CableVision is wrong for bringing a dispute over the use of BBC channels to court and should have let the Telecommunications Commission deal with it, argued attorney Eugene Johnston.

Speaking at a Supreme Court judicial review before Chief Justice Richard Ground yesterday, the lawyer for the Bermuda Broadcasting Company (BBC) said that it shouldn't be up to the court to decide on the matter because it isn't its "function".

He argued CableVision came to the court "wrongfully", and said it was trying to get around a decision by the Commission.

The row between the companies began on November 30 when CableVision announced its plans to dump BBC channels 7 and 9 because the BBC intended to charge a fee for carrying ZBM and ZFB. The channels have aired without charge for years.

Mr. Johnston said BBC's position was that the court should not exercise its position to grant relief to CableVision and if it decided to grant relief, it shouldn't be in CableVision's favour.

"Common sense dictates when a public body gives a decision and reviews the decision, the court should find favour with the newest decision", he said in reference to a letter written by the Commission to both CableVision and BBC.

The Department of Telecommunications issued the statement to CableVision and the BBC telling both parties to restrain from any other proceedings. However, CableVision has taken the department to court claiming if it continues to carry the channels, it could face copyright suits not only from BBC but also American broadcast stations where the programming came from.

Speaking earlier in the hearing, CableVision attorney Narinder Hargun insisted the suits would happen. He pointed to the 14 days' notice the cable company had to give in order to drop the channels, stating that after that period they no longer enjoyed copyright protection.

The lawyer said the act's July revision meant that CableVision is not required to carry the channels.

"Despite the fact that BBC has given statutory right to decide whether it wants its programming on must-carry and retransmission consent, CableVision still has authority to say no and can still carry on a must-carry basis", the lawyer added.

Mr. Hargun said the court should be in a position to order CableVision and BBC to agree on terms, but unfortunately, it has no such power.

The lawyer argued the Telecommunications Commission has no power to "authorise the transmission of local stations by a cable system" and said CableVision did exactly what the law said in order to drop the channels by informing the public, informing its customers and filing necessary applications.

"We say after expiry of 14 days from the date when the retransmission consent has been rejected, the cable system has no choice but to drop the channels," he added.

Telecommunications lawyer Melvin Douglas said its position in the letter it sent to CableVision and BBC was "an advisory and it was not amenable to judicial review".

He added the letter did not include a decision in it because only the Minister and the Commission are authorised to make such a decision.

Mr. Douglas said the department's second position was the Telecommunications Act takes precedence over the regulations and anytime CableVision makes any changes to its product, it must notify the department before doing so in order to get permission.

Mr. Douglas added CableVision is a specified carrier due to their " market dominance" and existing rates and services should remain the same.