Amendment No. 1 is a Government amendment and amendment No. 3 is related. Therefore, we may discuss amendments Nos. 1 and 3 together. Is that agreed? Agreed.
Communications Regulation Bill, 2002: Committee Stage.
Section 1 agreed to.
SECTION 2.
Government amendment No. 1:
In page 9, subsection (1), line 12, after "Act", to insert "(other thansection 46 and Part 5)”.
Tá áthas orm bheith ar ais arís in bhur measc ins an Teach iontach seo. Amendments Nos. 1 and 3 relate to the commencement of various provisions of the Bill. There will be an establishment day on which the commission for communications regulation will be established, the Office of the Director of Telecommunications Regulation will be dissolved and the functions of the director will be transferred to the new commission. Those provisions are set out in Part 2 of the Bill.
While other provisions of the Bill will also commence on the establishment day, some provisions can be commenced immediately the Bill is enacted. These are the provisions relating to road openings in Part 5 and the increases in penalties for breaches of licence conditions in section 46. The purpose of amendments Nos. 1 and 3 is to clarify the provisions to which the establishment day applies.
Amendment agreed to.
Government amendment No. 2:
In page 9, subsection (1), between lines 17 and 18, to insert the following definition:
" ‘prescribed' means prescribed by regulations made by the Minister;".
This amendment is related to amendment No. 14 and, with the permission of the House, I wish to discuss amendments Nos. 2 and 14 together.
Acting Chairman
Is it agreed that the House take amendments Nos. 2 and 14 together? Agreed.
Amendment No. 14 provides for an enhanced enforcement mechanism, replacing the provision for a compliance notice as published in section 45 of the Bill with the provision for a notice by the commission of intention to prosecute. This new provision is based on provisions contained in the Company Law Enforcement Act, 2001. It will provide for the imposition of a fine of €1,000 in cases where the commission has reasonable grounds for believing that a person has committed an offence under the provisions of a European directive. Where the person fails to pay the fine, the commission may proceed with prosecuting the offence in the courts. This represents an improvement on the original provisions of section 45 which had no associated mechanism to impose a fine. Following further consideration we have concluded that there is no need for the original provision in section 45. The reason is that the requirements and obligations imposed on operators in the various legislative provisions had their own compliance notice provisions.
The purpose of amendment No. 2 is to insert a definition of the term "prescribed" in the Bill. This amendment is related to amendment No. 14, which refers to the commission giving a notice to a person or a company in a prescribed form. In other words, we make it statutory, clear and regular by having it on a prescribed document. It is intended that the Minister may, by regulations, prescribe the form of this notice. I recommend both amendments to the House.
I would have liked to have been able to say I thought all the Government amendments were good so that the Minister of State could reciprocate and say that he thought all mine were excellent as well.
I will certainly give them full consideration.
I thank the Minister of State. What worries me is that, again, there is a reference to the Minister for Finance. It has been a complaint of mine throughout the Bill that the Minister for Finance – I have had a chance to look at two of the other Bills relating to regulators – seems to be much more in evidence in this Bill compared to the others. Frequently one would complain, because the commission is supposed to be independent, that perhaps too much notice was being taken in the Bill of what the Minister for Public Enterprise thought, but in this case the Bill states that all payments to the commission in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
Given the levies it will charge, the commission will be self-financing. I cannot understand why the Minister for Finance has to keep appearing in every section of the Bill. As a result, I sometimes feel that the Minister for Finance will make more decisions than the commission. Why is it not possible to provide that the commission rather than the Minister for Finance would deal with the money that is paid?
There are two elements to this, one of which is the public service element. This is a public service organisation created by the State and the Oireachtas to manage telecommunications regulation, which is an important area in this time of global communications and will be much more important in the future. They are publicly appointed people paid from public funds. If we reach a position some day where this organisation did not have surplus resources, the State would be obliged to look after its interests and that would be a call on the resources of the Minister of Finance and the Exchequer.
