PART III

Sound Broadcasting Services

5. —(1) In order to secure the orderly development of sound broadcasting services and, having regard to the availability of radio frequencies for sound broadcasting, to allow for the establishment of a diversity of services in an area catering for a wide range of tastes including those of minority interests, the Commission shall as soon as may be after it has been established and may thereafter from time to time by notice published in at least one national newspaper, invite expressions of interest in the securing of contracts for sound broadcasting services under this Act. Such expressions of interest shall indicate in general terms the type of service that would be provided and shall not be regarded as an application for a sound broadcasting contract.

(2) The Commission shall make a report of its findings under subsection (1) to the Minister who, having considered the report and after consultation with the Commission, shall specify the area (which area may consist of the whole or any part of the State) in relation to which applications for a sound broadcasting contract are to be invited and the Commission shall comply with such direction.

(3) The Minister, having regard to the report furnished by the Commission under subsection (2) and having regard to the availability of radio frequencies for sound broadcasting, may limit the number of areas which he may specify under that subsection.

(4) The Commission shall, subject to the provisions of this Act, invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Minister under subsection (2) and, subject to the provisions of this Act, may enter into such contracts.

(5) Where the Commission invites applications for a sound broadcasting contract for the provision of a sound broadcasting service it shall by public notice specify the area in relation to which the sound broadcasting service is to be provided pursuant to such contract and by such notice shall invite persons interested in providing such a service to apply for such contract.

(6) Having regard to the findings of the Commission under subsection (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in section 6 (2) of this Act and whenever it is the Commission's intention to so do it shall specify such intention to each person who has indicated his intention of being an applicant for a contract.

(7) Every notice under subsection (5) shall—

(a) be published in at least one national newspaper, and where appropriate, in one local newspaper circulating in the area to be served;

(b) specify the procedure to be followed in order to make an application;

(c) specify any other matters which appear to the Commission to be necessary or relevant.

6. —(1) The Commission shall, in accordance with the provisions of this Act, consider every application for a sound broadcasting contract received by it pursuant to a notice under section 5 (5) for the purpose of determining the most suitable applicant, if any, to be awarded a sound broadcasting contract.

(2) In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound broadcasting contract, the Commission shall have regard to—

(a) the character of the applicant or, if the applicant is a body corporate, the character of the body and its directors, manager, secretary or other similar officer and its members and the persons entitled to the beneficial ownership of its shares;

(b) the adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the extent to which the application accords with good economic principles;

(c) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by that applicant;

(d) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided;

(e) the extent to which the applicant will create within the proposed sound broadcasting service new opportunities for Irish talent in music, drama and entertainment;

(f) the desirability of having a diversity of services in the area specified in the notice under section 5 (5) catering for a wide range of tastes including those of minority interests;

(g) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Act;

(h) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media in the area specified in the notice under section 5 (5);

(i) the extent to which the service proposed—

(i) serves recognisably local communities and is supported by the various interests in the Community, or

(ii) serves communities of interest, and

(j) any other matters which the Commission considers to be necessary to secure the orderly development of sound broadcasting services.

(3) In considering the suitability of any applicant for the award of a sound broadcasting contract to provide a sound broadcasting service in respect of an area which includes a Gaeltacht area, the Commission shall have particular regard to the preservation as a spoken language of the Irish language.

7. —(1) The Minister may, if it seems necessary to him so to do for any of the reasons specified in subsection (2), vary any term or condition of a licence issued pursuant to section 4 (3).

(2) The Minister may vary any term or condition of a licence issued pursuant to section 4 (3)—

(a) if it appears to him to be necessary so to do in the interest of good radio frequency management;

(b) for the purpose of giving effect to any international agreement to which the State is a party and which has been ratified by the State and which relates to sound broadcasting;

(c) if it appears to him to be in the public interest so to do;

(d) if it appears to him to be necessary for the safety or security of persons or property so to do;

(e) on request from the Commission after consultation with any affected sound broadcasting contractor;

(f) on request from the Commission on behalf of a sound broadcasting contractor.

