WHAT DID THE COURT OF APPEAL ORDER?

Dec 20, 2012 Features / Columnists, Peeping Tom

It came as something of a surprise to have read the claim that the Court of Appeal awarded a radio license to Vieira Communications Limited.
The media reports on that decision were quite adamant that the Court of Appeal declined to order the grant of the radio license. The reports indicated that while VCT had asked the Court to order the NFMU to issue it with a radio license forthwith, the Court reasoned that there were technicalities involving such decision, noting that it (the Court) lacked the expertise to make such an evaluation.
It was therefore something of a shock to have read the claim that the Court of Appeal awarded a radio license to the appellant. Perhaps, it is time for the record to be clarified. What did the Court really order?
That decision of course was not a landmark decision. It merely followed the precedent set in the historic ruling by Justice Ian Chang who had earlier ordered that the applications of television licenses be expeditiously considered, after having conceded that no one has an absolute right to a license.
This ruling that no one had an absolute right to a license was a principle that was observed by the Privy Council in two rulings dealing with freedom of expression, one in The Observer Case and the other in a case appealing a decision of the Court of Appeal in Trinidad and Tobago.
Commercial law does allow for persons to sell their interests in property. However one cannot sell what one does not have and therefore it is hard to see how another company could have acquired the interest to a license when no license was ever issued. However, the sale may have included a clause dealing with prospective interests.
The claim therefore by one of the companies that was licensed just before the former President demitted office that in acquiring VCT it had bought prospective rights to that company’s radio license, needs closer examination.
While theoretically someone can buy rights and interests, including prospective rights and interests, when it comes to the grant of a radio license, it would seem strange that the licensing authority would grant a company under new ownership a license based on the application of the previous owner.
Surely, if the principle is that no one has an absolute right to a license, the change of ownership ought to be a material consideration in the grant of a license, more so since there was a previous policy ruling that licenses were not transferable.
It therefore needs to be clarified whether the new owners of VCT were issued a licensed based on an application by the previous owner of owners of VCT. The NFMU should clarify to whom it granted the license and whether the licensed specified limitations on others either acquiring or selling rights to this license.
At the time when the grant of the radio license was announced, some ten companies were said to have been selected for the issuance of licenses. But what about those companies that had also applied and not informed about the status of their applications?
Surely, the implication of the decisions in local cases was that all applications should be expeditiously considered. If some were considered and others simply left to languish, then it opens the process to criticisms of arbitrariness and possible legal challenges.
Even though there is now a new broadcasting law and a new authority to consider applications, it is possible for the licenses granted under the old law to be challenged and possibly annulled on the basis that they involved an arbitrary process. But that would have to be established as a question of fact in a court of law.
Now that we have a new Broadcast Law which creates a National Broadcasting Authority, it is incumbent to avoid any controversies as to all outstanding applications, more so since they have asked that the old applicants reapply.
As such the fate of the old applicants is in the hands of the authority. But surely there has to be a better way for licenses to be granted.
Instead of the present system, the authority should determine the number of radio licenses that are desirable and the geographic spread and nature of these licenses and then simply auction off these licenses.
This would remove the allegations of favoritism and cronyism in the grant of licenses and remove also the problems associated with the same of prospective interests in radio licenses.

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WHAT DID THE COURT OF APPEAL ORDER?

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