Broadcasting Bill, 1999: Committee Stage (Resumed).

NEW SECTIONS.

I move amendment No. 19:

In page 10, before section 7, to insert the following new section.

"7.—(1) The Director shall, on a date specified by the Minister, after consultation with the Minister for Public Enterprise, for the purposes of this section, grant to the transmission company, under the Wireless Telegraphy Acts, 1926 to 1988, a licence which shall be known as the 'digital terrestrial television licence' and is in this Act referred to as the 'DTT licence'.

(2) The DTT licence shall be expressed to authorise, and shall operate to authorise, the transmission company 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.

(3) Without prejudice to any powers he or she may have in that behalf under the Wireless Telegraphy Acts, 1926 to 1988, the Director may attach such conditions to the DTT licence as he or she considers appropriate including conditions specifying requirements to be complied with by the transmission company in respect of the entering into of arrangements under subsection (1) of section 11 or the imposition of charges under subsection (3) of that section and, in particular—

(a) a requirement that, as respects such arrangements that are entered into in similar circumstances by the company with different persons for the transmission of broadcasting services comprising similar kinds of programme material supplied to it by each of those persons, the terms of those arrangements, and the charges imposed in respect of them, are similar,

(b) a requirement that the company, as respects any decision made by it to exercise or not to exercise its power under subsection (3) of section 11, and as respects any consequent exercise by it of that power, otherwise ensures fairness of treatment of the persons concerned, and

(c) a requirement that the transmission company supplies such information to the Director, and adopts such procedures in the performance of its functions under this Act, as the Director specifies, in pursuance of the requirement, for the purpose of enabling the Director to verify that each condition attached to the licence is being complied with.

(4) Nothing in this section shall be construed as preventing the Director from granting under the Wireless Telegraphy Acts, 1926 to 1988, in addition to the DTT licence and whether to the transmission company or any other person, licences authorising the transmission, by digital terrestrial means, of programme material and related and other data in a digital form.".

This amendment, which has been discussed at length in the past two days, deals with licensing of the transmission company by the ODTR. At yesterday's meeting and at the previous meeting last week during the discussion of amendment No. 3, I outlined the strategy behind this amendment and discussed its provisions in detail. I have nothing further to add at this stage.

Amendment No. 1 to amendment No. 19 was discussed with amendment No. 12.

I move amendment No. 1 to amendment No. 19:

In the first 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".

The Minister should not designate a company and give instruction to the ODTR. We now have the ability to specify in a Bill what the State would like to see happen. The Director of Telecommunications Regulation has told this committee that she is willing to accept guidance on this. My amendment would establish in legislation the type of structures we would like to see.

This section deals with DTT transmission. My amendment does not give all the power to the ODTR. It proposes that the ODTR be given guidance and that the State outline how the transmission company should operate. Power should not rest with the Minister. I move this amendment in an effort to gain more openness and transparency in the granting of these valuable licences.

Amendment to amendment put and declared lost.

How stands amendment No. 19?

May I discuss section 7?

You may discuss the section, Deputy, if you wish.

I am not happy with the answer I received from the Minister on this matter yesterday. The broadcasting spectrum granted to the company which holds this licence will be a very valuable product. The EU draft directives were implemented in July. I am concerned that we are granting a very valuable broadcasting spectrum and frequency to this company. How will it be paid for? It is not clear if the frequency spectrum will be given to the highest bidder. We raised this matter yesterday and it is unclear. The Minister said she spoke to the Attorney General and he is happy with it. The transmission company will have a valuable broadcasting spectrum and frequencies but there is no provision for accountability in the Bill.

I am reluctant to intervene but as a vote has been called in the Dáil we will suspend the sitting.

Sitting suspended at 10.40 a.m. and resumed at 11.10 a.m.

Deputy Clune was in possession and expressing her reservations when I interrupted her. Has the Deputy completed her contribution?

It is not very clear what exactly will be for sale. While I can understand the hardware, transmission sites and the infrastructure necessary to transmit programming being for sale, who will pay for the very valuable broadcasting and frequency spectrum? Will it be given to the private company, in which RTE will have a 28% stake? Will it be considered part of the assets for sale? Is it the case that it will be gone forever from the ownership of the people, to whom it belongs? This is a matter about which I am very concerned. I am not satisfied. Perhaps the Minister will clarify the matter and satisfy our concerns either now or on Report Stage.

We have discussed this issue on a number of occasions, both yesterday and last week. In case the Deputy is under a misapprehension, there is no question of the frequency spectrum in the ownership of the people being sold to the highest bidder. All such phrases are not correct or accurate. The transmission company will only be licensed to use the spectrum provided. The transmitter will broadcast by means of analogue and the multiplex company by means of digital. The transmission company will have no discretion in relation to the broadcasting and frequency spectrum, which many companies have been licensed to use. It is, therefore, a question of licensing, not of selling something in the ownership of the people. I have explained all this already. It comes down, again, to the policy differences between the Deputy and me on the issue.

It is a concern that I have. Who will own the valuable frequency spectrum? Will it remain in State ownership, in other words, in the hands of the people?

One has to have a licence to use the frequency spectrum. That will remain the position. It is not a question, therefore, of selling it to the highest bidder. It is a question of being licensed to use it, not of ownership.

The licence will be granted to a private rather than a State company. For how long will it hold it?

The licence will be issued by the regulatory body, the ODTR, and the same procedure will apply. It is the relevant independent body with the necessary expertise, knowledge, power and responsibility to issue licences. It is a question of licensing, not of selling something in the ownership of the people.

A number of issues were raised with me, on which I seek clarification from the Minister to determine whether it would be appropriate to table amendments. They relate to section 7(8) and (9). Subsection (8) reads:

The Director shall attach a condition to the DTT licence requiring the designated company, where the Commission, in accordance with a direction given by the Minister under subsection (9) for the time being in force, requests it to do so, to use a multiplex or part of a multiplex solely for the purposes of transmitting programme material supplied to it under and in accordance with this Act by a person who provides a broadcasting service in Northern Ireland, being a broadcasting service that is receivable throughout the whole of Northern Ireland and which is provided by terrestrial means.

There are six indigenous broadcasters on the island — RTE, Network 2, TG4, TV3, UTV and BBC Northern Ireland. The words "part of a multiplex" are vague and require clarification or definition in numerical terms, in terms of the number of channels that may be available or in technical terms. UTV made a submission highlighting its concerns. If an indigenous broadcaster in Northern Ireland is to invest in programming, it will need something firmer than the words "part of a multiplex", which are rather vague. There is a need for a clearer definition of what exactly these words mean, either in numerical or technical terms.

Under subsection (9) the Minister will have the right to give a direction——

Let me interrupt the Deputy because I may have erred. To remain in sequence, I have to put the question first on amendment No. 19 to section 7 in the name of the Minister.

I indicated that I wished to address the section, rather than the amendment, which procedurally has to be completed first.

Deputy Clune's amendment has been discussed and voted on. Deputy O'Shea may now proceed.

I have dealt with my concerns about section 7(8). Is there a problem, Chairman?

There seems to be a procedural difficulty. The Clerk has indicated that I should put the question on section 7 now and that the decision on the final amendment should be in the negative.

Can I be of some assistance regarding that?

The Clerk has advised that we should finish the section. We will do that and then I will call the Minister.

The question, "That section 7 stand part of the Bill", has been put and the decision should be in the negative. The Minister said níl and the Opposition said tá so I believe——

Is it that the section, as amended, stand part of the Bill?

Yes, the section, as amended.

So why would the Minister respond in the negative?

The decision should be in the negative. It is written down by the Bills Office so I am in their hands. Section 7 is negatived. It has all been agreed and our good staff will record it fully.

May I raise a point in relation to section 7, amendment No. 19? Does acceptance of this amendment involve the deletion of section 7?

Yes. That is why it is negatived. In his preamble Deputy O'Shea said that he did not have an amendment down and he wanted the Minister to clarify the position.

I am a bit confused. Amendment No. 19 states: "In page 10, before section 7, to insert the following new section". That is an insertion into the existing section 7. It states that these are the appropriate references if amendment No. 25 is accepted, and acceptance of this amendment involves the deletion of section 7 of the Bill. We have not disposed of amendment No. 25.

Can I be of some assistance, Chairman? With regard to the issue raised by Deputy O'Shea, we will be discussing that, with the permission of the Chair, with amendment No. 22 so the Deputy will have an opportunity then to discuss the issue with regard to the North.

The powers in subsection (8) about which Deputy O'Shea was talking have been eliminated by virtue of the new section inserted by the Minister. Deputy O'Shea was talking about the conditions the director would attach to a DTT licence.

By way of clarification, in relation to the provision of a multiplex or part of a multiplex for material that is broadcast by an indigenous company in Northern Ireland, can they still get a multiplex or part of a multiplex? Is that still included?

But it has been removed from where it was originally and inserted into the other section?

Yes. That is why it is under amendment No. 22.

Amendment put and agreed to.
Amendment No. 20 not moved.
Section 7 deleted.

I move amendment No. 21:

In page 12, before section 8, to insert the following new section:

"8.—(1) In this section—

'multiplex' means a multiplex referred to in subsection (3);

'the multiplex 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 multiplex 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 one or more than one person who or 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) The principal objects of the multiplex company shall be stated in its memorandum of association to be—

(a) to establish, operate and maintain 6 digital multiplexes, that is to say, 6 electronic systems which combine programme material and related and other data in a digital form for the purposes of that material and data, so combined, being transmitted by the transmission company,

(b) to enter into arrangements, in accordance with the provisions of this Act, with the Authority, Teilifís na Gaeilge, the television programme service contractor and any other person concerned for the transmission of programme material and related and other data in a digital form by the designated transmission company,

(c) to promote the development of multimedia services, and

(d) to promote the development of electronic information services, including those provided by means of the Internet.

(4) Nothing in this section shall prevent or restrict the inclusion among the objects of the multiplex 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.

(5) The multiplex 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.".

This amendment deals with the establishment of the multiplex company. At the start of last week's meeting, and again yesterday, we discussed this issue and I outlined the strategy behind amendment No. 21 and discussed its provisions in detail. I have nothing further to add at this stage. Amendment No. 1 to my amendment No. 21 was discussed with amendment No. 12 on the last occasion.

Does the company that must be registered under the Companies Act have to be registered in Ireland? Is that not contrary to freedom to provide services in the EU in that any company can apply for a licence to become a multiplex company? Are we not alienating other companies or is it restricted to Irish companies?

To clarify that matter, we can only license somebody who is in the jurisdiction.

So the company would have to be registered in Ireland?

Can another company registered in Europe——

There is obviously an opportunity for another company to come in.

I presume they would have to comply with company law here.

In other words, register here to comply with their statutory responsibilities?

On the multiplexes, is it possible that somebody could split them to provide a local service? That is not really addressed in this section.

The question of the frequencies will be a matter for the multiplex company and the ODTR.

I move amendment No. 1 to amendment No. 21:

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,".

Amendment to amendment put and declared lost.
Amendment No. 21 put and declared carried.

I move amendment No. 22:

In page 12, before section 8, to insert the following new section:

"9.—(1) The Director shall, on a date specified by the Minister, after consultation with the Minister for Public Enterprise, for the purposes of this section, grant to the multiplex company, under the Wireless Telegraphy Acts, 1926 to 1988, a licence which shall be known, and is in this Act referred to, as the 'digital multiplex licence'.

(2) The digital multiplex licence shall be expressed to authorise, and shall operate to authorise, the multiplex company to establish, operate and maintain 6 multiplexes.

(3) The Director shall attach to the digital multiplex licence a condition requiring the multiplex company to use the whole or, as the case may be, the part of a multiplex specified in column (2) of the Table to this section solely for the purposes of programme material and related and other data supplied to it by the person who is specified in column (1) of that Table opposite the specification of that whole or that part of a multiplex.

(4) If, on the expiration of the appropriate period, a person specified in column (1) of the Table to this section—

(a) has not supplied any programme material and related and other data to the multiplex company for the purposes of that material and data being combined in a digital form by means of the multiplex or part of the multiplex specified in column (2) of that Table opposite the specification of that person, or

(b) is not supplying programme material and related and other data that is sufficient to exhaust, on a day-to-day basis, the capacity of the said multiplex or part,

the designated multiplex company may use—

(i) in a case falling within paragraph (a), the whole of the said multiplex or part,

(ii) in a case falling within paragraph (b), so much of the said multiplex or part as is not being so exhausted,

in respect of programme material and related and other data supplied to it by another person or persons under and in accordance with this Act or for the purposes referred to in subsection (8).

(5) In subsection (4) 'appropriate period' means the period beginning on the commencement of this section and ending on such day as the Commission, after consultation with the multiplex company and the first-mentioned person in subsection (4), determines to be the day by which in the opinion of the Commission, it would be reasonable to expect that person to be supplying sufficient programme material to that company to exhaust, on a day-to-day basis, the capacity of the multiplex or part referred to in that subsection.

(6) The Director shall attach a condition to the digital multiplex licence requiring the multiplex company, where the Commission, in accordance with a direction given by the Minister under subsection (7) for the time being in force, requests it to do so, to use a multiplex or part of a multiplex solely for the purposes of programme material supplied to it under and in accordance with this Act by a person who provides a broadcasting service in Northern Ireland, being a broadcasting service that is receivable throughout the whole of Northern Ireland and which is provided by terrestrial means.

(7) The Minister may, whenever and so often as he or she considers it appropriate to do so, give a direction to the Commission requiring it to make a request of the multiplex company of the kind referred to in subsection (6) and the Commission shall comply with that direction; such a direction may be revoked at any time by the Minister and where the direction is so revoked, the multiplex company shall thereupon be relieved of the obligation of having to comply any further with the request concerned of the Commission.

(8) Subject to subsections (3) and (6), nothing in this 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 relating to the provision of services concerned which is for the time being in force.

(9) Without prejudice to any powers he or she may have in that behalf under the Wireless Telegraphy Acts, 1926 to 1988, the Director may attach such conditions to the digital multiplex licence as he or she considers appropriate including conditions specifying requirements to be complied with by the multiplex company in relation to the imposition of charges under section 12(4).

(10) The requirement imposed by a condition referred to in subsection (3) or (6) to use a multiplex or part of a multiplex for the purposes referred to in subsection (3) or (6), as the case may be, may be satisfied by the multiplex company using, with the consent of the relevant person specified in column (1) of the Table to this section, so much of the capacity of 2 or more of the multiplexes that is equivalent to the capacity of that multiplex or part, and references in this section to the capacity of a multiplex or a part of a multiplex being exhausted or not being exhausted, as the case may be, shall be construed accordingly.

(11) Nothing in this section shall be construed as preventing the Director from granting under the Wireless Telegraphy Acts, 1926 to 1988, in addition to the digital multiplex licence and whether to the multiplex company or any other person, licences authorising the combination, by means of a multiplex other than a multiplex referred to in section 8(3), of programme material and related and other data in a digital form.

