Committee Reports > List of Committees > Joint > 2006 > Committee on Communications, Marine and Natural Resources > Report No. 08 - Consideration, with major stakeholders, of matters of interest in the context of proposed Broadcasting Legislation

Tithe an Oireachtais

An Comhchoiste um Chumarsáid, Muir agus Acmhainní Nádúrtha

An tOchtú Tuarascáil

Breithniú, fara mórpháirtithe leasmhara, ar nithe is ábhar leasa i gcomhthéacs na Reachtaíochta Craolacháin atá beartaithe

Iúil 2006

Houses of the Oireachtas

Joint Committee on Communications, Marine and Natural Resources

Eighth Report

Consideration, with major stakeholders, of matters of interest in the context of proposed Broadcasting Legislation

July 2006

Contents

Page No

Appendices

The Joint Committee wishes to advise that submissions received and transcripts of the hearings are available on the Oireachtas web site.

Chairman’s Preface

It is with personal satisfaction that I welcome this report of the Joint Committee. One of the most important areas within the remit of the Joint Committee is broadcasting. The technology is changing, with the majority of homes now having televisions capable of receiving satellite and digital TV.

In just over 40 years of television in Ireland, we have seen major social and cultural transformations. I would be reluctant to attribute all of this to the advent of television, but it would be a disservice not to recognise the part that broadcasting has played. In this regard I single out the establishment of TG4, as TG4 is a reflection in how Ireland has taken its place among the nations; that Ireland has the maturity to broadcast in our own language.

The Joint Committee in deciding to consider and report on broadcasting agreed that it should not be prescriptive. The Joint Committee was cognisant that there was a commitment from both the current and former Ministers to introduce legislation on broadcasting. To add value to the legislative process the Joint Committee considered that the best approach was to bring together the parties to the debate and, in the public forum that the Committee structure of Dáil Éireann provides, bring out the issues which the major stakeholders considered should be addressed in the forthcoming legislation.

I am conscious of the effort that all the groups and individuals made in their submissions to the Joint Committee and I wish to express my gratitude for the work and effort that was made in informing this debate.

This report, based on the hearings and submission which the Joint Committee engaged in, seeks to identify the issues which the participants have identified.

I would like to extend my appreciations to the other members of the Joint Committee Deputies Thomas Broughan, Bernard J. Durkan, Martin Ferris, Dr. Dermot Fitzpatrick, Peter Kelly, Tom McEllistrim, Denis O’Donovan, Fiona O’Malley, John Perry, Eamon Ryan together with Senators Michael Finucane, Brendan Kenneally, Marc MacSharry and Kathleen O’Meara for their commitment and dedication during all the work undertaken at the hearings and in the preparation of this Report.

I would like on behalf of the Joint Committee to pay a special thanks to the staff of the Houses of the Oireachtas, the staff in the Office of the Editor of Debates, the staff in the Broadcasting Unit, the sound engineers, the Director of Committees, Mr. Art O’Leary, the Deputy Director Mr. Padraic Donlon, the Clerk to the Committee, Mr. Ronan Lenihan and all the staff of the Committee Secretariat in particular, Mr. Peter Malone and Ms. Siobhan Murtagh for all their hard work and assistance to the Members in bringing this report to finality.

Noel O’Flynn T.D.

Chairman of the Joint Committee on Communications,

Marine and Natural Resources

July, 2006

Acknowledgments

The Joint Committee received 19 submissions and 49 Organisations or Individuals made presentations at the oral hearings of the Joint Committee. The Joint Committee wishes to expresses its deep felt gratitude for the work and effort that was made by all concerned, including;

1.National Union of Journalists (NUJ)

2.Sky

3.RTÉ Trade Union Group:

4.Dublin Community TV (DCTV) & Community Radio Forum of Ireland:

5.BCI

6.Screen Producers Ireland

7.City Channel

8.Setanta

9.North West Television

10.Irish Hard of Hearing Association

11.NTL & Chorus

12.TV3

13.TG4

14.RTÉ

Introduction

The Joint Committee was aware of the great interest in and the complexity of this subject. There have been huge changes in technology in broadcasting, not least being digital television which will necessitate the eventual switch-off of the analogue transmission service. Further, the Joint Committee notes the DAB digital radio pilot project which RTÉ has undertaken which is reflective of how the National Broadcaster continues to keep pace with developments. The Joint Committee is also conscious of the importance of satellite broadcasting and the potential changes that broadband can bring. The Joint Committee received 19 submissions (listed at Appendix 3 — the submissions are available on the Oireachtas web site) and 49 Organisations or Individuals made presentations at the oral hearings (listed at Appendix 4 — the transcripts of the hearings are available on the Oireachtas web site). The Joint Committee, conscious of the effort that went into producing the large volume of submissions wishes to express, to all concerned, its deep felt gratitude for the work and effort that was made in informing this debate.

