Maigueside Communications Ltd v Independent Radio & Television Commission for Transport Energy & Communications

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 18 July 1997
• Neutral Citation: [1997] IEHC 125
• Docket Number: Record No. 1997/126 JR
• Court: High Court
• Date: 18 July 1997

MAIGUESIDE COMMUNICATIONS LTD v. INDEPENDENT RADIO & TELEVISION COMMISSION FOR TRANSPORT ENERGY & COMMUNICATIONS

JUDICIAL REVIEW

BETWEEN

MAIGUESIDE COMMUNICATIONS LIMITED, NEW LIMERICK FMLIMITED, LIMERICK 95 FM LIMITED AND MICHAEL RICHARDSON, JOHN FRANKS ANDWENDI FERRIS-RICHARDSON (TRADING AS BIG L RADIOLIMERICK)

APPLICANTS

AND

THE INDEPENDENT RADIO AND TELEVISION COMMISSION AND THEMINISTER FOR TRANSPORT ENERGY AND COMMUNICATIONS

RESPONDENTS

[1997] IEHC 125

Record No. 1997/126 JR

THE HIGH COURT

Synopsis:

Administrative

Judicial review; fair procedures; legitimate expectation; radio licence competition; unsuccessful applicants seeking review of decision; whether legitimate expectation to have applications heard orally; selection procedure; whether fair procedures employed in selection process; whether I.R.T.C. had a duty to give reasons for decision; function of judicial review process; Radio and Television Act, 1988 Held: No requirement to give reasons for decision High Court: McGuinness J. 18/07/1997 - [1998] 4 IR 115

Maigueside Communications Ltd. v. I.R.T.C.

Citations:

RADIO & TELEVISION ACT 1988 S3

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION 1997 2 ILRM 1

RADIO & TEVEVISION ACT 1988 S5

RADIO & TELEVISION ACT 1988 S6

RADIO & TELEVISION ACT 1988 S5(4)

RADIO & TELEVISION ACT 1988 S5(5)

RADIO & TELEVISION ACT 1988 S5(6)

RADIO & TELEVISION ACT 1988 S5(7)

EGAN V MIN FOR DEFENCE & ORS UNREP BARR 24.11.88 1988/7/2165

RADIO & TELEVISION ACT 1988 S6(2)

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE 1989 IR 149

DUNLEAVY V IRISH LAND COMMISSION 1952 IR 86

MCGEOUGH, STATE V LOUTH CO COUNCIL 107 ILTR 13

NAVAN TANKER SERVICES LTD V MEATH CO COUNCIL UNREP CARROLL 13.12.96 1997/5/1798

MCCORMACK V GARDA SIOCHANA COMPLAINTS BOARD 1997 2 ILRM 321

RAJAH V COLLEGE OF SURGEONS 1994 1 IR 384

MANNING V SHACKLETON 1994 1 IR 397

BRANDON BOOK PUBLISHERS LTD V RADIO TELEFIS EIREANN 1993 ILRM 806

O'DWYER V MCDONAGH & ORS UNREP BARR 14.10.96 1997/5/1937

1 JUDGMENT of Mrs. Justice McGuinnessdelivered the 18th day of July, 1997

2 The first named Respondent ("the Commission") was established under Section 3 of the Radio and Television Act, 1988for the purpose, inter alia, of entering into contracts in accordance with the provisions of the Act for the provision of local sound broadcasting services. The four Applicants in these proceedings are separate applicants for a contract to provide local sound broadcasting services in the Limerick area. The Applicants" proceedings against the second named Respondent, the Minister for Energy and Communications, were dismissed by Order of this Court (Kelly J.) on the 6th day of May, 1997. The Commission had previously contracted with a company called Radio Limerick One Limited to provide sound broadcasting services in the Limerick area but this contractwas terminated by the Commission in 1996. The history of this matter is fully set out in the Judgment of the Supreme Court (Keane J.) in the case of Radio Limerick One Limited -v- Independent Radio and Television Commission [1997] 2 ILRM 1, and is irrelevant to the present proceedings save that it gave rise to the position where the Commission sought to enter into a new contract for the provision of sound broadcasting services in the Limerick area.

