The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Utilities Regulation and Competition Authority’s attempt at issuing a criminal summons on ZSR Sports Radio’s operator for allegedly operating without a licence was struck down by a senior magistrate.

The Tribune understands Deputy Chief Magistrate Subusola Swain dismissed the regulator’s attempt at serving Navette Broadcasting with the summons yesterday morning after finding that the document was irregularly and improperly constituted.

And the summons came notwithstanding a pending ruling by Supreme Court Justice Ian Winder on the substantive issue of whether URCA was right to find that Navette was not the true holder of the 103.5 FM radio licence.

The summons sought to compel Navette and its principal Vann Ferguson to appear at the Magistrate’s Court yesterday to answer to allegations that they, between November 2017 and April of this year, operated, maintained or provided a carriage service with a licence contrary to Section 16(1) of the Communications Act.

URCA further asserted that between those same dates, Navette used communication equipment for the purpose of interfering with wireless telegraphy contrary to Section 33 of the same Act.

The particulars of URCA’s complaint against Navette were handwritten. It was dated June 13, 2018.

On June 15, 2017, URCA found Olympic triple-jump medalist Frank Rutherford and the late sports broadcaster Phil Smith were the true holders of the 103.5 FM licence.

URCA further found that Navette Broadcasting only operated ZSR Sports Radio on Messrs Rutherford’s and Smith’s behalf, with the two men being the actual licensees.

Navette countered by claiming URCA ignored the fact 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.

Navette sought to appeal URCA’s decision, but the attempts were rejected by both the Utilities Appeal Tribunal (UAT) and the Supreme Court.

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

The “arbitration” remark is understood to refer to a clause in the contract between Navette and Messrs Rutherford and Smith about how disputes should be resolved.

Navette then sought relief from the Court of Appeal on the issue, and was only waiting for a date from the Court of Appeal to have its matter heard.

Last month however, the appellate court dismissed Navette’s appeal of URCA’s decision, but only after it was informed that Navette, via a notice of discontinuance filed on April 17, withdrew its own appeal against the regulator’s decision.

The matter then shifted back to the Supreme Court before Justice Winder, who, after hearing submissions from counsel on the issue, reserved his decision on whether or not URCA’s June 2017 decision can be sustained.

Navette’s battle with URCA stems from the former’s opposition of Island Luck chief Sebas Bastian’s radio joint venture, Paramount System’s majority takeover of ZSR Sport’s Radio’s FM licence.

Mr Bastian’s majority-owned Paramount Systems joint venture was supposed to use the 103.5 FM frequency formerly employed by ZSR Sports Radio.

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.

Navette Broadcasting had opposed the station’s majority takeover by Mr Bastian on the basis that it – and not Mr Bastian – is the true holder of the 103.5 licence.