The news pages and BCI criticism

[agentp]

maybe I'm wrong, but is info critical of the bci censored from the News Pages. There was a story in the tribune last sunday that I wanted to check but there's no sign of it despite the fact that there's a story from the very same edition.

Is this radiowaves policy or just that it's left up to individual spotters to editorialise?

[Liamo]

As one of the reasonably-regular contributors, I'd hazard a guess that it's just because none of us saw it; there are plenty of posts here critical of some of the decisions by the BCI, so that's not an issue.

If you have the facilities, scan the Tribune article and send it to news@radiowaves.fm so that we can all see the article.

[DeargDoom]

Our glorious webmaster and keeper of the free radio flame that runs the place probably didn't see it. There is a contact number available on the website for everyone to send in news y'know ..

[agentp]

of Fintan O'Toole's (c & p'd from Ireland.com) column criticising the BCI. Am I wrong to get paranoid - probably, but maybe someone can put this on the news pages then!

Regulator that likes to say 'yes'

What, apart from the Government itself, is the most powerful public body in Ireland? Arguably at least, it is the Broadcasting Commission of Ireland. It licenses 54 independent radio and TV services. Its decisions are relatively unaccountable, writes Fintan O'Toole.

Both the Oireachtas Joint Committee on Broadcasting and an independent report for the Department of Communications have in recent years expressed concerns about the transparency of its decision-making processes.

Those decisions, moreover, are subject to no appeal except to the courts, and they, in turn have taken the view that so long as the BCI stays within the law and acts in good faith, its decisions are its own business. The BCI is likely to get even more powerful: Government policy is to establish a single Broadcasting Authority of Ireland, which would effectively give a super-sized BCI control over RTÉ as well.

The BCI is run by decent, public-spirited people who make decisions in good faith. It is, however, shaped by a Government-led belief that it should take, to quote the hideous jargon, a "facilitory approach . . . leading to a light touch, broad principled operation".

It is expected, in plainer English, to be nice to the companies it regulates. It is expected to fulfil two potentially contradictory functions: to regulate the broadcasting industry on the one hand and to promote it on the other. That the helpfulness can get in the way of the regulation is clear from a case that is currently before the Supreme Court in which Zed FM, a consortium which failed in a bid for an alternative rock radio licence, is challenging the awarding of that licence to Phantom FM.

At one level, the outcome of this case (which the High Court has previously decided in favour of the BCI on the grounds that it acted in good faith) is of relatively little concern. Two groups of wealthy people are fighting for control of a potentially lucrative asset - who cares? But leaving aside all the rival claims, what is of real public interest is the BCI's own account of the award of the licence and the way it illustrates what a "light touch" means in practice.

In this case, it has meant a willingness to forgive and forget a history of defying regulation.

Phantom FM had functioned as a pirate radio station for five years before it applied for the alternative rock licence in 2003. Far from being a disadvantage to its application, however, this seems to have been a help. The BCI has stated that its policy is to allow pirates to apply for licences so as to "encourage the cessation of illegal activity and to encourage people into the statutory regime". The implication seems to be that if you flout the law successfully, the BCI acquires an interest in encouraging you to go legit by granting you a licence.

Phantom had previously tested the BCI's patience by twice going back on air as a pirate after it had failed to secure a licence, but the BCI proved its patience to be almost infinite, and allowed it to keep applying. In its application for the licence under dispute, moreover, Phantom put forward its illegal activities as a big argument in its favour, claiming long experience and brand recognition.

When the new licence came up, Phantom went off air again. The BCI, however, allowed the station back on air by means of so-called Special Event licences. These are normally granted in relation to short-term events like festivals - Phantom was given a licence without specifying any such event. The law is quite specific in stating that the recipient of these licences can broadcast for "no more than 30 days in any given 12-month period".

