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Lord Avebury: My Lords, I also thank the Minister for his courtesy in discussing this matter with me yesterday. He could has resolved this problem, which has caused enormous concern in the industry, as the noble Baroness, Lady Buscombe, said, if we had arrived at the solution much earlier. I am sorry that we had to take it up to the wire, but we felt that the issue was important.
Lord McIntosh of Haringey: My Lords, better late than inflexible.
Lord Avebury: I quite agree, my Lords. I am thankful that the department is as flexible as it has proved to be. I hope that the Minister will not take it amiss if I say that, as the period that the Bill has to be on the statute book approaches, we have noticed something of an increase in the flexibility of the department. Of course, that may be purely coincidental. I am happy to beg leave to withdraw the amendment with the assurances that have been given and with the extremely helpful letter that we received from the chairman of Ofcom.
Amendment, by leave, withdrawn.
Clause 157 [Grant of recognised spectrum access]:
Lord Avebury moved Amendment No. 24:
- Page 145, line 27, at end insert—
The noble Lord said: My Lords, we have had a great many discussions about the merits of recognised spectrum access throughout the proceedings of the Bill. There have been parallel debates going on as a result of the Radiocommunications Agency's consultation on the subject. I do not propose to rehearse those arguments today, but I merely point out that the matter is still highly controversial. Even those who were most in favour of RSAs, such as the spectrum management advisory group, acknowledge that there are unresolved problems such as the distortion of competition that would arise in the European Union if RSA is introduced in some countries and not in others. The taxation aspects also have to be more fully assessed.
In order to resolve this and other outstanding issues before RSA is introduced, we propose in this amendment that Ofcom should undertake an impact assessment under Clause 7. That clause gives Ofcom power to carry out impact assessments when it proposes to do anything important for the purposes of, or in connection with, its functions. The definition of importance in Clause 7(2) certainly applies to the introduction of RSA. An impact assessment would allow persons likely to be affected by RSA to make
Baroness Buscombe: My Lords, the Minister and I have had extensive exchanges on RSAs in Committee and on Report. I have raised a whole host of issues in relation to the way in which the Government intend to implement RSAs and the powers of control and intervention that the Government intend to give Ofcom in this area.
My concerns remain unallayed in several important areas. The Bill still fails to provide sufficiently robust requirements for consultation with the industry and other interested parties. I remain to be convinced that auctioning is an appropriate tool for RSAs. Ofcom's powers to limit spectrum use, modify and revoke licences and place conditions on spectrum trading, all reflect a hugely interventionist approach in this area.
I am pleased, however, that the Government have recognised the concerns that I expressed on behalf of many in the industry on one particular issue—that there is no reason to allow Ofcom to impose conditions or restrictions on the transmission or broadcasting of particular matters on RSAs. It is right for that particular provision to be removed from the Bill.
I shall not take up much more time on the matter, but there is one question that I put to the Minister on Report which he has failed to answer. In Committee, the Minister expressed his personal sympathy with the arguments that I put forward in favour of grandfathering the RSA proposals to pre-existing satellite transponder agreements, which have not factored in the possibility of RSA. It is, I think he agreed, important not to discriminate in providing such protection to terrestrial broadcasters' licensing agreements and satellite transponder agreements.
The Minister has indicated, however, that the timing of the introduction of charges for RSA will be a matter for Ofcom. Yet, in their response to the review of radio spectrum management, the Government said that spectrum trading and pricing, as regards terrestrial broadcasters, would not take effect while they had existing licences that did not anticipate such pricing. If the Government can make such a clear policy statement on terrestrial frequencies, what is stopping the Minister from making an equivalent policy statement today on satellite transponder agreements, rather than simply expressing a personal view?
Lord McIntosh of Haringey: My Lords, with such issues, we return to the issue of recognised spectrum access. I am told that it is also called "radio signals from afar". I shall speak to Amendment No. 25, about which the noble Baroness, Lady Buscombe, spoke, but I shall speak first to Amendment No. 24, which was moved by the noble Lord, Lord Avebury.
