58
S.C. 128\02
contention that the allocation of frequencies should be entrusted to an independent
regulating authority which, no doubt, will take into account the constraints relating to
the limited frequencies available.
Section 9(3) does not, in my view, create a monopoly.
It merely
provides that no person should be a holder of both a broadcasting licence and a carrier
licence. If anything that section militates against monopoly. The applicant’s attack
on this subsection appears in paragraphs 18.6.3 to 18.6.6 which provide as follows:-
“18.6.3
It does not follow, however, that separation of producing and
transmitting functions is of benefit to anyone. Broadcasters
like Capital Radio are fully able to produce and transmit their
own content and regard this as the full realisation of its right to
freedom of expression.
18.6.4
It is submitted that there is no discernible benefit to citizens in
the imposition of these provisions. There is no good or cogent
reason for this split in function, and it is difficult to see the
reason for the inclusion of these provisions in the Act.
18.6.5
It is Applicant’s submission that once again the only benefit
that accrues is to the government and the ruling party in that
they can now not only control who receives a broadcasting
licence (which in effect becomes merely a programme
producing licence), but they can also control the transmitting
companies. This means that if a broadcaster was to become
objectionable to them they could stop the service at the
transmission company because this would be a completely
different entity.
18.6.6
It is Applicant’s submission that the infringement to its right to
freedom of expression is clear. It is not being given the right
to be in control of the entities that would produce and transmit
its material as is the case with most other broadcasters in the
democratic world.
This infringement has no discernible
benefit to citizens and only seems to benefit the Second
Respondent’s thirst for control.
Therefore the harm is
completely disproportionate to the negligible benefits.”
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