Broadcasting Act 2009

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Must-carry and must-offer obligations.

77.— (1) (a) In this Part “appropriate network” means an electronic communications network provided by a person (“appropriate network provider”) which is used for the distribution or transmission of broadcasting services to the public.

(b) For the purposes of this section a multiplex contractor in relation to multiplexes referred to in section 132 (1), (2), (3) and (4) or in section 133 is not an appropriate network provider by virtue of being a multiplex contractor or associated activities.

(c) For the purposes of this section a holder of a licence referred to in section 76 (1), the terms of which authorise the transmission by means of a MMD system of programme material, is not an appropriate network provider by virtue of being a licensee or associated activities.

(d) For the purposes of this section a holder of a licence issued under section 59 or 121 , the terms of which authorise the transmission of programme material, is not an appropriate network provider by virtue of being a licensee under that section or associated activities.

(2) Where the Authority is of the view, after carrying out a review and after consultation with the Communications Regulator, that a type or class of network system, rather than an individual network system, is not used by a significant number of end-users as their principal means of receiving transmissions of programme material, it may propose to the Minister the full or partial removal of the obligations set out in subsections (3), (4), (5), (6), (7), (8), (9) and (10) on that type or class of network system. The Minister may make an order to that effect.

(3) In the case where the appropriate network is a digital system, the appropriate network provider shall ensure the re-transmission, by or through his or her appropriate network, of the Houses of the Oireachtas Channel and the Irish Film Channel.

(4) An appropriate network provider shall ensure the re-transmission, by or through his or her appropriate network, of each free-to-air television service provided for the time being by RTÉ, TG4 and the free-to-air service provided under section 70 by the television service programme contractor which that body or contractor requests the appropriate network provider to so re-transmit.

(5) If a dispute arises between the appropriate network provider and RTÉ, TG4 or the television programme service contractor in relation to the placement by the appropriate network provider, relative to the placement by him or her of another broadcasting service, on the system concerned of a free-to-air service provided by that body or contractor, being a placement made on an appropriate network for the purposes of the appropriate network provider complying with a request by that body or contractor under subsection (4), the dispute shall be referred to the Authority for its determination and the determination of the Authority in the matter shall be final.

(6) An appropriate network provider shall re-transmit each national sound broadcasting service provided for the time being by RTÉ and each sound broadcasting contractor and which RTÉ or the contractor concerned requests the holder to so re-transmit.

(7) The appropriate network provider shall not impose a charge or allow a charge to be imposed in relation to the making available to a person of any service referred to in subsection (3), (4), (5) or (6) if he or she imposes a charge or allows a charge to be imposed on that person in relation to the making available of any other service to that person by means of the appropriate network concerned.

(8) The Authority may require an appropriate network provider to transmit as a broadcasting service, by means of specified appropriate networks (whether analogue or digital) maintained by the appropriate network provider, the whole or part of the programme material supplied under one or more specified community content provision contracts the holders of which are members of the local community or community of interest that is served by the said appropriate network and who request the first-mentioned appropriate network provider to so transmit the whole or, as the case may be, part of that programme material.

(9) A person of whom a requirement is made by the Authority under subsection (8) shall comply with that requirement.

(10) An appropriate network provider shall not impose a charge or allow a charge to be imposed in relation to the making available to a person of any service referred to in subsection (8), pursuant to a requirement made of him or her under that subsection, if he or she imposes a charge or allows a charge to be imposed on that person in relation to the making available of any other service to that person by means of the appropriate network concerned.

(11) Without prejudice to the requirements imposed under subsection (4), RTÉ, TG4 and the television service programme contractor shall ensure that their must-offer services are at all times offered for re-transmission (subject to agreement as to fair, reasonable and non-discriminatory terms of use) by means of any appropriate network that is available for reception in an intelligible form by members of the public in the whole of or in part of the State.

(12) RTÉ, TG4 and the television service programme contractor shall ensure that their must-offer services are at all times offered for broadcast or re-transmission (subject to agreement as to fair, reasonable and non-discriminatory terms of use) by means of every satellite television service.

(13) Arrangements entered into under subsection (12) shall not result in an additional charge on any subscriber to a satellite television service by reason of the making available to that subscriber of any must-offer service by way of the satellite television service.

(14) Subject to the requirements of any contract made under section 74 any arrangement entered into under subsection (12) shall ensure that the electronic programme guide by which members of the public access the satellite television service shall prioritise the positioning of the must-offer service for the purposes of that satellite television service and for the purposes of any other satellite television service which also utilises the same electronic programme guide for the purposes of making a satellite television service available for reception in an intelligible form by members of the public in the whole of or in part of the State.

(15) The Authority shall report to the Minister on an annual basis in relation to the operation of this section.

(16) (a) An order under subsection (2) shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is made.

(b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which an order was laid before it in accordance with paragraph (a), pass a resolution annulling the order.

(c) The annulment under paragraph (b) of an order takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the order before the passing of the resolution.

(17) In this section—

“ must-offer service ” means a free-to-air television service provided for the time being by RTÉ, TG4 and the free-to-air service provided under section 70 by the television service programme contractor;

“ re-transmission ” means near-simultaneous, unaltered and unabridged transmission;

“ satellite television service ” means a service which consists in or involves the distribution or transmission of television broadcasting services from a satellite, such services then offered to the public with the intention that such services be used by a significant number of the persons in the whole or part of the State by whom the broadcasts are received in an intelligible form as their principal means of receiving television programmes.