SELECT COMMITTEE on HERITAGE and the IRISH LANGUAGE debate

Broadcasting Bill, 1999: Committee Stage (Resumed).

SECTION 17.

Chairman

Amendments Nos. 33, 34 and 35 are related and may be discussed together by agreement.

Miss de Valera

I move amendment No. 33:

In page 19, subsection (1)(a), line 2, after "of" to insert "Parts II, III and V of".

The original subsection (1)(a) of section 17 could reasonably have been interpreted as giving the Broadcasting Commission of Ireland an enforcement function in relation to the provisions of the Bill dealing with RTE and TG4 contained in Parts IV and VI and VII. This was not intended and the proposed amendment makes it clear that the Broadcasting Commission of Ireland has no role in enforcing such provisions. As a consequence of amendment No. 33 the wording of subsection (1)(b) and (c) must be amended.

Ms Clune

We have had a discussion on this matter previously. I accept the amendment from a clarification point of view.

Mr. O’Shea

I agree with the amendment.

Amendment agreed to.

Miss de Valera

I move amendment No. 34:

In page 19, subsection (1)(b), line 3, to delete "thereunder" and substitute "under this Act".

Amendment agreed to.

Miss de Valera

I move amendment No. 35:

In page 19, subsection (1)(c), line 5, to delete "thereunder" and substitute "under this Act".

Amendment agreed to.

Section 17, as amended, agreed to.

SECTION 18.

Mr. O’Shea

I move amendment No. 36:

That is the specific legal advice we got.

Amendment, by leave, withdrawn.

Section 18 agreed to.

SECTION 19.

Chairman

We now move to amendments No. 38. Amendments Nos. 39 and 40 are cognate. Amendments Nos. 38, 39 and 40 may be discussed together by agreement.

Miss de Valera

I move amendment No. 38:

In page 21, subsection (1), line 5, to delete "its" and substitute "their".

These are technical drafting amendments which correct the language used in the original provisions. It is proposed that the word "its" is replaced with the word "their" in subsections (1), (2) and (3). They are purely drafting amendments.

Yes.

Mr. O’Shea

This is just to tidy up the legislation as a consequence of that?

Miss de Valera

Exactly, as a follow on.

Amendment agreed to.

Amendment No. 42 not moved.

Miss de Valera

I move amendment No. 43:

In page 22, lines 45 to 51, and in page 23, lines 1 and 2, to delete subsection (5) and substitute the following:

"(5) Where a complaint is made to the Commission and—

(a) a person employed by the broadcaster concerned, or

(b) if the making of any programme, the subject of the complaint, was commissioned by the broadcaster concerned, the person commissioned to make that programme,

requests, for reasons specified by him or her, the Commission to afford to him or her an opportunity to comment on the complaint, the Commission shall, having considered the reasons so specified, afford to the person such an opportunity if, but only if, they are satisfied that, as appropriate—

(i) an interest of the person referred to in paragraph (a), being an interest which the Commission consider relevant to the person's employment by the broadcaster concerned, or

(ii) the prospects of the person referred to in paragraph (b) obtaining further commissions in respect of programmes from the broadcaster concerned,

may, because of the complaint, be adversely affected.".

The original subsection (5) afforded employees of a broadcaster the opportunity to present a case to the commission about a complaint where the commission is satisfied that the employee may be adversely affected by the complaint. However, programmes commissioned from independent producers now form a significant proportion of all broadcasters' programme schedules. It is only reasonable that if a complaint is made against a commission programme, the person responsible for producing the programme should also be afforded the opportunity to present a case to the commission if the commission is satisfied that the likelihood of that person receiving further commissions is adversely affected.

Ms Clune

From my understanding of the amendment it is reasonable and something that was missing originally. I agree with the amendment.

Mr. O’Shea

I do not see any problem with the amendment.

Amendment agreed to.

Miss de Valera

I move amendment No. 44:

In page 23, subsection (7)(c), line 13, to delete "to".

This is a technical drafting amendment directing language used in the original provision. It is proposed to delete the word "to" in line 13 of page 23.

Amendment agreed to.

Section 20, as amended, agreed to.

SECTION 21.

I move amendment No. 45:

In page 24, subsection (3), lines 31 and 32, to delete "section 2 or 3 of the Performers Protection Act, 1968" and substitute "any provision of Part III of the Copyright and Related Rights Act, 2000".

Amendment No. 45 is proposed on the basis of the Performers' Protection Act, 1968, which was repealed in the Copyright and Related Rights Act, 2000. Part III of the Copyright and Related Rights Act deals with performers' rights and is now the appropriate reference. Amendment No. 46 is proposed on the basis that the Copyright Act, 1963, was substantially repealed in the Copyright and Related Rights Act, 2000, and that Act is now the appropriate reference. This amendment is by way of clarification.

Amendment agreed to.

Miss de Valera

I move amendment No. 46:

In page 24, subsection (3), line 33, to delete "Copyright Act, 1963" and substitute "Copyright and Related Rights Act, 2000".

Amendment agreed to.

Section 22, as amended, agreed to.

SECTION 23.

Question proposed: "That section 23 stand part of the Bill."

Miss de Valera

Section 23 relates to the transitional provision in relation to the Broadcasting Complaints Commission. This provision ensures that any legitimate complaint which is in the process of being investigated by the Broadcasting Complaints Commission begun but not completed before section 3 comes into effect, under sections 18A to 18C of the Broadcasting Authority Act, 1960 as amended by the Broadcasting (Amendment) Act, 1976 can be completed, despite the repeal of these sections by section 3 of the Bill.

Mr. O’Shea

Effectively this amendment is to provide that no complaint is lost during the transfer.

Miss de Valera

Yes, to bridge the gap during the transitional period.

Question put and agreed to.

NEW SECTION.

Mr. O’Shea

I move amendment No. 47:

In page 24, before section 24, but in Part IV, to insert the following new section:

"24.—In order to give effect to the principles of this Part, the Minister shall publish proposals in relation to the increase of the licence fee in accordance with the increase in the consumer price index.".

The purpose of this amendment is quite clear. It is important that the whole business of the licence fee is removed from the political arena, addressed in statute and an appropriate procedure put in place. In terms of the independence of the national broadcaster, it is healthy that it should not have to make representations to the Minister of the day to obtain approval for increasing the licence fee. Every organisation needs to adjust the level of income it collects in line with inflation or the consumer price index, as proposed in this amendment. As well as removing from the political arena sanction for increasing the licence fee, a clear indicator of the increased revenue that can be collected by way of the licence fee year on year would give the authority the opportunity to make plans in a much more effective way. This is a necessary measure which should have been introduced some time ago. It would lead to efficiencies and strengthen the independence of the authority. I do not intend to allude to the current application for an increase in the licence fee. Irrespective of the Minister's decision on it, henceforth the level of the licence fee should be adjusted in line with the consumer price index year on year.

Ms Clune

I support Deputy O'Shea's amendment. The requirement that RTE must apply to the Minister for approval for a licence fee increase should be removed. It would be much more beneficial if RTE was guaranteed that the level of the licence fee would be linked to inflation. That would enable it to make plans and to know where it stands from year to year. A licence fee increase linked to inflation was sanctioned previously, but that has not come about. In terms of the amount of funding that would be available to the authority, it would be preferable if the level of the licence fee was linked to the consumer price index. Such a measure could be included in this legislation, as a similar principle has been accepted on previous occasions in terms of providing funding to other groups. I support the inclusion of this amendment in the legislation.