Alternatively, the organisation could be in surplus, as it is at present. Therefore, it is important to take into account the requirements of the State, the Government and the various Departments, but particularly the Minister for Finance. This will ensure that these resources are prudently used and deployed to the maximum benefit of the State in whatever area the Government or the Minister for Finance may decide, rather than a position where there is a surplus lying in a commission, which would not have a mandate to expend those resources, and where the Government or the Minister for Finance may have a requirement for those resources at a particular time. It is important that there is such flexibility, taking into account the model of partnership which exists in modern public service performance and also the efficiencies which have been brought to bear on the management of public expenditure over the years. It is normal for the State to take fines and fines are involved in this case. The mandatory structure on which the commission is based requires that the surplus income of the commission must be refunded to the Exchequer at minimum on an annual basis.
The role of the Minister for Finance is restricted to pay and pensions of the commissioners and the staff, licence fees and the treatment of the commission's excess of income over expenditure. It is a standard, structured provision which is consistent with the position in the case of the aviation and electricity regulatory structures. We are maintaining that consistency. It is important that we do so. Otherwise there could be a slight distortion in either systems criteria or resources from other similar organisations which could compound any complex situation in the future.
I have looked at the legislation on both aviation and electricity regulation, but I did not look at that aspect. I believe the Minister if he says that is the position, but the commission might be able to think of very good things to do with its money because this is an expanding area. Throughout the Bill the hand of the Minister for Finance seems to be much stronger than in the other regulatory Bills. If the Minister of State says that is the position, however, I will not oppose the amendment.
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.
Government amendment No. 3:
In page 10, line 12, to delete "Part" and substitute "Act (other thansection 46 and Part 5)”.
Amendment agreed to.
Section 4, as amended, agreed to.
Sections 5 to 8, inclusive, agreed to.
SECTION 9.
Acting Chairman
As amendment No. 20 is consequential on amendment No. 4, they may be discussed together.
Government amendment No. 4:
In page 11, between lines 11 and 12, to insert the following new subsection:
"(2) On the establishment day there is transferred to the Commission the functions of the Minister undersection 20 (except in so far as it relates to television sets) of the Broadcasting and Wireless Telegraphy Act, 1988.”.
Under section 20 of the Broadcasting and Wireless Telegraphy Act, 1988, the Minister may by regulations prescribe the fee to be paid in respect of applications for licences or any class of licence under section 5 of the Wireless and Telegraphy Act, 1926. Under the text of the Bill, as initiated, section 20 of the 1998 Act was included among the functions of the director, which are now transferred by this Bill to the commission. However, that section had not been transferred to the director in 1997. Therefore, the function continues to rest with the Minister. However, it is now appropriate for the provision to be transferred to the new commission because it will have responsibility for handling applications for licences.
It is a requirement of the new European directive on the authorisation of electronic communications networks and services that administrative charges imposed on operators for authorisations be related to the administrative costs of administering the licensing system. The functions of section 20, as it relates to the licensing of television sets, had not been transferred to the director in 1997 and will not be transferred to the commission. Provisions relating to the licensing of television sets are a broadcasting policy matter under the responsibility of the Minister for Arts, Heritage, Gaeltacht and the Islands. Accordingly, the amendment explicitly excludes the transfer of these functions to the new commission. I trust the House will accept the amendments.
Amendment agreed to.
Government amendment No. 5:
In page 11, subsection (2), line 14, to delete paragraph (b) and substitute the following new paragraph:
"(b) in section 9(1) of the Broadcasting Act, 1990,”.
This amendment is necessary to correct a drafting error in the published text of the Bill, which referred to the Broadcasting Authority Act, 1960, rather than the Broadcasting Act, 1990. It was a typographical error which we want to rectify. I ask the House to agree to the amendment.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
Government amendment No. 6:
In page 11, subsection (1)(b), line 29, to delete “Section 13” and substitute “section 13”.
This is a minor technical amendment and I ask the House to agree to it.
Amendment agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
SECTION 12.
I move amendment No. 7:
In page 12, subsection (1)(c), line 30, to delete “a” and substitute “an efficient”.
It is quite timely that we are addressing this Bill today when one considers what happened in respect of the postal services in England yesterday. Apparently Consignia was totally disbanded and great changes have to be made to the postal service. It is probably one of the most important parts of the Bill for the public. While we may manage without the various digital channels we may have provided, the postal service is still extraordinarily important.
