Mr Justice Stanley Burnton:
Introduction
- In these proceedings the Claimant, Francis Wildman, seeks judicial review of the decision of Ofcom, made on 20 January 2005, to award the independent radio licence for Ashford in Kent ("the Licence") to Local Ashford Radio Kent Ltd. I shall refer to that company as "Lark". Ofcom has replaced the Radio Authority as the licensing authority for radio.
- It was made clear at the end of the hearing of this claim that a decision was required as soon as possible. The launch by Lark of its Ashford radio service had already been delayed by these proceedings, with resulting financial loss. Any delay beyond the end of the current law term would further delay the launch, and would lead to Lark missing the months before Christmas 2005, the crucial period of the year for advertising and advertising revenue, involving further financial loss with no prospect of compensation if the decision to award it the Licence was not set aside. Because of the pressures on judicial time at this time of the year, this judgment has been produced under pressure. I have not addressed every single point made by Mr. Wildman, since many cannot give rise to the grant of relief, for reasons that appear below. In particular, I have not addressed, other than in general terms, the points going to Ofcom's assessment of A-Ten FM's financial viability.
The facts in summary
- On 23 July 2004, pursuant to section 104 of the Broadcasting Act 1990, Of com published an advertisement inviting applications for the Licence. It received 6 applications for the Licence. The unsuccessful applicants were the Interested Parties and A-Ten FM Ltd, a company of which Mr Wildman describes himself as the chairman.
- In relation to section 105(a) of that Act (ability to maintain) the statutory notice stated:
" ... Given the relatively small population coverage afforded by this Ashford licence, criterion (a) - the ability of each applicant to maintain, throughout the period for which the licence· would be in force, the service which it proposes to provide - is likely to be considered of particular importance."
" ... Of com will need to be assured that an applicant has made a well-reasoned calculation of the expected levels of costs and revenue, such that the service is capable of being maintained while delivering its programming Format..."
Under the heading "(f) Financial and Audience Projections", it stated:
" ... forecasts should be based on reasonable assumptions, that are logically applied and justifiable ...
This section must include a full listing of the underlying assumptions on which the financial projections are based, relating such assumptions clearly to other parts of the application (e.g. proposed format, extent of coverage area) ...
The applicant should also address the following issues:
(ii) Projections for listenership ratings over the first three years of the service ... "
- In relation to section 105(b) and (c) (catering for local tastes and broadening the available range), the statutory notice emphasised the likely importance of speech over music, and (b) over (c):
"... criterion (c) ... is likely to be considered more important in relation to an applicant's proposals for speech content than in relation to its music proposals, and less significant overall than criterion (b) ... "
- On the linked question of 'localness' under section 314(1) of the 2003 Act, the statutory notice explained::
"Applicants will be invited to set out in the 'Format' section of their application the amount of local material and the proportion of locally-made programmes that they will provide, and to support their proposals with evidence of demand and/or support. Of com will consider on the basis of the application whether the amount of local material included is appropriate, and whether the proportion of locally-made programmes is suitable, for that particular service proposal."
- In relation to section 105(d) (evidence of demand or support), the statutory notice said:
" ... non-research based evidence of local support is likely to be considered alongside evidence of demand, as Of com appreciates that applicants might wish to provide such evidence. However, a limited number of carefully-selected expressions of support is likely to be considered more meaningful than volumes of repetitious letters or petitions."
- It explained, as regards what Of com was looking for:
"In our view, evidence of local demand, as demonstrated by formal audience research or analysis, is a more meaningful and ·cogent measure than evidence of local support as demonstrated by letters or petitions. It is for ·applicants to decide what evidence of support they wish to submit, but Of com does not believe that generic support for the establishment of a new radio service is as meaningful as evidence of considered support for a specific applicant's proposals ... "
- The advertisement described the assessment process and the scoring system used by Of com to guide its decision-making. It stated that further questions might be asked of applicants, but that no material amendment to the proposals in an application could be made without its agreement, which would not be given if it considered that the amendment would be unfair to another applicant.
- Ofcom has delegated its authority in respect of the licensing of radio broadcasting to its Radio Licensing Committee, referred to as the RLC. The RLC had a preliminary discussion of the applications it had received on 25 November 2004. Subsequently, Jon Heasman, a staff member of the Radio Planning and Licensing Team of Ofcom, submitted questions to the applicants on aspects of their' applications. He then prepared a briefing or staff paper dated 13 January 2005 for the RLC in which he summarised and assessed the applications for the Licence. The paper was before the RLC when it made its decision on 20 January 2005 to award the Licence to Lark.
- The majority of the shares in Lark are owned by the Kent Messenger Group, to which I shall refer as "KM", the major local newspaper group in Kent. The Group owns the majority of the local radio stations in Kent: Canterbury, Dover & Folkestone, Medway, Thanet and West Kent, and has a substantial minority interest in CTR Maidstone.
- Ofcom's reasons for awarding the Licence to Lark were set out in a published statement. It did not give reasons why the other applicants had failed.
Mr Wildman's case
- The majority of Mr Wildman's complaints relate to Ofcom's determinations and assessments of the facts relating to its decision to award the Licence to Lark. He also raises a number of questions of principle as to the interpretation and application of the relevant legislation. I shall consider these below. However, a preliminary point and a preliminary issue must be addressed.
The approach of the Court
- The preliminary point is the general approach of the Court in cases of the present kind. Parliament has not provided an appeal on the facts or on the law against Ofcom's decisions. Of com is an expert body, and it, and not the Court, has been given the responsibility for making the evaluations and exercising the discretions inherent in a licensing process that involves the selection of only one of a number of applicants to be awarded a licence. Ofcom's decisions may have substantial financial consequences, as may any decision of the Court to set aside a decision of Ofcom to award a licence to a particular applicant. In the exercise of its judicial review jurisdiction, the Court may set aside a decision of Ofcom if it is shown that it made a material error of law, but the power to do so is discretionary. In my judgment, the Court must exercise a high degree of caution before interfering with a decision such as the present, and do so only if it is shown that there has been real unfairness to a candidate or a significant error of law or other error giving rise to the power, on judicial review, to quash the decision.
