My Thoughts on Technology and Jamaica: Jamaican Cable Providers get 3 month Extension – How to win General Election 2017 and Why OPM can overrule @BCJamaica for Procedural Error

Tuesday, June 2, 2015

Jamaican Cable Providers get 3 month Extension – How to win General Election 2017 and Why OPM can overrule @BCJamaica for Procedural Error

“......following consultations with stakeholders and the Office of the Prime Minister, the Broadcasting Commission decided today to extend by three months the implementation of the directive issued on 24th April 2015, pending further consultations and consideration of the issues.....”

Excerpt from Statement issued by the BCJ on Tuesday May 26th 2015 relating to the removal of some (19) Cable Channels by the forty nine (49) Cable Operators in Jamaica

In a shocking development that has many tongues in Jamaica wagging, the BCJ (Broadcasting Commission of Jamaica) has decided to extend the deadline for the removal of the nineteen (19) Cable Channels for another three (3) months as reported in the article “Cable Operators Get Three­Month Extension”, published Wednesday May 27, 2015 by Anastasia Cunningham, The Jamaica Gleaner

Cable Operators now have until Monday August 31st 2015 to comply with the BCJ's request to remove the nineteen (19) Cable Channels, followed by an additional seventy nine (79) afterwards, bringing the total to ninety eight (98) Cable Channels. Just to reiterate, those Cable Channels are as follows:

1.      Encore Black
2.      Encore Family
3.      Encore Love
4.      Encore Suspense
5.      Encore WAM
6.      Encore Classic
7.      Encore Drama
8.      Encore Mystery
9.      Encore Movie Plex
10.  The Movie Channel Xtra 4
11.  Showtime East
12.  Showtime West
13.  Showtime TOO
14.  Showtime 2
15.  Showtime Showcase
16.  Starz Comedy
17.  Starz West
18.  Starz Kids & Family
19.  Starz Multiplex

FLOW, now owned by LIME Jamaica or at least CWC (Cable and Wireless Communications), has removed thirteen (13) of these Channels, replacing them with some FOX Movie Channels as noted in the article “FLOW Removes 13 Illegal Channels, Announces New Ones”, Published Monday June 1, 2015, The Jamaica Gleaner.

This about face occurred after the BCJ did some consultation with the OPM (Office of the Prime Minister), which is run by the Prime Minister of Jamaica Portia Simpson Miller. I say “about face” as the removal of the (19) Cable Channels had been set to occur on Sunday May 31st 2015 as chronicled in my blog article entitled  “49 Cable Providers told by @BCJamaica to remove 19 Cable Channels - VPN Streaming of Netflix and illegal DVD's as FLOW is expensive”.

This was at the request of several US Content Providers due to breaches of United States (US) Intellectual Property Rights, as negotiations have not yielded any steady payment from Local Cable Operators for the rebroadcast of their content.

Apparently, either the Prime Minister of Jamaica can't bear to not watching her favourite show on her Cable TV in the OPM. Or, like many Jamaicans who have FLOW Cable, she didn't realize that it would have resulted in FLOW, now owned by LIME Jamaica, having to raise their prices as noted in my blog article entitled  “FLOW increases Cable Package prices - 19 Channel removal on MNP, LNP Day as Summer of 2015 for Streaming and Downloading

But is there another reason?

Cable Providers get 3 month Extension – Why Breaking the Law can be overturned by the OPM

To begin with, many of the forty nine (49) Cable Operators are not even legally registered to operate as registered businesses, often getting their Channels using hacked Cable Boxes using Satellite dishes.

They then multiplex these Channels and rebroadcast them to members of the community willing to pay as low as JA$700 per month for their services. Many Jamaicans are happy for these illegal Cable TV Operators, especially as their offered Cable Channels at rates cheaper than FLOW, whose lowest package starts at JA$2000. Also, these illegal Cable providers often including Channels licensed for broadcast only in the US of A.

Most of the Channel packages above, mainly Encore, Showtime and Stars Cable packages, have content that can only be broadcast in the US of A only. Even then, American Broadcasters can only do so with the permission of the US Content Providers. Under the Copyright Act 1995 here in Jamaica, Cable Operators must obtain permission or licenses for all Channels and programmes they transmit.

So the Law is clear cut and the actions of the Cable Operators are suspect.

Still, despite being clearly in the wrong in terms of how many of the forty nine (49) Cable Operators operate, they somehow managed to convince the OPM and Minister of Information Sandrea Falconer that they were victims of a BCJ that was not following the rules. 

