The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Utilities Regulation and Competition Authority is planning to liquidate a local broadcast company fighting to prove its rightful claim to the 103.5 FM radio licence, with the company's attorney accusing the regulator of trying to "destroy" his client.

Kahlil Parker said yesterday that not only is URCA seeking to close down Navette Broadcasting, it is doing so "in the face of serious questions to be answered" about its decision to "unilaterally" give his client's radio licence to Olympian Frank Rutherford "without due process of law".

Mr Parker swore to prove to the Court of Appeal that URCA's June 2017 decision was tantamount to an "unlawful taking" of Navette's radio licence, and why the appellate court "cannot turn a blind eye to this type of conduct."

Mr Parker's comments came before the appellate tribunal of Justices Stella Crane-Scott, Roy Jones and Sir Michael Barnett said it would reserve its decision on whether to give Navette more time to appeal Supreme Court Justice Ian Winder's decision not to allow it to appeal URCA's decision.

Navette's legal battles 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 utilised by ZSR Sports Radio.

Mr Rutherford and Mr Smith's widow are Mr Bastian's minority partners in Paramount Systems, but they 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 is the true holder of the 103.5 licence.

In June 2017, URCA had found that Mr Rutherford, the Bahamas' first track and field Olympic medalist, as well as the late sports broadcaster Phil Smith, were the true holders of the 103.5 FM radio licence, and not Navette Broadcasting, which previously operated ZSR Sports Radio via that frequency.

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.

According to Mr Parker, Messrs Rutherford and Smith had a letter of undertaking that stipulated that if they complied with certain conditions the broadcast licence in dispute would be given to them.

When the time came for the issuance of that licence, it was issued to Navette, the licensee, which he said paid the requisite annual dues to URCA for eight plus years before the events in question took place.

Thus, Mr Parker said via its decision, URCA essentially intimated that on the one hand, Navette's licence was void because it was actually given to Messrs Rutherford and Smith, but on the other hand, said it would "vary" the licensee and give it to a "third party" to resolve the issue.

Thus, he said URCA declared Navette's radio licence void, then "went on to give a void licence to somebody else".

Mr Parker submitted that if any variation was to be made, it should have been to remove everyone else's names from the licence and leave it in his client's name, as Navette had paid for the license and who had been the "licensee of record" on URCA's websites for the past eight years.

According to the evidence, Navette applied for leave to commence judicial review proceedings against URCA in November 2017. However, that application was rejected in December of that year by Justice Indra Charles, who ruled that Navette had an alternative remedy in the Utilities Appeal Tribunal (UAT).

The following day, Navette petitioned the UAT on the matter, but that tribunal dismissed its appeal.

Navette then filed a notice of appeal in the appellate court of the UAT's decision on January 19, 2018. Days later on January 29, Navette also filed a notice of appeal against Justice Charles' decision, which was filed both out of time and without leave.

But despite those two live appeals, Navette subsequently filed to commence judicial review proceedings of URCA's decision in the Supreme Court before Justice Winder. Navette eventually withdrew both appeals against the UAT and Justice Charles' decision. Eventually, Justice Winder would end up dismissing Navette's application for judicial review proceedings.

At the time, Justice Winder ruled that a decision in his hearing of a second Navette application for a "rolled-up" hearing would serve no practical purpose or result.

Yesterday, Mr Parker said he filed a notice of appeal against Justice Winder's decision, but he made an "error"; he assumed the judge's decision was a "final judgement" and that he did not need leave to appeal it. However, he said when he was alerted to his mistake, he discontinued that appeal, and requested leave to appeal from Justice Winder, which was ultimately granted.

Thus, Mr Parker submitted that but for his mistake, the appeal would have been filed in time, and that the appellate court should allow the appeal to proceed.

However, URCA's attorney Sean Moree urged the appellate court to exercise caution in determining whether to grant Navette more time to appeal, and said the court should consider Navette's "antecedents", mainly its "continuous refusal" to "abide" by the appeal process set out by statute.

Mr Moree submitted that it would have been more proper to have appealed to the UAT in the first place as opposed to heading straight for the Supreme Court.

"The UAT was always the correct tribunal of first instance," Mr Moree said.

Mr Moree also submitted that on two occasions to date, the Supreme Court did not even deem Navette's action "worthy" enough to grant it leave to commence judicial review proceedings, referring to Justice Charles' and Winder's decisions. Thus, he said Navette's "chances of success" are slim to none.

Nonetheless, Mr Moree said that if Navette's application for more time is granted, and its intended appeal sanctioned, the company would have had a "third bite at the cherry".

Sir Michael questioned if Navette should be "punished" for making a simple "boo-boo" in appealing Justice Winder's decision. However, Mr Moree said he could not agree that Navette's mistake was a mere "boo-boo", but rather a "procedural defect which it ought to have known and should be sanctioned as a result thereof".