TABLE

(1)

(2)

The Authority Teilifís na Gaeilge The television programme service contractor

One multiplex One half of one multiplex One half of one multiplex

Amendment No. 22 deals with the licensing by the ODTR of the multiplex company. At the start of the meeting on the first day and yesterday these matters were discussed, along with amendments Nos. 3 and 5. I outlined the strategy behind amendment No. 22 and discussed its provisions in detail. I have nothing further to add other than to address the point raised by Deputy O'Shea earlier with regard to the question pertaining to the North.

We do not know the number of Northern services that might be the subject of a direction under this subsection. There seems to be little point now in determining precisely the capacity that would be needed. It may be a full multiplex or it may be simply part of the capacity on a multiplex. For the purposes of the direction to guarantee access for Northern broadcasters, all we need to have is the power to direct that sufficient space be made available. That is what is contained in the Bill.

I thank the Minister for that explanation. She indicated that the immediate need would be for two multiplexes. On the technical problem about the strength of various multiplexes, if indigenous broadcasters in Northern Ireland apply for a licence to provide programmes here, will there be a quality multiplex or part of multiplex available to them?

This point was made previously by Deputy O'Shea when he was concerned about the strength of the multiplexes. We discussed this at length and I was at pains to point out that my information on the technical side is that there is no question of some multiplexes having greater strength than others. There will not be a two tier multiplex system, as it were. Obviously, we were concerned about the Northern broadcasters and want them to be able to take up their positions. Under this part of the Bill we can direct that sufficient space be made available. I doubt that there will be any technical difficulty with it. We are providing that we will be able to deal with that proposal should it arise.

There was a reference to indigenous broadcasters in Northern Ireland. BBC broadcasts in Northern Ireland as do many other broadcasters such as BSkyB. How will it be possible to restrict it to indigenous broadcasters, or will it apply to every broadcaster in Northern Ireland?

This is a political decision as much as a broadcasting one in the sense that we hope a reciprocal arrangement will develop for all broadcasters who are situated in the North.

I hope, therefore, it will be possible for TG4 to be received in all parts of Northern Ireland. Is that the type of reciprocation the Minister has in mind?

Yes. That is the philosophy behind this part of the Bill. We wish to see TG4 become as universal as is technically possible. We cannot guarantee 100% coverage but where it is technically possible we wish to encourage it.

This is an important point. I accept it is impossible to guarantee 100% delivery of access. However, Gaeltacht areas will be the most difficult areas in which to deliver a service. We have talked about a possible 97% delivery but that might only mean 60% in the Gaeltacht areas. There is a conflict here in that we are trying to get universal service to Gaeltacht areas yet, because of the technical and engineering restraints in delivery, it will be difficult to get even the 97% delivery we are seeking. That will be a problem.

We want to see universality with regard to TG4 for many reasons, not least cultural reasons. We cannot give a guarantee that the coverage will be 100% anywhere in the country but we obviously wish to see the percentage increase and to give more people an opportunity to avail of the service. I will look at this issue and, perhaps, refer to it on Report Stage. We have the same idea on it.

On a separate issue, my understanding is that the broadcasters will pay multiplex companies for distributing their signal. While I strongly believe there should be multiplex space available to our indigenous broadcasters, will broadcasters such as BBC pay the multiplex companies? They might not wish to do that so BBC might not be available to the people to whom we are trying to give universal access.

The ODTR will determine the charges for "must carry" services. The independent body will be the regulator in that regard.

BBC is not a "must carry".

No, it will negotiate in the same way——

The BBC might not want to do that. It might not be of interest to the BBC to negotiate for access in this country. Deflectors are popular because they offer a broad range of programming and channels. How will this compare with the availability on multiplex or DDT?

I cannot see why the broadcaster would not be interested in getting involved in the first place. Second, this has nothing to do with deflectors.

No, but deflectors provide BBC. I am a little concerned about this. There is no reason for the BBC to seek availability in Ireland or to negotiate for it with a multiplex company. There would be no advertising revenue for the station. I am concerned the package might not be as attractive as we would hope.

It is easy to say that. Taking a practical viewpoint, I cannot understand why the Deputy thinks the BBC would not wish to get involved. There is evidence that it does. It is looking to be carried on cable for example.

There was a concern that in the switch to digital the coverage TG4 has achieved so far could come under pressure. One of the MMDS operators assured me there is no compatibility problem between MMDS and digital. If there was such a difficulty, there was concern that MMDS analogue would remain so the universal coverage would not be lost. However, in view of the information I received and the Minister's comments, we need not be concerned in that regard.

Amendment No. 22 to insert a new section states:

(7) The Minister may, whenever and so often as he or she considers it appropriate to do so, give a direction to the Commission requiring it to make a request of the multiplex company . . .".

I see, to an extent, what the Minister has in mind and I have no problem in principle with the subsection but I am concerned that it is too broad. Would it not be prudent to indicate the areas in which directives should be given and not leave the provision so broad? I am not suggesting that this power might be misused by the present Minister but the power is provided for and is unrestricted. We do not want to provide for a level of illegitimate interference by the Minister in the broadcasting corporation of Ireland.

I hope there is no suggestion that there would be any illegitimate interference. The kernel of the Deputy's argument appears to be that this section is too broad.

If we were to go into that kind of detail in the Bill it might cause certain unwarranted restrictions on future developments. There seems to be no reason to limit ourselves to one technical solution or set of technical solutions at this stage. The Deputy said he has no particular problem with the general thrust of what we are trying to do here. It may work to our advantage to leave this with no restrictions, in terms of broadcasting at a later stage.

Effectively, a power is being given to a Minister in regard to directives which could be abused, although the Minister of the day might not regard his or her action as an abuse. I am seeking to have that situation addressed. I am not suggesting there should be widespread restrictions but that some formula of words should be found to eliminate giving improper directions.

The direction under subsection (9) is clearly restricted to the purposes set out in this subsection (8), that is guaranteed access for Northern broadcasters. It is that guarantee about which the Deputy is concerned. His concerns are already incorporated in that subsection.

The directions do not refer to anything in particular. It is a very wide-ranging power and does not just refer to multiplexes in relation to Northern Ireland.

Subsection (7) of the amendment states:

The Minister may, whenever and so often as he or she considers it appropriate to do so, give a direction to the Commission requiring it to make a request of the multiplex company of the kind referred to in subsection (6) and the Commission shall comply with that direction;

Subsection (6) refers to the subsection immediately above.

Given that explanation, I accept my fears are unfounded. The wording is slightly different to the original text.

The references are different.

I am satisfied on that point. I thank the Minister.

There is some concern about the "must carry" status. The indigenous broadcasters that have been given multiplex capacity will have a number of extra channels. Presumably, the "must carry" status will apply to that as well. We have no idea what the content of those channels will be. Will a shopping channel or an American football channel have "must carry" status? Is that possible under this set up?

Programming is a matter for the broadcasters. It would not be a matter for legislation such as this.

RTE will have five channels, all of which will have "must carry" status, regardless of content. It might have six channels — I am sure the technology is changing. We do not know what will be the content of those channels. For example, one of them could be a shopping channel, which would automatically have "must carry" status. Is that a correct reading of it? Is that the intent?

The question of content is for the broadcasters to decide.

I know that. However, that content has a "must carry" status.

So TV3, RTE or TG4 could have a shopping channel, which would be very valuable to them. That could have "must carry" status.

It could well have.

It could be American football either. Can that be done? Can such channels be given "must carry" status, which would have a commercial value?

There would be an opportunity to do that, but it is up to the broadcasters to decide on the kind of programming.

Will this "must carry" status extend to cable, MMDS and DSL lines?

No. They will be given guaranteed access to the DDT. However, the question of content is a matter for the broadcasters. We cannot dictate to them what kind of programmes to have.

My concern is that this could be very valuable space to them. Is the Minister happy with that?

It is not a question of dictating the content of programming to, for example, TV3, which is a commercial entity, or to other broadcasters. This is a matter for the broadcasters. There will be great opportunities, in digital terms, for all sorts of programming. I would like to see programmes of educational use. There will be shopping channels and other types of channels that will be of great benefit to the consumer.

I want to raise a couple of points in regard to amendment No. 22. Do "broadcast" and "rebroadcast" enjoy the same status in relation to the proposed amendment? For example, if there were a 24 hour schedule, would there be a requirement for simultaneous carrying or could the "must carry" provision be implemented by a rejigging of the schedule? For example, could all the "must carry" material be put on for insomniacs in the middle of the night?

I accept the Minister's point that it is for the broadcasters to make the programmes. However, scheduling is another matter. The Minister seems to be going down the road of saying that the consumer, although I would say "the citizen"——

I stand corrected — it is the consumer.

——becomes his own programmer, effectively. How does that affect the "must carry" provision?

In what way?

If, for example, one had a public service broadcasting requirement in relation to television sans frontières, one could offer it during the night-time schedule, which would mean one had defeated the principle. Does the "must carry" provision mean that programmes must be carried on such channels as scheduled by the originators? Will the programme as originated, made and finished, have its "must carry status implemented by the requirements in the Bill at the same time, or is the person entitled to take the content that is part of the scheduled programming and rejig it?

No, he is not. We are talking about an opportunity in the digital age for broadcasters to have a greater variety of types of programme, if they wish. How they come up with that is obviously a content issue, and that is a matter for themselves. The broadcasters remain in control of their own schedule, otherwise one would have interference and then where would we be in terms of public service broadcasting?

Let us be clear about this. In relation to a schedule as announced by a broadcaster who enjoys "must carry" status in relation to licensing requirements, the schedule as published by the originating broadcaster is what enjoys the "must carry" provision?

We will deal with this matter in amendment No. 26, also.

Is that clear? Do both Deputies who raised this matter understand the "must carry" provision?

My technical competence might not be as great as the advice available to the Minister, but my final point relates to what I said previously. We have now established that broadcasters who enjoy "must carry" status will have their schedule, as drafted by them in its original state, carried as a "must carry" requirement relating to anywhere else. What about surrendering the capacity of the multiplex in a programming sense? Is that free space as far as the person who has been licensed is concerned?

I will have to get some advice on that as it is a technical issue.

We can deal with it in another section, but opinions differ as to the positive or negative consequences of the citizen-consumer becoming his own broadcaster. It has implications for seamless scheduling in relation to the traditional concept of public service broadcasting, but we can leave that matter until later.

My advice is that the space will be handed back after a period to be decided by the broadcasting commission; that is, if the broadcasters do not use that space.

That is very helpful. Therefore, in reviewing the usage, non-usage and handing back, the broadcasting commission will be governed by principles that are established in the legislation. How often will that review take place?

It will depend on use of that space. If it is not used at any time it will be dealt with at that time.

So the commission will have to decide——

It is the broadcasting commission.

——that a proportion of the capacity relates to one's obligations and a proportion of it is for one's beautiful, inspirational and insightful usage of this new tool. The rest of it can be used for purchasing pure rubbish at the cheapest possible price on the international market. At this stage, the broadcasting commission — as the Minister has described it — is almost exercising a programme opinion.

Well it is certainly exercising a scheduling opinion. There must be a distinction between that and filling 20% with trash that no one else would buy.

The answer to both questions is "no". In terms of usage, we are saying simply that the broadcasting commission will be dealing with a situation where the space is not used. It will not decide whether it is good or bad usage of that space.

In other words, therefore, to use an agricultural metaphor, that means it is not set-aside. One just fills it with thistles, putting rubbish in, and in that way the broadcasting commission has been beaten off. Is that not the consequence?

No, it is up to the broadcaster.

The broccoli instinct.

Broccoli, yes.

It is up to the broadcaster, Deputy.

I do not understand. It means, therefore, that in order to make sure one keeps the broadcasting commission off one's back concerning content, one simply uses up all the space one has. I am sure the Minister is not prone to interfering, and neither was I as Minister, but others were. The Minister is at a distance and correctly so, but I find it difficult to understand how the broadcasting commission will exercise its authority on this unused or used space. I accept the point that programme people make programmes, but somebody must have an opinion as to the balance of the use of the licence across its different proportions in terms of its impact on a set of citizens who are also consumers. As the Minister said, the problem is that if one uses the term "unused capacity" one will defeat that by simply filling the space, as the section is worded. Perhaps the Minister could look at this on Report Stage. Can the commission have an opinion as to usage?

No, and that is the distinction. We are certainly not talking about the commission having an input into usage. We are saying that if it is not used then the broadcasting commission will come in. The usage is up to the broadcasters. When we talk about broadcasters in these terms we mean RTE 1, Network 2, TV3 and TG4.

If that is the case, is not the broadcasting commission, as the Minister now describes it, much closer to the thinking of the ODTR than to the Minister with responsibility for broadcasting?

If it is just to have an opinion in relation to the space that is not used, it is irrelevant how the broadcaster fills it. No one is asking it to make a programme or to have an opinion on a programme. If, however, it does not have an opinion on the balance of usage across the different categories, I am simply asking, who has?

In this case, it is not a question of the broadcasting commission deciding whether it is good or bad usage of the space. We must not forget that the RTE authority has responsibilities.

What that means, therefore, is that the obligation in relation to public responsibility in public service broadcasting will fall on RTE, but on no one else. Who will exercise any responsibility in this regard? As regards the usage and non-usage of this space, are we moving towards a position where market principles prevail in an unregulated fashion? Or, if this is not the case and there are some regulatory norms, from where will they come? The Minister says the purpose of the broadcasting commission is to see whether the space is used or what proportion of it is used, but who has the broadcasting opinion? The Minister with responsibility for telecommunications is not preventing the broadcasting commission from issuing things technically. The Minister with responsibility for broadcasting, however, is appointing the commission to carry what is Government policy on broadcasting. The Minister and I happen to agree about the importance of public service broadcasting, but I cannot see how it will work if the Minister is at a distance and the broadcasting commission is only talking about whether or not the space is active. The Minister will just say a prayer about what happens to the spare capacity.

No. There is a significant responsibility on the RTE authority which has a role to play——

I know that.

——and on the board where TG4 has its responsibilities. When we talk about the space, it is to make sure that there is not a waste of capacity and that the broadcasters get a fair chance to use that space. It is up to the broadcasters to decide on the content. Their remit is set out in legislation as are their responsibilities in regard to the two bodies I mentioned initially.

Does the Minister envisage the broadcasting commission, for example, seizing or clawing back or having surrendered to it certain capacities of having an advertised commissioning round for programmes?

No. It is hard to understand from where the Deputy is coming on this.

It is quite clear in the proposed legislation. What we want to do is to ensure there is a fair chance to use the space. That is the only matter at issue here in this section. It will be up to the broadcasters as to how they use, and what they put on, that particular space.

We have teased it out a bit. From what the Minister said earlier, I can clearly discover what is falling within the regulatory environment of public service broadcasting. I am trying to identify the norms under which the residual operates — that is what I am really saying — and whether it is to be governed by a free market.

