Seanad Éireann debate -
Wednesday, 5 Mar 2003

Vol. 171 No. 15

Broadcasting (Major Events Television Coverage) (Amendment) Bill 2003: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Communications, Marine and Natural Resources (Mr. D. Ahern)

I am pleased to open this debate on the Broadcasting (Major Events Television Coverage) (Amendment) Bill 2003. This debate provides an opportunity for the House to consider the important issues contained in the Bill. These issues relate to the television coverage of events of major importance to the people of Ireland. Senators will have the opportunity to express their views on these issues. I am interested in hearing those views.

Irish television viewers have traditionally enjoyed access to major events, both sporting and otherwise, on free television services. In the past, given the demands on the radio frequency spectrum for broadcasting purposes, the number of broadcasters has been necessarily restricted. In the past ten years, however, the emergence of digital broadcasting services, operated on an almost entirely commercial basis, has changed the broadcasting map considerably. For example, we have seen the emergence of dedicated sports channels. These channels often acquire exclusive broadcasting rights to major sports events and this exclusivity is a key driver of uptake of their services. It is undeniable that these channels have provided increased choice to those fans who are interested and can afford to pay the price of such services.

The potential of digital broadcasting to vastly increase the capacity for the provision of broadcasting channels has caused revolutionary change. Commercial services have discovered the importance of sport to their schedules. Indeed, the market for any kind of programming with popular appeal is becoming more and more intense, leading in turn to increased costs in acquiring broadcast rights. There is clear evidence of coverage of sports events migrating to pay-television services.

The European Union's Television Without Frontiers Directive – Directive 97/36 EC – recognised that member states should have the right to take measures to ensure that events that are regarded by a member state as "events of major importance to society" should continue to be available on free television services. Under the directive it is open to each individual member state to decide whether it wishes to designate events in this way. A cornerstone of the directive is that it requires each member state to take measures to protect the interests of other member states who have decided to designate events.

The Broadcasting (Major Events Television Coverage) Act 1999 incorporated into Irish law the provisions of Article 3a of the Television Without Frontiers Directive. The Act provides that the Minister for Communications, Marine and Natural Resources may designate certain events as events of major importance to society for which the right of a qualifying broadcaster to provide coverage on free television services should be provided in the public interest. The 1999 Act provides that the Minister must first consult with event organisers, broadcasters within the State and members of the public. The Act sets out the procedure which must be followed by the Minister in relation to the designation of events. Specifically, the Act requires that the Minister must consult with the Minister for Arts, Sports and Tourism, event organisers and broadcasters. The Minister must also publish a proposed list of events, invite comments on the proposed list from members of the public and lay a draft of the order designating events before each House of the Oireachtas for approval.

When designating events the Act requires that the Minister must have regard to the extent to which the event has a special general resonance for the people of Ireland, as well as having regard to the extent to which the event has a generally recognised distinct cultural importance for the people of Ireland.

Following the enactment of the Broadcasting (Major Events Television Coverage) Act 1999, a process of consultation was initiated in December 1999 when sports event organisers and broadcasters were circulated with a copy of the 1999 Act and asked for comments in relation to the designation of events. Arising from that process it became clear that the designation of sports events was a complex matter and that the main sporting organisations were opposed to their events being designated.

Shortly after my appointment as Minister for Communications, Marine and Natural Resources, the Football Association of Ireland, FAI, announced that it had sold the live exclusive rights to broadcast Republic of Ireland home European Championship and World Cup qualifying matches to the British Sky Broadcasting Group. I immediately ordered that the consultation process should be recommenced.

In July last, I received Government approval to publish a draft list of events that I proposed to designate as events of major importance, which should, in the public interest, continue to be available on free television services. Immediately following the Government's decision I met with representatives of the FAI, the Irish Rugby Football Union and the Gaelic Athletic Association to inform them of the decision to proceed with the designation process.

My officials held further meetings with these organisations and also held meetings with representatives of the International Rugby Board and the Association of Irish Racecourses. A notice, giving details of the proposed list and inviting written comments from members of the public, was published in four national newspapers on 19 July 2002. Members of the public had until 16 August to submit comments. At the same time my Department wrote to sports events organisers and broadcasters to formally seek their views on the proposed list.

In order to further enhance the consultation process, an on-line forum was established on my Department's website and I hosted a public meeting held in Dublin Castle on 26 August 2002. That meeting was addressed by RTE, the Irish Sports Council and myself. The IRFU, the FAI and the GAA were invited to make presentations at the meeting but they declined the invitation to speak or attend. I had further meetings with the FAI, the IRFU, the GAA and the Irish Sports Council on 28 August 2002. Having concluded the consultation process I then proceeded to finalise the list. As required, I also sought the opinion of the EU Contact Committee established under Article 3a of the Television Without Frontiers Directive.

That committee considered at its meeting on 31 January the measures proposed to be taken by Ireland and gave the opinion that it had no objection to the measures proposed. The only remaining step is for the draft order designating the events to be approved by both Houses of the Oireachtas. I have laid the draft order before both Houses and will separately seek the approval of the Seanad and the Dáil for the draft order. I considered it important that the Bill being debated today should be published before a decision is taken on the order.

From the consultation process it was clear that there was a strong case for amending the 1999 Act. Throughout the designation process I tried to adhere to the principle of being proportionate. While acting to protect the public interest, I also had to take account of the interests of event organisers and of broadcasters. I believe that the list of events to be designated reflects a balanced and proportionate approach. The amending legislation also follows this principle.

The amending legislation provides for the following: an arbitration process for event organisers and qualifying broadcasters in relation to the terms for broadcasting rights to a designated event; a fast-track mechanism through the High Court to fix terms for broadcasting rights where the date of an event is close at hand; and a mechanism to deal with circumstances where a qualifying broadcaster has not acquired broadcasting rights to a designated event, but a non-qualifying broadcaster has.

The question of arbitration arose a number of times during the consultation process. Some of the sports organisations argued that competition in the domestic market for Irish television sports rights is limited by the number of qualifying broadcasters in the State. The Act provides that a broadcaster can be deemed to be a qualifying broadcaster if it provides coverage to over 90% of the population of the State on a free television service. I am working on the assumption that both RTE and TV3 are qualifying broadcasters. Notwithstanding that there are two qualifying broadcasters in the State, sports event organisers argue that RTE remains the only real potential purchaser of television rights. They also argue that until now they had been able to use the possibility of a sale of rights to a non-qualifying broadcaster as leverage for securing a reasonable price from RTE and as a means of securing coverage for their domestic games.

Some of the sports organisations expressed the view that designation could negatively impact on their negotiating power with a qualifying broadcaster. They argued this on the basis that non-qualifying broadcasters are less likely to be interested in purchasing the rights to their events if those events are designated as events of major importance that should continue to be available on free television services. Accordingly, sports events organisers argue that they will, in effect, be forced to deal only with RTE and that designation will weaken their position in future negotiations with RTE. This would in turn reduce the level of funding available for the development of their sports. Several sports organisations, in referring to the provisions of the Broadcasting (Major Events Television Coverage) Act 1999, point to the fact that it does not provide for arbitration between an event organiser and a qualifying broadcaster.

