Clarification of Certain Objectives of the Broadcasting Authority of Ireland.

I thank all witnesses for returning for the afternoon session which will continue until 4 p.m. at which time the webcast will finish. A number of people all over the country are watching proceedings on the webcast atwww.econsultation.ie.

Our final session seeks to clarify the objectives of the broadcasting authority of Ireland, BAI, regarding electronic programme guides, digital media and community radio to accord with the Disability Act 2005. In the previous sessions, members examined 11 of the 12 issues they selected. We are on a journey of learning which has brought us to the core of the draft ministerial broadcasting legislative proposals. We will now discuss heads 7, 24 and 25. Deputy Durkan will begin the questions.

What level of activity or business of the BAI and its committees will relate to TG4 or Radio na Gaeltachta and what are the criteria laid down in this area? To what degree will the first and second national languages be catered for in this context? We must remember we are also discussing the contracts award committee and compliance committee, and any committees or sub-committees of the main body which might be appointed thereafter.

Do broadcasters' unions and vocational representatives have in mind any specific or particular visions of what would constitute a good appointee to the board? What qualifications should appointees have to reflect the interests of their lobby groups? I do not suggest for one moment the only interests are those represented here. Appointees will also represent the general public, viewers and listeners.

All interested bodies will have ideas on who should be the nominees. What is the ideal way to identify suitable nominees? Should it be done in the usual way as envisaged in the legislation or should it be done in another fashion more reflective of the broad community independent of broadcasters, unions, ministerial appointees or associates and the wider broadcasting community? It is a tall order but if anyone wants further elucidation, I often asked parliamentary questions on such subjects as I believe it is important. If we are to have an independent commission, that commission should be independent in every sense of the word. It can be beneficial, negative, helpful or unhelpful depending on the interests of the parties concerned. It would have a tremendous impact on the efficacy of such a commission.

A common executive of RTE, TG4 and other broadcasting groups—

We are discussing the appointment of the contracts award committee and the compliance committee. We will then move on to another section, namely, the objectives of the authority. I do not want to cross over. We will then move on to the functions of the authority and our last session will be miscellaneous and general. I will start by asking Mr. Conor Maguire of the Broadcasting Commission of Ireland, BCI, his views and answer some of those questions, followed by Mr. Peter Feeney, Mr. David McMunn, TG4 and the unions.

Mr. Conor Maguire

I will take the question on the appointment to the boards first. My experience on the IRTC and the BCI goes back to 1998 during which time various personnel served on the boards. I will give the committee a flavour of it by stating that without exception the way in which members discharge their duties is exceptional. They are extremely careful regardless of the sector of society from which they come. This is not a pious platitude. The level of service put in by people should be recorded. As anybody on a board such as ours knows, controversial decisions are taken from time to time. One can be blamed for pushing an agenda and doing business in inappropriate ways. However, in my experience, individual members discharge their duties in an independent way. It is an educative process to see the work put in by individual members.

It is important a cross-section of society is represented on a board such as the BAI. Certain areas require expertise and knowledge. However, it would be a mistake to draw the individuals to be appointed from particular segments on a representative basis. For the board to be run properly, members must take off their representative caps when they enter the room and deal with each issue on an independent and fair-minded basis.

It is important to ensure a diversity of views and one should include large interest groups, such as employers, unions or people from a particular sector of society described as business. A wide view should be available because that is the only way to maintain a balance, which is essential when dealing with broadcasting matters because much of the decision making is subjective. The people dealing with it have to make up their own minds on the basis of the choice of options open to them. I do not know if that answers the question. It is important to ensure a diversity of views and backgrounds on the board.

We have a reservation, although it is not overwhelming, on the three structures contemplated - contracts, compliance and the board. I question the necessity of a separate contracts committee. That is a throwback to the licensing that was done initially by the IRTC and then by its successor, the BCI, which was largely to deal with competitive radio licences. As people will know, the spectrum is more or less exhausted and the way we approach our business is different from allocating frequencies which are competed for and result in a competitive licensing process. I wonder how necessary it is to have a three-board structure and whether the BAI could take on the contracts work.

Could it relate to the different professions and levels of expertise required by the two?

Mr. Peter Feeney

I echo much of what Mr. Maguire said. I stress the importance of having independent people on those boards not just because of how important it is that they be independent in their judgments, but also because public perception of independence of these bodies is critical. If an independent-minded person comes with the tag of a political party, there may be a perception of favour to that party.

On RTE, it is important to stress that the BCI regulates commercial, not public service, broadcasting. The proposal is that the new BAI will regulate all broadcasters in Ireland so it is important for RTE that there are people on the boards who have an understanding of the needs and interests of public service broadcasting. That can come from a range of sources such as people who have worked in public service broadcasting or who come in and out of public service broadcasting but also from the academic world. I agree with Mr. Maguire and add that we must bear in mind that this new body will regulate, for the first time, both public service and commercial broadcasting. It needs people who understand the particular differences between the two.

Mr. McMunn

I have a general point on how the board should be appointed. The Council of Europe, of which Ireland is a member, has a recommendation on the independence and functions of regulatory authorities for the broadcasting sector. That document dates back to the early years of this century and was originally intended to help the former Soviet states to establish proper, independent regulators. Although we were never behind the Iron Curtain, it is a good general document. It states that there should be a broad range of people, which has already been suggested by both the BCI and RTE. However, given broadcasting's specific nature, there should be experts in areas. It cannot comprise only people from one particular background or interested amateurs.

The document states that there should be people who can "guarantee competition between public service broadcasters and private broadcasters". That is important in this case because the authority will regulate both public service and private broadcasters, which compete for the same revenue and viewers. We have made the point in our submission that we need people with competition and general business experience. We are concerned that, under head 83, any person from a commercial broadcaster cannot be a director of the company that will become RTE but there is no such exclusion on people with connections with RTE being on the authority. If there are to be former RTE people on the authority, it is critical that people with previous experience of the commercial sector should also be represented. My personal view is that there should be people from neither, just people with general experience. That is our main observation.

Mr. Ó Ciardha

Despite the language I am using, Irish is the working language of TG4 and we expect to continue to be regulated in that language. All contacts we have with RTE and the BCI are bilingual. Bearing in mind that the function of this new authority would be to regulate the entire sector and our part of it, it is a natural expectation that those appointed to undertake that task would be competent to judge and evaluate the content we air. Bearing in mind that we will be expected to pay a levy to fund this new authority, being regulated and communicated with by it in our working language, which is an official language of both this State and the EU, is the least we expect.

As a new State entity, I presume this authority would be amenable to the workings of the Act and An Coimisinéir Teanga. I will not answer Deputy Durkan's question on which Solomon-like persons have all the qualifications mentioned by the earlier speakers as well as being bilingual. It will be a challenge to find such persons but Ireland has always provided patriots.

Does Mr. Dooley think a representative of the unions should be on this authority?

In answer to Deputy Durkan, who looked for a prototype, it is a committee. One cannot look at one individual but a wide group that reflects Irish society in all its diversity and that should include nominees of the trade union movement and industry through the social partnership model. We dealt with criteria for membership in our submission under head 8. Head 8 lists a number of qualities but I contend that experience in arts and music should be included. It also refers to what Mr. Ó Ciardha has just spoken about, Gaeltacht affairs. This might reflect a view of Cabinet or an individual Minister. Gaeltacht does not equate to the Irish language and we are concerned that the phrase "Irish language" rather than "Gaeltacht" be used. That is important for TG4.

There should be union representation. There is no formal union representation on the IRTC and that is a loss. The references to exclusions in head 11 are extraordinary. It excludes "a person who holds employment or an interest in a broadcasting undertaking, including, but not limited to Radio Teilifís Éireann and Telifís na Gaeilge, an undertaking holding a contract to broadcast" and "a person who holds employment or an interest in an undertaking which publishes a newspaper". That excludes a large section of the community that would have a valuable input. There is a good history in this country of people with a trade union, business or political background who accept positions on State boards leaving their political affiliation or trade union affiliation outside the door. I make a distinction between something which is representative of the trade union movement and the workforce and something which is reflective of their interests. All one has to do is reflect on the sacking of the RTE Authority, comprising members who subsequently became Members of the Oireachtas and represented Fianna Fáil on urban councils, by the Minister of the day for the stand they took. A lot of humbug is spoken about the notion that an affiliation with a political party or other group somehow diminishes one's ability to take an independent stand in the exercise of one's duties following the acceptance of a State appointment.

