Amendments Nos. 1 to 3, inclusive, 7, 9, 35, 37, 38, 39, 40 and 41 are consequential on each other and may be discussed together.
Communications Regulation (Premium Rate Services) Bill 2009: Report Stage.
I object to the amendments being discussed together. While I have no problem with the vast majority of them, amendment No. 38 is the major amendment we are discussing and I would like the opportunity to take it separately so we can make final remarks on it. It concerns the issue we have been discussing for the past hour in terms of setting up the new role for the NRA. If the House is agreeable to that, it would be useful.
Quite a few of the amendments will be recommitted so we are effectively back to Committee Stage debate, which is pretty open-ended. It is not Report Stage in that sense. For example, we will need to get recommittal agreed for amendments Nos. 1 to 3, inclusive, and amendment No. 38 is also a recommittal. A recommittal is necessary in respect of this amendment as it relates to the instruction to committee motion. The Deputy will have considerable latitude.
To clarify, the debate we have just had was on a motion for recommittal so that the Minister could introduce the substantive amendment we have just been discussing. Does this mean, as we go through each of these amendments, we are recommitting them for the purposes of discussion?
I will be calling on the Minister to move the recommittal. For example, there is provision to recommit amendment No. 1. Assuming the House agrees to the recommittal, we are effectively back to Committee Stage debate, with Committee Stage latitude in debate.
The point Deputy Coveney was making was that, rather than taking all of those amendments together, it would be no problem for the Minister to take amendment No. 38 separately. It is an enormous amendment.
That will create difficulty. The Chair will be disposed to allow the Deputy to make all the cogent points about it. We will proceed. I call amendment No. 1.
Bill recommitted in respect of amendments Nos. 1 to 3, inclusive.
I move amendment No. 1:
In page 3, between lines 12 and 13, to insert the following:
"PART 1
PRELIMINARY AND GENERAL
1.—(1) This Act may be cited as the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2009.
(2) The Principal Act, the Act of 2007 and this Act may be cited together as the Communications Regulation Acts 2002 to 2009 and shall be read together as one.".
Amendments Nos. 1 to 3, inclusive, 7, 9, 35, 37, 40 and 41 are technical amendments which have been made by the Parliamentary Counsel consequential to amendment No. 38 to change the Short Title of the Bill, to split the Bill into three Parts and to re-arrange certain sections of the Bill. As I have already covered the substantive issues in regard to amendment No. 38 during the motion to recommit, I do not propose to repeat them. I will, however, provide a short summary.
Amendment No. 38 amends Part V of the Communications (Regulation) Act 2002. The main purpose of this amendment is to designate the National Roads Authority as the consent-giving authority for national roads, which includes motorways. This is to facilitate the NRA making available its ducting on national roads, including motorways, to facilitate the roll-out of high-speed fibre networks to the regions.
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 that our road network is managed and operated in a manner that ensures the highest possible safety standards for all users. As I have proposed my own amendment, I do not propose to accept amendment No. 39 submitted by Deputy Coveney and Deputy McManus.
As I said, amendments Nos. 1 to 3, inclusive, 7, 9, 35, 37, 40 and 41 are largely technical amendments which have been made by the Parliamentary Counsel consequential to amendment No. 38. I am happy to facilitate the Deputies. I imagine the substantive discussion will be on amendment No. 38 rather than on the technical measures.
Amendment agreed to.
I move amendment No. 2:
In page 3, between lines 12 and 13, to insert the following:
"2.—In this Act "Principal Act" means Communications Regulation Act 2002.".
To deal with the group of amendments as a whole, it is not necessary for me to discuss amendments Nos. 1 to 3, inclusive, 7, 9, 35, 37, 39, 40 or 41. The issue is amendment No. 38 because all the other amendments are as a consequence of that amendment.
On the whole, amendment No. 38 makes some sense and I am supportive of it. The one area where the Minister may consider amending it somewhat is in regard to relocation costs and roadworks. My understanding from the briefing earlier and from reading the amendment is that if a telco has laid fibre in a duct, or put a ducting in place itself and laid fibre, and if the NRA needs to put roadworks in place to either move the road or move the duct, then the NRA will make the appropriate financial compensation for the cost of actually reinstating that ducting as well as laying the fibre. In the instance where the NRA is effectively charging the telecommunications company for laying fibre in its own duct, if the NRA needs to move that duct for whatever reason, such as roadworks, and as a result the telecommunications company is inconvenienced and must move its ducting, the cost of putting the new duct in place must be borne by the NRA. At present there is no financial liability for the cost of relaying the fibre. We may have got the balance wrong and I ask the Minister to look at it. If someone is paying a rental fee for the use of an NRA duct and the NRA needs to shift that duct, and as a result forces a telecommunications company to take up the fibre and relay it in the new duct, when it is laid, the cost should be borne by the NRA so telecommunications companies can have some certainty that when they lay duct there will be some permanence and if there is to be a change, the cost will be borne by the landlord from whom they are renting the space. That may not be possible but it seems to be a sensible approach. If someone rents space and is forced to relocate, the cost of relocation is normally borne by the landlord if the landlord is forcing the change.
