The new Dublin rock station, Phantom FM, effectively "bullied" its way into getting a licence after years of illegal broadcasting, it was claimed before the Supreme Court yesterday.
John Gordon SC, for Zed FM, a consortium backed by artist and campaigner Bob Geldof and Niall Stokes of Hot Press, was making closing submissions in an appeal by Zed against the High Court's upholding of a decision of the Broadcasting Commission of Ireland (BCI) of November 2004 awarding the FM licence to Dublin Rock, trading as Phantom FM.
The appeal hearing concluded yesterday and Ms Justice Susan Denham, presiding over the three-judge court, said it would reserve judgment.
Phantom is backed by a wide range of individuals and companies, including U2 manager Paul McGuinness's Principle Management and promoter Denis Desmond's Gaiety Investments. The station was awarded an FM licence by the BCI on November 8th, 2004, but was forced to delay its start-up date after legal proceedings challenging that decision were brought by Zed FM.
Zed challenged the granting of the licence to Phantom FM on a number of grounds, including a claim that the BCI was unfairly biased towards Phantom FM and and that members of the consortium had wrongly benefited from illegal broadcasting in the past as a pirate station.
When dismissing the Zed challenge last November, the High Court found the involvement in illegal broadcasting of some individuals with Dublin Rock was known to the BCI and that those persons had ceased their illegal broadcasting prior to the licence application being made.
The High Court also held that it was for the commission, not the courts, to consider what weight would attach to the illegal broadcasting matter when the commission was considering the character of Phantom. Zed FM had "not established in any way" that the BCI gave an advantage to Phantom arising out of its illegal broadcasting experience, it ruled.
Closing Zed FM's appeal yesterday, Mr Gordon said Phantom's entire licence application was grounded on seven years of operation, largely as an illegal broadcaster. His side could see no evidence that the BCI had asked Phantom to break down its experience into the period when it was temporarily licensed and when it was an illegal operator. The High Court was told the BCI had not considered the illegal broadcasting history of Phantom.
In granting Phantom the licence, the BCI had, inadvertently, he was sure, drawn up a charter for illegal broadcasting, counsel submitted. The staff who run the new station are those who repeatedly broke the law, apparently with impunity, until they eventually got their way, he argued. It was his case they effectively "bullied their way" into getting the licence.
Earlier, opposing the appeal, Michael Cush SC, for the BCI, said the debate in the High Court case had centred on what was the correct definition of "character" in the context of a licence application. Zed was now advancing a case that relevant considerations were not taken into account, but that case had not been made in the High Court.
The BCI, Mr Cush argued, had not misdirected itself in relation to the matter of "character" when considering the Phantom application. The BCI knew about the involvement of some individuals in Dublin Rock with illegal broadcasting and there was uncontradicted evidence they had discussed the piracy issue generally, counsel said.
The High Court took the view it was not for the court to assign weight to this issue and also found no evidence of bias or prejudgment on the part of the BCI.