NASSAU, BAHAMAS – The Court of Appeal has allowed a local broadcast company more time to appeal a judge’s ruling which upheld the decision of the Utilities Regulation & Competition Authority (URCA) to ultimately strip its broadcast license.
Navette Broadcasting and Entertainment Company Limited filed an appeal in the Court of Appeal seeking an extension of time to appeal a written ruling of Justice Ian Winder.
Delivered on 27 September 2018, Winder refused to grant Navette leave to apply for Judicial Review.
Navette was represented by attorney Kahlill Parker. Attorney Sean Moree represented URCA.
The appellate court ruling read: “On 27 September 2018 the intended appellant (Navette) was refused leave in the court below to apply for Judicial Review. Navette promptly filed its Notice of Appeal on 11 October 2018, within the fourteen day time-frame prescribed by rule 11 of the Court of Appeal Rules.
“However, as per section 11 of the Court of Appeal Act, Navette required leave to appeal from this Court or the court below. Navette, due to the inadvertence of counsel, filed the appeal without having obtained the required leave.”
It continued: “The procedural error was only discovered when the intended respondent moved to strike out the Notice of Appeal. Within days of the service of the strike-out application the intended appellant filed the necessary application in the Supreme Court to secure the requisite leave.
“After a fiercely contested hearing, leave to appeal was ultimately granted. By that time Navette’s appeal was out of time and Navette filed an application for an extension of time in the Court of Appeal. The extension of time application was once again vigorously opposed by the intended respondent on the basis of long delay, prejudice to the intended respondent and the absence of merits of the intended appeal.”
The dispute between Navette and URCA primarily revolves around the ownership of the 103.5 FM radio license and the regulator’s decision to amend/vary an individual spectrum license (ISL) and re-issue it to Paramount Systems Ltd.
URCA ruled that Frank Rutherford, the Bahamas’ first track and field Olympic medalist, as well as the late sports broadcaster Phil Smith, were the true holders of the 103.5 FM radio license, and not Navette Broadcasting.
Navette contended however that the regulator had ignored the fact the license could not have existed without it following passage of the 2009 Communications Act, which required all broadcast licenses to be held by incorporated companies.
Navette has accused URCA of unlawfully taken the license, effectively shutting down its business.
Navette further claims that following the re-issuance of the licence to Paramount Systems, URCA subsequently seized its broadcasting equipment and continues unlawfully to retain possession of the same.
The ruling read: “Based on our analysis and examination of the prospects of success of the appeal as outlined above, and based on the trial judge’s grant of leave to appeal, after having considered the prospects of success of the appeal, we are of the view that the intended appellant has a good prospect of success on appeal.
“In the circumstances, therefore, we are of the view that time should be extended within which to appeal, subject to any prejudice which may be suffered by the intended respondent and which will be considered below.” It noted that URCA had not convinced the court that it will suffer any real prejudice should the extension of time.
“Having balanced the relevant factors and considered the arguments for and against the application for an extension of time the Court is of the view that this is an appropriate case for the Court to exercise its discretion in favour of the intended appellant and extend the time within which to appeal.”
The ruling added: “In the premises, we grant Navette’s application for an extension of time. Navette has leave to file its Notice of Appeal within 14 days of this judgment.”
Yesterday, Attorney Alfred Sears told Eyewitness News: “We are the lawyers for Paramount Systems. In this appeal we have not been served with any documents and have not participated in any hearings before the Court of Appeal. What we will do is review the ruling and give advice to Paramount and take Paramount’s instructions in terms of the way forward.
“At this point Paramount has kept its powder dry so to speak. We will review the matter advise our client and based on the instructions of the client and determine what we do.”