Miss de Valera

I cannot accept amendment No. 47. Deputy O'Shea will be aware that I have recently received an application from RTE for an increase of £50 in the licence fee from April next year. The application also proposes automatic indexation of the licence fee to the consumer price index. As I indicated to the House, the application will receive a detailed examination in my Department and I will bring forward to Government for decision any proposals that emerge. The Deputy said he does not wish to allude to the current submission. I said previously that I am opposed to automatic indexation of the licence fee amount. It has always been my view that each and every increase in the licence fee should be clearly justified. However, I am not prepared to prejudge the outcome of the examination of the application made by RTE by either agreeing to support amendment No. 47 or by not being prepared to contemplate the proposals made by RTE. Any decision on this topic will have to await the outcome of the examination of the RTE application. Accordingly, I must oppose the amendment.

Mr. O’Shea

The authority is currently facing the suppression of 350 posts. Reports indicate that the authority has serious financial problems in the context of its revenue base. Within the context of social partnership and national agreements, there are written increases in terms of staff costs and inflationary increases in terms of the purchase base of the authority of any organisation, therefore, inputs and labour costs increase. If the Minister understands the position to be different, will she explain it? All my amendment seeks is that income derived from the licence fee of the authority should be linked to the consumer price index year on year. That is an important principle. The requirement that members of management of the authority must make representations to the Government of the day for approval to increase the licence fee is inappropriate. The future of the national broadcaster is very much bound up with indigenous programming, which costs money, irrespective of whether it is produced in-house or commissioned out to independent film makers.

The national broadcaster, which has the mandate on public service broadcasting, is facing a plethora of challenges. My amendment seeks to do no more than protect the real income of the authority. I fail to understand, in principle or in economic terms, how what I propose will introduce a serious conflict. Due to the absence of indexation, it is claimed that since 1986 the authority has lost in the region of £120 million. I am not interested in going over those figures. This principle should be established henceforth in the interests of independence and in the interests of giving stability to the national broadcaster in terms of it being able to assess what additional income is likely to accrue to it from this measure.

Ms Clune

I am disappointed with the Minister's response. What is being sought was in place previously and Deputy O'Shea indicated the amount of funding that has been lost to the authority due to the absence of indexation. Given the expenses that RTE will face in producing more programmes and that matters will not be easy, if RTE has an effective funding programme, it would survive those challenges. A guaranteed linking of the level of the licence fee to the consumer price index is worthwhile, as it would enable the authority to make plans for the future. Any of the ongoing negotiations are linked to the cost of living increases. Prices do not stand still. We witness increases every year. Given RTE's remit and what it is obliged to produce, a licence fee increase linked to the consumer price index would be worthwhile and would facilitate it in developing its plans.

Miss de Valera

I have heard the Deputy make this point at Question Time, that it is easier for an organisation to plan ahead if it has such a mechanism in place. However, I have to do a balancing act in this regard. The restructuring is a matter for RTE, not for me, but I must balance the fact that there will be certain challenges for RTE due to the onset of new technologies with the justification of spending public moneys in such a situation. I am not prepared to prejudge the outcome at present. As I said earlier, this matter is being examined in great detail. I want to ensure that the views expressed to me are backed up by the type of information I need for an evaluation to take place.

An important decision will be made at the end of the day for RTE and the viewer. I do not believe acceptance of this amendment would be helpful in my assessment of the submission given to me recently by RTE. I have to weigh up all concerns and arguments and come to my decision, and this amendment will not be helpful.

Mr. O’Shea

The Minister's approach to this subject does not convince me. There are two issues here. There was a loss of about £16 million in RTE operations last year and I understand there is a forecast shortfall of approximately £13 million for this year. Obviously, the application for an increase in the licence fee takes cognisance of that position. The authority has the money that accrued from the disposal of Cablelink but the £50 issue has a historical base and a current base.

This is our last chance to deal with this in legislation for some time. I doubt the Minister has any intention of introducing a new broadcasting Bill in the foreseeable future. I am seeking that a basic principle be applied. It is agreed across a wide range of opinion that there is insufficient money available to RTE for indigenous productions. That is a serious concern. The great fear of many people is that with the arrival of digital television on the various platforms more programmes will come from outside the country. The talent in this country and the expression of that talent in all its ramifications within the public service mandate is, in the first instance and most importantly, related to the people in this country. When we do things well in television production and good quality work from Ireland is seen around the world, it helps the country in many other ways. There are many reasons, therefore, for having proper financing for this sector.

The Minister is not making the basic segregation which should be made. Whatever the outcome of her deliberations on the present application from the authority, it is a separate matter from the ongoing situation. What I am seeking here is no more or less than to protect the real income of the authority each year. This measure is not designed to make additional money available. We are seeking to ensure that the additional expenses accruing from inputs, salary increases and the like will be catered for. If this amendment is not accepted and, as a result, there is a real reduction in income each year, the net result will be a weakening of the position of the national broadcaster which is already facing a challenging era.

From the point of view of the citizens of the State, as distinct from the consumer or the people who are targeted by advertisers, it is essential to strengthen the base of the national broadcaster in perpetuity by, as this amendment provides, protecting its income level. There is nothing in the amendment which any economic analysis would suggest provides additional funding annually for the authority.

Miss de Valera

The Deputy and I have had these discussions many times in the House. The public service broadcaster plays an important role in society and I agree with his use of the term "citizen" in this context and his or her right to be able to receive a strong public service broadcasting service. It is axiomatic that an organisation charged with delivering the service is adequately funded as well as properly organised. All these issues must be taken into account and I must find a balance.

Every increase must be objectively justified and we must be cognisant of one issue, that we cannot be seen to be simply bailing out RTE, however well intentioned people might be with regard to public service broadcasting. That approach has got other Administrations into trouble under the state aid rules so we must be careful in that respect. That is why the approach I am prepared to take at this stage, that is, that we look carefully at the submission and evaluate it with regard to how the moneys would be spent if such an increase is granted, is the only way forward at present. I acknowledge the logic in the Deputy's argument but at this point it is not the way forward.

Mr. O’Shea

I reject the terminology "bailing out RTE". I will not repeat my arguments. The basis of the amendment is to protect RTE's income each year, not bail it out. That has connotations of somebody throwing in a pile of money, which is not what I am suggesting.

The Minister should also bear in mind something I raised earlier, the independence of the national broadcaster. Under the current arrangement the authority must come, cap in hand, to the Government of the day seeking a licence increase. That is not healthy for a public service broadcaster which must carry out its role, without fear or favour, of informing, educating and entertaining. It is not beyond the bounds of possibility that a particular Minister of the day, who might have come out at the wrong side of a programme or programmes produced by the national broadcaster in an objective manner and in the national interest, would say: "It was not very nice to me so it can whistle for the increase of the licence fee". I am not attributing such an attitude to the Minister, but it is a danger. Ministers and Governments can be vindictive towards the national broadcaster if the Government perceives that it is treating it harshly or unfairly. There are many elements to my proposal. As we move through this era of transparency and accountability, the independence of the national broadcaster is important in terms of it carrying out its remit.

Mr. O’Shea

In relation to amendment No. 49, I accept the Minister's assurance that the committees of the Oireachtas are included in the definition. However, regarding amendment No. 50, it is an over-reaction to state that the inclusion of local authorities within the remit of the national broadcaster is too prescriptive. That elevates my point to a level that does not apply. Effectively, it has nothing to do with editorial policy.

The purpose is to lay down in statute that the affairs of local authorities can and should be reported. In the context of editorial policy, decisions will be made on what is appropriate or newsworthy and what constitutes either information or education. In addition, occasionally, local authorities can be entertaining. I do not agree that the amendment impinges on the editorial freedom of the national broadcaster or the authority. That seems to be making a mountain out of a molehill.

Miss de Valera

There is nothing to preclude the coverage of such meetings of local authorities. I share the Deputy's view that they can be interesting and entertaining. I am sure their TAM ratings could be higher than our own. If this amendment was inserted, it might be prescriptive. We are talking about 114 local authorities, 29 county councils, five city councils, 49 urban district councils, five borough corporations and 26 town commissions. I am sure that important and relevant business is done in each of those bodies. However, if we accept amendment No. 50, a situation could arise where there would have to be coverage of the local authorities which would refer to each of them. There is nothing to preclude such coverage if something of particular importance requires recognition. I do not agree with the amendment from a practical point of view.

