The state-controlled National Telecommunications Regulatory Commission (NTRC) could face a lawsuit for damages over the arbitrary manner in which CHIME FM was forced off the airwaves just over a week ago.
Attorney for Grant Communications Limited (GCL), Ruggles Ferguson of Ciboney Chambers has written to the commission indicating that a lawsuit could be in the making over the CHIME FM issue.
Ferguson is working in association with Queen’s Counsel Dr. Francis Alexis, a former Attorney-General of Grenada on behalf of the Woolwich Road, St. George’s based station that is owned and operated by veteran broadcaster, George Grant.
The letter, dated October 24, is upset with the manner in which NTRC has been suggesting that GCL was operating illegally and that it did not have a licence to broadcast in the nation.
“We wish to advise the NTRC to cease and desist from conveying to the general public, through news releases or otherwise, that CHIME FM was operating without lawful authority and committing a ‘very serious offence’. The facts point otherwise”, Ferguson warned the commission.
The letter also dropped hints that the radio station would be making moves to recuperate certain sums that were paid to NTRC in licence fees.
Following is the full text of the letter:
National Telecommunications Regulatory Commission
Maurice Bishop Highway
Attention: Mr John Gilchrist
RE: DISCRIMINATORY TREATMENT OF GRANT COMMUNICATIONS LTD – INFRINGEMENT OF FREEDOM OF EXPRESSION – MISREPRESENTATION OF LEGAL STATUS
We are instructed by Mr. George Grant of Woolwich Road, St. George’s, President and CEO of Grant Communications Ltd (‘GCL’)
Our instructions are as follows:
(1). In December 2008 GCL was granted a licence to operate an FM Radio Station. That licence was due to expire in December 2013.
(2). During the initial five (5) year licence period, GCL did not take to the airwaves due to funding challenges. On November 8th, 2013, just prior to the licence’s expiry, Grant Communications advised the NTRC of its desire to have the licence renewed.
(3). GCL subsequently completed all application forms, paid all requisite fees, and received assurances from the NTRC that a recommendation had been made to the relevant Minister (Hon Gregory Bowen) for the renewal of its licence. Usually, once clearance has been given by the NTRC, the signing of the actual licence by the Minister remains a formality, unless compelling reasons dictate otherwise.
(4). On May 15th, 2014 CHIME FM eventually hit the airwaves, initially operating on the frequency 101.7. In its desire to keep within the law, before hitting the airwaves GCL expressly enquired of the NTRC whether it was okay for CHIME FM to proceed, since it had not yet received, in hand, its renewed license duly signed by the Minister.
NTRC gave GCL the ‘green light’ to proceed. NTRC is therefore estopped from making representations to the contrary.
(5). In fact, NTRC co-operated fully with GCL in ensuring the high quality of its broadcast. Immediately upon hitting the airwaves in May 2014, it was discovered that a Trinidad-based station was also operating on the same frequency – 101.7 – as CHIME FM, thus interfering with the quality of its broadcast. NTRC promptly granted another frequency, 100.9, to CHIME FM – the frequency it currently broadcasts from.
(6) Notwithstanding the above, by letter dated October 16th, 2014 but received on October 20th, the NTRC directed GCL to ‘immediately cease and desist’ broadcasting. Very surprisingly, the letter noted that it had been ‘brought to the attention’ of the NTRC that GCL was broadcasting ‘without the appropriate license’ and had submitted ‘an ineligible application for renewal’.
(7). Further noting that no consideration would be given to any request from GCL ‘until it has curtailed its illegal activity’, the NTRC letter was quick to point out that the company’s conduct was contrary to Section 28 of the Telecommunications Act, describing it as a ‘very serious offence’. Breach of Section 28 attracts a maximum fine of One Million dollars (EC$1,000,000.00) and maximum imprisonment of ten (10) years.
(8). GCL immediately ceased CHIME FM broadcasting upon receipt of the NTRC letter (Oct 20th), in compliance with the directive contained therein.
(9). On October 22nd, 2014 CHIME FM returned to the airwaves after being issued a new licence. In order to obtain that licence, CHIME FM was made to fill out fresh applications forms and to pay another set of fees, totaling $1000.00, consistent with a new application.
(10). On the same day (Oct.22nd), NTRC circulated a release to the local media stating that GCL had applied for a licence the day before (Oct 21st) and that the application was being processed.
The October 16th NTRC letter represented a sudden and striking departure from its prior representations and actions. As you are well aware, our client has always co-operated with the NTRC. Its CEO (Mr George Grant) has always been committed to operate within the confines of the law. Indeed, NTRC and GCL have enjoyed excellent relations over the years.
Our client is therefore deeply concerned with the impression being conveyed that CHIME FM was operating ‘illegally’; that it has only just applied for a licence; and that GCL has committed a ‘very serious offence’. As you must be aware, such statements misrepresent its true legal status.
Moreover, subsequent to the ‘cease and desist’ order effectively shutting down CHIME FM, our client has discovered that the majority of radio stations in Grenada continue to operate, without interference by the NTRC, pending the renewal of their licences by the Minister.
Indeed, that seems to be the practice. None has been threatened; none has been shut down. Moreover, and of even greater concern, is the discovery that some stations continue to operate, unaffected, even though their licenses have long expired and they have not even applied for renewal.
Our client has sought legal advice regarding the very distasteful and draconian manner in which CHIME FM has been forced to temporarily ‘cease and desist’ operations. Based on the instructions aforementioned, GCL has been accordingly advised that:
(1). At all material times CHIME FM was broadcasting pursuant to lawful authority;
(2). GCL had a legitimate expectation that the application for renewal of its broadcast license would have been signed by the Minister after being duly recommended by the NTRC.
(3). At the time of the ‘cease and desist’ order, GCL had a proper application for renewal of its licence pending before the NTRC. NTRC is estopped from denying this, having already accepted the application, having assured GCL that it (GCL) may proceed with its broadcast, and having made the relevant recommendation to the Minister.
(4). In all the circumstances, the decision to order GCL to cease and desist broadcasting was arbitrary, illegal, unreasonable and irrational.
(5). GCL ought not to have been forced to make a new application for a licence on October 21st and to pay fresh fees ($1000.00) to the NTRC, having already paid the same fees for its renewal application which had been pending. GCL is entitled to a refund of those fees.
(6). Discriminatory treatment has been meted out to GCL in breach of Section 13 of the Grenada Constitution which affords protection against discrimination as a fundamental right.
(7). GCL has been denied its fundamental right to free expression, which includes the right to receive and communicate ideas without interference, as guaranteed by Section 10 of the Grenada Constitution.
(8). GCL has been denied the protection of the law afforded by Section 8 of the Constitution.
(9).GCL has suffered loss and damage arising from the forced shut down of CHIME FM for which it is entitled to damages.
(10). Further, GCL is entitled to damages for breach of its constitutional rights.
(11).Statements and news releases that tend to convey that CHIME FM was operating ‘illegally’ and committing a ‘very serious offense’ constitute a serious defamation against GCL and its CEO for which both may pursue High Court action for damages.
We wish to advise the NTRC to cease and desist from conveying to the general public, through news releases or otherwise, that CHIME FM was operating without lawful authority and committing a ‘very serious offence’. The facts point otherwise.
In the meantime, our client reserves all its rights. Please be advised that both Dr Francis Alexis QC and the undersigned are handling this matter on behalf of GCL.
CC: Chairman, NTRC