There are no amendments to section 1, which is just a standard provision setting out the Short Title to the Act and the collective citation, construction and commencement.
Broadcasting Bill, 1999: Committee Stage.
SECTION 1.
Question proposed: "That section 1 stand part of the Bill".
Question put and agreed to.
SECTION 2.
I move amendment No. 1:
In page 6, subsection (1), between lines 22 and 23, to insert the following definition:
" 'community broadcaster' means a broadcaster which is or is owned by a non-for-profit entity, the structure of which provides for membership, management, operation and programming primarily by members of the community in question, the programming of which is based on community access and reflects the interests and needs of the community in question;".
This amendment deals with the concept of a community broadcaster. It was suggested by the community media framework. There is a difference, as the Minister knows, between local television provision and the community broadcaster. The term "community" should not be looked at here in a geographic sense. The community might represent disability, women's rights, Travellers' rights and so forth and there should be a facility for people who have something definite and valuable to say, regardless of whether it is targeted at the specific group or seeks to advance an agenda on a broader basis within the general public.
We are seeking to include a clear definition whereby community broadcasting is, first, non-profit making and, second, genuinely representative of a particular community, which need not specifically be a geographic community but might be a community in a general sector. Other points will arise later, one of which is how the community broadcasters may be funded. Obviously, the groups we are discussing will not have substantial resources. However, that is a separate question.
My advice is that it is important to include a clear definition of a community broadcaster. I ask the Minister to accept the amendment on the basis that the clearer definition will help to move this concept forward in the interests of the many groups who might be disadvantaged or who wish to advance particular points of view.
I have considered the amendment carefully but I am not of the view that it is appropriate to insert a definition into the Bill. I had the opportunity of talking to people who were involved in community broadcasting. Indeed, community broadcasters are an important part of the broadcasting landscape.
The Independent Radio and Television Commission has, under the 1988 Act, facilitated the establishment of a vibrant community radio sector despite the fact that the Act is silent on such services. However, legislative flexibility in this regard has allowed the commission to develop a policy in relation to community radio in consultation with interested community groups. The policy document which the commission has published includes a working definition of a community radio station, which is mirrored in the Deputy's proposed definition of a community broadcaster, and the commitment to continue to define community broadcasters as a distinct strand in Irish broadcasting.
Accordingly, I see no advantage in inserting a definition in legislation. Indeed, in the context of an ever changing broadcasting environment there might be a distinct disadvantage in losing the flexibility which has allowed the commission to proactively support the sector.
With regard to community television, the Bill recognises the importance of the community sector by providing in section 32(2) that the broadcasting commission of Ireland may enter into a contract for the provision of a community television service with two or three members of a local community only when it is satisfied that, first, these members are representative of that community; second, that programme material will specifically address the interests of that community and, third, that all revenue generated will be put back into the station and will not be for profit. I hope the Deputy will recognise that many of the elements which are highlighted in the proposed definition of a community broadcaster are contained in these provisions. Rather than impose a definition which would apply in every case, it is sufficient to require the commission to consider these issues on a case by case basis.
Overall, I am anxious to maintain a degree of flexibility in this area which will allow the commission to respond to the particular needs of a given community. For that reason I cannot accept the amendment.
I wish to speak in support of the amendment. What the Minister might achieve by her reluctance to accept the amendment is not flexibility but confusion. It is important that a distinction be drawn between those who make use of the term "community" and those who are genuine community interests. There is a distinction as the Minister knows between the local commercial which will claim to have a representation of community interests, an easy thing to do, and that which is community in structure, by the form of its initiation and in terms of its ownership.
The Minister spoke about recycling any surplus revenue that is generated into the station. This leaves untouched the issue of ownership of the station. Deputy O'Shea's amendment is explicit. It states that it means a broadcaster which is owned by a non-profit entity, the structure of which provides for membership, management, operation and programming primarily by members of the community in question. Even the term "programming primarily by members" is different from the text of the Bill and that is why it is necessary to amend the Bill.
The Minister refers to what is defined in section 34. That section refers to the right to compile a set of programmes and offer it to the local station. Big deal. There is a great difference between the right to compile and hand in one's cassette and being involved in the intiation of a programme concept, carrying it to fruition and making it. Section 34 also refers back to section 32(1)(a)(i) where there is a reference to a local content contract. That could mean anything. I am tempted to fall for the Minister's invitation to be silent on the 1988 Act, given that there is a lurid glare at present surrounding the circumstances of its origin and operation.
If one were to use the phrase "community content contract", it would again be unsatisfactory in relation to those who are involved in community broadcasting. Claiming to have community content might mean dragging somebody in to talk about the old times. Does it mean reading death notices and mentioning the funeral parlours concerned? The term is dangerously vague and unacceptable. If one is criticising the silence of the 1988 Act, which established the Independent Radio and Television Commission, in relation to community broadcasting, this is the opportunity to correct that Act by defining "community". If that is to be done, let it be defined in a way which will be recognisable. If it is recognisable, why dance around the issue of ownership?
The Minister made a point about flexibility. What she is really saying is that if there is a community organisation that succeeds in becoming an effective community broadcaster, one could be curtailing its right to seek sponsorship and so forth. However, the text of the amendment does not do that. It does not put a stranglehold on a community broadcaster. It simply defines a community broadcaster in terms of the ownership of the assets. It draws a clear distinction between the local commercial interest with a community flavour and genuine community broadcasting.
This is the chance to include a definition of community broadcasting. It is generated by the community media network who are practitioners in this area. They are happy with Deputy O'Shea's amendment so why not include it? Why continue the subterfuge of suggesting that the local commercial with a nod to the community is the definitional form of community broadcasting? It is not.
I strongly support the definition put forward by Deputy O'Shea and I urge the Minister to accept it. Everybody will be happy and at least they will know what it is.
If it was the case that the 1988 Act had retarded the growth of community broadcasting I could understand why Deputy Higgins is so exercised about this issue. He fails to accept that the commission has developed a positive policy in relation to community radio in consultation with the interested community groups. That has worked well and it is due to that consultation and discussion that the policy document published by the commission includes the working definition of a community radio station.
I accept that the Deputy is worried about what could be seen as community and what might be seen as commercial. However, the commission has taken the line it has and is flexible in its approach, which has ensured that the definition of community Deputy Higgins and I would wish to be underlined and re-emphasised has been at the kernel of the commission's approach. Therefore, at this stage it would not be appropriate for me to accept this amendment, as the position is evolving in a positive way. The inclusion of this amendment would curtail that flexibility, which has proved to be of great benefit to community broadcasters to date.
It might be helpful if I were to give an example. The Minister and I have an ideological agreement and a policy agreement on the importance of public service broadcasting. Although I am not requiring her to say that, we are also in agreement in resisting any grab for power and influence by the Minister with responsibility for telecommunications regarding what should be broadcast. A question arises in this regard. What if licences are granted to people to operate cable systems who say they will cover the community council meeting once a month, but in the meantime they will flog commercial products? What if they suggest, which is even more likely, that on a pilot basis they will liaise with a local authority and the local authority can sign up and say they are offering community coverage of its events once a month and the rest of the time they operate under a different remit?
There are many opportunities for abuse of the concept of community. I will not go into how it was abused in the past. With regard to its use in broadcasting there is great merit in specificity. The Minister referred to the document, which offers flexibility. From the point of view of accuracy, in case people are interested in the historical record, the 1988 legislation gave first crack at broadcasting to the commercial sector. The community licences were more or less knocked out of it and very late in the day the Independent Radio and Television Commission was pushed into considering community licences. Instead of setting up a regime of definitions that allows confusions, there is considerable merit in defining "community". The Minister can give me an assurance on that.
I speak to many people who say they are part of a community. Is McDonald's a community station? One will get a paper hat in McDonald's at Christmas and all the little ones will clap and cheer. Is that a community? McDonald's would say it is because it involves the community. Community is about who owns the station, whether the profits go back into the community, whether the community is representative, whether people are elected to it and whether it is democratic. To be blunt, if one is to have community broadcasting, it should have at least the minimum accountability that applied to the old group water schemes. At present, one is facilitating the abuse of community rather than establishing the character of community, which we have an opportunity to address in the Bill.
Water schemes and McDonnell's do not have licences to broadcast. The Independent Radio and Television Commission has a specific role and it has worked on this issue. It is not confused and does not have a difficulty in differentiating the types of projects that will be put to it. If I was to accept this amendment, I would be hijacking Independent Radio and Television Commission's role with no benefit to the ordinary person, particularly those who represent community broadcasters. Given that the position has been working well and there is an opportunity for it to evolve, we should not try to fix things that are not broken.
I listened carefully to the arguments advanced by the Minister. I am concerned that the Bill contains a definition of community that is too narrow. I take it the Minister accepts fully that community is not a geographical area, but can represent all types of groups who have a legitimate reason for sending out information or programmes regarding their area of interest. I take the point that the Independent Radio and Television Commission has its working definition of community in its working document and when given increased power it will become the broadcasting commission. This concept is much deeper in that heretofore it was radio that was dealt with. A radio broadcaster do not require the same level of equipment as a community television broadcaster. Cost elements will arise in this regard.
As Deputy Higgins said, under this definition people who are not pursuing an agenda of community service may be able to slip in. If this definition was included the matter would be watertight. The Bill provides for local television coverage separately on a commercial level. I cannot understand why the Minister cannot agree to this formula, which people who operate successfully in the field tell us is necessary to enable the concept of community television to develop and prosper.
With regard to the Independent Radio and Television Commission, it has been working well in this regard. I am sure the Deputy may be aware that in 1988 the Independent Radio and Television Commission established a support scheme to provide for the development of the community radio sector by supporting the operation of the community radio forum and station evaluation and development. In excess of £80,000 was committed to the five year project. The thrust of the Independent Radio and Television Commission's approach to community broadcasters has been positive. It considers there is no confusion or difficulty in differentiating the proposals that have been put to it. It would not be appropriate at this stage for me to accept this amendment, as the flexibility has worked well for the community broadcasting sector, and I wish to see that continue.
The amendment is being pressed.
Amendment put.
The Select Committee divided: Tá, 6; Níl, 8.
Tá
- Monica Barnes,
- Ulick Burke,
- Donal Carey,
- Deirdre Clune,
- Michael D. Higgins,
- Brian O’Shea.
Níl
- Martin Brady,
- Pat Carey,
- Michael Collins,
- Síle de Valera,
- Chris Flood,
- Brendan Kenneally,
- Donal Moynihan,
- Michael Moynihan.
I move amendment No. 2:
In page 6, subsection (1), between lines 24 and 25, to insert the following definition:
" 'contemporary cultural expression' means the promulgation of those cultural values which can and do enrich contemporary life and promote citizenship over consumerism;".
The term "contemporary cultural expression" is contained in section 24(2) which deals with the public service character of the authority's national broadcasting service. Part of that function is defined as to facilitate or assist contemporary cultural expression. This amendment is fundamental to broadcasting, especially in regard to the meaning of contemporary cultural expression.
Culture relates to values and should enrich contemporary life but there is another point in this definition and that is the promotion of citizenship over consumerism. Basic to all public service broadcasting is the question of educating, informing and entertaining, but the role of informing and education is vital in a democracy. None of us would want our television programming to become so commercialised or populist that we would not have a sufficient focus on citizenship as against consumerism. A trend has developed in our society as the open market has become more of a feature. I accept the open market has brought gains but there is too much talk of consumers as distinct from citizens in the context of this overall discussion. To be a good citizen, one needs to be informed but being a citizen is a great deal more than just being a consumer.
It is incumbent on the public broadcaster, and our public broadcaster performs well in this regard, to ensure that the major issues of the day are presented in a way that is objective and comprehensible to the wide body of the public and that will stimulate discussion. Obviously programmes need to make an impact and generate a wider public discussion if they are to be effective. Cultural values can be a confused concept. Much of what is seen as culture in our modern society does not necessarily contain values. Neither is it in the interests of developing a caring society and the sort of citizenry we seek to have. The form of words used in the Bill is not adequate and needs to be strengthened greatly.