Chairman

Is the Deputy pressing the amendment?

Mr. O’Shea

The Minister said this type of coverage is not precluded and that meets my concern. However, I do not see how it could be prescriptive to insert an amendment about the work of local authorities which could be of national interest. The importance of debates in local authorities ebbs and flows. However, certain issues, such as the disposal of refuse, are common to many local authorities. Debates should be more informed, and highlighting the valuable contributions made at local authorities could contribute to that. If that type of coverage is not precluded, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 50 not moved.

Mr. O’Shea

I move amendment No. 51:

In page 25, subsection (2)(c), line 16, after "expression" to insert "and encourage and promote innovation and experimentation in broadcasting".

Subsection (2) states:

Without prejudice to the generality of subsection (1), the Authority shall ensure that the programme schedules of the broadcasting service referred to in that subsection—

We had a debate on inserting a definition of "contemporary cultural expression" and the Minister and I agreed to some extent on what it meant but she was not disposed to accept an amendment in this regard. This amendment seeks to provide a modest extension of the definition of public service broadcasting. The phrase, "encourage and promote innovation and experimentation in broadcasting", may sound like a cliché, but it should be included. The language should be warm and welcoming for those involved in television production in RTE or for those commissioned from outside that organisation. The legislation should clearly state that innovation and experimentation are important. I know it could be argued it is superfluous and does not add to the Bill.

I am concerned that paragraph (c) is too bland. I want to tighten up the concept of contemporary cultural expression. The word "contemporary" can have many connotations. I want to keep the emphasis on the citizen. Public service broadcasting should always focus on the citizen. We hear much nowadays about the fact that the consumer is always right. While I have no difficulty with that concept in principle, it is propounded at the expense of the concept of citizenship. This paragraph should focus on the positive aspects of our culture and on our citizenship. Public service broadcasting is about the development of the citizen and the community in terms of education, information and entertainment. These words are often used but focus is rarely placed on them.

I ask the Minister to consider this concept for Report Stage. We must focus on the concept of the citizen at all levels of the political system. People, particularly young people, are withdrawing from the democratic process by not exercising their votes. Those of us who are elected and have responsibilities in terms of the democratic process should seek in every way possible to include and engage those who take no notice of us at present.

Miss de Valera

Amendment No. 51 seeks to insert into the remit of RTE a provision of the Bill which has been included in the remit of TG4. However, while they are both public service broadcasters, it was not envisaged that TG4 would be a clone of RTE. Accordingly, the remit of RTE, as set out in section 24, and the remit of TG4, as set out in sections 39 and 40, apply similar but different provisions. One of the areas I particularly wanted to include in the remit of TG4 is the encouragement and promotion of innovation and experimentation in broadcasting. TG4 has already demonstrated a strong capacity to experiment and to be innovative in programming content. The inclusion of a specific reference to these qualities in its remit is designed to encourage their further development.

I concur with many of the points made by Deputy O'Shea, particularly the last one. What I was trying to do was acknowledge the work done by TG4 and its innovative approach. We need that as part of our broadcasting service. I will take on board the issues raised by the Deputy and I will come back to him on Report Stage to see how best to strengthen this provision. I have the same view as the Deputy, namely, that we want to be able to enshrine in legislation the type of improvements in broadcasting which will be necessary, particularly with other challenges coming on board.

Mr. O’Shea

On the basis of the Minister's last contribution, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. O’Shea

I move amendment No. 52:

In page 25, lines 17 to 26, to delete subsection (3).

This relates to the power of the Minister to amend the definition of public service broadcasting. This is a dangerous power and any components of it should be fully set out in the Bill. The subsection I am seeking to delete states:

Subject to subsections (5) to (7), the Minister may, for the purpose of ensuring that the character, as a public service, of the broadcasting service referred to in subsection (1) is maintained, by order modify subsection (2)—

(a) by adding thereto provisions specifying categories of programmes that shall be included in the programme schedules referred to in that subsection, and

(b) by making such other alterations to subsection (2) as are necessary or expedient in consequence of the addition of such provisions.

The idea of the Minister adding to the definition of public service broadcasting without reference to the House — I am not referring to the present incumbent but speaking in general terms — is not a healthy inclusion. I am seeking to delete those powers.

Miss de Valera

Deputy O'Shea proposes the deletion of subsection (3) of section 24. Section 24 is designed to clarify the statutory remit of RTE as the national public service broadcaster. The whole thrust of this section is to ensure that the nature of the service provided by RTE is a comprehensive, universally accessible, free to air broadcasting service that is provided as a public service.

With today's rapidly changing broadcasting environment, it would be complacent to believe that today's public service remit will never have to be reconsidered. Indeed, in today's technological and commercial environment, it can be expected that our concepts of what constitutes public service will constantly and inevitably be challenged.

I have taken the opportunity in subsection (3) and the following subsection of section 24 to set out a formal procedure whereby, at the appropriate time, there can be a wide-ranging and open debate, particularly on the programming mandate for public service broadcasting. If, after such a debate, the conclusion is drawn that there is a need for change, subsection (3) provides the power to achieve such change by positive statutory order. Subsection (6) clearly provides that this power can only be used after extensive consultation with interested parties and the public. Resolutions in both Houses of the Oireachtas will be necessary before any such order could come into effect.

Mr. O’Shea

I accept this will not be financed by the licence fee. My concern is broader, namely, the cost of these services could be at a level which would not be within the comfortable financial reach of citizens. There is always a tendency over time for better programming, particularly that which is bought in, to move towards subscription and pay-per-view channels rather than being broadcast on free to air services.

Miss de Valera

Section 48 stipulates that RTE cannot use the licence fee for pay per view or subscription programming. These pay per view or subscription channels will be known as secondary broadcasting services under section 48, which puts things in context.

Section 48(2) provides in relation to any secondary broadcasting service that RTE and TG4 must keep separate accounts and cannot use moneys they receive from advertising or sponsorship on their free to air services to defray either expenses incurred on a secondary broadcasting service that is not free to air or expenses in relation to taking steps to enter into arrangements with the holder of a digital content contract for the provision of programme material for a secondary broadcasting service. I accept and share the Deputy's concerns, but this section sets out and differentiates between subscription and free to air channels.

Mr. O’Shea

I accept and have no problem with what the Minister has outlined in regard to the licence fee and broadcasting income in terms of free to air channels. The follow on is that pay per view or subscription channels will have to be self-financing and viable in a stand alone context. That is where the difficulty arises. Obviously the costs involved must be set at a level which allows it to be self-financing or profitable for the national broadcaster to proceed. In terms of what could be good quality programming from which the population in general could benefit, is it correct that, on financial grounds, in the context of pay per view and subscription channels operated by the national broadcaster, people who could not pay for the service will not receive it? In that context, young people could derive educational benefit from some of the programmes that could be provided on such channels.

I am concerned about this matter because the population, particularly children and older people, are much more dependent on television at certain stages of their lives. However, I accept that the Department of Social, Community and Family Affairs provides free television licences to people over a certain age. Would it be possible to put a mechanism in place which would ensure that there is no elitism in terms of people's ability to access some of the best programming which may be available?

Miss de Valera

Therefore, this section relates to services for which there is a charge.

Miss de Valera

No, it deals with free to air services.

Question put and agreed.

SECTION 28.

Question proposed: "That section 28 stand part of the Bill."

Miss de Valera

Again, there are no amendments to this section which refers to special accounts under section 25(1) of the Broadcasting Authority Act, 1960, and amendment to section 6 of the Broadcasting Authority (Amendment) Act, 1976. This section provides that the power of the Minister to direct RTE to keep special accounts under section 25(1) of the Broadcasting Authority Act, 1960, shall include the power to direct RTE to keep a special account showing the manner in which television licence fee revenue has been used in respect of its public service television and radio broadcasting services.