- In the present context, it is pertinent to refer to the speech of 'Lord Templeman in R (TSW Broadcasting Ltd) v ITC [1994] 2 LRC 414, at 424c-426a. It is sufficient to quote the last paragraph of that part of his speech: .
"Judicial review does not issue merely because a decision maker has made a mistake and it is not permissible to probe the advice received by the decision maker or to require particulars or administer· interrogatories or, as Mr Pollock on behalf of TSW suggested, to cross-examine in order to discover the existence of a mistake by the decision maker or the advisers to the decision makers. An applicant for judicial review must show more than a mistake on the part of the decision maker or his advisers. Where a decision is made in good faith following a proper procedure and as a result of conscientious consideration, an applicant for judicial review is not entitled to relief save on the grounds established by Lord Greene MR in Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229."
This passage must now be read subject to the judgment of the Court of Appeal in E v Home Secretary [2004] EWCA Civ 49 at [66]:
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case ([ 1999] 2 AC 330). First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was· uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Mr Fordham accepted that the present context is one in which "the parties share an interest in co-operating to achieve the correct result", and I express no view about that requirement. He also rightly accepted that if mistake of fact is, subject to the conditions laid down by the Court of Appeal, a ground for challenge on an appeal on a point of law, it must also be so in judicial review. However, questions of judgment and of unverifiable opinion are outwith this ground of challenge. In addition, I respectfully endorse what was said by Lightman J in R v Director General of Telecommunications, ex parte Cellcom [1999] ECC 314 at [26]:
"Where the Act has conferred the decision making and function on the Director, it is for him, and him alone, to consider the economic arguments, weigh the compelling considerations and arrive at a judgment. The . applicants have no right of appeal; in these judicial review proceedings so long as he directs himself correctly in law, his decision may only be challenged on Wedensbury grounds. The court must be astute to avoid the. danger of substituting its views for the decision maker and of contradicting (as in this case) a conscientious decision maker acting in good faith and with knowledge of all the facts.
Furthermore:
"If (as I have stated)the court should be very "slow to impugn decisions of fact made by an expert and experienced decision maker, it must surely be even slower to impugn his educated prophesises and predictions for the future."
Standing
- Mr Wildman was given permission to apply for judicial review. That he has standing to apply for judicial review" cannot therefore be challenged. But the question of standing falls to be considered again in deciding whether the Court should exercise its discretion to grant relief. The position was helpfully explained by Purchas LJ in R v Department of Transport, ex parte Presvac Engineering Ltd (1992) 4 Admin LR 121 at 145G~146B:
"The court must ... review at [the substantive] stage the question of sufficiency of interest and exercise its discretion accordingly. Whether this is properly called an investigation of locus standi or the exercise of discretion whether to grant [a remedy] is probably a semantic distinction without a difference. Personally I would prefer to restrict the use of the expression locus standi to the threshold exercise and to describe the decision at the ultimate stage as an exercise of discretion not to grant [a remedy] because the [claimant] has not established that he had been or was sufficiently affected."
- Whether the standing of a claimant is such as to affect the grant of relief depends on the facts and on such of his allegations that have been established. In the present case, " permission was granted without any real consideration of Mr Wildman's standing, because Ofcom, who had not taken any point on his standing in their acknowledgment of service, in view of the urgent need for the determination of his claim, agreed that there should be a substantive hearing, and in consequence so did Lark. The issue of Mr Wildman's standing was however clearly raised by Lark in its acknowledgment of service, paragraph 1 of which was as follows:
"The Claimant was not one of the Applicants for the Ashford radio licence. He is Chairman of an applicant company, A-Ten FM. Ltd, but has no shareholder or other legal interest therein. The Claimant refers to A-Ten FM as if it were himself. But he has not applied to the Court on behalf of or as a representative of A-Ten FM. Indeed, A-Ten FM Ltd has not even been recognised as an interested party nor served with notice of these proceedings. Although presenting himself as a litigant in person, the Claimant therefore" appears to have no legitimate interest in the matter."
- Mr Wildman did not address the issue in any evidence responding to Lark's acknowledgment of service.' Mr Fordham raised the issue of Mr Wildman's. standing in his oral submissions, placing at the forefront of his case that a person who could not contend that he should have been awarded a licence should not have any standing to challenge its award. Miss Lester relied on the allegation summarised in Lark's acknowledgment of service. As a result the relevant facts emerged during the hearing, when Mr. Wildman accepted that he is neither a director nor a shareholder of A-Ten FM Ltd. The lateness of the stage when the issue properly emerged led to the parties being given leave. to' file additional submissions after the end of what was already a long hearing. In the present case, the question of standing is inter-related with the factual issues; as will be seen. But first it is necessary to specify Mr Wildman's qualifications to bring these proceedings, and to consider the relevance of the absence of A-Ten FM Ltd as a party.
- Mr Wildman was not an applicant for the Licence. He was previously an applicant for one of the 3 local radio licences for the Ashford area granted by the Radio Authority in 1997. His application was refused, and then too he brought judicial review proceedings, acting in person. His application for judicial review was heard by Jackson J. and dismissed by him in an unreported judgment given on 17 June 1999. Both Jackson J. and the Court of Appeal refused leave to appeal. Clearly, however, Mr Wildman has for some time harboured an ambition to be involved in local broadcasting in Ashford, his home town.
- A-Ten FM Ltd, which as I have said was one of the unsuccessful applicants in 2005, is not a party to these proceedings. It chose not to be a claimant. Mr Wildman did not . name it as an interested party. It would have been curious to name as an interested party a company of which the claimant was chairman, since it was bound to be aware of the proceedings and it was open to it to have joined as a claimant; and to name it as an interested party would have suggested that its interests were not identical to his. However, as stated above, he is neither a shareholder of the company nor a director. As Miss Lester pointed out, Table A to the Companies Act 1985 requires that the chairman of the board of directors must be a director. In fact Mr Wildman is the secretary of the company. But irrespective of the provisions of the Articles of Association of A-Ten FM Ltd, it is difficult to see what real authority or role its chairman could have if he is not a director.
