Appeals Court Moves on DISH/Dominion Case

[Chris Blount]

The U.S. Appeals Court in Colorado reversed a lower court decision that granted a preliminary injunction to Dominion Video concerning its litigation filed against EchoStar tied to its carriage of two networks - Daystar and FamilyNet.

The Dominion move pushed for the removal of the two channels from DISH Network's public interest slate. However, because of EchoStar's challenge of the preliminary injunction handed down by the lower court the channels never left the satellite TV service. The appeals court decision keeps the channels in place on DISH Network.

Dominion, which operates the Sky Angel satellite TV service, has been battling EchoStar over the two channels, saying they deliver predominantly Christian programming and their carriage on DISH Network is an apparent violation of a contract between the two companies. Dominion also has been at the Federal Communications Commission challenging the networks' availability on EchoStar's public interest programming slate.

Dominion controls DBS frequencies at 61.5 degrees, and uses satellite capacity aboard EchoStar 3 to deliver Sky Angel's Christian programming.

Because of the late nature of the appeals court decision, comment wasn't available from Dominion. EchoStar offered no comment on the court move.

http://www.skyreport.com (Used with permission)

[FTA Michael]

This is also reported in a note in the Denver Post ( http://www.denverpost.com/Stories/0,1413,36~33~1923709,00.html ).

"The appellate court ruled that the earlier decision did not prove that Dominion ... was irreparably harmed by EchoStar's launch of the two channels."

I would note that this is all about challenging the preliminary injunction. Dominion may still win its suit, but it just won't be able to stop Dish from airing those channels until it's settled.

[jgoggan]

I'm confused -- likely because I don't know much about Sky Angel, I guess... So, they are upset because Dish is carrying them? Don't they want more coverage/viewers? Or is it issue of them wanting to charge people to receive those two channels and Dish is doing it without pay? If it is the latter, what is Dish arguing exactly? That they are included under some other agreement (for Sky Angel)?

Just curious... Thanks.

- John...

[Richard King]

I'll try to explain a bit and maybe it will make sense to you...
Sky Angel is a DBS service similar to DISH that broadcasts Christian oriented programming using bandwidth on the Dish satellite at 61.5 and using Dish hardware. Sky Angel has an agreement with DISH that states that DISH won't carry such programming, the exception being a couple of channels that were on DISH before Sky Angel arrived on the scene. Sky Angel views the two channels under discussion as channels that should be on their service, not on the DISH service and are suing to have them removed from Dish so they they can add them to their service. I would think the services themselves would prefer to be on Dish because of the wider distribution. Hope that helps.

[jgoggan]

Ok -- got ya. I didn't realize that SkyAngel actually sold directly as a DBS service. Now it all makes sense. Thanks!

- John...

[JohnH]

I'll try to explain a bit and maybe it will make sense to you...
Sky Angel is a DBS service similar to DISH that broadcasts Christian oriented programming using bandwidth on the Dish satellite at 61.5 and using Dish hardware. Sky Angel has an agreement with DISH that states that DISH won't carry such programming, the exception being a couple of channels that were on DISH before Sky Angel arrived on the scene. Sky Angel views the two channels under discussion as channels that should be on their service, not on the DISH service and are suing to have them removed from Dish so they they can add them to their service. I would think the services themselves would prefer to be on Dish because of the wider distribution. Hope that helps.

Not exactly correct. The part about Sky Angel being a separate DBS service is correct.

Daystar is currently on DISH Network and Sky Angel. Familynet was on Sky Angel and was removed in favor of The Liberty Channel(a Familynet Affiliate). Seems like a direct competition to me.

Sky Angel appears to want DISH Network not to carry channels with programming that is predominantly Christian. They say they have an agreement. EWTN and TBN apparently are grandfathered in this agreement.

Something not mentioned in the story is shortly after Daystar and Familynet went up on DISH Network the local affiliates of these networks disappeared from their respective local packages. Makes it a bit tricky if DISH Network does not prevail on this issue.

BTW: The story at SkyReport.com has been updated with Dominion's response.
http://www.skyreport.com/viewskyreport.cfm?ReleaseID=1306#Story1

[Richard King]

Mine was the Cliff Notes version. :D

[James Long]

The U.S. Appeals Court in Colorado reversed a lower court decision that granted a preliminary injunction to Dominion Video concerning its litigation filed against EchoStar tied to its carriage of two networks - Daystar and FamilyNet.

The Dominion move pushed for the removal of the two channels from DISH Network's public interest slate. However, because of EchoStar's challenge of the preliminary injunction handed down by the lower court the channels never left the satellite TV service. The appeals court decision keeps the channels in place on DISH Network.
OK, either I've been totally lost or SkyReport is. :lol:

I thought Dominion got a ruling to remove the channels, and that Daystar got an injunction to stop the removal.

