South Coast Community Television v. Minister for Transport, Energy and Communications [1998] IEHC 10 (23rd January, 1998)

1. The proceedings herein are a fallout from and consequential upon proceedings heard over 29 days before Keane J. when he was a Judge of this Court. Those proceedings resulted in a reserved Judgment of several hundred pages reported in an edited version in 1997 I.L.R.M. page 241 under the title of:-

2. Those seeking a history of the controversy between the parties and the technical details of the various methods of transmitting television signals are referred to the said Judgment of Keane J. No technical detail of any kind whatsoever will be canvassed in this Judgment which relates to a single net point and is in fact the second Interim Judgment in the determination of the current controversies between the parties.

3. The Applicants have for some time been engaged in rebroadcasting United Kingdom terrestrial television programmes in County Cork and West Waterford. They do so on a community non-profit making basis for a charge in the region of £30 per annum. The services provided by the Applicants are required to be licensed under the Wireless Telegraphy Acts. In August 1986 the Applicants sought the requisite licence and the same was refused in a letter from the Department of Communications dated July 7th, 1992.

"I am, accordingly, satisfied that the Minister in refusing to investigate the possibility of licensing the Plaintiffs' system failed to act impartially and fairly and that, in the absence of any countervailing consideration, the Plaintiffs would be entitled to a declaration to that effect and a mandatory injunction requiring him to consider the application in accordance with law."

7. On December 21st, 1995, Counsel for the Minister informed Keane J. that the Minister would consider an application from the Applicants, that the Minister would be getting advice from independent consultants in this regard and that the then anticipated time frame for a decision was about 6 months.

9. On January 11th, 1996 the Minister, at a meeting with the Applicants, again invited them to apply for a licence, confirmed that he intended to engage independent consultants to assist him in assessing such application and indicated that the object of the exercise was to ensure, if possible, that the Applicants would obtain a licence. I will shortly refer to this meeting again.

11. The Applicants seek to set aside the Minister's said refusal by way of Order of Certiorari. The Minister's said letter of 15th April, 1997, being the written record of his refusal is accordingly, for the purpose of these proceedings, the document which it is sought to have set aside or quashed. This letter is in the following terms:-

I have now fully considered your application. In my consideration of your application I have had particular regard to the decision of Mr. Justice Keane in the 1995 High Court case, the Government's policy paper " A Government of Renewal ", the Consultant's Report, the requirement for good frequency management and the fulfilment of international obligations together with the desirability of allowing competition in the area of multi-channel T.V. throughout the country. I have also had regard to the desirability of approaching this issue on a nation-wide basis and introducing a scheme on that basis which would give everybody an opportunity of apply for a licence.

12. I have decided to refuse your application for a licence, having regard particularly to matters mentioned in paragraph 3 above, but instead invite you to resubmit your application pursuant to the new licensing scheme which I intend announcing later today. I have decided, as a matter of policy, that those who apply for a licence under the scheme will have to fulfil certain criteria.

18. The Applicants first challenge to the Minister's refusal is a very simply net point, namely, that in the events which happened it was not a refusal of the application before the Minister on the merits of the application and in consequence did not constitute a proper discharge by the Minister of the obligation undertaken by him following the Judgment and Order of Keane J. The Applicants say that the Minister was obliged to consider and determine the application fairly and impartially on its individual merits and was not entitled to defer or avoid such consideration and determination by suddenly adopting a nation-wide licensing scheme. Mr. Gordon, S.C., in the course of the argument submitted that what the Minister did was to defer a decision rather than make a decision.

21. I was furnished with a great deal of technical material including consultants' reports and I was canvassed as to the dire consequences which would flow from a Judgment on either side of the argument. I reiterate that I am not in any way concerned with matters technical because I am concerned with the decision-making process and not with the decision. Neither am I concerned in the slightest with two issues which have lurked in the background of this case, namely, electoral considerations on the one hand and the liability of the State to be sued on the other.

22. On Tuesday, January 11th, 1996 a meeting took place between representatives of the Applicants, the Minister for Communications, Michael Lowry, T.D., his Principal Departmental Officer in relation to these matters, Sean MacMahon and Hugh Conveney, T.D., Minister for State at the Department of Finance. The following version of the meeting is contended for in the Affidavit filed on behalf of the Applicants:-

4.3 The Minister stated that he intended to deal with the Southcoast application in isolation from all other deflector groups and he urged Southcoast to go along with this approach as he had no desire to have other groups watching every move and claiming similar consideration as the Minister felt it was not possible to deal with all deflector groups or potential applicants in a similar fashion.