The Labour Party has tabled an amendment on the banning of advertising aimed at children. We see this as a reprehensible aspect of the consumer society. There is disagreement as to the age at which a child is capable of making the distinction between what is a television programme and a commercial advertisement. I have seen figures which indicate that a child has that capability at eight; others indicate ten years of age. Using children to sell one's wares is unacceptable. It is a feature of our television which does not promulgate the cultural values which enrich contemporary life.
We are seeking to make a clear statement that the promotion of citizenship over consumerism has to be the fundamental task of a public service broadcaster. The public service broadcaster seeks to facilitate and assist the identification of those cultural values which enrich contemporary life. It is a wide question. Our cultural values cover a range of activities. Culture is what we are but I want to extract from that the values that are important in terms of enriching our contemporary life, take the emphasis away from the marketplace and focus on the community and caring for others. There is a level of selfishness and greed in our community that was not a feature some years ago.
We are seeking, with this definition, that the national broadcaster would facilitate and assist in promulgating, developing and broadcasting the best that is available in our society. We need only look at the fall off in the number of people who are exercising the franchise to realise there is a huge challenge in terms of educating and informing people on the importance of our democratic system. People make a statement in terms of what is happening in our country and what they want to see happening in the future.
While section 24 is designed to provide clarity and detail in respect of the public service character of the national television and sound broadcasting services which are provided by RTE, I do not wish to be too proscriptive in this regard. The RTE Authority is and will be responsible for ensuring that RTE interprets correctly and meets its statutory requirements as set out in the Broadcasting Authority Acts and the Broadcasting Bill, if enacted.
The definition proposed by Deputy O'Shea seeks to offer an interpretation of section 24(2)(c), which obliges the authority to provide broadcasting services which facilitate or assist contemporary cultural expressions. It is too prescriptive. The concepts in the definition are not without merit and I appreciate that the Deputy agrees broadly with my approach in this area, as set out in section 24. Nevertheless, the requirement imposed on RTE in section 24 is sufficiently clear and I am satisfied RTE will deliver on its remit without the need for further clarification.
I agree with Deputy O'Shea that we should not look on people as consumers but citizens, because to refer to people simply as consumers is dehumanising. The idea that greed is good, which appears to pervade much of society, would not be shared by Members of this House. I understand the Deputy's concerns about what is on view, especially for younger people. I can obtain information for him on proposals in the US to educate viewers, young people especially, to watch television with a critical eye. Given his concerns, I am sure he will agree with the approach set out in section 24. In this regard I am satisfied that RTE will deliver on its remit without the need for further clarification.
The Minister said RTE will be able to operate without the benefit of what Deputy O'Shea is proposing. While I have every confidence in RTE, the role of the elected people, including the Government and Opposition, when considering the impact of policies on legislation is to assert that we will never interfere. I am against the idea of interference in RTE; there has been too much of it in the past. RTE should be given the benefit of challenging the legislation.
If the Minister was to accept Deputy O'Shea's amendment, provided that a full stop was inserted after the word "citizenship", she would come some way to meeting his objectives. Deputy O'Shea proposes that the term "cultural expression" means the promulgation of those cultural values which enrich contemporary life and promote citizenship over consumerism, yet the Minister is not willing to consider including the concept of citizenship.
This amendment arises because of the language used in section 24(2)(c), which uses the words “facilitate or assist contemporary cultural expression.” An analyst might ask how could that be stopped, in so far as everything expressed is a cultural expression of the day? Contemporary cultural expression could hardly be prohibited or assisted unless people were asked to put bags over their heads or live in the past. What does this bald statement mean? One word in it — contemporary — gives it force or justifies it being included in the section, in so far as one could speak, for example, of the inherited or imaginative cultural ethos that has yet to take place.
Section 24(2)(a) defines cultural diversity and responsibility as providing a comprehensive range of programmes in the Irish and English languages. Apart from the Department’s silence on the recognition of another language in Northern Ireland, we are also dealing here with a multi-cultural society where it may be necessary in the public interest in honouring a remit of culture and diversity to speak beyond the Irish and English languages. Perhaps the Minister will welcome that the present position does not do much for our European commitment.
We are agreed that in defining broadcasting activity emphasis should be placed on public service broadcasting. If so, "commodification" must be kept in its place by referring to something else. This is why I strongly support the case Deputy O'Shea has made for including citizenship. Given the considerable evidence of the destruction of social cohesion it is not possible to say that its inclusion will be taken for granted. Such destruction is not confined to the behaviour of people in lower socio-economic groups. It extends to what may be termed "dot.com laddism" through the entire society.
Why can we not agree on a reference to citizenship that would encourage social cohesion and also encourage us to resonate with the multi-cultural society in which we now live? Citizenship in law is powerfully protective of minority voices. That will arise later in the discussion on radio. The Minister for Public Enterprise has referred to the different capacities of multiplexes in terms of black and white and football matches. She is ready to start broadcasting. If it is decided not to emphasise citizenship what are the guarantees to minorities?
We are in favour of DTT because we are agreed on low cost universality. If so, why can we not include the word "citizenship"? Public service broadcasters need it. In this context the mixed model of funding must be considered. Deputy O'Shea quoted from the Reith principles, which may be described as the conservative paternalism of Lord Reith. There is a discourse that cannot be defined by the market. As a former Minister with responsibility for broadcasting I have seen these aspects diminish. An example may be considered from advertising. A semi-State body placed an advertisement on RTE which depicted a baby crying in a diaper because he had accidentally switched off the remote control on the television. The mother — it is always the mother — switches on the television again and the baby stops crying. The question asked in the advert is "Where do they get the power"? This is nonsense.
We are entitled to broadcasting legislation that is reflective of values beyond the commercial. We are not getting it here. I do not blame RTE for this. The capacity of RTE to interpret legislation is not at issue, although to judge from discussions the Minister and others have held with the broadcaster it is extraordinary how amenable it was to moving in the direction of commercial honey-pots. Nevertheless, as a public broadcaster RTE will be obliged to take note of the concept of citizenship being included in the legislation.
Deputy O'Shea is concerned with broadcasting as part of the institutional infrastructure of society that either facilitates social cohesion or is destructive of it by appealing to those with the capacity to purchase, although nobody suggests malevolence in this. The Minister mentioned correctly the coverage of the Houses of the Oireachtas. If she is covering the Oireachtas under the legislation, why not insert more generous citizenship in the text?
There are three choices. It is very important, which is Deputy O'Shea's position. It will be taken care of by RTE out of goodness, which is the Minister's position, or, as the people in the majority in broadcasting matters will say, the hand of regulation needs to be removed from it altogether. I do not say that is the Minister's position. She holds the middle position, which is too weak. We will all benefit from having citizenship expressly mentioned as an aim of broadcasting policy and we will be thanked for that by broadcasters in general, not just public service broadcasters.
As the Deputy has pointed out, we share much with regard to our philosophy on public service broadcasting. I agree with practically everything he said. I would like to give it more consideration given the earlier discussion. If the Deputy raises this matter again on Report Stage, it might provide an opportunity for further discussion. I want to consider carefully the issues which have been raised and that will assist me in examining this provision.
On the basis of the Minister's undertaking I will withdraw the amendment. I look forward to a positive response on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 3, 4, 5, 9, 10, 11, 12, 19, 21, 22, 25, 26, 27 and 93 form a composite proposals. Amendments Nos. 6, 7, 14, 16 and 20 form an alternative composite proposal and amendment No. 1 to amendment No. 12 and amendment No. 1 to amendment No. 21 are related. It is proposed to take amendment Nos. 3 to 7, inclusive, amendment Nos. 9 to 12, inclusive, amendment No. 1 to amendment No. 12, amendments Nos. 14, 16, 19, 20, 21, amendment No. 1 to amendment No. 21, and amendments Nos. 22, 25, 26, 27 and 93 together by agreement.
I move amendment No. 3:
In page 6, subsection (1), to delete lines 25 to 28 and substitute the following:
'contract' does not include any contract that comes into being between the multiplex company or the transmission company and another person by virtue of the entering into arrangements by the multiplex company or the transmission company with that person under section 11(1) or 12(1);”.
As Deputies will be aware I outlined the general context of the legislation earlier and I do not propose to go into that detail now. This amendment is the first in a series to give legal effect to the Government's decision to provide for the establishment of a digital terrestrial television platform through the separate designation of a transmission company and a multiplex company. In addition to this amendment, the series includes amendments Nos. 4, 5, 9 to 12, inclusive, 19, 21, 22, 25, 26, 27 and 93.
To provide for the separation of the transmission and multiplexing activities and the designation of the two companies sections 5, 7 and 11 which deal with the establishment, licensing and obligations of the single DTT entity envisaged in the original draft need to be amended to cater for the establishment, licensing and obligations of two separate companies.
The original section 5 dealt with the establishment of the designated company. Amendment No. 12 proposes the deletion of the original section 5 and the introduction of a new section 5 dealing with the establishment of a transmission company. Amendment No. 21 proposes the insertion of a new section 8 which provides for the establishment of a multiplex company. The original provisions of section 5 are applied to both companies with a number of minor amendments.
The original section 7 deals with the functions and licensing arrangements of the single designated company. Amendment No. 19 proposes the deletion of the original section 7 and the introduction of a new section 7 providing for the licensing arrangements for the transmission company. Amendment No. 22 provides for the creation of a new section 9 dealing with the licensing arrangements of the multiplex company. The provisions of the original section 7 have been disentangled and applied to the transmission and multiplex companies as appropriate with a number of minor amendments.
The original section 11 dealt with the obligations imposed on the designated company in relation to digital and analogue broadcasting services. Amendment No. 25 provides for the deletion of the original section 11 and the introduction of a new section 11 dealing with the obligations imposed on the transmission company. The obligations are similar to those that would been imposed on Digico in so far as they relate to transmission in the original section. Essentially, the transmission company will be obliged to transmit the analogue broadcasting services of RTE, TG4, TV3, Today FM and any other independent radio station that requires transmission facilities. It will also be obliged to transmit the output of the multiplex company digitally.
Amendment No. 26 provides for the insertion of a new section 12 dealing with obligations imposed on the multiplex company. The provisions of the original section 11 have been applied to the multiplex company as appropriate with a number of minor amendments. The company will be required, inter alia, to carry the free to air services of RTE, TG4 and TV3 in digital form. The company will not be allowed to charge viewers for reception of these services. These services will accordingly remain free to air at the point of reception to those who invest in the necessary receiving equipment.
Section 11(5) of the original Bill excluded the designated company from certain obligations relating to specified codes and rules on the law of defamation. Amendment No. 27 provides for the introduction of a new section 13 to deal with such exemptions in so far as they relate to the transmission and multiplex companies. While the new section 13 includes a number of additional exemptions the overall purpose of the new provisions relates directly to the original section 11(5). Essentially both companies will not be responsible for the content of material carried or transmitted when the company has no control over such content.
Consequential amendments to the definitions section, section 2, and the Long Title were also necessary to cater for the designation of the two companies. Amendments Nos. 4, 5, 9, 10 and 11 propose the deletion of the term "designated company" as it no longer applies, and the insertion of new definitions for "digital multiplex licence", "multiplex", "multiplex company" and "transmission company". Amendment No. 93 proposes a change to the Long Title to cater for the designation of two companies instead of one. The purpose of amendment No. 3 is to ensure contracts entered into by the transmission company under section 11(1) or by the multiplex company under section 12(1) for the transmission or carriage of television services are not confused with the content contracts that will be issued by the Broadcasting Commission of Ireland to those wishing to develop new television services.
These amendments form one package and to accept amendment No. 3 is to accept the entire package. I appreciate the amendments to my amendments Nos. 12 and 21 proposed by Deputy O'Shea would not unravel this group of amendments. The transmission company and the multiplex company would be retained in public ownership. This amounts to a fundamental difference of policy with regard to the establishment of the DTT platform. The Government has decided it is in the public interest that the platform should be developed as a commercial enterprise.
