Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport, Energy and Communications

• Jurisdiction: Ireland
• Judge: MR JUSTICE DECLAN COSTELLO
• Judgment Date: 03 June 1994
• Neutral Citation: 1994 WJSC-HC 2253
• Date: 03 June 1994
• Docket Number: No. 62P/1994,[1994 No. 62 P]
• Court: High Court

1994 WJSC-HC 2253

THE HIGH COURT

No. 62P/1994

CARRIGALINE COMMUNITY TELEVISION v. MIN TRANSPORT

BETWEEN

CARRIGALINE COMMUNITY TELEVISION BROADCASTING COMPANY LIMITED TRADING AS SOUTH COAST COMMUNITY TELEVISION BROADCASTING SERVICE AND GABRIEL HURLEY

Plaintiff

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:

WIRELESS TELEGRAPHY ACT 1926

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

PESCA VALENTIA V MIN FOR FISHERIES & FORESTRY 1985 IR 193

COMPETITION ACT 1991

Synopsis:

INJUNCTION

Interlocutory

Fair question - Convenience - Balance - Damages - Inadequate remedy - Television retransmission service - Licence refused by Minister - Justification - Challenge by plaintiff - Plaintiff's delay in challenging validity of refusal - Whether plaintiff supplied unauthorised service - Prosecution of offender for criminal offence inhibited by interlocutory relief - (1994/62 P - Costello J. - 3/6/94)

|Carrigaline Community Television Broadcasting Co. Ltd. v.

Minister for Transport, Energy and Communications|

MINISTER OF STATE

Delay

Applicant - Application - Reply - Absence - Application - Repetition - Reply - Failure - Application refused by Minister in seventh year - Complaint by Minister of delay by plaintiff in challenging validity of refusal - (1994/62 P - Costello J. - 3/6/94)

|Carrigaline Community Television Broadcasting Co. Ltd. v.

Minister for Transport, Energy and Communications|

DELAY

Application

Reply - Absence - Application - Repetition - Reply - Failure - Minister of State - Application refused by Minister in seventh year - Complaint by Minister of delay by plaintiff in challenging validity of refusal - (1994/62 P - Costello J. - 3/6/94)

|Carrigaline Community Television Broadcasting Co. Ltd. v.

Minister for Transport, Energy and Communications|

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE DECLAN COSTELLO ON 3RD JUNE 1994

2 A number of public meetings were held in Carrigaline, County Cork, in the months of July to September 1985 with the initial aim of forming an organisation to supply a television service to Carrigaline and later to supply a television service to other rural areas in west Waterford and in Cork County. Originally the organisation formed was an unincorporated association but later a company limited by guarantee was established, which is the plaintiff in these proceedings. The plaintiff company is a community-owned non-profit-making organisation whose management committee is elected annually at a public meeting of members who have paid their annual subscription fees for the service provided by the company. All sums received are spent on establishing, maintaining and improving the service. The sums received since the plaintiff company's establishment amount to approximately £500,000 and its service is now provided to approximately 20,000 to 30,000 households in west Waterford and Cork County.

3 The plaintiff company transmits the signals of five television channels: BBC1, BBC2, ITV, S4C, a satellite channel, and a satellite sports channel. The plaintiff company's transmission system is known as a multi-point ultra high frequency (UHF) very low power television broadcasting system, known also as a deflector system. The UHF television signals are picked up off air and rebroadcast from the Comeragh Mountains to 18 sites throughout County Cork and parts of Waterford. The signals are retransmitted with power levels ranging from 10 to 100 watts of what are called 'effective radiated power". All the signals are broadcast on the UHF band. The UHF band of the electromagnetic spectrum covers the frequencies 300 to 3,000 MHz. By international agreement the frequencies between 470 to 960 MHz have been assigned for television broadcasting. Channels 21 to 69 of the UHF band have been designated internationally as television broadcasting channels.

4 The plaintiff company's service is subject to the Wireless Telegraphy Act 1926. By virtue of the provisions of that Act it is an offence to keep an apparatus for 'wireless telegraphy" as defined without a licence granted by the relevant minister. By regulations published in March 1988 the Minister regulated the manner in which licences for an apparatus used solely for the purpose of retransmitting television programmes were to be applied for and granted.

5 The founders of the plaintiff company were aware of the requirements of the 1926 Act and accepted, as the plaintiff company, their successors, accept that the system operated from the Comeragh Mountains involved the use of an apparatus for wireless telegraphy. On 23rd October 1985 representatives of the then unincorporated association met the Minister and informed him of their proposals and requested from him the grant of a licence. No reply to this request was ever made. By letters of 20th August 1986, 22nd November 1989, 30th January 1990 and 1st July 1992 the plaintiff company again applied on each occasion for a licence under the 1926 Act. Until July 1992 its applications were ignored; indeed, the receipt of the plaintiff's applications was not even acknowledged by the Department. The plaintiff's evidence is that during this period its representatives met successive ministers and was given undertakings that its service would be permitted to operate. In its application of 1st July 1992 the plaintiff warned the Minister that if its application was ignored it would apply to the High Court for an order for Judicial Review. This warning produced a reply. By letter of 7th July the Department wrote to the plaintiff's solicitors stating that the application for a licence was refused, the reasons for the refusal being a policy decision relating to the issue of retransmission licences announced on 6th May 1988. It is that earlier policy decision which is central to the dispute in this case. The decision announced by the Minister in May 1988 was (a) that only applications for the supply of a retransmission system known as MMDS would be entertained by the Minister, and (b) that licences which were granted would be exclusive licences, that is, the licensees would have a monopoly in the area over which the licence was granted and no other licence would be granted over it.

6 I should explain briefly what MMDS is. MMDS is a system for the transmission of signals in the band 2,500 to 2,700 MHz. The band is referred to as a microwave band because the waves are extremely short. Because the service is designed to serve a large number of locations it is called a multi-point service and is therefore referred to as a microwave multi-point distribution service, or MMDS.

7 The result of the Minister's policy decision was that the plaintiff could not obtain a licence under the 1926 Act for its deflector system on the VHF band. The Minister has explained that the reasons for his decision to licence only MMDs arises from Ireland's obligations under international agreements relating to broadcasting, including television broadcasting, and to these agreements I must briefly refer. A specialised agency of the United Nations, known as the International Telecommunications Union (ITU) regulates telecommunications services worldwide. One of its committees, the Consultative Committee for International Radio (CCIR) is responsible for establishing regulations governing all forms of broadcasting. Under these Radio Regulations, as they are known, UHF channels are allocated in accordance with Chapter 3. Following an agreement reached at a conference in 1961 in Stockholm, specific channels were allocated to each member state for broadcasting what were termed 'primary" and 'secondary" stations using power output levels greater than, 10 kilowatts. In addition, permission was granted for what was called a tertiary status, which is defined as operation on a non-interfering basis.

8 I return now to the letter of 7th July 1992 from the Department. The reasons given for refusing the plaintiff company's application were given in that letter as follows. Having referred to the fact that the use of the UHF broadcasting band...