Mguel Angel Oliva, vice-president of public relations and corporate affairs, HBO Latin American Group.

Three of Jamaica's largest cable companies are unlawfully distributing HBO and Cinemax programmes, the owners of the content have alleged in a complaint to the Broadcasting Commission, and an executive of HBO Latin America Group says the company is fed up with years of negotiation that have gone nowhere.

But cable operators have shot back that HBO has been trying for more than a decade to force Spanish content on an English-speaking market, and is just now developing a service specifically for the Caribbean that could potentially replace the feed they now take.

The Broadcasting Commission is now investigating, said chairman Dr Hopeton Dunn.

The regulator has told cable operators to "cease and desist" showing the feeds in the interim, Wednesday Business was advised.

HBO is making the case that the issue is both one of infringement of intellectual property rights and a breach of the terms of their subscriber TV licences, which dictate that the content distributed must be with the agreement of the owners.

HBO Latin American Group, which says it has sole jurisdiction within the international company for signals and content in Latin America and the Caribbean for eight channels - HBO, HBO Plus, HBO Family, HBO Caribbean, HBO HD, HBO on Demand, Cinema and Max Prime - says it is losing US$5 million to US$6 million annually from non-compliant Jamaican cable operators who broadcast their signal and distribute their content without permission.

Spanish feed unsuitable

"We have major problems with Jamaica," said Miguel Angel Oliva, HBO-LAG vice-president of public relations and corporate affairs.

"We have been talking with the cable companies and Broadcasting Commission - nothing has happened."

But one of those cable operators says Jamaica has been trying to tell HBO Latin America that this market does not want Spanish content, and that to discontinue the distribution of the North American feed would be akin to giving away customers to rivals.

"All our competitors have the North American content, so we would be at a disadvantage," said Florence Darby, managing director of Telstar Cable.

Columbus Communications Jamaica, trading as Flow and Logic One, were also named in the HBO complaint with Telstar and accused of "pirating the said broadcasts contrary to honest business practices".

Dismissing HBO's claim of constant appeal to regularise, Paula Francis, manager of Logic One, said the programmer has spoken to her company twice, the first time being in July 2009.

"HBO, 10 years ago, offered a Spanish feed," she said. "We do not speak Spanish."

The Jamaican operators offer North American content, but this, said Darby, is a breach of HBO policy, whose domestic strategy requires that signal and content must be acquired from the entity that owns and distribute programmes in particular zones.

But now the company is in the process of fine-tuning a new Caribbean channel which, according to the 'demo', appears to offer much of the same content of the feed Jamaicans like and currently consume, according to another operator, who spoke on condition of anonymity.

That feed remains in the developmental stages, no contracts have yet been developed, nor has the service been priced, the operator said. But companies will subscribe to the feed ifit retains the programming that the Jamaican market wants, the operator said.

Angel, who was in Jamaica on an overnight visit Monday, told Wednesday Business that his company had blocked HBO and Cinemax on the weekend.

But Wednesday Business checks indicate that while, for example, the HBO feed on Flow was disrupted, it lasted about an hour, and the channel was still up and running at mid-afternoon Tuesday.

Darby, however, said Tuesday that her company has removed the channels from its offerings "until the issue with HBO is resolved." Her company meets again with HBO today to continue negotiations. Francis also said that Logic One has dropped the feeds.

Darby said she is somewhat wary of the company, whom she believes is aggressively pushing to strike a deal with her to build a more concrete case that the other companies' failure to pay amounted to a breach of the fair competition rules.

"I have a good relationship with the other operators," said Darby, who added that she would not want to upset that in any way.

HBO-LAG has already alleged in the Broadcasting Commission complaint - in an August 17, 2009 letter - that not only does the alleged 'pirating' of its signal and content constitute a breach of copyright and trademark laws, it was also "an act of unfair competition" under the Fair Competition Act for current and future businesses.

Said the letter signed by Jose Sariego, vice-president of legal and business affairs, it "places the cable companies at an unfair advantage over other cable and similar broadcast companies that are either already established or which propose to be established in Jamaica. Lastly, the cable companies' actions amount to a misrepresentation to the public that the cable companies have the required permission to broadcast HBO and Cinemax signals in Jamaica."

Regulator not responsive

Angel complained Monday that up to now the Broadcasting Commission has not been as responsive as the company would have liked.

"We had a meeting last year. They said they would help with infringements."

The letter of complaint, copied to HBO's lawyers, DunnCox in Kingston, comes after what Angel says has been years of discussions, still ongoing, with all the parties.

Dunn told Wednesday Business that the commission received the letter on August 24, and immediately wrote to the three cable operators on August 25 and 26, asking that they provide him with information.

Any action taken by the commission, he said, would be dictated by the responses given by the three companies who are Jamaica's top cable providers.

"We are just soliciting information at this stage," said Dunn.

"If it is established that cable operators are using material or content that is not properly acquired, then we will act."

Dunn confirmed that selling content without permission from its owners does constitute a breach of the STV licences.

Where such breaches have been detected in the past, the commission, he said, has often worked with the companies as intermediary to get their service regularised.

Flow Jamaica, a subsidiary of a larger regional company - in a late statement last night that skirted Wednesday Business queries on HBO's claims including why its service was compliant in some countries but not in others - said only that the company was still in dialogue with HBO and the Broadcasting Commission on the issue of content developed for Jamaica being in line with the North American feed.

"This is an industrywide issue," said Flow marketing director Sharon Roper via email.

Angel said, however, that if the operators did not like the content the company was offering, they had another option - not showing the material.

To that Darby said: "Our customers want HBO," and cutting the feed would put her company in an unfair position, given that all others are offering the illegal content.

"If we all stop then that's fine," she said.

Angel says HBO has grown impatient with the discussions and is prepared to act more aggressively, which, he said, includes an unexplained legal strategy.

lavern.clarke@gleanerjm.com

( L - R ) Paula Francis, manager of Logic One Limited, Florence Darby, managing director of Telstar Cable Limited and Michelle English, chief executive officer of Flow Jamaica.