NWR FM Ltd v Broadcasting Commission of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 23 June 2004
• Neutral Citation: [2004] IEHC 248,[2004] IEHC 109
• Docket Number: [2003,HC 248\04
• Court: High Court
• Date: 23 June 2004

[2004] IEHC 109

THE HIGH COURT

HC 248\04

Record No:528 JR/2003

NWR FM t/a NORTH WEST RADIO v. BROADCASTING COMMISSION OF IRELAND & ANOR

JUDICIAL REVIEW

Between:

NWR FM Limited trading as North West Radio

Applicant

And

Broadcasting Commission of Ireland

Respondent

And

By Order of the Court: North West Broadcasting Limited, trading as Ocean FM Radio

Citations:

RADIO & TELEVISION ACT 1988 S5(6)

RADIO & TELEVISION ACT 1988 S6(2)

RADIO & TELEVISION ACT 1988 S6(4)

EEC DIR 2002/21/EC

EEC DIR 2002/21/EC ART 4(1)

EEC DIR 2002/21/EC ART 4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL

RADIO & TELEVISION ACT 1988 S7(3)

EQUAL STATUS ACT 2000

BROADCASTING ACT 2001 S60

RADIO & TELEVISION ACT 1988 S6

RADIO & TELEVISION ACT 1988 S4

RADIO & TELEVISION ACT 1988 S5

FREEDOM OF INFORMATION ACT 1997 S18(1)

FREEDOM OF INFORMATION ACT 1997 S18(6)

FREEDOM OF INFORMATION ACT 1997 S6(1)

RADIO & TELEVISION ACT 1988 S6(5)

O'MAHONY V TYNDALE & CORR 2002 4 IR 101

WILLIAMSON V ROVER CYCLE CO 1901 2 IR 615

THE OPHELIA 1916 2 AC 206

P & F SHARPE V DUBLIN CITY MANAGER 1989 IR 701 1989 ILRM 565

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 IR 291

CARLOW KILKENNY RADIO LTD & ORS V BROADCASTING COMMISSION OF IRELAND UNREP O'CAOIMH 31.7.2003 2003/8/1686

RADIO & TELEVISION ACT 1988 S5(6)

RADIO & TELEVISION ACT 1988 S6(2)(c)

INTER-ENVIRONNEMENT WALLONIE ASBL V REGION WALLONE 1997 ECR 1 7411

RADIO & TELEVISION ACT 1988 S7(7)

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

Z V MIN JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

Abstract:

Media - Radio licence - Judicial review - Whether decision to award franchise licence unreasonable - Whether breaches of Radio and Television Act 1988 - Whether respondent breached fair procedures - Whether respondent breach applicant's property rights - Radio and Television Act 1988

Facts: The applicant was the holder of a radio franchise licence which would shortly expire. It applied for judicial review of the decision to award the franchise to the notice party. The applicant contended, inter alia, that the decision was irrational, failed to give due weight to the criteria in the Radio and Television Act 1988, had breached its own guide for submissions, had breached fair procedures and breached the applicant's property rights.

Held by Peart J. in refusing the reliefs sought that the applicant's complaint regarding constitutional fairness failed. No case had been made out in relation to the Act of 1988 and the decision was not irrational or unreasonable.

Reporter: R.W.

1 Mr Justice Michael Peart delivered the 23rd day of June 2004:

2 The applicant (also referred to herein as "NWR") is currently the holder of a radio franchise licence for the area of Sligo/South Donegal/North Leitrim, granted to it by the Independent Radio and Television Commission ("IRTC"), and which commenced firstly on the 10 ^th September 1990 and ran for a period of seven years from that date. At the expiration of that period in September 1997 the licence was automatically renewed for a further period of seven years, which will expire on 1 ^st October 2004. There is no entitlement to a further licence on the expiration of the present one, since an express term of the franchise contract provides at page 8 thereof as follows:

"The Contractor hereby acknowledges that nothing herein, explicit or implicit, confers on it any right of renewal of this contract."

3 On 17 ^th October 2001, the BCI, being the successors to the IRTC placed a newspaper advertisement in which it sought expressions of interest from parties interested in securing contracts for a sound broadcasting service for Local Commercial Radio Services in respect of:

4 (i) Existing local radio franchise areas;

5 (ii) Additional local radio services;

6 (iii) Modified franchise areas;

7 (iv) Opt-Out/Sustained commercial radio services; and

8 (v) Digital Audio Broadcasting (DAB) Services.

