A decision is expected within three weeks on a High Court challenge to the Independent Radio and Television Commission's decision to award the "youth" radio licence for Dublin to the Spin FM consortium, involving the businessman Mr Denis O'Brien and an accountant, Mr Ossie Kilkenny.
The challenge was taken by one of the unsuccessful licence applicants, Storm FM, a consortium whose members include the night-club operator Mr John Reynolds and the pop group promoter Mr Louis Walsh.
In a three-day hearing before Mr Justice O Caoimh, the Storm FM consortium alleged there was objective bias by one IRTC member, Dr Colum Kenny, towards its application and the licence award should be quashed. The IRTC, Dr Kenny and the Spin FM consortium denied the claim. The hearing concluded yesterday and judgment was reserved.
O Caoimh said he hoped to deliver his decision in three weeks.
In closing submissions, Mr Michael Cush SC, for the IRTC, said it was alleged that Dr Kenny had prejudged the Storm FM licence application in relation to drugs at Dublin night-clubs, including the POD which is operated by Mr Reynolds. The issue of how the licence applicants would deal with substance abuse in their programming was a small issue in the entire consideration of the applications.
He said the evidence did not point to the issue of drugs looming large in Dr Kenny's consideration of the licence application. Dr Kenny had said it was a tiny part of his consideration.
He urged the judge not to take out of context certain remarks of Dr Kenny's set out in a letter to the IRTC chairman, Mr Conor Maguire SC, and in what was described as a self-briefing memorandum compiled by Dr Kenny. He said there were remarks which could make one think there was prejudgment if one took just a snapshot, but when looked at in the overall context there was no prejudgment.
Mr Hugh Mohan SC, for the winning consortium, Spin FM, said if Dr Kenny had prejudged the Storm FM application because of concerns relating to drug use at the POD night-club, then Dr Kenny would not have proceeded to make inquiries of the Garda regarding the drug situation and would not have made further inquiries relating to that part of Storm FM's application dealing with its programming on substance abuse.
Replying, Mr Paul Gardiner, for Storm FM, said the court was compelled to hold that there was a real possibility Dr Kenny was not impartial in his attitude to the Storm FM application.
He said Dr Kenny had written a "poisonous" letter to the IRTC chairman relating to Mr Reynolds and the issue of drugs at the POD without informing Mr Maguire that the Garda had fully endorsed procedures put in place at the POD on curbing drugs.
He said Dr Kenny had "a penchant for not putting people fully in the picture". At the time Dr Kenny wrote of his concerns to Mr Maguire, he was aware the Garda had endorsed procedures at the POD.