The Joint Committee, aware that legislation on broadcasting had been promised for 2005, set in train a procedure to add value to any proposed legislation by holding a full day of hearings with the major stakeholders on the 13^th July 2005. At that time it was envisaged that the Broadcasting Bill would be published in December 2005. However, this did not prove attainable and the Government Chief Whip, Minister Tom Kitt T.D. sought to establish, through the progression of Dáil Reform, a pilot project that would seek to engage the public, through technology, in a process of eConsultation on the proposed Broadcasting Bill.

By order of the Dáil and Seanad on the 6^th July 2006, in regard to proposals for legislation in relation to broadcasting that may be submitted to it by the Minister for Communications, Marine and Natural Resources, the Joint Committee, shall, prior to such legislation being published cause the proposals, together with such related documents as it thinks fit, to be published to the Internet and advertise details thereof in the national newspapers as soon as may be after the proposals have been submitted to it; invite and accept submissions from interested persons and bodies, in a format to be decided by the Joint Committee, through the Internet and such other means as it considers appropriate in relation to the proposals (the Order is at Appendix 5).

The Joint Committee, in publishing this report of its hearings on the 13^th July, is not making a series of recommendations. Rather, in recognition of the Order of both the Dáil and Seanad and to add value to the process the Joint Committee considers that the best approach is to publish, in this report, the issues which the major stakeholders have identified. Accordingly, this report records, in as far as it was practical, the issues that the various groups and submissions addressed.

Issues identified to Joint Committee on Communications, Marine and Natural Resources as being issues which should be addressed in the proposed legislation on Broadcasting

National Union of Journalists (NUJ)

1.That regulation should be “Light-touch regulation”.

2.That regulation of content should be separate from regulation of licensing.

3.That if regulation is to be confined to one regulator then there should be two separate panels, one for public sector broadcasting and the second for the private/commercial sector.

4.That there should be transparency in the decision-making process and the methodology applied by the regulatory body.

5.That in all future legislation the status of employment for all broadcasting professionals working in all areas of broadcasting including the print media, must, including the transfer of undertakings, be set out in clear and unambiguous terms.

BskyB

1.Sky advised that given the absence of specific details about future legislation it was not in a position to make a specific submission. However, at the oral hearings Sky advised that it had plans to launch high definition television in Ireland. Therefore, the establishment and maintenance of a stable, market-led, commercial environment was necessary to encourage further investment by new and existing service providers and that the current commercial, legal and regulatory regime was conducive, in the opinion of Sky, to fostering such investment.

RTÉ Trade Union Group (RTÉ TUG)

1.That any single regulator should have separate panels to regulate both public sector and commercial broadcasting sectors.

2.That separate panels, with a core number of cross-over members, would ensure a consistent regulation of broadcasting while respecting the ethos of each sector.

3.That to ensure consistency across the sector, the provisions of any new broadcasting legislation should be extended to include satellite broadcasters.

4.That the development of a national digital transmission platform is essential to ensure that Irish broadcasting survives in a digital era.

5.Failure to provide a digital transmission platform, in the near future, would be catastrophic for the Irish broadcasting sector, both public and commercial, as the transmission of material produced for Irish audiences could potentially lie in the hands of multi-national satellite broadcasters.

Dublin Community TV (DCTV)

1.That the Broadcasting Funding Scheme (BFS) should be revisited to address the following:

A.That funding can be put in place to support the initiation of community television with core funding being statutorily provided on an ongoing basis.

B.That provision should be made for training and capacity-building within the community sector.

2.That, under digital terrestrial television, there should be space for community television and community interests to be involved in its engineering. It is important to ensure it is configured so that it can be utilised by the community sector.

3.That statutory provision be made for effective and informed representation on any new regulatory body set up and which deals with the community media and community radio and television interests.

