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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carlow Kilkenny Radio Ltd & Ors v. Broadcasting Commission of Ireland [2003] IEHC 45 (31 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/45.html Cite as: [2003] IEHC 45 |
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[2003 No. 31 JR]
APPLICANTS
Judgment of Mr. Justice Aindrias O Caoimh delivered the 31st July, 2003.
The applicants seek the relief of ;1. An order of certiorari quashing the decision made by the respondent on or about the 14th October, 2002 and communicated to the first named applicant on the 23rd October, 2002 to award the licence for local radio in the franchise area of counties Carlow and Kilkenny to CK Broadcasting Limited (trading as KCLR).2. An order of certiorari quashing the decision made by the respondent on or about the 10th October, 2002 and communicated to the second named applicant on or about the 23rd October, 2002 to award the licence for local radio in the franchise area of County Kildare to County Kildare FM Radio Limited (trading as KFM).3. A declaration that the decisions of the respondent to grant the said licences were not taken in accordance with the law and were ultra vices having regard to the provisions of the Radio and Television Act, 1988 in general
and in particular having regard to s. 6 of the said Act as amended by s. 60 of the Broadcasting Act, 2001.
The grounds upon which the applicants seek the foregoing relief are as follows:
(a) The respondent had regard to an irrelevant matter (that is the issue of ownership and control of the applicant companies) which was a matter to which no weight should have been attached. In the alternative the respondent should not have attached weight to this matter and thereby infringed the principles of transparency, proportionality and objective justification. These are not matters which are relevant having regard to s. 6 of the Radio and Television Act, 1988.
(b) In law the respondent is obliged in its determinations, having as it does the capacity to affect rights (including constitutional rights) of persons to livelihood, private property and having regard to principles of good administration, to comply with the principles of transparency, proportionality and objective justification. The decisions of the respondent lack proportionality and transparency and there is no objective justification for the decisions of the respondent.
(c) The respondent did not assign any relative marks or percentages or any weighting to each of the considerations which it was bound to consider having regard to s. 6 of the Radio and Television Act, 1988. Such relative marks, percentages or weighting are requirements of good administration and are also required by the principles of proportionality, transparency and objective justification.
(d) The respondent by not having attached a weight or marks or percentages to each of the criteria to which it is bound to have regard under the statutory scheme attached a disproportionate weight to certain issues which it considered in relation to the applications of the applicants. In particular, the respondent attached a disproportionate weight to issues of ownership and control as applied to the applications of the applicants.
(e) The findings of the respondent and in particular its statement that "the company's failure to resolve difficulties in ownership and control matters over a considerable period of time was not viewed positively by the Commission" shows that it has attached a disproportionate weight to this issue. Moreover such a statement is not transparent. Moreover the respondent did not seek to justify this statement any further. No reasons are given for this statement and there is a lack of objective justification for this issue. A further ground advanced by the applicant is as follows (i) the respondent made its decision on foot of an error of law and failed to give proper weight to s. 60 of the Broadcasting Act, 2001 and in particular failed to give due weight and have due regard to s. 6 sub-s. (4) Act of 1988 as amended. In particular the previous track record of the applicants was not a matter which it took sufficiently into account or to which it granted sufficient weight. In particular the respondent failed to consider the previous track record of the applicant under each of the categories of s. 6(2) of the Radio and Television Act, 1988.
Background.
The respondent invited applications to be submitted to it in respect of sound broadcasting contracts for the provision of a local sound broadcasting service upon the FM band in County Kildare and also in Counties Carlow/Kilkenny, in each case for a period of ten years. The respondent required the application to be submitted strictly in accordance with the "format of the application" set out in s. 4 of the guide to submissions prepared by the respondent. This document drew the attention of all applicants to provisions of. the Radio and Television Act, 1988 and the Broadcasting Act, 2001.
