S.I. No. 39/1989:

WIRELESS TELEGRAPHY (TELEVISION PROGRAMME RETRANSMISSION) REGULATIONS, 1989.

WIRELESS TELEGRAPHY (TELEVISION PROGRAMME RETRANSMISSION) REGULATIONS, 1989.

I, RAY BURKE, Minister for Communications, in exercise of the powers conferred on me by section 6 (1) of the Wireless Telegraphy Act, 1926 (No. 45 of 1926), as amended by the Wireless Telegraphy Act, 1956 (No. 4 of 1956), and the Wireless Telegraphy Act, 1972 (No. 5 of 1972), and, in so far as these Regulations relate to fees, with the consent of the Minister for Finance, do by this Order make the following Regulations:

1. (1) These Regulations may be cited as the Wireless Telegraphy (Television Programme Retransmission) Regulations, 1989.

(2) These Regulations shall come into operation on the 1st day of April, 1989.

2. (1) In these Regulations--

"approved reception" means, in relation to a television programme service, the reception of a programme service not intended for general reception but for which approval has been obtained by the licensee from the programme originator for retransmission to subscriber stations;

"authorised officer" means a person appointed by the Minister in writing to be an authorised officer for the purpose of these Regulations;

"designated television programme service" means a television programme service designated by the Minister for retransmission to subscriber stations;

"encoding" means a procedure approved of by the Minister for use by the licensee to inhibit the exhibition of any television programme service or a designated television service retransmitted by the licensee, and cognate words shall be construed accordingly;

"licence" means a licence under section 5 of the Wireless Telegraphy Act, 1926 to which Regulation 3 of these regulations applies;

"licensed area" means the area in the State in relation to which a licence authorises the licensee to retransmit television programme services;

"licensee" means the holder of a licence;

"the Minister" means the Minister for Communications;

"primary station" means apparatus for wireless telegraphy (and any other apparatus associated therewith) used solely for the purpose of receiving and retransmitting television programme services to a subscriber station or to another primary station and includes any aerial used in connection with such apparatus for wireless telegraphy;

"retransmission" means, in relation to a television programme service, the reception of that programme service and the subsequent emission of such programme services by a primary station which is operated under and in accordance with a licence from the place of reception to a subscriber station, and includes the transmission of television programme services which are not received by means of apparatus for wireless telegraphy, and cognate words shall be construed accordingly;

"serve" in relation to a notice or other document includes service in accordance with Regulation 4 (2);

"station", when used without qualification, includes, as the context may require a primary station or a subscriber station;

"subscriber station" means apparatus for wireless telegraphy which is used solely for the reception of television programme services retransmitted by a primary station and includes any aerial used in connection with such apparatus for wireless telegraphy but does not include a television set;

"television programme service" means a programme service intended for general or approved reception in visual images with or without sound;

"television set" has the meaning assigned to it in the Wireless Telegraphy Act, 1972 , as amended by section 2 (2) of the Broadcasting and Wireless Telegraphy Act, 1988 .

(2) In these Regulations a reference to an enactment or regulation shall be construed as a reference to the enactment or regulation as amended by any subsequent enactment or regulation.

3. These Regulations apply to a licence to install, maintain, work and use a primary station for the retransmission of television programme services and for such other purposes as are specified in the licence.

4. (1) In the consideration of applications for a licence and in determining the most suitable applicant to be awarded a licence the Minister 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 desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of programme retransmission systems;

( d ) the adequacy of the technical proposals submitted by the applicant and the extent to which the application accords with the principle of good frequency management;

( e ) the proposed cost of the service to be supplied by the applicant;

( f ) the rate at which the applicant proposes to make service available throughout the licensed area;

( g ) any other matters which the Minister considers to be necessary to secure the orderly development of programme transmission systems.

(2) Every licensee shall on the grant of his licence furnish in writing to the Minister the address to which notices and other documents under these Regulations may be delivered or sent by post to him by the Minister and shall as occasion requires likewise furnish any change of address and any such notice or document delivered to or sent by post to such address or last address so furnished shall be deemed for the purposes of these Regulations to have been duly served by the Minister.

