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DISH Files for permission to provide distant networks (Court Tracking)

Discussion in 'General DISH™ Discussion' started by runner861, Jun 1, 2010.

  1. Jun 1, 2010 #1 of 244
    runner861

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    Dish has applied for a temporary waiver of the injunction barring them from providing distant networks. The application was filed on May 28. The waiver they are seeking is a 120-day waiver. This is a limited waiver that Dish is seeking. If granted, it would allow Dish to provide distants to short markets in which Dish was not providing local service as of December 31, 2009.

    Judge Dimitrouleas has ordered that any interested parties file their papers by noon on June 3. As of now, the injunction still stands.
     
  2. Jun 1, 2010 #2 of 244
    James Long

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    DISH's initial filing is attached ... hopefully this will move swiftly for them.
     
  3. Jun 2, 2010 #3 of 244
    jacmyoung

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    Reading the DISH's filing, it appears the judge intends to grant the waiver in the afternoon of 6/3/10. If there are any parties wishing to file responses before noon, 6/3/10, they will just get their responses on the record, not serving any purpose for the decision to grant the waiver.

    I guess Dish must also prove to the judge that on 6/3/10 they will indeed cover all 210 markets.
     
  4. Jun 2, 2010 #4 of 244
    phrelin

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    OK. Now for the interesting question. Under the draft order would Dish be limited to the FCC significantly viewed list? Or might they start delivering Santa Barbara ABC to the Monterey DMA?
     
  5. Jun 2, 2010 #5 of 244
    James Long

    James Long Ready for Uplink! Staff Member Super Moderator DBSTalk Club

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    The way I read the new 119 section (g)(2)(C)(i), DISH needs to have made a good faith effort to provide locals to ALL DMAs. So far that effort has been prep work ... customers are still waiting for their locals. Having a noon filing deadline will give DISH the chance to actually make the channels that are not under the injunction available BEFORE the decision is made. DISH's noon filing can be a certification (of sorts) that they are actually delivering all markets. And if The Honorable William P. Dimitrouleas agrees, the few distants that are uplinked and ready to go can be turned on as soon as he signs the order. Perhaps by the end of the day.

    Giving "interested parties" time to comment is not part if the law ... it will be interesting to see if any do file comments. If I were an attorney for CBS et al (or another officially interested parted) my request to Judge Dimitrouleas would be to ask DISH for verification that all markets are served (as required by the law) before lifting the injunction.

    Also note that this temporary waiver is limited ONLY to short markets that were not served at all on December 31st, 2009. It does not apply in markets that had LIL service on December 31st. The rest of the country will have to wait until DISH finishes the full certification process.


    Significantly Viewed stations are no longer blocked by the injunction and can be turned on at any time. STELA moved SVs out of the "distants" portion of the law where the injunction applies into the "locals" portion of the law where no injunction exists against DISH.

    Santa Barbara ABC cannot be delivered to Monterey until the order is signed. SVs can be delivered even if the Judge sleeps in until next week.
     
  6. Jun 2, 2010 #6 of 244
    phrelin

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    Ah, got it. "...at all...." Thanks.

    I was just to tired to reread the whole bill.
     
  7. Jun 2, 2010 #7 of 244
    James Long

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    You're right. I forgot that Monterey is an existing market (too many new markets coming).

    Unless Monterey was added since December 31st, 2009, I believe DISH cannot provide that Santa Barbara local.
     
  8. Jun 2, 2010 #8 of 244
    runner861

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    Monterey has been receiving HD locals since the new satellite was moved to the 129 location. I don't recall when that was, but I believe about a year or more ago. Monterey had received SD locals for many years before that. So, this waiver, if granted, will not address the situation in Monterey.

    Dish is seeking a temporary and partial waiver of the injunction. If it is granted, as appears likely, the injunction will still stand. It will just be waived for 120 days for short markets into which Dish was not providing local service as of December 31, 2009.

    I also noted that Dish was trying in its moving papers to get the judge to simply grant the waiver without even having the other parties heard. Dish stated in its moving papers that "no comment from the former parties is contemplated or required." The judge wasn't buying that, and it was stupid for Dish to state that in its papers. Dish now has the law on their side, but trying to cut the other parties out makes it look like they are trying to be underhanded.
     
  9. Jun 2, 2010 #9 of 244
    James Long

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    DISH is correct ... The "other parties" have no standing under STELA for the temporary waiver.

    DISH can lose the waiver by failing to make a good faith effort to provide local-into-local service to all DMAs, but there is no certification or advance proof required. The law states "Upon a request ... a court that issued an injunction ... shall waive such injunction". All DISH is required to do is ask.

    The qualified carrier status and establishment of qualified carrier recognition is a separate process that requires the five part statement of eligibility. That will lead to a more "permanent" waiver (which will allow distants to all qualified customers regardless of market). Even filing for "qualified carrier status" leaves no discretion for the court - "Upon receipt of a statement of eligibility, the court shall recognize the entity as a qualified carrier and issue the waiver under paragraph (1)."

    I believe the judge understands the legal requirements he is under. All DISH has done is clearly state the law. I believe it would have been better if DISH actually had the new markets available before filing but they will be active before Judge Dimitrouleas rules. The key will be not violating the terms of the temporary waiver once issued and the "qualified carrier status" once obtained.
     
  10. Jun 2, 2010 #10 of 244
    jacmyoung

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    Dish was correct that the law does not require filings by third parties. As long as Dish demonstrates all 210 markets are covered, and upon Dish’s request for the waiver, the judge “shall” grant such waiver.

    The judge of course has the discretion as far as whether he wants others to file responses or not, the law does not prohibit that, but if he relies upon any third party’s opposition (if there will be any), rather upon the above sole criterion, to deny Dish’s request, he would have violated the law.

    Opps, James got ahead of me.
     
  11. Jun 2, 2010 #11 of 244
    runner861

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    The court is not going to issue a waiver without giving the other parties an opportunity to be heard. Congress did not authorize that the waiver would be granted at an ex parte hearing.

    I stand by my statement. The judge handled it correctly. Dish should not appear to be underhanded. The other parties are entitled to be heard. They are parties to the suit. That is not to say that they will oppose Dish, or that they will even want to be heard. But, if a party tries to cut another party out, or in any way appears to be underhanded, the court will remember. It can hurt a party's credibility at some later date. Remember, when a party is in front of a judge, that party's credibility is at stake. There is a right way to do something, and a wrong way to do something.
     
  12. Jun 2, 2010 #12 of 244
    James Long

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    There are some judges that like to write their own laws - I do not believe Judge Dimitrouleas is one of them. The law is pretty clear what is required before issuing the temporary waiver and what is required after. There is no requirement for counter filings nor hearings of any kind. The law says the court SHALL issue the waiver upon request. After the waiver is issued interested parties are free to complain that DISH isn't following the law. But there are no prerequisites for the temporary waiver.

    The concern I expressed has now been cleared up. DISH has made available the in market locals for the 29 markets and now offers local-into-local service into all DMAs.

    One less reason to delay the temporary waiver.
     
  13. Jun 2, 2010 #13 of 244
    runner861

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    There is never a requirement for counter filings. The opposing party can always decline to file any response. So the assertion that there is no requirement for counter filings means nothing.

    My point is only that the other parties must be given an opportunity to respond. Whether they respond is up to them. To not allow them the opportunity to respond is not ethical. The judge clearly understands this, and therefore did give the other parties the opportunity to respond on an expedited basis.

    The substantive basis in law for granting the temporary waiver has nothing to do with the procedural mechanisms that the court must follow. The other parties must be given the opportunity to respond. The judge understood this, and that is what he did.

    Are you suggesting that the judge should have granted Dish's request in chambers, without even hearing from the other parties?
     
  14. Jun 2, 2010 #14 of 244
    James Long

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    Yes. The law permits it.

    Are you suggesting that there will be a hearing before the judge grants the waiver?
     