We listened carefully to the noble Lord, and we understand the concerns. We agree about the importance of impact assessments. They are an essential component
Given the significance of the RSA provisions, I would expect Ofcom to follow the Clause 7 procedure and carry out an impact assessment before deciding whether to proceed. I would further expect the assessment to have due regard to the international nature of the satellite services, if it relates to satellites, that is. We should bear it in mind that RSA may be introduced for other services, which is a good reason to allow Ofcom a measure of flexibility over the detailed contents of the assessment and not to prescribe them in the Bill.
Clause 7 places Ofcom under an obligation to publish impact assessments in important cases. It is difficult to imagine that RSA is not important. It will be open to operators or anyone else to make representations to Ofcom, if an assessment omits a material consideration, and Ofcom will be required not to implement the proposal until it has taken account of representations received. That is in addition to the duty under Clause 400, which will also apply. Clause 7 already makes sufficient provision for impact assessments without any need for special provision in respect of RSA.
I turn to Amendment No. 25. On Report, I undertook to review the scope of Ofcom's power to make a grant of RSA subject to restrictions and conditions. The noble Baroness, Lady Buscombe, had asked why Ofcom needed such a power, especially in relation to the content of transmissions and broadcasts, and she moved amendments to remove the power from the Bill.
I have looked carefully at subsection (5) of Clause 157 to see whether we could narrow Ofcom's powers without compromising the effective management of the radio spectrum. Amendment No. 25 is the result of that consideration. It will remove from the clause Ofcom's express powers in relation to restrictions and conditions on content. On reflection, we agree with the noble Baroness's argument that they are unnecessary for RSA. She made a fair point, and I am grateful to her. The issue has been extensively debated, and I congratulate the noble Baroness, Lady Buscombe, and the noble Lord, Lord Avebury, on the persistence with which they have pursued the matter.
The noble Baroness asked why I could not give a categoric assurance on grandfathering. It is not really for the Government to do that. Decisions on RSA will be a matter for Ofcom. Unlike for licensed users of spectrum, such as terrestrial broadcasters, the Secretary of State has no existing powers relating to RSA, which is a new system introduced by the Bill. The situation with RSA is more complex, and the effects are not limited to broadcasting. For example, decisions on RSA could affect the availability of spectrum for terrestrial fixed links in the 11 gigahertz band, which is used by Astra for Sky transmissions and shared with terrestrial services. It is for Ofcom to balance such considerations, but I repeat my view that I expect it to take account of any implications for switchover.
Lord Avebury: My Lords, I hope that what the Minister said about grandfathering has satisfied the noble Baroness, Lady Buscombe, to some extent, at least. Perhaps she could get a letter from the chairman of Ofcom—similar to the one that we secured with regard to the previous amendment—that would say what he thought was possible?
Lord McIntosh of Haringey: My Lords, I shall ask him to do that.
Lord Avebury: My Lords, I am grateful to the Minister. That would be useful, even if he cannot give a complete undertaking that the same procedures will be applied to satellite as are applied to terrestrial to give whatever undertakings are possible about the extension of licences that might be covered in future by the introduction of RSA.
The Minister has also said, effectively, that we have what we want. An impact assessment will be conducted under Clause 7. Moreover, he has drawn attention to Clause 400, which reinforces the necessity for Ofcom to take account of representations from the industry before introducing RSA. I hope that that will also go a long way towards reassuring the industry that there will not be a sudden introduction of RSA without the fullest possible consultation.
We have achieved quite a lot in our discussions on the matter, and I sincerely hope that Ofcom will be as receptive to representations from the satellite industry as it ought to be. We look forward to continued consultations with Ofcom, so that we can guide it, if it feels that it is necessary for your Lordships to continue to take an interest in the matter a long time after the Bill has left the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
"( ) OFCOM shall carry out an impact assessment in line with section 7, prior to any introduction of recognised spectrum access, having due regard to the international implications of such a measure."
6.45 p.m.
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