- In response to the question why the company had not brought these proceedings, Mr' Wildman stated that it had only 2 issued £1 shares, and that it had not called up its proposed capital because the proposed investors had only agreed to make their investments in the event that the Licence was awarded to the company. He stated, in his written submission on standing, that as a result:
"It is therefore not reasonably practicable for the company to start legal proceedings and in any event would not have been the most obvious challenger."
However, this does not explain why the proposed investors could not voluntarily have provided the funds to enable the company to bring this claim. There are two obvious, although not the only possible, explanations. The first is that they did not consider the prospects of success sufficient. The second is that they were of the. view that even if the judicial review proceedings were successful, and the decision retaken, A-Ten FM Ltd would not be awarded the Licence. That the latter is a realistic suggestion is consistent with Mr Wildman's concession that he did not allege that it was unreasonable for Of com to refuse the Licence to A-Ten FM Ltd: he alleges only that the Licence should have been awarded to someone other than Lark. It is also supported by the last 11 words of the extract from Mr Wildman's· submission on standing quoted above.
- The relevance of Mr Wildman's lack of authority to act on behalf of A-Ten FM Ltd is important in another" respect. A-Ten FM Ltd has not consented to the disclosure in these proceedings of the confidential information it submitted to Of com. As a result that information is not before me. In these circumstances, 1 could not possibly form any sensible view as to the reasonableness of Ofcom's assessment of its financial or prospective financial position, although that was a matter that, as Of com had made clear, was a most important consideration.
- The Court will be more ready to accept that a claimant has sufficient standing to apply for judicial review if his allegations raise issues of general and important principle, or real unfairness, or deliberate unlawfulness, or bias. When the Court considers the question of relief, and ex hypothesi grounds for judicial review have been established, it will· similarly be more ready to grant relief if such allegations have been established. However, Mr Wildman's allegations are not, in my judgment, of this kind. In addition, if it is established that the defendant has acted under a mistake as to the law, the Court will be more ready to give declaratory relief that will guide the defendant in its future decisions than to quash a decision with adverse effects for a third party who has not been responsible for any irregularity or defect in the decision-making process of the decision maker.
- ,In his submission on standing, Mr Wildman listed as justifying the grant of relief that he:
(a) Would have been employed by one or more of the unsuccessful applicant companies for the radio licence had another application been successful.
(b) Has been actively seeking to secure the provision of a good radio service for the area since 1991.
(c) Had made an application to provide the proposed service before.
(d) Is Chairman of a company that made an application for the licence to provide the proposed service in the instant case.
(e) Is an individual radio listener living within the area for which the proposed radio station would provide a service; and
(f) Was acting in the public interest.
- ,Subparagraph (a) is an assertion that has no evidential foundation. Although I may· assume that if A-Ten FM Ltd had been successful Mr Wildman would have played some unspecified part in its enterprise, there is nothing before me to suggest that he would have been employed by any. other of the unsuccessful applicants. Evidence was required to support such an assertion and to specify the part that would be undertaken by Mr Wildman if another applicant had been successful. Subparagraph (b) is an assertion that fell to be judged by Of com; it is not for the Court to assess whether any particular service is or would be "good". Subparagraph (c) is of little if any relevance. I have already commented on subparagraph (d) .. Subparagraphs (e) and (f) do not put Mr Wildman in any better position than any other interested member of the public living in Ashford.· Furthermore, when Mr Wildman brought these proceedings he· referred only to his position as chairman of A-Ten FM; he said nothing about his position as a member of the public or the potential audience: see paragraph I of hi~ witness statement dated 25 January 2005. In these circumstances I should be reluctant to grant relief on a different basis for his standing.
- In his submission on standing, Mr Wildman made the valid point that relief is not to be refused to a claimant on the ground that someone else was better placed to seek judicial review. But it does not follow that the fact that those better placed to seek· judicial review have declined to do so is irrelevant. It is particularly relevant in the present case, where the unsuccessful applicants have not sought to challenge Ofcom's decision, although either they were served as interested parties or, in the case of A-Ten FM, it was the company of which he purports to be the chairman ..
- In its submission on standing, Lark contended that Mr Wildman should be refused
relief on the ground that in asserting that he was the Chairman of A-Ten FM he had misled the court. As has been seen, in its acknowledgment of service Lark had accepted that he was a Chairman of the company, and it was only as a result of my raising the issue of standing expressly with Mr Wildman that Lark carried out the company search that led to its disputing his office. If this issue had arisen an earlier stage of the proceedings, I should have considered it. Mr Wildman has not had an opportunity to respond to this contention (although he could have sought permission to do so). In the circumstances, I have not taken it into account. However, this emphasises that in a case such as the present there is much to be said for the issue of standing to be fully considered at an early stage.
Mr Wildman's specific complaints: financial matters
- In his second witness statement, Mr Wildman set out a number of errors he alleged had been made in assessing the business plan of Lark and those of the other applicants when deciding to award it the Licence. I do not propose to comment on them all, but I . do say that none of them is of a kind that could give rise to judicial review of Ofcom 's decision.
- Mr Wildman alleges that Of com should have looked at RAJAR (published) figures for other KM radio stations in Kent in order to see whether the business plan put . forward for Lark was realistic and reliable. If they had done so, they would have appreciated that it was unrealistic. This allegation gives rise to no ground for judicial review unless it be said that Ofcom's decision was perverse. It was for Of com to assess. the Lark business plan against such data as they thought appropriate. The material before me falls far short of any arguable basis for an allegation of perversity in assessing the financial worth of Lark, its competence and its business plan.
- Mr Wildman similarly criticises the staff paper for misrepresenting the likely financial outcome for Lark of its award of the Licence. Again, in my judgment, this is not an arguable ground for judicial review. In fact the staff paper was balanced, qualified and sensible. Referring to the KM business plan, it stated:
- "Weekly reach starts at 15% in Year 1, rising to 25% in Year 3. This compares well to the average RAJAR results of the KM East Kent region stations of 20% weekly reach (Q3, 2004).