The original notion for the sale of the existing broadcast transmission infrastructure came from the RTE Authority as a basis on which to proceed and recognised the magnitude of the capital investment necessary to roll out the DTT platform to viewers. DTT will require significant investment in the construction of the transmission network, the provision of reception equipment to viewers and putting together attractive content packages.
DTT will have to compete against other digital delivery platforms, including cable, MMDS and satellite. It may also have to compete with telecommunications operators using DSL technology. DTT will have to be seen to compete fairly and it will also have attendant risks associated with the significant investment more appropriate to the private sector than to public ownership. Accordingly, I must oppose these amendments.
Amendments Nos. 6, 7, 14, 16 and 20 are in the name of Deputy Clune and it should come as no surprise that I have to oppose these amendments. It is clear from any objective reading of the proposals that the amendments' objectives in so far as it can be ascertained conflicts fundamentally with Government policy as expressed in my amendments before the committee. In the first place, the Government has decided that while there are important cross-departmental and cross-agency issues involved, the introduction of DTT is a broadcasting policy initiative. This is why I, as Minister with responsibility for broadcasting policy, am bringing forward broadcasting legislation for this committee to consider.
The amendments proposed by Deputy Clune involve competitions organised by the Director of Telecommunications Regulation followed by the issuing of licences. On my reading, most if not all of this could be achieved via statutory regulation under the Wireless Telegraphy Acts without the need to trouble this committee. Interestingly, while the amendments give responsibility for DTT to the ODTR, they considerably impinge on that agency's independence.
I have been at pains in drafting my amendments to limit intrusion into the existing functions of the ODTR to the minimum, consistent with the achievement of Government policy. Some of the criteria proposed for the awarding of multiplex licences seem to ensure that such licences will not be commercially attractive to anyone.
The other major policy difference is that Deputy Clune proposes that the six national multiplexes be licensed to separate operators through separate competitions. The main rationale behind the Government's proposals to license the six multiplexes to one operator is the belief that the platform will need a strong driver with a strong relationship with potential subscribers.
The alternative approach proposed by Deputy Clune would involve up to six separate operators with separate objectives and approaches. There is nothing in these proposals that would require a concerted approach by the different operators. Which one of them would take responsibility for the original investment? Would all operators, including the operator of the educational multiplex and the commercial pay TV multiplex, have to contribute in the same way to the ODTR subscriber equipment fund? The proposed fund would be something of a radical departure for the ODTR. Experience in other administrations has shown that this could lead to long delays in the establishment of services. The Deputy's approach seems to be modelled on the approach to DTT adopted in Sweden. To the best of my knowledge this approach has not yet been spectacularly successful.
I am determined that the legislative regime put in place is one most likely to facilitate the achievement of the objective. The new section 6, as proposed by Deputy Clune, would see the sale of RTE's network business. However, in the amendments proposed by the Deputy, there is no obvious connection between the sale of the business and the establishment of the DTT platform. The intention behind selling the RTE network business is to provide a platform for the launch of the digital transmission business.
The amendment also proposes that RTE will retain the right to use its broadcasting frequencies. I do not understand the intent of this proposal. The RTE authority will not be the operator of the transmission system after the sale and, therefore, has no need to retain the right to those frequencies which have, in any event, been licensed to it up to now by the ODTR. The proposal if adopted would seem to leave the purchaser of the transmitter network without the necessary licences which would permit the legal use of the transmitters. Under my proposal, the transmitter company is required to carry RTE, TG4 and TV3 transmissions. This will effectively guarantee that the broadcast frequencies are used for the broadcasting purposes for which they were originally assigned.
Apart from the fact that they conflict with Government policy, I must also oppose these amendments on the grounds that they confuse content and infrastructure regulation in a most unhelpful way for the future. They also seem to ensure that digital television in this country cannot amount to a successful commercial operation. I would not denigrate the importance of the work and responsibilities of the ODTR as regards DTT, frequency management and telecommunications regulations. However, the Government has decided that broadcasting should be regulated from a broadcasting standpoint rather than from a frequency management or telecommunications perspective.
There are unanswerable cultural reasons for this approach which are reflected elsewhere in the Bill. To accept these amendments would simply reduce the activity of broadcasting to the provision of just another telecommunications services. Therefore, I must oppose these amendments.
Chairman, are we discussing all the amendments or are we still on Part II of the Bill?
We are on the Minister's amendment No. 3 and the grouping I read out. We are also dealing with your amendments Nos. 6 and 7 which you can discuss with amendment No. 3.
The first point of my amendments is that the Minister is giving herself the right to designate a company. This is not the correct approach as that decision should be for the ODTR. The Minister said she will have consultants available to her to help her decide on the transmission company but she is retaining a significant power. I object to this approach on principle as that power should rest with the ODTR.
My amendments have to tried to ensure a system whereby the ODTR would be in a position to grant a licence and that the company involved would give certain undertakings as to the roll out it would provide and the services it could provide.
Amendment No. 6 tries to define a digital multiplex. I have tried to grasp the concept of a digital multiplex and have suggested it means a digital signal which has been formed by combining two or more signals which originate from different sources. These definitions are important for the remaining sections of the Bill.
A television multiplex is a digital multiplex which not only carries television signals but other signals which are directly or indirectly related to a television programme in the same multiplex and independent, non-related television signals. A digital television multiplex capacity is a capacity to deliver the signal of television multiplexes to a geographical point. A television multiplexer is a machine which takes several digital signals of independent source and combines them into a digital multiplex. DTT is a digital television multiplex which is intended for distribution over terrestrial broadcast frequencies. A DTT multiplex licence is a licence to multiplex and to broadcast a digital terrestrial television signal.
I have tried to insert these definitions because the Minister has changed her original definition in the new section. I am trying to address the fact that the term means "hardware". Multiplex is not an object; it is an element of infrastructure but it is not equipment. The technical dictionary definition of the verb multiplex is "to transmit two or more signals simultaneously on a single wire, bus or channel". The machines used for multiplexing are referred to as the equipment for combining the signals. The usage of the term I propose is in line with engineering terminology. In the original legislation the definition would have excluded all hardware which carried the signal.
The Minister does not define multiplex in the material sense in section 2. It does not seem to conform to the usage of the terms in the remainder of the Government amendments. I am unclear on that.
Deputy Clune is approaching this from a different perspective from me and the Government in that she has adopted an engineering approach. It is most important that the legislation is drafted from a cultural and broadcasting perspective rather than a frequency management or telecommunications perspective. That is why I cannot accept the general principle in her amendments.
The Deputy referred to the responsibility of the ODTR but at the same time the amendments seem to impinge on the independence of the ODTR and that is difficult to understand. The proposals regarding multiplexes would necessitate long delays in their establishment. The Deputy proposes that the six national multiplexes should be licensed to separate operators through separate competitions. The main rationale behind the Government proposals to licence the six multiplexes to one operator is the belief that the platform will need a strong driver with a strong relationship with potential subscribers.
I reiterate in regard to the new section 6 that the RTE Authority will not be the operator of the transmission system after the sale and, therefore, there is no need to retain the right to those frequencies which have in any event been licensed up to now by the ODTR.
The Deputy also asked for a definition of "multiplexes". We refer to the activity of the multiplex and I was referring to the difference between transmission and retail and within that the responsibilities with regard to the multiplexes themselves.
We are coming from different perspectives and that is why I cannot accept the amendments. They would necessitate a totally different approach to broadcasting which I could not accept.
My amendments are in line with current EU thinking and the framework directive which is being drafted and which it is intended to be implemented by end 2001. The Minister's proposal is contrary to the directive. I accept her point regarding public service broadcasting which we agree is essential and must be protected but nevertheless she cannot divorce herself from telecommunications regulation because it impinges on broadcasting. Broadcasting networks are to be liberalised under the EU directive and she cannot bury her head in the sand and say she will not examine this because it is happening. Telecommunications impinge on broadcasting.
Why does the Minister believe she should designate the company? It is the not correct approach. The Minister should not have the power given what has emerged at the tribunals recently when previous Ministers had such power. The process should be more open and transparent.
My intention is to hold a competition which is accountable and which will kick start the entire process. I do not wish to adopt a "behind closed doors" approach and I have taken this approach because I can stand over it. It is important that the correct approach is taken from the beginning.
Telecommunications may impinge on broadcasting but I have no intention of allowing this area to take over what should be the responsibility of the Department rather than adopting the engineering approach which places an emphasis on frequency management and telecommunications. There is a fundamental difference in approach between Deputy Clune and myself and there will not be a meeting of ways on that.
Will the Minister explain how she will account for the designation of the company? What process will she undertake? How will we be assured of openness and transparency? How can we be sure that any one company over another will not have undue influence on her?
As the Deputy will be aware, a management group has been advising me and it will advise me on this issue. I am concerned that the process will be transparent and I have every reason to believe the best approach is that the policy of transparency is to the fore. There will also be a process auditor to ensure each step is accounted for in an open and public manner.
Will the Minister take the advice of the management group? Will she have the power to ignore its advice and designate the company of her choice? The process is not outlined in the legislation. It only states the Minister will have the power to designate. The Minister's references to a management group and a process auditor are not included in the legislation. It is unclear. How can we be sure that future Administrations will maintain the transparency, openness and accountability because that has not been addressed in the legislation?
The Department will also be very involved in the consultations on the appointment of advisers. The process auditor will have a remit broadly similar to that of the process auditors who have been engaged for other issues, such as the Telecom Éireann strategic alliance and the IPO processes, for the transmission network sale of DDT multiplexes and licence processes. That is the general view. The Deputy said this is not mentioned in law. She will be aware, however, that although these procedures are not mentioned in the legislation the processes are subject to natural justice and to the law. This is a very open approach to the procedure, which is important. I have gone to great lengths to ensure the best possible approach is taken to this aspect. This is why advisers have been appointed. In order to copperfasten this aspect, a process auditor has been appointed. There is a precedent that we can use the good offices of a process auditor in this regard.
We are into fairly deep waters in the technological aspects of broadcasting and so on. Before I come to my amendments, there is an issue on which I have had representations but on which I am not very clear. This relates to the fact that Teilifís na Gaeilge will have one half of multiplex, as will the television programme service contractor, TV3. The concern has been expressed to me that all the multiplexes will not necessarily be of the same strength. If a particular broadcaster has half of one multiplex, does that mean half of a particular multiplex or could that be filled over a number of multiplexes?
To put it simply, would the 2.5 channels be on one multiplex or could they be spread over it? Concern has been expressed to me that if this were to happen, and an operator was in the business of broadcasting 2.5 channels, that one of them could be weaker than the others and would not have the same level of reception as others. Will the Minister clarify that issue which concerns people who have a vested interest in what is happening?
What happens to analogue MMDS in the longer term? I am particularly concerned in the context of TG4 and the universal reception currently available. There is concern that under the DDT system areas that are currently able to receive a signal from analogue MMDS will not be able to do so. Will the Minister give a guarantee that the reception of TG4 throughout the country will continue? The availability of TG4 throughout Northern Ireland is another issue that has arisen.
The issue of the designated company has been central to the debate on the Bill heretofore. When the Minister referred to my amendments, I do not think she had in mind what I have in mind. The transmission company can have up to a 28% equity holding from RTE. That does not mean that RTE has to take up that level of equity. I do not understand why it would be of benefit to the national broadcaster to be part of the transmission company. Obviously the pay, conditions and rights of the people who will transfer from RTE to the transmission company must be safeguarded. In terms of the national broadcaster per se, I find it difficult to understand why a 40% holding in the original concept, which was to have been the transmission and multiplex aspect, or a 28% holding in the transmission company, strengthens the national broadcaster.
At the end of the day, the question we must address is how this benefits the citizens who are consuming television. Does the fact that there can be up to a 28% holding in the transmission company mean that RTE can provide a better service? Why is it strategically important for RTE to be part of this company?
This is where the Labour Party is coming from. Rather than accept this model, we are seeking clarity on the magic 28% figure and how it was arrived at. Was it a case of thinking of a figure or was a basic criterion applied during the discussions in order to arrive at that percentage? It is very unclear why this aspect is important. We need to have the matter clarified.
