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Tithe an Oireachtais An Comhchoiste um Chumarsáid, Muir agus Acmhainní Nádúrtha An Deichiú Tuarascáil Breithniú, moltaí agus tátail maidir le comhchomhairliúchán an Chomhchoiste i dtaobh Dhréacht-Scéim Ghinearálta an Bhille Craolacháin. Aibreán 2007 Houses of the Oireachtas Joint Committee on Communications, Marine and Natural Resources Tenth Report Considerations, recommendations and conclusions on the Joint Committee’s consultation on the draft General Scheme of the Broadcasting Bill. April 2007 ContentsPage No 3. Chairman’s preface. 5. Acknowledgments. 7. Executive Summary. 9. Considerations of the Joint Committee 13. Summary of the Findings, Observations and Recommendations of the Joint Committee. 19. Chapter 1 Part I: Preliminary and general matters. 21. Chapter 2 Part II: Broadcasting Authority of Ireland. 38. Chapter 3 Part III: Duties, Codes and Rules. 48. Chapter 4 Part IV: Redress and Right of Reply. 53. Chapter 5 Part V: Enforcement of regulatory decisions. 56. Chapter 6 Part VI: Television licence. 63. Chapter 7 Part VII: Contract award. 66. Chapter 8 Part VIII: Public service broadcasters. 80. Chapter 9 Part IX: Provisions specific to Radio Teilifís Éireann. 84. Chapter 10 Part X: Provisions specific to Teilifís na Gaeilge. 88. Chapter 11 Part XI: Allocation of Public Funding. 91. Chapter 12 Part XII: Transitional provisions. Appendices Appendix 1 Members of the Joint Committee. Appendix 2 Orders of reference establishing the Joint Committee. Appendix 3 Orders of Dáil and Seanad Éireann of the 6th July 2006. The Joint Committee wishes to advise that the observations submitted, webcast meetings of the 10th an 11th January 2007 and the contributions to the discussion forum, together with the Minister’s Draft General Scheme for the Broadcasting Bill 2006 are available on the website – www.econsultation.ie Chairman’s PrefaceOn 6th July 2006, the Joint Committee on Communications, Marine and Natural Resources was instructed by Dáil Éireann and Seanad Éireann to conduct a public consultation exercise regarding proposals for legislation in relation to broadcasting that the Minister for Communications, Marine and Natural Resources may send to the Joint Committee. Those proposals in the form of the Draft General Scheme for the Broadcasting Bill 2006 were submitted to the Joint Committee on 6 September 2006. The eConsultation process is a new parliamentary initiative proposed initially by Minister Tom Kitt TD Government Chief Whip and Minister responsible for the Information Society. I want to thank both Minister Tom Kitt T.D. and Minister Noel Dempsey TD, Minister for Communications, Marine and Natural Resources who afforded the Joint Committee the honour and opportunity to undertake this ground-breaking pilot project. For the first time in the history of Parliament, Information and Communications Technologies (ICTs) were used to provide for the Houses of the Oireachtas and, in this instance, the Joint Committee on Communications, Marine and Natural Resources the opportunity to engage directly with the public through the Internet. I am delighted that this pilot project was conducted by the Joint Committee on Communications, Marine and Natural Resources as ICT, Broadband, Mobile and Fixed-line telephony, Broadcasting and Licensing Local Radio have been major topics that have exercised the Joint Committee. The Joint Committee was established on the 16th October 2002 and at its third meeting, November 17th 2002, it engaged in its first debate on broadcasting when the Joint Committee considered an increase in the licence fee. The Joint Committee have published two reports on broadcasting; its first report, published in May 2003 – Local Radio: The Licencing Process - a Review of the licencing system as experienced by Local Radio Stations in Ireland considered how local radio should be licensed and included a recommendation for an appeals mechanism. The second report on broadcasting, published in July 2006 - Consideration, with major stakeholders, of matters of interest in the context of proposed Broadcasting Legislation recorded the views of the major stakeholders who engaged with the Joint Committee in a full day of debate in 2005 and did not, unusually for a Joint Committee report, propose any recommendations; rather the Joint Committee recorded the views of the major stakeholders as to the issues which should be addressed in future broadcasting legislation. That future legislation became the draft General Scheme which the Joint Committee has engaged with the public in this innovative eConsultation pilot project and which is the subject of this report. Therefore, as Chairman of the Joint Committee I am pleased to see that the Joint Committee have agree to publish this report as, in my opinion, eConsultation is a future development that will exercise parliament more and more as citizens seek to become more informed and influence the legislation that we, as parliamentarians, enact. In closing I would like to extend my appreciation 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 (Vice Chairman), Eamon Ryan together with Senators Michael Finucane, Brendan Kenneally, Marc MacSharry and Kathleen O’Meara for their commitment, dedication and expertise that they brought to the considerations of the Joint Committee which has led to the publication of this Report. I would also like to record my appreciation and thanks and that of the members of the Joint Committee to the Clerk to the Committee, Mr. Ronan Lenihan, to Ms. Siobhan Murtagh who provide excellent administrative assistance and to the members of the Oireachtas eConsultation working group (Mr. Padraic Donlon, Mr. Tom Malone Mr. Leo Bollins, Mr. Ben Dunne, Ms. Patricia Doran and the aforementioned Clerk) for all their hard work and assistance in ensuring that this project was a success. I would also like to pay a special thanks to Ms. Sadhbh McCarthy for the work, effort and expertise she put into this assignment and for the invaluable advice and guidance she provided to the members of the Joint Committee. I would also like to thank the Universities eConsultation Research Group led by Dr. Honor Fagan, NUI Maynooth and also comprising Dr. David Newman, Queens University Belfast, Dr. Michael Murray, NUI Maynooth and Mr. Paul McCusker, Letterkenny Institute of Technology. This group was engaged to undertake an independent evaluation of the eConsultation process and its report is expected later this month. Finally, I extend out thanks to Ms. Patricia Donald and Mr. Kevin Higgins, Advice NI, who acted as moderators for the discussion forum. Noel O’Flynn T.D. Chairman of the Joint Committee on Communications, Marine and Natural Resources 18 April, 2007 AcknowledgementsThe Joint Committee wishes to thank the following
Executive SummaryBackgroundThis report is the result of a parliamentary initiative proposed initially by Minister Tom Kitt T.D., Government Chief Whip and Minister responsible for the Information Society. On 6th July 2006, the Joint Committee on Communications, Marine and Natural Resources, by the Order of Dáil Éireann and Seanad Éireann, was required to conduct a public consultation exercise, through the Internet and such other means as it considered appropriate, regarding proposals for legislation in relation to broadcasting that the Minister for Communications, Marine and Natural Resources may submit to the Joint Committee. These proposals in the form of the Draft General Scheme for the Broadcasting Bill 2006 were submitted to the Joint Committee on 6 September 2006 This report is the result of a parliamentary eConsultation pilot project which the Joint Committee engaged in. The process commenced with the launch of the www.econsultation.ie website in September 2006, where members of the public, broadcasters, special interest groups and other stakeholders were invited to submit their observations on the published General Scheme through an online forum. The Joint Committee received over 450 submissions through this eConsultation process in addition to 12 submissions – by traditional means, i.e. in written format. The Orders of the 6th July set out in paragraph (c) (i) of those Orders that the Joint Committee should consider submissions received (or a synopsis of such submissions) and, based on such consideration determine those elements of the proposals (or themes common to a number of such elements), if any, that should be supplemented by oral evidence. The Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration through pubic hearings which would also be webcast as an integral part of the eConsultation process. The Joint Committee agreed that, as observations had an interrelation to more than one Part or Head of the General Scheme, it would be more correct to group the matters raised into eleven common themes or issues as follows:-
In selecting the above themes the Joint Committee agreed that germane observations received related to the following parts of the General Scheme PART II – Broadcasting Authority of Ireland PART III - Duties, codes and rules PART IV - Redress PART V - Enforcement of regulatory decisions PART VI - Television licence PART VIII - Public service broadcasters – common provisions PART X - Provisions specific to Teilifís na Gaeilge. PA|RT XI – Allocation of Public Funding Stakeholders who had made online or written submissions were invited to attend the webcast public hearings of the 10th and 11th January 2007. The Joint Committee addressed questions and raised issues with those stakeholders in attendance covering these eleven themes. The final step of the eConsultation process was an e-discussion forum which was initiated during of the webcast public hearing relative to each theme. Considerations of the Joint CommitteeOverall, the Joint Committee welcomes the establishment of the Broadcasting Authority of Ireland (BAI) and its two statutory committees - the Compliance Committee and the Contract Awards Committee. The Joint Committee supports the introduction of a new and modern regulator for the broadcasting sector and considers the main thrust of the General Scheme to be in accordance with the objectives of a publicly funded national broadcast service allied to a vibrant and commercially viable independent broadcast sector. In the considering the observations submitted and the contributions at the public hearings, the Joint Committee notes the concern of RTÉ that the new BAI will not provide the same protections and autonomy for public service broadcasting. However, the Joint Committee found nothing in the General Scheme to support this view. The Joint Committee did note the concerns raised by stakeholders in relation to the increased use of Ministerial appointments under the General Scheme. The number of Ministerial appointments would rise significantly if the proposed legislation, in its current guise, was passed. The Joint Committee recommends that the proposed legislation be amended to reduce the number of Ministerial appointments being proposed in the General Scheme. The Joint Committee noted with interest the issues raised in relation to quotas for news and current affairs content which are imposed on commercial broadcasters. The General Scheme will allow derogations from this requirement at the behest of the BAI and, accordingly, the Joint Committee recommends flexibility and equitable treatment for both public sector and independent broadcasters in this regard. The Joint Committee having given full consideration to the observations and contributions at the public hearings from both the broadcasters and the independent radio production sector accepts that introducing a quota for independently produced radio programmes will stimulate the independent radio sector as previous legislation did for the independent television sector. Therefore, in this regard, the Joint Committee recommends that the differentiation between television and radio be removed. Further, what constitutes ‘independent producer’ must be clearly defined. The Joint Committee fully supports that the proposed legislation incorporate Section 53 of the Disability Act 2005. Further, the Joint Committee recommends that the targets in relation to subtitling for the hard of hearing be set in primary legislation so as to ensure the maximum use of technology in the shortest timeframe possible. With regard to the provisions relating to Redress and Right of Reply, the Joint Committee acknowledges that these should be enacted. If enacted as proposed the General Scheme would place a much greater administrative and procedural overhead on broadcasters. However, these provisions are an important feature in that they allow for a proportionate, low cost and expeditious remedy to people who consider that their reputations have been damaged by an assertion of incorrect facts in a broadcast. The Joint Committee, whilst supportive of the General Scheme, accepts the concerns which broadcasters expressed in respect of the potential of the provisions to become a ‘cranks charter’. Accordingly, the Joint Committee recommends strongly that a more complete definition with greater clarification as to what constitutes a frivolous or vexatious complaint would allay the legitimate concerns of broadcasters. The Joint Committee noted the divergent and strongly held opinions in relation to the definition and interpretation of what constitutes a television set for the purposes of licence fee. The Joint Committee noted that the proposed changes to the definition and interpretation could adversely affect the perception of Ireland as a global leader in technological developments. To enact the General Scheme, as proposed, would mean imposing a licence fee on not alone PCs, laptops and even mobile phones, but also on software. The argument that only one such licence is needed for each household may not hold true for the business sector which could then suffer an adverse impact. Accordingly, the Joint Committee recommends that this part of the legislation be reviewed. In the area of advertising and sponsorship the Joint Committee does not consider it appropriate that the Minister or the Oireachtas should have any oversight in relation to content and, therefore, recommends that this part of the legislation should be reviewed. Additionally, the Joint Committee considers, having regard to the provisions of the Television Without Frontiers Directive, that the current regulation and quotas regarding advertising should be examined so as to include sponsorship. The Joint Committee shared the concerns of stakeholders in relation to the proposed changes to the makeup of the Audience Council. The Joint Committee in reviewing the observations and contributions during the public hearings supports the view that the current structure of the Audience Council is far preferable to that which is being proposed. Therefore, the Joint Committee recommends that this part of the General Scheme be reviewed so as to ensure that a more equitable and representative body will be in place under the new BAI. The Joint Committee noted the divergent views expressed in relation to the code of fair trading practice being proposed in the General Scheme. The Joint Committee in its considerations on this issue took account of the views of RTÉ, the Independent Production Sector, Enterprise Ireland and the Competition Authority. The Joint Committee accepts that the code of fair trading practices will enable the indigenous production sector to open up new opportunities in international markets and leverage Irish participation in the global digital media market. The Joint Committee agrees that any issues regarding ownership of rights should be decided in a manner that best supports those objectives. The Joint Committee noted the contributions throughout the eConsultation process in regard to the special status of the Irish language. The Joint Committee agrees that additional clarification and explicit recognition that protects and promotes the Irish language must be included as an objective of the BAI. Furthermore, the Joint Committee recommends that the Duties, Codes and Responsibilities of the BAI should be reviewed so as to reflect the need to protect and promote the Irish language and our unique Irish heritage and culture in both the public and the independent broadcast sectors and across both radio and television. The Joint Committee agreed with stakeholders on the importance of protecting the independence and remit of Telefís na Gaeilge (TG4). However, the Joint committee noted that under the General Scheme the remit of TG4 is entirely under the jurisdiction of the Minister of the day, even to the point whereby the Minister vests in himself the power to remove the Irish language from that remit. Accordingly, the Joint Committee recommends that this section of the General Scheme be reviewed. Summary of the Joint Committee’s Findings, Observations and Recommendations:The Joint Committee having considered the observations submitted, the oral evidence in the two days of public hearings and the comments made in the discussion forum, identifies the following 28 considerations, under the relevant parts of the General Scheme that should be addressed in the context of the final legislation that the Minister may bring forward. Part II: Broadcasting Authority of Ireland
Part III: Duties, codes and rules
Part IV: Redress and Right of Reply
Part V: Enforcement of regulatory decisions
Part VI: Television licence
Part VIII: Public service broadcasters – common provisions
Part X: Provisions specific to Teilifís na Gaeilge
Part XI - Allocation of Public FundingTo emphasis the importance which the Joint Committee attached to the issue that TG4 have adequate financing that gives protection and certainty to TG4, the Joint Committee repeats for Part XI: Allocation of Public Funding, point 2 [above] of Part X: Provisions specific to Teilifís na Gaeilge, namely
