Eamon Ryan (Dublin South, Green Party)

I am very pleased to introduce the Broadcasting Bill 2008 for the consideration of the House. The Bill is a detailed, comprehensive legislative proposal, which seeks to deal with virtually all aspects of regulation and provision of broadcasting content in Ireland. It introduces many new concepts, grants a range of new functions to broadcasters and regulators and sets the framework for new activities and services, especially in light of technological changes. It liberalises and streamlines the regulatory burden on broadcasters. Its primary focus is, however, to support and grow the wide variety of services, information, diversity of viewpoints and entertainment available to the Irish listener and viewer.

The Bill's broad intent is to deliver a level playing pitch to different broadcasters and put the viewer and listener at the centre of our broadcasting legislation. The Bill builds on a number of policy developments over the past six years, including the report of the forum on broadcasting in 2002, one of the main recommendations of which was a level playing field and an independent regulator to oversee it. It builds on the outcome of the 2004 radio licensing review, the conclusions of the e-consultation initiative undertaken by the Oireachtas Joint Committee on Communications, Marine and Natural Resources in 2007, the objectives of the programme for Government, the telecommunications regulatory framework directives of 2002, and the recently agreed audio-visual media services directive of 2007, which replaced the television without frontiers directive. It includes consideration of the recent agreement with the European Commission in the context of the Commission's closure of its investigation into the public funding granted to RTE and TG4 and takes into account the increasing convergence in digital technologies between our broadcasting and telecommunications industries.

The Bill represents a consolidation of 50 years of Irish broadcasting legislation going back to the Broadcasting Authority Act 1960, which established RTE. It amends a number of Acts in between, including the Radio and Television Act 1988, which allowed for independent commercial broadcasting, and the Broadcasting Act 2001 which established TG4. The entire corpus of that broadcasting legislation is brought together in one, consolidated, modernised Bill.

It may be of interest to politicians that one of the key developments of the Bill is the new approach we are considering taking towards appointments to the board of the new broadcasting regulator. This is as relevant to Members of the Seanad as to Members of the Dáil because we seek to give the Oireachtas committees real influence and responsibility in the appointment of the board of the new broadcasting authority of Ireland, BAI, and the boards of RTE and TG4. It proposes that a significant proportion of the appointments to each of these boards would be subsequent to the advice of the Oireachtas Joint Committee on Communications, Energy and Natural Resources.

Subsequent to the publication of the Bill there have been a number of comments on that provision. Some Fine Gael Members would prefer an alternative system whereby the Oireachtas committee would have a vetting role rather than a proposing role. I look forward to hearing the contributions or views on this. The power to be proactive and to suggest is far more useful, interesting and effective than a vetting power. It is better to be proactive rather than reactive and that is what we seek for Members of both Houses to be in this style of appointments of boards. We want them to go out and search for people and talk to people who may be willing to take on a public service role. Public service roles are crucial in our system. The amount of hard work people do on State boards for no reward other than the sense of being part of a public service is often not recognised. The provisions set out in the Bill are a first and will require teasing out as to how the Oireachtas committee will do it, but I strongly believe it is the right way to go. It is preferable to an alternative whereby an Oireachtas committee would act as a vetting mechanism. It will require detailed work between us and the committee to set out exactly how it will operate and I look forward to this work.

There will be nine board members of the BAI. Of these, five will be appointed by Government and four pursuant to the advice of the Oireachtas joint committee. As we work towards the enactment of this Bill we will have to establish how the committee will do that. Both RTE and TG4 will have 12 board members. Of these, six will be appointed by the Government after nomination by the Minister, four in the same way but pursuant to the advice of the Oireachtas joint committee, one will be a member of staff elected by the staff in a similar fashion to today and one will be the director general of the corporation, on an ex officio basis.

I propose to outline the main provisions contained in each Part of the Bill. I trust Senators will have had a chance to read the explanatory and financial memorandum which explains the Bill's 181 sections and the one Schedule to the Bill. It is a long, complicated and detailed Bill and warrants detailed consideration.

Part 2 of the Bill establishes the BAI and its two operational committees, the contract awards committee and the compliance committee. The BAI will assume the existing roles of the Broadcasting Commission of Ireland, BCI, and the Broadcasting Complaints Commission and will undertake a number of new functions. It will have responsibility for developing and adopting a contract award strategy for commercial and community broadcasters, preparing codes and rules for broadcasters, advising the Minister for Communications, Energy and Natural Resources on appropriate resourcing of public service broadcasters, establishing schemes for the disbursement of moneys from the broadcasting fund, establishing a scheme for the exercise of the right of reply, and setting a sectoral levy on all broadcasters to meet the costs of the BAI.