Ms Curtin

The trade union group representing workers within RTE considers it essential that people with experience on the ground of programming and direct involvement in broadcasting across the board - not just with RTE - should be eligible and that places should be made available for such people. We would need to discuss whether the process should involve election but it should be done because any authority lacking such experience at board level will not function efficiently. I wish I had said this morning that I hold the same view on the new board which would run RTE directly under the authority of the BAI. The Worker Participation Acts should apply equally to that board as they do to Bord na Móna, ESB, etc. It is essential that those who have experience on the ground be reflected at board level in both the BAI and RTE.

Mr. Donnelly is the chairman of Channel 6. I saw his programme the other night, as I did those of all the other broadcasters present, through my NTL cable. Has he any comment on this subject?

Mr. Pat Donnelly

No. I agree with most of what has been said in that appointments to the board should be representative of the country and, therefore, commercial broadcasters as well as RTE.

We have received a submission from Labour women. I see a Labour woman in front of me , a predecessor----

I am retired and now represent the National Disability Authority.

Then I will not pursue it.

Did Ms Fitzgerald want to contribute on this topic?

I will make a point on behalf of the National Disability Authority. In head 8, we seek to add to the list of criteria for membership a representative of people with disabilities, given the functions of the BAI relating to disability.

Ms Fitzgerald seeks a representative of people with disabilities on the board.

Mr. David Tighe

The independent radio sector welcomes, in principle, the establishment of the BAI. We want the membership of the new authority to have extensive broadcasting experience as it is vital that the individuals involved understand the day-to-day workings of the broadcasting sector. We are also looking for knowledge of and expertise in indigenous competitive environments and for no previous members of the RTE Authority to be considered.

Mr. Pat McKenna

People with a disability, particularly a sensory one, have a right to a place on a board. It has already been suggested there be a fair cross-section of society on the board and that members should have expertise and a diversity of views. Given that provision for people with a sensory disability is now an established part of broadcasting legislation and that broadcasting is such a vital part of the lives of people with hearing loss, it would be fair and legitimate to have representation on the board.

I will shortly invite Mr. Feeney to make his contribution but first call on Mr. Murphy from CRAOL, which is a representative organisation for community radio.

Mr. Ciaran Murray

I am Mr. Murray.

I must get my glasses changed. I apologise to Mr. Murray.

Mr. Murray

CRAOL feels it has been under-represented in the past and would like an assurance that there will be representation on the board for broadcasting's newest sector, namely, community radio and television.

Mr. Feeney

I question why previous members of the RTE Authority should be excluded from these new boards. Mr. McGrath may confirm that a current member of the BCI board is a former member of the RTE Authority and has served on both boards with considerable distinction. I do not think former members of the RTE Authority should be excluded from the boards, any more than should members of the BCI. It seems an unfair suggestion.

I ask Mr. Tighe for the reasoning behind that suggestion.

Mr. Tighe

We feel it is justified in a spirit of fairness.

We will now move to the next section, the objectives of the authority.

I have a number of short questions. Reading the head, it struck me that we already follow a pluralist path. Section 1(c) of the objectives, relating to the provision of open and pluralistic broadcasting services, comes from Polish legislation and a number of others come from Australian broadcasting legislation, which is quite interesting and highlights the fact that the issues with which we are dealing are universal, as well as crucial.

The trade union group of RTE puts a pertinent question in its electronic submission. It asks how section 2(b) might be achieved. The objective in section 2(b) is to promote diversity in control of the more influential commercial and community broadcasting services. We are setting out an objective for the important issue of preventing private monopoly control as exists in our print media. I interpret the submission as stating that nothing in legislation supports that objective with the powers to achieve it. I would be interested to hear Ms Curtin's comments on that.

Another short question concerns the proposal in section 3(b) that the measures taken by the authority be applied across the range of broadcasting services according to the degree of influence that the different types of broadcasting services are able to exert in shaping community views in Ireland. The real question is how to define some of the objectives and the submission is a valid request for clarification of some of the fundamental principles. Can Ms Curtin outline her concerns in more detail and her suggestions for strengthening or clarifying the objectives, particularly in terms of ownership?

A fundamental question relating to the RTE Authority is whether it is nowad idem on the need for a single regulatory authority. Has it been accepted as a necessity and are we all going in the same direction? If the trade union group still has objections, what are they?

Ms Curtin

Section 2(b) proposes that the authority promote diversity in control of the more influential commercial and community broadcasting services. We all saw what happened after the first round of licences, and in the second stage when they were distributed. The consolidation that has taken place and the money that was made from the licences provide a challenge for the objective of genuinely local and Irish-controlled radio in the commercial sector. I was puzzled and concerned by the fact that the proposal asks the authority to promote diversity but does not give it any power to enforce it. I asked the question as to how it would be enforced because I wanted the opinions of the previous members of the BCI, which is why this hearing is very useful. We would hope and expect to put something on the webcast at a later stage but first I wanted to hear how others present today would promote diversity effectively, given that it has not been done very effectively in the past.

Deputy Eamon Ryan's second point related to our request for clarification, which is what we seek.

Mr. Eamonn Kennedy

With regard to Deputy Eamon Ryan's question, RTE welcomed in general terms the notion of a new and modern regulator. As Mr. Feeney indicated earlier, there are two factors, the first being the essential independence of all the members of whatever committees or boards are contained within the regulator. The second factor is that the new regulator must be professional and properly resourced in going about its business.

Taking the British case, there were a number of regulators in the media and communications sector four or five years ago. These have been brought together into one regulator called Ofcom, essentially removing all the old structures and applying new ones which have worked very well. It is internationally regarded as a good regulator both because of the structures applying and the personnel involved. That is RTE's position on the point.

There is no fundamental objection to the structure being proposed then? RTE is more concerned that the members be independent.

Mr. Kennedy

It is not entirely clear from the scheme how it is all going to work in practice. The critical issues are independence and professionalism.

There is no fundamental flaw, from the perspective of the witness, in the broad objectives and structure outline.

Mr. Kennedy

Not with the regulatorper se. It is important that Ireland should have a modern regulator for this particular area.

That regulator would replace the existing RTE authority and take on many of the functions for both public and independent broadcasters under the one office.

Mr. Kennedy

The reality is there is little regulation, in a sense, at present. The BCI has come into that role in recent years, particularly since the 2001 Act, and prior to that it was in effect a licensing body. The RTE Authority, in legal terms under the current legislation, acts effectively as the board of RTE. What is required is a regulator and we would almost be starting from scratch in that respect.

Mr. Feeney

I wish to make a brief comment. RTE would be concerned that the independence of public service broadcasting is not damaged in any way by any new regulatory structure. Our current structure, with an RTE Authority, has given us 50 years of very good independent public service broadcasting, and our concern is to maintain that.

Has Mr. Feeney reason to believe it might be compromised?

Mr. Feeney

It is in a sense as much to do with perception as much as reality and we will not know completely until the new structures are in place. As it stands, with one regulator controlling the whole broadcasting sector, RTE would be concerned that there could be a perceived loss of the independence we have enjoyed up to now. In addition, the regulator could decide in favour of commercial broadcasting over public service broadcasting or could become more involved in day to day editorial matters than has been the case with the RTE Authority up to now.

There is nothing in the objectives as set out in head 24 that would necessarily lead to raising any concerns in that regard.

Mr. Feeney

No.

There is no such wording. It is interesting and there is a general recognition that the introduction of independent broadcasting has been beneficial for the State broadcaster in this country.

Mr. Feeney

We agree.

Broadcasting is far and away better now than it was 20 years ago, and better again with the use of independent production companies by RTE. There is balancing act for any regulator in terms of ensuring a continuation of the public broadcasting ethos and at the same time not creating a disadvantage for commercial operators as a result of RTE receiving the licence fee and advertising. The objectives set out the broad parameters of that balancing act. Fundamentally, there is nothing in the wording that would contradict RTE's aspirations.

Mr. Feeney

There is not.

We will take a comment from Mr. Dooley.

The first problem I have is one of terminology. There is a loose phrase of "more influential commercial and community broadcasting services". What is meant by "more influential"? If this is considered on a national level, one may be speaking about the national broadcaster, but in a community the commercial broadcaster may be the more successful and better staffed commercial radio station.

In terms of promoting diversity of control, as a former journalist I bear the scars of having reported on the initial hearings in the midlands and the west where bishops and community activists were wheeled out as proof that the applicants were genuinely representative of the community. The bishops and community activists were disbanded fairly quickly and many people made money on the licences.

There is now a situation where there is cross-ownership between newspapers and there are groups such as Independent & Media, Thomas Crosbie Holdings and other large mergers. There is an issue in terms of looking at licensing in promoting genuine diversity. The Bill mentions this as an objective but it would be a real challenge to see how the authority would address the area of promoting diversity.