Chapter 1Part I: Preliminary and general mattersOverview:Part I proposes the name for the intended Act and provides definitions for a number of terms used throughout the draft scheme of the Broadcasting Bill. Explanation of HeadsHead 1:Short Title and Commencement Explanation of purpose: Proposes a name for the intended Act and proposes to allow the Minister for Communications, Marine and Natural Resources to bring the Act into operation on a phased basis. Subhead (1) contains the standard citation clause. Subhead (2) allows the Minister to bring the Act into operation on a phased basis. Head 2:General interpretation Explanation of purpose: Defines the terms used throughout. The definition of broadcaster is based on Section 2 of the Broadcasting Act 2001. The definition of community broadcaster is based on Section 15 of the Australian Broadcasting Services Act 1992. The definitions of “interests”, “employment” and “ownership” are based on Section 24(5) of the Digital Hub Development Agency Act 2003. The definition of “superannuation benefits” is based on Section 5(2)(g) of the Ombudsman for Children Act 2002 The definition of a television broadcaster is based on S.I. 251 of 1991. Head 3:Repeals Explanation of purpose: Proposes the repeal of certain Acts, in whole or in part, as a consequence of acceptance of the proposals generally. This head makes the standard provision in relation to repeals. Head 4:Expenses Explanation of purpose: This contains a standard expenses provision. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues were raised:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee determined that the observations did not require explicit discussion at the webcast public hearings but could, if necessary, be pursued by members in any general discussion that make take place. HearingsIn the hearings phase of the eConsultation process, the observations were not expanded upon by the stakeholders present. Discussion ForumThere were no discussion forum threads associated with part 1 of the proposed legislation. Final considerations of the Joint CommitteeThe Joint Committee has no recommendations, findings or observations to make in relation to this part of the General Scheme. Chapter 2Part II: Broadcasting Authority of IrelandOverview:Part II provides for the establishment of the Broadcasting Authority of Ireland (BAI) and its two statutory committees - the Compliance Committee and the Contract Awards Committee. The various heads describe the objectives, functions, powers, duties, management structure, corporate governance arrangements and financing of the BAI and its two committees. It is proposed that these bodies will replace the Broadcasting Commission of Ireland (BCI) and the Broadcasting Complaints Commission (BCC). Explanation of HeadsHead 5:Establishment of the Broadcasting Authority of Ireland Explanation of purpose: Provides for establishment of The Broadcasting Authority of Ireland on a date to be decided by the Minister for Communications, Marine and Natural Resources. This provision is based on Section 3(1) of the Radio and Television Act 1988. Head 6:Body corporate and seal Explanation of purpose: Provides for the establishment of the BAI as a body corporate and defines who has authority to act on its behalf. This head provides that the BAI and each of its statutory committees shall operate under the seal of the BAI. Subsections (2) to (5) mirror section 36 of the Digital Hub Development Agency Act 2003. Subsection (6) is intended to address the issue of under whose seal the actions of the Contract Awards Committee and the Compliance Committee will be executed. Head 7:Appointment of Broadcasting Authority of Ireland, Contract Awards Committee and Compliance Committee Explanation of purpose: Provides for the appointment of the BAI, Contract Awards Committee and Compliance Committee by the Government; for minimum and maximum membership of each; and for a minimum number of male and female members in each case. This head outlines the method of appointment and number of members of the BAI and its statutory committees. The provision is based on section (1) of the Schedule to the Radio and Television Act 1988. Head 8:Criteria for membership of Broadcasting Authority and statutory Committees Explanation of purpose: Defines the experience or capacity required for appointment to the Broadcasting Authority and its statutory committees, term of membership and requirements as regards resignation or retirement, including a staggered approach to the retirement of members for continuity purposes. This head provides for the selection criteria and length of term of office for the members of the BAI and its statutory committees. The head proposes a staggered approach to the retirement of members for continuity purposes. Subsection (1) is based on section (1) of the Schedule to the Radio and Television Act of 1988. Subsection (4) is based on section (1) of the Schedule to the Radio and Television Act of 1988. Subsection (5) is based on section 15(4) of the Communications Regulations Act 2002 and section 10(12) of the Sustainable Energy Act 2002. Subsections (6), (7) and (8) are based on subsections (9) to (11) of section 10 of the Sustainable Energy Act 2002. Subsection (9) is based on section (1) of the Schedule to the Radio and Television Act of 1988. Head 9:Terms and removal from office of members of Broadcasting Authority and statutory committees Explanation of purpose: Outlines the process by which the terms and conditions for members of the BAI and its statutory committees are set. It also provides for the grounds and processes by which members of the BAI and its statutory committees may be disqualified or removed from office. Subsections (1) and (2) are based on section 15(7)-(8) of the Digital Hub Development Agency Act 2003. Subsection (3) is based on section 4 of the Schedule to the Radio and Television Act 1988. Subsection (4) is based on section 3 of the Schedule to the Radio and Television Act 1988 and section 10(15) of the Sustainable Energy Act 2002. Subsection (5) is based on section 15(11) of the Digital Hub Development Agency Act 2003. Subsection (6) draws from sections 24(8) of the Digital Hub Development Agency Act 2003. Subsection (8) is based on section 15(12) of the Digital Hub Development Agency Act 2003. Head 10:Chairperson of the Authority, Contract Awards Committee or the Compliance Committee Explanation of purpose: This head provides for process of appointment of the chairpersons of the BAI and its statutory committees. The provision is based on Section 2 of the Schedule to the Radio and Television Act 1988. Head 11:Exclusions from membership of the Authority, Contract Awards Committee or Compliance Committee Explanation of purpose: This head provides for the cessation from membership of the BAI and its statutory committees of persons elected to the Houses of the Oireachtas or the European Parliament, and for the suspension from membership, for the period of an election, of persons nominated for election. The head also provides that there be no commonality of membership between the BAI and its statutory committees. For the purposes of avoiding conflicts of interest, the head excludes persons who hold a defined interest or employment in a broadcaster or a newspaper from membership of the BAI or its statutory committees. Subsection (2) is based on section 14(1) of the Sustainable Energy Act 2002. Subsection (3) is based on section 22(2) of the Digital Hub Development Agency Act 2003 and section 10(2) of the Schedule to the Radio and Television Act 1988. Subsection (4) is based on section 22(3) of the Digital Hub Development Agency Act 2003. Subsection (5) is based on section 22(4) of the Digital Hub Development Agency Act 2003. Subsections (6) and (7) draw from on Section 10(3) of the Dutch Media Act and section 2 of the Defamation Bill 2005. Head 12:Meetings of the Authority, Contract Awards Committee or Compliance Committee Explanation of purpose: This head outlines procedures in relation to meetings of the BAI and its statutory committees. The head sets a quorum for meetings of the BAI and its statutory committees. The provision is based on section 7 of the Schedule to the Radio and Television Act 1988. Head 13:Chief executive officer of the Broadcasting Authority Explanation of purpose: Provides for initial appointment of CEO by Minister, functions and responsibilities of CEO, removal from office of CEO (Ministerial consent required), terms and conditions of service of CEO. This head is based on section 63 of the Personal Injuries Assessment Board Act 2003. Subsection 4 has been modified to require Ministerial consent for the removal by the Authority of a chief executive. Subsection 7 has been modified with the addition of “and shall be paid out of moneys at the disposal of the Authority”. Subsection 9 has been modified with the substitution of “functions” for “executive function”. Subsection 10 is based on Section 19(8) of the Digital Hub Development Agency Act 2003. Head 14:Staff of the Broadcasting Authority Explanation of purpose: This head provides that the BAI may, subject to the consent of the Minister and the Minister for Finance appoint staff by way of public competition and that the existing staff of the BCI would transfer to the BAI without adversely impacting on their existing pay and conditions. This provision mirrors sections 12 of the Broadcasting Authority Act 1960 (as amended by section 4 of the Broadcasting Authority (Amendment) Act, 1966), sections 13 and 14 of the Broadcasting Authority Act 1960 and section 45 of the Postal and Telecommunications Services Act, 1983. Subsection 3(a) ensures that there is certainty that it is not the intention of the legislature that existing staff of the Authority would have to reapply for their posts by way of public competition. Head 15:Superannuation of staff of the Broadcasting Authority Explanation of purpose: This head provides for the establishment of a pension scheme for the staff of the BAI. The head also provides that the pension entitlements of existing staff should not be adversely impacted by the proposed change in corporate structure. Subsection 1 is based on section 21(1) of the Digital Hub Development Agency Act 2003 and section 36 of the National Tourism Development Authority Act 2003. Subsections 2-4 are based on section 21(2) to (4) of the Digital Hub Development Agency Act 2003. Subsection 6 is based on section 21(6) of the Digital Hub Development Agency Act 2003. Subsection 7 is based on section 44(4) of the Forestry Act 1988. Subsection 8 is based on section 44(5) of the Forestry Act 1988. Subsection 9 is based on section 44(8) of the Forestry Act 1988. Subsection 10 is based on section 44(9) of the Forestry Act 1988. Subsection 11 is based on section 44(11) of the Forestry Act 1988. Subsection 12 is based on section 21(7) of the Digital Hub Development Agency Act 2003. Head 16:Advisory committees Explanation of purpose: This head empowers the BAI to establish advisory committees to assist it in its work. The provision draws from section 18 of the Digital Hub Development Agency Act 2003 and section 21 of the Broadcasting Authority Act 1960. Head 17:Consultants and advisers Explanation of purpose: This head empowers the BAI to engage advisers or consultants to assist it in its work. This provision is based on section 35 of the Digital Hub Development Agency Act 2003 and section 21 of the Broadcasting Authority Act 1960. Head 18:Accountability of the chief executive officer of the Broadcasting Authority to Committee of Public Accounts Explanation of purpose: This head requires the chief executive officer of the BAI to give evidence to the Committee of Public Accounts. The provision mirrors section 32 of the Digital Hub Development Agency Act 2003. Head 19:Accountability of the chief executive officer of the Broadcasting Authority to other Oireachtas Committee Explanation of purpose: This head requires the chief executive officer of the BAI to attend before Oireachtas committees to give evidence as to the administration of the BAI and its statutory committees. The provision mirrors section 33 of the Digital Hub Development Agency Act 2003. Head 20:Code of conduct Explanation of purpose: This head requires the BAI to draw up a code of conduct with regard to conflicts of interest and ethical behaviour to apply to the membership of the BAI and its statutory and advisory committees, BAI staff and contractors. The head is based on section 23 of the Digital Hub Development Agency Act 2003. Head 21:Declaration of Register of Interests Explanation of purpose: This head requires the members, staff and contractors for services of the BAI and its statutory committees to make a declaration of their interests. The head also requires a register of such interests to be maintained by the BAI, and that such register be made publicly available. The head is based on section 24 of the Digital Hub Development Agency Act 2003. Head 22:Disclosure of certain interests by members of the Authority, Contract Awards Committee and Compliance Committee Explanation of purpose: This head outlines the disclosure of interest requirements for members of the BAI and its statutory committees. The head mirrors section 25 of the Digital Hub Development Agency Act 2003. Head 23:Disclosure by staff of the Authority of certain interests Explanation of purpose: This head outlines the disclosure of interest requirements for specified categories of staff, consultants and advisers of the BAI. The head mirrors section 26 of the Digital Hub Development Agency Act 2003. Head 24:Objectives of the Authority Explanation of purpose: This head sets out the core objectives of the BAI and its statutory committees. Subsection (1)(a) is based on section 11(2) of the Broadcasting Act 2001. Subsection (1)(b) is based on section 17 of the Broadcasting Authority Act 1960 as amended by section 13 of the Broadcasting Authority (Amendment) Act 1976. Subsection (1)(c) is based on article 6 of the Polish Broadcasting Act 1992. Subsections (2)(b) and (2)(c) are based on section 3(1)(b) and (c) of the Australian Broadcasting Services Act 1992. Subsection 3 is based on section 12(3) of the Communications Regulation Act 2002 and sections 4 and 5 of the Australian Broadcasting Services Act 1992. Head 25:Functions of the Authority Explanation of purpose: This head details the functions of the BAI. The head imposes a requirement on the BAI to take steps to promote media literacy and to work with other bodies to address skill shortages that impact on the sector (for example skill shortages that may impact on the ability of a broadcaster to meet access rule requirements). Subsection (1)(c) is based on section 11 of the Broadcasting Act 2001. Subsections (2)(g) is based on section 11 of the UK Communications Act 2003. Subsection (2)(d) and (e) is based on section 27 of the UK Communications Act 2003. Subsection (3) and (4) are based on section 4 of the Marine Institute Act 1991. Head 26:Functions of the Contract Awards Committee Explanation of purpose: This head outlines the functions of the Contracts Awards Committee. This head is based on section 11 of the Broadcasting Act 2001. Head 27:Functions of the Compliance Committee Explanation of purpose: This head details the functions of the Compliance Committee. Subsection (2)(b) is intended to permit reporting on the fulfillment of obligations under Articles 4 to 6 of the Television Without Frontiers Directive. This subsection is based on section 18(4) of the Radio and Television Act 1988. Head 28:Independence Explanation of purpose: This head is an explicit statement that the BAI and its statutory committee are operationally independent. The provision is based on Section 11 of the Communications Regulation Act 2002. Head 29:Powers Explanation of purpose: This head outlines the explicit powers of the BAI and its statutory committees. The head is based on section 4 of the Radio and Television Act 1988.Subsection 2(b) is based on section 4(8) of the Radio and Television Act 1988 Head 30:Duties of the Authority and its statutory committees Explanation of purpose: This head requires the BAI and its statutory committees to review the regulatory burden they impose on broadcasters. The head also requires the BAI to ensure as much as possible that it does not run a deficit. Subsection (1) repeats subsection 12(1) of the Schedule to the Radio and Television Act 1988. Subsections (2) to (8) are based on section 6 of the UK Communications Act Head 31:Emergencies Explanation of purpose: This head outlines the role and duties of broadcasting contractors in the event of an emergency. Subsection (1) is based on section 4(11) of the Radio and Television Act 1988. Subsection (2) is based on section 4(10)(e) of the Radio and Television Act 1988. Subsection (3) is based on clause 8.4 of the Agreement dated 25 January 1996 between the BBC and the Secretary of State for National Heritage and is intended to provide certainty as to the Minister’s power to meet the costs necessary to continue the operation of a broadcasting service over which the Minister has assumed control in the event of an emergency. Subsections (4)(5) and (6) are based on section 31(2) of the Broadcasting Act 1960 Head 32:Policy Directives Explanation of purpose: This head empowers the Minister to issue policy directives to the BAI. Such directives must be considered by the BAI in the performance of its functions. The head explicitly removes the functions of the Contract Awards and Compliance committees from the ambit of the policy directive mechanism. The head is based on section 13 of the Communications Regulation Act 2002 Head 33:Borrowings Explanation of purpose: This head empowers the BAI to borrow funds subject to the consent of the Minister and the Minister for Finance. The head is based on subsections 13 and 14 of the Schedule to the Radio and Television Act 1988 (as amended by Section 64 of the Broadcasting Act 2001) Head 34:Strategy Statements Explanation of purpose: This requires the BAI to produce a statement of strategy within 6 months of the establishment of the BAI and every three years thereafter. The head requires the BAI to give an indication to the sector of its intentions with regard to the number and type of contracts it proposes should be awarded during the term of the strategy statement. The head is based on section 31 of the Communications Regulation Act 2002 Head 35:Investments Explanation of purpose: This is a standard provision which allowing the BAI to invest cash balances. This provision is based on subsection 15 of the Schedule to the Radio and Television Act 1988 Head 36:Levy Charges and Fees Explanation of purpose: This head empowers the BAI to impose a levy on the sector to meet the cost of regulation of the sector by the BAI and its statutory committees. The head permits the BAI to distinguish between the various categories of broadcaster when imposing the levy. Subsections (1) to (3) and (5) to (9) are based on section 30 of the Communications (Regulation) Act 2002. Subsection (10) is based on section 56 of the Broadcasting Act 2001. Head 37:Exchequer Funding Explanation of purpose: This head provides that Exchequer funding may be used to defray exceptional costs (e.g. exceptional legal costs) incurred by the Compliance Committee in the execution of its functions. The head is based on section 23(3) of the Broadcasting Act 2001. Head 38:Accounts and audits Explanation of purpose: This head requires the BAI to maintain financial records and accounts and for such accounts to be subject to audit by the Comptroller and Auditor General. The head also requires the BAI to prepare budgetary estimates. Subsection (7) of the head requires the publication of such budgetary estimates with a view to allowing the sector to estimate in advance the extent of any levy. The head is based on section 31 of the Digital Hub Development Agency Act 2003. Head 39:Reports to the Minister Explanation of purpose: This head requires the BAI to produce an annual report. Such annual report is to include specific reports to the Minister from the Contract Awards Committee and Compliance Committee as to the exercise of their functions. The head also requires the BAI and its statutory committees to supply the Minister with such information and explanations as he or she may require. The head is based on section 34 of the Digital Hub Development Agency Act 2003. Subsection (2) is based on section 6(2) of the Broadcasting (Funding) Act 2003. Observations submitted to the Joint CommitteeThere were 135 observations submitted under this part of the General Scheme. The Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular the Joint Committee considered that the following questions should be addressed:-