3 The statutory provisions relating to the making of applications for sound broadcasting contracts and the manner in which they are to be considered by the Commission are set out in Sections 5 and 6 of the 1988 Act. The process to be carried out by the Commission under Sections 5 and 6 begins by the Commission inviting expressions of interest in the securing of contracts for sound broadcasting services. Areas for local sound broadcasting services are specified by the Minister for Communications having regard to the availability of radio frequencies. The next steps to be taken by the Commission are set out in Section 5 sub-sections 4, 5, 6 and 7 of the 1988 Act as follows:

4 2 "5(4) The Commission shall, subject to the provisions of this Act, invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Minister under sub-section (2) and, subject to the provisions of this Act, may enter into such contracts.

5 (5) Where the Commission invites applications for a sound broadcasting contract for the provision of a sound broadcasting service it shall by public notice specify the area in relation to which the sound broadcasting service is to be provided pursuant to such contractandby such notice shall invite persons interested in providing such a service to apply for such contract.

6 (6) Having regard to the findings of the Commission under sub-section (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in Section 6(2) of this Act and whenever it is the Commission's intention to so do it shall specify such intention to each person who has indicated his intention as being an applicant for a contract.

7 (7) Every notice under sub-section (5) shall -

8 (a) be published in at least one national newspaper, and where appropriate, in one local newspaper circulating in the area to beserved;

9 (b) specify the procedure to be followed in order to make anapplication;

10 (c) specify any other matters which appear to the Commission to be necessary or relevant.

11 Section 6 of the 1988 Act sets out the manner of determination of applications for the award of sound broadcasting contracts asfollows:

12 2 "6(1) The Commission shall, in accordance with the provisions of this Act, consider every application for a sound broadcasting contract receivedby it pursuant to a Notice under Section 5(5) for the purpose of determining the most suitable applicant, if any, to be awarded a sound broadcasting contract.

13 (2) In the consideration of applications received by it and in determining the most suitable applicants to be awarded a sound broadcasting contract, the Commission shall have regard to -

14 (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;

15 (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 economicprinciples;

16 (c) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by thatapplicant;

17 (d) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided;

18 (e) the extent to which the applicant will create within the proposed sound broadcasting service new opportunities for Irish talent in music, drama and entertainment;

19 (f) the desirability of having a diversity of services in the area specified in the notice under Section 5(5) catering for a wide range of tastes including those of minority interests;

20 (g) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Act;

21 (h) the desirability of allowing any person or group of persons, to have control of, or substantial interests in, an undue amount of the communications media in the area specified in the Notice under Section5(5);

22 (i) the extent to which the service proposed -

23 (i) serves recognisably local communities and is supported by the various interests in the community, or

24 (ii) serves communities of interest, and

25 (j) any other matters which the Commission considers to be necessary to secure the orderly development of sound broadcastingservices."

26 In accordance with this statutory framework the Commission in the latter months of 1996 sought expressions of interest in securing the contract for the Limerick area. It appears that they received expressions of interest from some twenty persons or groups. In accordance with Section 5(4) the Commission in January of this year by public advertisement sought applications from persons or bodies wishing to secure a sound broadcasting contract for the provision of a local sound broadcasting service in Limerick City and County. Theadvertisement stated that further information and a guide to submissions necessary to complete applications would be available on request from the Commission's offices and that the closing date for applications was the 7th March, 1997.

27 The guidelines for the manner in which applications should be presented to and dealt with by the Commission were sent to all intending applicants. This was a substantial and detailed document headed Guide to Submissions Limerick City and County. So far as it is material it was divided into five parts:

28 1. Introduction;

29 2. Determination of applications for award of the contract;

30 3. Format of applications;

31 4. Outline of the applications;

32 5. Application procedure.

33 The introduction indicated that applications were being sought in accordance with Section 5 of the Act. Part 2 of the document indicated that in determining the most suitable applicant for the award of the sound broadcasting contract, the Commission was obliged to have regard to the suitability of applicants pursuant to the Act and in particular Section 6 thereof. Matters to which the Commission would have to have regard were then set out.

34 Part 5 of the Guidelines specifying the application procedure so far as it is material was as follows:

"The following...