Following the decision of the respondent in each case not to award the licence to the first or second named applicant it thereafter sent to each of the applicants a "feedback report" setting out its reasons as to why the applicants were not awarded the licences in each case. Both these feedback reports purported to give a number of reasons including ownership and control issues, track record and management as to why the applications had been refused. The evidence before this court shows that the respondent confirmed that the feedback report was a summary of all the reasons for the decision made to refuse the applications of the applicants in question. The evidence shows that the respondent did not ascribe fixed weightings to the statutory criteria
Section 6 of the Radio and Television Act 1988 (hereinafter referred to as the Act of 1988) as amended sets out the criteria for the determination of applications for an award of sound broadcasting contracts. This provision as amended reads as follows:
"6.-(1) The Commission shall, in accordance with the provisions of this Act, consider every application for a sound broadcasting contract received by it-5- pursuant to a notice under section 5 (5) for the purpose of determining the most suitable applicant, if any, to be awarded a sound broadcasting contract.(2) In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound-broadcasting contract, the Commission shall have regard to:( a ) 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;( b ) the adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the extent to which the application accords with good economic principles;
( c ) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by that applicant;
( d ) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided;
( e ) the extent to which the applicant will create within the proposed sound broadcasting service new opportunities for Irish talent in music, drama and entertainment;
( f ) the desirability of having a diversity of services in the area specified in the notice under s. 5(5) catering for a wide range of tastes including those of minority interests;
( g ) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Act;
( h ) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media in the area specified in the notice under s. 5 (5);
( i ) the extent to which the service proposed -
(i) serves recognisably local communities and is supported by the various interests in the Community, or(ii) serves communities of interest, and
-6- (j ) any other matters which the Commission considers to be necessary to secure the orderly development of sound broadcasting services.(3) In considering the suitability of any applicant for the award of a sound broadcasting contract to provide a sound broadcasting service in respect of an area which includes a Gaeltacht area, the Commission shall have particular regard to the preservation of Irish as a spoken language.(4) In considering the suitability of an applicant for the award of a sound broadcasting contract, the Commission shall have regard to the overall quality of the performance of-the applicant with respect to the provision by him of a sound broadcasting service under any sound broadcasting contract held by him at, or before, the date of the making of the application.(5) Where the Commission decides to refuse to award a sound broadcasting contract to an applicant therefor, the Commission shall notify the applicant of the reasons for the decision."
Subsections (4) and (5) which were inserted into the Act by the Broadcasting Act, 2001 are at the heart of the dispute between the parties. While s. 5(6) of the Act of 1988 enables the Commission to place greater emphasis on one or more of the criteria specified in s. 6 sub-s. 2 of the Act, in the instant case it did not do so. It has also been acknowledged on behalf of the respondent that it did not use a weighting system and did not attach marks or percentages to each of the criteria.
The third named applicant of which the first and second named applicants are wholly owned subsidiaries, operates the local radio known as CKR or Carlow/Kilkenny Radio pursuant to a licence granted to it by the respondent in 1989 and which licence was renewed in 1996. There was a past dispute between this applicant and a respondent in regard to the ownership and control of the applicant company. The dispute was as to whether or not the third named applicant was in breach of a contract by reason of a non-registered and unapproved purported transfer
of shares by some shareholders. A previous action taken by the third applicant against the respondent was the subject matter of a compromise in June, 2002. At the time a letter was written on behalf of the respondent to Mr. Reddy of the third applicant indicating that the letter was part of a compromise of legal proceedings and in it the respondent indicated that "subject to the issue of ownership and control" the third named applicant's track record had been satisfactorily renewed.
A central aspect of the instant case is whether the respondent was entitled to take into account this past dispute in determination of the application of the first and second applicants for the licences in question.
On behalf of the applicants it is submitted that the matter of past disputes in relation to ownership and control was not a matter which was relevant having regard to the provisions of s. 6(2) of the Act of 1988 and in particular sub-s. 4 of that section.
On behalf of the third applicant it is submitted that it could do nothing to prevent the transfer of the shares in question and all it could do was refuse to register the shares. As against this the position of the respondent is that the mere transfers of-the shares in question amounted to a breach of the contract.
On behalf of the applicant it is submitted that the true meaning of sub-s. 4 is that the relevant track record is confined to the provision of the service in question and is not concerned with compliance with the terms of the previous contract itself. It is for this reason that it is submitted that the respondent took into account irrelevant considerations in having regard to the dispute that previously existed between the third applicant and itself in relation to the issues of ownership and control.
In the Statement of Opposition filed on behalf of the respondent it is pleaded that the respondent fully considered the previous track record of the third applicant under each of the categories of s. 6, sub-s. 2 of the Act of 1988. The respondent takes
issue with the applicant's contention that relative marks and percentages or weighting are requirements of good administration and are required for the principles of proportionality, transparency and objective justification.
In its letter of the 5th June, 2002 the Commission indicated to the third applicant that, subject to the issue of ownership and control of Carlow Kilkenny Radio Limited, which had been the subject of correspondence between it and the respondent and their respective solicitors, Carlow Kilkenny Radio Limited's existing track record with respect to the franchise area of Carlow/Kildare was satisfactory.