During the public consultation process a number of the sports organisations put forward the idea of an arbitration mechanism to determine a fair price for a listed event. I had to consider these concerns seriously. Given the limitations of the Irish market and my wish to be proportionate in relation to the extent of State intervention in that market, I decided that the Broadcasting (Major Events Television Coverage) Act 1999 should be amended to provide for an arbitration process between event organisers and a qualifying broadcaster to determine a fair market price.

Section 5 of the Bill provides for a non-binding arbitration mechanism. The next important matter which the Bill provides for is a fast-track mechanism through the High Court to fix terms for broadcasting rights, where the date of the event is close at hand. Section 4 of the Bill provides this mechanism. I believe that this is an important provision if the over-riding objective of ensuring that the designated events continue to be available to be carried on free television services is to be achieved.

Section 4 of the Bill also deals with circumstances where a qualifying broadcaster has not acquired broadcasting rights to a designated event, but a non-qualifying broadcaster has. This provision provides for circumstances where a contract with a non-qualifying broadcaster is already in place at the time of designation and also provides for future contracts. The Bill also sets out the criteria which the High Court must have regard to in determining reasonable market rates.

In addition, the Bill provides that the Minister may, in the public interest, require an event organiser to provide the Minister with a copy of any agreement entered into by the event organiser with a broadcaster. The provisions of the Bill are designed to strengthen the existing statutory provisions contained in the principal Act for the purpose of ensuring that a substantial proportion of the Irish population is not deprived of the opportunity of continuing to watch designated events on free television services.

Section 1 is the interpretation section and contains the definitions used throughout the Bill. Section 2 provides that the Bill applies to all events designated under the principal Act and to any contracts in relation to those events entered into after 13 November 1999, which was the date on which the Principal Act was enacted. Section 3, for the purposes of clarification, amends the definition of "the Minister" as defined in the 1999 Act to read the "Minister for Communications, Marine and Natural Resources".

Section 4 provides for a fast-track mechanism for determining terms for broadcasting rights in circumstances where no deal is in place with a qualifying broadcaster and the date of an event is drawing near. It provides that the High Court may fix the terms upon which the event organiser must give rights to a qualifying broadcaster. Subsection (1) provides that where an event organiser has not, within 28 days of the event taking place, entered into a contract with a qualifying broadcaster, then a qualifying broadcaster may request the High Court to direct that the event organiser give it rights to the event.

Subsection (2) allows for the possibility that the High Court may not have sufficient time to make a final decision in relation to the terms upon which rights are to be given. This subsection provides that the High Court may direct that rights be given to a qualifying broadcaster even though the terms, including price, have not yet been fixed. It is important that the High Court be given this flexibility. If faced with a very short period to make a decision, the court might not have sufficient time to make an informed decision as to what would constitute "reasonable market rates". This should not stop the court from taking steps to protect the public interest by determining that a qualifying broadcaster may secure rights to the event.

Subsection (3) establishes the principle that an event organiser can decide that an event is not to be televised. The provisions of section 4 will not apply where an event organiser has decided not to sell broadcasting rights and has informed me of its decision before a qualifying broadcaster makes an application to the High Court under subsection (1). While there was a time when event organisers might have decided not to have their events televised to ensure good attendance, it is difficult to envisage circumstances where this would apply in relation to the events to be designated.

Subsection (4) provides that the High Court may appoint an arbitrator to assist the court with the computation of reasonable market rates. This provision is designed to be of assistance to the High Court in making a determination as to reasonable market rates for the acquisition of broadcasting rights to a designated event.

Subsection (5) provides that the High Court may give procedural directions to the arbitrator, including the fixing of the period in which the arbitrator must issue the award. This provision is designed to be of assistance to the High Court in making a determination as to reasonable market rates for the acquisition of broadcasting rights to a designated event.

Subsection (6) provides that after reasonable market rates have been set, but before the court makes its final order, a qualifying broadcaster may withdraw its application to the High Court under subsection (1). In these circumstances the High Court may award costs as it considers appropriate.

The purpose of designating an event is to prevent an event which has been traditionally available on free television services from migrating to pay-per-view or subscription services on an exclusive basis only. This is achieved by ensuring that qualifying broadcasters have an opportunity to provide coverage of an event subject to the payment of reasonable market rates to the event organiser. The decision to pay the asking price for an event was and will continue to be the prerogative of the broadcaster. If the qualifying broadcaster decides not to pay the price fixed by the High Court, then the event organiser is free to sell broadcasting rights to any broadcaster.

Subsection (7) provides that the High Court may, from time to time, issue such directions in relation to arbitration under this section as it considers just and proper. This provision is designed to be of assistance to the High Court in making a determination as to reasonable market rates for the acquisition of broadcasting rights to a designated event.

Subsection (8) addresses the possibility of more than one qualifying broadcaster applying to the High Court for access to a designated event. As long as the event is made available to a qualifying broadcaster the event organiser should be free to choose to which qualifying broadcaster it sells rights.

Subsection (9) recognises the fact that an event organiser may be a party to an existing contract with a non-qualifying broadcaster. This provision would apply in the case of the existing contract between the FAI and Sky and would also apply to any future case where an event organiser has a contract with a non-qualifying broadcaster. It provides that where the High Court is considering an application made under subsection (1) and where there is an existing contract with a non-qualifying broadcaster, that the court shall decide to whom and in what proportion moneys in respect of reasonable market rates should be paid.

Subsection (10) provides that the High Court may adjust, as it considers appropriate, the terms of an existing contract between an event organiser and a non-qualifying broadcaster. Subsection (11) provides that the High Court may when considering an application under subsection (1) make any interim or interlocutory order as it considers appropriate.

Section 5 of the Bill provides for a voluntary and non-binding arbitration mechanism to assist event organisers and qualifying broadcasters agree terms for broadcasting rights to designated events. This section provides a framework for the two parties to agree terms where negotiations have failed to result in an agreement.

Section 5(1) affirms that the arbitration process provided for in section 5 relates to circumstances where an event organiser is willing to sell broadcasting rights to a designated event to a qualifying broadcaster and where terms have not been agreed. Subsection (2) provides that either party may request the other to agree to the appointment of an arbitrator for the purposes of fixing reasonable market rates. Where the parties are unable to agree on the appointment of an arbitrator, this subsection provides that I may appoint an arbitrator within 21 days of being notified.

Subsection (3) provides that the Arbitration Acts 1954 to 1998 apply to an arbitration under this section. Subsection (4) provides that the arbitrator shall issue an award in writing which shall be a provisional award. The arbitrator shall notify the parties of the award. Subsection (5) sets out the steps to be taken by an event organiser and a qualifying broadcaster if they are to agree a contract on the basis of the terms of an arbitrator's award.

Section 6 provides for the criteria which the High Court or an arbitrator must have regard to when determining reasonable market rates under sections 4 or 5 of the Bill or under section 5 of the Principal Act.

