The High Court has refused National Broadband Ltd’s judicial review challenge to the exclusion of satellite broadband from the mapping exercise for the National Broadband Scheme tender.
Mr Justice Brian McGovern held that the mapping exercise was part of the scheme and tender process, and that excluding satellite coverage from the map itself had no legal consequences for the company. The court therefore found that the decision did not give rise to a justiciable issue. It also accepted the Minister’s argument that the application had been brought too late.
The company had sought orders quashing the Minister’s decision, first communicated on 14 January 2008, not to accept satellite coverage submissions for the map, and declaring that decision ultra vires. The map classified areas as served, expected to receive service, or unlikely to receive service. The scheme was intended to improve access in areas without affordable, high-quality broadband.
National Broadband Ltd argued that satellite coverage was wrongly excluded and that the decision was unreasonable, failed to consider satellite providers’ capacity to serve a mass market, and was made without consulting the company. It also alleged that publicly supported competition under the scheme would distort competition and breach Irish and EU State aid rules.
The Minister maintained that satellite services had been assessed for cost and technical capability and that providers had been consulted. The judge accepted evidence that the Department met with satellite broadband representatives, including John O’Brien, who had been an officer of both National Broadband Ltd and Cross Country Broadband Ltd. The court found that satellite providers’ views were considered, and that O’Brien had discussed the capacity and limitations of satellite services with the Department in 2006.
The judgment also noted that the European Commission had ruled the scheme compatible with EU State aid rules. It said the applicant had not shown that the mapping process breached those rules or relied on incorrect information, and had not challenged the Commission’s decision through the available routes described by the court.
The judge found no evidence of irrationality or unreasonableness in the Minister’s decision, noting that the Department had considered satellite broadband’s market penetration, costs and technical limitations. He also accepted the Minister’s submission that the company knew, or ought to have known, the Department’s position earlier and should have started proceedings sooner. The application was refused; the judgment does not grant the requested certiorari or declaration.