Community Radio Forum of Ireland (CRAOL)

1.That community radio is clearly and distinctly legislated for as not-for-profit, democratic, editorially independent and access based radio.

2.That community radio is given representation on the board(s) of any new broadcasting authority on its own nomination through CRAOL.

3.That any newly created regulator continues to develop and build on the existing commitment to supporting the development of Irish community radio and the work of the CRAOL network.

Broadcasting Commission of Ireland (BCI)

1.That BCI continues to be the established single broadcasting content regulator for the broadcasting sector and that it be renamed as the Broadcasting Authority of Ireland (BAI) for the following reasons;

AAs regulatory principles should be applied uniformly for public and private broadcasters.

B.As many of the existing regulations are equally applicable to all broadcasters.

C.As the European Commission requires that monitoring of public broadcasters be undertaken by an independent body.

2.BCI seeks to amend Section 38 of the 2001 Act to facilitate the licensing of local television channels on a more attainable basis.

Screen Producers Ireland

1.That the ownership of rights be vested in independent producers and independent production companies.

2.That the state broadcaster be legislated to invest in the indigenous feature film industry.

3.There is a strong cultural and economic precedent internationally for the State broadcaster to broadcast minimum quotas of indigenously produced children’s, young peoples and animation programming and this should be legislated for.

4.To uphold the principle of minority language protection TG4 should be established as an independent entity with its own authority, as the Minister has announced he intends to do, but such independent status should be statutorily recognised in the upcoming legislation with a guaranteed level of funding that ensures the independence of TG4.

5.Statutory recognition of Screen Producers Ireland.

City Channel

1.That the terms of Broadcast (Funding) Act 2003 should be reviewed so as to allow local television services benefit from the fund.

Setanta Sports Channel

1.That the terms of the Broadcast (Funding) Act 2003 should be reviewed as the legislation may inadvertently have been framed in such a way that broadcasters, other than RTÉ, may have difficulty in gaining access to the funds available under the Scheme.

2.That the proposed legislation should include provisions which ensure a level playing field for all operating in the Irish broadcasting market and which encourages new entrants to the market.

3.That the legislation should also define RTÉ’s public service remit, the manner in which it utilises licence fee income, the manner in which it operates in the Irish television market and how it interacts with other broadcasters operating in the market.

Northwest TV

1.That the existing legislation should be amended so as to enable local TV to be launched in Ireland this to include the use of the existing analogue spectrum where available and appropriate.

2.That in the new digital environment a new tier of local TV broadcasting should be licensed by the regulator for the entire island.

3.That local TV licences should be awarded under a similar tender system as is used to licence local radio.

4.That any new licensees should be legislatively required to engage with local government and local agencies to work towards delivery of relevant e-government services.

5.That local TV should be given flexibility to propose its own transmission arrangements subject to the broadcasting authority and ComReg.

6.That local TV licensees should have the legislative flexibility to deliver additional local audio, video, text & interactive services.

Irish Hard of Hearing Association

1.A single Act must include and update all existing pieces of legislation on subtitling.

2.That the question of subtitling on all broadcast channels (analogue and/or digital terrestrial and satellite) be addressed legislatively.

3.That the statutory funding of subtitling be addressed.

4.That there is a need for a policy that develops a pool of skilled subtitlers.

5.That there is a need to address the Television Without Frontiers Directive as it has allowed loopholes in service provision to develop.

6.That subtitling should be a statutory obligation.

7.That special provision should be made for people with a dual sensory disability — blind and deaf.

NTL

1.That the main priority of Irish digital broadcasting policy should be to encourage that 33% of analogue terrestrial broadcast only viewers to go digital. There has not been sufficient focus on this and it has not been drawn out to any large extent in the debate about digital terrestrial television.

2.The Broadcasting Acts contain certain must-carry obligations in respect of Irish terrestrial television. However, Article 31 of European Directive 2002/22 states that must-carry obligations should only be imposed where they are necessary to meet the clearly defined general interest objectives and shall be proportionate and transparent. NTL would like that requirement to be implemented in Irish broadcasting legislation.

Chorus

1.That the legislative model, which was introduced in 2001, for licensing allowed the Minister to designate two companies (a transmission company and a multiplex company). Since then we have had the Communications Regulation Act 2002, this prohibits the Minister from giving directions to ComReg in regard to licensees, licences and the award of spectrum. As these two legislative measures appear to conflict with one another, there is need for clarity in that regard.