- KM's track record in attracting audiences to the radio stations it has taken over and rebranded as KM-FM services is somewhat mixed, although very marginally positive. It has improved the audience at its station in Medway, Thanet and Canterbury (the latter very marginally), but audiences at the stations in Folkestone and West Kent have declined under KM ·stewardship."
A table was included setting out figures for market share pre- and post-KM ownership of its existing wholly-owned stations. Mr Wildman accepts that the figure of 20% -in the first bullet point is accurate. He quarrels with the appropriateness of the comparison made by Of com between the applicant's business plans and existing local Kent stations, nearly all of which are owned by KM. If KM is an unsuccessful operator. as Mr Wildman alleges, the effect is that Of com regards more optimistic forecasts as unreasonable. However, even if this were established, it is not a basis for judicial review. Similarly, Mr Wildman's quarrel with the selection made by Mr Heasman of other radio stations for the purpose of comparisons used in the assessment process is not properly the subject of judicial review, unless it can be shown that the ultimate decision was perverse; and it has not been so shown. Indeed, it is to be noted that a number of radio stations were used both in the Of com comparison and in Mr Wildman's suggested comparison.
- Mr Wildman alleged that it was unfair of Ofcom to use figures to which neither he nor the public has access to assess Lark's financial ability, and that of A-Ten FM Ltd. Furthermore, Of com used figures provided by Lark to assess other applicants' business plans, e.g. by stating that their figures for their anticipated audiences were in excess of Lark's. Again, in my judgment Of com was entitled to take these steps if it considered them appropriate. Mr Wildman also points out that other well-qualified applicants besides A-Ten FM Ltd were forecasting high audience figures. But it was for Of com to make the assessments involved in its decision, including the assessment as to whether other applicants' figures were sufficiently reliable to be used by it, and Mr Wildman has not shown that its assessments were such that a reasonable regulator could not have made.
- Similar comments apply to Mr Wildman's allegation that the site proposed by Lark for its transmitter may not be available to it because of planning or construction difficulties. This allegation was based on information in Time Ashford's application. If that site were not available, and Lark were compelled to transmit from another site, . the audience it· could reach might be reduced, which would affect audience figures and hence advertising revenue. Lark's own application stated that it had agreed terms with the company controlling the transmitter site, which had secure space and transmission. equipment; and that it did not believe that any planning issues would. arise. If Of com accepted Lark's statements at their face value, and it turns out that they are incorrect, there will not have been an incontrovertible mistake of fact on the part of Ofcom such as could justify judicial review. In any event, the question of the site of the transmitter was one factor among the many to be taken into account by Of com. Moreover, if the expected site were not available, others would be, and the difficulties in reaching the entirety of the desired population could be addressed by the use of synchronous transmitters to fill in gaps, which is what Time Ashford had envisaged.
- In the Ashford licence award decision, Of com summarised its assessment of Lark's financial suitability as follows:
"In considering the applications, Ofcom's Radio Licensing Committee (RLC) did indeed place particular importance on Section 105(a) of the Act. It was felt that the majority stake held in the business by the Kent Messenger (KM) group meant that Lark would benefit from a stable ownership structure and access to significant resources through a company which has a proven track record of investing in local radio in Kent. Lark's audience and revenue forecasts were considered to be based on a realistic expectation of population coverage, and were in line with the current revenue and ratings performance of existing small stations in nearby areas and elsewhere in the UK. Lark was also able to ensure a relatively low cost base for its proposed service through utilising a considerable amount of resource sharing with neighbouring KM-FM stations and to the Ashford offices of the Kentish Express newspaper. In short, the RLC believed that Lark offered the best chance of providing Ashford with a financially secure and well-resourced local radio service. "
- Although Mr Wildman tried to criticise the second sentence of this passage, in my judgment it was entirely accurate. The penultimate sentence is indisputable. The remainder consists of judgemental assessments which, as I have indicated, while open· to criticism, cannot justify a decision to quash the grant of the Licence.
- Mr Wildman criticised the assessment of A-Ten FM's business plan in the staff paper. He attacked in particular the statement that:
"Funding is by way of £ I 10k share capital, provided entirely by individuals. This is the lowest of the applicants by some margin, and is probably inadequate to sustain its licence. The level of capital investment appears light compared with the forecasts of other applicants (see Fig 3 below), with the exception of xx. Three recent comparable small-scale station launches (in Maidstone, North Norfolk and Buxton) all had capital investment cost in excess of xx."
("xx" indicates a passage redacted on the ground of commercial confidentiality.)
- Mr Wildman submitted that these statements failed to take into account the fact that A - T en FM proposed to rent, rather than to purchase, its equipment. In fact, its application showed that it proposed to borrow from a bank the cost of studio equipment, but the point is the same. However, the assessment that the proposed capitalisation of the company was probably inadequate was a conclusion based on· a number of financial facts. Because the company has not permitted the disclosure of its financial information contained in its application for the Licence, it is impossible for the court to assess whether the statement in question was, having regard to the entirety of information before Mr Heasman, a reasonable one for him to make. Nor is the Court in a position to consider whether Mr Heasman's overall assessment of the company's business plan was, or was not, perverse. There is therefore no point in addressing the individual criticisms made by Mr Wildman. To be fair to him, he accepted that he could not show, and therefore did not allege, that Ofcom's refusal to award the Licence to A-Ten FM was perverse. However, in my judgment, that fact, and the impossibility of any scrutiny by the Court of Ofcom's assessment ·of the company's business plan, mean that Mr Wildman's criticisms of Ofcom's assessment of A-Ten FM's proposed programming (i.e. the format proposed in its application) is similarly pointless.
Programme content
- Programme content is addressed in section 105(b) and (c). The Ashford licence award decision stated about Lark's proposed programming:
" In relation to Sections 105 (b) and (c), RLC members felt that Lark's 25% commitment to speech output, which includes Format commitments to broadcast to extended local news bulletins per weekday and the provision of local news bulletins on both weekend days, would clearly increase and improve Ashford-specific news and information provision in the area. Significantly, the proposals· were felt to be practically deliverable within the resources available to Lark, which included nine Kentish Express journalists based in Ashford and 14 news editors/readers at the KM News Centre in Canterbury. It will also felt that, musically, Lark's mix of contemporary and classic hits would extend the listener choice by occupying a gap in the local radio market between the two existing commercial radio services available throughout the new . licence area, Invicta FM and Capital Gold, and would appeal to a very broad audience (crucial in a small market such as this).
