Communications Regulation (Premium Rate Services) Bill 2009: Committee Stage.
The meeting has been convened for the purpose of considering the Communications Regulation (Premium Rate Services) Bill, which was referred to the select committee by order of the Dáil on 8 October 2009. On behalf of the committee, I welcome the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and his officials.
Amendment Nos. 1, 2, 4, 5, 6 and 7 are related and will be discussed together.
I move amendment No. 1:
In page 3, to delete lines 16 to 27 and substitute the following:
" "broadcasting service" has the meaning assigned to it by the Broadcasting Act 2009;".
This amendment is recommended by the Parliamentary Counsel. The full definition of broadcasting service as originally drafted is not required as the Broadcasting Act has since been signed into law.
The purpose of amendment No. 2 is to include in the Bill services for which the caller dials a number to gain access and then calls a second number to use this service. An example of such a service is a reverse charge call service, whereby the called party is billed through his her phone bill for the charge for the service. Similarly, other types of premium rate services can be accessed by calling a non premium rate number. The charges for these services are higher than normal call charges. Given the dynamic nature of the premium rate sector, pending public consultation I considered it prudent to allow ComReg to include this type of service within the scope of its regulation if complaints arise.
Regarding amendment No. 4, the purpose is to provide more clarity of meaning where facilities are used in connection with premium rate services. Amendment No. 5 provides clarification to ensure that the definition of premium rate service captures situations where payment for the premium rate service is made indirectly to the service provider by way of the end user's network operator, the originating network operator, who then passes it on to the terminating network operator through which the premium rate service was transmitted. Amendment Nos. 6 and 7 are textual amendments to improve the clarity of meaning in the Bill.
Does amendment No. 2 cover phone-in competitions on television shows, the kind of situation that caused trouble in the UK? Does the Bill cover that?
Deputy McManus has tabled amendments on this later. In considering her amendments we will come to the fundamental question of whether broadcasting is treated in the same way as non-broadcasting services. We are saying there is no connection. It will be up to the Broadcasting Authority of Ireland to regulate broadcasting in that area. There are several provisions where we say there must be consultation and real co-operation between the Broadcasting Authority of Ireland and ComReg. It is a broadcasting rather than telecommunications issue.
We will have the opportunity to discuss this when we discuss my amendment.
Amendment agreed to.
I move amendment No. 2:
In page 3, to delete lines 32 and 33 and substitute the following:
"(b) for entering a competition or claiming a prize,
(c) for registering a vote or recording a preference, or
(d) for enabling access to a premium rate service;”.
Amendment agreed to.
Amendments Nos. 3 and 8 are related and will be discussed together.
I move amendment No. 3:
In page 4, line 4, to delete "(other than a broadcasting service)".
It is inevitable that this arises in any discussion on premium rate services. Convergence is happening at such a pace that the interconnection between broadcasting and telecommunications is very close. I do not believe the Minister's approach on the Broadcasting Act or on this Bill deals with that convergence. I do not accept amendments Nos. 3 and 8 being taken in a grouping and I wish to speak on both of them. Amendment No. 3 deals with a particular problem of complaints received about the use of premium rate services relating to television programmes. It calls for the deletion of "(other than a broadcasting service)" from the Bill to ensure that broadcasting is included where it applies.
We must deal with this false separation. At the moment we are not dealing with it because of the construct that has been developed by the Minister in recent legislation and in this Bill. I urge him to remove the phrase in recognition of the interrelation that exists. The Broadcasting Authority of Ireland recently wrote to TV3 because of a programme, "Play TV", that airs at midnight and attracted 78 complaints. The Broadcasting Authority of Ireland took these complaints very seriously. Some 17 decisions have been formalised and 28 are still being processed. Most of the complaints centred on the difficulty in answering near impossible questions or getting through to the studio in the first place. Viewers must call a number that costs €1.50 and are often told they have not been successful this time. They are asked to try again. One viewer told theSunday Tribune newspaper that he opened his telephone bill to find a charge of nearly €30. He spoke to his son who admitted he had called the game show and had never got through to the studio to answer a question. Another member of the public described running up a bill of €370 in one month by calling “Play TV”. The natural locus for dealing with that issue must be in this Bill. I strongly submit to the Minister that he allows for the fact that it needs to be dealt with and that the BAI simply writing to TV3 is not sufficient. It needs to be done in this structure where there is licensing and more discipline on how premium rate services are being developed.
Initially I was surprised that these two amendments were being discussed together but amendment No. 8 is an allied amendment in which I suggest and recommend, "the Minister may, by order, if satisfied that it is in the public interest to do so, provide that the Commission shall be merged with the Broadcasting Authority of Ireland". On many occasions we have spoken about the lack of integration in the telecommunications regulatory framework where we have ComReg and the Broadcasting Authority of Ireland. I have argued long and hard in favour of integrating the system into one regulatory structure. I was not pleased about much in the report of an bord snip nua but I was very pleased that I was vindicated in that view. We will have to do it and we must acknowledge that integration is inevitable. We can see how convergence is occurring in technology and we must introduce the same type of integration in statute to ensure we keep on top of the technology.
The Minister's amendments have made changes, which I welcome and we will discuss them later, but in the big picture we still have an issue. One of my difficulties is that legislating takes so long. In our discussions on the Broadcasting Act 2009, which established the Broadcasting Authority, the reasons given for the lack of convergence in the two authorities was, essentially as far I could read between the lines, that the legislation took so long to enact that no-one wanted to rock the boat. This is new legislation and at the very least we should ensure that the area of broadcasting where premium rates services are used and abused is included in the Bill.
I support Deputy McManus on this matter. I supported her when she raised this issue during the discussions on the Broadcasting Act and we now have a practical example of the case we made then. There is a great deal of convergence in telecommunications and broadcasting and it is only a matter of time and already people are watching television on their computer screens. The Minister should listen to these arguments.
This area provides a good cause for discussion and various views are held. I fully accept Deputy McManus's argument that one could take the route of having a single regulator. I am not saying there are no merits or reasons for doing so. Equally, there are reasons it may not be the most effective option. It is a fine call and not an easy one. That the broadcasting legislation has been seven years in preparation is not the primary reason one would not do it. For me, a strong argument was that the telecommunications industry, with an economic value of approximately €4 billion, may have much stronger sway over the broadcasting industry, which might have a value of only approximately €500 million.
By nature, the two industries have different responsibilities; one for network management and one for content management. This area is interesting because there will be convergence through the Bill as Regtel and ComReg will be involved in content management. The argument is valid and I accept that the point Deputy McManus made is worthy of consideration. That is why section 5 contains a very specific provision that in making any regulations under section 5(1) the commission will have to consult the Broadcasting Authority of Ireland.
The example given by Deputy McManus of late night "Play TV" is of real concern. I am aware of people who ring in because it is a very attractive proposition to win €2,000 for the cost of a phone call. However, one does not get through to the studio. It is designed in a way to maximise revenue and often, the television company takes a share. Often, the programming is not done by the television company; it is done by an outside agency which puts it out as a package. One sees the same programming on ITV at night and I am sure every country in Europe has an equivalent of "Play TV" games. They are entitled to be broadcast because it is a form of programming but we cannot have programming that cons the public, which is someone landing a €50 or €30 phone bill without being aware of it and which is not properly organised. There has to be regulation and management of this.
We deliberately gave the Broadcasting Authority of Ireland a structure whereby it has a complaints committee and a contracting committee. The complaints referred to will be dealt with by the new complaints committee so we have mechanisms to deal with them. Taking into account the quality of broadcasting being provided may have an effect, and I am not saying it would as I am not prejudging the response to any such complaints. It would fit in with how the overall quality of broadcasting affects the public's perception of and public service in broadcasting. It is appropriate for a broadcasting regulator to regulate those. In appointing people to the new authority I have given a very strong and clear message that they will have to work closely with ComReg because there is common experience that can be applied on how such pay services operate on television.
To accept amendments would require us to fundamentally unstitch the broadcasting legislation and immediately go to a converged single regulator. We discussed this on a number of occasions when dealing with the Broadcasting Authority Act and as I stated then, having considered it, a valid case can be made but I still feel it is better to have separate regulators. However, they have to work closely together and that is the approach we have taken. In the end, I felt it was appropriate that ComReg rather than the new Broadcasting Authority would have responsibility for the new premium rate regulation service because the majority of complaints and issues on premium rate services relates to companies using the networks of telecom operators. Rather than giving complete responsibility to the Broadcasting Authority we felt it was appropriate to transfer Regtel into ComReg but to ensure the two authorities work closely together
The Minister has to defend his patch but I suspect he knows that it is not a terribly convincing argument and that the inevitable outcome will be integration of the two regulatory authorities. Leaving aside that for a minute, let us think about people who have experienced a scam by a television programme and a premium rate service, which certainly has happened. Those people are not too concerned about the quality of content. They are not bothered because they have been watching the programme, made their bids and are trying to get through. They are quite happy with the quality of the content. Presumably, they have liked it enough to invest in a phone call. What they are concerned about is the rip-off. The Minister may say the BAI will be responsible in this area but I do not recall addressing the issue at all during the debate on the Broadcasting Bill 2008. Joe Soap will not want a conversation about quality of content; he will want his €370 back. He cannot go to the proposed new authority because his complaint is not within its remit. Will the complaints commission of the BAI be able to get his money for him?
To be fair to the Minister, it is difficult for him to accept amendment No. 8 because he would have to commit to merging the two authorities.
No, he would not commit to that.
He would be given the power to effect a merger. It is appropriate to raise this issue in light of our failure to address it in the context of the Broadcasting Bill. Perhaps the Minister can outline the legal basis under which the BAI will deal with premium rate services specifically for television. For example, as far as I am aware there is no licensing procedure for television companies intending to provide a premium rate service. We are putting in place a legal basis for requiring persons or companies to apply to be registered, abide by a code for premium rate services and submit to a complaints procedure but none of these powers is available to the BAI in regard to ensuring quality of premium rate services on television.
I do not see anything wrong with allowing one regulator to delve into another's area. The regulator with responsibility for premium rate services should not be prevented from dealing with such services when they are broadcast. Amendment No. 3 is important for that reason and the Minister should at least provide a detailed explanation as to how the BAI can deal with the complaints outlined by Deputy McManus. What legal basis does it have for overseeing TV3 and other television companies which provide premium rate services?
I hope I did not confuse matters. The BAI's primary concern is the quality of content while the customer or audience member's concern is being charged appropriately for services. We established these outside bodies because it is not our role to assess complaints. The quality of content of television and broadcasting media is regulated through the complaints system operated by the BAI. Premium rate services are regulated by ComReg in respect of demands for refunds or improper charges. The two agencies have to work closely together in that the BAI can insist that network operators which provide premium rate services comply with ComReg under this Bill. The same mechanisms for controlling premium rate services exist for television and for telecommunications.
Not only have we two regulatory authorities in broadcasting and telecommunications but they will also be investigating the same complaint where an individual seeks a refund. That is not good practice. It is not efficient or cost effective and it fails to explain how the individual will be refunded. If there is collusion between a broadcaster and a premium rate service, ComReg will hit a wall when it attempts to investigate broadcasting aspects of a complaint. If ever there was a reason for establishing a single regulatory body, this is it. The proposal has a crazy tinge in terms of an individual trying to work through the maze of seeking a refund.
With all due respect to the Minister's assertion that broadcasting regulation should not be merged with telecommunications because it has a smaller financial base, he is in charge of a Department which deals with both major and minor matters. Nobody would accuse him or his officials of being imbalanced in their treatment of natural resources compared to telecommunications. That certainly would not apply in a streamlined, efficient and unified regulatory authority which could investigate Joe Soap's complaints irrespective of whether the broadcaster or the premium rate operator is guilty.