It should be noted this not an exhaustive list of questions asked or issues that were raised by the members. For a full ‘transcript’ of the questions posed at the webcast hearings phase please refer to www.econsultation.ie HearingsAt the webcast public hearings the stakeholders expanded upon the observations made above and answered questions raised by members of the Joint Committee. The BCI expressed support for the proposal to fund the regulator by a levy system. The BCI considered it appropriate as it would reflect the usual practice for the funding of regulators. That is a blunt instrument and probably would not discriminate between the different types of broadcaster that it may affect. It was, ipso facto, a funding mechanism used to pay for the regulation of the private broadcast sector. The BCI suggested that there is some force in the idea that the levy should be based around advertising revenue, but that is just a general approach. As far as the BCI is concerned, the General Scheme takes us back to the fundamental principle of supporting the regulator by a levy. The independent broadcast sector, represented by TV3 and the Independent Broadcasters of Ireland (IBI) were wholly opposed to the re-introduction of a levy – particularly, one imposed on the basis of turnover or advertising revenue. The Independent Broadcast sector would like to see the regulator funded though the existing public sector licence fee (TV Licence) which already generates in excess of the amount needed to fund the public sector broadcaster. RTÉ’s response was completely opposed to the funding of the BAI from the television licence fund (TV Licence) because it would lead to the withdrawal of revenue from Irish-made radio and television programming. RTÉ considered this to be a retrogressive step. If the funding comes from the income of broadcasters, as the BAI mooted, then, it is RTÉ’s case that it should come only from the commercial revenue of RTÉ and not include a percentage of the licence fee. RTÉ also adducted that at least half of the work of the new BAI will relate to its Contracts Committee, which does not relate to RTÉ in any way - RTÉ main interaction function with the BAI will be on the compliance side. Therefore, RTÉ considered that it would be unfair to public service broadcasting to ask RTÉ to fund the BAI in a manner that is based on all its income. RTÉ expressed a preference for the BAI to be funded entirely by means of direct Exchequer funding, but acknowledges that this is not proposed within the General Scheme. Members of the Joint Committee raised the issue of appointments to the BAI, its Contracts and Compliance Committees. All stakeholders identified and supported 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. RTÉ considered it important that there are people on the boards who have an understanding of the needs and interests of public service broadcasting such as those who have worked in public service broadcasting or who come from the academic world. TV3 raised the point that the BAI will need people with competition and general business experience. TV3 raised the concern that any person from a commercial broadcaster cannot be a director of the company that will become RTÉ but there is no such exclusion on people with connections with RTÉ being on the BAI. If there are to be former RTÉ people on the BAI then TV3 considered that it is critical that people with previous experience of the commercial sector should also be represented. All stakeholders present including, but not limited to, the National Disability Association, Irish Hard of Hearing Association, the RTÉ Trade Union Group and the NUJ, expressed the view that the interests of those with a disability should be represented in the board. On the substantive area of the objectives of the new authority RTÉ welcomed, in general terms, the notion of a new and modern regulator. RTÉ suggested that there were two factors to be raised - the first being the essential independence of all the members of whatever committees or boards that are within the remit of the BAI; the second being that the new regulator must be professional and properly resourced in going about its business. RTÉ cited the UK Experience. In the UK 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. This essentially removed all the old structures and applied one new one which has worked very well. Ofcom is internationally regarded as a good regulator both because of its structures and its personnel. RTÉ suggested that the reality is that there is little regulation, in a sense, at present. The BCI has only come into a regulatory role in recent years, particularly since the 2001 Act, whereas prior to the 2001 Act the BCI was, in effect – if not de facto - a licensing body. The RTÉ Authority, in legal terms under the current legislation, acts effectively as the board of RTÉ. RTÉ suggested that what is required is regulation as if almost starting from scratch. However, RTÉ also considered that it would be concerned that the independence of public service broadcasting is not damaged in any way by any new regulatory structure. The current structure, the RTÉ Authority, was considered by RTÉ to have given 50 years of very good independent public service regulation and RTÉ’s concern is to maintain that. As proposed, with one regulator controlling the whole broadcasting sector, RTÉ would be concerned that there could be a perceived loss of the independence it has enjoyed up to now. In addition, there is a fear that the BAI 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 RTÉ Authority up to now. Members asked RTÉ for examples as to where the wording of the General Scheme gave rise to such concerns; RTÉ agreed that there was no specific wording. The NUJ expanded on its initial observations by explaining its concern that there is no reference to the promotion of quality employment or training in the General Scheme. An absence of any reference to development and training was perceived as a crucial flaw within the objectives of the BAI. The NUJ noted that 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 staff turnover. The NUJ considered that reference to this issue must be included under the objectives of the BAI and that this must apply to both commercial and public service broadcasting. The Joint Committee explored, with the Stakeholders, the matter of cross-media ownership as a function of the promotion of diversity of control. The RTÉ - TUG questioned the value of promoting diversity of control within the objectives without giving the BAI any specific powers to implement such an objective. TV3, in response to member’s questions and comments made by other stakeholders, made a specific point in relation to diversity of ownership: the reality is that, with regard to the domination of a commercial activity in Ireland, there is already one enormous dominant broadcaster, RTÉ and 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 a ‘competition principle’, TV3 considered that RTÉ is the dominant player. On the question of the objectives set out for the BAI to stimulate the provision of high quality, diverse, and innovative programming by commercial, community and public service broadcasters, the member’s questioned how the BAI could set about achieving or even measuring the success of such an objective. The independent production sector stated that a reference to their sector should be included in General Scheme. The NDA referred explicitly to the function of providing broadcasting services which are accessible to people with disabilities. Section 53 of the Disability Act 2005 amended the Broadcasting Act 2001 to assign certain functions to the BCI concerning access rules. With the new structure proposed in the General Scheme it is important that having regard for those with a disability is explicitly spelt out in the objectives of the BAI. The IHHA added emphasis by highlighting the relevance to what is contained in Section 53 of the Disability Act 2005 amending the Broadcasting Act 2001 Act as it adds an extra measure for people with a sensory disability - the development of the teletext service. That was new, it was not in UK legislation but it is in the Irish legislation. The IHHA welcome this because the teletext service is vitally important to people with a severe hearing impairment, or worse, a hearing loss who are excluded from radio services. Those with a hearing loss 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 should be included as these have great relevance particularly in the digital age. The NDA also suggested that the collecting of information regarding accessibility of services for people with disabilities should be an important function of BAI, which has duties under Section 53 of the Disabilities Act 2005. Such a measure should ensure that there are access rules and that a certain proportion of programmes are provided for people with disabilities. The NDA stressed that it is important that the BAI should report on this and on the extent to which those duties are being fulfilled. The NDA considers the collecting and distribution of information regarding accessibility of services for people with disabilities should be a core function of the remit of the BAI and that this would not be excessively expensive. Channel 6 made reference to the lack of regulation of the Electronic Programme Guide (EPG) which is controlled by operators not licensed by the current BCI or the proposed BAI. Channel 6 suggested that the General Scheme, as it stands, will not address that issue. The Joint Committee afforded specific stakeholders the opportunity to address the safeguards and guarantees regarding the Irish language within the objectives of the BAI. A number expressed the opinion that the promotion and protection of the Irish language needed to be more explicitly referenced. With due regard to the constitutional status of the Irish language and the recent adoption of Irish as an official language of the European Union, its importance was not given sufficient strength in the objectives of the BAI and was, therefore, a defect in the General Scheme. While acknowledging a public broadcasting remit that should give coverage to other minority languages which are now spoken in Ireland, nevertheless, specific reference should be made to Irish in the General Scheme. There were additional requests to set objectives within the legislation with regard to the protection of Irish cultural values. The Joint Committee sought views as to the level of Ministerial involvement proposed and the potential dangers involved. The NUJ acknowledged that this was a concern shared by it and the RTÉ - TUG. The NUJ noted that there is an obvious direct influence through the appointment of 79 nominees. In addition, it is proposed that the Minister would act as the sole member of the new RTÉ company. Therefore, in that specific regard, the Minister would carry all the rights and obligations that a member of a company would normally have and all powers and restrictions flow from this. There is a centralist theme or approach throughout the General Scheme 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 in the world. RTÉ noted that the General Scheme envisages some 50 occasions when the Minister, the Government or the BAI has a role in the activities of RTÉ as opposed to 25 occasions under current legislation. In terms of change, this legislation represents a more intensive and intrusive form of bureaucracy or legislation and this, it was suggested, is something that should be examined and considered as being entirely unnecessary in a country the size of Ireland. Discussion ForumThere were a number of follow up submissions on the establishment of the BAI and its two statutory Committees in the discussion forum. The Joint Committee notes the various comments made in relation to Digital Shortwave Radio but considers that these comments are more relevant to the Broadcasting (Amendment) Bill 2006 and not to the General Scheme under discussion. The following are representative of some of the contributions made. All public service broadcasts on satellite should be free to air. Digital radio and television will then be available in Ireland at a stroke. Throughout the General Scheme community radio is referred to, but there is no definition of community radio. There should be one and the terms “not-for-profit” and “democratic ownership” should be included in the definitions as core tenets of community radio The General Scheme presents an opportunity to recognise, in legislation, what has now become a fact on the ground; the existence of community television as a third pillar in Irish television. Although enabled under the Broadcasting Act 2001, there is no recognition of the role of community television (’community content licenses’) and the great potential that this sector holds. Such a recognition exists nowhere at an official level and is holding back development of the sector. This opportunity should thus be taken to put forward a basic recognition and definition of this important new television sector. The IHHA firmly believes that the General Scheme should oblige the BAI to promote media literacy for those with a hearing loss. The IHHA holds that there is compelling evidence to include media education in the General Scheme. Those with hearing difficulties are people who watch [with the aid of teletext subtitling] more television than the average population and are more reliant on television for news, information and entertainment because they are, effectively, excluded from radio, cinema and theatre. Accordingly, there is a need for guidance on how to use the medium effectively. In effect, legislation mandating a regulatory authority to pursue media literacy seems the appropriate answer. RTÉ is a licence funded Irish radio and television service and therefore those with hearing or other disabilities should be free to see and hear, in Ireland, whatever is available on RTÉ. In this regard RTÉ should follow BBC, ITV and Film 4 and make its output freely available to all. The importance of a radio service for our elderly and marginalised emigrants cannot be underestimated. It provides a vital connection with ‘home’ for our emigrants as well as for the thousands of Irish who are traveling outside of Ireland at any given time. Digital Shortwave Radio can reach a wider audience, is environmentally friendly and can operate at a lower cost than other technologies. This makes it an ideal medium for radio communication to Irish communities abroad and, therefore, it is important that it receives due attention. In this regard the Joint Committee notes with concern that there appears to a glaring omission by not including or expanding digital radio cover in Europe - only television is being mentioned in this regard. The General Scheme should place an onus on every station - not just RTÉ1 and RTÉ 2; but RTÉ lyric fm, local, community & commercial stations (e.g. 96FM) - to provide a minimum percentage of their material in Irish on a platform that broadcasts to the Irish community in Europe and this should not be just a re-broadcast of RnaG material but it should be a genuine bilingual format that is not just tokenistic. The argument was made that community radio should be exempt from the new BAI levy and this is a position that is supported in the strongest terms by the Joint Committee – the General Scheme should not miss this opportunity. Further, while commercial stations make most of their income from advertising, community stations get their income from a variety of sources, including listener donations, support from state agencies, etc., such civic engagement should be fostered rather than effectively taxed by the BAI. Final considerations of the Joint CommitteeThis part of the General Scheme provides for the establishment of the Broadcasting Authority of Ireland (BAI) and its two statutory committees - the Compliance and Contract Awards Committee. The various Heads describe the objectives, functions, powers, duties, management structure, corporate governance arrangements and financing of the BAI and its committees. The Joint Committee considers the provisions set down in these Heads are amongst the most important of all the text contained in the General Scheme in that these, which are the main objectives and functions of the new BAI, will oversee almost every aspect of the regulation of broadcasting in Ireland into the future. The importance of this part of the General Scheme was underlined by the volume of observations submitted - 135. In considering these observations the Joint Committee selected the main areas which it determined would benefit from further discussion. The Joint Committee, having taken into consideration the observations submitted, the comments of the stakeholders and the further elaboration of points in the discussion forum considers the following germane as matters that should be addressed in the final Ministerial broadcasting legislative proposals:-
