ESB (Electronic Communications Networks) Bill 2013: Report Stage

Bill recommitted in respect of amendment No. 1.

Amendments Nos. 1 and 4 are related and may be discussed together.

I move amendment No. 1:

In page 3, line 7, after "line" to insert ", to change the name of Bord Gáis Éireann".

As we have just discussed, these amendments concern the change of name of Bord Gáis Éireann to Ervia. The Gas Regulation Act 2013, which was enacted late last year, provided for the sale of the energy business of Bord Gáis Éireann. As part of the sale process the ownership of the "Bord Gáis" brand will transfer to the new owner. Once the bidders have acquired the energy business of Bord Gáis Éireann and its brand, Bord Gáis Éireann may no longer use the words "Bord Gáis" in the name or brand of either its group or network business.

Bord Gáis Éireann has given careful consideration to appropriate alternative names having regard to the changing nature of its business, given both the sale of the energy business and the establishment of Irish Water as a subsidiary of Bord Gáis Éireann. As I advised the House earlier, the name change from Bord Gáis Éireann to Ervia will take account of the expanding functions of Bord Gáis Éireann.

The change of name requires a statutory footing and accordingly amendment No. 4 makes the necessary provisions to give effect to this. Amendment No. 1 is a consequential amendment, changing the Long Title to reflect the inclusion of the provision to change the name of Bord Gáis Éireann to Ervia.

Amendment agreed to.
Bill reported with amendment.

I move amendment No. 2:

In page 4, line 21, to delete ", selling".

This is generally good legislation, providing for something I had previously suggested as a solution to our broadband distribution network problems. From the outset I had only two amendments, one of which was a social-benefit clause placing a responsibility on the company that any job vacancy would be filled by a person to be taken from the register of unemployed people. I accepted the Minister's response on Committee Stage that it would not be appropriate in this primary legislation. I would hope to see it become copper-fastened in Government policy that any State venture such as this would include a social-benefit clause.

Section 2(b) states that the board may engage in the business of "leasing, licensing, selling and otherwise providing, making use of and engaging in any service in connection with electronic communications networks and electronic communications services infrastructure." My amendment proposes to delete "selling" from that section of the legislation.

On Committee Stage the Minister said - I fully accept his bona fides - that he has no intention of selling off this utility. However, I believe there could be unintended consequences here. First, the Minister, Deputy Rabbitte, will not be the Minister forever. Second, leaving the word "selling" in that section could lead to the privatisation of the ESB fibre network.

It could lead to an unhealthy monopoly with one communications company having a virtual monopoly of broadband provision in the country. It could result in such a private company monopoly using an infrastructure that was paid for by Irish people and using ESB staff who have extensive powers of access to land to enrich the company principals and shareholders. We would, in effect, potentially be sowing the seeds of yet another golden circle.

I do no understand why the Minister will not remove the "selling" from this legislation. While his intentions may be entirely honourable and I am sure they are, he will not always be Minister for Communications, Energy and Natural Resources and another Minister at some time in the future could misuse that clause by virtue of the it containing the word "selling". I ask the Minister to agree to withdraw the word "selling" from the section. I would like to allow this legislation to go through unopposed but I will certainly oppose this section unless the word "selling" is removed from it.

I understand where Deputy Colreavy is coming from and I agree with much of what he has said but I honestly think there is a misunderstanding between us on this one. If we consider what is in the Bill in terms of what the board may do as a result of this legislation, it states it shall develop "electronic communications networks and electronic communication services... [or it enables that, and the] leasing, licensing, selling and otherwise providing, making use of and engaging in any service in connection with the electronic communications networks and electronic communications services infrastructure". I understand the word in that context to relate to the selling of services, not as a permissive insertion to allow the selling of the company. I believe there is a genuine misunderstanding between the Deputy and myself on this. I will put my note on this on the record. I do not want to teach my granny how to suck eggs but if we were to address the issue that is of concern to the Deputy it might be better to do so in the form of an amendment that seeks to enshrine in primary legislation that this company may not be sold off or something like that. I can say that now that I hope to get out the door here soon and will not have to deal with the consequences of my advice to the Deputy. The word "selling" in this section has a different meaning and it is not to facilitate the privatisation of the company.