We believe it would be in the public interest if both companies were commercial semi-State bodies. We are not suggesting for a moment that they should not be commercial. Perhaps the Minister thought that was what we had in mind. Obviously they should be commercial and independent of the Minister, with clearly defined roles which they should carry out.
If the Labour Party is to accept the Minister's proposal, she must convince us that it is in the national interest, particularly in the interests of the citizens at large, that there should be a transmission company which may or may not have a participation from RTE and that there should be a multiplex company which will have no RTE involvement in terms of equity. As a model, how is that superior to the State holding and operating these assets in the public interest and in the best possible commercial manner?
Sitting suspended at 1 p.m. and resumed at 2.30 p.m.
Several questions were asked about the original 40% in Digico and the transmission and retail business which will now be two separate companies. The 40% referred to Digico as one company. There will now be two companies. There will be a retail business in which RTE will not have a holding and the transmission company in which RTE will have a 28% holding. The idea for the sale of the transmission company came from RTE itself which put forward proposals of which the Deputies opposite are well aware. RTE sought a holding in the transmission company. I had to ensure that RTE would not have a dominant position in that company.
Obviously, RTE did not have a multiplex business and there was no inherent ownership there. That retail company will have certain risks attaching to it. RTE and I wished to ensure that there would be a proper roll-out and that a public service approach would be taken to these issues. The discussions hinged on that where the transmission business and RTE were concerned.
With regard to the ODTR, onerous targets of more than 90% will be set over three years. The 28% referred to earlier has been reached. We have had a number of discussions with the different staff groups within RTE and we have had to ensure a balance there and that RTE did not maintain a dominant position or would be in a position to invest too much in transmission rather than programming. A portion of the Bill relates to the requirement that RTE dispose of shares if unacceptable amounts of money are coming from programming. That is a particular point of concern. It is something which can only be done by a positive order of both Houses of the Oireachtas and, therefore, it is not something which could be done on a whim. It is most important that the procedures be clearly laid out in that respect.
Why does the Minister consider it necessary for RTE to have an equity holding of up to 28% in the transmission company? How does that benefit the taxpayer, the national broadcaster or the receivers of television signals? How was the precise figure of 28% arrived at? What valuations have been received, either formally or informally, which led to that figure being set? What value does the Minister place on the transmission infrastructure? Who has valued it and where has it been valued? Did the Minister merely think of a number? Would it not be preferable to establish a commercial semi-State transmission company and a commercial semi-State retail and distribution company?
For example, if contracts regarding the transmission company or multiplex or retail company are entered into with a private company which has a majority and they do not succeed, then it will create a mess and the issue of their disposal in the public interest and getting the companies up and running again under another guise will arise. In the case of a commercial semi-State company, the assets remain in the ownership of the State. Will the Minister explain her policy position on going down either the private or public routes in relation to the transmission company?
To reiterate what I said, we are talking about two different companies, one is the transmission company while the other is the retail company. RTE sought a share in the transmission business as it has been in the business of transmission from the beginning and it has a particular expertise in the area. I was interested to ensure there would be a good and quick roll-out of DDT as it is in the national interest. There was also the question of public service ethos, universality, etc. RTE wanted to have a say in whether it was the public or private option. On foot of the discussions which took place, it was decided that RTE could not be seen to have a dominant position in this area. We have not put a value on the holding but have decided to leave this to be determined by market. The entire proceeds from such a sale will be ploughed back into RTE for programming purposes. This underlines the need for RTE to concentrate on its programme making rather than on other areas of its business.
On the issue of retail business, RTE had no multiplex business and had no inherent ownership in this area. The retail business could involve a risk and I felt it was appropriate to proceed in the way proposed in my amendments. On the disposal of shares in the transmission company, there is a requirement in Bill that RTE disposes of shares if unacceptable amounts of money are seen to be leaving the programming area, the area of main concern to RTE. However, this can only be done by way of a positive order by both Houses. In the event of this area not working as we would like, there is a remedy which can be taken by the Oireachtas. This is the best way of proceeding.
I asked the Minister the strength and capacity of the various multiplexes. There is a concern among operators that they could end up with shares in multiplexes of different strengths. Are there any rules governing this issue?
The Deputy is referring to the issue covered by amendment No. 22 which leaves the matter to the discretion of the broadcaster.
My question is a technical one. As I understand it, all multiplexes will not be of the same strength. If a broadcaster is awarded half a multiplex, it may be made up of one channel from one multiplex and another channel from a different multiplex. How will this area be regularised vis-a-vis broadcasters?
It is at the discretion of the broadcaster to demand a specific multiplex.
Obviously there are no guarantees as effectively the matter will be at the discretion of the retail company at the end of the day. Is it not the case that a broadcaster can look for what he likes but will have to take what he gets?
Under section 8 they are required to provide the multiplex.
That does not an answer my point. Under the Bill, TG4 and TV3 will get a half multiplex each. However, these may not be the same multiplex.
This brings us back to the issue of consent of the relevant broadcaster.
In other words, the retail company is obliged to give them what they look for provided it is available.
It is a requirement.
If all the multiplexes are not of the same strength, how can anything be guaranteed?
The ODTR will look at the matter to ensure there is a fair approach. It will have to comply with the legislation and will be seeking universality in relation to all multiplexes. Therefore, there will be continuity and consistency.
If I understand the Minister correctly, the ODTR will insist all multiplexes will be of equal strength.
That is what it is seeking.
Yes, but not technically guaranteed as investment and so on comes into play after that. I do not believe it is tied down sufficiently. This is not one of the functions the ODTR will be transferring. She will retain the right to insist on equal capacity of all multiplexes but how can she ensure that will be adhered to? Will there be conditions imposed regarding the level of investment or whatever?
I am informed that, as part of the technical condition, the ODTR will demand that is so for the licence.
To be clear on this, the licence will be issued to the transmission company in the first instance. Is that correct?
Yes.
Supposing that as a result of technical difficulties, lack of investment or whatever, the transmission company does not bring the transmission infrastructure up to the standard that would allow for equal strength of all the six multiplexes, where stands the multiplex company at that stage? In other words, can the retail company enter into contracts at that stage if there is a technical flaw in the transmission infrastructure?
It is a technical issue.
We are dealing with section 2 which is the definition section. While I appreciate there is continuity in the amendments on the list, if we proceed in this way there will be many sections that will not be examined.
That is what was agreed this morning.
Those of us who suggested this morning that we had some reluctance about the wide range of the grouping envisaged this difficulty. Amendment No. 22 inserts a new section. It would be useful, in the interests of making progress at this stage, if the Minister clarified some general principal points on multiplexes. There is the question of their indivisibility. That is an important point. If a broadcaster is allocated a muliplex, the point raised by Deputy O'Shea, there is nothing in amendment No. 22 that makes a requirement of universal coverage. If that is not the case, this is a matter for the ODTR which unfortunately raises the issue that the ODTR will, in fact, be bound by a different set of criteria from those of the broadcasting regulator.
The ODTR is quite likely — this is one point on which I would agree with Deputy Clune — to be somewhat influenced by draft Directive COM.284.3000, which is the new draft directive on telecommunications including any aspect of the visual or television. The broadcasting regulator would have a different view which would probably be to protect the rights of the broadcaster. Because of the new section that would be inserted by amendment No. 22, it is being left open to different kinds of construction not only as to whether there will be a requirement for universal coverage attached to the licence in general across each multiplex or whether it will be capable of being divided but as to who will issue the licence. I presume the "director" that is referred to throughout is the ODTR's office. If that is so, it must be made clear. What functions are left under the Wireless Telegraphy Acts to the broadcasting regulator? The ODTR will be operating under a separate set of criteria from a punitive broadcasting regulator.
In her submission when she came before the committee in February 2000 she stated she is only guided by ensuring equality of competition between different platforms for the delivery of digital services. We are left with the question of whether the broadcaster in a multiplex will be given an allocation which is a single multiplex or is the capacity to be spread across all multiplexes? What is to stop the multiplexes being at different strengths? Where is the requirement on universality attached to multiplexes in the legislation? Who will issue the licence?
There is another matter about which I have a difficulty and this is the problem with dealing with the section. If you take amendment No. 22, what about surrendering back spectrum capacity in relation to anything that might be allocated on the multiplex? If the legislation is to defend the broadcasting interests it cannot stay silent on that issue. Perhaps it would be of help if we could clearly state how multiplexes are to operate and who will licence and control what in each. These issues will arise because amendment No. 22 is in this grouping. It is a new section which has in it what Deputies Clune and O'Shea seek to address. I do not see where these issues are addressed in the text of the Bill.
Should there not be a definition of the issues being raised under section 2? This is at the heart of the Bill and we must tease out the matter.
First, there are the general principles of the Bill concerning policy direction. My approach is completely opposite to that of Deputy Clune. I do not believe there should be an over-emphasis on the telecommunications and engineering debate. Policy is a matter for this Department and, as I have said, it is not the ODTR who should deal with broadcasting matters but this Department. While there is a connection between the two, it is not a question of us taking policy from the ODTR or another Department.
The transmission company, a matter raised by a number of Deputies, will be regulated by the ODTR and have to adhere to the licence conditions. The multiplex company will be required by licence to provide access to broadcasters, either by a dedicated multiplex or equivalent capacity at the discretion of the broadcaster. I hope that helps to clarify some of the issues raised, particularly by Deputies O'Shea and Higgins. It is a question of looking at the thrust of the Bill and where we were going. The ODTR has a very important part to play in terms of regulation. Deputy Clune portrays a very different approach and philosophy.
On the issue of multiplex capacity, who will allocate capacity and how we can ensure universal delivery, an issue raised by Deputies O'Shea and Higgins, it would probably help Deputies on this side of the House if the Minister gave a full explanation or arranged a briefing. As the Chairman said, it is essential to the Bill.
The Minister referred to my approach to the issue as opposed to her own. The telecommunications directive which concerns broadcasting has to be addressed. While I accept that the content of broadcasting will be controlled by the Broadcasting Commission, we are talking about the delivery of broadcasting services across many platforms, be it cable, MMDS or satellite, all of which are regulated by the ODTR. DTT will be just another platform. To ensure a level playing pitch and an equal approach to all platforms of delivery, the ODTR should also be involved in the allocation of licences in an open and transparent way in the case of DTT. I fail to see why a different approach should be adopted. Will the Minister explain in what way DTT is different from cable, MMDS and satellite, all of which are designed for the delivery of broadcasting services?
I addressed the question of multiplexes on a number of occasions before lunch. Deputy Clune has proposed that the six national multiplexes should be licensed as separate operators through separate competition. It is obvious that I believe that that is not the way forward.
On the delivery of broadcasting services by way of DTT, this has to be rolled out as quickly as possible. I have explained to the Deputy that the directive is only in draft form. We still have to await its transposition into Irish law and then its interpretation. If we wait that long, we will not have any broadcasting legislation and we will have been left behind in the roll-out of DTT.
I am saying that the matter should be addressed now. It is being addressed by the Department of Public Enterprise. Whether we like it or not, broadcasting now comes within the area of telecommunications and we have to deal with it——
I beg to differ; it does not.
It does. If one looks at the directive——
With respect, I do not think that view is shared by other Members on the Deputy's side of the House. It is important to make the point that broadcasting should not be seen as an addendum to the responsibilities of the ODTR or any other Department. I am coming from the exact opposite standpoint. This underlines the very great differences in policy and approach between the Deputy and me.
With regard to the draft directive, I have to be practical to ensure the legislation is placed on the Statute Book to enable DTT to be rolled out. DTT offers the best guarantee for universal access. If we await the transposition and interpretation of a directive which is still only in draft form, we might as well forget about digitalisation for a long time to come as we will be left behind not only in the area of broadcasting, but also in the area of telecommunications. That is the reason this is a broadcasting policy initiative and not being promoted and led by any other Department. The proposals advanced by the Deputy and by me are poles apart. It is a question of one or the other; it is not a question of marrying the two sets of proposals. I cannot go along with the Deputy's suggestion.
