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Cable clash! - Illegal access to US networks puts OPM and Broadcasting Commission on collision course

Published:Sunday | May 17, 2015 | 5:00 AMGary Spaulding
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The directive issued by the Broadcasting Commission of Jamaica (BCJ) to cable television operators to cease transmission of approximately 20 channels by the end of the month is set to be overruled and reversed by the Office of the Prime Minister (OPM).

Sunday Gleaner sources last week indicated that the OPM would be rewriting the script after major stakeholders in the local cable industry appealed to Prime Minister Portia Simpson Miller and minister without portfolio Sandrea Falconer, who has day-to-day responsibility for information, operating out of the OPM.

Some major players in the local cable industry have charged that the BCJ jumped the gun in its directive that the cable channels should be pulled, and it appears legal advice given to Falconer supports this view.

"I gave you a commitment that I would seek legal advice on the directive as well as the steps taken prior to it being issued.

"The legal advice I have received suggests that the actions were taken outside of the legislative provisions. I have shared this with the Broadcasting Commission," Falconer said in response to the concerns raised by the Jamaica Association of Community Cable Operators in a slew of letters to her.

Sunday Gleaner sources further say that the OPM is concerned that it was not properly briefed by the BCJ on the matter before it went public with its directive.

Falconer refused to comment extensively on this matter as she told our news team that discussions on the issue were continuing.

"The OPM has been in discussions with the Broadcasting Commission on the directive issued to cable operators on April 24. The discussions have not yet concluded, and when they have, I will comment further," said Falconer.

Well-placed sources told The Sunday Gleaner that the BCJ's plan to convene a press conference and issue the directive had not been communicated to Falconer.

Chairman of the BCJ, Professor Hopeton Dunn, told our news team that dialogue was had with all the stakeholders.

According to Dunn, the commission is now gathering feedback from stakeholders on issues regarding the implementation of its directive.

"We have made no decision to rescind the directive, but we are aware of concerns regarding the implementation based on all the issues involved, and the commission will discuss this going forward," said Dunn.

He refused to be drawn on the possible reaction of the BCJ if the OPM reverses its decision even as he reiterated that the commission was an independent regulator.

"I am not going to speculate on what is not before me, but the law allows the commission to regulate, and it does what it is authorised to do under the law," declared Dunn.

Any decision by the OPM to reverse the BCJ's decision will undoubtedly anger powerful interests in America, where the Office of the United States Trade Representative (USTR) has kept Jamaica on its watch list for 2015.

The US has listed Jamaica among a group of CARICOM states that broadcast musical works publicly performed by radio and television broadcasting stations without licences from the appropriate public performances rights organisations.

"Cable operators and television and radio broadcasters reportedly refused to negotiate with the performance-rights organisations for compensation for public performances of music," said the USTR.

With regard to cable and satellite broadcasting of copyrighted network programming, Jamaica was listed as one of the states where entities intercept and retransmit copyrighted content without remuneration.

Despite the threat of a backlash from the powerful neighbours in the North, local cable operators are adamant that the BCJ's decision must be reversed as it did not follow the proper procedure mandated by Section 20 of the Broadcast and Rediffusion Act in issuing the directive to address what has been described as a contravention of the licences granted to cable television companies.

The section states: "Where there is a contravention of any licence, the Commission shall give to the licensee notice in writing specifying particulars and requiring that the licensee, its action, or otherwise take such remedial action as may be specified in notice."

It is being argued that the BCJ failed to carry out its mandate to regulate on the basis of the provisions of the act, and as such, should not have gone outside of what the law prescribes.

Falconer has brushed off claims that any reversal of the BCJ's directive would be condoning the activity of cable operators to show content, which they have not legally acquired.

The minister told The Sunday Gleaner that Jamaican and other cable distributors have sought to negotiate licences to show a number of channels originating in the United States.

According to Falconer, while she was not seeking to justify or condone wrongs in the cable industry, she hoped to address a problem that has existed since 1998.

Falconer said that while two rights holders, in recent times, had taken steps to license their programming in Jamaica, the majority of rights holders remained reluctant to negotiate such authorisations.

"The Government of Jamaica recognises this matter to be a trade issue," said Falconer.

She said the Government was working towards a resolution through continued dialogue with the United States Trade representative and other interested stakeholders in the United States, as well as through regional efforts within the Council for Trade and Economic Development of the Caribbean Community.

"This has led to a proposal for a meeting to be held as soon as possible between US rights holders and regional cable operators," said Falconer.

She disclosed that the ministry had set up a committee and was actively engaging the cable industry, the BCJ, the Ministry of Foreign Affairs, and the Attorney General's Chambers in guiding the preparations for the regional meeting.

"Importantly, I wish to state that our cable operators have been working together with the Broadcasting Commission over the last six months to move towards compliance," said Falconer

"The matter remains the subject of collaborative, ongoing work at the bilateral, and now the regional, levels with the United States government. Jamaica is maintaining an open-door policy to rights holders to discuss intellectual property-related concerns of mutual interest," added Falconer.

She said the US had acknowledged the effort being made by Jamaica to address the cable issue as well as progress made regarding copyright.