is difficult to describe. What is a whistleblower? This and issues regarding vexatious claims comprised the point of Deputy Rabbitte's Bill. For example, someone may have had a row with his or her boss or may not have been carrying out his or her work properly. While the word is mentioned and the Bill refers to someone who makes an appropriate disclosure, what is a whistleblower?

Someone who blows a whistle.

We know what it is. It comes from sport.

It could be a referee.

Do not go there.

Deputy Broughan is correct, but while we know what a whistleblower is, putting it into words in a Bill might have a negative effect. We would need to define all of the circumstances in which someone might make a disclosure. I can imagine what lawyers might attempt to do in respect of someone who discloses this type of information. If we include a definition, the lawyers will examine it first to determine whether there is a loophole.

They would never do that.

Deputy Broughan described it well in talking about how to define an elephant on paper. Writing a definition of a whistleblower might provide someone an opportunity to argue the case. While the information was of a nature that it should have been disclosed, people could get off on a technicality through a lawyer's argument that the person who disclosed the information did not fit the definition of a whistleblower. It is as well to leave it as it is. I cannot remember whether the Labour Party Bill had a specific definition.

A specific procedure.

Amendment, by leave, withdrawn.
Amendments Nos. 28 to 32, inclusive, not moved.

I move amendment No. 33:

In page 15, line 8, to delete "July" and substitute "January".

This is an attempt to bring the commission's financial year into line with the Government's financial year. I suggest that the change could be made. I do not know the reason for stipulating July as opposed to January. It could be more efficient and effective to stipulate January.

The Commission for Communications Regulation was established on 1 July. That is why ComReg's financial year starts at that time of the year, rather than on 1 January. The amendment relates to the provision whereby ComReg will be required to produce an annual action plan outlining its principal planned activities and an associated annual financial forecast before the end of its financial year. It just so happens that the commission started its activities in the middle of the year. It is not seen as very important to change its financial year. It would probably be more difficult to change it than to leave it as it is. This system does not hinder ComReg's ability to plan for each year. It could be argued that it allows the commission to base its plans on an 18-month rather than a six-month period.

Amendment, by leave, withdrawn.

Acting Chairman

As amendments Nos. 34 to 36, inclusive, are related, they may be discussed together.

I move amendment No. 34:

In page 15, line 23, after "Minister" to insert the following:

"and arrange for a copy of the plan to be laid before each House of the Oireachtas".

This amendment has been proposed on foot of last week's Committee Stage discussion on amendments tabled by Deputies Durkan and Broughan. I agreed at the time to give further consideration to their proposal. It is now proposed to lay ComReg's annual action plan before the Houses of the Oireachtas for information purposes, as well as presenting it to the Minister and making it available to the public. As an independent body, ComReg is responsible for its day-to-day operations. I hope this proposal honours the spirit and principle of the amendments tabled and the arguments made on Committee Stage.

I welcome the Minister's amendment and thank him for including it.

I agree with Deputy Durkan.

We are being very helpful.

Amendment agreed to.
Amendments Nos. 35 and 36 not moved.

I move amendment No. 37:

In page 17, to delete lines 11 to 15.

I have tabled this amendment to try to amend the section of the Bill that proposes to insert a new Part 2A in the Communications Regulation Act 2002 which will set out regulations governing ComReg hearings. As we had a long discussion on this matter on Committee Stage, I will refer to it briefly on this occasion. I referred on Committee Stage to the proposed new section 38C(2) of the 2002 Act which will require people to attend hearings and produce information and documents at such hearings. I propose the deletion of the section which states that "if a person who appears before the Commission in compliance with a requirement made under section 38A requests the matter to be dealt with in public, the Commission shall comply with the request" because I want the commission to have discretion in this respect. If ComReg wants to conduct a private investigation into a company which it considers not to be delivering the service required of it, or engaging in some way in anti-competitive or similar practices, it should have the discretion to do so without being compelled by the company to conduct the investigation in public. I have received representations on this matter from people in the industry who believe ComReg should have discretion to act as it sees fit. They argue that it should be possible for the commission to investigate something diligently without it involving a massive public session with barristers, etc. We should try to avoid such paraphernalia which we are now used to as a result of our experience with tribunals. We need to ensure the proceedings are as simple, snappy and short as possible. Perhaps this is the wrong way around, in retrospect. I heard the argument the Minister made on Committee Stage. The genesis of my consideration of this matter is my belief the commission should have discretion.

One can argue either way in regard to this matter which was discussed when the Bill was being prepared. I am not making a political point when I suggest that if Deputy Broughan were Minister and I were in opposition, he would make the argument I am making and vice versa. Having consulted a number of interests, including the Office of the Attorney General, and examined the submissions made in this respect, we have decided to proceed in this manner. The default position, as it may be called, in the proposed new section 38C is that all proceedings under Part 2A are to be held in private. The legal advice we have received is that we should provide for such proceedings to be held in public if a person who is required to attend a ComReg hearing makes a request to that effect. This provision will protect the right of a person, enshrined in Article 6 of the European Convention on Human Rights, to have a hearing held in public if he or she wants it to be.