(3) (a) If the Minister, for any reason specified in paragraph (a), (b) or (c) of subsection (2) proposes to vary, pursuant to this section, any term or condition of a licence issued pursuant to section 4 (3), he shall, by notice in writing, inform the Commission of his intention and of the reasons therefor and the Commission shall, within 7 days of receiving that notification, give notice to the sound broadcasting contractor accordingly.

(b) The sound broadcasting contractor shall have the right to make representations in writing to the Commission in respect of the Minister's intentions, within 21 days after the service of the notice by the Commission.

(c) The Commission shall transmit any such representations to the Minister within a further 7 days and the Minister, having considered the representations, may make such decision thereon as seems to him to be appropriate.

(4) (a) If, having considered the representations (if any) which have been notified to him by the Commission by or on behalf of a sound broadcasting contractor, the Minister decides to vary any term or condition of a licence, he shall, by notice in writing, inform the Commission of his decision.

(b) The Commission shall, within 7 days of receipt of the Minister's decision by notice in writing inform the sound broadcasting contractor of that decision.

(c) On and from the day following service on the contractor of notice of the Minister's decision the licence shall have effect subject to the variation thereof by that decision.

(5) A notice under subsection (3) or (4) may be served on the Commission and by the Commission on a sound broadcasting contractor, by leaving it at, or sending it by prepaid post to, the Commission's address and the sound broadcasting contractor's last known address respectively or if, in the latter case, the sound broadcasting contractor is a company, by leaving it at, or sending it by prepaid post to, the registered office of the company.

8. —(1) The Commission may, in any period of twelve months, enter into a sound broadcasting contract with an applicant therefor for the provision in such area as may be specified in the contract of a sound broadcasting service for a period of not more than fourteen days (whether consecutive days or otherwise) in that period of twelve months.

(2) The Commission may enter into a sound broadcasting contract with an applicant therefor for the provision of a low-power sound broadcasting service which is intended to serve only such single educational institution, hospital, or other similar establishment as may be specified in the contract.

(3) Section 9 (1) (c) shall not apply to a contract awarded for the provision of a sound broadcasting service under this section.

(4) Sections 5 and 6 shall not apply in the case of a contract applied for, or awarded, for the provision of a sound broadcasting service under this section.

9. —(1) Every sound broadcasting contractor shall ensure that—

(a) all news broadcast by him is reported and presented in an objective and impartial manner and without any expression of his own views;

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his own views: Provided that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other;

(c) a minimum of—

(i) not less than 20 per cent. of the broadcasting time, and

(ii) if the sound broadcasting service is provided for more than 12 hours in any one day, two hours of broadcasting time between 07.00 hours and 19.00 hours, is devoted to the broadcasting of news and current affairs programmes; provided a derogation from this provision is not authorised by the Commission under section 15 ;

(d) anything which may reasonably be regarded as offending against good taste or decency, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by him;

(e) in programmes broadcast by him, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon.

(2) Nothing in subsection (1) (a) or (1) (b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts: Provided that a sound broadcasting contractor shall not, in the allocation of time for such broadcasts, give an unfair preference to any political party.

(3) The Commission shall draw up, and may, from time to time as occasion requires, revise a code governing standards and practice (hereinafter referred to as a code of practice) in relation to any matter specified in subsections (1) and (2).

(4) Whenever the Commission draws up pursuant to subsection (3) a code of practice relating to the matter in question every sound broadcasting contractor shall comply with such code and any revision thereof.

10. —(1) Programmes broadcast in a sound broadcasting service provided pursuant to any sound broadcasting contract may include advertisements inserted therein.

(2) The Commission shall draw up, from time to time as it thinks proper, a code governing standards and practice in advertising and every sound broadcasting contractor shall comply with the code in respect of advertisements broadcast by it.

(3) No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.

(4) The total daily times for broadcasting advertisements in a sound broadcasting service provided pursuant to a sound broadcasting contract shall not exceed a maximum of 15 per cent. of the total daily broadcasting time and the maximum time to be given to advertisements in any hour shall not exceed a maximum of ten minutes.

