Legal experts say EU law prevents Dukes limiting TV deflectors services

NEW regulations to control television deflector services are not necessary since deflectors are permitted to operate under EU regulations, according to two legal experts. They also say deflector services cannot be limited in the number of stations they provide.

This view was put to the Department of Transport, Energy and Communications on Tuesday, according to its authors, Mr Tom Carney, Jean Monnet lecturer in EU commercial law at UCG, and Mr Robert Potter Cogan, solicitor, of T. Dillon Leetch & Sons, Ballyhaunis, Co Mayo.

They believe that all of the necessary legal controls needed to settle the MMDS deflector dispute exist already and say the only thing required is their full implementation by the Government.

The deflectors have rights under EU directives, Mr Potter Cogan said yesterday. The directive says no national government has a right to block rebroadcast or rediffusion of television signals from a neighbouring state."

Article 59 of the Treaty of Rome provides the basis for this right, they suggest. This allows for the free movement of services between member states of the EU. "The European Court of Justice has, on more than one occasion, recognised that the transmission of trains frontier television signals constitutes the provision of a service within the meaning of Article 59", they say in a paper on the subject.

This provision exists in Irish law under a ministerial order SI 252/91, which states that nothing in existing domestic legislation shall be construed as restricting the transmission in the State of television signals from other member states of the EU".

The whole issue of licensing could be queried under these regulations, Mr Potter Cogan believes. The directive allows for states to regulate or control services he said, but it prevents governments from dictating that only one licensee or individual has a right to deliver television services. The national government can't pick a type of rebroadcast, he said.

The number of stations doesn't matter so long as they come from another country", Mr Carney said. "Cable and MMDS have a right to be there, but licences must be available on a non exclusive basis." He added that they were "open to competition under the directive".

A spokesman for Mr Dukes said that the Minister had not attempted to impose limits on the number of stations handled by either type of service company. This was provided that no interference was caused to other stations.

The Minister was not contemplating new legislation, the spokesman said: Regulations would be used to initiate a round of licensing by the autumn. "The Minister has said his Department will not move on any deflector. He will leave the status quo until the licencing procedures come into effect."

The licences will have effect until 1999. There will then be a complete review of redistribution of television signals. This will be carried out by a new telecommunications regulator, who is expected to be appointed in June.