Broadcasting

Licensing of Wireless Telegraphy

The Wireless and Telegraphy Acts (first enacted in  1926) provide a general system of licensing of wireless telegraphy broadcasting and receiving equipment.  Generally, a person may not have in his possession any apparatus for wireless telegraphy unless authorised by and licenced under the Acts. He may only use or work the apparatus in accordance with the conditions of the licence.

Failure to have the requisite licence is an offence punishable on summary conviction in the District Court but with a further fine on the basis of each day the offence continues. The legislation contains powers to investigate the possession of wireless telegraphy apparatus, issue of search warrants etc.

The operation and maintenance of a signalling station broadcasting require consent and licence.  The Minister may prescribe the fees in respect of the various types of receiving and broadcasting licences.

RTE

The Broadcasting Act, 1960 established the Broadcasting Authority as an independent body in control of RTE, the sole broadcaster.  The functions of the authority were:

  • To establish and maintain national television and sound broadcasting services;
  • To establish and maintain services of a local community or regional character;
  • To provide broadcasting services of interest to only certain members of the community and which may be made available on subscription or pay per view
  • To transmit by electric means other than broadcasting services;
  • To originate pure programming, collect news, arrange information and arrange with broadcasting authorities the distribution and relay of programmes;
  • To organise, provide and subsidise concerts and entertainments;
  • To prepare, publish and distribute magazines, books, records and visual materials.

The Broadcasting Act provides that the authority must ensure that all news broadcasted by it is objective and impartial without an expression of the authority’s own views.  The broadcast treatment of current affairs including matters of public controversy or current debate must be fair to all interests concerned and presented in an objective and impartial manner.  Any matter which way to news or current affair which are either subject to public controversy or current debate must be presented in an objective and impartial manner.

The Broadcasting Act prescribe duties of  the Broadcasting Authority

  • to be responsive to the interests and concerns of the whole community and to ensure that programming reflects the culture of Ireland particularly by reference to the distinctive features of the culture and the Irish language,
  • to uphold the democratic values defined in the Constitution, particularly in relation to liberty of expression,
  • to have regard for the need for formation of public awareness and understanding of values and traditions of other countries, in particular, the EU.

The authority may not accept advertisements directed towards religious or political ends in relation to an industrial dispute.

End of State Monopoly

In the early years of the State, the principal focus of the legislation was on radio and later TV licences.  The only permitted radio and later television broadcasters were by the State’s own monopoly Radio Eireann later Radio Teilifis Eireann (“RTE”).

Until the Radio and Television Act, 1988 RTE retained its effective monopoly on radio and television broadcasts from Ireland.  In the vacuum, a large number of pirate radio stations evolved in the 1970s and 80s.  The Radio and Television Act 1988 introduced the first comprehensive system of licensing of independent radio and TV broadcasters.

The Wireless Telegraphy Act, 1988 provide stronger enforcement powers against unlicensed broadcasts, leading to the effective closure of the existing unlicensed “pirate” providers.

Radio and Televisions Commission

The Radio and Television Act, 1988 established the Independent Radio and Television Commission.  The Commission was empowered to enter contracts for the provision of sound broadcasting services and television programmes.

It awarded licences.  The purpose was to ensure a viable, sustainable industry characterised by a variety of ownership which would deliver a diversity of content to viewers and listeners.

The Radio and Television Act placed similar conditions on sound broadcasters licence as imposed on the RTE authority by the broadcasting legislation.  Broadcasting programmes in a broadcasting service may include advertisements.

The Radio and Television Commission was also authorised to enter into television programme service contract.  The initial award was made to TV3 consortium the only applicant.  The award was made and withdrawn in the context of financial difficulties.  The High Court quashed a determination to withdraw the award to TV3 due to failure to follow due process.  TV3 secured the first independent television station licence and commenced broadcasting in 1998.

The legislation established TV4 as a statutory body with the function of providing national free to air television service, primarily through the medium of Irish. It was established on a public service basis and is to be made available insofar as reasonably practicable to the whole community on the island of Ireland.

Broadcasting Commission of Ireland

The Broadcasting Act, 2001 set the framework for digital terrestrial television services. The Broadcasting Commission of Ireland became responsible for broadcasting services in the existing licensed independent TV and radio sectors. Broadcasting services cover services transrouted by wireless, telegraphy, cable, microwave distribution systems or satellite.

The procedure in relation to the award of broadcasting involved invitations for expressions of interest.  The invitation must be published. The legislation set out the matters to be taken into account by the Commission in determining the most suitable award.  This included in particular:

  • The character of the applicant;
  • Quality type range of programmes proposed particularly those related to Irish language and culture;
  • The extent to which the applicant will create new opportunities for Irish talent in music, drama and entertainment;
  • The desirability of allowing persons to have control or groups of persons to have control of a substantial interest in an undue number of broadcasting services in respect of which a broadcasting contract has been awarded.