In fact, Phantom got licences for 60 days within a 12-month period. The law was circumvented by applying for the licences under the names of two different companies. The BCI, in the words of Mr Justice O'Sullivan's High Court ruling, was "aware that in effect the same people were getting the benefit of two licences and that this was contrary to the spirit if not the letter of the (Broadcasting) Act". Phantom was indulged even further. A station operating under a Special Events licence cannot accept ads - Phantom did so.

Phantom was supposed to submit sponsorship messages to the BCI for approval. In one four-day period monitored by the BCI, Phantom carried messages from five sponsors, none of which had been submitted for approval. The station was supposed to have libel insurance in order to indemnify the BCI. It actually broadcast for a period without libel insurance, and when it got the insurance, it covered only one of the two companies that held the licences.

This is what a "light touch" actually means: you can get a licence even if you've flouted the law by broadcasting illegally and even if you have a record of being rather less than punctilious about previous licences. If this is what happens before you get your licence, you might reasonably assume that the BCI will not be too hard on you after you've got it. Is it any wonder that the companies it supposedly rules have so little fear of the BCI, the regulator that likes to say "yes".

© The Irish Times

[Liamo]

Worth the read, alright, agentp....thanks for doing the typing.

I'd guess that Ger Madden, Niall Claffey and Radio Kilkenny would be less convinced about the BCI's inability to say no, though......

So, contrary to the article, it would seem that it's not a general policy to ignore flouting of the rules and regulations, which would therefore imply that it's an even more intangible subjective policy, possibly depending on who's doing the flouting and where :eek:

[agentp]

that's even worse then Liamo isn't it?

I can't claim to have done the typing! I have an Ireland.com membership so it was no trouble.

[021]

In fact, Phantom got licences for 60 days within a 12-month period. The law was circumvented by applying for the licences under the names of two different companies. The BCI, in the words of Mr Justice O'Sullivan's High Court ruling, was "aware that in effect the same people were getting the benefit of two licences and that this was contrary to the spirit if not the letter of the (Broadcasting) Act".

Phantom were merely doing what was allowed happen before by the BCI/IRTC - The first time it happened: remember the Travel information station in Dublin a few years ago, Travel FM (which later applied for a full time licence), they applied and got different temporary licences by using different entities in applications within the same 12 month period.

One could be forgiven for thinking that someone in Zed-FM has influence with person(s) in the Sunday Tribune as its not the first rather anti-Phantom licence piece to appear in it?

[agentp]

If you're not allowed broadcast for more then 30 days in any 12 months, the BCI shouldn't have been stupid enough to let Phantom do so. I think that's the issue there. It doesn't really matter if it WAS done before does it?
It's like there's some idea that there's anyone applying for a temporary license has a divine right to one as long as they're of a different legal entity.

I remembered this story on the October newspages

**** from Radiowaves news pages october ******
DUBLIN: Splash FM shut by Gardai
Pirate radio station Splash FM has been shut down by the Gardai. The station, based in Finglas in north Dublin, was broadcasting on 93.8MHz FM and had earned a reputation for broadcasting material which caused offence to anybody who may have stumbled upon their transmissions. Members of Dublin's unlicensed community had expressed concern that the material being broadcast by Splash FM would be just the ammunition needed for the government regulatory body ComReg to launch another offensive against unlicensed stations which have established a pattern of coming on air at night and weekends only in hopes of thwarting any action against them.
According to the Gardai, Splash FM was operated by members of the criminal fraternity, in particular an armed robber and drug dealer who is known as Mr Fatpuss. The station offered on-air tips on how to steal cars and also featured live broadcasts of joyriding gangs in action. Splash FM have also been accused of broadcasting racially offensive material..

****

the logic of this, is that had these guys been a legal entity they'd have got a temporary license as long as they applied.

Not only that, but if what Gene Kerrigan said in the Sunday Indo (about monitoring being done only after the second license had been granted) then as long as the went from Fatpuss ltd t/a Splash FM to PussFat ltd t/a Splash FM then they'd have been granted a second license!

