Amendments Nos. 4 and 5 which are related will be discussed together. All other amendments will be discussed separately.
SECTION 1.
Broadcasting (Major Events Television Coverage) Bill, 1999 changed from Major Events Television Coverage Bill, 1999: Committee and Remaining Stages.
Mr. Ryan
I move amendment No. 1:
In page 4, subsection (1), lines 4 to 7, to delete paragraph (b).
This amendment relates to the definition of "near universal coverage" which a qualifying broadcaster is required to provide. The current position is peculiar and I ask the Minister to explain it. The Bill states that "near universal coverage" means (a) free television service, reception of which is available to at least 95 per cent of the population of the State or – this is where it becomes interesting – (b) if at any time fewer than three broadcasters are able to provide the coverage required under paragraph (a) free television service, reception of which is available to at least 90 per cent of the population of the State.
I do not know the reason the number of broadcasters able to provide a service should determine the proportion of the population covered by it. Perhaps it could be said that different service providers would provide coverage in different parts of the country but that is not the experience. The experience is that the blackspots for television coverage tend to be the same. I am not madly happy with 95 per cent coverage. Five per cent of the population is 185,000 people, including 125,000 adults.
Agus mise san áireamh.
Mr. Ryan
Tá fhios agam go bhfuil an tAire san áireamh agus sin an fáth go bhfuil ionadh orm go bhfuil an rud seo taobh istigh den Bhille seo os rud é go bhfuil fhios agat conas tá cúrsaí.
We now need an interpreter.
Mr. Ryan
Tá na headphones ansin ag an Seanadóir má tá siad ag teastáil uaidh.
I would not argue with a figure of 95 per cent, 96 per cent or 97 per cent. Even 95 per cent seems generous but it is being suggested that where fewer than three broadcasters are able to provide the coverage required under paragraph (a) "near universal coverage" may be defined as free television service, reception of which is available to at least 90 per cent of the population of the State. Ten per cent of the population is 375,000 people, including 250,000 adults, which is effectively the combined populations of Cork, Limerick, Galway and Kilkenny. If somebody attempted to suggest that none of the four cities mentioned should have access to a near universal service they would rise in outrage but it is being allowed to happen in the case of scattered populations in rural areas. A large number of people are being excluded. Percentages are deceptive. We should look at the numbers involved. What we are saying is that we will allow a service which excludes, perhaps deliberately, 375,000 people to take over a broadcast from RTÉ which provides coverage for 98 per cent or 99 per cent of the population. I do not know the actual figure but it is well in excess of 95 per cent.
We already have the ridiculous situation where at least 15 per cent of the population is deprived of the opportunity of watching Ireland's away soccer matches, to which TV3 has bought the rights. As the numbers are important, 15 per cent of the population is 500,000 people. I do not understand the philosophy which talks about choice as one of the underlying new benefits of extra television channels when the consequence is to deprive 500,000 people of the right to watch something that they have taken for granted up to now. Perhaps TV3 will do a deal with the GAA in respect of all-Ireland coverage, though their reluctance to invest in domestic outside broadcasting equipment will probably keep them out of that for a while. If they do, half a million Irish people will be deprived, under the current regime, of the right to watch All-Ireland football and hurling matches. I believe the GAA has more sense than to do that but a tempting offer might be made. My amendment suggests leaving it at 95 per cent, and if anybody wants to become a qualifying broadcaster in the longer term, there are a number of caveats in this regard. Section 1(2) leaves a bolthole until the end of December 2001 for the 85 per cent coverage which seems to be providing an unnecessary out for TV3 in the short term, but we will give them some time. Once we move beyond 1 January 2002, however, nobody should be allowed to claim universal coverage unless it is near universal, and that must be more than 95 per cent. The purpose of my amendment is to exclude the subsection which would make a mockery of the definition of universal coverage by allowing it to be defined at 95 per cent, which is far too low.
Senator Ryan makes a valid point. The Minister said yesterday that she hoped digital television would be on-stream by the year 2001. At that stage there will be several different packages of television stations on offer in various areas of the country. There will be a package for Dublin, one for Cork, another for Limerick, Galway and so forth. What will happen then to the 90 per cent or the 95 per cent referred to in the Bill?
Ba mhaith liom buíochas a ghlacadh leis na Seanadóirí a labhair ar an gceist seo agus tuigim an pointe atá á dhéanamh.
The section defines "near universal coverage" as 95 per cent but it also states that in the case of two or less than two being available to offer, the threshold is 90 per cent. Senator Ryan is trying to balance two realities. He is trying to ensure that as wide an audience as possible has access to television coverage of major sports events. There is also the interest in creating a diversity in the number of free television services to Irish viewers. We might not in the future specifically mention one television company, TV3, but there may be a series of companies or organisations providing a universal service and in that circumstance there might be a possibility of a third bid. As more and more companies reach the 95 per cent, the section becomes redundant.
To accept the amendment would be to limit the number of qualified broadcasters under the Bill. This could have a negative effect on the development of a diversity of free to air services. If the number of qualified broadcasters were reduced as a result of accepting this amendment, an event organiser might find it difficult to achieve reasonable market rates for the rights to television coverage of a particular designated event. We would therefore run the risk of hindering the development of various sports as sporting bodies obviously rely to a significant extent on revenues from premier events for ongoing improvements to their particular sports. For that reason I am opposing the amendment.
Mr. Ryan
There is a peculiar logic here. What we are actually saying is that in order to facilitate – and it is speculative – the number of people who will give us some kind of a television service, we will define terms which are inherently contradictory. We will define a "near universal coverage" as coverage which can, by law, exclude 10 per cent of the population, 375,000 people. It is only in the headier areas of legislation that one could get a definition which says that "near universal" means 90 per cent. That is only in the peculiarities of legislation. To commonsense people, "near universal" could not mean 90 per cent because there are many other areas where that would not be accepted. If this were to apply in many other areas of life we would be accused of facilitating cherry-picking – many people are unhappy with that – for example, allowing people to provide services only in areas where it is easy to do so.
The capital cost to a television service provider of getting 95 per cent is significantly higher than the revenue they would expect to get from that extra coverage but it ought to be a condition of their licence. What we are doing here is building into our law a way which will, first, allow other services to cut down their capital costs whereas RTÉ, as the national broadcaster, has already spent the money on providing this service. Second, it will allow them, having cut down the capital costs, to then buy programmes and deprive 10 per cent of the population of the right to see them. That is a bad decision to make in terms of public policy and it discriminates against RTÉ because it has spent the resources on the extra transmitters in remote areas to provide a genuine near universal service.
What we are engaged in here – a classic of western society – is yet another exercise in corporate welfare. We are providing, through law, a subsidy to RTÉ's competitors and the subsidy is the right to leave the difficult bits out of the network. We are saying to them that because the last 10 per cent is the most difficult and expensive – and it inevitably is – they do not have to provide it. Yet RTÉ has to do it because it is a public service broadcaster. That is not the way to give people choice. We are guaranteeing that in the future 10 per cent of the population will be deprived of choice.
It is only now that RTÉ, with the help of the Department and through TnaG, which forced the issue in many areas, is coming around to a universal service. In the area in which I live in the mountains, which is not highly populated, some homes which did not have a good RTÉ service are getting it now because of the demand for TnaG. They happen to be Gaeltacht areas and we were able to put on a great deal of pressure to ensure the service would be brought to these small areas. As the Senator points out, it is expensive but it is very important. I live in the mountains. We have the privilege of being limited to RTÉ1, Network 2 and TG4 and I have to say that is enough to keep us going.
We have to be careful about the wording. It states: "If at any time fewer than three broadcasters . . . ". So the first time a third broadcaster gets to 95 per cent that will be the end of it because there will then be three and if subsequent broadcasters limit themselves to 91 per cent, 92 per cent or 93 per cent, they will be out of the market because there will be three at that stage. The problem is that if we say it has to be 95 per cent or nothing, until the third broadcaster was in operation there would be a virtual monopoly in that we would have TnaG and RTÉ only. My understanding of the section is that once a third broadcaster gets to 95 per cent, the section becomes redundant. We are ensuring that once a threshold of 90 per cent is reached, there will be more competition.
One must balance the need to have a competitive marketplace for those selling their product with the need to ensure near universal coverage. The Senator is making a great deal of play about 90 per cent versus 95 per cent. That is a 5 per cent block. However, it could also be said that we are, in practice, accepting not 98 or 99 per cent – which, as the Senator said, RTÉ may have reached at this stage or will reach very soon – but 95 per cent. We accept that coverage does not need to be absolutely universal and we have an arbitrary cut-off level of 95 per cent. Therefore, by definition, unless one says that coverage must be universal, full stop, one is accepting the principle that universal coverage to every single house in the State can pose a problem. The Senator accepts that point. While there is, in practice, a big difference in terms of numbers, there is not a huge difference in principle between 90 per cent and 95 per cent. There is also a big difference, in practice, between 95 per cent and 100 per cent.
Mr. Ryan
The Minister of State is right that there is no difference in principle between 90 per cent and 95 per cent, and between 95 per cent and 98 per cent. The truth is that a legislative requirement for absolute 100 per cent coverage would be a recipe for wonderful and glorious chaos. RTÉ and other television service providers would end up permanently in court because the issue would not only be percentages but the definition of "service". Would a fuzzy picture, of the quality that perhaps some of the Minister of State's neighbours get—
With the new technology, one either gets the picture or one does not. It is not like the old days when one got Spanish television overriding RTÉ, where one could watch bull fights and hurling matches simultaneously, which was rather disturbing.
Mr. Ryan
Tá fhios agam. This applies in every area of life. In my area of chemical engineering and environmental quality, emissions can be reduced to 1 per cent but it would be virtually impossible, for a variety of reasons, to reduce any emission to zero per cent.
However, I am still not happy because I believe the essence of this is to make it cheaper for competitors than it has been for RTÉ. I do not have an unvarnished view of RTÉ. It is an extraordinary fact that many of the biggest transmission black spots for TnaG in its early years were in the Gaeltacht. I do not mean areas where it could be received with a new aerial but areas where it could not be received at all. I am not suggesting that RTÉ is a model of how to do it, but the truth is that it has done it.
