Mmds Television Ltd v South East Community. Ltd Deflector Association Ltd

• Jurisdiction: Ireland
• Judge: Miss. Justice Carroll
• Judgment Date: 08 April 1997
• Neutral Citation: [1997] IEHC 60
• Court: High Court
• Docket Number: No. 1947p/1997
• Date: 08 April 1997

MMDS TELEVISION LTD v. SOUTH EAST COMMUNITY. LTD DEFLECTOR ASSOC. LTD

BETWEEN

MMDS TELEVISION LIMITED AND SUIR NORE RELAYS LIMITED

PLAINTIFFS

AND

THE SOUTH EAST COMMUNITY DEFLECTOR ASSOCIATION LIMITED AND DERMOT KIRWAN

DEFENDANTS

[1997] IEHC 60

No. 1947p/1997

THE HIGH COURT

Synopsis:

Injunction

Injunction; plaintiffs holders of licences under Broadcasting & Wireless Telegraphy Acts; exclusive rights to provide TV relay services; defendants operated business of retransmission of TV signals; no planning permission for receiver/transmitter; whether interference with constitutional rights to property and to earn a living; whether damages adequate remedy; whether plaintiffs have locus standi to bring common law action in respect of breach of statutory duty to which criminal sanctions apply; where balance of convenience lies. Held: Injunction granted. (High Court; Carroll J 08/04/97)

MMDS Television Ltd and Suir Nore Relays Ltd v SE Community Deflector Assoc. Ltd and anor

Citations:

BROADCASTING & WIRELESS TELEGRAPHY ACTS

WIRELESS TELEGRAPHY ACT 1926 S3

WIRELESS TELEGRAPHY ACT 1926 S5

WIRELESS TELEGRAPHY ACT 1988 S2

WIRELESS TELEGRAPHY ACT 1988 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

PARSON V KAVANAGH 1990 ILRM 560

O'CONNOR V WILLIAMS 1996 2 ILRM 382

PMPA V AG 1983 IR 339

IARNROD EIREANN V IRELAND 1995 2 ILRM 161

Miss. Justice Carroll

1 The plaintiffs are the holders of licences granted under the Broadcasting and Wireless Telegraphy Acts. The first plaintiff holds a licence for retransmission in cells 20 and 21, in the national grid, which covers parts of Tipperary and Kilkenny, using the MMDS system.

2 The second plaintiff holds a licence for a Wire Broadcast Relay Station, serving Clonmel. The plaintiffs claim they are exclusive licences. Both companies are owned by Mr. and Mrs. Cranwell solely, who are also the directors. Under the Wireless Telegraphy Act,1926(the 1926 Act) Section 3 contains a prohibition against having any apparatus for wireless telegraphy unless authorised by a licence, granted under the Act. Section 5 empowers the Minister to grant a licence for such period subject to such conditions and restrictions as shall be prescribed by regulations made under the Act. The 1926 Act was amended by the Broadcasting and Wireless Telegraphy Act, 1988(the 1988 Act). Apparatus for wireless telegraphy was redefined by Section 2. Section 3 provided that a broadcast should not be made, unless in accordance with a licence issued by the Minister. It makes unauthorised broadcasting an offence. The penalties for summary convictions are a fine not exceeding a thousand pounds and imprisonment not exceeding three months. On indictment a fine of £20,000 and two years imprisonment are the maximum penalties.

3 The plaintiffs have expended £2.8m by way of outlay to provide the television service for the MMDS service and £1.7m for the cable service. They pay an annual rental to the Minister and royalties to the copyright holders. The plaintiffs are the only licence holders in their respective areas. They claim the licence gives them an exclusive right to provide T.V. relay services and that the exclusivity is necessary to earn a return on their large scale capital investments.

4 The first defendant is carrying on a business of retransmission of T.V. signals. The method used is cheaper to operate than the MMDS system, required by the Minister for the plaintiffs. The first defendant does not hold any licence. The second defendant is its managing director. The receiver/transmitter used is in the Comeragh Mountains and covers an area comprised in the plaintiffs” licences.

5 The plaintiffs claim that no planning permission was obtained for the erection of the receiver/transmitter. The plaintiffs” solicitor wrote to Waterford County Council on 10th September, 9th October and 19th December, 1996, without result. Mr. Cranwell, the managing director of the plaintiffs, avers that as a result of the defendants” receiver/transmitter, it is possible for members of the public in the area of South Tipperary to receive multi channel T.V. by erecting a UHF aerial at the cost of £20 and without any other financial outlay or rental. This interferes with the revenue generating monopoly of the plaintiffs. The plaintiffs claim the defendants are acting unlawfully and interfering with the trade and business of the plaintiffs companies and their constitutional rights to property. Their actions interfere with the deponent, Mr. Cranwell's, constitutional right to earn a living.

6 The plaintiffs claim the remedies provided by criminal law are inadequate. No proceedings were instituted against the defendants despite notifying the Minister for Communications. It was stated, on the Minister's behalf, by letter dated 30th January, 1997, that the Minister had decided to await the report of independent consultants, before considering what action to take with regard to the unlicensed operations of T.V. retransmission systems.

7 The plaintiffs claim damages are an inadequate remedy as they have lost potential subscribers rather than actual subscribers. This is impossible to...