The High Court has refused a judicial review application by Scrollside Limited, trading as Zed FM, challenging the Broadcasting Commission of Ireland’s award of a Dublin alternative rock FM contract to Dublin Rock Radio Limited, trading as Phantom FM.
In a judgment delivered on 1 November 2005, O’Sullivan J. rejected the applicant’s four grounds. They alleged that the Commission had failed to consider the winner’s character, improperly credited it for experience gained through illegal broadcasting, favoured or prejudged its bid, and wrongly considered services provided under two temporary contracts.
On the character ground, the judge held that the statutory requirement covered more than moral character. The Commission had been made aware that individuals involved with Dublin Rock had previously broadcast illegally, and the court found that this history was among the matters considered. The weight given to it was for the Commission, the judge said, and the applicant had not alleged that the resulting assessment was irrational to the legally required degree.
The court also found that the applicant had not established that Dublin Rock received an advantage for its illegal broadcasting experience. The Commission’s chief executive maintained in evidence that the Commission considered only the services provided under two temporary contracts. The judgment records that the applicant’s evidence and supporting documents did not prove otherwise.
The bias and prejudgment allegations were rejected. The judge said the evidence did not meet the standard needed to establish such serious claims. He pointed to Commission minutes recording both positive and critical assessments of Zed FM’s bid.
However, the judge criticised the Commission for allowing Dublin Rock to change its advertising sales representative without referring the change to Zed FM, despite arrangements that applications could not be changed. He described this as a departure from the highest standards of procedural fairness, but said it was not significant enough to justify court intervention.
The challenge concerning the two temporary contracts was not pressed by the applicant. The judgment noted that the contracts had gone to two separate companies, although the Commission understood that the same group of individuals benefited from both and later changed its guidelines to prevent a repeat. The judge found no basis to uphold that ground. He did not decide the Commission’s separate argument that relief should be refused for delay or acquiescence, as it was unnecessary after his other conclusions.
The application was refused. The judgment does not set out any further order.