It has not done it – it is doing it.
Mr. Ryan
It is not at 100 per cent but it is close. I am not talking about TG4 because I know there are problems there. However, it is close to 100 per cent universal coverage. The way this section is written means that TV3 will have an incentive not to go much higher. If we get, as I hope we will, near universal coverage – that is, 95 per cent plus – for TG4 and RTÉ then, unless there is another competitor, TV3 will have an incentive to stay below 90 per cent because these matters only come into play if it goes above that. TV3 will now have an incentive to stay below that figure.
There is no incentive.
Mr. Ryan
It will because the section refers to three broadcasters.
There is no incentive. It might have no incentive to go up, but there is no incentive to stay down.
Mr. Ryan
In terms of market economics, if one does not have an incentive to spend extra capital one will not do so. What reason would TV3 have to expand its coverage into difficult areas, such as the large area of west and south Kerry where the population of football enthusiasts complain bitterly to me every time Ireland plays an away match because they cannot receive it? The Minister is making it easier – perhaps, with the best of intentions – for RTÉ's competitors.
I thought that the purpose of this Bill was to ensure that national sporting events and international soccer games would be available on a free to air basis. It is extraordinary that Senator Ryan would suggest that a commercially driven company such as TV3 would have no incentive to expand its coverage within the area of its mandate. That is the same as saying that anyone producing a product – which is what a television programme is – in a highly competitive environment would not have an incentive to increase, irrespective of whether they were going to acquire sporting rights. That argument does not hold water.
I am concerned that if the Senator pursues this amendment it could result in a situation where, because of the small geographic size of the country, pay-per-view television could find itself in a very dominant position. Due to the topography of this country, there are areas, as Senator Ryan said, particularly in the remote west and north-west, which continue to be reception black spots, even for RTÉ, although it has done enormous work in this regard by putting up repeater stations. I have no doubt that TV3 will continue to increase its service. After all, it is relatively new.
Mr. Ryan
Why will it?
It will have no choice – it is part of its mandate. I am sure the Minister of State is in a better position to explain that than I am.
While this amendment may sound worthy from Senator Ryan's perspective, all it is doing is inhibiting what the Minister is attempting to do in the Bill, which is to ensure a free to air service for listed sporting events for all viewers, as the technology improves. We are entering the era of digital technology, where much of the argument being put forward by Senator Ryan will be redundant.
We should look at the facts. At the moment, TV3 is not eligible because it only has 85 per cent coverage. The Bill is saying that TV3 had better get to 90 per cent coverage fast, otherwise it will not be in the races at all because this will go ahead with just two broadcasters.
I do not have any facts or figures here but it would be interesting to find out if the size of the increments required to get to 90 per cent would actually mean a considerable exceeding of the 90 per cent level. In other words, if one decides to provide a service to the west Kerry Gaeltacht, one will not just provide it to a certain number of houses – one will either provide the service to all or none. Somebody living at the back of a valley might be left out but the vast majority of people in the area would be covered. Therefore, it will be done in reasonable increments. The area in which I live is probably one of the most difficult to cover because it is all valleys and hills. Fair play to RTÉ for providing us with coverage, which was a huge job.
The whole transmission system is going to change. However, the incentive here is to get from where we are to 90 per cent coverage by, at least, a third operator. I think that once there is 90 per cent coverage, it will go to 95 or 96 per cent. I am not as worried as Senator Ryan about the 90 to 95 per cent coverage because one really runs into trouble at 97, 98, 99 per cent coverage. That has been the experience of RTÉ. As Senator Ryan pointed out, I presume – I do not have the statistics here – that RTÉ could have been at 95 per cent ten years ago but there were places that could not receive RTÉ 1 or Network 2 satisfactorily. That is a problem.
Funny things can happen in this regard. A most peculiar thing happened where I live. A local person provided a site to RTÉ and TG4 for television coverage in Cor na Móna. I am very lucky because I live just under the mast and I have a super service. However, the person who sold the site is one of the few people in the village who still cannot get the service, despite providing the site to the public broadcaster, because he lives under a cliff. These things can happen and such people are unlucky. However, creating a carrot, a positive incentive, to increase coverage to 90 per cent will probably mean that coverage will not stop at exactly 90.0001 per cent but will be considerably more than that. The biggest problem has always been that last 4 or 5 per cent but the new technology will overcome all those problems. Rather than seeing this as a negative, Senator Brendan Ryan should see it as a positive. It will create this incentive in the State. It will give a minimum of three choices for the sports event organiser at the price that the three choices have to come to 90 per cent, which they are not at currently. Italian and Danish measures provide that the designated programmes will be transmitted to 90 per cent. The north of Italy is very mountainous. I am not so sure about Denmark – I do not know whether they have the same topographical difficulties we have.
Mr. Ryan
They have no mountains at all.
In Denmark? I thought so, but I did not like to make a statement about a country that I literally just landed in for half an hour.
It is very foggy.
Fog does not inhibit television signals. However, they are aiming for 90 per cent. Therefore this is reasonable and hopefully, in the future, subsection 2(b) will be redundant because we will have 3, 4, 5 or 6 services providing free to air at 95 per cent and over.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
Mr. Ryan
I move amendment No. 2:
In page 4, subsection (1), line 44, to delete "may" and substitute "shall".
It is an eternal problem with legislation, for which I have never received a satisfactory explanation either from Ministers or from the parliamentary draftsperson, as to whether "may" or "shall" should be the appropriate word. Section 2 begins, "The Minister may by order . . . . .. ". It then provides in subsection (2) that, "The Minister shall have regard to all the circumstances and in particular each of the following . . . . ..".
The discretion is left to the Minister. Why is this a discretionary power if it is something the Minister clearly intends to do and has given a specific commitment to do in a reasonably short time? The explanation I have received from some Ministers over the past 20 years is that "may" and "shall" amount to the same thing, but they do not. It is a minor amendment but one of fundamental importance to substitute "shall" so that the Minister shall by order designate events rather than leave any discretion.
It is conceivable that a future Minister with a different view of broadcasting from the present Minister would decide to exercise his or her discretion as implied in "may" and not designate any. In the other House the Minister agreed to consider this between Committee and Report Stage but did not produce any amendment on Report Stage. Precisely why is this discretion needed?
Amendment No. 2 proposes to change the word "may" to "shall" in the first line of section 2. This is designed to remove the discretion that the Bill provides the Minister making the order designating certain events as events of major importance. The Minister has been advised by the Office of the Attorney General that there is some merit in retaining the element of discretion as provided in the Bill. To accept the proposed amendment would oblige her to designate certain events as events of major importance to society and it would be very diffi cult to be certain which or how many events should be designated. There would be a risk that parties might use the opportunity to attempt to compel the Minister to exercise the power in favour of a particular sporting activity. The Minister believes that the proposed amendment would not sit well with the extensive consultation procedures provided in section 3 of the Bill which suggests that a sporting body might at least put forward an argument against designating a particular event.
There is a danger in taking any decision which would involve running the State by robot. There should be ministerial discretion. Many people have much discretion in bodies which are not answerable to the House. Ministerial discretion is always politically accountable. If a Minister decides not to use the discretion, within the next sitting day, politicians can question these matters. Politicians are always amenable to questioning even when the Houses are not sitting, throughout the public airwaves and so on. I do not understand why we are willing to give so much discretion to independent agencies who are not daily answerable and we are so chary about giving discretion to those people who must use discretion very carefully because they are accountable by the minute to the public through the democratic process. If some Minister goes off his tree and does not do anything, he will find it hard to stand in the wind that will blow in such circumstances.
Mr. Ryan
In our nearest neighbour, a government went off its tree and gave virtual monopoly powers in some areas to Rupert Murdoch. I do not believe we will do that for Rupert Murdoch here. I am not so sure we might not do it for our own media magnate – we are not supposed to mention names so I will not.
I like the sort of advice the Attorney General's office gives because the Bill is supposed to have a particular purpose, which is to designate certain events. However, the Minister has been advised by the Attorney General that even though it is supposed to do that, it should not make it compulsory because it might produce the possibility that people could question the Minister's judgments. This is the real problem. As long as there is a discretionary element, it is very difficult for anybody to dispute the Minister's decisions because the phrase is "may". If the Minister was told he or she had to do it, it would be a legal requirement which nobody could avoid. It muddies the waters to claim that because the law says the Minister has to do it, that that would reduce the discretion he or she had about the events that could be designated. The "shall" here is about the designations, not about what events should be designated. It is "shall designate" and then there is an elaboration in the Bill about the criteria to be used for that designation. As it stands it indicates that the Minister "may designate". That means the Minister may if she wishes – I know the present Minister will not – but the Minister, whoever it is, may if he or she wishes designate none because they do not have to.
I would put this a different way. Comparing our political culture and system to the one across the water is to compare chalk with cheese, particularly by virtue of the single seat system operated over there which can give governments very large majorities, and because of their culture which is not responsive to the wide membership of the various parties or groups that make up governments here. What occurred in Britain will not be quite as easily done here. We have received the Attorney General's advice but let us examine "may" and "shall". It is incorrect to say that the Minsiter cannot be challenged. Under "may" if the Minister does not designate, of course he or she can be challenged, but it must be politically challenged. That is what the political system is about. Inserting an absolute by using "shall" would leave the decision open to challenge in the courts. However, everything is open to political challenge. The culture of this country is sensitive to political challenges because of the nature of politics and our electoral system. British Governments do not have to be so sensitive as their electoral system is more immune to such challenges. Comparing the two systems is comparing chalk with cheese.
Acting Chairman
Is the amendment being pressed?
Mr. Ryan
I have not made up my mind. The point is that we are not making politics, we are making law. We should consider how legislation works as law, not how it works politically. I agree with the Minister of State that there are many areas where we should pursue matters politically. However, that is not what this issue is about. This is about the law which regulates how we do business. The uncertainty of interpretation of law is what ends up in the courts. The courts play the role of final arbiter when there is uncertainly of interpretation.
