Carrigaline Community Television Broadcasting v Min Justice & Min Energy & Communications

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 10 November 1995
• Neutral Citation: 1998 WJSC-HC 4403
• Docket Number: 62P/1994
• Court: High Court
• Date: 10 November 1995

1998 WJSC-HC 4403

THE HIGH COURT

62P/1994

CARRIGALINE COMMUNITY TELEVISION BROADCASTING v. MIN JUSTICE & MIN ENERGY & COMMUNICATIONS

BETWEEN

CARRIGALINE COMMUNITY TELEVISION BROADCASTING COMPANY LIMITED T/A SOUTH COAST COMMUNITY TELEVISION BROADCASTING SERVICE AND GABRIEL HURLEY

PLAINTIFFS

AND

THE MINISTER FOR TRANSPORT, ENERGY AND COMMUNICATIONS, THE MINISTER FOR ARTS, CULTURE AND THE GAELTACHT, IRELAND, THE ATTORNEY GENERAL AND CORK COMMUNICATIONS LIMITED

DEFENDANTS

Citations:

RADIO & TELEVISION ACT 1988

BROADCASTING & WIRELESS TELEGRAPHY ACT 1988

WIRELESS TELEGRAPHY ACT 1926 S5

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1994 2 IR 359

BROADCASTING ACT 1990 S17(1)

WIRELESS TELEGRAPHY (TELEVISION PROGRAMME RETRANSMISSION) REGS 1989 SI 39/1989

WIRELESS TELEGRAPHY ACT 1926 S6

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

RADIO REGS ART 108

STOCKHOLM CONVENTION 1961 ART 4

COMPETITION ACT 1991 S4

COMPETITION ACT 1991 S5

RADIO REGS ART 109

RADIO REGS ART 21

RADIO REGS ART 36

RADIO REGS ART 6.4

RADIO REGS ART 3.3

CABLE & SATELLITE YEARBOOK

TREATY OF ROME ART 86

TREATY OF ROME ART 85

EAST DONEGAL CO-OP V AG 1970 IR 317

MCGEOGH, STATE V LOUTH CO COUNCIL 1956 107 ILTR 13

N, IN RE SOLICITORS ACTS 1954–1960 UNREP FINLAY 30.6.80

KERSHAW, STATE V EASTERN HEALTH BOARD 1985 ILRM 235

POWER SUPERMARKETS LTD, IN RE 1988 IR 206

MCNAMEE V BUNCRANA UDC 1983 IR 213

BROADCASTING AUTHORITY ACT 1960 S17

ABENGLEN PROPERTIES, STATE V DUBLIN CORPORATION 1984 IR 381

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION FUND 1986 IR 642

DALY, STATE V RUANE 1988 ILRM 117

WIRELESS TELEGRAPHY ACT 1926 S6(1)

WIRELESS TELEGRAPHY ACT 1926 S26

CONSTITUTION ART 15.2

BROADCASTING ACT 1990 S17(1)

FINANCE ACT 1976 S46

MCDAID V SHEEHY 1991 1 IR 1

RADIO RULES ART 24 PARA 20/20

WIRELESS TELEGRAPHY ACT 1926 S6(1)(g)