4.4 The Minister stated that he intended to appoint independent consultants nominated by the European Broadcasting Union (EBU) to advise him how best to deal with Southcoast's application and further stated that the consultants would be available to Southcoast to liaise closely with Southcoast and help them to prepare their application. The Minister stated that there was no point in making an application that would tie his hands in the sense that it was an application he would have to refuse. The Minister further stated that the object of the exercise was to ensure that Southcoast would be granted a licence at the end of the process.

23. Mr. Sean MacMahon, in cross-examination, accepts that the word "isolation" was used. He emphasises, however, that the word was not used in the sense that no regard would be had to issues which might affect other applications or national considerations in relation to the use of the radio frequency spectrum. I am satisfied that the Minister conveyed to the Applicants on the occasion of this meeting that he would deal with their application "in isolation" in the sense that he would deal with it when ready to do so and would not hold it up by, for example, waiting to deal with it amongst a batch of other applications or in the context of any national scheme or such like.

I refer to your letter of 14 February, and to our recent telephone conversation. Your solicitors, M/s Philpott Creedon, also wrote on February 1st last, and since the two letters address similar issues, I have chosen to deal with the detail in my reply to their letter. It would be preferable to have a single contact point for communications of that kind. We did, in fact cover most of the issues in our 'phone conversation.

The Minister has asked me to emphasise once again that he is committed to giving your application for a licence a fair consideration. This is evidenced by the fact that he is engaging independent technical advisers to advise him during the processing of your application. These advisers will be appointed principally to advise the Minister, and while such relationships are normally confidential, we are, as already stated, happy to disclose their terms of reference to you in advance and, if necessary, and insofar as is practicable, they will be available to meet you to help identify a framework in which your company's application can be made. I feel that this should allay any fears which Southcoast may have had as to impartiality in assessing their application.

Accordingly, I would like to repeat once again the assurances which were given to your clients at previous meetings and which were repeated at the meeting on 7 February, and again in our last conversation - this Department is in no way predicating the outcome of any assessment, and the use of outside advice is intended inter alia to place the independence of the Minister's technical advice beyond question.

I would like to clarify the position with regard to the Department's plan for the allocation of frequencies to the roll-out of the national broadcast services. These services will require extensive capacity in the UHF band, nation-wide. There is no escape from the necessity to designate frequencies for these services now - it follows from Government policy. This development cannot be stopped or suspended for the benefit of any other operator, even if it already enjoyed licensed secondary status. However, the Department has, since before the court case, been willing to seek whatever flexibility there might be within the national plan, in order to permit your company's service to continue, pending the assessment of your application. If there is, as you say, a better approach to the provision of the national services, that could accommodate Southcoast in the longer term while guaranteeing the broadcast coverage and standard required, then it should be possible to identify it. That was the purpose of our request to you of the 20th December last.

25. The Applicants had discussions with the EBU consultants and the form and content of their licence application was discussed and agreed. The Applicants engaged the services of experts to prepare their applications. A sum in the region of £30,000 was expended by the Applicants in relation to the preparation and submission of their application and the material documentation was with the Department in early November 1996. For reasons of bureaucracy, 25 separate and distinct licence applications were required and no request of any kind was received from the Department for further information or for clarification of any of the information submitted.

26. On Tuesday, 15th April, 1997 Mr. John Hurley, the Chairman of the Applicant Company, was invited to meet with the then Minister for Communications, Mr. Alan Dukes, T.D., in his ministerial office in Dublin. The Minister said that he had both good news and bad news for Southcoast. He said that he was refusing Southcoast's application for a rebroadcasting licence but then went on to say that he was introducing a new scheme for licensing rebroadcasting on the UHF band and he invited Southcoast to resubmit its application under that intended scheme. The Minister then handed to Mr. Hurley his said letter of 15th April, 1997 which has already been set out in this judgment.

28. I wish to announce today my intention to introduce a new short-term licensing scheme for the provision of multi-channel TV on the Ultra High Frequency (UHF) band using analogue technology. This new scheme (the UHF re-transmission scheme) will operate in addition to the Cable relay and MMDS schemes already in place for the provision of multi-channel television.