I have never detected any pattern to the use of "may" and "shall" in legislation. I sometimes wonder if the draftsman tosses a coin as to which word to use. Why do we say that the Minister "may" designate events but "The Minister shall have regard to all the circumstances", "The Minister shall consider the following", "The Minister shall consult"? Why do we say the Minister has to consult the Minister for Tourism, Sport and Recreation but we do not say that the Minister has to designate? I do not know.
Senator Ryan has created doubt where I did not have any up to now. I am not seriously disputing his argument but I always regard "may" and "shall" as utterly different. I would regard "may" as being discretionary. Therefore, the Minister may or may not—
Mr. Ryan
Precisely.
—but does not have to. I would interpret the Bill as stating that the Minister may make an order regarding any of these events but that she does not have to do so. If she did not do so when she should, that decision would be open to political challenge. "Shall" is a matter of compellability of obligation. Therefore, if the Minister decides to designate an event, then she must take these criteria into account – she has no discretion as to how she designates the event once she has made the decision to do so. This makes it crystal clear what the Minister is obliged to do, the procedure to be followed and what is discretionary.
If one does not allow the Minister discretion we will end up in endless arguments as to what constitutes events of major importance. Giving the Minister discretion will avoid those arguments as it is a political judgment. That is a preferable option. Given our political system, Ministers can be trusted to act in good faith and any Minister who considered that an event needed to be protected would invoke the legislation.
This brings us back to the legislative issue raised by Senator Ryan. As matters stand, the Minister does not have the legal instrument to designate an event even if she felt that it needed to be protected. This Bill gives the Minister such powers. The Bill confers a specific power on the Minister and lays down conditions using the word "shall" as to how she uses that power. It gives the Minister the discretion to decide whether to designate an event. The more the Senator reflects on this matter the more he will see the reason behind this provision as there is a grey area concerning what constitutes a major event. It is wiser to leave the decision to the Minister's discretion. I trust current and future colleagues on both sides of the Houses to use this discretion properly. The whole basis of our political system would fall if we did not trust our colleagues to such a degree.
I was neutral on this issue at the beginning of this debate but I am more persuaded by Senator Ryan's arguments than those of the Minister of State, even though we all have the same objective. There is a doubt as a situation could arise in which a Minister comes under enormous commercial pressure. We are talking about large amounts of money and a situation could arise in which a large multimedia organisation is in a position to do a trade-off with the Government –"We'll support you in the election campaign if you leave us free to commercially exploit these sporting events". I do not think I am missing the point but the amendment strengthens the Minister's hand. A Minister could come under such pressure as it is not unknown for Governments and parties to do deals with the Devil when it comes to trading off for media support. The Minister of State is extraordinarily reasonable and is a model in how he treats queries and deals with legislation, but it might be wise if he at least came back on Report Stage with further thoughts on this matter.
If Senator Manning examines section 3 he will find that it may not be easy to do what he is proposing. There is a consultative process and the entire process is geared around consultation. If someone tried to pressurise me as the Senator suggested I would tell them to take a run and jump at themselves.
The Minister of State would.
Yes and I think most of my colleagues in the Oireachtas would do likewise.
I hope so.
There would be a great public outcry if a Minister was not prepared to make an order in the case of a major event which was going to be pay-per-view television.
If it became known – that is the problem.
How could it not become known that it was to be pay-per-view?
I am referring to the process.
We are talking about the media so how could it not become known? A few years ago someone pointed out to me how Ireland had changed. Continued access to multi-channel television was the issue that was packing the halls of Connacht. Not so long ago halls were packed by people trying to get the basics of life – food, clothing and fundamentals needed to live. The fact that the most important issue for people in the west was continued reception of British television channels shows how far we have come. So be it, that is how the world has changed. I would not like to be the Minister who decided not to declare the All-Ireland or an international soccer match as a major event. The chances of that Minister or their Government surviving that kind of pressure would be very slim and there would be a monumental climbdown within a short period of time.
We all understand the significance of the All-Ireland finals and of international soccer and rugby matches. There could, however, be grey areas where it might not be clear if a sporting event was major or not. In such cases the Minister will have discretion but will, of course, be obliged to consult. Such a decision would relate to the media and could not be made behind closed doors. The result of the Minister's decision would be clear because the event would either be broadcast on a pay-per-view channel or free-to-air. There would be no way to hide the Minister's decision from the public.
Mr. Ryan
Ní dóigh liom go raibh an tAire Stáit sa Teach nuair a bhí an Seanadóir Ó Cuinn ag caint. Senator Quinn, extremely forcefully, opposed this legislation on the grounds that it is a quasi-totalitarian interference with the free market. Many people in Irish politics believe in the free market, come what may. This legislation could allow a future Minister who did not wish to designate anything to designate nothing. The resulting political storm might be significant but the legislation leaves room for the Minister to designate events as significant or not.
We should make sure that law means what we intend it to mean and this section runs contrary to that obligation. I had a long debate with the Tánaiste when she was a Minister of State at the Department of the Environment because a section of a Bill which implemented an EU directive used the word "may" and not "shall" even though the Minister had no choice in the matter. This arose because the then Minister for the Environment, Padraig Flynn, wanted to be awkward and would not allow the then Minister of State to make any changes. I do not wish to delay the House by pressing the amendment but this drafting is unnecessarily sloppy.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 3:
In page 5, between lines 8 and 9, to insert the following new subsection:
"(2)Subject to the subsequent provisions of this section, the first order shall be laid in draft before each House of the Oireachtas under this section within 6 months from the passing of this Act.".
This amendment requires that any order made designating events should be laid, in draft, before each House within six months of the passing of the Act. I have a great resistance to legislation which does not require Ministers to do things within a reasonable time. We could argue about whether to stipulate six, nine or 12 months but we should put this sort of legislation into effect quite quickly, particularly in the light of subsequent amendments regarding the acquisition or enjoyment of certain rights. I ask the Minister of State to accept the amendment or give the House a commitment to begin to make designations within a reasonable time.
The purpose of amendment No. 3 seems to be to place a definite time between the enactment of the Bill and the making of an order designating the events of major importance to society. The Minister hopes to be able to make orders within the timeframe envisaged in the amendment. However, if a statutory deadline is accepted one could be accused of cutting short the consultation process. In general I see the merit in fixing definite time limits but I will not agree to them if a public consultation process is taking place and one does not wish to be accused of cutting short the public debate. An open-ended consultation process is not the same as the formalised system involved, for example, in planning decisions, and the placing of a statutory time limit on such an open-ended consul tation process would pose its own problems. The people being consulted might complain that they had not been given sufficient time to consult with their wider constituencies. Given that public consultation is vital the imposition of a statutory time limit would present problems but, please God, it will be possible to make the necessary orders within four months. If the designations were purely a ministerial function involving no consultation a time limit would be appropriate but in a case like this we should not limit consultation time.
Mr. Ryan
We do not suggest that consultation should be cut short; more than one order will be necessary. The Minister will have the power to make, revoke or amend orders and we merely ask that we do not wait until every possible body is consulted before the first order is made. Some organisations will be slower than others and some organisations and areas of activity will have a clearer view than others. We only ask that the first order be made within six months.
I refuse to accept that it is impossible to begin this process in clearly defined areas within six months. I agree with the Minister of State that it would be absolutely outrageous to cut short the consultation. It would also be outrageous for everyone to have to wait until every single organisation had been consulted because this would take a long time. Consultation will be a continuing process as attitudes and popular tastes change and events become more or less popular. For instance, the compromise rules internationals between Ireland and Australia could become as significant in Ireland as they have become in Australia.
They have.
Mr. Ryan
We will see what happens when the matches are held in Ireland and I hope the Minister of State is correct. If he is correct compromise rules football will move from being a peripheral sport to something which is central and a new order would be required to ensure that these events are not broadcast on a pay-per-view basis.
It will be necessary for the process of consultation to go on forever and it should. New sports and new events will come and go. It may be necessary to make orders regarding once-off events. This amendment merely asks that a commitment be given to begin to make the designations within six months and not that the whole process should be over in that time.
I am not sure what Senator Ryan and his colleagues are attempting to establish. There is a current controversy regarding coverage of the return soccer game between Ireland and Turkey which is outside the jurisdiction of the State. RTE is involved unilaterally, not with the Turkish football association but with the company which owns the television rights to this event. As well as being involved in unilateral dis cussions, RTE is negotiating in alliance with the BBC and others for coverage of the match. I hope the matter will be resolved because the traditional haggling over money is taking place. The controversy has only arisen because Ireland qualified for the play-offs and a similar situation could develop over the next few months when this Bill has become law. Am I right to assume that the Minister can move once this Bill is enacted and make the order if he or she so wishes?
Senator Ryan constantly refers to pay-per-view services. Pay-per-view does not really pose a problem. In fact, the British legislation predated the technology and it refers exclusively to pay-per-view, but following on the enactment of the legislation the reality was that most major sporting events were transmitted through subscriber television. That is where Mr. Murdoch managed to achieve his monopoly, simply because the law had not caught up with the technology. It was a fatal flaw or error in the British legislation which has been addressed here. We are talking here about cable television. Cablelink was sold to a major multinational company, which is currently investing hundreds of millions of pounds in its network. The company will quickly be ready to roll out a new service and it, too, will become a player.
The question, in the context of this evolving technology and the evolving availability of sport to a wider television audience in this country, is whether the Minister will be in a position to respond quickly in the context of the amendment to a situation, for example, where Irish television viewers could be denied access to television coverage of the return game between Ireland and Turkey simply because the terrestrial stations will not be in a position to bargain. I do not think that will happen but if in the near future there is a major cable player in the State, which has the resources to pay top dollar to those who own the rights in order to penetrate the market and deny RTE the opportunity of showing an event free-to-air, would the Minister be in a position to take action?
To answer Senator Mooney's question, my understanding is that one can make an order in relation to a series of events, such as the qualifying games for the European Championships, the World Cup or the All-Ireland finals, and if there is a replay it would cover the replay. In that way one can provide ongoing protection.
To return to the point of Senator Ryan's amendment, which wants the first – only one – designation to be done within six months, it would be peculiar to insert that into legislation in that once one order has been made, such as the designation of the All-Ireland finals, within six months, one would have fulfilled the law. If one so wished, one could get around the legislation in that way. On the other hand if one was to do something like that just to comply with a pro vision so inserted, just to get one over the first hurdle, one could lose out.