I accept that valid arguments can be made. Energy is a relatively straightforward area for my Department because the laws of physics make our requirements reasonably clear. Communications is more complex because of the various platforms involved but it essentially involves data and the commercial operation of networks. To my mind, the needs are reasonably clear. However, broadcasting is the most complex part of my departmental brief because it involves politics, religion, sex and entertainment. It is not defined by the laws of physics or communications systems but by psychology. The fundamental responsibility of the BAI is to ensure quality in our broadcasting media. Perhaps the most likely area of convergence is in regard to print media. Premium rate services, whether delivered through television or telephone, are ComReg's responsibility because they are commercial operations. We are making a clear delineation in that regard by establishing real powers which previously did not exist so that a customer who feels he or he has been done wrong will have proper recourse.
We will talk about refunds later but I want to return to the man or woman who has lost €370 after responding in good faith to an offer presented on the television. I agree that broadcasting is very important and influential. It is also persuasive. In this instance it persuaded people to give money, sometimes when they did not realise, in a way that was a scam.
I am repeating myself but it is worth repeating. The person in question, who is owed money and has been ripped off, will have to go to two regulators, with one dealing with quality of content, which we all support, and another which does not deal with broadcasting. We are not talking about newspapers, although newspapers and communications technology are converging. At some point in future the issue may present itself but at the moment the links between information technologies and broadcasting are so interconnected that we have hit a problem that leads to television viewers being ripped off. The answer will be for a great bureaucracy to provide two regulatory authorities to investigate and deal with cases.
If consumers have a problem with a premium rate service to which they have paid money, they will go to the new regulator that we are establishing.
The consumer only knows about the €370 run up on the bill and the identity of who did it is not known. The person in this case was dealing with TV3. Many people would not even know what a premium rate service was. Do people dealing with TV3 know about premium rate services? Frankly, I would have thought the consumer should have swift and easy access to compensation but that is clearly not what has been outlined.
The Minister will not accept this amendment but I ask him to think about it. I will introduce it again on Report Stage. From the consumer's perspective, what is being presented is highly bureaucratic and there is a duality which should never be acceptable but especially in the current climate when people are struggling and trying to find their way through bureaucracies. The Minister has been advised very clearly by an bord snip nua not to proceed down such a road so the Minister should get his act together with a unified regulatory authority.
A complaint about a premium rate service can go straight to this premium rate service authority or be referred from BAI. It is a simple process which will lead to clear legal structures that can be followed. That is what we are legislating for.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 4, line 6, to delete "involve" and substitute "include or allow".
Amendment agreed to.
I move amendment No. 5:
In page 4, line 12, after "service" to insert "directly or indirectly".
Amendment agreed to.
I move amendment No. 6:
In page 4, line 13, after "or" to insert "electronic communications".
Amendment agreed to.
I move amendment No. 7:
In page 4, lines 13 and 14, to delete "through which the service was transmitted," and substitute the following:
"used in connection with the provision of the service".
Amendment agreed to.
Section 1, as amended, agreed to.
Amendment No. 8 not moved.
Section 2 agreed to.
Amendment No. 9 is in the name of the Minister. Amendments Nos. 13 and 34 are related and the amendments will be discussed together.
I move amendment No. 9:
In page 5, paragraph (a), line 3, to delete “of” where it thirdly occurs.
Amendments Nos. 9, 13 and 34 are minor textual corrections.
Amendment agreed to.
Section 3, as amended, agreed to.
Amendment No. 10 is in the name of the Minister. Amendments Nos. 11, 12, 15, 18, 23 and 25 to 27, inclusive, are related and will be discussed together.
I move amendment No. 10:
In page 6, subsection (2)(b), line 17, to delete “numbers” and substitute “details”.
I will speak to amendments Nos. 10, 11, 12, 15, 18, 23, 25 to 27, inclusive. Amendments Nos. 10 to 12, inclusive, are to ensure that as many contact points as possible are included. In amendment No. 15, the term "company" has a legal meaning and is a more correct term than "business" in the context of the section. Amendment No. 18 is necessary as the relevant body is now the Broadcasting Authority of Ireland; the Broadcasting Commission was used in an earlier draft. Amendments Nos. 23 and 25 to 27, inclusive, provide greater clarity of the meaning.
Amendment agreed to.
I move amendment No. 11:
In page 6, subsection (2)(b), line 20, to delete “numbers” and substitute “details”.
Amendment agreed to.
I move amendment No. 12:
In page 6, subsection (2)(d)(ii), line 32, after “including” to insert “website address,”.
Amendment agreed to.
I move amendment No. 13:
In page 6, subsection (2)(e), line 39, after “of” where it secondly occurs to insert “the”.
Amendment agreed to.
I move amendment No. 14:
In page 6, subsection (2), between lines 40 and 41, to insert the following:
"(f) the target potential user for the premium rate service,”.
This deals with circumstances whereby a person who intends to provide a specific premium rate service will submit an application to the commission for a licence before doing so. Section 4 deals with all the matters which the premium rate service provider would have to deal with and the application process for that licence. I have looked at a section between subsections (e) and (f) that would require the service provider to give information to the commission on the target potential user for the premium rate service. It is not a very important amendment but it adds to the application process.
One issue that we do not deal with in subsections (a), (b), (c), (d), (e) or (f) at the moment is the requirement for information on who the premium service provider intends to target as a customer. That would be useful information for the commission in terms of building an accurate picture of the likely end user for the premium rate service. Any such service that is set up has a target customer in mind and that information would be useful when assessing an application for that type of service. I hope the Minister will accept the amendment.
I would have thought subsection (f) would incorporate such information and give ComReg the ability to seek it, as the applicant would have to provide such other relevant information as the commission considers appropriate. Perhaps we can consider it and come back to it on Report Stage if we want to be specify that providers must set out who they will target. I do not have a fundamental objection to it and it is just a matter of whether we need to be specific in drafting.
I am happy with that. The only point I make is that we have asked for a lot of detail on the premium rate service provider, such as addresses and the type of service that is proposed. We should have some information on who these providers intend to target because we need to protect such people. It would be a useful addition but I will withdraw the amendment on the basis that the Minister will reconsider it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 7, subsection (4)(b), line 5, to delete “business” and substitute the following:
"company (within the meaning of the Companies Acts)".
Amendment agreed to.
Section 4, as amended, agreed to.
Amendments Nos. 16 and 17 are related and will be discussed together.
I move amendment No. 16:
In page 7, lines 40 to 44 and in page 8, lines 1 to 9, to delete subsections (1) and (2) and substitute the following:
"(1) The Commission may make regulations specifying—
(a) the class or type of premium rate services which require to be licensed under section 4,
(b) conditions (including the basis and circumstances upon which refunds may be made to end users) to be attached to licences to be observed by the holders of licences,
(c) that certain conditions do not apply to certain classes or types of premium rate services or premium rate service providers, and
(d) the information that licensed premium rate service providers shall, upon request, provide to the Commission.”.
In the Bill as initiated, section 5 is split into two subsections which essentially provide for the same thing, the terms and conditions of a licence issued under section 4. This amendment to these provisions brings them into one subsection. In addition, I have amended the text in section 5(1)(b) of the Bill as initiated to ensure that the conditions of a licence can include a requirement to make refunds.
Deputy McManus raised this issue on Second Stage. The amendment will erase any doubt that where ComReg has found a breach of a licence condition in respect of premium-rate services, a requirement to make refunds to users of such a service is included in the conditions of the licence attaching to that service.
Would the Chairman like me to discuss amendment No. 17 also?
Amendment No. 17 was tabled by Deputy McManus. This amendment is not accepted as it would not be appropriate to set out the terms and conditions of a licence in primary legislation. The advice from the Attorney General is that the type of detail proposed by the Deputy's amendment is more appropriate for inclusion in secondary legislation. If it were otherwise, the text of the Bill would have to specify the circumstances in which refunds would be made and the mechanisms for making such refunds, covering all eventualities. To specify such detail in the Bill is not appropriate or desirable. The terms and conditions of a licence may vary over time and different terms and conditions will apply to different classes and types of premium-rate service. The terms and conditions, including any requirements with regard to refunds, will be set out in regulations made by ComReg under section 5.
The current code of practice, under which Regtel may require refunds where there has been a breach of the code, will still apply until a new code is drawn up by ComReg to replace it. The major difference between the current and the proposed regimes is that under the provisions of this Bill, compliance with the code of practice will be a condition of a licence and thus enforceable under law, whereas the current code of practice is not enforceable as it has no standing in law. That, in essence, is the real reason this Bill has been introduced; we found the existing system could not be enforced and set out to give it the legal powers that were necessary.
I welcome the fact that the word "refund" has appeared in the legislation at long last. It is noteworthy that it has taken so long, but I welcome it. I would have thought it was a central issue because we are dealing with a commercial business with customers. Refunds are part and parcel of commercial transactions in other areas of commercial activity. I welcome the fact that the Minister has listened and I appreciate his introduction of this word in his amendment, which I support.
I had hoped the Minister would accept amendment No. 17 because there are people who find they are in the dark with regard to these services. The examples are stark. I am sure the Minister has received all the e-mails I have been getting, but if he does not mind, I will use an example to illustrate the importance of a person's being able to terminate a service in circumstances in which non-compliance by the service provider will result in a refund for the user together with such compensation as may be determined in accordance with the regulations. I am allowing for the fact that secondary legislation will deal with the detail; what is important is the principle of making sure the power to stop lies with the consumer.
One gentleman contacted me about a case involving a company, Zamano, which is backed by the taxpayer through Enterprise Ireland and also because it is based at the Digital Hub. He states that he recently retired and switched his mobile phone from monthly billing to prepaid, and had occasion to call Vodafone to ask why his credit seemed to be disappearing at a rapid rate. Vodafone investigated and was able to tell him he was receiving premium-rate texts at €2.50 each from a company called Zamano, which were not showing up on his phone. Thus, he did not even know he was receiving them. After three attempts to get an answer from Zamano, the company eventually informed him that he had entered a competition by texting the word "go" to a certain number, 50115. This was true, but how did that give Zamano the right to send him unsolicited premium-rate text messages at €2.50 each?
As if this were not bad enough, the premium-rate texts did not show up on his phone so he did not know he had received them. The gentleman states: "If this is not theft, I do not know what is." How many other people are being subjected to this scam? He wrote to Vodafone, which verified he was being charged even though he could not see the texts, nor had he subscribed to anything. He also wrote to customer services at Zamano, which only replied after his third communication, and only to state that he was now unsubscribed. However, he did not subscribe to anything. He has also written to the CEO of Zamano, John O'Shea, who has not replied to him. Regtel has replied and is investigating the complaint.
This is a case in which a person did not know he was in a scheme in which he was paying for text messages for which he had not asked and which he was not even receiving. This created enormous difficulty for him and he has not yet received redress. However, there are also complaints from people who try to stop what is happening but cannot stop it immediately. Ultimately, the company providing the commercial service must take responsibility for the services it provides, particularly when it is taking money for something the customer has not asked for and cannot access. It is a difficult area. I appreciate that we do not want too much detail in the Bill, but it seems we are not talking about detail. It is a question of the user having the power to terminate a service. He or she says "Stop" and that is it.
If a service persists or is not compliant with paragraph (a), the person must get compensation. I welcome the fact that the Minister has partially gone down this road, but I hoped he would accept amendment No. 17 to make the situation clearer and protect the consumer. This is one commercial activity in which the consumer has been treated extremely badly in some cases, although mostly this has not been the case - I do not want to besmirch an entire industry because that would be grossly unfair. However, this is not about the good guys but the guys who are not behaving themselves. They have had such a free run that we must now be rigorous in the legislation we apply.
