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Pulse Abandon Case

Pulse FM have reluctantly abandoned its case seeking a judicial review into the awarding of the youth licence for Dublin. Pulse FM, who lost out to Spin FM, would have been required to lodge £100,000 as security for costs, which Pulse claimed in a statement is “nothing short of a gagging order”.

“It should be a matter of public concern, in particular in the current climate, that a body, all of whose members are appointed by the politicians of the day, can decide who has a right to broadcast in this country without any obligations to state reasons for its decision,” Pulse FM said.

Okay to Spin

Storm FM’s challenge against the IRTC’s award of the youth licence for Dublin to Spin FM has failed. The court has upheld the decision to award to Spin FM and not accepted the claim that there was bias from the IRTC against Storm FM’s John Reynolds due to allegations that his night club “The Pod” was involved in drug dealing.

There has, as of yet, been no frequency allocated to Spin FM according to a spokesperson for the IRTC.

Newspaper: UTV and CML may sue IRTC

Sunday Business Post
UTV and CML may sue IRTC

Sunday Business Post – February 4th 2001

UTV and CML may sue IRTC

Will Goodbody

UTV and County Media Limited (CML) could sue the Independent Radio and Television Commission (IRTC) if the proposed £31.5 million takeover of the Cork-based media group by UTV falls apart, The Sunday Business Post has learnt.

Last week the IRTC said it could not allow the takeover to proceed as it breached the commission’s policy of favouring local ownership. Although UTV and CML are still studying the decision, it is understood that both companies have been advised that if they are forced to call off the deal, they may have grounds to sue the IRTC for damages.

The IRTC suggested that a compromise could be worked out and sent more elaborate details of its decision to CML last Friday. However, an informed source said that if the two companies were not happy with the situation, they would take the matter to the courts in the next few weeks.

“We have indicated a number of quite positive things to them in the letter and we would hope that having reflected on that they would be in a position to reactivate a proposal with us,” said Michael O’Keeffe, chief executive of the IRTC.

Elsewhere, the Storm FM consortium, which lost its Supreme Court appeal against the IRTC decision to award the Dublin city and county youth radio licence to Spin FM, will return to the courts on Thursday to discuss the awarding of costs.

The Supreme Court ruled that IRTC member Dr Colum Kenny had not been biased in his decision regarding the awarding of the youth radio licence to Spin FM.

O’Keeffe said the IRTC would be seeking its costs for both actions which would be about £80,000. If the court finds in favour of the IRTC, the Storm FM consortium, which includes night-club owner John Reynolds, music manager Louis Walsh, designer John Rocha and U2’s The Edge, could face a legal bill in excess of £160,000.

A spokesman for Storm said they were obviously disappointed with the decision but declined to comment further until the consortium had studied the judgement in full.

Fat lady yet to sing in Cork radio decision

Will Goodbody

“Bizarre”, “strange” and “muddled” — just some of the words used by industry watchers to describe last Monday’s decision by the Independent Radio and Television Commission (IRTC) not to approve the proposed £31.5 million takeover by UTV of Cork radio group, County Media Ltd (CML).

The decision seemed even more surprising in the context of an approval from the Minister for Enterprise, Trade and Employment, Mary Harney, for the takeover on Thursday.

But although some in the broadcasting business found the IRTC’s rejection difficult to fathom, it did not come as a complete surprise. IRTC chairman Conor Maguire had previously stated that the sale could breach IRTC guidelines on ownership.

These guidelines say that existing media operators cannot own more than 27 per cent and a single group cannot own more than 46 per cent of any given station. The making of such a statement in public before the commission had formally considered the deal is thought to have aggravated management at UTV, an informed source said.

However, what did come as a surprise to all concerned was the IRTC’s reasoning for rejecting the application. Rather than rejecting it on the basis that UTV, which already broadcasts into Ireland, would contravene IRTC policy by owning 100 per cent of County Media, the 10-member body took another tack.

In a statement, the IRTC said that while it acknowledged the many positive aspects to the proposed involvement of UTV, its policy was “to favour a strong local representation in the ownership structures of local radio services”.

The statement continued: “This local ownership has, in the Commission’s experience, been important to the local character of the service and has been one of the key factors in ensuring the success of local radio.”

Some interpreted the commission’s reliance on this reasoning as an attempt to establish a second argument against the proposed takeover, in the event that the UTV chooses to challenge the decision in the courts. However, in both cases, the IRTC’s argument seems to be weak and, at times, self-contradictory.

To begin with, UTV and CML had argued to the IRTC that sufficient safeguards existed within the contractual arrangements between the radio stations and the IRTC to protect the local ethos of the service.