The purpose of the Bill is to provide an explicit legal basis, as the Deputy has said, to enable the ESB to engage now or in the future in the installation and operation of electronic communications networks and services, either alone or by agreement with one or more other companies, and to provide for consequential matters. I should clarify at the outset and in response to a concern expressed by Deputy Colreavy on Committee Stage that the Bill is enabling only. It does not exempt the ESB from any current legislative requirements or regulatory rules. The ESB is required by the Electricity Supply (Amendment) Act 1988 to secure the consent of my Department and the Department of Public Expenditure and Reform to form any company. The same legislative provision also requires the ESB to secure similar consents to dispose of shares or other interests in any such company. Nothing in this Bill will absolve the ESB from these obligations and I can therefore reassure the Deputy that this Bill does not provide a legal basis for the ESB to dispose of critical infrastructure.

The purpose of section 2 is to provide an explicit legal basis to allow the ESB to engage in electronic communications networks and electronic communications services which include leasing, licensing and selling of such services. If the ESB enters this market in the future it must do so on a commercial basis. It is essential therefore that it has the vires to sell services. The vires would be put in doubt if the reference to "selling" was deleted. For this reason, I cannot support the amendment proposed by the Deputy. However, I hope that my reassurance on the limited nature of the statutory authority arising reassures the Deputy on the wider issue and additional requirements regarding any subsequent disposal of its interests in this or any other venture.

I offer a view on this amendment and this is an matter we discussed at length on Committee Stage. While I might understand, or try to understand, from where Sinn Féin is coming on this, and I know it is ideologically opposed to privatisation and all the rest of it and that is fair enough, I cannot figure out why its members will not accept numerous reassurances from Ministers that the critical infrastructure is not for sale. They have been given such reassurances about Irish Water and the electricity networks and now they are being told the same about the telecommunications that might be installed on these networks.

There is no doubt in my mind that we have learned from the mistakes of the past where essential infrastructure of Eircom was sold which literally set us back decades in terms of the development of broadband and telecommunications infrastructure. It is only now that we are seeing Eircom beginning to invest in its infrastructure again after many years. In the interim period we have seen the substandard state and degradation of the telecommunications networks that were managed by Eircom, which was not the fault of the staff of Eircom but the fault and the lack of investment due to the sale of that asset.

As I said on Committee Stage, this legislation is a game-changer in terms of the potential to deliver quality broadband to the regions of this country again. Sinn Féin's attitude on this is quite cynical. Deputy Colreavy mention the possible creation of a golden circle and enriching the shareholders of the ESB and otherwise but the shareholders of the ESB are the Irish Government and the Irish people and reassurances have been given. I cannot understand why the Deputy continues to pursue this amendment.

As a result of this legislation we will see increased competition in the delivery of broadband. I hope this service provider, in partnership with the ESB, when it goes to market will be able to offer high-speed, quality broadband to regional areas at far less cost. It is obvious that they will have far less overheads in delivering this infrastructure. I cannot understand why it did not happen before now. I know there are telecommunications networks wrapped on transmission lines going across the country. Now we are going to the next level where it is intended to hang telecommunications lines on existing ESB distribution networks where there are already existing routes and pathways to the regions and at far less cost in terms of capital costs and overheads. If we want to bring a fibre network to a region it can be literally strung along existing networks with no additional costs incurred in terms of excavation, access to land, the cost of ducting and the cost of reinstatement of land. This initiative will have the potential to deliver broadband to the regions in a far better and more cost effective way and it is something I encourage.

I have already expressed the concern to the Minister on Committee Stage that the service providers will cherry-pick some of the larger urban areas. It is obvious from a commercial sense that this service provider would target the larger urban areas initially. However, I still believe this legislation empowers them and offers the potential, once they go beyond that step where they can capture a commercial customer base, to reinvest the funds raised and extend this to the next phase, which will go out into rural Ireland, where quality fibre is needed. We are predominantly a rural nation. Agribusiness in this country is growing at an exponential rate and we will be exporting food and dairy products around the globe. With all of that production will come business needs in rural areas, where people can work from home on their farms and in their villages. I believe this legislation will give the potential to this service provider to reach those customers.