I will not delay this section on the question of the use of the phrase "the broadcaster" but a broadcaster could be anything really in its worst sense. We are talking about programme makers, people making choices and mixes. I am trying to identify whether there is a proportion of this that is unregulated and governed solely by capacity to attract, capture and retain audiences in terms of a consuming public. Who would have an opinion on the consequence of this? That is what I am really asking. I am sure the Minister would agree with me that one would want it used very responsibly.

What is happening in other broadcasting environments in all of this is that if you take a programme which draws a huge international audience, such as "Friends", do you plonk a programme into the middle of this and surround it with other things? Is the only argument the audience? That is my only point.

The whole question of programming and scheduling is obviously up to the broadcaster. To do anything else would be to interfere greatly with the independence of the broadcaster. Broadcasters have their own remits within which to work and I think that is the appropriate way to go.

I would like clarification on subsections (6) and (7). Will the Minister clarify whether I am correct in interpreting the two subsections in the following way? The Minister has the power, under these subsections, to give a direction to the commission to make a request to the multiplex company to provide a multiplex, or part of a multiplex, to a person who provides broadcasting material in Northern Ireland.

I am concerned about the revoking of such a licence. The revoking of such a licence is a ministerial function and, at the end of the day, that decision, as the section stands, is a political decision. Is it healthy that the decision to revoke such a licence would be purely a political decision? In other words, in revoking such a licence, there is no obligation on the Minister to consult the Broadcasting Commission of Ireland. The Minister can unilaterally make a decision to revoke a decision, or a direction, she has already given and which triggers the process we outlined there.

This direction will depend on the kind of reciprocal arrangements that will be there between the North and South in regard to broadcasting. If the Deputy thinks this should be strengthened, perhaps adding the need for consultation would be a way to go.

Bearing in mind the sensitivities that could arise here, we need to be clear that, at the whim of a Minister who might dislike a particular broadcaster, there cannot be a revoking of a direction which leads to a licence through the multiplex company .

I understand the Deputies point. Perhaps a way around this is to ensure there is consultation so that there could not be unilateral action. It might be helpful if the Deputy and I discussed this on Report Stage. We can see what we can do to strengthen that.

I am quite happy with that.

My amendments stated that I would like see a regional or a local multiplex reserved for regional or local television. Has the Minister thought about that or addressed it? We see the value of local radio through its extremely high listenership. Local and regional television will be a big thing in the future. The Director of Telecommunications Regulation has said she will see what is left and if there is any spare capacity it will be for local use and that it will be addressed afterwards.

I strongly contend that this should be addressed at this stage. Multiplex capacity should be reserved for local and regional television given the immense value it would have locally. Perhaps we could see the local authority meeting or the local hurling and football team play. Where will that fit into the overall scheme of things? Has the Minister addressed it? I see the immense value of local television given the success of local radio.

I share the Deputy's view of local radio which has been a tremendous success. The reason it has been so successful is that, as the Deputy said, it homes in on what is happening in people's local areas and people immediately identify with that so it keeps its listeners and listener numbers grow. The question of the opportunity for community television will be an important consideration. This will be up to the multiplex company and the ODTR afterwards. In terms of giving these out, the procedure will be through the multiplex company.

We have reserved a multiplex for Northern Ireland television. It would be appropriate if the Minister addressed this here and that we recognised the important value of local television, although it will probably be regional because of the expense and the difficulties with distribution. The Director of Telecommunications Regulation has said she will see what is available afterwards. It will be a poor relation to national television. We can stand over the record of local radio and how well that has served the public. There is no guarantee we will get a valuable service as the Bill stands. It is up to the multiplex companies, but they may not wish to take that offer or option up.

In regard to local radio, we are talking about a very different entity than, for example, community, local or regional television. There will be an opportunity there. The responsibility there will be for the multiplex company. We have to convince the multiplex company to carry that, if it is commercially feasible. We have had to ensure provision in regard to our indigenous stations — RTE 1, Network 2, TG4 and TV3 — and, of course, the discussion we have had with regard to Northern broadcasters. It will, however, be up to the multiplex company to deal with that situation. That will be its specific responsibility.

I would like to make a small technical point. I can see the difference between subsection (7) of the amendment and the order made annually under section 31 of the Broadcasting Act, and I am sure the intention is different. We will make the suggestion later that that section of the Broadcasting Act is not appropriate for broadcasting legislation and we seek to abolish it. The order made under section 31 was renewed every year. There was always a quibble as to whether it was renewed automatically, which was the case, unless a motion was introduced in the Dáil.

As the Minister has said she will consider between now and Report Stage the removing of any suggestion that this power under subsection (7) might be unilaterally invoked or whatever, is there not merit in her examining the possibility of the original order or direction and its later revocation being placed before the Oireachtas, thus ensuring an opportunity to consider it?

The Minister stated that what will happen by way of reciprocity between North and South will be brought into existence in an administrative sense under subsections (6) and (7). One presumes that it is only where this does not happen that the Minister then has the power to make a proposal that it will happen and equally she has the power later to revoke it. Should the Minister have to make the original suggestion or should she feel it necessary to make the revocation, the circumstances would be of such public importance that it would be worth considering this type of accountability in the Oireachtas, something which prevailed under the previous broadcasting legislation.

I am amused by the Deputy's reference to section 31 and I would seek to abolish that section. Regarding subsection (7), I have already given a commitment to examine this. Perhaps the Deputy and I could hold discussions before Report Stage about the best way to proceed. The Deputy's suggestion seems a little heavy handed, but we may be able to discuss it further.

Is it correct to proceed with the multiplex company having a monopoly and there being no room for anyone else in the business? Has the Minister obtained advice on this issue?

There is only one multiplex company under the Bill, but in the amendment under discussion, section 9(11) states:

Nothing in this section shall be construed as preventing the Director from granting under the Wireless Telegraphy Acts, 1926 to 1988, in addition to the digital multiplex licence and whether to the multiplex company or any other person, licences authorising the combination, by means of a multiplex other than a multiplex referred to. . . . .

That answers the Deputy's question.

Amendment agreed to.
SECTION 8.

I move amendment No. 22a:

In page 12, after line 49, to insert the following subsection:

"(3) No person shall sit on the Commission as a Commissioner unless their proposed appointment has been approved by the relevant Oireachtas Committee acting in public session.".

I would like to see this amendment implemented. There has been a great deal of discussion about the powers of committees of the House being extended. While I realise the Minister can appoint members of the commission, it would be essential that the appointees attend a meeting of the relevant committee to discuss their appointment and to question them so that the issue is in public and is transparent. We would know why people were appointed and their qualifications could be questioned and inspected. Whether their appointment would be agreed by the committee is another matter. It is something which could be accommodated by the Minister so that a committee representative of both Houses would have an opportunity to address appointees in this fashion.

As Deputy Clune said, the purpose of the amendment is to give the committee the power to decide who should or should not be appointed to the Broadcasting Commission of Ireland. The Government appoints the chair and members of the Independent Radio and Television Commission. It is also required to ensure a person has experience of or shown capacity in one of a number of areas, such as, for example, media or commercial affairs, radio, communications, engineering, trade union affairs or social, community, educational or cultural activities. These provisions are sufficient for the appointment of the commission and the additional layer of bureaucracy envisaged in this amendment would not be of any significant benefit. Accordingly, I oppose the amendment.

I am disappointed to hear that. I do not advocate that the names of the appointees be produced by the committee. The Government would have the opportunity to address the committee and give reasons for certain people being appointed to the commission. It would give public representatives an opportunity to discuss it because it is an important commission. As we discussed in the previous amendment, great powers will be advanced to the commission in terms of controlling broadcasting and broadcasting content. The benefit of coming before an Oireachtas committee cannot be underestimated, especially in light of recent evidence and revelations in tribunals of how a Minister or Government can appoint members to the broadcasting commission without any accountability. The amendment allows for openness, transparency and accountability, which are very important.

While I understand Deputy Clune's motivation, as a former Minister of State I have formed the view that the discretion of the Minister in nominating people to State boards is the better way. For example, there can be models where people represent various vocational interests and there is a tendency to get the person who is good at getting him or herself elected rather than the person one wants. On the other hand, there is the issue of being open and accountable in appointing people.

My concern would be where a person came before an Oireachtas committee and a Member decided to use privilege to say something which would not be said outside the House and to ask questions related to it. I could see the procedure of coming before an Oireachtas committee deterring some people from offering to serve on the commission who might have real ability and integrity but do not want close questioning of aspects of their private lives, such as issues relating to their families. On the other hand, I concur with the line of thinking on the principle of full openness on who is nominated and why.

I am trying to bring together a number of strands which possibly compete with each other. In the current climate the obligation to appear before a Dáil Committee before being formally appointed could deter people from going forward for no reason other than not wanting aspects of their private lives being dealt with in a public forum.

I am trying to develop a process whereby only legitimate questions could be asked and there would be control of the sort of information sought rather than having a private citizen being interrogated by people with privilege. I do not have the answer here, but I see where Deputy Clune is coming from and I sympathise with her point of view. On the other hand, I am concerned about how this would be done and about legitimate protections being in place for people coming before such a committee.

I do not envisage someone's personal life being questioned but I appreciate the Deputy's concern. This is a very important public position regarding the broadcasting commission that will sit in judgment and I strongly contend the appointment should be made in an open manner. I recognise and respect the Minister's right to nominate appointees but the amendment seeks to ensure there is an opportunity for public representatives to question appointees in light of their experience and qualifications for the job. I do not cast any aspersions on the excellent qualifications of those who sat on the Independent Radio and Television Commission and on their competence. However, in the present climate it is important that we have openness and that these appointees are questioned in an open and transparent fashion. I appreciate Deputy O'Shea's concerns but nevertheless it might be down to the chairman on the day to ensure that questioning is in tune with the relevant work of the commission and certainly should not go into an individual's private life. I have been a member of several committees since entering the Dáil and we have had many individuals appearing before us. I am sure they were not very comfortable coming here but a committee of public representatives has a duty to question people and to ensure that public funds and services are being operated correctly and in an open fashion.

I can see where the Deputies are coming from on this. There are inherent dangers, as expressed by Deputy O'Shea in his amendment, and we want to ensure that people asked to serve on these committees serve with the public interest in mind and everyone can believe they are there for that reason. A distinction should be made in that rather than questioning individuals who are prepared to serve, more appropriately the Minister should be questioned on his or her appointments. That could be done at any time in the general questioning process in the Dáil. That approach might be better than having pressure put on the proposed appointees. The Minister, who makes the appointments, could be asked questions on those appointments. That is the best way to proceed with the issue.

Amendment put and declared lost.
Section 8 agreed to.
SECTION 9.

Amendments Nos. 22b, 23c, 24c and 27d are related and may be taken together.

I move amendment No. 22b:

In page 13, between lines 7 and 8, to insert the following subsections:

"(2) Without prejudice to the functions conferred upon it by the Act of 1988 or any other enactment it shall be a function of the commission to ensure that all persons offering broadcasting services operating in the State shall be subject to the same single, fair and consistent scheme of regulation to be applied evenly and equally to all of them without discrimination of any kind whatever. Accordingly all relevant powers and responsibilities reserved to or devolving upon the Minister under the Broadcasting Authority Acts, 1960 to 1999 shall now be reserved to or devolve upon the Commission and those Acts shall be construed accordingly.

(3) For the avoidance of doubt and without prejudice to the functions conferred upon it by the Act of 1988 or any other enactment and without prejudice to the generality of subsection (2) of this section it shall be a function of the Commission to ensure that all persons offering broadcasting services in the State discharge fully their obligations under the Broadcasting Authority Acts 1960 to 1999 and their contractual obligations to the Commission.

(4) Any person offering a broadcasting service in the State and therefore subject to the authority of the Commission shall present to the Commission a detailed report in the form appearing at the Third Schedule to this Act, or in such other or modified form as the Commission may from time to time prescribe of its activities, attainments and financial performance in the twelve months preceding demonstrating the extent to which that person has complied with their obligations whether under the Broadcasting Authority Acts 1960 to 1999 or contract with the Commission. The Commission shall within fourteen days of receipt of every such report meet and either—

(a) Approve, comment upon and publish the report so submitted and the comments of the Commission, or

(b) Reject, comment upon stating the reasons for rejection and publish the report so rejected together with the comments of the Commission.

(5) Any person offering a broadcasting service in the State and therefore subject to the authority of the commission shall present to the commission a detailed report in the form appearing at the Third Schedule to this Act, or in such other or modified form as the commission may from time to time prescribe of its planned activities and supporting budgets for the twelve months next following the date upon which the report is presented, demonstrating the extent to which that person intends to comply with their obligations whether under the Broadcasting Authority Acts 1960 to 1999 or contract with the commission. The commission shall within fourteen days of receipt of every such report meet and either—

(a) Approve, comment upon and publish the report so submitted and the comments of the Commission, or

(b) Reject, comment upon stating the reasons for rejection and publish the report so rejected together with the comments of the Commission.

(6) Any person presenting a report to the Commission under this section which report is rejected and the report and reasons for rejection published by the Commission may make representations to the Commission, including but not limited to undertakings concerning future plans in order to obtain the Commission's approval for the report previously rejected. The Commission shall meet within a period no sooner than 30 days of publishing a report it has rejected and no later than 45 days from publication and reconsider the report so rejected and any representations that might have been made by the person who submitted the report to the Commission. If on reconsidering the report the Commission does not approve the report it shall stipulate clear requirements for approval. If after 14 days from such meeting, rejection and stipulation the person in question has not fully complied with the requirements stipulated by the Commission the person in question will yield to the Commission, on demand, a penalty being no less than 1% of its gross annual income in respect of each period of seven days, or part thereof, within which those stipulated requirements were not met.".

This amendment relates to the issue of looking at regulations. As it stands we will have RTE and TG4 will be self-regulating and we will have some confusion here as commercial radio and television are now subject to a third regulator. An effective regulatory system is necessary to encourage investment in Irish broadcasting. There will be 25 channels available in every home and I would obviously like as many of them as possible to be Irish channels. That RTE and TG4 will be self-regulating while the broadcasting commission will also be regulating suggests that we should have a single regulator regulating the content of all channels. The Minister's proposal in the legislation does not address this and leaves matters as they are and I would like her to clarify matters. Does she believe after the introduction of this Bill that when we have regulators for RTE, for TG4 and a regulator for the balance, that this will be workable and acceptable to her and under the EU regulations?

These amendments are designed to establish the type of body that has become known as a super-authority which will centralise the regulation of all forms of broadcasting. The policy of the Government, as provided for in the Bill, is that all broadcasters have to adhere to common codes or standards in relation to taste and decency in programme material and in relation to advertising and sponsorship drawn up by the Broadcasting Commission of Ireland. The commission will also be empowered to develop rules and regulations for methods by which broadcasters promote the enjoyment of broadcasting by persons who are deaf or hard of hearing and blind or partially sighted. However, RTE, as the national public service broadcaster, has a specific statutory remit and it is incumbent on the authority to ensure that remit is met. I do not propose to change the situation with regard to the authority's free to air broadcasting services.

