The Commission for Communications Regulation (ComReg) has asked the Government to consider introducing legislation to bring pay TV firms, including BSkyB, under its regulatory umbrella, writes Jamie Smyth.
The request is the latest development in a bitter dispute between BSkyB and ComReg over whether the telecoms regulatory authority can regulate the British-based firm in the Republic.
Under the current regulatory framework, BSkyB, which provides 250,000 Irish subscribers with Sky Television services, is not regulated by ComReg.
This means the firm, unlike its main rivals NTL and Chorus, does not pay an annual levy of 3.5 per cent of turnover to ComReg or provide detailed information on its operating performance. Nor are its prices subject to ComReg approval which has in the past refused NTL and Chorus the right to raise the price of their service.
BSkyB believes it should not be regulated in the Republic because it is a British-based firm which does not own or operate an Irish communications network. In correspondence with the commission it has argued that it is a content provider rather than an electronic communications provider.
Under European and Irish law, content providers are regulated in the country in which they are based, rather than every state in which their content is viewed.
BSkyB has adopted this position when dealing with ComReg and has so far refused to provide it, or its forerunner the Office of the Director of Telecommunications Regulation, with any information that would enable it to measure the firm's performance.
But a new set of EU communications regulations is to be adopted in July, and ComReg this week asked the Government to clarify the "Pay TV" issue when it transposes these regulations into Irish law this year.
It also expressed its fear that unless the "Pay TV" issues are clarified in legislation, it will lose much of its authority to regulate Irish cable firms NTL and Chorus.
In its submission to Government, ComReg said the exclusion of the provision of content by pay TV firms from the new EU regulatory framework would have "significant consequences for the future regulation of broadcasting".
It said an opposing view to its own - that pay TV broadcasting does not come within the scope of the new regulations - could inhibit its ability to intervene on issues of consumer protection. It highlighted a "continuing perception as to the poor quality of service offered by the main cable firms" as of significant concern.
It will not be possible to provide consumer protection for viewers subscribing to services not covered by existing legislation unless the power to do so is conferred by other legislation, says the ComReg submission.
It also says new regulations could cause difficulties in addressing regulatory issues arising from networks established outside Ireland, which provide services direct to consumers. This part of its submission indirectly refers to BSkyB, which supplies a service to the Republic from networks based overseas.
The submission says the exclusion of the provision of paid access to broadcasting content seems to contradict the aims of new EU regulations based on technological neutrality. This means that different electronic communications systems such as cable or satellite are treated the same.
ComReg concludes that it would be beneficial to operators and end users if the Department of Communications would outline its views in connection with the scope of the regulatory framework in relation to pay TV.
The views of ComReg will probably be strenuously opposed by pay TV firms which believe the new EU regulations will remove its automatic authority to intervene and impose a strict regulatory regime on them.