The respondent issued a guide to submissions in respect of each of the applications. This issued to the applicants. At para. 2 to this guide it was stated as follows:
" In determining the most suitable applicant for the-award of the sound broadcasting contract, the Commission is obliged to have regard to the suitability of the applicant pursuant to the Radio and Television Act, 1988, and, in particular, s. 6 of the Act. The Commission is also obliged to have regard to the provisions of s. 60 of the Broadcasting Act 2001.
The criteria set out in the Acts and the manner in which they apply to the application headings in s. 4 of this guide are as follows:
1. OWNERSHIP AND CONTROL:
The relevant subsections of the 1988 Act, in respect of ownership and control are as follows:
Thereafter reference was made to subsections 2(a), 2(b), 2(g), 2(h) of s. 6 of the Act of 1988. The guide then referred to subsection (4) of the section as inserted by s. 60 of the Act of 2001. Having quoted the subsection the guide continued as follows:
"These criteria in conjunction with the BCI's policy on ownership and control will be applied in assessing the applicant's proposals under the following headings:
1. Board of Directors
2. Proposed shareholding structure
3. Management structure
4. Staffing matters
2. THE PROGRAMME SERVICE.
The relevant subsection of the 1988 Act in respect of programming, are as follows:
Hereafter a reference was made to sub-ss. 3(c), 2(d), 2(e), 2(f) and 2(i) of s. 6 of the Act of 1988 together with s. 6(3). Having referred to these subsections the guide continued:" These criteria will be applied in assessing the applicant's proposals under the following headings:1. Broadcasting philosophy2. Programme schedule3. Programme policy statement
3. MARKET ANALYSIS AND FINANCIAL AND BUSINESS PLAN
The relevant subsections of the 1988 Act, in respect of the assessment of the applicant's market analysis and financial and business plan are as follows:
6(2)(b) (part) the adequacy of ....the financial resources that will be available to each applicant and the extent to which the application accords with good economic principles."
This criterion will be used in assessing the applicant's proposals under the following headings:1. Market Analysis:(a) Analysis of existing marketplace,(b) Demand and potential for the type of service proposed,(c) Anticipated performance of service, and(d) Strategies for achieving proposed listenership and revenue targets.2. Financial-and Business Plan(a) Overall financial strategy(b) Investment proposals(c) Projections
4. TRANSMISSIONS AND STUDIOS
There is no specific reference in s. 6(2) of the 1988 Act to transmission and studio facilities. However the development of proper studio and transmission facilities is deemed to be relevant under s. 6(2)(j) of the Act - after reference was made to s. 6(2)(j) of the Act.
The following then is stated:"This criterion will be used in assessing the applicant's proposals under the following headings:1. Transmission proposals2. Studios and Operations3. Proposed commencement of broadcasting."
Under para. 3 of this guide it was stated under the heading 'Guidelines and Procedures for Submission of Applications' as follows:1. " The application should be presented in the format prescribed by the Commission in s. 4 of this guide.At s. 4 of the Guide it was stated under the heading 'Format of the Application' as follows:"The format of the application should be structured strictly in accordance with the following outline."
The outline then set forth several headings dealing with different aspects including 'Proposed Shareholding Structure', 'Management Structure' and 'Staffing Matters'. Under s. 5 of the guide under the heading The Programme Service reference was made at para. (a) to broadcasting philosophy, (b) to programme schedule, (c) programme policy statement, and (d) to opt-out programming proposals.
Section 6 referred to Market Analysis, s.7 to Financial and Business Plan, and s. 8 to transmission proposals. Section 9 related to studios and operations s.10 to proposed commencement of broadcasting.
Under para. 5 of the guide it was stated under the heading 'Procedures for Decision-Making' that under the Phase (1) there would be initial consideration and short listing, Phase (2) public hearings, and Phase (3) final decision making. Under this heading it was stated:
"Members will discuss the applications under each of the relevant criteria in collegiate manner at the relevant Board meeting of the Commission." -
It then stated at para. (c):
"Following such discussions each member will individually select his or her preferred application. The application that receives the most support will be awarded the licence."
At para. (E) of this guide it was stated:
"A summary of the key determining factors under each of the criteria will be set out and made available to unsuccessful applicants. In the event that there is not unanimity among the Board on certain elements of an application, the summary given will be recorded as being the view of the majority of the Board."