Deputy McManus has made a good case for amendment No. 17. With regard to the Minister's amendment, No.16, I see what he is trying to do when he includes the new wording under conditions the commission may apply, which now states: "including the basis and circumstances upon which refunds may be made to end users". The problem is that we are talking about refunds as a by-the-by; conditions may include refunds. The Bill needs to have wording that tells consumers they have a right to a refund if their money has essentially been stolen from them in a way pertinent to this legislation. I have a later amendment, No. 31, which states that companies in breach of the legislation "shall be obliged to re-emburse any or all end users in full as appropriate under subsection (1)(a), (b) and (c).”
I welcome the fact that the Minister is now mentioning reimbursement for money that has been taken from a consumer inappropriately or illegally but, along with this, we need something in the Bill that states that consumers have a legal right, protected under this legal framework, to be reimbursed if money has been taken from them in a way that is not acceptable. The Bill deals with the issue of refunds but does not tackle it head-on. It states that the commission may make regulations specifying conditions, of which refunds may be a part. However, I ask the Minister to think about what needs to be said in this legislation. If somebody has had money stolen from them by a premium-rate service - and in many cases do not even know it is happening - there should be an obligation on the service provider to reimburse the consumer. If a consumer has money stolen by a premium rate service and if, as in many cases, he or she does not even know this is happening, there is an obligation on the service provider to reimburse that consumer. I do not see that issue mentioned or dealt with head on anywhere in the Bill.
The amendment is a welcome improvement but another amendment must be added elsewhere in the Bill. I am not sure that my amendment No. 31 is comprehensive enough. It should be specified somewhere in the Bill that if money is taken inappropriately from a person it should be returned. That should be part of the legal framework. The details of how the reimbursement would take place or the refund paid are an issue for the commission. The new subsection (b) is not specific enough in respect of both principle and legal framework to ensure this will be the case.
The need for this legislation became clear to me when I came into office and saw the scale of complaints. This was not a small issue. Regtel received in the region of 20,000 calls on its information line regarding subscription services. If we got that level of complaints in politics we would sit straight up and ask what was to be done about it.
A provision already made and which we will continue is exactly on the lines of what Deputy McManus suggests, namely, making it easy for people to stop receiving unwarranted subscriptions. In autumn 2007 a "Stop" campaign was set up. If a person receives an unwarranted SMS premium rate service he or she can do exactly that. As soon as a message is received the person can text back and say "Stop".
That does not always happen.
If it does not happen this legislation will allow for the pursuit of that company. Those conditions are included in the licensing conditions. If there is a breach the offender will go out of business, will be stopped and brought to court. The Bill will effect that by giving us the legal powers.
Where in the Bill is that stated?
It is stated throughout and is a major purpose of this Bill. It was always the intention-----
As a point of information, the Minister stated that issue will be dealt with in this Bill. Where exactly is it stated?
Section 5, on regulations, sets out the provision for us to set such codes and give them legal effect. The Attorney General's argument is that if we start to include in primary legislation every part of that code and every circumstance in which it would or would not apply, we would end up in an impossible legislative process. In legislation one gives the body the ability, sets out the broad context and then allows it develop the codes needed. An entire range of different circumstances might apply regarding the working of this code.
Concerning charging, section 11 sets out that issue. It states: "the operator shall not impose or purport to impose a charge" in respect of a range of different services, including charging for something it does not subsequently deliver. Clearly, there are mechanisms here for us to tackle such outcomes. If companies send messages, if these are not received, if people are charged for something they do not get, such matters can be pursued. That is the reason we are introducing this legislation.
Refunds are an essential part of the range of different responses we will need. These include a mechanism by which one can text "Stop" and the operator must stop sending such services. It is an example of a series of different responses we need. Ultimately, it is in the industry's interest that these codes and measures should be in place because the public wants to be confident that if they use their mobile telephones or call a television station with a premium rate service it is not a scam. It is in everybody's interest that there be fair and proper rules and that is what we are legislating for.
The Minister stated section 5 allows the regulations to do what he outlines. Why not include it clearly in the Bill?
There are so many different aspects to this. One does not put in codes with all the different circumstances and features in them because one would end up having inflexible legislation. The entire code would have to be included and if, for example, there was a change in technology there would not be the ability to deal with it. One would have to return to the primary legislation to readjust it. It works better to set out the broad principles and allow a code for implementation. If everything were included in primary legislation and the technology changed slightly, one would have to return to the primary legislation and amend it. It is better to have it included in a flexible secondary regulatory sense.
It would be part of the company's licence.
Yes. If a company were to breach that condition we would take it to court and it could be fined and pursued. At present we do not have the legal powers to do that properly.
If we can take companies to court and fine and pursue them would that take years? That happens in many other cases when somebody breaches a licence.
I understand from my officials that when somebody is in breach of a licence there can be an immediate revocation of the licence.
Unfortunately, that seems to be the ultimate sanction.
It is a very serious sanction.
If a company is in breach of its licensing agreement, how long would it take? Would it be two years, four years? This is the problem. Unfortunately, we have had far too many bad experiences where licences and conditions were breached and nothing happened. They might get a court date in two and a half years and continue to trade as usual, flouting the regulations whereas if they flouted and compromised the primary legislation they might realise there were sufficient teeth in those provisions.
I understand the Minister's point about having flexibility in the legislation but the experience in Ireland with people who are licensed by the State or by an arm of the State is that far too often there are no teeth in the conditions, they are not followed up and it can take a year and a half to get the matter into court. As public representatives we hear about such cases all the time. Nothing happens.
The purpose of the legislation is to give ComReg the ability to amend, revoke and spend licences. It gives it the ultimate sanction to go to court which our legal system, prior to the passing of this legislation, does not have properly in place. The purpose of the legislation is to set up those effective powers.
It is not right for the Minister to oversell what is in the legislation. While I welcome amendment No. 16 it states the commission "may" make regulations, specifying conditions, including the bases and circumstances upon which refunds "may" be made to end users. That is a weak provision. I welcome it because it is better than nothing and is the first time the point has been recognised in any way. However, the wording is "may make regulations" and "may make refunds". It would be better to state "will make regulations" and have refunds included in the conditions. It would be very good legislation if the responsibilities of ComReg were specified. It would know what it had to do and I have no doubt it would do it well.
Concerning the legislation as it stands, the Minister states we will not deal with the termination issue because it is a detail. However, if we do not deal with it in legislation there is a real danger it will not be dealt with at all. The Minister mentioned changing technologies. That is a red herring. He says conditions, including refunds, termination and whatever are included but there is no exclusion of any new developments coming down the track.
I agree with the Minister that legislation must be open enough to allow for new developments. It should not be so closed as not to deal with developments we have experienced. Whatever he thinks about Regtel, it has a track record and experience. We know what the problems are now. The legislation is supposed to be designed to deal with them but is still far too weak. It is not as if we have an endless list of items. We know what the problems are at the moment. The number of amendments tabled is brief enough. It is not as if we are overburdening the legislation. We are being far more consistent with the nature of the legislation than the Minister who introduced a provision about ducting which has absolutely nothing to do with the Bill although I shall welcome it when he gets around to effecting it. If one talks about adding on, the Minister has done just that.
Let us consider the nature of the legislation. Surely, the purpose is to set out the road map for ComReg to follow but it is not doing so, which is a great pity. I will table my amendment again on Report Stage.
I will consider it in terms of giving certainty to the Deputies opposite. However, the certainty in this from the start has been such that we have sought to give real powers. Regtel has been trying to do its work but has been hampered by the lack of legislation. The impetus was to remedy this by providing the necessary legal powers. If it will assist matters, we can revert to the issue on Report Stage in terms of stating the commission "shall make" regulations. It would be a small change but I would be pleased to make it. However, I will not go against the principle we set out with regard to the detailed conditions and terms of the code because that would be inappropriate and not be clever in legislative terms. I am happy to have made the amendment to signal that refunds are allowed because it was our intention from the very start to indicate this would be included. However, I do not wish to go further down the line towards trying to set out the code and conditions in legislation because that would not be effective. One could end up missing something that could, in turn, weaken the consumer protection aspect. It is clear from the amendments we have tabled on Committee Stage that refunds fall within the remit of the new regulations or that they must be considered within these conditions. I do not believe we should go into more detail. We should allow ComReg to revert and set out the regulations which may include stop codes, the details of which may change. Any changes should yield real certainty that the necessary regulations will be introduced but I differ from the Deputy opposite in going beyond this. The regulator must have that flexibility.
I appreciate the Minister's approach and look forward to the debate on Report Stage.
Amendment agreed to.
Amendment No. 17 not moved.
I move amendment No. 18:
In page 8, subsection (5), line 18, to delete "Commission" and substitute "Authority".
Amendment agreed to.
Section 5, as amended, agreed to.
I move amendment No. 19:
In page 8, subsection (1), line 34, after "application" to insert "ex parte ”.
This relates to where the commission considers the immediate suspension of a licence is necessary to protect users. Under the provision, the commission may make anex parte application to the High Court to have a licence suspended. I tabled the amendment on legal advice and because it makes it clear an application may be urgent and made without notice to the other side. It is appropriate because Deputy D’Arcy has raised concerns about the length of time core procedures may take. At issue is a suspension rather than the taking away of a licence altogether. One concern we all share while a premium rate service is being pursued by the regulator concerns its functions in the interim and that it may take more and more customers for a ride. That can happen because of the nature of the service; it is very diffuse as an activity. That would mean there would be an immediate application with which the court could proceed quickly and the commission would have the authority to make such an application.
The amendment is not accepted. To ensure fair procedure the section as drafted provides that the licensee is notified prior to making an application to the High Court. Therefore, to make the applicationex parte would go against the provision. Notification can be fairly instantaneous; there is not a delay or a long process. I refer Deputies to the reference in the section 6 that the commission “may, on notifying the licensee, make an application to the High Court for an order to suspend the licence.” I believe that is a fair procedure and to make an application ex parte would go against that provision.
Obviously, the Minister has never tried to serve a summons. However, while that was ongoing, the activity might continue.
In making an application it may be suspended. I do not have the legal definition of how one notifies someone but obviously these are licensees with contact details. They are people with whom ComReg works. It should be an easy process to notify someone and make an application.
Not necessarily, but I will not press the point. It would not be easy if one were dealing with a fly-by-night operator or service provider which did not provide a service according to the terms of the licence. We are not discussing the legitimate operator but someone who provides a service in an illegitimate way, someone the commission wishes to stop. There seems to be a period during which the provider can keep gathering in the money. That could continue while the court proceedings were under way or while the system in place to get to court was taking time to complete. The activity can persist and it seems such an issue could arise.
Formal notification could be given by way of correspondence. If it is not responded to, it does not prevent ComReg from making an application to the High Court and pursuing the matter in the fastest possible way to put a stop to the activity.
Is the Minister certain? Presumably, if it did go to court, the service provider could state it never received a notice.
I will revert to the Deputy with the legal definition of what "notifying" means.
The point is it allows one to proceed without receiving a response.
I may introduce the amendment again on Report Stage.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Amendments Nos. 20 to 22, inclusive, and amendments Nos. 24 and 28 are related and may be discussed together.
I move amendment No. 20:
In page 9, subsection (1), line 9, after "and" to insert the following:
"may require any network operator to withhold payments from the premium rate service provider concerned, to such extent as are specified by the Commission, and may also".
