RTE has lost the first round in its legal attempt to force a television cable company to broadcast Network 2 in the slot previously allocated to the station.
Yesterday's High Court decision means the new independent television station, tv3, will take over the Network 2 slot from tomorrow in areas serving 65,000 customers of Cable Management Ireland Ltd. However, the new arrangement could last for little more than 48 hours.
Last night tv3 called on the Director of Telecommunication Regulation and the IRTC to ensure that it got "priority carriage" on Cablelink Cable and its MMDS service. It says that Cablelink has refused to carry tv3 on its MMDS service.
Earlier Mr Justice Hugh Geoghegan refused to grant RTE an interim injunction restraining Cable Management Ireland (CMI) from substituting tv3 into the Network 2 slot in its catchment areas. He did grant RTE leave to serve CMI with short notice of its intention to seek an interlocutory injunction in the High Court on Tuesday in an effort to overturn the decision.
Counsel for RTE, Mr John Trainor, said tv3 would go on the air tomorrow in CMI-serviced areas and in the slot previously allocated exclusively to Network 2. He said his clients sought an ex parte injunction restraining CMI from doing this and moving Network 2 to channel 7. Mr Trainor said they were making the application on the grounds that RTE had a legitimate expectation to remain in the slot Network 2 had occupied for years, and on the basis that CMI's move to switch channels was in breach of the Competition Act 1991. He said there was evidence of memos exchanged between CMI and TV3 discussing the possibility of a joint marketing strategy and RTE felt CMI's clear intention was to confer commercial advantage on tv3. This was a distortion of competition, he argued.
Mr Trainor also submitted CMI was the dominant supplier of cable television in the areas it serviced and its decision to switch channel spots was an abuse, under the Competition Act, of that position. Mr Justice Geoghegan said that at a very late stage he had to consider if it was just to grant an interim injunction which would probably have serious practical consequences for the cable company which had already notified many customers of the proposed changes.
He said it would be unfair at an ex parte stage to make decisions without further legal argument from both sides. Network 2 and tv3 were in an equal position and neither had priority. He said they were both television stations which the cable company had, by law, to broadcast.
Mr Justice Geoghegan said while he was doubtful about the matters presented under the Competition Act, there did seem to be a stronger case in the suggestion of a common marketing agreement between CMI and tv3. However, an agreement did not mean infringement of the Competition Act.