I will also mention what is a glaring absence relating to the objective. There is no reference to the promotion of quality employment or training. An absence of any reference to development and training is a crucial flaw within the objectives. It is referred to under functions but it must be included under the objectives. The absence of training is reflected in a number of other areas within broadcasting, particularly the commercial sector, where there is for example a very high turnover. A clear function, relating to competitiveness, must be a commitment to training.

Considering the objectives, the National Union of Journalists and I would be very anxious that this would form part of the developmental role of the authority very much along the lines of what has evolved under the work of the BCI in the independent radio sector.

I will take comments from representatives from TV3 and the IBI before asking Mr. Maguire to speak on the discussion so far. I will also allow Mr. McLoughlin of SPI to contribute.

Mr. McMunn

Deputy Eamon Ryan mentioned diversity of ownership, and two points can be made. At present, the BCI ensures that its contractors, heavily regulated by annual review meetings, etc., are kept in touch with objectives. In the case of radio stations this would mean programming would be representative of what the people require. This should be borne in mind as I note that Mr. Feeney and Mr. Kennedy stated that until the 2001 Act, there was not much regulation. There has been much regulation of the independent sector.

With regard to the domination of a commercial activity here, the reality is there is already one enormous dominant broadcaster, RTE. It is commercially dominant, especially in the television sector. It receives the licence fee, which is greater than the entire amount of money in the television advertising market, in which it also holds a majority share. By any standard definition of competition principle, the company is a dominant player.

When Mark Thompson was with the BBC he made the point that such an organisation is an 800-pound gorilla in the jungle that forms a particular market. At least three or four of those would be required to ensure appropriate services for all people in the area. Certain groups within the radio sector have a number of licences. In speaking about commercial dominance, there is currently only one dominant player and this fact should be recognised.

Mr. Tighe

A couple of phrases are being used this afternoon which gall me somewhat. They include the separation of public service broadcasting and commercial broadcasting. Essentially, everyone is a broadcaster broadcasting in the public interest. We do not wake up in the morning not to have the public listening to us; rather we are trying to get the public to listen to us. One of the definitions we never managed to get to the bottom of yesterday is that we are all public service broadcasters because we are here to serve the public. Otherwise we would not exist - this is particularly so with commercial radio - because of a lack of listenership.

Is there not a difference? A station such as Lyric FM can exist in public sector broadcasting because there is a recognition from the State that even though it might not be commercially viable because there is not a large listenership, it deserves to exist. That is the difference.

Mr. Tighe

That is a product of the way we exist today. That station would otherwise be termed a niche broadcaster.

Is it not good to have that public service which a private concern might not necessarily provide?

Mr. Tighe

I am not arguing that there is no need for it, but our members believe we are providing a public service on a daily basis. If one were to examine audience figures for local radio stations throughout the country one would find very few stations that were not the most listened to operators their areas. This proves they are in tune with the people they serve.

Does Mr. Tighe think a commercial classical music radio station is feasible? This goes to the root of the debate on whether we should have the type of structure proposed in this Bill or the British type structure which would see a dedicated regulator for public service broadcasting. The UK does not have the equivalent of the organisation represented by Mr. Maguire, the Broadcasting Commission of Ireland, and it does not have the equivalent of ComReg; it has a single communications regulator for the commercial sector. Does Mr. Tighe feel a commercial classical music radio station or a commercial 24 hour news channel could emerge, because this has not happened so far?

Mr. Tighe

I suppose there is Newstalk 106.

I was referring to a 24 hour news channel, which would be very expensive.

Mr. Tighe

If one was trying to operate a commercial entity one would have to consider this matter and I cannot answer such questions today. One hopes such developments might become possible as the industry develops and public tastes change and I cannot see why it would not be possible.

Could a commercial station operate as Gaeilge on a pay-per-view basis in the future?

Mr. Tighe

The possibilities are endless and it is ultimately a matter of whether the requisite number of listeners will tune in to make an operation commercially viable and successful. I do not have the answer to the Deputy's question.

Is Mr. Tighe suggesting we should not have a public service broadcaster?

Mr. Tighe

Not at all, I am suggesting that our members feel they are providing a public service.

Does Mr. Tighe see the importance of the Irish public service broadcaster in terms of our heritage and culture and the importance of protecting it from overseas channels beamed into the country and overseas businesses running commercial interests here? Does Mr. Tighe see the importance of public channels that are owned by the Irish public?

Mr. Tighe

I think the Irish public service broadcaster is absolutely essential.

Could I add an addendum to the Chairman's question? Reference was made to the 800 pound gorilla but it was said yesterday that commercial radio is increasingly successful, with audience fragmentation and local stations occupying the number one position in their regions. If it is not broken, why fix it?

Mr. Tighe

The fragmentation of audience is not the only reason local and commercial radio is successful. Such stations are successful because they are closer to the people they serve on a daily basis and more in tune with local tastes, trends and needs and the shifting preferences of local audiences. I am not suggesting that RTE should be disbanded as it is doing an extremely good job. I am suggesting that the new format should ensure a more even playing field than currently exists. Our members believe they fulfil a valuable public service in broadcasting on a daily basis and this is backed up by listenership figures.

Speakers yesterday suggested we should define public service broadcasting; does Mr. Tighe feel this is necessary?

Mr. Tighe

Absolutely. The group of industry experts present yesterday could not do so, but formulating a definition could be a starting point that would allow us to work out who we are and what we are doing.

On Mr. Dooley's point on training, I am proud to say that the independent sector works closely with the BCI in the Learning Waves industry-led training programme which has proved a very successful operation which our membership is committed to supporting.

We will take a brief comment from Mr. McLaughlin and then move on to Mr. Maguire before coming back to Deputy Durkan who, I am sure, has a number of points to raise. I thank Deputy Broughan for attending the meeting as I know he was tied up this morning, he is very welcome as are his invaluable contributions.

As the Chairman knows, all politics is local.

I hope everybody in Cork is tuning in because I will be in trouble otherwise.

Mr. David McLaughlin

I will address a number of points raised in the submission, particularly regarding the objectives and functions of the proposed new authority.

In section 24 we are concerned by the omission of a reference to independent producers and the independent production sector. The importance of the independent production sector was made clear in this morning's discussion given that approximately 24% of all indigenous Irish programming is produced by that sector. To achieve the objectives of stimulating high quality, diverse and innovative programming, a reference to the independent production sector should be included in section 24. The independent production sector has proved that it provides creativity, diversity and economic competitiveness, not only to the Irish broadcasting sector but, most crucially, to the licence fee-paying public.

We feel section 24 should be beefed up in terms of the regulatory framework proposed given that, as mentioned by many speakers, we are in a market dominated by a single player. We see regulation as the key to levelling the playing field and we feel that the regulatory language in that section should be strengthened.

In section 25, we are concerned by the frequent use of the word "guidance" with regard to the broadcasting authority and its relationship with broadcasters, particularly the public service broadcaster.

We have not reached this point in the discussion yet. We are talking about the objectives of the authority and we will come back to the areas mentioned in the next session when they will be dealt with by Deputy Fiona O'Malley.

Mr. McLaughlin

That is fine.

Can we have Mr. Maguire's learned comments on the debate so far?

Mr. Maguire

I will pick up on the way this matter was introduced in the first instance by specific reference to head 24.2(b) on the promotion of diversity and control of the more influential commercial and community broadcasting services. It is important to point out that, as far as the Broadcasting Commission of Ireland is concerned, there is a sophisticated ownership and control policy that was developed on the basis of consultations with all stakeholders. This is what has applied, it is accessible to the public and it was revised last year on a consultative basis. This is an area we watch with great care, but not on a case by case basis; it is done in accordance with the policy set out in the policy document.

How many takeovers or mergers has the BCI stopped?

Mr. Maguire

If the Deputy examines the document he will see there are various thresholds regarding the number of stations, control of that number, cross-ownership and the concentration of ownership. We monitor these matters either on the basis of the numbers concerned or the percentage of control that is concerned and we take a view in that regard.

Has the BCI ever stopped a merger or takeover, for example the merger of a local newspaper group and a local broadcasting group?

Mr. Maguire

We do not have jurisdiction over newspapers; we consider matters from a broadcasting perspective and it becomes a broadcasting issue if there is a question of a broadcaster being taken over.

Is there a single example of the BCI stopping a merger or takeover?

Mr. Maguire

We have not stopped any particular mergers or takeovers.

What is the point of having guidelines?

Mr. Maguire

There is a culture of compliance; the guidelines are enforced and abided by. The guidelines have not been implemented in the manner suggested by the Deputy.

Is it not the case that in the Dublin commercial scene there are at least two broadcasters sharing the same person as the driving commercial interest?

Mr. Maguire

I think the Deputy is suggesting that there are names associated with certain broadcasters common to more than one station.

I do not mean stations but the owners.