In addition, The Sunday Business Post has learned that UTV had given an undertaking to the IRTC that there would continue to be considerable local input into the running of the three stations owned by CML through the CML advisory board. UTV recognised that CML was well run and did not wish to meddle with it, an informed source said.

Secondly, while all three of the applicant stations short-listed for the potentially lucrative new radio licence for Cork city and county have some local investors, a closer look at the overall shareholding structure reveals that in each case a large amount of the interest is far from Leeside (see panel).

Under current proposals, a total of 52 per cent of the shares in Magic FM would be held by existing shareholders in Dublin station Lite FM. Forty per cent of the shares in Redhot FM would be controlled by shareholders and senior executives of Dublin’s FM104.

Beat FM, the third applicant, also has a strong Dublin influence in the form of majority shareholder Radio Ireland’s 40.5 per cent holding. Indeed the IRTC’s decision to even short-list the Beat FM application, given that the Radio Ireland stake breaches the ownership guidelines, in itself caused a few eyebrows to be raised.

When questioned by Maguire at the oral presentations of licence applications in Cork last week about why the consortium had made an application which clearly breached the guidelines, Willie O’Reilly of Beat FM replied: “We are asking the IRTC to look at the guidelines because we have always seen them as that, rather than statutory regulations.”

O’Reilly later told The Sunday Business Post: “We feel the guidelines are punitive for our shareholders considering the amount of expertise and the amount of insight and industry knowledge we bring to the grouping. If our proposition is the best proposition for Cork, then we would like to sit down with them and if they want to talk about shareholding, we’ll talk about it.”

However, should the Beat FM application be successful in its current format, the door could be thrown open to a legal challenge from one of the other unsuccessful applicants. A number of the consortia who failed to even get short-listed for oral hearing are believed to be extremely aggrieved that another application which is contrary to IRTC policy made the cut.

Finally, the IRTC’s announcement in December that it had given approval in principle to British television company, Granada Media, taking a 45 per cent share in TV3, casts further shadows on the reasoning behind the UTV decision.

At the time Maguire said Granada had a “wealth of experience and knowledge to bring to the Irish market”. But presumably UTV contends that it could bring similar expertise to the Irish local radio market.

In last week’s statement, the IRTC indicated that it would be reviewing its ownership policy at its next meeting in April. Given that large print-based media organisations, which in some cases are foreign owned, have been allowed buy out Irish local newspapers, and considering the IRTC’s lack of clear policy on the subject of ownership, most industry sources feel a considerable change in policy is long overdue.

Such a change of policy could enable the UTV bid to be reformatted in consultation with the IRTC, retabled and subsequently accepted. It is unclear whether a commitment to change by the IRTC could convince UTV and County Media not to apply for a judicial review and hold out until April. However, one way or the other, industry analysts are agreed that the deal is certainly not yet dead.

The reality is that although local radio reaches a large audience, the industry itself is a small world and for some time the pool of potential experienced and willing investors has been slowly evaporating away, industry sources said.

The time has come, many feel, to allow large players use their money and expertise to develop the local airwaves. Indeed, by including Radio Ireland as a 40.5 per cent shareholder, Beat FM — like Granada and UTV before it — is “putting it up” to the IRTC to let the bigger more experienced players take worthwhile stakes in the market.

It would certainly be ironic if in the same week as the state appointed body won a protracted court challenge to one of its earlier decisions, it had made another decision which led to a similar fate.

On Friday the Supreme Court turned down an appeal by unsuccessful applicant for the local Dublin city and county youth radio licence, Storm FM, against the decision to grant the licence to Spin FM.

But as one industry source said about the UTV debacle last week: “The fat lady hasn’t sung yet.”

The three contenders for the new Cork city and county radio licence are Magic FM, Redhot FM and Beat FM. All three presented their applications to the IRTC and the public in Cork last Monday. A decision is due by the end of February

Magic FM

25-44 age group. Total share capital pledged — £2 million

Fox Radio Limited

27 per cent (£350,000)

A recently-incorporated investment vehicle with the stated intention of acquiring further interests in Irish radio stations. Its directors include Lite FM executives Scott Williams, Howard Block and Martin Block.

Lite FM

10 per cent (£250,000)

Local easy listening station which went on air on May 25 last year.

Registered directors of the holding company, City Broadcasting Limited, are Scott Williams, Martin Block, Howard Block, Travis Baxter and Deirdre Kelly.

Gerry Murphy — 15 per cent (£297,500) — Entrepreneur, deputy-chairman of Sherry Fitzgerald Group, founder of private venture capital company Strategic Equity Partners, Lite FM shareholder and former director of First Active Building Society.