I am not asking that we wait until the directive is in place but that we address the issue now. It is being addressed in other Departments. It is important that we address it also. Broadcasting is a difficult area to grasp. It is now possible to receive television signals through telephone lines. This is but one example of where the two areas overlap. It will be very difficult, therefore, to address the issue of broadcasting without referring to telecommunications.
We are coming at the issue from two very different sets of principles. Of course, we are saying that the ODTR has a part to play. It should not, however, have the overriding interest in terms of broadcasting. The philosophies and ideologies behind telephone and broadcasting systems are very different. It is not a question of proceeding without having discussions with all the main players. We had ongoing discussions with the ODTR and other Departments, the Department of Public Enterprise in particular, in drafting this legislation. It is not a question, therefore, of us working in a vacuum. It is a red herring at this stage to start talking about the need to look at a draft directive which may or may not come into force when the issue has been looked at from many perspectives in a practical way in the discussions which have taken place.
While I agree with the Minister's synthesis on public service broadcasting and the distinction between the functions of broadcasting which include public service broadcasting and communications in a purely technical or neutral sense, surely the logic of the position she has just expressed — let me put it very simply — is that the ODTR will issue licences to which the director may attach conditions. The only opportunity which the Minister with responsibility for broadcasting will have to ensure there is universal coverage is to provide for it in the legislation. It would be useful to take the principles one at a time——
That is what I am trying to direct the Deputy towards.
If we are to achieve this principle, the Minister should state in the legislation — she could have done so, for example, in amendment No. 22 which seeks to insert a new section — that in respect of the licence there will be a coverage requirement of 97%. If the Minister says yes to this, we can proceed to the issue of how this decision in principle can be accommodated in terms of multiplexes. If it is a general requirement which falls on the licensee, will the licensee be required to meet it from a full strength multiplex or through parts of different multiplexes? Amendment No. 22 will, probably, have another benefit. All this will come into force when there is a switch from analogue to digital.
The next question, which we can discuss later in relation to other amendments, relates to the use of the other technologies to assure 97%-100% coverage for TG4. One cannot begin to deal with this in terms of methodology unless one has actually legislated for the principle. It seems that in amendment No. 22, which puts in the new section, there is nothing that requires this of the ODTR. This is our one chance to make sure there is a requirement in the broadcasting legislation to do that. This is on this one issue of universal coverage and both the principle of it being written into the legislation and the mode of its delivery.
I am repeating something that I realised was not addressed. It relates to the issue of DTT, cable and MMDS. Could the Minister explain how operators will be awarded their licences? The proposals here are that the Minister will designate the DTT licence and the director will award it. There is a difference. There should be equal platforms, equal methods of delivering broadcasting spectrum.
DDT was chosen as the platform because of its universality. Universal access was one of its most attractive attributes. The technical regulation with regard to the Broadcasting Commission is, of now, a matter for the ODTR. I do not, therefore, quite understand why Deputies are raising questions in terms of the ODTR.
The guarantee of coverage is another issue that has been raised. Obviously one would want 100% coverage but that cannot be guaranteed because any system of transmission, even satellites, may face difficulties in certain areas. It will always be difficult to serve certain areas because of their geographical location, regardless of what platform is used. The ODTR has directed that she will set onerous coverage requirements for DTT. As I said earlier, they will have to be complied with. However, all the legal provisions in the world cannot overcome the laws of physics. There will be pockets where that will be difficult. Again the DTT platform was the best guarantee of universal access. That is the reason it was chosen, and that is what we are putting forward.
The ODTR is aware that Government policy is that DTT should be a universal access medium. There is no indication that the ODTR has any difficulty with this. The Bill impinges to the minimum extent into the workings and remit of the ODTR. It seems that the effect of Deputy Clune's proposals would be to give certain directions to the ODTR and, at the same time, tell the ODTR how to carry out those directions.
My proposals were just setting selection criteria for the award of a licence, which is similar to what Deputy Higgins proposed — that we should include criteria in the legislation so as to be clear on what is required of a DTT licensee.
Let me clarify my point, which is on that raised by Deputy Clune. The position at present is that the public service broadcaster is expected, under existing broadcasting legislation, to aim for universal coverage. In current legislation which we inherited, the broadcaster and the transmission authority are the same entity. We are now drawing a distinction between the public service broadcaster and the transmission company. The issue is why should the transmission company not have the same obligation that the public service broadcaster has carried up to now under existing legislation. The Minister's last comment was that the ODTR is aware of the thinking in relation to this. Would it not be much better to express this in legislation so that no one would be in any doubt, then telecommunications could be allowed to do what it should, but broadcasting will have said what it expects and the transmission company, in turn, will have the benefit of clarity in relation to the function that has been allocated to it? The transmission company will have a clear set of expectations. We will encounter the accommodation of the methodology later in the Bill. The issue now is an issue of principle — whether universal service should be retained — and we should deal with that issue first.
Universal coverage is what we would wish for but, however much we want that, there will be difficulties whatever platform is used. Those are practical difficulties to do with the laws of physics. That is a different situation. No one can guarantee 100% coverage on any platform.
Sticking to this point precisely, if in the real world we switched off analogue and announced the coming into existence of the digital players, and the transmission company were required by legislation to seek to achieve universal coverage, it could use other forms of broadcasting, for example, MMDS, to fill the gaps in the trouble spots the Minister mentions. I am not arguing against physics. I am stating the principle that the new transmission company should carry the obligation of seeking universal coverage. No one is asking it to fly to Mars. It is just that it should have that obligation. That has effects not only in relation to digital delivery but also to other forms of communications technology. If it is in the legislation, it will be very clear what might be expected by way of licensing conditions. Let those who put in the conditions do that; that is their business. The principle will then be established in broadcasting legislation. That is the case I am making.
Is the Deputy saying that a resolution of his point lies in a definition in the interpretation, that it requires another amendment?
I can help in relation to that. I suggest, if it is appropriate, that when discussing this group of amendments we amend amendment No. 22 between now and Report Stage to accommodate this point. That would not change the thrust of whatever we agree or disagree, and I happen to be on the Minister's side in relation to the public service side arguments and the distinction between telecommunications in general and broadcasting. That stated, what I am trying to avoid is the creation of a vacuum in which it would be unclear whether "universal" had in fact migrated into the new legislation from where it is in existing broadcasting legislation. That is an important point because to expect the ODTR to put it in as a condition contravenes to some extent the raison d’etre of the ODTR, which is to ensure balanced competition and so forth, and she does not carry the same aims of inclusiveness as, say, a broadcasting Minister. It will strengthen the broadcasting end of the equation in this difficult equation if it is expressed legislatively. One could possibly do it in the new section 8 which is being put into the legislation as amendment No. 22.
Again we come back to what we wish for and what is feasible. The whole question of universality is a very important one, and it is a cherished one where public service broadcasting is concerned. The Deputy and I share those views. However, if there is a problem with DTT in any one area for geographical or other reasons, I am told there will be a similar problem with, for example, MMDS. We will get nowhere if we continue to seek a guarantee of coverage because I am advised that one cannot give a guarantee for 100% coverage because of technical difficulties.
Can the Minister not seek in the licence requirements that as near as possible to 100% coverage would be guaranteed and that the serving channel would be submitted with the licence application? The ODTR can inspect it to see how the serving channel would deliver.
Legislation cannot be a wish list; it must be practical and capable of being implemented. One does not include a provision that one knows cannot be implemented for technical reasons. On the question of 100% coverage, which all of us would want, we cannot guarantee it. Unfortunately, that is the position. If there is problem with DTT there will be a problem with MMDS. No matter how much we would wish to have 100% coverage we are not in a position to guarantee it. Certainly one does not include in legislation a provision saying this should be sought when we know it is not achievable.
This debate arises from a specific issue, whether equal strength across the six proposed multiplexes can be achieved. In my humble way I will endeavour to bring the matter back to basics. Basically, the transmission company and the retail company will provide the highway and the broadcast material will be rolled out along that highway. We want to see DTT in place as speedily as possible. I see a situation where the transmission company will be licensed by the ODTR and the retail company will be licensed by the ODTR, but we must address the issue of strength. What we are seeking is not quite universality but that the six multiplexes would be of equal strength. That is the basic issue we started from.
As my colleague, Deputy Michael Higgins, rightly pointed out, the ODTR has to concern itself in the overall with competition between the different platforms. What we are seeking is a vehicle whereby we can ensure that the six multiplexes are of equal strength in so far as that is possible. I accept we cannot override the laws of physics where we know there are difficulties. Obviously, there are aspects of this which relate to investment, investment in equipment that is necessary to achieve equal strength among the six multiplexes to avoid a situation where a particular broadcaster could end up with a curate's egg part of a multiplex which would not be part of the same multiplex but spread over a number of multiplexes.
We are trying to ensure that the highway is as equitable and technically efficient as possible. The only way to ensure this is by means of legislation. I am concerned where there are a number of players, two separate companies and the ODTR, that there is not a sufficient focus. I am concerned also that the actual rolling out would be delayed. How can we ensure that what is on offer across six multiplexes is of an equal capacity in strength?
As the Deputy says, we come back to the initial point from which the debate stemmed. I understand the Deputy is worried about the strength of the different multiplexes. What we are talking about here is six multiplexes but what will actually be needed is two multiplexes — one for RTE, a half for TG4 and a half for TV3. The inequities which the Deputy is concerned might arise will not happen in the roll-out of the indigenous stations. Given that we are talking about two multiplexes there will no question of that inequity. I am the Minister with responsibility for broadcasting and I would see it as the responsibility of the incumbent to select the multi operator. I will be looking for an ambitious roll-out backed up by the reasonable business plan and all that goes with it.
While the Deputy asked for equal strength for the six multiplexes we are only seeking two out of the six. The other four will be a matter for the multiplex company to explain. Certainly for the indigenous stations, in which the Deputy is particularly interested and he mentioned TG4, I do not see the difficulty arising.
Another issue arises here. We are talking about investment, not alone by the companies but by the individual viewer because a set top box will be required. Effectively there will be two high quality multiplexes which I welcome. At the end of the day will what is left on offer, in terms of broadening out the range of broadcasting services available, be inhibited because of the quality of the other four multiplexes, on the assumption that they have to be of a lesser quality than the two multiplexes to which the Minister referred? Is there not something happening in the market place whereby other platforms are making substantial progress?
The greater the delay in broadening the range of services that will be available through DTT, the more likely it is that more and more of the market will commit itself to other operators and that the number of customers could fall below a critical point where no private investor will come in and provide additional channels, whether pay-per-view or subscription. I am concerned that too much of the market will have moved to other platforms. This is a particularly good platform in terms of getting quality service to the more remote areas where there are problems. Is it realistic to go ahead in the context of two high quality multiplexes while, by definition, the others are of a lower quality? How attractive might they be to other people?
I would not like the Deputy to go away with the idea that there is a two tier multiplex system and that actual conditions would be attached. That is not so. What I said was that the two multiplexes would be taken up straight away by the indigenous stations, one for RTE, a half for TG4 and a half for TV3. The Deputy need not be worried about a two tier system because that will not arise. It is not a question of so many multiplexes being of a higher standard than others.
With regard to the four multiplexes that would be taken up at a later stage the operator has to ensure there will be a commercial imperative on the operator to roll out the infrastructure and to market them strongly. The four commercial multiplexes will not be inferior. The quality throughout the system would have to be consistent. That is what I was referring to previously. It is not a question of a two tier system. There has to be continuity and consistency; that is what we are about.
Perhaps the Minister might clarify another small point that could be dealt with quickly. The transmission company is dealing with transmission not only of a digital kind, and much of what is contained in the amendment deals with digital delivery, but in respect, say, of TG4, which is the example we have been using, which has built up to near universal coverage — that is all one can aim for — surely one must envisage that the right to that is eroded if no duty falls on the transmission company to seek to achieve the coverage. I am thinking, for example, of the date of switch off and the obligation that falls on the digital operator. Why should the transmission company not carry the obligation that currently exists to mix digital, analogue and any other method to seek to retain what has already been covered? When I established TG4, or TnaG as it was then, we were under pressure to use every means to maximise the coverage. It is not clear to me if any obligation in this regard falls on the transmission company.