31. I note that, since last Wednesday, the Fianna Fail Party has rallied to the position of principle set out by our present Taoiseach, Deputy John Bruton in November 1994 and carried through into the Government's Policy Programme in December 1994. It gives me considerable satisfaction, just over four months after taking office at the invitation of the Taoiseach, to be able to put forward an equitable and practical resolution of the problem.

32. The South Coast case resulted in one of the longest judgments ever given by the High Court, testimony, if it were needed, to the technical and legal complexity of all this. Following that, my predecessor commissioned internationally renowned experts nominated by the European Broadcasting Union to look at the technical aspects of the South Coast application. They did so and after considerable time and effort produced a report. I will put that Report before the House having deleted material that is confidential to South Coast.

33. What the Report tells us is that it is now easier to gauge the requirements of the national broadcasting services more precisely as to time and extent, and that even though frequency space is getting scarcer, it is still possible to exploit certain spare frequency capacity. The report therefore takes the view that it should be possible to grant a limited form of licence for UHF broadcasting for a short period of time between now and the end of the Century. The consultants were mindful, as I am, of the need to provide for the advent of digital television. Before that time, therefore, it will be necessary to undertake a full review of the means for the delivery of multi-channel television, from both a frequency management and technology point of view. I will be consulting with the incoming Director of Telecommunications Regulation with that end in view.

34. The Report is a complex one. I have had to give it the fullest consideration and I have taken it into account in arriving at my decision. In looking at the wider deflector issue, I have had to have regard also to the inputs from other interested persons and bodies. I have also had to take legal advice on the implications of the court case for the wider deflector issue.

35. The integration of these considerations has been a long and painstaking process and it has only recently become possible to bring the result of all of this effort to fruition. All in all, I think it is not unreasonable that I have taken the trouble and the time I have in order to solve this issue. So much for Deputy Brennan's silly allegation that I am making this up as I go along. Quite the contrary; it is the outcome of very careful reflection. Clearly, the same cannot be said for his utterings. If there has been prevarication, it has been by the party opposite, while in Government. I have chosen to act and I will now set out for the House what I have decided.

36. Just before I do, I should say that there has been a great deal of ill-informed comment about the MMDS industry. The MMDS technology has been variously described as unsuitable and outmoded. Nothing could be further from the truth. MMDS technology has proven itself to be eminently suitable and adaptable to Irish conditions, and, as to the future, the use of this type of service for broad band delivery holds out some very interesting prospects. The system has performed very well. I would be happier had the MMDS companies been able to roll-out their services to a greater extent geographically.

37. Licensees under the scheme which I am announcing today will operate their service on a secondary basis, which means that their systems will not be allowed to cause, nor claim protection from, interference, in particular in relation to national television services. The new systems will be licensed to operate in those parts of the country where appropriate frequency space can be identified by suitable applicants. Because of the shortage of frequency space the UHF scheme is not intended for, and will not provide, coverage to all parts of the country.

38. The new scheme is intended for use only in the non-cabled areas of the country. Unlike the services provided on cable relay and MMDS, the new scheme will provide a very basic service. It is envisaged at this stage that there will be provision for the retransmission of a maximum of four television programme services in any one place. Licences, when issued, will expire on 31 December, 1999. Current deflector operators will be eligible to apply as will MMDS operators, Cable Relay operators and those not currently providing any such service.

39. This scheme will operate in the television broadcasting range of the UHF band. As in other parts of the radio frequency spectrum the number of frequency channels available within this range is limited. Up to now frequency channels within the range have primarily been licensed to, or reserved for use by, the national television programme services. There are currently three such services on-air and a fourth one is planned. It should be noted that two of these services (RTE 1 and Network 2) are not yet operating on an all UHF basis. Having fully investigated the matter it would still appear to be the case that only four programme services operating to the highest quality standards on a nation-wide basis can be planned within the UHF band allocated for television broadcasting.

40. The work of frequency planning and the implementation of the national stations has been carried out over a long number of years and can be expected to continue for the foreseeable future. Each stage of development leads to a clearer identification of further network requirements. In this regard Teilifis na Gaeilge is a good example. It is the first national programme service to be broadcast solely on UHF and now that the main transmitters are in place we can identify more clearly the requirements for lower power transmitters. When these are operational, we can then identify any further requirements and so on. I make this point to stress the fact that both the frequency requirements and the actual roll-out of the national services will continue to expand over time. I am also mindful of the fact that TV3 is planned to broadcast solely on UHF.

