Chief Justice Richard Ground ruled last Friday that the Telecommunications Commission could not prevent Bermuda CableVision from dropping the Bermuda Broadcasting Company's two local TV channels from its line-up, thus clearing one legal hurdle for the cable broadcaster, which says it does not want to pay for the service.

But the wider issue remains of whether CableVision should do so; this was a question that Mr. Justice Ground rightly avoided and it may lead to more legal action, this time by the BBC, which would have to show that CableVision had not effectively and properly exercised its choice not to carry the channels. In addition, the Telecommunications Commission says it will appeal Mr. Justice Ground's ruling.

Until late last year, CableVision was obliged to carry Bermuda's free broadcasters – the BBC's ZBM and ZFB channels and DeFontes Broadcasting's VSB channel – at no charge as part of its basic package. In theory, these are supposed to be free to all customers, but in reality, users were charged $30 a month for the privilege of having the "economy tier", which included the local broadcasters. CableVision says this money was used purely for "maintenance", but it is a charge, nonetheless.

The BBC says this is wrong. Why should CableVision take money from customers for a product it does not make, when none of the money flows back to the BBC? Part of this is about the money. It is an open secret that Bermuda's on air TV channels are in financial difficulties. CableVision, by contrast, is doing very nicely. But there is a question of fairness as well. The BBC argues that it is no different from the rules on recording TV shows or movies; you can record them for your own viewing pleasure, but you can't sell them on.

CableVision's major argument is that since customers can access ZBM and ZFB over the air for free, it should not have to pay simply to provide the same service to its viewers. It has also argued that the on-air broadcasters can carry advertising and profit from that, whereas it cannot. Aside from the fairness argument, the BBC also argues that CableVision is effectively a monopoly, to which the vast majority of TV users subscribe. Cutting off a local TV station could effectively destroy it.

Furthermore, the local broadcasting industry is remarkably fragmented, with a plethora of TV, cable and radio stations all chasing the same limited pool of advertisers. This is fragmented further by competition from the Internet and print publications. In an attempt to resolve the issue, Government last year changed its regulations, saying CableVision and wireless TV provider WOW should pay the BBC and DeFontes to carry the channels. In doing so, it apparently dropped the provision that the providers must carry the broadcasters, at least as CableVision interpreted it.

Mr. Justice Ground noted that the regulations appear to give the Telecommunications Minister (though not the Commission) the final say on what programming CableVision can and cannot carry, although he did not rule on that point as that was not the question before him. Still, CableVision has said it will not pay for the on air channels, in the same way it could choose not to carry ESPN or HBO, for example. WOW agreed to pay.

If CableVision is right, it is apparently calculating that customers will not abandon their service for either WOW or revert to an antenna. The major question is whether Government should try to save the on-air broadcasters. Do they provide a service that is in the public interest, or should they let the market decide who survives or fails?

There is a good case to be made for public service commercial broadcasting, but there is also an argument that the BBC, which has not adjusted well from being a near-monopoly itself to just one player among many, needs to provide a better service if it is to get what is in effect a subsidy from CableVision.

It can also be argued that closure of any or all of the three on-air TV stations to deprive the estimated 3,000 or so households who only get on air TV would be a disservice. However, with all due respect to the hardworking staff of the BBC, the number of letters to the Editor about the lack of quality of ZBM and ZFB would fill a book. Improving the service could also make it impossible for CableVision not to carry its channels.

This will take investment and may also take some retrenching on the part of the TV companies.

But if they argue that they have a special place in the media world, then they need to do their part as well.