In the case of each of the first two applicants, a report entitled 'Feedback Report' was issued by the respondent. The report which issued to Carlow Kilkenny Radio Limited indicated that the application was considered in all respects to be weaker than both of the other two applications for the franchise. Under the heading of 'Ownership and Control' it was stated:
"While it was noted that the company had stated that it was open to the possibility of expanding its ownership base, the Commission noted the company had not progressed its plans in this regard prior to the making of the application. The make-up as presented in the application was not considered to be as broadly representative of the local interests across the two counties in the franchise as that of the successful applicant group."
Under a heading of track record it was stated as follows:
"Given the relationship between Carlow Kildare Radio Limited and Carlow Kilkenny Radio Limited, the track record of Carlow Kildare Radio Limited was considered by the BCI, in reaching its decision. The station's track record in respect of compliance with its statutory and contractual programming-13- commitments was considered to be a positive one. However the company's failure to resolve difficulties in ownership and control matters over a considerable period of time was not viewed positively by the Commission."
Under the heading of `Management' it was stated as follows:
"The Commission noted the changes proposed in respect of management personnel, between the time of the submission of the written application and the public hearings. In the view of the BCI the management structures proposed would not be as effective as that proposed by the successful applicant group. In addition, the membership of the management team was not considered to have as a high a level of expertise as that proposed by the successful applicant."
Under the heading of 'Programming' it was stated as follows:
"Some aspects of the programming proposals were considered appropriate by the Commission. However, in general terms, the CKR FM proposals were considered to be less elaborate and less concrete than those of the other applicant groups."
Under the heading 'Financial and Market Analysis' it was stated:
"These elements of CKR FM's proposals were considered by the Commission to be considerably weaker than those of the successful applicant group". In particular the basis for the listenership and market share projections were unclear.Aspects of the funding of the proposed service gave rise for concern. In particular it was noted that the Board of Directors of Carlow Kildare Radio Limited had supported the investment in Carlow Kilkenny Radio Limited but approval to the investment had not been given by the shareholders of Carlow
Kildare Radio Limited. The expectations of the company with regard to the profitability of the service were not considered to be as realistic as that of the successful applicant group."
A Feedback Report issued to Kildare Radio Limited under which the heading 'Ownership and Control' was addressed in an extensive manner indicating significant change between the initial stage of the application and the later stages. Under the heading of 'Management' it was noted that no Chief Executive Officer had been identified and for this reason the respondent considered that it was unclear as to whether the station would have available to it a sufficient level of experience or expertise within its management structure. Under the heading of 'Track Record' it was stated that the station's track record in respect of compliance with its statutory and contractual programme commitments was considered to be a positive one. The report continued:
"However, the company's failure to resolve difficulties in ownership and control matters over a considerable period of time was not viewed positively by the Commission."
The report then addressed elements of programming market analysis and financial proposals and studios and transmissions. The report indicated that the respondent considered the applicant group's presentation at oral hearings to be weak. It was stated that in particular the focus of the presentation on what might not be expected of the service rather than what would be delivered was considered to be unhelpful and viewed negatively by the members of the Commission.
In the second affidavit sworn by Mr. Reddy on behalf of the applicants he states that the procedures operated by the respondent lacked transparency. In his affidavit he says that to the date of swearing of same it was unknown whether and to
what extent the respondent attached any weightings to the relevant statutory criteria, how it scored at the applications, and whether the respondent observed the principles of proportionality in that respect."
On behalf of the respondent, two affidavits have been sworn by its Chief Executive, Mr. Michael O' Keeffe. He confirms that the respondent did of place greater emphasis on any one or more of the criteria as specified in s. 6 sub-s. 2 of the Act of 1988. He also indicates that management is always considered to be part of the ownership and control and that this is evidenced in the Guide to Submissions issued to the applicants and acknowledged by the applicants in their own applications.
Mr. O'Keeffe was cross examined on his affidavits. He confirmed that equal ratings were given to each of the criteria referred to in s. 6 sub-s. 2 of the Act. He did not recall whether the letter of the 5th June, 2002 had been included in the pack given to the members of the respondent prior to their meeting at which the subject decision was made. He did however indicate that the letter in question had been circulated to members.
He indicated that in its deliberations, observations were invited in relation to each of the criteria. He indicated that the Chairman introduces the matter and asks each member to comment on the application in question. Mr. O'Keeffe indicated that in relation to Carlow Kilkenny Radio, that there was evidence that there was no great support for CKR with regard to the Kildare franchise it was indicated that two of the five applicants including CKR didn't have great support. He indicated that there had been general consensus in favour of the successful applicants. Mr. O'Keeffe denied that there had been any disproportionate emphasis placed in relation to any criterion. He conceded that there is no marking system in place. Dealing with the heading of ownership and control he indicated that the failure to implement a new structure of
shareholding with a revised board of directors and independent management was the factor at issue. The second matter had been resolved. He indicated this was one issue among a whole range oŁ issues. He indicated that no greater emphasis was given to this issue.
