Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport, Energy and Communications (No. 2)

JurisdictionIreland
CourtHigh Court
Judgment Date01 January 1997
Date01 January 1997
(H.C.)
Carrigaline Community Television Broadcasting Co. Ltd
and
Minister for Transport, Energy and Communications (No. 2)

- Freedom of expression - European Convention - Right to freedom of expression not absolute under Convention - Constitution of Ireland, 1937, Articles 15.2.1, 40.3.2, 40.6.1 (1), 43.2 - European Convention on Human Rights and Fundamental Freedoms, 1950, Article 10 (1).

The Wireless Telegraphy Act, 1926, (hereafter 'the 1926 Act') provides for the regulation and control of wireless telegraphy on land, at sea and in the air, for the regulation and control of certain classes of visual and sound signalling stations, and for the establishment and maintenance of state broadcasting stations and provides for other matters relating to wireless telegraphy, signalling and broadcasting respectively. S. 3 of the 1926 Act, as amended, prohibits any person from keeping or using any apparatus for wireless telegraphy in his possession save insofar as he is authorised by a licence. S. 5 of the 1926 Act empowers the minister, subject to the provisions of the Act and on payment of the prescribed fee, if any, to grant to a person a licence to keep and have possession of apparatus for wireless telegraphy. S. 5(2) of the 1926 Act provides that every licence granted under the Act shall be in such form or continued in force for such a period and be subject to such conditions and restrictions (including conditions as to suspension or revocation) as shall be prescribed in regard thereto by regulations made by the minister under the Act. S. 6(1) of the Act provides that the minister may by order make regulations in relation to such licences. S. 8 of the Wireless Telegraphy Act, 1972, (hereafter 'the 1972 Act') provides that the minister may impose such special conditions as he thinks proper in the granting of a licence in order to conserve the radio frequency spectrum or to avoid undue interference with wireless telegraphy. The Broadcasting and Wireless Telegraphy Act, 1988, (hereafter 'the 1988 Act') provides for the establishment of the Independent Radio and Television Commission. S. 17 of the 1988 Act provides that the commission shall, on being directed to do so by the minister, invite applications for a television programme service contract for the provision of a television programme service which shall be distributed by using channel capacity on wireless broadcast relay systems and television programmes retransmission systems licence under regulations made under s. 6 of the 1926 Act. Article 3 of the Wireless Telegraphy (Television Programme Retransmission) Regulations, 1989, (hereafter 'the Retransmission Regulations') provides that the 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. Article 4(1) of the Retransmission Regulations sets out the considerations which the minister may have regard to in determining the most suitable applicant to be awarded a licence under the Retransmission Regulations. RTE was established in Ireland in 1961. From that time onwards, there have been areas of the country where only RTE programme services can be received. Before the arrival of Network 2, the second RTE programme service, that area was described as the 'single channel area', in contrast to the 'multi-channel area' in which the UK programme services could be received. These UK programme services could be received in the Dublin area and other parts of the East Coast (the multi- channel areas) by the use of conventional aerials. However, that was not so in every instance and, even where they could be so received, the quality of pictures was sometimes poor. As a result, the new cable technology which had become available in the 1960s presented an alternative for the reception of such programmes. However, initially its use was not permitted by the government in order to protect RTE against competition from the UK programme services until such time as RTE had established itself more firmly. Ultimately, regulations were made in 1974 enabling cable systems to be licensed but such licences were at first confined to areas where multi-channel services were available off air. In 1981, however, it was decided to invite applications for licences for cable systems for areas where multi-channel reception was not so available, (i.e. from the single channel areas) and among the applications received was one from the fifth named defendant, Cork Communications Ltd. The licence was granted in February, 1982, and covered the area of Cork City and its immediate environs. In 1982, Cork Communications was also granted licences in respect of other parts of the country. In 1985, the first named plaintiff, a community based group in Cork, which included the second named plaintiff, was established. The plaintiffs acquired a site in the Comeragh mountains and erected on it a station which was capable of receiving the signals of the UK programme services being broadcast in Wales and of transmitting them to the Carrigaline area in Cork. The Minister for Posts and Telegraphs, as he was then called, (hereafter 'the minister') did not give any licence for the plaintiffs' activities and the equipment first erected on the farm near Carrigaline was seized by the gardaí. Other seizures were also effected on 23 October, 1985. The minister informed representatives of the plaintiffs that the system they were operating was illegal, that the only persons who were licensed to relay the UK programme services were Cork Communications under the licence it had been granted for a cabling system and that he was obliged to ensure that the law was enforced. The Department of Posts and Telegraphs, as it was then called, (hereafter 'the department') then examined the possibility of actually licensing a system such as the plaintiffs were operating. Matters such as the possibility of interference with the transmissions of RTE programme services and the effect that licensing of the rebroadcasting systems, such as the plaintiffs', would have on frequency management in Ireland were considered in this regard. Despite the warning by the minister in October, 1985, that, in light of all of these considerations, rebroadcasting systems such as the plaintiffs' could not be licensed and that those operating without a licence would have to be closed down, the plaintiffs continued their activities. Further seizures of the plaintiffs' equipment took place. The plaintiffs then became anxious to regularise their position and in August, 1986, they formally applied to the minister for a licence. No reply was received to this letter. While the plaintiffs were continuing with their operations, the officials of the minister, who were responsible for frequency management, decided that the transmission of the UK programme services to the western part of Ireland (the single channel area) could, in fact, best be served by the introduction of a system called the Microwave Multipoint System (hereafter 'the MMDS system') into Ireland. This method necessitates what are called 'down controllers' in the receiving sets. The major advantage of the MMDS system, in the view of the officials, was that it enabled the demand for the UK programme services to be met without taking up any of the space available in the segments of the UHF band carrying the existing RTE programmes and envisaged as carrying the two additional national programme services (TV3 and Teilifís Na Gaeilge) which were already in contemplation. It also enabled eleven programme services, together with the two RTE services to be transmitted to these areas, thus giving a service in the single channel area which was as good as, and in some respects even better than, that provided by the cable operators in their areas. The department then set up a meeting on 13 May, 1986, with representatives from the cable industry offering them the opportunity to apply for licences for the contemplated MMDS system. The minute of the meeting prepared in the department recorded that the department was seeking a solution to the demand for English services in the single channel area without the problems associated with illegal rebroadcasting. These problems were identified as frequency management considerations, the adverse effect on the cable systems and copyright. On 8 March, 1987, the minister announced that he was proposing to meet the demand for multi-channel televisions by introducing the MMDS system. In November, 1987, the minister submitted a memorandum to the government in which he sought authority to establish MMDS on a nationwide basis and to introduce new legislation designed to provide a more effective method of dealing with those who were regarded as illegal broadcasters. The minister then decided that there should be a public tendering procedure for the provision of the MMDS services. The advertisement inviting applications for what were described as 'exclusive licences' appeared in the national press on 6 May, 1988. No application was made on behalf of the plaintiffs in response to the advertisement. One of the successful applicants to the said advertisement was the fifth named defendant, Cork Communications. The Retransmission Regulations were later made pursuant to the relevant legislation governing the operation of the MMDS system, and they provided for the grant of licences in the...

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