Mr. Maguire

—I do not want to get into individual cases.

Please allow Mr. Maguire to continue without interruption Deputy Broughan.

Mr. Maguire

The way we judge that is to determine whether the requirements in respect of ownership or control have been breached in a particular instance. They have not been. It becomes particularly relevant when dealing with new applications or applications for new services. These are carefully watched. While I know this does not fall within this committee's jurisdiction, the Competition Authority also has a role with regard to the concentration of ownership and control.

It seems clear that the proposed Bill needs amending so that any such authority would have to take into account ownership of other media. Deputy Broughan is making a valid point. There could be circumstances where the radio stations and newspapers are owned by the same company in an area. If the legislative power does not currently exist to take this into account I sincerely hope new legislation will.

Mr. Maguire

The ownership and control policy deals with the question of cross-ownership. However, this is against a background where my organisation does not have anything to do with newspapersper se.

I take some comfort from Deputy Eamon Ryan's observation that the broadcasting scene is now better than in the past, particularly with regard to the diversity of choice that now exists. Ensuring a diversity of choice is most important from any regulatory or licensing body's perspective. If one was to take a guiding principle behind our licensing policy, it is to ensure that such diversity of choice exists.

Members referred to training and development. We are very conscious of our responsibilities regarding the provision of training and development. Those attending this meeting who know the radio scene would acknowledge the effort, time and energy that go into the organisation of various support groups for training and development for the industry. We have a well-recognised training and development policy which has been successful. We would have no difficulty having this recognised within the legislation.

There is slight confusion in respect of public service broadcasting. It is undoubtedly the case that, for example, a county service fulfils a public service remit in its broadcasting. One need only listen to a county station to understand that it provides an important means of providing information to the public. These stations are not public service broadcasting stations, but there are elements of them which fulfil the public service remit and it is fair to recognise this. That is not to take away the importance of there being a national public service broadcaster. The BCI is very conscious of this and our relationship with the public service broadcaster. We were conscious of it when developing the codes, as we were charged to do under the 2001 Act. It is important to acknowledge that RTE has been helpful and co-operative in the development of those codes to the satisfaction of both parties.

I take the point made by RTE that the BCI has primarily dealt with contracting, regulation and the implementation of codes. One of the objectives set out for the new authority is to stimulate the provision of high quality, diverse, and innovative programming by commercial, community and public service broadcasters. I am sure Mr. Maguire will agree that the definition of this is not necessarily always the listenership or viewership - on that basis the hanging of Saddam Hussein would be deemed good programming even though it clearly was not. How does Mr. Maguire see a newly established authority fulfilling this objective? How would it measure its achievement of stimulating such programming? It is not a code or contracting issue; it is a subjective measure of what is or is not good quality.

Mr. Maguire

That is a difficult question to answer. However, if one were to look at this historically, ranging from the 1998 to 2001 Acts, objectives such as those set out are matters taken into account by bodies such as the BCI. The very fact that the regulator should gear itself towards stimulating high quality, diverse and innovative programming by commercial, community and public service broadcasters is an important matter of itself. It is difficult to answer how this is sub-defined, or how the authority would be directed to go further along this route. The last thing one would want to do is to get into over-provision of specific types of broadcasting or programming in statutory terms. This is a general objective which is appropriately in place. I do not know that I can be of much assistance in describing how it can be developed further.

We have now reached the point where we are discussing the most fundamental aspect of broadcasting in the future, namely, the definition of public service broadcasting, how the public sector could compete with the independent sector andvice versa. How funding and administration should be dealt with is another important issue.

Mr. Maguire has touched on a number of issues, such as the nature of a public service obligation and at what level it kicks in. For example, it could be said that the national public broadcaster has an obligation to provide a public service at local level. Whether that means the development of regional television transmissions - as happens in larger jurisdictions - and whether these would be economically feasible remains to be seen. There is also the question of how funding can be made available to local public service providers and from whence the funding might come.

Whatever else happens, I am convinced there must be healthy competition in this area as in other areas. While each has its own area of competence, those providing a public service should not be afraid to compete with the independent sector, norvice versa. Whether the public service broadcaster intends to deliver a local focus in the future to the extent the independent sector has done remains to be seen. I do not know if it is possible, but the Chairman will be aware of the local arrangements in Cork. RTE Cork and the various independent stations in Munster provide a good service. I am sure the Chairman has used all of those stations, to varying degrees, from time to time.

The critical issue is how the various broadcasters see themselves developing and meeting a public service broadcasting requirement while retaining the local components referred to by previous speakers. We do not want local radio becoming international radio where we only have radio replicated, controlled and funded from outside the State. As is the case with Aer Lingus, An Post and various other State services, the public sector, to give the public a better quality and standard of service, must be prepared to compete, and we hope on a level playing pitch.

There were several references to regulators. Regulators and I have had a tempestuous relationship over the years. I am not certain that the regulatory system, as it applies in Europe, works well or effectively. It has not been tailored to suit the Irish situation. I will not delay today's meeting by discussing the various nuances involved but I can quote chapter and verse with regard to where it does not cater for us. The wisdom of regulators will be observed carefully in future. The regulatory system may well have to be altered to make it work effectively here.

Ms Fitzgerald, do you miss this rhetoric?

I am retired from politics now and am representing the disability authority at this meeting.

Does Mr. Maguire wish to answer any of the questions? I will wrap up this discussion with the last question on the EPG. Did you make a statement or ask a question, Deputy Durkan?

It was a provocative argument.

Was it a statement or a question?

It was a provocation, Chairman, which you are wont to give from time to time.

Mr. Feeney

RTE was earlier described as an 800lb gorilla.

No reference to the Chairman now.

Mr. Feeney

I understand gorillas are passive unless attacked. Deputy Durkan speaks about competition. Please bear in mind how extraordinarily competitive the Irish television and radio markets are. There are more than 50 radio stations broadcasting in this market so it is extraordinarily competitive. In television, the danger is that the strength of non-Irish television stations like the BBC, ITV, Channel 4 and so forth is such that unless there is a strong Irish television market we will lose audience share. If that happens, all of us will suffer nationally.

It is critical that there is strong Irish television so we can address Irish audiences, with Irish participants dealing with Irish issues. Public service television is essential for that. We can deliver the largest proportion of Irish made programmes. There will not be "Prime Time", the "News at One", "Morning Ireland" and the like unless there is a well funded public service broadcaster which is as independent as possible of the Government. For the past 40 years the RTE authority has served us well in that respect.

Mr. Maguire

I was asked a specific question by Deputy Eamon Ryan about trying to promote excellence, high quality and so forth. It is important to note that the way the BCI goes about that work at present is by securing programme commitments from the broadcaster. The commitments would cover a range of areas but would also deal with the nature of the programmes to be broadcast. Broadcasters are held to those commitments. On a separate basis, there is also the programme fund, which can be allocated on the basis of the promotion of excellence.

Deputy Broughan had a question.

I acknowledge there is public service broadcasting in the commercial sector. I am aware of the work done by Newstalk, Today FM and local stations. The committee commenced yesterday with a session about convergence, that is, the convergence of delivery systems and the convergence of communications. Is there not a very strong case, therefore, for merging the BCI and ComReg? The committee has had grave concerns about the performance of ComReg. Is there not aprima facie case for merging all that territory under a single regulator on the British model, given that the medium is the message - to use an old phrase? Perhaps that is the way we should proceed.

Given the often fragile background in many countries of protecting the public service broadcasterper se, it should have its own regulator. That is my position and if I am in the next Dáil as I hope, that is the position for which I will vote. I will not vote for the BAI. If one reads the history of RTE, for the first 20 or 30 years it was apparently Éamon de Valera’s friend, with them singing to each other each night. It was behind the ballgame up to the Gay Byrne era. I am reading one of those petrol station biographies of Gay Byrne at present. He had an interesting career. It is interesting how the station and the man who epitomised its public service broadcasting developed over the years. That said, there is still a powerful case for having a commercial regulator with enhanced powers for the physical side of the new telecommunications.

Mr. Maguire said, with regard to the history of the BCI, that it has not stopped anybody getting serious control in the commercial sector. On that basis, if it is not broken, why fix it? Why not enhance it? I have said previously to RTE that there is no reason for not having a parliament channel and a 24 hour news channel and for not developing the public service. However, looking at the feeble objectives of these headings, I am not sure the case has been made for putting a developed version of BCI in charge of the entire broadcasting system here. I have not bought that argument.

I have another question with regard to accessibility for people with disability and the objectives under the headings.

We will let Mr. Maguire reply first and then come back to that question.

