Scrollside Ltd (t/a Zed FM) v Broadcasting Commission of Ireland

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Kearns
• Judgment Date: 06 April 2006
• Neutral Citation: [2006] IESC 24
• Court: Supreme Court
• Docket Number: [SC No.
• Date: 06 April 2006

[2006] IESC 24

THE SUPREME COURT

Denham J.

McCracken J.

Kearns J.

[S.C. No: 405 of 2005]

SCROLLSIDE LTD v BROADCASTING COMMISSION OF IRELAND

Between/

Scrollside Limited Trading as "Zed FM"

Applicant/Appellant

v.

Broadcasting Commission of Ireland

Respondent

ADIO & TELEVISION ACT 1988 S6

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

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

SPIN COMMUNICATIONS LTD T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD 2001 4 IR 411 2002 1 ILRM 98

RADIO & TELEVISION ACT 1988 S6(1)

RADIO & TELEVISION ACT 1988 S6(2)

RADIO & TELEVISION ACT 1988 S5(6)

BROADCASTING ACT 2001 S60

RADIO & TELEVISION ACT 1988 S6(4)

OXFORD ENGLISH DICTIONARY "CHARACTER"

PLATO FILMS LTD v SPEIDEL 1961 AC 1090

WADE & FORSYTH ADMINISTRATIVE LAW 9ED 380

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509

SECRETARY OF STATE FOR EMPLOYMENT & SCIENCE v TAMESIDE BOROUGH COUNCIL 1977 AC 1014

BROADCASTING

Licence

ward of radio licence - Review of specialist decision maker - Curial deference - Licence awarded to former pirate broadcaster - Character of successful applicant - Whether unreasonable to consider experience obtained while broadcasting illegally - Policy to encourage cessation of illegal broadcasting - Spin Communications Ltd v IRTC [2001] 4 IR 411 and White v Dublin City Council [2004] IESC 35 [2004] 1 IR 545 followed; Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 approved - Radio and Television Act 1988 (No 20), ss 6(2)(a) - Broadcasting Act 2001 (No 4), s 60 - Applicant's appeal dismissed (405/2006 - SC - 6/4/2006) [2006] IESC 24

Scrollside Ltd v Broadcasting Commission of Ireland

1 Judgment delivered the 6th day of April 2006 by Denham J.

2 1. In this appeal Scrollside Limited, trading as "Zed FM", the applicant/appellant, hereinafter referred to as "the applicant", seeks an order determining that the High Court erred in refusing to quash the decision of the Broadcasting Commission of Ireland, the respondent, hereinafter referred to as "the respondent", granting a sound broadcasting contract for the operation of an alternative rock music broadcasting service, on the FM band in Dublin, to Dublin Rock Radio Limited trading as "Phantom Rock", and referred to hereinafter as "Dublin Rock".

3 2. The applicant submits that the decision of the respondent is flawed on a number of grounds, especially in relation to the illegal broadcasting operations carried out by various members of the Dublin Rock consortium under the name "Phantom Rock". The applicant submits that the respondent failed to give proper consideration to the character of the members of the Dublin Rock Consortium as required by s.6 of the Radio and Television Act, 1988. The applicant submits that the decision was unreasonable in that the respondent failed to give proper consideration to the character of Dublin Rock, in that it erred in conferring a benefit on Dublin Rock as a result of the illegal broadcasting. Further, that the respondent erred in conferring a benefit on Dublin Rock as a result of illegal broadcasting by a former pirate radio station "Phantom FM", that it prejudged the issue of the award of the sound broadcasting contract in favour of the Dublin Rock Consortium, and that it erred in having regard to the previous provision and operation by two distinct entities, Wireless Media Limited and Coxstone Limited, of services under temporary sound broadcasting contracts under the name "Phantom FM". It is obvious that these issues are all interrelated and that in essence they refer to previous pirate operations.

4 3. The respondent, on the otherhand, submits that the applicant has entirely failed to show that the decision of the respondent is null and void or vitiated by bias, as alleged, or at all.

5 4. On the 1st November, 2005, the High Court (O'Sullivan J.) gave a reserved judgment in this matter and ordered that the applicant's application be refused.