Submissions
On behalf of the applicants it is submitted by Mr. Paul Sreenan S.C. that the matter of the past dispute in relation to ownership and control was not a matter which was relevant in regard to provisions of s. 6 (2) and s. 6(4) of the Act of 1988. It is further submitted that if the respondent was entitled to attach certain weight to the issue of ownership and control it attached disproportionate weight to the past dispute. It is further submitted that the respondent appears to have taken into account management issues and to have attached a disproportionate weight to such matters. At issue is the interpretation of s. 6 (4) of the Act of 1988 and whether the previous dispute in relation to the unauthorised transfer of shares was a matter to which the respondent was entitled to have regard to in reaching its decision. The applicants furthermore query whether the respondent failed to comply with its statutory obligation to give equal emphasis to all of the criteria under s. 6 (2) of the Act of 1988.
In regard to the interpretation to be given to s. 6(4) of the Act, counsel stresses that the use of the words "with respect to the provision by him of a sound broadcasting service" indicates that this encompasses matters such as programming and technical broadcasting. It is submitted that it does not encompass a matter such as a technical (and in this case disputed) breach of a notification provision in a contract. Counsel submits that the subsection does not provide that the respondent shall have regard to compliance by the applicant with the terms of any sound broadcasting
contract. It is submitted that if this was intended it could easily have been so provided. In support of his submissions, counsel refers to Des Smith, Woolf and Jowell, 'Judicial Review-of Administrative Action' in which reference-is made to a dictum of Lord Keith in Lonrho Plc v Secretary of State for Trade and Industry [1989] 1 W.L.R. 529 at p: 539 where he stated that where reasons for a decision were absent "and if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision maker... cannot complain if the Court draws the inference that he had no rational reason for his decision".
Counsel further refers to Radio Limerick One Limited v I.R. T C. [1997] 2 I.R. 291 in which Keane J. after reviewing the principles set out in Wednesbury and Keegan stated at p. 312:
"Apart from those considerations, it would seem self evident that, if the exercise of the statutory discretion is grounded on an erroneous view of the law, it should not normally be allowed to stand. Thus, in the present case, if the only ground on which the Commission terminated the applicant's contract was the carrying of the outside broadcast and they were wrong in law in treating, as they did, those broadcasts as advertisements within the meaning of the Act, it is difficult to see how their decision could be described as "reasonable" either in terms of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 or on the application of the criteria proposed by Henchy J. in The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642."
Furthermore, reference is made to the judgment of Keane J. in Carrigaline Community Television Company Limited v The Minister, for Transport, [ 1997] 1 I.L.R.M. 241 where he stated inter alia:
"The Court can and must set aside a decision where it is shown to be unlawful because of the manner in which the decision was made, whether because the competent authority failed to consider the matter in a fair and impartial manner or because it took into account factors which it should have excluded or excluded factors which it should have taken into account."
Counsel refers to-the provision of s. 5 (b) of the Act of 1988 to the effect that the Commission may not place greater emphasis on any one of the criteria in s. 6(2) in the absence of appropriate notice. It is submitted that this can be viewed as a type of statutory prescription of proportionality. Each of the headings of s. 6(2) provides an equal contribution to the determination of the winning candidate. It is submitted, however, that in the present case one has the extraordinary situation where the ten categories identified in the subsection under which the applications were to be assessed and in respect of which equal emphasis was to be placed, were 'cut and pasted' by the respondent under four new headings of its own making. It is submitted that this is not as if the statutory headings were simply divided amongst group headings. Some of the statutory headings were split so as to fall under different group headings. It is submitted that if this was not enough the respondent then took those group headings and created new sub group headings which again had no reflection in the statutory wording. Counsel submits that it ultimately adopted different headings in the assessment of the most suitable candidate. It is submitted that in the normal course one would expect a regulator complying with the principles of good administration and proportionality, to produce a marking sheet for the applications
with each of the headings of s. 6(2) potentially attracting the same marks. Applications would then be evaluated against this marking scheme. It would then be in a position to demonstrate to the Court that it has in fact complied with the statutory requirements of placing equal emphasis on each of the statutory headings. It is submitted that extraordinarily in this case no such marking scheme was adopted. No markings at all were adopted and no fixed weightings were attached to the various headings.