Mr. Maguire

We have expressed various reservations about this scheme but they are minor in the overall context. As far as we are concerned, we consider the proposed scheme appropriate. We differ from the Deputy's approach in that regard. Why is that? The way broadcast media have developed here in the past 20 years could be an international example of the way to develop the radio environment and broadcast media in general. There are down sides but, by and large, it is a much improved scene. It came about on the basis of thoughtfully examining the issue of regulation. It is appropriate to continue on that basis. I strongly believe in a single content regulator, as contemplated in this scheme. I acknowledge that it is entering into an area where there is convergence but the distinctions that remain are better regulated on the basis of the scheme set out in the Bill.

The Deputy continues to refer to the question of how many mergers or takeovers we have stopped. I do not wish to leave that hanging in the air because it assumes there have been situations which we have declined to consider or examine to establish whether they comply with our policy. We continue to apply the policy and we have not found that to be the position. There might be an apparent rather than real situation in this regard. As far as the ownership and control policy is concerned, we developed it carefully, tried to do it on an objective basis and we have applied it on a consistent basis. It is not a question of not applying the policy in particular circumstances.

Thank you, Mr. Maguire. You made that point previously. Mr. McMunn wanted to ask a question but I will take Ms Fitzgerald first. She had a number of issues to deal with arising from the question posed by Deputy Broughan.

Deputy Broughan's question was whether we were adding to heading No. 2(c).

We would like it to refer explicitly to a function of providing broadcasting services which are accessible to people with disabilities. Section 53 of the Disability Act amended the Broadcasting Act 2001 to assign certain functions to the BCI concerning access rules. With this new structure it is important that the disability is explicitly spelled out in the objectives of the authority in subhead 24.

Mr. McKenna

It has grave relevance to what is contained in section 53 of the Disability Act amending the 2001 Act. It adds an extra measure for people with a disability - the development of the teletext service. That is new. It is not included in British legislation but is being introduced here. We welcome this because the teletext service is vitally important to people with severe, or worse, hearing loss who are excluded from radio services. They are more reliant on the teletext service than others for news, entertainment and indications of which programmes are accessible to them through the symbols for subtitling, audio description and sign language. This section has great relevance for us, particularly in the digital age.

I thank Mr. McKenna. I will come back to Mr. McMunn but I wish to ask Mr. Donnelly a question. Should network platforms operating in Ireland be regulated by the BAI, with particular reference to their operation of the EPG, giving prominence to Irish channels within it?

Mr. Donnelly

The short answer is yes. We have two specific concerns about the legislation. Mr. Feeney touched upon them. The biggest threat to Irish television broadcasting is posed by the lack of control of EPGs in the Republic of Ireland. We are asking the BCI to implement the provisions of section 16 of the 2001 Act that obliges it to regulate EPGs in the Republic of Ireland, that is, the NTL, Chorus and Sky electronic programming guides in this market. It has not done so to date. This represents a huge threat to the Irish television broadcasting industry.

The second specific concern about this legislation is that the Minister is being given some prerogative within the legislation to oblige the operators of EPGs to give priority to what he perceives as strategic interests in the Irish broadcasting industry. We have a peculiar situation in this country whereby Sky operates in this market under an Ofcom licence. In other words, the British Government controls a significant share of the Irish television market. Sky has admitted in writing that Ofcom does not regulate it in the Republic of Ireland. Ofcom leaves it to regulate itself here and in doing so is discriminating against Irish channels in favour of British ones. We would like this issue to be addressed.

Before I ask Mr. O'Keeffe to comment, we heard the views of TG4 this morning. We have also heard the views of TV3 and RTE on this issue. Mr. Donnelly is aware of the fact that, on behalf of the joint committee, I travelled to the United Kingdom with the clerk to the committee to meet representatives of Ofcom to raise a number of issues. We were actually learning about DAB and DTT in order that the committee could prepare for digital audio broadcasting and digital terrestrial television services. That is important to us, given our communications remit. Ofcom made it clear to us that it was not, as Mr. Donnelly has so rightly said, able to regulate Sky as regards the EPG for Ireland.

Mr. Donnelly

That is right.

I am aware of the EPG for Ireland. I have not seen Channel 6 on the EPG, although I have searched through 999 channels. Where is it located on the EPG?

Mr. Donnelly

The specifics of this matter are that in the United Kingdom Ofcom dictates that terrestrial channels such as the BBC, ITV, Channel 4 and Channel 5 are to be given priority. In other words, they rank first, second, third and fourth on the EPG. The reason for this is to given them a good advantage over other channels. The critical aspect is that the higher up one is on the EPG, the more significant one's audience will be. In the Irish Republic it has arbitrarily chosen to put RTE 1, TV3 and so on at the top. It has chosen to put us at the bottom, behind all the British channels. It has put RTE at the top, at its own discretion. The significance of this is that it can choose at its own discretion to take RTE, TV3 or TG4 off it. We have received the best legal advice in Britain and Ireland to say it has full authority to do so by virtue of the fact that the BCI has not licensed it.

I see. Before we go to Mr. O'Keeffe, I want to clarify something. On the EPG for Sky RTE One is on channel 101 and RTE 2, channel 102. Is that correct?

Mr. Donnelly

Yes.

TV3 is on channel 103. Is that correct, Mr. McMunn?

Mr. McMunn

That is my understanding, yes.

TG4 is on channel 104 and Sky One, 106. There is no channel 105. Is that correct?

Mr. Donnelly

There is no channel 105 because in this market there is no Channel 5.

I see. Sky Two is on channel 107; Sky 3, 108; UKTV Gold, 109; UKTV Gold Plus One, 110, and UKTV G2, 111. Is that correct?

Mr. Donnelly

Correct.

We will stick with Sky for one minute. In the United Kingdom BBC 1 is on channel 101. Is that correct?

Mr. Donnelly

Correct.

BBC 2 is on channel 102; ITV 1, 103; Channel 4, 104; Channel 5, 105; Sky One, 106; Sky Two, 107; Sky Three, 108; UKTV Gold, 109; and UKTV Gold Plus One, 110. Is that correct?

Mr. Donnelly

If one went to Scotland, it would be BBC 1 Scotland, BBC 2 Scotland and so on. They are obliged to do this under Ofcom regulations.

We will go back to NTL to which Mr. Donnelly's submission also relates. Am I right in saying the EPG listing for digital broadcasters here is that RTE 1 is on channel 101; RTE 2, 102; TV3, 103; TG4, 104; Setanta Sports, 105; Channel 6, 106, and City Channel, 107. Is that correct?

Mr. Donnelly

Correct. We have no difficulty with what NTL and Chorus do on the basis that they are acting positively towards Irish channels, but Sky is not.

I understand that. I just want to record what has happened. I wish to ask Mr. O'Keeffe if we are correctly interpreting the law relating to EPG as passed by the Oireachtas.

Mr. O’Keeffe

I will outline the background as briefly as I can. The matter was raised with us by Channel 6 a number of months ago. We made contact with Ofcom to clarify what the licence position was. Sky has always maintained that its EPG in Ireland is co vered by the UK licence it receives from Ofcom. We wrote to Ofcom to seek clarification. It has clarified that it has given a licence for an EPG to Sky. In its view it covers the EPG Sky operates in the Republic of Ireland. We also raised with it the fact that it had given a placement to Irish channels in Ireland but not in the United Kingdom. It stated that, as far as it was concerned, this was in accordance with the spirit of the UK Communications Act. That is the position. Both Ofcom and Sky state the EPG is licensed in the United Kingdom; that the United Kingdom has jurisdiction to give that licence and that it is not a matter for us.

In the recent past we had an informal discussion with representatives of Channel 6 on that basis. Channel 6 has recently submitted a legal opinion to us, to which Mr. Donnelly referred, which implies that the matter of jurisdiction concerning EPGs is not clear cut. The argument is that jurisdiction applies only to programme material rather than the electronic programme guide. In light of receiving that, and the information therein, we have now referred that material to our own legal advisers because it raises a number of issues which potentially might be beneficial towards Channel 6. Up to receiving it, our position was that there was nothing we could do to force Sky to change the EPG in Ireland. There may be something in that. Our current position is that the matter is with our legal advisers, we will be reporting back to our board and we will be proceeding with that.

Is Setanta Sports covered on the Sky EPG?

Mr. O’Keeffe

This particular matter is not an issue for Setanta Sports. That channel is carried within the sports group on Sky.

Can the committee take it that at present this issue is being handled by BCI with Sky?

Mr. O’Keeffe

Yes, with Ofcom and, obviously, with Channel 6.

I think it is the wish of this committee that Sky would do everything in its power to accommodate another channel, which is operating in and originating from this country. Would I be correct in saying so?

On the legislation we can draft and pass, we must obviously deal with the European Union on the television without frontiers directive. How, in domestic legislation, can we ensure that a local channel is facilitated? Can that be done in this legislation?

