Vol. 3 No. 5
Since our last meeting there have been meetings with the Bills Office. Additional amendments have been tabled and an effort has been made to have the amendments regrouped more satisfactorily. Members have received information regarding the proposed grouping of amendments.
We resume the debate on section 3.
This section refers to the list of enactments to be repealed, as set out in the First Schedule. Members will note that a number of amendments to the First Schedule have been proposed and they will be dealt with in turn.
Is that understood by the Members?
It would be helpful if you indicated the precise amendments proposed to be grouped and not merely the section on which the discussion is being initiated. The committee should first agree the grouping. We have been shown a suggested grouping. We have not had time to examine the text of the amendments which are suggested for grouping. It is not satisfactory to begin a discussion of the section without looking at the grouping.
Before proceeding with further discussion, I asked the Minister to explain section 3 and she has done so. Is that explanation satisfactory?
Perhaps I did not make myself clear. I suggested that it would be useful, in addition to indicating which section we are dealing with, to indicate the precise amendments which refer to the section. I do not think this is an intolerable demand.
I will go backwards if you wish, Deputy. I had already proceeded with section 3. There is no amendment to this section. When section 3 has been dealt with we will discuss the grouping of amendments, which is a separate matter.
Let us now return to the question of the grouping of amendments. Because of the difficulties experienced at the last meeting with the grouping of amendments and also because additional amendments have been tabled, a list of amendment groupings has been circulated to Members.
The situation at the last meeting was not satisfactory. It was particularly unsatisfactory for me because I must deal with amendments in numerical order and I have undertaken to do so. If Members have had enough time to examine the grouping list we can now discuss it.
For the purposes of orderly discussion it would be useful, as we move from section 3 to section 4, to say this is the set of amendments that applies to section 4. That would enable us to link the issues thrown up in the section with those in the amendments. It would also enable us to see where the Minister's amendments meet amendments tabled by other Deputies. Perhaps if we proceeded like that it would be helpful as people would not be confused. However, I am only speaking of my confusion; I am sure everyone else is clear on the matter.
I received three of the amendments on my way to the meeting. The rest of them I received when I arrived here this morning. The first grouping is the one we discussed in the context of section 2.
That is correct.
The next two are new. We did not discuss amendment No. 1 to amendment No. 12 and amendment No. 1 to amendment No. 21. Is that correct?
Yes.
The one below that is a new amendment. Basically, the amendments that have a letter after the number are new amendments. When we deal with the section the relevant amendments will be moved.
That is correct.
SECTION 4.
This section provides that any expenses incurred by the Minister for Arts, Heritage, Gaeltacht and the Islands in the administration of this legislation to the extent that they are sanctioned by the Minister for Finance may be paid from moneys provided by the Oireachtas.
Will the Minister indicate what expenses may be incurred in the administration of this legislation? Are we talking about the possibility of substantial money at some time in the future?
It will be mainly moneys relating to the Independent Radio and Television Commission.
There could be substantial amounts.
Some £1.5 million to £2 million per year.
For the operation of the Independent Radio and Television Commission?
Yes.
For the broadcasting corporation as it will be.
Yes.
The funding it will receive will be at the discretion of the Minister and the Minister for Finance.
Yes.
Is there a formula that could be inserted that would ensure the broadcasting corporation did not have to look for money from the political side? If there were an independent way of getting finance it would be healthier.
It is a standard provision. The funding is £1.5 million to £2 million each year. I do not see that there should be any great change.
No substantial expenses are envisaged?
Not in addition to what is there already.
Last week the Minister mentioned designating a company and employing auditors, consultants and so on. Will that come under this heading?
No, that is taking place at present. We are talking about the Independent Radio and Television Commission.
As regards implementing those sections that may be passed dealing with splitting up transmission, say, from the development of retail services, do the expenses that might arise in such circumstances, the allocations, costs of litigation, possible compensation and so on come under section 4 as well as the obvious costs of running the Independent Radio and Television Commission in its new format?
With respect, that is such a hypothetical situation I do not believe it is realistic.
I will not delay the committee on the matter but it is hypothetical to say section 4 refers to the Independent Radio and Television Commission. It does not. Any construction of the section might include such costs as arise because of the Independent Radio and Television Commission but, in fairness to those who drafted the section, it seems to be aimed at including any other expense that arises in relation to the administration of the legislation. I was raising the question that there will be costs and expenses separate from the Independent Radio and Television Commission costs.
We are saying the Independent Radio and Television Commission will be the main body that will be looking for the money. That is standard.
Is the Deputy contesting the position of whether the Independent Radio and Television Commission is mentioned in the section?
It is a matter to which we can return on Report Stage. The changes in structure referred to in later substantial parts of the legislation are not cost free which in turn will make it necessary to come back to section 4 and consider it for Report Stage.
Subject to the possibility of returning to this on Report Stage, is the section agreed?
I agree we should consider it again on Report Stage.
We discussed this issue already with section 3. There are two amendments to amendment No. 12.
I move amendment No. 12:
In page 8, before section 5, but in Part II, to insert the following new section:
"5. (1) In this section 'the transmission company' means a company formed and registered under the Companies Acts 1963 to 1999 (whether before or after the commencement of this section), being a company which is designated in writing by the Minister to be the body that shall perform the functions expressed in this Act to be performable by the transmission company.
(2) The Minister shall not designate a company for the purposes aforesaid unless the following conditions as respects the company are satisfied, namely—
(a) the company has been so formed and registered by 2 or more persons (who may include the Authority) each of whom the Minister is of the opinion, having regard to the responsibilities the company will assume under this Act, is a person who is a suitable person to be concerned in such formation and registration,
(b) the name of the company is a name which the Minister considers to be appropriate having regard to the said responsibilities,
(c) the company is a company limited by shares, and
(d) the memorandum of association and articles of association of the company are in such form, consistent with this Act, as is approved of by the Minister, after consultation with the Minister for Public Enterprise.
(3) For the purposes of enabling or facilitating the performance by the transmission company of its functions under section 11, the Authority shall transfer such parts of its real and personal property to the company as the Minister, after consultation with the Authority, determines ought to be the subject of such a transfer.
(4) The principal objects of the transmission company shall be stated in its memorandum of association to be—
(a) to transmit, by analogue means, broadcasting services on behalf of the Authority, Teilifís na Gaeilge and the television programme service contractor, being services that the Authority, Teilifís na Gaeilge and that contractor provide under the Broadcasting Authority Acts, 1960 to 2000, the Act of 1988 or this Act, as the case may be,
(b) to transmit, by digital terrestrial means, programme material and related and other data in a digital form in accordance with arrangements entered into by it under this Act with the multiplex company,
(c) to transmit, by analogue means, sound broadcasting services on behalf of the Authority and sound broadcasting contractors, being services that the Authority and such contractors provide under the Broadcasting Authority Acts, 1960 to 2000, or the Act of 1988, as the case may be,
(d) to promote the development of multimedia services, and
(e) to promote the development of electronic information services, including those provided by means of the Internet.
