Miscellaneous! A bill, for what?? :)

Tom Young

Hi,

I guess we all have priorities. This particular one is a two week reply.

Well done for being on the ball, IOFFL .....

Is damien.m on leave or what??

http://www.dcmnr.gov.ie/NR/rdonlyres/9BE7B5A1-30F2-4FB7-8701-AFA7B172FA71/0/PublicConsultationProcessondraftElectronicCommunicationsMiscellaneousProvisionsBill.doc

It's there somewhere, before some smart ass says otherwise.

Ciao,

Tom

jwt

The miscellaneous bill has been known about for some time....we even discussed it with the Minister at some length.



I didn't realise anyone on the committee had to actually take leave........ our mistake we'll schedule our leave in advance in future and be sure to get approval before hand.


Thanks

John

damien

Converted from Word Doc to forum post:

Draft Electronic Communications Miscellaneous Provisions Bill

Public Consultation Process (Closing Date 20th January 2006)


Submissions Invited
The Department of Communications, Marine and Natural Resources invites comments from interested parties on draft legislative proposals to be set out in the Communications Miscellaneous Provisions Bill.


Background Information
There are currently 4 distinct proposals in the draft Miscellaneous Provisions Bill, see Appendix 1 below and these include:

1. Enforcement of Regulatory Obligations;
2. Powers for ComReg to investigate Overcharging;
3. Regulation of .ie Domain Name; and
4. Emergency Call Handling Service


Draft Legislative Proposals
The draft legislative proposals on which comments are sought are set out here. (35 page Word Document)

Regulatory Impact Analysis
The factors taken into consideration in formulating the legislative proposals are set out in the draft Regulatory Impact Analysis statement here (9 Page word doc)

Closing Date

Comments from interested parties can be submitted by post or ideally by e-mail by close of business on 20th January 2006 to the address provided below:

Please note that consideration may be given to making any submissions received available on the Departments website, or as part of any report on the Consultation Process, so please advise if you have any difficulty with this.
Ms Catherine McDonald
Communications (Regulation and Postal) Division,
Department of Communications, Marine and Natural Resources,
Leeson Lane,
Dublin 2

email: Communications.RegulatoryAffairs@dcmnr.gov.ie

Telephone: 01-6782953

Appendix 1
Proposals for an Electronic Communications Miscellaneous Provisions Bill

Part 1 - Enforcement of Regulatory Obligations

This part of the Bill will mainly provide that non-compliance with obligations under the EU Electronic Communications Regulatory Package which was transposed into Irish law in 2003. Breaches of specific regulatory obligations will be rendered subject to summary or indictable penalties as appropriate and will accordingly increase both ComReg’s and the Data Protection Commissioner’s enforcement powers in this and other respects. The increased penalties and more efficient prosecuting procedures will help achieve compliance with regulatory obligations. It is envisaged that the enforcement powers proposed, with both civil and criminal remedies would give ComReg the necessary muscle to enforce regulatory decisions to support the development of competition in the market.

Part 2 – Power of Regulator to investigate overcharging

The main objective here is to empower ComReg to investigate incidents of suspected overcharging (i.e. charging in excess of published tariffs) by undertakings.

The current regulatory framework provides ComReg with powers in relation to consumer protection but does not specifically allow ComReg to investigate overcharging. Incidents of overcharging in 2004 by operators (Eircom, Vodafone & O2) highlighted ComReg's absence of powers to intervene in such matters. The Director of Consumer Affairs has a role in consumer protection, but given ComReg’s overarching telecoms remit, it is considered appropriate to extend ComReg’s consumer protection role to include powers to specifically allow the investigation of overcharging.

Part 3 - Regulation of .ie Domain Name

It is proposed that the responsibility for the regulation of the functions of the IEDR (IE Domain Registry) in relation to the management of the .ie domain name be vested in ComReg. The proposals will specifically provide for the transfer of the powers conferred on the Minister in Section 31 of the Electronic Commerce Act, 2000 to ComReg.

Part 4 - Emergency Call Handling

The draft Bill will provide for the setting up of an emergency call answering facility to replace the service currently provided by Eircom - to be operated by a private entity and paid for by industry. Note: These proposals are not yet in the public domain

Sponge Bob

damien.m wrote:

Submissions Invited
The Department of Communications, Marine and Natural Resources invites comments from interested parties on draft legislative proposals to be set out in the Communications Miscellaneous Provisions Bill.