Cable Providers get 3 month Extension – Why Breaking the Law can be overturned by the OPM

Their defense is really more a case of the Cable Operators taking advantage of a technicality in Law and knowing their rights, and is a good example for Law Students interested in aspects of Copyright and Broadcast Law.

The forty nine (49) Cable Operators claimed that the manner in which they were told to cease and desist from broadcasting those (19) Cable Channels was not in keeping with the proper procedure as stipulated by Section 20 of the Broadcast and Re­diffusion Act.

Or put simply, they were not given notice in writing BEFORE the BCJ made their declaration to the forty nine (49) Cable Operators to remove those (19) Cable Channels being illegally broadcast by Monday August 31st 2015 as chronicled in my blog article entitled  “49 Cable Providers told by @BCJamaica to remove 19 Cable Channels - VPN Streaming of Netflix and illegal DVD's as FLOW is expensive”.

This, according to the Local Cable TV Operators, is unfair, especially as the BCJ had failed to regulate, instead using a “Big Stick” approach to bully the poor, defenseless Local Cable TV Operators into compliance.

Hence the reason why they ran to the OPM seeking assistance, painted themselves as the victim and thus got a “Get out of Jail Card” to use the term from the game Monopoly!

They also claimed that the BCJ was not carrying out the actions of a regulator and their actions fell outside of their mandate. This is actually true, as under Jamaica Law, the BCJ has no powers of arrest under Law or the ability to enter premises and seize equiptment.

Worse these forty nine (49) Cable Operators also claimed to be in constant negotiation with the US Content Providers. A suspicious statement, being as they'd been broadcasting these illegal Cable Channel for years, some without ever having a Cable Operators License.

So the issuing of their directive, even if it were allowed despite the Procedural error, would have no weight, as there would be no way to really enforced it. The only action the BCJ could really take would be the revoking of the licenses of the legally registered among the forty nine (49) Cable Operators who were in breach of the directive.

Then those among the forty nine (49) Cable Operators that were operating illegally would face no action, as without the powers of arrest under Law or the ability to enter premises and seize equiptment, they could only report them to the Jamaica Police. And as usual, the Jamaican Police would take Bribes in exchange for not shutting them down, especially as many of them live in the same community as the Cable Operators.

So since they've got really good connections to dodge a clearly stated provisioning the Copyright Act 1995, how were able to wrangle this deal?

Cable Operators and General Election 2011 – How to win a General Election 2017 as BCJ’s hands are tied

A possible theory that has been gaining traction in the Facebook and Whatsapp Chat rooms is that the Cable Operators might have been decisive in the now ruling PNP (People's National Party) winning the last General Elections in 2011 as chronicled in the article “PNP Wins 2011 General Election”, published Thursday December 29, 2011, The Jamaica Gleaner.

Though there is no solid proof of this possible link between the PNP and the Cable Operators, my various people-in-the-street have suggested to me that the Cable TV Operators may have used their Community Channels, usually used to broadcast Local Dancehall Videos, to also broadcast propaganda within the Ghetto communities of Jamaica.

This may have been done in exchange for the Politicians from the PNP turning a blind eye to their activities such as late night parties after the 2 p.m. curfew as well as stealing Electricity from JPS Co (Jamaica Public Service Company), says my people-in-the-street contacts that I regularly meet with in Facebook.

It might explain why all this time, the BCJ has not been able to have the Police arrest any Cable Operators or seize their equiptment and shut down their operations much in the same way some people staling electricity in the ghetto communities never seem to be arrested.

It’s because they were ALREADY directly contributing to the PNP winning the General Election back in 2011 by allowing free PNP Campaign advertisement to be played on their Community Cable Channels.

This was a lot like some of the illegal Bag juice manufacturers as described in my blog article entitled “BSJ's Bag Juice Regulations – Why Ministry of Education must support School Gardens as Sugar in Bag Juice linked to Lifestyle Diseases” making and selling PNP Branded bag juice a well as contributing some of their proceeds to the PNP Campaign.

It is even possible that in exchange for their current reprieve, they may have also cut a deal with Prime Minister Portia Simpson Miller and the Minister of Information Sandrea Falconer to freely broadcast PNP Campaign Propaganda come General Election 2017, which are constitutionally due in 2016.

Word -on-the-street people, not fact! So take it with a grain of salt as even I can’t say this is true.
But my explanation does help you make sense of what SHOULD otherwise be a clear violation of the Law.

For this reason, the BCJ's hands are tied. With no political leverage as well as Jamaican Law not giving them the powers of arrest or the ability to enter premises and seize equiptment, the Cable Operators have escaped yet again.  

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