Vol. 2 No. 3
I move amendment No. 1:
In page 3, subsection (1), lines 19 and 20, to delete "Commission" and substitute "Communities".
This amendment corrects an error in subsection (1) where the reference to the European Commission (Amendment) Act, 1993, is incorrect. It should refer to the European Communities (Amendment) Act, 1993.
I move amendment No. 2:
In page 4, subsection (2)(a), lines 16 and 17, to delete "television viewers in" and substitute "population of".
This is a technical amendment which relates to section 1(2) and refers to the designation of qualifying broadcasters under the Bill. I propose to delete "television viewers in" and substitute "population of" in order to be consistent with the words used in the definition of the new universal coverage on line 7 of page 4 of the Bill.
Amendments Nos. 3 and 4 are related and may be taken together by agreement.
I move amendment No. 3:
In page 4, subsection (1), line 44, to delete "may" and substitute "shall".
This relates to the section on the designation of major events. As the Bill stands section 2(1) provides that the Minister "may" by order and I seek to amend it to provide that the Minister "shall" by order". The effect would be that the Minister must designate events rather than having the option to do so.
As no timeframe is provided for the first order under this section, amendment No. 4 seeks to insert a new subsection to provide that, subject to the subsequent provisions of the section, an order shall be made under the section within four months of the passing of the Act.
With regard to amendment No. 3 and substituting "shall" for "may", I am not sure I agree with the suggestion that I or any other Minister would initiate this Bill and not act on it. I know the Deputy is trying to ensure it is strengthened and I am interested in that. In principle, I see no objection to amendment No. 3. However, I would like to get legal advice and return to it on Report Stage.
I cannot accept amendment No. 4 because its purpose seems to be to place a definite timeframe between the enactment of the Bill and the making of an order designating events of major importance to society. I hope it will be possible to make an order in the timeframe envisaged in the amendment. However I am not prepared to accept the amendment in principle as it would artificially cut short the consultation process envisaged under section 3 of the Bill. In any event, the wording proposed is neither appropriate nor acceptable.
Under section 7 an order may be a positive order requiring the approval of both Houses of the Oireachtas before coming into effect. The amendment, as worded, seems an unacceptable imposition on both Houses. In addition, there is the possibility either House might reject my proposals which must be presented in draft form initially. I hope this will not happen but the Bill must allow for every eventuality. For that reason I cannot accept amendment No. 4.
However, as indicated, my view of amendment No. 3 is different.
The Minister has made an offer to Deputy O'Shea. Does the Deputy wish to withdraw his amendment?
On the basis that the Minister accepts amendment No. 3 in principle, I withdraw it.
I move amendment No. 4:
In page 5, between lines 8 and 9, to insert the following subsection:
"(2) Subject to the subsequent provisions of this section an order shall be made under this section within 4 months from the passing of this Act.".
This amendment seeks to make sure matters move quickly. Would the Minister consider a redrafted amendment whereby she would bring her recommendation under this section before the Oireachtas within four months?
I understand the Deputy wants to ensure time limits with regard to the implementation of the Bill. However, the amendment tabled is not helpful for the reasons I have given, especially the possibility of artificially cutting short the consultation process. I am sure the Deputy is aware this will take time, but I do not envisage it taking longer than approximately four months.
It would not be advisable for this provision to be in the legislation because, as I have said, an order could be a positive order requiring approval of both Houses. This would be an unacceptable imposition on both Houses and is not the way to proceed. We must allow for every eventuality, including either House rejecting the Minister's proposals on this issue.
I withdraw my amendment with a view to having another look at the issue of timing on Report Stage.
I move amendment No. 5:
In page 5, subsection (2), line 9, after "regard to" to insert "all the circumstances and in particular".
I have reservations about the criteria laid down in subsection (2). They could be described as bizarre and a little restrictive. The amendment proposes that the Minister must have regard to all circumstances when in the process of preparing an order and designating events.
I appreciate that Deputy O'Shea wishes the Minister to be able to have a flexible approach in drawing up a list of designated events and I am sympathetic to that proposal. However, I am not sure the amendment would strengthen the Bill. While I see some advantage in greater flexibility, I ask the Deputy to take into consideration that the Bill is an intervention by the State in the public interest and that the broadcasting rights of the events in question belong, in a legal sense, to the organisers of the events. The action planned under the section, that is the designation of these events as events of major importance to society, should be seen to have a clear public interest objective. It is important that the interference with the rights holders is the minimum necessary to achieve that objective. The requirement to consider all the circumstances could be a considerable burden and add considerably to the time involved in drawing up an order.