(5) The Authority shall not, without the consent of the Minister and the Minister for Finance, transfer to another person all or one or more of any shares it holds in the shareholding of the transmission company.
(6) The Minister may, by order, require the Authority to divest itself of all or one or more of any shares it holds in the shareholding of the transmission company.
(7) Where an order is proposed to be made under subsection (6), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
(8) Nothing in this section shall prevent or restrict the inclusion among the objects of the transmission company as stated in its memorandum of association of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary to the due attainment of the principal objects aforesaid and are not inconsistent with this Act.
(9) The transmission company shall have power to do anything which appears to it to be requisite, advantageous or incidental to, or which appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in this Act or its memorandum of association and is not inconsistent with any enactment for the time being in force.".
I move amendment No. 1 to amendment No. 12:
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,”.
We discussed this the last day. It concerns the ownership of both the transmission company and the multiplex or retail company. The transmission company should be operated by a commercial semi-State body.
I raised a number of issues in that debate to which I did not receive a satisfactory answer. On the question of the 28% equity holding which RTE may have in the transmission company, I am still none the wiser as to how this figure was arrived at and why it is important that the national broadcaster should have a holding in the company and it became necessary to split the original designated company in which RTE would have been able to have a 40% holding. These changes were effectively made behind closed doors. It is incumbent on the Minister to be open and transparent in explaining what happened. In particular, how was the figure of 28% arrived at and what is its significance? What, in principle, does she have against the idea of a commercial semi-State body operating the transmission company?
At the end of the day, difficulties may arise. I outlined my concerns in this regard the last day. Having regard to the fact that the Bill has not moved more speedily and that other platform providers in the marketplace have been moving ahead gaining new customers, I question whether there is sufficient critical mass to provide all 30 channels that will available from the six multiplexes. There may not be too many private investors lining up to become involved in one or both companies. This is a matter which the Minister should clarify. Will there be any restrictions on the level of equity holdings in the companies? In other words, if a company acquires a 72% holding in the transmission company, will it be able to acquire a 100% holding in the multiplex company? What exactly is the plan?
It is in the public interest that important infrastructure such as this remains in public control. Let me instance two scenarios. Let us suppose that a private investor does not materialise or that a private investor does materialise but that the transmission company and/or the multiplex or retail company are not commercial successes. In such scenarios the State may well find itself in a position where important broadcasting infrastructure is in private hands. In effect, it will be in no man's land. There are many questions, therefore, which were not satisfactorily dealt with by the Minister last week.
This is the third time we have run through the same information. The Deputy and I are so far apart that going round and round discussing the philosophy underlying the Bill will not help to change either of our minds.
Giving information would be helpful.
I have no problem reiterating for a third time that we are talking about two separate companies — a transmission company in which RTE will have a 28% stake and a retail company. The same question has been asked a number of times, the last day and again today, and although the Deputy may not share my view, the following is the explanation. Given its interest and expertise in the area of transmission — it ensured that there would be universality in the process — RTE sought a holding in the transmission company. In considering this I had to have regard to concerns that it should not have a dominant position in the company. There were discussions during which the figure of 28% was accepted by it.
RTE will not have a stake in the retail company for reasons similar to those advanced by the Deputy. There are financial risks within the retail sector. No one can say with certainty that the retail company will be successful, although we all hope it will. There are commercial risks and I was of the view, therefore, that it would not be appropriate for RTE to become involved. As it has outlined on a number of occasions, its main raison d’ètre lies in the area of programme making. On the possibility of requiring RTE to dispose of shares if unacceptable amounts of money are diverted from programming, under the legislation there will be an opportunity to have a positive order made by both Houses of the Oireachtas.
We are trying to put a system in place whereby there will what I hope will be an efficient, effective and quick roll-out of digital services. I expressed these views the last day and I am happy to do so again today. It is where I stand on the issue.
If RTE has access to the logic which generated a figure of 28%, the public and its representatives are entitled to the information on which it was based. One does not have to be crude in thought to suggest that there is not a big difference in the description of a majority and minority shareholder in a case where the holdings are 51% and 49%. The request is a simple one. How was the figure of 28% arrived at?
There is a related question. The figure of 28% would make some sense if it was related to a certain yield, but that, in turn, would be to assume that a valuation had been placed on the entity about which we are talking. Yet, the Minister suggested that she will let the market decide the valuation. Somebody somewhere along the way either arrived at a ballpark valuation on which they were able to calculate that a figure of 28% would yield a specified sum, or else invented a figure of 28%. It is a perfectly reasonable question.
The Minister seems to be saying that it was something like Ballinasloe horse fair where someone said 25%, another said 30% and at 28% they slapped their hands and spat on it and said that they would not break their word. If that is the way the RTE authority approached the matter, let us hear it. The people I represent, the public, are entitled to know how the figure of 28% was arrived at. It is a simple question. Was it arrived at in the context of a valuation?
I accept that the Minister, Deputy O'Shea and I hold differing views on what is afoot. Has the Minister considered that to take a decision that RTE is unsuitable for involvement in a company to which there is risk attached seems to fly in the face of the well known fact that a commercial division has existed for some time? That was debated by an earlier Administration in terms of whether the Government should run broadcasting or whether it should be free of Government. I will refrain from reflecting on that modern period in which there appears to have been a formal independence but an informal interference. What disqualifies the national broadcaster from being involved in a retail company? Will the Minister give us her reasoning on that? That might help me to deconstruct what is in front of me. If I am wrong, I will be glad to hear it. What the Minister is saying is that digitalisation came along and an integrated entity, the national broadcaster, RTE, had the opportunity to drive forward digital, being a significant holder and having access to the revenue from what will be new services and from traditional broadcasting adjusted to digital. Given that the Minister decided that it will have nothing to do with retail services, does that mean that regime has been handed over entirely to telecommunications? What disqualifies RTE? These are the issues.
What have they been doing all along? I have a short but important question on this aspect. There has been case law on transmission and frequencies and it has mostly revolved around the question in relation to frequencies and whatever should be judged the same way as one would judge natural assets. The State, in the name of the people, enjoys ownership of a natural asset. The case law, if I understand it, is similar to, say, an agricultural holder regarding mining rights and whatever. How did the Minister come to the conclusion that she was entitled to put transmission rights on the market? What supporting legal opinion does she have for that and the more audacious conclusion that not only would one place something that was a natural asset on the market and structure its ownership but that, under existing legislation, one would preclude from participating those who had built up and enhanced the asset? To put it mildly, that case is constitutionally frail.
