The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The broadcaster at the centre of Sebas Bastian’s radio licence controversy yesterday pledged to “attack” its police-enforced shut down, arguing: “The injustice needs to stop.”

Navette Broadcasting’s principals slammed the seizure of ZSR Sports Radio’s broadcasting equipment, at the behest of communications industry regulators, arguing that their case has yet to receive a full hearing in the Bahamian courts.

Van Ferguson and Cheryl Braynon told Tribune Business that the action, instigated by the Utilities Regulation and Competition Authority (URCA), was “just another rung on the ladder” in the long-running dispute over the 103.5 FM frequency.

Disclosing that the duo remained confident in the merits of their case, Mr Ferguson said there was “no way” URCA’s original decision against them will stand if the matter gets to court.

The move comes as Tribune Radio plans to take legal action against URCA over its actions relating to Mr Bastian’’s new radio station, and its handling of the Navette/103.5 FM frequency dispute.

Tribune Radio yesterday said it has been monitoring the situation for a number of weeks, and is concerned that URCA has exceeded its statutory powers. Callenders & Co, alongside Higgs & Johnson, will be retained to seek leave for a Judicial Review of URCA’s actions over the last several months, which Tribune Radio believes may be “unauthorised, illegal and unlawful”.

But URCA, in a statement confirming it had requested the police raid, served notice of its plans to now prosecute Navette Broadcasting for breaching the Communications Act by operating a radio station without a licence.

And the sector regulator also confirmed it had yesterday advised Paramount Systems, the broadcaster that is majority-owned by one of Mr Bastian’s corporate vehicles, that it can now start using ZSR Sports Radio’s 103.5 FM frequency.

Tribune Business exclusively revealed pre-Easter how the Island Luck chief’s radio station had been been broadcasting without a licence, after the temporary three-month permission granted to it by URCA expired on March 21.

Mr Bastian’s radio joint venture was initially supposed to use the 103.5 FM frequency employed by ZSR Sports Radio, a station that was established by Olympic triple jump medallist, Frank Rutherford, and late sports broadcaster, Phil Smith.

Mr Rutherford and Mr Smith’s widow are Mr Bastian’s minority partners in Paramount Systems, but they - and the 103.5 FM frequency - subsequently became embroiled in the legal challenge mounted by Navette Broadcasting.

The latter, which operated ZSR Sports Radio, has consistently opposed the station’s majority takeover by Mr Bastian on the basis that itself - not Mr Rutherford and the late Mr Smith - is the true holder of the 103.5 FM licence.

With Navette continuing to use that frequency despite URCA’s October 26, 2017, “cease and desist” warning, Paramount has been broadcasting on 105.3 FM while it waits for the regulatory dispute to be resolved.

Stephen Bereaux, URCA’s chief executive, indicated in a recent Tribune Business interview that the regulator planned to deal with the matter once and for all notwithstanding Navette Broadcasting’s ongoing legal challenge.

The regulator appears to have made good on its word, although Mr Ferguson yesterday complained that the police officers involved in Navette’s shut-down failed to produce the warrant showing on what basis - and on whose authority - they were acting.

Recounting how his company was taken ‘off air’, he told Tribune Business: “It had just left the studio around 1.30pm, and at about 2pm I got a call that there were a ton of police at the station.” Mr Ferguson said he called his attorney, Maria Daxon, as he “had no idea what this was about, although I figured it was not good”. The Navette principal said the police had left his radio studio by the time he returned, so he presented himself at the Wulff Road Police Station.

The officers involved eventually arrived, demanding to know where Navette’s broadcasting equipment and tower site were located. Told by his attorney not to answer, Mr Ferguson said of the officer’s response: “He said they had a warrant to take away our equipment. He refused to show it to us, so we could not see who signed it. He threatened me with arrest; I don’t know what the grounds were.”

Mr Ferguson said ZSR Sports Radio subsequently “went off air” early yesterday afternoon, as the police found its broadcast location and seized all computers and other relevant equipment. URCA later confirmed that, with the police’s assistance, it had “successfully executed a search and seizure warrant at the transmitter site”.

The regulator added that its action was designed to halt Navette’s operation of a radio station without a licence, accusing the company of ignoring the October 26, 2017, warning “to cease an and desist its unlawful activity”.

URCA added that its move came after Navette’s appeal against its original June 15, 2017, decision - finding that Mr Rutherford and the late Mr Smith were the true holders of the 103.5 FM licence - was rejected by both the Supreme Court and Utilities Appeal Tribunal (UAT).

However, both judicial forums declined to hear the matter on jurisdictional grounds. The Supreme Court ruled that it should first be heard by the UAT, but the latter than decided it must first go to arbitration.

