Ont. court clears way for U.S. DTH services

Toronto - An Ontario Court of Appeal ruling on April 20 clears the way for Canadians to buy and own and even sell U.S. direct to home (DTH) satellite systems such as DirecTV, without fear of reprisal.

The case stemmed around an RCMP search and seizure of DirecTV receivers and decoders at two stores in Lindsay, Ont., in 1999. A lower court had quashed the search warrants used to enter and seize the equipment, and the Attorney General of Canada appealed.

The Lindsay retailer who owned both stores was doing what several Canadian electronics retailers were and are offering customers a DirecTV setup with all of its American programming, complete with a U.S. post office box for billing. Since U.S. DTH companies are not licensed by the CRTC for Canadian transmission, the American companies require a U.S. address for billing. The loophole gets around the CRTC's television footprint.

The appeal court seized upon the sloppy wording of the warrants and the ambiguousness of the applicable section of the Federal Radiocommunication Act, 9 (1)(c) which made it illegal for Canadians to have and use an American dish until this ruling.

A similar ruling in B.C. where ExpressVu sought and lost an injunction against a similar retailer will be heard in the Supreme Court of Canada this year.

The section of the Act reads: "No person shall decode an encrypted subscription programming signal or encrypted network feed otherwise than under and in accordance with an authorization from the lawful distributor of the signal or feed."

The three-judge panel on the court of appeal interpreted that to mean that since people were paying for the service, they were not stealing them. The court of appeal decision says the section "prohibits the decoding of a subscription programming signal without authorization from 'their' lawful distributor," in this case, DirecTV. "Had Parliament intended to provide for a total prohibition, it would have prohibited decoding of a subscription programming signal except in accordance with 'an authorization from 'a' lawful distributor of 'a' signal or feed.'"

The conclusion of the court said, "in summary, s. 9 (1)(c) of the RCA is ambiguous. Parliament's intention is not sufficiently clear to warrant the use of the coercive powers of the criminal law to punish individuals and companies engaged in the reception of DTH satellite programming signals from foreign countries.

"The content of foreign programming is not prohibited. It is the decoding of the signal that is of concern. The wording of the French version of the legislation suggests that the prohibition is not absolute and does not apply to foreign distributors. The justification for the principle that ambiguity in criminal legislation is to be resolved by choosing the interpretation most favourable to the accused applies to this case. As a result, I would hold that the motions judge was correct in determining that the offence in this case was not one known to law. The motions judge was also correct in concluding that the other requirements for the issuance of the warrants were not met.

"For these reasons I would dismiss the appeal."

Neither the Canadian Cable Television Association or the Canadian Association of Broadcasters have yet formulated a response to the decision, nor had the Attorney General decided to take it to a higher court. It has 60 days to make a decision.

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