The BCI may enter digital content contracts for the supply of programme material or broadcasts for transmission.

Deregulation

COMREG manages the radio spectrum and broadcasting distribution.  COMREG is the licensing body for cable TV and may grant wire broadcast relay licences.

A transmission company was established under the 2001 Act to assume the former transmission function performed by the (RTE) broadcasting authority.

The 2001 legislation provided for the formation of multiplex companies to operate digital multiplexes.  This was an electronic system that combines programme material related and other data in an additional form for the purpose of transmission by the transmission company.  It is a combination of individual sounds and a common spectrum or stream which carries a combination of television, radio and other data services.

COMREG, the communications regulator must grant a digital terrestrial TV licence to the transmission company and grant digital multiplex licences to the multiplex company authorising it to establish and maintain six multiplexes. Digital terrestrial television has been rolled out and the existing analogue signal has been discontinued.

EU Directive

The EU Directive on television without frontiers seeks to liberalise freedom to provide broadcasting services within the EU.  Broadcasting services must comply with the national state of origin without being subject to additional requirements in other states.  States must ensure that broadcasts transmitted by broadcasters in the jurisdiction comply with the rules provided for in the Directive.

States must ensure broadcasters reserve majority proportion of their transmission time for European works, 10% of their transmission time and programming budget to independent producers.

There are requirements in relation to advertisements, sponsorship and teleshopping.  This must be identified as such.  Subliminal advertising techniques are prohibited.

The Directive permits states to list events of major social importance which may be covered live and should be delivered free.  Legislation in Ireland has designated certain sporting events as reserved for free television broadcast.  Qualifying broadcasters may require to broadcast certain events and provision is made for a market rate fee.

The provisions in relation to major events television coverage were restated in 2009 broadcasting legislation.  Provision is made for arbitration arrangements where a fee cannot be agreed for qualifying broadcaster access to the events.

The separate directives on electronic communication networks and services are much broader in scope than official broadcasting. Electronic communications cover fixed mobile telecommunication, TV, satellite networks, internet networks.  The Directive provides regulations for transmissions, networks and services.

Broadcasting Authority of Ireland

The Broadcasting Authority of Ireland is now responsible for licensing broadcasting services other than those provided by RTE.  It licences multiplex services and enters contracts in respect of services. It licenses  digital terrestrial television in the State,  through cable MMD or satellite.

National, regional, local special-interest and television content services are licensed for ten years.  Community or community interest services are licensed for five or ten years.

The Broadcasting Act, 2009 sets out the mechanism by which the BAI undertakes licensing of the various radio service providers.T he legislation provides that BAI on the recommendation of a contracts award committee may award sound broadcasting contracts.I t must consider applications and agree on a common score for each applicant. In licensing the Commission distinguishes between:

  • Independent commercial broadcasting;
  • Community broadcasting;
  • Institutional and temporary broadcasting.

Licences may be suspended in the event of a national emergency.

The BAI licenses DTT multiplex operators and  commercial DTT in the State.  Separately RTE has been assigned to a single DTT multiplex to ensure the continued availability of the  existing free to air stations.  RTE runs this independently of the BCI licensed multiplexes in fulfilment of its public service obligation.

BAI Licensing  I

The BAI may only grant a broadcasting contract with an associated wireless telegraph license from COMREG.

The application process is set out in the legislation and public policy statement.  The Commission must seek expressions of interest, consult with COMREG on spectrum matters and ultimately decide on services to be licensed. The legislation provides for criteria to which regard is had. The legislation sets out the terms and conditions which should be included in broadcasting contracts.

The number and category of radio services are decided from time to time in light of its objectives and the available resources and other licensing activity.

The licensing policy published by the Commission sets out regulatory criteria which guides it in relation to licensing additional commercial services. The Commission seeks to operate a coherent and consistent regulatory licensing system capable of responding to technological and market developments.  It seeks to be consistent in the application of practices, processes and procedures so as to ensure the necessary certainty for broadcasters both current and potential.

It seeks to implement a fair and non-discriminatory licensing regime that accords with Irish and EU law and facilitates broadcasting while ensuring diversity and pluralism in listed interests.  It seeks to be fair and reasonable and proportionate in the treatment of applicants and contractors.  Conditions should be proportional to the objective sought.

Decision making should be clear and transparent.  The public availability of documentation in a timely fashion is implemented  to the extent possible.

The policy objectives underlying the Commission’s actions are a diversity of services from a variety of sources, the viability of services both current and proposed, efficient use of the spectrum consistent with the EU regulations, the plurality of ownership and avoiding concentration.

BAI LIcensing II

The BAI has also published its criteria in relation to each of the following :

  • Community interest radio;
  • Special interest radio;
  • Temporary and institutional sound broadcasts;
  • Digital radio services.

The licensing of digital cable MMD and satellite systems is an ongoing process.  There are no time frames for applications or competitive licensing processes.