My genuine concern is to make it as attractive as possible for private sector telecommunications companies to use State-owned ducting infrastructure, particularly NRA infrastructure, which is a valuable resource that is not being used at the moment. I do not want a situation whereby people feel they do not want to lay fibre in NRA-owned ducts because there may be a plan to shift the road or widen it in the near future and the cost of that may be prohibitive. If someone has a contract with e-Net to use us a fibre in a metropolitan area network and the MAN must be moved, is the cost of relocation and reconnection borne by e-Net? I suspect it is. I do not see why the same rationale does not apply for NRA ducting as it would for ducting owned by a private sector interest.
I have some points to make but it is complicated when we are recommitting such a large group of amendments.
On amendment No. 7, the Minister proposes to delete line 27, "Principal Act means Communications Regulation Act 2002;". Does that mean there is no reference to any principal Act anywhere in the Bill? If there is, there should be an explanation of what that Act is. Why did the Minister need to insert amendment No. 38 even though Deputy Coveney and I had already made the same changes in amendment No. 39? Perhaps there were legal aspects, the whole process has been mysterious at every level.
I agree with Deputy Coveney, there are issues related to compensation. The new section 53(6)(b) states the authority shall not be liable to the network operator for any loss or damage caused to the infrastructure, which is the property of the network operator, except where such loss or damage caused by the wilful act or gross negligence of the authority. Authorities do not engage in wilful acts and gross negligence sounds extreme. If there were a court case, a sharp lawyer could argue on behalf of the NRA that an act was not grossly negligent, even if it was negligent. No life may have been lost. How does one measure these things? What is gross and what is not? If any negligence is proven against an authority, there must be some sort of settlement made. We are talking about vital infrastructure that costs money. I am concerned about the use of the term “gross negligence”. “Wilful” act will not be a common experience but it is very hard to define gross negligence even though one can imagine someone in a digger being negligent and causing a fair amount of damage but not being grossly negligent.
The arrangements that have been cobbled together with the Minister for Transport, because he wants his place in the sun, are unnecessarily complicated. What happens if one or other does not comply? There is a consultation period not exceeding 21 days between the two Departments. What happens if the consultation period exceeds 21 days? Is it taken that the Department can proceed without getting any feedback? Is there a penalty?
The Minister for Transport may draw up guidelines after consultation. The Minister for Transport has no interest in communications, and he certainly has no responsibility for them. The Minister for Communications, Energy and Natural Resources has a lot of responsibility and an interest in making sure this works but the guidelines are being drawn up by the Department of Transport. We want a clear line of authority in terms of devising the safeguards and protections that must be in place. How could such an elaborate system be considered to be the best way forward?
We must see this come into operation quickly, with telecommunications companies able to access a resource they will pay for. It is a revenue gathering exercise but it must be done quickly and in a way that is not unduly bureaucratic.
I support the points made by Deputy McManus. I am reading the list of amendments, some of which relate to the role of the NRA versus the role of a local authority. For national roads, a telecommunications company should apply to the NRA if it wants to dig up the road or use an existing duct. If it is a regional or local road it has to go through the local authority and there is a procedure in place.
We are legislating for the NRA to charge for the use of ducting on national roads. That is fine. Is there any legal provision in this legislation to allow a local authority to charge for the use of local authority owned ducting or is it the same as applies to the NRA? If, for example, a company such as BT wants to roll out fibre to homes and wants to use ducting on a national road from Dublin, it deals with the NRA. If it then goes off the national road onto a regional local road that is the responsibility of Kildare County Council or some other local authority. Is there ducting infrastructure along local or regional roads that is the responsibility of local authorities? If not there should be in the future because when building roads, ducting should be put in place when it is appropriate. Can local authorities charge for the use of ducting infrastructure so people do not have to put in new ducting if there is an existing facility? Hopefully at some time in the future we will open access to Eircom ducting through regulation. If there is local authority-owned ducting, as there should be in some parts of the country, does this legislation allow local authorities to put deals in place with telecommunications companies when they need to use ducting along local roads? If so, did the Minister look at giving the NRA the capacity to deal with telecommunications companies for local and regional roads as well as national roads, where appropriate, in consultation with local authorities?
I could not find the actual section from which I was reading earlier. As I read it, a telecommunications company would not be able to get compensation if something goes wrong on an NRA national primary route if permission had been granted prior to this by a local authority. Perhaps the Minister will clarify because there are instances where, for example, in my constituency, Eircom got permission from the local authority to go under the national primary route. In that instance it was the local authority that gave permission. If something is done by the NRA at some future date, does that mean the telecommunications company does not get any compensation?
The other point, which I raised previously, is that I would be concerned that the NRA can have a representative present. I doubt if the NRA will be able to react quickly if there is a road opening or whatever and works have to be done. However, the area engineer working for the NRA or representing the NRA could be present and it would, at least, speed up that particular element in the whole process. Can an area engineer working for a local authority be classified as a representative of the authority who gives the permission? If that were so it would make things a little more streamlined.
I can answer a number of the points raised. Deputy Coveney's main point, which is a valid one for consideration, is the issue about cost allocation in the event of having to move ducting. The key distinction — he has not understood the provisions and that is understandable — is that the NRA will carry the cost of moving the ducting——
Yes.
——which is the main cost. The cost allocation for the telecommunications company relates to the fibre cable or the other equipment that is actually using that duct. The cost should in all instances be very modest. One is looking at a re-threading of fibre through——
I made that distinction but if it is that modest why does the NRA not take the full cost?
