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Lord Avebury: In his reply, I noticed that the Minister did not say anything about the ombudsman, although that procedure is available to those who feel that they have a grievance. One would imagine that the Government would want to encourage that kind of resolution process rather than everyone having to go through the courts. Furthermore, if ultimately a remedy is available from a determination by Ofcom, the person could go to court with the support that such a determination had been made. He would then be on much stronger ground than if Ofcom merely were to give him "leave" to go to court. The noble Lord also
did not comment on the prejudicial effect on the view of the court if Ofcom gives leave for the proceedings to be brought.For all those reasons, I find his reply profoundly unsatisfactory and I hope that we shall not go on like this. If we keep on receiving the same kind of response from the Minister, it will mean an awful lot of work left over for the Report stage. However, under the circumstances, it is clear that I can do nothing but—
Lord McIntosh of Haringey: I have tried to confine myself to the provisions of the amendment. If the noble Lord, Lord Avebury, wants to talk about other matters such as the ombudsman, he is welcome to do so, but the amendment does not provide anything which would enable me to talk about the wider matters to which he referred.
Lord Avebury: I say only that the Minister appears to think that people in this situation would not get redress from the ombudsman because he did not even bother to mention him. Therefore he is seeking to encourage them to go to the courts, when they have the opportunity to do so and when they get leave from Ofcom to proceed with such litigation. I do not agree with that attitude and I am sure that we shall see these matters dealt with again on Report. For the time being, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 103 [Application of the electronic communications code]:
Lord Avebury moved Amendment No. 120:
- Page 98, line 41, at end insert—
The noble Lord said: I hope that we have come to a matter on which we shall be able to reach a certain amount of agreement between the two sides of the Committee. I am sure that once I have set out the arguments, we shall have a satisfactory response from the ministerial Bench.
These amendments deal with code powers originally set out in the Telecommunications Act 1984 and now, as amended by Schedule 3, renewed in this legislation. Under these powers, certain owners of transmission towers and masts are protected from site landlords either terminating the lease on the availability of the land, thus removing the operators from the site, or from trying hugely to increase rents when contracts come to an end.
Code powers provide the tenants of land on which the mast and towers are located with the option of a fair market review or a court review in the case of such action. This would, in turn, encourage more telecomms operators who hold code powers to protect their individual sites and to use shared sites provided by independent operators, enabling those operators to protect and retain key national broadcast network sites.
The situation regarding the application of the code to planning legislation is not specifically addressed in the Bill. Although this creates an anomaly as to what the position is regarding the interaction between this and the new code, in the absence of express provisions, it is likely that planning legislation will be interpreted and treated in the same way as is the case prior to the Bill.
The consultation paper, The Granting of the Electronic Communications Code by Oftel, says that all providers of electronic communications networks can apply for the grant of code powers under the Bill. The paper deals with the need to encourage sharing of apparatus. In the case of radio masts, it says that planning considerations make sharing desirable and sometimes necessary. Paragraph 2.13 of the paper says that they would look favourably on more applications where evidence is produced showing the applicants' willingness to share infrastructure. This is encouraging to the owners of towers and masts, where there is a strong business case for sharing, but we consider that it would be useful if the Bill reflects the ideas in the paper.
We are in any case concerned that the providers of towers and masts will have to renegotiate a significant number of contracts with their landlords and customers, placing them under a significant additional financial burden if the issue of charges and the existing contractual arrangements is not clarified. The impact of the delay on these operators' ability to carry on their business should not be underestimated, and could severely impact on the future of the timely development of existing sites for shared telecomms networks and their financing of the ongoing roll-out of DTT and DAB, jeopardising the Government's proposed switchover to digital date of 2010.
Presumably, Oftel will begin to consider applications for code powers only after 1st June when the consultation period ends. We suggest that the Government address the problem of uncertainty and expense which the Bill imposes on the operators of towers and masts, whose optimum utilisation of their assets and delivery of services is so essential to several aspects of Government policy. I beg to move.
Lord Evans of Temple Guiting: I listened carefully to the noble Lord, Lord Avebury. I was fortunate enough to have a discussion with him yesterday about the amendment. We fully understand that it is related to a concern expressed by Crown Castle about the current procedures for control of rents as based on shared transmitter masts. The electronic communications code is not really the applicable instrument for this concern. The market review of broadcasting transmission services will determine what regime is applied in the future. However, I have listened carefully to the concerns raised by the noble Lord and have agreed to give a full written response to his concerns which he will have before Report.
Amendment No. 317 rightly identifies that the change in terminology under the new regime will have a knock-on effect on planning law. However, Clause 399 already provides the Secretary of State with the power, by order, to amend secondary legislation to ensure that the terminology they use matches that of the Bill. All secondary legislation, including the general development orders, will, wherever we consider it necessary, be amended by an order made under Clause 399.