41. The new scheme, which I am announcing today, will at all times have to take second place to the national programme services when it comes to the use of any frequency channel. What I mean here is that the frequency assignments that are, or may be, licensed to, or reserved for, national services will have absolute primacy as regards protection from interference from the new services. In other words the national programme services will, at all times, be given priority over the new scheme in the regulation of frequency channel usage. This is a proper and prudent measure and is a provision that would be made by any administration that was serious about protecting its national interests.

42. The new scheme will be operated in compliance with Ireland's obligations under international broadcasting agreements. In particular, consultation on the proposed characteristics for each transmitter will have to be undertaken, where necessary, with the UK administration. This is required to ensure that the principle of equitable access for both countries to available spectrum, which is provided for under these agreements, is maintained. Where such international co-ordination agreement is required, licences can be granted only when this has been achieved. Co-ordination can be a lengthy process and no guarantees of a successful outcome can be offered.

43. It should be clear from what I have already said that the available space in the UHF band is extremely limited and will become more limited over time. Applicants for licences under this scheme will have to take account of that fact. The band will become progressively more congested as the national services are rolled out. It is not possible at this stage to anticipate the consequences for prospective licensees but it is likely that the quality of service provided to their subscribers will deteriorate over time. The licenses will specifically state that neither the Minister nor the Department accepts responsibility for quality of service and licensees will be obliged to inform their subscribers of this.

44. There are currently two licensed systems in place for the provision of multi-channel television programme services - MMDS and cable. Between them the companies concerned provide service to about 500,000 subscribers. The roll-out of cable relay has been particularly successful with a penetration rate which is very high by international standards, while MMDS accounts for about 80,000 subscribers. This means that right now there are substantial numbers of rural dwellers who do not receive multi-channel TV services or, if they do, receive them from unlicensed providers. This situation cannot continue.

46. It is essential, of course, that any new scheme should be technically feasible. The consultants retained by my Department have identified a number of factors which led them to believe that spare capacity in the UHF band could be used for the provision of a limited licensed system of television re-transmission in the time period between now and 31 December, 1999. These factors include developments in analogue technology over the years and the fact that the State can now identify more clearly the frequency spectrum requirements for the national service.

47. In addition, however, the type of licensing envisaged by the consultants could work only if the State does not apply to the scheme all of the normal quality and coverage standards usually applicable and accordingly I do not intend to apply them here. While the consultants carried out a detailed analysis in respect only of the application by South Coast there is no reason, in principle, to doubt that the scheme put forward today could not operate in certain other parts of the country.

48. The Government's policy programme of December 1994 "A Government of Renewal", sought to allow competition between community television deflector systems and existing MMDS franchise holders in a way that would be in compliance with proper frequency management and our international obligations.

49. Everyone will know that, while it is illegal and unlicensed, there is de facto competition in the market for the provision of multi-channel services. What I am doing today is announcing a process which will create the conditions for fair competition, as far as it is possible, in the sector. It will be open to deflector operators, MMDS, Cable and others to apply for these licenses. Up to now the market has been characterised by unfair competition in that the licensed companies are obliged to meet all the costs appropriate to the provision of their services while the unlicensed operators are in a position to avoid many of them.

51. The unlicensed operators are currently in a position to provide the service at a price that is significantly lower than that charged by MMDS companies. I refer in particular to the payment of royalties to the programme makers and the payment of licence fees to my Department. These are not insignificant costs and they will become fully applicable under the new scheme. Questions have also been raised about the compliance of unlicensed operators with the tax and planning laws. These matters too will have to be fully regularised before any licences are issued.

52. Much has been made of the fact that because digital television will need to use significantly less frequency space to provide the current range of programmes, its advent will free up a lot of frequency space. I am afraid that nothing could be further from the truth. The advent of digital television will create significantly more pressure on the use of the UHF band in the short to medium term. This arises from the need to broadcast on both analogue and digital during a transition phase which could last for anything up to 20 years. Furthermore, in order to stimulate the development of digital television, it may be necessary to increase the range of programme services.

54. The advent of digital broadcasting, with its enhanced capacity for delivering additional programme services could impact on conventional methods for multi-channel television distribution. As regards a timescale for terrestrial digital television broadcasting I understand that the UK authorities are planning for the introduction of such services in the early part of next year.

55. My officials will now start drawing up the legislative basis for this scheme. I envisage Regulations to allow for the new scheme being drawn up under the 1926 Wireless Telegraphy Act. Responsibility for the administration of the scheme will pass to the incoming Director of Telecommunications Regulation when the appropriate functional responsibilities are transferred to that Office.