That's pretty appalling isn't it?

Now, it may not be fashionable around here to look in anyway critically at how Phantom FM got a license but I think the above shows the dangers in the BCI acting how they had.

****

Finally, I know this is my fault because my initial query was about the Sunday Tribune, but that's a piece from the Irish Times - Tuesday's in fact.

On another note I think this has probably strayed far enough from the 'site feedback' end of things to move to the main forum.

[FoxyJock]

This (Irish Times) article has had a response from Phantom's Pete Reed:

Will keep this one really brief! Lots of factual inaccuracies in that piece which is a pity and a real surprise.

To fill in some blanks:

1. Article states that "when the new licence came up, Phantom went off the air again". Nope, Phantom closed FM operations on May 28th 2003 almost a year before the licence was advertised on May 5th 2004!

2. Article states that "Special event licences...Phantom was given a licence without specifying any event". Nope, the statuatory provision for temporary sound broadcasting contracts is that they are limited purely by time, and absolutely not by use. In the last year Premier FM (oldies), Choice FM (easy listening), Sunrise FM (Ethnic) and others have used these licences.

3. Article states bafflingly that "A station operating under a Special Events licence cannot accept ads - Phantom did so." Nope again, Phantom did not take advertisements on either temporary licence. Sponsorship is however allowed which includes mentions (pre-recorded or otherwise) of a Sponsors Name, slogans and contact details.

We getting the gist of this now? I will continue..

4. Article states that "Phantom was supposed to submit sponsorship messages to BCI for approval". Nope yet again, there is no requirement at all for sponsorship messages to be submitted to the BCI for approval.

5. Article statest that Phantom FM did not have libel insurance for a period. This insurance indemnifies the BCI against any potential legal actions arising from the broadcasts. "It actually broadcast for a period without libel insurance". Nope, and double nope. Insurance cover was in place for the entire duration of the broadcasts for both temporary contracts.

Somehow I dont reckon we were the "punctilious" ones here!

Regards,


I wonder is that the reason it wasn't reproduced on the newspages?
Actually I know why it wasn't put on the site because I submitted it and received a response from the RW news editor.

Agentp, for such an ardent reader of the newspage it seems strange that you missed this line If you spot newspaper coverage, please let us know or send us a scan to: news@radiowaves.fm
There's also a submit form at the bottom of the page and a call to write to the email address at the top of the page!!!!
Really not that difficult to spot, or understand methinks.
As I said I did your work for you because it it looks like you'd rather come on here and badmouth the site.

[Liamo]

To be fair, agentp, you're not equating like with like.....Splash FM were "broadcasting material which caused offence to anybody who may have stumbled upon their transmissions"; Phantom (and the majority of unlicensed broadcasters) were not.

The piece you quoted also says that "Members of Dublin's unlicensed community had expressed concern that the material being broadcast by Splash FM would be just the ammunition needed for the government regulatory body ComReg to launch another offensive against unlicensed stations"; i.e. most right-thinking people involved in the area were worried that the activities of Splash FM were bringing everyone into disrepute; had Phantom been on the air, they'd probably have been thinking the same.

So when it comes to figuring out a policy, Splash FM is hardly the benchmark ?

But Pete Reed's reply puts a not-insignificant level of scepticism over the article itself; either it wasn't researched that well (a not uncommon occurrence in any newspaper article related to pirates vs legals), or someone has a bias/agenda against Phantom (ditto)*.

Bottom line is that the BCI's policies certainly ain't perfect or consistent, but it also seems like someone's hell bent on muddying the waters and making the public think there's even more problems than there might be.

*The important other factor here - leaving aside the conspiracy theories - is that newspaper companies need to sell newspapers, and if Phantom hadn't gotten the licence we'd probably see articles about how "money talks" and "groundwork done, call in the corporates" or "proven track records of hardworking music enthusiasts mean nothing".....as Freddie so profoundly put it: "Anyway the wind blows......"