"The appellate court ruled that the earlier decision did not prove that Dominion ... was irreparably harmed by EchoStar's launch of the two channels."
THAT sounds more like it fits the history behind this.

BTW: The Dominion's deal with E* is in my opinion contrary to their mission statement. They SAY that they want to spread the Gospel through satellite TV then they make a deal with E* that actually restricts the number of channels available, keeping ministries off the air. The Dominion holds license to eight transponders - but they have never launched a satellite. Instead, they bartered away six of their transponder licenses for the privledge of using E*'s satellite, E*'s uplink, and E*'s equipment. (They were supposed to build their own uplink in Florida - I don't believe they have done that.) Restricting themselves to two transponders limits them to the 20 video and 16 audio channels that they currently have. Want to launch another religious channel? Good luck! You will have to bump one of the existing SkyAngel video or audio channels. Or turn to DirecTV and hope you can become one of their PIs.

Passing off Daystar and Familynet as "non-religious" is a stretch - almost like saying there is no compelling HD not already on E*'s market leading HD service. But E* and the Dominion's deal to restrict PIs based on religious content should be overruled.

JL

[JohnH]

BTW: The Dominion's deal with E* is in my opinion contrary to their mission statement. They SAY that they want to spread the Gospel through satellite TV then they make a deal with E* that actually restricts the number of channels available, keeping ministries off the air.

Put the emphasis on the second "they". :)

They SAY that they want to spread the Gospel through satellite TV then they make a deal with E* that actually restricts the number of channels available, keeping ministries off the air.

[James Long]

Put the emphasis on the second "they". :)

They SAY that they want to spread the Gospel through satellite TV then they make a deal with E* that actually restricts the number of channels available, keeping ministries off the air.
Yeah, just like the Episcopal Church making a deal with a publisher that no other churches can offer religion in the publisher's newspaper.

JL

[Mark Holtz]

Something not mentioned in the story is shortly after Daystar and Familynet went up on DISH Network the local affiliates of these networks disappeared from their respective local packages. Makes it a bit tricky if DISH Network does not prevail on this issue.If I recall corectly, it was an agreement similar to the one that Dish has with PAX. Instead of carrying all the PAX stations, they carry the national feed. Since some of the religious stations basically act as repeaters for the satellite feed, it makes sense.

[James Long]

Something not mentioned in the story is shortly after Daystar and Familynet went up on DISH Network the local affiliates of these networks disappeared from their respective local packages. Makes it a bit tricky if DISH Network does not prevail on this issue.
One thing they COULD do is move FamilyNet to 119 or 110 and enable Daystar or FamilyNet only in LIL markets where affilates are not being broadcasted because of the national feed. The FCC would want them in the same number range as the other locals, but that could probably be fixed by remaping.

Plus E* would have to find other PIs to replace both channels (as well as the existing vacancy).

Personally, I want the stations to STAY PUT in the national PI range.

JL

[JohnH]

If DISH Network loses the argument, do they put the locals back up or do they stick with the interpreted agreement and deny the fCC must carry requirement resulting in no religious channels except EWTN and TBN? Could the agreement be null and void because it forces a violation of the law or vice versa?

Anyone notice that some recently launched locals markets apparently are missing what would seem to be religious must carry channels and not from the 2 mentioned networks, but other networks which are on Sky Angel? Perhaps technical reasons, but makes one wonder.

[James Long]

If DISH Network loses the argument, do they put the locals back up or do they stick with the interpreted agreement and deny the fCC must carry requirement resulting in no religious channels except EWTN and TBN? Could the agreement be null and void because it forces a violation of the law or vice versa?
For Daystar and FamilyNet affiliates that are full power stations it would be up to the contract. If they actually HAVE it in writing that the affiliate does not need to be carried PROVIDED the network is up on a national feed then losing the national breaks the contract. E* would probably want to wait for the next election cycle to add the stations, and since it isn't their fault that national service isn't possible (assuming a court ever rules that) it might let them out of the contract without penalty.

I believe the idea of mapping the national channel only in markets where a local could exert "Must Carry" would be the winner. That, of course, would only be needed if the Dominion ends up winning the battle.

JL

[jegrant]

Well, the agreement seems to have originally been formed to protect Dominion's business during the early years. I suppose the fear was that without such a provision, Echostar would add, perhaps, a few popular Christian channels, and gain some customers that way who might otherwise have gone with Dominion. Over time, if this continued, it would mean that Dominion would not get the number of customers required for them to achieve break-even or perhaps profit, meaning that they'd probably end up selling those licenses at 61.5 back to E* and going out of business, putting an end to their vision for a global Christian platform of satellite broadcasting. This would also then leave Echostar free to dump Christian programming at will, and the Christians who want that programming would then have little recourse other than going back to cable or perhaps a few Christian PI channels on DirecTV.