Essentially, these amendments relate to the situation of the service provider and the network operator. As I understand it, the real power of the commission is to direct the network operator to withhold payments. The omission of this power from the Bill would render the commission toothless. There are different parties involved and the network operator is in a position of some power. If a premium rate service provider is not acting in accordance with the law, the network operator should be in a position to play its part to ensure the illegality is not rewarded. As far as I recall, this relationship was recognised in the work of Regtel. I may be wrong but I understood it was able to convince network operators to play their part. Will the Minister indicate where this power may be exerted to ensure consumers are protected?
Amendment No. 21 is related to consumers and compensation. I realise the Minister will revert to me on amendment No. 16, but it seems we should acknowledge that the payment of compensation is appropriate where someone has been a victim of a scam. It should not simply be a case of returning his or her money. It may be that compensation is required.
While Deputy McManus is dealing with amendment No. 24, I will deal with amendment No. 22. It is not an overly important amendment but I wish to explain why I tabled it. It concerns line 15. Subsection (1)(b) (i), (ii) and (iii) concern cases where, after an investigation has found that there has been a clear breech, the service provider would be notified and required to remedy the situation. The time lines are outlined under which they would be required to remedy the breech. Subsection (1)(b)(i), (ii) and (iii) state:
(i) one month after issue of the notification,
(ii) such shorter period as is agreed by the Commission with the provider concerned or stipulated by the Commission in case of repeated non-compliance, or
(iii) such longer period as may be specified by the Commission.
It is not necessary to have the wording "in the case of repeated non-compliance". It is an issue which should be decided by the commission. Depending on how serious the breach is, the commission should be given the power to require that the situation be remedied in a week, if appropriate, rather than a month.
I do not think the only stipulation which would require a remedy or correction of the breach would be less than a month or that the timeline should be shorter than a month in the case of repeated non-compliance. I do not see why we are introducing the issue of repeat non-compliance. If a breach is serious the commission should be able to make a judgment call and demand the situation be remedied within a day or a week. It does not have to be a repeat offence. It is a totally unnecessary extra stipulation to put on the commission because the last thing we want is a service provider claiming it has not committed a repeat offence so it needs to be given a month to comply. It gives unnecessary powers to the service provider and we should delete the section because it is not necessary. We should allow the commission to make a judgment call as to the time period within which a remedy would apply.
The point Deputy McManus made on amendment No. 20 is good. The reality is that all of these services are facilitated by a network operator. In the cases of certain breaches the commission should be given the power to go to a network operator such as Vodafone, O2, Eircom or whoever, say it is providing a service through its network which is in breach of a whole serious of conditions, it needs to stop and the provider should stop transferring funds through its network operation. It is a principle which would give the commission real teeth and the powers to be able to act quickly in terms of payment. It would perhaps also be a way of solving the problems to which Deputy D'Arcy referred because once payment is stopped to a premium rate service provider which is acting outside its licence such activity is likely to stop very quickly. I am interested in hearing the Minister's views on that. Amendments Nos. 20 and 21 are very sensible.
I do not know why these amendments are grouped together because they do slightly different things. As Deputy Coveney said, amendment No. 20 deals with the role of the network operator, who is crucial in the line between the scammer and the scammee and has quite an important role in determining the outcome for the consumer. I hope the Minister accepts this amendment.
Amendment No. 21 concerns repaying the consumer. Section 7(1)(b) states:
[the commission] shall notify the provider of the findings and require the provider to remedy any non-compliance or breach not later than—
(i) one month after issue of the notification,
(ii) such shorter period as is agreed by the Commission with the provider concerned or stipulated by the Commission in case of repeated non-compliance, or
(iii) such longer period as may be specified by the Commission.
That is well and good, but it means a problem must be remedied from now on but not a mess which an operator has already made. It provides inadequate protection for the consumer because we only know wrong has been done to people who have availed of services which are defective after it has happened. Such people have experienced a wrong, the commission has investigated it and told the operator it must remedy the situation, but it only deals with future and not past activity. It would be remiss of the Minister not to accept the amendment in order to ensure the reality of what has happened is dealt with, as well as any future remedies.
Amendment No. 24 concerns the network operator and what the commission may specify in regard to it. It is important that the commission have authority - this should be spelled out - to direct a network operator to cease to carry the premium rate service concerned. I suspect network operators would find that reassuring because they would know where they stood. If the commission says what an operator has to do, it is very clear cut. Network operators that are uncomfortable or have difficulties with what is happening may think they may be open to litigation if they suddenly stop a premium rate service provider, but if the commission tells them to do it they know what they have to do in law and they will do it, which protects the consumer and the network operator.
To go into detail on some of the amendments, the code of practice and licence obligations apply to both parties to the contract, namely, the network operator and premium rate service provider. ComReg, in its operation and implementation of this legislation, will have to control or regulate both. We are returning to the same argument we had on the previous amendments, that is, whether we go into specific conditions on how one applies such regulations, what they are or what the breach conditions would be. That is too specific. We have to give ComReg the ability to apply regulations to the network operator and service provider as joint parties in a contract arrangement.
I will deal with amendment No. 22 and give a note on some of the other amendments. The amendment is not accepted as the Parliamentary Counsel has stated that fair procedure demands that where a shorter period is stipulated by ComReg the circumstances which give rise to such a stipulation are shown, which I am told is a standard provision in legislation.
Ihave no difficulty with that, but I have a difficulty with stipulating that those reasons are "repeat non-compliance". ComReg should be required to give reasons the time is shorter that a month but we should not specify those reasons. The Minister made the case persuasively earlier on that we should not itemise the exact way in which ComReg should behave because that is the role secondary legislation.
Agreed. I was considering that very point. Perhaps we might develop some wording which recognises that in certain instance one will need to act quickly. Rather than it being a matter of repeat non-compliance, I might look at a wording before Report Stage, allowing for reference to serious non-compliance. That would allow for flexibility, as I have argued in other instances.
There could have been wording that reflected the determination of the commission that it is an issue of grave non-compliance. The term“repeat non-compliance” means nothing.
The word "serious" may cover that.
It is not proposed to accept amendments Nos. 21 and 24. Section 7 as drafted provides that ComReg shall provide a service provider who is in breach of a condition attached to his licence must remedy any non-compliance with or breach of a condition within one month or such longer or shorter period as specified by ComReg.
The advice from the Attorney General is that this provision is adequate for the purpose of requiring a service provider to refund affected customers. The remedy of a breach can include a refund of moneys to all consumers who have been charged for the service that is the subject of the breach. The obligations on service providers with regard to refunds and the mechanism for making such refunds can be set out in regulations made by ComReg under section 5.
In addition, the code of practice to be drawn up by ComReg in consultation with the industry can provide a mechanism for the making of refunds as is provided in the current RegTel code of practice, which is non-statutory and dependent on the co-operation of the service providers. The Bill provides that compliance with this code of practice shall be a condition of the licence and, hence, binding on all licensed service providers. Service providers that do not comply with this requirement will be liable to enforcement sanctions under the Bill.
Amendment, by leave, withdrawn.
Amendments Nos. 21 and 22 not moved.
Section 7 agreed to.
I move amendment No. 23:
In page 9, subsection (1), line 24, after "with" to insert "or breached".
Amendment agreed to.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 9, subsection (2)(a), line 31, to delete “the proposal,” and substitute “the issue of notification of the proposal,”.
Amendment agreed to.
I move amendment No. 26:
In page 9, subsection (3), line 39, after "with" to insert "or breach of".
Amendment agreed to.
I move amendment No. 27:
In page 9, subsection (3), line 39, after "serious" to insert "failure or".
Amendment agreed to.
Amendment No. 28 not moved.
Section 8, as amended, agreed to.
Sections 9 and 10 agreed to.
Amendments Nos. 29 to 32, inclusive, are related and may be discussed together.
I move amendment No. 29:
In page 10, subsection (1), between lines 37 and 38, to insert the following:
"(d) which is in respect of a service different to that promoted, which involved non-delivery of messages, failure of stop command, no or inadequate price warnings, blank messages or a service incompatible with the handset from which it was requested.”.
The Bill fails to accommodate the range of complaints people have made about these services because they are not just about overcharging. The Minister mentioned the information line that had 20,000 calls. It would be worthwhile to look at the record on that because some of those calls were simply looking for information while there is a range of complaints that are not to do with overcharging but are concerned with a service different from that promoted, non-delivery of messages, failure of stop command, no or inadequate price warnings, blank messages or a service incompatible with the handset for which it was requested.
The Minister can say this is more detail for the Bill but he is providing a lot of detail himself about charges, which is fine, but charges are often not the issue. People's experience is that the service itself is not delivered or there are problems with other features, such as the failure of the stop command. Such experience should be included in the Bill to allow for a range of problems that have arisen.
The research has been done by Regtel and we are now addressing the fact there was no statutory basis to the guidelines. In a way, however, we are ignoring the experience and saying it is about overcharging. It is not just about overcharging, and I hope the Minister will accept an amendment that deals with other issues that have been raised by consumers many times.
The other amendment, which is not related, although they have been grouped together for some reason, states that where a premium rate service provider contravenes section 11(1), which concerns the licence, the commission shall establish a speedy mechanism to ensure redress for the consumer. This is a good and practical amendment that I ask the Minister to incorporate into the Bill. There is too much reliance on the courts and we all know going to court can be lengthy, costly and difficult, as well as time consuming. If there is a simple mechanism, and it has been the case that premium rate service providers have compensated consumers who have been hard done by, in this instance there should be a proactive role for the commission to work out a mechanism that would show how people could be recompensed in a simple way that avoids going to court. Ultimately everyone has the right to go to court, but there should be a simple mechanism within the Bill to reimburse people who have been ripped off to ensure that court is not seen as the first option but the last option.
Amendment No. 31 is my attempt to introduce a requirement for reimbursements or refunds as part of the sanction process for overcharging or breaking the rules. If a premium rate service provider is overcharging customers, to fine him €5,000 is a joke, it must be much more. Under section 11(2), a premium rate service provider who contravenes subsection (1), the overcharging part, commits an offence and is liable on summary conviction to a fine not exceeding €5,000. We are saying they cannot be fined over €5,000, even if there is a significant overcharging breach. We must raise that figure - I have suggested to €20,000 and if there is a massive overcharge, I would ask for even more.
We must send a strong message in this Bill that if a service provider overcharges customers, he can be fined up to a very high figure. A judge may choose to impose a fine on conviction of €1,000 but to place a limit of €5,000 does not reflect the seriousness of deliberate overcharging.
This is the appropriate place in the Bill to state that not only will a service provider be fined, he will be obliged to reimburse any or all end users who have been subject to overcharging. The idea that a service provider would be fined for overcharging a customer but not required to pay the customer back does not allow for justice to be done. Perhaps I am missing a section that requires the end user to be reimbursed. The Minister dealt with it in a roundabout way earlier with his amendment but the place to deal with the reimbursement and refund issue, as well as the appropriate punishment in the form of a fine, is here.
I accept the point Deputy McManus makes in her amendment No. 29 that there is a series of other offences with which we must deal and I do not know whether we should itemise them or give scope in the Bill to deal with a broad range of other issues that do not necessarily involve over-charging. The section as it currently stands is about over-charging through premium rate services. On conviction of that offence the maximum punishment should be much higher than €5,000. It can be much less than that if the offences are minor but the stick should be a big one in that respect.
Surely the principle is just in that if a company is found to have been overcharging and is convicted of that, it will be obliged to refund the consumers who have been overcharged. If the Minister will not accept this amendment I would like him to explain where in the Bill he requires over-charging to be reimbursed to consumers because essentially money has been stolen from them. We should be blunt about that, and we must be tough in this legislation and say that if people have had money stolen from them by a clever marketing campaign, misleading information or the dishonest application of a premium rate service, at a minimum they should get their money back, if not compensation on top of that. The fining of the operator is a separate issue and a judgment call as to how large the fine should be. We are not taking the over-charging issue and the abuse of consumers seriously enough in this section.