With regard to the transmission company, it will deal with both analogue and digital. The switch off of the analogue system, as I am sure the Deputy is aware, will not happen overnight. That will only be done on foot of possible discussions and not for a considerable time — there is even talk of ten or 15 years before the phase out of analogue would begin so that part of the Deputy's query should not cause him concern.
To take up the Minister's point, it is because they are dealing with both that it would be of value in the legislation to have an expressed obligation that they seek to combine their different methods of delivery to achieve what is an existing obligation. They are referred to in the new section almost entirely as a digital delivery system but if an argument broke out, will they claim the right to switch off the analogue system? The Minister may say they are not encountering an obligation. That is the value. I have advocated the inclusion of reference to the project of seeking to achieve universal service and the Bill would benefit in several ways if that is expressed.
To clarify that point, the transmission company must transmit the analogue services of RTE, TG4 and TV3.
The issue, however, is the combination of analogue with digital and others to seek to achieve universal coverage. I urge the Minister to return to this point of universal coverage on Report Stage.
There is no provision that allows the transmission company to stop, so it is not a question of a switch off in that sense. There is the obligation.
That is a kind of negative logic, if the Minister does not mind my saying so. It would be better if it was expressed positively. Following the Minister's point, in terms of the continuity in legislation, which is always welcome, it continues the public service ethos of previous legislation into the new Bill. That is my reason for it.
While I would share many of the views expressed by the Deputy, I cannot accept his reasoning in this matter. He may say that mine is negative logic but if it is, it is logical.
The Minister said in her opening statement on this group of amendments that to accept amendment No. 3 would mean an acceptance of all amendments. Am I correct?
Yes.
I am not prepared to agree to amendment No. 3 without discussing the other amendments. We are guillotining the discussion on the other amendments.
It is one package and to accept amendment No. 3 would be to accept the entire package I have put forward in the amendments.
As I understand it, by accepting amendments Nos. 3, 4, 5, 9, 10, 11, 12, 19, 21, 22, 25, 26, 27 and 93, the principle underlying the Bill is covered. In regard to the other amendments Nos. 6, 7, 14, 16 and 20, we have had a discussion on Deputy Clune's amendment No. 6.
I had not exhausted that discussion.
We have already had a preliminary discussion on amendment No. 6.
The Minister said that by accepting amendment No. 3 we will accept all other amendments in her package.
I have to put each amendment so while the Minister can talk about the principle in the section, I have to put each amendment.
Will the Minister explain the wording she used about accepting amendment No. 3?
As I said, we discussed the amendments earlier and if my amendment No. 3 is accepted, that encompasses the entire package in terms of the principle and the philosophy of that particular section.
When we discussed the way we would approach this matter, I was concerned that there would be duplication but I accepted the Bills Office arrangement in regard to the suggested grouping of amendments for debate, and the precedent is to accept these arrangements. As there are so many amendments consequential on these sections, I intended to start with the amendments tabled by the Deputies.
Do I understand correctly what the Chairman is saying? If amendment No. 3 is dealt with, that does not preclude debate on the further amendments that are grouped here, is that correct?
That is what I am trying to get through before I put amendment No. 3. As I understand from the Bills Office, these are alternative proposals. Deputy Clune, could you return to your amendment No. 6 please?
I could do that.
We need to decide on procedure here. Amendment No. 3 is technical. If we are to have only one vote on all the amendments, as grouped, we will have to return to——
In principle, by accepting amendment No. 3, we will accept the principle underlying all the Minister's amendments. Therefore, we could not oppose any other section at a later stage as we would have accepted the principle.
We could.
There is nothing to prevent us voting on the amendments separately as they arise.
That is what we should do.
With regard to amendment No. 3, why is the definition of contract necessary? The amendment states that the definition of a contract will not include a contract entered into under section 11(1) or section 12(1).
That is to ensure that contracts entered into by the transmission company under section 11(1) or by the multiplex company under section 12 (1) for the transmission of character of television services are not confused with the content contracts that will be issued by the Broadcasting Commission of Ireland and to those wishing to develop new television services. That definition is included to avoid confusion.
We do not have a problem with that.
There is a contract with the transmission companies and a separate contract with the content providers.
Yes.
Amendment agreed to.
I move amendment No. 4:
In page 6, subsection (1), to delete line 35.
As I understand it, the purpose of this amendment is to delete what is now redundant terminology.
Yes.
Amendment agreed to.
I move amendment No. 5:
In page 6, subsection (1), between lines 36 and 37, to insert the following:
" 'digital multiplex licence' has the meaning assigned to it by section 9;”.
Section 9 is referred to here. Amendment No. 9 states that a multiplex has the meaning assigned to it by section 8, while amendment No. 5 states that a digital multiplex licence has the meaning assigned to it by section 9.
If amendment No. 22 is accepted, the appropriate reference will be section 9. I think we are speaking about section 8.
It would be helpful if the Minister indicated which part of the substantive legislation is affected by her amendment.
What was the Deputy's question?
The Chairman might be able to assist me on that.
Amendment No. 5 states a digital multiplex licence has the meaning assigned to it by section 9. I understand that means section 9 will be replaced.
I may be wrong but my understanding is that if amendment No. 22 is accepted, there will be a new section 9. Amendment No. 5 has the meaning assigned to it by section 9 and we should note the sentence in brackets below the amendment, that section 9 is the appropriate reference if amendment No. 22 is accepted. The original grouping of amendments included amendments Nos. 9 and 22. The vote on amendment No. 5 will affect the discussion on amendment No. 22. In dealing with these amendments, one would have to be satisfied that the discussion on amendment No. 22 has been completed.
We discussed the principle underlying amendment No. 22. Are members satisfied regarding this amendment? They are not. I call on the Minister to give an explanation of amendment No. 22.
As we have had a long discussion on that, it is a question of whether the committee can agree with the suggestions put forward.
I accept that, but it might be helpful if the Minister read out the explanation for amendment No. 22 to section 8 and then I will put amendment No. 5.
I will go through it again. Amendment No. 22 applies the provisions of the existing section 7 in so far as they relate to the multiplex company. The new section provides that the multiplex company will be licensed and regulated by the ODTR under the Wireless Telegraphy Acts and the provisions of this Bill. As envisaged in the original Bill, RTE, TG4 and TV3 will be guaranteed access to multiplex capacity and the Minister will have the power to direct that multiplex capacity will be reserved for broadcasters in the North.
While the new section is required to give effect to the Government decision to proceed by way of two transactions, I have also taken the opportunity to introduce a number of additional provisions, mainly for the purposes of clarification, whereby the ODTR can regulate charges imposed by the multiplex company, RTE, TG4 and TV3 can decide whether their allocated multiplex capacity will be delivered via dedicated multiplex or by equivalent capacity and the ODTR may issue further multiplex licences.
Subsections (1) and (2) provide for the issue of the digital multiplex licence by the ODTR. Subsection (3) provides for the guaranteed access to multiplex capacity for RTE, TG4 and TV3 as a condition of the licence. Subsection (10) and the table to the section make it clear that dedicated multiplexes or equivalent capacity can be provided at the discretion of the broadcaster concerned.
Sections 4 and 5 remove the obligation to provide guaranteed access for these services, after an appropriate period, if the broadcaster is not using it. The duration of the appropriate period will be decided by the Broadcasting Commission of Ireland.
Subsections (6) and (7) empower the Minister to direct the commission to request the multiplex company to provide guaranteed access for television services in the North. The intention here is that this power will be used and for reciprocal arrangements for transmission of broadcasters based on this side of the Border for carriage in the North.
Subsection (8) makes it clear that the provisions of the Bill are not designed to prevent the multiplex company from providing information services provided any other legal obligations are met. Subsection (9) clarifies the director of telecommunications regulations can regulate the activities of the multiplex operator, particularly the charges for services. Subsection (11) makes it clear that the director's powers to issue further digital multiplex licences to the multiplex company or other persons is not curtailed by the provisions of the Bill.
There are a number of issues I wish to briefly reiterate in response to what the Minister said. Is she prepared to make any concession in terms of measures to ensure universal coverage, as far as that is possible? It might be more productive if I dealt with one point at a time.
Given that this has taken some time to discuss on Committee Stage and that Opposition Members have put forward a number of proposals, I will look at it but I cannot guarantee that I will be able to arrive at a suggestion with which the members will agree. However, I will consider it.
Will that include consultation with the ODTR's office to see what can be developed?
That will be nothing new for me or the departmental officials. We are in constant contact with the ODTR and I can contact her again with regard to this issue.
I accept the Minister's undertaking in good faith. We are on the same side in the context of ensuring that what is available is of the highest quality. I am also concerned about the bureaucracy that might develop among the three different bodies in relation to this. Something that has been the cause of considerable aggravation in terms of other platforms is electronic information services, particularly programme guides. I believe the indigenous stations should be given pole position.
The EPGs, as they are known, have caused a great deal of discussion. In Part II, section 12, there is direct reference to the electronic programme guides.
That is not related to the section I am dealing with.
Will the Minister tell the committee how she envisages spare capacity being used? Subsection (8) of amendment No. 22 in the Minister's name says that nothing in the section shall be construed as preventing the multiplex company from using one or more of the multiplexes for the purposes of providing electronic information services in accordance with the requirements, if any, imposed by any enactment related to the provision of the services concerned which is for the time being in force. Does the Minister envisage that what are facilitated under subsection (8) are commercial services for sale on the market without any obligation in relation to access?
Electronic information services can be used for selling products but they can also be used for giving citizens advice in relation to rights and so forth. What is the status of subsection (8) in relation to this? Is the discretion in relation to its use entirely with the multiplex operator? In terms of what is happening in the other multiplexes, what happens with surrendered spectrum or spectrum that is not used fully for programming? Finally, will the answers to these questions be within the remit of the broadcasting regulator?
With regard to the first question, this will be between ODTR and the multiplex company because it is a non-broadcast service. What was the next question?
What falls legitimately within the remit of the ODTR and the Minister with responsibility for broadcasting or the broadcasting regulator is not always clear. Citizen information, for example, is not a market commodity. I will probably be told that the ODTR will be sensitive to all this but I am a person of reasonable faith, not blind faith.
The new technology is capable of different uses, some of them for commercial gain and others for the deepening and strengthening of communications. The Minister mentioned a European example earlier in relation to Sweden. In Denmark, however, the major thrust of introducing the new information technology services, at least in one document I read many years ago, was to have citizen access first and let the market fruits come later. Subsection (8) is a bit bald in this respect. It says that having allocated two of the multiplexes, it is fair game what use is made of the others. Obviously, people will not come in as philanthropists; they need to make money.
Are there not aspects of communication that will be done through electronic means? I am also thinking of educational purposes. We should not drive ourselves crazy by asking where broadcasting commences and delivery of new telecommunication services begins but there is an area in there in relation to subsection (8). That subsection is where one would include any aspirations one had in this regard.
The Minister asked about my second question. If one takes spectrum as the good which is involved here, when one has allocated that which is necessary for good coverage in relation to public service broadcasting, in some countries with right wing regimes there have been what are little less than spectrum options. I am trying to ensure that we will not have what I call spectrum surrenders. The Minister might tell me this is a matter for the ODTR but the ODTR has not convinced me that she is wiring up every citizen from Bohola to Blarney. She seems far more interested in delivering services to those who can pay for them. If we want to advance this, we should think about what might be included in subsection (8).
With regard to the spectrum surrenders, that refers to the must carry services and the broadcasting commission will decide the time that will be made available. I do not see how that would add to subsection (8).
What about the other question? Subsection (8) is the open sesame for the commercial interest.
What I understood the Deputy to be referring to earlier are not considered broadcasting services. They are non-broadcasting services.