The RLC considered that, in relation to Section 314 of the Communications Act 2003, Lark's programming proposals contained a suitable proportion of local material and locally made programmes.
With regard to: section· 105(d), it was noted that the winning applicant group may have caused some confusion by continuing to blend itself in its marketing activities as 'Lark FM' (the name it had· used for a number of temporary broadcasts in the area). However, Lark's research satisfactorily demonstrated evidence of demand for many of its key proposals, and a number of Lark's public support letters (mainly those from potential advertisers) made positive references to the Kent Messenger Group's involvement in the application."
- Here too Mr Wildman's allegations were of errors of judgment by Ofcom. He contends that Ofcom erred in accepting that there was the demand in Ashford for extended coverage of local news as suggested by Lark. He cited in support not his own research, but that of other applicants, such as that of Ashford FM. Lark's figures were supported by its own research, and it had demonstrated its methodology to Ofcom, which was therefore able to assess its reliability. Moreover, some of the figures are open to different interpretations. For example, the figures given by Lark relating to audience interest in hearing extended news' coverage focusing on local news and information included 24.2% as "very interested", 39.8% as "a fairly interested" and 26% "not very interested". Those figures can be presented as showing that a majority of the prospective audience were either very or fairly interested, or 'as showing that a majority. were only not very or only fairly interested. This emphasises the considerable degree of judgment involved in the assessment process.
- As the above extract from the decision shows, Lark intended to broadcast news from its News Centre in Canterbury, referred to as its hub. Mr Wildman contended that Lark's news output would not be truly local, i.e., relating to Ashford, which is the definition of "localness" in section 314 of the Communications Act 2003. He said that the KM group was not providing true local news elsewhere. However, he had provided Ofcom with only 2 examples of this, insufficient for any reliable conclusion to be drawn. There is nothing before me to begin to demonstrate that Ofcom was perverse in accepting Lark's proposals. It certainly does not follow from the fact that .Lark intended to take a, news feed from Canterbury that the news it would broadcast would not be truly local. The availability of its local newspaper journalist in Ashford gave considerable support to the expectation that the news broadcast would include genuinely local material. Furthermore, under section 314 Ofcom has considerable latitude in deciding whether and to what extent programmes should include local material and the extent to which programmes with local interest should be locally made.
- Mr Wildman also criticised the reference in the decision to "the gap in the local radio market between ... Invicta FM and Capital Gold". He said that there was in fact no such gap. Invicta FM broadcasts predominantly modern popular music, and Capital Gold broadcasts predominantly older popular music, although Invicta may broadcast music from the past and Capital Gold may broadcast some modern pops. invite's programme format states
"Music programming will be predominantly (up to 100%) current chart hits, new releases of hits up to 10 years old. No more than 40% will be hit over 10 years old."
Capital Gold's format states: '
"'The programming will feature classic pop hits (ex top 40) from the period 15 to 40 years prior to broadcast. Hits less than 15 years old will not account for more than 30% of each day's output. "
- It can be seen that between them these stations broadcast popular music ranging from the current to those 40 years old. Their coverage does indeed overlap. Lark's proposed format is as follows':
"The music will reflect a spread of hits from across the years. Records less' than two years old will not comprise more than 35% of music output and records more than 15 years old should not comprise less than 35% of its output."
This proposal differs from the format of both Invicta FM and Capital Gold. The centre of gravity of the proposed music is neither current nor old. Of com was entitled to regard such a selection as filling a gap .in the market. Of com were entitled to have regard to what the existing stations actually broadcast as well as the range of music permitted by their formats. In the staff paper, Mr Heasman stated:
" ... the choice of local commercial radio listening in Ashford is quite polarised between an up-tempo, youthful station that is mainly competing with Radio 1 and a networked AM oldies service that plays virtually no new music, and whose appeal lies mainly with those aged over 45. BBC Radio Kent, which is a mainly speech-based service, caters for an even older 55 plus audience. Thus, in local radio terms, the obvious gap in, the Ashford market -- acknowledged by the research of most of the applicants for this licence -- would appear to be for a locally-focused AC station appealing to the middle age ranges (primarily 30 and 40-somethings) designed to take listeners from BBC Radio 2."
This assessment, which appears to have been the source of the reference in the decision to the gap in the local radio market, was not criticised by Mr. Wildman, and ' certainly has not been shown to be unreasonable.
- Mr Wildman also complained that Ofcom had taken into account Lark's proposed music format. He suggested that it had indicated that it would not do so. The passage from the advertisement on which he relied stated the following:
"Similarly, as a 'smaller' licence serving a locality which is not the sole focus (in editorial terms) of any existing service, criterion (c) -- the extent to which a proposed service would broaden the range of programs available by way of local (commercial) services in the area, and would cater for tastes and interests different from those already catered for -- is likely to be considered more important in relation to an applicant's proposals for speech content than in relation to its music proposals, and less significant overall than criteria (b) -- the extent to which an applicant's proposed service would cater for local things and interests (general or particular)."
This was an indication of priorities, not that music proposals would be irrelevant.
- None of these matters gives rise to a ground to quash the decision to award the Licence to Lark.
Evidence of support
- I referred above to the content of the advertisement relating to the requirement under section 105(d) of the Broadcasting Act 1990 that requires regard to be had to the evidence of local support for the provision of the proposed service. Mr Wildman had pointed out to Of com, before the decision to grant the Licence to Lark, that expressions of support for Lark from members of the proposed audience might have resulted from their assumption that the content of Lark's programmes after the grant of a licence would be similar to the content of the broadcasters of KM's temporary RSL radio station in Ashford, which had the same name. In fact, the proposed programme format for Lark as licencee was to be different. Mr Wildman complained that confusion in both led to an exaggerated impression of support for Lark and made it more difficult for A-Ten FM to obtain letters of support. The staff paper referred to Mr Wildman's complaint:
"A- Ten has argued that Lark FM's press advertisements and publicity material which sought support for its application have been misleading, since the station is clearly branded in this material as Lark FM (and not the proposed station name of KM-FM Ashford), while KM is portrayed as just one of the number of local businesses supporting Lark. While some of the letters of support from businesses for Lark do make reference to its association with KM, the letters from individuals or community organisations overwhelmingly do not, and mainly relate to the group's RSL broadcasts as Lark FM."