The contract awards committee will have the role of managing the award of contracts to commercial and community broadcasters, whether local radio stations or digital television providers. The compliance committee, which subsumes the Broadcasting Complaints Commission, will have the role of ensuring all broadcasters, whether public service, commercial or community, comply with the appropriate broadcasting standards and the terms of their contracts with the BAI. The compliance committee will also hear complaints from the public in respect of broadcasts and will consider requests for the right of reply.

Part 3 sets out the duties, codes and rules that will apply to broadcasters, including the limits on advertising minutage. Sections 42 and 43 continue the existing broadcasting codes and rules developed by the BCI, including the children's advertising, programme standards and advertising codes and the access rules. We have signalled the children's advertising code for some time. It is in the programme for Government and European directives. I very much sense this is the right direction to go and advice from organisations such as the Irish Heart Foundation and the World Health Organisation has suggested we have a responsibility to exclude the advertising to children of food products that are high in salt, fat and sugar. I look forward to giving the powers for the authority to set the regulations to achieve that.

Sections 39 and 43 retain the various limits that apply in advertising minutage and requirements on the provision by radio services of a minimum level of news and current affairs. Section 42 empowers the BAI to create additional broadcasting codes, particularly in respect of objectivity and impartiality in news and current affairs and on encroachments on privacy. Section 42 allows for the children's advertising code to which I referred earlier.

Part 4 sets out audience redress mechanisms in respect of the output of broadcasters. Section 47 requires broadcasters to develop a code of practice for dealing with complaints from the general public. Section 48 sets out the grounds and processes for the making of complaints to the compliance committee. Section 49 proposes the development of a right of reply mechanism that is quick and inexpensive and of benefit to both the person seeking redress and the broadcaster concerned. It proposes that any person whose honour or reputation has been impugned by an assertion of incorrect facts in a broadcast will be entitled to a right of reply.

It also improves the situation for the broadcaster in the sense that the intent is that the broadcaster, in granting such a right of reply, is not in any way admitting liability should there be a future libel case taken on the particular issue, but it can be used in consideration of whatever damages would be appropriate in any such case. It may well help broadcasters through what is a minefield in the libel laws of which they rightly must take cognisance, while at the same time providing a flexible and appropriate mechanism for persons who have been affected by something that is damaging in whatever broadcast material to have the right of reply to set the record straight.

The section requires the BAI to develop a scheme for such a right of reply within the framework proposed and sets out that scheme in order that it can be applied by the compliance committee in its role as a watchdog on the audience's interests in future programming.

Part 5 sets out the enforcement mechanisms available to the BAI. Chapter 1 provides, in line with existing legislation, that the BAI, after due process, may suspend or terminate a broadcasting or multiplex related contract in certain prescribed circumstances.

Chapter 2 provides for a new enforcement mechanism whereby the BAI may seek the imposition of a financial sanction of up to €250,000 on a broadcaster. This mechanism will apply to broadcasters in respect of a breach of a broadcasting duty, code or rule, or for exceeding the maximum level of advertising minutage permitted. This new mechanism is intended to be a proportionate alterative to the more onerous sanction of contract revocation and one that would apply to all broadcasters, not just commercial or community broadcasters, as is the case at present.

One of the misunderstandings that arose from the publication of the Bill on which there was much media attention was whether we would be seeking to fine every broadcaster should there be foul language used. That is not the intent of the Bill. Our intent is for a light regulatory touch. One cannot have such restrictive, onerous provisions. The intent of the Bill is that where there is a serious breach of trust with the audience, such as in a recent example abroad where someone operated a texting competition scheme which was not honest and fair, there is an ability to set a fine, or where programming was genuinely continuously in breach of the audience's trust or the intent of the codes, there is a mechanism to establish a fine rather than revoke the licence. With such a fine, one would not have to go through a detailed lengthy court system. One would accept the fine in recognition of the breach of the code and then moveon.

Part 6 revises the existing provisions contained in the Radio and Television Act 1988 and the Broadcasting Act 2001 in respect of the award of contracts to commercial and community radio and television broadcasters. It provides a number of new features including: the definition of community radio broadcasters as a separate class of independent radio broadcasters; the provision of temporary contracts for up to 100 days for community radio broadcasters, with a view to developing the community radio sector in Ireland; providing that the BAI may conduct audience surveys with a view to ensuring the contract award formats take account of potential audience as well as sectoral suggestions; providing for a fast-track procedure for the award of a radio contract where there is only one substantive applicant — allowing the applicant involved to avoid incurring unnecessary costs; allowing for an extension of existing radio contracts where the contractors are willing to broadcast on a digital multiplex, such as DAB; amending the criteria to be considered by the BAI in reviewing contract award or change of ownership applications, with a view to strengthening plurality of ownership; mandating the BAI to ensure preservation of culturally valuable radio programme material in order that it is not lost for future generations; and the introduction of a single content provision contract for services provided on cable, digital terrestrial television, IPTV and satellite, as opposed to the various different categories and approaches that pertain in existing legislation.