Given I have the opportunity on the floor of Dáil Éireann, it would be remiss of me not to commend ESB Networks on behalf of the Members of Dáil Éireann and to thank its staff for the extraordinary work they have done in recent weeks and continue to do in terms of addressing the storm damage that has hit the country. Vast areas of the south and south-east were hit by hurricane winds yesterday, as well as having been hit previously. Hurricane wind speeds in excess of 141 km/h were recorded at the Waterford Institute of Technology campus yesterday. More than 260,000 customers were without electricity last evening. I know that ESB Networks, with the help of colleagues from Northern Ireland who have come down this morning, are working with the emergency services, the local authorities, the fire services, the Garda, the Civil Defence and many others to restore power to people's homes. Electricity is a fundamental requirement in any society. I ask the Minister to pass on my compliments to ESB Networks workers and contractors, as well as anybody who is assisting at this time, for their courage and for the work they have done.

I offer my support for this legislation. I hope Sinn Féin can accept the continual reassurances that have been given by the Government side that we recognise critical infrastructure. We have learned from past mistakes, where critical assets in Eircom were sold and it suffered from a lack of investment. What we are seeing now is further opportunities for the people. I will certainly be supporting the Minister on this legislation.

It feels like I am getting a bit of a lecture. However, it sounds as if the lecturer did not listen to or hear what I said in my introductory remarks. I said that I thoroughly welcomed this legislation and that it is something I had put forward myself some 18 months ago. I said I had proposed just two amendments to the legislation. On one of these, I accepted the Minister's contention that my amendment should not have been in primary legislation. On the amendment we are discussing now, I have accepted the bona fides of the Minister and that he has no intention of selling the network infrastructure. Unless, however, the word "selling" is removed from the Bill or a clause is inserted to specify that the infrastructure cannot be sold, any future Minister could sell that infrastructure. That is why it is so important this amendment be made.

I have no intention of trying to block the passage of the legislation but I feel passionately that this amendment needs to be made and that the legislation would be better and stronger if it were made. Perhaps Deputy Coffey now understands why I will be calling a vote on this proposed amendment.

To follow on from Deputy Coffey, I have one concern which the Minister might bear in mind as the legislation concludes. Landowners are concerned about the wayleave that could be given to companies other than ESB to go onto people's lands for the purposes of installing new cables. Perhaps these concerns can be addressed by the Minister or his departmental officials. There is no difficulty with the concept of the Bill among the farming community and among landowners in general because they view the transmission of broadband into rural areas as something that will benefit them as well. Their concern is that the current legislation, going back to 1927, was very specific in regard to the transmission of power across the country and the compensation that was in place at that time. Landowners are concerned that the legislation would, for example, allow people who have commercial agreements with the ESB to wander on and off and string other cables across people's lands that are not in line with the intended purpose of this Bill. The Minister might be able to clarify this point during his summing up or subsequently with the farming organisations.

I will be disappointed if Deputy Colreavy divides the House on a Bill that, fairly exceptionally in my experience, has attracted support from all sides of the House, including not just the parties and formal groupings in the House but also the Independent Deputies and so on. This is especially so since, I repeat, I am satisfied there is a misunderstanding between the Deputy and myself. The insertion of the word "selling" where it is contextualised in the Bill is not about the selling of the company or shares in the company, or anything like that. Taking it out is not going to achieve what Deputy Colreavy seeks, but it would remove the vires that is essential for the company to make the services available, which is the purpose of this Bill in the first place. Therefore, if we removed "selling", where the Bill enables leasing, licensing and selling, it would make a nonsense of the legislation. I repeat it is not an enabling term to facilitate the privatisation of the company.

I can give Deputy O'Donovan the assurance he has sought in respect of the wayleave issue. There is no question of workers, employees or staff of companies other than the ESB's direct workforce being enabled by this legislation to incurse onto private lands. This legislation will enable the use of the existing supply system and, irrespective of it being open access and so on, the actual technical works necessary will be done by the direct employees of the ESB.

In that regard, I can certainly join Deputy Coffey and repeat what I have said in public in acknowledging the extraordinary effort made by ESB workers in the unprecedented severity of the weather conditions we are experiencing. Ever since 18 December last, there have been severe difficulties every week. This has posed enormous strain on the workforce concerned.

They have rallied in almost impossible conditions. My understanding from the chief executive of the ESB is that it was so bad yesterday, particularly in parts of the south and south west, that it was unsafe for ESB workers to go out at the height of the storm. Since then, they have been doing everything humanly possible to restore power to unfortunate people who have been worst affected.

Given that we are dealing with a Bill about communications, the same situation applies in respect of Eircom workers. Some 60,000 homes have been deprived of a service and Eircom workers are engaged in trying to restore service as early as possible. It is appropriate at a time like this to pay tribute to these workers in their struggle against the elements to restore service to people who have been worst affected. I join with Deputy Coffey in including local authority workers and emergency workers generally who have been called out for us in unprecedented and uniquely bad circumstances. We are grateful for their dedication in that regard.