Part 1 - Enforcement of Regulatory Obligations

This part of the Bill will mainly provide that non-compliance with obligations under the EU Electronic Communications Regulatory Package which was transposed into Irish law in 2003. Breaches of specific regulatory obligations will be rendered subject to summary or indictable penalties as appropriate and will accordingly increase both ComReg’s and the Data Protection Commissioner’s enforcement powers in this and other respects. The increased penalties and more efficient prosecuting procedures will help achieve compliance with regulatory obligations. It is envisaged that the enforcement powers proposed, with both civil and criminal remedies would give ComReg the necessary muscle to enforce regulatory decisions to support the development of competition in the market.

It still wont result in any meaningful fines for the big 3 cartel. Why have Comreg never enforced licence obligation specific fines which are not based on subjective 'non compliance' or market analysis based 'non-compliance' but simple contractual 'non compliance' such as the Eircom 3.5Ghz licence.

Part 2 – Power of Regulator to investigate overcharging

The current regulatory framework provides ComReg with powers in relation to consumer protection but does not specifically allow ComReg to investigate overcharging. Incidents of overcharging in 2004 by operators (Eircom, Vodafone & O2) highlighted ComReg's absence of powers to intervene in such matters. The Director of Consumer Affairs has a role in consumer protection, but given ComReg’s overarching telecoms remit, it is considered appropriate to extend ComReg’s consumer protection role to include powers to specifically allow the investigation of overcharging.

I doubt it will make any difference. Current requirements are to provide accurate bills (neither over nor under charge) for all the good it does us.

Only a statutory obligation to compensation direct to the customer by an offender, and at a multiple of the overcharge, will focus minds in the likes of BT on having accurate billing. A bit like the late invoicing mandatory interest payable scenario. Comreg had the power..or was it an obligation?... to mandate Functional Internet Access for all so they defined the internet as functional at 0k to get themselves out of doing anything. Expect more of same.

Part 4 - Emergency Call Handling

The draft Bill will provide for the setting up of an emergency call answering facility to replace the service currently provided by Eircom - to be operated by a private entity and paid for by industry. Note: These proposals are not yet in the public domain

Whats in the public domain is that Eircom have said they refuse to pay the total cost themselves, €7m a year apparently , which is fair enough. McRedmond of course. So they said they would stop running it and it made it into the bill PDQ.

Whats not in the public domain is stuff like the location based information that will be transmitted as standard to a centre run by Herr Flicks department ...not Comreg or Dept of Comms guys, or that Emergency call terminating will not be run by industry but by a body run by securocrats , or that some of the network resilience requirements for 112/999 handling could kill some smaller operators but because of the secrecy they cannot plan ahead , or that 'requests for assistance to the civil power' may be polled out to all users in a cell sector on a mobile network or even that doppler data from your mobile network can be used to prove you were speeding if you dispute it ....because certain supplementary network metric data will be retained for a period .

No wonder they published nothing

damien

Submission date extended until Friday 27 January, 2006.

eircomtribunal

Article on siliconrepublic about the issue:

Industry interest groups such as ALTO, which represents various independent licensed telecoms firms, and IrelandOffline, a broadband lobby group, have expressed confidence that the long awaited powers will be granted to ComReg this year.

However, Damien Mulley, a spokesman for IrelandOffline, said he was concerned as to whether if granted such powers would ComReg make sufficient use of them. “While the existing fines are paltry, I don’t believe that they [ComReg] have ever fined a telecoms company anyway with their existing powers. They really need a change of attitude and be a lot more aggressive towards telecoms companies. They don’t have a history of being aggressive enough with companies in breach of regulations.

“The encouraging thing is that under the new bill they will be given a lot more investigatory powers to tackle such things as billing issues.

“Our worry is that ComReg will get teeth but the attitude isn’t there. Our worry is that they’ll be given the powers of a Rottweiller but will emerge as just a poodle with big teeth,” Mulley said.

P.

kaizersoze

“Our worry is that ComReg will get teeth but the attitude isn’t there. Our worry is that they’ll be given the powers of a Rottweiller but will emerge as just a poodle with big teeth,” Mulley said.

Brilliant:D

eircomtribunal

From ENN

Tommy Broughan, Ireland's Labour spokesperson on communications, has welcomed reports that ComReg is to be given broadened enforcement powers. "At the outset ComReg was supposed to be able to fine companies up to 10 percent of their annual turnover if they breached directives or any of the terms of their licences. However, these measures were never implemented," he said in a statement. "It is absurd in the context of the multi-billion euro telecommunications industry to have a maximum financial penalty of a paltry EUR3,000." He also said that responsibility for administration of the dot-ie domain should be brought into ComReg, saying dot-ie domains remain "prohibitively priced."