(5) In this section, references to advertisements shall be construed as including references to advertising matter contained in sponsored programmes, that is to say, in programmes supplied for advertising purposes by or on behalf of an advertiser.

(6) It shall be the duty of the Commission to ensure that sound broadcasting contractors comply with the requirements of subsections (2), (3) and (4).

11. —(1) A sound broadcasting contractor shall give due and adequate consideration to any complaint, which is not of a frivolous or vexatious nature, made by a member of the public in respect of the sound broadcasting service provided by the contractor and shall, whilst his contract is in force, keep due and proper records of all such complaints and of any reply made thereto or of any action taken on foot thereof.

(2) A sound broadcasting contractor shall, if requested by the Commission make available for inspection by the Commission all records kept by him pursuant to subsection (1).

(3) The Minister may, by regulations, direct that complaints made by members of the public in respect of a sound broadcasting service provided under this Act be investigated by the Broadcasting Complaints Commission established by section 18A (inserted by the Broadcasting Authority (Amendment) Act, 1976 ) of the Broadcasting Authority Act, 1960 .

(4) For the purposes of an investigation by the Broadcasting Complaints Commission pursuant to regulations under this section—

(a) the Broadcasting Authority Act, 1960 , shall have effect subject to the following modifications—

(i) a reference in sections 18B and 18C (inserted by the Broadcasting Authority (Amendment) Act, 1976 ), other than in section 18B (1) (e), to the Authority shall be construed as a reference to the sound broadcasting contractor concerned;

(ii) a reference in section 18B (7) (as so inserted) to the Authority shall be construed as referring to the sound broadcasting contractor concerned and to the Commission established by this Act;

(iii) a reference in section 18B (as so inserted) to section 18 (1), section 18 (1A) or section 18 (1B) of the Broadcasting Authority Act, 1960 , shall be construed as a reference to section 9 ;

(iv) a reference in section 18B (as so inserted) to a complaint that an advertisement contravened a code drawn up by Radio Telefís Éireann governing standards in broadcast advertising, or prohibiting either certain methods of advertising in broadcasting or a broadcast in particular circumstances of advertising, shall be construed as a reference to section 10 (2);

(v) a reference in section 18B (as so inserted) to section 31 (1) of the Broadcasting Authority Act, 1960 , shall be construed as a reference to section 12 .

(b) Section 6 of the Broadcasting Authority (Amendment) Act, 1976 , shall have effect as if a reference therein to the Authority were a reference to the sound broadcasting contractor concerned.

12. —Every direction given to Radio Telefís Éireann pursuant to section 31 (1) of the Broadcasting Authority Act, 1960 , by the Minister which is in force on the commencement of this Act or which is given by him after such commencement, shall, for so long as the direction remains in force, apply to a sound broadcasting service provided pursuant to a sound broadcasting contract and shall be complied with by a sound broadcasting contractor as if the direction were given to him, and the said section 31 (1) shall be construed and have effect accordingly.

13. —(1) The Commission may, for any of the reasons in subsection (2), conduct an investigation into the operational, programming, financial, technical or other affairs of a sound broadcasting contractor and the sound broadcasting contractor concerned shall co-operate in any such investigation.

(2) The Commission may conduct, or appoint any other person to conduct, an investigation under this section—

(a) if it has reasonable grounds for believing that the sound broadcasting contractor is not providing a sound broadcasting service in accordance with the terms of his contract; or

(b) if, because of the manner in which the sound broadcasting service is being operated—

(i) there is interference with the working of any apparatus for wireless telegraphy in respect of which a licence has been granted under this or any other Act and is in force, or with any apparatus for wireless telegraphy which is lawfully maintained and worked without such a licence, or

(ii) any apparatus for wireless telegraphy referred to in subparagraph (i) is thereby injuriously affected.

(3) All expenses reasonably incurred in relation to an investigation under this section conducted by the Commission or by any person appointed under subsection (2) shall be borne by the sound broadcasting contractor concerned.