I do not have the answer to that question. I asked whether it should be and Deputy Broughan is asking the same question. It is the will and wish of this committee that this would be included in the legislation if it is at all possible and that will depend on the legal advice the Department receives on the matter. It is a serious issue and as far as the committee is concerned, Sky should accommodate this channel the same as it is accommodates the other commercial and national channels.

There is one more point on that. What is the position of Channel 6 where a person has a dish but is not subscribing to Sky?

Mr. Donnelly

If the person is not a subscriber, presumably he or she has an English card. If the person is not subscribing, I am sure he or she should not be accessing it.

I should stress that this is a threat, not just to us but to RTE, TV3 and TG4. If Sky has been given discretion to do what it wishes in this market, which Ofcom has openly admitted it has given, then Sky could exercise that discretion in its own favour tomorrow, if it suited commercially, by dropping RTE, TV3 down the EPG. It will not just affect us. It will affect other channels.

I hope Mr. Donnelly does not end up in the channels we will not let many people view.

I have been thinking about public service broadcasting. I am wondering whether we should define public service broadcasting by what it is not rather than by what it is?

Or by what it is supposed to be.

Perhaps the officials from the Department might consider that.

Mr. Feeney

There is a good definition of public service broadcasting within the Bill, which states that Radio Teilifís Éireann shall ensure programme schedules and broadcast services referred to provide a comprehensive range of programmes in the English and Irish languages that reflect the cultural diversity of the whole island of Ireland, including both on television and radio, and that entertain, inform, educate, provide coverage of sporting, religious and cultural activities and cater for the expectations of the community generally as well as members of the community with special or minority interests, in which case respect human dignity.

I thank Mr. Feeney. We will now discuss the functions of the authority. We will take the miscellaneous and general together. With 38 minutes to finish, I think there is enough time.

In the first instance, I agree with what Mr. Tighe stated earlier that it is unfortunate to put public broadcasting service up against commercial service. As time went on, he got a little more sympathy for the notion that the commercial sector provides a public service and I think that needs to be acknowledged.

Head 25(2)(e) mentions a requirement that the authority would have to co-operate with other bodies to promote training activities in areas of skill shortages. It was slightly unfair of Mr. Dooley to state that the issues of skills were not being addressed within the Bill, and he seems to wish to respond.

Some of the additional functions that the authority may have, particularly to collect and disseminate information on the broadcasting sector in Ireland and to deal with matters internationally, would place a significant burden, financial or administrative, on the authority, and particularly on disability issues. Does the authority see that it will have the capacity to ensure that the authority is in compliance with section 53 of the Disabilities Act? Would such function be seen as a major area of work for the authority? A member of the public made an observation about how to solicit audience feedback and whether this should be done before licences are granted, and I would be interested in witnesses' comments in that regard.

Is it also envisaged that the broadcasting authority would request the public service broadcasters to provide free-to-air services for communities beyond Ireland? I am interested in this international dimension because we have limited capacity. In that sense, television and broadcasting goes beyond the international boundaries. Earlier, we came up against the issue of jurisdiction in a question raised. How can we overcome the problem of limited jurisdiction or what kind of pan-European authority does the panel imagine would be provided for?

I agree with Mr. McLaughlin on the question of guidance. Comments were made earlier, particularly by Deputy Broughan, about how timid is much of the draft legislation. I am inclined to think that this might be because the purpose of today's eConsultation process is to make it more robust. I was interested in the question of guidance as opposed to directives which Mr. McLaughlin had started to raise. It would seem fairly useless to insist upon a guidance and I would be interested in his comments on that.

We will start with Mr. McLaughlin and then get feedback on the other questions.

Mr. McLaughlin

On Deputy Fiona O'Malley's point, our view is that the reference, particularly in head 25(1)(j), to the word “guidance” implies quite a loose regulatory framework. This also relates to sections 100(8), 103(1), 104(1) and 107(2) where there is reference to the word guidance. We would suggest to the committee that the word which should be used is “directions”. Given that the objective of the Minister is obviously to establish a single content regulator and that the idea is to encompass the existing regulatory powers of the BCI, the BCC and the RTE Authority, the proposed regulatory powers for the BAI are less weak than those currently in use by the individual regulators - the BCI, the BCC and the RTE Authority. The danger therein is that if the BAI only has a guidance role, there would be a weakness in the authority’s ability to ensure the code of fair trade and practice objectives are properly applied.

On the code of fair trade and practice, a function of the authority should be to ensure an obligation on the public service broadcaster to invest in indigenous feature film production as well as to provide a quota of young people's, children's and animation programming. It is important that it be recognised, particularly in legislation, that feature film production should be supported by the public service broadcaster, as is the case with many such broadcasters in most other European countries and in many countries around the world.

To draw attention to the NUJ submission, I welcomed the reference to training in head 24. My comments were a reference to head 25. The objectives are defined differently from the functions, although I do not know why. Training should be included as an objective as well as a function. However, the full terminology used is "the promotion of excellence through quality employment and training".

I stress the importance of quality employment as well as training against the backdrop of representing members in the independent commercial sector, including in a significant number of areas where we have encountered hostility to the right to trade union representation. During the discussion on Sky, I was going to flippantly request a minute's silence but decided against it in respect of the demise of Sky News Ireland and the jobs of our members. I was denied, as a trade union official, the right to represent members whose jobs were being discarded. It is not enough to enter the market and create jobs. Quality employment must be provided, which clearly means security of tenure and recognition that people in a sovereign republic cannot be offered contracts that state British law will apply.

Mr. McMunn

With regard to head 25, it is particularly amusing that Deputy Broughan said public service broadcasting or RTE is a fragile entity. This entity has an income in excess of €400 million a year and that does not sound fragile to me. This fact is important because the Deputy stated there was a danger public service broadcasting could be lost. However, there is no definition for public service broadcasting in this entity. The public service broadcaster in this State takes advertising and competes fully in the commercial sector with independent radio and television. Under head 25, I agree with the SPI delegation that the guidance should be stronger. Head 25(1)(h) refers to the sectoral impact of proposals that RTE may make. The sectoral impact will need to be much harder hitting than that, which would be in keeping with the Government’s own requirements on regulation generally. RTE is not fragile and if the committee wants to ensure diversity and a plurality of services are encouraged and interesting programmes and services are provided, genuine competition must be ensured.

Mr. Ó Ciardha

Our observation refers to Mr. Donnelly's previous comment. A function of the authority should be to direct ComReg to ensure all national services have due prominence and must carry status on all platforms because in an increasingly crowded market with so many platforms competing, the national broadcasting authority must have that function. I do not wish to dishearten Mr. Donnelly but in the early days of TnaG, we found ourselves on channels 13 and 19 with cable companies carrying only 20 channels. One of the factors that persuaded us to rebrand the channel as TG4 was to gain possession of the number ceathar, which was persuasive in talking to a number of cable companies.

Deputy Fiona O'Malley referred to the importance of servicing our audience, whether it resides on the island. That is close to the heart of Teilifís na Gaeilge, given our history of emigration. We, therefore, welcome proposals that would encourage and enable us to provide a service for the diaspora and thousands of others who have no connection with the island but who wish to learn the language or immerse themselves in our culture. While welcoming the proposals, they are fraught with complex rights issues but, notwithstanding that, all of TG4's output is webcast live worldwide atwww.tg4.tv, except programming that is not rights protected. As with this committee’s proceedings, the importance of a webcast in delivering services to people resident outside the island will increase rather than decrease.

Mr. Feeney

I refer to Mr. McLoughlin's comment about an obligation on the public service broadcaster to invest in films made for cinematic release. That is the function of the Irish Film Board. If RTE becomes obliged to invest in feature films, it will be at the expense of budgets for television programmes. The pot is limited, not infinite, and if we are forced to spend money on funding films for cinema, it will be at the expense of "Fair City" or another programme. The pot is not large enough to allow us to invest in films for cinema, which, by and large, lose money in Ireland. There would not be much return on the investment. I encourage members not to go down that route.

I agree with everything Mr. Ó Ciardha said about an international service for Irish television. Sufficient material is produced by RTE 1, RTE 2 and TG4 to which they have rights to offer as an attractive service to Irish people living abroad. The issue is the cost of the delivery of the service and who should pay. If RTE had to pay for that, it would come out of the same pot for all our programmes and it would mean the loss of existing programming.

The Minister published the Broadcasting (Amendment) Bill in December 2006 to deal with digital terrestrial television and broadcasting overseas to Irish communities.

Mr. Murray

With regard to the platforms, it is important that indigenous broadcasters be given priority but I would like indigenous content to be taken into account when that is examined, as that would be relevant.