The authority may enter  sound broadcasting contracts for periods of up to 30 days in a 12 month period.  It may enter contracts for up to 100 days with community sound broadcasting contractors.

The BAI has published its guides for applicants of content provisions contracts.  A content provision contract is required by a person who wishes to supply a compilation of programme material for the purpose of inclusion as part of the multiplex or for the purpose of being transmitted as a broadcasting service in the State or part of the State by means of electronic communications network, satellite network, MMD, terrestrial network, cable television or internet protocol television. A content provision  contract is for a minimum of three and a maximum of ten years.

The authority is responsible for monitoring and enforcing compliance by contractors with the terms of their contract.  They must also comply with statutory obligations and with broadcasting code and rules. The authority may investigate and adjudicate upon viewer or listener complaints.

Mutliplexes

RTE and TG4 are carried on the first television multiplex.  It also carries the House of the Oireachtas, Seanad and Irish film channel as required minister or other public service material.

The BAI must make arrangements for establishment and operation of additional multiplexes.  The CCR must make licences for digital terrestrial television services available to RTE and other multiplex provides.

COMREG  is required to make licences for digital terrestrial television services available to RTE and other providers.  They are to allow for the possibility that they may so far as reasonably practicable be made available to the whole community in the State.

The BAI is to direct the contract awards committee to invite applications to establish and operate multiplexes.  The terms of multiplex contracts are provided for.  Provision is made for the eventual switch off of analogue.

RTE and TG4

The 2009 broadcasting legislation provides for the continued separate existence of RTE and TG4.  Each must draw up codes of content in respect of interest, natural behaviour on the part of staff advisers, the category of contractors for services.  They must establish audience councils to represent the interests of viewers and listeners.  They may establish advisory committees.

Each must prepare public service broadcasting charters outlining activities they propose to undertake in a five year period.  They must prepare annual statements of commitment outlining outputs in the following period.  They must accord with the statutory objectives and public service broadcasting charter.

Each may enter subsidiaries or joint ventures for the purpose of performing functions with the consent of the Minister for Finance.  They must prepare a code following guidance from the BAI setting out principles they will apply when commissioning programmes from independent producers.

RTE must supply one hour per day programmes to TG4 and TG4 must provide proper material in respect of RTE television services to communities abroad.

The minister with the consent of the Minister for Finance may pay RTE out of Exchequer funds an amount equal to the TV licence received less the cost of collecting the same, referred to as the broadcasting funds.  Provision is also made for Exchequer funding to both RTE and TG 4 for public service purposes.

Updated TV Licence Provision

The 2009 Act updates the provisions in respect of television licences.  An Post have designated agent of the minister regarding collection and enforcement of television licence fees.

Television licence inspectors may enter on premises for the purpose of ascertaining if a TV is on the premises and whether a licence is in force.  A special notice may issue to a person requiring them to complete and return a form of declaration.

Provision is introduced for the operation of a fixed penalty system.  It may be applied after the issue of two reminder notices.  Provision state prosecution of offences for failure to have a television licence.

Broadcasting Complaints

The former Broadcast Complaints Commissions investigated complaints in relation to failures of broadcasters to comply with their statutory duties, for example, in relation to privacy, impartiality, etc.  It may investigate the complaints relating to broadcasts in relation to impartiality, objectiveness, fairness.

The Broadcast Complaints Commission was required to  give the accused broadcaster the opportunity to comment and respond.  The Broadcast Complaints Commission publishes its decisions but no specific enforcement follows.

Viewers or listeners may refer complaints to the broadcaster in the first instance.  If they are not happy there is a code of practice for complaint handling on each broadcaster’s site.  There is a provision for a right to reply scheme.

Revised Broadcasting Complaints System

The revised system of broadcasting complaints is as follows

Complaints may be made on the basis of:

  • Lack of fairness, objectivity or impartiality;
  • Anything which may cause harm or offence or be likely to promote a or incite crime;
  • Harmful or offensive offences material;
  • Breach of code off programme standards published by the BAI;
  • Breach of general commercial communication code regarding advertisement, shopping, sponsoring, product placement;
  • Breach of children’s commercial communications code;
  • Breach of rules on advertising and teleshopping.

Broadcasters must record and keep broadcast for the purpose of enabling the BAI to perform its compliance functions.  The BAI prepares codes including the continuance of existing codes.

The compliance committee of BAI may conduct an investigation into the affairs of a broadcasting contract in respect of adherence to the terms of their contract and any wireless telegraphy licence on the recommendation of the compliance committee.  A broadcasting contract may be suspended or terminated.

Investigating officers may be appointed to report on apparent breaches.  Procedures for investigations are set out in the legislation.  The compliance committee may apply to the High Court for the imposition of financial sanctions.

The matter may be dealt with by the compliance committee rather than the High Court.  The compliance committee may impose a sanction up to €250,000.  Its decision may be appealed to the High Court.