This agreement also assures E* that SA will not attempt to add regular secular channels and compete directly with them.

As far as I know, this agreement for E* to only carry TBN, EWTN, and Angel One exclusively would end when Dominion's use of Echostar III ends, and at that point, E* could add any and all Christian channels they want to. I am not sure if carriage of Angel One is guaranteed at 119 beyond that point, but I suspect Dominion has a very long-term agreement for that, if not infinite. Since it can be claimed as a PI channel anyway, I think it is not in jeopardy.

I also think that FamilyNet, at least, seems disingenuous with the evidence I have seen. First they asked to leave Sky Angel because they said they were going to focus on cable distribution, so Sky Angel parted ways and picked up the Liberty Channel (a FN affiliate). Then Sky Angel finds out later that FamilyNet soon after began discussions to be added to E* as a PI channel. Also Sky Angel claims that FN has tried to say in a court of law that they are not a Christian network, merely family-values based, because some shows only talk of God in a nonspecific "higher power" sense. They even gave the 700 Club as an example of a show that *wasn't* in their view, explicitly Christian.

Meanwhile, I've begun to wonder what SA will dump to make room for the new Spirit music video channel - IMO Daystar is ripe for the picking. Or will they try even more compression?

[James Long]

Well, the agreement seems to have originally been formed to protect Dominion's business during the early years.
A little bit of background: The Dominion was one of the first companies to get approval from the FCC to put up satellite service. Along with that approval comes responsibility and that is where the Dominion fell behind. If they would have been able to order, build and launch a satellite to meet the deadlines they agreed to when asking the FCC for the license. (And I do mean ask. This was before licenses were sold or auctioned.)

But they didn't meet the deadlines. The many companies that did got prime locations on 101, 110, and 119. The Dominion got leftovers.

Putting SkyAngel on E*3 was their last chance to HAVE a service. (They also leased space at 119 for a while too.) The FCC only allowed the Dominion to lease from E* because it was in the public interest. SA is still required to come up with a satellite at some point. They are also required to build their own uplink. BTW: The language of the deal between E* and SA was not reviewed by the FCC, just the fact that SA could broadcast there.

meaning that they'd probably end up selling those licenses at 61.5 back to E* and going out of business, putting an end to their vision for a global Christian platform of satellite broadcasting.
They could sell the licenses TO E*, but SA never bought them. They got them free from the FCC, just like most of the first run licenses. (Two auctions have been held so far, and companies have bought out others.)

This would also then leave Echostar free to dump Christian programming at will, and the Christians who want that programming would then have little recourse other than going back to cable or perhaps a few Christian PI channels on DirecTV.
That's an interesting thought, but I believe that E* isn't stupid. They know that for every subscriber who wants sports, movie or porn, there are other subscribers who want family fair and, yes, even religious programming. They would not have added Daystar and FamilyNet if they didn't feel there was a market for it. They actually have a reason NOT to expand "religious" programming - the deal - and yet they do.

You mention FamilyNet ... how about DayStar? They were on SA and SA was ready to cut them because they failed to do enough promotion of SA. So DayStar went to E* and like magic SA kept them on their service. And sued.

Meanwhile, I've begun to wonder what SA will dump to make room for the new Spirit music video channel - IMO Daystar is ripe for the picking. Or will they try even more compression?
The biggest problem I have with the Dominion is they have dealt away 75% of their FCC given (if not God given) capacity in a deal that PREVENTS future expansion of religious programming on their system as well as E*'s.

I doubt if DayStar will be dropped. It would weaken SA's case that DayStar is a religious station that belongs on SA and not E*.

JL

[TNGTony]

I believe that E* isn't stupid. They know that for every subscriber who wants sports, movie or porn, there are other subscribers who want family fair and, yes, even religious programming. They would not have added Daystar and FamilyNet if they didn't feel there was a market for it.

Lurker,

Dish added Daystar and FamilyNet as PI channels for one reason and one reason only...Must Carry.

Dish made a deal with both Daystar and FamilyNet to carry the national channel and make it available to the entire country. In return, Daystar and FamilyNet dropped all the must carry requests. There were 6 Daystar stations that were being carried on Dish until shortly after Daystar came on and shortly before it moved to 110°. There are currently 7 Daystar channels that could request Must Carry.

FamilyNet does not have nearly as many must carry stations, but it was a similar deal.

See ya
Tony