To take the questions in reverse order, in subsection (3)(b) of my amendment No. 32, the Deputy will see that provision is included. It states, ”any charge imposed on any end user concerned in the contravention of subsection (1) to which the offence relates be repaid to the end user by the provider”. We are providing for that in my amendment.
If I may answer Deputy Coveney's other concern regarding his amendment No. 31 that there is not sufficient power, I would signal that in the District Court, where such cases will be heard, the maximum financial penalty is a limit of €5,000 but the proposal in my amendment No. 32 effectively gives the court the power to preclude any licensee who may be found to have carried on inappropriately from taking out a future licence. That is a strong power, in addition to the €5,000 fine.
To take the issue raised by Deputy McManus about a speedy response, there is an existing mechanism for ComReg in the principal Act, which is the first Act of 2002, as amended in 2007. That mechanism allows ComReg a speedy redress for the consumer. The particular section provides that if a person who is alleged to have committed an offence remedies, within 21 days of being notified of the alleged offence, to the satisfaction of ComReg, the matter giving rise to the offence and pays to ComReg €1,500, the person will not be prosecuted for that offence. That mechanism applies for all summary offences under the principal Act and will also apply to this section of the Bill when enacted. There is an existing mechanism in the principal legislation governing ComReg which allows it make such speedy recourse without having to go through a non-court mechanism.
It is not proposed to accept amendment No. 30. The purpose of section 11 is to prevent overcharging for premium rate services, charging for services that were not requested or for services that were not supplied. A similar provision is made in the principal Act to which I referred for ComReg in respect of telecommunications services. The issues mentioned in the first part of the amendment are matters that are more appropriately addressed in the terms and conditions of a licence. Where a service provider breaches any of those conditions, the provisions under section 7 apply.
To return to what we discussed earlier, I do not consider it appropriate that a breach of the conditions of a licence should in itself be an offence. It is up to ComReg, using the various mechanisms it has both in this legislation and under its primary legislation, to deal with the particular case.
That is very interesting. I thank the Minister for that reply. I would like clarification because in the Minister's amendment it appears the only time a charge imposed on an end user will be repaid by the provider is where the licence has been revoked and the case has gone to court. That seems to be a restricted area in terms of a guarantee that the end user will get their money back. The Minister said that under the existing ComReg legislation any breach of any regulations ComReg has designed can be the subject of payment where ComReg determines an offence has been committed. The person has 21 days to avoid going to court if they pay ComReg, which is not the same as paying the end user. The Minister might clarify that point.
The provision I refer to applies to summary offences but not to a breach of a condition. That is the difference.
Does the Minister know what the conditions are because he will not put them in the Bill?
That is because, as the Deputy said in her contribution, it is not simple. It is not just a matter of over-charging. A range of different issues arise and ComReg must be given certain flexibility in managing this in the public interest to set out those conditions in the code of practice.
I welcome the Bill. I welcome the fact that ComReg will do this and I have confidence that ComReg is very good at its job but I am concerned that if the legislation does not cover all the angles, ComReg will be unable to protect the consumer. When one goes to court one goes through the whole court proceedings, the licence is revoked, which is the heavy artillery coming out, and the end user gets recompense but in every other circumstance it is not clear to me that there is a simple mechanism in place. The Minister is telling me there is such a mechanism. I did not know that, and I am grateful for the information, but I still do not know whether a person who found that their stop command did not work and they ran into debt as a consequence will automatically be able to get their money back. It is back to poor Joe Soap mentioned at the beginning of this debate. How do they get their money back? Is the Minister saying that if ComReg sets out the conditions and the conditions are all-encompassing the system is in place already and an issue does not arise? I would like reassurance on that because this is the time when we have to deal with the complaints.
The question being asked is whether a consumer has to wait until ComReg takes a service provider to court and gets a conviction before they get their money back or whether there is a circumstance whereby a service provider would say there has been a case of over-charging, we should not have over-charged and we are either required to or will on a voluntary basis pay back the consumer in advance of a court case hearing or whatever. I am not sure if there is a mechanism whereby that could happen. If it is a case of one person being overcharged, having to go to court to get the consumer's money back appears to be a laborious way of doing it.
I welcome amendment No. 32, particularly subsection (b) which, for the first time in this legislation, seems to require that end users will be repaid, although the words “in full” should be inserted to ensure that there is no ambiguity. The idea of a maximum fine of €5,000 is a joke. Consider the cost of going to court to get a conviction. The Minister is introducing the concept of revoking a licence and that is welcome, but in most cases licences will not be revoked unless there is a really outrageous breach. What is required is a very strong signal that overcharging is unacceptable and if one does it, one will be fined, and if one does it to an extraordinary extent, one’s licence will be revoked. However, there is a huge gap between revoking a licence and a fine of up to €5,000, which will apply to most cases. The way to deal with that is to increase the maximum fine to approximately €20,000, and even that is not excessive.
We are providing that if somebody is operating a service without a licence, they can be fined up to €250,000, yet if someone who has a licence is deliberately overcharging their customers, having signed up to a series of licence conditions, the maximum amount they can be fined is €5,000. That does not make sense. Judges should be able to apply fines on conviction across a spectrum, for example, €1,000 for really minor breaches that are genuine mistakes. However, for more serious breaches that will not result in a revocation of the licence we must give the courts more ammunition. I appeal to the Minister to increase the €5,000 maximum limit - that is not a mandatory fine but a maximum - and let judges use their judgment after that. In providing for a maximum fine of €5,000 we are saying essentially that this is a minor offence. It is not, and that must be reflected in the Bill.
I will set out in simple terms the range of flexibility in the Bill. Under section 8, we give ComReg power to revoke, suspend or amend a licence without having to go to the courts. These are commercial operators so doing that has an effect, but it does not involve one in a complicated court system. One can pursue it that way and I believe that will have a very large effect. With regard to a summary offence, it may apply to the section 44 speedy resolution that again avoids it having to go through court procedure or, and this is with regard to the charging area where section 11 applies, they may be able to go to court. The court may decide not to allow the continuation of a licence or require a person to take out a new licence, it may impose a fine and it may require that the overcharging is repaid. There is a range of different mechanisms. The ability not to go to court and just revoke a licence will give ComReg real powers in dealing with commercial operators, who will lose their commercial viability in the absence of a licence. It does not always require a court-based approach.
The Minister is operating on the assumption that the people who are in business are bona fide providers but perhaps there are some who are not bona fide providers and their game is to get involved, get a licence, overcharge, take as much as they can from whomever they can and make a run for the high road. What the Minister is putting to us will not deal adequately with them.
This goes back to a point made earlier. We are dealing here with a contract arrangement that typically has both a network provider and a service provider. That might be an international company which might be more difficult to pursue. However, it is the contractual arrangement that is licensed and ComReg will have the ability to regulate and amend the licence conditions for the network provider as well as for the service provider in circumstances where one cannot pursue the international company.
My concern is that the people who do this move fast and are nimble. They set up a service, overcharge and when they are pursued, they close down and leave. Nobody is able to secure repayment. The legislation is not adequate to pursue people who set up with the wrong motives, which is to take a few euro out of everybody's account in so far as they can. They are nimble and close down before one can catch up with them. Then they start up again under another guise. The legislation is not strong enough to deal with them.
The point is taken. We have seen that with a very small number. The vast majority of people are operating a business in a proper manner. However, what is not mobile is the mobile operator or newspaper or television company which carries these services. The first thing we must do is stop any such services being provided on our communications networks here, and that is something we can pursue.
The Minister cannot pursue the broadcaster.
It is part of a licence agreement. Any such broadcaster and the premium rate service company would be part of the agreement.
The Minister excluded broadcasting.
Not for premium rate services.
The Minister told us that the Broadcasting Authority of Ireland will deal with the broadcaster-----
With regard to the content.
-----and ComReg will deal with the premium rate service.
That includes premium rate services on broadcast media.
That is not what the Minister told us earlier. Is he saying the complaint will be investigated by ComReg if the complaint is about television services?
Yes, if it relates to the premium rate services.
So if the television station is at fault, ComReg will go after the television station or broadcaster as well?
Yes, if it has a licence in terms of the premium rate services system.
There has to be a licence.
So the Broadcasting Authority of Ireland will have nothing to do with it.
The licensing for premium rate services will be regulated through ComReg.
The BAI comes in if there is collusion between the two.
If the broadcaster and the premium rate service are providing something which is defective and a rip-off, is the Minister saying that ComReg will have sole authority to go after both of them?
Yes, with regard to the premium rate service or operation.
In relation to what the broadcaster is providing?
Let us say it is the TV3 play or programme that is on late at night, is the Minister saying that ComReg will go after TV3 or TV5 or whatever one wishes to call it - we will not use an individual case - and the Broadcasting Authority of Ireland will have nothing to do with it?
If it is a licensed premium rate service system, ComReg will regulate the premium rate service aspect of it. The Broadcasting Authority of Ireland deals with quality of content on television and that is a separate regulatory function.
We had a long discussion earlier but the position now appears to be different. The Minister is saying that where a broadcaster is using premium rate service in some way to do with programming, ComReg will have the licensing role for both the broadcaster and the premium rate provider.
It regulates the premium licence.
That may involve the broadcaster, as well as the premium rate service.
It has to include the broadcaster.
Therefore, ComReg will be chasing the broadcaster and the premium rate service where the offence has been committed between the two of them. It has nothing to do with the Broadcasting Authority.
There would be that relationship where there is a contract between the broadcaster and the premium rate service provider. ComReg regulates the premium rate service. There is a connection with the broadcaster, the newspaper or the mobile operator where there is any such contractual connection.
The Minister excluded broadcasting from the Bill.
Not in a premium rate service contract. We are looking at premium rate service regulations.
As regards the definition of "premium rate service", section 1 states:
"premium rate service" means a service having all of the following characteristics:
(a) it consists in the provision of the contents of communications (other than a broadcasting service) through an electronic communications network or by using an electronic communications service, which may include or allow the use of a facility made available to the users of the service.
We went through this at length and I tabled this amendment at the beginning. According to the information the Minister gave us, there would be two regulatory authorities, but in the Bill he has excluded broadcasting. He cannot say now that there is only one regulatory authority dealing with a broadcaster because broadcasting is specifically excluded in a way I do not agree with. I would be much happier with the Minister's second version, which is that ComReg would deal with the broadcaster as just another operator, like a network operator, because of the contractual arrangements between the two. The best way out of this is for him to accept my amendment.
The legislation, as drafted, allows for that to occur. Where there is a premium rate service, ComReg will regulate it. In any such licensed premium rate service where the broadcaster has a contractual connection with it, it comes within the remit of ComReg.
Why does the Bill specifically state, "other than a broadcasting service", if the Minister is treating a broadcasting service in the same way as a mobile phone network operator?
This is completely illogical. The Minister cannot say that because in the Bill he specifically excludes broadcasting. One cannot argue with legislation.
The point on which we are concentrating is that it is a premium rate service and if it is carried on a television service, it is still a premium rate service. Take the example of a television advertisement with a premium rate service, one is regulating the premium rate service which is carried on a television service.
We are not talking about advertising, which is different. We are talking about where a programme is, in effect, built around a premium rate service. It is manipulated in order that lots of money comes to the broadcaster and the premium rate provider. It is great because we all watch television and like to gamble. In that instance, the Minister has specifically excluded ComReg from going after the broadcaster which may be colluding with the premium rate service provider.
