HBO and other U.S. channels await court ruling on legality of selling into Canada

Alberta's senior trial court is expected to hand down a ruling within the next six weeks on the legality of C Band satellite programming sales in Canada. Lawyers Greg Cheung and Bill Mackenzie, acting for WIC Premium Television Ltd, asked for an injunction against Home Box Office, Showtime, Arts and Entertainment Channel, and several other U.S. specialty channels during a six-day hearing that began May 31 in the Alberta Court of Queen's Bench. (CCR, April 13/00). WIC has alleged for several years that the U.S. companies are knowingly selling TV signals into Canada that are not authorized for this market. If granted, the interim injunction would effectively shut down the estimated 1,800 dealers that sell C-band dishes across Canada, as well as C-band owners who use decoders to receive unauthorized U.S. programming. The judge in the case is expected to decide by late July or early August whether to force the U.S. companies to cut off service to customers they know live in Canada. "Those systems are illegal because there are no paid distributors in Canada legally offering services," Cheung says. "The gist of the interim injunction motion is to say that the Radiocommunications Act forbids the selling of subscriptions to HBO, Showtime, A&E Network, to Canadians. WIC's position is that, in order to receive that programming from the U.S., you have to buy it from a lawful distributor in Canada, such as ExpressVu, StarChoice, a cable company or a wireless cable company." If the injunction is issued, WIC will seek damages for lost revenues from the U.S. programmers, as well as from General Instrument, which manufactures the decoders. WIC's lawyers allege that GI knows how many decoders there are in Canada, because the company sold them to Canadians. "The (Alberta court) judge will determine if GI has to shut off its decoders in Canada," a lawyers representing Bell ExpressVu LP and other rightsholders told CCR in March. Cheung says Skylight Home Satellite Theatre, a U.S. C Band access seller, agreed to give WIC its customer database, which included the names and addresses of Canadian C-band subscribers receiving services illegally from U.S. satellite TV companies. "What we're saying to U.S. distributors such as HBO and Showtime, ‘here's the database. You say you don't want to be in Canada, so shut them off.'" While the political fallout from this issue is likely far from over, the Alberta case may render a final decision on the legality of C-band dishes. Canadian licensed broadcast distributors - with the full support of the RCMP - have maintained that buying and selling unauthorized programming is illegal, based on a 1997 Federal Court of Appeal decision. It was determined in that case that, under the Radiocommunications Act, consumers can face fines of up to $5,000 and/or up to 12 months in prison, while businesses face penalties of up to $25,000. However, the illegality of grey market subscriptions was thrown into question last December after a BC Supreme Court judge broke rank with his judicial colleagues, ruling that the Radiocommunications Act was never intended to tackle the grey market. Meanwhile, advocacy groups like C Band Alliance of Canada, which is supported by large satellite dish sellers and installers, says dish owners are on solid legal ground. The group points to a decision by Justice Charles Haliburton of the Supreme Court of Nova Scotia, who also ruled in 1997 that preventing Canadians from receiving satellite signals from outside the country "is clearly incompatible with freedom of speech".

HBO and other U.S. channels await court ruling on legality of selling into Canada

News | 06/22/2000 4:00 am EDT

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