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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. Nov 4, 2010 #201 of 244
    runner861

    runner861 Icon

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    I originally thought that grandfathered status was not transferable from one provider to another. However, I am aware of nothing in the code that states that. Second, it appears, based on the quote mentioned in the 2006 Court of Appeals decision, the courts believe that grandfathered status is transferable.

    If the grandfathered status is transferable, AAD could simply discontinue service and Dish could simply begin the identical service to the identical subscribers. This would require AAD to transfer to Dish the subscriber information demonstrating that each subscriber was eligible for the distant network service at the time that service was commenced.
     
  2. Nov 4, 2010 #202 of 244
    joblo

    joblo Godfather

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    It isn’t written as a prohibition on transfers.

    Note that the SHVA laws generally govern behavior of satellite carriers, not subscribers. The grandfathering thus attaches to the service as provided by the carrier, and maintains only as long that carrier continues that service to that subscriber. The law creates no entitlement for the unserved household, itself, so there’s essentially nothing to transfer. In fact, I think the latest versions of the law are written more clearly in this regard precisely because Echostar tried to assert grandfathering as a subscriber entitlement, to which the court responded specifically in the footnote from which you took your quote. (I remember reading that footnote when the decision was issued.)

    Not really. This is a more complete version of the quote:

    The line you quoted assumes an interpretation of the law that the court does not endorse; as such, it does not indicate that the court believes grandfathered status is transferable. It simply says that to the extent grandfathered eligibility attaches to the subscriber, assuming it does at all, the subscriber is free to seek that eligibility elsewhere.
     
  3. Nov 4, 2010 #203 of 244
    runner861

    runner861 Icon

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    Actually, the way you display it is not how it appears. It is not a footnote, and it stands in a separate paragraph from how you displayed it. Here it is, quoted directly from the opinion, no changes:

    "EchoStar makes a related argument that, by
    denying subscribers their duly-earned
    grandfathered status, the court deprived them of
    their property without due process of law.
    EchoStar relies primarily on language in EchoStar
    I, that "[e]ligibility [for grandfathered status]
    belongs to the subscriber, and nothing is said in
    the statute about carriers." 265 F.3d at 1212. Even
    assuming that this language vests in subscribers a
    property interest for which they are entitled to due
    process, it is certainly not a right to receive
    service from EchoStar.
    Page 13
    450 F.3d 505, *517; 2006 U.S. App. LEXIS 15068, **30;
    78 U.S.P.Q.2D (BNA) 1865; Copy. L. Rep. (CCH) P29,182

    EchoStar's current subscribers are free to seek
    grandfathered eligibility from another satellite
    carrier so long as it can be proven that they
    qualify. We therefore reject EchoStar's
    constitutional argument."

    Therefore, I at this time continue to stand by my opinion that there is a credible argument that grandfathered status can be transferred. What changes/clarifications in language with regard to grandfathered status appear in STELA?
     
  4. Nov 4, 2010 #204 of 244
    joblo

    joblo Godfather

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    I don't have time to review STELA right now, but the language you cite from the appeals court decision is definitely part of footnote 25, which is very lengthy and runs across several pages of the PDF version I downloaded at the time the decision was handed down. The quote I presented is indeed one single and complete paragraph of footnote 25.

    The apparent separation into a separate page and paragraph is presumably an artifact of the LEXIS rendering.
     
  5. Nov 4, 2010 #205 of 244
    runner861

    runner861 Icon

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    You are right, it is part of footnote 25. It is a lengthy footnote. However, it is in a separate paragraph, as I displayed it. I have looked at two different renderings.
     
  6. Nov 4, 2010 #206 of 244
    joblo

    joblo Godfather

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    Dec 10, 2003
    See bottom of page 23, attached.
     
  7. Nov 4, 2010 #207 of 244
    James Long

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

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    My opinion is that grandfathering SHOULD follow the subscriber but from reading it appears to be tied to the relationship between a subscriber and a particular provider. It seems to be a convoluted mess. While there are phrases where it appears the grandfathering belongs to the customer the law applies to the secondary transmission of the channels, not the reception.

    DISH seems to be approaching this with an abundance of caution. There is no requirement that DISH offers a distants service or distants as fill in. It is an optional service. I believe that DISH will protect their need for distants as fill ins by not taking chances with "grandfathered" customers.

