Clause 149 - Duties of OFCOM when carrying out spectrum functions
Communications Bill
10:15 am
Mr Andrew Lansley (South Cambridgeshire, Conservative)
Yes. I was there. The hon. Member for Milton Keynes, North-East was there, as was the Minister. If the hon. Member for Broxtowe (Dr. Palmer) were with us, he might recall it. My purpose in that debate was to establish that the matters to be taken into account under section 2 of the Wireless Telegraphy Act should be taken into account in relation not only to administrative incentive pricing on wireless telegraphy licences, but spectrum auctions. The then Minister, the hon. Member for Leeds, West (Mr. Battle) said about spectrum auctions that
''clause 2 matters may be taken into account in assessing bids''.—[Official Report, Standing Committee A, 13 November 1997; c. 151.]
The hon. Gentleman was resisting the point that not only might such matters be taken into account, but that they should be taken into account. The legislation did not require the Secretary of State to take them into account because the structure of the Wireless Telegraphy Act meant that they were related specifically to wireless telegraphy licences and administrative incentive pricing, and were expressly excluded from applying to spectrum auctions. It meant that the Secretary of State could then prescribe in regulations those matters that he or she wanted to take into account in a spectrum auction. The Secretary of State went on to do so, for example, in the 3G auction and in relation to a range of issues, such as the efficient use of the spectrum, the promotion of competition, optimum efficiency in spectrum use, the promotion of effective and sustainable competition and the delivery of full economic value.
Words and interpretations differ. It could be said that delivering full economic value comprises many of those other factors, but it is interesting that the development of innovative services, which was one of the matters to be taken into account under section 2 of the Wireless Telegraphy Act was not specified in relation to the 3G auction. I shall not go into a long rigmarole about the auction, but I contend that the Secretary of State was not required to apply those matters when considering an auction and chose not to do so. Whether she was right is secondary: it ought to have been a requirement. That is the history and what the Conservatives argued back in 1997.
The Government have changed the structure with clause 149 and done something different. Instead of disapplying the further factors in subsection (3) so that they applied only to administrative incentive pricing, in respect of grants of recognised spectrum access or in relation to spectrum trading, they have constructed things differently so that those factors apply to everything—to the whole of spectrum use. That is what the clause sets out.
However, as I understand it, subsection (3) disapplies those matters in relation to anything other than the prescribing of fees for wireless telegraphy licences for administrative incentive pricing purposes. It refers back to section 2 of the Wireless Telegraphy Act 1998 which, as we will discover when we debate schedule 17, will be amended to relate to the grant of wireless telegraphy licences or recognised spectrum access under section 1 of that Act. Subsection (3) means that the additional matters to be taken into account in subsection (2):
''efficient management and use of the . . . spectrum . . . economic and other benefits . . . development of innovative services . . . and competition'',
which I contend should be taken into account in spectrum auctions and in the administration of spectrum trading, may be disapplied. They would then apply only to administrative incentive pricing and recognised spectrum access.
Those matters should be taken into account throughout the activity of spectrum management. Therefore, amendment No. 15 would remove
subsection (3), which has the effect of disapplying those factors in relation to matters other than those relating to section 1 of the Wireless and Telegraphy Act.