The amendment seeks to encourage the development of the postal service. It is fine to speak of its development, in particular, the availability of a universal postal service within, to and from the State at an affordable price, but efficiency is also very important. It is no good if post arrives three weeks after it is required. This is the problem the postal service ran into in England in terms of first class and second class post and all the various innovations made over the past ten or 20 years, which led to its downfall. Efficiency is extremely important in the postal service because people will not use it if it is not efficient. They will use whatever courier service is available or any other method of sending letters and parcels unless they have what can be seen as an efficient service.
I listened with interest to what the Senator said. The powers of the regulator in the postal sector arise from Directive 97/67 on common rules for the development of the internal market of community postal services and the improvement of quality of service. S.I. 310 of 2000 transposes Directive 97/67 into Irish law. Neither the EU directive nor the statutory instrument gives the regulator the power to monitor efficiency. The directive refers to the provision of a universal service and the wording of section 12(1)(c) reflects its intent. Therefore, it would not be appropriate to extend the objectives of the commission beyond the directive to promoting the development of an efficient postal sector as a function which is not envisaged either by the directive or the subsequent S.I. 310 of 2000.
The main focus of the directive is on fair competition and quality of service. The efficiency of a postal operator is an internal matter for the management of the individual postal company. The regulation of efficiency would involve far more detailed intervention in the operations of a company than is necessary to achieve the objectives envisaged by the directive. Hence, I cannot accept the amendment as proposed.
All the time in the House I am told about European directives and that they have to be provided for word for word and so forth. However, I have seen the way in which they are interpreted in other countries. I once spoke to the Minister about sustainable energy competitions and was told by the Department that we had to hold competitions here. I was present at a meeting where this matter was discussed and told that other countries do not interpret matters in exactly the same way as we do. For example, in terms of sustainable energy, the Germans decided to give, say, DM6 for solar energy per kilowatt, DM7 for wind energy per kilowatt or whatever. However, we appear to be in a set of circumstances where we interpret European directives very narrowly.
Surely we want an efficient postal service. I cannot believe the Minister of State does not want the commission to promote an efficient postal service. All the time the buck is passed to Brussels. After all, the interpretations in various countries of EU directives are not necessarily all the same. If we say we want an efficient postal service, why can we not provide for this?
I did not table any amendments to the legislation at this juncture. However, I have some suggestions to make on a few sections of the Bill. Perhaps they will be considered on Report Stage. Amendments seem to be confrontational and trying to enforce them by a voting system in the House seems to be a futile exercise. I presume the Minister of State is anxious to have the best legislation possible which is what we are all aiming at.
With regard to section 12, specifically I thought the Minister of State might refer to promoting the Internet given the role it is playing in the commercial life of the country. It is the vehicle for the future, by which we will do business and communicate. It is gaining a significant foothold in both business and the lives of domestic users. A line or two promoting it in this section would be of benefit to the legislation. It would signal the Government's commitment and interest in ensuring the Internet will continue as a main source of communication within the State and in a global context.
When a public utility has a near monopoly, the measurement of performance is fundamental to consumers. The Minister of State has pointed to the EU directive, and the correct approach may not be to have the regulator responsible for this. Creating competition should be the responsibility of the regulator, however, and the greater the competition the more efficient the company will have to become in order to survive. Competition is one of the best yardsticks in defining efficiency. I have some sympathy with the Senator's point that where you have a near monopoly, efficiency is a huge factor. Accelerating competition within this sector is the single most effective thing one can do to ensure efficiency because survival will depend on it.
In response to Senator Henry at the outset, when S.I. 310 was passed, it gave additional powers to the regulator to implement Directive 97/67/EC of 2000 and monitor the universal services obligation requirements of An Post, monitor compliance with general principles, set and monitor quality of service standards, approve price increases in the reserve area and monitor accounting standards. This role is common to all national regulatory authorities in the EU. In terms of ensuring efficiency in the postal sector, the regulator has the power to approve or not approve prices increases in the reserved area and to monitor quality of service standards, both of which are valuable tools in improving efficiency in the sector.
Part of the postal market is already open to competition and the transposition of the amending directive will provide for further competition in the sector. An Post is therefore already facing competition in part of the postal market. With the increasing liberalisation of the market it will face increasing competition over the next few years. The existing powers enjoyed by the regulator and the increasing competition in the market will prove incentives for increased efficiency among postal operators. A reference in the Bill to efficiency measures is not required.