57. A substantial amount of preparatory work is required but I hope that it will be possible for applications to be submitted sometime this Autumn. A separate application will be necessary for each proposed transmitter site as each licence will be issued in respect of one site only. If more than one site is to form part of a proposal then each must be the subject of a separate application. There will no objection to different organisations pooling their resources for the purpose of forming a single entity for the provision of services. Multiple applications from a single entity will be accepted.

58. Applications will be confined to those parts of the country not covered by cable. Each application will be judged on its merits. Furthermore, where two or more applications are submitted for a specific area an adjudication process will be undertaken, if necessary, to determine, among other things, which of them proposes the better use of the radio spectrum. Depending on the applications received it may be possible to issue more than one licence in any one area. Applicants will have to be legal entities and be in compliance with planning and tax legislation.

59. My Department will publish, as soon as possible, a national frequency list (to be updated at regular intervals), which will include the national frequency plan for the existing and envisaged frequency needs for the national programme services in the UHF band. It will be each applicant's responsibility to propose the frequency channels it will use, in a way which must respect the absolute primacy of the national plan at all times.

60. In all likelihood, a radio frequency interference analysis will need to be carried out by each applicant before submitting an application in respect of the selected channels. If in the context of any application it is found that the proposed channels would have the potential to cause interference then that application will be refused.

62. Applicants will be obliged to show that they have entered into arrangements for the payment, in the event of a licence being issued, of appropriate copyright and royalty fees in respect of the programme services they propose to re-transmit. The Department will publish a list of all licensees and will make them available to all relevant authorities.

64. In addition, applicants will be obliged to forward, with the application, a certificate to be issued by the relevant local authority stating that the applicant is operating in compliance with the planning laws or a certificate that an application for planning permission has been lodged in respect of all developments to be used in the provision of the service. Failure to provide these certificates will invalidate the application.

65. Licensees will be obliged to comply with all statutory regimes governing their activities and with all legal obligations imposed on them under Irish and European law. Licences will contain terms and conditions, including strict power output limits. Licensees will have to comply with the appropriate international guidelines regarding the limits of exposure to electro-magnetic fields.

66. Failure to comply with the licence terms and conditions will result in loss of the licence. These terms and conditions are required in order to ensure that the system operates fairly at national level, and that it complies with our international obligations. In providing for these terms and conditions, I am taking at their word various spokespersons for deflector groups who have expressed their preparedness to conform to the requirements of good practice.

67. As part of my general powers under the Telecommunications (Miscellaneous Provisions) Act, 1996 I intend consulting with the incoming Director of Telecommunications Regulation regarding a complete review of all multi-channel re-transmission licences in the period up to the year 2000 with a view to facilitating the formulation of a comprehensive policy for the assignment of frequencies and standards for television broadcasting and re-transmission appropriate to the digital era.

68. I would ask all those who are directly concerned with this issue to take time to carefully consider the proposals I have outlined today. The scheme is not simple; there are many elements there and it needs to be examined carefully. I am confident that reasonable people will agree with me that it provides the basis for a balanced and equitable resolution of the current situation.

69. What I am sure of is that there is a wide consensus that the current situation is very unsatisfactory to all sides. I would urge that in assessing this scheme, those who have been to the forefront on either side would have regard to the wider interest of the community at large in having a properly ordered approach to the planning and use of the broadcasting bands for the future.

70. It is my considered view that these measures represent the best framework for ensuring competition while respecting the terms of licences already issued. There has been an unhappy and sometimes violent history to the roll-out of MMDS services. I hope that the measures I have put forward will result in peaceful co-existence and a wider choice for viewers."

71. Minister, Alan Dukes, T.D., who had succeeded Minister, Michael Lowry, T.D., as Minister ceased to hold office on 26th June, 1997 following a change of government consequent upon a general election. Mr. Dukes' successor in the new government has said that she does not intend to proceed with the scheme proposed by her predecessor. This has no bearing on the proceedings before me as my investigation does not extend beyond the decision-making process undertaken by her predecessors.