With regard to the retail business, I am sure the Deputy opposite would share my view that RTE should be responsible for programme making. That is where the cultural content should lie, not with a retail business. It was not a question of RTE being disqualified from having a say in the retail business; it had no special rights in that regard. The retail business is a separate entity in the sense that RTE is about programme making, and it has said that time and again. That is not found in the retail business. RTE never had an inherent ownership in what could be termed the retail area in that sense.
With regard to the transmission company, I will outline the point I made on the previous occasion. If we are talking about RTE having a stake in the transmission, and it has had an interest and is concerned about it, given that transmission has been in its ambit from the beginning, it will get 100% of the proceeds of its sale. I was concerned to find a balance to ensure that RTE would not have a dominant position in the transmission. I am confused that Deputy Higgins, whom I know shares my view on the importance of the cultural area coming from the leadership of this Department rather than the ODTR, as reflected in the Fine Gael amendments, would wonder why RTE was not taking part in a retail business that comes from a different philosophy and does not include programme making. With regard to the multiplex business, given that RTE did not have an inherent part of its ownership, it is difficult to understand the arguments that have been put forward. Perhaps we have a different view of the way in which the transmission company will operate or what structures should be put in place. I put forward my views on the last occasion and I express them again today.
As the Minister has commented on what I said, I point out that there is nothing to stop receipts, revenue and profits from any kind of retail activity being recycled into programme making. Many of us have held the view for a long time that we would like the receipts from the commercial operations of RTE to be recycled back to programming. If one examines RTE's annual reports in recent years, one would realise it was in deficit on the broadcasting side, and it was baled out by its other activities. As we are debating a broadcasting Bill and have decided to start speaking plainly about it, let us do so. I have always called RTE the national broadcaster and central to public service broadcasting is the making of programmes. Programmes are costly. On the Ministers new services and when the ODTR has rattled in the competition regime, within a few years we will be in the same status as Czech Republic, which can buy an old episode of "Dallas" for $350. There will be nothing to stop that, but if we want to make an hour of programming here, be it a news programme, a documentary or a drama, we are talking of a ratio of at least 15 to 1 between the cheapest programme one can buy and what one could make. Where will the Minister get money from that? She is saying that RTE will not have access to this source of funding for programme making. She is also saying that the licence fee should be increased on the whim of the day because the Government has set its face disgracefully against indexation. How, therefore, is there to be an income for programme making within the cultural definition of broadcasting by the national broadcaster? It is simple. If the Minister tells us she will look after RTE later on through the licence fee and index it, there will be no need to worry about it again and the cultural aspect will be safe, what she is really describing is a evisceration of programme making. What is made in the market should be taken back for the public good, but the Minister is saying that it can be made in the market, she will have nothing to do with it, RTE will have nothing to do with it and God take the hindmost. That appears to be the attitude.
Deputy Higgins wishes to make his political points, which is fair enough, but I do not share his view. RTE has a specific remit and it is, as the Deputy said, the programme maker and there should not be any distraction from that. This is the best way forward. I know the Deputies opposite do not share that view, but this is the Government's view and it is my view.
Section 5(3), authorises the transfer of the RTE transmission assets to a company to be privatised and which will have a majority shareholding. Section 7 grants that company frequency licences. Whoever pays for these assets will also be paying for a very valuable frequency spectrum, is that correct? If I understand the Minister correctly, 100% of the sale will go to RTE. A valuable frequency spectrum is being sold. It is a State asset and it is going directly to this transmission company. Am I correct? If so, the frequency spectrum belongs to the people and it should not go to a company that will be privatised.
Given that RTE has had an important role in the transmission business from the beginning, it would be odd of Opposition Members not to ensure that RTE receives 100% of the proceeds of the sale. The spectrum must be used in the way specified in the Bill. That is tied down in the legislation.
Does RTE own the frequency spectrum?
No.
Why is it getting the value of the sale?
We are talking about the transmission equipment, which it owns. That is why it would be odd if the Opposition Deputies did not wish to see 100% of the proceeds go to RTE. Perhaps they do not.
This company will have a valuable frequency licence under the new section 7. The frequency spectrum is an asset of the State, not of RTE.
That is why the Bill provides that the spectrum must be used in the specified way.
However, the value of the frequency spectrum is obviously an attractive proposition for a company.
We are talking about the transmission when we refer to the 100%.
The frequency spectrum is attached to RTE.
Is it the case that the Opposition Members wish to see RTE getting less than 100% and, if so, what percentage do they propose?
We would like if it were made clear when we are discussing the transmission equipment and when we are discussing the transmission system, which is different. The sole enjoyment of frequency allocation of spectrum is a separate issue. It is governed by separate law. For example, if the Minister gives 100% of the proceeds from the sale of the transmission equipment to RTE, is she still free to take decisions in relation to spectrum and what decisions are they?
RTE is licensed by the ODTR anyway.
Follow that through.
Perhaps the Deputy would.
The Minister has responsibility for broadcasting but I will make an attempt. RTE is licensed as a carrier. My understanding, for what it is worth, is that the law is unclear in relation to it. However, I am clear on one point. The decided case law regards the frequency allocated to Ireland as having the nature of a national asset. That is why I asked if the Minister knows what is for sale.
Could the Deputy outline the case law to which he is referring? It might be of help.
I can, but I will come back to it when we are discussing the section. This is unusual. It is not my legislation and if I were drafting it, it would be different.
I am sure it would.
We are agreed on that.
We are, but without trying to be too party political on this, the Deputy was in office for four and a half years and had the opportunity to do it.
I produced a Green Paper and heads of legislation. I was very democratic.
Yes, and that is as far as it went.
We must discuss Deputy Clune's amendment to the amendment.
My amendment reads:
In the fourth line of the new subsection (1), after "Minister" to insert "acting only upon the advice of the Director following an open, fair and transparent selection procedure".
I mentioned this issue last week. It is a theme in the Fine Gael amendments. It is not correct that a Minister should alone have the power to designate a company. It should be done in an open and transparent manner. We do not know to whom the Minister will award this valuable contract. There are many reports in the newspapers about a previous Minister with responsibility for communications who had enormous powers and abused them. However, that is a matter for another day.
The ODTR should have the power to nominate the licensee. It should not lie with the Minister. I do not doubt the current Minister's bona fides but we are legislating for the future and we have seen powers such as this abused in the past. This will be a valuable licence. We do not know what it is worth now because it has not been tested on the market. It is a valuable frequency. The Minister should be able to designate but should act only on the advice of the director following an open, fair and transparent selection procedure. That is the correct way to go forward to engender public confidence in awarding of a valuable licence.
Notwithstanding that these amendments represent a significant change in Deputy Clune's position with regard to the regulation of the DTT platform, I oppose them. 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 and, with this in mind, it is appropriate that the Minister with responsibility for broadcasting should kick start the process of establishing the DTT platform by designating the transmission company.
Similarly, it is appropriate that the ODTR should act on the initiation of the Minister with regard to the transfer of analogue licences to the transmission company and the granting of the DTT transmissions licence. Once the process has been kick started in this way, the ODTR will be responsible for its detailed implementation. These are appropriate arrangements and, accordingly, I oppose the amendments.
