Colombia. The Superintendency of Industry and Commerce issued a court ruling of first instance within the process for unfair competition established by CARACOL TV and RCN TV against TELMEX, TELEFONICA, DIRECTV, ETB and UNE.
The court case
The companies CARACOL TELEVISIÓN S.A. and RCN TELEVISIÓN S.A. sued the subscription television operators TELMEX, TELEFONICA, DIRECTV, ETB and UNE to be ordered to refrain from retransmitting their channels in both the analog and high-definition signal formats.
The applicant companies CARACOL TV and RCN TV claimed to be broadcasting organisations and therefore have the right to authorise or prohibit the retransmission of their broadcasts by any means or procedure, as provided for in Article 39 of Decision 351 of 1993, as well as in Law 23 of 1981 and the Rome Convention, (which Colombia adhered to through Law 48 of 1975), that is, they have a related copyright that empowers them to grant or deny permission to retransmit their signal.
The defendant subscription television companies denied that they were obliged to obtain the applicants' permission for the retransmission of the CARACOL TV and RCN TV channels on the basis of Article 11 of Law 680 of 2001, a rule which, in the opinion of the subscription television operators, would have established a limitation or exception to the related copyright rights of the plaintiffs.
The court decision
The Delegation for Jurisdictional Matters of the Superintendence of Industry and Commerce found it demonstrated that the plaintiff companies CARACOL TV and RCN TV have the quality of broadcasting organizations and, therefore, based on international standards (Rome Convention), community (Andean - Decision 351 of 1993) and national (Law 23 of 1981 or Copyright Law), they have the power to authorize or prohibit the retransmission of their signals by any means or procedure.
In addition, the Superindustria considered that the obligation enshrined in Article 11 of Law 680 of 2001 in relation to the obligation of subscription television companies to guarantee the reception of free-to-air television channels is in no way a limitation or exception to the related retransmission rights of broadcasting organizations such as CARACOL TV and RCN TV, as indicated by the Andean Court of Justice and the National Directorate of Copyright.
The Superintendence pointed out that the obligation of article 11 of Law 680 of 2001 for operators is to guarantee their subscribers, at no cost, the reception of open television channels, for which they can resort to different alternatives:
Obtain authorization from broadcasting organizations (CARACOL TV and RCN TV);
Provide your subscribers with a switchable selector; or
Use any other technologically suitable means to comply with this obligation, since article 11 of Law 680 of 2001 does not establish a right in favor of subscription television operators that allows them to transmit the signal of open television channels without their prior authorization.
In conclusion, the Superintendence ordered the defendants TELMEX, TELEFONICA, DIRECTV, ETB and UNE to refrain from retransmitting the CARACOL TV and RCN TV channels on their analog and high-definition signals without, in each case, having the prior authorization of the plaintiffs for each of their respective channels and types of signals.
Contested decision
Against the judicial sentence of first instance issued by the Superintendence of Industry and Commerce, appeals were filed which must be resolved by the Civil Chamber of the Superior Court of the Judicial District of Bogotá, as a judge of second instance.