72. In cross-examination on his Affidavit by Ms. Finlay, S.C., Mr. Sean MacMahon, at the material time Principal Officer in charge of the Telecommunications and Radio (Regulatory) Division in the Department of Communications, agreed that a clear invitation had issued to the Applicants to apply for a licence in the Cork area and that the Minister had been told by the High Court to consider it. Mr. MacMahon agreed "that it would be considered, yes, on its own, yes". See transcript of Wednesday, 29th October, 1997, pages 4 and 5. Mr. MacMahon went on to agree that what was intended was a consideration on the merits of Southcoast's application (Question 15, page 5).

The High Court judgment required me to re-examine an application by South Coast TV for a licence to rebroadcast TV programmes in the UHF TV Band, as it had not been properly considered previously but in a context where the Court also upheld my obligations to properly manage frequency allocations and the lawful issue of MMDS licences. I am also bound to honour frequency commitments to the Government's national TV broadcasting services now being put in place. The Court also held, and this is important, that the exclusive nature of the licences awarded to the MMDS operators including Cork Communications, is legally valid. To try and resolve these complex requirements I decided immediately on receipt of the Court decision to seek external technical advice on the feasibility of accommodating the requirements of South Coast and possibly others within the existing TV frequency bands as well as meeting national programme requirements. Seeking such independent advice was done in full consultation with South Coast and finding the best expertise took time. Arrangements are now being concluded with the EBU (European Broadcasting Union) who will provide 3 experts drawn from the pool of available European wide expertise. I might add that the problem we are trying to resolve is unique. While the technical constraints are formidable, I can form no view yet as to whether a solution can be found or whether any possible operation could be commercially viable for South Coast TV.

The legal issues may yet determine whether a licence, even if technically and commercially possible, may be issued. In confirming the legal validity of the exclusive nature of MMDS licences, the High Court judgment enhanced Cork Communications ability to take legal action to protect their commercial interests should it be threatened, as I believe it would be, by the issue of a licence to South Coast TV. As you can see the room for manoeuvre and discretion that I and my Department have is severely circumscribed and we are obliged to move carefully and prudently while trying to avoid upsetting one party or the other and initiating further legal action.

I cannot say at this stage whether a successful outcome can be assured and I can only try to exploit all possibilities in trying to reach one. There has been a continuous contact with South Coast TV, Cork Communications and the EBU and the Broadcasting Authorities in bringing the case this far. Once the consultants are in place, which will be shortly, the technical aspects of a licence application will proceed rapidly and I can then see whether there is a basis for going further. I will keep you fully informed of future developments.

I note that, with the help of EBU experts, you are seeking a technical solution. It would be helpful to have some idea as to how long this might take. It will be difficult to begin to address the other issues without knowing what might be technically feasible and you are well aware of the urgency of reaching a satisfactory outcome to this difficult issue.

7. Given that the roll-out of the National Plan has been proceeding rapidly during 1996, will the involvement of the EBU experts at this late stage be such as to ensure that South Coast are afforded genuine consideration in accordance with the High Court ruling that their licence application be given fair and impartial assessment? Is it possible that the actions of your Department in accelerating the roll-out of the National Plan subsequent to the High Court ruling will in effect make it much more difficult, if not impossible, for the experts now to come up with a technical solution which would permit the licensing of South Coast?

The regulations governing MMDS, and the licences issued under these regulations are silent on the question of exclusivity. However when applications were sought in the national press on 6th May, 1988, for the provision of MMDS services, the advertisements described the proposed licences as 'exclusive'. A press statement, of the same date, issued by the then Minister for Communications, Mr. Ray Burke T.D., also referred to applications for 'exclusive licences' for the provision of MMDS.

In addition, in a letter dated 4th February, 1991, to Mr. Joe Hayes, Managing Director of Independent Newspapers PLC (which has a substantial interest in Cork Communications Ltd. through its share holding in Princes Holdings) the same Minister said, with specific reference to Mr Hayes' company and to all MMDS franchisees in which Independent Newspapers has or will have a direct or indirect interest, that:

79. The reasons for awarding exclusive licences were both technical and commercial. In the band designated for the system, frequency constraints did not allow the scope to licence more than one MMDS service providing the full range of eleven TV channels within each franchise area. The commercial reason for exclusivity was that it was felt that licensees would not undertake the capital investment and the coverage required to provide a service throughout their franchise areas if other operators were allowed to compete for the necessary subscriber base.