[agentp]

there's two things there Liam.

I never said Phantom were broadcasting obscene material. I just pointed out that there seems to be a line eminating from the BCI that they could not refuse Phantom's 2nd temporary license because there was two companies involved in one radio station.

I just pointed out that clearly the BCI always has the capacity to refuse otherwise Splash FM would be capable of getting a license AND if what Kerrigan said (that the monitoring wasn't done by the BCI until the 2nd license was under way) they'd have got another one.

Secondly I'm not saying that Pete's lying or anything but I've seen a couple of temporary contracts and they definitely said something along the lines of
"the station may include sponsored material as the commission shall have approved following notification from the contractor in writing" .

If anything like that's in either of Phantom FM's two contracts then O'Toole's clearly right on that score. In the context of something like this, when there's a he said she said I'd be tempted to believe one of Ireland's most respected journalists rather then someone who's probably not the most impartial witness.

[Liamo]

Splash FM would be capable of getting a license

That's my point......from what I've heard about what this crowd were spewing out, there isn't a hope in hell of them getting a licence of any sort.

Phantom's case is different, because the "problem" is merely whether or not they were previously a pirate or a temp licence; using Splash as an example, where the problem was what they were broadcasting, is a bad idea.

By all means, use another example, but for your own sake don't associate your arguments with Splash!

[agentp]

I could be getting this wrong, because it seems very complicated.
The jist as I understand it (cobbled together from various reports etc) is that
what the BCI said was that they felt they were 'obliged' to give the temporary license(s) to Phantom because the application was from a legal entity (ie a ltd company) - there was nothing to stop Splash FM being a legal entity therefore they would be obliged to give them a license.
Now, you can argue that the BCI don't actually mean that, but then someone's guilty of perjury. I don't think any of us would like to suggest that here.

[Liam Tutty]

Yes, you have slightly misunderstood Agent P. To recieve a licence you MUST be a legal entity. What Phantom did was applied for their second licence under a second legal entity - a different limited company, so the BCI could not turn them down on the grounds of only being allowed have one temporary licence a year, as the application came from a company who were applying for their first licence of the year, if you understand.

Phantom located and utilised a loop-hole. More power to them.

[agentp]

Yeah, but the logic of that is that as long as you're a legal entity you get a license if you apply for one.

[Liamo]

Being a legal entity isn't the ONLY criteria.....you've also got to prove that you can fill a need and are capable of broadcasting (reasonably) professionally.

[Liam Tutty]

Being a legal entity is simply the foundation for the application for a licence - the process is far more complicated than a quick visit to the CRO.

To find out in detail why being a legal entity is not any kind of precursor to recieving a licence you should probably check out sections 5, 6 and 14 of the Radio and Television Act, 1988 and Section 60 of the Broadcasting Act, 2001 which, put simply, set out all the criterea which have to be met before the Commission issue a licence. I think you'll agree that there are a many more stipulations than just registering a limited company.

[021]

another Irish Times headline
"Radio station bullied its way to licence, court told"

Consider the following:
Another losing Dermot Hanrahan consortium also took an unsuccessful legal challenge to the Spin FM licence. Dermot Hanrahan also threatened (but didn't go ahead with) legal action against the then IRTC regarding the Radio Ireland licence after they were allowed to change format and relaunch as Today FM. (Hanrahan had with the Irish Times applied for that national licence).

So, if anything, the BCI were under duress to licence Zed, so as to avoid likely legal challenges - considering their past experience of Dermot Hanrahan?

The whole thing stinks of sour grapes to the highest extreme.
There are, after all, other more lucrative BCI licences on the horizon.
Wouldn't you think Hanrahan and co, after being unsuccessful in this one, would turn their attention to planning for one of these licence applications, rather than this bitter and petty course of action?

[Mike]

Article statest that Phantom FM did not have libel insurance for a period

Surely then that means the article is libelous :nutter: