There were three basic facts in the lead report in The Irish Times last Saturday:
1. Mr Ray Burke agreed to all of the main terms sought by Independent Newspapers plc for the operation of the exclusive MMDS television relay licences granted to its associate company, Princes Holdings Ltd.
2. He departed from official advice in his Department in early 1991, and gave the then managing director of Independent Newspapers, Mr Joe Hayes, most of the "written reassurances" Mr Hayes had sought for "planning, banking and investment reasons" in a memorandum dated October 8th, 1990.
3. The subsequent letter of comfort, issued by Mr Burke to Mr Hayes on February 4th, 1991, came from the Minister's private office. In the Department's MMDS files, the letter is marked "Signed and Despatched from Minister's Office" to highlight the fact that it was a Ministerial decision.
Copies of what Mr Hayes sought, what Mr Burke granted, and the Civil Service advice were published on an inside page of The Irish Times.
The Independent Group's newspapers carried the following reports in relation to The Irish Times story:
1. Sunday Independent, Sunday Tribune, Monday's Irish Independent: Mr Ray Burke adhered rigidly to detailed advice by his Department about the issuing of MMDS licences. An internal report by the assistant secretary of the then Department of Communications sets out the opinions of independent consultants, Stokes Kennedy Crowley, now KPMG, and those of the Department's officials. The report clearly shows that Mr Burke issued the licences in line with their advice.
2. Monday's Irish Independent: The "assurances" given by Mr Burke to Independent Newspapers had previously been given to the Irish Cable Operators' Association. Tuesday's Irish Independent: Mr Hayes's "sample letter" to Mr Burke merely sought confirmation of "undertakings already made to Joe Seely, chairman of the Irish Cable Operators' Association, five months earlier."
3. All of the Independent Group's coverage disputed the interpretation of the "What was Sought" and "What was Given" letters published in The Irish Times.
The Independent has not answered any of the detailed points made in The Irish Times's story.
1.It was never suggested that Mr Burke did not adhere to official advice on the issuing of the MMDS licences. The story related to the additional written assurances sought and given to Independent Newspapers for its subsidiary, Princes Holdings, after the licences had been issued. The first paragraph spoke of terms sought by Independent Newspapers "for the operation of the exclusive MMDS licences" granted to Princes Holdings.
The Independent was denying something, therefore, which was never stated.
2. Mr Hayes's "sample letter" to Mr Burke did not seek just "undertakings already made to Joe Seely, chairman of the Irish Cable Operators' Association, five months earlier". Mr Hayes sought, and received, much more.
The sequence of events was as follows:
On May 6th, 1988, the Department of Communications invited applications for exclusive MMDS licences in public advertisements.
On June 7th, 1989, a £30,000 cheque payable to cash was given to the outgoing Minister for Industry, Commerce and Communications, Mr Burke, by the Rennicks company, a subsidiary of Fitzwilton, during the general election campaign.
In July, 1989, Mr Burke retained the Communications portfolio on appointment as Minister for Justice and Communications.
On September 29th, 1989, some 17 months after applications were invited, licences were issued to Princes Holdings and other companies.
The formal application for MMDS licences issued by the Department said: "Application for an exclusive licence for provision of a Programme Transmission System". A draft of the "Proposed Statutory Regulations" on the MMDS system said: "Exclusive licences in particular areas will be issued. Licences will remain in force for up to 10 years". Neither of the official documents defined the word "exclusive". Mr Hayes set out to get such a definition from Mr Burke.
Mr Burke's letter to Mr Seely, secretary of the Irish Cable Operators Association, on May 28, 1990, which has not been published, stated:
"Dear Mr Seely, I wish to refer to my meeting with you and your colleagues some weeks ago regarding the concerns of Cable and MMDS operators in relation to illegal television retransmission systems.
"I wish to reaffirm my stated position that cable and MMDS are the only legally authorised means of providing multi-channel television choice to the public. Other systems, operating in parts of the country are doing so in breach of the Wireless Telegraphy Acts 1926-1988.
"As soon as the alternative MMDS service, which will provide multi-channel choice for the general public, is available it will be my intention to bring the full rigours of the law to bear on the illegal operations and to ensure that they are put off, and remain off, the air.
I trust that the foregoing provides any reassurance you and your colleagues may need in this matter. Yours sincerely, Ray Burke."
Mr Hayes was not seeking just a confirmation of the assurances given to Mr Seely when he approached Mr Burke a short time later. He was looking for much more - as can be seen from the document published in The Irish Times last weekend.