Chapter 3Part III: Duties, codes and rulesOverviewPart III outlines the statutory duties, codes and rules applicable to commercial, community and public service broadcasters. It also provides that the BAI would be permitted to co-operate with similar regulatory organisation in other jurisdictions in the development of broadcasting codes and rules. Explanation of HeadsHead 40:Duties of broadcasters Explanation of purpose: This head restates the statutory duties imposed on broadcasters. The head standardises the approach as between public service, commercial and community broadcasters e.g. subsection (1) imposes a requirement of 20% news and current affairs on RTÉ – currently only commercial and community sound broadcasters are subject to this requirement. Subsections (1) and (2) of this head are based on section 9 of the Radio and Television Act 1988. Subsection (3) is based on Section 15 of the Radio and Television Act 1988 as amended by section 62 of the Broadcasting Act 2001. Subsection (4) is based on section 18(1) of the Broadcasting Authority Act 1960. The principal change effected in subsections (1) to (4) of this Head is the substitution of “broadcaster” for “broadcasting contractor” (with the exception of subsection (3)). Subsection (6) is based on section 10(1) of the Radio and Television Act 1988. Subsection (7) is based on section 10(4) of the Radio and Television Act 1988. Subsection (8) is based on section 10(5) of the Radio and Television Act 1988. Subsection (9) is based on section 10(3) of the Radio and Television Act 1988. Subsection (10) is based on section 5(1) of the Referendum Act 1998. Subsections (11) to (13) are based on Section 6 of the Broadcasting Authority (Amendment) Act 1976 (as amended by Section 32(2) of the Broadcasting Act 2001 and Section 26 of the Broadcasting Act 2001. Subsection (14) is based on section 65 of the Broadcasting Act 2001. Subsections (15) to (24) are based on S.I. 251 of 1991 which transposes a number of the requirements of the Television Without Frontier Directives. Head 41:Codes and Rules Explanation of purpose: This head restates the basis for broadcasting codes and rules set by the BAI. It sets out the policies and principles of the codes and rules, requires that they be in accordance with the Television Without Frontiers Directive, and that any draft codes or rule be subject to public consultation. The head also requires that any code or rule prepared be subject to annulment by the Oireachtas. In developing this Head consideration will be given to its inter-relationship with the provisions contained in the Defamation Bill 2006, in particular whether or not (a) adherence to broadcasting codes and rules, and (b) abiding by determinations of the Compliance Committee by a broadcaster might be amongst the matters that a court might consider in the context of a defense of fair and reasonable publication under section 24 of the Defamation Bill. Subsection 3 is based on Section 319(4) of the UK Communications Act 2003. Subsection 4 is based on section 9(4) of the Radio and Television Act 1988. Subsection 5(a) (b) is based on section 19(3)(a)(b) of the Broadcasting Act 2001 Subsection 5(c) is based on section 19(11) of the Broadcasting Act 2001. Section 6 is based on section 19(4) of the Broadcasting Act 2001. Subsection 7 is new but is based on section 9(4) of the Radio and Television Act 1988. Subsection 8 is based on section 19(5) of the Broadcasting Act 2001. Subsection 9 is based on section 19(6) of the Broadcasting Act 2001. Subsection 12 is based on section 19(10) of the Broadcasting Act 2001. Subsection 13 is based on section 19(12) of the Broadcasting Act 2001. Subsection 14 is based on section 19(13) of the Broadcasting Act 2001. Subsection 15 is based on section 19(18) of the Broadcasting Act 2001. Head 42:Co-operation with other parties Explanation of purposes: This head is intended to empower the BAI to co-operate with similar regulatory organisations (such as OFCOM) in the development of codes, rules or standards relating to broadcasting or the Internet and is based on section 20 of the Broadcasting Act 2001. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular the Joint Committee considered that the following questions should be addressed:-
It should be noted this not an exhaustive list of questions asked or issues that were raised by the members. For a full ‘transcript’ of the questions posed at the webcast hearings phase please refer to www.econsultation.ie HearingsAt the public hearings these observations were expanded upon by the stakeholders who were represented. In answer to the questions from members of the Joint Committee regarding a derogation from the 20% news requirement for broadcasters, RTÉ explained that this did not particularly apply to them other than in the context of specialist music channels like RTÉ lyric fm. RTÉ stated its support for the quota for all other stations such as rock or country music stations. The independent broadcast sector considered that, if there were to be derogation from any of these rules, it should apply objectively to all stations, be they public service or commercial. If it is the case that RTÉ lyric fm could get derogations because of what it does then that, in itself, may possibly contravene EU rules because it would imply a different regulation between the private sector and the public sector. An 18 year old who listens to a dance music station should have just as much right to expect derogations as a 60 year old listening to a classic music station. Members asked if, on a public service basis, television broadcasters should, in particular, outline a better labeling scheme for content and could the television broadcasters state whether they would object to a mechanism that would give a greater indication as to the content of programmes. RTÉ replied that while it does put a logo on screen before every programme and that this states suitability for a general audience or children etc it may not have done enough to promote this. However, every programme RTÉ shows includes this on-screen logo to indicate if it is suitable for children. RTÉ acknowledged that it could improve on public information and continuity announcements in that area. The BCI stated that, with regard to the warning systems, it is coming to the end of a three-phase consultation process on a code of programme standards which will be introduced in April 2007. This process addressed the issue of classification, watershed and the notion of warnings. On the matter of increased quotas for Irish made programming within the independent broadcast sector, it was pointed out that the broadcasters are compliant with the current quotas and that Irish made programmes can be commercially successful. However, any increase in the mandate for home produced content would require that the commercial broadcasters be assisted to do this through the licence fee in the same way that RTÉ is. RTÉ agreed that it would not be possible to deliver the amount of home-produced output that it does without the licence fee. The Association of Independent Radio Producers of Ireland (AIRPI) noted that there is currently no legislative requirement for radio stations to carry a certain proportion of independently produced programming. It was argued that that it should be an imperative within the legislative framework, to require the sourcing of 10% of output from the independent sector and that this should be extended to radio, allowing the two media to be treated in the same way. At present, this is an anomaly with no sound rationale or good reason in commercial or programming quality terms. The BCI pointed out that there are the supports in place for the independent radio sector which are only beginning to make an impression. When the true effect of the broadcasting fund becomes apparent, then the BCI anticipate an upsurge in the growth of independent productions. RTÉ stated its intention to increase commissioning from the independent radio sector, but it would not wish to have a quota imposed. On the question of spreading advertising minutes over a 2 hour period as opposed to containing the allowed amount of advertising minutes within one hour, all stakeholders agreed that this was a complicated issue. RTÉ explained that its current practice, which is allowed under the current and proposed legislation, is in the best interests of its public service remit, particularly with regard to its current affairs remit. The independent broadcast sector requested that it be given the same flexibility with regard to the 2 hour span and also requested additional flexibility with regard to advertising minutes across a 24 hour period. The BCI agreed that there was an anomaly between the legislation applied to RTÉ and to that applied to the other broadcasters and suggested that the introduction of a single regulator should address this issue. The BCI also made the point that the existing legislation allows no flexibility on its part to deal with this. Members of the Joint Committee asked if broadcasters should be required to disclose any financial, political or economic relationship between the production team, including interviewers and presenters, and the subject matter or participants in, for example, news and current affairs programmes? The BCI agreed that broadcasters must not only be fair and independent but must also be seen to be fair and independent. This information should be available and this should be a general principle applied to this type of situation. TV3 noted that the independent sector is under obligation, in any event, regarding impartiality. TV3 makes it clear in its contracts of employment that TV3 employees must work purely for the company and must not have financial interests outside of that. RTÉ agreed that the principle of declaration of interests was correct but that broadcasters who are contracted to it (and not employees) are not required to disclose their other interests and RTÉ cannot legally force them to do so. In relation to the timing of Oireachtas Report and the European Parliament report, RTÉ explained that there is significant coverage of the Oireachtas in the main six o’clock news bulletin which lasts an hour and in the nine o’clock bulletin which lasts half an hour. Therefore, RTÉ considered that its coverage of the Oireachtas was not just confined to Oireachtas Report or the European Parliament report. The majority of newsworthy events in Dáil and Seanad Éireann are covered in RTÉ’s main news bulletins and the equivalent bulletins on radio. Oireachtas Report is a more specific programme for people with a serious interest in parliamentary affairs and is broadcast late at night because it has a small audience. If RTÉ was forced to broadcast it at peak time, it would lose a considerable audience. With regard to the codes and rules in relation to sensory disability under the Equal Status Act, the IHHA stated that its position on subtitling is that all programmes will eventually be subtitled, thus giving them parity with hearing people. The path recommended to achieve this position is to set long-term and interim targets. The BCI has set long-term targets for the four terrestrial channels. The target for subtitling on RTÉ 1 is 100% over ten years, while lower targets have been set for RTÉ 2, TV3 and TG4. The targets apply only to the period between 7 a.m. and 1 a.m. and, as such, do not seek to achieve 100% subtitling over ten years. The timeframe is much too long and needs to be significantly reduced. The IHHA noted that in the United Kingdom it is a statutory obligation that public service broadcasters, ITV and Channel 4 subtitle up to 90% of programmes. Separately, the BBC aims to achieve 100% subtitling by 2008. Ofcom, the independent regulator in the UK, recently published a quarterly report showing that ITV and Channel 4 have exceeded their targets of 80% and the BBC is on course to achieve 100% by 2008. The trend among public service broadcasters in EU is to aim for 100% subtitling, but progress falls short in Ireland. The NUJ noted that in respect of the codes and rules generally there has been an absence of debate within the industry and with practitioners in particular. It is very easy to draw up codes but they are often ignored. It would be preferable to have a more participative approach in drawing up codes. A shorter, more realistic code would be preferable to what is proposed in the General Scheme. The absence of discussion, particularly among and with practitioners, has been a feature on which the NUJ would like more discussion. The BCI stated that it is its intention to introduce a consultation process on the introduction of a code covering fairness, impartiality and balance. Discussion ForumThere were a number of follow up submissions on the discussion forum. The AIRPI called on the Oireachtas to stimulate the development of this sector, on a par with independent production in television, by extending, in a phased manner, the statutory requirement to have radio broadcasters reserve part of their output or programming budget for programmes made by independent radio producers. This will reap benefits for listeners, broadcasters, tax payers and the economy. The IBI responded to the suggestion that the BAI should enforce a specific quota to ensure that 10% of radio production budgets go to independent producers. The IBI is fundamentally opposed to any such restriction being placed upon its members given that it would add another layer of regulation and unnecessary obligation upon the independent sector and would, therefore, most likely create additional overheads for IBI members. The environment in which IBI members operate is dominated by the need for market led programming in order to attract and retain strong listenership figures. Imposing additional programming restrictions would have a negative impact on the ability of IBI member stations to cater to their listeners’ tastes. Furthermore, as IBI members are all independent, non-State owned broadcasters, any programming that they create themselves is indeed, logically, ‘independently produced’ as it stands. IBI suggested that such a quota may be more relevant to the State-owned broadcaster. Media organizations and journalists perform an important function in investigating and reporting on how powerful institutions, such as the Government, do their job. As the media and journalists are performing such an important task and as they themselves have considerable power the public should be able to watch and listen to programmes made by independent people about how they do their job. Therefore, there should be two 1/2 hour open access broadcasts in each broadcaster’s weekly schedule which consider whether news gathering and presentation by media owners and journalists is accurate and impartial. While RnaG provides an excellent service, its existence should not mean the disappearance of Irish language material from all other stations. The General Scheme should put an onus on every station - not just RTÉ1 but RTÉ lyric fm, local, community and commercial stations - to provide a minimum percentage of their own material in Irish and this should not be just be a re-broadcast of RnaG material - it should be a genuine bilingual format that’s not just tokenistic. The IBI’s membership is committed to upholding its obligations in relation to the current Irish language content requirement. The current requirements include a contractual obligation to the Irish language which has been agreed with the BCI. A more positive approach to Irish language development has been to involve both broadcasters and Irish language organisations in directing the development of the use of the language on-air. This has been done through the formation of an Irish Language Development Committee (ILDC) which includes three representatives of the IBI. The IBI would support the continuation of the ILDC to demonstrate that there is a vibrant future for Irish language broadcasting. By working with the broadcasters the ILDC can continue to develop successful Irish language initiatives, provide quantifiable evidence of success for these initiatives and capitalise on these successes so as to promote the sustained development of the Irish language into the future. Final considerations of the Joint CommitteeThis part of the General Scheme outlines the statutory duties, codes and rules applicable to commercial, community and public service broadcasters. It also provides that the BAI would be permitted to co-operate with similar regulatory organisations in other jurisdictions in the development of broadcasting codes and rules. In considering the observations made the Joint Committee selected the main areas which it determined would benefit from further discussion. The Joint Committee, having taken into consideration the observations submitted, the comments of the stakeholders and the further elaboration of points in the discussion forum considers the following germane as matters that should be addressed in the final Ministerial broadcasting legislative proposals:-
Chapter 4Part IV: Redress and Right of ReplyOverview:Part IV outlines the processes in relation to making a complaint against a broadcaster. It also provides for a right of reply mechanism for persons whose reputations have been damaged by an assertion of incorrect facts in a broadcast. Explanation of HeadsHead 43:Code of practice – Complaints handing Explanation of purpose: Requires broadcasters to maintain records of complaints made to them regarding their broadcasting service and to put in place a mechanism for dealing with such complaints. Subsections (1) and (6) are based on section 11 of the Radio and Television Act 1988. Head 44:Complaints Process Explanation of purpose: Outlines the grounds and process for complaints against broadcasters. Head 45:Right of Reply Explanation of purpose: Provides for a right of reply wider than that provided by section 24(2)(f) of the Broadcasting Act 2001 which transposed the right of reply requirements of Article 23 of Council Directive 89/552/EEC. The provision is intended to provide a proportionate, low cost and expeditious remedy to persons whose reputations have been damaged by an assertion of incorrect facts in a broadcast. In developing this head, and the Broadcasting Bill in general, consideration will be given to the inter-relationship with the proposals contained in the Defamation Bill 2006, in particular - (a) whether or not a right of reply broadcast pursuant to a scheme under this head might be accorded qualified privilege under section 16 of the Defamation Bill 2006 (b) whether or not agreement to grant a request for a right of reply might be regarded as an offer to make amends under section 20 of the Defamation Bill 2006. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular the Joint Committee considered that the following questions should be addressed:-