    One issue with transferring a customer's grandfathered status is how to apply how the customer qualified. Pre-STELA to get distants via AAD a customer had to live in a white area (no coverage from any affiliate of that network) or get a waiver from all affiliates who had predicted coverage. I believe that STELA loosened up the rules so now out of market channels don't block carriage (a nice loophole for AAD). But that same customer would not qualify via DISH or DirecTV if an in market affiliate of that network was carried. If qualifications follow the customer, what is to prevent a customer from signing up for AAD under their looser qualifications and then transferring to DISH or DirecTV where they would not have qualified? I don't see broadcasters allowing such a loophole - and tracking "at the time the customers go AAD distants their new carrier did not have local channels in their market" is too granular (and isn't written into law).

    The abundance of caution says not to mess with grandfathering.

    As for the future of AAD ... they still have a role. As long as they can pay for their transponder space and DISH can make more money leasing transponders to AAD than using the transponders themselves the have a future. But with both DISH and DirecTV providing fill in networks for "free" (part of a base package) I don't see a lot of people paying hundreds of dollars extra per year to get a second copy. At some point AAD's customer base will shrink and the transponder lease will grow to the point where offering a service will not be economical.
     
  8. Nov 4, 2010 #208 of 244
    runner861

    runner861 Icon

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    The version you cite to has the sentences as part of one paragraph. The versions I have seen have it in two paragraphs. Nevertheless, the wording remains the same. It appears that, although arguably dicta, the court is at least acknowledging the possibility that grandfathered status can be carried with the subscriber and taken from one carrier to another. I would be interested to see if STELA has further addressed that issue.
     
  9. Nov 4, 2010 #209 of 244
    runner861

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    I agree that it is a messy area to get into, and Dish may not want to, at least not without the full knowledge of the special master. I only put it out there as a possibility, since I noticed that part of the opinion. That is the only published appellate opinion I am aware of that deals with that area of law.

    Of course, we are all wondering what is the delay in turning on the rest of the distants.

    As far as customers purchasing AAD, then transferring their grandfathered status to Dish, or even Direct for that matter, it may be a loophole that broadcasters wouldn't like. However, if the loophole exists, and if that started occurring, it would be something that Congress would have to fix. Some people (mainly plaintiffs in the distants lawsuit) thought that AAD itself offering the distants service was a loophole that STELA did not allow. The courts thought otherwise, leaving that loophole, if it is a loophole, to Congress to address. Congress wasn't bothered by the AAD service.
     
  10. Nov 4, 2010 #210 of 244
    James Long

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

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    One service purchasing another is a one time event. Unless AAD sets up shop again, creates another list of customers again and sells out to DISH again it isn't the same problem as allowing an individual to qualify with one company and then transfer their qualification to another company at will.

    I believe the wording in the decision was to protect the customers of DISH (not DISH, but their customers) for that one event back in 2006. If one was grandfathered (legally) via DISH one could have transferred that grandfathered status to another carrier. At least that would be the concept. DISH had so many illegally grandfathered customers (people who should not have been receiving distants) that sorting out the legal from the illegal would have been complicated. It was much easier for the other carrier to simply start from scratch and see if that customer was qualified on the day they applied (for AAD and DirecTV).
     
  11. Nov 4, 2010 #211 of 244
    runner861

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    I am in total agreement. The grandfathered list (if Dish even had one in 2006) was unusable. The issue came up in the court opinion. However, it would appear that the list maintained by AAD is reliable. It seems possible that Dish and AAD could work together to transfer the AAD subscribers to Dish, if AAD and Dish agreed to do so. Now that the injunction is lifted, they can work together.

    On the other hand, I have no idea whether they are even interested in doing this. AAD has sold subscriptions to distants, some for six months or a year in length. So they have obligations to their customers. Dish probably does not want to upset any customers by seeing the AAD service interrupted. And the lease for the transponders may at this time already be extended to November 30, 2011. There is a non-compete clause. These are all issues that both companies will have to address at some point.

    What does anyone think is the reason for the delay in turning on the uplinked but not available distants?
     
  12. Nov 4, 2010 #212 of 244
    James Long

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

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    "George is on vacation" is the best I've heard (based on your speculation). :D

    They have had over four months to think about it. I'm really surprised that they are not lit up.
     
  13. Nov 4, 2010 #213 of 244
    runner861

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    That may well be it.
     
  14. psdstu

    psdstu Mentor

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    Well it looks like yet another week of waiting for our missing channels has come and gone...... this is getting frustrating....:grrr:
     
  15. runner861

    runner861 Icon

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    Which specific channels are you waiting for? Are they uplinked to your market at this time?