Mr Eugene Fanning, solicitor in Arthur Cox and Co, was asked by Independent Newspapers Plc to prepare a submission for seeking extra written reassurances from Mr Burke. His "draft letter", dated September 20th, 1990, sought, among other things, that the Minister would state: "Upon revocation (or expiration) of any licence or alteration or amendment of the terms of any licence which render the operation thereof impracticable or uneconomic, you shall be entitled to reasonable compensation (from the funds received by me from all MMDS project licensees) in respect of your MMDS project equipment and start up costs relating to that licence (if you are unable to recover same within a reasonable time from a successor licensee)".
This was written as a "best response" letter to be considered by Independent Newspapers for presentation to Mr Burke. One of the Independent negotiators discussed its terms with Department officials without formally presenting the letter to them. He was told by the officials that they were not prepared to concede many of the points being sought. He was also told that the Minister would be prepared to write a letter but there was "a difference" about the "reassurances" being sought.
The draft letter was modified after such soundings were taken. The "What was Sought" letter, published in last Saturday's Irish Times, was forwarded to Mr Burke. This was Mr Hayes's submission, dated October 8th, 1990, seeking "absolute reassurances" on a number of points "for planning, banking and investment reasons".
An analysis of Mr Hayes's submission, the official Departmental response and Mr Burke's "letter of comfort" of February 4th, 1991, shows that Mr Burke departed from Civil Service advice on three of the ten "reassurances" sought by Independent Newspapers Plc - on points 2,4 and 6 in the documents.
On Point 1, exclusivity of the franchise, Mr Seamus O Morain of the Radio and Broadcasting Division, said: "It was always our (Irish Times italics) intention that . . ." The use of the word our indicates that the Department and the Minister are at one.
But on Point 2, closure of illegal broadcasters, it is worth noting that the Department distinguishes itself from the Minister when Mr O Morain writes: "The assurance sought seems to be in line with your (Irish Times italics) stated position on the closure of illegal rebroadcasters". Mr Hayes wanted the Minister to ensure that there would be no illegal operations affecting the franchise region "within a maximum period of 6 months after your commencement of retransmission".
Mr O Morain advised: "We cannot give an absolute guarantee that all rebroadcasters in a particular area will be off the air by a particular time. We can only say that our best endeavours will be used to make such situation possible".
Mr Burke's letter stated: "My Department will use its best endeavours to ensure that there are no illegal rebroadcasting systems affecting that region within six months (Irish Times italics) after the commencement of MMDS transmissions".
On Point 4, Mr Hayes sought that there would not be more than one "must carry" service on MMDS. Mr O Morain said "it would be imprudent to give such an undertaking". He suggested that "we undertake to examine the possibility of allocating further channels for MMDS should this situation arise". Mr Burke responded: "On the question of additional `must carry' channels, while I do not see such a requirement arising at this time, should it arise in the future I would seek to link it if at all possible with making additional channel capacity available to MMDS operators".
On Point 6, the renewal of the 10-year licence period at an early stage, Mr Hayes sought that the licensee could, after three years, apply for the renewal of the licence. The Minister would undertake to renew the licence within three months of receiving the application. Mr O Morain said that such an undertaking "does not really make much sense to us". He suggested that the renewal of the 10-year period could be decided well in advance with an indication that it was unlikely that a licensee who performed in a satisfactory way would be changed.
Mr Burke's letter allowed licensees to apply for a renewal of their 10-year licence three years after the MMDS systems were established. He would let the applicant know his decision three years before the expiry of the licence. "I should say that I do not see changes of franchise being made simply for the sake of change. Unless my Department has had cause to express grave dissatisfaction to an MMDS licensee, it will be safe to assume that agreements under regulation 7 will be given to existing licensees", he added.
The examination of the three documents must be viewed also in the context that Mr Burke's letter of comfort to Mr Hayes was hand-marked: "Signed and Despatched from Minister's Office". This was initialled "BMD 4/2". Official sources have confirmed that "BMD" was Mr Bernard McDonagh, then secretary of the Department. It was his way, they say, of ensuring that the letter was a Ministerial decision, not a Departmental one. The sources claim that that coding has never, before or since, been appended to correspondence in the Department.
Continuing developments, meanwhile, give testament to the significance of the written assurances sought and received by Mr Hayes from Mr Burke in the letter of comfort. Princes Holdings Ltd will rely on that letter to defend the exclusivity of their licences in their legal action against the State.