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Mr. Allan: The clause relates to the power of Ofcom to set conditions on the providers of network services. I believe that it would be helpful to consider at this point the speed of access to database networks, which I assume comes within that area, so that the Minister can perhaps think about it. We may well return to the issue later when we talk about the detailed nature of the conditions.
Obviously, a debate is taking place on broadband, and there is a question about the universality of a broadband service, but even before we reach those issues, there are questions about access simply to be able to transmit data over a telephone network. We have a universal service obligation in terms of being able to transmit voice over a telephone network, but there are still plenty of parts of the country where one cannot get data access with any reasonable speed. My understanding is that the current universal service obligation is a very low speed of access.
I assume that Ofcom's power under the clause will be a tool that it can use to try to increase that minimum speed, perhaps not to broadband levels, but to reasonable levels, such as those we currently know as ISDN. Over time, the floor speed, if I may express it like that, will potentially increase.
I see that Ofcom can impose a condition under a universal service condition and an access-related condition. If Ofcom sought to raise the standards of the network, both the access-related condition and the universal service condition would seem to apply. However, in the clause, they appear to be mutually exclusive; they are separate forms of condition.
I raise that point not necessarily because I expect a detailed response from the Minister now, but because we are talking about giving Ofcom powers and I thought that it would be helpful to say that it will increasingly be an issue for Ofcom whether it can raise the level at which one can access data networks generally by using the powers that it gains under the clause.
The Chairman: Order. The Minister may respond briefly if he wishes to do so. There will be an opportunity to discuss the issue further under clause 61.
Mr. Timms: Thank you, Mr. Gale. The hon. Member for Sheffield, Hallam makes a fair point. As time goes on, we would expect the threshold to be raised. The clause sets out four specific conditions, and as you said, Mr. Gale, we will be able to consider each condition carefully under later clauses.
Question put and agreed to.
Clause 41 ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Column Number: 199
Clause 45
Directions and approvals of a s.41 condition
Mr. Robathan: I beg to move amendment No. 72, in
clause 45, page 44, line 11, leave out 'or consents' and insert ', consents or determinations.'
The Chairman: With this we may discuss the following: Amendment No. 73, in
clause 45, page 44, line 16, leave out 'or consent' and insert 'consent or determination'.
Amendment No. 74, in
clause 45, page 44, line 24, leave out 'or consent' and insert 'consent or determination'.
Amendment No. 75, in
clause 45, page 44, line 42, leave out 'or consent' and insert 'consent or determination'.
Amendment No. 76, in
clause 45, page 44, line 43, leave out 'or consent' and insert 'consent or determination'.
Amendment No. 120, in
clause 187, page 167, line 26, after 'approval', insert ', determination'.
Mr. Robathan: Clause 45 sets out the procedure that Ofcom or, indeed, other authorised persons must follow when giving, modifying or withdrawing a direction, approval or consent that may be given under a general condition entitlement. It implements articles 6 and 7 of the framework directive. Amendments Nos. 72 to 76 and the consequential amendment No. 120 would insert the word ''determination'', so that the measure did not refer only to ''approval or consent'', because determinations can have the same effect on a company's business as directives and should be subject to the same safeguards.
The clause sets out certain safeguards, such as consultation where Ofcom issues directions, approvals or consents, but the present wording does not include determinations made by Ofcom under the conditions of entitlement, which will replace licences. Many key issues will hang on the interpretation of those conditions and determinations issued under them. They should be subject to consultation to ensure that the ensuing regulation is right.
Mr. Timms: The hon. Member for Blaby may well be on to something with the amendments. We are considering whether the text in the Bill may have some problems in it along the lines to which he has just referred. I believe that there is an issue to be addressed, but the amendments that have been tabled do not deal with it properly. I ask the hon. Gentleman to withdraw the amendments, on the understanding that if we need to make changes I will introduce a fully considered amendment to do that on Report.
Mr. Robathan: I am delighted to hear that I am on to something. Perhaps my drafting was slightly defective, but with his excellent and high-priced team of lawyers and civil servants, I am sure that the Minister will be able to produce something better.
I beg to ask leave to withdraw the amendment.
Column Number: 200
Amendment, by leave, withdrawn.
Clause 45 ordered to stand part of the Bill.
Clause 46
delivery of copies of notification etc.
