1. The
plaintiffs are the holders of licences granted under the Broadcasting and
Wireless Telegraphy Acts. The first plaintiff holds a licence for
retransmission in cells 20 and 21, in the national grid, which covers parts of
Tipperary and Kilkenny, using the MMDS system.
2. The
second plaintiff holds a licence for a Wire Broadcast Relay Station, serving
Clonmel. The plaintiffs claim they are exclusive licences. Both companies are
owned by Mr. and Mrs. Cranwell solely, who are also the directors. Under the
Wireless Telegraphy Act, 1926 (the 1926 Act) Section 3 contains a prohibition
against having any apparatus for wireless telegraphy unless authorised by a
licence, granted under the Act. Section 5 empowers the Minister to grant a
licence for such period subject to such conditions and restrictions as shall be
prescribed by regulations made under the Act. The 1926 Act was amended by the
Broadcasting and Wireless Telegraphy Act, 1988 (the 1988 Act). Apparatus for
wireless telegraphy was redefined by Section 2. Section 3 provided that a
broadcast should not be made, unless in accordance with a licence issued by the
Minister. It makes unauthorised broadcasting an offence. The penalties for
summary convictions are a fine not exceeding a thousand pounds and imprisonment
not exceeding three months. On indictment a fine of £20,000 and two years
imprisonment are the maximum penalties.
3. The
plaintiffs have expended £2.8m by way of outlay to provide the television
service for the MMDS service and £1.7m for the cable service. They pay an
annual rental to the Minister and royalties to the copyright holders. The
plaintiffs are the only licence holders in their respective areas. They claim
the licence gives them an exclusive right to provide T.V. relay services and
that the exclusivity is necessary to earn a return on their large scale capital
investments.
4. The
first defendant is carrying on a business of retransmission of T.V. signals.
The method used is cheaper to operate than the MMDS system, required by the
Minister for the plaintiffs. The first defendant does not hold any licence.
The second defendant is its managing director. The receiver/transmitter used
is in the Comeragh Mountains and covers an area comprised in the plaintiffs'
licences.
5. The
plaintiffs claim that no planning permission was obtained for the erection of
the receiver/transmitter. The plaintiffs' solicitor wrote to Waterford County
Council on 10th September, 9th October and 19th December, 1996, without
result. Mr. Cranwell, the managing director of the plaintiffs, avers that as a
result of the defendants' receiver/transmitter, it is possible for members of
the public in the area of South Tipperary to receive multi channel T.V. by
erecting a UHF aerial at the cost of £20 and without any other financial
outlay or rental. This interferes with the revenue generating monopoly of the
plaintiffs. The plaintiffs claim the defendants are acting unlawfully and
interfering with the trade and business of the plaintiffs companies and their
constitutional rights to property. Their actions interfere with the deponent,
Mr. Cranwell's, constitutional right to earn a living.
6. The
plaintiffs claim the remedies provided by criminal law are inadequate. No
proceedings were instituted against the defendants despite notifying the
Minister for Communications. It was stated, on the Minister's behalf, by
letter dated 30th January, 1997, that the Minister had decided to await the
report of independent consultants, before considering what action to take with
regard to the unlicensed operations of T.V. retransmission systems.
7. The
plaintiffs claim damages are an inadequate remedy as they have lost potential
subscribers rather than actual subscribers. This is impossible to estimate.
8. The
defendants do not deny that the first defendant is broadcasting without a
licence. By way of explanation the second defendant recounts the history of
broadcasting in the South East. He says in 1992 a national deflector
organisation was formed, the National Community T.V. Association, of which the
first defendant is a member. Its purpose is to persuade the Minister to
licence deflector systems.
9. The
second defendant refers to the judgment of Mr. Justice Keane in November 1995 in
Carragaline
Community T.V. Broadcasting Company Limited and Another -v- The Minister for
Transport Energy and Communications
in
which a decision of the Minister not to grant a licence was challenged. It was
held that an exclusive licence granted to Cork Communication Limited did not
preclude the Minister from considering the Carragaline application for a
licence and that he had to do so fairly and impartially.