I assume the first orders will be a series of designations of the major events of which we are all aware and we will roll it out from there. The first will be the slowest to implement – this has been our experience with other matters in the Department – because one is finding one's way as to the procedures to be followed. Once the procedures have been put in place, the rest roll out more quickly. At that stage, in setting up these procedures and following consultations, one should not impose a time limit. It may involve a lengthier consultation process on the first orders and being doubly careful until people become familiar, satisfied and convinced that the procedures are thorough and fair and give the various parties enough time to reflect. My experience has been that when people are rushed, particularly with something new and unfamiliar, and put up against a wall by a provision that the first order must be done within a fixed time, that tends to frighten people and make them resistant.
I remember discussing the designation/ transmission of sites in the SACs in Brussels and I took the view that we should take our time – to keep moving but not to rush it. I said that it was like a farmer with a sheepdog trying to put his sheep into a pen. If he tries to do it in a hurry he will never get them into the pen because we know what will happen, the sheepdog will push too hard and the sheep will break and run all over the place. However, if the dog lies down and goes asleep, he will never get them into the pen either. The trick with consultation is to move carefully forward and make sure one is moving forward, but not at a pace which makes the sheep break, so to speak. By inserting an arbitrary time limit on the first one, in particular, which obviously will be the most sensitive because it is a new process, one could make the sheep break in the rush and create resentment. Therefore, one must trust that it is intended to use this legislation – we would not bring it before the House if that was not our intention. It is intended to go through thorough consultations and no inordinate delays will occur. If there are delays, they will be likely to be in the beginning while people are feeling their way around this rather than with subsequent orders.
As I pointed out to Senator Mooney, once the orders are made for All Irelands, international soccer matches, etc., the orders remain and may be rolled out until revoked. One need not make an order for each event in each particular sport. This means that once the order is made, it is done until somebody stands up and tries to revoke it with good reason. I cannot see that being a common procedure unless somebody, for example, puts an end to the national football or hurling leagues, as was suggested this morning and, therefore, they no longer take place and there will be only the All-Ireland championships. Obviously in such a case one would revoke the order, but I cannot see them being revoked in the normal way.
I do not wish to delay the House on this but I am a little confused. Is the Minister of State saying that he would not, under this legislation, be in a position to intervene in the current controversy over the Ireland-Turkey game?
One could.
But he has already said that an order refers to a series of matches. There are no rights attached to this particular game. Any rights which TV3 had have been terminated because this was an extra event.
The order would be made in relation to all qualifying matches and, therefore, if there are two, three, four, five, six or seven extra qualifying matches until the team gets through the competition, the order would relate to the competition. I am advised that that is the case. For example, if there was an order on the All-Ireland finals and there was a replay, then automatically the order stands for the replay. That is my understanding of it.
Mr. Ryan
The Minister of State made one valid point, the fact that, of necessity, the amendment simply states "the first order". That could be a token and I do not think the amendment would really do much to speed up the process.
Amendment, by leave, withdrawn.
Section 2 agreed to.
Section 3 agreed to.
SECTION 4.
An Leas-Chathaoirleach
Amendment No. 4 is in the name of Senator Ryan. Amendment No. 5 is cognate and they may be discussed together. Is that agreed? Agreed.
Mr. Ryan
I move amendment No. 4:
In page 6, subsection (1), line 11, after "acquires" to insert "or enjoys".
Section 4 deals with either "broadcasters" or "qualifying broadcasters", as defined in the Bill. It deals with what they must do when they acquire exclusive rights to broadcast a designated event. On the discussion of the section I will return to the question of exclusive rights because I have some doubts about the concept of exclusive rights.
I am concerned that the operative term here is where a broadcaster "acquires" exclusive rights. Some broadcasters currently enjoy exclusive rights because they have already acquired them and they will have acquired them before this legislation comes into force. Presumably the acquisition referred to here will only apply after the Act comes into force. I would be concerned that there are broadcasters who currently enjoy exclusive rights and that there is a possibility that at least in the interim, until the matter comes up for renegotiation, they would be able to sell some part of those rights to, as Senator Mooney rightly pointed out, subscriber services rather than to free-to-air services. If amendment No. 4 was accepted the section would read "Where a broadcaster under the jurisdiction of the State . . . acquires or enjoys exclusive rights". It is designed to cover the existing situation.
I am concerned that the addition of the words "or enjoys" in lines 11 and 17 on page 6 would be seen as giving the Bill retrospective effect in relation to contracts already entered into and might weaken the Bill were it the subject of challenge. As our broadcasters provide free-to-air coverage of events to which they have already acquired the rights, I do not believe that this amendment is necessary and, on balance, it would be safer not to proceed with it. Therefore, I cannot accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Mr. Ryan
I move amendment No. 6:
In page 6, between lines 23 and 24, to insert the following new subsection:
"(4)Where an event has been made available by a broadcaster to a qualifying broadcaster pursuant to subsection (1), the first-mentioned broadcaster shall also make the event available to such broadcaster in the Irish language as may be designated by the Minister for the purpose of broadcasting the event in the Irish language, on request and the payment of reasonable market rates by the latter broadcaster.".
Lábhróidh mé i dhá theanga, i dtús báire as Béarla. I am certain that if legislation of this sort passes through the federal parliament in Belgium, provision will be made, depending on the event, for those who broadcast in French and those who broadcast in Flemish. It is clear that there will be a parallel regime for broadcasting in a bilingual country. We must be careful not to stifle TG4's capacity to build its audience because we do not do so in respect of radio broadcasters. We should leave space in the legislation for parallel broadcasting by an Irish language broadcasting service for those people who, for whatever reason, wish to watch a designated event with an entirely Irish language commentary. That is part of what we say we believe in this State. This amendment is merely an attempt to highlight it.
We should not marginalise Irish language broadcasting. I am aware that TG4, probably as a matter of policy as much as anything else, does not engage in parallel broadcasts. However, it may choose to do so in the future as it expands. Therefore, we should leave room for parallel broadcasting and not exclude the reality of a separate language based broadcasting service. Raidió na Gaeltachta does a great deal of parallel broadcasting as Gaeilge and we should leave open the possibility for this to happen in respect of television broadcasting.
I understand Senator Ryan's motivations in respect of this matter which gives me the opportunity to endorse many of the comments made on Second Stage, particularly by the Leader of the House, in relation to the excellent sports coverage TG4 has provided since its inception, not only international soccer matches but in recent months it has successfully attempted to cover county football and hurling club finals. I hope it will cover the finals in County Leitrim, small as it is, next year because I am sure such coverage will create a great buzz. RTE, as a national broadcaster, has provided excellent sports coverage, particularly on its superb radio service. I must declare a vested interest here because I am employed as a freelance contract journalist with radio sport.
Mr. Ryan
Is the Senator advertising his services?
An Leas-Chathaoirleach
I remind Senator Mooney that we are on amendment No. 6 and that Second Stage has concluded.
With respect, I am dealing with the amendment. I am merely trying to place this matter in context. I suggest that RTE has not provided the type of regional sports coverage dictated by its mandate. This may be due to a lack of resources or the fact that the station is based in Dublin and does not believe that county finals in Westmeath, Cork or Kerry are important. They are and TG4 has proved that.
In that context, I fully agree with the sentiments expressed by Senator Ryan in respect of the amendment. However, I wish to raise one point. If the amendment is accepted, I do not believe it could be given practical effect for the simple reason that a tradition and precedent already exists in England, which is the best example, regarding the coverage of major sporting events. The BBC and ITV tend to share events on an alternate basis and they rarely show the same event, at the same time on the same day mainly because it is not good commercial sense to do so. While TG4 might welcome the window of opportunity afforded by this amendment, in practical terms it is highly unlikely that the parallel broadcasting to which Senator Ryan referred, as it relates specifically to this Bill and to major sporting events, would be carried by TG4 at the same time it was being carried by RTE.
The obvious answer is to do what I always do – watch the television coverage with the volume turned down and listen to Micheál O'Muircheartaigh's commentary on the radio.
We must bear a number of fundamental points in mind when considering this amendment. In the first instance, we can only regulate broadcasters under our jurisdiction. Other member states of the European Union will regulate their broadcasters. In addition, the Bill is designed to ensure continued access to coverage of major events on free-to-air television services. In seeking to achieve this aim in the public interest, the Bill is designed so that it interferes as little as possible in the market for coverage rights. It is in the public interest to have a diversity of free to air television services. It is also in the public interest that there is a market between competing services for designated events so that reasonable market rates can be achieved and, in turn, particular sporting organisations can use such revenues to develop and improve their sports facilities.
If we consider our experience of televising major events to date, the amendment as drafted would have no effect in that a broadcaster who would acquire the rights to a designated event is likely to be, for the moment, a qualifying broadcaster. In this scenario the provisions of section 4(1) would not be triggered and neither would those of the new subsection proposed in the amendment.
The amendment also implies something which is more disturbing to me as a gaeilgeoir, namely, that there is only one dedicated Irish language television service capable of providing or expected to provide coverage in the Irish language. RTE's obligation to the Irish language will remain and I hope TV3 and other stations will see the wisdom of becoming involved in that market in the future. I would not wish to see a situation develop where only Teilifís na Gaeilge was expected to provide Irish language programmes. Raidió na Gaeltachta and TG4 provide excellent services, particularly to gaeilgeoirí – people who use the Irish language on a daily basis. However, one of the downsides of what has happened in recent years is that RTE seems to have forgotten its obligations in relation to the Irish language and appears to believe that its obligation is being fulfilled by shunting the whole matter off to what is basically a service mainly for those who use Irish as a common language every day. In certain instances RTE has dramatically reduced the level of Irish coverage available on its services, particularly on Radio 1, which was never intended to be the case.