The section also provides for an amendment to section 6 of the Broadcasting Authority (Amendment) Act, 1976, under which RTE is required to record every broadcast and to make such recordings available to the Broadcasting Complaints Commission in the event of a complaint. The amendment will require RTE to record visual as well as audio material.

Question put and agreed to.

NEW SECTIONS.

Chairman

Amendments Nos. 54, Nos. 1 to 5, inclusive, to amendment No. 54, 56 and 56b are related and may be taken together by agreement. Is that agreed? Agreed.

Miss de Valera

I move amendment No. 54:

In page 27, before section 29, to insert the following new section:

"29.—With respect to the financial year 2001 and subsequent financial years, section 4 of the Broadcasting Authority (Amendment) Act, 1993, shall have effect as if—

(a) in subsection (7)(a), 'vary the sum referred to in the definition of "the appropriate amount" ' were substituted for 'vary an amount or percentage referred to in column (2) of the Table to this section or the amount referred to in paragraph (i) of the definition of "the appropriate amount" ',

(b) in subsection (8)—

(i) the following definition were substituted for the definition of 'the appropriate amount' in paragraph (a):

' "the appropriate amount" means the sum of £20,000,000 as increased by an amount equal to the appropriate percentage of the said sum;',

(ii) the definition of 'television programme expenditure' in paragraph (a) were deleted, and

(iii) the following paragraph were substituted for paragraph (b):

'(b) In this subsection "the appropriate percentage" means the difference between the consumer price index number at mid-August, 2000, and the said number at the mid-August immediately preceding the financial year concerned expressed as a percentage of the first-mentioned number.',

and

'Table

Financial year (1)	Amount of monies to be paid by the Authority into the account (2)
2001 Each subsequent financial year	£20,000,000 The appropriate amount.

' ".

The original section 29 was designed to amend section 4 of the Broadcasting Authority Act, 1993, which deals with the annual amount RTE must make available for independent television productions. It provided that the amount to be made available in 1999 was to be £16 million and that this would be adjusted in line with changes in the consumer price index — CPI — for subsequent years. Following publication of the Bill and on Second Stage I indicated that it was my intention to bring forward an amendment on Committee Stage which would link the annual increase in this amount to the increase in RTE's spend on programme production. However, it is obvious that, because of the passage of time, we need to update the original provision in the Bill. Accordingly, I propose in the new section 29 to increase the figure from £16 million to £20 million. It is my intention that increases in line with the CPI for subsequent years should be maintained. I am mindful of the need to achieve a balance between the needs of RTE on the one hand and those of independent producers on the other. I am also mindful that the future of independent producers is to a large degree linked to the financial well-being of RTE. It is for this reason that I propose to maintain the provision that the annual amount should increase in line with inflation.

The broadcasting environment is unpredictable generally and the more certainty there is with regard to the amount to be made available each year the better. Section 4 of the 1993 Act already provides power to revise the amount following an examination of the impact of the provision. A review of the base amount can be initiated using this power should it be considered appropriate.

Deputy Clune's amendment No. 3 to amendment No. 54 proposes that the figure should be £20 million adjusted annually for inflation or 25% of the programme expenditure in the preceding year. I assume she means whichever is the greater figure should apply. While I can see why she proposes the amendment, it does not meet my desire to have virtual certainty as to the effect of the provision. Apart from avoiding disputes between RTE and the sector it is crucial that the effect on RTE's finances can be gauged precisely.

In this regard I do not quite understand the proposal in the other amendments to my amendment tabled by Deputies O'Shea and Clune. They are designed to delete the review mechanism provided in section 4 of the 1993 legislation. While I do not fully understand the purpose of this proposal, I cannot see why this important measure should be removed under any circumstances.

With regard to amendments Nos. 56 and 56b, if the provisions of my amendment are accepted there would be no need for the auditor's certificate proposed. The annual amount would be £20 million as provided, increased each year by the rise in the CPI. Accordingly, I oppose the amendments.

Ms Clune

I thank the Minister. My amendments result from discussions with independent producers. None of us doubts the valuable role they play and will play, particularly in the context of the vast number of additional channels that will be available. There will be scope for independent producers to expand and provide more material and there will be a strong market. We discussed the valuable role independent producers will play during the debate on the Irish Film Board (Amendment) Bill, 2000, over recent weeks.

They are doing well currently because of the exchange rate difference between sterling and the punt. It is profitable and attractive for people to come to Ireland. I should have stated "whichever is the greater" in the amendment, which maintains the status quo. Film makers are anxious that a cap should not be placed on funding. As expenditure in RTE increases, it makes sense that the money available to independent producers should increase.

In the original legislation the Minister had provided for 20% or £16 million, whichever was the greater. Her position has changed. It is sensible to maintain the status quo. If television expenditure increases the benefit should be passed on to the independent producer who would claim to be much leaner, more suitable and able to produce quality programming at a price which is not excessive.

My other amendment which proposes the deletion of a paragraph would make it absolutely clear that increases in funding are available to independent producers and regard will not have to be paid to the financial liabilities or the employment and recruitment of staff of the authority. None of these issues should come in the way of payment to independent producers. This has been an obstacle in previous years. While there is a commitment in legislation to provide them with funding, it has not been forthcoming to the extent they would like, and they feel that if this provision was removed they would have clearer access to the funding that should be available to them.

The thrust of amendment No. 55a is that independent producers would like to have more control over the marketing of what they produce so that they are not precluded from having a say in the marketing domestically and abroad. They feel that they have been restricted in this regard. They have not had a say in regard to distribution, yet they have a vested interest. I hope that clarifies my amendments for the Minister.

Chairman

Deputy Clune, amendment No. 55 in the name of Deputy O'Shea proposes a new section. We are dealing with the Minister's amendment No. 54, and amendments to that, which also proposes a new section.

Mr. O’Shea

I move amendment No. 1 to amendment No. 54:

1. Before paragraph (a), to insert the following:

"(a) in subsection (7)(a), by the deletion of the following:

'having had regard to each of the following matters, namely—

(i) the current and prospective financial liabilities of the Authority,

(ii) the effect (if any) for the time being of the operation of the provisions of the section on—

(I) the employment of recruitment of staff by the Authority,

(II) the performance by the Authority of its functions generally under the Broadcasting Authority Acts, 1960 to 1993,

(III) the employment of persons in the making of independent television programmes,'.".

I received the same representations as Deputy Clune and I do not propose to go over the arguments again, which were adequately made by the Deputy. The Minister has a problem with my first amendment which essentially seeks a narrower definition of "television programme expenditure" and the items outlined in the amendment should be excluded. Independent producers want a choice between £20 million per year adjusted for inflation and 25% of funding. It is ironic that the Minister proposes to index link the £20 million for film makers but she is not disposed to index linking the licence fee for the authority. There is a basic conflict there.

Irish film makers are seeking 25% of a narrow definition of television programme expenditure from the authority or £20 million index linked, whichever is the greater. That income should be available to them year on year. There are a number of factors involved. Without the indexation of the licence fee the money that accrues to the authority is not as substantial as it could be for programme making. It is just as important that there is sufficient money available to programme makers under the authority and independent producers because the future of television, certainly in the context of public service broadcasting, is bound up in the area of indigenous production. Irish film makers should be given the choice of 25% of the narrower definition of television programme expenditure or the £20 million index-linked, whichever is the greater, and this should be the income for Irish film makers. This area is underfinanced and that is tragic because a great deal of talent and ability exists which should be properly fostered and resourced to fulfil the public broadcasting mandate to the optimum extent.

Without wishing to go back over points already made by Deputy Clune, in a nutshell that is the motivation in tabling these amendments.