It should be noted this not an exhaustive list of questions asked or issues that were raised by the members. For a full ‘transcript’ of the questions posed at the webcast hearings phase please refer to www.econsultation.ie HearingsAt the public hearings, these observations were expanded upon by the stakeholders who were represented. RTÉ described the current formal, independent means of complaint which is operated through the BCC. If a member of the public feels aggrieved they can access this well established, statutory process of complaint. The BCC forwarded 208 complaints to RTÉ in 2006, so that mechanism is certainly very widely used. Beyond that, RTÉ receives literally tens of thousands of communications from the general public each year. They are not all necessarily complaints - many are comments - but the volume of correspondence is substantial. In addition, every programme and director of television, radio or news receives letters, e-mails and telephone calls. The volume of communication between the general public and RTÉ is considerable. If all those had to be logged and dealt with formally, it would become a great burden on the organisation. The crux of the issue, from RTÉ’s perspective, is to differentiate between comments and serious complaints that require a response. RTÉ expressed its concern that the provisions proposed in the General Scheme are too wide if all communications, complaints as well as comments, letters, e-mails, phone calls and text messages had to be logged and followed up. The BCC noted that it is entirely independent of broadcasters whether public or private as well as independent of the complainants themselves. The BCC re-iterated the current, formal process that must be followed and also pointed out that the BCC is complaint driven, but this may change slightly under the provisions contained in the proposed General Scheme. The BCC noted that it is proposed that the Compliance Committee will take over the BCC role of dealing with complaints with an additional function in that the Compliance Committee will also have a supervisory jurisdiction with regard to whether or not broadcasters have complied with obligations. In relation to dealing with complaints and the volume of complaints, it was accepted by all stakeholders that RTÉ, as the public service broadcaster, receives many more complaints than the commercial sector. In contrast to the perspectives of both RTÉ and the BCC a member of the public expressed the view that the procedures for complaints were neither sufficient nor satisfactory and, therefore, the proposed changes to the legislation were, in principle, necessary but that there is insufficient detail to determine their efficacy. The independent broadcast sector requested that, in respect of the processes in question, cognisance should be taken of the Government’s 2004 White Paper on Better Regulation which stated that a Regulatory Impact Assessment (RIA) would be conducted regarding any legislation that might lead to an increased burden on any sector. The independent sector asked for such assessments to be conducted in this regard. A number of stakeholders raised the issue as to the how the proposed right of reply ties in with legal remedies generally, be they defamation, slander or otherwise. Obviously, a broadcaster does not wish to be under a form of double jeopardy where dealing with a complaint under the right of reply mechanism proposed in the General Scheme might leave it open to additional court action. A further concern to broadcasters is the inequity, in regard to Redress and Right of Reply, that the General Scheme would produce between the print and the broadcast media. It was generally expressed by the broadcasters (both commercial and public service) that the draft proposals would put an unfair obligation on the broadcast sector. Members of the Joint Committee raised the issue of the relationship between the right of reply mechanisms proposed and the provisions of the Defamation Bill 2006. There was agreement from the stakeholders that there was insufficient clarity on this within the General Scheme and as there will be interaction with the Defamation Bill then this needs to be fully clarified. The NUJ expressed a particular concern about the role of the Compliance Committee. Discussion ForumThere were a number of follow up submissions on the discussion forum. RTÉ gave further clarification on its concerns and objections to the proposed Head(s) in particular Head 45. Members of the public responded to these objections and supported the points in the General Scheme. The independent broadcast sector also re-iterated its concerns regarding the feasibility of implementing the points in the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme outlines the processes in relation to making a complaint against a broadcaster. It also provides a right-of reply mechanism for persons whose reputations have been damaged by an incorrect assertion of facts in a broadcast. The Joint Committee considers this part of the proposed legislation particularly important in that it will provide for a right of reply wider than that provided for in previous legislation. In considering the observations made the Joint Committee selected the main areas which it determined would benefit from further discussion. The Joint Committee, having taken into consideration the observations submitted, the comments of the stakeholders and the further elaboration of points in the discussion forum considers the following germane as matters that should be addressed in the final Ministerial broadcasting legislative proposals:-
Chapter 5Part V: Enforcement of regulatory decisionsOverview:Part V outlines mechanisms for the enforcement of certain broadcasting duties, codes and rules, including the imposition of administrative fines. It also outlines the decision-making process associated with such additional enforcement mechanisms. Explanation of HeadsHead 46:Investigating officers Explanation of purpose: This head permits the Compliance Committee to designate members of staff of the BAI as investigating officers to assist it in the conduct of an inquiry under heads 44, 45 and 47. Head 47:Inquiry process Explanation of purpose: This head outlines the process for inquiries by the Compliance Committee. The head provides that a broadcaster, advertiser is afforded the opportunity to make a comment on the matter under inquiry. This head is based on Section 10 of the Central Bank and Financial Services Authority of Ireland Act 2004 and Section 24 of the Broadcasting Act 2001. Head 48:Monetary penalties Explanation of purpose: This head proposes an option to ensure that the BAI has an adequate range of proportionate enforcement mechanisms available to it. The head empowers the Compliance Committee through the BAI to impose a financial sanction of up to €250,000 on a broadcaster for a breach of a duty, code or rule under this Act. Com (2005) 646. Head 49:Monetary penalty guidelines Explanation of purpose: This head requires the Compliance Committee to prepare, consult and publish guidelines as to the level of monetary penalties that the Committee might propose in the event of a contravention by a broadcaster of a duty, code or rule etc. This provision is based on Section 392 of the UK Communications Act 2003 and the published Ofcom penalty guidelines. Head 50:Amendment of section 14(4)(a) (Terms and conditions of sound broadcasting contract) of the Radio and Television Act 1988 and section 55 (Provisions in relation to contracts generally under Act) of the Broadcasting Act 2001. Explanation of purpose: This head empowers the Compliance Committee through the BAI to reduce the term of a broadcasting contract in the event of serious or repeated breaches of contractual obligations by the broadcasting contractor (commercial or community broadcaster), or in the event that a broadcasting contractor provided misleading information to the Contract Awards Committee prior to the making of the broadcasting contract. Observations submitted to the Joint CommitteeThere were 3 observations submitted to the Joint Committee:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee in its considerations of the observations received, determined that the observations received were very clear and would not require further discussion at the webcast hearings phase of the process. HearingsAt the public hearings, this part of the General Scheme was not raised with the stakeholders present. Discussion ForumThere were no discussion forum threads associated with this part of the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme lays out mechanisms for the enforcement of certain broadcasting duties, codes and rules, including the imposition of administrative fines. It also outlines the decision-making process associated with such additional enforcement mechanisms. In its consideration of this part of the General Scheme, the Joint Committee makes the following observation:-
Chapter 6Part VI: Television licenceOverview:Part VI restates and amends the existing television licence regime. Principally it proposes the establishment of the television licence regime on a footing separate and distinct from wireless telegraphy legislation. Explanation of HeadsHead 51:Interpretation Explanation of Purpose: The primary objective of definitions in Part A is to establish a definition of a television set, which is separate and distinct from wireless telegraphy legislation. The definition of television set is based on Section 1 of the Wireless Telegraphy Act 1972 as amended by section 2 of the Broadcasting and Wireless Telegraphy Act 1988. The definition of electronic communications network is based on Section 2 of the Communications Regulation Act 2002. The definition of broadcast is based on Section 2 of the Wireless Telegraphy Act 1926 as amended by section 19 of the Radio and Television Act 1988. Part B incorporates general definitions required by Head 52 onwards. The definition of apartment is based on Section 3 of the Valuation Act 2001. The definition of premises is based on Section 1 of the Broadcasting and Wireless Telegraphy Act, 1988. The definition of record is based on section 2(1) of the Copyright Act of 1963. The definition of supply is based on the Broadcasting and Wireless Telegraphy Act 1988. The current definition of specified place is interpreted as relating to a specific postal address. This addition is intended to clarify the position as regards sub-units of accommodation, which occur at the same postal address. The definition draws from Section 1 of the Hotel Proprietors Act 1963, Section 1 of the Tourist Traffic Act 1970, Section 3 of the Valuation Act 2001, Section 47 of the Public Health (Tobacco) Act 2002, Section 8 of the National Tourism Development Authority Act 2003 and Section 32 of the Finance Act 2003. The definition of undertaking is based on section 3 of the Competition Act 2002. The definition of vehicle is based on Section 3 of the Road Traffic Act 1961 and Section 1 of the Immigration Act 2003. Head 52:Regulations designating an apparatus to be a television set Explanation of Purpose: The objective of this head is to empower the Minister to make secondary legislation designating a device or software programme to be a television set (within the context of the definition of a television set provided in Head 51). The provision is based on section 368 of the UK Communications Act 2003. Head 53:Restrictions on possession of a television set Explanation of Purpose: The objective of subsections (1) to (3) of this head is to subject the possession of television sets to Licencing requirements. Subsection (3) empowers the Minister to exempt class or description of television sets from a licensing requirement. Subsections (1) to (3) are based on subsections (1), (2) and (6) of section 3 of the Wireless Telegraphy Act 1926 as amended. The objective of subsections (4) and (5) is to ensure that existing television licences issued prior to enactment of subsections (1) to (3) remain valid in the transitional period following enactment. Subsections (4) and (5) are based on subsections (2) and (3) of section 15 of the Wireless Telegraphy Act 1926. Subsection (6) of section 3 of the Wireless Telegraphy Act 1926 excludes from licensing “apparatus for wireless telegraphy which is kept by or in the possession of the Minister for Defence for the purposes of the Defence Forces, or in any ship of war belonging to the State or any other country or state.” The current proposed provision does not explicitly exempt military premises or vehicles. However, subsection (3) empowers the Minister to make such an exemption by way of regulations. Head 54:Grant of television licences Explanation of Purpose: The objective of subsections (1) and (2) of this head is to empower the Minister to grant licences for television sets in return for a fee. It also establishes that the basis of the grant of the licence is the possession of a television set in a specified place. The wording as drafted is intended to require (a) that a television set held within a second home would require a separate licence and (b) that the Minister, should he or she so wish, require licences for each individual television set held at a particular location. Subsections (1) and (2) are based on section 5 of the Wireless Telegraphy Act 1926 as amended. The objective of subsection (3) of this head is to require television sets held in vehicles e.g. vans, ships and aircraft to be subject to licence. This provision is based on section 2 of the Wireless Telegraphy Act 1956. Head 55:Regulations in regard to television licences Explanation of Purpose: The objective of this provision is to empower the Minister to make regulations detailing the terms and conditions associated with licences. Subsections (1), (3) and (4) are based on subsections (1), (3) and (4) of section 6 of the Wireless Telegraphy Act 1926 as amended. Paragraph (1)(f) empowers the Minister to discount the television licence fee e.g. for prompt payment. The objective of subsection (2) is to restate the Minister’s power to prescribe separate television licence regimes for residential and business uses. Head 56:Ministerial power to appoint an agent to act on his or her behalf Explanation of Purpose: The purpose of this head is to empower the Minister to appoint an agent to undertake the Minister’s functions in relation to the television licensing process. The head is based on sections 76 to 79 of the Postal and Telecommunications Services Act 1983. Subsection (1) empowers the Minister to appoint a private or public body to act as agent on his behalf. For the avoidance of doubt the subsection explicitly permits the Minister to appoint An Post or RTÉ to act as his or her agent. Subsection (5) is intended to empower the Minister to request an electronic copy of the television licence database from the agent at any time, including in the event of a change of agent. Subsection (11) is intended to permit the agent, subject to the approval of the Minister, to appoint a “sub-agent” to undertake the agent’s functions. Head 57:Statutory declaration Explanation of Purpose: The purpose of this head is to permit the Minister to require a person or business to return a statutory declaration stating whether or not they possess a television licence. The head is based on section 7 of the Wireless Telegraphy Act 1926 as amended and section 20(1) of the Broadcasting Authority (Amendment) Act 1976. The head increases the time available to respond with a declaration from fourteen to twenty eight days. The head also seeks to increase the fine for failure to furnish information on whether or not the individual concerned holds a television set from €317 to €500. Head 58:Issue of search warrants Explanation of Purpose: Section 9 of the Communications Regulation Act 2002 transferred the power to obtain a search warrant to enter a premise or a vehicle and to search for, examine and seize television sets, which appear to be unlicensed from the Minister to the Commission for Communications Regulation. The purpose of this head is to restore this power to the Minister and his or her agents. The head also seeks to increase the fine for obstructing or impeding an officer of the Minister or a member of the Garda Síochána or any other person in the exercise of a power conferred by a search warrant granted under this section from €635 to €1,000 to take account of inflation since the level of the original fine was set. This head is based on section 8 of the Wireless Telegraphy Act 1926 as amended. Head 59:Penalty for not having a television licence Explanation of Purpose: The purpose of this head is to increase the fines on conviction for possession of a television set without a licence. The provision increases the fine from €635 to €1,000 for a first offence, and from €1,270 to €2,000 for a second or subsequent offence. This head is based on subsection (3) of section 3 of the Wireless Telegraphy Act 1926 as amended. Head 60:Prosecution of offences Explanation of Purpose: The purpose of this head is to establish on whose behest prosecutions are taken and the onus of proof in any such prosecution. The objective of subsection (7) of this head is to lift the veil of incorporation for offences committed by a body corporate to permit the prosecution of the officers of the body corporate. Subsection (1) is based on section 13 of the Wireless Telegraphy Act 1926. Subsections (2) and (3) are based on section 9(1) of the Wireless Telegraphy Act 1972. Subsection (4) is based on section 9(2) of the Wireless Telegraphy Act 1972. Subsection (5) is based on section 9(3) of the Wireless Telegraphy Act 1972. Subsection (6) is based on section 9(4) of the Wireless Telegraphy Act 1972. Subsection (7) is based on section 7(2) of the Broadcasting Offences Act 1968. Head 61:Amendment of section 1 of the Act of 1972 Explanation of Purpose: This head amends the definition of a television set in the Wireless Telegraphy Act 1972 original basis in the Wireless Telegraphy Act 1926. Head 62:Amendment of section 9 of the Broadcasting and Wireless Telegraphy Act 1988 Explanation of Purpose: This head is necessitated by separation of the television licence from its original basis in the Wireless Telegraphy Act 1926. Head 63:Amendment of section 4(4) of the Act of 2003 Explanation of Purpose: This head is necessitated by separation of the television licence from its original basis in the Wireless Telegraphy Act 1926. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings phase of the eConsultation:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular the Joint Committee considered that the following questions should be addressed:-
