The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE attorney general has stripped the Utilities Regulation and Competition Authority of the responsibility to continue criminal proceedings against ZSR Sports Radio’s operator for allegedly operating without a licence, it was revealed yesterday.

Khalil Parker, attorney for Navette Broadcasting, revealed the Office of the Attorney General has requested the files concerning URCA’s claims against Navette about the latter’s actions sometime between November 2017 and April of this year.

No reason was given in court yesterday for the AG’s Office request of the files from URCA’s legal team, however, Mr Parker said hopefully it is evidence that “reason has prevailed” and that it would be the end of URCA’s attempts at pursuing his clients criminally.

He submitted it was an “abuse” for URCA to be in discussions with the AG’s Office over the eventual discontinuation of those criminal proceedings, but not inform his legal team of those developments until yesterday morning.

The revelations came during a hearing before Justice Ian Winder over Navette’s application to have a rolled-up hearing in response to URCA’s indications that it would continue to pursue criminal proceedings against Navette and its principal, Vann Ferguson.

According to Mr Parker, a rolled-up hearing is one in which both the application for leave to commence judicial review and the “substantive” stages of those proceedings are heard together. Normally, the court has to grant leave for the judicial review to be heard in order for the matter to move on to the substantive stage.

In June, URCA had attempted to issue a criminal summons on Navette to have it answer to allegations that between November 2017 and April of this year, it operated, maintained or provided a carriage service with a licence contrary to Section 16(1) of the Communications Act.

At the time, 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 law.

However, URCA’s attempts at doing so were struck down by Assistant Chief Magistrate Subusola Swain, who found that the document, which was handwritten, was irregularly and improperly constituted.

And the attempts to issue the criminal summons on Navette came notwithstanding a pending ruling by Justice 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.

Yesterday, Mr Parker indicated that it was URCA’s “draconian” and “inappropriate” actions that prompted his client to want to pursue the matter in rolled-up fashion, with the rationale that a rolled-up hearing would be in the “interest of justice” given the circumstances.

Mr Parker claimed that yesterday morning, URCA indicated that the AG’s Office has taken carriage of the matter, notwithstanding an affidavit claiming the regulator was anticipating concluding the criminal proceedings against Mr Ferguson and Navette in the last quarter of this year.

And that revelation, Mr Parker submitted, was a “very central element” to the application before the court.

Mr Parker insisted URCA never disclosed to his legal team that it was being divested of its power to pursue his clients criminally, or that it was being considered. He further stated that if the court is minded to dismiss his application for a rolled-up hearing, in light of URCA’s action, his legal team would ask for costs.

In response, Diane Stuart, URCA’s lead attorney, objected to Mr Parker’s application for a rolled-up hearing, asserting that in doing so, Mr Parker was seeking to “circumvent the court” in making its decision on the application for leave for judicial review, which she said has already been heard.

She further submitted that Mr Parker’s attempt at having the rolled-up hearing, when “one-half” of the proceedings have already been dealt with, is a waste of time and costs. She said rolled-up hearings are only ordered in “very limited” and rare circumstances, and should never be made as a means of avoiding a decision where a claim is arguable.

Alfred Sears, QC, lead attorney for Paramount Systems, the second respondent in the matter, adopted Mrs Stuart’s submissions, and further said having already argued the application for leave to commence a judicial review, it is “curious” that as Justice Winder is about to give a decision on whether to grant leave or not, an application is made to essentially “jump the queue”.

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 law.

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.

Navette then sought relief from the Court of Appeal on the issue, and was only waiting for a date 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, by way of 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.