P.

damien

From the Indo
http://www.unison.ie/business/stories.php3?ca=80&si=1542707

Telcos face heavy fines of up to €4m in tough new Bill

TELCOS could face fines of up to €4m, or 10pc of turnover, under tough new penalties drawn up as part of the Electronic Communications (Miscellaneous Provisions) Bill, 2005.

The telcos have just been given an extension to the deadline for responding to proposals, of January 27.

The Bill, which applies to all telcos operating here, from fixed line operators like Eircom and mobile firms Vodafone and O2 Ireland, is expected to be put before the Dáil by Communications Minister Noel Dempsey later this year.

It reinstates ComReg's ability to seek court approval to levy the fines. That power lapsed in July 2003 when a new European regulatory framework was introduced.

It is believed that the telcos are unhappy about a number of proposals in the draft, including the increased fines and the greater powers which could be given to telecoms watchdog ComReg.

For example, the current regulatory regime, a package of five EU directives transposed in 2003, provides for summary proceedings with a maximum fine of €3,000 and the option of civil proceedings for non-compliance with obligations under that regime.

The new fines could be imposed if a company breached certain regulations, including obligations relating to accounting separation and financial reports.

The legislation also covers issues like overcharging. It proposes that ComReg's powers would be extended to specifically allow the investigation of overcharging.

According to the draft legislation note 4.2: "Incidents of overcharging in 2004 by operators (Eircom, Vodafone and O2) highlighted ComReg's absence of powers to intervene in such matters."

It is believed that the telcos are confused about some of the language in the draft and have asked the Department of Communications for clarification.

For example, point 5.3 relates to the provision of information to juries, and states that "in all court proceedings for indictable offences under this act", whereas throughout the document it states that "the option of imprisonment has not been provided for in relation to offences in the Bill".

The general principles of the Bill were approved under the former minister Dermot Ahern. But the section relating to direct fines was agreed just before the latest draft Bill was published.

cgarvey

jwt, jmcc, damien.m .. please keep this thread on topic. .ie cctld is not within the remit of IrelandOffline, so is, by definition, off topic, even if it is related to the Bill we're discussing.

.ie stuff moved to this Webmaster thread (web hosting is closed)

.cg

Tom Young

cgarvey wrote:

jwt, jmcc, damien.m .. please keep this thread on topic. .ie cctld is not within the remit of IrelandOffline, so is, by definition, off topic, even if it is related to the Bill we're discussing.

.ie stuff moved to this Webmaster thread (web hosting is closed)

.cg

Convergence.

damien

IrelandOffline's submission:

IrelandOffline welcomes the opportunity to reply to this consultation and provide the views of the general consumer.

We believe that the current telecoms market in Ireland whilst still not mature, is unfriendly towards consumers. Figures from the OECD, the EU and ComReg reports show that we
have the highest line rental in the EU, the highest ARPU for mobile calls and landline composite price baskets are near the top of EU price tables.

Additionally, complaints about the service of some telecoms products are quite high though many complaints do not appear to be logged by Comreg.

The current proposals from the DCMNR will go a long way to addressing these concerns and we believe will remedy some of the ongoing issues, however we would also like to make some additional suggestions which could improve the market even more.

IrelandOffline believe that ComReg must be given the power to enforce structural/organisational change in telecom companies who have been found to be creating bottlenecks which cause the telecoms market to be monopolistic in nature. Specifically we would like to point to the massive difficulties with LLU and the reluctance of the incumbent to recognize the importance of LLU to the market and as a result the complete intransigence to open up their infrastructure to competition.

It is no surprise that Ireland is one of the worst countries in the developed world when it comes to broadband rollout when LLU is still just a pipedream with a minute number of lines actually unbundled.

The ability to impose structural change in the UK proved effective in getting BT and Ofcom to come to a settlement and the UK are seeing the benefits of this today.

Further we would like to see ComReg come under the scrutiny of the Ombudsman and Comptroller and Auditor General or a similar watchdog. We believe that ComReg is not operating as efficiently as it should and there appears to be widespread confusion as to who "watches the watchers". The organisation itself is no help in escalating an issue to the responsible person. While telcos can go to the ECAP to appeal decisions, the average consumer appears to have nowhere to go, yet they are the ones who suffer from many of
the comreg decisions.

