Wed | Sep 20, 2017

Prosecute criminal cable companies

Published:Wednesday | May 13, 2015 | 5:00 AM
Linton Gordon

There is now a deafening silence regarding the revelation that the cable companies that have been supplying us with subscriber television services have all along been purloining this service from the providers in the United States (US).

These Jamaican cable television providers are meticulous in collecting subscription fees from consumers. At least one provider bills some of its subscribers in US dollars, giving the impression that that provider is incurring expenses in US dollars.

What these cable providers have been indulging in is a criminal act and one must ask why the matter has not been treated as such.

Section 11A of the Broadcasting and Radio Re-Diffusion Act provides as follows:

(1) No person shall:

(a) establish, maintain or operate a subscriber television service; or

(b) operate as an independent programme provider except under and in accordance with the terms of a licence granted under this act.

(2) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence against this section and shall be liable on summary conviction before a resident magistrate to a fine not exceeding $500,000 or to imprisonment for a term not exceeding three years or to both such fine and imprisonment.

(3) Where a person has been convicted or an offence under subsection (2), the court may, in addition to any other penalty, order that any equipment used in committing the offence be forfeited to the Crown.

The cable subscribers who were unlawfully purloining the service of American cable channels and then selling it to us were clearly committing a breach under this section of the act. The authorities need to tell us what has been done to those persons. We cannot have a situation in which laws are being enforced against the little man, but when they are breached by big people, they are not enforced.

There is also criminal sanction under the Copyright Act against persons who unlawfully broadcast the works of other persons. Under Section 134 of the Copyright Act, it is an offence to broadcast the production belonging to another person without his consent. Section 134 provides as follows:

"(1) A person commits an offence who without sufficient consent -

(a) makes for sale or hire; or

(b) imports into Jamaica otherwise than for his private and domestic use; or

(c) possesses in the course of a business with a view to doing any act infringing the right conferred by this art; or

(d) in the course of a business -

(i) sells or lets for hire; or

(ii) offers or exposes for sale or hire; or

(iii) distributes

a recording which is, and which he knows or has reason to believe is, an illicit recording.

(2) A person commits an offence who causes a recording of a performance made without sufficient consent to be:

(a) shown or played in public; or

(b) broadcast or included in a cable programme service, thereby infringing any of the rights conferred by this part, if he knows or has reason to believe that those rights are thereby infringed.

(3) In subsections (1) and (2), "sufficient consent" means -

(a) in the case of a qualifying performance that is not subject to an exclusive recording contract, the consent of the performer; and

(b) in the case of a performance that is subject to an exclusive recording contract, the consent of the person having recording rights

(4) References in this section to the person having recording rights are to the person having those rights at the time of the consent is given or, if there is more than one such person, to all of them.

(5) No offence is committed under subsection (1) or (2) by the doing of an act which, by virtue of any provision of the part, may be done without infringing the rights conferred by this part.

A person convicted under Section 134 of the Copyright Act in a Resident Magistrate's Court can be fined up to $100,000 or sent to prison for up to two years. If convicted in a Circuit Court, the person can be sentenced to a fine or to imprisonment for up to five years or to both a fine and imprisonment. No cap is placed on the fine that can be imposed.

It is difficult to believe that the owners, shareholders and directors of the cable companies involved in the theft of the service were unaware of what was happening. There must have been monthly or annual reports on the performance of these cable companies.

The trading account of these cable companies and their balance sheet must have shown an absence of expenditure for subscriptions to the owners of the services for which they were charging. And if they were not being paid for, these directors must have known that they were not being paid for because they were being stolen.

Who are the directors of these companies, and why are they remaining silent in the face of a confession by a manager of one of the cable companies who spoke frankly on television admitting that all along his company has been purloining the services of American producers?

The Government cannot just wash its hands of this matter. It has a duty to protect its citizens from such rapacious acts of exploitation.

- Linton P. Gordon is an attorney-at-law. Email feedback to columns@gleanerjm.com and lpgordon@cwjamaica.com.