Similarly, the Bill provides that when TG4 is established as a separate statutory entity it will also have a strong public service remit. It would be a matter for the board of TG4 to decide how best to meet this statutory remit. Neither the authority nor the board of TG4 would be assisted by the extra layer of bureaucracy proposed by these amendments. The all-powerful broadcasting commission proposed by Deputy Clune in amendment No. 22b seems designed to rule broadcasting and broadcasters with an extremely heavy hand. Automatic and severe penalties are envisaged for broadcasters who fail to meet the diktat of the supra-authority. Given the heavily centralised control envisaged in these amendments, I see no place for editorial diversity or freedom in broadcasting.

I am not too concerned that there may be different interpretations and approaches between broadcasters in the future under the structures envisaged in the Bill. Such diversity will be important and, accordingly, I oppose these amendments on policy and practical grounds.

I do not agree there would be a supra-authority. The proposal is for the establishment of a single regulatory authority and to introduce some kind of accountability whereby broadcasters would be responsible to the commission on a regular basis. There will be at least 25 channels, although we do not know what the future capacity will be, and it will be essential that everything is controlled under a single regulator. I am a strong supporter of public service broadcasting, but there must be some accountability.

The additional channels need not necessarily have a public service content but it is important to have a single regulatory authority as the number of channels increases. This would ensure that everything is done under one roof and is co-ordinated. We could have a situation in which, for example, the Broadcasting Commission would have a problem with material broadcast by TV3 while RTE would be free to broadcast the same material. We can discuss many examples of this but a single regulatory authority would eliminate such distinctions. The conditions in the amendments are not too onerous in terms of accountability and ensuring we control the vast number of channels which will be available. A limited number of channels are currently available but I am concerned we would not have a single authority as the number of channels increases.

I would refer to what Deputy Clune is suggesting as a supra-authority. That is not the way to go for a number of reasons. Broadcasters would have to adhere to certain common codes in terms of standards on taste, decency and advertising which would be drawn up by the Broadcasting Commission of Ireland. Rules will also apply to all broadcasters regarding people who are hard of hearing or partially sighted. However, I cannot accept Deputy Clune's proposals as she is suggesting centralised control. We have spoken about the importance of editorial diversity and freedom but trying to draw all of these issues together under what I would call a quango would militate against this objective. I oppose these amendments on policy grounds.

My amendments would not interfere with the editorial freedom which currently exists. The Broadcasting Commission would be licensed to regulate TV3, radio and television and I do not agree we are trying to interfere with editorial freedom. The Minister will not accept my amendments but I ask her to address my concern regarding the increase in the number of channels. We will have many channels and is she happy to leave self-regulation to the established public service broadcasters?

The RTE authority has acted within its remit to date and helped to ensure we have a healthy broadcasting environment. The same can be said for the board of TG4. I do not see any problems arising there and they have been able to ensure high standards of broadcasters. One does not attempt to fix something which is not broken. These authorities have been working well. There may be different approaches on the ground about different issues and that is a healthy situation. We should not draw this together under one supra-authority or quango. The diversity I mentioned is healthy and necessary for broadcasting generally. I cannot accept the amendments.

Does the Minister believe the regulation she is proposing will be acceptable to the authorities?

Every sentence in the Bill has been checked by our legal advisers in the Office of the Attorney General. As I am not a legal expert I accept that advice. These provisions exist for any Minister introducing legislation. It may assist members to point out that the protocol to the Amsterdam Treaty reinforces the current situation.

Amendment, by leave, withdrawn.

There are three amendments to amendment No. 23. Amendments Nos. 48, 74 and 82 are related and amendment No. 23a is an alternative. These amendments may be discussed together.

I move amendment No. 23:

In page 13, lines 8 to 12, to delete subsection (2) and substitute the following:

"(2) In performing the function conferred on it by this section or the functions conferred on it by the Act of 1988, the Commission shall endeavour to ensure that the number and categories of broadcasting services made available in the State by virtue of this Act or the Act of 1988 best serve the needs of the people of the State, bearing in mind their traditions, religious values and culture.".

I move amendment No. 1 to amendment No. 23:

In the fifth line of subsection (2), to delete "State" and substitute "Island of Ireland".

This amendment refers to subsection (2) of the Minister's amendment. Amendment No. 23 says the commission shall endeavour to ensure that the numbers and categories of broadcasting services made available in the State by virtue of this Act or the Act of 1988 best serve the needs of the people of the State. My belief is that, all things considered, we should remove the word "State" and substitute "the island of Ireland" because the commission should process its business in the context of the entire island. Given the peace process and the way things are continuing to move forward, it is prudent, sensible and correct that we look at the island of Ireland as distinct from the State.

My second amendment arises from representations made by Comhdháil Náisiúnta na Gaeilge. The commission has to bear in mind the traditions, religious values and culture of the people and Comhdháil is anxious that the word "languages" be inserted after the word "their" in the last line of the Minister's amendment. Languages and traditions are not quite the same thing. I very strongly support this approach as in the context of a Bill being prepared on the Irish language in the Minister's Department, the ethos and approach should ensure this Bill refers to the Irish language. Language becomes a broader issue with the multi-cultural Ireland which is developing, and language, as well as traditions, should be included, although I know it gives rise to additional verbiage.

I hope the Minister will agree to the form which includes reference to the needs of the people of the island of Ireland. Her amendment refers to bearing in mind their languages, traditions and religious values. I am very unhappy with the term "religious values" as it could be described as pious craw-thumping. We should substitute it with the words "diversity of religious and ethical standpoints". What are religious values? Who determines what they are? Is there a danger of falling into sectarian traps in which the religious values of one denomination could come to the fore? Obviously, we have a dominant tradition in the country. The commission must take cognisance of the diversity of religious and ethical standpoints developing in the country. Obviously the diversity of religion is accelerating against the background of asylum seekers and in terms of those brought into the country on the visa system to work here. We must be pluralist in all our terminology, and the term "religious values" means little as it cannot be defined. We should give due cognisance to all religious view points and none, and my suggested wording is the correct terminology for the pluralist, multi-cultural Ireland which is developing.

Arising from the comments and submissions I have received since publication of the Bill in 1999 I have come to the view that there is a genuine fear that the long-standing tradition of the inclusion of religious programming for all denominations in broadcasting schedules is being sidelined and might even disappear from the schedules of our indigenous broadcasters. The Broadcasting Bill, 1999, provides an opportunity for the Oireachtas to clarify that religious activity is part of our culture and that it is proper for RTE, TG4 and the Broadcasting Commission of Ireland to take this into account in their statutory duties. Accordingly, I propose to amend section 2(9) through amendment No. 23 by including in the remit of the Broadcasting Commission of Ireland a reference to religious values, section 24(2)(a) through amendment No. 48 by inserting a reference to religious activities in the remit of RTE and section 39(4)(a) through amendment No. 74 by inserting a reference to religious activities in the remit of TG4. It will be a matter for each body to determine how to fulfil its statutory remit.

On a related matter, I indicated in my speech on Second Stage that I intended introducing an amendment relaxing the statutory blanket prohibition on broadcasting advertisements directed towards a religious end. Deputies will remember that the application of the existing provisions has resulted in the prohibition of relatively innocuous advertisements simply because they were thought to have a religious end. Amendment No. 82 is designed to allow broadcasting advertisements for religious newspapers and periodicals and notice board type advertising for religious ceremonies and events where the language used is neutral.

I would like to accommodate Deputy O'Shea's amendment No. 1 to my amendment, in terms of substituting the words "island of Ireland" for the word "State". I will consider the amendment further and will refer to it again on Report Stage. In relation to amendment No. 2, the insertion of the word "languages" into the section is not necessary and, accordingly, I oppose the amendment. The commission will be required under new subsection (2) to bear in mind the traditions, religious values and "culture", a word which encompasses language. However, I listened to the point made by the Deputy and may well examine it again for Report Stage. The Radio and Television Act, 1988, and the Broadcasting Bill, include specific reference to Irish language broadcasting. Therefore, there are no fears in regards the Irish language. I would be interested to hear further from the Deputy on this issue.

In amendment No. 3 the Deputy seeks the deletion of the words "religious values" and their replacement with the words "diversity of religious and ethical standpoints". The proposed wording is very prescriptive and I do not consider it appropriate to insert the more prescriptive wording in a provision which seeks to provide a general statement of the remit of the Broadcasting Commission of Ireland. It would be up to the commission to interpret the reference to religious values and to act on it as it sees fit. The commission will be bound by the constitutional provisions which prevent discrimination. The approach I wish to take seems to be broader than that suggested by the Deputy and therefore may encompass the Deputy's views and what he would wish to see happen.

Amendment No. 23a seems to give the commission a role in regulating broadcasting services not originating in the State. This would not be possible under the terms of the Television Without Frontiers Directive and I cannot agree with the proposal and therefore oppose the amendment.

To recap, I certainly accept Deputy O'Shea's proposal to insert "the island of Ireland" in place of "State" and will bring forward an amendment on Report Stage. I would like to hear more from the Deputy on the issue of the Irish language. Nobody need have any fear in regard to the Irish language in terms of existing legislation and the existing remit of RTE.

I thank the Minister for accepting the first amendment to amendment No. 23 which seeks the substitution of "State" with "the island of Ireland". We are dealing here with the functions of the broadcasting commission. Amendment No. 23 states that the commission shall endeavour to ensure that the number and categories of broadcasting services made available in the State by virtue of this Act will best serve the needs of the people of the State. The Irish language is obviously an issue of concern but people are now coming to Ireland from a variety of ethnic, cultural and linguistic backgrounds and their right to broadcasts in their own language should be catered for in the legislation. Language is an aspect of both "tradition" and "culture" but it should be included in its own right. There is a feeling among those who wish to move towards a bilingual society that the opportunity to include Irish should not be missed in any forum in which language is specifically mentioned. We must respond to the multi-cultural aspect of our society and the commission's remit should include a responsibility in this area.

On the issues of religious values, I understand where the Minister is coming from. We all made our case in regard to a relatively innocuous advertisement in a periodical which was banned because of the legislation. We support the Minister's stand and welcome diversity. We are not attempting to curtail the current level of religious broadcasting because it is something people want and it is their democratic right to have it. The term "religious values" does not really convey any particular meaning. I appreciate that the Minister wants to reassure people who might be concerned that in an increasingly materialistic era, we could see the level of religious broadcasting being reduced. However, at the end of the day, the broadcasting commission must recognise religious and ethical diversity. The commission belongs to everybody, people from a variety of religious backgrounds and ethical standpoints.

The Minister stated that my wording was overly prescriptive but I believe it is very broad. To me, the term "religious values" has connotations of craw-thumping and piety and is the language of a time warp. We should make a statement which reflects the increasing pluralism in Ireland. I am proposing a wording which would reflect the role of broadcasting on this island.

The Minister has undertaken to consider amendments Nos. 1 and 2 prior to Report Stage but is opposing amendment No. 3. Is that a correct summarisation?

In regard to the third amendment, I did not intend the term "religious values" to come across as craw-thumping. I am rather swayed by some of the Deputy's arguments on this matter and will consider this issue prior to Report Stage. My intention was to take the broadest and most inclusive approach but if that is not the impression being conveyed, my approach must be amended. I will contact the Deputy in regard to the matter prior to Report Stage. I will also consider his comments on languages.

Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 to amendment No. 23 not moved.
Amendment No. 23 agreed to.

I move amendment No. 23a:

In page 13, subsection (2), lines 10 and 11, to delete "by virtue of this Act" and substitute "or otherwise receivable by a majority of households in the State".

This amendment seeks to widen the commission's obligation, when licensing new broadcasters, to consider foreign broadcasters, not only those broadcasting in Ireland. If the commission is confined to Irish broadcasters, they might be forced to grant licences to broadcasters which duplicate those of established overseas broadcasters whose services are already available to the majority of households in the State. That would ensure that consumers would have a better choice of services. It is important that we would consider all of the broadcasting available in Ireland.

I referred in my initial reply to amendment No. 23a. I cannot accept the amendment because what it seeks to do would not be possible under the Television Without Frontiers Directive.

Amendment, by leave, withdrawn.

I move amendment No. 23b:

In page 13, between lines 12 and 13, to insert the following subsection:

"(3) The Commission shall facilitate the development of community television and radio by endeavouring to ensure that sufficient access is provided to production and broadcast facilities, and that sufficient training is made available, to allow for the widest possible access to and participation in programme making, production and broadcasting.".

This amendment was suggested by the community media network. The three pillars of broadcasting are now clearly enunciated in the legislation, that is, public broadcasting, commercial broadcasting and this community pillar. Obviously this is not to be confused with local commercial broadcasting. We dealt with this concept at some length while debating the first amendment which I was seeking to insert in the interpretation section, that is, that we would define what a community broadcaster is while being essentially non-profit making. This gives rise to concerns about funding, training and so on. If we are to make provision in the Bill for the development of community broadcasting at community level, given that there is community broadcasting at audio level, we now want this to be extended to video. We are seeking that the commission be mindful of the community sector and endeavour to ensure that there is sufficient access to production and broadcast facilities and to training. If this pillar is introducing programming, it is important that the skills, efficiency and effectiveness of those producing the programmes and taking part in the production in different ways are of the highest order.

Essentially we are saying here that we welcome the fact that community broadcasting is included in the legislation. We are seeking that the commission act as a facilitator to develop and expand this sector.

This amendment seeks to include a specific and detailed reference to community broadcasting in the general remit of the Broadcasting Commission of Ireland. The remit provided is deliberately broad and it would not be appropriate to single out one type of broadcasting activity. The detailed functions are set out in the provisions of the Radio and Television Act, 1988, and the provisions of this Bill. Community broadcasting is already an important part of the Irish broadcasting landscape without the type of provision proposed by the Deputy.

The Deputy has tabled further amendments on community broadcasting and I may be able to accommodate some of his thoughts at that stage.

On foot of what the Minister has said, I will withdraw my amendment with a view to considering the issue for Report Stage. I await the debate on the later amendments.

I am also concerned about community broadcasting. However, the Minister has indicated that she will come back to this when she may be able to facilitate some of the proposals. I will await further discussion on the issue.

Amendment, by leave, withdrawn.
Amendment No. 23c not moved.
Section 9, as amended, agreed to.
NEW SECTION.

Amendments Nos. 24 and 24a are related and may be discussed together, by agreement.

I move amendment No. 24:

In page 13, before section 10, to insert the following new section:

"10.—The Commission shall renew the licence of any broadcasting licence holder when it expires if the licence holder has substantially complied with the requirements of the licence and of statute.".

This amendment deals with a sector which has developed very well. Local radio stations provide a good service in various parts of the country.