Section 7 provides that I can require an event organiser to provide me, as Minister, with a copy of any agreement it has entered into with any broadcaster in respect of a designated event, where I consider it in the public interest to do so. Section 8 is procedural and sets out how the directions and notifications required under the Bill may be served. Section 9 provides for the Short Title.

There is widespread support among the people that certain events, which are of major importance to society, should continue to be available on free-to-air television services on a near universal coverage basis. Full participation in society requires that individuals should not be excluded from following events of major importance to society on the basis of inability to pay. I have no doubt the people will welcome and support the provisions in this Bill.

Senators will agree that, given the important role that sports plays in the life of our country, it is essential that sports events of major importance to Irish society are accessible to the widest possible number of viewers via free television. Access to such events should not be restricted only to those who can afford to pay the rates demanded by subscription or pay-per-view television services.

I thank you, a Chathaoirligh, and Members for allowing the Bill to be taken promptly. Members will appreciate there is a time limit on this legislation. It is the Government's desire that it should pass through the Houses of the Oireachtas as quickly as possible. I recommend this Bill to the House. Molaim an Bille seo don Seanad.

Mr. Finucane

I thank the officials for the briefing they gave me on the Bill. The events to be designated cover a wide range of sports. I do not have to state how important sport is to the people and we all have our favourite sport.

The Minister said the Bill is being taken promptly in this House but there has been much procrastination on this issue for many years. It is important to bear in mind that the 1997 EU Directive, Television Without Frontiers, was designed to keep major cultural and sporting events on free-to-air television. The directive, issued on 30 June 1997, states:

If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due and effective time. In so doing the Member State concerned shall also determine whether these events should be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

2. Member States shall immediately notify the Commission of any measures taken or to be taken pursuant to paragraph 1. Within a period of three months from the notification, the Commission shall verify that such measures are compatible with Community law and communicate them to the other Member States.

The legislation was introduced in 1999 and was piloted through both Houses by the former Minister responsible, Deputy de Valera. She was praised by many people who were enthusiastic about the Bill, yet there was a considerable delay. The former Minister gave a commitment that the timeframe for consultation would be two months. An amendment was tabled by Deputy O'Shea to the effect that a time constraint of six months should be in place for the implementation of this measure. The Minister said she did not want to be put in a straitjacket and wanted to be flexible, but she gave a commitment of two months.

The consultations which the former Minister intended should take place ran into the sand because the various sporting organisations resented the fact that their commercial mandate was being interfered with. She did not, therefore, proceed. One must ask why. If one goes back to the late 1990s and to early 2001, there was a period of turbulence in relation to sporting activities. There was the ambitious Abbotstown project and Eircom Park, which had been sabotaged. South Dublin County Council had given planning permission for Eircom Park but the Minister for Defence, Deputy Michael Smith, objected to An Bord Pleanála citing aviation concerns at Baldonnel, despite the fact that the FAI had already produced two aviation consultancy reports. To appease the FAI and to get it to withdraw its interest in Eircom Park in favour of Abbotstown, it was given generous grants.

The evening before a crucial congress meeting, the GAA was offered a great financial inducement by the Taoiseach to ensure a motion was not passed by congress to open up Croke Park. There was only one vote in the difference. Given that the sporting organisations were unenthusiastic, I understand why the former Minister did not grasp the nettle on this issue. An unstable relationship existed for many years. That was unfortunate because Ministers should show leadership.

There were other constraints because the Government knew there would be a general election in 2002. It did not want to alienate the sporting organisations or Rupert Murdoch of Sky Sports because it became known in January 2002 that the Taoiseach had dinner with 20 executives from Sky Sports. When it was announced that Sky Sports had paid over €7 million to the FAI for television rights for four years, the two newspapers which enthusiastically greeted this announcement were the News of the World and The Times, both newspapers owned by the Murdoch organisation. Of course Sky Sports was enthusiastic about getting involved. Why would it not be? It already had 200,000 subscribers and the Ireland v. Spain match shown on RTE had over one million viewers.

There has been much procrastination on this issue yet we are fortunate that the events have been scheduled and are in place. Are we sure those events which have been scheduled will not result in subsequent court challenges? I am not so sure. In the debate in the other House on 30 October 1999 Deputy O'Shea stated:

The legislation does not address the situation where broadcasters have acquired the rights of certain events into the future. I am not aware of the extent to which they have obtained the rights to such events but I am sure the Department has considered this. Is it the case that under the terms of the legislation, certain events will be outside the remit of orders made by the Minister because of contracts entered into, either before now or before the legislation is enacted?

The former Minister responded briefly to the Deputy's question and said there cannot be retrospection.

The Minister has now moved retrospectively to designate the forthcoming home internationals. Consider the Government's procrastination on this issue when countries such as Italy, Germany and the UK have designated the entire European Championship and the World Cup. Denmark went even further, adding the qualifying matches to its list – exactly the games Sky has acquired in the Irish context. We have been very slow in regard to this process compared to other countries. The UK designated its events in 1996.

In August 2002 the Minister held a sports forum which the IRFU, the FAI and the GAA did not attend. They were the same bodies which told the former Minister, Deputy de Valera, in 1999-2000 that they would not co-operate with her. The person chairing the forum, Mr. Raymond Snoddy, media editor of The Times, asked why the Government was acting only now when it had the power to designate events since 1999. Need I say more about why the Government procrastinated on this issue?

The main sporting organisations stayed away from the forum, at which the Minister said it was quite possible that designation would be applied retrospectively, which it has been. He would not comment on whether it could be the subject of a legal challenge, which was understandable. Is he confident that the FAI, which has entered into a contractual arrangement with Sky Sports, can walk away from this project and will not seek legal compensation from the State? It is unclear whether it can.

RTE cannot be absolved of blame. At the forum Cathal Goan said disingenuously that the sale of broadcasting rights for Ireland's home international matches was a retrograde step. Until 1996 RTE had paid no paid rights fees to the FAI. It had paid the FAI around €635 per annum since 1998. In September 2001 when renegotiation began, it offered €508,000 for the rights. This was €127,000 less than what was offered more than three years earlier. It is, therefore, a bit rich of RTE to be overly critical of the FAI for going to Sky Sports, given the doubts cast over the seriousness of RTE's intent by its offer.

Mr. Philip Browne, chief executive of the IRFU, stated in a letter that RTE had been guilty of ruthless exploitation of the IRFU for years. I have explained what happened in the context of serious negotiations between RTE and the FAI. It was clear that the FAI would move in another direction, and we know what happened.

When it was announced in July 2002, conveniently after the general election in May, that Sky Sports had bought the rights from the FAI, we heard the usual mantra from Ministers about how disappointed they were. The Minister was disappointed, as was the Minister for Arts, Sport and Tourism, Deputy O'Donoghue. The Taoiseach, who sees himself as a great supporter of Manchester United and Dublin, also expressed his disappointment and said it would was unfair that people in the west had to traipse down from their houses in the hills to watch Sky Sports in the local public house. However, it was convenient to say this at that stage. The general election was over and, regardless of what Sky Sports thinks, it is well known that the Rupert Murdoch organisation has enunciated its support for Fianna Fáil over a period of time.

