Canal+ loses battle, vows to press war

The Supreme Administrative Court (NSA) dismissed a motion by the company asking the court to direct the National Radio and Television Council (KRRiTV) to rule on whether such delocated broadcasting was illegal. The council had previously refused to make a ruling on the issue.
The NSA did not directly decide on Canal+'s motion. Instead it dismissed the complaint saying that Canal+ did not have legal standing to make such a request.
Although Canal+ wanted the KRRiTV to rule in regard to HBO, which beams its channel into Poland from Hungary, a decision against that company could ultimately affect other delocated broadcasters such as Wizja TV, beamed from the U.K., and RTL7, beamed from Luxembourg.
Lew Rywin, president of Canal + Polska, said the company had not yet decided if it would continue its fight against delocated broadcasting. He said the company would not take further action until it receives an official reason for the NSA's decision, which will not be released before May 19.
ŇObviously, we are not happy with the verdict and we'll use every way possible to get to a situation where all market competitors have equal rights,O Rywin said.
Considering Canal+'s options, Rywin said the company could petition the Council of Europe to call a meeting of the European Convention of Transfrontier Television, which in his opinion could help clarify the issue.ŇSending an extraordinary appeal to the Supreme Court is yet another option, but not before NSA's justification for the verdict comes up,O Rywin said.
In its decision to dismiss the case, the NSA said that although the court did feel the question raised by Canal+ in its complaint was relevant, it failed to prove that it had legal standing in the case.
Even though the NSA did not rule on Canal+'s complaint against KRRiTV or HBO, the latter took the dismissal as a victory. Judith Gliniecki, an associate attorney at Hunton&Williams, which represents HBO, said Canal+ was barking up the wrong tree by going to the NSA.
ŇPolish law is fairly clear when two companies such as Canal+ and HBO are competitors on the same market. There is no basis in the law for Canal+ to force the KRRiTV to make a decision,O she said.
But Canal+ argued it had a right to a decision from KRRiTV because it was being held to a different standard than its competitor. Because Canal+ has a broadcasting license it must comply with regulations regarding investment and programming. Delocated broadcasters don't have to comply with those rules. ŇPoland is being robbed by several TV stations while we have to comply with all of the rules,O Rywin argued. When awarded its broadcasting license by KRRiTV, Canal+ committed to complying with quotas concerning Polish-produced content, the amount of advertising it could broadcast, and how the station could finance the film industry.
Canal+ accused KRRiTV of negligence in its duties after council Chairman Boleslaw Sulik said he could not force HBO to stop broadcasting or seek a broadcast license since the station was not subject to Polish laws.
HBO has countered Canal+ saying it was in full compliance with the Polish laws regarding broadcasting since it was subject to the European Convention of Transfrontier Television, which was ratified by Poland in 1993.
ŇWe are not really surprised by the NSA's decision,O said HBO Polska General Manager Phil Roter. ŇIn legal terms, HBO is classified as a foreign broadcaster in Poland. Across Europe there are a number of channels that have the same status.
ŇAs is the case with all other foreign broadcasters, we fall under the convention's jurisdiction,O he added.
Although it has lost the battle at the NSA, Canal+ is not about to concede defeat in its war against delocated broadcasting. And it may not be alone in its fight.
Last week, daily newspaper Rzeczpospolita reported that high-ranking, Brussels-based, French officials said France would not agree to close European Union membership negotiations with Poland on audiovisual policy unless the Polish government banned de-located broadcasting of digital programs.
Nicolaus van der Paas, the European Union's chief negotiator, neither denied nor confirmed those reports while in Warsaw late last week. ŇI am not aware that the French government has brought forth the issue in those terms,O he told the Business Journal.
Still, the possibility of political influence coming into play raised hackles in other quarters.
Wizja TV, the digital provider owned by U.S.-based @Entertainment, issued a statement on Friday slamming the possibility of a link between the issue and EU negotiations.
ŇThe intervention of the French government on a private, commercial company should be treated as an example of unjustified political interventionism,O Wizja said. ŇSuch actions taken against Wizja TV on political grounds might be an indication of our competitor's economic weakness.O
ŇIt's more than possible that the French government is pressuring our government on that matter,O said Tomasz Welnicki, deputy head of the Sejm's Culture and Media Committee. ŇIn a letter sent to the Polish foreign minister it was suggested that we should stand behind European solidarity against the American capital.
ŇIn my opinion the Polish government shouldn't succumb to pressure,O Welnicki added. ŇIf we get soft in one area of negotiations, it will have bad consequences in other areas.O