6 The applicant had sought:

7 (i) an order of certiorari by way of an application for judicial review to quash the respondent's decision of the 8th November, 2004, to award a sound broadcasting contract for the operation of an alternative rock music sound broadcasting service on the FM band in Dublin City and Country to Dublin Rock Radio Limited trading as "Phantom FM"; and,

8 (ii) A declaration that the said decision was ultra vires and void.

9 The decision of the respondent was challenged by the applicant on four grounds, namely:

10 (a) that the respondent failed to consider the "character" of Dublin Rock as required to do so by statute;

11 (b) that the respondent erred in law in conferring a benefit on Dublin Rock as a result of the illegal broadcasting by a number of individuals who formed part of the consortium comprising Dublin Rock;

12 (c) that the respondent prejudged the issue of the award of the contract and at all times intended to grant the contract to any applicant including "Phantom FM"; and,

13 (d) that the respondent had regard to broadcasting services under the name of "Phantom FM" provided by two distinct entities.

14 The High Court found against the applicant on each of the grounds advanced.

5. Background

15 2 5.1 The learned trial judge pointed out that underlying the four grounds, advanced on behalf of the applicant, was the applicant's disquiet at the fact that 25% (or more) of the membership comprising Dublin Rock had been engaged in pirate broadcasting for a number of years up to eighteen months prior to the award of the contract and that the respondents had given credit for the experience and expertise gained during the illegal broadcasting, and erroneously took into account their track record under two separate temporary broadcasting contracts.

16 3 5.2 The respondent was established under the Radio and Television Act, 1988 to, amongst other activities, enter into contracts with providers of sound broadcasting services. The procedure is that the respondent first invites expressions of interest in the proposed contract, and in this case it received five, which were summarised by the executive of the respondent, and considered by it at a meeting where two of the bidders were short listed. Then these two were invited to an oral hearing at which each of them made a twenty minute submission followed by a twenty five minute question and answer session. After that questionnaires were sent out and the answers and all the material were considered at a final meeting where the decision was made. Subsequently the unsuccessful bidders were given feed-back reports explaining the decision.

6. High Court judgment

17 These judicial review proceedings were grounded on affidavits, principally the affidavit of Dermot O'Hanrahan for the applicant and Michael O'Keeffe on behalf of the respondent. Michael O'Keeffe was cross-examined at length.

18 2 6.1 The High Court held:

"The applicant asserts that the respondent had made its mind up effectively from the beginning to award a license to Dublin Rock because they were associated with Phantom FM. In this context it is instructive to consider, in part, the minutes of the initial meeting of the respondent on 6th September, 2004, when they were considering the five applicants for the contract. In relation to Zed FM (the applicant) this, in part, is what the minutes record:-"

19 "In general terms, the contents of the executive evaluation were endorsed. Zed FM was considered to have a credible and relevant mix in the ownership and control structures of the company. Specifically, the mix included well established and leading rock and radio industry figures in the Dublin market. In addition to contributing funds, the shareholders could also significantly contribute to the programme content.

20 The aim of the station to target a community of interest of alternative rock listeners, beyond the narrow focus of other applicant groups also appeals to a number of the members, including the proposal to target women. While some of the members welcomed the wider target group identified for this service, others said it was unclear as to how this might be achieved. This would require further clarification with the group.

21 The station's proposed low cost base was considered prudent, in view of the niche nature of the audience to be served and the need to establish a revenue base for this type of service. However, some members were concerned that this might impact on the quality of the service proposed and were of the view that this would require some further clarification with the group in the context of an oral hearing.

22 The applicant group's research proposals were considered to be well presented with an adequate sample size. In general terms, the applicant group's programming proposals were considered to be satisfactory and reflected the knowledge and commitment of members of the applicant group to serving the target audience. Some questions were raised regarding the staffing levels for the service and whether or not the service could be successfully operated on the levels proposed. This would require further consideration...the proposed management team for the service was considered to be appropriate and very experienced...in summary, this application was considered to be of a high standard and the programming ethos of the proposed service was considered to be relevant and appropriate to the Dublin market and the target audience in particular."

23 The applicant, as already stated, was short listed. At the final meeting on 8th November, 2004, the following appears in the minutes:-

24 "Zed FM's ownership and control proposals were considered in general terms to be satisfactory by the Commission. The company was considered to have a good mix of radio and...