Miss de Valera

I am sure we all accept that independent producers continue to do very good, high quality work and we understand the important role they play. I met them on a number of occasions long before and since the publication of the Bill. It was because there was a dispute about the interpretation of current legislation that I decided the best approach was to address the specific issue in the Bill. I am sure it will be helpful to all concerned.

My proposals concerning the £20 million based on the consumer price index should certainly not be seen as a cap. That is the wrong use of the word because that is not what it is. It is a floor, and to use any other definition is inaccurate. We must all recognise the importance of RTE and its role, and it has been recognised in the debate until now. People have requested further funding for RTE to ensure it is able to take on the challenges facing public service broadcasting. We must also acknowledge that independent producers are, to a large degree, linked to the financial well-being of RTE.

I have had to examine the concerns facing RTE and independent producers to determine a fair balance. After a great degree of consideration, discussion, consultation and meetings, this is the proposal I have put forward. It is fair and will eliminate the wrangling we have seen over interpretation. Matters will be clear. I am also interested in ensuring a review mechanism exists so that these matters can be reviewed. If it is necessary to do that, a mechanism will exist which can deal with that immediately. It may not have been the intention but the amendment tabled could be interpreted as deleting the review mechanism and that would be a retrograde step.

Deputy Clune suggested in her proposal that the amount should be made available to independent producers, regardless of the impact on RTE. That would fly in the face of what has been said in the debate by us all, including Deputy Clune, about the important role RTE plays within the broadcasting sector.

It is a question of balance, of having a floor, of knowing the position and being able to act on it, and of having the opportunity of a review mechanism. Taking everything into account, this is the best, most balanced and fairest way forward.

Ms Clune

My amendment does not suggest the money should be given to independent producers regardless of what happens to RTE. It is to encourage the independent sector and give it guaranteed funding. I accept the Minister has discretion over some of the £20 million. Nonetheless, if the intention is to enact legislation which will be in place for a long time, we do not know what will happen in future. RTE's television expenditure will obviously increase while independent producers are shackled or stuck with a fixed sum.

Miss de Valera

It is not a question of being stuck or shackled. That is why the review mechanism exists, to review that and have changes made, if necessary. That is why the review mechanism is important and why I would maintain it.

Ms Clune

I accept the Minister's point about the review mechanism. It is welcome. Producers have been used to £60 million or 20% of television expenditure. They strongly believe that, if there is an increase in television expenditure by RTE and they have a fixed proportion of that expenditure, they will be in a position to obtain the level of production they would like to have. That is the reason I tabled the amendment and it is the reasoning behind Deputy O'Shea's amendment, of which I now have a better understanding, which seeks to delete certain references in subsection 7(a). The purpose is that, when increases in television expenditure to the independent production sector are considered, it would be clear that the prospective financial liabilities of the authority, such as in recruitment and staffing, would not be taken into account. I recognise what the Minister said about the review mechanism. That is an important consideration. I withdraw my amendments with a view to tabling them again on Report Stage.

Mr. O’Shea

I withdraw my amendments in the context of considering what the Minister said and retabling them on Report Stage.

Amendment No. 1 to amendment No. 54, by leave, withdrawn.

Amendments Nos. 2 to 5, inclusive, to amendment No. 54 not moved.

Amendment No. 54 agreed to.

Section 29 deleted.

Mr. O’Shea

I move amendment No. 55:

In page 27, before section 29, to insert the following new section:

"29.—Section 5 of the Broadcasting Authority (Amendment) Act, 1993, is hereby amended—

(a) in subsection (1)(a), by the insertion of the following subparagraph after subparagraph (iii)—

'(iv) the persons who undertake the distribution and exploitation of the said programme other than its broadcast by the broadcaster itself and any simultaneous re-transmission thereof,',

(b) by the insertion after subsection (3) of the following subsection:

'(4) The Broadcasting Commission of Ireland shall apply the above definition of "independent television programme" to the persons referred to in section 18(4)(b) of the Radio and Television Act, 1988, and any reference therein to the Authority shall be deemed to be a reference to television programme service contractors with whom the Commission has entered into a television programme service contract.'.".

This issue has been already raised in the context of the debate on the previous matter. Independent film makers should have a more effective say in what happens their programming. The points have already been made by Deputy Clune and I, and I do not intend going back over them — I think the Minister got the message.

Miss de Valera

Amendments Nos. 55 and 56 seem to have the same objective. They seek to amend the definition of independent producer provided in section 5 of the 1993 Act. The intention of the definition is to provide for a minimum requirement establishing the independence of producers under the Act. It is not designed to regulate entirely the relationship between producer and broadcaster or to confine qualifying producers to those who can make their own distribution arrangements. Accordingly, I am opposing this element of amendments Nos. 55 and 56a.

The second part of the amendment would require the Broadcasting Commission of Ireland to apply the definition of independent producers, contained in the 1993 legislation, when dealing with TV3. However, I find it difficult to see the merit in applying the definition of an independent producer contained in the 1993 Act to TV3. The 1993 legislation imposes obligations only on RTE. TV3's obligations with regard to independent productions arise only in the context of obligations under the Television Without Frontiers Directive. In theory TV3 could meet these obligations without commissioning any new material. Accordingly, I am far from certain that there is any point to this suggestion, but if the Deputies feel strongly I am prepared to consider the matter further and return to it on Report Stage.

Mr. O’Shea

In other words, the Minister is saying these do not measure up to requirements under EU legislation or that there could be a difficulty in this regard.

Miss de Valera

No. It is difficult to see the point being made here. I do not think it is necessary, but perhaps I am missing something and if so we can return to it on Report Stage.

Ms Clune

The point is that independent film producers want to have more control over how their material is distributed. Currently they do not feel they have that control. If they had more control in terms of national and international markets they would get a better return for their product. They feel if they had control they would do a better job as they would be more enthusiastic. Perhaps we will return to it on Report Stage.

Mr. O’Shea

It is a legitimate aspiration for producers to maximise as far as possible their return from their work. I take on board the Minister's commitment to examine this area for Report Stage and am happy with that undertaking.

Miss de Valera

I do not want any confusion to arise on Report Stage. There are two elements. The first part refers to what Deputy Clune said. That is something to which I cannot agree because the provision does not exist to regulate fully the relationship between the producer and the broadcaster or to confine qualifying producers to those who can make their own distribution arrangements. Because of that, I cannot agree with the Deputy's proposals. However, the second part of the amendment, which would require the broadcasting commission of Ireland to apply the definition of independent producers contained in the 1993 legislation when dealing with TV3, is something I am prepared to return to and discuss on Report Stage.

Perhaps Deputy O'Shea would like to return to us with some suggestions on that point before Report Stage so we can tease it out further.

Amendment, by leave, withdrawn.

Amendment No. 56 not moved.

Amendments Nos. 56a and 56b not moved.

SECTION 30.

SECTION 31.

I move amendment No. 57:

In page 29, subsection (1), lines 17 to 22, to delete paragraphs (a) and (b) and substitute the following:

"(a) by—

(i) the Authority,

(ii) Teilifís na Gaeilge,

(iii) the television programme service contractor,

(iv) the holder of a digital content contract or satellite content contract and the programme material so supplied by him or her is the compilation of programme material authorised by that contract to be supplied by him or her for transmission otherwise as a broadcasting service, or

(v) an excepted person,

(b) pursuant to—

(i) a local content contract,

(ii) a community content contract, or

(iii) a cable-MMD content contract.".

Section 32 deals with the regulation of broadcasting services and cable and MMD services. It is intended that cable and MMD system operators would distribute only properly licensed or regulated broadcasting services. However, the original section 32(1) (a) and (b) did not make specific reference to service provided by RTE, TG4 and TV3 or services provided pursuant to a digital content contract or satellite content contract.

