Broadcasting Act 2001

PART I Preliminary and General

1 Short title, collective citation, construction and commencement.

1.—(1) This Act may be cited as the Broadcasting Act, 2001.

(2) The Broadcasting Authority Acts, 1960 to 1993, and this Act (in so far as it amends those Acts) may be cited together as the Broadcasting Authority Acts, 1960 to 2001.

(3) The Broadcasting Authority Acts, 1960 to 1993, and this Act (in so far as it amends those Acts) shall be construed together as one.

(4) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2 Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“the Act of 1960” means the Broadcasting Authority Act, 1960;

“the Act of 1976” means the Broadcasting Authority (Amendment) Act, 1976;

“the Act of 1988” means the Radio and Television Act, 1988;

“the Authority” means Radio Telefís Éireann;

“broadcaster” means a person who supplies a compilation of programme material for the purpose of its being transmitted or relayed as a broadcasting service (whether that person transmits or relays that material as such a service or not);

“broadcasting service” means a service which comprises a compilation of programme material of any description and which is transmitted or relayed by means of wireless telegraphy, a cable or MMD system or a satellite device, directly or indirectly for reception by the general public, whether that material is actually received or not, but does not include such a service that is provided by means of the Internet;

“cable-MMD content contract” has the meaning assigned to it by section 41;

“cable system” means a wired broadcast relay system;

“the Commission” means the body established by section 3 of the Act of 1988;

“community content contract” has the meaning assigned to it by section 39;

“contract” does not include any contract that comes into being between the multiplex company or the transmission company and another person by virtue of the entering into arrangements by the multiplex company or the transmission company with that person under section 13(1) or 14(1);

“the Council Directive” means Council Directive 89/552/EEC of 3 October 1989[^(1)] on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997[^(2)];

“digital content contract” has the meaning assigned to it by section 12;

“digital multiplex licence” has the meaning assigned to it by section 9;

“the Director” means the Director of Telecommunications Regulation;

“DTT licence” has the meaning assigned to it by section 7;

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on the 2nd day of May, 1992, as amended for the time being;

“electronic programme guide” has the meaning assigned to it by section 16;

“establishment day” has the meaning assigned to it by section 43;

“excepted person” means a person who is under the jurisdiction of another Member State of the European Union or another Member State of the EEA and, for the purposes of this definition, the provisions of the Council Directive shall apply for the purpose of determining the state (whether it be a Member State of the European Union or of the EEA) under the jurisdiction of which the person falls;

“free-to-air service” means a broadcasting service for the reception of which no charge is made by the person providing the service;

“holder” means—

(a) in relation to a contract entered into under the Act of 1988 or this Act, the person with whom the Commission has entered into the contract,

(b) in relation to a licence granted under this Act or any other enactment, the person to whom the licence has been granted;

“the Internet” means the system commonly known by that name;

“local content contract” has the meaning assigned to it by section 38;

“Member State of the EEA” means a state that is a contracting party to the EEA Agreement;

“the Minister” means the Minister for Arts, Heritage, Gaeltacht and the Islands;

“MMD system” means a multipoint microwave distribution system used for the transmission of broadcasting services on a point to multipoint basis;

“multiplex” has the meaning assigned to it by section 8;

“the multiplex company” has the meaning assigned to it by section 8;

“programme guide contract” has the meaning assigned to it by section 16;

“programme material” means audio-visual material or, where used in the context of a sound broadcasting service, audio material and includes advertisements and material which, when transmitted, will constitute a direct offer to the public for the sale or supply to them of goods or other property (whether real or personal) or services;

“provide a broadcasting service” means to supply a compilation of programme material for the purpose of its being transmitted or relayed as a broadcasting service;

“sound broadcasting contractor” and “sound broadcasting service” have the same meaning as they have in the Act of 1988;

“subscription or pay-per-view basis”, in relation to the making available of a broadcasting service, means any basis for making a charge on a person in respect of the reception by him or her of a broadcasting service, and includes the basis of making such a charge by reference to the number of items of programme material viewed by him or her;

“Teilifís na Gaeilge” means the body established by section 44;

“television programme service contract” and “television programme service contractor” have the same meaning as they have in the Act of 1988;

“terrestrial means”, in relation to the transmission of a broadcasting service, means any means of transmitting such a service by wireless telegraphy, other than by means of a cable or MMD system (or, where the said expression is used in the context of Northern Ireland, any system analogous to a cable or MMD system) or a satellite device and “digital terrestrial means” shall be construed accordingly;

“transmission” includes, in the case of a cable or MMD system, distribution and “transmit” and “re-transmit” shall be construed accordingly;

“the transmission company” has the meaning assigned to it by section 5.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection or paragraph is a reference to the subsection or paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended,

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, extended or adapted by or under subsequent enactments, including this Act.