- Mr. Wildman complains that this summary omitted mention of the difficulty the confusion engendered by Lark created for A~ Ten FM in obtaining letters of support. Apart from that, however, the summary was fair. The omission of any reference to A-Ten FM's difficulties did not render the staff paper unfair. But in any event, Mr. Wildman cannot complain about this, given the paucity of evidence A-Ten FM presented in support of its own application and the relative unimportance attached by Of com to letters of support. The omission is irrelevant in' any event, given that Mr. Wildman does not contend that the decision not to award the Licence to A-Ten FM was irrational or of itself unlawful, and the impossibility to which I have referred of establishing in these proceedings that Ofcom's overall assessment of A-Ten FM's financial viability was flawed.
- The staff paper said this about the research submitted by A-Ten FM:
- "A-Ten FM's only formal market research was to conduct two focus groups .. One was conducted amongst a group of retired people, while the other was held amongst members of a local disability access charity. These groups do not sufficiently represent either a cross-section of the local area's population or the particular target audience identified by the applicant. A- Ten explains that the focus groups 'represented the demographic extremes of the local population that traditionally would not be expected to listen to a predominantly pop music station .
- A large number of letters of support provided after all six applications had been posted on Ofcom's web site, which A- Ten argues makes these letters more meaningful than support letters garnered in advance. The letters reflect the applicant group's long-standing presence and profile in the local community, with many highlighting the tenacity and enthusiasm of A-Ten's chairman Francis Wildman. Most have been sent by individuals and community groups/charities in Ashford area."
This was a manifestly fair summary.
- Mr Wildman criticised the paragraphs of the staff paper addressing the support for Lark. The passage in question is as follows:
. "Lark FM conducted four pieces of research to demonstrate demand for their proposed station. Three of these studies were conducted in 2002-2003 alongside Lark FM RSL broadcasts, and prior to the tie-up with KM being announced. Although qualitative research was conducted in June 2004 to 're-check' listening patterns, too much emphasis is given towards the January 2002 research, much of which was based on reactions to the Lark FM RSL service that will have sounded different in . many respects (e.g. no networking) to the proposed KM-FM Ashford service.
No research was conducted by Lark FM on the desirability (or otherwise) of sharing programming with neighbouring KM-FM services. Given that this is a fairly key part of the applicant's overall proposition, this is a significant gap in the research.
Lark FM has previously conducted five RSLs in the Ashford area, and this strong local heritage is reflected in a wealth of support letters submitted with the application from all sections of the community, including a substantial number of advertisers (many of whom advertised on the Lark FM RSL services)."
In his witness statement dated 22 February 2005, Mr Heasman stated that his reference to the over-emphasis to the January 2002 research should have been to the May 2002/0ctober 2003 research. This does not change the substance of the paragraph, which qualified heavily the reliance that should be placed on Lark's research evidence.
- Mr Wildman's contention is that there was no evidence at all of support for Lark within the meaning of section 1 05( d). This contention goes too far. The staff paper fairly summarised and qualified, indeed criticised, Lark's research, but it could not be said that the research· disclosed a complete lack of support. Most of the Lark letters of support were from advertisers, but that is nonetheless support within the meaning of section I 05( d), which need not be from the potential audience: hence the reference in that paragraph to both demand and support. That the authors of those and other letters might have been misled by the use of the same name as had been used for the RSL broadcasts was a matter clearly taken into account by the RLC, who had the benefit of the staff paper. It may be that the letters did not show support for the service to be . provided by Lark, but the staff paper fairly summarised the effect of the letters in the passage cited above referring to A-Ten 's argument that Lark's advertisements and publicity had been misleading. Lastly, the letter from Tenterden and District Residents' Association of 6. October 2004 demonstrates audience support and demand, although this is mitigated by the fact that Tenterden itself may be outside the reception area of Lark.
Legal Points: (a) Reliance on other applicants' research
- As has been seen, A-Ten FM submitted no research to Ofcom with its application, notwithstanding it having been made clear that greater weight would be given to research than to letters of support. It may be that this was due to a lack of finance: as mentioned above, the company has no share capital (other than £2). Be that as it may, presumably in order to get over this difficulty, in its application A-Ten FM stated:
" ... A- Ten FM respectfully adopts the research findings of all other applicants for this licence except where such claimed research contradicts the above findings. If Ofcom have any difficulty in applying other applicants research to the detail of this application then, after the other applications have been . posted, an analysis can be prepared for Ofcom. Under the terms of s. 105 we claim any such research that can be aligned to our application as constituting the required evidence."
The findings referred to were those derived from the 2 focus groups mentioned in the staff paper. Ofcom refused to use other applicants' research findings as asked. It gave two reasons for doing so. The first was that the evidence provided by other applicants' relating to their proposals is not evidence of support for A-Ten FM's proposals for the purposes of section 105(d). The second was that any analysis submitted by A-Ten FM of other applicants' research would constitute a material amendment to A-Ten FM's application, and it would be unfair to the other applicants to permit such an
amendment.
- Mr. Wildman contends that A-Ten FM was entitled to use other applicants' research
. in the way it sought. I sympathise with Ofcom's reaction to A-Ten FM's proposal. It was certainly audacious, all the more so since his failure to submit details of audience research was a factor that had led the Radio Authority to reject his licence application in 1997. Jackson J upheld the Authority's decision to treat Mr. Widlman's failure as an adverse factor. A-Ten FM's proposal was, in my judgment, inadmissible. An . applicant cannot cherry pick from research, putting forward that which supports him and requiring Ofcom to disregard that which detracts from his application. That was the effect of A-Ten FM's application. In addition, given the warning in the statutory advertisement, and the statement in their published description of their scoring system for assessing applications, which stated that under section 105(d) it would award points on "The extent to which an applicant's research demonstrates evidence of demand for the proposed service" (italics added), Of com were entitled to treat the lack of any audience research other than. that of the 2 focus groups as an adverse factor. Furthermore, to comply with A-Ten FM's proposal would be unfair to the other applicants who had submitted research supporting their proposed service.