Radio Kerry

15 per cent (£277,500)

Eleven year old local radio station. The company’s shareholding is made up of a broad coalition of commercial and community interests within the county.

David Hammond — 10 per cent (£225,000) — Freelance consultant and former general manager of Today FM.

Dennis Kelleher — 10 per cent (£250,000) — Cork-born director of the Irish Investment Fund and ceo of New York based brokers Wall Street Access.

Staff Share Scheme — 5 per cent (£125,000)

Others — 8 per cent (£225,000)

RedHot FM

Youth station. Total share capital pledged — £650,000

Thomas Crosbie Holdings — 20 per cent (£130,000) — Operators of The Cork Examiner Group, Thomas Crosbie has an annual turnover of £42 million. It also has interests in County Mayo Radio and North-West Radio. Nominated directors are Alan Crosbie and Anthony Dinan.

Vivian Nathan — 20 per cent (£130,000) — Director of HLB Nathans, one of the top 20 accountancy firms in Ireland.

Henry Condon (aka Henry Owens) — 10 per cent (£65,000). Henry Owens is programme director of British radio station Virgin Radio and was a founder of Atlantic 252.

Jim Aiken — 5 per cent (£32,500) — Well known promoter, having worked with acts such as The Rolling Stones, David Bowie and Bruce Springsteen. Was actively involved in the turnaround of FM 104.

Maurice Cassidy — 5 per cent (£32,500) — Operates 57th Street entertainer/artiste agency and FM 104 shareholder. Also promoted Riverdance.

Pearse Farrell — 5 per cent (£32,500) — Founder of chartered accountants, Farrell, Grant Sparks and director of FM 104.

Dermot Hanrahan — 7 per cent (£45,500) — Dermot Hanrahan is chief executive of FM 104 and a director of Larger Than Life, Independent Broadcasters of Ireland, Fusio Limited and Flycatcher Ltd.

Ulick McEvaddy — 5 per cent (£32,500) — Responsible for the biggest private investment in the Horan International Airport in Knock, Co Mayo. Founder director of aircraft leasing company Omega and director of FM 104.

Deanna Hallett — 3 per cent (£19,500) — Chairman of Hallett Arendt, a British based radio research and marketing specialist company.

Others — 2 per cent each (£13,000) — Tim Fenn, financial director of FM 104; Colm Hayes, programme director of FM 104; Margaret Nelson, sales director of FM 104; Dave Kelly, music director and deputy programme controller of FM 104; Helena Kelly, marketing manager of FM 104.

— Management shares — 10 per cent.

Beat FM

15-34 year olds. Total share capital pledged — £1.5 million

Radio Ireland

(Today FM) — 40.5 per cent (£636,500)

The national commercial radio licence holder, Radio Ireland’s main shareholders are Broadcast Holdings, Scottish Radio Holdings, Dermot Desmond’s IIU, ICC Venture Capital and ICC Bank.

Frank Boland — 20 per cent (£314,000) — Former chairman of Aer Rianta, Boland has served on the board of many companies including Beamish and Crawford and Cork Communications. Currently he is a Commissioner of Irish Lights and honorary chairman of Cork Business News. He is also chairman and managing director of all companies within the Boland Group.

Joe O’Herlihy — 10 per cent (£157,000) — Cork-born sound engineer who has worked with well-known names such as Rory Gallagher, U2 and REM. Also a board member of the City Arts Centre.

Roy Keane — 4 per cent (£62,800) — Cork-born Manchester Utd and Irish international football team captain.

Denis Irwin — 4 per cent (£62,800) — Cork-born Manchester Utd and retired Irish international footballer.

Liberty Asset Management — 10per cent (£157,000) — Irish financial services company whose directors include founder Ian Lawrie, Marie Ainsworth, Kevin O’Shaughnessy and Brian Tyrrell.

Squareball Ltd. — 7 per cent (£109,900) — Irish multimedia company which will operate the Irish franchise for Sports.com, the internet sports site. Directors and shareholders include sports journalist Cathal Dervan, Domhnail Dervan and Fintan McMahon.

Management shares — (4.5 per cent)

Xmas Spin

Spin FM are now indicating that they will be on air by Christmas, despite an announcement earlier in the year that it would be October. This emerged at a meeting with the BCI earlier this week. The exact launch date will be agreed later this month.
It was also revealed that Cork’s new station Red FM should be on air by November.

Sun Gone Down

Sun FM, the non-stop 80’s Dublin station, is off air today because of technical problems. Station source 80s Bloke told Radiowaves News this afternoon that it may take a few days before the station returns. “It’s a pity the technical problems didn’t happen in the last 2 weeks while we were off air – that’s Murphy’s Law!!” he concluded. Sun FM usually broadcast on 101.3MHz.

