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Seanad Éireann debate -
Tuesday, 11 Mar 2003

Vol. 171 No. 17

Broadcasting (Major Events Television Coverage) (Amendment) Bill 2003: Committee and Remaining Stages.

On a point of information, we had allowed 45 minutes for the debate on the Bill but owing to the time involved in taking the votes on the Order of Business, may I get agreement on taking No. 2 at or before 4.30 p.m.?

Is that agreed? Agreed.

Section 1 agreed to.
SECTION 2.
Government amendment No. 1:
In page 4, line 38, to delete "events which take" and substitute "an event which takes".

This is a technical amendment which corrects the language used in the original provision.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
SECTION 4.

An Leas-Chathaoirleach

Amendments Nos. 2 and 3 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 2:
In page 5, subsection (6), to delete from and including "(6) Where" in line 45 down to and including "it." in line 49 and substitute the following:
"(6) Where in an application undersubsection (1)–
(a) the High Court has fixed the reasonable market rates, or an arbitrator has issued an award under subsection (4), and prior to the High Court making a final order in respect of the application, or
(b) in the circumstances referred to in subsection (2), the High Court indicates that it will fix the reasonable market rates for coverage of the event after the event has taken place, and prior to the event taking place,
the qualifying broadcaster may withdraw the application. The High Court may in these circumstances, having regard to the intention of the broadcaster making the application, award such costs to such party or parties to the application as it considers appropriate.".

This substitute amendment No. 2 amends section 4(6) of the Bill by making it clear that a qualifying broadcaster may also withdraw its application to the High Court for access to a designated event in circumstances in which the court has indicated that it will, in accordance with subsection (2), fix reasonable market rents after the event takes place. The intention in the original subsection (6) was to ensure that the finding of the High Court with regard to reasonable market rates would not be binding on a qualifying broadcaster where it decides not to broadcast the event.

However, the conditions under which a broadcaster may withdraw its application to the High Court are very specific. It may do so after the court has fixed reasonable market rates, but before the court makes its final order. This construction would not allow a broadcaster to withdraw its application in circumstances in which the High Court has decided to allow access to an event and to fix reasonable market rates after the event has taken place. This might be too big a risk for a broadcaster to take as the High Court may have set a rate that the broadcaster would not have been prepared to pay in the first instance.

Substitute amendment No. 2 also deals with the subject matter of amendment No. 3, proposed by Senator Finucane. I agree that it is to be expected that a qualifying broadcaster should only proceed with a bona fide application to the High Court. It is helpful to include guidance for the court on the factors that should be considered in determining how costs should be awarded. The High Court should have regard to the intention of the broadcaster making the application and, accordingly, I propose this amendment to give effect to the principle that when awarding costs pursuant to subsection (6) the High Court should have regard to the intention of the broadcaster making the application. This deals with the matter raised in amendment No. 3 and I hope Senator Finucane agrees.

An Leas-Chathaoirleach

On a point of information to the House, amendment No. 2 is a substitute amendment and was circulated on the white list.

I accept the spirit of what the Minister said, which I felt was in accordance with the reason I tabled amendment No. 3. The context of amendment No. 3 is that with Sky Sports removed from the equation when it comes to broadcasting sporting events, it will be between TV3 and RTE to do so. RTE always has a good war chest – up to €150 million a year when the recent €43 increase in licence fee is taken into account. An organisation like TV3 would not have the same financial resources. Going to the High Court is a very expensive process. The spirit in which an organisation went to the High Court in the first instance should be taken into account and the evaluation should be made with regard to determining the cost afterwards. I accept the spirit of the Minister's amendment.

Amendment agreed to.
Amendment No. 3 not moved.
Section 4, as amended, agreed to.
Sections 5 and 6 agreed to.
SECTION 7.

I move amendment No. 4:

In page 7, subsection (1), line 21, after "arrangement" to insert "and may at his discretion forward the agreement to the Competition Authority".

This amendment suggests that the Minister may, at his discretion, forward a report he receives to the Competition Authority. At a recent meeting of the Joint Committee on Communications, the Marine and Natural Resources, I asked the Minister about advertising. It is claimed by TV3 that RTE 1 often engages in predatory advertising. The Minister said at the time that he did not have any role in the matter and that responsibility for it lies with the Competition Authority. However, in light of the recent increase in licence fees it received, RTE should be asked to adhere to a code of good and fair conduct. There could be a role for the Minister in certain instances, if there was a doubt in his mind, to send it on to the Competition Authority at his discretion. I ask the Minister to accept the spirit of the amendment because it is put down in good faith. There may at times be decisions in respect of which the Competition Authority might become involved.

