Saturday, July 26, 1997 By Terence Corcoran HOME Box Office, the U.S. cable network, just garnered 90 Emmy nominations in recognition of quality programming. But HBO is still banned in Canada. The network was not on the list of foreign services approved Wednesday by Canada's dictator of cable and satellite television content, the CRTC. Others banned by the CRTC include Bloomberg Television and the U.S. versions of the Discovery Channel, The Comedy Network, the Disney Channel and scores of other program services deemed too subversive for Canadians to watch in their original form -- unless, of course, the same programming passes through the hands of a Canadian middleman or monopolist who will culturally sanitize the programming by skimming off a fat profit. Once a Canadian has grabbed a piece of the action -- as a distributor, broadcast licence holder, cable operator or satellite owner -- Canadians are allowed to view the U.S. content. This banana republic setup has been in place for decades, and now it may be getting worse. A judge has concluded in one of the satellite disputes that it may even be illegal for a Canadian to pay for HBO and other networks as they come in over the border on U.S. satellite systems. The oral judgment by Mr. Justice Frederick Gibson of Federal Court of Canada in the case of ExpressVu versus Norsat and other companies was issued last month, but the written version sets a number of bizarre precedents that appear to deeply infringe on individual rights. By ruling in favour of ExpressVu, the Canadian satellite company, Judge Gibson has essentially come up with a judgment that is the equivalent of making it illegal for a Canadian to subscribe to Fortune or Cosmopolitan magazines or to buy a copy of Vanity Fair or Esquire on the newsstand. In this judgment, it is illegal for a Canadian to watch HBO and scores of other channels now available in the United States -- even if the service is paid for -- on the grounds that the federal Radiocommunication Act makes it illegal. The act says no person shall decode an encrypted signal without paying for the service and without authorization of the person who has the lawful right in Canada to transmit the signal. The purpose of the act's clauses on encryption is a technical one to prevent fraud. Evidence presented by Andrew Roman, the lawyer for Norsat, makes it clear that the intent of the government was to make it illegal for people to use counterfeit decoders and other devices to avoid payment. All the debates in Commons committee focus on the act as an attempt to prevent theft of signals. No such theft occurs when Canadians subscribe to and pay for a U.S. satellite service. But Judge Gibson's judgment ignores the theft-of-signal intent of the legislation. Instead, he interprets the act, in conjunction with other laws, and concludes that the clause on encryption makes it illegal for anyone to subscribe to a U.S. satellite service. Norsat has filed an appeal. What makes this judgment even more unusual is that it effectively attempts to make it illegal for a Canadian to pay for a U.S. channel on a U.S. satellite, when the identical U.S. channel is available on Canadian cable or satellite. For example, WGN-TV in Chicago can be picked up on Canadian cable, Canadian satellite or on U.S. satellite. In each case, the subscriber pays for the service. But under this judgment, it would be illegal to pay the U.S. satellite for WGN-TV. Who does this serve -- other than giving Bell and the cable companies more revenue. Even stranger is that many of the networks carried by U.S. satellites are already available in Canada over the air waves free, or on cable, or on C-band, an alternative satellite service that has been available in Canada for years. A Seinfeld episode can be picked up free over the air from a U.S. television station, or on a U.S. station via cable, or on a Canadian station on cable. But if the same Seinfeld episode were bought by a Canadian from a U.S. satellite service, it's illegal. Filling the troughs of the Canadian broadcasting industry and transmission systems may be the purpose of broadcasting policy, but it is certainly not the objective of this section of the Radiocommunication Act. Canada's specialty networks, meanwhile, are gearing up to flood the country with copy-cat versions of the networks banned by the CRTC -- including The Globe and Mail, which is a partner in ROBTv, a business channel that hopes to benefit from the fact that Bloomberg will be banned in Canada. Other brilliantly innovative duplications of U.S. networks are The Home and Garden Channel, History Television, The Comedy Network, Discovery and Country. Is this unique Canadian culture? One such Canadian offering, The Family Channel, has even abandoned all pretext to being a Canadian original: it's changing its name to recognize the source of most of its content: The Disney Channel. http://www.globeandmail.ca/docs/news/19970726/ROBColumn/RCORC.html