The Minister is saying it is not a premium rate service.
No. In that instance, I am saying that if the broadcaster has a premium rate licence-----
How else would the Minister do it? Presumably, one has to have a licence. If broadcasters are to do what they are currently doing, will they need a licence?
To my mind, yes, but one would have to look at the contractual arrangements in each case. I do not have the full details.
The Minister has specifically excluded them in the Bill; therefore, he must have the full details. He is letting them off the hook in a way that is totally unacceptable.
The Minister has gone further than this in the definition of "premium rate service". Will he, please, explain if I am wrong, but my reading is that what is currently being provided on TV3 after midnight or any other television station when people ring to enter competitions and have to pay money to do so is a premium rate service. Under the terms of the Bill, as it stands, the definition of "premium rate service" does not include a service being facilitated by a broadcaster, although we would regard it as a premium rate service. It specifically states as regards a premium rate service "it consists in the provision of the contents of communications (other than a broadcasting service) through an electronic communications network". In other words, if Vodafone is providing the network, it is a premium rate service, but if it is provided by TV3 or RTE, it is not.
It also means that if this stands the way it is, the Minister is facilitating the expansion of a particular area of activity - late night television play programmes - that has been prone to many complaints. The Minister is giving them a gift by excluding them from the legislation. On the one hand, he says they need a licence, but the legislation does not state this.
They will not have to have a licence because it is not a premium rate service under the legislation.
Exactly. They will be protected from being subject to control.
This is complicated and there are variations within it, as I said, where a broadcaster has no contractual arrangements with a premium rate service provider. If a person phones in to a particular show which is operating without any contractual arrangements with a premium rate service provider, that is not legislated for in the Bill. It does legislate where there is a licence with the premium rate service provider and a broadcaster. In these circumstances there is regulation by ComReg.
I am sorry to pursue the point, but we are talking about making money. Television is the magnet or honey pot that draws in people to use a premium rate service. In order to protect the consumer, the premium rate service must be regulated in some fashion. However, the Minister is saying that one aspect, the broadcasting service, is excluded from regulation. The other aspect that he says is included and for which ComReg will be totally responsible is where there is a licence arrangement between the broadcaster and the premium rate service provider. When one looks at the construction of these programmes, it is clear that there is an arrangement between the two. If there is not an onus on the broadcaster and the premium rate service provider to apply for a licence, it will be a free for all. The Minister has not thought this through. He should come back to us with a clear idea of how we can regulate a growing industry based on the connection between a broadcaster and a premium rate service provider. With lots of viewers, it is a perfect way to develop a service and make a lot of money. It is magic; they cannot lose.
The Minister has said this legislation does not cover what we are discussing; why not? In the United Kingdom as many people vote on the "X Factor" every weekend as in elections. Tens of millions of euro are being traded because of a television programme. Someone is benefiting from the running of a premium rate service, yet the Minister is telling us that the Bill does not cover the matter. That is what I gather from what he said. Why is it not covered?
What the Minister is telling us is satisfactory, if it is correct, but it is not consistent with what is written in the Bill. He says that in the general running of a TV show, if there is a competition element, the Broadcasting Authority of Ireland should be involved as part of the code of conduct and ongoing regulation of programme content and quality.
If, however, there is a premium rate service element, which needs to be - and is - defined in this legislation, on television, it is totally flawed to distinguish between carrying that premium rate service on a mobile telephone network or a landline network but to specifically say that if it is being provided through a broadcasting service, it is not a premium rate service. What is being stated specifically in this legislation is that if one provides what we think is a premium rate service on a broadcasting service, whether radio or television, it is not defined as a premium rate service.
While the Minister's interpretation of it is interesting for discussion, what is in black and white here is absolutely clear. If the carrier is a broadcaster, it cannot be a premium rate service in that context and if the carrier is a telecommunications network provider, then it is a premium rate service. If one has the exact same competition on a broadband network versus a television network, and the gaming may be the exact same in terms of its content, prizes and charges, if it is on television it is not a premium rate service, but if it is on one's computer screen or mobile telephone it is. I want to ensure that we are not making a big mistake here, and we need serious convincing that we are not.
As far as we are concerned, this is watertight. We have designed it to be so in order that any premium rate service is covered and the consumer is protected. There are different contractual arrangements that may apply.
For example, one may have an arrangement with a television station and a premium rate service provider where the latter provides a large bulk of the programming. Where there is such a contractual arrangement, it is the regulation around the premium rate service for which ComReg is responsible.
ComReg cannot be responsible for broadcasting in general. For example, on "The Late, Late Show" one might have an instance where someone could ring in and one would have a premium rate number for that. The ComReg regulation is around that premium rate service and it covers all electronic communications systems. Broadcasting quality is a separate issue for the broadcasting authority, but in any instance where there is any premium rate service and where there is, for example, charging, additional charging and the range of different characteristics of a premium rate service, then ComReg regulates that licence and that contractual service.
The Minister has specifically excluded broadcasting. Everybody is happy with what the Minister is saying, except for the fact that the Minister has excluded broadcasting in the legislation.
The way these programmes work is that there is an agreement between the premium rate service provider and the broadcaster. If people are being ripped off, the broadcaster must be held responsible and regulated. If everything is fine, there is no issue. The trouble is that I suspect such programmes will continue to grow and find any loophole they can. It must be regulated.
The Minister really cannot divert off into quality of content because that is not the issue. People love these programmes. They are quite happy with having these programmes. If that is what suits them, good luck to them.
However, nobody is regulating the dangers and the complaints. Some 78 complaints were received and I do not believe any of them will be dealt with unless we ensure in this legislation regarding the next 78 complaints that when a broadcaster decides to go down that commercial road, it is governed by regulation in the same way as any network operator will be. It is grossly unfair anyway.
The Minister just stated they are not.
I am sorry if I caused confusion earlier. They are covered in this area. If there is a contractual arrangement between the broadcaster and the premium rate service provider, then that is a single contract which ComReg regulates.
Is the Minister missing the point? It is not a premium rate service provider because in the Bill this definition excludes broadcasting.
Going back to what I was stated on an earlier amendment, both parties to the contract, the network provider and the service provider, are regulated.
The network is the television company in this instance.
No, because the Minister has excluded broadcasting.
It is not. That is where the Minister is wrong.
It is a contract between a broadcaster and something else which is not a premium rate service provider because a premium rate service provider in this Bill is one that excludes broadcasting.
Is Deputy McManus referring to a joint venture between a premium rate operator and the broadcasting company, that they are on the one side?
They are on the one side. They have a contractual relationship.
It is where it is a joint venture.
Under this Bill it is not a premium rate service provider.
It is where the relationship is between the broadcaster and the premium rate service provider - it is a joint venture.
To be helpful to the Minister, the broadcasting of the programme might not be the issue. It is the ringing in to the programme that is the issue. It is possible to interpret the Minister's interpretation of a premium rate service as saying it is covered because in order for someone to make a payment associated with a television show, he or she must make a telephone call. It is that telephone line that is covered in terms of telecommunication. If one calls in via a mobile telephone, telephone line or e-mail, that is an electronic telecommunications transaction, and, therefore, that allows the premium rate service to be covered by the legislation. It is not to do with the broadcasting element of the show,-----
-----but to do with the communications element of the show which involves a telephone line, whether it is a wireless one or not.
May I give another example where there is a slight divergence?
I will finish my point on it. I am trying to be helpful and trying to understand. If ComReg covers the telecommunications element of a show like that, there still needs to be a consequence for the broadcaster who is knowingly facilitating the process. Just to be clear, if TV3 - I use TV3 as an example because that happens to be a broadcaster in Ireland that is under discussion - is facilitating the show, who applies for the licence? If it is a TV3 advertised show that motivates people to ring in, and ComReg has a role in regulating the telecommunications connection which allows it to have involvement because it is a phone-in, an email-in or a text-in show, but it is still being advertised and marketed as a TV3 competition, is the broadcaster required to be involved in the licensing process or is it an agent who is attached to the broadcaster, is providing the telecommunications element of the competition and is required to apply for the licence? The broadcasting and signalling around broadcasting is not the issue here, but broadcasters are still central to the provision of the show and the platform, and that is where there is some confusion.
In this instance, not just the broadcaster. There may well be a licence that involves the broadcaster, the telecommunications company because it is giving a number and the service provider. There could be three parties at least involved in that regard. They are all involved in terms of the licence conditions and agreement.
Returning to my earlier point, if the Minister has excluded broadcasting, who regulates the broadcaster in that triangle that he described?
We have not excluded the broadcaster in that triangle. The broadcaster is included under the licence obligations, conditions and agreement, and the service provider is one of that chain.
This could be challenged in court.
The Minister has received advice and is trying to convince us in respect of it but he is not succeeding. If this is challenged in court, the only line which will be read out is that which reads that the broadcaster is excluded. The fact that the Minister and his officials are clear in their minds on this matter will not cut much ice.
What is the positive motivation behind including the phrase "other than a broadcasting service"? What problem does that solve? The Minister clearly decided to include the phrase to which I refer. Is it to allow broadcasters to hold competitions, song contests, etc?
No. Let us consider, for example, "The Late Late Show" which incorporates a competition, whereby the host rings a viewer at the end of the programme. ComReg will not regulate the entire show. I wish to highlight a slightly different example. There are two regulatory aspects to this matter. All sorts of advertisements could be broadcast on some of these late night shows which people can telephone or to which they can text. Advertising codes and standards are the responsibility of the Broadcasting Authority of Ireland, while the premium rate services codes deal with that commercial transaction to which I refer. These are two examples. The phrase "other than a broadcasting service" is used because we are not regulating entire programmes, rather we are regulating the premium rate service aspects to them.
We are not referring to "The Late Late Show", rather we are discussing programmes that are deliberately constructed in order to create the commercial activity of the premium rate service provider and the customer. The broadcaster must be held responsible if that commercial activity constitutes a scam.
The broadcaster would be held responsible. As part of the chain to which I referred, the broadcasting company, the telephone company and the service provider would all be liable.
If the Minister tried to argue that point in court, he would be laughed out of the place. Perhaps we should return to this matter on Report Stage.
Definitions are provided with regard to what constitutes a premium rate service and a premium rate provider. When we state it is not a broadcasting service, we mean the premium rate service relates to that aspect which involves the use of premium rate services such as higher cost telephone lines. The provider can constitute everyone involved. This could be a broadcaster, a telecommunications company, a newspaper or any other body connected with the contractual arrangement entered into. That is where the difference is.
The driving force behind these programmes is the premium rate service provider. The programmes to which we are referring are designed to create commercial activity. If the Minister were to go up against Mr. Michael McDowell in court, I would not put money on his chances.
I would be quite happy to debate the matter with Mr. McDowell. The legislation is drafted in a way which ensures every premium rate service application will be covered. The provision which sets out who is the provider allows the Department and ComReg the flexibility to deal with anyone involved in a contractual arrangement.
We could discuss this matter at great length. I request that the Minister seek the Attorney General's advice on the specific point I have raised. We all want to ensure this legislation is robust and the Opposition will not, in so far as is possible, place obstacles in the Minister's way. However, a legal question has arisen on which he should consult the Attorney General.
I will obtain legal advice on the matter.
Amendment, by leave, withdrawn.
Amendment No. 30 not moved.
I move amendment No. 31:
In page 10, subsection (2), line 40, to delete "€5,000" and substitute the following:
"€20,000 and shall be obliged to reimburse any or all end users in full as appropriate under subsection (1)(a), (b) and (c)”.
Before Report Stage, will the Minister consider increasing the maximum potential fine from €5,000?
