Vancouver and Edmonton court cases could shut down Canadian C-band market

What remains of Canada's grey market in satellite TV could come to an abrupt end this year depending on the outcome of two separate court cases scheduled to begin in late May. The lawyer representing Bell ExpressVu LP and other rights holders says the cases are significant because they will bring an end to any uncertainty surrounding the applicability of the Radiocommunications Act in fighting grey market crime. Web Sites Fighting forDish Users RightsCanadians for Alternative Choice Television Incwww.cfact.comSatellite Communications Associationwww.scacanada.comAnti-Bell ExpressVu sitewww.expressvu.orgSatellite Legal-Rights Organizationwww.legal-rights.orgC-Band Alliance of Canadawww.cbac.netThe cases - scheduled for May 30 in Vancouver and May 31 in Edmonton - could also provide the legal leverage lawyers and the RCMP need to shut down the estimated half million C-band dish owners in Canada, as well as the suppliers that sell the equipment and arrange for programming to be beamed from the U.S. "These are two big cases that will really settle this issue for Canada," says ExpressVu lawyer Bill McKenzie, a senior partner with the law firm Crawford, McKenzie, McLean & Wilford. Since December, grey marketeering has technically been legal in Canada, after the BC Supreme Court struck down earlier court judgements outlawing the sale of unauthorized US satellite services. In a case that has vilified dish dealers - and shocked Canada's two satellite TV companies - Justice Donald Brenner broke rank with other courts across Canada when he ruled that the Radiocommunications Act was never intended to tackle the grey market. "In my view, if Parliament had intended in that section to make it an offense in Canada to decode foreign encrypted transmissions originating outside Canada as contended by the plaintiff (ExpressVu), it would have said so," Brenner stated in his December 10 judgement. "In s.9.1(c) Parliament could have used language prohibiting the unauthorized decoding of all or any subscription programming in Canada. This, it chose not to do." While the judge agreed that individuals who pirate TV signals without paying for them are breaking the law, he dismissed the argument that people who pay for a satellite TV service using a U.S. address are in violation of the Radiocommunications Act. As expected, ExpressVu appealed the decision, and last month the BC Court of Appeal has agreed to hear the case May 30 in Vancouver. A related court case will take place the next day in Edmonton before the Alberta Court of Queen's Bench. The May 31 case represents the latest round in WIC Premium Television Ltd's longstanding battle against Home Box Office, Showtime, General Instrument (GI) and EchoStar. The $100-million lawsuit began in California, and has since been thrown back onto Canadian soil after a California judge ruled the case was outside his jurisdiction. The plaintiff alleges that the U.S. companies are knowingly selling TV signals into Canada that are not authorized for this market. "For the past two years, (the defendants) have been doing everything they can under the sun to stop this case," McKenzie told CCR. "They said that Canada didn't have jurisdiction." McKenzie believes their case against the U.S. companies has been strengthened following last year's police raid of a Winnipeg satellite equipment dealer. He says that raid included seizure of the dealer's database records, which revealed the names and addresses of C-band and DBS customers receiving services illegally from U.S. satellite TV companies. "GI knows how many decoders there are in Canada, they sold them," says McKenzie. "The (Alberta court) judge will determine if GI has to shut off its decoders in Canada." Freedom to choose versus programming rights Canadian rights holders may have legal precedent on their side when it comes to suing companies that sell US DBS equipment in Canada, but re-directing their legal battles at the C-band market is proving to be more of a political and public relations challenge. Industry Canada and the CRTC have clearly sided with companies like ExpressVu when it came to cracking down on dealers that sold DirecTV and other U.S. satellite services into Canada. There was no mention at the time, however, of the thousands of C-band users who have been receiving American TV channels for more than 20 years. Those users - many of whom live in rural areas where TV signals have historically been scarce or non-existent - are now at risk of losing their television feed and being left with obsolete satellite dishes. McKenzie recognizes the sensitivity of going after the C-band market, but says the issue is the same whether DBS or C-band - U.S. companies are selling programming into a market for which they have no distribution rights. Those rights are currently held by Canadian companies like WIC. "The C-band market is no different from the small dish grey market," he explains. "People still have to use a fake U.S. address to get the channels. The only difference is that one service uses digital technology." Canadian satellite dealers aren't prepared to accept such legal challenges without a fight. They are waging a high-profile lobby campaign to enlist the support of politicians and daily media in a battle that they say challenges the rights of individual Canadians to choose, even if that choice involves international TV channels. Groups like the Satellite Legal Rights Organization are painting ExpressVu as the corporate Goliath trying to crush small entrepreneurs. Several web sites in support of the C-band crusade provide details of recent court cases and urge people to encourage their local MPs to support C-band users in their fight. The issue has already found several supporters within the Alberta legislature. Pro C-band advocates also slam the RCMP for its "pillaging and invasions" of smaller dealers across Canada. Despite the BC ruling that effectively legalized grey market activities, the RCMP has been continuing its raids, with one of the more recent ones in late March on a Montreal dish dealer. Satellite dealers are threatening to retaliate against such actions with their own lawsuits. McKenzie says most of the channels Canadians are purchasing illegally from the US are legally available in Canada from ExpressVu, Star Choice or cable TV. He says it will be up the to the courts to decide how these illegal services are shut down. "What is the fair way to deal with this? Rather than shut people off right away, they could be sent a letter notifying them that they have 30 days, for example, to get another system," says McKenzie. "If they want their money back, they can then seek retribution through their dealer or through GI. "We're not trying to blacken people's TV screens," he adds. "We prefer to call it relocating their service to an authorized Canadian supplier."

Vancouver and Edmonton court cases could shut down Canadian C-band market

News | 04/13/2000 4:00 am EDT

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