I reiterate what Deputy Coffey said. All I can say is that the thrust of this Bill is not about privatisation. It is enshrined in the Irish Water legislation that it will not be privatised. Other than incorporating it in law, I do not see what one can do. Deputy Colreavy is right. There may be a government of a different complexion at some stage in the future but all this Government can do is enshrine it in law, which it has done. In respect of critical infrastructure, be it the gas or energy networks, it is not the intention to privatise them and the new water utility is under State ownership.

Deputy Coffey is correct. It is a commercial venture.

The Minister is out of time. Is Deputy Colreavy pressing the amendment?

Question put: "That the words proposed to be deleted stand."The Dáil divided: Tá, 65; Níl, 35.TáNílBannon, James.
The Dáil divided: Tá, 65; Níl, 35.

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Creed, Michael.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Terence.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Tom.
  • Heydon, Martin.
  • Humphreys, Kevin.
  • Kehoe, Paul.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Kathleen.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Naughten, Denis.
  • Neville, Dan.
  • Nolan, Derek.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Stagg, Emmet.
  • Walsh, Brian.

Níl

  • Boyd Barrett, Richard.
  • Browne, John.
  • Collins, Niall.
  • Colreavy, Michael.
  • Cowen, Barry.
  • Doherty, Pearse
  • Ellis, Dessie.
  • Ferris, Martin.
  • Flanagan, Luke 'Ming'.
  • Fleming, Tom.
  • Halligan, John.
  • Higgins, Joe.
  • Keaveney, Colm.
  • Kelleher, Billy.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • McConalogue, Charlie.
  • McLellan, Sandra.
  • McGrath, Mattie.
  • McGrath, Michael.
  • Moynihan, Michael.
  • Murphy, Catherine.
  • Nulty, Patrick.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Troy, Robert.
Tellers: Tá, Deputies Emmet Stagg and Paul Kehoe; Níl, Deputies Michael Colreavy and Michael Moynihan.
Question declared carried.
Amendment declared lost.

I move amendment No. 3:

In page 4, between lines 32 and 33, to insert the following:

"4. (1) In circumstances where either the Board or the Board in conjunction with another company, while engaging in the business of providing electronic communications either under section 2 or section 3 or both, advertises specific broadband speeds to the consumer, the Board and or the company in question shall be obliged to provide such speeds to the consumer.

(2) Any person who fails to comply with subsection (1) shall be liable to penalty by way of a fine, the amount of which shall be prescribed by the Minister by way of regulation.".

I tabled this amendment on Committee Stage and am doing so again to outline my concerns about the broadband speeds being offered to customers when a package is sold. The numbers do not add up at the end. If a product that is delivered does not match what was advertised - for want of a better phrase, if it does not do exactly what it says on the tin - there will be hell to pay. Some broadband providers claim that their services will increase speeds, yet those increases are not delivered.

I am tabling this amendment because it is important to enshrine this issue in legislation. I have also toyed with the idea of introducing specific legislation on this matter, given its level of importance.

The broadband speeds experienced at customers' premises are dependent on a number of variables which are not within the control of Internet service providers. Connections using wireless equipment such as laptops, notebooks and tablets, improve portability and convenience for the user, but at the cost of the diminished speeds compared to fixed wire connections. Even in the case of fixed line connections, speeds will be compromised if they are routed across the internal house wiring, using power line adaptors. Other variables at the users' premises which can reduce the broadband speed delivered by service providers include the equipment used by the consumers, the distance from the consumers' equipment to the network access point, the number of users accessing the broadband network in any premises at any time, and the capacity of the server being accessed in the case of the Internet. It is important, therefore, to distinguish between broadband speeds delivered to customers' premises by service providers, and the customers' experience which can deteriorate due to circumstances within the premises and beyond the direct control of the service provider. I would point out, however, that broadband speeds in the marketplace are evolving rapidly and are likely to continue to do so in the future, as new technologies and enhancements arise.

The ESB proposal, as outlined, is to install an electronic communications network on its electricity distribution network using fibre optic technology. A feature of fibre optic technology is that it is future proofed, due to its ability to deliver broadband speeds comparable to or exceeding those predicted to evolve in alternative broadband technologies. Accordingly, it is highly likely that the ESB proposal would not have any technical impediments to delivering advertised speeds at any time of the day or night. In addition, if the ESB proposal proceeds, it will enter a fully liberalised market, using the most advanced technology.

