The Tribune

THE People's Radio Station, 100JAMZ, has initiated legal action against the Broadcast industry's watchdog - URCA - for approving the takeover of ZSR Sports Radio 103.5FM on the grounds that the regulators' legal interpretation of the grant of the Bahamas government's individual Broadcast License approval was an unauthorised, illegal and unlawful abuse of power.

In an affidavit filed by Fred Smith, QC, of Callenders & Co, in support of Tribune Radio's application for Judicial Review, The People's Radio Station also charges that the Utilities Regulation and Competition "decision" (published on February 2, 2018) has further disrupted an "over saturated" market - 47 Broadcast licences - by permitting Paramount Systems to use the 105.3FM frequency - breaching its own moratorium and materially contradicting its earlier pronouncements that it laments "....there is also no capacity for additional FM broadcasters in New Providence consequential to FM spectrum exhaustion". It is claimed that the decision was made to ease the radio delay hardship of Mr Sabas Bastian at the expense of other licence holders.

Tracing the history of the nation's first private radio station, Tribune Radio founder Robert Dupuch Carron said many broadcasters have now lost confidence in URCA and question what has prevented the Attorney General and Deputy Prime Minister responsible for oversight of the Electronic Communications Sector policy from exercising their oversight obligations.

As the pioneer of FM radio broadcasting in The Bahamas, the applicant is affected by any decision of URCA that has the effect of licensing a new entrant into an already overcrowded radio broadcasting market.

In explaining URCA's decision to reject what the acting director of electronic communications claims was an application for a change in control of a licensee submitted by Brickell Management Group on behalf of Newman Networks Ltd and Messrs Frank Rutherford on the grounds it was "ineffectual" and ruling that URCA considered the grant of the Bahamas Government Individual Broadcast License Approval(s) "contrary to the Communications Act, 2009".

Yet, URCA "approved" the takeover of radio station 103.5FM by yet another company, using the same current Individual Spectrum Licence (ISL) issued by URCA in 2010 to "Messrs Frank Rutherford (original licensee) and Philip Smith (deceased) for Nevette Broadcasting & Entertainment Co Ltd" concluding that it was "defective and void". It claimed that the "appropriate regulatory measure to remedy this matter was to amend the existing licence and the reissuance (sic) of the same ("defective and void") document to Paramount.

"It is beyond the realm of ridiculousness," said Mr Carron, "to accept the logic that the acting director of electronic communications could reissue the same licence to Paramount… having just ruled no more than a few sentences earlier that the said Individual Spectrum Licence (ISL) was "defective and void" meaning it does not exist, was abolished, nullified, useless, revoked, empty, invalid, without force; or, "as if it had never been".

The radio broadcasting market in its present form in The Bahamas, Mr Carron said, is unsustainable. "URCA," he said, "should be taking steps to reduce the number of licence holders in order to reduce the financial risk and chaos by its decision to issue 47 radio licences for a population of 377,000. Compare this to New York City, with a population of over 16 million with only 42 radio licences".

"Let's not forget that URCA proudly took full responsibility for issuing broadcast licences like confetti; lamenting the fact in its official pronouncement in 2015 that it could not issue any other frequencies because '...there is also no capacity for additional FM broadcasters in New Providence consequential to FM spectrum exhaustion,'" Mr Carron recalled.

"Unless the regulator admits it had an epiphany before granting approval for 'Paramount' to use a completely new interim frequency of 105.3FM - instead of 103.5FM - it would be hard-pressed to provide any explanation for its contradiction of the 'laws of physics' and URCA's official pronouncement in the 2015 consultation document," Mr Carron said.

"So why," he asked, "hasn't URCA approved 47 mobile licences or 47 power generation (BEC) licences? Why hasn't the Government issued 47 number house licences, 47 casino licences, 47 airport concession licences, 47 cable licences, 47 national airline licences or an unlimited number of taxi, limo or bus transfer plates for markets whose revenue ranges from $500m to $74m, while the revenue of our tiny FM broadcasting sector is far below that?"

And to add insult to injury, he claimed that URCA is suggesting that it can force "licencees" to pay for URCA's spectrum spacing mismanagement in the award of radio spectrum "licences" by "forcibly removing incumbent broadcasters from their assigned frequencies (within 90 days), reducing their transmitting power by 80%" to make room for new entrants.

Tribune Business revealed on March 29 that URCA had allowed Paramount to broadcast for a week without a licence, as its three-month temporary permission had expired on March 21. As a result, Tribune Radio's Judicial Review is also challenging URCA's failure "to enforce the law".

URCA subsequently used the police to seize Navette's broadcasting equipment and take if off-air, paving the way for Paramount to take over the 103.5FM frequency.