I noticed an editorial in the News of the World recently which lavished praise on the Taoiseach for influencing British policy not to proceed with nuclear stations in the future. We know about processing at Sellafield. However, it is a bit rich to read that the Taoiseach seems to have more power than the Prime Minister, Tony Blair, in making a fundamental decision on whether Britain should proceed with nuclear stations. I give that as an example. If one reads such newspapers as the News of the Word over a period of time, one sees sycophantic tributes to various Fianna Fáil Ministers and soft profiles of them. Now that the general election is over I wonder whether that enthusiasm will prevail.

Whether Sky Sports will decide to mount a legal challenge or Mr. Murdoch will change his editorial policy, we do not know. My point is that the backdrop to indecision on this issue during the years has been a situation where the sports organisations were not enthusiastic about what was on offer. I note that some of rugby events have still to be designated. Action has come late in the day and there is a question about whether there could be a legal challenge to retrospection. It should never have happened. The Government should have been decisive in 1999.

Mr. Kenneally

I very much welcome this Bill and congratulate the Minister on taking an action which will copperfasten the availability of major public events to the general television viewing public. We are all only too well aware of the circumstances which necessitated the Bill, namely, the loss of international soccer matches to the general public. Worse still is the fact that those matches were available to a small minority of viewers who were willing to pay a considerable fee to view the type of event which for the past 30 or 40 years was available free to those who had a television set.

The Bill is an honest and honourable attempt by the Minister to prevent this situation from happening again and, in the process, to be fair to both the event organisers and the television companies, both of which have a legitimate right to make money from the event. It must be said, however, that RTE, the primary and only realistic domestic bidder for the event, did not play fair with the FAI. Whatever its faults and failings, it was most unfair to the FAI to have made it an initial offer for a new contract which was one third lower than what it was paid before.

By virtue of our relatively small population, Ireland is not similar to countries like France, Germany, Spain and so on, which have plenty of TV competition for the available events and where that competition establishes a definite market value. With only one bidder in the process, it is difficult to establish a market value. However, with the entry of Sky Sports to the bidding process, the market took on a whole new life. I do not wish to rake over old coals but it would have been crazy and unrealistic for the FAI to turn down the extra money on offer from Sky Sports which could have been spread around the lower echelons of the organisation to help with development. Suddenly, we were deprived of what we had come to expect as a right and naturally looked to the relevant Minister as an all-powerful father to restore the picture on the broken television. This is what the Minister, Deputy Dermot Ahern is proposing to do in this welcome legislation.

Naturally, given the sensitive manner in which this set of circumstances came about, much of this debate will centre around the sport of soccer. In the past decade and a half the sport has captured the imagination of almost every person on this island who has reached the use of reason. Even those too young to understand what was happening on the pitch were able to at least contribute to the chorus of "Jackie's Army". Those infants are now doing their leaving certificate or at college and are part of the huge audience who dash to a television screen whenever possible when an international match is being played.

Some of those matches have provided us with memories which we will take with us to the grave. Who could forget Ray Houghton's goal against England which not only kept us alive in the competition but was also looked on by the fans almost as a blow for Irish freedom? Who does not feel a warm glow when they recall those heady days and nights of Italia 90 when we almost confounded the opposition and the experts and made it to the last eight in the World Cup? Who does not recall the shiver in the spine when David O'Leary stepped up to the penalty spot in that all-important shoot-out against Romania, or the magical moment when Packie Bonner brought off his wonderful save to deliver us into the quarter finals?

Those are times when we felt a national invincibility, when we took a new pride in our team, flag and country and when the national spirit was at an all-time high. It is easy to understand, then, that when this entertainment was taken away or at least delayed by several hours, members of the viewing public felt, quite reasonably, that they had been deprived of something very essential, like the air we breathe. It was their right, they felt, to be able to watch not just football heroes playing a match but also Ireland as a nation going out to take its rightful place among the nations of the earth. I do not think I exaggerate the situation in the least.

Let us take another major benefit which has, partly at least, derived from our international soccer campaigns. For as long as I can remember, as a child and youth, the flying of the national flag, our tricolour, was almost a reserved function. In some respects it was almost dangerous to fly it because if a tricolour flew from a bedroom window or on a pole in a garden, there was an immediate and an automatic assumption that the householder was a supporter of extreme republicanism. That was far from the truth but we hardly realised that we had been robbed of our flag. When just about every other country in the world could take pride in waving theirs at every opportunity, we had to do it almost covertly. Then along came Jack Charlton and the boys in green with tricolours flying everywhere, draped around shoulders and paraded in the streets, often with more enthusiasm than respect. However, we had recovered our flag. Today it is available to all our citizens and the days when we needed the respectability of a political meeting or a GAA match to fly the tricolour are long gone.

Soccer may be the main source of major events requiring free-to-air TV coverage for the wider public. However, Members should also recall the other sporting events by which we have been thrilled in the past. I refer, for example, to the performances of John Treacy, who hails from my county and who competed in the most demanding event of all, the marathon, at the 1984 Olympic Games and returned with a silver medal. Those who saw Mr. Treacy win a second successive world cross country title in the mud at Limerick racecourse in 1979 and Eamon Coghlan overtaking the Russian athlete to win his world 5000 metres title in Helsinki in August 1983 will always have fond memories. The list seems endless and includes the victories of Sonia O'Sullivan, the Rugby World Cup campaign and the weekly thrills of domestic hurling and football games. All of these cannot be designated as events which must be brought to the viewing public free of charge. However, the most important must be provided for and that is the purpose of the Bill.

The Bill is made possible under the European television without frontiers directive adopted on 3 October 1989 by the Council, and amended on 30 June 1997 by the European Parliament and under Council Directive 97/36/EC. It establishes the legal frame of reference for the free movement of television broadcasting services within the Union, in order to promote the development of a European market in broadcasting, and related activities such as television advertising and the production of audio-visual programmes.

The measure before the House broadly provides for qualifying broadcasters – in this country, RTE and TV3, which are brought into our homes without extra cost – to have access to events designated by the Minister as major events as defined in the legislation. It provides for these qualifying broadcasters to secure a High Court order ensuring that Government designated sports events are carried on free-to-air television services.

Last October, the Government approved a draft list of sports events for designation as events of major importance under section 2(1) of the Broadcasting (Major Events Television Coverage) Act 1999. I am pleased to learn that the Minister has wasted no time and this week has laid the list in front of both Houses of the Oireachtas, as required. The list includes: the summer Olympic Games; in Gaelic games, the All-Ireland senior inter-county hurling and football finals; in soccer, Ireland's home and away qualifying games in the European football championships and the FIFA World Cup tournament and its games in the finals phase of both; in rugby, Ireland's games in the Rugby World Cup finals tournaments; in horse racing, the Irish Grand National and the Irish Derby; and, in equestrian events, the Nations Cup at the Dublin Horse Show.

I realise this is a first position, but the Minister might consider adding the provincial finals of hurling and football. The Munster hurling final is one of the greatest sporting spectacles in the country and commands a respect and attention from its fans normally reserved for religious events. Dublin people would claim the same for the Leinster football final, particularly when their team is taking part.