We often forget that a large number of people do not speak Irish fluently but see it as part of their cultural identity. As Senator Manning stated, the bold Micheál O'Muircheartaigh has a habit of breaking into the first official language halfway through his commentary on a match. I do not know anyone who switches off and returns to the television commentary when he does so. Most people would be disappointed if he dropped that habit but they do not want him to broadcast the entire match through Irish. Similarly, it is amazing that broadcasters reading the news in English can say "Oíche mhaith" at the end of the broadcast during Seachtain na Gaeilge and the country does not fall apart, but they cannot do this for the other 51 weeks of the year. We must be careful that we do not ghettoise the Irish language because most people feel an attachment to it, despite the fact that they do not speak it daily. To ghettoise it as if it only belonged to a minority section of the community is, in my view, to do it a disservice.
As Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands with responsibility for the Irish language, I have said several times that in my role I have to try to deal with different markets in relation to the Irish language. A section of the Irish people wish the language was dead and gone and want no truck with it. There is a much larger section who do not know Irish, do not speak it daily and do not wish to speak it daily but feel it is part of their being and belonging, and want to see signs in Irish and the language being used as part of general television services. These people would be bitterly disappointed if the Minister for the Environment and Local Government made an order tomorrow that all road signs were to be in English only. We must consider that segment of the population.
I am one of the people who use Irish as their home language and conduct a lot of business through it. We use Irish as an ordinary language of communication for business, pleasure and socialising. They use it in the same way as the people of Luxembourg use their traditional language as well as French and German. If this amendment was accepted it would be in danger of sending out a signal that Irish belongs to TG4 alone. We must get away from that ghetto mentality.
An Leas-Chathaoirleach
Is the amendment being pressed?
Mr. Ryan
Cad as a tháinig an tuairim ag an Aire Stáit go laghdódh an leasú seo an dualgas atá ar RTÉ faoi úsáid na Gaeilge go forleathan i ngnáth chláracha in ionad ghettoisation? Ní hé sin a tharlódh dá nglacfaí leis an leasú. I would be happy to accept that there is a difficulty about the wording of this amendment and we could examine it again on Report Stage. I am concerned that there may be designated events that will become extremely popular perhaps due to some enterprise on the part of TG4 which are then acquired by someone else. TG4 could then lose the right to continue to hold on to an audience it has built up using its considerable imagination.
Officially we are a bilingual society. Therefore, we should always ensure that where it is possible, even if it looks like duplication, that we operate bilingually. If this issue were being dealt with in the Belgian Parliament and it was suggested that a station would have a monoglot designation, in other words that it could only broadcast in French or Flemish, it would result in riots on the streets. Fortunately, we do not do that, but, unfortunately, we do not take the Irish language seriously enough for that to happen. Nevertheless, it is a pity that the bilingual nature of our society and the possibility of choice between different commentators and spectators that it offers is not reflected in the legislation. I do not propose to pursue the amendment but I do not think the Minister of State has dealt with it in a satisfactory manner.
I do not like the reference to broadcaster in this amendment. It seems to imply that some broadcasters are Irish language broadcasters and some are English language broadcasters. I refute any right for RTE to designate itself as an English language broadcaster and justifying that by pointing to Teilifís na Gaeilge. I accept the point of principle that TG4, which will always be a Cinderella in terms of strength and money, would have access to programmes and the market. This is a serious issue. I do not want to see TG4 broadcasting more English language programmes. The station was created to provide a service for people who wanted to see programmes in the Irish language. I have no difficulty with TG4 broadcasting some programmes in English but not to the exclusion of broadcasting in Irish.
If we are going to address this issue it will have to be done in a slightly wider context. It raises questions that we will be discussing in the Broadcasting Bill with regard to the relationship between setting up TG4 on an individual basis and RTE. One of the best ways to safeguard what we are trying to do would be to ensure that TG4 continues to have simultaneous access to the resources available to RTE – it is a public service broadcaster paid for by the taxpayer out of the licence fee. In that way if one station has it the other one will have it as well. It also allows consortiums to get these programmes. It is not only a question of passing on programmes but there is also the general issue of resources and licence fees and, therefore, it is a broader issue than the subject matter of this Bill. I accept what Senator Ryan says in principle but I do not think this amendment is the way to deal with it.
Senator Ryan is right that we should get to the conceptual point of recognising two official languages and realising that they are not equal in strength by way of the number of daily speakers. As far as possible duplication should exist, for example signs and advertisements should be in Irish and English. That is the route we should take. In the early days of the State we tried to exclude English. We thought that if Irish was in greater use we would get rid of English but that was a big mistake. We went as far as to forget about using Irish, but not admitting to it, and using only English because it was a commercial language. Having travelled all over Europe I have discovered that the vast majority of people, irrespective of their academic ability, manage to learn two languages. It is a common phenomenon. The people in the Gaeltacht have no problem learning two languages. We should not think it is such an achievement in life because we could become like a lot of continental countries, a country truly of two languages. We should see them side by side, not as a threat to each other. We should view them as being complementary. I accept the spirit of the Senator's point but in practice the amendment would have weaknesses. This is a debate for another day and when the Broadcasting Bill comes to the House there will be interesting debates on the relationships.
I started from the premise that we were dealing with two stations that would have commercial considerations and, therefore, would make decisions based on commercial considerations. Senator Ryan is correct, and the Minister of State has amplified it, that TG4 has a separate mandate. I do not wish to convey the impression that people who speak Irish as a first language should be denied access to the same programmes as those who speak English as a first language. Perhaps the Minister of State might give some consideration to whether there should be simultaneous broadcasting in Irish and English of designated events where he has jurisdiction in this area. Outside of that he might, in his capacity as the Minister of State with responsibility for the Gaeltacht, suggest where RTE can acquire rights. In a multichannel environment like ours RTE might not always acquire rights – TV3 has acquired rights to some international games.
I see a strong case to be made. I would feel left out if Gaeilge was my first language and, through the lack of choice, I was compelled to watch a sporting event where the commentary was in English. I would probably feel that the typical second class citizen syndrome was at work. Broadcasting in both languages might be of merit and be welcomed, not only by people in the Gaeltacht areas and those who speak Irish as a first language but by the general public, whom the Minister of State referred to as having a commitment to and affection for the language. It is worth thinking about and I could see merit in it. Although the amendment is being withdrawn, it is something innovative that the Minister of State could consider.
Mr. Ryan
I am not withdrawing the amendment just yet. I tabled it because I thought it was an important issue. I recently visited Finland, a country with two official languages – Finnish and Swedish. Swedish is spoken by between 4 and 6 per cent of the population but they will tell you that they treat the Swedish speaking minority extremely well. In those areas, including Helsinki, where there is a Swedish speaking minority, all road signs are in both languages. That is a great relief to those of us who visit because Swedish bears a resemblance to English and it is therefore possible to make some sense of the signs which would confuse us all if they were in Finnish alone.
The interesting thing is that Swedish is the language of the former ascendancy and it is a peculiar irony that the Finns treat the minority language of what used to be their ascendancy with more generosity and legal equivalence than we treat that language that supposedly all aspire to speak. A sizeable number – 5 or 6 per cent – of the population use Irish on a regular basis, both inside and outside the Gaeltacht. For that reason I hope the Minister will take this idea on board.
Senator Mooney's suggestion is worthwhile. In all these designated events we should create a situation where, if it wishes and if resources permit, TG4 should be able to broadcast them simultaneously as Gaeilge. That would advance equivalence considerably and would have nothing to do with RTE's obligation to use its resources and imagination to advance the Irish language on television and radio. I agree with the Minister that it is possible to do that in a way which does not switch off the entire audience. It does, however, take some imagination, something which RTE lacks in many areas.
An Leas-Chathaoirleach
Is the Senator withdrawing the amendment?
Mr. Ryan
I do not want to withdraw it and thereby inhibit the Minister from replying and making more commitments.
I am not making any commitments. This debate is wider than the question of broadcasting alone. We are speaking as if TG4 is the only organisation which can broadcast a voice in Irish. I remind the House that since it started broadcasting All-Ireland finals and semi-finals, the RTE commentary on the minor games has been through the medium of Irish. There is no technical difficulty doing this. Irish is considered by some to be a difficult language but technology can convey it and RTE has done that for many years. The Railway Cup used to be covered in Irish when it was a major sporting event, although it could be delisted since poor Christy Ring passed on.
There is merit in the proposal but all these events would be made available free to air to someone who would broadcast it in Irish and someone who will do it in English, not to TG4 specifically. That would change the tenor of the Bill. Perhaps the Senator is right, maybe that should be the way all these things are done but the amendment would not achieve that.
If TG4 broadcast sports which are developing a considerable audience, it might create a major sports event out of one of them. Compromise rules is a perfect example of a sport being made into a major event through television. The interest in the compromise rules international was extraordinary, there is no doubt that it will fill Croke Park next time. If TG4 broadcasts it, there will be nothing in this legislation to stop somebody else acquiring the rights anyway, even with the amendment. There is nothing to stop anyone broadcasting through Irish.
The debate on the language has moved to a new plane in recent times – a more realistic plane. We are now talking about a service provider which is consumer orientated rather than the old compulsion and we are trying to gear it towards the rights of the consumer in relation to the language rather than the other way round. I welcome the debate and I welcome the questions raised by this amendment which are worthy of consideration in other places.
This amendment has raised a fundamental question. If a designated event has been acquired by RTE as distinct from TV3, presumably it will transmit the event in English. A significant number of people choose Irish as their first language and would prefer to watch television programmes in that language. The Minister of State could consider the issue in his capacity as Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands, which is responsible for broadcasting policy. He could consider a position where TV3, if it lost the rights to an event, could acquire the rights to broadcast as Gaeilge and would be in a position to broadcast the event but only if it did so through Irish.
It does not always have to be TG4, although we hope it would be because that is its mandate which makes an event available to those who speak Irish and to those of us who are committed to the language. In all of my broadcasting career, at least one third of my output has been in Irish, although I may not have spoken it too well. In those terms, I aspire to the bilingualism of Micheál Ó Muircheartaigh.