In response to Senator Caffrey, I refer to section 12, subsection (2)(b) which states:
In so far as contributing to the development of the internal market is concerned–
(i) removing remaining obstacles to the provision of electronic communication networks, electronic communications services and associated services at Community level
(ii) encouraging the establishment and development of trans-European networks and the interoperability of transnational services and end-to-end connectivity,
(iii) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services and associated facilities, and
(iv) co-operating with electronic communications national regulatory authorities in other Member States of the Community and with the Commission of the Community in a transparent manner to ensure the development of consistent regulatory practice and the consistent application of Community law in this field.
The Senator will see from this that we are totally committed to ensuring a global, efficient communications network, and there should be no impediments placed in the way of those networks.
The new commission has the function of regulating electronic communications networks, including the Internet, as set out in the definitions in section 2. The Internet is a major tool of communication on a global basis and is critically important to a small island nation so that we can do business from any part of this island to any part of the world. The opportunities created in this Bill will enhance the power of the commission to ensure the Internet and electronic network system, and the investment we are making in connectivity, can be maximised in the interests of all our citizens.
It seems extraordinary that, in section 12, subsection (1)(b), the commission is described as having the following function:
to ensure the efficient management and use of the radio frequency spectrum and numbers from the national numbering scheme in the State in accordance with a direction under section 13.
Yet when we get down to subsection (1)(c), we cannot have an efficient universal postal service. Why can the commission promote efficiency in the area of radio frequency spectrums but not in the postal service? I am sure the Minister wants an efficient postal service, but why is the term “efficient” acceptable in subsection (1)(a) but not (1)(b)? I am not happy to be fobbed off with claims that the EU directive must be followed to the letter because I have seen that increasingly it is not in other places.
Senator Henry is confusing different issues pertaining to subsections (1)(a) and (1)(b). Subsection (1)(a) outlines the function of the regulator to ensure absolute efficiency in managing the radio spectrum. This refers to communications, the waves, the system and the transmission.
Subsection (1)(b) moves on to the postal services. Responsibility in law for the efficient running of the postal services in this country rests with An Post, the registered company responsible for the delivery of a universal postal service across this island and into the international sphere. One subsection is technological, while the other deals with the delivery of postal services. The responsibility for the first rests with the commissioners, that is, the director today and the commissioners tomorrow. On that basis, it would be unwise to compound the situation by transferring responsibility for efficiency from one organisation to another.
The management of the radio frequency spectrum does not involve regulating the efficiency of individual companies. It relates to the efficiency of the commission in managing the spectrum. We are not comparing like with like.
Amendment, by leave, withdrawn.
Government amendment No. 8:
In page 14, between lines 23 to 31, to delete subsections (2) and (3) and substitute the following new subsection:
"(6) The Commission shall take the utmost account of the desirability that the exercise of its functions aimed at achieving the objectives referred to insubsection (1)(a) does not result in discrimination in favour of or against particular types of technology for the transmission of electronic communications services.”.
This inserts a new provision and reflects the new commission's objectives in relation to technological neutrality. This is consistent with the provisions of the new European regulatory framework for electronic communications. Section 12 sets out the guiding principles under which the commission is to operate. There had been criticism from some quarters of the existing legislation that it did not lay down guiding principles for the director. The new European directives on electronic communications specify the objectives which national regulatory authorities must follow. Section 12 is based largely on the text of the European directive. However, one provision of the directive had not been incorporated into section 12. This was the obligation on national regulatory authorities to facilitate technological neutrality. This amendment seeks to remedy this.
Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.
An Leas-Chathaoirleach
Amendments Nos. 9, 11 and 12 are related and may be discussed together by agreement.
Government amendment No. 9:
In page 14, lines 23 to 31, to delete subsections (2) and (3) and substitute the following new subsections:
"(2) Before giving a direction under subsection (1), the Minister shall give to the Commission and publish a draft of the proposed direction and
(a) give the reasons for it, and
(b)specify the period (being not less than 21 days from giving it to the Commission or such publication, whichever is the later) within which representations relating to the proposal may be made by interested parties.