The introduction of the amendment proposed by Deputy Moynihan would impose a more onerous obligation on the ESB than applies to other competing service providers. It will also create a biased penalty or sanction, applicable to the ESB and companies with which it deals, but not applicable to its competitors. On these grounds, I cannot support the amendment proposed by the Deputy. This is not to suggest that I am unaware of the complaints that he raises regarding the advertising of broadband speeds compared to the actual user experience. I am advised that ComReg, the independent market regulator, has taken a number of proactive initiatives to address consumer concerns with respect to broadband speeds. It has worked closely with the Advertising Standards Authority of Ireland to require that advertising campaigns are realistic in marketing indicative broadband speeds, based on typical performance in the busy hour. It also provides enhanced customer information and practical advice on its website.

More recently, ComReg has announced its intention to launch a pilot project to measure, quantify and report on broadband speeds delivered to customers' premises in different settings. This project will measure speeds on the network side of routers or modems to avoid the variables that I outlined previously at representative samples of individual customers' premises who volunteered to participate. It is ComReg's intention to make this information publicly available in a manner that will allow users to assess how competing Internet service providers compare in terms of their advertised speeds versus the speeds actually delivered. I understand that ComReg plans to launch this pilot in the second quarter of this year. I fully support this initiative, which I hope will contribute to addressing our shared concerns about misleading claims made by service providers with regard to download speeds.

It is my belief that a legislative remedy, along the lines proposed by Deputy Moynihan in this amendment, which would only apply to one potential service provider, is not the appropriate way to deal with this more general concern. I trust the Deputy will accept that, for the reasons outlined, I am unable to accept the amendment.

I support Deputy Moynihan in what he is saying. Equally, I understand the Minister's point that this cannot be applied to just one company. Perhaps it could be firmed up a little bit more under the legislation governing the Advertising Standards Authority, because there seems to be such a huge discrepancy between the advertised speeds and the actual speeds.

I would be concerned about the speed of the roll-out of fibre optic broadband to areas other than the centres of population that have already been addressed in the discussions on this Bill. I would like to see some specific targets in respect of the public service obligation rolled out to the more rural areas. Perhaps the Minister can advise us on the schedule for that work.

We discussed this issue at length on Committee Stage. I can understand the thrust of the amendment, in fairness to Fianna Fáil. There are many service providers advertising the provision of broadband at the moment, but when it is installed it is not what was understood to be the package or the service. There is an issue with the quality of broadband, the way it is advertised and the way it is sold. However, as the Minister has stated, I believe this is a matter for ComReg, which is the regulator of the sector, and perhaps consumer agencies as well, to look more closely at this area. The amendment should not be enshrined in primary legislation.

This is not a cheap political shot at Fianna Fáil, but the reason we have a substandard level of telecommunications and broadband infrastructure in this country is due to the lack of investment into the existing Eircom networks, because those Eircom assets were sold. It was one of the biggest mistakes that this country has ever made, and it has put us at a serious competitive disadvantage in the telecommunications area. In fairness, Eircom has recently outlined plans to invest in its infrastructure and that is to be welcomed. That will increase competition, efficiency and quality in this area. The Bill will allow for increased competition in this area, and I hope that prices will drop because we will have a new efficient competitor in the market.

In support of Deputy Colreavy, any Deputy from a rural constituency would be concerned about the speed at which quality broadband on fibre networks can be delivered to all regions in the country. I understand that this is a commercial venture. The companies will target large urban areas initially, and when they capture a customer base, I hope this Bill will allow the new service providers to target less populated areas in rural Ireland. They will have the infrastructure available to them under this Bill, and I hope we will see quality fibre-optic broadband delivered to the regions as soon as possible. I know that many Deputies will pursue this matter and campaign for better services in the regions.

The amendment speaks for itself. We are trying to make sure that those who sell broadband can deliver what they are selling. I think it should be enshrined in primary legislation. I will not be pressing this amendment, but I wish to give notice that I intend to bring forward a Bill to make sure that these rules are in statutory legislation, and not just in a code of conduct. I hope the Minister will be mindful of that. Many services are providing broadband that does not add up to what they were selling.

Amendment, by leave, withdrawn.
Debate adjourned.