CVM TV scores own goal

CVM TV has suffered a major defeat after the Supreme Court dismissed its attempt to challenge the Broadcasting Commission of Jamaica’s (BCJ) decision to censure the station over “misleading advertisements” regarding the broadcast of English Premier League (EPL) football matches earlier this year.

In a judgment delivered on December 18, Justice Sonya Wint-Blair sided with the BCJ, stating, “The commission had the power to censure CVM and require remedial action.”

CVM had sought a judicial review, a legal process allowing the court to determine whether a public authority acted fairly in its decision-making. However, the court found that CVM had failed to meet the criteria to proceed with the review.

Justice Wint-Blair noted that “none of CVM’s rights were adversely affected by the decision,” and emphasised that CVM’s case was primarily challenging the correctness of the BCJ’s decision, which is not grounds for judicial review.

The station had argued that the BCJ was penalising it for activities related to online platforms it does not regulate – specifically CSport.tv and the CSport app, both owned by VertiCast Media Group. However, the judge rejected this argument, asserting that CVM and VertiCast are closely interconnected.

“CVM cannot distance itself from VertiCast as CVM is the headquarters of VertiCast and VertiCast’s president [Oliver McIntosh] is the general manager of CVM. The president of VertiCast is responsible for its day-to-day affairs and VertiCast submitted to the jurisdiction of the regulator and is bound by the laws of Jamaica,” she explained.

McIntosh has not responded to Sunday Gleaner questions on whether the station will comply with BCJ directives or appeal the court’s decision. The BCJ was also approached for comment, but it did not respond up to press time.

The BCJ announced on April 9 that it censured CVM, which it said “facilitated misleading advertising” of EPL football matches on the online platforms CSport.tv and the CSport app. The commission concluded that CVM is “presumed to have had knowledge that the games were not being delivered as expected due to its close affiliation with VertiCast”. The BCJ said one of the promos twinned the “CVM” and “CSport” logos, “implying that both entities are related and involved in the EPL offering”.

The BCJ required CVM to broadcast 12 apologies over a one-week period no later than April 15.

The regulator clarified that it had taken no action against CSport.tv and the CSport app because Jamaica’s broadcasting laws do not directly regulate online services.

The court halted the implementation of the remedial actions after CVM filed its application for permission to seek judicial review on April 15, to challenge the BCJ’s decisions.

ARGUED DECISION UNFAIR

CVM argued that the regulator’s decision was unfair, illogical, and exceeded its authority. The station argued that it was wrong for the BCJ to use its affiliation with the VertiCast Group to make a finding against it. It also contended that it had not been given an opportunity to respond before the censure was imposed, violating principles of natural justice. It also argued that the BCJ had unfairly used CVM’s affiliation with VertiCast to issue a penalty, despite CSport being an online platform outside the BCJ’s jurisdiction.

In support of CVM, Business Manager Debra Shaw argued that the station had not been informed of the investigation until February 8, and that it cooperated fully with the BCJ until receiving a notice of breach on April 8. However, the BCJ dismissed CVM’s claims, arguing that the February 8 notice clearly outlined the scope of the investigation, which focused on whether CVM’s broadcast licence was being used in the public interest.

The BCJ said its senior director for monitoring, compliance, and investigations, Don Dobson, notified CVM’s general manager, McIntosh, via email about its investigation into complaints from subscribers who were unable to access EPL games despite paying for the service.

McIntosh responded on February 9 and a series of exchanges ensued between the entities.

Despite clarifications, CVM wrongly treated the BCJ’s queries as narrowly focused on the non-airing of matches rather than the broader issue of misleading advertising, argued BCJ Deputy Executive Director Nicole Walford in her evidence for the commission.

AMPLE TIME to RESPOND

The BCJ stood by its findings, asserting that CVM had ample time to provide necessary information and that it followed proper procedures. The BCJ also rejected CVM’s argument that the regulations did not clearly outline the process for censuring a licensee.

Justice Wint-Blair sided with the BCJ, noting that judicial reviews are a last resort and that CVM had “sufficiently suitable alternate remedies”, including asking the BCJ to reconsider its findings. While CVM argued that such a request would be ineffective due to perceived bias, the judge emphasised that the censure was issued in accordance with Section 20 of the Broadcasting and Radio Re-Diffusion Act.

Section 20 allows the BCJ to issue written notices to licensees for licence breaches, requiring justification or remedial action but imposing no sanctions for non-compliance. If a licensee fails to comply, the BCJ must refer the matter to the responsible minister, who decides on further action. Section 22 mandates that the minister allow the licensee an opportunity to respond before taking action.

The judge also highlighted evidence that VertiCast had voluntarily subjected itself to the BCJ’s jurisdiction when it acquired CVM in 2022.

CVM was further castigated by the judge, who argued that the station was not an “innocent third party” and had a duty to verify that VertiCast, its parent, could deliver the promised content.

“ ... It would be somewhat disingenuous of the applicant (CVM) to come before a court of law and equity to ask for relief for itself, leaving affected customers out in the cold while disclaiming all knowledge of what goes on in that entity, retreating instead behind the corporate veil,” she said.

CVM’s claim that it was not afforded an opportunity to be heard before the censuring was also dismissed.

“The commission invited information or any explanation from CVM, who failed to avail itself of the opportunity to place the material it wished to have had the commission consider before that body; this means that the commission’s deliberations would have been made in the absence of this material.”

Attorney Georgia Hamilton represented CVM. The BCJ’s case was led by attorney Kevin Powell.

editorial@gleanerjm.com