Despite these misgivings, I am prepared to look again at this subsection and take advice on Deputy O'Shea's proposal. I will return to this matter on Report Stage. However, I stress the difficulties I have outlined need to be taken into consideration.
I withdraw the amendment on foot of the Minister's response.
Amendment No. 6 is in the name of the Minister. Amendments Nos. 7 and 8 are alternatives and amendments Nos. 9, 10 and 11 are cognate and alternatives to amendment No. 6. Amendments Nos. 6 to 11, inclusive, may be taken together. Is that agreed? Agreed.
I move amendment No. 6:
In page 6, lines 10 to 13, to delete subsection (1).
Section 4, in particular subsection (2), is the core provision in the Bill. My thinking behind subsection (1) was that the public interest in ensuring access via free-to-air television would be served once the event was available to qualifying broadcasters under the Bill. It would not necessarily be served by one qualifying broadcaster having exclusive rights to cover the event. The more television services which cover the event, the more access there would be and the better the public interest would be served.
However, since publishing the Bill, I have received representations from sporting organisations on this provision. They pointed out the importance of securing the rights fees for their premier events to developing and promoting their sports. They said the popularity of their premier events enables them to ensure broadcasters put resources into coverage of the domestic competitions which, in turn, is an important element in promoting and developing their sports. They also said the removal of competition for exclusive rights among qualifying broadcasters would seriously undermine their negotiating position with these broadcasters.
I have reflected carefully on these points and concluded there is a strong public interest in ensuring sporting bodies can continue to promote and develop their sporting disciplines to the maximum extent. We are aware of the importance of television coverage to the development of any sport. I am persuaded it is in the interest of the development of our domestic competitions and sport if a market for exclusive rights among qualifying — and I stress the word "qualifying" — broadcasters is maintained or left at the discretion of the sporting bodies. Accordingly, I propose that section 4(1) be deleted.
With regard to amendments Nos. 7, 8 and 9 which relate to section 4(1), I am proposing the deletion of the subsection with my amendment to this section. It would not be possible to accept amendments Nos. 7 and 8 in any case. Amendment No. 7, and as a consequence amendment No. 8, seeks to regulate the activities of a broadcaster operating under the jurisdiction of another member state. This would be in contravention of the Television Without Frontiers Directive. Apart from the breach of the directive, the European Commission would not accept the Bill if it contained any such provision, thus rendering the designation of events process largely meaningless. If the Commission does not accept our measure other member states do not have to respect our list of events. Amendment No. 9 also falls if amendment No. 6 is accepted.
Amendments Nos. 10 and 11 seem to be designed to cater for circumstances where a broadcaster already has the right to provide coverage for a designated event at the time the Bill is enacted or at the time when an order under section 2 is made. Given that at present the only television broadcasters who operate under our jurisdiction are TnaG, RTE and TV3, the amendment falls into the "belt and braces" category. In the timeframe involved it is extremely unlikely that another qualifying broadcaster will emerge between now and the time an order will be made under the Bill. My concern is that the addition of the word "enjoyment" could be seen as giving the Bill retrospective effect in relation to contracts already entered into and might weaken the Bill were it subject to a challenge.
As our existing television broadcasters provide free-to-air coverage of any events to which they have acquired the rights, the amendments are not necessary. On balance it would be safer not to proceed with them. Accordingly, I oppose amendments Nos. 10 and 11.
With the Minister seeking to delete section 4(1), my amendments take on a different context. Can I take it from the Minister's deletion that, if a particular EU broadcasters had the rights to a certain event, they could, in certain circumstances, refuse to share that internally? I will give an example. I understand that "a broadcaster" refers to the direct broadcaster. If a particular programme is being provided by satellite, an interesting point arises if the satellite service comes from outside the EU, as it would be outside the remit of the directive and the legislation. Let us say that a particular satellite operator offers coverage of a particular event, only those who have satellite dishes can receive that programme, which is a restricted number in this country at present.
The directive controls rights acquired after July 1997 and the Bill only applies to rights acquired in the future, that is, after the Bill is passed. Should we also cover rights which are already enjoyed? If not, does the Bill comply with the directive?
With regard to the first point, my amendment No. 6 refers to the issue of qualifying broadcasters. The qualifying broadcasters under this legislation refers to the indigenous broadcasters — TV3, RTE and TnaG. What we are saying is that the ethos of the Bill would not be served by one qualifying broadcaster having exclusive rights to cover the events in question. It is important to note we are referring to qualifying broadcasters because we are securing the position whereby the indigenous channels will be involved, programmes will be free-to-air and there will be an amount of competition with regard to the rights fees among the indigenous broadcasters and the event organisers.