This issue, correctly, got an extensive airing at the last meeting. I am anxious to have an open and transparent system. These words tend to be bandied around but every Member of the Oireachtas wishes to ensure there is an open, fair and transparent system. That I why I refer to the appointment of the advisers and a process auditor.
I have always maintained that the licence should be awarded upon the advice of the director so the thrust of my amendments has not changed. I am disappointed the Minister will not accept the amendment. This is an important issue and I am not confident that the award of such a valuable licence will take place in an open and transparent manner, as the Minister claims. The auditors will be her appointees, as will the various people who will implement her decision. I will press the amendment because this is a point of principle and I feel strongly about it.
In the interests of clarity, there is a great difference in policy between Deputy Clune and me. I believe the leadership should come from the Department as opposed to the telecommunications sector. It is most important that culture is the driving force in this matter and that is where the Deputy and I differ.
With regard to the appointment of advisers and the process that will be put in place, I strongly believe there should be a process auditor and that is the way I will proceed. Obviously, the actions of the Minister can be subjected to judicial review. When the situation is the responsibility of the ODTR, it will carry out the day to day responsibilities in regard to this.
The Minister referred to judicial review. At what stage does she anticipate that happening?
I do not anticipate it.
I hope we never get to that stage.
I do not believe there will be any need.
I would try to avoid that completely. That is why these amendments——
Of course. This is a very different approach. As I said, Deputy Clune is proposing a very different philosophy, which is her right. I am afraid that never the twain shall meet in regard to her proposals and mine.
We have been here before.
There is a very big philosophical difference in terms of policy. I assure the Deputy that the process I put in motion will be open and transparent and will involve the appointment of advisers and the process auditor. I do not expect the judicial review mechanism will be activated but that protection is always there. There are also freedom of information and other laws to protect that situation.
However, there are very great differences in relation to policy formation. It is for the Labour Party to speak on this, but I do not believe it would support the philosophy behind the amendments tabled by Fine Gael on this occasion.
Ba mhaith liom cúpla focail a rá sular gcuireann tú an leasú os comhair an coiste. We still do not know the origin of the 28% figure, despite the Minister saying she has addressed this three times. Against the background of bad feeling among the public because of recent events at tribunals in relation to this area, it is incumbent on the Minister not to use the terms "transparency" and "accountability" as clichés. It is either proper or not proper that we are open and transparent in all we do. We do not know where this figure of 28% came from.
If RTE decides it does not want to take up the 28% when the time comes because the deal is not right or for whatever other reason, will that mean the whole company will then be available to private enterprise? There is no guarantee in what is here. I cannot see 28% written anywhere in the legislation. We are taking that figure on trust, to an extent. The other aspect is that RTE can take anything up to 28%. It can take 20%, 8% or zero when the time comes.
The private investor in the transmission company is there to make money — that is the nature of private investment. The point the Minister made about the possibility of RTE being overexposed with 28%, in terms of the amount of its total budget that may have to be diverted to the transmission company, underlines what I said earlier. The package may not be attractive enough to anyone in the private sector to come in at 72% or 100%.
I am still not clear in relation to Deputy Higgins's question. We have gone around and around on it. Perhaps we are not too quick on the uptake on this side of the House. However, what exactly will be sold when the transmission company is set up? Deputy Higgins alluded to a number of aspects, not least of which was the spectrum. Is it possible that if a private company is not effective in the future, a part of our spectrum, a national asset, could be tied up and left in a state of limbo? It could prove extremely difficult to bring that back into operation in the interests of the public.
The figure of 28% is not stated in the Bill. We do not know where it came from. The Minister said it arose in the context of negotiations. However, what issues were under discussion in those negotiations that there was a final acceptance by the RTE authority of 28%? I cannot comprehend why a minority holding in the transmission company is seen to be of strategic importance and value to RTE. It would be different if it were in a majority position. I am baffled by how the figure of 28% was arrived at and why RTE wants to be in there. The agenda will increasingly be one of programme making. A lot of extra slots will be available in Ireland and other English speaking and non-English speaking parts of the world. It is vitally important for the focus of RTE to be on programmes.
Deputy Higgins and I have tabled two amendments in this regard. It seems to us that the best solution would be to have a semi-State body which is commercial and generates income. If operating the transmission and retail companies is going to generate good profits, why can those profits not go to the State by way of commercial companies operated by the State?
RTE, which originally wanted 40% of the original designated company, which was to have encompassed the transmission function and the multiplex function, is suddenly settling for 28% of the transmission company. The Minister is not presenting a satisfactory explanation of why this is strategically important for RTE's future. Why is that important? Why is the authority looking for this holding?
I do not want the Minister to lecture us about answering things three times. We want precise, open and full information, so that when we are making our contributions and voting on this section of the Bill, we will be clear about all aspects of it. I am not only referring to elected members — people outside this committee are entitled, through the media, to the answers to these questions. It is unacceptable that everything is being left hanging in the air. We are being lectured about repeating questions. However, repeating questions has not generated the factual answers which we are seeking to have put on the record.
Deputy O'Shea asked why RTE should have a stake in the transmission company. The answer is that because it sought it and also because——
If I could——
May I answer the questions the Deputy put? RTE sought a stake in the transmission company in the belief that it would have a good chance of returning an income stream. It has had a very important part in the whole question of transmission to date. The decision on the 28% was not taken unilaterally by me. I have told the Deputy that when we were talking about the 40% in Digico, we were talking about a very different company. We are now talking about two separate companies, one for retail and one for transmission. RTE will wish to have a stake in that company and the 28% has no relation to the valuation itself. I had to make sure, however, that RTE would not have a dominant stake and, in fairness, I do not believe that RTE wanted a dominant stake in that transmission company.
The 28% figure emerged from discussions with RTE as a figure that satisfied each concern. There is no great particular mystery about this. We are interested in trying to get a procedure that will be as fair as possible to all concerned in broadcasting, and to ensure that we are able to roll that out as quickly as possible.
The Deputies opposite may have some disagreement on the philosophy behind this matter, but to say that things are unclear because they cannot agree with it is somewhat disingenuous. The committee should remember that this position was not unilateral, but emerged from discussions between RTE and my Department.
When I referred to the frequency spectrum being regarded as something in the nature of a natural asset in the ownership of the people, the Minister asked me to be more precise. I was referring specifically to Article 10.1 of the Constitution which states:
All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government, established by this Constitution and all royalties and franchises within that jurisdiction belong to the State, subject to all estates and interests therein for the time being lawfully vested in any person or body.