WIRELESS & TELEGRAPHY ACTS 1926 – 1988

SHEERIN, STATE V KENNEDY 1966 IR 379

MCMAHON V AG 1972 IR 69

ELECTRICITY SUPPLY BOARD (ESB) V GORMLEY 1985 IR 129

PMPS V MOORE 1983 IR 339

AG V PAPERLINK 1984 ILRM 373

CHESTVALE PROPERTIES LTD V GLACKEN 1992 ILRM 221

IARNROD EIREANN V AG 1995 ILRM

NORRIS V AG 1984 IR 36

CONSTITUTION ART 40.6.1.i

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.2

BROADCASTING AUTHORITY ACTS 1960–1979

LYNCH, STATE V COONEY 1982 IR 337

AG FOR ENGLAND & WALES V BRANDON BOOKS PUBLISHERS LTD 1986 IR 597

HEANEY V IRELAND 1994 2 ILRM 421

CITYVIAW PRESS LTD V ANCO 1980

MCDAID V SHEEHY 1991 IR 1

AMBIORIX LTD V MIN FOR ENVIRONMENT (NO 2) 1992 2 IR 37

MEAGHER V MIN FOR AGRICULTURE 1994 1 IR 329

O'BRIEN V MANUFACTURING CO LTD 1973 IR 334

NOVA MEDIA SERVICES LTD V MIN FOR POST & TELEGRAPHS 1984 ILRM 181

PMPS V AG 1983 IR 355

PINE VALLEY DEVELOPMENT LTD V MIN FOR ENVIRONMENT 1987 IR 23

CRAMPTON & CO V UNITED STATES 1987 276 US 394

WINTERSTATE V GOODRICH TRANSIT CO 1911 224 US 194

HARVEY V MIN FOR SOCIAL WELFARE 1990 2 IR 232

TREATY OF ROME ART 59

COMPETITION ACT 1991 S3(1)

SACCHI 1974 ECR 409

ERT 1991 1 ECR 2925

DEANE V VOLUNTARY HEALTH INSURANCE BOARD 1992 2 IR 319

DONOVAN V ELECTRICITY SUPPLY BOARD (ESB) 1994 2 ILRM 325

GREALLY V MIN FOR EDUCATION 1995 3 IR 481

HOFNER & ELSER V MACROTRON 1991 ECR 1979 1993 4 CMLR 306

CALLINAN V VHI UNREP KEANE 22.4.93 1993/10/3124

MICHELIN V COMMISSION 1983 ECR 3461

TREATY OF ROME ART 90(1)

BUREAU NATIONALE INTERPROFESSIONAL DU COGNAC V CLAIR 1985 ECR 391

SAX FLUGGESELLSCHAFT V EUROCONTROL 1994 5 CMLR 208

IRISH AEROSPACE (BELGIUM) V EUROCONTROL 1992 1 LLOYDS 383

BODSON V POMPES FUNEBRES 1988 ECR 2479

CADBURY LTD V KERRY CO-OPERATIVE LTD 1982 ILRM 77

DESMOND V GLACKIN 1993 3 IR 1

DARBYSHIRE CO COUNCIL V TIMES NEWSPAPER LTD 1992 2 AER 65

GROPPERA RADIO V SWITZERLAND 1990 12 EHRR 321

AUTRONIC V SWITZERLAND 1990 12 EHRR 485

INFORMATIONSMEREIN LENTIA V AUSTRIA 1993 17EHRR 93

LOFTUS V AG 1979 IR 221

MURPHY V AG 1982

PARKES V PARKES UNREP COSTELLO 1.7.80 1980/18/3094

CUSSEN, STATE V BRENNAN 1981 IR 181

H V H UNREP KEANE 20.12.79 1981/4/591

FUREY, STATE V MIN FOR DEFENCE 1988 ILRM 89

FALLON V BORD PLEANALA 1992 2 IR 380

O DOMHNAILL V MERRICK 1984 IR 151

TOAL V DUIGNAN 1991 ILRM 135

TRIMOR BCL V STOKES KENNEDY CROWLEY UNREP 11.2.94

FALLON V BORD PLEANALA 1992 2 IR 380

WIRELESS TELEGRAPHY ACT 1926 S3

RADIO & TELEVISION ACT 1988 S12

RADIO & TELEVISION ACT 1988 S5(2)

WIRELESS TELEGRAPHY ACT 1926 S6(4)

WIRELESS TELEGRAPHY ACT 1972 S8

BROADCASTING AUTHORITIES (AMDT) ACT 1976 S17

WIRELESS TELEGRAPHY ACT 1926 S3(a)

RADIO & TELEVISION ACT 1988 S4(2)(b)

RADIO & TELEVISION ACT 1988 S17

RADIO & TELEVISION ACT 1988 S4

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

CHIEF CONSTABLE OF THE NORTH WALES POLICE V EVANS 1982 1 WLR 115

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

BRITISH OXYGEN LTD V MIN FOR TECHNOLOGY 1971 AC 610

R V PORT OF LONDON AUTHORITY EX PARTE KYNOCH 1919 1 KB 176

MCGEOUGH, STATE V LOUTH CO COUNCIL 107 ILTR 13

IARNROD EIREANN V AG 1995 ILRM

AG V PAPERLINK 1984 ILRM 373

EUROCONTROL ECJ

TREATY OF ROME ART 90(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(1)

