Orange licence hearing adjourned

The High Court has rejected a claim by Orange Communications that the court should re-hear the applications made to the Director of Telecommunications Regulation for the State's third mobile phone operating licence.

Orange's application for that licence was refused by the Director, Ms Etain Doyle. She awarded it to the only other applicant, Meteor Mobile Communications.

That decision was appealed by Orange to the High Court which heard preliminary applications regarding the scope of the appeal.

Ms Justice Macken yesterday ruled on those applications and found the appeal should take the form of a review of the reasonableness of the Director's decision to award the licence to Meteor. She then adjourned the substantive hearing to next week.

In her preliminary decision, the judge decided Section 111 of the 1983 Post and Telecommunications Act was "on balance" drafted in terms providing for a "review type of appeal . . . about the reasonableness of the Director's decision to refuse to grant the licence . . . "

Ms Justice Macken said such a review should be conducted by the court only on the basis of the material which the Director had before her and none other.

It was regrettable there were no rules governing the scope of such appeals as in the present case, the judge said.

But, in her view, the appeal legislation was "extremely narrow" and was probably intended by the Oireachtas to be so.

There was nothing in the legislation which took the appeal to the level of a re-hearing or a re-opening of the competition or which entitled the court to substitute its own opinion for that of the Director.

She believed it was a deliberate policy of the Oireachtas to limit the type of appeal available, a policy which seemed also to be based on the type of field in which the licence was granted. Mobile phone communications was an expert area in which the Director was singularly placed to grant or refuse a licence.

As the Director had argued, the European legislative background envisaged the licensing system would be operated by a body independent of the elecommunications' organisations, the judge said.

It was unlikely that it was envisaged on appeal that the court could award the licence or place itself in the position of substituting its opinion for that of the Director, she added.