ANEW Dublin rock music station, bogged down in litigation for a year, may get the go-ahead, depending on the outcome of a Supreme Court hearing scheduled for this week. Or, if it goes the other way, the case may cause a setback for the Broadcast Commission of Ireland.
There were initially five applicants for the licence. The BCI decided on a shortlist of Phantom FM and Zed FM. After an oral hearing at which the two competitors made presentations, the licence was awarded in November 2004 to Phantom.
Zed sought a judicial review of the BCI decision. After a High Court hearing last October, Mr Justice Philip O'Sullivan rejected Zed's case. It's the appeal against that judgment that is scheduled for the Supreme Court thisweek.
By 2003, Phantom had broadcast for five years as a pirate radio station. Twice, in 1999 and 2001, it stopped broadcasting and applied for a permanent licence. And twice, on being refused, it resumed broadcasting as a pirate, building up the Phantom brand name.
In May 2003, Phantom again stopped broadcasting. Now allied with substantial investors, it embarked on a novel strategy. It applied for and was given a temporary broadcast licence. Such licences are typically given for special events - college rag weeks, community festivals and the like. The licence lasts for 30 days and the station must observe strict rules.
The BCI allowed Phantom divide its 30-day licence into 15 two-day periods, and thereby to broadcast each weekend for three months. Unlike a community or school station, Phantom didn't have a unique event around which the broadcast would revolve. Instead, it received permission to broadcast in support of a series of unspecified musical events.
In early 2004, shortly after this temporary licence ended, Phantom applied for and received a second temporary licence. As before, its 30-day allowance was broken up into 15 two-day spurts, spread over another three months. By now, Phantom had five years experience of pirate broadcasting to a specific niche audience - fans of alternative rock music - and six months of licensed weekend broadcasts to that audience.
Effectively, Phantom was running a pilot operation for the permanent service it hoped toestablish. When the competition for the permanent rock stationlicence began in 2004, it could point to this experience and to the fact that it had established a'lighthouse brand', identifiable by its potential audience. It had a management structure in place that had acquired practical experience in the day-to-day running of a radio station. It got the licence.
No other applicant had this background. It could be argued that Phantom is a skilful outfit that genuinely abandoned piracy and manoeuvred cleverly within the rules. Zed argued that there had been bias in favour of Phantom.
In taking the BCI to court, Zed raised significant questions about the commission's decisions. For instance, under the rules, no entity can get a second temporary broadcast licence within 12 months of the first. Yet Phantom did.Although the licence was for the same station, operating under the same name, by the same personnel, from the same premises, using the same equipment, to the same weekend format, Phantom used a different company to apply for the second licence.
In theory, using this tactic, a station could get a series of temporary licences and remain permanently on air. (Recognising this as absurd, the BCI has since brought in guidelines to prevent such serial applications using differentcompanies.)
Before giving any station a licence, the BCI must monitor and consider how the station operated any previous licence. However, the tapes of Phantom's first licensed broadcasts weren't listened to until after the second temporary licence was granted.
In its application, Phantom claimed to be "tried and tested over seven years of operation". This clearly suggested that the people at the station believed that their years of lawbreaking enhanced their credibility. The BCI, however, said it didn't take the five years of illegal broadcasting into account, only the two periods of broadcasting under temporary licence.
In its claim, Zed pointed to a series of alleged breaches of the rules - including what the BCI agreed was a breach of contract - but none was of sufficient importance to convince the High Court to quash the BCI decision.
Judge O'Sullivan found no evidence of bias or prejudgement. Furthermore, "the applicant has not been able to identify a factor external to the process itself by reference to which the commission could be said to have been guilty of bias as is required under the more recent jurisprudence".
If the Supreme Court agrees, the case will end there. Should it find against the BCI - which licences, monitors and develops alltelevision and radio broadcasting - the commission's judgment will come under scrutiny. And there will be a further delay before an alternative rock station can go on the air.