- However, I do not think that section 105(d) prohibits Of com from considering all of the evidence before it when deciding on a licence application. There may be cases in which evidence submitted by one applicant does bear upon another application. Paragraph (d) is not limited to research evidence. For example, a letter calling for a particular service, e.g. classical music broadcasts, would be evidence of demand or support for all applications featuring such broadcasts. Doubtless care must be exercised if research evidence is to be so used, but I do not think that it is prohibited. If Of com may have regard to such evidence, if it finds it reliable, it must take it into account under paragraph (d). In fact, Mr Heasman took into account the research of most of the applicants when he concluded that there was a gap in the Ashford market: see the passage from the staff paper set out above. Secondly, I am not sure that the submission of additional evidence of support for a service proposed by an applicant is an amendment to his application.' It does not affect the proposed format of his programmes or his proposals for financing his enterprise. If Of com takes into account support demonstrated by letters received after applications have been posted on its website, it is not easy to see why other post-application evidence of support is . inadmissible.
- In his letter to Mr. Wildman dated 15 December 2004, Mr Heasman gave a further reason for not acceding to his demand as to the use of other applicants' research. He stated that their research was specific to their proposed services, so that it was inappropriate and misleading to apply it to a different service. If this assessment was reasonable, it constituted a good reason not to use other applicants' research as Mr. Wildman demanded. Mr. Wildman has not shown that Mr Heasman's view was perverse. It follows that for this and the reason given above, as well as its irrelevance given that Ofcom's assessment of A-Ten FM's financial means cannot be challenged, no ground for judicial review arises.
(b) Departure from the formats of other licensed services
- Section 106 of the Broadcasting Act 1996 is, so far as relevant, as follows:
"106 Requirement as to character and coverage of national and local services
(1) A national or local licence shall include such conditions as appear to [OFCOM] to be appropriate for securing that the character of the licensed service, as proposed by the licence holder when making his application, is maintained during the period for which the licence is in force ...
(1A) Conditions included in a licence for the purposes of subsection (1) may provide that OFCOM may consent to a departure from the character of the licensed service if, and only if, they are satisfied-
(a) that the departure would not substantially alter the character of the service;
(b) that the departure would not narrow the range of programmes available by way of relevant independent radio services to persons living in the area or locality for which the service is licensed to be provided;
(c) that, in the case of a local licence, the departure would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or
(d) that, in the case of a local licence, there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the departure.
(l B) The matters to which OFCOM must have regard in determining for the purposes of this section the character of a service provided under a local licence include, in particular, the selection of spoken material and music in programmes included in the service."
- Mr. Wildman contends that the award of the Licence to Lark will necessarily involve changes in the formats of other KM radio stations, since programmes are to be networked among those stations and Lark. By way of example, the format for KM FM Folkestone and Dover states that outside daytime, live company-branded. programming may be shared with the Thanet and Canterbury stations. The result of the grant of the Licence is that such programmes will be shared among all 6 of the KM radio stations. Mr. Wildman contended that any alteration to the character of a service has to be assessed in comparison with the character of the service as proposed by the licence holder when making his application (see subsection (l)) Thus an incremental departure which viewed individually as against the immediately previous character of a service would not be regarded as substantially altering that character will be prohibited if the character of the service following that alteration would be substantially different from the original character ..
- Reading subsections (1) and (1A)(a) of section. 106 together, on balance I think that Mr. Wildman is right in his interpretation. There is little point in subsection (1) if there can be incremental departures from the original character which ultimately lead to a substantial departure from the original. But the point is not free from doubt. Whether a departure substantially alters the character of a service would normally be determined by comparing the character immediately before the departure with that produced by it. But either way, subsection (IA) appoints Of com rather than the Court as the decision maker. Of com may permit a departure if it is satisfied that it would not substantially alter the character of a service. An alteration to the character of a service is not the same as an' alteration to the service or to the programmes broadcast. I do not think that the alterations to the formats of other KM stations to which Mr Wilding refers are changes in the character of their service: In any event, if an alteration in the character of the licensed service is. involved, I do not think that it would be unreasonable for Of com to conclude, given that some programmes are already shared, that an increase in the number of stations sharing those programmes from say 2 to 6 would not be a substantial alteration, although they would have to comply with section 1 06lA before doing so~
- It follows that if the change in the formats of other KM stations are alterations in their character, Ofcom could reasonably conclude that the alteration is not substantial. If it were to do so, it could consent to the alteration. It might also be able to consent to the alteration under paragraph (b) of section 106(2). Thus no necessary breach of section 106 follows from the award of the Licence to Lark.
- For these reasons, apart from the question of standing, I would not grant judicial review under this head.
(c) Competition
- Section 3 of the Communications At 2003 provides that it shall be the principal duty of Ofcom, in carrying out their functions: .
"(a) to further the interests of citizens In relation to Communications matters; and
(b) to further the interests of consumers in the relevant markets, where appropriate by promoting competition."
whether it is appropriate to promote competition appears to be an objective question. However, subsection (4) provides, so far as is relevant:
"Ofcom must also have regard, in performing those duties, to such of the following is appear to them to be relevant in the circumstances -
(a) ...
(b) the desirability of promoting competition In relevant markets;
(c) ...
(d) the desirability of encouraging investment and innovation in relevant markets; ... "
Clearly, under subsection (4), it is for Ofcom to determine whether the desirability of promoting competition is relevant. It is difficult to reconcile the objective test in subsection (1) with the subjective judgment permitted to Of com under subsection (4).