Amendment No. 57 is designed to make it clear that cable and MMD system operators may distribute broadcasting services supplied by RTE, TG4, TV3, the holder of a digital content contract or a satellite content contract, an excepted person and pursuant to a local content contract, community content contract or a cable MMD content contract. The term "excepted person" means a broadcaster who is under the jurisdiction of another EU member state, as determined by the provisions of the Television Without Frontiers Directive. Members will be aware that under that directive, we cannot regulate trans-frontier television broadcasts.

Amendments Nos. 58 and 59 further clarify that under subsection (2), persons other than RTE, TG4, TV3 or an excepted person cannot supply programme material for distribution by cable and MMD systems unless the material is supplied under and in accordance with a local content contract, community content contract, cable-MMD content contract or is authorised by a digital content contract or a satellite content contract.

As a consequence of the previous amendments to subsections (1) and (2), amendment No. 60 proposes to amend subsection (3) by obliging the cable and MMDS operator to notify the Broadcasting Commission of Ireland of all broadcasting services being transmitted by that operator.

Ms Clune

I have tabled some amendments to this section which relate to services carried on cable or other platforms. We spoke last week about the expansion of channels but we have not received any information on the channels' content. I do not have any problem with amendment No. 57.

Amendment agreed to.

Mr. O’Shea

We have received a good deal of representation on this section recently. UTV is seeking a legislative underpinning of the de facto position regarding the transmission of broadcasting services on cable and MMDS, subject to fair commercial terms being applied on a non-discriminatory basis to all indigenous broadcasters in both parts of the island of Ireland. It was stated that the legislation should be approached in the context of there being six rather than four indigenous channels. The other point raised with me is that UTV is seeking that all indigenous broadcasters, North and South, will be afforded the facility to include local advertising inserts. Will the Minister respond to these two specific points?

Chairman

What amendment is the Deputy addressing?

Mr. O’Shea

I am addressing the section. We will first deal with the amendments and then discuss the section.

Miss de Valera

I move amendment No. 58:

In page 29, subsection (2), line 23, to delete "an excepted person" and substitute "a person referred to in subparagraph (i), (ii), (iii) or (v) of subsection (1)(a)".

Amendment agreed to.

Miss de Valera

I move amendment No. 59:

In page 29, subsection (2), lines 27 to 29, to delete all words from and including "save" in line 27, down to and including line 29 and substitute the following:

"unless—

(a) the material is supplied under and in accordance with a local content contract, a community content contract or a cable-MMD content contract, or

(b) in case the person is the holder of a digital content contract or satellite content contract, the material is the compilation of programme material authorised by that contract to be supplied by him or her for transmission otherwise as a broadcasting service.".

Amendment agreed to.

Miss de Valera

I move amendment No. 60:

In page 29, subsection (3), lines 31 and 32, to delete "which consists of programme material supplied by an excepted person".

Amendment agreed to.

Chairman

Amendments Nos. 61 to 64, inclusive, are cognate and will be discussed together.

Miss de Valera

I move amendment No. 61:

In page 30, subsection (5)(a), line 16, after "is" to insert ", in whole or in part,".

These are technical amendments designed to take account of the fact that a cable or MMDS licensee, under the 1999 ODTR regulations, is authorised to provide both analogue and digital services. In the transition phase of implementing digital services, cable and MMDS, the various areas within the licensee system will move to digital on a phased basis. Therefore, at any given time, parts of a system will deliver services in analogue and parts of a cable will deliver in digital.

Is that going to continue? This is another issue which arose in the context of the Director of Communications Regulation's visit to the committee. I understand the ODTR position to be that there should be an agreement between TV3 and the Broadcasting Commission about a programme for removing the must carry on MMDS as TV3 fulfils its mandate for universal coverage, that an agreed timeframe should be put in place between the contractor, that is TV3, and the commission that the must carry provision would fall on an agreed date. This is an issue which is of concern to TG4 which would like to have the same must carry space on MMDS as TV3. Some of TG4's concerns relate to being able to provide universal cover in perpetuity and, as part of this Bill, to provide universal coverage throughout the island of Ireland.

Should TV3 continue to have must carry status with regard to MMDS in perpetuity? Equally, is there a case for extending that provision to TG4 in the context of fulfilling its mandate of universal coverage within the State and within the island of Ireland?

Acting Chairman (Mr. P. Carey)

I am afraid we are moving away from discussing the amendment. Do you wish to respond, Minister?

Miss de Valera

I understand there is no MMDS in the North. However, we are trying to continue the status quo so as to provide the necessary continuity.

Ms Clune

TG4 has raised its concern that it does not have must carry status on MMDS. When we spoke last week about trying to give as near universal coverage as possible we recognised that this will not be possible in all areas. Nevertheless, MMDS could be valuable in bridging the gap in areas where there is only 60% coverage with digital TV. This could be particularly valuable for TG4 in peripheral areas.

Miss de Valera

We had this discussion on the first day and we are now going over old ground. TG4 has must carry status on DTT and that will have a far greater penetration than MMDS.

Amendment, by leave, withdrawn.

Ms Clune

I move amendment No. 61b:

In page 30, subsection (5)(a), line 19, after "contractor" to insert "as licensed and agreed by the Broadcasting Commission subject to specific obligations and following public consultation".

This amendment returns to the concerns of cable carriers that they may be obliged to carry additional channels the contents of which is not known. The amendment proposes that these would be licensed and agreed by the Broadcasting Commission which would act as an overseer. The proposal is seen as a compromise.

Miss de Valera

In page 31, subsection (9), line 1, to delete "The" and substitute "Subject to subsection (10), the Commission".

Subsection (9) provides that the Broadcasting Commission of Ireland may require a cable or MMDS operator to transmit the whole or part of the programme material provided on one or more community content contracts where the holder of these contracts are from the local community. Amendments Nos. 67 and 68 are designed to exclude analogue MMD systems from any such obligation. Analogue MMDS has very limited capacity and imposing a "must carry" obligation for community channels may undermine the financial viability of these services.

Amendment agreed to.

Miss de Valera

I move amendment No. 68:

In page 31, between lines 8 and 9, to insert the following subsection:

"(10) Subsection (9) shall not apply if the system used by the holder of the licence concerned is an analogue MMD system.".

Amendment agreed to.

No. It depends on whether it is in or out of the State.

As I understand it, the Minister has said she has no conflict, in principle, with what I seek to achieve but that there are technical limitations and those aside, the concept is not only accepted by her but is provided for in the legislation.

Miss de Valera

Yes.

Amendment, by leave, withdrawn.

Amendment No. 68b not moved.

Chairman

Amendments Nos. 68c, 68g, 68k and 68l are related.

Mr. O’Shea

I move amendment No. 68c:

In page 33, subsection (2), between lines 12 and 13, to insert the following:

"(b) that mechanisms are put in place specifically to permit the active participation in the compilation and supply of programme material by all members of that community, and voluntary and community organisations active in that community,".

This amendment seeks mechanisms specifically to permit the act of participation in the compilation and supply of programme material by all members of that community, and voluntary and community organisations active in that community. The Minister has indicated that she has some sympathy with this approach, so I await her response.

Miss de Valera

I have some problems with amendments Nos. 68c and 68g. These amendments would impose very onerous obligations on the commission in regard to the level of community participation required before a contract can be issued. It would be ideal if the active participation of all members of a community was secured in advance of a contract being issued, but it must also be accepted that community broadcasting is an organic activity which will evolve at a different pace in each community depending on the expertise and experience of those seeking the contract on behalf of the community. What is possible at the launch of a station may well be surpassed by developments after a channel has been launched. I would like to keep as much flexibility as possible in the process and I do not wish to see restrictive regulation hampering the development of this sector.

The deletion of subsections (4) and (5), as suggested in amendment No. 68g, would undermine the consultative process which the commission would be required to undertake before a community content contract is granted. This process ensures that the community itself is given a chance to influence the nature of the community services it wishes to see broadcast. The replacement of subsections (4) and (5) with the text proposed in amendment No. 68g would not improve the prospects of developing a strong community television sector.