It should be noted that this is not an exhaustive list of questions asked and issues that were raised by the members of the Joint Committee. For a full transcript of the proceedings, please refer to www.econsulation.ie HearingsAt the public hearings these observations were expanded upon by the stakeholders who were represented. RTÉ accepts that there has been a very significant amount of technological development, but did not necessarily accept that the pace of the introduction of any of those developments would lead to significant differences in the licence fee collection. RTÉ also accepts that many valid points were made regarding definitions. A more pragmatic view might be that there must be some interface device for people to receive a signal. RTÉ considers that the current methodology could continue for the foreseeable future, provided it is defined in terms of households. At present, each household buys a licence and there is no restriction on the number or form of the appliances in that household. Therefore, so long as the householder has a licence the issue should be moot. RTÉ holds, with the greatest of respect to technologists, the debate could be bogged down in trying to define the many and various technological developments not yet known and the practical implementation of which is some way off. Some of the devices mentioned could require a level of broadband pipe width that may not be available in Ireland for the next number of years. Ultimately, there will be convergence with future developments. Therefore, to be practical and overcome the current difficulty, the focus should be on the reception of services in a household. The Joint Committee would suggest that if this is not accepted then the drafting of the definition must be based on defining what the licence fee does not cover rather than on defining what the licence fee covers. When the suggestion of putting the licence fee collection out to tender was raised, there were no dissenting views. Members of the Joint Committee, in questioning stakeholders about the implications of the changes proposed in the licence fee, drew attention to the current situation whereby individuals with ‘second homes’ needed to have an additional TV licence and that this policy is vigorously pursued by An Post acting as collection agents. RTÉ considered that such a burden was not onerous; if one could afford a second residence one could afford the payment of the required licence fee. Discussion ForumDuring the Discussion Forum phase there were further submissions clarifying the complexities involved in defining additional technologies under the regulations. These covered not alone designating an apparatus to be a television set but also questioned the economics of pursuing such a legislative course. Final considerations of the Joint CommitteeThis part of the proposed legislation restates and amends the existing television licence regime. Principally it proposes the establishment of the television licence regime on a separate and distinct footing from wireless telegraphy legislation. In considering the observations made, the Joint Committee selected the main areas which it determined would benefit from further discussion. The Joint Committee, having taken into consideration the observations submitted, the comments of the stakeholders and the further elaboration of points in the discussion forum considers the following germane as matters that should be addressed in the final Ministerial broadcasting legislative proposals:-
Chapter 7Part VII: Contract awardOverview:Part VII proposes a number of amendments to the process of awarding sound broadcasting contracts (radio licences). Explanation of HeadsHead 64:Restriction on the award of a sound broadcasting contract Explanation of purpose: This head is based on Section 4(7) of the Casual Trading Act 1995 and precludes the Contract Awards Committee from recommending to the BAI the award of a sound broadcasting contract (also known as a radio licence) to a person who has been convicted within the previous five years of an offence under section 3(3)(a)(ii) of the Wireless Telegraphy Act 1926 as amended by section 12 of the Broadcasting and Wireless Telegraphy Act 1988 or sections 3, 4 or 5 of the Broadcasting and Wireless Telegraphy Act 1988 (offences which currently give rise to a fine on summary conviction and conviction on indictment, and are prosecuted by the Commission for Communications Regulation). Head 65:Amendment of section 5 of the Act of 1988 Explanation of purpose: This head requires the BAI to conduct and publish an assessment of listener demand prior to directing the Contract Awards Committee to begin the process of awarding a broadcasting contract. The head also requires the Contract Awards Committee to invite public views as part of the expression of interest stage in the award of a sound broadcasting contract. The head provides that the Contract Awards Committee must publish the criteria and associated scores for the award of a broadcasting contract prior to the closing date for receipt of applications. It also requires the Contract Awards Committee to agree a common score for each applicant, and for the score of that applicant and the successful applicant to be available to the requesting applicant. The latter provisions are intended to assist in addressing concerns expressed regarding the transparency of the award of sound broadcasting contracts. Subsections (3) and (4) of this head are based on Section 39 of the Broadcasting Act 2001 and require the BAI to conduct an assessment of the demands of listeners to whom the proposed sound broadcasting service is to be addressed. Subsections (5) and (6) of this head are intended to require the Contract Awards Committee to invite the views of the public on the proposal to award a sound broadcasting contract. Head 66:Amendment of section 6(5) of the Act of 1988 Explanation of purpose: This head requires the Contract Awards Committee, with a view to transparency to notify an unsuccessful applicant of the reasons for their decision including relevant scores. Head 67:Amendment of section 6(1) and (2) of the Act of 1988 Explanation of purpose: Subsections (2A) and (2B) of this head require the staff/executive of the BAI to review each application for a sound broadcasting contract and to submit a report of their findings to the Contract Awards Committee in order that the Committee may reach its decision having had the benefit of the expertise and experience of the BAI executive. Paragraph (k) would permit the Contract Awards Committee, at the direction of the BAI, to consider the amount of any once-off cash bid proposed by an applicant, as one of the selection criteria in a sound broadcasting contract award process. The wording of this part of the head draws from section 3 of the UK Wireless Telegraphy Act 1998 as amended by Section 167 of the UK Communications Act 2003. Paragraph (l) and (m) would permit the Contract Awards Committee, at the direction of the BAI, to consider the amount of any (a) periodic cash payment or (b) royalty proposed by an applicant, as one of the selection criteria in a sound broadcasting contract award process. The wording of this part of the head draws from section 3 of the UK Wireless Telegraphy Act 1998 as amended by section 167 of the UK Communications Act 2003. Head 68:Amendment of section 6(4) of the Act of 1988 Explanation of purpose: This head requires the Contract Awards Committee to consider reports from the Compliance Committee in making its assessment under subsection (4) of Section 6 of the Radio and Television Act 1988 as amended, of the suitability of applicants for the award of a sound broadcasting contract. Head 69:Fast track procedure Explanation of purpose: This head outlines the “fast track” procedure that the Contract Awards Committee may adopt in the event that there is a limited response to a call for expressions of interest for the award of a sound broadcasting contract. The head limits the term of a “fast tracked” contract to five years. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee in its considerations of the observations received, determined that the observations did not require further discussion at the public hearings. HearingsAt the public hearings this part of the General Scheme was not raised with the stakeholders present. Discussion ForumThere were no discussion forum threads associated with this part of the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme contains a number of amendments to the process of awarding sound broadcasting contracts (radio licences). The Joint Committee has no recommendations, findings or observations to make in relation to this part of the General Scheme. Chapter 8Part VIII: Public service broadcastersOverview:Part VIII provides for the establishment of RTÉ and Teilifís na Gaeilge (TG4) as separate companies under the Companies Acts, replacing the existing RTÉ Authority. It also sets out the duties, management structures, supervisory and corporate governance arrangements, which would apply to both RTÉ and Teilifís na Gaeilge. Explanation of HeadsHead 70:Formation of the company Explanation of purpose: This head provides for the setting up and registration of RTÉ and Teilifís na Gaeilge as companies limited by guarantee without share capital under the Companies Acts 1963 to 2005. It also outlines the procedure to be followed in the event that a decision is taken to wind up the companies. The head is based on Section 9(1) of the Postal and Telecommunications Services Act, 1983. Head 71:Vesting day Explanation of purpose: This head provides for a vesting day for Radio Teilifís Éireann or Teilifís na Gaeilge to be set by the Minister. The provision is based on Section 9(2) of the Postal and Telecommunications Services Act, 1983. Head 72:Name and capital formation Explanation of purpose: This head provides for the name and extent of the capital guarantee of RTÉ and Teilifís na Gaeilge (the exact amount to be ascribed to x for the two companies is currently being considered). All registered companies limited by shares or by guarantee are required to have the words Teoranta or Limited in their name unless provided for by law. Subsection 2 of this head removes this requirement for RTÉ and Teilifís na Gaeilge. The text is based on Section 10 of the Postal and Telecommunications Services Act, 1983 and Section 6(3) of the Companies Act 1963. Head 73:Membership of the company Explanation of purpose: This head provides that the Minister shall be the guarantor of RTÉ and Teilifís na Gaeilge and that the cost of meeting the guarantee shall be met from Central Funds. The provision is based on Sections 19(4), 22(2), 24(1) and 26 of the Postal and Telecommunications Services Act 1983. Head 74:Form of memorandum of association of the company Explanation of purpose: This head requires the Minister to draw up and issue by order the initial memorandum of association of RTÉ and Teilifís na Gaeilge. The memorandum of association, which outlines the purposes of a company under the Companies Acts, is required to be in accordance with the rest of the Act and can be annulled by way of a resolution passed by either House of the Oireachtas. Subsection (1) of this provision is based on Section 11 of the Postal and Telecommunications Services Act 1983. Head 75:Supplementary services, variation in channels and “sub-contracting” Explanation of purpose: This head requires that where RTÉ or Teilifís na Gaeilge propose to (a) vary the number of channels they provide, (b) subcontract a significant activity to a third party or (c) engage in an activity which is on the margin, but in accordance, with their remit, and which will cost in excess of €5 million per annum, but may add public value, they must first seek the consent of the Minister. The Minister before granting such consent must consult with the BAI as to the public value and sectoral impact of such an activity. Head 76:Duty of the company with respect to its revenue Explanation of purpose: This head is a standard provision which imposes a duty on RTÉ and Teilifís na Gaeilge to act prudently and ensure that their revenues match expenditure and that provision is made for any necessary capital expenditure. This head mirrors Section 24 of the Broadcasting Authority Act 1960. Head 77:Duty to maintain archives Explanation of purpose: This head requires RTÉ and Teilifís na Gaeilge to (i) establish and maintain an archive of programming over which they hold rights, (ii) to prepare a scheme for the educational and commercial reuse of such programme material. Head 78:Independence Explanation of purpose: This head provides that RTÉ and Teilifís na Gaeilge will be independent in terms of the content and timing of broadcasts. The provision draws on section 2.1 of the agreement dated 25 January 1996 between the UK Secretary of State for National Heritage and the BBC. Head 79:Emergencies Explanation of purpose: This head outlines the role and duties of RTÉ and Teilifís na Gaeilge in relation to emergencies. Subsection (1) is based on Section 4(11) of the Radio and Television Act 1988. Subsection (2) is based on Section 4(10)(e) of the Radio and Television Act 1988. Subsection (3) is based on clause 8.4 of the Agreement dated 25 January 1996 between the BBC and the Secretary of State for National Heritage and is intended to provide certainty as to the Minister’s power to meet the costs necessary to continue the operation of a broadcasting service over which the Minister has assumed control in the event of an emergency. Subsections (4) and (5) are based on Section 31(2) of the Broadcasting Authority Act 1960. Head 80:Articles of association - approval of form Explanation of purpose: This head provides that the Minister shall by order approve the articles of association, which establish the internal rules of a company under the Companies Acts, of RTÉ and Teilifís na Gaeilge and that such an order will be subject to annulment by a resolution of either House of the Oireachtas. The provision is based on Section 16 of the Postal and Telecommunications Services Act 1983. Head 81:Chairperson and directors Explanation of purpose: Outlines the procedure for the appointment, disqualification and removal of the directors and chairperson of RTÉ and Teilifís na Gaeilge. The head proposes a staggered approach to the retirement of directors for continuity purposes. Head 82:Appointment of staff director Explanation of purpose: Provides for one director of RTÉ and Teilifís na Gaeilge to be elected by staff interests. Head 83:Exclusions from directorship Explanation of purpose: Provides for the cessation from directorship of RTÉ and Teilifís na Gaeilge of persons nominated or elected to the Houses of the Oireachtas or the European Parliament. For the purposes of avoiding conflicts of interest, the head excludes persons who hold a defined interest or employment (save for creative or educational positions) in a commercial or community broadcaster or a newspaper, or who hold membership of the BAI or its statutory committees from becoming a director of RTÉ and Teilifís na Gaeilge. Head 84:Director general Explanation of purpose: Provides for the appointment of director generals to act as the chief executives of RTÉ and Teilifís na Gaeilge for a period of seven years, renewable for a further period of three years. The head also provides for transitional arrangements relation to the director general of RTÉ. Head 85:Directorship of director general Explanation of purpose: Provides that the director generals of RTÉ and Teilifís na Gaeilge shall serve as directors of their respective companies. Head 86:Meetings Explanation of purpose: Sets outs the rules for RTÉ and Teilifís na Gaeilge in relation to the chairing of meetings of the companies, quora and voting rules. Head 87:Establishment of subsidiaries, investments, joint ventures Explanation of purpose: Empowers RTÉ and Teilifís na Gaeilge to form or acquire subsidiaries, make investments and to enter into joint ventures or partnerships for the purpose of fulfilling any of their functions. However, this power is subject to the consent of the Minister and the Minister for Finance, the Minister having consulted with the BAI as to the sectoral impact of such a proposal. Head 88:Restriction on alteration of memorandum or articles of association Explanation of purpose: Provides that alterations to the memorandum and articles of association of RTÉ and Teilifís na Gaeilge are subject to the approval of the Minister, the Minister having consulted with the BAI. It also provides that changes to the memorandum of association are subject to a negative resolution of each House of the Oireachtas. Head 89:Duties of directors Explanation of purpose: Imposes duties on the directors of RTÉ and Teilifís na Gaeilge additional to those imposed on company directors under common law and the Companies Acts. It proposes specific duties for the directors in relation to both the public service character of RTÉ and Teilifís na Gaeilge’s activities and their independence as broadcasting services (subject to legislative provisions regarding broadcasting duties, codes and rules etc). Head 90:Seals of the companies Explanation of purpose: Based on Section 9 of the Broadcasting Authority Act 1960. Head 91:Staff Explanation of purpose: Provides that RTÉ and Teilifís na Gaeilge may appoint staff by way of public competition and that the existing staff of RTÉ would transfer to the new companies without adversely impacting on their existing pay and conditions. Head 92:Superannuation Explanation of purpose: Intended to provide for the continuation of the existing superannuation benefits and other pension arrangements of existing employees of RTÉ and Teilifís na Gaeilge. Head 93:Code of conduct Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to draw up a code of conduct with regard to conflicts of interest and ethical behaviour to apply to the directors, staff, advisers, members of an advisory committee and certain categories of contractors of RTÉ and Teilifís na Gaeilge or their subsidiaries. Head 94:Declaration of interests Explanation of purpose: Requires that each director, adviser and certain categories of staff and contractors for services of RTÉ and Teilifís na Gaeilge make a declaration of his or her interests. The head also requires a register of such interests to be maintained by RTÉ and Teilifís na Gaeilge, and that such register be made publicly available. Head 95:Disclosure by members of companies of certain interests Explanation of purpose: Outlines the disclosure of interest requirements for directors of RTÉ and Teilifís na Gaeilge. Head 96:Disclosure by staff and contractors for services of certain interests Explanation of purpose: Outlines the disclosure of interest requirements for certain categories of staff and contractors for services of RTÉ and Teilifís na Gaeilge. Head 97:Accountability of director general to Committee of Public Accounts Explanation of purpose: Requires the director generals of RTÉ and Teilifís na Gaeilge to give evidence at the Public Accounts Committee. Head 