Article 10.3 states that the State may properly make provision for the management of such a resource held in common. While it is not a contentious point, it is a very important one concerning the manner in which one can take something that is a public good, within the constraint of international frequency allocations that go back to the Wireless Telegraphy Act. It concerns the energy of communications which is one entity. Is it the case that RTE, as the national broadcaster, has managed this in the name of the State for the people for a considerable period? The Minister says that, perhaps, it is. RTE has done so instrumentally through equipment which the Minister calls transmission equipment. It is perfectly reasonable for anyone to ask whether we are talking about 100% of the yield of the sale of the equipment, or of the other, deeper and more intangible asset.
The third point relates to the 28%, which obviously has another 72% that goes with it. With what legal authority can one actually move asset A that arises under Article 10.1 of the Constitution into private ownership?
The fourth point is whether the Minister is doing this in terms of a management contract limited by time, or in perpetuity. If she is doing it either through management limited by time, or in perpetuity, where is that specified in section 5, unamended, or in the same section as proposed to be amended by amendment No. 12?
Essentially, the Deputy seems to be saying that there are constitutional implications in the section.
I cannot agree with the Deputy on this matter. The frequency spectrum is licensed to many kinds of user. Nothing is changing. The transmission company will have to have a licence from the ODTR. It is not a question of selling it; they must have a licence, the terms of which will be decided by the ODTR. RTE must have a licence.
That is model B.
Yes.
Is the frequency spectrum not a very valuable part of the asset the Minister is selling? It is not just hardware. There are transmission sites, also, and that is what will make it attractive.
At the moment the spectrum is used by RTE, TV3 and TG4, and after the sale it will be used by the same broadcasters.
What about the other programme providers that will be licensed by the broadcasting corporation of Ireland?
The only new user of the spectrum will be the multiplex company. This is also laid down by the Bill.
The multiplex company is a broadcaster.
No, that is with regard to the spectrum and not in the way the Deputy means.
For the sake of the legislation, the Attorney General's advice should be sought on whether or not one can take something that is allocated by internationally agreed conventions in the name of the State on behalf of the people and convert it into private ownership. I am deliberately avoiding using crude language as to whether one can actually sell the people's asset into private ownership in this way. Article 10.1 of the Constitution is an impediment in this regard. We may differ, but if the Minister has received a legal opinion on this matter it would be useful to hear it.
Chairman, if I may?
Yes Minister. I said to you that Deputy Higgins is repeatedly using his argument about a constitutional impediment. If we could have an answer to that point, perhaps we could make progress.
The Bill has not been drawn up on a unilateral basis. It is a question of ensuring that each section is passed by the Attorney General's office, word for word, line by line and comma by comma. I certainly do not envisage any legal problems such as the ones that have been posed by Deputy Higgins. I cannot profess to be a legal person and I have to take on faith the opinions of those who have such qualifications. The Attorney General has obviously been working very closely with my Department on each and every word of this Bill, as is expected in all legislation and as the Deputy knows.
Are you saying, Minister, that the Attorney General advised on this view of the frequency spectrum that you hold?
You can take it, Chairman, that this particular Bill has not been published overnight. It has taken quite some time, effort and work to produce, as it should because it is important legislation. I have received legal advice on each and every part of the Bill, as would be the approach taken by any responsible Minister on any legislation, whether it concerned broadcasting or any other matter.
I move amendment No. 2 to amendment No. 12:
In the fourth line of the new subsection (1), after "Minister" to insert "acting only upon the advice of the Director following an open, fair and transparent selection procedure".
I move amendment No. 13:
In page 8, before section 5, but in Part II, to insert the following new section:
"5.—(1) The Minister shall by regulations prohibit any person from enjoying an excessive concentration of media ownership.
(2) In making such regulations the Minister shall be guided by the principle that a person who owns more than 20 per cent of enterprises in one medium shall not own more than 20 per cent of enterprises in another medium.".
The reason I have tabled this amendment should be clear to Members. My colleague, Deputy Michael D. Higgins, introduced a Private Members' Bill on this issue two years ago and it was voted down.
The problem we seek to address is where a person has an overly dominant position in media ownership. As the amendment states, we seek that, where one person holds more than 20% of the enterprises in one medium, he or she cannot hold more than 20% of the enterprises in another medium. We are talking about the print media vis-á-vis the electronic media. It is unhealthy in a democracy that any individual could hold or possibly control editorial policy over a wide range of media.
We want the Minister to accept what we believe as a reasonable position as put forward in this amendment so that that element of democratic safeguard in the context of ownership of media can be given as media become increasingly important in the function of informing and educating people. The amendment seeks to avoid the situation which could arise where a certain individual with a certain political philosophy or any philosophy could have that promoted in an unbalanced way, thereby undermining what media are about in a democracy, which is to give fair and balanced coverage to the important issues of the day.
As I said in my contribution on Second Stage, I do not have functional responsibility for matters relating to the 1991 Competition Act. I referred to the fact that the competition and mergers review group established under the aegis of the Tánaiste was examining the issue. Since then, the group submitted its report to the Tánaiste in March 2000 and in May 2000 she published the report. Arising from that, the Tánaiste announced that, under proposals approved by the Government on 24 October 2000, the existing law relating to competition and mergers is to be replaced by new consolidated competition and mergers legislation. The new legislation will address this issue of newspaper and media mergers. Accordingly, it is not appropriate to address such issues in the Bill and I must, therefore, oppose the Deputy's amendment.
When I sought to introduce restrictions on cross-ownership before and the Minister and her party voted it down, the legislation on that occasion amended section 5 of the Competition Act. There is nothing in what the Minister said on that occasion nor in any construction of the Competition Act which would preclude her from including a definition of the abuse of a dominant position in legislation such as this. In introducing the Private Members' legislation, I sought to amend section 5 of the Act of 1991 by the insertion of an explicit definition of abuse of a dominant position.
The Minister in her dismissal of the inclusion of the amendment in this legislation spoke about mergers. What Deputy O'Shea's amendment asks her to do is to address the issue in the context of the right of communication. Where the right to communicate is concerned, be it in terms of the European Convention or the law generally, it must be defined in such a way as to stop the abuse of a dominant position. The Minister lectured us earlier about the importance of broadcasting as a cultural activity. If it is to carry the right to communicate, there must be some protection for the listeners, viewers or whatever from having their rights circumscribed by those who abuse not only by ownership of one means of communication but by having means which cross over into other means.
It is up to the Minister to tell us how a broadcasting Bill can be silent on the issue of ownership. Is it the view that there is no connection between ownership and editorial control? Is it the view that editorial control is entirely neutral and separate and is not influenced by ownership? Is it the suggestion that it is irrelevant to own a significant proportion of the print media, which in Ireland is already dangerously and undemocratically excessively concentrated? If this is going to extend into radio and television, this legislation is the place to stop it.
It is very interesting to note those who have come out in favour of doing so. When Her Majesty's Government in Britain discussed broadcasting with Parliament at the heritage committee, it heard a submission from a backbench group of the Tory party which was in favour of placing a 25% limit on ownership of any one medium.