I take it that the aim of the amendment proposed by Senator Finucane is to ensure that in the circumstances in which there is a possible competition issue relating to a contract, the terms of the contract could be brought to the notice of the Competition Authority. I do not consider there is a need for an explicit power in the legislation to achieve this. The Competition Authority has its own powers under the Competition Acts and may act in accordance with the provisions of those Acts, if it so wishes. Accordingly, I do not agree to the amendment.

As stated on Committee Stage in the Dáil, I have no role in relation to the issue of competition between one broadcaster and another. That is the effective remit of the Competition Authority. In the area of commercial advertising – which is not referable to the licence fee increase – if another broadcaster has a complaint, it would be its prerogative to take that complaint to the Competition Authority. There is no provision within the broadcasting legislation, nor do I think there should be, for this to be part of the remit of, for example, the Broadcasting Authority of Ireland.

The section contains the phrase, "The Minister may, where he or she considers it is in the public interest". How does the Minister intend to satisfy the public interest in the context of a report he receives directly? To what degree would he use that report to satisfy the public interest? Surely, in instances in which he intends to satisfy the public interest, there would be validity, in certain cases and at his discretion, in referring the case to the Competition Authority.

I apologise, but I am not sure of Deputy Finucane's point.

The Bill states:

The Minister may, where he or she considers it is in the public interest, direct an event organiser who has entered into an agreement or arrangement with a broadcaster in respect of the broadcasting rights to a designated event to give to the Minister, at the Department of Communications the Marine and Natural Resources, within such period specified in the direction, a copy of the agreement or arrangement.

The report is given to the Minister. To what degree is this in the public interest? How does the public know about this agreement?

It is at the total discretion of the Minister to decide whether something is in the public interest. This is geared towards arrangements in which there is a contract between an event organiser and a non-qualifying broadcaster. The contract would be available if one was dealing with TV3 or RTE. However, if an arrangement is made with a non-qualifying broadcaster outside the State, as was the case with the event which caused the Bill to be brought forward, the operation of the law is somewhat constrained.

Is it at the Minister's discretion to pass an agreement to the Competition Authority?

I do not think so. The Minister has a role in relation to broadcasting but not in relation to competition.

I do not suggest the Minister has a role in relation to competition. If there was an element of doubt about what had happened, would the Minister have discretion to pass the agreement to the Competition Authority?

It is not for the Minister to decide whether an issue of competition is involved. It is entirely a matter for those who feel aggrieved. The law is in place to allow the Competition Authority to intervene in such cases. I am not sure whether there is a deficiency in the law regarding broadcasters but that comes within the competence of the Department of Enterprise, Trade and Employment which takes in the Competition Authority.

Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 and 9 agreed to.
Title agreed to.
Bill reported with amendments.

While I have said before that Report Stage should not be taken immediately after Committee Stage, I understand the urgency of the passing of this Bill. I will be co-operative on this occasion because I do not intend to move any amendments on Report Stage.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

I thank Senators for their views and expressions of interest in the Bill, particularly Senator Finucane and other members of the Opposition for their agreement to bring it forward quickly because of the time constraints involved. Having been considered here, it will be sent to the Lower House where I hope it will have a similar passage. The views expressed on Second Stage were relevant and thought provoking and gave an opportunity for people outside the House to see what we were trying to achieve with the Bill. I thank the Seanad and its staff.

I thank the Minister for coming before the House on Second Stage and also today to complete the Bill. Everyone agrees with the thrust of what is proposed, which is reflected in the fact that so few amendments were tabled. I also thank Senator Finucane for his co-operation in allowing us to complete the Bill today in order that it can be sent to the Lower House.

I wish the Bill a speedy passage in the Dáil. It is important to get it in place within a short period. On Second Stage I criticised the delays that led to the Bill being necessary. Decisions that could have avoided the pending arbitration and High Court action could have been taken in 1999 or 2000. However, this does not reflect on the Minister because he acted in haste.

One remaining imponderable factor is the contractual arrangement between the FAI and Sky Sports. I do not know in what way it will hop. It is sad when the Government has to interfere in a bona fide contractual arrangement because it does not set a good example for corporate Ireland. Nonetheless, the spirit and intent of the Bill will enable the free-to-air televising of major events to viewers at no extra expense.

Question put and agreed to.
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