80. This would, of course, be a matter for the Courts, but if Cork Communications were to succeed in such an action it would be prudent to allow for a very considerable sum. Based on the claims in Cork Communications' defence submitted to the High Court in May 1994 in respect to the Statement of Claim made by South Coast, the amount involved is in the region of £10 million. I have no way of knowing how speculative these estimates are, and I mention them only for indicative purposes, but I have to be prepared for a claim of this magnitude if South Coast were to be licensed. This takes no account of any award that might be made in respect of any alleged breach of contract with the State, or, indeed of any knock-on claims by the other 9 MMDS franchisees.

81. The difficulty here is that South Coast's current operations, together with those of its affiliate organisations, range right through the franchise areas of Cork Communications. A direct effect on Cork Communications would be unavoidable; the latter would see their potential subscriber base as encompassing every household in their current licence area to the exclusion of any competitor. We shall have to await the report of the technical consultants to see what technical or geographic limitations might permit the service to co-exist in the first place. These may be sufficient of themselves to minimise damage to the franchisee. Limiting the number of channels, imposing obligations as to non interference with the national services etc. may also help, but there would have to be a question even at this stage about the difficulty of enforcing compliance with them, especially if we had to allow such schemes nation wide.

82. There is furthermore, a possibility that even if a technical solution can be found in response to South Coast's application a licence could not be awarded directly to them. A legal structure for the licensing regime would have to be put in place and I would have to consider whether the licence would have to be put up for public tender to comply with EU requirements and general Government policy with regard to the granting of rights of this type.

83. In its final form the national plan is no more than a series of frequencies assigned, or intended, for the transmission of the national TV broadcasting services. These services are RTE 1 and Network 2, the forthcoming Teilifis na Gaeilge channel and the proposed independent TV channel. The plan is designed to make the most efficient use of the available frequency spectrum for these services that is compatible with international co-ordination requirements, so by definition, it does not seek to exclude (or include) any other service - it simply prioritises the national ones.

84. Experience has shown that there is likely to be room only for these four services if nation-wide coverage of each to recognised broadcast quality standards was to be our goal. As it is, a high degree of fine tuning of frequency assignment has been necessary to accommodate them. What we are now trying to establish is whether, where and to what extent, South Coast's system can be fitted in. It will be the primary task of the consultants to look at this question again and to advise on whether the traditional position we have taken is still valid.

85. The consultancy project has taken some time to put in place but I am not aware of any undue delay with regard to it. It took time to identify the appropriate people. Their independence has to be beyond question and the relevant expertise is not widely available. Because it is a novel project the EBU took some time to consider their participation. South Coast then sought the addition of a UK organisation. Pursuing this option (the organisation ultimately declined to participate) took up further time.

86. More time was spent negotiating the terms of the contract, obtaining the necessary approvals and the sanction of the Department of Finance. Before signing the EBU people up, I took the precaution of letting South Coast see the terms of reference (copy attached as requested). I enclose also a copy of South Coast's view of what the project should entail, which, I am afraid, prejudge the issue. I am trying to get that sorted out at the moment. Otherwise, the contract is ready to be placed.

87. The consultants are not being asked to find a technical solution aimed exclusively at allowing the granting of a licence; such may, or may not be possible. You will see that they will be asked to give me a detailed analysis of South Coast's application so that I can make a clear judgment on whether they should be licensed. They will also advise on the various constraints I face. As I said earlier even if a technical solution is found for this problem there are other issues which must be considered before a licence can be considered.

88. There has been a significant number of new frequency assignments made in the UHF band so far this year with many more to follow. There is nothing untoward or unexpected in this. All the assignments are either directly or indirectly related to the inauguration of Teilifis na Gaeilge later this year or to the up-grading of the existing RTE services. I can categorically say that there has been no acceleration of the roll-out to frustrate South Coast or anyone else; it is simply that given the Government decision to proceed with Teilifis na Gaeilge the frequencies must be assigned, primarily for testing, this year.

90. You are quite right when you say that it is not easy to address these issues in advance of settling the technical questions and that is why I am anxious to proceed with the consultancy project to be undertaken by the EBU. The proposals I have received from that organisation envisage the completion of the technical assessment by the end of September next. This pre-supposes the full co-operation of South Coast. I expect that I might then need a period of some weeks to allow me to consider the report fully and arrive at an initial conclusion. If a licence can be granted, further time will be needed to draw up a legal licensing framework and to consider the most equitable manner in which it could be awarded, including the possibility of holding an open competition. I cannot rule out the possibility that a Statutory Instrument of some sort could be needed especially if I have to grant licences nation-wide.

