The Supreme Court has upheld a decision of the Irish Radio and Television Commission (IRTC) to award the Dublin "youth" radio licence to Spin FM, a consortium which includes the businessman, Mr Denis O'Brien, and accountant Mr Ossie Kilkenny.
The court yesterday rejected an appeal by Storm FM against a High Court finding that there was no basis for rescinding the IRTC's decision.
Storm FM's membership includes a Dublin nightclub owner, Mr John Reynolds; a pop group promoter, Mr Louis Walsh, and Thomas Crosbie Holdings Ltd, of Cork. Storm alleged there was "objective bias" against it on the part of an IRTC member, Dr Colm Kenny, a Dublin City University lecturer.
Storm had alleged that Dr Kenny had visited the Garda National Drug Squad before the IRTC made its decision and had demonstrated objective bias against it on the grounds of alleged prejudgment by Dr Kenny as to the suitability of the consortium, and particularly its managing director, Mr Reynolds, for the award of the licence. It claimed this was the reason it was not ranked first.
Lawyers for the IRTC rejected the claim that Dr Kenny had prejudged the issue because of his inquiry into drugs in Dublin nightclubs, including the POD (Place of Dance), which is operated by Mr Reynolds.
Giving the Supreme Court's decision, Mr Justice Murray said the matter concerned a radio licence orientated to the 15-34 age group.
It was not contested that drug abuse among young people was, at least sometimes, associated with the entertainment industry, the judge added.
Mr Justice Murray said that once a commission member became aware that the chairman of one of the consortiums applying for a radio licence was the owner of a nightclub about which there were adverse reports concerning abuse of drugs in that club, he was put on legitimate inquiry as to the suitability of the applicant in question.
There was no evidence that Dr Kenny formed any prejudgment of Mr Reynolds at that stage and indeed the evidence went the other way.
It was clear from the evidence that Dr Kenny's visit to the Garda drugs unit was to discuss generally the drugs scene in Dublin.
Dr Kenny learned a number of nightclubs, including the POD, had put in place systems of control concerning the use of drugs which gardai fully endorsed. He was told the gardai did not intend to oppose renewal of the POD licence.
Mr Justice Murray said, however, that Dr Kenny might be considered to have been imprudent in embarking on such inquiries without consulting the commission or at least the chairperson.
Taking Dr Kenny's conduct as a whole, Mr Justice Murray said that the evidence disclosed no more than that he had grounds for making inquiries concerning the so-called "drugs issue" with particular regard to the Storm application.
The IRTC in a statement welcomed the court's decision. Its chief executive, Mr Michael O'Keeffe, said the board was looking forward to fulfilling its plans to give Dubliners greater choice in broadcasting.