2.Further development since 2001, namely, European Directive 2002/20, which provides for a framework for the award of spectrum on the basis of criteria which are objective, transparent, non-discriminatory and proportionate. This provides for a type of carve-up for public interest type objectives, but DTT licensing provisions in the 2001 Act may not be fully in accord with the existing regulatory framework & therefore need to be revisited.

3.That there are probably too many legislative measures addressing the same issue; the Radio and Television Act 1988, the Broadcasting Act 2001, various Competition Acts (which includes media ownership provisions & the Television Without Frontiers directive). The legitimate public interest objective should be to consider issues such as plurality of media ownership and therefore both competition and broadcasting needs to be harmonised.

TV3

1.That there should be a strong independent market regulator (as required by EU Law). RTÉ should be held to account through a properly defined Public Service Mandate will have the benefit of ensuring quality programming from the state funded broadcaster and will also allow the indigenous Irish broadcasting business to grow.

2.That investment can only be encouraged by a more flexible regulatory regime.

3.Supports the EU’s revision of the Television Without Frontiers Directive.

4.That there is a need for RTÉ to be controlled so as to encourage competition, to produce more Irish programming for Irish audiences and to give value for money.

5.That there is a need to revamp the Broadcast Fund and make it relevant to all Irish broadcasters.

TG4

1.That there be an immediate move to statutory independence. This measure is vital for the continued success of TG4.

2.That the forthcoming legislation must include statutory provision for the introduction of specific funding mechanisms for TG4 to ensure adequate and ongoing funding commensurate with its remit.

3.That the legislation address the funding of the independent production sector — TG4’s main supplier of Irish language original content. This sector is under severe financial pressure and some companies may not survive. In this regard a strong television skills base has been established among Irish Language television companies and they are largely dependent on TG4 for commissions but due to tight budgets, skilled personnel and companies are leaving the industry.

4.TG4’s priority is to have a universal service with primary position on all platforms throughout the island. In this context TG4 awaits Government initiatives (legislative and policy) on the introduction of an indigenous digital television platform for Ireland.

RTÉ

1.It was pointed out that there appears to be misapprehension that the European Union requires independent regulation to be a single regulator. The emphasis is on independence rather than specifying the number of regulators. There is no specification for one single regulator.

2.RTÉ has a preference for dual regulation. However, if a unitary model is adopted, clarity of role and separation of responsibility must be build into the regulatory structure.

3.RTÉ proposes a unique offering for the Irish public with programming particularly relevant to them, made at home, and about those audiences. In return for the receipt of public moneys, RTÉ make certain commitments; there is no such obligation for any other broadcaster with the exception of TG4. It is part of the public service approach to programming that in return for certain moneys, certain obligations are fulfilled and this should be enshrined in legislation for all who access funding from the licence fee.

4.RTÉ believes that a mixed-funding model is appropriate for the future here (as is the European norm). RTÉ is in receipt of dual funding, but doesn’t have the same regulation regarding minutage of advertising per hour. RTÉ is allowed approximately up to 50% less minutage per hour than TV3 and the same applies to radio. This should be born in mind when making comparisons about ‘level playing fields’.

5.RTÉ does not suggest that the Ofcom model of a single regulator should be used in Ireland, but noted that in so far as it is a regulator of the general market in the UK, it does not regulate BBC content. RTÉ pointed out that the UK regulator has very clearly defined ‘cabinets’ of responsibility where specific areas are catered for which are referred back to the centre, overall, for a co-ordinated view of everything and it is possible that this model could succeed here. Once specific areas of responsibility and concern have been identified the manner in which they should be addressed can be considered and this could be catered for under a single regulator.

6.The Ofcom model was at least seven years in the making. There was an enormous amount of public debate and attention invested into how it should be statutorily set out and it functions as a converged regulator. There are specific distinct functions within that regulatory body, such as dealing with the telecommunications infrastructural area, content and complaints, the news media and the development of content regulation. Distinct functions within that format, for which the persons responsible report to a board, reflects the policy objectives set by both the DTI and the DCMS in government and this appears to be working extremely well.

7.RTÉ view is that TG4’s future is better addressed within the totality of a unitary Public Service Broadcast structure with a clearly defined remit for its core activity.

