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
BETWEEN
AND
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
Judgment delivered the 10th day of November 1995 by Mr. Justice Keane
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.
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.
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".
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.
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.
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.
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.
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...
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