By Maeve Rowan
The Supreme Court has rejected Storm FM's challenge to the award of a Dublin radio licence aimed at listeners aged 15 to 34 to rival consortium Spin FM.
The Independent Radio and Television Commission awarded the contract to Maypril Limited, trading as Spin FM, on October 11, 1999. Spin Communications Limited, trading as Storm FM, challenged the decision and ultimately relied on one ground: alleged objective bias by commission member Dr Colum Kenny.
Storm FM pointed to inquiries Kenny had made with the Garda National Drugs Unit about the Dublin drugs scene and, in particular, references to the POD nightclub owned by Storm chairman John Reynolds. Kenny had also written privately to commission chairman Conor Maguire SC setting out concerns about Reynolds and the nightclub before the final decision.
The Supreme Court held that the relevant legal test was whether a reasonable person would apprehend or suspect that the decision-maker might have been biased, even without proof of actual bias.
Applying that test, Mr Justice Murray found no evidence that Kenny had prejudged Storm FM's application. The court said the issue of drugs was relevant to a youth-oriented broadcasting licence and to the commission's statutory obligation to consider the character of applicants and their directors.
Kenny's Garda inquiries were described as potentially imprudent because they were undertaken without first consulting the commission or its chair. But the court found they concerned a matter properly within the decision-making process rather than an external factor capable, in itself, of establishing objective bias.
The court also found that Kenny's September 1999 letter to the chairman showed an enquiring mind seeking guidance rather than a fixed conclusion. His later private clarification memorandum was likewise treated as part of his deliberative process.
The Supreme Court stressed that different questions might have arisen if adverse material had actually been used against Storm FM without giving it an opportunity to respond. That would concern fair procedures, not necessarily bias. No such ground was pursued on appeal.
The High Court's dismissal of Storm FM's judicial review challenge was therefore upheld.