  15. Jun 2, 2010 #15 of 244
    James Long

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    NOTICE THAT INTERESTED PARTIES HAVE NO OPPOSITION TO
    DISH’S APPLICATION FOR TEMPORARY WAIVER OF INJUNCTION


    Following issuance of the Court’s June 1, 2010 Order Requesting Expedited Response to Motion For Temporary Waiver [DE 1176], DISH Network Corporation f/k/a EchoStar Communications Corporation (“DISH”) conferred with Plaintiffs’ counsel concerning that Order [DE 1176] and DISH’s Application for Temporary Waiver [DE1174]. As a result of that consultation, undersigned counsel for DISH is authorized to represent to the Court that Plaintiffs do not oppose the Court immediately granting DISH’s Application for Temporary Waiver [DE1174] and entering today the [Proposed] Order Granting Temporary Waiver. During this consultation, Plaintiffs and DISH agreed to a slightly modified [Proposed] Order, granting DISH’s Application for Temporary Waiver, which is attached hereto as Exhibit 1.

    DISH hereby gives notice to the Court of this nonopposition and modified [Proposed] Order. For months, DISH has been planning to launch local service to the local markets that Congress intended to benefit from STELA at 12:01 a.m. tomorrow, June 3, 2010. Therefore, DISH respectfully asks that the Court enter the attached [Proposed] Order as early as possible today so that DISH can meet this schedule.

    (Emphasis added by DISH.)
     
  16. Jun 2, 2010 #16 of 244
    runner861

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    I am not aware of anything in STELA that says the other parties shall not be given the opportunity to respond. Read it--it is not there.

    I didn't say there will be a hearing. I said, "without even hearing from the other parties." Hearing from the other parties means giving them a chance to respond. It doesn't mean holding a hearing. I didn't say something like, "without even holding a hearing."

    Please reread my prior post.
     
  17. Jun 2, 2010 #17 of 244
    runner861

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    I believe it is clear now why the opposing parties must be given a chance to respond. They consulted with Dish, and ultimately do not oppose the request by Dish for the waiver. However, the consultation resulted in the proposed order (which will likely be signed by the judge) being slightly modified.

    It was necessary for all parties to be given a chance to be heard. That is how our courts work.
     
  18. Jun 2, 2010 #18 of 244
    jacmyoung

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    The new law does not require that the plaintiffs given a chance to respond. You can have your opinion, but please do not read more into the law itself.

    The fact the judge asked for response and giving the plaintiffs only two days, well short of even the usual time allowed in an emergence filing, made it clear the judge intended to issue the waiver after the noon of 6/3/10. Had there been any opposition to the waiver, it would not have mattered because the new law required the judge to grant such waiver when:

    1) The provider demonstrates that he has made LIL available to all markets; and

    2) that he has made a request for such waiver.

    No more, no less.
     
  19. Jun 2, 2010 #19 of 244
    James Long

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    Very little is there. That is the problem. The law (actual law) does not give a 12 step process toward getting the temporary injunction. It gives a ONE step process ... ask and you SHALL receive. I don't believe Congress intended to override any normal court process, but the law doesn't state "shall after hearing from both sides" nor "shall without hearing" - it just states "shall".

    You're reading in extra steps, I'm reading in no extra steps required. We're both wrong and we're both right as the law specifies neither of our assumptions.

    Fortunately the parties are willing. Today's filing clears up any questions that the judge may have about opposition to the request. It should be an easy grant.

    Did you note what the modification was? Would signing it the original way made a difference?
     
  20. Jun 2, 2010 #20 of 244
    jacmyoung

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    The court works according to the law, the new law, not the old law. The parties in that lawsuit operated under the old law. The judge had given the parties an opportunity to file their papers with respect to Dish's waiver request, not because he wanted to know if any one of them opposed the waiver and his decision would take such opposition into consideration, it was a matter of excercising his discretion in allowing filing of papers, but his decision will not be based on such papers, only the above two factors I had stated.

    The fact Dish consulted with the other parties was again Dish's choice, not required, but by having it on the record no one opposes such waiver certainly is in Dish's favor, because even if later there might be some minor issues, Dish can resolve them with ease while keeping the waiver in place, compared to if other parties had opposed the waiver.
     

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