I am not trying to force the pace of the debate, I am preaching to the converted. This has been a valuable opportunity to air an aspect of the debate which would not otherwise have been aired. I did not come in here on the basis that we were going to discuss this. Senator Ryan is to be complimented for tabling the amendment and there is merit in it. Those of us who speak English as a first language are not always cognisant of the reality for those who speak Irish as a first language and their sensitivities in a predominantly anglicised society. The Minister might advance this debate in the future. From a technical point of view there are no objections, the provision of a commentator is all that is required.
Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."
Mr. Ryan
I have a problem with the idea of exclusive rights. It has only emerged in television. There is no such things as exclusive rights in radio broadcasts. If Kerry is playing in an All-Ireland football final, it will be broadcast by RTE, Raidió na Gaeltachta and Radio Kerry. The listeners then decide to which of those stations they wish to listen to and they receive varying coverage of the game. When my native county was in the All-Ireland football final for the first time in years last September the coverage after the match on local radio was completely different from that on Radio 1 for many reasons. However, there was great diversity and people had a choice.
Exclusive rights deprive people of choice. If only one newspaper had exclusive rights to cover a sporting event, all of us would consider it ridiculous. Sports coverage in newspapers is kept alive by the fact that they must compete with their rivals on how they cover sports events. Exclusive rights mean in the long term that the buyer deals only with the seller and the customer comes last because, by definition, they must pay the costs of those who organise the event. In that scenario the focus is not primarily on customers but on the retailer of the product.
I have a problem with exclusive rights. Within five or six years, we will have 200 television stations, of which 195 will be watched rarely. However, only one will have exclusive rights to many events, sporting, cultural and otherwise. Why has television been allowed to move in that direction when radio and the print media have not?
This point was raised when the debate on this issue started and I await the Minister of State's response. I have been a firm supporter of this concept and applaud the Bill which is long overdue. We live in a commercial world and broadcasters have not initiated this debate or sought exclusivity. However, sporting organisations have acknowledged the development of technology. BSkyB has been the leading player in this hemisphere having negotiated exclusive rights to Premier League football. There was a time when one could watch international soccer matches live via free to air broadcasts in the UK but this happens rarely nowadays. The forthcoming Euro 2000 play off match between England and Scotland will be broadcast on Sky Sports with BBC showing highlights later that day.
This section is vital because of the proliferation of radio and television broadcasting outlets. I have absolutely no doubt that the GAA will seriously look at the commercial returns which accrue from negotiating with a major broadcaster for exclusivity. This Bill will address the development of such a scenario in Ireland. The Minister will be able to say that the GAA is free to negotiate exclusivity with anybody but a condition attaches whereby specific events must be broadcast free to air. However, the State does not have any right to interfere with the market forces which are generated as a result of exclusivity. The GAA or any other sporting organisation should not be denied the right to generate much needed income for resources in various other aspects of their sports. The Minister on behalf of the people will discharge his or her responsibility to ensure that exclusivity does not go beyond acceptable boundaries by making sure that at least major events will be available through free to air broadcasts.
As the radio sector continues to be deregulated in Ireland – and the sooner it happens the better – one will find that there will be competing interests in that sector as there is currently in Great Britain. BBC Radio 5 Live must negotiate with various sporting organisations for rights to transmit events and it does not always succeed because it competes with other radio broadcasters. This scenario could quickly develop, especially in Dublin, where, within the next six months, four or five new radio stations will begin broadcasting. They may find that it is in their interest commercially to acquire rights to sporting events. If they pursue such rights, they will want exclusivity.
One should not think that this is only about television. The Bill may specifically deal with television broadcasts but the world is rapidly changing in terms of broadcast rights for sporting events. I have no doubt that the GAA is actively looking at ways and means of maximising its income from its games which are not only extremely popular domestically but are increasing in popularity internationally as a result of the compromise rules series. It is about big bucks at the end of the day and we should not be naive about the fact that sporting organisations, given the opportunity, will negotiate with major television broadcasters if it means that more money will be pumped into their respective sports.
We should look at which end of the road we are coming from. Radio broadcasts of sports events do not have any huge commercial value and any radio station which seeks to broadcast an All-Ireland final or a Connacht final can do so and that is great. For example, in the west one has a choice between Galway Bay FM, NWR, Raidió na Gaeltachta and Radio 1. There are two reasons for that. First, nobody sees any commercial value in exclusive rights for radio commentary and, second, the technology is simple. Basically, one needs a good telephone line and a microphone; therefore, it is cheap. The proliferation of broadcasters over the past 20 years has been great as it has encouraged much better coverage.
Television is a much different ball game because it comes from a totally different direction. First, a huge amount of fixed equipment is required and there is a huge cost involved in broadcasting live. A huge investment in cameras, staff, etc., is necessary. A large number of broadcasters cannot be present to televise a sporting event. Second, the reason the Bill has been introduced is that a scenario was developing, which had nothing to do with Government, whereby sporting organisations realised that the way to maximise their profits was to have their events covered by only one broadcaster for a huge amount of money. From the broadcaster's point of view, the money could be recouped by negotiating exclusive rights to the events and deals were done between two commercial operators.
The Bill seeks in certain ways to ensure that the free market operates in such a way that there is universal access to free to air broadcasts. It will not interrupt the normal operation of the free market but lays down one condition, which is that major events are available for free to air broadcast. It recognises that exclusive rights are negotiated in the market but will not allow a scenario to develop where such events are only available to all citizens through limited or pay-per-view services and not free to air broadcasts. It must be seen as coming from that direction rather than coming from the other.
Maybe I am old-fashioned or a romantic at heart. The utter commercialism of everything nowadays is frightening. There have been good elements, it has opened up certain things and made them available. Maybe I have become cynical because of the way it has gone. Watching Olympic sports does not hold the same attraction. I would rather do down and watch a club match where you at least know that they are doing it for nothing, doing it for the fun of it. They have all trained and the whole thing is clean and a bit of fun. I am not the only one who worries that we live in a world where money, profit and greed are the only measures. We must be realistic. We cannot change the nature of the world or of society. We can try to control its worst excesses.
This Bill is about controlling the worst excesses of going for maximum profit, irrespective of the customer. It guarantees that the old person at home, whether bedridden or an invalid, has access to these major events on a free basis. I was disappointed with some contributions on Second Stage to the effect that you can go to the pub and pay. Many people do not get out of their homes because they are old people living on a pension or invalids. It may be physically impossible for them to get to a pub where these events are shown. That is the reason this Bill is so central in providing for free to view. That is what this section does.
Mr. Ryan
I am glad I raised the issue as it raises all sorts of interesting things. Even though we have moved into a competitive market economy, we are not going to have one. That sort of an exclusive rights deal is at variance with the fundamentals of a competitive market economy. It gives market power to the people who are supposed to be providing the service for the public. A genuinely competitive market means, to quote Senator Quinn, that the customer is king.
This is a situation in which a service provider, as in the broadcaster, and someone that has something to sell as in the sports event organiser, do a deal that costs the customer more than what might have been the case beforehand. If a person does not have exclusive rights, he cannot add in the extra charges, whether it be to advertisers or, in the case of subscriber services, to customers.
Senator Mooney is wrong because he is accepting that we cannot make markets work. In the area of broadcasting we have walked into an acceptance of the idea that we cannot use the marketplace in its various manifestations. What we have in this is the worst of both worlds. We have a limited audience. In Britain the maximum audience satellite TV has achieved is 10 per cent. It may be slightly larger here because of the degree to which we have cable. I doubt whether it is more than 10 or 11 per cent. What has happened in Britain is that exclusive rights to premiership football are available to perhaps 10 per cent of the population. Some 90 per cent of the population does not see any premiership football. This may be a nice arrangement for the football clubs that has made them very rich. It does not persuade me that it is good for British society or good in the long term for British football. The money is not being spent on promoting the game; it is spent on aggrandising the rich clubs. There is no sign that money is trickling down to provide better facilities. It is making making players rich, shareholders rich, chairmen rich, managers rich and Rupert Murdoch extremely rich.
It has made players very rich.
Mr. Ryan
It has but it has not shown any signs that it will do anything to promote sport in general in any country where it arises. We have accepted the abandonment of market economics. If someone has the exclusive right to sell—
It has accepted the reality.
Mr. Ryan
No. Once you move away from the belief in the marketplace where it is appropriate, you get into a situation where everything about market economics is stood on its head and, as it has turned out in this case and Rupert Murdoch has accepted, sport is what makes BSkyB rich. The rest is a gloss to give the impression of diversity. If he did not have the exclusive rights to all of these sports BSkyB would lose money.
The Senator has missed the whole purpose of the Bill.
Mr. Ryan
No.
He has. The purpose of the Bill is to stop what has happened in Britain happening here. Even if a person gets exclusive rights here, he must be a broadcaster who can, on a free to air basis, reach 95 per cent of the population in the long term and 90 per cent in the immediate, as a minimum. You cannot do what he did, serve 10 per cent, charge them dearly and make a mint. You must put it out, so your only source of revenue is advertising. That is the purpose of the Bill.
Mr. Ryan
I was talking about the concept of exclusive rights, not just about the Bill.
The Bill deals with delimiting the worst excesses of what has happened in other places, to make sure that it continues to be available on a free to air basis to 95 per cent of people in the long term and, in the event of less than three, to 90 per cent of people on that basis. That delimits the amount of money in terms of using exclusivity in the way it has been used to reach only 10 per cent.
The Senator has made a defence of the Bill as far as it goes. I doubt whether it could go any further and do the fundamental thing that the Senator would like it to do, that is provide that anyone who wished to go into Croke Park on All-Ireland Sunday with a camera would have to be accommodated irrespective of whether it was 50, 60 or 70 per cent and that the GAA would have to allow them in, they would have to be facilitated and their fees negotiated that way. I cannot see that situation arising. It is a pity but that is the way of the world. The more I think about it, the more impractical it seems.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Mr. Ryan
Do I understand that if the Minister designates an event here we cannot through the EU regulate how that event is broadcast outside the State? For instance, if it is a designated event and available to 90 to 95 per cent on a free to view basis, does that mean BSkyB could acquire the rights for outside the State, for instance for Northern Ireland? We could have a position where an All-Ireland final was a designated event in this State but could be available only to subscribers north of the Border.