I do not imagine that there will be many requests for hearings to be held in public. ComReg will arrange a hearing if it decides that a company may have a case to answer in respect of anti-competitive practices, for example. The default position is that a hearing will be held in private unless an individual wants it to be held in public. I do not think many individuals and companies will want to have their dirty linen washed in public. I remind the House that we are talking about the information gathering stage. If the process goes further than this, there will be a public hearing that will lead to a finding of fact by the commission. Having this part of the process in private will enable a speedier investigation, in many respects. I return to what I said about whistleblowers — the private nature of the initial hearings may make it easier for people to come forward to provide evidence which might back up the commission's other suspicions, evidence or information. We have framed it the right way in the Bill. If an individual wants to go public in these circumstances, he or she will have the option of doing so. We have struck the right balance in the legislation as it stands.

As the Minister has made sense on this point, I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 17, line 20, after "accordingly" to insert the following:

"having due regard to the legal entitlements of all those affected".

As amendments Nos. 38 to 40, inclusive, are along similar lines to amendment No. 37, I will not pursue them, having heard what the Minister had to say on the matter.

Amendment, by leave, withdrawn.
Amendments Nos. 39 and 40 not moved.

I move amendment No. 41:

In page 19, between lines 6 and 7, to insert the following:

11. "The Electronic Communications Appeals Panel is dissolved".

It was difficult to find somewhere in the Bill in which to include this amendment. I am not sure to what extent I have been successful in finding an appropriate place. There is a general feeling in the industry that the Electronic Communications Appeals Panel, ECAP, which was established under a statutory instrument or regulations is being used by the incumbent to try to defer the much needed reform of the market. Given that this legislation is giving ComReg some new procedures and powers, I have decided to provide for the dissolution of the ECAP in this part of the Bill. I would like to know how these provisions will work out. If ComReg is being used, or something is scheduled to go into the courts system, what further need will there be for the ECAP? It was created on foot of European legislation because there must be an appeals process where there is a regulator. We are used to An Bord Pleanála operating in the planning area. The argument has been made by many companies that ECAP was used as a roadblock. This Bill might provide a useful opportunity to get rid of it. What is its function, given the new structure of ComReg? ComReg cannot levy major fines as IFSRA can and this may prove to be a difficulty. The industry makes a good case for getting rid of ECAP.

It is neither appropriate nor necessary to provide for the dissolution of the ECAP in primary legislation. ECAP was established under the framework regulations of 2003. Any changes to the appeals structure could be facilitated by secondary legislation. The Bill is concerned with competition and anti-competitive practices. ECAP is mainly concerned with decisions about significant market power. We will review ECAP and the criticism of it — it has been unfairly criticised. The panel sought to deal with appeals. Some appeals were not successful and some decisions were challenged legally, but the panel developed expertise in procedures. It is natural that the first appeals were slower than we would have liked.

How will it fit in with the Bill?

The majority of the Bill deals with competition and co-competition powers. ECAP must remain in respect of general decisions and directives that ComReg might issue. The commercial court, at High Court level, may be the place for such disputes, but we have not made a decision on that.

Amendment, by leave, withdrawn.
Amendment No. 42 not moved.

I move amendment No. 43:

In page 20, line 12, to delete "an oral or written" and substitute "a written".

Amendment agreed to.
Amendments Nos. 44 to 47, inclusive, not moved.

I move amendment No. 48:

In page 22, to delete lines 24 and 25.

This is the meat of the Bill, relating to the Minister's power. Many people are nervous about the Minister creating offences triable on indictment. It has arisen in other regulations. This appeared in the European Communities Bill and concerns special powers enabling the Minister to make regulations to give effect to European Community instruments relating to communications matters. In recent years, when we were in opposition and the Minister was in the Department, we had much difficulty with European legislation. The Vincent Browne v Attorney General case is one example. There is concern that the Minister can create a serious offence by ministerial diktat and for that reason my party opposed the European Communities Bill. The Labour Party believes serious offences should be created by the Oireachtas, as it will do tomorrow in the Criminal Justice Bill. The Minister will also have the power to create offences punishable by fines of up to €4 million.

Either the Minister or the Minister of State spoke on the Bill in the Seanad and stated that there would be a 21 day period of scrutiny by the Oireachtas after any regulation the Minister introduces. This would take place after the regulations are made and would be of less value than Oireachtas approval before the law was changed. This is not the way to legislate under the Constitution. The Labour Party has a problem with this European legislation and this section compounds the problem.

The Minister should be a devil and accept it. We will stand up and applaud.

He would be famous if he did.

I would be.

He should start his bid for the leadership of Fianna Fáil.

I can withstand the temptation of a moment of fame in exchange for a lifetime of hard work as a Minister. For that reason I do not propose to accept the amendment. The purpose of the section is to enable the Minister to make regulations for the purpose of giving effect to the European Community legislation. This arose from the Vincent Browne v Attorney General case. It provides the power for effective penalties for non-compliance and serious breaches of the regulatory framework. The Minister of the day has the power to implement new changes to the framework in a timely manner.

The Deputies refer to other areas to which this power may apply, but it is more important for the telecommunications industry than for others. The industry is fast-changing and dynamic and it is important that we legislate for certain offences in a timely manner. The Deputies referred to the length of time this Bill has been in gestation. That is a reflection of the complexities of the Bill rather than the hard work of the officials in the Department.

This is an industry that is so fast changing and dynamic that it is important we should be able to——

Would the Minister like this to be his obituary?

I have no intention of dying or going anywhere. I intend to go on and on for quite some time yet.

Acting Chairman

As it is now 11 p.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Communications, Marine and Natural Resources and not disposed of are hereby made to the Bill, that Report Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.