A new radio competition: Spot the Difference

Radio listeners in Dublin, already bombarded with competitions on their commercial stations, have a new game they can play: Spot the Difference. The only problem is there is no cash incentive, but it could be fun.

According to today’s Sunday Times FM104, one of the capital’s top stations, have accused Spin 1038, one of the capital’s youngest stations, of ripping off their playlist to the tune of up to an overlap of 48% on some days. It is a strange complaint from a station which sounds almost identical to just about every other contemporary station in every major city across the world, and it is a complaint which Spin actually find complimentary! In a statement to the BCI, Spin chief Liam Thompson reckoned that the similar playlists show that his station has a ‘good understanding’ of their relative position in the marketplace considering that both stations are licensed to serve the 15-34 market.

The complaint, which was made last year, was dismissed by the BCI after an analysis of the output from both stations. The BCI did, however, admit that Spin 1038 were not playing enough dance music.

FM104 claim that the similarity in playlists is ‘doing considerable damage’ to their business and also found the BCI’s response ‘insulting and dismissive’.

Although content on the two stations is bound to be similar, Spin’s approach and deliverance is radically different. In that respect they are, indeed, offering an alternative to Dublin listeners, who had little choice when FM104 & 98FM were the only stations serving the capital on a commercial basis. It could be argued that the introduction of Spin, along with other commercial stations, has shaken the top two from their relative positions of comfort.

Three Complaints Against Radio Stations Upheld

The Board of the BCC considered and/or adjudicated upon 37 complaints at a recent meeting. Three of these complaints were found to be frivolous and vexatious under Section 24(14) of the Broadcasting Act, 2001 and were therefore closed without further investigation. Six complaints were deferred to the next meeting of the Board for further consideration. Of the remaining 28, four were upheld – three of these were concerned with radio programmes and included complaints against FM104’s late-night ‘Adrian Kennedy Phone Show’ on the grounds of taste & decency; Cork 96FM & 103FM’s ‘Opinion Line’ on the grounds of privacy; and Spin 1038’s afternoon show ‘Spin Talk’ on the grounds of taste & decency.

The complaint against Adrian Kennedy’s Phone Show relates to a sexually explicit discussion and the complainant found the programme extremely offensive, calling the broadcast ‘way out of line’ and unsuitable for her two teenage daughters and her concern is on behalf of all teenagers being influenced by what they hear.
In response to the complaint FM104 say that the Adrian Kennedy Phone Show features a sex and relationship presenter, Sophie Hegarty.
“This part of the phone show is called ‘sex talk’ and it has been part of the show for some eight months now,” the station says. “Each night one topic relating to relationships or sex is dealt with. It should be noted that every Adrian Kennedy Phone Show is preceded with a warning that the show may contain some strong language and that the material is of an adult nature.”
The station goes on to say that the topics discussed are usually relationship-type topics. “However from time to time the topics discussed can be of a more sexual nature,” they continue. “Listeners who are offended by such content do have a choice in the matter and can elect to listen to another station. This is why the station gives a warning at the beginning of and at intervals throughout the show.”
This is the only complaint ever made in relation to this particular broadcast.
Despite the station’s claims the complaint was upheld by the BCC. The Commission was of the view that FM104 infringed Section 24(2)(b)(taste & decency). The manner in which the sexual content of the programme was presented and dealt with was considered by the BCC to be offensive. The Commission noted that the station did broadcast warnings that the content of the programme was of an adult nature and in their summary also noted that they are aware that addressing sexual issues is important and is appropriate content for a programme broadcast late in the evening. “However, the tone and manner in which this programme dealt with sexual issues was considered to be flippant and gratuitous,” the summary continues. “Airing warnings does not circumvent the broadcaster’s editorial responsibility. The programme was sensationalist in style and offensive.”