- Mr Wildman contends that, in awarding the Licence to Lark, Ofcom failed to further the interests of consumers by promoting competition, since KM is already the largest operator of commercial radio stations in Kent with a very large proportion' of the market in the county. Mr. Wildman's difficulty here is defining what is the relevant market. If the relevant market is Ashford, the award of the Licence to Lark did promote competition~ it increased the number of competitors among commercial radio stations to three. The fact that KM is the majority shareholder of Lark does not affect the competition in this market. In addition, it is notorious that the identification of the relevant market when a question of competition arises may be complex and difficult, and I should require considerably more evidence on this point in order to decide it than I have before me. Furthermore, it is only if it is appropriate that Ofcom is required by. subsection (1) to promote competition. Whether it is appropriate will depend on a number of factors, at least one of which will be whether promoting competition will not further the interests of consumers because, for example, the competition may lead to the collapse and withdrawal of one of the competitors. For those reasons, the evidence before me does not lead me to conclude that Ofcom's decision to award the Licence to Lark involved a breach of its duty under section 3( I). If there was no breach of its duty under subsection (1), there was no breach of its duty under subsection (lA), where it is for it to determine 'whether the desirability of promoting competition is a relevant consideration ..
Adequacy of reasons
- Mr. Wildman suggested that the reasons given by Ofcom for their decision were inadequate. In particular, they gave no reasons for their rejection of A-Ten FM's application ..
- Ofcom set out their strategy for licensing of FM commercial radio in a published document, in which they stated:
"45. We also proposed in the consultation document to publish a short statement after each licence award which sets out the key determining factors under each of the statutory criteria which led to our decision, and asked respondents (Question 12) whether such statements should include reference to unsuccessful applicants as well as to the winner.
46. A large number of respondents noted that the threat of legal challenges is likely to increase should Ofcom decide to comment on unsuccessful applications, and several mentioned that appearing to make a negative comment. about a particular company may affect its share price or damage its reputation. Nonetheless, there was a feeling that a reasoned, accurate and justifiable post award statement would be invaluable in enabling groups to learn from their mistakes and adding to the transparency of the process. Despite this consensus, there was a split between those who suggested. that Ofcom make public statements about the winning applicant and give private feedback to the unsuccessful bidders and those who felt that post-award statements would only be of value if commentary on both winning and losing applicants were to be provided publicly.
47. We have noted the mixed response to this question, and accordingly have given this issue careful consideration. We believe that the availability of applications on our website will enable interest parties· to reach their own conclusions about the relative merits of proposals, and are not convinced that making detailed, specific reference to unsuccessful. applicants is in the best interest of the industry or regulator. Consequently, we will publish statements after each licence award that provide a detailed discussion only of the successful applicant. However, we will seek to ensure that the level of detail provided is sufficient to be meaningful to all interested parties, including unsuccessful applicants. We therefore do not intend to provide private feedback to unsuccessful applicants."
- There is nothing irrational or unfair in this decision. Ofcom's published reasons for their decision to award the Licence to Lark was in accordance with the policy described in this document. Those reasons are in my judgment adequate, and no less so because they do not address why each of the unsuccessful applicants was considered to be less worthy of the licence than the successful applicant. In any event, in their evidence in these proceedings Ofcom have given full reasons for their decision that A-Ten FM should not be awarded the Licence. This ground of challenge is not made out.
Article 10 of the European Convention on Human Rights
·63. In his skeleton argument, Mr. Wildman .contends that the decision to award the
Licence to Lark and to refuse a licence to any other applicants:
(a) unjustifiably interfered with the Article 10 rights of the people of the Ashford area by preventing them from receiving information and ideas; and:
(b) unjustifiably interfered with the Article 10 rights of the licence applicants by preventing them from imparting information and ideas,
- Article 10 expressly permits the licensing of broadcasting. The licensing of broadcasting is "prescribed by law", namely by the Broadcasting Act 1990 and the Communications Act 2003, and the decision made by Ofcom to grant the Licence to Lark was made under that law. In Demuth v Switzerland (Application no. 38743/97) the European Court of Human Rights considered the licensing system for television broadcasts in Switzerland and concluded that it was capable of contributing to the quality and balance of programmes through the powers conferred on the. government. It was therefore consistent with the third sentence of paragraph 1 of Article 10. The Court emphasised the margin of appreciation afforded to domestic authorities in this context, and stated that the degree of scrutiny of the executive's decision may be less severe where, as in the present case, what is concerned is commercial speech. It is not suggested that the Broadcasting Act 1990 and the Communications Act 2003 are not capable of contributing to the quality and balance of programmes. Furthermore, Mr. Wildman did not argue that a decision to grant a licence t6 one applicant only was not a necessary and proportionate infringement of Article 10 rights. (He would in any event have been out of time to seek judicial review on the basis that Of com should have granted more than one licence, since its decision to grant one only was announced in its advertisement. long before these proceedings were brought.) It follows that provided the decision made by Ofcom complied with those enactments, no breach of anyone's rights under Article 10 has occurred. Mr. Wildman has not established that Ofcom did not comply with those enactments.
- Moreover, in relation to his second allegation of infringement of Article 10 rights, Mr.
Wildman is not a victim as required by section 7 of the Human Rights Act 1998, for two reasons. He was not an applicant for the Licence; and he does not allege that the licence should have been granted to A-Ten FM. Given that Mr. Wildman's real interest is as a broadcaster rather than a listener, I should have been reluctant indeed to grant any relief in respect of his second allegation, and given the lack of any support for his proceedings from other potential members of the audience, and the lack of any suggestion that there will be any restriction on the imparting of ideas as a result of the grant of the Licence to ~ark, if any relief were granted it would not involve the quashing of Ofcom's decision.
- It follows that Mr. Wildman has not established any right to relief under Article 10.
Conclusion
- Mr Wildman is obviously passionately concerned to be involved in local commercial radio. He has devoted considerable time, energy and application to applications for licences and challenging the decisions of the authority responsible for the awards of licences. He has scrutinised Ofcom's decision and criticised a number of its assessments of the relevant facts. But this is not an appeal on fact. This is an area in which, as I have stated, the Court allows the decision maker a wide measure of discretion and width of decision. Having regard to his standing, or lack of it, his factual contentions, if established, would not have led me to quash the decision to grant the Licence to Lark.
- For the reasons I have set out, the claim for judicial review will be dismissed.