In the light of what I have said, I ask the noble Lord to withdraw the amendment.
Lord Avebury: I am very happy to withdraw the amendment on the basis of the Minister's kind offer to let us have a paper on this matter. We will discuss that with the industry and it will, I hope, resolve the matter so that we do not need to return to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 [Enforcement notification for contravention of code restrictions]:
Lord Evans of Temple Guiting moved Amendment No. 121:
The noble Lord said: The amendments correct two inconsistencies. Clause 108(4)(b) incorrectly limits the fixing of enforcement timescales to the making of payments. However, a notified provider can be ordered to take steps other than the making of a payment under Clause 107. Thus the amendment of Clause 108 will correct this divergence.
Clause 111 uses the term "operator" everywhere except subsection (5); this discrepancy could lead to ambiguity. This problem is rectified by the amendment. I beg to move.
Baroness Buscombe: I am grateful to the Minister for giving us prior notification of these technical amendments. In a Bill this complex, it is essential that terminology is consistent, and we are happy to accept the amendment on that basis.
Lord Avebury: We, too, are very happy to accept the amendments. However, if, at this late stage of the Bill, we are still discovering inconsistencies within a single clause, we worry that other matters, which so far have not been picked up by the Bill team, may find their way into the Bill when it finally reaches the statute book, by which time it will probably be too late to deal with them. Of course, in a vast piece of legislation of 500-odd pages, it is inevitable that a few such muddles will occur.
On Question, amendment agreed to.
Clause 108, as amended, agreed to.
Clauses 109 and 110 agreed to.
Clause 111 [Procedure for directions under s. 110]:
Lord McIntosh of Haringey moved Amendment No. 122:
On Question, amendment agreed to.
Clause 111, as amended, agreed to.
Clause 117 [Conditions regulating premium rate services]:
Baroness Buscombe moved Amendment No. 122ZA:
The noble Baroness said: My noble friend Lord Lucas apologises for his absence and has asked me to speak to this amendment on his behalf. It gives me an opportunity to raise one or two additional issues within the context of the amendment.
The amendment relates to premium rate phone lines that are used as a payment method for games such as scratch cards included in magazines or competitions or radio and television programmes. These games are characterised by a lack of information for consumers as to their chance of winning, the real nature and value of the prize and often the identity of the promoter—an accommodation address is used—as well as the real cost of participation.
The purpose of the amendment is to ensure that Ofcom has the power to require the promoters of these games to provide a proper level of information to consumers. My noble friend asked whether the Minister could show that that was already the case.
We are aware that the Minister responded to a question in relation to premium rate services in a letter addressed to myself, dated 30th April. There he stated that early amendments in the Bill—Amendments Nos. 1 to 4—provide for a premium rate service regulatory regime, contained in Clauses 117 to 121, to cover an additional category of electronic communications network provider. That is a category of provider whose network is used for the provision of premium rate services under circumstances in which the agreement that permits such use is with an intermediary, or a provider of an electronic communications network or service. The amendments aim particularly at the problem of premium rate services provided from electronic communications networks or electronic communications services overseas, via what is known as an international direct dialled number. That question was raised by the noble Baroness, Lady Gould of Potternewton, during Second Reading on 25th March.
I should like to add a comment from the Advertising Association in relation to the issue. The association says that it fully understands and supports the concerns originally raised by Her Majesty's
The original aim in setting up Ofcom was to reduce regulatory overlap. However, the government amendment in the Commons has increased regulatory overlap in the association's view. Any advertisement featuring a premium rate number will now come within the remit of the code of ICSTIS, the existing statutory television and radio advertising code or within the British codes of advertising and sales promotion, administered by the ASA for non-broadcast advertising. The ASA has sanctions available to it that are not available to ICSTIS; for example, the media will refuse to carry advertisements likely to be, or found to be, in breach of the code. In January, the ASA published an adjudication banning a clearly irresponsible advertisement for air guns that had been placed in the Daily Sport and advised customers to call a premium rate number in order to make a purchase. ICSTIS had considered the matter but declined to investigate the case on the basis that it did not think there had been a breach of its code.
The Department of Trade and Industry has given the ASA some reassurance that there is no intention to undermine the current balance of responsibilities between ICSTIS and the ASA, but it would be extremely helpful to have a statement to that effect from the Minister. I beg to move.
"( ) In this section persons to whom the electronic communications code may be applied shall not be restricted to telecommunications operators."
4.15 p.m.
Page 103, line 7, leave out "making of the payment" and insert "taking of the steps"
Page 106, line 37, leave out "contravening provider or contravening supplier" and insert "operator".
Page 110, line 15, after "promotion" insert ", provision of information to consumers"
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