Scrollside Limited t/a "ZED FM" v Broadcasting Commission of Ireland, [2005] IEHC 355 (2005)

Docket Number:2005 267JR
Judge:O'Sullivan J. / O''Sullivan J.
 
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THE HIGH COURT

JUDICIAL REVIEW [2005 No. 267J.R.]

BETWEEN SCROLLSIDE LIMITED TRADING AS "ZED FM"APPLICANT AND

BROADCASTING COMMISSION OF IRELANDRESPONDENT JUDGMENT of O'Sullivan J. delivered the 1st of November, 2005

The Parties

The applicant is the unsuccessful bidder of two, who were short listed by the respondent, the statutory licensing authority, for the operation of an alternative rock music sound broadcasting service on the FM band in the Dublin area, the successful bidder being Dublin Rock Radio Limited trading as "Phantom FM" which was awarded the contract on 8th November, 2004.

The applicant challenges this grant on four grounds, namely:

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

(b) it 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;

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

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

Underlying these objections is the applicant's disquiet at the fact that 25% (or more) of the membership comprising Dublin Rock had been engaged in illegal ("pirate") broadcasting for a number of years up to some eighteen months prior to the award of this contract and its contention that the respondent did not adequately test this elements' conversion to legal broadcasting but in fact gave it credit for the experience and expertise gained during the period of illegal broadcasting, erroneously took into account their track record under two separate temporary broadcasting contracts (in circumstances where they were only entitled to credit for one) and, in fact, had made its mind up to grant this contract to any bidder involving Phantom FM.

The Procedure

The respondent was established by the Radio and Television Act, 1988 to arrange for the provision of sound broadcasting services and to enter into contracts with the providers of sound broadcasting services as it has done in the present case. The procedure adopted by the respondent was first to invite expressions of interest in the proposed contract, next to invite applications (or "bids") of which it received five, these were summarised by the executive of the Commission and considered by it at a meeting where two of the bidders were short listed as already indicated. These two were invited to an oral hearing at which the bidders made a twenty minute submission followed by twenty five minutes of a question and answer session; following this questionnaires were sent out and the answers and all of the material was considered at a final meeting when the decision was made. Finally, the unsuccessful bidders were given "feed back" reports explaining why the Commission decided the way it had. All of these steps were authorised by relevant statutory provisions.

The proceedings were by way of affidavit, the principal deponent on behalf of the applicant being Dermot O'Hanrahan and on behalf of the respondent Michael O'Keeffe. There was a lengthy cross-examination of the latter.

I propose to consider the evidence in the context of the four grounds of challenge rather than summarise it first.

Failure to consider "character"

Section 6(2) of the Act requires the Commission when considering applications to have regard to ten matters, the first of which is:"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." This list of ten matters was increased to eleven by s. 60 of the Broadcasting Act, 2001 which provided that the overall quality of the performance of the applicant under any contract held by him should also be considered.

The word "character" is not defined in the Act. The definitions given in the concise Oxford Dictionary include "distinctive mark", "collective peculiarities", "style"; "distinction, individuality"; "moral strength, esp. if highly developed or evident" "Reputation, good reputation" "written description of person's qualities; testimonial".

Mr. O'Moore S.C. submitted that "character" means "moral fibre". He relied on the observation of Murray J. (as he then was) in Spin Communications Limited v. The Independent Radio and Television Commission and Another [2001] 4 I.R. 411, at page 438 where he said:-"Furthermore, as indicated above, it is incontestable that the policy or attitude of a member of a body applying for a radio licence to issues of drug abuse may be a relevant consideration for the respondent and its members both with regard to the question of the character of an applicant and generally." Mr. Cush S.C. acknowledges that "character" includes the element of "moral fibre" but submits that it goes wider than that.

In my opinion if "character" were to be confined to "moral fibre", as distinct from including it, the Act would have defined the word to make this clear. By leaving it undefined the word retains its ordinary meaning which certainly includes moral fibre but also elements such as "distinctive mark" "collective peculiarities" and "distinction, individuality". One thinks of phrases such as "the character of a team" "a bit of a character"; "a woman of character" as well as "a reformed character" in reaching a conclusion that the word includes more than moral fibre.

Mr. O'Moore S.C. has submitted that there was no consideration at all as to whether Phantom's conversion to legal broadcasting (eighteen months prior to the process described above, Phantom had announced that it would cease illegal broadcasting) particularly against a background that it had a history of twice suspending illegal broadcasting, applying for a contract and reverting to illegal broadcasting when its application proved unsuccessful. The respondent simply ignored all this history and thereby failed to consider 'character' under the Act.

The evidence is that, in the evaluation of Phantom's bid by the executive there was merely a reference that the largest shareholder in Dublin Rock (Wireless Media Limited) comprises "nine individuals who had a strong involvement and practical experience operating the radio station Phantom FM. Phantom FM operated as a pirate station and more recently under two temporary licences pursuant to s. 8 of the Radio and Television Act, 1988".

Whilst this material was before the respondent there is nothing in any minute to indicate they considered the matter further.

In response Mr. Cush submitted that "character" included a consideration of individuals and companies comprising Dublin Rock which clearly were considered and furthermore that the Commission in considering "character" is free to place greater or less emphasis on any one or more of the elements that go to make up "character" as defined as is clear and well established, as for example, in the speeches of Lords Keith and Hoffmann in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1...

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