The negotiations for coverage should, perhaps, also cover a package of events rather than simply dealing with them on a one-by-one basis. For example, with regard to the European soccer championships or World Cup qualifying matches, should Ireland lose a number of games early on and effectively end up out of the competition with matches left to play against teams with no hope, there would be little interest among the public and little demand for television coverage. The package should include all either games or none.

I note that Six Nations rugby games are listed for deferred viewing, which suggests that soccer is the mainstream sport most imposed upon. I am mystified as to why these games should be designated for deferred viewing because there would be, for example, far more interest in Six Nations games than in Rugby World Cup games.

The Minister might clarify whether, if an event is offered to the two terrestrial channels and both refuse to cover it because they feel it is too expensive or not attractive enough, the organiser will be at liberty to offer it to the highest bidder elsewhere. This would seem the logical course because it would at least have the advantage of getting it on to a screen somewhere. From my reading of the legislation, the position in that regard was unclear but the Minister has since clarified matters.

Like Senator Finucane, I am uneasy about the principle of retrospection contained in the Bill. It reaches back to nullify agreements concluded before the October intervention by the Minister. The principal Act of 1999 may have covered this situation, but further clarification is required. It is well known that the FAI will lose €6 million because it concluded a deal with Sky Sports for €7.5 million over four years—

Mr. Norris

Pity about them.

Mr. Kenneally

—whereas RTE only offered €1.5 million over four years. That €6 million is a huge deficit for the FAI.

I welcome the provision for the intervention of an arbitrator in the event that the parties cannot agree on what is a proper fee for the right to broadcast a game or series. It would be the function of the arbitrator to set a fair market price. Section 6 makes provision for the method of calculation of a fair market price, providing for reference to previous fees paid. That may be acceptable at a time when a market and competition are well established, but it is only in the more recent past that there was any realistic negotiation between event organisers and television companies. As yet, anything near a fair market price has not been established here. The recent Sky-RTE difficulties in regard to the FAI are an example of this. RTE started with a ludicrously low bid while Sky eventually paid five times what the Irish channel had offered. History will not indicate a fair figure because there are too few precedents to consult.

I ask the Minister whether we have the right to designate events held abroad. A case in point is the summer Olympic Games, which the Minister has wisely included as highly popular but which are always held outside this jurisdiction. Another problem might arise in the case of a major event being held in Ireland, covered by one of our qualifying broadcasters and also by a satellite channel from outside the State. The overspill of the Irish signal may remove the possibility of the satellite or cable operator being able to sell its signal in Northern Ireland, Wales and the west country of England. The Ryder Cup would fall into that category and I want to know if there is a way to deal with this problem. I would also like to know why the Ryder Cup has not been designated because, as I understand it, Sky has done a deal with the organisers and it will not be available on terrestrial television in Ireland.

The intent of the original directive may have been to cover events other than sporting events, though it is difficult to foresee anyone wishing to corner the market in the case of a papal or presidential visit, a European summit or a victorious team homecoming. Perhaps, a free concert by Bono and U2 would generate the necessary interest but, not being a scheduled or annual event, that would come too quickly to be included.

No one wants a repetition of the events of last autumn. The measure before the House would cater for any difficulties before they arise. I am pleased that the Opposition, by and large, has chosen not to contest the measure because it is a provision which has the good of the citizen genuinely at heart. The passing of this measure will also have the effect of showing the Government's clear intent in the matter of these public events and that it is prepared to act in the people's interests.

I regret that the FAI has lost a certain amount of cash due to the quashing of its contract with Sky, but that will be made up for in some measure by the contribution of RTE. Equally, I have no doubt that, when match time comes around, a great deal of goodwill will accrue to the organisation by reason of the availability of widespread television coverage. This goodwill is sometimes more valuable than cash and that is the case in respect of the designated events.

I commend the Bill to the House.

Mr. Quinn

I wish to share time with Senator Norris.

An Leas-Chathaoirleach

Is that agreed? Agreed.

Mr. Quinn

I believe in the free market economy and have grave doubts about anything that interferes with it. When the Bill came into my possession, I checked whether other countries had done something similar and discovered that some have done so. I then checked the record of Denmark, which decided not to do this because it did not wish to interfere with the free market economy. It was thought that if a sports organisation created such a demand for its product that people would want to pay for it, it should not be restricted.

I am an enthusiast of Gaelic sports. The Minister will be pleased to note that I attended the all-Ireland final in 1957, which was won by Louth. I have a colleague in the office, Mr. Damien Carolan, who comes from the same town as the Minister and dates everything from 1957. If one mentions 1967, he will say it was ten years after Louth won the all-Ireland final.

When I started thinking about the Bill, I was in two minds about it. I have no doubts about its popularity or the genuine feeling that gave rise to it, particularly in the aftermath of the FAI and Sky Sports deal last year. Any follower of the Irish soccer team over the past ten years or more will have felt short-changed by that deal and that his or her rights were taken away in some way. However, the notion of rights to look at a soccer match for nothing must be examined carefully. For instance, nobody suggests that we should be allowed go to a game for free. If we accept that we have to pay to enter a stadium, whether the game is soccer, rugby, Gaelic football or hurling, why are we saying we should see it for free on television? Nobody would argue that television rights to international games should be given away for nothing.

The problem arises when we allow the market to dictate the terms on which an event is televised, which is what is happening. If we allow the market to decide, it automatically means that the winner will always be the highest bidder. In today's circumstances the highest bidder will almost always be a television provider which makes money by selling access to programmes by way of a subscription channel. The problem is that the providers which provide free television, TV3 and RTE in this case, will always be the losers.

As a result of this system, viewing of events is restricted to those prepared to pay for them, either by taking out a subscription to the relevant channel or by going to a pub where they can pay for them by buying drinks. If we leave the emotional dimension aside, it is hard to see this as anything but the free market economy in action. Experience tells us that it is wise to interfere with the operation of the free market only when it is necessary to avoid an outcome that is definitely not in the overall public interest. That is clearly what the Minister is attempting to do.

It is quite clear that the matter under discussion is not one of public desire. I am in the grocery business and everybody would like free groceries. The Government cannot intervene in such circumstances. The GAA, IRFU and FAI have, during the years, built successful ventures for which there is public demand. Does that mean they must suffer because of their success and end up having to accept a smaller price than they would otherwise have taken? That is criticism of success. If they had done a poor job and were not very popular, the law would not apply to them.

We must be very careful not to equate public desire with what is in the public interest as the former could lead to mob rule. Any argument for restricting the operation of the free market must be based on the idea that the content of programmes in question is, in some way, related to national, rather than purely private, property. One could build such a case based on the popularity of the major events in question.

One could and should argue that national support for an event gives it a special, non-commercial dimension or a dimension that reaches beyond the purely commercial, such as that associated with the Irish soccer team. I am reluctant, however, to swallow the argument whole. It is like saying one must pay a special tax just because one is popular; that the more business one attracts in the normal way, the more money one is entitled to make but only up to a certain point; that when one becomes so popular that one is a national institution, the State is entitled to place limits on how much one can make. That seems to be flying in the face of the free market for all the wrong reasons.

