Joint Committee on The Draft Communications Bill Appendices to the Minutes of Evidence


APPENDIX 108

Memorandum submitted by Microsoft

  We very much appreciate the Committee's offer to consider specific drafting suggestions relating to Microsoft Ltd's comments of 6 June 2002 on the draft Bill. As I emphasised in my testimony before the Committee, it is not our intention to tell the Committee how to draft legislation, and there may certainly be many ways to incorporate the general comments that we provided on the content of the draft Bill. However, I do hope the attached, more concrete, suggestions are useful. We of course would be pleased to discuss any of these issues at your convenience. Our specific suggestions on our general points of comment follow.

INTERNET AND CONTENT REGULATION

  Microsoft supports the Government's stated intention, continued from the earlier Communications White Paper, to continue with the current policy on voluntary Internet regulation. We believe the draft Bill could more clearly advance this policy with the following suggested changes (in order of these sections' appearance in the Bill).

Section 18, Functions of the Content Board

  We would recommend deleting the words "or otherwise transmitted by means of electronic communications networks" from Section 18(2)(a) of the draft Bill. It may also be advisable to replace those words with the words "by means of the electronic media" to bring the concept in line with its intent as we understand it.

Section 22, Definition of "Electronic Communications Service"

  We would suggest adding at the end of the current definition the words "and except insofar as it is an information society service" to bring this definition more closely in line with the same definition in the Framework Directive. The drafters may wish to reference Directive 98/34/EC as the source of the definition of "information society service" for the sake of clarity, but we do not view this as essential. Alternatively, this exemption could be included in the definition of a "content service" in Section 22(7).

Sections 154-155, Meaning of "Television Licensable Content Service"

  This definition could be narrowed by replacing "by means of an electronic communications network" with "by means of the electronic media" in Section 154(1)(b). Alternatively, it could be clarified that video streaming and other transmission of video content via the Internet or similar networks falls within the exception for a "two-way service" in Sections 155(3) and 155(4). This likely could be accomplished by deleting clause (b) of Section 155(4), but our views on this point would benefit by more specific discussion with the drafters.

Section 17, OFCOM's Content Board

  We have commented that it would be useful for OFCOM to be required to consult with the Secretary of State, and for the Secretary of State in turn to consult with the industry, prior to any expansion of OFCOM's content regulation remit. Such an obligation could be added as a new Section 17(13). Such a new section could read as follows (although it could be drafted in several ways): "Before expanding the duties of the Content Board to other media or electronic communications networks, OFCOM must consult the Secretary of State, who must in turn open a public consultation on OFCOM's proposal".

ACCESS

  Here, we are concerned that two definitions in the Bill extend beyond the terms of the directives in a manner that could extend regulation to the Internet as the Bill clearly does not intend. This concern could be met with the following suggested changes:

Section 22(1), Definition of "Electronic Communications Network"

  The term "software and stored data" could be taken from the definition by deleting Section 22(1)(b)(iii).

Section 22(3), Definition of "Associated Facility"

  The term "available for use" in clause (a) should be changed to "is used", and the term "is so available" in clause (b) should be changed to "is used". We also believe that the concept of "other services" in clauses (ii) and (iii) of Section 22(3) should be deleted from the definition because it expands the concept of associated facilities beyond that encompassed within the Framework Directive, but again would be pleased to discuss this matter with the drafters. If this change is made, clause (b) could simply be amended to read "is used for the purpose of making the provision of that network or service possible".

OFCOM—TRANSPARENCY AND ACCOUNTABILITY

  We have suggested that OFCOM ought to strive for new levels of transparency and accountability as hallmarks of the newly converged regulatory framework to be created by the draft Bill. These principles are, of course, included in a general way in Section 3(2)(a), but we would suggest that the importance of these principles to reasoned decision-making would justify further emphasis in a separate section.

Section 3, General Duties of OFCOM

  We would add a new subsection to Section 3 (perhaps before the current subsection 7) that would state something akin to the following: "OFCOM's general duties of transparency and accountability under subsection (2)(a) require that (i) all decisions made by OFCOM on matters required in this Act or presented to it must be rendered in writing (or, if verbal, summarised in writing) within a reasonable time after such decisions are made; (ii) all meetings of OFCOM and its subsidiary bodies at which decisions will be taken shall be open to the public, except where law requires such meetings to be taken in closed session; and (iii) appropriate consultation with the public and the industry be required on significant decisions to be taken by OFCOM and its subsidiary bodies, including all matters relating to the remit of OFCOM or such subsidiary bodies."

BROADBAND

  We believe, as do most participants in the industry, that broadband take-up has been disappointing. To be sure, there are marketplace measures to be taken, and Microsoft is committed to taking those measures. It may also be helpful, however, for OFCOM to have as part of its remit a duty to (1) encourage the development of new communications technologies, such as broadband, and (2) aggressively monitor and encourage local loop unbundling as one of several paths toward increased broadband availability. We agree with INTELLECT that attempting to define "broadband" would be counterproductive because technology continues to develop. Yet, it would be possible to include in OFCOM's remit a goal of encouraging technological development.

Section 3, General Duties of OFCOM

  The rollout of broadband and other new technologies could be encouraged by the inclusion of a new subsection, optimally located after current subsection (c), which could state: "to encourage the provision of new technologies and services to the public for the better and more efficient development of electronic communications networks and services".

Section 4, Duties for the Purpose of Fulfilling Community Obligations

  Local loop unbundling, which is important to the rollout of broadband, is required by Regulation (EC) No 2887/2000 on unbundled access to the local loop (18 December 2000). Accordingly, it may be appropriate to reference that obligation in Section 4, perhaps by including as part of subsection (11) that "in this section—"securing efficiency and sustainable competition" shall include prompt and effective enforcement of Community regulations fostering competition in electronic communications networks, including Regulation (EC) No 2887/2000". Of course, this goal could be expressed in many different ways.

  Thank you again for the opportunity to provide these more specific suggestions to you. We would be pleased to meet with you to explain them or work through alternative language formulations if you wish.

June 2002


 
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