If we take amendment No. 68c and 68g as being prerequisites to the granting of a community content contract, a small number of dissenting voices could prevent the Broadcasting Commission of Ireland from granting a community content contract. While it would be desirable if the Broadcasting Commission of Ireland achieved the level of co-operation envisaged under Deputy O'Shea's amendment, it is important to allow the commission to act in the interests of the community rather than in the interests of a small number of person or organisations who may not wish to accept any ideas on community broadcasts other than their own. Accordingly, I oppose amendments Nos. 68c and 68g.

However, I appreciate the importance of community participation in the successful establishment of community television. Accordingly, I hope to be able to take on board Deputy O'Shea's amendments Nos. 68k and 68l which stress the importance of participation and the interest of the community in the context of a survey to be undertaken by the commission after the launch of a community channel. Such a survey will allow the commission and the holders of a community content contract to take on board the outcome of the survey. This maintains the organic nature of the process while strengthening its participative nature. I am grateful to the Deputy for his contribution and I will refer again to these amendments on Report Stage.

Mr. O’Shea

I thank the Minister for her positive response to amendments Nos. 68k and 68l. I have taken on board the points she made in relation to the model in amendments Nos. 68c and 68g as possibly being a bit cumbersome and restrictive. I will look at that between now and Report Stage. Progress has been made and I will withdraw the amendments.

Amendment, by leave, withdrawn.

Mr. O’Shea

I move Amendment No. 68d:

In page 33, subsection (2)(b), line 14, before "objective" to insert "sole".

Subject to subsections (3) and (4), the commission may enter into a contract with two or more members of a local community whereby those members may supply a compilation of programme material for the purpose referred to in subsection (1) if it is satisfied. Those members are representative of the community concerned. The supply of programme material in pursuance of the contract will be effected with the sole objective of specifically addressing the interests of the community concerned achieving a monetary reward of no greater amount than is reasonably necessary to defray the expenses that will be incurred in effecting the supply. I am seeking to tighten up the subsection so that, effectively, the supply of programme material in pursuance of the contract will be effected with the "sole objective", as distinct from the objective.

Miss de Valera

Amendment No. 68d proposes to insert the word "sole" into the text of subsection (2). I believe this strengthens the subsection and, accordingly, I will consider it further and return to it on Report Stage.

What has been proposed in amendment No. 68d strengthens the Bill and I will come back to that on Report Stage but perhaps I might refer very quickly to amendments Nos. 68e and 68f so there is no misunderstanding.

I am satisfied that the provisions contained in subsection (2), as drafted, are sufficient to ensure the community content contracts will only be granted to those who are representative of the community and that the operation of the channel will be on a "no profit" basis and its content will address the interests of that community. Any revenues generated by a community television station must be used to defray the costs of providing and improving the service it broadcasts.

I move amendment No. 68i:

In page 33, between lines 45 and 46, to insert the following subsection:

"(6) The Commission, on its own initiative or at the request of a community body, may carry out an assessment of community broadcasting needs which shall include the extent to which production facilities, training and resources are available to the community to enable such community to best serve its interests.".

This amendment provides that the commission may carry out an assessment on its own initiative. Obviously, we would want community channels to run wherever possible, whether radio or television. An inventory of the capacity and deficits of an area would be well worth assessing so that deficits could be addressed and a much higher level of involvement and engagement could be developed.

Miss de Valera

I see considerable merit in Deputy O'Shea's amendment. It is appropriate that the commission should give some consideration to needs of the community in relation to access to production facilities, training and resources. Apart from ensuring that the commission can make such an assessment, the inclusion of an express provision such as this will serve to underline the importance of the community broadcasting sector in the context of the functions of the Broadcasting Commission of Ireland. While the wording of the amendment will have to be cleared with the Office of the Parliamentary Counsel, I will refer to this again on Report Stage. I accept the principle of the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 68j, 68k and 68l not moved.

Miss de Valera

I move amendment No. 69:

In page 34, subsection (7), lines 18 to 23, to delete all words from and including "be under" in line 18, down to and including line 23 and substitute the following:

"be—

(a) under any duty to ensure that the material complies with the terms and conditions of that contract or the enactments that apply in respect of the supply of the material by virtue of section 14,

(b) regarded, for the purposes of the law of defamation, malicious falsehood or any other form of civil liability as having, by virtue of such transmission, published the material, or

(c) liable in damages, by virtue of such transmission, for any infringement of copyright, other intellectual property rights or other legal rights of any person.".

Section 34(7) offers some indemnity to cable and MMDS operators as regards the content of the community channels which they are obliged to transmit. The amended subsection (7) extends this indemnity to include infringements of copyrights, other intellectual property rights or other legal rights of any persons. As the cable and MMDS operators will have no choice but to carry these channels, it is reasonable to offer some protection with regard to the content of these services.

Amendment agreed to.

Amendments Nos. 69a and 69b not moved.

Section 34, as amended, agreed to.

SECTION 35.

Miss de Valera

I move amendment No. 70:

In page 34, lines 42 to 47, to delete subsection (4) and substitute the following:

"(4) Subject to subsection (5) but without prejudice to subsection (6), a cable-MMD content contract shall, where appropriate, include a condition that, as respects the programme material supplied pursuant to it, the provisions of the Council Directive in relation to European works (within the meaning of that Directive) shall be complied with.".

The original section 35(4) provided that a cable-MMD content contract shall include a condition requiring that not less than 50% of the programme material supplied to it constitutes European works that have been made within the period of five years ending before that time. After some consideration, I felt that this provision would prove to be unfair as it would impose more stringent obligations than would apply to national television broadcasters under the Television Without Frontiers directive. Accordingly, I propose, in amendment No. 70, to amend the provision by obliging the Broadcasting Commission of Ireland to include a condition in a cable-MMD content contract obliging the contractor to comply with the provisions of the European directive.

Amendment agreed to.

Section 35, as amended, agreed to.

SECTION 36.

Mr. O’Shea

I move amendment No. 71:

In page 35, line 7, after "37" to insert ", being a day not earlier than the publication by the Minister of a comprehensive policy relating the Irish language across State agencies, the Gaeltacht and the State generally".

I would like a linkage between the setting up of TG4 and a comprehensive policy relating to the Irish language emanating from Government so that TG4 could dovetail into that. Obviously the Minister is not inclined to follow my line on this. I will withdraw the amendment with a view to coming back to it on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: "That section 36 stand part of the Bill."

Chairman

The Minister would like to say something on section 36.

Miss de Valera

In this Part, establishment day means the day appointed by the Minister under section 37. I do not think there is a problem with that — it is literally a definition.

Question put and agreed to.

SECTION 37.

Chairman

Deputy McGinley tabled an amendment to this section which is out of order.

Amendment No. 71a not moved.

Question proposed: "That section 37 stand part of the Bill."

Ms Clune

The amendment related to the establishment day of TG4 and proposed that the establishment day should be not later than two years from the enactment of this Act, that the Minister shall establish an independent interim board for Teilifís na Gaeilge for the transitional period, that the interim board shall oversee and implement the transition to the new status and prepare for the assumption of the powers, duties and responsibilities to be assigned to Teilifís na Gaeilge on the establishment day and that the board will be answerable to the Minister, who will report progress to the Houses of the Oireachtas, at least once each calendar year between the enactment of this Act and the establishment day.

The amendment has been ruled out of order but the period between the enactment of this Act and the establishment of TG4 is not clear and that is what the amendment was trying to address, that is, that there would be a set time and that a board would be established in the interim to oversee the transition to the new status. It was a concern of TG4 and it asked us to raise it here. I would be grateful if the Minister would comment on it.