9 In relation to (i) above, the advertisement specified certain franchise areas, including Sligo/Donegal South/Leitrim North. Any such expressions were to be submitted by 30 ^th November 2001. The applicant and one other bidder submitted expressions of interest for this area. The eventual winner of the franchise licence for this area, namely the Notice Party, did not submit an expression of interest in answer to this advertised invitation to do so.

10 At the time of the advertisement, BCI had not made any final decision as to exact make-up of the franchise areas which would be licensed. But on 24 ^th January 2002 BCI issued its licensing plan for local radio stations, and this plan showed that BCI was keeping intact the existing franchise area of Sligo/Leitrim(north)/Donegal(south). There had apparently been some possibility that Donegal south might have been excluded from the area, and amalgamated with the Donegal north franchise area to create a single Donegal franchise area. The applicant had argued against such a change, as naturally it would have an adverse impact on the size of the listenership for the existing area if Donegal north was removed. The size of the listenership is critical to commercial success and survival.

11 On 19 ^th November 2002, BCI again advertised and this time it sought applications for the franchise area of Sligo/Donegal south/Leitrim north. On the same date BCI published a Guide to Submissions. The applicant herein makes some criticisms of the contents of this Guide, or perhaps it would be more accurate to say that the applicant points to the absence of certain matters from this document, which, if present, would have led the applicant to have presented its application somewhat differently. However I shall return to these matters in due course.

12 Written submissions by way of application for the franchise licence were to be submitted by 24 ^th January 2003. Three such submissions were lodged, including by the applicant and Notice Party in these proceedings.

13 It appears that on 4 ^th March 2003 the applicant was informed by letter from BCI that its application had been shortlisted and that there would be an oral hearing in relation to the three applications which would take place on the 21 ^st March 2003. These oral presentations eventually took place on 21 ^st March 2003. According to the grounding affidavit of Paul Claffey sworn on the 17 ^th July 2003, each presentation was to last for twenty minutes. Mr Claffey states that at this presentation, which took the form of a question and answer session, many of the questions put to the NWR personnel concerned the question of shared programming. This refers to the fact that NWR shares some of its programmes with another radio station, namely Mid-West Radio, which, while being a separate corporate entity with a separate Board of Directors, has some shareholders who are also shareholders in NWR.

14 Mr Claffey has stated that it came as a surprise to NWR at this oral presentation that BCI seemed to have concerns about the idea of programming being shared with another radio station, especially since there had been no mention in the Guide to Submissions that this issue might be of concern. It is a fact that the eventual winners of the franchise, the Notice Party herein, did not have plans in their submission which involved shared programming. NWR considers that it was unfairly disadvantaged by having no prior indication that shared programming would be an important consideration in the minds of BCI when it came to make its decision, and that if they had had prior notice of this concern, they would have been able to properly address it in the Submission and at the oral presentation. However, I shall return to that matter in due course.

15 On the 29 ^th April 2003, a meeting of BCI was held at which the franchise was awarded to the Notice Party, and not the applicant. That decision was made on the casting vote of the Chairman. The meeting had been scheduled to take place on the 28 ^th April 2003, but there was a quorum problem on that date, and it was held instead on the 29 ^th April 2003, on which occasion six out of the ten members of the BCI Board were present.

16 The news that NWR had been unsuccessful in their submission was communicated to the applicants, in the first instance, by a telephone call from Mr Michael O'Keeffe, the Chief Executive of BCI, to Mr Claffey on the 29 ^th April 2003. He stated, inter alia, that reasons for the decision would be communicated in a "number of weeks". This period of time was needed apparently so that they could be properly drafted. Mr Claffey became concerned about what he saw as continued delay in obtaining reasons, but they arrived eventually in the form of a "Feedback Report" which was furnished by letter dated 26 ^th May 2003. Again, the applicant submits that this Feedback Report is not an adequate furnishing of reasons, and that it is bland and uninformative, and the applicant maintains that the way in which this Feedback report has been worded is designed to limit the capacity of any aggrieved party such as the applicant from challenging same by way of Judicial Review.

17 The salient part of the Feedback Report is contained in the following paragraphs therein:

"At its meeting on 29 ^th April 2003, the Commission decided to award the licence to North West Broadcasting limited (t/a Ocean FM Radio). This report is intended to convey reasons to NWR FM as to why its submission was not awarded the licence by the Commission.

In general terms, the application was considered to have strengths. The Commission acknowledged the listener ship success of the station over many years. While the station's track record was considered generally to have been a good one, breaches of...