This is an important point and it has been brought home to me by discussions I have had, even since the publication of the Bill. We must recognise the rights involved and that much work is done in promoting sports at local level and promoting sporting events that would otherwise not get coverage. The best way of addressing this issue is along the lines of my amendment, which takes these concerns into account.
When referring to the July 1997 date, the Deputy raises to the issue of retrospection. We cannot have retrospection because we are talking about the position when this Bill becomes law — it legislates from that point on. I hope that goes some way to explaining the amendment. We cannot entertain the question of retrospection in this regard.
I apologise to the Minister for not tabling amendments. I will have a number of them for Report Stage.
The aim of the Bill is to ensure that the national television audience can have access on a free-to-air basis of major sporting and cultural events, although the premier television rights to such events may be acquired by particular companies in the future. Has the Minister if met with the Gaelic Athletic Association, for example, to discuss its concerns about the Bill before it is passed? It appears that the GAA is being singled out, because it organises various cultural events and a series of sporting occasions. However, this singling out of the GAA does not extend to the issue of VAT on hurleys, which was a major controversy 20 years ago. While on one hand it is being singled out as a major cultural and sporting organisation, on the other, it is not.
If the broadcaster, as defined, must have as extensive coverage as is required under the Bill, it is important to note that, at this crucial time in the island's political development, we still have do not have full penetration into Northern Ireland for coverage of these major sporting and cultural events. I would not want to see the GAA in a position where it is locked in to RTE and cannot deal with another broadcaster in the future. As RTE is the only broadcaster at the moment which has full coverage in the country it is a matter of concern to it.
Arising from the Minister's amendment, will she tell us what the position is regarding the "must-carry" status, so to speak, of TnaG on the MMDS system? Under section 17 of the Radio and Television Act, 1988, TV3 must be carried on the MMDS system whereas TnaG does not have that status. For those who watch TnaG it carries a great deal of community, cultural and major sporting events. TV3 on its way to becoming "a broadcaster" under the terms of the Bill, although it may not have achieved the 85 per cent coverage at this stage. What is the "must-carry" status of TnaG on the MMDS system? In a written reply to a parliamentary question on 30 March 1999 the Minister's colleague, the Minister for Public Enterprise, said that the question of television channels to be carried on the MMDS is a matter for the Minister for Arts, Heritage, Gaeltacht and the Islands.
My question is less ambitious but regards the text of the legislation. The Minister's amendment No. 6 has the net effect of deleting section 4(1). We encounter in section 4(1) the first use of the phrase "reasonable market rates". To assist the purpose of the legislation, which I and my colleague support, consideration should be given to the qualification of this term between now and Report Stage. It relates to the amendment because the it proposes to delete section 4(1).
There is considerable merit in putting in after "reasonable market rates" a form of words along the following lines "which, in addition to normal market considerations, shall take into account the public interest which led to its being proposed for designation". If one leaves "reasonable market rates" as a simple statement without qualification it may mean whatever any shark in competition with other sharks might have expected to establish as the value. If one puts in a form of words which qualifies "reasonable market rates" one leaves the principle of the market in place but one establishes my point ab initio, because it is where the term is encountered first in the legislation. This principle is accepted later in the Bill but there is merit in putting it in section 4.
If where we first encounter "reasonable market rates", we insert, "which, in addition to normal market considerations, shall take into account the public interest which led to its being proposed for designation", it would make it clear that we are not talking about a free good in a totally unrestrained competitive market but a good to which a public interest consideration attaches. One can handle the principle of competition and at the same time take into account the intention of the legislation to protect something that is part of the public world of communication. Perhaps between now and Report Stage it might be worth consideration as it would be consistent with the usages later in the legislation.
I accept the reasoning behind the Deputy's proposal and I will have a look at it for Report Stage. He will be aware with regard to the reference to "reasonable market prices" that there is a very definite mechanism later in the Bill whereby the two protagonists cannot agree there is an opportunity to get a court order on what may be a fair market price.
It was that matter I had in mind, considering the position before the court so as to strengthen the hand of the Minister in the making of arguments. One is not talking about a commodity within a simplified competition regime which is how the courts might choose to interpret it. My suggestion to include this qualification would strengthen the position of the Minister of the day. I urge that consideration be given to making it a qualified good in section 4 as this would puts the Minister in a better position in court. There is no difference between us on this issue but that is my reasoning for it.