5. Every licence shall be in the form specified in the Schedule to these Regulations and the licensee shall comply with the conditions set out or referred to in the licence.

6. (1) Subject to the provisions in these Regulations every licence shall, unless previously surrendered by the licensee or unless and until it is revoked by the Minister, continue in force from the date of issue until the expiration of the eleventh month after the end of the month in which it was issued and shall then expire unless renewed.

(2) Subject to the provisions of these Regulations every licence shall, on the application of the licensee, be renewed each year up to a maximum of 9 times or, in the case of an agreement under Regulation 7, 10 times, on payment of the renewal fee prescribed in paragraph (4) of this Regulation within 30 days after the date on which it would expire if not renewed.

(3) A licence which is renewed under this Regulation shall, subject to the provisions of these Regulations, continue in force:

( a ) in the case of the first such renewal for one year, from the date on which it would have expired if not so renewed, and

( b ) in the case of every subsequent such renewal, for one year from the expiration of the last previous renewal thereof.

(4) The amount of the renewal fee shall be equivalent to 5 per cent of the gross revenue, excluding charges in respect of installation costs relating to subscriber stations and value added tax, arising from the provision of television programme services under the licence in the 12 months since the issue or last renewal of the licence.

(5) A licensee shall, when paying the renewal fee referred to in paragraph (4) of this Regulation, furnish to the Minister a statement, certified by a person who is qualified under the Companies Act, 1963 (No. 33 of 1963), for appointment as auditor of a company, of the gross revenue excluding charges in respect of installation costs relating to subscriber stations and value added tax paid to the licensee in the year in respect of which the said fee relates.

(6) All fees payable under these Regulations shall be paid to the Minister and shall be so paid in cash, or by cheque, money order or postal order.

7. (1) The Minister, if he considers it proper to do so, may, after the licence has been renewed nine times following the issue of the licence agree to renew the licence a further ten times subject to the provisions of these Regulations.

(2) The Minister may continue to agree to renew licences under this Regulation as he considers it proper to do so.

(3) In considering whether to renew a licence under this Regulation, the Minister shall have regard, inter alia, to the service provided by the licensee under the licence and to whether such licensee complied with the conditions attached to the licence pursuant to these Regulations, by the Minister.

8. The fee to be paid by the licensee on the grant of a licence shall be £20,000.

9. A licensee shall not--

( a ) receive any money or other consideration from any person (other than the licensee's usual charge in respect of the installation of a subscriber station and the retransmission of programme services from the primary station to the subscriber station) in respect of the service provided under the licence;

( b ) place any restrictions on the make or type of apparatus for wireless telegraphy which may be used to exhibit programmes retransmitted from the primary station;

( c ) use, or allow to be used, a primary station for any purpose other than the retransmission within the licensed area of the television programme services, the retransmission of which is authorised under his licence;

( d ) originate at a primary station or receive any television programme service, message or item for retransmission within the licensed area other than the television programme services, the retransmission of which is authorised under his licence;

( e ) install, or agree to the installation of, a subscriber station in any place which is not within the licensed area;

( f ) refuse to install, or to agree to the installation of, a subscriber station at any place within the licensed area if, in the opinion of the Minister, it is unreasonable so to do;

( g ) use any frequency channels for the purpose of his primary station other than the frequency channels which have been approved of by the Minister for such purpose;

( h ) encode any television programme retransmitted under the licence unless such encoding is approved of by the Minister;

( i ) use any encoding process unless such process is approved of by the Minister;

( j ) install, or agree to the installation of, a subscriber station in any area to which a licence within the meaning of the Wireless Telegraphy (Wired Broadcast Relay Licence) Regulations, 1974 ( S.I. No. 67 of 1974 ), relates except--

(i) with the prior approval of the Minister and the agreement of the licensee under these Regulations, or

(ii) in any case where the Minister is of opinion that licensee has unreasonably refused to provide a service under that licence, with the consent of the Minister.