3 Repeals.

3.—Each enactment specified in the First Schedule to this Act is hereby repealed to the extent specified in the third column of that Schedule.

4 Expenses.

4.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Supply and Transmission of Programme Material Generally

5 Transmission company.

5.—(1) In this section “the transmission company” means a company formed and registered under the Companies Acts, 1963 to 1999 (whether before or after the commencement of this section), being a company which is designated in writing by the Minister to be the body that shall perform the functions expressed in this Act to be performable by the transmission company.

(2) The Minister shall not designate a company for the purposes aforesaid unless the following conditions as respects the company are satisfied, namely—

(a) the company has been so formed and registered by 2 or more persons (who may include the Authority) each of whom the Minister is of the opinion, having regard to the responsibilities the company will assume under this Act, is a person who is a suitable person to be concerned in such formation and registration,

(b) the name of the company is a name which the Minister considers to be appropriate having regard to the said responsibilities,

(c) the company is a company limited by shares, and

(d) the memorandum of association and articles of association of the company are in such form, consistent with this Act, as is approved of by the Minister, after consultation with the Minister for Public Enterprise.

(3) For the purposes of enabling or facilitating the performance by the transmission company of its functions under section 13, the Authority shall transfer such parts of its real and personal property to the company as the Minister, after consultation with the Authority, determines ought to be the subject of such a transfer.

(4) The principal objects of the transmission company shall be stated in its memorandum of association to be—

(a) to transmit, by analogue means, broadcasting services on behalf of the Authority, Teilifís na Gaeilge and the television programme service contractor, being services that the Authority, Teilifís na Gaeilge and that contractor provide under the Broadcasting Authority Acts, 1960 to 2001, the Act of 1988 or this Act, as the case may be,

(b) to transmit, by digital terrestrial means, programme material and related and other data in a digital form in accordance with arrangements entered into by it under this Act with the multiplex company,

(c) to transmit, by analogue means, sound broadcasting services on behalf of the Authority and sound broadcasting contractors, being services that the Authority and such contractors provide under the Broadcasting Authority Acts, 1960 to 2001, or the Act of 1988, as the case may be,

(d) to promote the development of multimedia services, and

(e) to promote the development of electronic information services, including those provided by means of the Internet.

(5) The transmission company shall endeavour to ensure, in so far as it is reasonably practicable to do so, that the services provided by it are made available to the whole community in the State.

(6) The Authority shall not, without the consent of the Minister and the Minister for Finance, transfer to another person all or one or more of any shares it holds in the shareholding of the transmission company.

(7) The Minister may, by order, require the Authority to divest itself of all or one or more of any shares it holds in the shareholding of the transmission company.

(8) Where an order is proposed to be made under subsection (7), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(9) Nothing in this section shall prevent or restrict the inclusion among the objects of the transmission company as stated in its memorandum of association of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary to the due attainment of the principal objects aforesaid and are not inconsistent with this Act.

(10) The transmission company shall have power to do anything which appears to it to be requisite, advantageous or incidental to, or which appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in this Act or its memorandum of association and is not inconsistent with any enactment for the time being in force.

6 Authorisation of the exercise of certain powers vested in Authority and transmission company.

6.—(1) In this section the “relevant section” means section 16 of the Act of 1960.

(2) Subsection (3)(a) of the relevant section shall be construed as including a prohibition with respect to the transmission company exercising its powers to transmit programme material (other than programme material referred to in section 7(2)) of a like kind to the prohibition which that subsection contains with respect to the Authority exercising the powers referred to in paragraphs (a) and (b) of subsection (2) of the relevant section and, accordingly, the Director may, in accordance with this section, issue licences under subsection (3) of the relevant section to the transmission company as well as to the Authority and attach conditions to any licence so issued to that company.

