An Independent Radio and Television Commission member, Dr Colum Kenny, has strongly denied claims that he was biased against Dublin nightclub operator Mr John Reynolds when considering whether to award the youth radio licence for Dublin to a consortium whose backers included Mr Reynolds, the High Court was told yesterday.
In an affidavit, Dr Kenny said he had made inquiries of gardai regarding drugs in Dublin nightclubs, in the course of which he asked about a district judge's remark describing Mr Reynolds's POD nightclub as a "place of drugs", but denied he was guilty of prejudgment in relation to the unsuccessful application for the radio licence from Mr Reynolds's Storm FM consortium.
He had considered how he should discharge his obligation to consider the character of the directors of Storm and had satisfied himself there should be no challenge to their character and also that there should be no adverse inferences regarding their character based on a "drugs issue". Storm FM, whose members include U2's The Edge and pop group promoter Louis Walsh, is challenging the IRTC's decision to award the youth radio licence to Spin FM, a company which includes accountant Mr Ossie Kilkenny and businessman Mr Denis O'Brien.
Yesterday, Mr Colm Allen SC, for Storm FM, said the issue in his proceedings was a claim of apparent or objective bias by a member of the IRTC - Dr Kenny, of Herbert Terrace, Bray, Co Wicklow - in relation to the commission's decision not to award the licence to Storm FM. There was no allegation of apparent bias against any other IRTC member.
In October 1999 the IRTC, after a board discussion, announced it was awarding the licence to Mayprill Ltd, trading as Spin FM. Mr Allen said Dr Kenny took part in that discussion and it was tainted with bias.
In November 1999 the Sunday Tribune reported that Dr Kenny met members of the Garda National Drugs Unit "to check up on" Mr Reynolds. This issue had never been raised when Mr Reynolds was before the IRTC in relation to Storm FM's application.
Mr Allen said Mr Reynolds was disturbed by the newspaper report and his solicitors had written to Dr Kenny, asking a number of questions about his visit to the Garda unit. Not only did Mr Reynolds get no reply, his solicitors were also told that Dr Kenny intended to sue the Sunday Tribune for defamation. However, no such action had been taken, counsel said.
Both the IRTC and Dr Kenny deny the allegations of unfair procedures in the awarding of the licence and apparent bias on the part of Dr Kenny.
In an affidavit, Mr Michael O'Keeffe, the IRTC chief executive, said Dr Kenny had told him that as a parent, university lecturer and IRTC member, he was concerned about drugs in Dublin. Dr Kenny was aware the four shortlisted applicants for the youth licence had referred to drugs, drug services or narcotics in their original applications and he was concerned about the association between dance music and the drug culture.
Mr O'Keeffe said Dr Kenny had informed him that to get a feel for the drug culture before making his decision, he talked with members of the Garda about drugs and drugs in nightclubs. In the course of that discussion, Dr Kenny made a single reference to Mr Reynolds in the context of the POD and said the Garda had fully endorsed the manner in which Mr Reynolds carried on his business. In his affidavit, Dr Kenny said he had not discussed his intended visit to the Garda with any IRTC member or the IRTC executive.
He met the Garda on September 13th, 1999, to discuss the drugs scene in Dublin generally. He mentioned a recent court case in which a district judge was reported as describing the POD as "a den or place of drugs rather than a place of dance". He had adverted to the connections between Storm FM and the POD which included the fact that Storm's principal place of business was the Harcourt Street premises which housed the POD.
He was told the POD and other clubs had put in systems of control regarding drugs which the gardai fully endorsed but which they continued to monitor. He was also told the Gardai would not oppose renewal of the POD's licence.
Before the oral hearings regarding the radio licence, Dr Kenny arranged to speak informally to Mr Conor Maguire SC, the IRTC chairman, on the relevance of matters relating to drugs. He prepared a draft letter to Mr Maguire setting out his concerns.
In that letter, read by Mr Allen, Dr Kenny cited newspaper re ports regarding the POD and said he was "not personally aware of any attempts by Mr Reynolds to distance himself from such statements and impressions or to identify himself publicly as being strongly anti-drugs".
Dr Kenny also stated he had no evidence which in any way connected Mr Reynolds personally with drug-dealing or with knowingly permitting it to take place. Mr Allen said the letter indicated objective bias on the part of Dr Kenny against Mr Reynolds.
Dr Kenny said in his affidavit that Mr Maguire advised him that in the absence of any evidence implicating Mr Reynolds or any director of Storm, it would be unfair to raise or challenge the character of Storm. Dr Kenny said he agreed with that view; it was "absolutely untrue" to suggest he may have discussed the drug issue with IRTC members with a view to influencing their vote on the licence issue.
The hearing before Mr Justice O Caoimh continues today.
(A separate action by Hot Radio Company Ltd, trading as Pulse FM, to the award of the licence to Spin FM is not proceeding following a court decision that the company should provide security for costs incurred by both the IRTC and Spin FM as a result of the action.)
