Dermot Ahern (Louth, Fianna Fail)

This substitute amendment No. 2 amends section 4(6) of the Bill by making it clear that a qualifying broadcaster may also withdraw its application to the High Court for access to a designated event in circumstances in which the court has indicated that it will, in accordance with subsection (2), fix reasonable market rents after the event takes place. The intention in the original subsection (6) was to ensure that the finding of the High Court with regard to reasonable market rates would not be binding on a qualifying broadcaster where it decides not to broadcast the event.

However, the conditions under which a broadcaster may withdraw its application to the High Court are very specific. It may do so after the court has fixed reasonable market rates, but before the court makes its final order. This construction would not allow a broadcaster to withdraw its application in circumstances in which the High Court has decided to allow access to an event and to fix reasonable market rates after the event has taken place. This might be too big a risk for a broadcaster to take as the High Court may have set a rate that the broadcaster would not have been prepared to pay in the first instance.

Substitute amendment No. 2 also deals with the subject matter of amendment No. 3, proposed by Senator Finucane. I agree that it is to be expected that a qualifying broadcaster should only proceed with a bona fide application to the High Court. It is helpful to include guidance for the court on the factors that should be considered in determining how costs should be awarded. The High Court should have regard to the intention of the broadcaster making the application and, accordingly, I propose this amendment to give effect to the principle that when awarding costs pursuant to subsection (6) the High Court should have regard to the intention of the broadcaster making the application. This deals with the matter raised in amendment No. 3 and I hope Senator Finucane agrees.