It is because there is a recognition that it would make sense for the people doing the technical, telecommunications company-based work, to cover the cost and also that there would be a modest cost for Eircom in terms of using alternative ducting where civil engineering works are involved in trying to do the work itself. The main cost is on the civil engineering side. The private sector, the telecommunications company, would carry the cost of the threading of fibre through or the relocation of switching equipment or other equipment.
Deputy McManus made a number of different points. In regard to amendment No. 7, amendment No. 2 effectively relocates the definition of the "Principal Act". It is catered for within amendment No. 2. I am informed that the term "gross negligence" is a legal term and there is fairly clear definition of it within the law. Therefore, I understand that wording is there because it is quite a specific term that the courts apply on a regular basis across a range of different areas.
To answer a question on the reason this is complicated legislatively and why it was amendment No. 38 from myself rather than either of the amendments from Deputy Coveney or Deputy McManus that was approved, Standing Orders provide that it is only possible for a Minister to put forward an amendment on Report Stage in this way. The Deputies opposite were facilitating the attempt to get it in on Committee Stage where it was possible but I understand that under Standing Orders, that is not possible on Report Stage. That is why it was in the form of my own amendment No. 38 rather than in any alternative form.
In regard to local authorities, they do have the ability to provide access and to charge. Our cities and towns are full of ducting, much of which runs under roads. There is a mechanism for the local authorities to manage that and to charge. It can only include administrative charges; they are not operating as telecommunications companies. However, there is a measure where such access is provided for.
I will now deal with the last point raised by Deputy McManus on compensation for telecommunications companies in the event of the NRA doing something that would cause them major business disruption and so on. That is where the term "gross negligence" would apply. If through gross negligence on the NRA's part, a loss was accruing to the telecommunications company, compensation would apply.
On the issue of having a National Roads Authority representative present or the nature of the consent, the nature of the process, notification and so on, this will have to operate when we start working it on a pragmatic basis. We must have good protocols that protect the NRA or give it reassurance that it will not have major traffic jams every time one has to work on a repair fault on, say, the M50. One does not want to block the whole M50, so good protocols are needed around how such work is carried out. First and foremost, one has to ensure it is safe. There is a fundamental difference between having a repair truck out on a motorway where people are travelling at 120 km/h, and having it on a local road where they are travelling at 40 km/h or 50 km/h. There is a real need for protocols and procedures that would apply in terms of people working. The telecommunications companies will have to show they are capable of delivering on such standards because of the safety concerns involved in working on the motorway network and the consequences of traffic chaos if we do not get it right on the major roads on our network.
I said earlier that sometimes it is difficult to get agreement across Departments and various different agencies. That is true in the case of any administrative system but the Minister for Transport, Deputy Noel Dempsey, is probably more keen than anybody else to see the ducting being used. He was the former Minister in this particular portfolio and was a keen advocate of us using our State infrastructure. The NRA had been given very clear instructions. It sees the economic benefit to the State of us using this ducting. I do not believe there will be a difficulty in setting up those protocols but that is what we have to do once the legislation is in place. This is done by regulations rather than in primary legislation.
How will ducting owned by local authorities be dealt with in legislation? For instance, if a network operator who is rolling out ducting and dealing with the NRA then moves to a regional road for which a local authority has responsibility, will the existing legislation apply in terms of digging up the road, putting the ducting in place? There are plenty of ducks in Cork at the moment but are there any publicly owned ducts, owned by local authorities and does this legislation facilitate access to them?
I was a councillor on Dublin City Council in the late 1990s. From memory I think the local authority set up such a collaborative system as it was tired of private operators digging up the streets one after the other. I recall when many of the bus lanes were being implemented that ducting was installed at that time. This is done on an open access basis. Those arrangements are made on a local authority basis. The local authorities realise now that economic development and progress in their own areas requires good broadband connectivity and therefore it is a matter for telcos to negotiate with a local authority. They will have to do a deal with each local authority in turn but by and large, if a telco is prepared to provide fibre access into an area this can only be good for economic development in a local area across a range of activities. Most local authorities are aware of the benefits of this infrastructure and will facilitate a flexible approach with network operators. Existing legislation provides for this and this provision will weave in with it.
Are local authorities legally allowed to charge for the use of their ducting infrastructure at present?
As I understand it is an administrative charge.
They cannot make money out of it.
Can the NRA make money out of it? My point is that it is only a matter of time before fibre is rolled out to homes. Either this Minister or another Minister will do it. In my view this is the way Ireland will go in the future. It is crucial that not only do we allow open access to publicly-owned ducting on national roads and ducting available elsewhere in State ownership but we must also facilitate the roll-out of fibre into local and regional roads, into housing estates and ultimately into houses. The only way this can be achieved is either to access Eircom ducting through regulation, build our own new ducting or in some cases, use some of the State-owned ducting.
I have a similar vision regarding the provision of fibre to homes although this will be more difficult in rural areas but this is what we are heading towards. It is equally available on either national or local roads, either via the National Roads Authority or each local authority. The provisions are similar. The charges are not commercially based so that local authorities will not become telcos, as it were; it is for them and the National Roads Authority to provide access to existing State ducting to cover the administrative charges. This legislation deals with both local authorities and the National Roads Authority in a similar manner, depending on the road the telcos are looking to use.
Amendment agreed to.