We have gone past section 12 in this legislation and we will proceed to other sections which will establish a distinction between broadcasting and retail activity. I cannot see how new broadcasting legislation can be introduced without addressing the issue of cross-ownership. It is the nature of the democratic control and delivery of broadcasting that there be such limits. Otherwise, one is saying that there is to be a free market in broadcasting and in communication. A free market in communication is what Mrs. Thatcher, under the influence of Friedrich Von Hayek and other right wing fanatics, sought to apply to everything.
The Minister put it to us earlier to state where we stand on things. We would like to know where the Minister stands. How will she restrain any aspect of the market if she has not put in a restriction on what a person may own? Deputy O'Shea's amendment does not amend the Competition Act but states what the Minister with responsibility for broadcasting may do in a broadcasting Bill. It states: "The Minister shall by regulations prohibit any person from enjoying an excessive concentration of media ownership." It is not acceptable for the Minister to seek to dodge giving a yes or no answer by stating that her colleague, the Minister for all the inquiries, is constructing a new elaborate theology of how to restrain the free market while at the same time appearing to be respectable about abuses. That is not an answer. The issue is that the second part of Deputy O'Shea's amendment states that the Minister, in making such regulations, shall be guided by the principle that a person who owns more than 20% of enterprises in one medium shall not own more than 20% of enterprises in another medium.
It is not perfect and the Minister may be foxed in ways I restrain myself from going into now but which are familiar to me. Ultimately, the point is that it is in nobody's interest for there to be a dominant position and it is far less in anyone's interest for that position to be abused. The Minister referred to inquiries but even the one carried out in my time had very limited terms of reference. This is about healthy broadcasting and this is a crucial amendment.
We had a Private Members' debate on this issue recently. As broadcasting opens up we are being invaded by different means of broadcasting media and communications. It is worth debating where we draw the line and control this as well as how we prevent one person having a dominant position, as Deputy Higgins said. The amendment is worthwhile and the issue it raises is worth addressing if we are to control ownership if we are to ensure that a dominant position is not allowed to develop. Deputy O'Shea's wording, that a person who owns more than 20% of enterprises in one medium shall not own more than 20% of enterprises in another medium, is clear and not overloaded with language. It is clear, specific and a worthwhile amendment.
As I said in my initial reply, the Tánaiste brought proposals to Government and on approval by Government of those proposals on 24 October she went on to say there would be new legislation in this regard which would address the issue of newspaper and media mergers. As Deputies——
This is about media mergers.
Yes, and media mergers. I understand where the Deputy is coming from on newspaper ownership and ownership of broadcasting media. Newspaper ownership is not my responsibility but that of another Department and Minister. I am responsible for broadcasting and that is why this Bill guarantees a strong public service element through RTE and TG4. I look forward to the new legislation, which will address those issues, but I am dealing with specific broadcasting issues for which I have responsibility. That is why I have re-emphasised the whole question of public service broadcasting to ensure it is understood and underpins the philosophy of this Bill. That is where I stand on this amendment.
The Minister mentioned a strong public service broadcasting element to both RTE and TG4. Does she regard them as public service broadcasters? That is what they are.
Obviously I believe that RTE and TG4 are public service broadcasters.
I will be pressing this amendment but I have some more points to make. The Minister says she is not responsible for the print industry per se but let us look at the reality of the situation. If someone is seeking to become involved in electronic media with equity the Minister can gauge at that time whether the person has 20% of the print media, so this could be operated without the Minister having any powers regarding the print media. Equally, if someone has an equity holding of more than 20% in the electronic media and then moves to buy an equal or stronger position in the print media the Minister can withdraw permission for that person to operate in the electronic media. It is workable from the Minister’s base, either preventing someone from coming in or if someone in the electronic media seeks to abuse his or her position. Remedies would be open to the Minister to deal with this.
We are talking here about a precious gift which is delegated by our society to the print and electronic media, which is to present facts without fear or favour and in a non-partisan way. I suggest that if someone reached the position where he or she controls over 20% of both forms of media it would be very dangerous. Even with the best will in the world people can see themselves as more powerful than they really are and lose the run of themselves regarding their position in society. It would be a very dangerous departure for a blatantly politically partisan editorial line to be allowed develop in our society. We can hide behind something decided at Cabinet, details of which the Minister cannot divulge as it is part of developing legislation, but from what she has said it is clear that it is not addressing this issue in a substantial way. If the Minister accepts the principle of a free media, we do not want that media to fall into ownership which allows biased material to spew out, particularly when people are voting. We are not getting an indication from the Minister that she shares our concerns or that she is concerned by the dangers we have outlined.
I share many of the concerns expressed by Deputies O'Shea and Higgins. I have an extract here from a speech by the Tánaiste which may be of help. She indicated that she accepted the recommendation of the review group on the commission on the newspaper industry, that additional public interest criteria should be taken into consideration in the case of media mergers, and stated that these criteria relate to the strength and competitiveness of the indigenous newspaper industry, the plurality of ownership and titles, the diversity of views in Irish society, the maintenance of cultural diversity and the position in the media generally of any of the undertakings involved in the proposed merger.
She was referring to the recommendations made and her stance on this. In addition, she stated that the scope of merger law is to be extended to cover acquisitions of control of media undertakings by means other than the acquisition of shares or assets and that final responsibility for decisions on newspaper-media mergers will continue to rest with the Minister for Enterprise, Trade and Employment.
Those are extracts of a statement from the Tánaiste on foot of the Government decision of 20 October. Obviously I share many of the concerns expressed by members but the new legislation will address the issues of newspaper and media mergers for which I do not have responsibility. However, I have responsibility for broadcasting and that is why I have underlined the need for strong public service broadcasting.
We can make progress if, on foot of the Minister quoting the remarks of the Minister for Enterprise, Trade and Employment, she accepts the principle that it is not in the public interest to have a dominant position or an abuse of a dominant position. However, we are still unclear as to whether the illuminations provided by the Minister, Deputy Harney, will define the abuse of a dominant position differently from the previous narrow definition. That refers to newspapers.
If the principle exists regarding one medium, the principle and its potential for abuse exists in other media. Why should it be different for radio, television or new services? One comes back to the issue of whether it is being suggested that the market will sort out these matters. I doubt that is the case, given the Minister's support for public service broadcasting, accountability and all that kind of thing. If she does not accept Deputy O'Shea's amendments, she is acknowledging but staying silent on the possibility that a predator will arrive from outside radio, television or new services, or, alternatively, that someone will leave the radio and television service and head in the other direction. If this new legislation is to be introduced in other areas should it not also exist in this area for reasons of consistency?