Part 7 outlines provisions in respect of public service broadcasting. The Bill retains RTE and TG4 as statutory corporations and broadens their public service remits to encompass the new digital content delivery platforms, in particular, web broadcasting. It introduces, or places on a statutory footing, a number of mechanisms designed to ensure the appropriate oversight of the level and use of resources by public service broadcasters. In particular, it requires RTE and TG4 to produce public service broadcasting charters and annual statements of commitment outlining the details of their proposed public service outputs.

The Bill also proposes a role for the new BAI to provide oversight and advice to the Minister for Communications, Energy and Natural Resources in respect of the oversight of the public service activities of public service broadcasters. In particular, it requires the BAI on an annual basis to recommend to the Minister adjustments to the level of the television licence funding to RTE, or to the level of Exchequer funding made available to TG4. It also requires the Minister and the BAI to conduct, respectively, public value and sectoral impact assessments of certain new activities proposed by RTE or TG4.

We have been looking with RTE at reviewing the licence fee review process, recognising that RTE has been successful in the past five years in putting money given to it in licence fee increases back into programming, but we need to fine tune the mechanisms of its assessment, not just in order that we measure the hours of programming but that we start to take in qualitative research of the audience experience of the programming and that we also start to examine the flexibility and efficiency with which RTE is doing its measurements as part of an overall assessment of future funding or any increases in licence fee. That is a matter that the BAI will continue following enactment of this Bill.

In terms of RTE and TG4's relationship with the independent production sector, section 112 requires both public service broadcasters to publish a code of fair trading practice outlining their proposed terms of trade with the independent production sector. This code will be subject to the oversight of the Minister, following the advice of the BAI.

Section 116 increases to €40 million per annum the amount that RTE must spend on independent production. It also introduces a requirement on RTE to spend a minimum of €500,000 per annum on independent radio production, a new departure which will assist in increasing the plurality of voices and creative programming available to the listeners of RTE's radio services. Section 96 requires both RTE and TG4 to maintain audience councils. This is intended to ensure there is a voice for the listener and viewer at the heart of our public service broadcasters.

Chapter 6 of Part 7 establishes two new public service broadcasting services. One of interest to the House is the proposed Houses of the Oireachtas channel. This is a matter on which the Oireachtas Commission is working. It is examining how we will take from best practice, from the Parliament Channel in the UK and from such channels in other jurisdictions and apply those lessons here. The technology is available to us. The cameras, sound system and editorial control systems are in place. We need to make that as widely available as possible. We need to add to the programming schedule by showing other free-to-air material, be that from the European Parliament, European Council of Ministers meetings or from other parliaments further afield. It is appropriate for us to make the workings of our democracy transparently clear and as widely available as possible. Hugely interesting work goes on in these Houses, particularly in the committees. Making it accessible, even in the case of a small audience with a specialist interest in a particular area, is a proper public service. I hope the channel can be delivered as quickly as possible in order that it is launched at the same time as our new digital television service next year.

I hope we can also launch a new Irish film channel, which is intended to avail of the existing film archive material. The State has spent extensive sums of money developing a digital archive and supporting film production. We can show that material on an Irish film channel and this will add greatly to the enjoyment of the Irish viewing public. The Irish Film Board has been the instigator of this proposal, which is something I am keen to support and see delivered in conjunction with the Minister for Arts, Sport and Tourism.

Part 8 restates much of the existing provisions of the Broadcasting (Amendment) Act 2007 in respect of digital terrestrial television and radio broadcasting. It prescribes certain targets for RTE in respect of the roll-out of public service digital terrestrial television services. We will be launching a free-to-air mux, which will include RTE, TV3, TG4, the new film channel and Oireachtas channel. There are three alternative platforms, or muxes, for which there is a competitive bidding process at the moment. Three major consortia are seeking to deliver a further 30 channels for this new digital television service, which will replace our main analogue system. I am very confident that we can deliver that complex project, with the Broadcasting Commission of Ireland and the new BAI working with RTE and the other private sector operators.