I move amendment No. 3:
In page 3, to delete line 13 and substitute the following:
"PART 2
REGULATION OF PREMIUM RATE SERVICES
1.—In this Part—".
Amendment agreed to.
Bill reported with amendments.
Amendments Nos. 4 and 5 are related and may be discussed together.
I move amendment No. 4:
In page 3, between lines 18 and 19, to insert the following:
""end user" has the meaning assigned to it by section 11(5);”.
These amendments have been made by the Parliamentary Counsel to provide for definitions of "end user" and "Minister" for the purposes of the Bill.
I would have thought this is the kind of very minor detail that would have been dealt with before the Bill was published. I am a little surprised that this detail is being dealt with on Report Stage.
I am informed they are provided for in the principal Act but this is a reiteration for this particular Bill. It is the nature of the various Stages of a Bill to improve and refine legislation.
Amendment agreed to.
I move amendment No. 5:
In page 3, between lines 25 and 26, to insert the following:
""Minister" means Minister for Communications, Energy and Natural Resources;".
Amendment agreed to.
Amendments Nos. 6, 8, 10 and 11 may be discussed together.
I move amendment No. 6:
In page 3, line 29, to delete "(other than a broadcasting service)".
This is an area where the Minister could make an improvement rather than just changing the name of a Minister in the line of a Bill and calling it an improvement. It seems the Minister has made some effort in amendment No. 11 to deal with the issue that I raised but it does not deal with the issue. The amendment proposes to delete "other than a broadcasting service". It removes the exclusion of broadcasting services from the Bill.
My concern is regarding a broadcasting development known as an "infomercial". A programme which is essentially a money-making scheme for a premium rate service provider is broadcast and the broadcaster benefits from the programme making money. This has been the subject of many complaints and criticisms in this country. Even under the change provided for by the Minister, a broadcaster who colludes with a premium rate service provider to scam the public will not come under the remit of this Bill which is very specific and deals with offences of this type. The Broadcasting Authority of Ireland will deal with the errant broadcaster. The Minister has stated eloquently many times that the broadcasting authority deals with quality of programming whereas this Bill is about ensuring people comply with the law and if not they will be punished. It is hoped that with the improvements put forward by the Opposition, people will receive their refunds. In this instance the Minister is saying that where a premium rate service provider is engaged in this kind of infomercial activity with a broadcaster, the premium rate service provider will be subject to the Bill but the broadcaster will still be off the hook. A Sunday newspaper recently reported that this programme had been the subject of many complaints and that the broadcaster in question argued there were only 12 complaints in total which was regarded as normal. This is grossly irresponsible. The example I cited relates to a person who paid €370 to a service which is essentially a scam. Callers cannot get through, the questions are impossible to answer and the premium rate service provider is able to coin it. Moreover, the broadcaster enjoys a cut.
If we fail to address this activity in legislation, it will grow. It is fine for the Minister to isolate the premium rate service provider — I am delighted he had done so — but he is letting the broadcaster off the hook. Collusion between broadcasters and service providers will make a great deal of money for both parties. The matter must be addressed in the Bill. It cannot be dealt with in the Broadcasting Act as the role of the Broadcasting Authority of Ireland is clear.
The Minister indicated initially that these matters would be addressed in the regulatory structure. Later, he stated the Broadcasting Authority of Ireland would have responsibility for broadcasters, while ComReg would have responsibility for errant premium rate service providers. This is a crazy system for the poor, unfortunate person who tries to have €370 or some other large sum returned as it allows the broadcaster to blame the service provider and vice versa. This approach is unsustainable in terms of consumer protection.
Under amendment No. 8 the proposed structure, under which the Broadcasting Authority of Ireland and ComReg would operate as parallel regulators, would be replaced with a single, efficient and effective regulator. The regulators could learn from each other and pool resources, as required. An bord snip nua and Colm McCarthy have stated unequivocally that this type of approach needs to be taken. It should at least be facilitated, as is proposed in amendment No. 8. I am not forcing the Minister to accept that this must be done.
The Minister has been astonishingly weak in countering the argument in favour of convergence between the two regulators. The relevant technologies are rapidly converging and it is self-evident that the two regulators must work together to ensure the regulatory structures meet the needs of broadcasting and telecommunications. The world is changing rapidly and technologies are developing at unbelievable speed.
The needs of the consumer did not feature in the Bill until Opposition Deputies started to work on it. Customers must be at the heart of the legislation. That the issue of refunds did not feature until Opposition parties tabled amendments is indicative of a mindset which must be eliminated. The legislation is not solely about managing but also protecting people who are vulnerable. The vulnerable account for a disproportionately high number of those who avail of premium rate services.
Broadcasting is a powerful medium and when late night television programmes are clearly money making rackets, it is essential to deal with both parties, the service provider and broadcaster. The legislation deals with only one half of a contract involving these two parties. It is clear, even taking into account the change the Minister proposes, that he is focusing solely on the former and ignoring the latter. Amendment No. 6, by removing the reference to "broadcasting service", would enable us to address this omission because the broadcaster would also be in the tent, as it were.
