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Regulator Revokes Bahamian Sports Radio License

"Police raided our tower and confiscated the transmitter, now we wait for our day in appeals court"

The author is partner of Navette Broadcasting.

NASSAU, The Bahamas — URCA, The Utilities Regulation & Competition Authority in the Bahamas has canceled our Sportsradio 103(FM) spectrum license. We were the country’s only sports formatted broadcaster and the police shut us down by raiding our tower and confiscating the transmitter!

Vann Ferguson is a parter at Navette Broadcasting.

My partner and I started Sportsradio 103(FM) nine years ago as an all sports radio station. It was a joint venture between former Olympian, Frank Rutherford and Phil Smith and my partner Cheryl Braynon. We entered an agreement in 2009 with Rutherford/Smith supplying their government issued “letter of authorization for an FM license,” and Cheryl and I providing the funding and operations. It seemed to be a perfect fit.

THE BEGINNING

When we presented Rutherford’s letter, we learned that it pre-dated the new Communications Act of 2009 and could only be grandfathered into the new URCA regime enacted the same year, empowering URCA with the authority to license radio stations. We discovered at that time that the new Act could only license incorporated companies and so we used our company, Navette Broadcasting, to get licensed.

We restructured the shares in the spirit of our 50/50 agreement giving Rutherford and Smith shares and director positions. This, consequently enabled us to begin broadcasting in 2010 with a spectrum license issued to Frank Rutherford and Phil Smith for Navette Broadcasting Co. Ltd.

Cheryl Braynon is a partner at Navette Broadcasting

Our company operated for eight years as such, maintained an amiable relationship with URCA, paying the annual fees, and never committing an infraction. We were also listed on URCA’s website as the spectrum owner. By 2017, URCA was five years into a self-imposed moratorium on issuing FM licenses in the small island city of Nassau, having issued 22 spectrum licenses to date for the small market and population of only 300,000.

The business environment was very challenging and Sportsradio, though popular, was not providing investor returns as projected and by 2018, Rutherford/Smith wanted out of the deal with Navette Broadcasting. They subsequently applied to URCA for the “change of control of ZSR 103.5(FM).” URCA appeased and came up with what my partner and I regarded as the most unfair and improbable resolution.

URCA reasoned that there was no need for a “change in control,” declaring our license void and defective, reissuing the same spectrum frequency license (103.5) to Paramount Systems Ltd., the new Rutherford/Smith partnership with casino operator Sabas Bastian.

URCA’S DECISION

My partner and I were told three months after Rutherford’s new company had received the green light, learning by industry rumors that a new 103.5(FM) would be testing shortly. We went headfirst into survival mode appealing URCA’s decision, “to cancel our license without due process or a fair hearing.” We stood our ground, not turning off our transmitter in defiance of URCA’s request protected by our court actions to fight the decision until URCA eventually seized the police on us to raid the transmitter tower.

Former NBA player Rick Fox of the Lakers (left) chats it up with Sportsradio 103.5(FM) morning show host Marcellus Hall (center) and Lawrence Hepburn during a broadcast.

We sought and lost relief from the supreme court on the grounds of jurisdiction with cost; sought and lost relief from URCA appeals tribunal with cost. And, again on the grounds of jurisdiction, we were refused an application for leave to apply for judicial review by the supreme court with cost, due to “delayed” filings.

From what we initially envisioned as a clear case of the regulator overstepping its bounds, the regulator’s attorneys have skillfully misdirected this into our defending procedural moves in appealing their decision, avoiding a hearing so far on the substantial case.

Our Attorney, Khalil Parker, president of the Bar Association in the Bahamas, has filed an appeal and contends that URCA adjudicated on matters entirely outside of its jurisdiction, The act mandated applicants must be incorporated entities and URCA failed to acknowledge the license was clearly marked “for” Navette Broadcasting Company.

The license in dispute was clearly a civil matter and Navette was entitled to due process before being deprived of its license. URCA ought to have recused itself as opposed to acting as arbiter in a private dispute wholly unrelated to regulation. Mr. Parker claims URCA erred in their interpretation and use of the Communications Act 27(1)(a) to vary the license if the applicants license was void as alleged, as revocation would have been appropriate in the circumstances.

Therefore “curing” the alleged defect, issuing the same license to Paramount Systems is merely an unlawful and unconstitutional taking of the Applicants property. We at Navette Broadcasting are out of the radio business. Our company is eager to have our day in court so the substantial case can be heard. We are presently waiting for a date for the appeals court in the Bahamas.

Radio World has invited the regulator to reply to this commentary and will share any response.

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