It is submitted that in these circumstances the burden of proof must shift to the decision making body to demonstrate that it has complied with the statutory criteria for the legality of its decision. It is submitted that in the present case the decision making body has made a determination the effect of which is to deprive an enterprise of a broadcasting licence which it had held for many years and which was the very basis of its commercial viability. It is submitted that on the one hand this decision making body professes adherence to principles of openness and transparency and clarity while on the other hand it has adopted procedures which are the very antithesis of this.
It is submitted that on the basis of the evidence put before this Court by the respondent it can be said that the documents reveal a situation where, at least to a prima facia standard, equal emphasis could not have been given to the statutory criteria. It is submitted that that influence is not displaced by any of the material put before the Court by the respondent.
Counsel refers to the decision of the Court of Justice of the European Communities in case C-470/99 Universale Bau [2002] 1 E.C.R. 1617, in the field of public procurement law, in support of the contention that there must be transparency
in the process of awarding a licence by the respondent and that this requires a weighting or marking system.
On behalf of the respondent it is submitted by Mr. Michael Cush S.C. that in the first place neither the language of s. 6(4) nor the underlying intention of-the subsections supports the very narrow construction contended for by the applicants. It is submitted that the concept of a suitable applicant is referred to in each of sub-ss. (1), (2) and (3) of s. 6 of the Act of 1988. Subsection 2 makes it clear that in considering the suitability of an applicant the Commission is to have regard to a whole range of factors and is not confined to considering only programming materials. It is submitted that there is nothing in sub-s. 5 to indicate that the suitability of an applicant is to be judged by any different or narrower standards. It is submitted that the phrase "overall quality of the performance of the applicant" is a clear indication that the Oireachtas had in mind a broad assessment of the applicant's previous history rather than the very narrow assessment contended for by the applicants. It is submitted that had the Oireachtas wished to confine the assessment to "output under the contract" it would have been very easy for it to so state. It is further submitted that the phrase "with respect to the provision by him of the sound broadcasting service under any sound broadcasting contract" appearing in sub-s. 4 is an indication of no more than what it is that a contractor does pursuant to a sound broadcasting contract. It is submitted that it is not to be read in isolation from the phrase "overall quality of the performance of the applicant" so as to result in the very narrow construction contended for by the applicants. Counsel submits that the amendment effected by s. 60 of the Act of 2001 was passed with a view to ensuring that the track record of those applicants who had previously enjoyed the benefits of a sound broadcasting contract would be taken into account (good or bad) in any
application for a new licence. It is submitted that an applicant's "track-record" or prior relevant history consists of far more than merely its provision of programming material. It is submitted that an applicant's level of compliance with a previous contract would be a relevant matter for the Commission to take into account in assessing its suitability for a new licence. It is furthermore submitted that pursuant to sub paragraphs (a) and (b) of sub-s. 2 of s. 6 of the Act in 1988 the Commission is nevertheless entitled to have regard to matters such as the level of compliance of the applicant under previous contract.
Dealing with the issue of the statutory criteria and the weight attributed to same, it is submitted that the applicants either consciously-or unconsciously have confused the word 'criteria' with 'headings'. Ultimately, it is submitted that their complaint is in substance- no more than one of labelling. It is submitted that the statute sets out the criteria which the Commission is bound to consider. No notification was given pursuant to s. 5 (6) of an intention to place greater emphasis on one or more of the criteria. It is submitted that the guide to submissions did no more than outline a coherent framework pursuant to which the Commission would assess each application. It is submitted that by its language it made clear that the framework was but a means of applying the statutory criteria. It is submitted that there can be objection to grouping a number of criteria under particular headings and the applicants do not appear to condemn the practice in itself. It is submitted that they have been confused by the introduction of headings and appear to have equated these headings to criteria. In this regard reference is made to a letter of 11th December, 2000 from the applicant's solicitors in which the questions was asked whether the respondent had weighted each heading equally or whether one heading carried more weight than another. The reply at the time indicated as follows:
"Your surmise as to the headings under which the BCI has assessed each submission is broadly accurate. However, your surmise as to the BCI ascribing weighting as to those headings is not accurate. The BCI takes into account each of the matters specified in s. 6 (2) of the Radio and Television Act, 1988 and the matters specified in s. 60 of the Broadcasting Act, 2001 but does not ascribe fixed weightings out to its statutory criteria."
