Clause 28 - Meaning of electronic communications networks and services
Communications Bill
10:30 am
Mr Andrew Robathan (Blaby, Conservative)
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
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?