We finally would like it noted that while giving ComReg additional powers is in our view the correct move, our research into the history of ComReg and their passive attitude has shown that they have never fined a company with the powers they do have. Despite asking ComReg directly and through Freedom of Information requests, we could not find any evidence that ComReg has ever fully utilized their existing powers when investigating and fining companies in breach of regulations.

If the organisation cannot use their existing limited powers then unless their is a widespread change in attitudes, we cannot foresee them using their new powers for maximum effect. The consumer will still suffer with ComReg's mental block that the consumer needs to be protected.

Comments on the Individual Heads

Head 3 - ComReg Budget and Work Programme

IrelandOffline supports the proposal and has always sought greater transparency. We would like to point out, for example, that the ComReg annual report is quietly released on their website without any fanfare compared to any surveys which highlight them in a positive light. The public and stakeholders alike are entitled to the same level of disclosure about ComReg's annual budget as to their press releases about their latest website experiment.

The Annual Reports for 2002-2003 were released in March 2005 and despite Freedom of Information requests for more timely information, IrelandOffline was turned down and refered to the Annual Report from two years back. IrelandOffline would like to see the accounts for the previous year released soon after the accounting end of year for the organisation.

There especially needs to be greater transparency on the costs of legal cases, consultancy fees, staff and director salaries and expenses.


Head 4 - Overcharging

We broadly agree with this but would like to highlight that the current complaints process for a member of the public to escalate a complaint to ComReg about a telecoms company always seems to favour the telco. ComReg appear to go to great lengths to avoid taking complaints by sending a consumer away and to exhaust every route with the telecoms company complaints procedures before ComReg graces them with an audience. The more steps a consumer has to take to air their grievance, the greater chance ComReg will not have to deal with this. Either through a definition in legislation or via a directive, the method of investigating a consumer complaint needs to change in order to make life easier for the embattled consumer.

Further, we believe that ComReg needs to log every call, be more open to taking complaints and that every complaint must be logged with ComReg and also followed up until it is remedied and a report every 6 months issues with no of calls and emails taken by ComReg, no of complaints registered, status on the complaints e.g. resolved in a week, two weeks, one month, 3 months etc. Also the number of times telecoms companies fined as a result of the complaints should be publicly disclosed. The complainant should also be informed in writing what their complaint was and the status of it and asked whether they are satisfied with the outcome.

Head 5 - Summons Powers

IrelandOffline is in agreement with the proposed text.

Head 6 - Summary Offences

IrelandOffline is in agreement with the proposed text.

Head 7 - Continuing Fines

IrelandOffline is in agreement with the proposed text.

Head 8 - Indictable Offences

IrelandOffline is in agreement with the proposed text.

Head 9 - Direction Notices

IrelandOffline is in agreement with the proposed text.

Head 10 - Extension of Section 44

IrelandOffline is in agreement with the proposed text.

Head 11 - Emergency Call Handling Service

IrelandOffline does not have a comment on this area.

Head 12 - The .ie Domain Name

IrelandOffline does not have a comment on this area.

Cork

Any timetable for this bill?

eircomtribunal

ComReg's submmission to the bill consultation can be downloaded from here.

P.

jwt

ComReg's submission makes for interesting reading and insight into where they feel things need to go.

I note that they are particularly keen to have a lot of this stuff moved from a civil arena into the criminal with an emphasis on there being no leeway whether something is prosecutable or not.

ComReg notes that additional functions and obligations are being proposed for it and
considers that if these proposals are to be followed up on, adequate resources will
need to be put in place to ensure the effective carrying out of those functions. The
Department should liaise closely with ComReg in order to put the necessary
framework and arrangements in place.

Assuming some metrics/benchmarking on productivity it reasonable to ask for more resources. (I know there will be comments about not utilising what they've got already, but if thats the accepted status quo then additional work requires additional resources)

2.2: Head 4 ComReg’s Powers in relation to Overcharging

While the text as proposed does make overcharging an offence it would appear that
an obligation not to overcharge has not been included. The creation of an express
obligation would allow ComReg to use its powers to monitor compliance with
obligations under the 2002 Act, including the use of authorised officer powers.

Good point, although ComReg actually using its authorised powers voluntarily remains to be seen. But nevertheless, well said.

Head 5.1: Summons Powers
ComReg welcomes the provisions of this head which it considers to be positive in
relation to its ability to conduct investigations and to pursue court proceedings.
Many regulatory bodies have the power to summon people to make statements on
oath and to produce documents in order to investigate a relevant matter. ComReg
considers that the provision of such a power to it would assist in its investigative
functions either on foot of a ComReg initiated investigation or a complaint from
another operator or user in respect of whether an operator had breached its
obligations.

