Dublin music radio station Radio Nova is preparing to take legal action against Transport Infrastructure Ireland, the operator of the Dublin Port Tunnel. The legal action will challenge TII in relation to the fact Nova’s programmes 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.

Radio Nova claims the restriction is in breach of EU competition regulations and the 2002 Competition Act and that it is "inherently unfair and damaging" to its business.

"The situation is fundamentally unfair,” Chief Executive Kevin Branigan emphasised. "Their decision to carry only seven radio stations on account of limitations in their own technology is distorting the radio market within the Tunnel and causing us loss and damage on a daily basis. We've spent five and a half years trying to engage with them and have got nowhere. We are no longer prepared to accept a situation where our competitors FM104, 98FM and Today FM are carried in the Tunnel and we are not."

Nova wants Transport Infrastructure Ireland (TII) to either include it in the line-up of stations carried or to remove all FM radio services in the Tunnel. In what may prove to be a controversial view, Nova is also claiming that the Port Tunnel's system for communicating with motorists in the event of emergency is "fundamentally flawed" and that it has shown favouritism to Denis O' Brien's Communicorp in the broadcasting of his radio stations within the Tunnel.

TII has accepted that its technology "has limitations” – but the company which operates the tunnel insists that the seven radio stations broadcast are selected on an entirely objective basis – that is, on the basis of listenership figures.

According to reports, Nova is in the final stages of preparing injunctive proceedings and also intends to sue the State agency for damages.

"TII will not take us seriously,” Kevin Branigan told Hot Press. "It's a huge issue for us. It is not just that we are disadvantaged for a five-minute journey. Thousands of cars drive into the Tunnel listening to Nova every week and drive out listening to one of our rivals. We have firm feedback that many listeners actively change the station from Nova as they approach the Tunnel as they know they will lose us – and it can sometimes take people several days to retune to us."

Nova has rejected TII's claim that it bases its choice of channels on JNLR listener results, pointing out that TII has not applied this policy impartially. Specifically, according to Nova, the operators of the Tunnel engaged with Denis O'Brien's Communicorp in 2007 and allowed it to 'swap' Spin 1038 for Newstalk, despite the latter station having less listeners than Spin at the time.

Nova has also raised concerns about the so called 'leaky coax' system used by the Port Tunnel to rebroadcast FM radio signals, claiming that in excess of 25% of radio listeners using the Tunnel do not hear emergency announcements as they are not listening to the one of the seven stations carried. The Port Tunnel carries RTE Radio 1, Today FM, Newstalk, FM104, 98FM, Spin 1038 and Q102. “Essentially,” Branigan insisted, "if you're not listening to one of these radio stations, you will not hear any safety announcements as you drive through the Tunnel. In fact, you will not be aware that any safety announcements are being broadcast at all.

"TII have conceded to us that this is the case,” the Nova CEO added. "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 25% of motorists and are not concerned about it.”

Nova is further calling on TII 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. TII have told us that they don't need to be regulate. However, they will not provide us with any further information on this. They are acting in a position not unlike a 'DAB multiplex operator' would be in the UK; they control which stations are broadcast in the Tunnel, but they do not appear to be regulated by anybody."