(3) The Minister, having considered any representations made under subsection (2), may give the direction under subsection (1) with or without amendment.
(4) Where the Minister proposes to make a direction under subsection (1) which, in the opinion of the Minister, has or may relate to the functions of another Minister of the Government, the Minister shall not give to the Commission or publish a draft of the proposal under subsection (2) without prior consultation with that other Minister of the Government.".
These amendments are necessary to correct a flaw in the published text, which contained no provision for the Minister to revise the draft direction within the 21 days specified in the section. If the Minister decided to amend the draft direction before issuing it in the light of comments received, the section as currently drafted could be interpreted as requiring the Minister to re-publish it. This could result in endless delays in issuing a direction. It is proposed therefore to make specific provision to enable representations to be made to the Minister about the proposed direction and enable the Minister to issue an amended draft direction following consideration of the representations. Amendments Nos. 11 and 12 are consequential amendments adjusting the subsequent references in the light of amendment No. 9.
This amendment helps a great deal because one of the important things about this Bill is the attempt to speed up decisions.
Amendment agreed to.
An Leas-Chathaoirleach
Amendments Nos. 10 and 13 are related and may be discussed together by agreement.
I move amendment No. 10:
In page 14, lines 40 to 42, to delete subsection (5).
I proposed these amendments on the grounds that the commission is totally under the supervision of the Minister for Finance, Deputy McCreevy. The competitions will be controlled by the Minister for Finance, as indicated in subsection (4)(b):
the means by which entitlements to use such spectrum may be assigned (including appropriate fees)
That appears fine until we read subsection (5), which states:
A direction under subsection (1) relating to fees referred to in subsection (4)(b) may only be given with the consent of the Minister for Finance.
The Minister for Finance has control of the competition. I thought the most important aspect of the regulations was their independence. It now appears the commission is to be reduced to a subdivision of the Department of Finance. The only area in which the commission appears to have independence is the acceptance of individual undertakings for small schemes. This section of the Bill will spancel the commission in the competitions it undertakes.
I am sure the Minister will be able to accept amendment No. 13. With the exception of the Competition Authority Bill, 2001, I examined other Bills relating to the regulators and, as I recall, the Competition Authority did not have any restrictions regarding staff. I understand the reason for restricting staff numbers, but I do not understand the thinking behind subsection (3)(a) that determines the grading, remuneration and other conditions of staff to be appointed to the office of the commission. I do not believe any of the other regulators had to accept such restrictions regarding the employment of staff. Staff requirements will vary from time to time and consultants are often employed on a short-term basis. It is ridiculous that the commission should have to refer to the Department of Finance every time it wishes to have its instructions changed. I cannot understand why this subsection is included in the legislation. Perhaps the Minister's officials can tell me whether a similar rule applied to the Competition Authority, but I do not think so.
I support Senator Henry's proposal to delete subsection (5). The Minister for Finance's fingerprints will have to be all over this operation if it is to work at all. The commission will not be able to buy cornflakes without asking for the Minister's permission. Such a role is unduly interfering. The commission should have more autonomy. It does not need the Minister for Finance looking over its shoulder at every twist and turn.
I will respond to amendments Nos. 10 and 13 together. I thank Senator Henry and Senator Caffrey for their contribution to the debate. Subsection (5) provides that a direction issued by the Minister relating to fees charged by the commission for the use of the radio frequency spectrum may only be given with the consent of the Minister for Finance. We are talking about a national asset. The radio frequency spectrum is a scarce national resource and, as such, fees charged by the State for its use by private sector entities are a matter of public policy. Government control of licence fees for radio frequency spectrum is the norm in other European countries.
The amendment seeks to eliminate the legitimate role of the Minister for Finance in determining the appropriate level of fees to be charged for the use of this scarce national resource. The Minister has a responsibility to ensure that the fees charged adequately reflect the value of the spectrum assigned while taking due account of non-financial obligations and the importance of the development of the telecoms infrastructure in Ireland. This is a national asset and we are asking a commission to regulate it and charge fees to private companies for its use. Such companies and individuals will make a large amount of money from their use of this national asset and it is important that the State has the double security valve of a commission that is overseen by the Minister for Finance.
