The Cable Guise (Page 3)

"Delocated broadcasting" is, in short, the last wildly unregulated frontier of modern television. At a meeting in Strasbourg in September, the European Council's Standing Committee on Transfrontier Television identified the jurisdictional problem posed by HBO Polska: With an uplink and downlink in Hungary, programmers based in Britain, subscriber-fulfillment service based in the Netherlands and the station's target audience in Poland, responsibility for regulating HBO Polska is so diffuse as to elude any national oversight. That, in fact, appears to have been the point of HBO's byzantine business plan--now the subject of an unprecedented lawsuit by HBO's major competitor in Poland, the French-owned Canal Plus.

Canal Plus's challenge pits two giants of the world cable industry in a legal duel bound to break new ground in the arena of international media law. With a two-pronged offensive taking place in a Hungarian court and at Hungary's National Radio and Television Commission (ORTT), Canal Plus claims that by transmitting its signal from Hungary, HBO is engaging in "unfair competition."

The facts of the case are straightforward: Canal Plus abides by Polish regulations, which require a specific percentage of European and Polish productions to be part of the station's program schedule. The French company insists that because its competitor's signal lands in Poland, it should be subject to the same requirements. But HBO claims that its uplink service is little more than a delivery system, a provider of signals across a telephone wire, and thus is subject solely to Hungary's far more liberal laws--the laws it helped to write. Canal Plus is asking the ORTT to halt HBO Polska's transmissions and asking the civil court to assess damages for lost subscribers.

Volumes of technical arguments have been submitted to the ORTT by both sides, but the question can be put succinctly: Do the Poles have the right to determine whether Little Miss Millions can prance her way into Polish living rooms? Or, as HBO claims, is this a purely Hungarian question, since Little Miss Millions does her thing in Budapest and only happens to be carried on telecommunications wires into Poland? Of course, this is not simply a matter of Little Miss Millions but also of millions of minutes of celluloid counterparts that will follow her into the increasingly lucrative new media marketplace of Eastern Europe.

Jean-Louis Erneux, a Canal Plus spokesman in Paris, comments: "We operate on the basis of a license issued by the Polish authorities. That license includes obligations, including showing a certain number of Polish and European programs, and promising to invest in a certain number of original Polish-produced programs. We have a competitor that does not abide by any of those rules."

Publicly, HBO asserts that it has registered its Polish service with the Telecommunications Authority, and is thus operating within legal bounds. "Canal Plus's objective is to get HBO Polska off the air," asserts George Douglas, general manager of HBO in Hungary. "They don't want the competition. It has nothing to do with culture." Douglas claims that HBO is "gradually increasing" its amount of European programming, though at this stage it is nowhere near Polish standards.

Privately, however, an HBO official based in Europe who requested anonymity confirmed that HBO Polska's unorthodox status is intended precisely to evade Polish program quotas. "HBO is a Hollywood movie channel," he says. "Our programming couldn't exist there, because they have 50 percent European content quotas. It couldn't operate as a Polish broadcaster, so what HBO Polska does is function as a foreign broadcaster."

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