The Supreme Court has turned down an appeal by Zed FM against a decision by the Broadcasting Commission of Ireland (BCI) to grant Phantom FM an alternative rock radio licence for Dublin.
The court yesterday upheld by a two-to-one majority the High Court's refusal to quash the BCI's awarding of the FM licence to Phantom FM and rejected the appeal by Zed FM, a consortium backed by Bob Geldof, former FM104 managing director Dermot Hanrahan and Niall Stokes of Hot Press.
Phantom FM 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 in November 2004 but was forced to delay its start-up date after legal proceedings challenging that decision were brought by Zed FM.
Zed FM 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 that members of the consortium had wrongly benefited from illegal broadcasting in the past as a pirate station.
Yesterday, when giving the majority Supreme Court decision, Ms Justice Susan Denham said it has been the policy of the BCI to bring pirate radios into the legal fold. That policy was generally known in the industry and the rationale was to encourage the cessation of illegal activity.
The judge said there was no evidence of the BCI favouring Phantom FM and the High Court was entitled to find that Zed FM had not established that the commission gave an advantage to Phantom FM arising out of its illegal broadcasting experience.
In a minority judgment, Mr Justice Nicholas Kearns said the commission had no regard to previous illegal broadcasting and had not taken note of the particularly grave conduct of Phantom FM in reverting to illegal broadcasting on two separate occasions when refused licences.
The decision to grant the licence to Phantom FM was "both unreasonable and irrational", he found.
Phantom FM had obtained a benefit "as a consequence of its own illegality in securing a licence having broadcast illegally for five years and in reverting to illegality when applications for licences were unsuccessful", he said.