I see no reason for interfering with the free market just to satisfy public demand. However, my approach is based on the assumption – this is where I lose my argument – that the major events are run entirely as part of self-sustaining, free market operations. If that is the case, I can honestly see no reason for arbitrary interference. However, what makes the case under consideration different is that the sports organisations which run the events are not fully self-sustaining. They are, without exception, dependent on the State for some support. That is true of the GAA, FAI, IRFU and even Horse Racing Ireland. In every case, the organisations look for and receive State support, either on an ongoing basis or in respect of a particular project. This is the only basis on which a Bill such as this can be justified.

If a sports organisation needs to call on State support, the State is entitled to call the tune for that very support. Making certain events available on free-to-air television can be a quid pro quo on which the State is able to insist in return for supporting a particular sports organisation by way of funding. I hope the Minister understands the point I am making. In other words, if the State supports the organisation, it has a right to interfere. If not, it has none. If that is the correct approach to take, we should be up-front about it and say so. It then becomes a simple matter of give and take. If an organisation says, “Please support us and please give us money,” we can interfere.

We should be very slow to compromise what should be regarded as the basic principle of our economic life because we have confused public interest with public desire. Having read the Bill I am not sure that point has even been inferred. I hope the Minister will take it into account, in which case the Bill will be healthier, as will our attitude to the success stories we have seen.

Mr. Norris

I am very grateful to my colleague, Senator Quinn, for affording me this opportunity, particularly because I disagree with most of what he said, apart from his final statements in which he seemed to be getting onto the right track. I speak from the point of view of somebody who does not watch sport on television. While I would not turn over in bed to watch any of the programmes about which people are worrying here, I regard the issue as one of citizens' rights, particularly because of the malign intervention of Sky Television and Mr. Rupert Murdoch. I warned the House about this five years ago.

It is worth noting Mr. Rupert Murdoch's own sentiments regarding sport. With engaging honesty, he acknowledged his interest in buying up viewing rights to games and said it was the thin end of the wedge. The other end of his wedge is an extremely nasty phenomenon which is evident in America where he is buying television stations and newspapers. He has persuaded the Bush Administration to loosen up regulations in order that he can control not only television media but also print media outlets.

I have just come back from the United States where I noticed that the way in which Fox TV and other Murdoch-owned stations are treating the war in Iraq does not reflect American public opinion. Rather, it reflects the very narrow view of the war of the Administration. That is extremely dangerous. I am very sorry that RTE has caved in to Sky Television in various arenas, thus resulting in a very black day for this country. I support the Minister in everything he does to avoid further intrusion by people like Mr. Murdoch into the media in this country.

I want to address the issue of free market economies raised by Senator Quinn. My heart is in my mouth because he is such a distinguished business person and has practical experience. However, I do not believe there is a free market in the sense Senator Quinn alluded to because there is intervention by monopoly media kings like Rupert Murdoch who simply use their economic muscle to buy into markets.

We are not given something for nothing. The ordinary people pay their television licence fees and, as Senator Quinn acknowledged towards the end of his speech, are taxpayers. I gasped at the arrogance of the IRFU, FAI and GAA, which were invited by the Minister to a meeting and declined to attend. Do they not know who is paying the piper? Consider the grants and lottery funds being allocated. They amount to tens of millions of euro. We paid for Croke Park. What gives sports organisations the right to sell rights to the likes of Rupert Murdoch on behalf of the people? It is completely outrageous. The market is not free and nothing is being given away.

The second reason for interest in sporting fixtures is the mass audience which means vast advertising revenue. One pays licence fees and taxes on top of viewing fees to watch events and one provides an audience for advertising. They get a damn fine deal.

As I indicated, I do not bother watching the sports events in question but at the gym I attend I hear that unless parents subscribe to pay-per-view channels, their children will not be able to follow and identify the great sporting heroes. The sporting ethos will be denied to them through class based discrimination predicated on the possession of wealth. I object strongly to this, particularly since it favours Mr. Rupert Murdoch.

I support the Government's actions in this regard and I am pleased Senator Kenneally raised the question of retrospection, which worried me. While retrospection is a flawed principle in law, I am fully in favour of it in this instance. The provisions must be tested as I understand from an excellent departmental briefing arranged by Senator O'Toole that many of the powers involved derive from a European Union instrument of 1999 rather than subsequent legislation. We must be sure there is nothing constitutionally questionable about the operation of this law.

I am glad the legislation is being introduced and hope it results in the increased public availability of sports events. As citizens, we are entitled to the products of our culture which it would be obscene to allow Sky television to buy. It would make a cat laugh to imagine the GAA selling to Rupert Murdoch when it blanches at the prospect of a so-called foreign game. Since it appears not to mind selling out its entire ethos to scoundrels like Rupert Murdoch, I am pleased to see this Bill before the House. I wish it had been brought forward earlier and that we had been tougher with those of Rupert Murdoch's ilk. The more Rupert Murdoch and his like inch their way into this society, the more we will learn to rue the day. I take up this matter, not out of an interest in watching sport, although I will play anything once, but because there is a significant political point to be made about the way in which people like this insinuate their way into our public life.

We should be warned by the words of Dennis Potter, that brave spirit who wrote the wonderful television plays, "Blue Remembered Hills", "The Singing Detective" and "Pennies from Heaven". Nearing his last gasp, he sustained himself through an interview by drinking liquid morphine from a flask and averred that Rupert Murdoch had single-handedly debased the currency of political and social dialogue in Britain. Let us ensure he does not get the chance to do it here by sticking his ignorant, Australian foot in the door of Irish sporting culture.

Mr. MacSharry

I join colleagues in welcoming the Minister and his officials. I am pleased to have the opportunity to make a few brief points on the Bill which, as we have heard, is primarily designed to amend the Broadcasting (Major Events Television Coverage) Act 1999. I welcome the Bill which will have positive implications for all citizens in terms of free live television access to sports events of major and significant importance to our society.

With the evolution of information technology over the past decade and the introduction of digital television and pay-per-view programming, sporting aficionados have become aware of inequities which threaten their access to certain live televised sports events which are critical to the social fabric of the nation. The circumstances we find ourselves faced with are the result of the exploitation of the genuine needs of sports event organisers by the material greed of pay-per-view and subscription broadcasters. This scenario emerged last year with regard to access to international soccer matches. I congratulate the Minister for his speedy action to ensure all sports events of major national importance are available to the vast majority of citizens, not just those with the means to afford subscriptions to pay-per-view television channels.