My understanding is that if it is a designated event it has to be available to everyone here. Please God, events broadcast by RTE will soon be reached by people in the 32 counties. That may be a moot point. We have no control over what happens outside the country.
Mr. Ryan
Even through the EU?
That is another matter. I hope that sooner or later we will treat broadcasting in this country as it should be treated. By definition that means we would be talking about 90 per cent or 95 per cent of the people in the State but, please God, it will come to the stage where the services North and South will be available to the people North and South. However, that is a different issue.
Mr. Ryan
I am concerned that we are into the lowest common denominator where, for instance, if the British, whether Tory or Labour, or in what purports to be a free market mood, decided to designate very few events in Britain under this directive, the consequence would be that many British events, for example, the Wimbledon tennis or the FA final, that are currently available to somebody free to air, could become unavailable throughout the rest of the EU. There is no common EU standard which would suggest what I would have thought reasonable, which is, if they are designated events in one state in the EU they ought to be of a similar character throughout the EU, at least on a first option.
In light of the issue raised by Senator Ryan, am I correct in assuming that in this Council directive, Europe is moving in unison to prevent precisely what we have been arguing about, that it would apply to sporting events of an international nature where there may be a possibility that one of the member states might acquire exclusive rights which could deny access to other member states? Perhaps the Minister will clarify the matter. I understand this section is in keeping with the Council directive and should be welcomed.
I understand if there was a difficulty it would be open to a member state to complain to the European Union because every member state is bound by the directive. Apparently RTE is available to 70 per cent of the people in the North. On a totally different issue, it is important that stations broadcasting on this island would be available universally throughout the island. That would increase choice. As matters progress I hope that is the direction in which we will go and thus bring more players into the market, North and South.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
Mr. Ryan
I move amendment No. 7:
In page 7, subsection (1), line 9, after "event" to insert "which shall be calculated having regard to the public interest which led to the designation of the event under this Act, in addition to normal market considerations".
Section 7, which deals with reasonable market rates, states:
. . . if broadcasters are unable to agree on what constitutes reasonable market rates. . . , either of the broadcasters may apply to the High Court. . . for an order determining reasonable market rates for an event.
I hate getting up here and appearing to give lectures about market economics and how it is understood to work. The definition of a market rate or a market price is what a free consumer would pay, freely and rationally, to a seller who is in a position to sell freely and rationally and in a competitive market the presence or absence of either one seller of a good or one purchaser should not affect the price because it should be a truly competitive market. What we are talking about here does not meet any of those critera where there is the purchase of exclusive rights. We have quasi monopolies.
The actual question of what is the market rate is a difficult one. We believe there is another consideration which is the public interest. For that reason we wish to add that in determining what would be a reasonable market rate, the High Court should calculate ". . . having regard to the public interest which led to the designation of the event under this Act, in addition to normal market considerations".
A reasonable market rate drawn up between Rubert Murdoch and the Premiership, for instance, will be the maximum possible the Premiership can extract from Rubert Murdoch. That is a large sum to require other broadcasters to pay in the light of something being designated because it is based on an effective monopoly. It is not representing what would happen in a truly competitive marketplace which we do not have. In section 4 the idea of a genuinely competitive market, involving multiple actors which we do not have here, has been abandoned.
The only people the Senator is talking about are free to air services. The amendment seeks to ensure that the High Court in dealing with a commodity takes into account the inherent public good when reaching its decision. However, the Minister sought advice on the matter. The Office of the Attorney General has advised that to prevent a court from ordering the payment of a rate which would be available on the market would invite difficulties where the State has not made provision to compensate a broadcaster or an event organiser who would suffer loss because of a difference between a reasonable market rate and a rate which would take account of the lower price obtainable where the public interest would have to be taken into account. As the broadcasters are operating in a free market at present, it would be more appropriate for them to pay the market rate than to look to the State for any difference in price.
I reiterate that the Bill seeks to interfere with the market to the minimum extent. Accordingly while I have genuine sympathy with the Senator's proposal, I am strongly advised not to accept the amendment as it would weaken the Bill. Accordingly I oppose the amendment.
Mr. Ryan
Let us sort out what we have done. Section 4(1) states:
Where a broadcaster [for instance, somebody who is providing a cable television service in this State]. . . acquires exclusive rights to broadcast a designated event, that broadcaster shall not broadcast the event unless the event has been made available to a qualifying broadcaster, . . . on request and the payment of reasonable market rates by the qualifying broadcaster.
Somebody other than RTE, TV3 or some other terrestrial station acquires the rights but because it is a designated event they are not allowed to broadcast it unless they make it available to RTE. RTE has to pay them "reasonable market rates". If they cannot agree it goes to the High Court. What tests will the High Court have to use? It will only have the model of what this company claims it will be able to get if it could sell it in the marketplace, in other words, RTE will have to pay them as much as they would get if they were able to sell it on a subscriber basis to those who are prepared to pay. That suggests huge sums of money unless some public interest test is introduced. It suggests, if they get in first and buy the exclusive rights of, say, the All-Ireland finals, what it could make if it could do this on a subscriber basis or a pay-per-view basis would be £X millions more than they would have paid the GAA.
The only test the High Court can use, if there is a dispute about how much RTE, TV3 or whoever would have to pay them, will be the market place, without any public interest. That means they may not always be able to afford to pay the price and, therefore, there will be no obligation to provide it. There is a constraint that they cannot broadcast it if it is not made available but they still have a strong and uneven negotiating position if they have the exclusive rights. Ultimately, they can say they will not agree on the price with RTE but will go the High Court. The High Court will then have to apply criteria. If there is no public interest or other criterion, they would look at what the people claim they could get. The evidence they will get from Britain of subscriber viewing is that the revenue is vast and, therefore, the market price they will say RTE must pay will be a fairly inflated price. That is what I am concerned about if there is no reference to public interest.
In the context of sporting events, arbitration is a normal procedure where there are difficulties and disagreements between sporting clubs, especially in the professional football league, over the value of a player. What market value does one place on a football player? One will find it difficult to come to terms with whether one player is better than another. One must adopt some criteria. When clubs disagree the matter is usually referred for arbitration and both clubs agree to accept the decision.
This scenario may arise in respect of an existing television operator. As things stand the only ones that I can think of are Sky television, which acquires the rights to an event of particular national interest, and Cablelink or, possibly, some other developed cable company which has achieved sufficient penetration to justify seeking the rights. They acquire the rights from the sporting organisation concerned in the first instance and in reaching agreement they place a value on the event in question. Senator Ryan may well ask what criteria they use in arriving at the market price. It comes down to normal commercial trading between the two parties concerned. The sporting organisation will say that £1 million is not enough, that it wants £2 million which the broadcaster seeking the rights will say that is too much and so on.
That will not happen in this instance. The Minister will invoke the order and inform the party which has acquired the rights that it cannot broadcast the event without making it available to free-to-air services. At that point the rights owner will have to enter negotiations with either RTE, TV3 or TG4. If the parties concerned fail to agree an acceptable price the matter will be referred to the High Court. One cannot determine in advance what the eventual outcome of the negotiations will be or what the High Court will decide.
I refer Members to section 2(1)(b)(i) which refers to ". . . on a live, deferred or both live and deferred basis". In other words, the valuation will be affected by whether the free-to-air broadcaster wants to transmit the event live or on a deferred basis. It will be a matter for the rights owner to decide the basis on which the event will be transmitted. In invoking the order will the Minister insist on the event being transmitted live or will there be flexibility under the Bill where he or she will be satisfied if the event is transmitted on a deferred basis?
The matter is not clear-cut – it will all depend on the merits of each case. I have no objection to arbitration which is normal, particularly when it comes to transfers and valuations. There is no reason that should not be the case in this instance.
I understand the Minister will be able to designate that an event should be available on a live or deferred basis. The matter will be dealt with in the order. What we are talking about here is its market value. In determining market value the High Court will have to look at the value of a product to the free-to-air company, in other words, what it is worth to it. Nobody will be forced to broadcast an event. Let us suppose somebody buys the exclusive rights to the rugby internationals next spring and tries to sell them on but none of the free-to-air companies expresses an interest as the price sought is off the wall. None of them can be forced to broadcast the event in question. Where interest is expressed but agreement cannot be reached on the price the parties concerned have recourse to the High Court to determine the market value. The Minister will not be able to designate that TV3 or TG4 must broadcast the event. If companies do not avail of the rights to events listed in the order the market will settle down quickly and values will be more realistic.
In the normal course the market determines who will secure the rights to an event. What the Bill does is delimit the market to a certain extent in the sense that certain events will have to be available through free-to-air services to 90 per cent plus of the population of the State. The High Court will have to take into account what the product is worth not just to the seller but also to the buyer. We can rely on it to come up with a reasonable figure. It may be a hard concept at times but the market value of a product depends on the demand for it. It is the advice of the Attorney General that any tinkering with this value would leave one open to the question of compensation. While I am sympathetic to the case which has been made, it would leave us open to many other claims which would not be sustainable.
Mr. Ryan
It is becoming increasingly obvious that there is a significant loophole. If somebody believes that a subscriber or pay-per-view service would pay a large amount of money for a designated event they could make an interesting commercial gamble and buy the rights and make them available to free-to-air or near universal services at a price that the market would pay them if the event was made available on a subscriber or pay-per-view service. What we are saying is that instead of individuals having to pay for it one of the near universal service providers would have to pay the amount that the company would get from a subscription or pay-per-view service. Given the limited funds available to public broadcasters, such as RTE or a newly established private television service such as TV3, it is possible to envisage circumstances in which the price they would be required to pay would be way beyond their resources.
Let us suppose a company enters into a commercial arrangement to pay Croke Park £10 million or £20 million for the exclusive rights to all GAA matches for a year, the Minister designates certain matches, such as the All-Ireland finals, and the company states that as these events are its big revenue earners it needs to be fully compensated for its loss. What is to stop it from going to the High Court?
