Battle of words continues between Canadian broadcasters and JumpTV.com

The debate over JumpTV appears stalled as lawyers from both sides battle over the need for further consultation before the Copyright Board can issue the upstart Internet re-transmitter an interim tariff (CNM, Nov. 1/00). Dueling letters to the board were exchanged in the last two weeks as Jump lawyer Sunny Handa dismissed the arguments of the broadcasters rallying against the proposed tariff. David Kent of McMillan Binch, responding on behalf of the Canadian Association of Broadcasters, urged the board to convene a meeting to settle the dispute. As expected, the ghost of iCraveTV.com is looming over the current JumpTV debate. Responding to opponents of Jump’s proposed tariff, iCrave says it wants to set the record straight regarding assertions made by CAB lawyer Peter Grant during its company’s legal battles. Mark Hayes, who helped defend iCraveTV, says Grant was wrong to say the company withdrew its tariff application in the face of opposition from Canadian rights-holders. In fact, argues Hayes, it stopped pursuing a tariff as part of its agreement with American broadcasters to cease service in return for the end to suits against it. "The implication of Mr. Grant’s letter (to the Copyright Board regarding JumpTV) is that the evidence and allegations made by the Canadian rights holders were somehow so compelling that iCraveTV shut down its operations rather than respond to them. Nothing could be further from the truth," Hayes writes.In his Nov. 17 letter, Handa says the collectives haven’t yet demonstrated a clear argument why Jump wouldn’t qualify as a section 31 retransmitter, despite several letters against issuing the tariff. "Most of the collectives provide no details of their arguments as to why Internet re-transmission is not covered by section 31. (The Canadian Copyright Collective) states that it will not provide detailed grounds for its position ‘in accordance’ with the Board’s past practice’," he writes. "The Applicant is not aware of any policy or procedure statement by the Board which states that parties should not disclose their reasons for opposing the granting of an interim tariff and it appears from the Board’s previous tariff decisions that extensive argument is often made by the parties...." He says the assertion that issuing a tariff would cause "irreparable harm" to rights holders – as argued by the Canadian Copyright Collective – hasn’t been supported with substantive facts. Nor, he writes, should the board worry about a "floodgates" effect, as predicted by the Canadian Retransmission Collective: "It is assumed that this is meant to claim that any interim tariff issued by the Board might actually be used by the Applicant and possibly others," he writes. Handa’s letter also restates Jump’s arguments that it will not fall victim to "signal leakage" outside Canada, and that Internet re-transmission doesn’t differ from current technologies, such as cable or satellite TV. "There is no magic to the Internet – it is just another set of ‘wires’ which can be used to deliver communications signals," he writes. But the CAB’s Kent maintains that Handa has "advanced numerous controversial legal and factual propositions which were not revealed in his original letters.... The CAB disputes the accuracy and validity of many of them," his Nov. 23 letter states. Kent goes on to repeat the broadcasters’ request for a full inquiry, saying it’s not even known if Jump would begin operations in 2001. "There does not appear to be any urgency requiring a hastier approach." Copyright Board officials won’t say what the next step will be, but speculation by industry observers holds that it’s likely the CAB will get its wish for in-depth hearings, probably sometime early in the new year.

Battle of words continues between Canadian broadcasters and JumpTV.com

Broadcast | November 29, 2000

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