Not even Michael McDowell could do that. It is a court limit.
Am I not correct in stating such limits are set down in legislation? Limits of €50,000 and €250,000 were set in section 10.
As I understand it, those limits relate to indictable offences. The limit for the offence contemplated under this section - a summary offence that will be decided upon in the District Court - is €5,000.
Therefore, we cannot legally increase the fine.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 10, lines 41 and 42 and in page 11, lines 1 to 7, to delete subsection (3) and substitute the following:
"(3) Subject tosubsection (4), where a premium rate service provider is convicted summarily of an offence under subsection (2), the court may, on application to it by the Commission, after having regard to the nature of the offence and the circumstances in which it was committed, order that—
(a) the licence, or all the licences, held by the licensee be revoked and that the former licensee be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new licence or a particular type or class of new licence, or
(b) any charge imposed on any end user concerned in the contravention of subsection (1) to which the offence relates be repaid to the end user by the provider,
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
I move amendment No. 33:
In page 12, subsection (2)(a), line 9, after “providers” to insert “and members of the public or user representatives”.
Section 13(2) relates to what the commission shall do before publishing a code of practice or any part thereof. Section 13(2)(a) states the commission “shall publish in such manner as it considers appropriate a draft of a code of practice or sections of a draft code of practice and shall give premium rate service providers one month from the date of publication of the draft code or sections of the draft code within which to make written representations to the Commission”. Essentially, what is involved here is a consultation process into which the Commission will enter in order to elicit views on the code of practice prior to its publication. Amendment No. 33 suggests that not only should service providers be asked for their views on the code of practice but that members of the public or user representatives should also be consulted. This would ensure a troubleshooting exercise in respect of the code of practice would be carried out with premium rate service providers and that consumer representative groups would also have an input. It is important that the likely target audience should obtain an equal hearing to premium rate service providers during the process to draft and finalise a code of practice.
I cannot accept the amendment. Section 13(1) provides for public consultation with other regulatory bodies and interested persons by the commission before it prepares and publishes a code of practice. Other regulatory bodies could include the National Consumer Agency, the Advertising Standards Authority and any other body which represents the interests of consumers and the public. It is during the preparatory stage of the code of practice that the views of these parties are most effectively taken into account by the commission. Once the code has been drafted and prior to publication of the final version, section 13(2) provides for consultation with the premium rate service providers.
I know that. However, it is that point which I am contesting. There is a consultation process that will be entered into while the code of practice is being developed. When the draft code has been brought forward, the only entities consulted will be premium rate service providers. This process should be slightly broader in nature. It is not a hugely important point but we should make the case in legislation that users are as important as, if not more important than, the providers of services. There should be an opportunity for consumer groups or anyone else to have an input which might lead to the code being improved before it is finalised. This could be done quite easily. For example, a draft code could be published and a period of time provided - this is being done in the case of premium rate service providers - in order that comments might be made on it. This would ensure we would get the code right. In addition, users such as those to whom Deputy McManus referred who have been abused by service providers would have the opportunity to state the draft code did not cover the abuse to which they had been subjected and that the position should be checked.
The point of having a consultation process is not to put in place a code that is workable for service providers alone. Such a code must work for said providers but it must also protect consumers. In this section, however, only the views of the premium rate service providers are being sought on the draft code of conduct. I do not understand why it is being limited to the service providers.
Initially, the consultation process will involved the wider public and the relevant interested bodies. It will then include those involved in the industry. The commission will listen and amend the code as it sees fit. Under section 13(3), if someone is unhappy with the code, he or she can seek an amendment. The code is not the end of the line or a process. The Deputy is concerned that those involved in the first consultation will not have a clear indication of what the final code will be.
My concern is that many will not bother with the first consultation. The time people will engage is when the Minister says, "Here is the draft code. What do you think?" That is when the public will take an interest. Unless people are working for a regulator or service provider or have a specific interest, they will not even notice that the consultation process for drafting the code of conduct has been initiated but if a draft code were published and comments invited for, say, one month, that would be valuable. This sector will experience unexpected problems because it involves telecommunications, technology and scams that are changing all the time. By publishing a draft code and asking for views, including those of consumer bodies, within a tight timeframe, victims of abuse and those working in the industry will have an opportunity to say it is not right or that it should be tweaked and it will be up to the commission to accept or reject the suggestions on their merits. I do not know what is the problem with that approach.
I have been involved in one or two consultation processes and wished I had been involved at the beginning. Sometimes if one comes to something late, one does not have as much influence, especially if it is set from the beginning in a certain direction and a different perspective. It is better to engage in wider consultation first to at least ensure there will be a check in place later. I take the Deputy's point but the broad structure proposed is a better approach. I will make sure someone is not prevented from coming in at a later stage when the code has been drafted. Although it is not a likely outcome, I acknowledge the fear that something could change or subvert the original consultation. I might examine this matter and come back to the Deputy on Report Stage.
That would be great. I do not oppose wider consultation at the beginning but section 13(2)(a) states the commission will “give premium rate service providers one month from the date of publication of the draft code or sections of the draft code within which to make written representations to the Commission in relation to the draft code...”. I propose that anyone else who wishes to do so should be allowed to make a written submission. I have no difficulty with the other provisions in this section.
I will examine the matter before Report Stage.
Amendment, by leave, withdrawn.
Section 13 agreed to.
I move amendment No. 34:
In page 13, paragraph (a)(ii), line 7, to delete “substituting” and substitute “inserting”.
Amendment agreed to.
Section 14, as amended, agreed to.
Section 15 agreed to.
I move amendment No. 35:
In page 15, lines 40 to 45, to delete subsection (2).
I feel strongly about this issue. We need to learn the lessons of past mistakes when new bodies were set up and existing structures amalgamated. When the HSE was set up, it was provided for in legislation that no staff member of the then health boards would lose his or her job and pay levels would not be reduced. In other words, for the sake of industrial peace, the Government stated everybody's working conditions and pay would remain the same or increase. As a result, the HSE has between 2,000 and 3,000 middle managers it does not need, according to its chief executive.
Section 16(2) which provides for the transfer of Regtel staff to the commission states:
Subject to the consent of the Minister and the Minister for Finance, a person transferred undersubsection (1) shall not while in the service of the Commission receive a lesser scale of pay or be subject to less beneficial conditions of service or less favourable tenure of office than that to which he or she was entitled or enjoyed immediately before the appointed day.
The commission should be set up in the most efficient way possible. It must be ensured Regtel staff are treated fairly and I do not suggest for one minute that should not be happen. While I accept the consent of the Minister is required, I am uncomfortable with the principle outlined in the subsection because it has led to problems in the past. Our job is to put in place a new, efficient commission to do a job in this area and while the staff, skill and pay levels should be appropriate and fair, they should also provide value for money. This is, first and foremost, our obligation because the taxpayer will pay the salaries. This provision will understandably be welcomed by the employees of Regtel but the section is unnecessary because they have rights under employment legislation and I do not see why they should be treated differently from the staff of other agencies which merge and have protection of employment law in that context. This is about human resources, not policy. I do not want to put the Minister on the spot but we need to learn lessons from the mistakes of the past.
I disagree with the Deputy. He can have his views but the difficulties we had with Regtel related to the lack of legal powers, not the work of the staff, and this issue is being addressed in the section. We are giving people the legal powers they have found wanting. Regtel was open in stating it did not have sufficient legal powers. On finding this out when taking up office, I wanted to make sure they were provided. One would not want to lose the experience built up by staff dealing with the industry. Regtel is a small body with only eight employees, unlike the HSE and other bodies. They have worked well in difficult conditions. We are giving staff the wider legislative support available within ComReg to get on with the job in a much more effective way.
I do not disagree with the Minister's comments. Regtel has done a good job with the resources it has had to date. We outlined the number of complaints it had to deal with and the fact that it needed more powers and support to do the job it was doing. That is not the issue I raised. I referred to the principle underpinning the section. Regtel staff will be transferred to the commission and, therefore, two bodies will be merged. The commission will need the expertise of the Regtel staff, as they have the skills to deal with the issues covered by the legislation but I am uncomfortable with the principle of ensuring everybody keeps his or her job and pay levels when two bodies merge, even where there is an overlap of functions.
This is not to demean anyone who works with Regtel. The numbers involved in the transfer are small, but the point needs to be made. The reason we are bringing Regtel into the commission is to try and bring more co-ordination to the issue. If there is overlap in terms of staffing, the taxpayer should see the benefit in terms of reduced expense. I do not think the section is necessary because we need the skill level of Regtel people in the commission to deal with the legislation, and perhaps we need even more of them. Also, people already have the protection of employment law. Why are we going beyond that in a way that would not apply in the private sector?
I take the Deputy's point and may have misunderstood him slightly earlier. I agree with his point that in general where we are amalgamating agencies, which is what we are doing here, we must look and see what real efficiencies we are gaining. In this particular circumstance, when one looks at the volume of queries, the scale of the expansion of these types of premium rate services and at the difficulties this causes, not just for individuals but for the telecommunications and other industries, it is right for us to transfer the staff being transferred. They will have to work within ComReg in a new fashion and there will be efficiencies. Some of the efficiencies may transfer into ComReg's operation, but we will have to wait to see if that happens. In this instance, when I looked at the scale of the organisation and the task that is involved, I felt it appropriate to move people.
I agree we need to move the people. We may even need to take on extra people to deal with the increasing volume in this area, because the number of complaints have increased massively over a two to three-year period.
I do not know whether the Minister is avoiding my main point. This is not about the eight staff in Regtel. It is about putting a principle into legislation. This would, in an effort to keep the peace, provide that when State agencies are amalgamated, staff would be told they would all keep their jobs and their scale of pay and they need not worry on that score. That defeats the whole purpose of amalgamation from the efficiency point of view.
I do not agree with that principle. Under the transfer of undertakings regulations of 2003, there is a requirement that when a public body is being moved into another public body, that should be set out in this legislative format. I agree that as we start to do this - this is one of the first such amalgamations of agencies - we must be very careful that we do not just maintain thestatus quo and move people from one place to another without getting efficiencies. However, I do not see anything in this legislative provision that restricts ComReg in its new operations from operating in a different or more effective way. I believe the staff provision made in this instance will be put to good use. I am working within the existing regulations and did not see a need to change them in this instance.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Section 17 agreed to.
Amendment No. 36 has been ruled out of order as it is outside the scope of the Bill.
Amendment No. 36 not moved.
Question proposed: "That section 18 stand part of the Bill."
This section has been the subject of much discussion with the Deputies opposite. It is my intention to bring forward on Report Stage amendments to this Bill which will amend Part 5 of the Communications (Regulation) Act 2002. The overall aim of these amendments is to facilitate the National Roads Authority making available State owned ducting on national roads, including motorways, to enable the roll-out of high speed fibre networks to the regions. The amendments will enable the NRA to set conditions which will balance the needs of telecom operators with ensuring the safe operation of the national roads. It was my intention to introduce these amendments on Committee Stage, but owing to some late policy and legal issues that had to be resolved between my Department, the Department of Transport and the Attorney General's office, this was not possible. It is my intention now to bring forward these amendments on Report Stage in the Dáil.
I thank both Deputy McManus and Deputy Coveney for their co-operation in seeking to assist in the submission of these amendments today. I understand it is not possible to have a detailed discussion on the amendments today, but I would like to set out in general terms the main provisions of the amendments that I intend to bring forward on Report Stage.
The proposed legislative amendments will provide for the NRA to be designated as an authority for national roads, enabling it to grant consents to and set conditions for network operators to access ducting on national roads and motorways. The local authorities will remain the authority to grant consent to network operators in respect of local and regional roads.