(3) On such date as the Minister, after consultation with the Minister for Public Enterprise and the Director, specifies for the purpose of this section, the Director shall issue a licence under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, or both those enactments as appropriate, to—

(a) the Authority with respect to the operation by it of any apparatus the operation of which requires a licence under either or both of the said enactments and which apparatus has not been the subject of the transfer referred to in section 5(3), and

(b) the transmission company with respect to the operation by it of any apparatus the operation of which requires a licence under either or both of the said enactments and which apparatus has been the subject of the said transfer.

(4) Pending the issuing by the Director of the licences referred to in subsection (3), any licence issued to the Authority under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, and in force immediately before the date specified for the purposes of subsection (3), shall, in so far as any right or obligation arising under it relates to an apparatus which has been the subject of the transfer referred to in section 5(3), operate and have effect as if it had been granted to the transmission company.

(5) Upon the issue by the Director of a licence referred to in subsection (3), any licence issued to the Authority under subsection (3) of the relevant section or the Wireless Telegraphy Acts, 1926 to 1988, (including any licence to which subsection (4) applies) which relates to the same matter as the first-mentioned licence relates to and is in force immediately before the issue of that licence shall stand revoked.

(6) Paragraphs (b) and (c) of subsection (3) of the relevant section shall apply to a licence issued under that subsection to the transmission company as they apply to a licence issued under that subsection to the Authority and, for the purposes of such application, the reference in the said paragraph (b) to the Authority shall be construed as a reference to the transmission company.

7 Authorisation of transmission company to transmit, by digital terrestrial means, programme material.

7.—(1) The Director shall, on a date specified by the Minister, after consultation with the Minister for Public Enterprise, for the purposes of this section, grant to the transmission company, under the Wireless Telegraphy Acts, 1926 to 1988, a licence which shall be known as the “digital terrestrial television licence” and is in this Act referred to as the “DTT licence”.

(2) The DTT licence shall be expressed to authorise, and shall operate to authorise, the transmission company to transmit by digital terrestrial means programme material and related and other data in a digital form in accordance with arrangements entered into by it under this Act with the multiplex company.

(3) Without prejudice to any powers he or she may have in that behalf under the Wireless Telegraphy Acts, 1926 to 1988, the Director may attach such conditions to the DTT licence as he or she considers appropriate including conditions specifying requirements to be complied with by the transmission company in respect of the entering into of arrangements under subsection (1) of section 13 or the imposition of charges under subsection (3) of that section and, in particular—

(a) a requirement that, as respects such arrangements that are entered into in similar circumstances by the company with different persons for the transmission of broadcasting services comprising similar kinds of programme material supplied to it by each of those persons, the terms of those arrangements, and the charges imposed in respect of them, are similar,

(b) a requirement that the company, as respects any decision made by it to exercise or not to exercise its power under subsection (3) of section 13, and as respects any consequent exercise by it of that power, otherwise ensures fairness of treatment of the persons concerned, and

(c) a requirement that the transmission company supplies such information to the Director, and adopts such procedures in the performance of its functions under this Act, as the Director specifies, in pursuance of the requirement, for the purpose of enabling the Director to verify that each condition attached to the licence is being complied with.

(4) Nothing in this section shall be construed as preventing the Director from granting under the Wireless Telegraphy Acts, 1926 to 1988, in addition to the DTT licence and whether to the transmission company or any other person, licences authorising the transmission, by digital terrestrial means, of programme material and related and other data in a digital form.

8 Multiplex company.

8.—(1) In this section—

“multiplex” means a multiplex referred to in subsection (3);

“the multiplex company” means a company formed and registered under the Companies Acts, 1963 to 1999 (whether before or after the commencement of this section), being a company which is designated in writing by the Minister to be the body that shall perform the functions expressed in this Act to be performable by the multiplex company.

(2) The Minister shall not designate a company for the purposes aforesaid unless the following conditions as respects the company are satisfied, namely—

(a) the company has been so formed and registered by one or more than one person who or each of whom the Minister is of the opinion, having regard to the responsibilities the company will assume under this Act, is a person who is a suitable person to be concerned in such formation and registration,

(b) the name of the company is a name which the Minister considers to be appropriate having regard to the said responsibilities,

(c) the company is a company limited by shares, and

(d) the memorandum of association and articles of association of the company are in such form, consistent with this Act, as is approved of by the Minister, after consultation with the Minister for Public Enterprise.