Am I right in assuming that there are international criteria, that the market value of television rights is determined by the number of viewers available in each of the transmission areas? In the context of Senator Ryan's argument, I hope the Minister of State will clarify matters because he seems to suggest that the rights owner will set the rate at such an unacceptably high level that it will push the free-to-air transmitters out of the market. That would be bad commercial sense. It would have to be done on the basis of the available market and the income that could be generated. If the sporting organisation in question conveys the rights to a third party, and the free-to-air transmission service is negotiated, does the Minister decide whether the criterion acceptable is deferred or live or is a wide, sweeping order made? It must be either live or deferred. I am not sure whether there will be flexibility in this area. If the GAA enters into negotiations with a third party and RTE wants to acquire the rights to an All-Ireland final and if, at the end of the negotiations, the rights owners say they have concluded an agreement with RTE for deferred transmission, would that be acceptable?
To answer that question, if the order says it must be live then it must be live. To return to the other point, most of the events we are talking about – All-Ireland finals, rugby internationals and so on – already have a market value established and there is a common market value for events. Even in respect of some new event in Croke Park with an audience of 60,000 people, it is easy enough in those terms to establish a market value. Let us say that somebody offered a totally ridiculous figure – £100 million – for exclusive broadcasting rights and tried to sell those on the market. If one reads the section one can see what market value means. Market value is not only the seller's value, it is the value to the purchaser as well. That is what determines market value. It is an amalgam of the value to the purchaser and the seller. We all know that traditionally at the fair the seller always asks for a bit more and the purchaser offers a bit less. The value on which they eventually shake hands is that which is fair to the requirements of both the purchaser and the seller.
Let us examine the position here. If somebody has paid too much money for an event, they may put it on the market and two or three companies may come forward to express an interest but the offers are much lower than the price originally paid because it is an inflated price. The case is referred to the High Court and presumably the High Court must take into account of what it is worth on the market to the purchaser. In those circumstances the High Court would probably come up with a figure that would result in a gross loss for the person who had paid the inflated price. Senator Ryan appears to be proposing a deflated market price but that is a compensation.
It is fair to point out that property rights are subject to the exigencies of the common good. That principle is enshrined in the Constitution. It is not as simple as saying "What I have I hold". I would be surprised if the High Court took such a one-dimensional view of the matter. It would have to take into account the ability to pay for these free-to-air services, in view of the fact that they are free-to-air, the real market values, comparative market values for other services and the going rates over the years. When all of those are put together, anybody who tried to manipulate this area might get their fingers burned in the High Court.
May I intervene before Senator Ryan comes back in? This matter will never get to the High Court. The House should keep in mind that any of the rights acquired for sporting events will be acquired as a package. They will not be acquired on a one-off basis. In other words, it is unlikely that any of the people we are talking about will negotiate with the rugby or other major sporting organisations for one game. I suggest it is improbable that any of the major sporting organisations will wish to enter into any negotiations on a one-off basis. They will negotiate, as has been the practice in the UK and else where, on a package of games throughout the season over which they will have exclusivity. In many cases the other terrestrial broadcasters may not be interested in broadcasting some of those games. Obviously they will be interested in the showcase games, the finals, and therefore what we are talking about now in the context of this section is where negotiations break down on one event which has been listed by the Minister and the order invoked. It is unlikely in reality that they would ever go to the High Court but if they do, it is adequately covered by this section. We are sometimes narrowly focused in our arguments about these matters and I am as much to blame as anybody else. We do not look at the wider picture in terms of how the practice currently operates in other countries. These rights are usually negotiated on a season-wide basis or even on a two or three year basis. We are talking about specific events where the Minister, in the public interest, will be required to intervene. In that context, does Senator Ryan believe that is an adequate response?
Mr. Ryan
I realise time is moving on but I am concerned about this matter. I want to go over some of the points made by the Minister of State. I accept his bona fides on this matter but I do not believe it has been thought through. First, there is not an existing market value because until recently there was only one service provider who could provide the service. We do not yet know what the market value will be. Second, the market value is not determined simply by what a universal service provider will pay but by what the market will pay. The market might not be everybody. It must be remembered that only 10 per cent of television viewers in Britain can watch Premiership soccer. Nevertheless, BSkyB can afford to outbid the BBC or ITV for sports rights. BSkyB can afford to pay so much for these rights, 90 per cent of service providers cannot afford to compete because the market is not even.
We have two major cable services in this country – Irish Multichannel and Cablelink. Between them they probably have 80 or 90 per cent of cable. If they decided to acquire the rights for all GAA games they would then try to sell them on to their customers. They will not care whether 5 per cent or 90 per cent of their customers pay as long as the price each customer is prepared to pay enables them to make a decent profit on their acquisition.
BSkyB has made no profit. It has run at a constant loss. It has made no profit.
Mr. Ryan
The days of Rupert Murdoch running large broadcasting services at a loss are rare.
That is the reality.
Mr. Ryan
My understanding is that BSkyB's profits have been generous but in recent years, because of the investment in digital, it has had a dip in its profits. My understanding is that BSkyB is making money and Mr. Murdoch says it is coming from sport in particular. The point is that if they acquire those rights, the High Court will not force them to sell them to RTE at a loss. They would immediately have a case and the High Court would know that. People cannot be forced to sell something that has been paid for in a free market. This is not a compensation issue because with the legislation in place anyone who then tries to acquire exclusive rights will know that, ultimately, if there is a disagreement it will go to the courts where the public interest will be a consideration. They will have entered into the contract will full knowledge of the implications of that and the possibility that if they try to charge too much the public interest will be invoked. When we had maximum price orders for many items, people could not sue the State for compensation for lost profits.
The simple answer is that the advice of the Attorney General does not concur with that of the Senator. He has advised that to prevent a court from ordering the payment of a rate which would be available in the market would invite difficulties where the State has not made provision to compensate a broadcaster or an event organiser. The Attorney General has given very clear and specific legal advice and I am not in a position to overrule him on a matter of law.
However, I would also make the general point that I honestly think, for a number of reasons, that the Senator is worrying about something which is very unlikely to come to pass. It is my view that the major sporting organisations in this country will deal directly with the free to air services because they know it will eventually wind up with them.
When one talks about 10 per cent of the population of Britain, one is talking about more people than the entire population of this State. When one talks about 10 per cent of the population of this State, one is referring to only 400,000 people. Ten per cent of the population of the whole island is still only 500,000 people. Therefore, enterprises which might be profitable, successful and attractive across the water would not prove to be as profitable or attractive in this jurisdiction.
It is totally incorrect to say there is no market value. There has not been an open market for domestic sports events, in that TV3 only came on the market very recently. However, major international sports events have been broadcast by RTE since they became available. I first saw the Olympic Games on television in 1960 and I saw the World Cup of 1966 on RTE. RTE has been in the market for international sports events, for which there is a well established market price.
I have no doubt that the High Court, in its wisdom, will arrive at a reasonable market price, taking into account, as I said before, the requirements of both the buyer and the seller. We are talking here about a situation where negotiations between the highest bidder of all the available free to air stations and the seller have broken down. In that situation, the views of both the buyer and the seller would have to be taken into account. What determines the market price is whether the item is worth that money to the buyer. It is not a one way street for the seller. For Senator Ryan to say this is a one way street and that the High Court, in its wisdom, would only see the seller's point of view and would take no cognisance of the financial situation and the market worth to the buyer, is to underestimate the wisdom of the people we appoint to the High Court. For that reason, I do not intend to accept the amendment.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Section 8 agreed to.
Title agreed to.
Mr. Ryan
I will not be tabling amendments on Report Stage. However, I do not want to establish any precedent in that regard and I would like to put on the record that we have the right to table such amendments.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
Senator Ryan referred to exclusiveness. As the Minister of State knows, when we complained to RTE in the past about bad reception in Gaeltacht areas in the west we always received a letter saying that RTE was providing a good television service to 95 per cent of the population, which meant that we were still excluded.
I do not know about the situation in the Gaeltachts in Connemara and Donegal, but we in the Gaeltacht of Corca Dhuibhne are excluded from receiving TV3. The only way we can receive TV3 is by paying Horizon television through the nose for it. That has nothing to do with the Bill directly but there is a connection, in that what the Bill is trying to stamp out is already in place in certain parts of Ireland. I ask the Minister of State to examine this matter.
The mast for TV3, RTE and TG4 is, as the crow flies, half a mile from my home but I cannot receive TV3. TV3 has exclusive rights to the European soccer matches and when Ireland was playing I had to watch the match in my neighbour's house, who got Horizon television in a hurry just to be able to watch those matches. I urge the Minister to ensure that TV3 is broadcast to 100 per cent of Ireland rather than giving private companies, such as Horizon, a monopoly in certain places, where people have to pay £150 to receive TV3.
I thank the Minister for the excellent manner in which he has progressed the Bill through the House. As a former Member of this House, he is familiar with many of its traditions and the context of the debate on Bills of this nature. It has been a worthwhile debate. I am sure the Minister of State will do this, but Senator Ryan is to be acknowledged for raising a number of important issues. I confess that, prior to coming in here, I would not have paid as much attention to those issues as we did during the debate.
As I said earlier, the Bill should have been introduced to the House sooner. I am glad it has now happened. The flood gates have not been opened. The Minister now has a very valuable tool which will ensure that those whom a former Senator referred to as the common people, who eat their dinner in the middle of the day, will be able to watch free to air sporting events without hindrance or the sort of commercial complications to which Senator Ryan referred on a number of occasions. I applaud the initiative of the Minister of State and I hope he will convey to the Minister, Deputy de Valera, the appreciation of the House for having introduced the Bill here.
I join with Senator Mooney in complimenting the Minister of State. He is the most painstaking and courteous of all the Ministers who come to this House. He listens to the arguments and sometimes replies to them exhaustively. He takes both this House and the debate very seriously and I congratulate him on the manner in which he handled the Bill today.
Ba mhaith liom buíochas a ghlacadh leis na Seanadóirí ar fad a ghlac páirt sa díospóireacht seo tráthnóna. Díospóireacht an-spéisiúil a bhí ann agus tá súil agam go mbainfimid ar fad tairbhe as. An rud tábhachtach ná go n-oibreoidh an Bille seo le déanamh cinnte de go mbeidh mór-imeachtaí na tíre ar fáil do phobal na tíre ar fad. Sin an sprioc atá ag an mBille seo.
Question put and agreed to.