    I don't know what is causing the delay. Perhaps Dish management wants to wait until the special master is in place. Dish's legal representation has secured the lifting of the injunction, but no special master yet been appointed. Dish is not required to wait for the appointment of the special master, but perhaps Dish management has made the decision to wait. I am just guessing; I really have no idea why these distant channels already uplinked to the short markets have not been turned on.

    Dish was very eager to turn on distants to short markets that were receiving local service for the first time in 2010. There was a partial and temporary waiver of the injunction that allowed that to occur. In fact, Charlie testified at Congressional hearings that he needed that waiver to make it cost-effective to turn on a series of short markets and complete service to all DMAs. He of course neglected to state that Dish was already providing service to many other short markets, even though Dish was not providing distants to those short markets. For example, Dish has provided HD locals to Monterey-Salinas for about two years, even though that market lacks an ABC station.
     
  16. levibluewa

    levibluewa Icon

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    Is a "special master" similar to a dominatrix?
     
  17. vtjman

    vtjman New Member

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    so the court granted another 30 days for the parties to agree on a special master on Oct 29th correct? Then by Thanksgiving there should be a special master in place, and we should expect those short markets to get their adjacent market networks probably the following Wednesday right?
     
  18. James Long

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

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    Most of us expected them two minutes after the injunction was lifted ... but apparently "George" was on a Carnival cruise and had some problems getting back to Colorado to flip the switch. I'm sure DISH will turn them on as soon as they are finished crossing the I s and dotting the T s. :D

    After years of watching DISH operate I've learned to expect the unexpected. Push push push to get the law then get the certification and finally get the waiver and now it is almost like they forgot why they were pushing.

    The only thing one can say for sure is that they will be turned on "soon". (DISH's definition of soon is often eventually.)


    Seriously - I believe they are being extra cautious so they don't lose the waiver.
     
  19. psdstu

    psdstu Mentor

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    I live in the Panama City Fl DMA. This DMA was getting WTVY CBS from Dothan AL prior to Dec 2006 when the Court Ordered DISh to stop providing us WTVY.

    The Panama City DMA comprises about 7 counties here and the DMA has 2 SV CBS stations.... some in the DMA have WTVY as their CBS SV station (Dothan AL)and some get WCTV as their CBS SV station (Tallahassee FL).

    Both stations are uplinked for the area and have been uplinked for sometime now.

    In addition Dothan Al is a Short Market, missing NBC which was coming from WJHG out of Panama City prior to Dec 2006.

    Both WJHG and WTVY are owned by the same company so it wouldn't appear to be a station owner problem.

    I recognize the difficulty of having two SV CBS stations serving the same DMA, but also figured that a Fortune 500 company like DISH had enough forethought to have been able to figure out what the plan was going to be once the court lifted the injunction............and........more importantly.........be able to convey that plan to it's customers......which at least up till now they have been silent about.


    I have received a reply today to an e-mail I sent to DISH CEO which states...
    " I am in process of checking with a Corp manager to see if I can get information regarding CBS in your market. I will contact you once I get a response."

    Hopefully it won't take to much longer to resolve this issue.
     
  20. James Long

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

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    I believe DISH needs permission from the station for SVs now (the latest law moving SV stations from the distants laws to the locals laws). But SVs (significantly viewed) channels have been legal for DISH to carry since the law was enacted. No waiting, no hoops, just do it. If DISH is planning on carrying a SV station they could have done it months ago.

    Distants from further away (not SV) did have to wait for the injunction to be waived (as it has been). These would be the "fill in" locals for any market missing a station but especially markets and areas within markets that don't have a SV station (who would get no coverage if it were not for distants).

    I like the idea of using SVs wherever possible. Neither CBS would provide complete coverage of your market but if DISH carried each where they could via the SV laws the entire market would be covered.

    But it appears DISH has other plans. For example the ABC station they have "uplinked" for the Terre Haute market is WICS Springfield, IL. A station that is SV nowhere in the market. Yet WRTV Indianapolis, IN IS SV in several counties of that market and is likely more desirable. So why not carry WICS as a distant in the Illinois counties and WRTV as a SV or distant (as needed) in the Indiana counties? The plans that we have seen so far just don't seem to make sense.

    I'd like to see DISH carry the channels local cable systems are carrying before bringing in more distant stations ... but at this point I suppose we should be happy if they just start carrying SOMETHING.
     

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