On this basis it is submitted that the respondent was making clear the distinction between 'headings' and 'criteria'. Counsel acknowledges that there is one error in the Guide to Submissions issued by the respondent. He refers to the fact that s. 60 is referred to only in the context of the heading "Ownership and Control" whereas clearly it should have been referred to in the context of each of the four headings and thereby in the context of each of the criteria specified under the Act. It is submitted that this error is, however, confined to the Guide to Submissions and did not find its way into the actual assessment by the Commission. It is submitted that this is clear from the Feedback Report supplied to the first named applicant. The second sentence under the heading 'Track Record' makes it clear that the Commission took into account, in assessing the first named applicant's track record, matters that went beyond mere ownership and control issues and in particular which included programming matters. On this basis it is submitted that whilst the Guide to Submissions may have been inaccurate in suggesting that s. 60 had an application only in the context of ownership and control it is quite clear that the Commission did not carry that error into practice. It is conceded that some of the headings in the Feedback Report do not correspond exactly with the headings in the Guide to Submissions but it is submitted that in substance this is no more than a complaint about labelling.
Dealing with the issues of transparency counsel refers to the fact that under the terms of the Feedback Report the applicants were given an opportunity of meeting with the Commission. This offer was specifically made to the applicants in this case but was refused by them.
Counsel refers to the decision of the Court of the Justice of the European Communities in the case of Universale Bau C-470/99 [2002] 1 E.C.R. 1617. Counsel refers to paras. 91 to 97 of the judgment and submits that these are matters to be notified by the Member State in question. It is submitted that in the instant case the statute sets out the criteria and does not require any weighting in the manner contended for. In Universale Bau the court addressed the issue of the necessity for transparency in the context of the degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.
Dealing with the issue of transparency it is submitted that in the instant case detailed feedback reports were furnished to the applicants. It is submitted that no transparency argument necessitates a marking system such as that contended for.
In a reply to the submissions of Mr. Cush, counsel on behalf of the applicants submits that a decision has to be drawn between the word "performance" appearing in sub-s. 4 of s. 6 of the Act of 1988 and the words "non-compliance". Counsel refers to the fact that s. 60 not only relates to programming but also to transmission facilities. Counsel furthermore submits that the term "overall quality performs appearing in s. 6(4) does not lend itself to being considered under the terms of s. 6(2) (a) or (b). On this basis it is submitted that the matters taken into account could not be relevant under s. 6(2) (a) or (b). It is submitted that these-matters can not be regarded as relevant matters under subparagraph (a) of section 6(2). With regard to issue of
weighting, counsel again refers to the fact that the guide splits up the criteria under more than one heading. It is submitted that the error in the guide cannot be swept aside. If there is any confusion between the term 'headings' and 'criteria' this was caused by the respondent itself given the multiplicity of headings referred to in its guide. Counsel questions how the respondent can ensure that equal emphasis is given to the criteria in the manner which it approached the assessment. Counsel questions how one could verify that the statutory criteria were complied with in the absence of a guide showing that the criteria were complied with.
In reference to the case of Universale Bau, counsel submits that this case was not only concerned with transparency before the tendering but also was concerned with a verification that it has been complied with. Counsel makes specific reference to paras. 91 and 99 of the judgment of the Court of Justice. These stated as follows:
91. The principle of equal treatment, which underlies the directives on procedures for the award of public contracts, implies an obligation of transparency in order to enable verification that it has been complied with (see, in particular, Case C-324/98 Telaustria and Telefonadress 2000 ECR I -10745, para. 61, and Case C-92/00 HI 2002 ECR 1-5553, para. 45).99. It is therefore clear that the interpretation according to which, where, in the context of a restricted procedure, the contracting authority has laid down prior to the publication of the contract notice the rules for the weighting of the selection criteria it intends to use, it is obliged to bring them to the prior knowledge of the candidates, is the only interpretation which complies with the objective of Directive 93/37, as explained in paras. 88 to 92 of this judgment, since it is the only one which is apt to guarantee an appropriate-25- level of transparency and, therefore, compliance with the principle of equal treatment in the procedures awarding contracts to which that directive applies. Counsel submits that only by disclosure of the weighting system and marks awarded can the appropriate level of transparency be achieved.
Conclusions
In the first instance the interpretation of s. 6(4) must be addressed.Subsection 4 reads as follows:
"(4) In considering the suitability of an applicant for the award of a sound broadcasting contract, the Commission shall have regard to the overall quality of the performance of the applicant with respect to the provision by him of a sound broadcasting service under any sound broadcasting contract held by him at, or before, the-date of the making of the application."