Is it the Minister's intention that a competition will be held when broadcasting licences come up for renewal? Will those who already hold broadcasting licences be obliged to enter into competition with others? The setting up of a radio station involves a capital investment and much effort is required in building up a station. Profitability is often not achieved in a station's lead in period and production, presentation and commercial staff must be recruited.

My amendment proposes that a licence holder who substantially complies with the requirements of the licence would not be subject to a competition but would be granted a renewed licence. Stations will not be likely to invest against an uncertain future if the provision of a good service does not guarantee the continuation of their licences. Talented people will be unlikely to remain in the local broadcasting industry if they do not have security of tenure.

This amendment seeks to protect and encourage investment in local radio. Licences should not be withdrawn except for non-compliance with statutory requirements. This question becomes more important as we near the date for the renewal of existing licences.

Will the Minister clarify another matter? With the advent of digital audio broadcasting it will not be possible to contain a signal inside a county boundary. Licences are likely to be offered for clusters of counties. I would not welcome this development because it would lead to local stations losing intimacy with their listeners. The present model works well and many local stations provide a very good service.

My amendment would bring stability to this sector. It would enable radio stations to plan for the future in the full knowledge that their licences would be renewed automatically if they do their job properly.

Amendment No. 23a is related to Deputy O'Shea's amendment. Local radio provides an excellent service and has a very high listenership. My local radio station has a listenership of 60%.

This amendment arises from discussions with independent broadcasters who are concerned that their licences are at stake as the renewal date approaches. Despite a strong track record and considerable investment on their part they have no guarantee that their licences will be renewed. The advent of digital broadcasting will necessitate a high level of investment with no guarantee of a licence renewal. That is the kernel of their concern. I propose that a licence be renewed for a period of not less than five years if the licence holder has complied with the requirements of the licence.

The amendment seeks to remove uncertainty. I hope the Minister can accommodate these concerns.

Representations have also been made to me and, I presume, to all other Members and I have spoken to the Minister on this matter. It is her view that a roll-on situation would not be satisfactory and that it should not be assumed that a person who holds a licence for five years should be given it for a further five year period. Competition does not do any harm. Without competition the owners of local radio stations might sit back and relax from their labours. The people concerned stated they find it difficult to retain staff because of the uncertainty but they need not have any worries or fear competition if they do their job properly.

In proposing this amendment I am assuming both Deputies are referring to the sound and television broadcasting contracts issued by the Independent Radio and Television Commission and those that will be issued in the future. I am on record as recognising the success of the independent broadcasting sector and the importance of having a strong and vibrant independent sector in the future. The local radio sector has been a particular success since the first stations came on air in the eighties. This Bill provides for the abolition of the 3% levy on the revenues of independent broadcasters and for the establishment of a £500,000 fund for the capital expenses of local stations. However, much as I admire the commitment and talent of our independent broadcasters, I cannot agree to an amendment that appears to grant individual broadcasters lifelong licences.

How can we say the contracts issued to local stations, TV3 and Today FM, will be appropriate in five or ten years' time or say with certainty who will own these stations? How can we say that with the changes in society and technology the configuration of broadcasters we have today is the appropriate one for the future? How can we be sure that, even if a broadcaster adheres to the terms of his contract, there may not be a person or group who can do a better job?

To agree to these amendments would effectively remove the need for the Broadcasting Commission of Ireland. If the amendment were accepted every contract issued by the commission would have to be automatically renewed for ever. I cannot envisage any scenario where this would be appropriate or acceptable.

Deputy O'Shea raised the issue of digital audio broadcasting, otherwise known as DAB. This legislation does not deal with that. I spoke to the different sectors that had concerns and explained to them that we need to put a policy in place before bringing in legislation. In order to make progress, I formally set up the DAB forum to consider the issues and advise in respect of broadcasting policy options that would assist me in developing a national DAB policy. To assist the forum, I offered to fund and appoint a project manager or facilitator for a six month period. I hope that approach will satisfy the Deputy with regard to our wish to progress on DAB. It is not something that comes directly under the Bill.

As regards the licences, we cannot talk about what Deputy Collins referred to as roll over licences or lifelong licences. He contacted me, as did many Deputies, regarding this issue. It will be a matter for the Broadcasting Commission. I am sure that compliance with the Independent Radio and Television Commission regulations will be taken into account when the next round of licences are being considered.

One of the points made by the Minister was that if new players come on the scene who arguably do a better job they should not be excluded. She also said technology can change. The initial licences were for ten years. While there were great hopes that local radio would be successful there were no guarantees. Some of the companies, as the Minister knows, have had their difficulties. There is a fundamental difference between the national service and local stations. At the end of the day, what is proven should be retained. The commission must make decisions. Existing licence holders fear that a competition will be held and the Minister has conceded that will happen. There are those who have done a good job, retained their staff and provided a good service. As Deputy Collins pointed out, it is not good for them to go through a period of uncertainty.

The Minister has indicated she will not accept the amendments. However, she should look at this for Report Stage and introduce an amendment so that radio stations can feel secure in their position. When there is insecurity people drift from the various stations and there is a reluctance to invest to enhance the service provided.

The Minister said licences should not be granted in perpetuity, ownership can change and so on, but it is the quality of what is provided that matters. If a good quality service is provided within the requirements of the licence and statute, why should people be put through a period of doubt and uncertainty? Should we not have a mechanism whereby, if certain criteria are reached, the commission would renew the licence? If a station is working well, is viable and so on and another more spectacular application is received for the same area, it does not follow that the quality will be as good. There are no guarantees in that respect. Are we not better staying with the tried and tested? If one looks at the nature of radio stations, there is a lead in time and a build up time. If a licence is granted in a particular area, will people be able to entice staff to join their radio station? Because of the narrow base on which they work, those who invest and want to take up employment in those stations should have a guarantee of tenure. The Minister has set her face against giving an absolute guarantee but, from the discussions I have had with people in the sector, there is a feeling of insecurity regarding what may happen and fear that applications for renewal may not be treated in the fairest fashion. The Minister must address that uncertainty.

My amendment includes the words "for a period of not less than five years". I do not propose that any broadcaster should have a licence for life. I appreciate the difficulties which would arise from such a proposal. The Minister should, however, appreciate the difficulties of established broadcasters. There is no guarantee that their licences will be renewed. While I understand there are others who may want to seek a licence, a proven track record should play a part in awarding of licences. Perhaps, as Deputy O'Shea said, the Minister will consider the matter and reassure us on Report Stage on the question of certainty for independent broadcasters. As the Bill stands, when their licences come up for renewal they will be on a level playing pitch with everybody else. Given their track record, the level of investment made and the invaluable service provided, something should be done for them.

I, too, have received many representations about this matter, which is a source of much anxiety, particularly as it affects DAB. I did not get the impression that they were happy with the six month interregnum. If the Minister wants to give them some assurances, perhaps the amendments can be reconsidered on Report Stage.

There is great interest in the renewal of broadcasting licences. We must ensure we preserve the autonomy and independence of the Independent Radio and Television Commission which has a particular job to do in the allocation of licences. It would not be appropriate for us to interfere, which is what the amendments seem to be working towards.

DAB — digital audio broadcasting — is a long way off into the future and is not a matter for the Bill. I have taken the opportunity to discuss it with those who have made contact with me. We will need to draw up a policy before any legislation takes effect.

One cannot have roll-over or lifelong licences. The Independent Radio and Television Commission has indicated that the track record of an existing radio station will be taken into account. It is a matter that must remain with it.

One consideration which would be worth addressing would be if we take the circumstances under which broadcasting licences were issued by the Independent Radio and Television Commission under the 1998 legislation. The broadcasting environment of the time had certain features, including the need to develop local broadcasting, be it commercial, community or special interest broadcasting. That is the broadcasting environment which needs to be filled and it is a matter of public debate — we need not go into it here — as to which should be given priority. Effectively, those first on air have a net advantage. That was certainly the case a few years later when it fell on me to appoint an Independent Radio and Television Commission. I was interested in the fact that community broadcasting had not been pushed forward to the same degree as commercial broadcasting. Leaving that aside, it was a judgment of the time.

If a broadcaster in good faith makes an investment, has an accountable share structure and operates according to norms not only of broadcasting but of locality and democratic relevance, does it not make sense to say that it has been adjudged to have done everything expected of it, including, for example, meeting Irish language components, rather than have a tabula rasa on each occasion its licence falls to be renewed? The point I am trying to make is that the call would have been very different in 1988 than between 1993 and 1997. The Minister may have her own estimation of the broadcasting environment.

The Minister is at a distance from the Independent Radio and Television Commission. Is it not unfair, if a new need in broadcasting emerges, in order to allow the new entrant compete for what is new, that one should have to dislodge that which is in place which has been adjudged to have met its obligations? It is not practical for the orderly development of broadcasting to seek, as it were, to scrub the airwaves clean. There was a view for some time — one could describe it as crude — that all one had to do was provide a series of pop stations and one would be printing money. A great number of people who were not broadcasters got burned and quickly changed tack. They began to realise that people were interested in stories and narratives of local events, what would almost be regarded as public service interests, and changed the policy of the station.

Let us suppose there was a popular demand for a commercial product of, possibly, a standard as low as that of radio stations in the United States where one spins records between eating sandwiches and burping. Why be so adamant about wanting a completely clean sheet? I am interested in why one would do it that way. The commission may decide, for example, when licences come up for renewal that it is necessary to licence new broadcasters. To use another image, it is a kind of slash and burn technique.

With regard to the Independent Radio and Television Commission, as Deputy Higgins said, it is most important that the Minister of the day be one step removed from decisions on licensing. That is why the judgment will be made by the Independent Radio and Television Commission. I have not ever said that there must be a change. The Independent Radio and Television Commission will be free to reissue a contract or offer a different contract as proposed by the owners of the station concerned. While there is a need for flexibility, one cannot have roll-over or lifelong licences. The Independent Radio and Television Commission, which is autonomous, has indicated that the fact that many radio stations have a very good track record will be taken into account. It would not be to the benefit of broadcasting to change the system.

The Minister and Deputy Higgins both made the point about the distance between the Minister and the commission but we are dealing with legislation and this is about laying down the rules, so to speak. This amendment does not give any further powers to the Minister but in a climate where, for instance, the Independent Radio and Television Commission has been before a tribunal, and I am not alleging that anything untoward happened, doubt is put into the minds of the public and current licence holders. For Report Stage will the Minister consider giving some comfort to current licence holders that will assure them that their licence applications will be dealt with within a framework that affords them some level of protection if they have been doing a good job.

Under the Radio and Television Act, 1988, through the contracts awarded by the Independent Radio and Television Commission, individuals or groups of individuals have been given exclusive rights to use parts of the radio frequency spectrum to provide radio services. It would be wrong to suggest, however, and this is the kernel of the whole argument, that these individuals or groups of individuals should be granted the exclusive right to use of these frequencies forever. That is the point that is at issue. It is a point of principle and, therefore, the autonomy of the Independent Radio and Television Commission has to be preserved in this regard.

I understand what the Minister is saying but the uncertainty that broadcasters now find themselves in is something that is of great concern to them. The Minister is not giving any comfort to these independent broadcasters in terms of their future. I understand the licences cannot be issued forever but why should they be removed at the stage when the licence is due for renewal? The Minister should offer some security to people who are making business investments or who are planning to upgrade their services and plan for the future.

It is not a question of removing them. It will be a matter for the Independent Radio and Television Commission as to whether it will reissue the licences but I have no doubt that the history and the progress that has been made by the radio stations involved will be taken into account.

I withdraw amendment No. 24 and we will examine our position in the context of Report Stage.

Amendment, by leave, withdrawn.
SECTION 10.
Amendment No. 24a not moved.

I move amendment No. 24b:

In page 13, lines 20 to 26, to delete subsection (2).

This goes back to the point we spoke about previously. The Minister proposes to exempt RTE, TG4 and TV3 from the licensing regime for DTT and this amendment would remove that exemption. I would like some explanation from the Minister on the reason for the exemption. Is that not unfair in a State regulatory regime? That is the thrust of the amendment.

It was difficult to understand the purpose of the amendment but in so far as it relates to the setting up of a super authority the committee has not accepted that approach. It also appears to require the regulation of non-indigenous broadcasting services, which is prohibited under the television without frontiers directive. Accordingly, I oppose the amendment.

We discussed the amendment previously so I will withdraw it.

Amendment, by leave, withdrawn.
Amendment No. 24c not moved.
Section 10 agreed to.
NEW SECTIONS.

I move amendment No. 25:

In page 14, before section 11, to insert the following new section:

"11.—(1) The transmission company—

(a) shall, if requested to do so by the body or contractor concerned, enter into arrangements with each of the following, namely, the Authority, Teilifís na Gaeilge and the television programme service contractor whereby the company transmits, by analogue means, free-to-air services comprising compilations of programme material supplied to it by the body or contractor for that purpose,

(b) shall, if requested to do so by the multiplex company, enter into arrangements with that company to transmit, by digital terrestrial means, programme material and related and other data in a digital form,

(c) shall, if requested to do so by the Authority or the contractor concerned, enter into arrangements with the Authority and each sound broadcasting contractor whereby the company transmits, by analogue terrestrial means, a sound broadcasting service comprising a compilation of programme material supplied to it by the Authority or contractor concerned for that purpose.

(2) The transmission company, on being notified by the Commission that the Commission has terminated a television programme service contract or sound broadcasting contract, as the case may be, or that such a contract has expired and has not been renewed, shall forthwith discontinue any arrangements it has entered into under subsection (1) with the former holder of the contract in so far as they relate to the transmission of a broadcasting service or sound broadcasting service, as the case may be, comprising programme material supplied pursuant to that contract.

(3) The transmission company may impose charges on a person in respect of the entering into of arrangements under subsection (1) with that person.

(4) For the avoidance of doubt, nothing in this section shall be construed as preventing the transmission company from providing services other than those referred to in subsection (1) in accordance with the requirements (if any) imposed by any enactment relating to the provision of the services concerned which is for the time being in force.".

This amendment relates to the functions of the transmission company and was discussed during the course of our discussion on amendment No. 3. I do not propose to add anything further at this stage to our extensive discussions yesterday, today and last week on the transmission company.

Amendment agreed to.
Section 11 deleted.

I move amendment No. 26:

In page 15, before section 12, to insert the following new section:

"12.—(1) The multiplex company—

(a) shall, if requested to do so by the body or contractor concerned, enter into arrangements with the transmission company for the transmission by that company of free-to-air services, comprising compilations of programme material and related and other data in a digital form, supplied by the Authority, Teilifís na Gaeilge or the television programme service contractor to the multiplex company, being programme material and related and other data that has been combined in such form by the use of the multiplex or part of the multiplex referred to in section 9(3),

(b) may enter into arrangements with the transmission company for the transmission by that company of broadcasting services (including free-to-air services) comprising compilations of programme material and related and other data in digital form supplied, in accordance with the provisions of this Act, to the multiplex company by any person (including a person referred to in paragraph (a)),

(c) may enter into arrangements with any person whereby the company supplies electronic information services in a digital form for transmission by the transmission company in accordance with the requirements (if any) imposed by any enactment relating to the provision of the services concerned which is for the time being in force.