Concern about this issue was the reason I instigated the legislative process. I was concerned by the letters I received and the number of complaints being made about these types of services. This concern has been confirmed by the type of programming to which Deputy McManus referred. Late one night I watched a programme which promised a major prize of €700 or €800 to viewers who could move two matches and form a new number. This sounded good and I telephoned with an answer. I was asked a simple question, namely, whether Dublin was the capital of Ireland and I answered "Yes". Someone with a lovely voice then informed me that while I had done very well, I would not go through on that occasion.
The Minister should have answered "No". Cork is the capital.
I telephoned again and was asked the nationality of the band U2. When I answered "Irish" I was told I had done brilliantly but had just missed out. This happened 15 times in a row and each call cost €1.50. On each occasion, I was informed that while I had nearly got through, unfortunately I had not quite made it.
The Minister should have identified himself.
While this was taking place, I continued to watch the programme and found out that none of the answers was correct, including the one I had devised. I then decided to stop calling the service but my efforts cost me €50. Deputy McManus is correct that this is a scam by any other name. The reason we have regulatory systems in place is to protect members of the public from these sharp commercial practices.
I do not propose to discuss specific details because the job of legislators is to allow other people to make adjudications on the matter. If a broadcaster is involved in the contractual arrangements or runs a premium rate service, it is subject to ComReg's regulation of premium rate services because it is a party to the licence and service. In such cases of a contractual connection, the broadcaster is, therefore, subject to regulation. In other cases where a programme is not contractually connected to a broadcaster, ComReg's role relates solely to the premium rate service provider.
This raises a further aspect, namely, wider broadcasting policy and the quality and nature of programming, an issue that must be addressed by the broadcasting regulator. We have well defined mechanisms to allow us to pursue what are considered to be inappropriate cases. We must allow the regulators to do this work, provide refunds and make changes to licences, as they see fit.
I do not propose to accept amendments Nos. 6 or 8. Amendment No. 10 is largely technical in nature, while amendment No. 11 is an attempt, following the debate on Committee Stage, to reflect the need for clarity and define the respective roles of the broadcasting service and premium rate service provider. This distinction will be clearly available to ComReg and the Broadcasting Authority of Ireland which will have an interest in this type of programme. We need to pass the legislation to allow the regulators to protect members of the public in a manner they see fit and appropriate.
The Minister stated the broadcaster will come under the regulatory structure to be established under the legislation. I do not see any such reference in the Bill, although I welcome his amendment No. 10 as it at least goes part of the road. The amendment states: "Where a specified premium rate service is advertised or promoted by means of a broadcasting service, it is the function of the Commission to ensure that the premium rate service provider, whose specified premium rate service is advertised or promoted, complies with the conditions attached to the licence in respect of that premium rate service." If, however, a service provider colludes with a broadcaster, only the service provider gets caught and the broadcaster, which has benefited from the scam, may blithely decide, six months later, to engage in this activity with another service provider to see how long they can last before being caught. I expect it would be difficult to prove a case in court.
The provisions do not refer to the broadcaster. This activity cannot take place without the collusion of a broadcaster. I am sorry I did not keep a recent newspaper article about a particular broadcaster which had argued that only 12 complaints had been made about a programme. The suggestion was that seemed to be a small number of complaints. However, if each of those 12 people have been scammed, it is a serious activity for one of our broadcasters to be engaged in. The amendment is welcome and I appreciate the Minister's efforts. I am fascinated that he took the trouble to test the matter himself and good on him for so doing. Nevertheless, it does not deal with the broadcaster, which is a very powerful element in all of this because it is the vehicle that transmits the programme and it is the body people trust. If it was simply a scam in some other form, we would not be as gullible, if that is the correct term. However, the programme is broadcast on television and we tend to trust what comes to us from television. In this case, the broadcaster would get off scot free.
This was an issue——
The Deputy should note we are working within the constraints of Report Stage. This amendment is not for recommittal.
I have not said anything yet.
I understand. I am simply making the point.
I presume I have two minutes or whatever is the allocated time permitted. I recognise the Minister has at least acknowledged the conversation we held on Committee Stage by tabling amendment No. 11. Since the last discussion, I tried the late night service on TV3. Let us be upfront about the broadcaster to which we refer. Even if I had switched to high-definition television, I do not believe I would have spotted the difference, which was the name of the game I played that night. We were asked to pick the odd one out in what appeared to be a very simple game, but, in fact, it was almost unwinnable.
It reminded me of the time I worked as a student in Ocean City, Maryland. Essentially, I worked on a three-card trick gameshow which ripped off gullible Americans who believed they could trust the Irish guy. At the time, they could not. This is the same idea. It attracts viewers because one thinks one is spending a small amount of money. One fails the first time and tries again because it is only a small amount. Before one knows it, one has tried many times with a small amount and all of a sudden it becomes a large amount of money. This attracts young people because each effort costs only a small amount. The presenters are rather talented, persuasive and attractive.
The point Deputy McManus has made more eloquently than I is that whether the broadcaster has hired a premium rate service provider to facilitate the telecommunications application that allows people to telephone in, be charged and participate in a competitive gameshow or the broadcaster decides to provide the service in-house, there is an onus on the broadcaster and we must ensure that it has a responsibility in legislation towards the provision of that service. This is the point we are making. It is somewhat missing the point to state that we should leave the broadcaster out of it because it simply provides the platform and promotion for the premium rate service provider, essentially, to scam people and to suggest ComReg should pursue the premium rate service provider because it provides the technology to do so. There should be a stick such that if a broadcaster knowingly facilitates unacceptable behaviour with regard to premium rate services, it should be liable and subject to an investigation from ComReg. I am not satisfied this is covered in the legislation and I do not understand why the Minister has rejected amendment No. 6.