10. (1) If any message which a licensee is not authorised to receive is unintentionally received by means of the station to which his licence relates, the licensee shall not--

( a ) make known, or allow to be made known, its contents, its origin, its destination, its existence or the fact of its receipt to any person other than an authorised person, or

( b ) reproduce in writing or otherwise, make use of or copy such a message or allow it to be reproduced in writing, made use of or copied.

(2) A licensee shall take all such measures as are reasonably practicable to prevent a message of the type referred to in paragraph (1) of this Regulation being received at any subscriber station within his licensed area.

11. A licensee shall--

( a ) if and when required so to do by the Minister, do any or all of the following:

(i) use the station to which his licence relates for the purpose of transmitting designated television programme services;

(ii) retransmit such designated television programme services to each subscriber station within the licensed area;

(iii) encode all or any television programme retransmitted by the primary station to which the licence relates;

( b ) on request, produce his licence for inspection by an authorised officer;

( c ) furnish to the Minister such information relating to the retransmission service provided under the licence as the Minister may, from time to time, by notice in writing sent by post to such licensee at his last known address, require;

( d ) furnish to the Minister such information and reports as the Minister may require for the purposes of an investigation under Regulation 12 (1) or 12 (2) of these Regulations;

( e ) retransmit such television programme services as are required to be retransmitted under his licence;

( f ) keep all or any records which the Minister, from time to time, informs the licensee that he requires to be kept;

( g ) on request from an authorised officer, permit the authorised officer at all reasonable times to inspect any records which the Minister requires to be kept or which are kept by the licensee in connection with the operation of the station to which his licence relates;

( h ) on request from an authorised officer, make available any test equipment or apparatus necessary to facilitate testing by the authorised officer of the station or of apparatus for wireless telegraphy therein.

12. (1) ( a ) The Minister may, from time to time, investigate the charges being applied by a licensee in respect of the service being provided by him under a licence to the subscribers to such service and may, having considered the results of such an investigation, direct that any such charges be altered with effect from a specified date, and any such direction by the Minister shall be complied with by the licensee with, if necessary, an appropriate rebate being allowed to any such subscriber either, at the discretion of the licensee, by means of a cash refund or by means of a discount of equivalent value against future subscription charges.

( b ) The Minister may, if he sees fit, require the licensee to provide a report prepared by a person who is qualified under the Companies Act, 1963 , for appointment as auditor of a company for the purposes of conducting an investigation under subparagraph (a).

( c ) The results of any investigation directed by the Minister under this paragraph may, at the discretion of the Minister, be made known to the licensee concerned.

( d ) Whenever, as a result of an investigation under this paragraph, the Minister proposes to direct that any charges made by the licensee concerned be altered, the Minister shall serve on the licensee a notice in writing stating the reasons for his proposal and the licensee may, within one month thereafter, apply to the Minister to reconsider his proposal or to refer the proposal to an independent arbitrator to be appointed by agreement between the licensee and the Minister.

( e ) The decision of the Minister or the arbitrator on such application or reference, as the case may be, shall be final.

(2) ( a ) The Minister may, from time to time, require the licensee to have a technical audit of the system to which a licence relates carried out by persons holding such qualifications as may be specified by the Minister and any such audit shall relate to such matters and be in such format as the Minister may direct.

( b ) When the Minister has requested a technical audit pursuant to subparagraph (a) of this paragraph, the licensee shall, within 60 days after the direction of the Minister, furnish to the Minister a full report of the audit.

(3) The Minister may, if it seems proper to him so to do, direct that a licensee shall provide a service to another primary station for the purposes of providing a retransmission service to an area other than the licensed area: provided always that an arrangement to compensate the licensee concerned is reached and, if no such agreement is reached, the Minister may refer the matter to an independent arbitrator to be appointed by agreement between the Minister and the licensee concerned and the decision of the arbitrator shall be final.

13. (1) Whenever the Minister is satisfied that a licensee has failed to observe any of the terms and conditions subject to which his licence was granted, or has done, in respect of apparatus for wireless telegraphy kept by him pursuant to the licence, any act (whether of commission or omission) which is a contravention of the Wireless Telegraphy Act, 1926 , the Broadcasting Authority, Act, 1960 (No. 10 of 1960), the Wireless Telegraphy Act, 1972 (No. 5 of 1972) and the Broadcasting Authority Act, 1960 (No. 10 of 1960), the Regulations, the Minister may, by notice in writing served on the licensee, suspend the licence for such period as may be specified in the notice, or revoke the licence, in whole or part.

