4FM and Sunshine Radio Join Radio Nova in Port Tunnel Battle

Dublin radio station Radio Nova has been joined by rival stations Classic Hits 4FM and Sunshine 106.8, in its litigation against Transport Infrastructure Ireland, operators of the Dublin Port Tunnel.

Radio Nova, which is home to Marty Miller (pictured) and Dee Woods, announced in December 2015 that it is to seek an injunction against TII, over the fact that the station cannot be heard in the Tunnel. Only seven radio stations are broadcast in the Port Tunnel due to limitations in its current system. Radio Nova is not one of them and neither Classic Hits FM or Sunshine can be heard either. The ultimate aim of the case is to force TII to rebroadcast the signals from all three litigants in the Tunnel.

“Classic Hits and Sunshine share our greviances and have joined our action as co-plaintiffs,” Nova CEO, Kevin Branigan, explained. "While we compete with each other for listeners and advertising revenue in the market, all three of us have commonality in that we’re being seriously disadvantaged commercially by TII’s technology limitations; it makes sense us for us to collaborate.

Radio Nova has also extended an invitation to RTE to join its action. The national pop station, RTE 2FM, was removed from the TII roster in 2015 and is no longer available in the Tunnel.

Nova is in the final stages of preparation of its action. “We want TII to either include Radio Nova in the line up of stations carried or remove all FM radio services in the Tunnel,” a spokesperson told Hot Press. Nova also intends to pursue TII for damages under Council Regulation (EC) No 1/2003 and Section 2 of the Competition Act 2002.

"The Port Tunnel authorities have ignored all three radio stations for years,” Kevin Branigan added. “They’ve dismissed our legitimate concerns and treated us with contempt. There is no way for us to effect change in this situation, other than the legal route.”

THE BACKGROUND TO THE LEGAL BATTLE
Due to limitations in its technology, the Port Tunnel is unable to broadcast more than seven radio stations. Transport Infrastructure Ireland, under whose remit the Port Tunnel is run, claims that it selects the seven radio stations broadcast based on listenership figures.

However, Radio Nova management say that this is untrue, accusing the Port Tunnel authorities of retrospectively ‘cobbling together’ a rationale for how it picks radio stations. Nova has accused TII of breaching its own procedures to facilitate Denis O’ Brien’s Communicorp radio group.

Nova claims in addition that the ‘leaky feeder’ system used to broadcast FM services in the Port Tunnel is not fit for purpose in its current configuration. Radio stations not rebroadcast in the Tunnel account for almost 30% of radio listening; limitations of TII’s system mean that Tunnel users who do not move stations cannot hear emergency and safety announcements.

“TII have conceded to us that this is the case,” Kevin Branigan revealed. "They have also stated that the safety of motorists is their primary concern, but they have no plans to address this. It’s staggering that the operators of a major thoroughfare in the middle of the capital city of Ireland is unable to communicate with almost 30% of motorists and they are not concerned about it.”

Nova’s research shows that it can take its listeners days to return to the station, if they retune to its competitors while in the Tunnel. “This is not just about a five-minute trip,” Branigan added. “ It’s about forced listener behaviour that discriminates against us. Thousands of people drive into the tunnel listening to Radio Nova every and drive out listening to one of our rivals. It cannot be allowed to continue.”

Sean Ashmore, CEO of Classic Hits 4FM and Sunshine 106.8, said, “We’re happy to become a full partner in Nova’s action as it seems abundantly clear it is the only way the situation will be resolved. We’ve attempted to engage with the Port Tunnel for several years and got nowhere. This situation needs to be resolved and we would call for some common sense to prevail.”

Nova is further calling on TIE to clarify the legal status of its broadcasts in the Port Tunnel, claiming that it is has placed itself, by its actions, in a position where it controls the number and type of radio services available in a portion of the public domain. “Our understanding is that all FM radio broadcasting in the public domain in this country is regulated by Comreg and the BAI. TIE have told us that they don’t need to be regulated. However, they will not provide us with any further information on this”, says Branigan.

QUESTIONS FOR TRANSPORT INFRASTRUCTURE IRELAND
Nova has asked TII for clarification on a number of matters but has yet to receive a response from the guardians of the Port Tunnel. These are, as follows:
(i) How TII can claim to be using best practice in motorist communications when better standards exist, specifically technology that would not only broadcast all available radio services, but also enable Port Tunnel authorities to communicate on all FM frequencies to ensure maximum coverage for emergency and safety messages.
(ii) To explain the circumstances surrounding its decision in 2007/2008 to allow Denis O’ Brien’s Newstalk a position on its system despite the fact that Newstalk was not at that time within the top seven stations in terms of listenership
(iii) To explain the legal status of its use of FM broadcast transmitters to broadcast within the Tunnel.“Our legal team have demanded clarification on these crucial issues but have been waiting for a reply since December,” says Branigan.