Miss de Valera

I understand this amendment cannot be moved. However, my priority in this regard is to have TG4 established properly and comprehensively. The precise amount of time it may take to do this is not and cannot be more important than getting the job done properly. There will be many difficult and complex issues to be addressed and it would not be appropriate to establish TG4 as a separate statutory entity until such issues are resolved satisfactorily. Issues, such as the appropriate level of staffing and financing and the ongoing relationship between RTE and TG4 into the future will need to be clarified and pinned down. I am, however, open to considering any mechanism which may help to move on the matter, but I do not see any justification for including such detail in primary legislation.

Ms Clune

Will the Minister come back on this issue on Report Stage?

Chairman

Perhaps the Minister could make a more definite statement on Report Stage.

Miss de Valera

If I understand procedure correctly, the amendment cannot be moved.

Ms Clune

Perhaps you, Chairman, could clarify why the amendment cannot be moved.

Chairman

It is a money matter.

Question put and agreed to.

SECTION 38.

Question proposed: "That section 38 stand part of the Bill."

Miss de Valera

This section provides for the establishment of Teilifís na Gaeilge or TG4, as it is now known, as a body corporate. I will not go into all the details here, but I will be happy to try to answer any specific questions.

Question put and agreed to.

SECTION 39.

Miss de Valera

I move amendment No. 72:

In page 35, subsection (4)(a), line 34, after "programmes" to insert ", primarily in the Irish language,".

Amendment agreed to.

Mr. O’Shea

I move amendment No. 73:

In page 35, subsection (4)(a), line 34, after "programmes" to insert "particularly in the Irish language".

This amendment is almost identical to the Minister's amendment, except she used the word "primarily" whereas I used the word "particularly". I will bow to the word "primarily".

Amendment, by leave, withdrawn.

Miss de Valera

I move amendment No. 74:

In page 35, subsection (4)(a), line 37, after "sporting" to insert ", religious".

Amendment agreed to.

Amendment No. 75 not moved.

Section 39, as amended, agreed to.

SECTION 40.

Amendment No. 76 not moved.

Miss de Valera

I move amendment No. 77:

In page 37, paragraph (b)(ii), line 21, after "culture," to insert "and, in particular, the Gaeltachtaí,".

Miss de Valera

The section relates to the application of certain enactments to TnaG. It provides for the application subject to necessary modifications of certain fundamental existing legislative provisions contained in the Broadcasting Authority Acts, 1960 to 1993, to Teilifís na Gaeilge as they apply to RTE under existing law. By virtue of the application of section 21 of the Broadcasting Authority Act, 1960, TnaG shall have the power to appoint advisory committees or advisers.

Question put and agreed to.

SECTION 45.

Chairman

Amendment No. 78a in the name of Deputy McGinley is ruled out of order because of revenue implications.

Amendment No. 78a not moved.

It is a question of establishing the statutory independence of TG4. Funding goes hand in hand with that and obviously a plan will have to be put in place on foot of some agreement.

Question put and agreed to.

Sections 46 to 50, inclusive, agreed to.

SECTION 51.

Miss de Valera

I move amendment No. 79:

In page 41, subsection (1), line 8, to delete "or (10)" and substitute ", (10) or (11)".

In addition to that provided for in section 51, the amendment makes it an offence to contravene section 32(11). Section 32(11) provides that a cable or MMDS operator can only charge a customer for a "must carry" community channel if the operator has not already imposed a charge for other services, for example, BBC, UTV or BSkyB services. As a consequence of the proposed amendment to section 51, the imposition of a charge contrary to section 32(11) will be an offence.

As a consequence of the proposed amendment to section 51, the imposition of a charge contrary to section 32(11) will be an offence. The intention is that all must-carry services on cable and MMDS are carried as part of the basic tier of services offered to subscribers. The amendment is consistent with the intention already stated in section 51 of making the contravention of section 32(8) an offence. Section 32(8) relates to the charging for the other must-carry channels on cable or MMDS.

Amendment agreed to.

Section 51, as amended, agreed to.

Sections 52 and 53 agreed to.

SECTION 54.

Question proposed: "That section 54 stand part of the Bill."

Miss de Valera

This section is an amendment of section 8 of the Radio and Television Act, 1988. It provides for an increase from 14 to 30 in the number of days in a period of 12 months for which the Broadcasting Commission of Ireland can licence a temporary sound broadcasting service. The current position under section 8 of the Radio and Television Act, 1988, is that the Independent Radio and Television Commission may enter into a contract with a person for a temporary sound broadcasting service for a specified area, subject to a maximum period of 14 days in a 12 month period.

Question put and agreed to.

SECTION 55.

Question proposed: "That section 55 stand part of the Bill."

Mr. O’Shea

I move amendment No. 81:

In page 43, before the First Schedule, to insert the following new section:

"57.—Paragraph 11 of the Schedule to the Act of 1988 is hereby amended—

(a) in subparagraph (3), by the insertion after 'amending' of 'or revoking', and

(b) in subparagraph (6), by the insertion after 'under this paragraph' of 'or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a pension, gratuity or allowance, in accordance with that sanction'.".

Amendment agreed to.

Miss de Valera

I move amendment No. 82:

In page 43, before the First Schedule, to insert the following new section:

"58.—Nothing in section 20(4) of the Act of 1960 or section 10(3) of the Act of 1988 (including either of those sections as applied by this Act) shall be construed as preventing the broadcasting of a notice of the fact—

(a) that a particular religious newspaper, magazine or periodical is available for sale or supply, or

(b) that any event or ceremony associated with any particular religion will take place,

if the contents of the notice do not address the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation.".

Amendment agreed to.

Ms Clune

I move amendment No. 82a:

In page 43, before the First Schedule, to insert the following new section:

I apologise, I was mixing up section 31 and section 30(1), to which amendment No. 83 refers. I see no reason to repeal RTE's power to acquire land by agreement, as set out in section 30(1) of the Broadcasting Authority Act, 1960. Similarly, I see no reason to repeal the station's power to divest itself of land it no longer requires as provided for in section 30(3) of the that Act. In relation to subsection (2), which relates to RTE's power to compulsorily acquire land for the provision of a transmission site, I do not believe it would be prudent to remove this power at this stage.

While under the provisions of the Bill it is envisaged that the transmission company will transmit RTE's analogue and digital broadcasting services, I do not wish to preclude RTE from being able to undertake transmission activities in the future. Accordingly, I do not believe it is appropriate to amend any of the provisions dealing with this area in the context of the Bill. I should point out to the Deputy that RTE has not used the power under subsection (2) at any stage and there is little prospect of its being used in the future. For these reasons, I must oppose the amendment.

Mr. O’Shea

The amendment should refer to "section 31" rather than section 30. What does the Minister's amendment achieve?

Miss de Valera

So the Deputy is seeking the deletion of section 31?

Mr. O’Shea

In page 43, paragraph 2(8)(a), between lines 38 and 39, to insert the following:

"(iii) Irish language and Gaeltacht affairs,".

Miss de Valera

I move amendment No. 87:

In page 47, paragraph 12(3), line 29, after "amending" to insert "or revoking".

Amendment agreed to.

Miss de Valera

I move amendment No. 88:

In page 47, paragraph 12(4), lines 31 and 32, to delete "A scheme submitted to the Minister under this paragraph shall provide that if" and substitute "If".

Amendment agreed to.

Miss de Valera

I move amendment No. 89:

In page 47, paragraph 12(4), line 34, after "scheme" to insert "or schemes".

Amendment agreed to.

Miss de Valera

I move amendment No. 90:

In page 47, paragraph 12(6), line 43, after "paragraph" to insert "or, if the Minister, with the consent of the Minister for Finance, sanctions the granting of such a pension, gratuity or allowance, in accordance with that sanction".

Broadcasting Bill, 1999: Committee Stage (Resumed).

SELECT COMMITTEE on HERITAGE and the IRISH LANGUAGE debate -
Thursday, 30 Nov 2000