This means that the merits of Navette’s case have yet to be heard and determined. The broadcaster has since been seeking to obtain dates for hearings at the Court of Appeal and Supreme Court to challenge the earlier verdicts, but without success.

While URCA was free to take yesterday’s action, given that Navette never obtained an injunction or other legal mechanism to block it, the regulator’s swift move - given that legal processes are ongoing, and that the substantive case has not been aired - and use of police officers will likely be of interest to observers.

Mr Ferguson said URCA’s actions suggested it had no interest in a hearing on the merits of Navette’s case, arguing the regulator did not want to admit its initial determination may have been wrong.

“Today just seems to be another application of their machinery going into play to cover all their [URCA’s] previous errors,” he told Tribune Business. “From the pressure the media was putting on them over Sebas’s licence, something had to be done. They’re trying to save face.”

URCA’s June 15 decision found that Navette only operated ZSR Sports Radio on Messrs Rutherford and Smith’s behalf, with the duo being the actual licensees.

But Navette is countering that URCA ignored the fact that the licence could not have existed without it following passage of the 2009 Communications Act, which required all broadcast licences to be held by incorporated companies. ZSR’s licence, issued pre-2009, was in the names of Messrs Rutherford and Smith and thus non-compliant with the new Act.

This non-compliance was even admitted by URCA, which ruled that it made the application for the licence’s takeover by Mr Bastian “ineffectual”. The regulator’s solution, though, was to PERMIT the takeover because this would bring ZSR’s licence into compliance with the law.

Ms Daxon yesterday argued that Navette and its principals were never given due process during URCA’s initial deliberations and eventual findings. Mr Ferguson said they only received a letter from URCA in April 2017, which informed them of the 103.5 ‘change of control’ application but provided no other details.

The letter requested Navette’s views, which were provided, but the broadcaster allegedly only learned of URCA’s June 15 decision in August 2017 - two months later. Ms Daxon argued that her clients were never permitted an opportunity to respond to the verdict.

“We’ve been run through the mill in the last six months of 2017 going into 2018,” Mr Ferguson told Tribune Business of Navette’s battles with URCA. “This is just another rung on the ladder.

“This is very demoralising, but because we feel so right we are motivated to continue because, at the end of the day, people will be surprised at how right we are and how wrong they [URCA] are.”

Mr Ferguson argued that URCA seemed determined to find a frequency for Mr Bastian and Paramount without breaking its self-imposed moratorium on issuing new radio licences, and Navette happened to be “the weakest denominator” in the industry.

“They said the licence was void,” he recalled of URCA’s June 15 decision. “How can they give it to Sebas if that’s so? We’ve never had any issue with URCA until Sebas wanted a radio licence. Sebas wanted one so the weakest denominator had to go.”

Despite paying the previous eight years, Mr Ferguson said URCA had rejected his annual licence fee payment for 2018. “The attorneys are going to attack this, and get us into court,” he told Tribune Business.

“They’ve looked at June 15 and seen a lot of areas to attack. I have a lot of faith in what I’ve seen and heard, and the justice system. This will come out in our favour at the end of the day.

“There’s no way, if this gets to be heard, they [the courts] can agree with how this decision was done on June 15. No way. It cannot stand. For us, this is less about Sebas and more about how URCA is affecting us.”

Mr Ferguson said the decision to give Paramount temporary use of the 105.3 FM frequency had caused “confusion” among the radio listening public, given that the digits were the same as ZSR’s but just ordered differently.

He added that URCA’s ruling, and the ongoing dispute, had caused an “income squeeze” that had cut Navette’s once 10-14 staff to just himself and Ms Braynon. “You can’t run a business on and off. It killed us,” Mr Ferguson said. “You can’t convince anyone to do business with you if you don’t know if you’re on air or not.”

Ms Daxon said she had asked Carl Bethel, QC, the attorney general, who has responsibility for relations with URCA, and K P Turnquest, Deputy Prime Minister, who oversees communications sector policy, to intervene on her clients’ behalf.

“Let everything be until the case has finished. Let the court decide who is the owner of the licence,” she told Tribune Business. “Injustice in this country needs to stop, and everyone needs to have their day in court before the Government agencies do some stuff that damages the poor man’s reputation and business.

“This needs to stop, and things must be put in order. The Government and its agencies are not above the law. They should not be allowed to do as they please. The small man gets killed in this country, but it’s the people’s time.”

Mr Bereaux was yesterday said to be off-island when Tribune Business attempted to reach him. This newspaper was referred to Clara Taylor-Bell, URCA’s in-house counsel, who in turn put it on to URCA’s spokesperson who issued the release last night.