The complaint against Cork stations 96/103FM was made by Mr Richard McCarthy under Section 24(2)(c) (privacy of an individual) of the Broadcasting Act 2001 and refers to ‘The Opinion Line’ – a show presented by Neil Prenderville. The complaint concerns the presenter’s decision to put McCarthy on-air without his permission. The item being discussed on the show was in connection with long delays for motorists trying to leave the multi-storey car park where McCarthy works. He states that he received a ‘phone call from a man who claimed he was a motorist who had been delayed for a long period of time when leaving the car park on 1st July’. Road works and a broken barrier caused delays to traffic leaving the car park on that day. After some time, a colleague working in the car park informed McCarthy that he was live on-air. This was the first McCarthy knew of the broadcast and he ended the call immediately. McCarthy states that the caller did not identify himself nor did he inform him the call was going out live on-air. He was never asked if he was prepared to have his response broadcast live. McCarthy believes this was a serious breach of his rights and a serious invasion of privacy. He says he felt humiliated, embarrassed and upset at the way he was treated. Many of the people he comes into contact with on a daily basis heard the broadcast and mentioned this to him. He found this highly embarrassing. McCarthy complains that Cork’s 96/103FM acted in an unethical and underhand manner. He also states that he received a call earlier that morning from an employee of Cork’s 96/103FM regarding this topic. He pointed out to her that employees of Cork City Council were not permitted to discuss work/policy matters with the press. He informed her she would have to contact City Hall. Despite being aware of this, the call was still made. McCarthy believes the broadcast breached the Broadcasting Act, 2001 under privacy of the individual.
In response the station states that the lead up to this phone call was as a result of calls received at the station regarding long delays by motorists exiting the car park at Paul Street on Thursday 1st July. In following up on this story, researchers at the station tried to obtain a response from Cork City Council, the operator of the car park. However, it was the following Monday before they received a response. Cork City Council’s response was that the delays were not caused by the car park itself but were due to traffic problems on the adjoining quays. They also stated that the car park personnel had opened the car park barrier to speed things up. While this was being aired, numerous calls were received at the station stating that the second barrier was not working and this caused delays. At this point, the researcher tried to contact the City Council again to get a response but without success. Presenter, Neil Prenderville, then decided to contact the car park directly as he could not understand the ongoing difficulty in receiving an accurate statement from the City Council. Cork’s 96/103FM admit Mr Prenderville did telephone the car park directly and spoke on-air to an individual. However, this person remained unnamed at all times. The station further claim the call was a genuine attempt to clarify the reason for the delays for a large number of listeners who contacted the show. Normal procedure was departed from on this occasion due to the trivial nature of the item and the genuine desire to get a simple answer to a simple question.
In summary, the BCC say they upheld the complaint as they were of the view that Cork’s 96/103FM did infringe Section 24(c)(privacy of an individual). The presenter posed as a member of the public who had been caught up in the delays in getting out of a car park on 1st July and broadcast live, surreptitiously, the subsequent discussion with the complainant who did not have the authority to speak on behalf of his employer. The BCC note that the broadcaster had been instructed that they should contact City Hall for comment and not the car park staff. Therefore the station were aware that the car park staff were not in a position to speak on behalf of the Council. The Commission were of the opinion that Prenderville dealt with this matter in an unfair and deceitful manner and in so doing, infringed the rights of McCarthy.

The complaint made against Spin 1038’s ‘Spin Talk’ was under Section 24(2)(b)(taste & decency) of the Broadcasting Act 2001. Every Friday Spin Talk deals with sex issues. The station does advise that parental guidance may be necessary. The complainant states that this is not always possible with young teenagers listening to radio. On the day in question the presenters, Jack and Ali, were discussing ‘hand jobs’. They read out 10 different ways of giving a hand job. The complainant called the item ‘outrageous’ and points out that many teenagers listen to this programme, including her 13 year old.
Spin 1038 state in their response that the subject of the programme centered on male masturbation. The ‘Gender Agenda’ is a regular feature on Friday’s Spin Talk programme. This section is heavily promoted as a Sex & Relationship feature. Warning messages are consistently broadcast around this section, which alert listeners to an open and frank discussion on sex and sexuality. The feature was based around an interview with a sex and relationship expert, Melissa Ulto and also featured calls and text messages from the show’s listeners recounting their experiences. Although Spin 1038 accept masturbation is a taboo topic, many major studies by leading experts suggest that a very clear majority of males engage in masturbation. This makes it a common practice, but one which is rarely covered on radio. As a news and current affairs show, Spin Talk has a brief to challenge boundaries and break down traditional taboos. On occasion, this requires the programme to cover topics that more traditional broadcasters would avoid at any time of the day. Spin 1038 state it was not their intention to offend and their coverage of similar items tends to be scheduled within the Friday segment of the show – which is clearly and repeatedly flagged as dealing with sex and relationship issues. They apologise for giving offence but feel they do offer adequate warnings and advice during the programme.
The BCC was of the view that Spin 1038 did infringe Section 24(2)(a)(taste & decency) as the programme contained an explicit discussion on masturbation which was dealt with in a gratuitous manner. The BCC felt that the broadcast was in poor taste, particularly given the time of day of the broadcast and also given the quite cynical presentation of the sexual content and the inappropriate time of broadcast.

A further 24 complaints were rejected.