98:Accountability of director general to other Oireachtas Committees Explanation of purpose: Requires the director generals of RTÉ and Teilifís na Gaeilge to attend before Oireachtas committees to give evidence as to the administration of the company concerned. Head 99:Power to borrow Explanation of purpose: Provides that RTÉ and Teilifís na Gaeilge may borrow up to a set limit without the consent of the Minister or the Minister for Finance. Any borrowings above the set limit will require the consent of the Minister and the Minister for Finance, the Minister having consulted with the BAI as to the sectoral impact of the use of such borrowings. Head 100:Accounts and audits Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to maintain financial records and accounts and to prepare budgetary estimates. The head also requires RTÉ and Teilifís na Gaeilge to, following guidance from the BAI as regards cost accounting principles, to prepare a statement of revenues and costs distinguishing as between commercial and public service activities. Head 101:Transactions between public service and non-public service activities Explanation of purpose: Aims to ensure that all transactions undertaken between the public service and commercial elements of RTÉ and Teilifís na Gaeilge are made on an arm’s length basis, and that any profits arising from such commercial activities would be utilised to subsidise public service broadcasting activities. Head 102:Strategic plans Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to produce a strategic/corporate plan. Head 103:Public service broadcasting charter Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to prepare public service broadcast charters which outline the activities they will undertake over a five year period in order to meet their statutory remits. Any public service broadcasting charter must be approved by the Minister, following consultation with the BAI, before being adopted by RTÉ and Teilifís na Gaeilge. Head 104:Annual statement of commitments Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to each year prepare an annual statement of commitments which outline the intended outputs of the broadcaster in the following twelve months. The annual statement of commitments must be in accordance with the broadcaster’s statutory remit and public service broadcasting charter. The head also requires the broadcaster to report on realisation or otherwise of commitments made. Head 105:Reports and information Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to produce an annual report and such information as the Minister and BAI may on occasion require including remuneration levels. Head 106:Advertisements and sponsorship Explanation of purpose: Outlines the particular requirements placed on RTÉ and Teilifís na Gaeilge as regards advertising and sponsorship. Head 107:Code of fair trading practice Explanation of purpose: Requires RTÉ and Teilifís na Gaeilge to prepare, following guidance from the BAI, a code setting out the principles that it must apply when commissioning programming from independent producers. Any code prepared will be subject to Ministerial approval. Head 108:Audience council Explanation of purpose: Places the existing RTÉ Audience Council on a statutory footing and establishes a separate audience council for Teilifís na Gaeilge. The head requires RTÉ and Teilifís na Gaeilge to resource the activities of their respective audience councils including the provision of a limited amount of airtime. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular the Joint Committee considered that the following questions should be addressed:-
This not an exhaustive list of questions asked and issues that were raised by the members. For a full transcript of the proceedings please refer to www.econsultation.ie HearingsAt the public hearings, these observations were expanded upon by the stakeholders who were represented. Members raised the question as to what constitutes public sector broadcasting by pointing out that what was being discussed concerns the fact that we have a broadcasting industry with a public component and an independent commercial component. On that basis the Joint Committee sought the views of the Competition Authority on the definition of public service broadcasting and on how this should be done and on the legislative consequences. The Competition Authority acknowledged that the essential question concerns defining the public broadcasting service’s remit. RTÉ is receiving €200 million per year. What does the public who fund this expect to receive in return? The Competition Authority in its submission highlighted its belief that the definition of this remit is absolutely essential. The entire thrust of the Competition Authority submission has been to increase the accountability of those entrusted with delivering the public service remit. RTÉ when asked for its consideration of what constitutes public sector broadcasting pointed out that it has not addressed the question of defining or deciding on what is public service broadcasting in their submissions. However, following further questions, the members elicited the response from RTÉ that RTÉ believes that public service television should be seen as the range of programmes it offers across all of its channels. Public service television is not just particular programmes such as “The Late Late Show” or “Prime Time”. It is the breadth and range of programmes which are designed to be fair and impartial and directed towards the audiences. RTÉ also believe there is an issue of quality in public service broadcasting and that RTÉ should be a leader in its field. A narrow definition of public service broadcasting which identifies particular programmes is not helpful. What must be examined is the range of services. TV3 pointed out that there is no definition of public service broadcasting in Ireland, other than that it is a variety of programming. Under European law, while the state is entitled to have a definition of public service broadcasting, it is nonetheless meant to be precise and define the areas it covers. There is no EU definition of public service broadcasting and this is not dealt with in the General Scheme. The Joint Committee asked the general question as to whether sponsorship should be treated as advertising, if there was satisfaction that the provisions in the General Scheme to deal with this issue and if RTÉ dealt differently in its use of sponsorship considering the special conditions attached to advertising time. RTÉ responded by defining what constitutes an ad-break and separately, sponsorship. Specifically, sponsorship and advertising are recognised as separate across Europe. Sponsorship is a material contribution to a programme and can take many forms. As an example, sponsorship can be monetary, in that one can pay a sum to be associated with a programme or a sponsor could make a fully funded programme. Further, sponsorship can also take the form of the provision of facilities, such as a place or location at which the broadcasters are allowed to make a programme. It can also take the form of skills in the provision of certain expertise free for a programme that might otherwise be relatively expensive to make. The current law states that, if there is a sponsorship arrangement, it must be made clear to the viewing or listening public. Sponsorship is outside of the regulations that deal with advertising minutage. In response to further questions from the Joint Committee, RTÉ reiterated that sponsorship has historically always been treated separately. The Joint Committee specifically asked if there should be quotas introduced for sponsorship and the BCI replied that this was not current practice but perhaps something that should be considered. The Joint Committee raised the need to consider the need to encourage advertising in Irish and whether this should be extended to other minority languages. The Joint Committee asked if we should more explicitly require everybody, both commercial and public service broadcasters, to be more inclusive in terms of the new, modern cosmopolitan and multi-cultural Ireland. RTÉ responded by agreeing that it is absolutely correct that a mirror must be held up to a changing society. RTÉ Radio 1 is experimenting by introducing ethnic programmes and ethnic presenters to present programmes for their communities. That is a positive development which will probably grow. In relation to the code of fair trading practice, the Joint Committee drew attention to its understanding that RTÉ opposes the introduction of a code on fair trading practices which might change the current scenario in which it holds a 100% interest in the majority of material it commissions. While RTÉ clarified that it does have a published code of fair trading practice the Joint Committee suggested it would be preferable if RTÉ were to recognise that the financial investment in a programme is not the only investment and that creative investment is just as valuable an asset as the financial contribution. This could be done by transferring a proportion of rights to independent producers, screen writers or other involved. SPI, representing the independent production sector, welcomed the General Scheme on which SPI was in dialogue with the Department of Communications, Marine and Natural Resources. SPI particularly welcomed the introduction in Head 107, the code of fair trading practice. Overall, approximately €150 million per annum is spent on independent film and television production. Internal expenditure by RTÉ on television programme production amounts to approximately €200 million per annum. These figures show that the industry is of major importance. Ireland needs to be part of the information society and the digital content creation society. Ireland needs to have developed, sophisticated industries capable of paying the wages and salaries that people deserve. To achieve this, the right industries with the right focus are needed. RTÉ stated that, in terms of recognition of the creative investment of the producer, this investment is recognised in that producers are paid to make the programmes. They are paid a production fee and if they work on the programme, they are paid as producers. They also receive a share of revenues from the exploitation of the programme. The creative input into the programme is, therefore, in the view of RTÉ, recognised. On the question of using the UK model, RTÉ advised that the market in the United Kingdom is substantially different from the Irish market. RTÉ suggested that it would be better to examine countries such as Austria and Switzerland where the position is similar to that here in that their respective public service broadcasters compete against competitors in the domestic market and also face substantial external competition. Further, Austria, like Ireland with UK spill over broadcasts, gets spill over broadcasts from German channels. The United Kingdom model should not be applied to RTÉ because, in RTÉ’s view, the markets are different. TG4 explained that it has similar terms of trade with the independent production sector as RTÉ. TG4 is currently in negotiations with SPI and believe the broadcaster should retain broadcasting rights for the island of Ireland in perpetuity. In return, the independent producer would retain ownership of the programming for exploitation. TG4 will continue its negotiations with SPI. SPI explained further the complexity of the issues on fair trading practices. First, producers do not own the rights, RTÉ owns the rights. RTÉ will not sell the rights without the producer’s consent but, equally, the producer cannot sell the rights without RTÉ’s consent so there is a deadlock. Ultimately, the producers need an incentive to go out and sell their products and this is not there as SPI has to go cap in hand to RTÉ every time to ask permission to sell a programme. SPI wants a new code of fair trade practice such as is now in place in the UK and which a great benefit to independent producers. A number of stakeholders raised concerns regarding the new structure of the Audience Council; this was summarized by RTÉ’s explanation of the current structure and a request that this be retained in preference to the proposed new model which is considered to be less democratic. The Joint Committee suggested that the notion of an Audience Council be expanded to cover the commercial sector as well as RTÉ. However, this was rejected by TV3 as unnecessary given that the Audience Council for RTÉ was set up as a function of a licence fee increase and the commercial sector is already monitored and regulated effectively by the BCI and ultimately by the viewers. Discussion ForumThere were a number of follow up submissions on the discussion forum. IBI welcomed the opportunity to contribute to the debate following the lengthy discussion on the definition and role of public service broadcasting which ensued on the second day of the public hearings. The IBI has argued strongly that the 20% news and current affairs requirement currently imposed upon its members represents a significant public service broadcasting contribution. The strength of the market share held by IBI’s combined membership (currently 63% according to latest JNLR figures) indicates that this is an appropriate and sufficient response to listeners needs. SPI strongly suggest that the BAI’s proposed powers under Head 107 and Head 25 should be ones of direction rather than guidance, as currently suggested. Furthermore SPI considers that one of the obligations of the BAI should be to direct the PSB to support indigenous film production. One of the key obligations of any PSB should be the support and promotion of Ireland’s national culture in its many forms and in the view of SPI the PSB has a key responsibility to ensure ‘Irish stories are told to Irish people’. One of the key platforms for fulfilling this obligation is indigenous film production and for this ‘cultural’ reason alone the PSB should be obliged to support indigenous film production, as is the case with the vast majority of PSB’s internationally. SPI believes, despite the fact that there is a Government agency that is tasked with supporting the Irish film industry, that the PSB has a separate and distinct responsibility in this area. SPI recommends that this support could be part funded by a reallocation of the PSBs annual spend on the acquisition of foreign film titles which could be invested in domestic film production. Further, to this end it is essential that the final legislation recognises the fundamental principle that the creator of any work owns the work and therefore arrangements for the retention of rights with the PSB should reflect this, with the intellectual property rights of any work being held 100% by the creator of such work. The PSB should be granted only sufficient rights in the work to fulfill its pubic service broadcasting obligations. Apart from the fairness of such arrangement, it would also allow independent production companies to increase their asset base through the accumulation of independent producers’ rights thus attracting investment to the industry and creating companies of scale which would contribute to the long term sustainability of the independent production sector. It should not be allowed that a PSB can retain rights in productions created by independent producers, beyond the rights required to fulfill its public service broadcasting obligations. Allowing independent producers retain the rights in the productions they create will also allow them to exploit such rights internationally to the commercial benefit of the producer and the PSB. It was considers that one of the main principles of public service broadcasting is that broadcasting should be distanced from all vested interests and, in particular, from those of the Government of the day. In this regard it was felt that the idea of an Audience Council is too narrowly focused and too in-house, it would be better to have both television and radio programmes dealing with broader issues, complaints etc and have the controllers justify their decisions to the available audience. RTÉ should seize the initiative and start with a radio ‘feedback’ type programme. It was noted that the current Audience Council is due to cease term at the end of 2007. Any new Audience Council would best be served if some of the current members were retained for experience and continuity purposes. The best way forward also would be to follow a strategy that would embrace all service providers and include such broadcasters like TodayFM and TV3. As it stands it represents the views and comments on the one national broadcaster which, while helpful, clearly does not focus on the total market. It was considered that there should be a need to set out a citizen’s charter for the Audience Council and those who are providers in the industry should be required to sign up to such a charter. It should be mindful, too, to do this work in the spirit of equality and multiculturism which ensures that the wider audience could feed into the process going forward and could expect a report on progress of the council, at least on a yearly basis. The body (any future council) would need to be independent of any of the service providers. Similar to the role played by its Audience Council, RTÉ should establish a forum for the media representatives of religions in Ireland in order to facilitate comment and feedback on its programming content. Models for dialogue between media representatives of religions and broadcast networks have been adopted by public service and commercial broadcasters elsewhere. Final considerations of the Joint CommitteeThis part of the General Scheme provides for the establishment of RTÉ and Teilifís na Gaeilge (TG4) as separate companies under the Companies Acts, replacing the existing RTÉ Authority. It also sets out the duties, management structures, supervisory and corporate governance arrangements, which would apply to both RTÉ and Teilifís na Gaeilge. The importance of this part of the General Scheme was underlined by the volume of observations, 136 submitted. In considering these observations, the Joint Committee selected the main areas which it determined would benefit from further discussion. The Joint Committee, having taken into consideration the observations submitted, the comments of stakeholders and the further elaboration of points in the discussion forum, has reached the following conclusions with regard to this part of the proposed legislation:-