Neither the Minister for Finance nor the Minister for Public Enterprise, Deputy O'Rourke, could accept amendment No. 13. Subsection (3)(a) provides that the commission may determine the number, grading and remuneration of its staff, with the consent of the Minister for Public Enterprise and the Minister for Finance. In legislation for the establishment of State-sponsored bodies, it is common practice that the number, grading and remuneration of staff are subject to the consent of the relevant Minister and the Minister for Finance. Similar provisions are contained in the Aviation Regulation Act, 2001, and in the Electricity Regulation Act, 1999. The provision is necessary to ensure the co-ordination of the Government's budgetary policies and its human resource strategy across all State and public bodies. It is also necessary to ensure the satisfactory operation of industrial relations machinery in the public service as well as continuity of delivery of public services. Consequently, I decline both of Senator Henry's amendments. I think that she will now understand the reasoning behind these aspects of the legislation.
I understand why the Minister does not accept amendment No. 10. He does not want the commission to run off with public money. The Minister stated that both the Electricity Regulation Bill, 1999, and the Aviation Regulation Act, 2001, contain this clause. However, I examined both documents and I cannot see it.
My officials assured me that is the case.
I cannot contradict the Minister's officials that the clause appears in both. If they say it is there, I must accept it. Is the clause also in the legislation for the Competition Authority?
The Competition Authority and Civil Service are covered by the Public Services Act, which is pending.
Obviously, I overlooked that clause in the other two Bills. People employed by the commission will not be civil servants. The work of these bodies is hampered by such rigid legislation.
Amendment, by leave, withdrawn.
Government amendment No. 11:
In page 14, subsection (6), line 43, to delete "direction" and substitute "direction undersubsection (1)”.
Amendment agreed to.
Government amendment No. 12:
In page 15, subsection (7), line 3, to delete "this section" and substitute "subsection (1)”.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 to 19, inclusive, agreed to.
SECTION 20.
Amendment No. 13 not moved.
Question proposed: "That section 20 stand part of the Bill."
The present regulator only has numbers. There are no grading, remuneration and other conditions of service, without which the regulator seems to work very well.
Question put and agreed to.
Sections 21 to 44, inclusive, agreed to.
NEW SECTION.
Government amendment No. 14 :
In page 29, before section 45, to insert the following new section:
"45.–(1) Where the Commission has reasonable grounds for believing that a person has committed an offence under–
(a) any Regulations mentioned in Part 2 of Schedule 1, or
(b) any other regulation made under the Act of 1972 which is declared in a Regulation under that Act to be an offence to which this section applies, the Commission may give to the person or, where the person believed to have committed the offence is a company, to an officer of the company, a notice in the prescribed form stating that–
(i) the person or company is alleged to have committed that offence,
(ii) the person to whom the notice is delivered may during a period of 21 days beginning on the date of the notice–
(I) remedy as far as practicable to the satisfaction of the Commission any default that constitutes the offence, and
(II) make to the Commission a payment of €1,000 accompanied by the notice, and
(iii) a prosecution of the person to whom the notice is delivered in respect of the alleged offence will not be instituted during the period specified in the notice and, if the default is remedied to the satisfaction of the Commission and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
(2) Where a notice is given undersubsection (1)–
(a) a person to whom it applies may, during the period specified in the notice, make to the Commission the payment specified in the notice, accompanied by the notice,
(b) the Commission may receive the payment and issue a receipt for it, and any payment so received shall not be recoverable in any circumstances by the person who made it, and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and, if the default is remedied to the satisfaction of the Commission and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(3) In a prosecution for an offence to which this section applies, the onus of showing that a payment pursuant to a notice under this section has been made shall lie on the defendant.
(4) All payments made to the Commission in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
(5) The Minister may by regulations vary the amount standing specified for the time being insubsection (1)(ii)(II).
(6)Section 61 (other than subsection (1)(e)) applies to a notice given under this section.
(7) In this section 'company' means a company within the meaning of the Companies Acts 1963 to 2001.".
Amendment agreed to.
Section 45 deleted.
SECTION 46.
Government amendment No. 15:
In page 30, to delete lines 19 and 20, and substitute the following:
"(ii) on conviction on indictment, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the person in the financial year ending in the 12 months prior to the conviction.".