(2) The multiplex company, on being notified by the Commission that the Commission has terminated a digital content contract or a television programme service contract, as the case may be, or that such a contract has expired and has not been renewed, shall forthwith discontinue any arrangements it has entered into under subsection (1) in so far as they relate to the transmission of a broadcasting service comprising programme material supplied pursuant to that contract.

(3) The multiplex company shall take all reasonable steps to ensure that the number of arrangements for the time being entered into by it under subsection (1) and the terms of those arrangements (including as to the periods for which the arrangements are to be in force) are not such as to result in there not being sufficient capacity available on one or more of the multiplexes referred to in subsection (2) of section 9 for the purpose of the company's being able to comply with a request referred to in subsection (6) of that section.

(4) The multiplex company may impose charges on a person—

(a) in respect of the entering into by it of arrangements under subsection (1) at the request of or, as the case may be, with that person,

(b) in respect of the reception by the person of a broadcasting service (other than a free-to-air service provided pursuant to an arrangement entered into under subsection (1)(a)) comprising programme material supplied by the multiplex company to the transmission company, and

(c) in respect of the provision by it to the person of any apparatus or device enabling the reception by the person of broadcasting services (including free-to-air services) in a digital form.

(5) For the avoidance of doubt, the reference in subsection (4) to arrangements entered into under subsection (1) includes a reference to arrangements entered into under that subsection in respect of programme material supplied to the multiplex company by a person providing a broadcasting service in Northern Ireland to whom a direction given by the Minister under section 9(7) relates and references in subsection (4) to a broadcasting service shall be construed accordingly.".

Amendment No. 26 relates to the functions of the multiplex company. This amendment was discussed during the course of our discussions last week, yesterday and today, with particular reference to amendment No. 3, and I have nothing to add to the debate at this stage.

As this is a new section we can have a discussion on it but Deputies should bear in mind that we have already discussed amendments Nos. 26 and 27 with amendment No. 3.

As this matter has already been discussed a few times, would it not be wiser to adopt that section and move on to the next one?

My amendments are related to the electronic programme, although it is a different section, the original section 12 but it——

I do not want to cut off the Deputy but amendment No. 26——

The numbering is not clear because we have two section 12's.

We have already discussed amendment No. 26.

Amendments Nos. 27a and 27b——

Is not amendment No. 27 being discussed also?

Amendment agreed to.

I move amendment No. 27:

In page 15, before section 12, to insert the following new section:

"13.—For the avoidance of doubt, neither the transmission company nor the multiplex company shall—

(a) be under any duty to ensure that the programme material supplied to it, pursuant to arrangements under section 11(1) or 12(1), complies with the enactments applied to the supply of such material by section 14 or with the codes and rules under section 15,

(b) be liable in damages for any infringement of copyright, other intellectual property rights or other legal rights of any person by virtue of having accepted a supply of programme material, pursuant to arrangements under section 11(1) or 12(1), and dealt with the material in the performance of its functions,

(c) be liable in damages for any infringement of copyright, other intellectual property rights or other legal rights of any person by virtue of having accepted a supply of data (other than programme material), pursuant to arrangements under section 11(1) or 12(1), and dealt with the data in the performance of its functions, unless in so dealing with the data it has effective control over its content,

(d) be regarded, for the purposes of the law of defamation, malicious falsehood or any other form of civil liability, as having, by virtue of accepting a supply of programme material, pursuant to arrangements under section 11(1) or 12(1), and dealing with the material in the performance of its functions, published the material,

or

(e) be liable in damages to the holder of a contract referred to in section 11(2) or 12(2) for the discontinuance by it in good faith under section 11(2) or 12(2), as the case may be, of any arrangements under section 11(1) or 12(1) in respect of that contract in circumstances where the contract was not lawfully terminated or had not, in fact, expired or had expired but had, in fact, been renewed at the date of the notification by the Commission under section 11(2) or 12(2).".

Amendment agreed to.
SECTION 12.

I move amendment No. 27a:

In page 15, subsection (1), line 25, after "service" to insert "provided the electronic means of providing information is an integral part of the distribution and reception system by which it is supplied and germane to the use of that system".

This relates to the original section 12 which refers to electronic programme guides. The Minister's wording refers to the Internet and websites, which could be incidental to broadcasting, and would not be included in an EPG. That is why the amendment should be inserted. It deals with a technical matter from my reading of the Bill.

This amendment attempts to offer clarification with regard to the nature of the electronic programme guide. An EPG is, as Deputy Clune proposes, an integral part of the distribution and reception system of any broadcasting platform. Accordingly, there could be merit in the amendment. I am prepared to consider the matter further, take advice on suitable wording if appropriate and to return to it on Report Stage. In the circumstances, I hope the Deputy will not press the amendment.

I am happy with that.

Amendment, by leave, withdrawn.
Amendment No. 27b not moved.

I move amendment 27c:

In page 16, subsection (5)(b), line 3, after "means" to insert the following:

"and, will ensure access by the persons named in paragraphs (a) and (b) to the electronic programming guide for the purpose of communicating to the public the content of the services they provide on fair, reasonable and non-discriminatory terms at all times.

In so far as services are similar and data concerning the programmes that such services offer displayed together by an electronic programming guide as a result of any single operation instigated by the member of the public using the electronic programming guide information concerning services which incur no charge to members of the public accessing them shall appear before information concerning such services as do incur charged by members of the public in accessing them.".

This amendment is an effort to address the issue of fairness in dealing with EPGs. It is a difficult concept. There is concern among national broadcasters that they will lose space on these guides in the menu for viewers. RTE, TG4 and TV3 could be lost in the menu and that is a matter of grave concern to them. The amendment seeks to provide that the issue would be dealt with in a fair and even manner.

The Minister's plan is that the commission would offer its own electronic programme guide but the commission is not obliged to do so. If a commission EPG existed along with a commercial EPG there could be a degree of unevenness and the commercial EPG might be used rather than the commission's. The thrust of the amendment is to ensure fairness.

The purpose of section 12 is to ensure that the programme material for RTE, TG4 and TV3 and the Northern channels are easily accessed. From an Irish broadcasting perspective, this must be the primary concern. It is consistent with the "must carry" obligations imposed on, for example, the multiplex company. However, once this primary concern is addressed, it is sufficient as regards statutory provision. The broadcasting commission of Ireland will have the power to issue guidelines regarding the EPGs.

I listened carefully to Deputy Clune but I am not happy with the wording of the amendment. We will look at the issue again for Report Stage and have further discussions then. I could not accept the wording of the amendment but I want to look again at the principle involved.

The issue of ensuring a fair and reasonable approach regularly arises. We are discussing a product with which we are not 100% familiar and we must ensure that nobody loses out on the transaction. It is important that we give it fair and full attention. I will be happy to discuss it again on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 27d not moved.
Question proposed: "That section 12 stand part of the Bill."

Is the Minister satisfied that the subsections in section 12 not only create the capacity to carry the national stations in an EPG but also the duty? There is a distinction. The capacity is created but is the Minister establishing an obligation?

Second, there is an unusual drafting in subsection (5) although I am not necessarily opposing it. It states:

A programme guide contract shall include a condition requiring the holder of the contract to ensure that the electronic programme guide or guides prepared in pursuance of it may easily be used by a member of the public to access information in relation to the schedules of programme material the subject of each broadcasting service—

We could spend the rest of the year discussing what is meant by "may easily be used" but there are competing considerations here which are important. A market view, which I do not support to a great extent, is that the preparation of the menu is an aesthetic in itself in relation to the programmes that are on offer. Another view is that there must be standardisation if one is to ensure equity. A third position is that one must ensure the primacy of coverage in relation to the "must carry" stations. I am not sure that the third position is achieved. I am not sure the wording is not just aspirational rather than mandatory in relation to the EPG contract.

The next point in relation to that is the position of the native broadcasters on the EPG. The other issue, which the Minister might not be able to deal with in this section, is the reciprocities the Minister might enter into with the broadcasting authorities in Northern Ireland. That has an EPG dimension as well and the issue is whether the section can handle it.

Perhaps a breach or non-compliance with the conditions is covered in another section, but I do not see how it is achievable under section 12. What sanctions are available to the Minister? What clawbacks are available to the Minister, in terms of the EPG contractors? There need not be disagreement on this — they are housekeeping matters which relate to what we all want to achieve.

I thank the Deputy for his assistance on this. He is concerned this would involve a duty and I believe that must be so. Section 12(5) states:

A programme guide contract shall include a condition requiring the holder of the contract to ensure that the electronic programme guide or guides prepared in pursuance of it may easily be used. . .

The phrase "shall include a condition" is where the duty comes into play.

In regard to the question of the North, this is dealt with in section 12(5)(b). We are talking here about RTE, TG4 and the Northern stations.

The penalties are covered in a later section, along with other penalties. That is dealt with in section 51.

Question put and agreed to.
Sections 13 and 14 agreed to.
NEW SECTION.

Amendments Nos. 30 and 31 are related to amendment No. 28. Amendments Nos. 28, 30 and 31 may be taken together by agreement.

I move amendment No. 28:

In page 17, before section 15, but in Part III, to insert the following new section:

"15.—A broadcaster in the State shall not broadcast advertising directed at children below the age of 12.".

We have now reached Part III of the Bill, which deals with standards in broadcasting. This amendment seeks the insertion of a section reading, "A broadcaster in the State shall not broadcast advertising directed at children below the age of 12".

The question of advertising aimed at children must be examined under a number of headings. The first aspect which needs to be looked at is at what age children understand what broadcast advertising is about. In 1994 the Swedish sociologist, Erling Bjurstro1m, published a comprehensive survey of international research on the effects of television commercials on children. He concluded that even if some children can distinguish between advertising and programmes as early as three or four years of age, this ability does not develop in most children until six or eight years of age. It is only by ten years of age that almost all children have developed this ability. Even if children see the difference between commercials and programmes, this does not mean they understand why advertising is there, that the television commercial has been put there by somebody who wants to persuade the viewing child to buy toys, magazines, candy or something else children like.

The first issue, therefore, I want to deal with is at what age children make an effective distinction between advertisements and television programmes. The second issue is at what age children fully understand the reason the advertisement is broadcast.

I am drawing a great deal on the Swedish experience here. Sweden is an open society. Our society is becoming an increasingly open society, with the Freedom of Information Act now in operation. Some people say that putting a restriction on advertising targeted at children interferes with the principle of freedom of information. I do not accept that hypothesis, which I will deal with later. In Sweden there has been a ban on advertising targeted at children under the age of 12 since 1991. The ban is contained in the Swedish radio and television Act.

What we mean by advertising targeted at children is advertising before, during or after children's programmes. There is no sense in seeking a ban of advertising of children's products at a time when children are, or should be, in bed. Adults can absorb such advertising in a mature and balanced way.

One of the main reasons we are concerned about this is the "pester factor", whereby children exert pressure on parents to purchase a particular item. This is particularly wrong and unacceptable in disadvantaged areas. Children are motivated by advertising to pester parents with limited income to buy goods which they cannot afford. The other aspect is that those children will see some of their peers from better off backgrounds succeeding in obtaining the items.

We are not seeking to restrict this ban to any particular product. This is aimed at the whole range of products by which advertisers seek to influence children to buy. Advertisers will say the fact children are exposed to advertising on television is part of their commercial education. This would bring tears to one's eyes. Advertisers and the firms for which they advertise are in business to make money and not to educate children so that line of argument is a bit disingenuous.

Other aspects of concern are the participation of children, the language used and the use of cartoon characters in this advertising and the context in which the advertisement is set. When a firm commissions an agency to produce an advertisement, the mandate is simple — to produce an advertising concept that will have the maximum effect, in terms of influencing children under 12 years to buy particular products. This is a commercial exercise by companies. There is no intention to add to the social education of children, it is simply to maximise the market for the product advertised.

I have read material from the Swedish ombudsman, who has indicated that Swedish consumer organisations and the majority of the Swedish population support this ban.

While there is a general acceptance now of the free market and that market forces will bring about the possible deal for the consumer, the Labour Party does not accept this. An unregulated market does not work in the interests of the whole community. Indeed, it would tend in the main to act against the interests of those on low incomes. The Swedish consumer organisation supports the ban. One important basic principle of the ICC code of advertising, which is the worldwide code, concerns advertising identification. The same concept appears in the EU directive on television without frontiers. Those in the target group in any situation should be able easily to distinguish an advertisement from other media content. That is a generalised principle and much more so in the case of children with their unformed minds, as they develop and grow. Essentially, there should always be a balance of power between the consumer and the advertiser. We are seeking such a balance between the child and the advertiser but, as things stand, it is a most unequal contest. The ethics of using children as tools in the marketplace, albeit indirectly, is reprehensible. The basis of advertising is to promote goods and to influence people to buy one product as distinct from another. If advertising targeted at children continues, they will be used as a tool to influence the purchasing pattern of their parents.

Certain arguments are put forward, for instance, that television funds children's programmes. That argument does not stand up, however, because whatever the advertiser funds, it is for the bottom line objective of selling a particular line of goods. Earlier, I alluded briefly to another argument about commercial freedom of speech. The argument is advanced that children understand things better than their parents, but I do not believe that any of those arguments stand up.

As a former teacher, I have seen some of the pressures that start to build up, particularly around Christmas time. It is unacceptable that children are being enthused and directed towards putting pressure on their parents through the use of our electronic media. A parent wrote to me to point out that when children succeed in making their parents purchase something on foot of advertising, almost invariably the product does not live up to the expectations created. This is a bad outcome for children. They are led to believe that when they receive a particular item everything will be wonderful, but it turns out to be quite different. It is bad to create such an anti-climax, although that does not happen to children only. Of their nature, advertisements are not pitched in a way that highlights the weaknesses of a particular product. There is an ethical question concerning what is presented to children.

In many ways, the social contribution of accepting this amendment would be a strong and important step forward in dealing with children's development. Some people's livelihoods are tied up in advertising and our broadcasters make considerable revenue from advertisements. While these are important issues, they pale into insignificance compared to the effect the present regime has on our children. Children should be allowed to develop without the pressure of the marketplace. When conferences can take place at the highest level within the advertising industry, albeit not in this country, to my knowledge, on how to use children to sell goods, the ethics are appalling. That should send warning signals that, effectively, our commercial society is going too far to the detriment of our social situation in general and our children in particular.