I thank the Deputy and I will consider the matter given his remarks.
Deputy Kenny intervened on the GAA and the major sporting occasions it organises. As the Deputy will know I have deliberately not drawn up a list of what I think should be major cultural and sporting events — this will be done in consultation. I did not want to demonstrate my sporting prejudices and it must be a far wider process. The contribution of the GAA to sport and culture cannot be over emphasised and we owe it a great debt of gratitude. However, laudable his reference to the VAT on hurleys, it does not come under the Television Without Frontiers Directive that is being discussed and transposed into law with this Bill.
The Deputy also feared that an organisation or events could be locked into RTE but my amendment No. 6 ensures there is a choice. We are talking about "qualifying broadcasters", as defined in the Bill, so we are talking about indigenous broadcasters, but there is flexibility which recognises the rights of the events organisers. My amendment should allay the Deputy's anxieties and I urge him to support it.
And the MMDS point?
The "must-carry" service is a matter for the ODTR because it is a question of regulation and, therefore, it is not a matter that would not come directly under the remit of the Department.
The Minister's colleague, the Minister for Public Enterprise in reply Question No. 104 on 30 March 1999 indicated that it was the Minister's responsibility.
There may be some confusion that some television stations will be given "must-carry" status in the comprehensive Broadcasting Bill, 1999, which is separate to this Bill. It is not applicable on this matter.
I have some sympathy for the Minister on this matter. Am I to understand that under the forthcoming broadcasting legislation, when the broadcasting regulator is appointed this matter will be a function for the regulator of broadcasting? There is a great difference between that and ceding the territory to the ODTR. There were many occasions in the past when people who were licensed to transmit liked to think that they were licensed to initiate a broadcasting message when they were not. Neither can they prohibit it.
It would be important if we had an assurance that the broadcasting regulator will be in a position to initiate "must-carry" proposals. Having initiated the proposal and having required it in primary broadcasting legislation, they can get on with providing the service infrastructure for implementing a broadcasting policy decision. However, they cannot turn a facilitating arrangement into a broadcasting principal, which is effectively what they do. The regulator in the ODTR cannot usurp a broadcasting function. I see Deputy Kenny's point and that is where the assurance lies. If it is handled in the main legislation and it is clear which regulator does what, then they can stick to their regulatory lasts, so to speak.
Minister, have you received representation on this matter?
There have been representations made both before and after the publication of the Bill. I am prepared to meet anyone who wishes to discuss this issue. I am sometimes accused of being too interested in consultation but it plays an important role. A number of people contacted us whom we have tried to accommodate.
I wish to clarify with the Minister the issue of rights acquired since July 1997, for instance, which can be acquired in this state until the Bill becomes law. Is there any way before this Bill becomes law that we can prevent rights being acquired that would effectively frustrate the intention of the Government and this legislation?
That is an important point. I am told it is unlikely to arise but I do not see any concerns about it. I will discuss it on Report Stage.
Will the Minister do so before Report Stage?
Yes. Deputy Kenny's question of coverage in the North is a matter that concerns everyone. We hope that the long-standing issue of Clermont Carn will reach an early resolution with the help of digitalisation. When I was in London last week I spoke about this issue as well as issues on broadcasting, culture and heritage with the UK Secretary of State, Mr. Chris Smith, who knows our concerns and undertook to deal with it.
I have noted the Deputies' intention to raise this matter on Report Stage.
I will await the Minister's response to amendment No. 10 on Report Stage.
I move amendment No. 12:
In page 6, line 34, to delete "the Member State or any other Member State" and substitute "that Member State".
Section 5 is designated to transpose the mandatory provisions of Article 3a of the EU Directive 89/552/EEC as amended by Directive 97/36/EC to ensure that no broadcaster in this jurisdiction operates in such a way as to deprive a substantial portion of the population of another member state of seeing events designated by that member state in accordance with the measures taken by that member state. The amendment lines up the text with the provisions of the directive. A broadcaster in another member state will be able to take action under section 6 of the Bill if it believes that an Irish broadcaster is contravening that particular section.
The Minister will come back on Report Stage on section 7. This deals with the process, the points between us are the definition and the procedure.
I move amendment No. 13.
In page 7, lines 16 and 17, to delete "Major Events Television Coverage" and substitute "Broadcasting (Major Events Television Coverage)".
I contend that this is a broadcasting Bill and should be cited as such. The word "Broadcasting" should be inserted at the beginning of the Title.
I have no problem with that.