Mr. Tighe

I thank Deputy Fiona O'Malley for recognising that a public service is provided on a daily basis by our membership. That is greatly appreciated. The difficulty with RTE is it is providing a public service in a commercial environment but that is not the company's fault. That is the one of the difficulties it faces. RTE has a foot in both camps.

While the development of domestic television and films is not strictly within my remit, as a member of the Irish diaspora with family in Ireland and England, that would be welcome. I would support that.

We have a number of issues with the regulatory functions going forward and I am not sure whether this is the correct time to bring them up. We have not covered the investigating officers and the powers they possess.

We will not discuss them now. We are running to deadline and I am back in the running for the job as producer.

Mr. O’Keeffe

I refer to the issues raised by Deputy Fiona O'Malley. We requested that research information, training and development and other major areas of work be given a legislative basis and we warmly welcome that. We have a training and development policy and we are developing a research policy. The BCI has information on its elaborate website.

Has the research been conducted independently? I refer to the famous case involving Phantom FM and another station, which was controversial because many people loved the station that was not successful. How was the research addressed? Does the BCI want that issue addressed in the legislation?

Mr. O’Keeffe

That is a separate issue to research. I referred to a research policy on major developments in broadcasting both nationally and internationally. The Phantom FM issue relates to the research conducted for a licence application and how that is verified. That was the subject of a court case at the time.

Was that research conducted independently? Should such independence be provided for?

Mr. O’Keeffe

We require the applicants for licences to undertake research to validate their case.

Should the regulator not do that?

Mr. O’Keeffe

In our view, it should not. It is a matter for the applicant to make the market case for the licence.

In the case of recently granted licences, did Mr. O'Keeffe not have an idea that the Cork region, for example, needed another station?

Mr. O’Keeffe

We undertake an evaluation at executive level of the material which comes in but we put the onus on the applicant to make the case. We then evaluate the case and make a presentation to the board. That is a separate issue from the research policy we are developing.

Do you wish to make another point, Mr. O'Keeffe?

Mr. O’Keeffe

With regard to jurisdiction, in some respects, this is a matter for legislators.

Are you taking advice on that matter?

Mr. O’Keeffe

Yes.

I can see the officials writing. They will be mulling over these reports in the next couple of weeks.

Deputy O'Malley asked if it would be too expensive to collect information regarding accessibility of services for people with disabilities. We feel this should be an important function of a regulatory body, which has duties under section 53 of the Disabilities Act to ensure that there are access rules and that a certain proportion of programmes are provided for people with disabilities. It is important that the regulatory body should report on that and on the extent to which those duties are being fulfilled. I see that as a core function of the remit of the commission and not excessively expensive.

I did not infer that it would be expensive. I simply wanted the representatives of the National Disability Authority to comment on the possibility of doing it.

Mr. O’Keeffe

We would support Ms Fitzgerald on that point.

We will move to the miscellaneous and general area. Deputies Durkan and Broughan wish to ask questions. Any points which have been missed can then be dealt with if we have time.

What are the reactions of the various bodies present to the degree to which the proposed legislation will allow for ministerial influence? This is important in the political as well as in the broadcasting sphere. Opposition Members have been particularly sensitive regarding this matter.

I have had no experience of that, Deputy, and I hope I will not have.

That remains to be seen. You may have the experience sooner than you think, Chairman. It is a chastening experience for everyone. When in Opposition, one begins to recognise the need for impartiality. Yesterday, you misconstrued what I was saying and my colleague, Deputy Ryan, felt I was introducing politics into this area. Politics already exists in this area, regardless of whether we like it. Whenever there is a reference in legislation to ministerial approval, I have always tried to ensure that it is followed by a requirement of Oireachtas approval. A requirement of ministerial approval ensures that only the Government side of politics is involved.

It is of critical importance that we introduce a system which is not only above board but is seen to be above board and absolutely impartial. We must not allow a situation in which public broadcasters or other stations are accused, often correctly, of broadcasting soft interviews of particular people at particular times. There is no need for the public broadcasting sector to doff its cap to Government Ministers, who should be treated the same as everyone else. This is the clear difference between the public broadcasting sector and a sector with a public service obligation. There is a subtle difference between the two.

If we are to improve the situation, we should note the difference between the way the BBC operates and the way we operate. It is not uncommon in the United Kingdom for a politician, whether a Government Minister or a member of the Opposition, to be rigorously interviewed by the national broadcaster. This does not necessarily happen in this country. I am not pointing a finger in any particular direction but concern has been expressed in this regard.

I would not like to see the Chairman and his Government colleagues in Opposition—

The Deputy would.

—feeling hard done by because of the way Government Ministers were treated by the national broadcaster or any other broadcaster.

Those of us who have spent time in Opposition have had occasion to issue statements. There is a tendency for statements from Members of the Opposition to be picked up by independent broadcasters but not by the national broadcaster. Therein hangs a tale. This critical factor must be addressed.

Ministerial approval can become interference if influence is exercised, either directly or indirectly, in such a way as to bend the broadcasting system in a particular direction. The provision of an impartial broadcasting service is the best way to serve the public. If there must be ministerial avowal, there must also be parliamentary approval in order to ensure checks and balances. This applies in every other sector and should also apply to the broadcasting sector.

Deputy Durkan, I am not sure if we watch the same interviews. In the nine years since I was elected to this House I have never seen a Government Minister being given a soft interview. I have always seen journalists ask hard questions, fairly and directly. Perhaps I have been watching the wrong news bulletins.

There may be a special station which broadcasts in Cork.

Given the time constraints, I will ask Deputy Broughan to ask the other question which has been earmarked and we will take both questions together.

The Bill will establish a broadcasting regulator. This committee and the Department it invigilates have experience of regulators. We established a regulator for the fisheries sector on 1 January. The advantage of a regulator is that the sector concerned is one step removed from ministerial control. The existence of a regulator is also beneficial to Governments, and has certainly been so to the Government of the past ten years. When problems emerge, the Government can absolve itself of responsibility. In the recent controversy regarding energy costs, for example, the Government insisted that the problem was one for the Commission for Energy Regulation. We hear this claim in almost every area. In many areas where there is not an independent regulator, the appointment of one is being vaguely considered.

The proposed broadcasting Bill will establish three committees as well as the board itself. The Minister will have enormous power through the appointments system. The Labour Party always proposes gender equality on State boards. This was not achieved in the case of the fisheries board. The Labour Party wishes to include gender equality in all legislation. My former colleague, Ms Fitzgerald, was instrumental in helping to establish gender equality in the third last parliament. If the revamped Broadcasting Commission of Ireland had an overarching role in broadcasting, ministerial power would still be very strong.

When I referred to the fragile broadcasting environment I was thinking of the time the Taoiseach, Mr. Seán Lemass, telephoned the national broadcaster and said he wanted something done a particular way. I have some sympathy for what my colleague says. Government people seem to have tremendous access. For example, the Deputy will not contradict the fact that her colleague, the Minister for Justice, Equality and Law Reform, seems to appear regularly on Pat Kenny's programmes, often several times a week. People often ask why he and others such as the Taoiseach - who is not formally interviewed that often - are not asked hard policy questions rather than the soft focus human interest questions. While people are interested in these areas, they are also interested in issues like those covered on the Joe Duffy show this afternoon, such as private and public medicine. Why do we have this significant gap and why is the hard policy question rarely put to people like the Taoiseach? Is there a profound ministerial power in this regard and will it continue? If the Bill goes ahead, will RTE consider it necessary to establish a special division to protect the public broadcasting element? How can the BAI be strengthened and do we need the possibility of ministerial intervention? It is often alleged that boards are formed from the large talent bank of whoever is in power and that the acolytes of those in power are ultimately appointed to the boards.

Deputy Broughan raised the point I wished to make. It is important that we get the views of the witnesses about the level of ministerial involvement proposed in the Bill and the dangers involved. It would be interesting to hear their views.

Why do we not ask the people who made the submission, namely, RTE and the trade union group?

This is a concern shared by the trade union group and the National Union of Journalists. There is obviously direct influence through the appointment of 78 nominees. In addition, in the case of RTE, for example, the Minister acts as the sole member of the new RTE company. In that regard the Minister's membership carries all the rights and obligations that a member of a company would normally have. This is covered under head 73. All of the other powers and restrictions flow from this.

I will not be able to deal with these powers in the few moments available now. There is a centralist theme or approach throughout the Bill which would make Stalin blush and which confers powers and influence directly and indirectly on the Minister of the day. The centralist approach is not reflective of trends within the evolution of broadcasting policy anywhere else and flies in the face of the work of this committee, which aims to be inclusive and recognise that broadcasting is of public importance.