(2) If the number of premises served by a television programme retransmission system from a primary station is, within twelve months after the date of the grant of a licence or at any time thereafter, less than the minimum number of such premises specified in the licence, the Minister may, by notice in writing served on the licensee, suspend the licence for such period as may be specified in the notice, or revoke the licence, in whole or in part.

(3) If--

(a) the licensee is adjudicated bankrupt, or

(b) the licensee, being a company (within the meaning of the Companies Act, 1963 ), an order for its winding up is made, or a resolution for voluntary winding up (within the meaning of that Act) is passed by the company otherwise than for the purpose of a merger or reconstruction, or a receiver of the property of the company is appointed,

the Minister may, by notice in writing served on the licensee, suspend the licence for such period as may be specified in the notice, or revoke the licence, in whole or in part.

(4) In addition to any other power of suspension of a licence conferred by these Regulations, the Minister may at any time, by notice published in Iris Oifigiúil, suspend, in whole or in part, for such period as may be specified in the notice, all licences for the time being in force or all such licences relating to stations in a specified district or area.

(5) The suspension or revocation of a licence under this regulation shall not operate to entitle a licensee to a refund of any fee, or any part of any fee, paid by him in relation to a licence.

14. If the Minister--

(a) is satisfied that the use of any apparatus for wireless telegraphy or any other apparatus in a station is causing, or is likely to cause, interference with any apparatus for wireless telegraphy used for the purpose of any safety of life service, or for any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend, and

(b) serves on the licensee by post, or by telecommunications services operated in accordance with the Postal and Telecommunications Services Act, 1983 (No. 24 of 1983), at the licensee's address a notice requiring that the use of such apparatus as may be sepcified in the notice cease forthwith, or on or before such date and time as may be so specified, the licensee shall cease to use the apparatus unless and until the Minister withdraws the notice.

15. An authorised officer shall, when exercising any power conferred on him by these Regulations, if so requested, produce to any person affected a copy of his appointment as such authorised officer.

16. Nothing contained in these Regulations or in a licence shall authorise the licensee to do any act which is an infringement of any copyright or other legal rights which may exist in any television programme.

17. Nothing in these Regulations shall remove the obligations on the occupier of the whole, or part, of a subscriber station of holding a licence under the Wireless Telegraphy (Broadcasting Receiving Licences) Regulations, 1961 ( S.I. No. 279 of 1961 ), in respect of broadcasting receiving equipment in his possession.

SCHEDULE

WIRELESS TELEGRAPHY ACT, 1926

TELEVISION PROGRAMME RETRANSMISSION LICENCE

1. The licensee specified in Part I of the Schedule to this licence is hereby authorised to--

(a) install, maintain, work and use a primary station in accordance with the particulars specified in Part II of that Schedule;

(b) install, or allow to be installed, subscriber stations in the area described in Part III of that Schedule to the intent that programmes emitted by the primary station may be capable of being received by the subscriber stations in that area.

2. The licensee shall be responsible for obtaining such way leave permission as may be necessary for the installation, maintenance, working and use of the stations.

3. The licensee--

(a) shall provide, within each subscriber station, facilities for the direct connection of the television broadcast receiver used in connection with the subscriber station to apparatus for wireless telegraphy designed to receive the television programmes of Radio Telefís Éireann;

(b) shall retransmit to each subscriber station such television programme services designated by the Minister under the Wireless Telegraphy (Television Programme Retransmission) Regulations, 1989, for retransmission,

and shall not retransmit any other programme or matter save with the consent in writing of the Minister. If the Minister consents in writing as aforesaid to the retransmission of any such other programme or item, this licence shall be deemed to be amended in accordance with such consent.

4. This licence shall, unless previously surrendered by the licensee or unless and until it is revoked by the Minister, remain in force for the period of one year from the date of issue or renewal thereof.