The Minister replies by stating this is why she has such a robust public service broadcaster in Irish and English, although there will be no money but the people have been healthy without being able to eat regularly. However, what strength exists for them? We have not examined the cross-over between newspaper ownership and local radio which exists following the 1988 legislation. This is a situation in which someone from the newspaper industry became involved in radio. One could then move on to television and new services. Would it not be wise to include a preventative section in this legislation so we would not contribute to the Minister, Deputy Harney's burden as she is wrestling with competition after so long?
We are talking about new legislation which will deal with all media, not just newspapers. We are dealing with both types of media. I share the concerns of Opposition members regarding the dominant position referred to because we cannot accept abuse. However, any question of dominant positions in this regard comes under competition law which will be addressed in the new legislation. The Minister and Department of Enterprise, Trade and Employment and the Competition Authority are the relevant authorities in this area. The best way of approaching the issue is to wait for the legislation which the Minister, Deputy Harney, will introduce.
The Competition Act, 1991, deals with competition in the marketplace but we have agreed we are not talking about a marketplace. If she accepts the amendment, the Minister can assume the right to prevent these people from getting to first base. She can ensure it does not happen by preventing it under broadcasting legislation.
We are not just talking about newspapers but all media. We are talking about newspaper media mergers which will be encompassed by the legislation introduced by the Minister, Deputy Harney. I agree with the thrust and philosophy of the debate but it is best to leave this issue to the relevant Minister and Department which is where the power lies.
The Minister can give herself that power.
Amendment No. 14 cannot be moved as amendment No. 12 was agreed.
Amendment No. 12 was not agreed, Chairman.
The new section 5 was agreed.
It would have been helpful if the groupings had included a note to that effect.
Chairman, may I speak to the amendment?
Yes.
This is a Fine Gael proposal as outlined on Second Stage which seeks a comparative selection procedure operated by the ODTR for the award of a licence. The roll-out of DTT has been valuable in that DTT will be available in 97% of the country. This is a wonderful opportunity to address the fact that many households will not have access to the Internet, e-mail and interactive services. There is now a possibility of providing these valuable services by way of DTT.
We have proposed a comparative selection procedure and have outlined various stipulations which can be put to the companies. Set-top boxes could cost up to £200 and we are proposing that any company which wishes to bid for a DTT licence can reduce the charges. If they want access they will have to pay for the service, including for the set-top boxes, keyboards and various other necessary items. This will be a very valuable product and frequency spectrum which will be attractive to many bidders. Now is the time for the State to intervene and say what we want in terms of digital television. This does not interfere with the director's discretion but gives the State a way to organise the distribution of radio spectrum.
The amendment refers to mitigating against the effect of social exclusion. There are many aspects which can be addressed by the ODTR, including distribution of signal, infrastructure and transition capacity, to ensure we have effective roll-out and delivery of services throughout the State. It should not be left to some company to decide how to do it, but should be addressed at this stage and set out in the legislation.
The costs will be enormous and it will attract a high level of interest. We have already seen the results of frequency auctions across Europe and the enormous sums of money which have been paid for such facilities. The State has a responsibility to citizens to ensure digital television is delivered in an effective manner. We can now ensure the relevant apparatus is delivered and is capable of being installed in every house, that quality of reception and delivery is effective throughout the State and that customers receive a very valuable service. We hear much about the digital divide and that some people have access to PCs and laptops while others do not. The availability of interactive services is very attractive and we have an opportunity to ensure Internet and e-mail are available to every citizen. We have had much discussion about broadcasting and television, but attention must be paid to the opportunity of delivering these services to every household. That is the thrust of my amendment. I understand what the Minister said in stating her opposition to the amendment, but it is a valuable contribution to the debate on how to deliver DTT platform throughout the country.
It seems, as the Minister has said, there is a difference of policy or interest between her and the Deputy. The Minister is retaining the power while Deputy Clune's amendment would reduce or ameliorate that in some way.
The amendment cannot be moved. I have already dealt with the issues which have been raised. There is a fundamental difference of policy between myself and the Deputy. The amendment turns the establishment of DTT into a telecommunications matter, which I cannot accept.
We are not just talking about broadcasting but about the delivery of interactivity and the facility to do so to every household in the country. However, I accept the point made by the Chairman.
On the last occasion the Minister explained that she was acting on the situation which prevailed at the time the Bill was published. The Deputy is saying things have moved on and the media may have gone ahead of us.
It is not even clear from the Bill how we will establish DTT and how it will be delivered to every house. The Minister will designate a company but we are not clear about the stipulations and criteria to be given to the company. We have an opportunity to place in the Bill the criteria for selection.
Some of the issues referred to by Deputy Clune are included in later sections of the Bill.
I wish to seek clarification of subsections (4)(d) and (e). Subsection (4)(d) states that one of the principal objectives of the transmission company is to promote the development of multi-media services, while subsection (4)(e) talks about promoting the development of electronic information services, including those provided by means of the Internet. How much scope is there on the platform to provide multi-media and electronic information services? How much scope remains on the platform for the development of these services as set out in this section?
The Labour Party holds the view that the objective of legislators should be to provide the best quality service at the lowest possible price for the public at large. Deputy Clune raised the point that we must safeguard development in every way to ensure society does not develop further along the lines of the information rich and the information poor. What safeguards will the Minister put in place, not only in terms of delivery of broadcasting services but in the area of convergence, that is, the provision of converged telephony, broadcasting and Internet services currently being made available by companies on other platforms? Are there mechanisms available to the Minister to ensure these services will be within the comfortable financial reach of all citizens?
The regulation of services will be the responsibility of the ODTR. Deputy Clune and Deputy O'Shea raised the issue of set-top boxes in the context of general take-up. The retail company will be responsible in this regard and it will be in its interest to ensure there is a take-up of digital facilities. In Britain rental and free set-top boxes have been offered to encourage people to take up the digital product. We must remember that analogue will continue for the next 15 years, so there is no question of one regime completely disappearing overnight. We discussed this at the last meeting.
There is provision for the retail company to introduce other services. That would allow us to get into subscription television, pay per view etc. If the digital terrestrial service is successful, can convergence packages be provided? It is important that everyone's rights would be safeguarded. Will the services which will be available on the digital terrestrial platform be way beyond many people's financial range? Is it likely that most people will opt for the lowest cost package while there will be other packages which could only be availed of by people who are relatively well off? Does this mean that many people will be excluded from cutting edge technology in regard to telephony and Internet services? It is important for children to have the opportunity to learn IT skills in the home but many of them could be excluded if the price of services becomes too prohibitive. The Minister appears to be saying that market forces will determine what will happen in regard to the up-take of services.
The regulation of services will be a matter for the ODTR. Deputy O'Shea recognises that it does not come within my area of responsibility as the ODTR comes under the remit of the Department of Public Enterprise. The ODTR will be in a position to regulate charges and safeguards will be put in place in this regard in addition to safeguards for the regulation of services.