This amendment increases the fine provided for in the section. The original proposal set a maximum fine of €1 million in respect of persons found guilty of being in breach of the conditions of a licence. The amendment proposed will increase the maximum fine to €4 million, or 10% of turnover, whichever is the greater. It brings the penalties for breaches of regulatory obligations in the communications sector into line with penalties laid down in the Competition Bill for breaches of competition law. It is important to have consistency when dealing with a very important area of communications activity and regulatory regime. I would be grateful if the House will agree to the proposal.
Amendment agreed to.
Section 46, as amended, agreed to.
SECTION 47.
Government amendment No. 16:
In page 30, line 21, after "amended", to insert ", on the establishment day,".
This amendment proposes to provide for an increase in the level of the maximum penalties under section 13 of the Telecommunications (Miscellaneous Provisions) Act, 1996, for breaches of price control obligations provided for under section 7 of the 1996 Act. It clarifies that these increases will apply from the establishment day of the commission. I hope the House will accept the amendment.
Amendment agreed to.
Section 47, as amended, agreed to.
Sections 48 to 53, inclusive, agreed to.
SECTION 54.
An Leas Chathaoirleach
Amendments Nos. 17 and 18 are related and will be discussed together.
Government amendment No. 17:
In page 34, subsection (5), line 25, to delete“57” and substitute “57(2)”.
These are minor drafting amendments to correct incorrect cross-references. These are typographical errors and I would be grateful if the House will agree to the changes.
I wish there was a sense of urgency in the section in order that those who dig up the roads for electronic infrastructure reinstate them immediately. This causes considerable problems for some, like myself, who live on a main thoroughfare. The reinstatement of roads is frequently delayed and not done to the standard one would like where hot asphalt is driven over immediately leaving potholes in the road and it takes months to get something done about the problem. As I said during the debate on the Road Traffic Bill and driving penalties, we need to do something about road surfaces, currently a very serious problem in the city.
Amendment agreed to.
Government amendment No. 18:
In page 35, subsection (11), lines 33 and 34, to delete“subsection (9)“ and substitute “subsection (12)”.
Amendment agreed to.
Government amendment No. 19:
In page 37, subsection (18)(b), to delete lines 3 to 5, and substitute “as may be necessary to enable the road authority to exercise its functions under this section.”.
Subsection (18) requires network operators to provide information on request to road authorities in regard to their underground infrastructure. This amendment will have the effect of deleting the creation of an offence for failure to comply with this obligation. To ensure compliance with this obligation it was originally intended to create an offence for failure to comply with it. However, on further consideration, it has been decided that the provisions of section 19 will be a sufficient and more appropriate means of enforcing compliance with the obligation. If we were to retain provision for an offence, it would be necessary to include reference to it in subsection (21). Accordingly, I hope the House will agree to the amendment.
Amendment agreed to.
Section 54, as amended, agreed to.
SECTION 55.
Question proposed: "That section 55 stand part of the Bill."
I concur with Senator Henry on road openings and so on. I am aware of instances where roads with a very good tarmacadam surface and a lifespan of approximately 20 years were dug up within a matter of months. No matter how well or evenly the work is carried out these roads will subsequently be like patchwork quilts, which is a pity given the expenditure invested in order to improve them. I have argued with the council that there should be full reinstatement rather than just repairing of cuts in roads. No matter how well the work is done it does not seem to be a properly finished job, detracts from the aesthetics of the area concerned and very often leads to potholes as a result of subsidance.
As local authorities repair roads and lay good quality tarmacadam surfaces which will last for many years, they are putting ducting in place which facilitates the networking companies. I would like them to be given an incentive to recoup the cost of this work. This could be done by giving access to the ducting on the basis that they can charge the full cost of doing the cut and reinstating the road for each of the networks making an application. The council would recover a supplementary cost which might obviate areas where the services might not be applied for in the future but where ducting has been laid. It seems minor but it is important. Where good quality paving is being done there should be an undertaking by the local authority to ensure some cohesion between the bodies so that it can be done in a way that will facilitate the networks but not undo the investment already made on the roads.
