The Supreme Court has dismissed Scrollside Limited’s appeal over the award of a Dublin alternative rock broadcasting contract to Dublin Rock Radio Limited, trading as Phantom FM, and affirmed the High Court order refusing judicial review.
Scrollside, which traded as Zed FM, had sought to quash the Broadcasting Commission of Ireland’s November 2004 decision to award the contract. It argued that the Commission failed to properly consider Dublin Rock’s character, gave it an advantage from experience gained through illegal broadcasting, prejudged the award, and wrongly considered services provided under two temporary contracts by separate companies trading as Phantom FM.
The Supreme Court said judicial review is not a full appeal on the merits. The court’s role was to review the decision-making process and fair procedures, and the applicant faced a high burden to show that the specialist regulator’s decision should be declared void.
The judgment accepted that some Dublin Rock members had previously been involved in illegal broadcasting and that the Commission knew this. The Commission had a longstanding policy of considering applications from former pirate broadcasters if they ceased illegal broadcasting before applying. The court held that this policy was not irrational and that the weight given to the history of illegal broadcasting was for the Commission to assess.
The court was satisfied that the High Court was entitled to find that Zed FM had not established that Dublin Rock received an advantage from that experience. It also upheld the High Court’s assessment that the meeting minutes showed an objective appraisal of Zed FM’s strengths and weaknesses, rather than prejudgment.
The Commission had allowed Dublin Rock to change its advertising sales representative after applicants had been told applications could not be changed. The Supreme Court agreed this was not best practice and said it expected the approach not to be repeated. But, in the circumstances, the change did not warrant court intervention.
The Supreme Court also affirmed the High Court’s conclusion on the two temporary contracts. The High Court had noted that awarding them in effect to the same group of individuals was contrary to the spirit of the Act, and that the Commission had changed its guidelines to avoid repetition. However, it found the services provided under those contracts could be considered in the licensing process.
The court dismissed all grounds of appeal and affirmed the High Court order. It did not quash the contract award.