The Minister stated that it is in the retail company's interest to ensure that DTT is available in every household throughout the country. Surely, it is in the State's interest to ensure that all homes will be able to access DTT because of the importance of interactive services, access to the Internet etc. The Minister also stated that the market will dictate the cost. The cost could be extremely high even for households which only have the four indigenous channels and are not interested in upgrading. I understand that following the roll-out of DTT, they would still have to acquire a set-top box which would place a financial burden on them. The use of a television and keyboard as distinct from a PC is far more user-friendly because people relate more readily to a television. This will ensure a higher level of take-up of services.
We now have a very valuable opportunity to provide interactive services to all households and we should avoid further deepening societal divisions through prohibitive costs. I have been conscious of that in the amendments I have tabled and am disappointed the Bill does not do more to address this issue.
The ODTR is responsible for the level of interactivity but I understand that the allocations made in this regard are quite low. The Minister now has an opportunity to indicate a desire to see the figure increased. I appreciate she is dealing solely with the broadcasting aspect of this matter but we should not fail to recognise that DTT is a very valuable service which should be available to all houses throughout the country.
I re-emphasise the point that the Bill provides for interactive services. I agree with Deputy Clune that to do anything less would be to go into the future blindfolded.
The regulation of charges is a matter for the ODTR. The speedy take-up of DTT would obviously be in the retail company's interest and I agree with the Deputy that the State has a responsibility to ensure the speedy roll-out of DTT. I chose DTT because it offers the greatest level of access.
What is the position in regard to the duration of the proposed licences?
Again, that is a matter for the ODTR. The Deputy should not be overly concerned about this matter, considering that the bulk of her amendments to the earlier section left all decisions entirely to the ODTR.
People who may be interested in investing in the company should be given some assurance or indication as to the duration of the licences. That would expedite the roll-out of DTT.
The ODTR will deal with this issue. The Deputy's amendments show that she has every faith in the ODTR, as we all have.
Amendments Nos. 15 to 18, inclusive, will be discussed together.
I move amendment No. 15:
In page 9, before section 6, to insert the following new section:
"6.—(1) In this section the 'relevant section' means section 16 of the Act of 1960.
(2) Subsection (3)(a) of the relevant section shall be construed as including a prohibition with respect to the transmission company exercising its powers to transmit programme material (other than programme material referred to in section 7(2)) of a like kind to the prohibition which that subsection contains with respect to the Authority exercising the powers referred to in paragraphs (a) and (b) of subsection (2) of the relevant section and, accordingly, the Director may, in accordance with this section, issue licences under subsection (3) of the relevant section to the transmission company as well as to the Authority and attach conditions to any licence so issued to that company.
(3) On such date as the Minister, after consultation with the Minister for Public Enterprise and the Director, specifies for the purpose of this section, the Director shall issue a licence under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, or both those enactments as appropriate, to—
(a) the Authority with respect to the operation by it of any apparatus the operation of which requires a licence under either or both of the said enactments and which apparatus has not been the subject of the transfer referred to in section 5(3), and
(b) the transmission company with respect to the operation by it of any apparatus the operation of which requires a licence under either or both of the said enactments and which apparatus has been the subject of the said transfer.
(4) Pending the issuing by the Director of the licences referred to in subsection (3), any licence issued by the Authority under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, and in force immediately before the date specified for the purposes of subsection (3), shall, in so far as any right or obligation arising under it relates to an apparatus which has been the subject of the transfer referred to in section 5(3), operate and have effect as if it had been granted to the transmission company.
(5) Upon the issue by the Director of a licence referred to in subsection (3), any licence issued to the Authority under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, (including any licence to which subsection (4) applies) which relates to the same matter as the first-mentioned licence relates to and is in force immediately before the issue of that licence shall stand revoked.
(6) Paragraphs (b) and (c) of subsection (3) of the relevant section shall apply to a licence issued under that subsection to the transmission company as they apply to a licence issued under that subsection to the Authority and, for the purposes of such application, the reference in the said paragraph (b) to the Authority shall be construed as a reference to the transmission company.”.
This amendment deals with the issue of analogue transmission licences by the ODTR. While the text in the new section 6 is substantially different from the old section 6, the purpose remains the same. RTE currently holds analogue transmission licences from the ODTR for its transmission network under the Wireless Telegraphy Acts and Broadcasting Authority Act, 1960. After the sale of the network, the transmission company will also require analogue transmission licences. To facilitate a smooth start-up, it is proposed to give the director the power to issue licences to the transmission company under the Broadcasting Authority Act, 1960. The director has the power to issue licences under the Wireless Telegraphy Acts.
If there is a delay between the designation of the new company and the granting of licences by the director, it is proposed to allow the transmission company to begin immediate transmission by providing that the rights and obligations set out in RTE's existing licences will operate and have effect as if they have been granted to the transmission company.
Amendment No. 17 seeks to amend the original section 6 by inserting a specific reference to the transmission network. I hope Deputy O'Shea will recognise that the new section 6 makes it clear the licences relate to the transmission equipment which has been transferred from RTE to the transmission company.
Amendment No. 18 also seeks to amend the original section 6 by requiring that a draft of a direction under the original section be approved by both Houses of the Oireachtas. However, under the new section 6 the only function the Minister will have relates to the setting of a date for when the ODTR shall issue the new licences. I do not believe such a role warrants the making of an order approved by both Houses of the Oireachtas.
Accordingly, I oppose Deputy Clune's amendment to my amended section 6.
I understand from what the Minister has said that what I am seeking in my two amendments does not arise because the only function left to the Minister is setting a date for the ODTR to issue. On that basis I will withdraw amendments Nos. 17 and 18.
There are two licences, one of which will go to RTE and the other to the transmission company. This goes back to a previous discussion with Deputy Higgins concerning the transfer of the licences from RTE to the transmission company. These are valuable licences and they should probably remain with RTE. The Minister is proposing to separate the licences. This will lead to confusion. Will the Minister outline how she proposes splitting the licences?
They must have a licence to operate the network. I am not sure where the Deputy is coming from because her proposals seem to be contradictory. Section 6(3) provides that the director on a date specified by the Minister, after consultation with the Minister for Public Enterprise and the director, shall issue a licence under subsection (3) of section 16 of the Wireless Telegraphy Acts, 1960, to (a) the authority in relation to that part of the transmission network which is not subject to the transfer referred to in section 5(3) which requires the licence and (b) to the transmission company in relation to that part of the transmission network which is transferred to the company for the authority which requires the licence. All RTE's transmission equipment will not transfer to the transmission company. Equipment related to RTE's broadcasting activities such as microwave lengths, radio telephones and radio microphones will not be relevant to the business of the transmission company. It is necessary to differentiate between equipment which is subject to a transfer under section 5(3) and equipment which is not.
Is a licence being transferred to the transmission company here?
No.
I move amendment No. 1 to amendment No. 15:
In the first line of the new subsection (3), after "Minister" to insert "acting only upon the advice of the Director following an open, fair and transparent selection procedure".