8.Ireland lags behind in rolling out digital broadcasting. Some receive digital satellite TV from Sky and a small minority have Freesat from BBC. For reasons of rights and spill over, RTÉ is of the view that unencrypted digital satellite is not a viable option for Ireland in the medium term. Ireland also has digital cable which is not capable of offering universal free-to-air coverage. It is likely these technologies will continue, but for reasons of sovereignty and regulation, digital terrestrial TV is an integral part of the best answer for Ireland. The RTÉ Authority has articulated that view very clearly in the past and it is a matter of some urgency that Government finalise their plans for it. RTÉ welcomes that fact that the Dept of Communications, Marine and Natural Resources has asked for declarations of interest in establishing a pilot programme for DTT in Three Rock and Clermont Carn.

9.Regarding archiving, most of RTE’s material has been amassed thanks to public support of the licence fee over the years. Primary consideration for RTÉ into the future is preservation of that material which is being transferred to digital. However, the solving of genuinely complex questions surrounding access for the public and other broadcasters who may wish to exploit the material need to be addressed. RTÉ believes that a national approach to an audio-visual archive policy is required and should extend beyond broadcasters into many other public institutions which have gathered significant, valuable assets. A unified policy that considers questions of access, copyright and exploitation is required and this should be legislated for.

Following the hearings three submissions were received, from the Independent Broadcasters of Ireland, ComReg, and Mr. Muiris MacConghail. These submissions have been synopsised as follows.

Independent Broadcasters of Ireland

1.That there should be a single regulator for the broadcasting sector.

2.That the proposed Broadcasting Authority of Ireland should be broadly based, representing a spectrum of interests and established along similar lines as the current Broadcasting Commission of Ireland i.e., with an independent board supported by permanent civil service staff. All regulatory powers should be given to the new BAI.

3.IBI favours retention of as many members as possible of the current BCI board on new BAI board when established. This would guard against situation where an inexperienced board are faced with a steep learning curve at a period of crucial change in industry.

4.That it would not be appropriate to have members of RTÉ Authority on board of the new BAI.

5.That due to the substantial increase in licence fee granted to RTÉ the new regulator should be established as soon as possible. In the interim, all regulatory powers be given to the current BCI and the RTÉ Authority should be re-constituted with a Board of Directors as soon as possible.

Commission for Communications Regulation (ComReg)

Their objectives under Communications Regulation Act 2002 include -

1.Promotion of competition.

2.Contribution to development of internal market.

3.Promotion of interests of users within Community in relation to provision of electronic communications networks and services.

4.Ensuring the efficient management and use of the radio frequency spectrum in the State.

ComReg’s submission summarised their role in relation to the broadcasting sector - this role is very much related to the provision and management of access to radio spectrum for broadcasting networks. ComReg has no function in relation to the regulation of content and operates to remit.

Mr. Muiris MacConghail

Mr. MacConghail submitted a paper dealing with two issues in terms of drafting future legislation on broadcasting; namely governance and financing particularly in the domain of public service broadcasting. Mr. MacConghail raised the following points;

1.Public service broadcasting must be available universally and on a free to air basis. Universal distribution and access is best effected by satellite.

2.Public service broadcasting at its best is universal in its construct and ambition.

3.Public service broadcasting has become a handy phrase of dismissal denoting well meaning but audience losing content that is too boring for the general audience and unlikely to achieve ratings capable of income generation.

4.Irish television has arrived at a crisis in the quality and quantity of indigenous programming and in the overall pattern of scheduling. Commercial television — at present one channel but more to come — does not produce any significant home produced programming.

5.If it is Governments’ intention to promote and enable the widest possible choice of domestic television/radio which maintains and secures quality programming, then the question of funding and the license fee must be addressed in any future legislation.

6.The License fee is an inefficient manner in which to fund broadcasting. It is an unjust tax, is discriminatory and disregards capacity to pay.

7.The board of RTÉ might be conveniently composed of three full time commissioners of public service broadcasting working with an executive. The Commissioners to be appointed to full time positions as public servants under the public appointments commission and for a period of seven years. One of their number being chair. The Commercial Broadcasting sector to be similarly organised with three commissioners of Commercial Broadcasting.

8.Management of the broadcasting distribution system on satellite, terrestrial, cable, MMDS or broadband internet to be a function of an independent transmission technical authority and licensing authority.

9.All four bodies (RTE, Commercial Broadcasting, BCC & Film Censor) report via the Oireachtas Committee on Communications, Marine and Natural Resources to the Minister for Communications.