Standing Committee E
Tuesday 17 December 2002
(Morning)
[Mr. Roger Gale in the Chair]
10.30 am
The Chairman: Before we start, I am pleased to note that the programming issues have been resolved satisfactorily by the usual channels. Also, I draw the Committee's attention to the fact that clause 28 is definitional—if there is such a word—and is fairly tightly drawn. Several amendments to it have been tabled, and we shall consider them in a moment, but I do not propose to permit the Committee to enter into a ''how many angels can dance on a head of a pin'' debate.
Michael Fabricant (Lichfield): On a point of order, Mr. Gale. When we terminated the previous sitting, you said that you would report the fact that about half of a group of amendments could not be discussed because we ran out of time according to the agreed guillotine. I wonder whether you have had any feedback that you could report to the Committee.
The Chairman: I received the Hansard report of those proceedings only this morning. It is my intention to draw Sir Alan Haselhurst's attention to the verbatim report, so that he can see precisely what was said. Clause 28
Meaning of electronic communications networks and services
Mr. Andrew Robathan (Blaby): I beg to move amendment No. 62, in
clause 28, page 25, line 19, leave out paragraph (b) and insert—
'(b) such of the following as are used, by the person providing the system, for the conveyance, including switching or routing, of the signals—
(i) apparatus comprised in the system; and
(ii) software and stored data.'.
The Chairman: With this we may discuss the following: Amendment No. 217, in
Amendment No. 63, in
clause 28, page 25, line 28, leave out paragraphs (a) and (b) and insert—
'(a) is available for use incidentally to the use of an electronic communications network or service; and
(b) is so available for the purpose of—
(i) making the provision of that network or service possible; or
(ii) otherwise supporting the provision of that network or service.'.
Amendment No. 227, in
Column Number: 174
clause 28, page 25, leave out from beginning of line 30 to the word 'and' in line 31.
Amendment No. 218, in
Amendment No. 219, in
Mr. Robathan: I can assure you that I shall not dwell on how many angels can dance on the head of a pin, Mr. Gale, although that is quite topical.
Chapter 1 of part 2 sets out the new regulatory framework for electronic communications largely according to the European Commission communications directives. Therefore, to a certain extent, it is not controversial, although we may have some discussion about the interpretation of the definitions in the clause. We are entering upon a technical subject in which my physics with chemistry O-level will, I am sure, come in very useful—as, indeed, will the time that the Minister for Tourism, Film and Broadcasting spent at Hornsey college of art.
We welcome the Minister for E-Commerce and Competitiveness to the Committee for the first time. He was not here last week, and it is nice that he has turned up. I was interested to learn that in 1986 he wrote a book or pamphlet entitled ''Broadband Communications: The Commercial Impact'', and another on ISDN. He used to work for a company called Ovum, a consultancy in computing and telecommunications, and was a major shareholder before he sensibly put the shares into a charitable trust. Those of us who stopped at chemistry O-level in 1966 look forward to him enlightening us on one or two technical issues.
Amendment No. 62—and the others in the group—tease more out of the definitions. We are concerned about gold-plating the definitions in the Bill. As drafted, the definition of ''electronic communications network'' includes apparatus comprised in the transmission system concerned; apparatus used for ''switching or routing'' the signals; and ''software and stored data'' used
''by the person providing the system and in association with it, for the conveyance of the signals''.
The amendment would simplify and clarify the definition by eliminating the words ''in association with'', which seem unnecessary and might make the definition dangerously wide. The amendment would eliminate the confusing duplication of the term ''apparatus'' by ensuring that the ''software and stored data'' referred to—the mention of ''data'' is for my hon. Friend the Member for Lichfield (Michael Fabricant)—is the software and data stored in exchanges to ensure that calls are properly routed. The clause currently allows regulation to spill over unpredictably into other areas—one area that might be affected is the billing system. The Government should bring certainty to the markets and encourage investment by clarifying what they want.
Column Number: 175
Amendment No. 217 to the definition of ''electronic communications service'' would represent or translate the wording of the framework directive. It would substitute the test of ''mainly'' for the test in the Bill of ''principal feature''. The distinction is important, because under the tests contained in the EU directive, a service can be regulated as an electronic communications service only if it consists wholly or mainly in the conveyance of signals.
Michael Fabricant: To follow on from my hon. Friend's point on amendment No. 62, does he agree that the entire nub of amendment No. 217 is contained in the last four words, ''but excludes content services''?
Mr. Robathan: My hon. Friend is right. The amendment proposes that ''wholly or mainly'' should replace ''principal feature'', which would mean that if more than 50 per cent. of a system were to consist of other services, it could not be regulated as an electronic communications service. If the Bill's ''principal feature'' test is used, a service may be up for regulation if, for instance, 30 per cent. of it is a conveyanced service but it has seven other features that each make up 10 per cent. The 30 per cent. service would be the principal feature, even though the service group consisted mainly of non-conveyance activities.
Amendment No. 63 is intended to find out from the Minister the exact meaning of ''associated facility''. As the Bill is currently drafted, that term is defined extremely widely. It could bring within the scope of regulation all sorts of facilities that the directives did not intend to be regulated. The framework directive offers conditional access systems and electronic programme guides as examples of associated facilities, as do the Government's explanatory notes to the Bill. However, unless the term is limited in some way, it could leave a variety of other facilities open to regulation: for example, poles, ducts and trenches could fall within the current definition. Do we want the companies that dig trenches for telecoms companies to be subject to communications regulations? Does the Bill intend that the regulations should cover firms that sell content, marketing or distribution services to companies that provide electronic communications services?
Amendment No. 227 also addresses the definition of ''electronic communications network''. It currently includes apparatus, but the definition in article 2 of the European framework directive is significantly narrower in scope; it refers to systems and equipment that
''permit the conveyance of signals''.
We believe that the Bill should follow the wording of the definition in article 2 of the framework directive, where electronic communications network means,
''transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals''.
In the context of associated facilities, and the broadband objectives, one recommendation of the Broadband Stakeholder Group is that barriers to third parties providing similar infrastructure—which could
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include the ducts and trenches—should be removed. We think that clause 28 should be revised: the words in brackets in subsection (3)(a) should be excised:
''(whether or not one provided by the person making the facility available)''.
That would align the provision with article 2(e) of the European framework directive, and it would allow the regulation of the third party providing civil infrastructure to fall outside Ofcom's scope.
Amendments Nos. 218 and 219 approach the same confusion from a different angle. They also address the definition of electronic communications service, and they seek to ensure that broadcasting is excluded from its scope. It is clear that, under the definition set out in the framework directive, broadcasting is not an electronic communications service because it is a content service—as my hon. Friend the Member for Lichfield said—and because it does not ''wholly or mainly'' consist in the conveyance of a signal. It is a service that is mainly, if not wholly, the provision of content to end users, and therefore should not be categorised as an electronic communications service. Although the signals used to transmit the contents services could theoretically constitute a service, under the ''wholly or mainly'' test they should not be treated as a separate service, and, in any case, they are not necessarily provided by the broadcaster. Therefore, broadcasting should not be regulated as an electronic communications service under part 2 of the Bill.
In essence, we are concerned about changes in the definition from the European Union framework directive and that it may constitute gold-plating of the EU legislation. I am sure that the changes have been introduced by good legal minds with good intent, but, in an international environment, it should be easier to see the international agreement clearly placed in legislation. Why have the changes to article 2 of the framework directive taken place? Do they represent gold-plating and might not sticking to the definitions in the directorate lead to divergence and confusion?
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