Eh what?????
Does this mean that at present when ComReg ask telcom x to produce or state proof said company can tell ComReg to bog off??????

Part 3 Enforcement of Regulatory Decisions

As it stands, breaches by an operator of many of its obligations under the European
Electronic Communications regulatory Package will incur no criminal liability
whatsoever. ComReg believes that this situation should be rectified and considers
that while, at face value, the purpose of making breaches of regulatory obligations
into criminal offences is to punish breaches of those legal obligations, the effect is
greater than that “punishment effect”.

Hmmmm, still think this is ComReg wanting someone else to decide when to punish telecom companies.


Very interesting stuff here

3: Other Relevant Provisions to be considered for inclusion in the Bill
3.1 Administrative Fining Powers
The European Commission in its 7th and 9th implementation reports has noted that
there is an enforcement weakness in Ireland due to constitutional issues over the
ability of the NRA to impose fines, noting this causes serious problems for the
functioning of the single market as a whole.
The framework, as implemented in Ireland, seems to regard technical infringements
as more serious (being criminal offences) than economic offences, although it would
appear that the latter have the potential, at least, to be more harmful to consumers in
the long term. The combination of the awkward breach notification procedure with
the lack of offences means that there is no penalty for non-compliance before it is
enforced. In other words, if an undertaking wishes to behave in a way which
damages competition or consumers, it can do so freely until told to stop. There is no
mechanism for recovering the supernormal profits made while the behavior
persisted, or for rectifying the harm to competition.
In event of ComReg finding that a regulated undertaking has breached an obligation,
ComReg considers that the non-compliant undertaking should be subject to a civil
sanction for that non-compliance even if it subsequently starts to comply. The
existing provision for administrative fines only allows for the imposition of a fine by
the High Court if the undertaking continues not to comply. Past non-compliance is
only subject to criminal prosecution.

So basically company x is bold, makes enormous profits and only when caught being bold do they have to stop. Furthermore the profits made while being bold do not have to be returned/fined. That's a new one for me. That would be like me breaking into thirty houses, getting caught on the last house, the gardai have proof that I did all 30 houses but I only have to return the goods for the last house??? (well except that breaking and entering is a criminal matter, but you get the point)

ComReg accepts
that a judicial body would have to confirm the amount of the fine and ComReg
considers that the High Court could do this. Under the community law principles of
equivalence and effectiveness ComReg considers it appropriate that it be provided
with national laws equivalent to similar bodies such as IFSRA, and national
legislation giving effect to the directives, which require that ComReg be able to
directly impose penalties. IFSRA may impose administrative fines under the Central
Bank Act, 2004. Further this principle has found favour in other jurisdictions and
has been discussed in Ireland.

All well and good, sounds exciting and hard hitting but they haven't excercised their existing abilities to fine, so why should we think they'll excercise their new abilities. (excepting the bits that are made criminal prosecutions and not their call)

3.2 Concurrent Competition Powers and Structural Remedies

ComReg currently has no competition law powers. The granting of concurrent
powers would be a logical corollary to ComReg’s powers under the European
Communications Regulatory Package, which are based on competition law
principles. An analogous situation exists in the UK, where the possession of such
powers by Ofcom has proved to be a useful tool in its regulatory toolbox.

I believed that the competion authority had ceded responsibility for this directly to ComReg?

Otherwise why the hell hasn't the Competition Authority got involved before now??


John

damien

jwt wrote:

I believed that the competion authority had ceded responsibility for this directly to ComReg?

Otherwise why the hell hasn't the Competition Authority got involved before now??

They have an agreement in place to be polite and hold the door open for each other. I had thought they could have intervened if asked to by ComReg.

Sponge Bob

damien.m wrote:

I had thought they could have intervened if asked to by ComReg.

Correct, there is an inter regulator agreement protocol of some sort from about 2 years back , of course Comreg never used it and called in the CA

Tom Young

Sponge Bob wrote:

Correct, there is an inter regulator agreement protocol of some sort from about 2 years back , of course Comreg never used it and called in the CA

http://www.comreg.ie/_fileupload/publications/comreg0306.pdf

Attached is the body of the agreement. 03/06.

Tom

Tom Young

Cork wrote:

Any timetable for this bill?

Soon. March at a guess.