One of the primary functions of the Bill is to ensure qualifying broadcasters are in a position to secure access to sports events intrinsic to Irish life and air them to the public without additional charges. The legislation will allow qualifying broadcasters to make an application to the High Court, whether an exclusive contract is in place with a non-qualifying broadcaster, to guarantee live access to national sports events. The Bill provides for an arbitration mechanism to determine reasonable market rates and conditions where a qualifying broadcaster and an event organiser have been unable to agree a price. Extensive work, consultation with relevant bodies and liaison with the European Commission have been undertaken by the Minister in bringing the legislation forward to ensure the public is not denied live access. All citizens are entitled to view and enjoy notable sports events and live access should not be determined on the depth of one's pockets and the level of one's affluence. Thanks to this legislation, we can all enjoy and, let us hope, celebrate future Irish sporting successes live on television, from the Olympic Games to home and away qualifying games in the European Championships and the FIFA World Cup and from the Grand National to the Derby.

I understand Ireland's Rugby World Cup games are to be included as special events of national importance, which I welcome. I ask the Minister to explain the reason each of Ireland's games in the Six Nations Championship is only to be covered on a deferred basis. Surely, there is a greater public demand to view the Six Nations Championship, rather than the World Cup, which is the reason we should revisit the Bill's provisions in this regard. Appropriate steps should be taken to ensure each of these matches is accessible live by the public.

The Bill represents an attempt by the Minister to achieve a balance between the competing interests of event organisers and qualifying broadcasters in line with the EU television without frontiers directive. Balance has been achieved by providing for arbitration to agree a reasonable price which is fair to the event organiser and by providing for a legal course of action for a broadcaster should an organiser refuse to allow it access to a designated event. I commend the Minister for his swift action in formulating the Bill and the designated lists of events but reiterate my slight disappointment that Six Nations matches have only made it to the deferred list.

Mr. Ryan

I cannot resist commenting on the free market. Perfect competition is one of the great myths of the 19th, 20th and 21st centuries since it demands, among other matters, that the departure of any market participant will have no effect on the marketplace. Given its scale, the closure of Senator Quinn's wonderful chain of supermarkets would have a significant effect on the market. Once a market has been established with five or six participants, free competition becomes distorted, a fact every economist recognises.

John Kenneth Galbraith described such a market, not as monopoly but as oligopoly, a concept I do not intend to pursue too far. I apologise to the people who have to keep a record of this House for using words like that. Free markets have always been an interesting concept by which to make interesting mathematical models. Even Adam Smith recognised over 200 years ago that wherever the possibility existed people in a marketplace will attempt to fix prices.

There are many areas of life where healthy competition provides the best for both vendor and customer. There are also very interesting stories about big multinationals such as ICI at its height, who decided to introduce concepts like "internal markets" and ran into problems. Every time a new drug was to be made, everybody was to compete to tender for its production and that still happens a bit. The problem was that when any branch had a new idea, they held on to it themselves because it gave them a competitive advantage over the other branches of the multinational company. In the process this meant that the multinational parent only benefited from innovation in one location because every other location was deprived of that new idea.

I have no problems with markets and I was making the same point 20 years ago when I arrived in this House. I have never had a great enthusiasm for nationalising everything, any more than I have a great enthusiasm now for privatising everything. One must be a pragmatist in these matters. I do not think there is an argument here based on concepts of market economics that is capable of dealing satisfactorily with all the issues.

There are many things in life which are of huge importance and which have no market value. Economists have argued for 200 years about, for instance, areas of great beauty that nobody visits because they are inaccessible. What is the economic value of a wilderness that nobody can access? I think it is beyond price but most conventional market economics will suggest that it has no value because nobody has been prepared to spend any money accessing it. The first thing to do is to build a super highway to an area of outstanding natural quality.

I do not mean to move away from the topic of the Bill but there are lots of areas where one simply cannot use the mechanism of price as the means of distributing a resource. This is universally true in the area of health care. The United States spends on average 50% more on health care as a percentage of GDP than anywhere else in the world, even though it has the most competitive health care market in the world. I do not think a single example proves anything. I spent two years in a religious order and it taught me the rudiments of logic, in spite of the fact that people in this House might not think I have any.

I have no problems with this Bill. I am intrigued with the list of events and even more intrigued by what is not listed. Senator Kenneally said that of all events, perhaps the most uniquely Irish is the Munster hurling final and I know that people in Leinster take great exception to this. There is something in it that touches the spirit of most Irish people. I am not sure if it is a compliment to the power of the GAA that the Minister decided to go gently around the GAA and pick the two most obvious major events. I would be interested to hear in a later debate the process by which he identified events. I wonder why the six nations rugby championship has been categorised in terms of a deferred basis. Every time I open the sports pages I am saturated by coverage of golf. When I go to my other place of employment on a Monday morning I must be careful where I go for coffee to avoid being saturated by a discussion of the weekend golf. I am intrigued by the absence of golf because it seems to be a universal and popular game.

I used up most of my ire against the Government last night and I am in better humour this morning. We have moved very slowly on the issue of new broadcasting technology and I am frustrated by the slowness with which we do everything in this country. The Dublin tunnel is five years late, the metro will be five or six years late, our development of a decent road infrastructure will be at least ten years later than planned. We seem to be incapable of doing things at a pace consistent with the speed of change in the world at large.

There is no sign of a digitial terrestrial broadcasting service. There is no sign of a digital radio service and there is not even legislation to deal with its introduction. The major digital broadcaster in this country is now Senator Norris's favourite person, Rupert Murdoch. We have allowed Sky to become by default the provider of our digital services and that is a matter of great regret. A combination of ideology and some incompetence is what delayed it. We are now only catching up.

I was intrigued by the Minister's mention of the details of consultations that had been undertaken subsequent to the passing of the 1999 Act. He said: "Arising from that process it became clear that the designation of sports events was a complex matter and that the main sporting organisations were opposed to their events being designated." This sentence is followed by a full stop and a new paragraph which begins, "Shortly after my appointment". There is a whole hiatus of history between the full stop after "designated" and "Shortly after my appointment". There is literally nothing in between. The Government of the day sat there and did nothing until the FAI did a deal with Sky Sports and the roof caved in. That is not good enough. The House was lectured yesterday about the complex and difficult work of Government which necessitated changes in the Freedom of Information Act. In this case, it was pushed to one side because it was complex and difficult.

If at some stage in the future RTE becomes as impoverished as it was until the Minister made his welcome decision to increase the licence fee or if TV3 continues to be as underfunded as it appears to be in terms of home-produced programmes, it is quite conceivable that in a few bad years neither RTE nor TV3 will be able to afford the fee which is regarded as being a reasonable market price. That means that Sky will win anyway. The whole emphasis is on free television services. The 1999 Act defines a free television service as "a television broadcasting service for the reception of which no charge is made by the person providing the service". I do not know if anyone who watches RTE and pays €150 a year for the privilege – knowing that this fee goes to the station – believes they do not pay for the service provided. If someone decides to take the Minister to court on the issue, that particular definition could be a problem.

The Minister referred to 90% minimum coverage. I have a vague recollection that the 1999 Act refers to lower percentages. The Minister is correct because the 85% coverage expired on 31 December. When the original legislation was going through the House, it was made perfectly clear that TV3 had no intention of extending coverage which was then 80% or 85%. Does the Minister have satisfactory evidence that the station has done what it said three years ago it would not do, namely, extend coverage? I have not heard that things have changed in places such as parts of the Dingle Peninsula and the environs of Cork city, where the topography is difficult and where TV3's signal cannot be received. Is the Minister satisfied that 90% of the population can receive TV3's free-to-air service?