I know why.
The legislation specifically states "other than a broadcasting service". Deputy McManus appears to know why. I accept the point that at times we must distinguish between the telecommunications provider or the premium rate service provider and the broadcasting platform or broadcaster. At times, the broadcaster may be both entities. In such cases, ComReg should be able to investigate the broadcaster. However, if it does not comprise both entities, the broadcaster has a case to answer. In my view, the Broadcasting Authority of Ireland is not equipped to investigate and this is the problem.
When I stated that I know, I mean that I suspect the reason this is not done is because of the two silos, that is, ComReg and the BAI, Broadcasting Authority of Ireland. The Minister wants no leakage whatsoever such that ComReg would investigate a broadcaster. If this is the case, it is a very myopic view. If a broadcaster is scamming in this way and is party to the scam, then it must be in the frame. Otherwise, this will lead to various let outs and the premium rate service provider could blame the broadcaster because it could claim to be out of the loop. It is very important that there is a unified approach dealing with all parties involved. Finally, I suggest these two boys should get to bed earlier.
It would be interesting to know whether Deputy Coveney had any difficulty getting through.
He did not say.
I also worked in the United States. I recall working in a bar in New Orleans. An identical scam was in operation across the road from it, which I watched day after day. People went in, were ripped off and came out again. It is interesting to hear of the Deputy's similar experiences.
If the broadcaster is in a contractual arrangement with the premium rate service provider, then it is a service provider according to the terms of amendment No. 11 and, in such instances, it would be subject to ComReg. However, if it were not, and there will be such instances, it would be a matter for the Broadcasting Authority of Ireland to regulate whether something is within its broadcasting code of practice, a matter with which the Department is also involved separately. There are mechanisms by which the authority regulates this aspect. This is an appropriate division because one is a commercial, telecommunications premium rate service and must be regulated by ComReg because it has real expertise in that area. The other is a broadcasting standards issue which the Broadcasting Authority of Ireland regulates. This is not a silo approach, it is a clear differentiation. We have been through this debate several times. It is clear to me this Bill provides the mechanism for us to protect the consumer against premium rate scams and that is our primary intention.
Section 1 clearly 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) . . .
One cannot state a broadcaster is a premium rate service provider because, under the definition of a premium rate service provider, a broadcaster is excluded. The Minister cannot state that; it is simply not true.
It not the case where a contractual arrangement to that part——
That is not in the Bill and no one would accept that in court. The Minister has specifically excluded broadcasting. Let us suppose a broadcaster does a deal with a premium rate service provider. If the authority goes after the premium rate service provider, the broadcaster gets off the hook. The first thing it would argue is that it is not in the arrangement. It could argue that it is not a premium rate service provider because of the specific provision in the Bill. There is an ill-logic there, if such a word exists. This is not the case and it is remiss of the Minister to state that it is the case. It is not. The definition of a premium rate service provider excludes broadcasting such that a broadcaster cannot be a premium rate service provider. However, it can do a deal with such a service provider to scam the public.
We are at the stage where we must make a decision on amendment No. 6.
Will the Minister respond to my remarks?
I will allow the Minister to respond very briefly.
Where there is a legal contractual arrangement involving the broadcasting service, then it is part of the premium rate service provider.
It is not.
If it has a contract, it is.
The legislation does not state as much.
The legislation does not state as much. That is the Minister's interpretation, but is states specifically in black and white that a broadcaster is not and that is the problem.
I note the civil servants are nodding their heads, but it is not actually the case.
What is the point in having the words "other than a broadcasting service" if broadcasters are going to be subject to the investigation of ComReg if they are contractually tied to a premium rate service provider anyway? Why are we specifically saying broadcasters are excluded from something if they are only going to be under investigation if they are providing a premium rate service under contract with a premium rate service provider? If that is the interpretation of the Bill then why do we have to state "other than a broadcasting service"? I do not understand why that is necessary. There is no need for the ambiguity.
If I contract a photographer to take photographs for me, that does not make me a photographer.
The definition of a premium rate service provider does include a broadcaster where it is involved in a contractual arrangement for the provision of such a service.
Where is that stated?
It is in the definition of the premium rate service provider.
The definition states "other than a broadcasting service".
That is a different definition.
So we have two definitions. Where is the definition to which the Minister referred? Having two definitions is a funny way to do business.
The definition of a premium rate service provider is "a person who does any or all of the following, for gain:". Paragraphs (c) of the definition states, “packages together the contents of a premium rate service for the purpose of facilitating its provision,”. Where a broadcaster has a contractual arrangement——
The Minister is going too fast. What line is the reference in on page 4?
Half way down page 4, at line 18.
Lines 17, 18 and 19, paragraph (c), under the definition of a “premium rate service provider”.
I thank the Minister.
A "premium rate service provider" means a person who does any or all of the following, for gain and among these is paragraph (c), which states, “packages together the contents of a premium rate service for the purpose of facilitating its provision,”.
Is a broadcaster a person?
Yes. A broadcaster would be considered a person in that instance. In addition, paragraph (f) of the same definition states, “provides the electronic communications service over which a premium rate service is provided, or provides the electronic communications network over which a premium rate service is transmitted”.