5. This licence shall be renewed on payment of the renewal fee prescribed in Regulation 6 and in the time and manner prescribed in Regulation 6 for each subsequent year for a period of 10 years from the date of issue of this licence.

6. The apparatus of the station shall be so designed, constructed, installed, maintained and operated so that no harmful interference with any State or other authorised apparatus for wireless telegraphy, and no harmful effect on any telegraphic line of An Bord Telecom Éireann (wherever such line is placed and by whomsoever it is used) is caused.

7. The licensee shall maintain a record of the name and address of each possessor of a television set at each subscriber station and such record shall include the date on which programmes were first retransmitted to each such subscriber station and the date (if any) on which retransmission to any such subscriber station ceased.

8. The licensee shall, within 6 months after the date on which the retransmission of television programmes from the primary station commences, furnish to the Minister a statement in writing specifying in relation to that date--

(a) the name and address of each person who is in possession of a television set at a subscriber station, and

(b) the total number of subscriber stations served by the primary station to which this licence relates.

Within 8 days after--

(a) the end of the period of 12 months beginning immediately after the end of the period of 6 months referred to in paragraph 7 of this licence, or

(b) a request in writing from the Minister served on the licensee,

the licensee shall furnish to the Minister a statement in writing specifying, in respect of the last day of the immediately preceding month, the total number of subscriber stations installed in the licensed area together with the name and address of each person who holds a subscriber station.

9. Nothing in this licence shall authorise the licensee to do any act which is an infringement of any copyright or other legal right which may exist in any television programme.

10. The licensee shall comply with the technical conditions set out in Part VII of the Schedule to this licence and with any alterations or additions thereto notified to the licensee in writing at the licensee's address by or on behalf of the Minister.

11. In this licence--

"licence" means a licence to install, maintain, work and use a station;

"licensed area" means the area in the State in which this licence authorises the licensee to retransmit television programme services;

"licensee" means the holder of this licence;

"the Minister" means the Minister for Communications;

"primary station" means apparatus for wireless telegraphy, and any other apparatus associated therewith used solely for the purpose of receiving and retransmitting television programme services to a subscriber station or to another primary station and includes any aerial used in connection with such apparatus for wireless telegraphy;

"retransmission" means, in relation to a television programme service, the reception of the programme service and the subsequent emission of such programmes by a primary station which is operated under and in accordance with this licence from the place of reception to a subscriber station and includes the transmission of television programme services which are not received by means of apparatus for wireless telegraphy and cognate words shall be construed accordingly;

"station", when used without qualification includes, as the context may require, a primary station or a subscriber station;

"subscriber station" means apparatus for wireless telegraphy which is used solely for the reception of television programmes retransmitted by a primary station and includes any aerial used in connection with such apparatus for wireless telegraphy but does not include a television set;

"television programme service" means a programme service intended for general or approved reception in visual images with or without sound;

"television set" has the same meaning assigned to it in the Wireless Telegraphy Act, 1972 , as amended by section 2 (2) of the Broadcasting and Wireless Telegraphy Act, 1988 .

SCHEDULE

PART I

LICENSEE

PART II

PARTICULARS OF PRIMARY STATIONS

PART III

LICENSED AREA

PART IV

MINIMUM NUMBER OF SUBSCRIBER STATIONS

PART V

TELEVISION PROGRAMME SERVICES WHICH MUST BE RETRANSMITTED

PART VI

TELEVISION PROGRAMME SERVICES WHICH MAY BE RETRANSMITTED

PART VII

TECHNICAL CONDITIONS

GIVEN under my Official Seal, this 8th day of March, 1989.

RAY BURKE.

The Minister for Finance hereby consents to the foregoing Regulations in so far as such Regulations relate to fees.

GIVEN under the Official Seal of the Minister for Finance, this 8th day

of March, 1989.

ALBERT REYNOLDS.

EXPLANATORY NOTE.

These Regulations provide for the issue of licences for apparatus for wireless telegraphy used solely for the purpose of retransmitting (by wireless telegraphy) television programme services for the regulation of such systems and for the payment of licence fees.