I am simply talking about the area in between. On platforms, the ODTR is dealing with issues of competition in the delivery of services, as she is at pains to point out in her paper at various times. There is an area in between however. There is the broadcasting of programmes and there is the use of the capacity to communicate in a broadcasting way for public information. Public information falls between the two stools.
That is the nub of the issue. The information services are not broadcasting services and, as such, would not come within the scope of broadcasting legislation. That is where the Deputy and I differ.
With regard to the authorisation of a multiplex company, all the company will be doing essentially is combining digital signals for transmission. It will be a valuable licence and a date is specified by the Minister. Why does she involve herself at this stage in authorising the director on a specified date?
It is for the general roll-out and to kick start the operation.
I will not oppose amendment No. 5 on the basis that we can consider it between now and Report Stage and table amendments then if we so wish. I have a problem with other issues, but I am prepared to accept this amendment on the basis that we can return to it.
I am not giving a guarantee that I will be able to come back with a proposal which will be agreeable to the Deputy, but I will consider the matter.
We accept the Minister's good faith.
Amendment agreed to.
I move amendment No. 6:
In page 6, subsection (1), between lines 36 and 37, to insert the following definitions:
" 'digital multiplex' means a digital signal which has been formed by combining two or more digital signals which originate from different sources or are otherwise independent;
'digital television multiplex' is a digital multiplex which carries television signals, other signals which are directly or indirectly related to a television programme in the same multiplex and independent non-television related signals;
'digital television multiplex capacity' is the capacity to deliver digital television multiplexes to a geographic point;
'digital television multiplexor' is a machine which takes several digital signals of independent source and combines them into a single digital multiplex;
'digital terrestrial television (DTT) multiplex' is a digital television multiplex which is intended for distribution over terrestrial broadcast frequencies;".
Multiplexes are the subject of much discussion. A digital multiplex means a digital signal which has been formed by combining two or more digital signals. That is different from a digital television multiplex. The capacity of the multiplex is different. These terms are used throughout the Bill and I want to include these definitions. A digital terrestrial television multiplex is also different from a digital television multiplex in that it is intended for distribution over terrestrial broadcast frequencies. The Minister said she cannot accept my amendment, so I will withdraw it and perhaps table it again on Report Stage.
There are a number of technical aspects to digital terrestrial television, particularly multiplexes. Perhaps it would be worth considering between now and Report Stage the possibility of strengthening the interpretation section by including clearer definitions. I will not reiterate the points already made but such a move would improve the Bill.
I am not able to give guarantees but I will look at these issues as a result of the debate we have had.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 7, subsection (1), to delete lines 23 and 24 and substitute the following:
" 'MMD system' means a multipoint microwave distribution system used for the transmission of broadcasting services on a point to multipoint basis;".
This technical amendment has been tabled on the basis that the original definition of the MMD system was too broad. The new definition is more technically correct and consistent with the regulatory regime of the ODTR.
Will MMDS continue as it is? I have heard that MMDS and digital are not compatible, although I do not know if that is true. The fact that it was considered necessary to redefine MMDS suggests it will continue. Deputy Higgins already mentioned universal coverage of TG4. The Minister assured us there is no short to medium term plan to remove MMDS or to withdraw the licensing of that system. Can she guarantee that will not happen until universal coverage of TG4 is achieved by the digital terrestrial system? People are concerned that some remote areas could lose their coverage of TG4 in the changeover?
I made that point earlier in the debate. I understand that TG4 is not carried on analogue MMDS at present.
I understand it could be an option with the removal of the present analogue system. If there is not universal coverage under the digital system, will MMDS be kept in place to ensure the continuation of universal coverage within the Gaeltacht areas?
Those are hypothetical questions. We do not have any plans to close that at present. It will take a long time to shut down an analogue system and that will not happen over the next number of years. There will be much discussion before there is a switch off and it could be anything from ten to 15 years. TG4 is not carried on analogue MMDS at present and we do not have any plans to close it down.
In case the difficulty I have described arises, will the Minister consider between now and Report Stage giving comfort to TG4 in this context?
I have explained why I am not in a position to give such a guarantee. MMDS is under the ODTR.
I know that guarantees are not possible. Is the Minister saying this technical point will be dealt with by the ODTR?
MMDS is totally under the auspices of the ODTR.
We can consider this matter between now and Report Stage.
I want to discuss another aspect of this issue.
Is it related to amendment No. 8?
It relates to the wording used in amendment No. 8. The amendment mentions "broadcasting services". I presume that refers to the definition in section 2, which refers to a broadcasting service as one which comprises a compilation of programme material of any description which is transmitted or relayed by means of wireless, telegraphy, cable, MMD system or satellite device. Cable, MMD and satellite are actually wireless telegraphy systems and I was confused by the overlap in terminology. Therefore, the term "wireless telegraphy" covers all means of distribution. The word "cable" is used in the Bill, but does it refer to a cable TV company, or is the Minister referring to any cable, such as an Internet, telephone or any other line that can deliver television services? It looks to me as if we could be getting into that area, including compilations of audio-visual programmes that can be delivered on third generation mobile telephones. Is that the direction in which we are going when the word "cable" is used by the Minister? The Minister said that broadcasting services do not include the Internet. I know from reading about it, however, that the Internet could become part of the broadcasting service. The technology is there and it is in the developmental stage at present, so it could be a bad decision to exclude the Internet. I may be discussing a separate issue, but the term "broadcasting service" is included in the definition the Minister has proposed. I want to discuss her own definition of broadcasting service, which I realise is a separate matter.
The Deputy herself has said that this is a separate matter. I was under the illusion that we were discussing amendment No. 8 which, as I said, is a technical amendment. The amendment I am moving is framed on the basis that the original definition of an MMD system was too broad. I want to ensure that the MMD referred to in the Bill is the same as the term used by the ODTR. That is what is under discussion now.
But the Minister used the word "broadcasting service", and she also defined that in her own definitions. We can discuss it again when we are dealing with the definition if the Minister wishes, but I still think that, as we have referred to it now, this is an opportunity to discuss it.
Broadcasting service means a service that comprises a compilation of programme material. We refer to wireless telegraphy, cable, MMD system or a satellite device, which will all come under the broadcasting commission, although the Internet will not, obviously.
May I clarify one point?
I have not finished the point.
Finish the point.
You are eliciting information but you are not being critical of the actual amendment.
I am discussing the terminology because it has been defined somewhere else.
Yes.
If that is not in order we can discuss it on the section.
Yes, as long as you understand what is involved. I wanted to begin by obtaining the interpretation and the explanation for it all. We should have done that, but we headed into this matter that was proposed for us and, for better or worse, we have to stick with it now.
May I ask one brief question?
The point would be answered if the Minister could say why the Internet was excluded from the broadcasting service.
I was trying to say that when we talk about a broadcasting service we mean one that would come under wireless telegraphy, cable, MMD system or a satellite device. That would obviously come under the auspices of the broadcasting commission, while the Internet would not because it is a different type of service.
My point is that the Internet could be a broadcasting service, but we are alienating it now.
It is the service if you want to hear Clare FM in the morning. If, for instance, the Minister, Deputy de Valera, is on the air and you are interested to hear what she has to say, you can go to the Internet because there is a limit to what this broadcasting service can deliver. It is still a broadcast as far as I am concerned.
Yes, Cathaoirleach, but on the same point, we are not here to regulate the Internet.
No.
That is a very different concept.
But how are we going to regulate broadcasting over the Internet? How does the Minister intend to do that?
That is a question for another day and, perhaps, for some other Minister. We are discussing the Broadcasting Bill.
Is it necessary at this stage even to refer to the Internet, or to exclude it?
It is, to clarify where it is in the general scheme of things.
Right.
Under one of the provisions of the 1988 Broadcasting Act, TV3 must carry status on the MMDS platform. Is the Minister favourably disposed to extending that to TG4 against the background we discussed earlier? I know that is jumping the gun on the Minister, but I do not see any valid reason that could not be extended under the Bill.
We have not come to the section dealing with "must carry".
But we are dealing with MMDS technology.
Go ahead, Minister.
We are discussing amendment No. 8 the purpose of which, I must reiterate, is to ensure that the MMD system referred to in the Bill is the same as the term used by the ODTR. That is what we are supposed to be discussing. That is what the amendment proposes.
The information the Deputy requires is not available, I am afraid.
Amendment agreed to.
Does Deputy O'Shea intend tabling amendments for Report Stage?
We have to consider what way the Minister responds when we come to debate the "must carry" stage.
As long as you are on the record is it all right. Amendment No. 9 has already been discussed with amendment No. 3.
I move amendment No. 9:
In page 7, subsection (1), between lines 24 and 25, to insert the following definition:
" 'multiplex' has the meaning assigned to it by section 8;”.
Amendment No. 9 is related to amendment No. 21 surely. It is in the same group and it is important to advert to that.
It related to amendment No. 5.
What? On page 13 of the amendments, as circulated, we have amendment No. 21. To be helpful, it says: "in page 12, before section 8, to insert the following new section". I presume that is 8, which refers to the one about which you are now anxious to proceed — amendment No. 9. Amendment No. 9 reads: " 'multiplex' has the meaning assigned to it by section 8;”. So that is the new section 8. I am simply saying that as one votes on amendment No. 9, we will have to be aware that one is voting on something that is referred to in amendment No. 21.
Because of the way in which is has been issued, if you want to have a discussion on amendment No. 21, you are entitled to do so.
Will the Minister clarify this sentence: " 'multiplex' has the meaning assigned to it by section 8;”? Is it subsection (3) of section 8? What are we dealing with under amendment No. 9?
We have not yet discussed amendment No. 21. I am prepared to allow a discussion on it, following which amendment No. 9 can be accepted or rejected. I call on the Minister to speak to amendment No. 21.
I have done so earlier, but I will be happy to do so again. The amendment applies to the revision of provisions contained in section 5, in so far as they related to the multiplex company. The amended section provides that the Minister may, subject to the express conditions following the required consultation with the Minister for Public Enterprise, designate a company formed under the Companies Acts which has as its principal objective the establishment, operation and maintenance of six digital multiplexes, that is, the six electronic systems which combine programme material and related and other data for transmission by the transmission company, the entering into an arrangement with RTE, TG4 and TV3 for the transmission of their programme material and related and other data in digital form by the transmission company and the promotion of the development of multi-media and information services, including the Internet.
Subsection (1) provides a definition of "multiplex" and "multiplex company" and subsection (2) stipulates the minimum conditions that must be met before the Minister can designate a company as a multiplex company under the Bill. After consultation with the Minister for Public Enterprise the Minister must be in a position to approve the memorandum and articles of association of the company. Subsection (3) sets out the principal objects of the company, to which I have referred, and subsections (4) and (5) make it clear that the company is not limited to the activities mentioned in the section.
In amendment No. 21 the Minister proposes the insertion of a new section where "multiplex" is defined to mean a multiplex referred to in subsection (3). However, subsection (3) is not concerned with definitions but with the principal objects, nothing more, of the multiplex company, which it provides should be stated in its memorandum of association. There may be a need to amend subsection (3) accordingly.
Subsection (3)(a) explains what is required when it refers to the establishment, operation and maintenance of six digital multiplexes, that is, six electronic systems which combine programme material and related and other matters in digital form for the purposes that such material and data so combined be transmitted by the transmission company.
Is that the definition?
Yes.
That is helpful.
The Minister refers to a multiplex company. However, we are concerned with a multiplex, which is different.
Subsection (3)(a) provides for the establishment and maintenance of six digital multiplexes.
That refers the objects of a company, but it does not define a multiplex.
It does, when it goes on to provide that it shall consist of six electronic systems the functions of which I have outlined.
Amendment No. 1 to amendment No. 21 states:
To delete subsection (2)(a) and substitute the following:
"(a) any shares in the company are owned by the Minister, who shall not alienate his or her interest therein,”.
The multiplex will not have any involvement from RTE per se. It is a transmission company. Is that correct?
Yes.
Earlier I asked the Minister why it is more beneficial to the taxpayer and citizens that the multiplex company should be in private rather than public ownership. Without rehearsing the arguments, will the Minster respond?
