Former Minister for Communications, Mr Alan Dukes, "ducked the issue" of making a decision, on its merits, on the application by Carrigaline-based South Coast Community TV for a licence to rebroadcast British television stations, it was claimed in the High Court yesterday.
In a case likely to have implications for deflector operators across the State, Mr John Gordon SC, appearing for Carrigaline Community Television Broadcasting, trading as South Coast Community Television Broadcasting Service, said that the former Minister on April 15th last had exceeded his powers in refusing the application. He had not done what the law obliged him to do which was to make a decision on his clients' licensing application on its merits.
"What we got was not so much a decision as a deferral," counsel said.
Rather than judge the South Coast application in isolation, the former Minister had proceeded to put in place a framework to decide the issue of licences generally, counsel said.
It was expected that statutory regulations governing former Minister Dukes's proposed scheme for the short-term licensing of television signal deflector operators would be introduced before he left office in June last but no such regulations were introduced then or since and it appeared his proposed scheme had "effectively been abandoned".
His clients would say the Minister was unduly affected by worries within his Department and the Government generally about threats to sue the State by Cork Communications Ltd and other MMDS operators.
Mr Gordon was opening judicial review proceedings taken by his clients against the Minister for Transport, Energy and Communications; the Director of Telecommunications Regulation; the Attorney General and Cork Communications Ltd.
The South Coast company is seeking several orders. It wants an order quashing the Minister's April 15th refusal of the com pany's application for a licence for its UHF re-broadcasting service within County Cork and West Waterford.
It is seeking a declaration that the Minister's decision was made ultra vires (in excess of his ministerial powers) and was in breach of the company's rights to natural and constitutional justice and fair procedures, and was, accordingly, legally null and void.
The company also wants a declaration that, in considering the applications for a licence, neither the Minister nor the Director of Telecommunications Regulation (DTR) should take account of a letter from then Minister, Mr Ray Burke, of February 4th 1991 purporting to confirm to Independent Newspapers plc that the MMDS licences which had been issued, or might in future be issued to any company in which Independent Newspapers had an interest, would be exclusive licences.
It wants a further declaration that the Minister and DTR should not take into account the fact that licensed MMDS operators have threatened to sue the Minister and Attorney General if licences were issued to deflector operators.
An order is also sought directing the Minister or the DTR to consider "properly and in accordance with law", and in accordance with a previous High Court decision, South Coast's applications for licences for its service.
In the light of such a direction, the applicants say that it would be inappropriate for Cork Communications Ltd. to proceed with an interlocutory application to close down the South Coast service.
The case continues today.
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