Part 9 shifts the legislative basis for the television licence regime from wireless telegraphy to broadcasting legislation, thus allowing for a significant future revision of the existing wireless telegraphy regime that currently dates back to 1926. It empowers the Minister to designate persons other than An Post as the television licence fee collection agent. It provides that the Minister may at some future date introduce a separate television licensing regime for non-residential premises. It increases the fines for possession of an unlicensed television set from €635 to €1,000 for a first offence, and from €1,270 to €2,000 for second and subsequent offences. It allows for the introduction of the option of fixed payment penalties as an alternative to court proceedings with a view to increasing compliance and reducing the workload of the courts.

In respect of the fixed payment penalty mechanism, section 149 proposes that where the television licence fee collection agent believes that a person is committing an offence in respect of the non-possession of a television licence for a television set, the agent may, after two reminder letters and a period of 56 days, issue a fixed payment notice. This notice will state that if the person buys a television licence within 21 days and pays a fine of a third of the value of the television licence, then the agent will not pursue a prosecution. It should be noted that the offer of this alternative to court proceedings will not be entirely at the discretion of the agent. If the agent is of the view that it will serve no utility then the agent may progress directly to court proceedings with the possibility of a significant fine. The fixed penalty payment mechanism has been designed to be a proportionate and modest instrument, while at the same time negating the possibility of a person benefiting by using it to delay purchase of a television licence.

Part 10 restates the provisions of the Broadcasting (Funding) Act 2003. It makes a small number of changes to the provisions of that Act, including permitting the funding of Irish language programming by commercial and community broadcasters in off-peak periods. The Bill maintains the percentage of the television fee allocated to the broadcasting fund at 5%. This is an area of the Bill that provides a subtle and difficult legislative task to assess the editorial decisions and the mechanisms through which such a fund would apply. It has been very successful and we want to maintain that success.

Part 11 in essence restates for good order the provisions of the Broadcasting (Major Events Television Coverage) Acts of 1999 and 2003. Part 12 sets out a number of transitional provisions in respect of the dissolution of the Broadcasting Commission of Ireland and the Broadcasting Complaints Commission on the establishment of the BAI. This part also provides for the continuation of appointments made to the boards of the RTE authority and TG4. Part 13 provides for the updating of sanctions in respect of breaches of wireless telegraphy legislation. The Schedule to the Bill sets out the various Acts proposed to be repealed in order to achieve a single Act, addressing all aspects of broadcasting content regulation and funding.

Senators should also note that I intend to bring forward, at a later stage, provisions in this Bill for the more effective regulation of premium rate services in Ireland. RegTel is the body to which one would turn if one was the victim of a mobile phone scam. This is a common occurrence, particularly for younger people, and causes real anger for parents and young people when they discover that they inadvertently run up large bills on their mobile phones, due to premium rate texting services that were not clearly identified. Up to 30,000 complaints were made last year by people who were victims of these scams. It is important to strengthen the regulations in this area in order to make sure that the rogue operators cannot continue. The mobile phone industry is getting a bad reputation from all this, which is not in its interest. The industry leaders are as keen as anybody else to rid the public of this nuisance marketing activity. We are using the provisions of this Bill to strengthen the regulatory powers to make sure that Irish consumers are not exploited in this way.

The Bill has been a long time in gestation, going back to the recommendations of the broadcasting forum in 2002. It sets a number of very valuable and useful precedents. Going to a public forum and speaking to the stakeholders is a good starting point for proposed legislation. The use of e-consultation within our own Oireachtas committee to consider the heads of the Bill two years ago was a positive new development in how we process our legislation. The new appointments mechanism that we are considering in this Bill is a progressive development in the workings of this House, especially the workings of its committee system. Giving responsibility to the committees of this House is a positive and rewarding experience. With responsibility there is much more consideration, more innovative thinking, better results and greater focus on the work being done in the committees.

I hope that the Bill strikes the right balance between our interest in maintaining and developing public service broadcasting and the development of an independent production sector in this country. The 20 years since the 1988 Act that introduced new independent broadcasters in television and radio has led to an improvement in the standard of broadcasting in Ireland. We want to maintain our public service broadcasting, but also a vibrant new independent broadcasting sector.

The Bill must put the interests of the Irish viewer and listener at the heart of our broadcasting legislation. The codes we set out must guide those broadcasters in the style and nature of the broadcasting that we want. The mechanisms by which we raise revenue and give broadcasters redress must be appropriate. This Bill puts the listener and the viewer at the heart of our endeavours in this area. It is written and framed in a way that serves the interests of viewers. I look forward to the support of the House in consideration of the Bill.