I tried to explain the position to the Deputy earlier. RTE is concerned with transmission, but it has no multiplex business. A number of risks attach to the retail company. While RTE will have a holding in the transmission company, it will not have any holding in what will be known as the retail company because a certain amount of risk taking is involved.
That is not the issue. We are concerned here with an asset and it is arguable whether it belongs to the people or the State. The asset is the infrastructure, which rests with the first company, and the multiplex company. Will it be in the interests of the public that the company is in private ownership? There is an element of risk taking and those taking risks do so in the hope of reward.
There are probably 1.2 million potential customers in the country for a television service. I understand well over half that number are committed to other platforms. If no private investor materialises, if nobody, having looked at the licence issue, is prepared to apply to the ODTR, what happens to those outside the main urban centres? People in the urban centres are much cheaper to service because of their proximity. Those in rural areas may not be offered a digital service other than by satellite. A digital service is superior to analogue and I understand it can be rolled out more effectively to these areas.
I am not sure I understand the Deputy's question. RTE is not part of the retail company because it is private. By contrast RTE will have a holding in the transmission company. The Deputy may not agree with this policy, but it will promote the roll-out of DTT. It is the way to proceed. Perhaps I do not understand the Deputy's question and he could elucidate further. I do not know what he is trying to get at.
I accept it is a judgment call as to whether it is a private or public model. The potential market has shrunk and continues to shrink in terms of rolling out a digital service on the terrestrial platform. If no private investor comes on stream, what happens? Will all those outside the main population centres be denied a service unless they avail of a satellite service, for example?
That is a hypothetical question. When the Deputy refers to what would happen and whether services would be available to those in more rural areas, he seems to forget that the analogue system will be retained. There is no question of switching off that system. A total of 50% of other platforms are not on digital platforms. His concerns are unwarranted.
I remain to be convinced that the critical mass of potential customers still exists. We are close to private investment in the DTT platform, in other words, an increase in services. It is not good enough to say that the analogue system will remain in place for those outside the main urban centres. If an improved platform is available, it should be available to everybody. It is all very well to introduce such legislation. Does the Minister have reason to believe there are investors who want to become involved in a 72% holding in the transmission company and to take over the multiplex company?
The purpose of taking on the DTT platform was because of the question of universality. The Deputy's questions are hypothetical. Government policy is that DTT will be delivered as a commercial enterprise. We know it will have to compete with other platforms. We would be very naive to believe otherwise but 50% of those are not on digital platforms. I reiterate the scenario regarding the analogue system. The Deputy raises needless fears.
We should realise what we are doing in regard to amendment No. 21, which includes the new section 8. Section 8(3)(a), the definition paragraph, is technically neutral. It states: “to establish, operate and maintain six digital multiplexes, that is to say six electronic systems . . .”. Section 8(3)(b) states they must carry public service broadcasters and others. Section 8(3)(c) proposes to promote the development of multimedia services. There is nothing in the legislation to ensure they would have a universal reach and to demonstrate that they are not commercial services aimed at the highest concentrations of population. There is nothing to ensure that they, for example, might include anything about the use of multimedia for educational or non-commercial purposes.
Section 8(3)(d) proposes “to promote the development of electronic information services, including those provided by means of the Internet”. They are relevant to the point I made earlier regarding to the use of electronic information services and the Internet which can be spearheaded by the citizenship model or a market model. Section 8(3)(c) and 8(3)(d) contain market provisions without qualification in relation to any obligation to contribute to a citizenship agenda assisted by electronic media or, specifically, by the Internet.
I must dispose of amendment No. 1 to amendment No. 21. I must take Deputy O'Shea's amendment first.
Are we not dealing with amendment No. 9?
I had to skip forward for the purpose of clarity.
I withdraw the amendment with a view to coming back to it on Report Stage.
Is the Minister's new section agreed?
Can we take it when we get to that section? We are dealing with amendment No. 9
Amendments Nos. 9 and 21 were related.
The easiest way to handle it would be if the Minister withdrew amendment No. 9 and——
It would be the easiest by not the most appropriate way.
I am proceeding the logical way.
We abstained on amendment No. 9 on the basis of returning to it on Report Stage.
Amendment agreed to.
I move amendment No. 10:
In page 7, subsection (1), between lines 24 and 25, to insert the following definition:
" 'the multiplex company' has the meaning assigned to it by section 8;”.
We are not opposing it but will come back to it on Report Stage.
Is the multiplex company defined under section 8(3)? I adopt the same position as Deputy O'Shea. We want to discuss the matter further on Report Stage.
We reserve our position. We will not oppose it.
Amendment agreed to.
I move amendment No. 11:
In page 8, subsection (1), line 4, to delete "accordingly" and substitute the following:
"accordingly;
'transmission' includes, in the case of a cable or MMD system, distribution and 'transmit' and 're-transmit' shall be construed accordingly;
'the transmission company' has the meaning assigned to it by section 5.”.
It would be useful, Chairman, if you specified which amendment contains the new section 5. Amendment No. 12 is envisaged in this amendment because it states: "Before section 5 . . . to insert the following new section . . .". This has not been discussed.
Is the Deputy talking about amendment No. 11?
No, amendment No. 12 which states——
I put the question that amendment No. 11 be agreed but I got no response.
Sorry, Chairman, but the point may not have been made that this is contingent on the new section 5 which is dealt with in amendment No. 12.
Amendment No. 11 states that this is the appropriate reference if amendment No. 12 is accepted. Amendment No. 12 is a new section which is to be inserted before the original section 5. So, Chairman, when you ask how stands amendment No. 11, it must be remembered that the fate of that amendment is contingent on our attitude to amendment No. 12 which we have yet to discuss.
Does the Minister have an explanation of the wording of amendment No. 11? Will transmission be the same as retransmission?
Does the Minister have a short explanation for amendment No. 11?
This amendment is designed to ensure that the language in the Bill is consistent with that used by the ODTR in regulating cable and MMDS systems. The ODTR tends to use the term "distribution". The purpose of the amendment is to provide that distribution is comprehended by the terms "transmit" and "re-transmit".
This issue arose in a discussion the committee had with the United Christian Broadcasters. Has this anything to do with UCB? It has nothing to do with them. The Director of Telecommunications Regulation did not accept that retransmission was within her remit.
This amendment is simply designed to ensure that the language in the Bill is the same as that used by the ODTR.
What does this add to the present situation?
It is about consistency of language.
Is there a further reason?
No.
The amendment states, " 'transmission' includes, in the case of a cable or MMD system, distribution and 'transmit' and 're-transmit' shall be construed accordingly." In another part of the discussion on these amendments it was suggested that programmes are regulated at their point of origin. Does this mean that retransmitted material is subject to the same regulatory environment as that generated within the jurisdiction?
Is the Deputy asking about a programme which is retransmitted?
I can put it more simply. Transmission is governed by the Broadcasting Acts which reflect what regulation we have left regarding decency and other issues. As regards retransmitted programmes, what is to stop a company making a package which is entirely unregulated? I am trying to be careful not to misconstrue anything anyone says, but the Director of Telecommunications Regulation told the committee in February 2000 that her attitude was that material is regulated at its point of origin. Therefore, it comes at one like snowflakes. If there is a regulatory environment under the Broadcasting Acts which deals with transmission, and one is making reference to an equivalence between transmission and retransmission, is the retransmission of material subject to the same regulation that prevails in the case of transmission generated within the jurisdiction?
The ODTR uses the term "distribution". We need to distinguish between transmit and retransmit. This is what I have already outlined to the committee. The broadcasting committee will regulate any material originating at the MMD cable site and each new service will then be regulated.
Therefore it is origination.
Yes.
There is an example of this in European regulation concerning a pornographic channel which went on air and which kept shifting its site of origin and so on. This was not satisfactorily dealt with, even in the European regime. However, I am not so much interested in that as the fact that the Minister has not really answered the issue. If broadcasting pieces are just neutral commodities, the person in charge of international competition can make as crude an argument as he or she likes regarding globalised distribution.
The Minister used the word "distribution" but we are talking about more than just distribution. I am talking from the point of view of people who receive images. Images generated here are within an atmosphere of that regulation which is left to us. One cannot place a totally unregulated notion of retransmission side by side with that. What will fill the programme content?
If it is a transfrontier service it will not be regulated. However, if it is a frontier service it will come under the regulations governing origination. No, sorry. If it is not a transfrontier service it will be regulated. I gave the wrong information to begin with. If it is not a frontier service it will be regulated.
We are not quibbling about this and I am happy to have this issue examined before Report Stage. The issue which arises is whether retransmission comes within the remit of the European transfrontier directive or whether it is a free good under the information services regime that will be introduced by the ODTR.
I am hesitant to accept a notion that what is retransmitted is a kind of free good circulating in an international market of commodities. It is broadcasting and, if so, one is sitting in the same room looking at the same screen and getting free to air channels which we know are within a certain section of the Broadcasting Act. One then switches to another kind of channel. Is this the free market channel? If so, that is the commodity channel. One cannot have it every way. The Minister has to ask whether what she is suggesting falls equally on all images as they are received.
The other logic is that material should be regulated at the point of origin, if at all, and, if not, then tough luck. That is a cavalier approach within broadcasting legislation.
These are purely technical points.
No, Chairman, they are the very essence of broadcasting. People could go to the Isle of Man and start blasting out programmes.
They do. However, I am talking about the definition in the Bill.
Yes but the amendment states " 're-transmission' includes, in the case of a cable or an MMD system, distribution and 'transmit' and 're-transmit'." Let me put my point more bluntly as it will be understood even better. Some may not share my view that those who were licensed as cable distribution operators some time ago were just that. They were not broadcasters. I have noticed that this has all slid into the haze lately with Etain Doyle holding discussions on the possible re-issue of licences, whether old licences will survive or whether there will be new licences, and whether there will be a surrendering day with all the old titles given back, like the Earls of Ulster, and new titles given out. While all that is fine, none of it is enormously accountable. We must decide that what is broadcast is put within the same regime if there is to be a semblance of common regulation.
I do not know whether I can get agreement on this. We are approaching our finishing time, there are just a few minutes left and we are getting tired. We want to see this section completed and, if I have section 2 finished, I will consider it an achievement. Perhaps the Minister would say that, together with the Office of the Director of Telecommunications Regulation, she would have another look at the use of the words "transmit" and "re-transmit".
I know that that might solve a number of problems with regard to dealing with the issues, but I am afraid I cannot do that. Perhaps it would have been much easier for us all in discussing the issues raised by Deputy Higgins if specific amendments had been tabled to the sections to which those issues referred. We are dealing here with just one specific amendment concerning the consistency of language. That is the issue. We will refer later to the terms of transmission and re-transmission. For consistency of language, it is important to have this amendment accepted.
I will add my amendments to the long list of the Minister's amendments in this area for Report Stage. The issue is not just one of consistency of language. There is a greater issue of consistency of broadcasting treatment. We can move on. As far as the teasing out of these sections is concerned, some of the rest after this section are less troublesome.
I look forward to examining the amendments the Deputy wishes to table for Report Stage. It would be a more orderly approach if that were done.
Amendment put and agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
On the issue of free to air service, which is a broadcasting service for which no charge is made, I wish to iron out something for myself and perhaps the Minister can help. Does that include RTE? We pay for RTE in the licence fee which is a charge. I accept that other free to air services, such as TV3, for instance, are free and we do not contribute anything. However, each television owner in the State pays a licence fee. Therefore, is RTE technically a free to air service?
The answer is, yes, it is. What we are talking about here is free at the point of reception.
We have paid for it already. It could be construed as not being free to air.
The licence fee is paid to the Government, not to RTE.
Is the Minister saying it is given as a grant to RTE? Is that how she views it?
That is the statutory position. It would have been very odd if we had not included RTE as a free to air service, I could not envisage any other procedure or approach.
I do not oppose its inclusion. I just wanted to tease it out a bit. It is important that we are able to do that and discuss the matter rather than table amendments.
That is fair enough.
Question put and agreed to.
The Select Committee adjourned at 4.10 p.m.