When this issue was being dealt with approximately three years ago, TV3 said there was no chance it would invest in these areas. One reaches a stage of diminishing returns in terms of investment to expand the service. I would like the Minister to tell us how he knows with certainty that TV3 offers 90% coverage when we accepted three years ago that it could not do so. If Gaelic games were to be covered by TV3, all the matches Kerry play would not be received in parts of the county from which a quarter of the team come. That seems to defy logic. Therefore, I would like to hear how the Minister knows it has extended its service.

That is all I want to say on the issue. Other Members raised the question of designated sports events, and there is no point in repeating what they said. I admire the Minister's ingenuity because he had to deal with a fait accompli. He had to draft legislation with retrospective effect, which is always difficult. The ingenuity he displayed is to his credit and I support the principle that events which are beneficial to the collective good should be freely available to everyone. My only quibble is with the level of the designation and the omissions in some instances.

Minister for Communications, Marine and Natural Resources (Mr. D. Ahern)

I thank Senators for their contributions, which I found interesting and incisive. The latter is probably due to the fact that people were given an opportunity to receive a briefing from my officials.

My ability, as Minister, and our ability, as a nation, to become involved in this issue derives from the EU directive. There is often criticism in Ireland that EU directives have a negative effect on issues. In this instance, the directive sought to address the conflicting questions of broadcasting across frontiers while simultaneously protecting nation states and their desire to retain some of their own identity. From that point of view, the directive is to be welcomed.

The directive asks that we should be proportionate in anything we do. I understand the views expressed on both sides of the House with regard to why some things were included and others were not. I assure Members that all the arguments were teased out, not just at governmental or departmental level, but in the consultation process, which was totally transparent. The relevant documents are available for public viewing. They were previously on the Department's website but I am not sure if that is still the case. The documents show what was said by the representatives of those organisations which participated. I thank Senator Norris for his comments in relation to some people who did not appear. I would have thought that, in the circumstances, if there was an argument in regard to this, those organisations would have participated. To be fair, representatives of Sky Television appeared at the event and, if I recall correctly, intervened.

Like Senator Quinn, I am a strong advocate of a free market generally, but not absolutely. One can see what happens in regard to a free market. There are cartels and price fixing. In regard to the price of petrol throughout the country, there are dramatic changes in the free market as a result of cartels.

Mr. Quinn

Because of competition.

Mr. D. Ahern

It is because people get together and try to fix the price for their benefit. There was a time when petrol in my area was the cheapest in the country. The reason for this was that people were going across the Border to buy petrol at lower prices. My area is now one of the most expensive in which to buy petrol because the price in the North has risen to such a degree. No matter how much the price of petrol in the Republic increases, it is more expensive in the North and, therefore, I must drive to Ashbourne to buy cheap petrol. I am in favour of the free market, in principle, but not absolutely. I concur with the sentiments expressed by other speakers, particularly Senator Norris, in this regard.

Some Senators raised the issue of delay. Since becoming Minister, I have acted as expeditiously as possible in all the various steps we took. I said at the outset that I was a reluctant intervener in this area and that I had other issues on my agenda which I wanted to address. I also stated that I did not think Governments should intervene in this market. However, we were given the ability to do so by the EU directive.

To a large extent, the people who intervened or distorted the market went into the situation with their eyes wide open. It was not as if they were not forewarned because the legislation was well debated. Senator Finucane said that the directive referred to timely action. The fact is that just five states have acted in relation to this matter. I understand others will be acting, some on the same basis as Ireland. These include the UK, Italy, Germany, Austria and Denmark. The latter has decided to withdraw because of its situation.

In fairness to my predecessor, the Act was passed and consultations took place afterwards. There was outright opposition by the sporting organisations, which was a factor. It was not a question of our favouring one organisation over another. They expressed their opposition on the basis that designation would affect their ability to deal with sporting rights.

However, there was a general and clear understanding that the organisations would not sell to an outside broadcaster. Some Members have questioned why certain GAA games have been included while others have been excluded. During the public consultation process, the GAA made it clear that it did not intend to deal with an unqualifying broadcaster to the detriment of a qualifying broadcaster within the State. In view of this, intervention was not required.

Some Senators, especially Senator Finucane and Senator Kenneally raised the question of possible court challenges. The designation is not retrospective, but will apply to forthcoming events. It refers to contracts entered into since November 1999. That is covered by the Bill. Retrospection is not abhorrent to legislation. While it cannot apply in cases involving criminal sanction, there are a number of instances where it can take place. We are satisfied that in this area the legislation is proportionate and will withstand legal challenge.

The issue of existing contracts is taken care of in section 4(9) and (10), which provide that the High Court can deal with circumstances where there is an existing contract. It will have the power to adjust it on certain conditions. These relate to the question of a reasonable market rate and to whom it should be paid. The court can also designate the reasonable market rate.

Senator Kenneally referred to the stated view of the sporting organisations that RTE had not been fair over the years. I do not wish to intervene on the merits of that argument. However, the organisations will welcome the arbitration mechanism, which will independently monitor the price. The question of adding live or deferred events was considered. The Government decided on a list of events and while arguments will be made for additions or deletions, many of the issues in this area were addressed during the public consultation process.

Senator MacSharry referred to the question of rugby football. During the consultation process and in consultation with my Department, the IRFU made cogent arguments regarding its circumstances, which differ from the GAA and the FAI. The IRFU sells its rights as part of a pool comprising the Six Nations group and it does not have the ability or the right to sell exclusive matches. In view of this, designation would have had a hugely adverse effect on its circumstances. Furthermore, although rugby football is a popular sport, it would not have the same huge appeal as GAA sports or soccer. The IRFU demonstrated that the funding it gets from the Six Nations pool would be multiples of what RTE pays for televising the Six Nations championship games.

Senator Quinn referred to the question of the free market. Free viewing does not mean that event organisers are not paid. They are paid by RTE or TV3. The core of the issue is the rationale behind the EU directive, which provides that events covered must be of major public importance. The qualifying broadcaster must pay the reasonable rates. This means that while there is free viewing, a payment is made by the broadcaster.

The views expressed by Senator Norris take issue with those of Senator Ryan. Senator Norris's position is understandable, especially as he is concerned with a small market. Senator Kenneally asked if international events can be designated. The EU directive and the 1999 Act control the exercise by broadcasters of the rights required to broadcast international events. Showjumping events were included at the request of the relevant organisers.

Senator Ryan referred to coverage provided by TV3, which has increased with population movements and transmission improvements. The independent regulator has expressed the view that TV3 reaches an audience of 92% of the population. It is recognised by all broadcasters that the station has the required coverage in this State.

I thank the Senators for their views and I look forward to Committee and Remaining Stages. I appreciate the speed with which the Bill was introduced to the House. I hope it will be passed within a reasonable time period.

Question put and agreed to.

Committee Stage ordered for Tuesday, 11 March 2003.

Sitting suspended at 1.10 p.m. and resumed at 2.30 p.m.