In addition to the general provision to set conditions for consent, it is proposed to provide for conditions in legislation that are necessary to ensure the safe operation of the roads. These conditions include that any losses and liabilities the road authority incurs from a third party which are caused by any act undertaken by the network operator can be passed on to network operators; in cases where ducting assets on national roads are provided and made available by an authority to a network operator, the authority will not be liable to that network operator for any loss or damage caused to the electronic communications infrastructure unless it was caused by gross negligence or wilful neglect on the part of the authority; and the authority will be allowed have representatives present during works to supervise compliance.
A provision is to be included that will allow for a return to be made on the use by network operators of State-owned ducts. To this end, the proposed legislation will provide for the NRA to make a scheme whereby it can impose charges for the use of State-owned ducts, subject to the approval of the Minister for Transport following consultation with the Minister for Finance and the Minister for Communications, Energy and Natural Resources.
Under section 53 of the 2002 Act, network operators do not require the consent of a road authority to carry out emergency roadworks. For safety reasons, it is proposed to amend this by placing a requirement on network operators to apply to an authority for consent to carry out emergency roadworks with a requirement that the consent is to be granted as soon as possible. Section 55 of the 2002 Act deals with cost apportionment for relocating electronic communications infrastructure owing to road improvements. The 2002 Act provides that where a road authority undertakes roadworks, it pays to a network operator all reasonable costs incurred by the operator in relocating its infrastructure. It is proposed that this provision will be retained. However, it is intended to include a provision that the NRA will not incur any costs relating to the relocation of network operators' telecoms equipment in State-owned ducts on national roads.
While there are other consequential minor textual amendments included, the amendments referred to represent the most significant changes to the Bill as is. I believe these changes will greatly streamline the process for getting access to ducting running along national roads and motorways for telcos. The proposed changes seek to strike a balance between the need to encourage and facilitate greater investment in broadband roll-out with the need to ensure our road network is managed and operated in a manner that ensures the highest possible safety standards for all users. Furthermore, these changes are also in line with the policy goals around establishing a one-stop shop aimed at pulling together the various disparate pieces of State-owned ducting infrastructure into a more cohesive, seamless and cost-effective network. I look forward to debating and discussing these issues in detail on Report Stage.
I would like to signal that when introducing this amendment to Part 5 of the 2002 Act, I also hope to introduce a new Short Title to the Bill to change it to the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Bill 2009.
The Minister is covering all ducts in the road.
The Parliamentary Counsel will also split the Bill into three parts for Report Stage: preliminary, premium rate service and electronic communications infrastructure. I hope those ducts take off.
If I opposed what the Minister is trying to achieve, I would be an awful hypocrite because I have been calling for this for a long time. This is not the ideal way to do it, but I am happy to facilitate the Minister because we have empty ducts that are capable of carrying telecommunications infrastructure throughout the country. Most of the recent NRA projects have empty ducts in the middle of dual carriageways and motorways that currently cannot be accessed by anybody, which is a farce when people are looking to lay fibre and cable to improve our telecommunications infrastructure. I strongly support this principle and I am happy to facilitate the Minister in any way to ensure this happens quickly.
The Minister has raised the issue of the one-stop shop and I support this principle although I would like him to go further. The Fine Gael Party position is that we would like the Minister to put all of the State-owned broadband infrastructure, whether ducts to carry fibre or existing fibre, into the ownership and management of one State company which would drive the development and roll-out of broadband infrastructure, primarily wholesale broadband infrastructure, for use by private operators. This would be proactive on the part of the Minister rather than allowing lots of different State bodies, both agencies and State companies, to continue to operate State-owned assets in an unco-ordinated way. Iarnród Éireann, Bord Gáis, the ESB, the National Roads Authority and e-Net, through the metropolitan area networks, all manage State-owned infrastructure in isolation from each other. Even a one-stop shop that could inform users of what the State owns and who manages it is still not a sufficiently focused approach as deciding to put a new company in place to acquire from the above-mentioned bodies State-owned infrastructure and manage and co-ordinate what the State owns in a more progressive way. I ask the Minister to think about this proposal as we are not talking about the Bill directly at this time and this amendment is not being taken.
I am willing to support the principle of the long amendment in my name and that of Deputy McManus although I might make some suggestions before Report Stage about some elements of it. I would be slightly concerned at what the Minister is saying about increasing the onus on network providers to access road infrastructure by doing away with the way leave which they have currently and requiring consent from local authorities who may impose conditions. The danger of this provision is that funding for local authorities is a problem at the present time and this provision could be seen as an opportunity to raise money. We need to ensure we are not increasing the cost for network providers of laying infrastructure by adding a new layer of bureaucracy between their application and permission from a local authority. I have been a member of a local authority, the largest in the country. I know the process by which roads are opened and closed and the fact that sometimes the work is not completed properly and the local authority has to chase after the service provider who has put a bond in place. It is a long, messy process.
Whatever new conditions are put in place requiring service providers to obtain permission from local authorities, I ask the Minister to ensure this will not increase the cost for service providers. I agree it must be ensured that roads are reinstated properly to avoid sunken drains along rural or urban roads. I ask the Minister that whatever he decides, he should not make it a time-consuming or expensive application process for the opening of a road for telecommunications service providers. The last thing we want is to make the process more difficult and more expensive as this infrastructure needs to be rolled out quickly.
On the question of the existing ducting, I am pleased with the language used that there will be no discrimination against network operators and that this is open access for everybody. That is how it should be. We should be introducing regulations that require open access to all ducting, whether privately owned or State owned. My initial understanding was that this was just about opening up State-owned ducting so that people could either pull through or lay fibre cable. However, it is becoming more than that now. I am a big fan of open access to infrastructure to avoid duplication of infrastructure and so that every euro spent in laying broadband infrastructure is creating new infrastructure rather than wasting capital investment on duplication. If there is space for an extra fibre or two in ducting already in the ground, that ducting should be provided, whether it is privately or publicly owned.
I refer to countries such as France where access has been provided to both privately and State-owned ducting to telecommunications network operators. This was quite a controversial move at the time but it had a very positive impact on the market. Rather than forcing people to share fibre, they could lay new fibre in the same duct where space permitted. For example, the metropolitan area networks are laid in ducts around 83 towns. Access to this ducting should also be open to anyone else wishing to use it for cable television and broadband or for laying fibre-optic cabling to enhance a service.
I welcome the Minister's thinking and I will just sound some notes of caution. I ask him not to make it more expensive and more bureaucratic than it is already to lay infrastructure and to access public roads. If the very name of this Bill is to be changed to debate this concept and change the law in this area then we can go further by opening access to infrastructure and also co-ordinating State-owned infrastructure in a more proactive way by way of the one-stop shop. I apologise to the Chairman for labouring the point.
Deputy Coveney has covered a lot of ground, both overground and underground. I do not intend to do so but merely to comment that it is a most unusual if not unique situation that at the end of Committee Stage we are discussing an amendment which we have not seen and which will be presented on Report Stage. I ask the Minister to furnish members with the amendment and that information as swiftly as possible. I note it was agreed at Cabinet yesterday because I raised the matter with the Taoiseach.
It is worth noting that this is really not the way to do legislative business. Although, like Deputy Coveney, I am very supportive of what the Minister is doing, I have concerns about the way it is being done. It was referred to in the explanatory memorandum attached to the Bill but there was nothing at all in the text of the Bill when published to allow people peruse, examine and scrutinise it. We are talking about significant matters to do with money, fees, construction, State ownership and public private partnerships. There is a lot involved in this Bill. From that point of view it is not satisfactory that even on Committee Stage we were not able to address it in a comprehensive way.
Deputy Coveney and I submitted the Government amendment we had received to assist the taking of Committee Stage, and I know the Minister appreciated it. However, it is worth pointing out that this amendment was ruled out of order as not being germane to the Bill. I am not sure that changing the Title of the Bill ensures it is germane to the Bill. If it is not within the scope of the Bill from our point of view as Opposition Members, and we are all equal here, how is it that a Government party Deputy can table an identical or similar amendment and it is found to be within the scope of the Bill? I find that somewhat puzzling. From time to time I have been severely critical of the arrangements whereby amendments by the Opposition are simply ruled out of order. That is the diktat from above and we are completely powerless to do anything about it. However, when the Minister does something that is not within the scope of the Bill, presumably it will be accepted on Report Stage. There is something very peculiar about that. Be that as it may, I would like to see the amendment as early as possible.
In principle I am very supportive. I appreciate that the Minister is trying to move things on, which we all want to see particularly at a time when broadband is still so problematic.
I will not go into detail because we will need to save that for Report Stage and I do not want to fall foul of the legislative procedures and so on.
The problem is we do not get much time on Report Stage.
We will give this time because it merits discussion.
Is the Report Stage debate not limited?
There are some issues to which we need to return to clarify, especially the thorny issue of service provider versus service itself in terms of premium rates. However, I do not believe that is very contentious so I hope we can come back on Report Stage on the amendments I am signalling today. We are not in disagreement on the attraction or the economic imperative for us in providing access that is as wide as possible to State ducting along infrastructure to provide broadband, especially to the west, north west, south west and south east.
In answer to Deputy McManus's point, as Minister I have the ability to introduce such an amendment. By working through the Bills Office I hope we can meet all the necessary legal criteria. I appreciate the Deputies opposite being innovative and flexible in trying to get through it on Committee Stage. I was also frustrated that we could not do it. I would have preferred to have been able to debate it in some detail on Committee Stage.
We have a policy of providing open access. The nature of this evolving network is that the more open the access is, the more effective and better it will be for all concerned. For the providers themselves, an old-fashioned model involving a direct connection with the telecommunications customer and the provider handling the retail-wholesale arm itself is now ending. A more collaborative open access model is the way forward. Our provision of ducting will need to be done in that open access way. We also need to maintain and encourage competition. Competition is starting to work. Recently we have seen Ireland become the first country in Europe with a widespread WiMAX deployment, which is very significant in terms of a new technology providing real options for people. In recent days we have seen a cable company committing to 100 megabit connectivity on a fairly widespread basis. That competition between different sorts of providers is starting to work. In doing this we need to be careful to meet the two criteria of continuing to promote competition while also providing open access, particularly to State-owned infrastructure ducting.
We can come back to these details when we have the amendments. I will send them to the Deputies as soon as they are finalised. With the help of the Bills Office and the committee system I hope we will be able to get it included on Report Stage at which point we can debate it.
Will the Minister consider before Report Stage the issue of open access to all ducting? He should review what was done in France which I believe is the country that did so most recently. It did it approximately two years ago. He does not need to give a comprehensive answer now. I believe we may be able to agree on this matter. The only exception may be cable. Ducting for cable is a much more difficult area for which to require open access. I would like to see that area also addressed. Certainly Eircom owns ducting and the same is true for BT and the MANs. Where there is space in ducts we should require open access just as we should be requiring open access to and sharing of mobile phone masts. It would be something more proactive that we could do and would be more comprehensive than open access to State-owned ducts.
I am constantly saying our model for development of telecommunications should be both collaborative and competitive. I accept that is a strange combination. There are certain contract arrangements even regarding State ducting in some instances and it is not possible to revoke contract arrangements. I will review the matter and come back to the Deputy. While we will need to work on other areas, this primarily relates to national roads. Given the timelines and the difficulties we have had even getting this amendment into place, I would be slightly wary. While we can come back to other issues in terms of other infrastructure or other access networks, I am very keen to get this in place so that we start to use some of this ducting for a range of different providers.
Question put and agreed to.
Sections 19 and 20 agreed to.
Title agreed to.
I thank the Minister and his officials for attending the meeting.
Bill reported with amendments.