10. The
second defendant refers to the delay by the Minister in dealing with the
matter. The first defendant formally applied to the Minister for a licence in
respect of Mid-Waterford, South Tipperary and South Kilkenny, on the 13th
November, 1996. Mr. Kirwan, the second defendant, asks that the first named
defendant be permitted to continue operations until the Minister determines the
licence application. He says if the order is granted, the first defendant is
unlikely to remain in existence. Community representatives will dwindle,
subscriptions will dry up, it will be difficult to maintain equipment and
impossible to start again. But there is no evidence of any charge made by the
first defendant.
11. The
plaintiffs claim they are entitled under the Local Government (Planning and
Development) Act, 1976, Section 27 to an Injunction in that the transmitter is
an unauthorised development. This is averred to at paragraph 16 of the
plaintiffs Grounding Affidavit and is not contested. However, the defendants
say that if this argument commends itself to the Court, they will give an
undertaking to apply for planning permission and they ask for this relief to be
adjourned.
12. The
plaintiffs claim they are the only persons entitled to broadcast in the area of
cells 20 and 21 and they have invested millions of pounds and the defendants
are transmitting illegally.
13. The
defendants claim the plaintiffs have no locus standi because they cannot bring
a common law action in respect of a breach of duty imposed by statute, and
where criminal proceedings are provided for, there is a strong implication no
civil action for breach of duty will lie. The plaintiffs claim they do have
locus standi because they have a private right, given by statute and therefore
they are within the class of persons intended to be protected. The Statute was
not just intended to protect the public as a whole. And they also claim that
it is relevant to consider the adequacy of the criminal deterrent against the
breach of statutory duty.
14. In
relation to the constitution, the plaintiffs claim the right to earn a
livelihood has been interfered with by the unlawful activity of the defendants.
The defendants reply to that is that being corporate bodies they have no
constitutional rights.
15. With
regard to locus standi, I accept the plaintiffs' argument that the 1927 and the
1988 Acts confer rights on individual licence holders, as well as protecting
the public. The adequacy of the criminal sanction imposed by law cannot just
be judged by the length of the possible sentence or the amount of the possible
fine, but also by the absence of prosecutions. There may well be reasons no
prosecutions have been brought to enforce the law. That is the matter for the
executive authority. But if some person's right under a statute is being
eroded by unchecked illegal activity, they are entitled to come into Court and
say the criminal sanction is not just inadequate but de facto absent (see
Parson
-v- Kavanagh
1990 ILRM 560 and
O'Connor
-v- Williams
1996 2 ILRM 382).
16. So,
on the question of locus standi, I am satisfied the plaintiffs have established
a prima facie case. On the question of interference with the constitutional
right to earn a living there is an issue to be tried between the view expressed
by me in
PMPA
-v- The Attorney General
1983 I.R. 339 and the contrary view expressed by Mr. Justice Keane in
Iarnrod
Eireann -v- Ireland
1995 2 ILRM 161.
17. Since
there is a fair issue to be tried, I have to consider whether damages are an
adequate remedy and where the balance of convenience lies.
18. Whether
I consider damages as part of the balance of convenience or not it is clear
they are not an adequate remedy. The defendants admit they are not in a
position to pay damages. But quite apart from the defendants ability to pay,
the plaintiffs point out that they would find it extremely difficult to
quantify damages because the damages is loss of potential customers. So I
accept damages are not an adequate remedy.
19. In
considering the balance of convenience the plaintiffs have been in business
since October 1989 for the MMDS system and since August 1985 for the Cabling in
Clonmel. They have expended huge sums of money. They are liable to pay and do
pay royalties to the copyright holder and an annual fee to the Minister.
20. As
against that, the defendants erected a mast last June. No cost is given, but
photographs give some idea of its size. They only applied for a licence last
November. There is no attempt to quantify any monetary loss. And the
statement that there is no annual fee is not contradicted. There is no attempt
to say why the maintenance of the transmitter cannot be continued. Therefore,
it seems to me, the balance of the convenience lies with the plaintiffs.
21. With
regard to the Planning Acts, the plaintiffs are entitled to bring the
application under Section 27 of the 1976 Act to restrain unauthorised use. And
since I have decided to grant an Interlocutory Injunction, the plaintiffs are
also entitled to an Injunction under Section 27 of the Planning Act. The
discretion to be exercised under Section 27 is covered by the discretion
exercised in granting the Interlocutory Injunction.