Canal+ must wait to see if court will help in its HBO battle

But it will have to wait a few more weeks to see if the Supreme Administrative Court (NSA) will help prod the country's media watchdog into acting on delocated broadcasting. The NSA last week delayed a decision on Canal+'s complaint against the KRRiTV, saying HBO and another party had to be notified about the case.
Canal+, a pay-television station, filed its complaint against the KRRiTV a month ago as part of its long-running attempt to block HBO from beaming programming into Poland from Hungary.
Although Canal+ filed a complaint with the KRRiTV more than two years ago, the agency has failed to take a stand on delocated broadcasting. "The court does feel it should investigate the case, but not before HBO and Kaliska Telewizja Kablowa (another party to the complaint) are notified that such an investigation is ongoing," Jan Balo, the judge presiding over the case said during the NSA's first hearing on the matter last Friday. Now both Canal+ and the KRRiTV have two weeks to notify the two companies and after that period the case will be heard again.
But media players remained skeptical last week that Canal+'s latest move will bring it success against rival HBO.
"I don't think anything will change after the NSA has its say on this case," said Tomasz Welnicki, deputy head of the Sejm's Culture and Media Committee.
Przemyslaw Szmyt, deputy president and general counsel of @Entertainment, owner of digital provider Wizja TV, said that the case will not touch the original question of delocation. "The NSA has to investigate the alleged negligence by the KRRiTV of its duties," he said. "But it has no legal tools to decide on the basis for the case."
Such a decision rests with the KRRiTV, which will be arbiter of competing claims regarding delocated broadcasting. The practice is used by broadcasters including HBO, Wizja, RTL7, Eurosport, and Polonia 1. They broadcast to Poland from abroad on the basis of the Poland-ratified European Convention on Transfrontier Television.
The convention was amended last fall introducing a concept of abuse of rights as a broadcaster, but the amendment was not ratified by any of the 15 countries that are parties to the law. The companies operating on the basis of the Strasbourg convention said that even when Poland ratifies the amendment they will still operate legally.
"The amendment clearly says that an abuse of rights occurs when a broadcaster that uplinks its programming from a foreign country and broadcasts it to another country which is a party to the convention does it in order to evade the laws binding in the country," Szmyt said. "Even if (Wizja TV) tried really hard to become a Poland-based broadcaster and operate under Polish media law and not international convention, which is also a part of local law here because it was ratified by Poland, with the way our company's share capital is structured we could not do so.
"We are not evading the law, it's the law that is structured this way that we can't possibly move our operations here," he said.
Both Wizja and other stations broadcasting from abroad have repeatedly declared that they would be willing to move their uplink facilities and acquire all obligations of Polish broadcasters, if caps on foreign shareholdings were lifted.