Chapter 9Part IX: Provisions specific to Radio Teilifís ÉireannOverview:Part IX describes the remit and associated powers of the proposed RTÉ company. It also restates the duties of RTÉ as regards the supply of programming to Teilifís na Gaeilge (TG4) and the commissioning of television programming from the independent sector Explanation of HeadsHead 109:Principal objects and associated powers of Radio Teilifís Eireann Explanation of purpose: Under Irish company law the objects clause in the memorandum of association of a company sets out the aims and purposes of the company. Also contained in the objects clause will be a list of transactions permissible in pursuit of such objects (express powers). Subsection (1) of this Head outlines the objectives of RTÉ. Subsection (4) outlines the associated express powers of RTÉ. The Head proposes two new categories of objectives. The first category includes the maintenance of a website by the company, assisting the relevant public bodies to disseminate information in the event of an emergency and broadcasting to Irish communities living abroad. The second category of objectives includes objectives that may not be pursued by RTÉ without ministerial consent, the Minister having first consulted with the BAI on the public value and sectoral impact of the proposal. This category includes (a) involvement in local, regional and community broadcasting, (b) pay-per-view broadcasting of a public service nature and (c) the making of non-broadcast content available on the Internet e.g. additional footage which may have been edited from a broadcast programme. It is proposed that objects (a) to (i) in subsection (1) of the head may be subvented by public funding. Subsection (1)(e) is based on section 3(m) of the BBC Charter Subsection (1)(f) is based on section 30(1) of the Hungarian Radio and Television Broadcasting Act 1996 Subsection (1)(h) is based on Article 1(e) of the proposed amendment of Council Directive 89/552/EEC (Television Without Frontiers Directive). Subsection (1)(j) is based on section 8(5) of the Digital Hub Development Agency Act 2003. The remainder of the head mirrors Sections 16 and 17 of the Broadcasting Act 1960 as amended by Sections 5 and 7 of the Broadcasting Authority (Amendment) Act, 1966, Sections 7, 12, 13 and 21 of the Broadcasting Authority (Amendment) Act, 1976, Section 3 of the Broadcasting Authority (Amendment) Act, 1979, and Sections 6, 28, 29 and 30 of the Broadcasting Act, 2001. Subsection 4(q) is based on Section 2 of the Communications Regulation Act 2002. Head 110:Alterations by Minister to the remit of Radio Teilifís Eireann Explanation of purpose: This head empowers the Minister to add to the categories of programming required of RTÉ. The head is based on section 28(3) of the Broadcasting Act 2001. Head 111:Duty to supply one hour of programme material daily to Teilifís na Gaeilge Explanation of purpose: This head mirrors Section 47 of the Broadcasting Act 2001. Head 112:Spectrum licence Explanation of purpose: This head is based on Section 16(3) of the Broadcasting Authority Act 1960 with the addition of the specification of to whom the licence shall be issued. Head 113:Independent television programme account Explanation of purpose: This head restates the existing obligation on RTÉ to maintain a separate fund for the commissioning of a minimum level of television programming from the independent sector. Subsections (2) and (5) have been structured to allow monies paid into the fund to be spent over a three year period rather than just in the financial year concerned. This is intended to facilitate multi-annual commissioning. The head is based on Sections 4 and 6 of the Broadcasting Authority (Amendment) Act 1993, as amended by Section 33 of the Broadcasting Act 2001. Subsection 10 is based on Section 1(2) of the Broadcasting Authority (Amendment) Act 1993. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings phase of the eConsultation:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee in its considerations of the observations received, determined that the issues raised under these observations, where necessary, were being covered in the considerations of other parts of the General Scheme. HearingsThere were no specific questions addressed under Part IX in the public hearings phase of the eConsultation process. Discussion ForumThere were no discussion forum threads associated with Part IX of the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme describes the remit and associated powers of the proposed RTÉ company. It also restates the duties of RTÉ as regards the supply of programming to Teilifís na Gaeilge (TG4) and the commissioning of television programming from the independent sector. The Joint Committee having reviewed the observations submitted and in consideration of the issues covered in other parts of the General Scheme has no specific recommendations on this specific part of the General Scheme. Chapter 10Part X: Provisions specific to Teilifís na GaeilgeOverview:Part X describes the remit and associated powers of the proposed Teilifís na Gaeilge (TG4) company. Explanation of HeadsHead 114:Principal objects and associated powers of Teilifís na Gaeilge Explanation of purpose: This head outlines the express objects and powers of Teilifís na Gaeilge which in the main mirror those of RTÉ as outlined in Head 109. Subsections (2), (3) and (5) define the nature of programming expected from Teilifís na Gaeilge. The head draws from Section 45 of the Broadcasting Act, 2001. Head 115:Alterations by Minister to the remit of Teilifís na Gaeilge Explanation of purpose: This head empowers the Minister, after consulting with the BAI, to add to the categories of programming required from Teilifís na Gaeilge. The head is based on Section 28(3) of the Broadcasting Act 2001 Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings phase of the eConsultation:-
Considerations of the Joint Committee in relation to these observationsThe Joint Committee, in its considerations of the observations received, determined that certain questions had been raised which would benefit from further consideration at the webcast public hearings. In particular, the Joint Committee considered that the following questions should be addressed:-
It should be noted this is not an exhaustive list of questions asked and issues that were raised by the members of the Joint Committee. For a full transcript of the proceedings please refer to www.econsultation.ie HearingsAt the webcast of the public hearings the stakeholders expanded upon the observations made and answered questions raised by the members of the Joint Committee. In the first instance in relation to this part of the General Scheme, as well as in other related parts, the stakeholders re-iterated the importance of promoting and protecting the Irish language and Irish culture through this legislation. It was pointed out that whilst the new diversity in languages spoken daily in Ireland is to be welcomed, nevertheless, special and unique provision must also be made for Irish language and Irish culture. This was supported by all stakeholders present. The Joint Committee asked if additional protection was needed to ensure the special status and remit of TG4, so that at no point in the future could a Minister change this without enacting further legislation. While it is understandable that no direct response was given it is equally understandable there was general consensus amongst the stakeholders that the special provision for the Irish language and Irish culture should be maintained within TG4. The Joint Committee also raised the importance of having TG4 available in Northern Ireland and, perhaps, England as well in the same way that RTE is currently available. TG4 highlight to the Joint Committee the importance of having adequate financing and in particular mentioned an annual budget of €50 million which would give the station an amount of protection and certainty. TG4 also agreed with the Joint Committee that all members of the TG4 Audience Council should be fluent Irish speakers and that TG4 should have ‘must carry status’ on the EPGs of operators regulated in Ireland. There was support for ensuring that Irish language programmes across all broadcasters are not relegated to late-night slots with limited audiences. Discussion ForumThere were no discussion forum contributions under this part of the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme describes the remit and associated powers of the proposed Teilifís na Gaeilge (TG4) company. There were a number of observations submitted to the committee with regard to the Independence and remit of the proposed Teilifís na Gaeilge (TG4) company. The Joint Committee, having taken into consideration the observations submitted, the comments of the stakeholders and the further elaboration of points in the discussion forum considers the following germane as matters that should be addressed in the final Ministerial broadcasting legislative proposals:-
Chapter 11Part XI: Allocation of Public FundingOverview:Part XI outlines the mechanism for the oversight and allocation of public funding to RTÉ and Teilifís na Gaeilge (TG4) in order to meet their public service remits. Explanation of HeadsHead 116:Allocation of public funding Explanation of purpose: Subsection (1) of this head provides that the Minister with the approval of the Minister for Finance may pay to RTÉ out of Voted funds an amount equivalent to the total receipts from the television licence fee less (a) the costs of the collecting the television licence fee and (b) amounts paid over to the Broadcasting Fund. The provision is based on Section 8 of the Broadcasting Authority (Amendment) Act 1976 (as amended by Section 23(5) of the Broadcasting Act 2001 and Section 4(3) of the Broadcasting (Funding) Act 2003). Subsection (2) of this head restricts the use by RTÉ of the funds outlined in subsection (1) to specific public service objects outlined in Head 109, payment of any sectoral levy and compliance with its proposed duties under heads 77, 79, 108 and 111. This provision is based on section 28(8) of the Broadcasting Act 2001. Subsection (3) of this head grants the Minister the power, subject to consent of Minister for Finance, to make Exchequer funding available to RTÉ for public service purposes. This provision is based on section 51 of the Broadcasting Act 2001. Subsection (4) of this head grants the Minister the power, subject to the consent of the Minister for Finance, to make Exchequer funding available to Teilifís na Gaeilge for the purposes of the public service objects outlined in Head 114, payment of any sectoral levy and compliance with its proposed duties under heads 77, 79 and 108. This provision is based on section 51 of the Broadcasting Act 2001. Head 117:Recommendations as to changes to public funding Explanation of purpose: The purpose of this head is to establish a statutory mechanism for (i) annual reviews of public funding to RTÉ and Teilifís na Gaeilge and (ii) for a five year fundamental review of the adequacy or otherwise of public funding to RTÉ and Teilifís na Gaeilge. The head proposes that on an annual basis the BAI, or an agent thereof, will review the extent to which RTÉ and Teilifís na Gaeilge have met their commitments under their annual statement of commitments and make a recommendation to the Minister as to how much the (a) licence fee should increase (capped at CPI + 1%) or decrease and (b) Exchequer amounts paid to Teilifís na Gaeilge or RTÉ should increase or decrease. The Minister will not be bound by the BAI’s recommendation. The Minister will be required to publish his or her response to the BAI’s recommendation. The head also proposes that every five years, or at the direction of the Minister, the BAI will review the adequacy of public funding to support public service broadcasting against a number of set criteria (including the companies public service broadcasting charters). The BAI will make a recommendation to the Minister as to alterations in the television licence fee and the Exchequer amounts paid to Teilifís na Gaeilge or RTÉ and the Minister will take these recommendations to Government for decision. The Government will not be bound by the BAI’s recommendation, but would be required to publish its response to the BAI’s recommendation. The head is based on Section 7 of the Telecommunications (Miscellaneous Provisions) Act, 1996 and Section 264 of the UK Communications Act 2003. Head 118:Amendment of section 2(2) of the Act of 2003 Explanation of purpose: The purpose of this head is to permit the funding of Irish language programmes by community and commercial broadcasters in off-peak periods. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings phase of the eConsultation:-
Considerations of the Joint Committee in relation to these observations:The Joint Committee examined the observations received and determined that the there were no issues which would benefit from further discussion at the public hearings phase of the eConsultation. HearingsAt the public hearings, this part of the General Scheme was not raised with the stakeholders present. Discussion ForumThere were no discussion forum threads associated with this part of the General Scheme. Final considerations of the Joint CommitteeThis part of the General Scheme outlines the mechanism for the oversight and allocation of public funding to RTÉ and Teilifís na Gaeilge (TG4) in order to meet their public service remits. The Joint Committee noted under Part X: Provisions specific to Teilifís na Gaeilge the request by TG4 to have adequate financing that gives protection and certainty to TG4. As the provisions of this part of the General Scheme relate to the Allocation of Public Funding the Joint Committee, to emphasis the importance which the Joint Committee attached to this issue made the same recommendation again as made under Part X of the General Scheme, namely
Chapter 12Part XII: Transitional provisionsOverview:Part XII proposes a number of transitional arrangements in relation to the replacement of the Broadcasting Commission of Ireland and the Broadcasting Complaints Commission by the Broadcasting Authority of Ireland; and the replacement of the RTÉ Authority by the proposed RTÉ and Teilifís na Gaeilge (TG4) companies. Explanation of HeadsHead 119:Dissolution of the Broadcasting Commission of Ireland Explanation of purpose: This Head provides for the dissolution of the Broadcasting Commission of Ireland (BCI) on the day that the Broadcasting Authority of Ireland (BAI) is established. Head 120:Dissolution of the BCC Explanation of purpose: This Head provides for the dissolution of the Broadcasting Complaints Commission on the day that the Compliance Committee is established. Head 121:Dissolution of the RTÉ Authority Explanation of purpose: This Head provides for the dissolution of the RTÉ Authority. Head 122:Transitional provisions - general Explanation of purpose: This Head is intended to ensure that the BAI and its statutory committees will be substituted for existing legislative references to the BCI. Head 123:Transitional provisions - BCI Explanation of purpose: This Head provides that the BAI and its statutory committees on establishment will assume the assets, rights, proceedings and liabilities of the BCI. Subsections (1) to (6) are based on section 52(1) to (6) of the Broadcasting Act 2001. Head 124:Transitional provisions - BCC Explanation of purpose: This Head provides that any assets, liabilities, contracts, proceedings or investigations relevant to the Broadcasting Complaints Commission would transfer to the Authority or the Compliance Committee on the establishment of the BAI and its statutory committees. Subsection (5) is based on Section 52(7) of the Broadcasting Authority Act 2001. Head 125:Transitional provisions – broadcasting codes Explanation of purpose: This Head provides that existing extant broadcasting codes or rules prepared under the Broadcasting Act 1990 or the Broadcasting Act 2001 shall continue in force until replaced by a code or rule prepared under this Act. This head is based on Section 19(17) of the Broadcasting Act 2001. Head 126:Transitional provisions – RTÉ Explanation of purpose: This Head provides for the transfer of all assets and liabilities of the RTÉ Authority to the new RTÉ company. The head is based on Section 52 of the Broadcasting Act 2001. Head 127:Final Accounts of the BCI Explanation of purpose: This Head requires the BAI to prepare the final accounts of the BCI. Head 128:Final Accounts of RTÉ Authority Explanation of purpose: This Head requires the new RTÉ company to prepare the final accounts of the RTÉ Authority. Head 129:Exemption from Stamp Duty Explanation of purpose: This Head is intended to exempt the transfer of property from the BCI and the RTÉ Authority to the BAI and the new companies from any requirements in relation to stamp duty. The head is based on Section 43 of the Postal and Telecommunications Services Act 1983. Observations submitted to the Joint CommitteeThe Joint Committee examined the observations received and determined that the following issues would benefit from further discussion at the public hearings phase of the eConsultation:-
Considerations of the Joint Committee in relation to these observations:The Joint Committee, in its considerations of the observations received, determined that the observations did not require explicit discussion at the webcast public hearings. HearingsAt the public hearings, this part of the General Scheme was not raised with the stakeholders present. Discussion ForumThere were no discussion forum threads associated with this part of the General Scheme Final considerations of the Joint CommitteeThis part of the General Scheme proposes a number of transitional arrangements in relation to the replacement of the Broadcasting Commission of Ireland and the Broadcasting Complaints Commission by the Broadcasting Authority of Ireland; and the replacement of the RTÉ Authority by the proposed RTÉ and Teilifís na Gaeilge (TG4) companies. The Joint Committee has no recommendations or amendments to make on this part of the General Scheme. Appendix 1Joint Committee on Communications, Marine and Natural Resources Orders of Reference establishing the CommitteeDáil Éireann on 16 October 2002 ordered:
Seanad Éireann on 17 October 2002 ordered:
Appendix 2List of Members of the Joint Committee
Appendix 3Orders of Dáil and Seanad Éireann of the 6th July 2006That it be an instruction to the Joint Committee on Communications, Marine and Natural Resources regarding proposals for legislation in relation to broadcasting that may be submitted to it by the Minister for Communications, Marine and Natural Resources, that it (or a sub-Committee appointed by it for that purpose) shall, prior to such legislation being published –
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