This is a very sensitive issue which has been well highlighted by Deputy O'Shea. I wish to refer to amendment No. 30 first, which is largely a technical amendment. Under subsection (1) the commission is required to draw up codes for broadcast advertising and sponsorship. Under subsection (2) it is required to draw up rules with regard to advertising times etc. The purpose of this amendment is to require the broadcasting commission to consult widely before it finalises a code or rule under this section. Amendment No. 31 proposes to clarify that the broadcasting commission must undertake a wider process of consultation before proceeding with preparing a code or making a rule under section 15.

I have much sympathy with Deputy O'Shea's amendment No. 28 in terms of the general thrust of what he is trying to do. The broadcasting commission will obviously have a specific role to play in this matter. I would like to see it being given the go-ahead to have not just consultation but also research into this matter. What is really needed is to obtain as much information as possible on the issue. Deputy O'Shea has highlighted a number of cases and has also provided a number of documental references. I will revisit this issue on Report Stage.

The way forward may be that, whereas the broadcasting commission will be given a responsibility, to carry out that duty it will have to have further consultation on the whole issue with all those involved who have a particular knowledge and expertise in this matter. Further research is needed and that should go a long way towards achieving what we all want as regards children and advertising.

Having listened to Deputy O'Shea it is clear that he feels strongly about the issue. He has made some very interesting points. As we move forward in a more commercial age, in which a digital broadcasting service will beam an increasing number of television channels to every household, we must be conscious there are children in many homes who are vulnerable to advertising. Nevertheless, parents have a role to play and have a responsibility to ensure that not everything produced on television is seen by their children. Children are vulnerable and can believe everything they see on television. It is difficult for a young child to distinguish programming material from advertising or to appreciate that not everything one sees in advertisements is real. It is just somebody promoting his or her own product which, in many cases, does not live up to expectations.

Deputy O'Shea has done much research and he referred to the Swedish model of which I have read and know something. It has worked well there. As we are speaking on a broadcasting Bill and of standards and codes, it is something we should consider. I am glad the Minister will have something further to say on Report Stage. Nevertheless, I am sure by the time we get to Report Stage, things will not have advanced very far in terms of the commission. However, this warrants some attention and discussion. It works well in other countries and we have to be careful of children in terms of influencing them.

It appears that between now and Report Stage, the Minister will look at aspects of self-regulation. What if self-regulation in this field does not work? There is no evidence internationally that it does work.

Between now and Report Stage, I can provide the Minister with a reference. On 30 September 1999, 60 leading psychologists and psychiatrists in the United States wrote to the president of the American Psychological Association asking for precisely the kind of protection for children which Deputy O'Shea's amendment would give. Among other things, they stated that regrettably a large gap has arisen between the American Psychological Association's mission and the progression into helping corporations influence children for the purpose of selling products to them, that advertising and marketing firms have long used the insights and research methods of psychology to sell products but that today these practices are reaching epidemic levels with the complicity of the psychological profession.

The conference to which Deputy O'Shea referred was a very interesting one which took place in London a year before that in the month of September. That conference was advertised for Simpsons on the Strand and the title of the convocation was, "Marketing to Kids". I spent some time before coming to a final opinion on this. I am convinced an amendment along the lines of Deputy O'Shea's is the only way to protect children. All the arguments he put forward are reinforced by existing research. A very powerful lobby will lobby against the kind of change Deputy O'Shea suggests and he set out the kind of arguments they will make, but they can easily be disposed of. If it is wrong to rob the childhood of children, to abuse children, to take psychological insights and make them available to people to market products, then it is irrelevant what is done with the proceeds from it.

The suggestion that perhaps the children know more than their parents is insulting. We are creating little consumers. Remember the thrust of a point on which we agree, that is, the importance of teaching people the theory of citizenship and the practice of citizenship. If it is to be part of the most degraded aspect of the contemporary free marketeers, that children must have their childhood robbed from them, it is on the same level as the milder end of child pornography. It is a form of manipulation and of child abuse. We do not need any conferences on it, it should be stopped. We should simply allow children under 12 years of age not to have advertising directed at them — end of story. Some might ask what would be lost by this. What would be lost would be the profits of certain corporations.

Deputy O'Shea mentioned something that was not strictly in the wording of the amendment, that is, the use of children in advertisements. Last week I referred to an advertisement on television from a company that should be ashamed of itself whereby a baby in diapers watching television accidentally hits the remote control, mammy comes out and switches the remote control on again and peace reigns, God goes on and the world is safe. This is an appalling kind of advertising. The people who made and use an advertisement like that are degraded by it and they should be ashamed of themselves.

I have no faith that this can be managed by some kind of internal navel-gazing by those who ideologically are committed to maximising the yield from the sale of products. It is a matter for regulation in the interests of children and it should be separate from any concept of self-regulation.

Deputy O'Shea mentioned advertising aimed at children before, during and after programmes. One of the most interesting areas on which good research is available is in relation to what one might call the use of the cartoon format for advertising directed at children in the vulnerable age groups up to 12 years of age. It is calculated, for example, that in France a child will have seen 100,000 advertisements by the age of 12. If one shifts to the United States, it is calculated that by the seventh grade, the average child will have seen 8,000 murders and 100,000 acts of violence in cartoons alone.

I am not arguing for censorship and I do not believe that is the issue. I am arguing that it is not right, in relation to the democratic exercise of the right to communicate and of broadcasting, to allow the most vulnerable of people to be abused in this way. What happens in relation to this will become even more important. This is where legislation in Ireland is very important. I believe one of the initiatives during the Swedish Presidency of the European Union next year will be to seek to extend the regime they have to the European Union. In anticipation and preparation for that, we should go down this road now in our own legislation.

There was reference to the other work. Language would not mean anything any more if one took the manufacturers and advertisers line that they should be free to direct their messages to children under 12 years of age as some kind of freedom of commercial language. If that is to be the construction put on Article 10 of the European Convention on Human Rights, it descends into farce. It is a legislative call and not an industry call. Is this an appropriate area for regulation in the way Deputy O'Shea's amendment suggests? We advance the view that it is an appropriate and necessary place for legislation.

I am not so sure what can be achieved between now and Report Stage because, frankly, the amendment is very simple. What are the alternatives between now and then? Will the Minister consult more on it or have it further researched? There is a considerable body of research there already. For example, are we to suggest that the Irish child under 12 has a peculiar in-built mechanism that enables him or her not to be influenced by advertising directed at him or her? We have not done research but I rather doubt it would be a good workable hypothesis.

I suspect one will get a great deal of flannel from those who are practitioners in the field. It is interesting because, in a way, we are now touching one of the absolute cornerstones of broadcasting — broadcasting facilitating communication and the delivery of information — and of broadcasting so unregulated that the most vulnerable people will be made available to its message assisted by the least principled of professions. A number of psychologists want to send clear messages — I am aware the Minister is a trained psychologist and will know exactly what I mean — and that there is such a thing as the use of psychologists for the facilitation of information, messages and so forth and how it can help adults and so on.

The idea of a professional lending his or her talents to manipulate children for advertising purposes is obscene. One might say there are other analogies, such as the large number of distinguished physicists who work for the war effort in the United States. It is one of those areas which tests us not just on what is happening now but on what is happening to children. Children will be bombarded by enough advertising once they pass 12 years of age. It is one of the most disgraceful aspects of this extreme version of the marketplace that those following it say there is no childhood. They are offering up childhood. Children have rights and they should be protected in this legislation from the abuse directed at them through advertising. That is why I feel strongly about this amendment which tests us.

I thank the Deputies for their useful discussion on this issue. Deputy Michael Higgins is right that I am a psychologist and I have an interest in this field. I want to put the Deputy's mind at rest — it is not a question of self-regulation. We all feel children must be protected because, as the Deputy said, they are a vulnerable section of our community.

As regards the example of Sweden, the Swedish experience is relevant. However, I have been told that the television without frontiers directive has diluted the Swedish experience. We may need to be more inventive than the Swedes in ensuring that what we have is what we can proceed with in terms of the European directives.

Amendment No. 31 allows for wide consultation and it could have been more restrictive than what Deputy O'Shea proposed. This is a sensitive area. I was trying to ensure the type of restrictive regime the Deputies opposite wish to see. If the members give me an opportunity to further consider this matter in light of these discussions, I will come back to it on Report Stage.

As regards the development of a code for children's advertising by the Broadcasting Commission of Ireland, many pressures will be brought to bear on the commission for all types of reasons. If, for example, a broadcaster says that he or she will not survive if they do not have revenue from children's advertising, that would put considerable pressure on the commission. The commission must play a number of roles.

We have been sent here by the people to legislate. This is an issue of principle. The ethics of the industry leave a lot to be desired and the situation is worsening. Deputy Michael Higgins was not overstating the case when he described this as an abuse of children. Those of us who see the dangers and difficulties and substantially agree on the analysis are best placed to take a dispassionate decision and amend the legislation in the best possible way. This issue must be dealt with in primary legislation. There is no way forward in terms of delegation because that will mean the commission will become subject to all types of pressure. Because it will operate in the broadcasting area it will be more vulnerable to those who advance commercial arguments. We have been sent here by the people to protect our children. However, this situation will continue if we do not amend this legislation.

Children are being robbed of their childhood and are part of a society which is becoming more materialistic. I ask the Minister to deal with this issue in primary legislation, not through delegation. The free market must be regulated in this area. Advertisers and advertising firms cannot run amok and manipulate children in the interests of profit. Advertising operates in many areas. There seems to be a view in the industry that adult advertising has been exploited as far as it can. Additional pressure is being put on children to manipulate parents and, therefore, to manipulate the market and add to profitability.

I am prepared to withdraw the amendment to allow the Minister to come back to us on Report Stage. However, we will resubmit this amendment. I appeal to the Minister not to come back to us with an answer similar to that in amendment No. 31, which delegates responsibility. We, as legislators, must deal with this issue in primary legislation and make a statement once and for all.

I have listened to this debate carefully and I understand the concerns expressed by the Deputies about delegation. I regard the Broadcasting Commission of Ireland as the regulator, but it is not a question of us not taking our responsibilities seriously. I want to be able to see how we can give a specific direction to the commission. The wording used by Deputy O'Shea would be undermined by the television without frontiers directive. We need to think again about this issue, given the debate, and see how we can word it so we get our message across without having it undermined in any way by the directive, as happened in the Swedish case.

I thank the Minister for the spirit of her response. We have made progress this evening. We will take her advice about the television without frontiers directive. We may come back with new wording on Report Stage. The indications are that we can make progress on eliminating child abuse.

I am persuaded by the principle of the arguments made by Deputy O'Shea and Deputy Michael Higgins and by the Minister's response. We need to send out a clear and strong message that there is no room for prevarication or subversion in this area. I welcome the Minister's intentions and look forward to her coming back to us on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 42 is consequential on amendment No. 29 and amendments Nos. 71, 72, 73, 75, 76, 77 and 86 are related. Amendments Nos. 29, 42, 71, 72, 73, 75, 76, 77 and 86 may be discussed together.

SECTION 15.

I move amendment No. 29:

In page 17, subsection (1), between lines 18 and 19, to insert the following:

"(c) a code specifying the minimum amount of broadcast hours which must be provided in the Irish language on each broadcasting service and how these hours will be constituted, subject to the approval of the Minister.".

The amendments I tabled on the Irish language were presented to us by Comhdháil Náisiúnta na Gaeilge. The first one states: "a code specifying the minimum amount of broadcast hours which must be provided in the Irish language on each broadcasting service and how these hours will be constituted, subject to the approval of the Minister". Sometimes people have the view that because TG4 has been set up, RTE does not have responsibility to produce programmes in Irish. However, we all know that is not the case. TV3 should also consider making programmes in the Irish language. As other indigenous broadcasters develop, namely, UTV and BBC Northern Ireland, we should, in conjunction with Foras Teanga, seek to advance the Irish language as a broadcast language from the North of Ireland. This amendment seeks to have a specified minimum amount of broadcast hours provided in the Irish language, subject to ministerial approval.

Amendment No. 42 states "a complaint that a broadcaster is failing to comply with a provision of a code", about which I have spoken. Action can be taken against them for not fulfilling their obligations under the subsection.

Amendment No. 71 did not come from Comhdháil Náisiúnta na Gaeilge, it relates to my strong policy position. Due to your initiative, a Chathaoirligh, for which I compliment you, we had a debate last Thursday in the Dáil on the Irish language in the 21st century. It was less than an hour long but it was worthwhile. I hope it will be repeated in the future. During that debate I stated my view, which I have often stated in the past, that there must be clear Government policy on the Irish language. We should decide what we want to achieve in terms of the Irish language. The Irish language should be part of a bilingual society. We should move towards the day when people will be as fluent in Irish as in English. Some will say that is a pipe dream but without such an objective and similar Government policy, the decline in the Irish language will continue.

The Government must have a strategic policy on the Irish language. I tabled parliamentary questions some time ago to ascertain the amount of money spent on the Irish language by various Departments, but the results were inconclusive. There must be an overall policy direction and focus in terms of how funds are used to promote the Irish language. There is a piecemeal approach where one Department does not know what the other Department is doing in terms of the Irish language. There is no centralised approach to this issue. The Government must make it a priority to establish how much money is spent by each Department on the Irish language. It must ascertain their objectives and how they relate to the overall objective of creating a bilingual society. This amendment seeks to fast-track the development of strategic policy.

I have been critical of the Minister of State in terms of Irish language policy, although there is a policy for the Gaeltacht. Coimisiún na Gaeltachta has been set up and Bille comh ionnanas teangain will be published in the future. Simultaneous with the setting up of TG4 on an independent basis, a national strategy must be put in place so we know where we are going and how it will dovetail in the context of the development of TG4 services. TG4 is doing good work. Although the station is underfunded, progress is being made. It will be an important component in whatever strategy is implemented to achieve the Government's objective in relation to the Irish language. I await the Minister's response.

This grouping of amendments relates to the Irish language.

I will discuss amendments Nos. 29, 42, 71, 72, 73, 75, 76, 77 and 86 together. This group of amendments relates largely to the statutory provisions with regard to the Irish language programmes on our broadcasting services, particularly TG4. My amendments Nos. 72 and 77 clarify the special nature of TG4 as a national Irish language television service. Few would disagree about the central importance of the Irish language to our culture and identity and to maintaining and sustaining the Gaeltachtaí as Irish speaking communities where a person can live and work.

The importance of the Irish language is already enshrined in broadcasting legislation. The statutory remit of the national broadcaster, RTE, requires that the authority in its programmes has special regard for the elements that distinguish our culture, particularly the Irish language. The Bill provides for the clarification of RTE's remit by specifying that the authority shall provide a comprehensive range of programmes, including news and current affairs programming in both the Irish and English language. TG4 will, as a result of my amendments, be required to provide a comprehensive range of programmes, primarily in the Irish language, and to have special regard in its programming for the Gaeltachtaí. The Independent Radio and Television Commission is required at present to take Irish language concerns into account in carrying out its functions. From a broadcasting perspective, the Irish language is catered for adequately by the existing provisions in the broadcasting legislation and by the provisions proposed in this Bill.