Why has the Minister excluded broadcasting?
It is because, as I said, one does have instances where, for example, one could have a premium rate service, for example, as part of a late night show with a prize for a competition based on telephone or text entry. It is not a scam; it is a small part of the programme. One does not want ComReg to become the overall content regulator of the broadcasting service.
Exactly.
It is a difference of opinion in that regard that is at the root of our discussion.
Are the Deputies satisfied? Is Deputy McManus going to——
I do not think the Minister is correct in his interpretation because if one considers lines 10, 11 and 12 on page 4, it is stated that what is termed a "premium rate service licence" means "a licence authorising a premium rate service provider to provide a premium". In other words, a premium rate service provider has to have a licence according to section 4, which is at the bottom of page 5. The reference by the Minister to the definition of a "premium rate service provider" under paragraph (c) is someone who has applied for a licence to do that. A broadcaster will not have done that, so it does not come under that definition. That is why broadcasters take on a hired gun who has gone to the trouble of getting a licence, as broadcasters do not get the licence themselves.
If one is included in the definition on page 4 of a premium rate service provider, then one would have to have a licence.
A broadcaster will not have a licence.
We are on Report Stage.
We are on shaky ground. The Minister has made a mistake.
Michael McDowell will make mincemeat of the Minister.
How stands the amendment?
I wish to press amendment No. 6.
Question, "That the words proposed to be deleted stand," put and declared carried.
Amendment declared lost.
I move amendment No. 7:
In page 4, to delete line 27.
Amendment agreed to.
Amendment No. 8 not moved.
I move amendment No. 9:
In page 4, to delete lines 35 to 37 and substitute the following:
"2.—(1) The Minister may appoint a day to be the appointed day for the purposes of this Part and upon which this Part has effect.".
Amendment agreed to.
I move amendment No. 10:
In page 5, line 14 to delete "section" and substitute "subsection".
Amendment agreed to.
I move amendment No. 11:
In page 5, between lines 46 and 47, to insert the following:
"(2) Where a specified premium rate service is advertised or promoted by means of a broadcasting service, it is the function of the Commission to ensure that the premium rate service provider, whose specified premium rate service is advertised or promoted, complies with the conditions attached to the licence in respect of that premium rate service.".
Amendment agreed to.
Amendment No. 13 is related to amendment No. 12 and is, logically, an alternative to it. The amendments may be discussed together by agreement.
I move amendment No. 12:
In page 6, between lines 29 and 30, to insert the following:
"(e) the potential end users for which the premium rate service is intended,".
Having given consideration on Second Stage to the matter raised by Deputy Coveney I decided it was a useful addition to the section and I tabled the amendment on that basis.
Amendment agreed to.
In order to be helpful I will withdraw amendment No. 13. I welcome the Minister's amendment No. 12.
Amendment No. 13 not moved.
Amendments Nos. 19, 24 and 25 are related to amendment No. 14 and they may be discussed together by agreement.
I move amendment No. 14:
In page 7, between lines 31 and 32, to insert the following:
"(11) The Commission may give a direction to a network operator that is necessary or expedient for the performance of the functions of the Commission, and the network operator shall comply with the direction.".
These various amendments deal with greater powers for the commission. Amendment No. 14 inserts the power to give relevant directions to network operators to deal with matters such as the refusal of network operators to inform their customers about a stop command. That issue has been the source of some complaint where people text in the word "stop" and nothing happens. The relationship of the network operator in terms of ensuring the customer is not being ripped off is dealt with by the amendments.
I am not sure whether I raised this issue on Committee Stage but it is worth itemising now. In amendment No. 16, I suggest that a small number of services might not need to be licensed and perhaps should not be licensed, and should be exempt, for example, an emergency helpline. I refer to a rape crisis centre, a Garda helpline or a women's refuge. That kind of service perhaps should not be included in the formal licensing structure and requirements. The commission could have the power to exempt services on the grounds of public good or public service.
The issue arises also of the network operator. It does not seem to me that there are sufficient teeth in terms of the role of the network operator, for example, to withhold payments or to have an active part in stamping out activity that is undesirable. The commission may direct a network operator to cease to carry the premium rate service concerned. That is an immediate and quick way to end some kind of activity that is illegal and is taking advantage of people, and is the source of a scam or rip-off. If the network operator can be included in the frame in terms of what the commission can do and the powers the commission has, that would be an effective way to deal with such rip-offs.
I do not accept amendment No. 14. There is a need to balance the power of the commission to regulate with the rights of the person being regulated. The Bill, as drafted, strikes that balance. There is certainty as to what is expected of the service provider once it is licensed to provide a service. The proposed amendment would remove that certainty. If the commission wishes to add additional conditions to a licence, it may do so under regulations made by it under section 5.
Amendment put and declared lost.
I move amendment No. 15:
In page 7, line 32, to delete "may" and substitute "shall".
This amendment is proposed following the debate on Second Stage and suggestions from Deputies Coveney and McManus that it be pursued. It will ensure regulations under section 5 will be made by ComReg. Although I am satisfied with the existing section, it strengthens it. ComReg is required to make such regulations in order to discharge its functions under the Bill.
Amendment agreed to.
I move amendment No. 16:
In page 7, line 34, after "section 4,” to insert the following:
"or the class or type of premium rate services which do not require to be so licenced".