HEALY, STATE V DONOGHUE 1976 IR 325

GROPPERA V INFORMATIONSVERIN LENTIAT

SNELL PRINCIPLES OF EQUITY 27ED

MURPHY V AG 1982 IR 241

LOFTUS V AG UNREP FINLAY

Synopsis:

[1997] 1 ILRM 241

1 Judgment delivered the 10th day of November 1995 by Mr. Justice Keane

INTRODUCTION

2 Television programmes transmitted in the United Kingdom cannot be received in the Republic of Ireland by putting up an aerial except on the East coast and in the border counties. That indisputable fact and the resultant pressure from people in the rest of the country for a service which would bring them the UK programmes forms the background to these lengthy proceedings.

3 In 1985, a group in Carrigaline, County Cork, erected a transmitter in the Cormeragh mountains which was capable of picking up the UK signals and sending them to their area. No licence under the relevant legislation was granted at any time by the authorities but, although the equipment was seized on a number of occasions, the broadcasting, considered by the relevant Government agencies to be illegal, continued. It also extended the area of its operations so that at the time these proceedings began its signals were being received in most parts of County Cork outside Cork city and in the western part of County Waterford.

4 About a year after the Carrigaline group began their activities, the Government decided to meet the public demand for the transmission of the UK signals by licensing a system called the Microwave Multipoint Distribution System (hereafter "MMDS"). Following the publication of advertisements inviting tenders for franchises, the franchise for the County Cork region was granted to the fifth named Defendants (hereafter "Cork Communications"). The Carrigaline group, who ultimately evolved into the first named Plaintiffs in the present proceedings, having sought in vain for a licence for their rebroadcasting system, eventually began these proceedings in which they claim that the relevant legislation is unconstitutional and in breach of European law and that, in any event, the application of it by the first named Defendant (hereafter "the Minister") is unlawful. They also claim that the grant of the franchise to Cork Communications is unlawful. The first named Plaintiffs, who say they are a non-profit making organisation, are a limited company trading under the name of "South Coast Community Television Broadcasting Service".

5 Much of the evidence in the case was highly technical in nature and since this judgment will be read by lay people who, like me, are unfamiliar with the scientific and technological aspects of the issues raised, I think it might be helpful if I give at the outset a summary, in necessarily simplistic terms, of those aspects.

6 The reception of television programmes in our homes and other places is effected by the transmission of signals through the air or through cables. The process begins in every case with the translating by the television cameras of the images to be transmitted into video signals which are fed into the transmitter and the simultaneous feeding into the transmitter of audio signals from the microphones. Thereafter, generally speaking, the signals are transmitted to their ultimate destination either through the air or by cable.

7 Where the signals are transmitted through the air, they are carried by radio waves which travel at the speed of light. These waves are the result of the creation of an electromagnetic field in the atmosphere radiating out from the transmitter. The waves are categorised by their frequency, i.e. in crude terms, the number of times they vibrate over a given period of time. The distance each complete vibration or cycle travels during the same period of time varies significantly depending on its frequency and is known as the wavelength.

8 The relevant unit for the measurement of frequencies, the Hertz, abbreviated to Hz, refers to one vibration or cycle per second. Thus, 300 Kilo Hertz (abbreviated to 300 KHz) indicates a frequency of 300,000 cycles per second, an extremely low frequency in comparative terms. (It is in fact where the band of sound radio begins). 300 Mega Hertz (abbreviated to 300 MHz) indicates a frequency of 300 million cycles per second. In the highest frequency range, the relevant unit is the Giga-Hertz (abbreviated to GHz) denoting 1,000,000,000 cycles per second.

9 The information contained in the video and audio signals is impressed on the relevant frequency (called the carrier frequency) by the process known as modulation. It is happily unnecessary to dwell on the complex details of how this is...