The difficulty with quotas, as proposed by the Deputy in amendments Nos. 29 and 42, is that they would not guarantee even a modicum of programming of acceptable quality. They are more likely to generate at best a grudging compliance, while producing a minimalist attempt at Irish language programming. A positive approach, such as the establishment of TG4, has done more in a broadcasting sense for the Irish language than the imposition of quotas could ever do. TG4, through its successful programming policy, has made the language accessible, desirable and fashionable. Other broadcasters can learn through this experience that Irish language programming can be successful and popular. Accordingly, I oppose amendments Nos. 29 and 42.

The proposed intrusion of the Minister into the making of the programme content codes by the Broadcasting Commission of Ireland would be unacceptable. I hope Deputy O'Shea agrees that for the most part his intentions in terms of amendments Nos. 73, 75 and 76 are met via my amendments Nos. 72 and 77.

I also oppose amendment No. 71 which seeks to tie the establishment of TG4 as a separate statutory entity to the publication of a comprehensive policy relating to the Irish language. Establishing TG4 as an entity in its own right will be a complex process enabled by the provisions in the Bill. The Government's policy is that it should be a separate broadcasting institution. This is in line with the policy of a succession of Governments involved in its establishment. This element of policy is not dependent on any other policy matter.

Amendment No. 86 would require a potential member of the board of TG4 to have experience or shown capacity in Irish language and Gaeltacht affairs. I would have thought that a person with such experience or capacity could easily qualify under the provision at part (v) of the same provision that refers to social, cultural, educational or community activities.

I oppose amendment No. 29 and I will oppose amendments Nos. 42, 71, 73, 75, 76 and 86. I will move amendments Nos. 72 and 77 in due course. Amendments Nos. 72 and 77 concur with the views expressed by Deputy O'Shea.

I tabled these amendments to highlight a deficit which militates against the provisions vis-à-vis TG4 or the use of Irish language programming on RTE One or Network 2. There is an absence of a Government strategy on the Irish language. The Gaeltachtaí are of fundamental importance as areas go bhfuil an teanga beo, where Irish lives on to varying degrees. The people must accept ownership of the Irish language and realise it belongs to everyone. People in the Irish language lobby tended to be elitist in the past. We all know the people who, when someone was attempting to speak in Irish, would correct their grammar etc.

The Government must have a policy. While the Department of Arts, Heritage, Gaeltacht and the Islands deals with the Gaeltacht, responsibility for the Irish language also stretches to other Departments, particularly the Department of Education and Science. It is vital that the Government makes a decision on strategy or policy. We should be able to refer to it and we should pursue a particular objective. I want to accelerate the development and publication of the strategic policy about which I am talking. We must ensure maximum interaction between broadcasting and the Irish language. The role of radio and television cannot be overstated in reviving the Irish language.

I will not push the amendment. However, there is a need for the Department to take an initiative and for the Government to adopt a policy position which pulls all the elements together so there is a focused and co-ordinated approach to the Irish language. Money is not being spent in a co-ordinated and targeted way. We must ask if taxpayers are getting the best return on these resources.

Amendment, by leave, withdrawn.

I move amendment No. 30:

In page 17, subsection (2), line 19, after "shall" to insert ", in accordance with subsection (4),".

Amendment agreed to.

I move amendment No. 30a:

In page 17, subsection (2), line 32, after "service." to insert "For the avoidance of doubt, like services shall be subject to the same regulations under this section. Rules under this subsection shall, in particular and without prejudice to the generality of the subsection, be made having regard to the extent of public funding made available in support of any broadcasting service and the Commission shall differentiate between services in receipt of such support and other services in determining the maximum period under paragraph (b) so as to proportionately reflect that support.".

This amendment is designed to add to what is already contained in section 15(2). The fact that a broadcasting company may be supported by public funding should be taken into consideration when advertising space or advertising time is being allocated.

In other words, the amendment is designed to prioritise public funding support.

Yes. The extent of public funding should be considered when allocating advertising space.

Amendment No. 30a in Deputy Clune's name assumes that the Broadcasting Commission of Ireland will determine the time that broadcasting services which are publicly funded can devote to advertising. This would include the free to air service of RTE and TG4. Under the provisions of the Bill the Broadcasting Commission of Ireland would not have any role in this matter. In my opinion this amendment is only relevant if the Deputy's amendments relating to the establishment of a super-authority had been accepted. As they were not, there is not much point in proceeding with this amendment.

I accept that. However, I wanted to debate the point highlighted by the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 31:

In page 17, lines 36 to 40, to delete subsection (4) and substitute the following:

"(4) Before preparing a code or making a rule under this section, the Commission shall make available for inspection by any person who makes a request of it in that behalf a draft of the code it proposes so to prepare or the rule it proposes so to make and shall have regard to any submissions made to it, within such period as it specifies for the purpose, by that person in relation to the draft before it prepares the code or makes the rule concerned.".

Amendment agreed to.

Amendments Nos. 31a and 32 are related and may be taken together by agreement.

I move amendment No. 31a:

In page 17, subsection (5), line 42, after "steps" to insert "including the provision of a full subtitling service".

This amendment is designed to make provision for a subtitling service. It was drafted as a result of representations we received from the hard of hearing association and the society representing deaf people. Those organisations have outlined to us the difficulties they face in trying to encourage existing broadcasters to provide subtitling services. I understand that subtitling, particularly of main news and current affairs programmes and other programmes of general interest, is common in other jurisdictions. We have acceded to their request to try to have the word "subtitling" included in the legislation because they believe their concerns are not being addressed.

Subtitling services are currently provided on a hit and miss basis. I have had long discussions with representatives of the organisations to which I refer. Subtitling was dropped in September and people with hearing difficulties found that programmes they watched one week that were subtitled were not subtitled the next. I refer here to public service and current affairs programmes. There is no continuity in terms of which programmes are subtitled and the service is not reliable. The organisations believe that if the word "subtitling" was inserted in the Bill it would strengthen the case they can put forward when approaching broadcasters. The subtitling service currently on offer is not universal and it is not acceptable to those who are hard of hearing.

Section 15 acknowledges, for the first time in broadcasting legislation, the right of deaf people to improved access to television services. Subsection (5) requires the Broadcasting Commission of Ireland to make rules in this regard while subsection (6) provides that such rules may include specific targets. Under section 17, the Broadcasting Commission of Ireland will have specific powers of enforcement in relation to these rules. It is appropriate that this function will be within the remit of an independent body responsible for all Irish broadcasters.

Under amendment No. 31 I have required the Broadcasting Commission of Ireland to undertake a wide consultation process. I have done so with the specific intention of requiring the commission to consult with groups such as those who would like to see more subtitling on Irish television. This process may provide a more or less restrictive set of targets than those proposed by Deputy O'Shea In addition, I must bear in mind that it is possible that, in the context of digital television, advances in voice recognition technology could allow an even more rapid move towards full subtitling. The insertion of predetermined targets would tie the hands of the commission in this regard and pre-empt the outcome of the consultation process. Accordingly, I must oppose amendment No. 32.

In relation to Deputy Clune's amendment, the provisions of subsections (5), (6) and (7) are sufficient to ensure that the commission will address the issue of subtitling. Accordingly, I must also oppose amendment No. 31a. I met those who are interested in rights for the deaf and they seemed to be satisfied with the approach I have taken.

I did not get an opportunity to speak on the amendment in my name.

I apologise, the Deputy should have been allowed to do so. He may proceed now.

I accept the logic of the Minister's point that setting targets which could prove impossible might not be a good way to proceed. However, I have observed the difficulties encountered by disabled people over many years and in my opinion progress has been made by consistent lobbying to keep the issue on the agenda. Success also comes from commitments that are given with specific targets in mind. Technology is constantly moving forward and I am informed that teletext is an effective way of ensuring progress in the area of subtitling.

I am subject to correction, but I understand that viewers who do not want to watch a programme with the teletext switched on need not do so. Against that background, it is reasonable to seek 100% subtitling within a five year period. Where issues that pertain to the disabled are dealt with, particularly those affecting smaller groups, they tend to be forgotten or put aside if there is not a statutory commitment to meet certain targets. Even when statutory targets are set out, they are not always met. If my understanding of how teletext services can be used in this area is correct, five years is not an unreasonable period in which to demand that 100% subtitling be provided.

The other part of my amendment states that "5 per cent of airtime shall be through the medium of Irish sign language". I thought that sign language was an international language but that is not the case. There can be great differences between the type of sign language used in individual countries.

People with hearing problems have substantial disabilities, as do those who are partially sighted or blind, and I compliment the Minister for taking on board the interests of the latter group. As a society we must state that people with hearing difficulties should be entitled to the service to which my amendment refers. With development in technology, it will become easier to provide that service over a shorter period. I will not press the amendment. However, I ask the Minister to consider the possibility that 100% subtitling might be achieved within a defined timeframe so that people who are either deaf or hard of hearing will know that their concerns will be addressed within a reasonable period. If the proposals outlined in my amendment were accepted, in five years there would be 100% subtitling and 5% of air time would be through the medium of Irish sign language.

I am sure Deputy O'Shea recognises that section 15 of the Bill acknowledges for the first time in broadcasting legislation the need to have regard to the rights of deaf people. That is an important and substantial change which needed to be made. I am proposing that the commission will be told that it has an express requirement to deal with this situation. I accept that the Deputy wants matters to be dealt with within certain specified targets. However, as stated earlier, it is possible that, in the context of digital television, advances can be made. That is why I believe this matter would be best left to those who know the situation that obtains in respect of broadcasting technologies. The broadcasting commission is the relevant body to deal with this matter and, as already stated, an express requirement is placed upon it to deal, for the first time, with the rights of people who are deaf, hard of hearing, blind or partially sighted.

I compliment the Minister on the section. I accept that the commission should consult those with the relevant technological knowledge initially. However, there are many priorities that must be considered in terms of how legislation is implemented. I accept that the provisions in the Bill will bring about some improvement but I am concerned about the lack of set targets. This may be one of the few occasions on which the problems of deaf people or those with impaired hearing will be aired before the committee. In that context, we are in a position to make a decision that will result in the difficulties they face being comprehensively addressed within a reasonable timeframe.

Once one begins delegating authority, that authority always becomes diluted. Authority tends to be delegated to busy individuals who have many important duties to perform and objectives to achieve. The group of people to whom the amendment refers is small and the nature of their disability is such that they have difficulty communicating in the first instance. In light of the many good developments that have resulted from the emergence of the Celtic tiger, surely this group should be given a firm commitment that their problem will be substantially addressed within a reasonable timeframe. I ask the Minister to reconsider the matter before Report Stage, at which point I intend to revisit it.

How stands amendment No. 31a?

I will withdraw it. I acknowledge the Minister's statement that subsection (5) deals with the point I raised. In addition, I accept the Minister's assertion that she discussed amendment No. 31 with the relevant groups and they indicated their satisfaction with it. I had not taken that into consideration when drafting amendment No. 31a. I will withdraw my amendment with a view to re-introducing it on Report Stage.

Amendment, by leave, withdrawn.
Amendment Nos. 32 and 32a not moved.
Section 15, as amended, agreed to.
SECTION 16.

I move amendment No. 32b:

In page 18, subsection (1), line 43, after "Internet" to insert "to the extent that such persons are resident in the State or otherwise subject to the authority of the Commission and the transmissions of information concerned will be generally available to the public".

This amendment is designed to ensure that the people to whom the section refers are resident in the State. In that context, perhaps the Minister could explain the meaning of subsection (1).

This amendment is based on a fundamental misunderstanding of the purpose of section 16. As already indicated on numerous occasions, the Broadcasting Commission of Ireland will not have a role in the regulation of non-broadcasting services. Section 16 simply makes it clear that the commission may co-operate or provide assistance to any other body that might be involved in developing standards, apart from technical standards, for such services. It is to be expected that the commission will develop some expertise and authority in standards in audio-visual material generally in fulfilling the role envisaged in section 15 of the Bill. It will be enabled to make this expertise available to others in the non-broadcasting area should such bodies be established at either national or international level. Accordingly, the amendment would not be appropriate and I, therefore, must oppose it.

Amendment, by leave, withdrawn.
Section 16 agreed to.

We shall conclude our deliberations at this point. When is it proposed that we return to deal with the Bill?

Given that this is important legislation, Members will want to have as complete a debate as possible on it.

What are we discussing?

We are discussing the date on which we will resume our deliberations. Given the importance of the legislation and the fact that Members wish to contribute at length, I propose that we meet as soon as possible. I will be available on Monday, 27 November and I can remain for as long as is necessary on that day. On Wednesday, 29 November I will be available for the entire day and I will also be in a position to remain for as long as is necessary. The same applies on 4 December. I can stay until midnight on each occasion, if necessary. On 5 December I will be available in the afternoon until approximately 5.30 p.m. On 7 December I will be available all day until 5.30 p.m. I am sure the Chairman will agree that the remainder of Committee Stage and Report and Final Stages should be addressed as quickly, efficiently and effectively as possible.

Unfortunately, we cannot resume our deliberations until 4 December.

I would have difficulty attending on Monday, 27 November. However, I will be available on Wednesday, 29 November.

Unfortunately, the Committee of Public Accounts, with only a few exceptions, will be taking over all the committee rooms on that date.

Are there rooms available on Monday, 27 November.

The next date on which a room will be available is 4 December.

If the Bill is to complete its passage through the Dáil and Seanad before Christmas, we will begin to run out of time if we do not return to it on 4 December. I am willing to attend on any date other than 27 November because I believe we can conclude Committee Stage in one sitting.

We should meet on Wednesday, 29 November.

Unfortunately, we cannot get a room on that date.

Would it be possible to meet that evening and work through until we conclude. Deputy O'Shea is correct that we could conclude Committee State in one further sitting.

I agree.

The Clerk to the committee will investigate the position and contact everyone in respect of it.

Perhaps we could sit from 5 p.m. to 10 p.m. on Wednesday, 29 November, with a short break at some stage of the evening.

If the Bill does not pass before Christmas, it will be at least February before it does so. Time is not on anyone's side in that regard.

Clerk to the Committee

We have a difficulty in finding accommodation because the Supplementary Estimates must be dealt with between now and 7 December. In addition, the Committee of Public Accounts is taking over most of the rooms next week. We will try, however, to accommodate Members, perhaps in the way suggested by Deputy Clune.

I support Deputy Clune's suggestion and I am sure Deputy O'Shea will endeavour to be as flexible as possible in that regard. If it is not possible to meet during the day, we can easily meet in the evening and continue for as long as necessary.

Would the Minister be able to be present tomorrow?

On the next occasion we should try to continue until we have concluded Committee Stage.

Perhaps the secretariat will discover the dates on which accommodation will be available and contact us to arrange to meet on the earliest possible date. It will only take a certain number of hours to conclude Committee Stage.

We have dealt with the most contentious issues.

The Select Committee adjourned at 4.55 p.m.