Senators Henry and Walsh referred to the provision for a road authority to impose charges for the cost of reinstating a road. This provision, contained in section 4(5), is an improvement on the existing regime where there is no such provision. Telecommunications operators can be made liable only for the openings for which they are responsible. However, the Bill allows the council to cover reinstatement charges. Sharing of ducts will eliminate openings and we hope there will be more efficiency in this area.
I agree with the Senators that it is important that we have a uniform application of the regulation to reinstate roads. However, we must take account of a number of issues in regard to this such as the traffic situation, peak and off-peak times and atmospheric and weather conditions which might affect the application of tarmacadam or other materials to roads. We want value for the investment made, efficiency for the surfaces laid and durability and longevity. It is critical that the applications be made in dry weather. Taking these issues into account we hope the changes we have proposed in the Bill will allow for authorities to be recompensed, at their discretion, where utilities have breached the regulations.
Question put and agreed to.
SECTION 56.
Question proposed: "That section 56 stand part of the Bill."
This section deals with cost apportionment where a relocation is required due to road improvements. I refer specifically to subsection (4), where a road authority, on an application by a network operator for installation, gives notice that the road is due to be improved by the authority within 18 months, then it does not incur the cost of relocating. That is a welcome provision but could the 18 month timeframe be extended? Between now and Report Stage, will the Minister consider extending the 18 months to 30 months, particularly given that we have multi-annual roadwork programmes? It seems that 18 months is too short. While roadworks are often planned they depend on funding from the Exchequer. Will the Minister consider extending the timeframe by 12 months?
The Senator has made a good point. The section provides that if, despite having been given notice by the roads authority that it intends to realign the road for which the operator has sought consent to establish telecommunications infrastructure, within 18 months of the planned commencement of infrastructure re-establishment the operator goes ahead with the build out of infrastructure, the road authority will not be liable for the cost of relocating the infrastructure if the road realignment goes ahead within the 18 months. That time has been agreed with the Department of the Environment and Local Government and the local authorities and in the balance of interests it is seen as agreeable.
We have a strong commitment to ensuring we have broadband connectivity delivered to all parts of the country and want to ensure that happens. We have also a major national development plan which is the responsibility of various Government Departments and statutory bodies and it is important that we manage it efficiently.
If we are to lay major infrastructure, whether broadband connectivity or roads, a delay in either or one conflicting with the other could lead to problems. If I extended the timeframe to 30 months it could lead to procrastination in certain areas. Certain companies might have signed contracts but would still have 30 months, on another aspect of statutory law, removing them from the obligation of the contract and delaying the investment that might be required for the delivery of the infrastructure. That must be taken into account.
The Bill has been through public consultation with all the relevant bodies. We have agreed the bottom line on the basis of fairness and in the interests of the common good. We feel that 18 months is the most operable figure.
Question put and agreed to.
Section 57 agreed to.
SECTION 58.
Question proposed: "That section 58 stand part of the Bill."
This is an excellent section of the Bill which tries to encourage people to share infrastructure. Senator Walsh and myself have spoken of situations where the asphalt is barely dry before another group digs the area up again. I hope the commission promotes this part of the Bill which is in the public interest.
We are making Trojan efforts to ensure that all the utilities work together and to ensure there is communication, co-operation and consensual commitment with the National Roads Authority, the Department of the Environment and Local Government and the statutory bodies. We want to ensure when one large infrastructural job is being done by one authority that other agencies or utilities can take advantage of the excavation so that two or three jobs can be done together. We are constantly working to ensure that utilities share routes, structures, ducts, drains and other facilities in the interest of efficiency.
Question put and agreed to.
Sections 59 to 61, inclusive, agreed to.
SCHEDULE 1.
Government amendment No. 20:
In page 43, lines 34 and 35, column (3), to delete "Sections 3, 6, 7, 9, 13, 14 and 20 (except as regards television sets)" and substitute the following: "Sections 3, 6, 7, 9, 13 and 14".
Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
TITLE.
Government amendment No. 21:
In page 7, line 17, to delete "STRUCTURE" and substitute "STRUCTURE,".
This is a minor drafting amendment to insert a comma excluded from the original draft to ensure the text is grammatically correct.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
An Leas-Chathaoirleach
When is it proposed to take Report Stage?
Now.
An Leas-Chathaoirleach
Is that agreed? Agreed.