While the issue which has arisen is whether under this sub-section the respondent was entitled to take into account, as part of its assessment of the suitability of the applicant for the award of a sound broadcasting service, it has been submitted that under the provisions of s. 6 (2) of the Act of 1988 as it stood prior to the enactment of the Broadcasting Act, 2001, the applicant was entitled to take such-matters into account.
Section 6 (2) reads as follows:
(2) In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound broadcasting contract, the Commission shall have regard to
( a ) 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;( b ) the adequacy of the expertise and experience and of the financial resources that will be available to each applicant and the extent to which the application accords with good economic principles;-26- ( c ) the quality, range and type of the programmes proposed to be provided by each applicant or, if there is only one applicant, by that applicant;( d ) the quantity, quality, range and type of programmes in the Irish language and the extent of programmes relating to Irish culture proposed to be provided,( e ) the extent to which the applicant will create within the proposed sound broadcasting service new opportunities for Irish talent in music, drama and entertainment,(f ) the desirability of having a diversity of services in the area specified in the notice under section 5 (5) catering for a wide range of tastes including those of minority interests;( g ) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of sound broadcasting services in respect of which a sound broadcasting contract has been awarded under this Act;( h ) the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media in the area specified in the notice under section 5 (5);(i) the extent to which the service proposed(i) serves recognizably local communities and is supported by the various interests in the Community, or(ii) serves communities of interest, and( j ) any other matters which the Commission considers to be necessary to secure the orderly development of sound broadcasting services.
I am satisfied that the provision of s. 6 (2) (a) would in any event entitle the respondent to have regard to the applicant's prior compliance with its contract in the assessment of it. With regard to a party who had not previously held a sound broadcasting contract, I am satisfied that the respondent could not ignore any alleged previous non compliance with contractual obligations in its assessment of the character of the applicant.
I am satisfied, nevertheless, that as between the narrow construction of s. 6 (4) contended for on behalf of the applicant and the wider construction contended for on behalf of the respondent, the latter should prevail. In this regard I do not construe the
words of the sub-section as being confined to a party's output under a broadcasting contract. I am satisfied that the words "overall quality of the performance of the applicant with respect to the provision by him of a sound broadcasting service under any sound broadcasting contract" should be widely construed to include the applicant's track record under the terms of the contract itself and not solely related to the narrow aspect of the broadcasting output under the contract. In this regard I place reliance on the word "overall" appearing in the sub-section.
With regard to the issue of the statutory criteria and the weight attributed to same, I am satisfied that as explained by Mr. O'Keeffe in his evidence, in the instant case this was addressed by treating each of the categories referred to in s. 6 (2) as being of equal weight and it did not involve the applicant for a licence placing greater emphasis on any one or more criterion than on the others.
In this regard the respondent had to have regard to the provisions of s.5 (6)-of the Act which would have required it to notify the applicants had it proposed to place greater emphasis on one or more of the criteria in s. 6 (2).
Section 5 (6) provides as follows:
(6) Having regard to the findings of-the Commission under sub-s. (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in s. 6 (2) of this Act and whenever it is the Commission's intention to so do it shall specify such intention to each person who has indicated his intention of being an applicant for a contract.
The applicant was notified in the Guide issued by the Respondent as to the manner in which it would carry out its assessment. This indicated a round table approach where each of the members would indicate his or her preferred choice of applicant.
Nowhere in the Act of 1988 has it been established that one must present a marking system as contended for by the applicants.
While reference has been made to a decision of the Court of Justice of the European Communities in case C-470/99 Universale -Bau A.G., I am not satisfied that it is authority for the proposition advanced on behalf of the applicant that a marking system as contended for is required. I am satisfied that the duty of transparency placed on the respondent is satisfied in the form of the reports issued by it to the unsuccessful applicants. The case cited by counsel does not appear to indicate the necessity for a marking system as contended for.
While criticism has been expressed of the fact that the respondent invited submissions under various headings which it designated, rather than simply under headings corresponding with the criteria set forth in s. 6 (2), I am satisfied that in addressing each of the criteria under these headings that it met its obligation to address each of the criteria under the Act. I am not satisfied that in so acting that it has been demonstrated that the respondent sought to attach greater emphasis on any one or more of the criteria referred to.
In all of the circumstances I am satisfied that the applicant has failed to establish any illegality attaching to the decision of the respondent or any entitlement to the relief sought herein. Accordingly, I will refuse this application.