I made the point already that there may be some exemptions that do not need to be fully licensed. I imagine it is a very small sector, such as emergency lines and so on. I made the point at the wrong stage in this debate, so I will not repeat it.
The proposed amendment is not accepted. In drafting the Bill, consideration was given to allow ComReg to make an order exempting certain classes of premium rate services from the requirement to be licensed. In order to provide for exemptions from this requirement, the legislation would have to be clear as to the type of service that would be exempted.
In discussions with the Attorney General's office, the advice was that from a legislative perspective, it would be preferable to empower ComReg to specify by regulation which services require to be licensed and the current provision in the Bill was suggested on that basis. This approach will also provide certainty to existing and intended premium rate service providers as to the types of premium rate services for which they will require a licence and will reduce the regulatory burden on the sector.
As the regulator of the sector, ComReg will be in touch with developments in the sector through its association with other regulators and its ongoing engagement with the industry. It will, therefore, be in a position to foresee any new developments which may lead to new types of premium rate services being offered to the public and will have the knowledge and experience to specify in regulations the type of services that need to be licensed.
While the Minister is not willing to accept the amendment, is he saying the commission will still have the power to define by regulation certain services that will be exempt? Is he saying that no services can be exempt?
I am saying it would be for ComReg in issuing regulations to decide.
It can do that.
Yes.
Okay. That is great.
I said the opposite. Rather than in the negative, it would have to specify in the positive which ones require licence.
I understand.
Amendment, by leave, withdrawn.
Amendments Nos. 17, 20 and 21 are related and may be discussed together.
I move amendment No. 17:
In page 7, between lines 42 and 43, to insert the following:
"(2) It shall be a condition of a licence under section 4 that—
(a) the premium rate service provider shall ensure that any service of an ongoing nature may be readily terminated by the user at any time, and in the case of a service provided by SMS, the user may terminate the service at any time by sending “stop” in reply to any SMS received,
(b) where a premium rate service provider fails to comply with paragraph (a) in any particular case, he or she shall refund the user in accordance with and subject to regulations under subsection (1) and shall pay the user compensation in accordance with and subject to such regulations.”.
This goes back to this issue of the "stop". The subject of many complaints was that people found they were being billed for a service which they were not aware would cost them much or which they did not even know they had taken up. It must be easy for a user to opt out of the service and there must be real sanctions if the service provider does not stop the service on demand.
On Committee Stage, the Minister said what we proposed was a bit too prescriptive. I have altered the amendment somewhat to try to allow for that and to allow that all actions would be in accordance with regulations. However, it is a particular issue that needs to be specified in the Bill because it is raised so often. Regtel's experience was that this was a feature in the number of complaints and queries it received.
The proposed amendment is not accepted. Largely along the lines we stated in the debate on Committee Stage, it would not be appropriate to set out the terms and conditions of a licence in primary legislation. Again, the advice from the Attorney General's office is that the type of detail the Deputy's amendment, even as amended, proposes is more appropriate for inclusion in secondary legislation. 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 services. The terms and conditions of a licence, including any requirements in regard to refunds, will be set out in regulations made by ComReg under section 5. The amendment introduced on Committee Stage provides for this.
It was also pointed out on Committee Stage that 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 has been 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.
Amendment No. 20 provides for a power to direct the service provider to remedy a situation which means other people will not be affected. However, I am not clear that it will ensure the person who has been hard done by will be compensated and that the issue will be addressed. There seems to be this concentration on the system rather than on the individual. Since the Minister will not accept my amendment, will he explain how the Bill will ensure that a person who has been taken advantage of will be compensated while the operator is remedying its activity?
I am happy to clarify that if I can. At an early stage, we introduced an amendment to section 5 to ensure the conditions of a licence should include the basis and circumstances in which a refund may be used to end users. In response to the concerns expressed by Deputies McManus and Coveney on Committee Stage and following further consultation with the Attorney General's office, I propose amendment No. 21 in order to remove any doubt that the remedy of any non-compliance with, or breach of, a condition of a licence shall require a refund of charges to any end user of premium rate services concerned with the non-compliance or the breach. On Committee Stage Deputy McManus tabled a similar amendment to this section to ensure refunds and I am happy to introduce amendment No. 21 to cover that issue.
That is fine.
Amendment, by leave, withdrawn.
Amendments Nos. 18 to 20, inclusive, not moved.
I move amendment No. 21
In page 8, line 43, after "breach" to insert the following:
"and to refund any charge imposed by the provider on any end user in respect of any premium rate service that is connected with the non-compliance or breach".
Amendment agreed to.
Amendments Nos. 22 and 23 are related and amendment No. 23 is an alternative to amendment No. 22. Amendments Nos. 22 and 23 may be discussed together.
I move amendment No. 22:
In page 9, line 3, to delete "in case of repeated non-compliance, or" and substitute "for reasons stated in the notification, or".
Following consideration of the points made by Deputy Coveney on Second Stage, the amendment has been agreed with the Parliamentary Counsel. It will enable ComReg to stipulate a shorter period than one month within which the service provider must remedy a breach of a condition for reasons other than for repeated non-compliance. The amendment strengthens this provision and I am happy to include it at this stage.
Amendment agreed to.
Amendments Nos. 23 to 25, inclusive, not moved.
Debate adjourned.