In the area of public service broadcasting, it is entirely appropriate that the Minister and Government of the day would have a role in ensuring that public service obligations are met. So far, there has been a failure to distinguish between broadcasting which is a public service and broadcasting which is a public obligation. That distinction has been missing in the debate. The broadcasting of death notices is clearly a public service, but that is not the same as a public service obligation, which is specific. In that regard a Minister must have influence. However, the degree of influence envisaged in the Bill is not acceptable.

Does Mr. O'Keeffe want to comment on the appointment of the new BAI, etc.?

Mr. O’Keeffe

I echo what Mr. Maguire said earlier that it is essential the mix of membership is appropriate. In terms of the number of boards, the Broadcasting Commission of Ireland has taken the view that there is no necessity for three boards and that two are sufficient. I endorse the notion of gender balance that has been in practice on the IRTC and the BCI boards.

Has Mr. O'Keeffe an opinion on the other political matter?

Mr. O’Keeffe

No.

Dead right. Does Mr. Kennedy wish to comment?

Mr. Kennedy

Deputy Durkan raised the issue of impartiality. The law on impartiality will not change under this Bill and there is no specific change with regard to the law and how broadcasters operate. With regard to interventions and how the legislation works in terms of ministerial activity, we notice that the proposed Bill suggests 50 occasions when either the Minister, the Government or the BAI has a role in the activities of RTE as opposed to 25 occasions under the current legislation. In terms of change, this legislation represents a more intensive form of bureaucracy or legislation. Perhaps that is something we should examine and consider whether it is necessary in a country this size.

That is a fair answer. Does Mr. Ó Ciardha wish to comment?

Mr. Ó Ciardha

I am consoled as I hope Deputy Durkan will be by what is contained under head 115. It is stated under that head that if any alteration to the remit of TG4 was to be proposed, the Minister would have to make an order and lay it before both Houses of the Oireachtas. That is a good provision.

Does Mr. McMunn wish to comment?

Mr. McMunn

My comment relates to the make-up of the board. However the board is appointed, those nominated should be independent of any particular interest. With regard to the point made by RTE about the 50 references to the Minister or the authority as distinct from 25 under current legislation, given the Bill is being introduced to ensure a fairer playing ground for all parties, it is likely there will be further reference to regulation on RTE.

RTE raised its concern about the regulations and divisions between RTE and the commercial sector. Its concern was that the national public service broadcaster would not be adequately protected under the Bill. Does Mr. Feeney wish to expand on that?

Mr. Feeney

We spoke about that earlier today and said it was important that the composition of the boards would take account of public service interests. The composition of the boards can provide this guarantee if the Bill proceeds as planned.

We have five minutes for any remaining questions.

I wish to make a closing comment. I have learned something from this debate. Mr. Maguire said earlier that it is hard to regulate for quality, but we all know what it is. The real task for any future regulator will be subjective. I have heard nothing over the past few days to indicate the Bill should not go ahead and see no reason it should not be enacted by April or May. The process started four and a half years ago when I was first elected to the Dáil and at that time we held a consultation process in the RDS on the issue. Now, over four years later I see no reason we should delay.

The process conducted by the committee will have helped the progress of the Bill and has been a good lesson. The work of the Chairman and the committee officials is commendable and will assist debates on Second and Committee Stages. It would do a disservice to the new process of legislation if the Minister and the Department did not succeed in getting the legislation passed. My main criticism is the delay in completing the process. Uncertainty in any of the relevant organisations, whether for or against, will not help. I see no reason not to proceed with the Bill at full speed. I would not tell a broadcaster its job in terms of what question to ask the Minister, but I believe the question to be asked is whether the Bill will be enacted before the end of this Government. If not, we will have to start the whole process again and produce new heads of the Bill.

We will not get an answer to that.

I hope the media will ask the question. I commend the Chairman and the groups who made submissions and the process conducted by the committee. It has been a useful process and should be a model for further legislation. The process works and will improve and speed up over time. It has been a useful exercise.

Thank you.

I concur with those sentiments. The process has been useful in teasing out the issues and hearing the views of witnesses. I hope the witnesses have also found it a fruitful exercise. The best we can do now is to help the legislation proceed and ensure our work has not been in vain. I commend the work of the Chairman and committee officials, particularly Mr. Ronan Lenihan, who have done a great deal of work in this area which needs to be acknowledged. I also thank Ms Sadhbh McCarthy.

The two Deputies must have safe seats.

Mr. Dooley has made the valid point that the Government is proposing to increase from 21 to 78 the number of appointments that can be made. The Government's not inconsiderable footprint, already evident, will increase dramatically under this proposal. I ask the Chairman, a self-respecting member of a political party, how he would feel if he had at his disposal the appointment of 78 people to a board supposed to be impartial thereafter. Would he feel offended if the people in question acted impartially? Would he feel they had to follow a particular line? It speaks for itself.

I echo the comments about the committee's consultant, as well as the clerk and the rest of the staff. I thank those who contacted the committee on-line. We have followed this up in the last few days. I apologise for not being able to be here this morning.

I would like to comment on the structure of the Broadcasting Authority of Ireland. My preference would be for a regulator like Ofcom in the United Kingdom. I do not trust some of the structures we have seen in the past. I am interested in some of the ideas proposed by my colleague sitting beside me. I would prefer to see the establishment of an independent regulator for the national public service broadcasters. Fundamentally, I do not agree with the BAI structure proposed. The new Government will be grateful for what has been done and will build on it. We will pass the shorter broadcasting Bill which relates to digital services and broadcasting to the Irish diaspora because it is urgently needed. The Government should reconsider the Bill under discussion at this meeting.

This began with the Government Chief Whip, Deputy Kitt. The Government asked the committee to help it to decide which Bill would be used for the pilot scheme for e-consultation, as part of the e-parliament process. The proceedings of the Dáil and Seanad are already being webcast. This is the first committee to have its meetings webcast. I hope other committees will do likewise, in order that eventually we will be able to webcast every committee in the Houses, in line with the commitment of the Oireachtas to the e-democracy and e-parliament process. I pay tribute to the Chief Whip, the Taoiseach and rest of the Government. I mention the Minister, Deputy Noel Dempsey, in particular, because he suggested that this Bill should be used in the pilot scheme.

During the various public hearings in the last couple of days the members of the committee have examined the 12 issues selected. As I said, we have been on a journey of learning about the issues which arose from the draft ministerial broadcasting legislative proposals. The e-consultation project has been a positive experience. It is the first time such a project has been pursued anywhere in the world, as far as I am aware. It is the first time a sovereign national parliament has engaged in such an open and extensive process of consultation with citizens on legislation that will have a significant direct impact on their day-to-day lives. The draft ministerial broadcasting legislative proposals will lead to the development of a single regulatory environment that will change the structure of RTE, the national public service broadcaster. It will represent the single biggest change in the broadcasting sector since the inception of RTE.

I thank everybody who has participated in this process. I thank those citizens who visited and registered on the e-consultation website, submitted observations, attended public meetings and followed the proceedings on the Internet in the last two days. I reiterate that the website has received more than 60,000 hits and 467 submissions have been received. A significant number of the hits originated from the link on the website of RTE. I hope everyone will take the opportunity to use the discussion forum on the website which will be available until 24 January. If any of the representatives who have appeared before the committee in the last two days are asked by the university groups evaluating this process to give feedback, I hope they will assist them in that matter.

I join my colleagues on the committee in thanking the staff, including the clerk to the committee and the committee secretariat, who have made substantial back-up facilities available to the committee throughout this process. This is the 100th meeting of the joint committee since it was put in place in October 2002. There have also been meetings of the sub-committees dealing with fisheries and broadband services, as well as other committees. I will not mention the number of hours for which the committee has met because the media will be afraid to write about the matter tomorrow but it is significant that this is the 100th meeting of the committee.

I thank the broadcasting unit and the ICT unit for facilitating the webcasting of the committee's proceedings. The transcript of the proceedings will be accessible via the archive on the Oireachtas website and will be made available to all concerned. I thank the editorial staff who will edit all the comments and contributions made in the last two days. I also thank the ushers and the rest of the staff of the Houses who have worked so hard for us since yesterday morning. I thank the committee's consultant, Ms Sadhbh McCarthy, who is sitting beside me for the excellent work she has done in the last six to eight weeks, including over Christmas, to help the members of the committee to prepare for the work we have done yesterday and today.

I thank the representatives for putting up with us during this legislative process. They are to be commended for the time, attention and detail they have devoted to the process. It is greatly appreciated.

The members of the committee which meets two floors underground often think that our meetings are a sort of preview of what it will be like to be dead.

I have thanked all concerned.

The joint committee adjourned at 4.10 p.m. sine die.