(4) (a) If the Commission considers it necessary or desirable so to do, it may require a sound broadcasting contractor to carry out a market research survey (such market research survey to be carried out by a person approved of by the Commission).

(b) A market research survey carried out pursuant to paragraph (a) shall be of such scope as appears to the Commission to be reasonable, having regard to the extent and nature of the sound broadcasting service being provided by the sound broadcasting contractor.

(c) A market research survey carried out pursuant to a requirement of the Commission under this subsection shall be a survey of the audience reaction to the broadcasting service provided by the sound broadcasting contractor concerned or any particular aspect thereof.

(d) A sound broadcasting contractor shall furnish the Commission with the results of any market research survey carried out in compliance with a requirement of the Commission under this subsection.

14. —(1) Every sound broadcasting contract may contain such terms and conditions as the Commission thinks appropriate and specifies in the contract.

(2) Without prejudice to the generality of subsection (1), the Commission may specify in a sound broadcasting contract all or any of the following terms or conditions:

(a) the period during which the contract shall continue in force;

(b) whether the contract may be renewed and, if so, the manner in which, the terms on which, and the period for which, the contract may be so renewed;

(c) a condition prohibiting the assignment of the contract or of any interest therein;

(d) if the sound broadcasting contractor be a company, a condition prohibiting any alteration in the Memorandum or Articles of Association of the company or in so much of that Memorandum or of those Articles as may be specified or prohibiting any material change in the ownership of the company;

(e) a condition requiring the sound broadcasting contractor to provide the quality, range and type of programmes which he proposed to offer in his application for the award of the contract.

(3) If a sound broadcasting contract does not contain a condition of the type specified in paragraph (c) or (d) of subsection (2), the following provisions shall have effect:

(a) a sound broadcasting contract, or any interest in a sound broadcasting contract, shall not be assignable, nor shall any alteration be made in the Memorandum or Articles of Association of any company which is a sound broadcasting contractor, nor shall there be any material change in the ownership of such a company, without the previous consent in writing of the Commission, and the Commission may, if it considers it reasonable so to do, refuse such consent;

(b) in considering whether to grant its consent to an assignment of a sound broadcasting contract, a change in the Memorandum or Articles of Association of a company which is a sound broadcasting contractor, or a material change in the ownership of such a company, the Commission shall have regard to the criteria specified in section 6 (2) and, where applicable, section 6 (3).

(4) Every sound broadcasting contract shall—

(a) provide that the Commission may, at its discretion, suspend or terminate the contract—

(i) if any false or misleading information was given to the Commission by or on behalf of the sound broadcasting contractor prior to the making of the contract,

(ii) if the sound broadcasting contractor has, in the opinion of the Commission, committed serious or repeated breaches of his obligations under the sound broadcasting contract or under this Act;

(b) provide that a sound broadcasting contractor shall pay to the Commission the fees, shares of profits or royalties specified therein;

(c) provide that the sound broadcasting contractor shall provide such information (including copies of his accounts) which the Commission considers it requires in order to enable it carry out its functions under this Act.

(5) Every sound broadcasting contract shall be open to inspection by members of the public at the Commission's registered office and the Commission shall, on request made by any person and on payment of such sum (if any) as the Commission may reasonably require, furnish to that person a copy of that contract.

15. —Notwithstanding section 9 (1) (c), the Commission may authorise a derogation from the requirement in question in whole or in part in the case of sound broadcasting services which it contracts to provide in any area to meet specific special interests, provided it is satisfied that there is a reasonable plurality of sources of news and current affairs programming available to the public in question from other sound broadcasting services.

16. —(1) The Minister may, at the request of the Commission and after consultation with Radio Telefís Éireann, require the latter to co-operate with sound broadcasting contractors in the use of any mast, tower, site or other installation or facility needed in connection with the provision of transmission facilities for sound broadcasting services to be established under this Act.

(2) A sound broadcasting contractor shall make to Radio Telefís Éireann such periodical or other payments in respect of any facilities provided in pursuance of subsection (1) as the Minister, after consultation with Radio Telefís Éireann and the Commission, directs.