94. The Minister accepts in his letter of June 28th, 1996 that he was required to use his own words "to make a clear judgment as to whether Southcoast should be licensed". My primary enquiry is as to whether the Minister did make such a "clear judgment" or whether he avoided doing so for whatever reason. This correspondence also establishes an appreciation on the part of both An Taoiseach and the Minister that the said "clear judgment" could not be lawfully influenced by considerations of actions for damages being threatened by Cork Communications Limited and others.

95. I have referred earlier to Mr. MacMahon's acceptance at the start of his cross-examination that the Minister had undertaken to Keane J. to deal with Southcoast's application on its merits. He accepts between pages 40 and 44 of the transcript of Thursday, 30th October, 1997, that the Minister rejected the Southcoast application because, whilst it had merits, it must be considered within the national scheme. Mr. MacMahon was much more succinct when he replied to a query from his new superior, the Director of Telecommunications Regulation, as to why Southcoast's application had been refused by saying "Director, basis was that a new scheme to deal with all current applications was being brought forward and that it would enshrine Government policy". In evidence, Mr. MacMahon said that his minute was very short but what it means in effect is that there is a new scheme to deal with new applications.

96. The Applicants' case is that the decision of the Minister to refuse Southcoast's application for a licence was not a decision on the merits of Southcoast's application and in consequence did not constitute a proper discharge by the Minister of the obligation undertaken by him towards the Applicants following the judgment of Keane J.. They contend that the decision to refuse their application was ultra vires the Minister and in breach of Southcoast's legitimate expectation that its application to the Minister would, as promised, be considered and determined fairly, impartially on its merits and by implication within a reasonable time span. It is Southcoast's contention that the Minister was obliged to consider and determine Southcoast's application on its individual merits and was not entitled to defer or avoid such consideration and determination by announcing an intention to adopt a nation-wide licensing scheme. The Applicants accordingly submit that the Minister's said refusal of April 15th, 1997 ought to be quashed and that the Minister be directed to resume consideration of Southcoast's application and to determine the same on its individual merits according to law. The Applicants submit that their application was demonstrably not considered by the Minister on its merits as evidenced by the Minister's invitation to them to re-submit it under the new scheme being announced by the Minister on the same day as the purported refusal. They submit that such an invitation would be wholly irrational if he believed their application lacked merit or that Southcoast were unsuitable to be licensed.

97. The first, third and fourth Respondents submit that the evidence establishes that the Minister's decision was taken on the merits of the application. They submit that the Minister, having fully investigated the possibility of licensing the Applicants' system, acting fairly and impartially, considered the application in accordance with law and refused it within jurisdiction.

98. Whether the Minister carried out his public duty to consider Southcoast's application on its merits or not is a question of fact. A decision on the merits means to me a reasoned one resulting in a non-ambiguous statement saying either "yes you may have a licence" or "no you may not have a licence for the following reasons". It is not a decision on the merits to say "maybe you can have one in the future if you apply again under a new regime". I am satisfied from the evidence as a whole and in particular from the cross-examination of Mr. MacMahon that the true construction of the events as they unfolded is that the Minister deferred his decision on the merits or postponed his decision to the intended national scheme. This he was not entitled to do. His purported refusal was not a refusal on the merits as evidenced by the invitation to re-submit the application under the new scheme but was a formula intended to afford the Minister protection against others.

100. What is to be done in relation to the purported refusal? An Order of Certiorari is opposed by the first, third and fourth named Respondents who submit that the Minister did not act ultra vires in deciding to refuse the Applicants' licence and inviting them to reapply under the new scheme in contemplation at the time. My finding is that he did and that an Order of Certiorari should issue to quash the purported refusal of the 15th April, 1997 so that the current Minister can proceed with her duty to consider in accordance with law the application which I have determined lies on her desk as yet unresolved.

"If, at the end of an appropriate assessment, the Minister had concluded that the Plaintiffs' system could not be licensed, the Plaintiffs, in my view, would have had no justifiable complaint. Nor will they have any justifiable complaint if, at this stage, the Minister, after such fair and impartial assessment of their application, concludes that their application should be refused on its merits."

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> South Coast Community Television v. Minister for Transport, Energy and Communications [1998] IEHC 10 (23rd January, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/10.html Cite as: [1998] IEHC 10

High Court of Ireland Decisions

South Coast Community Television v. Minister for Transport, Energy and Communications [1998] IEHC 10 (23rd January, 1998)