Mr. Whittingdale: I beg to move amendment No. 69, in
clause 46, page 45, line 38, leave out 'in OFCOM's opinion'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 70, in
clause 46, page 46, line 3, leave out 'in OFCOM's opinion'.
Amendment No. 71, in
clause 77, page 74, line 37, leave out 'in OFCOM's opinion'.
Mr. Whittingdale: I am delighted that the Minister is in such a good mood to listen to our arguments, and I wonder whether I can tempt him again.
The amendment relates to notification to the European Commission if Ofcom decides that a determination of significant market power will affect trade between member states, and gives the Commission the opportunity to exercise a veto.
The provisions of the directive make it plain that the test for whether there will be such an effect on trade between member states is an objective test, and not a subjective opinion of the regulator. The purpose of our amendment is to bring the wording of the Bill into line with the requirement of the directive.
It is slightly unusual for me to stick up for the European Commission, but there is always a first time. Ofcom must not be able to avoid its Community obligations to notify SMP determinations to the Commission, and thus to avoid scrutiny and a possible Commission veto, by saying that in its opinion there is no effect on trade between member states.
This is another case in which we seem to be implementing an EU directive differently, and potentially to the disadvantage of UK competitiveness. Inconsistencies such as this could confuse UK companies and companies thinking of coming into the UK. We tabled the amendment to ensure that the Bill was consistent with the terms of the directive.
Mr. Timms: Ofcom will be required to submit the notification of proposals to the European Commission in accordance with the requirements of the directives—notably the framework directive—as the hon. Gentleman rightly said. It follows, therefore, that the onus must be on Ofcom to determine whether those proposals affect trade between member states. That is what the inclusion of the words, ''In Ofcom's opinion'' is intended to achieve. No one else who could have an opinion or direct Ofcom: it is a matter that Ofcom must decide for itself. Therefore we have to retain, ''In Ofcom's opinion'' and I would suggest to the hon. Gentleman that removing those words, as he proposes, would not change the matter. There is no let-out for Ofcom, because if Ofcom takes the view that there is a problem, it has a duty to act in the way that is set out in the Bill, so I do not think that there is a problem.
Column Number: 201
Mr. Whittingdale: I accept what the Minister says, although we are slightly concerned that if a company is informed that it is subject to a determination of this sort, it has a right of appeal to the European Union if there is likely to be an effect on trade. That right is removed if Ofcom can turn around and say that it does not think that there will be an effect. It allows Ofcom a degree of latitude that concerns some people. I take the Minister's point and I do not want to make an issue of this, so on the basis of what he has said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 ordered to stand part of the Bill.
12.15 pm
Clause 47
Matters to which general conditions may relate
Mr. Whittingdale: I beg to move amendment No.126, in
clause 47, page 47, line 5, at end insert—
'(h) conditions requiring devices used to reproduce, convert, retrieve or access data or content through electronic communications networks or services to include technological security systems in compliance with such standards as OFCOM consider appropriate for protecting personal data, protecting copyrighted content and empowering parents to protect children from harmful content.'.
To some extent, we had this debate when we considered the general duties of Ofcom under clause 3, but it is worth returning to briefly because it is a point of huge importance. The amendment is a probing amendment but it is designed to get on the record the importance of the whole issue of copyright. The Minister for Tourism, Film and Broadcasting, who responded to our debate on clause 3, is no longer with us. We now have a Minister from the Department of Trade and Industry—a Department that in many ways has a lead role in dealing with issues of copyright. I am therefore keen that the Minister should have an opportunity to respond to my brief contribution.
There is no doubt that at the moment the threat to copyright is most significant in the music industry. That is not covered by this Bill and we do not argue that it should be, but over time that threat will affect more and more of the creative industries. When we eventually achieve broadband or even broadband plus, extremely fast download speeds will enable people to access video streaming with perfect reproduction of films. There is a danger that the film and video industry will be subject to the same problems as those suffered by the music industry. People will access and take material off the internet for which they do not pay any charge to the person who has created it, thereby bypassing the copyright requirements.
Our main concern is that the Bill, which is supposed to set the framework for many years to come, seems not to recognise that real danger and does not allow Ofcom any remit to take account of future technological developments. I do not want to press the amendment because I do not think that it is necessarily the right approach, but I hope that the Minister will be able to say a word about it. It is an important issue.
Column Number: 202
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