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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 4, 2010 #41 of 244
    James Long

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    It isn't the signal that matters (unfortunately). It is the over the air (non-cable) viewership crossing an arbitrary threshold. So far WTXL has only been added to the SV list in one county ... they need to get themselves listed in more.
    You're right ...


    Albany, GA
    27-00 WTXL TALLAHASSEE, FL (ABC) SV* - 7666 SD 110° 25s3 X
    GA: Atkinson, Baker, Ben Hill, Berrien, Calhoun, Coffee, Colquitt, Cook, Crisp, Dougherty, Irwin, Lee, Mitchell, Terrell, Tift, Turner, Worth
    WTXL(ABC): Colquitt
    WTVM(ABC): Baker, Calhoun, Crisp, Dougherty, Lee, Terrell, Turner, Worth

    The issue being that Columbus, GA, is on 77 ... so to carry WTVM a special feed would have to be put on 110 that would NOT be available to Columbus viewers.
     
  2. Jun 4, 2010 #42 of 244
    Alan Gordon

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    I'm aware that signal doesn't matter, but my point was that if Dish were to "import" a distant network into the Albany, GA DMA, WTXL actually makes more sense than WTVM since WTXL's signal reaches more viewers in the Albany, GA DMA than WTVM does.

    I'm in total agreement with your last statement. The only issue is that I'm not sure they would care enough to do so.

    If Dish "imports" them as a "distant" to the whole DMA, which is what I suspect Dish will do, WTXL wins viewers. Mediacom already carries WTVM and WSB, so I'm not sure they'll want to replace WSB with WTXL, and I doubt they'll want to offer three ABC affiliates. DirecTV will be adding locals here in a few months, and I'm very interested in seeing what they bring to the table... but I suspect they'll want to import one channel to the whole DMA as well. It will be interesting to see for sure...

    Interestingly enough, I had a conversation several years back with an employee of WCTV (Tallahassee, FL DMA), who interestingly enough now works for WTXL, about SV, and I learned some interesting things. I might see if I can get a hold of him and ask him his thoughts about WTXL and SV....

    I had that same thought as well (and mentioned it in another thread). I was also surprised to see Columbus got GPB in HD, but not in Albany. Hopefully that's a good omen for Albany subscribers since it's already uplinked and encoded in HD...

    I'm WAY off-topic though since this thread is about Court Tracking...

    ~Alan
     
  3. Jun 4, 2010 #43 of 244
    James Long

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    This is where the legal issue comes in. DISH can only carry WTXL to one county in the market as a "significantly viewed" station. If they want to deliver WTXL to the rest of he market they MUST follow the distants laws.

    Those distants laws include getting waivers from all affiliates of ABC serving each customer ... and thanks to the change in wording in STELA a waiver for one customer applies to all customers with the same nine digit zip code. (Under the old law it applied to the same five digit zip code. I lived in an apartment complex where six units shared each nine digit zip code. No one shares my current nine digit zip code.) I expect DISH will work out a blanket waiver "for all zip codes in x counties" to make it easier on the stations and on DISH.

    Carry WTXL and DISH needs waivers for up to 16 counties, including at least eight counties that WTVM provides coverage for (on paper). If I were WTVM I would not grant such a waiver ... especially for counties where WTVM could be carried as an SV station.

    Carry WTVM and DISH has eight counties taken care of immediately ... no waiver required regardless of how strong WTXL or anyone else's signal is.

    If they want carriage it would be in their best interest. The trouble being meeting the threshold. Only OTA viewership counts ... so every viewing WTVM via cable instead of OTA is useless toward meeting the threshold. The SV list was designed for stations without cable carriage to force carriage by proving that they were "significantly viewed" in a defined area. Having carriage makes forcing carriage moot. Perhaps next time (54 months from now!) Congress will do better ... but I digress.

    It certainly is easier when the whole market is one channel list. I'm hoping that by next week DISH realizes that SVs are easy to provide and adds more instead of relying on the distants/waiver process. But I can understand why a satellite company would want one network for the whole market. 211 markets is easier than 3141 counties to keep track of.

    Not too bad ... these real world examples give good insight into the problem DISH is facing getting the short markets filled.
     
  4. Jun 4, 2010 #44 of 244
    runner861

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    Does anyone know if Dish has yet initiated the process with the FCC to receive a qualified carrier certification? This would be the first step for Dish to take in order to have the injunction fully lifted.
     
  5. Jun 4, 2010 #45 of 244
    James Long

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    From STELA:

    STATEMENT OF ELIGIBILITY.—An entity seeking to be recognized as a qualified carrier under this subsection shall file a statement of eligibility with the court that imposed the injunction. A statement of eligibility must include—
    (i) an affidavit that the entity is providing local-into-local service to all DMAs;
    (ii) a motion for a waiver of the injunction;
    (iii) a motion that the court appoint a special master under Rule 53 of the Federal Rules of Civil Procedure;
    (iv) an agreement by the carrier to pay all expenses incurred by the special master under paragraph (4)(B)(ii); and
    (v) a certification issued pursuant to section 342(a) of Communications Act of 1934.


    I'm not finding section 342(a) (which should be 47 USC 342(a) based on some searches. (The copy at the FCC is from 1996 and doesn't include a section 342.) § 339 refers to distant stations but Cornell doesn't have a 342 either.

    Do you have a good reference for what this certification would be? I'm assuming that it was a statement or promise by DISH not something the FCC needed to issue. Everything seems to be designed a relationship between DISH and the court that issued the injunction leaving third parties out of the process.
     
  6. Jun 5, 2010 #46 of 244
    runner861

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    I'll look for sec. 342 tomorrow. It may not have actually been codified yet. Once the bill is signed by the president, it still has to be published in the United States code.

    Basically, getting the certificate from the FCC is somewhat complex. The applicant (Dish) must certify that it is providing local service in all markets. It then must provide some technical detail regarding the markets added after the enactment of STELA. This includes maps and census data and technical details about the spotbeams. The FCC can also request additional engineering or market data or any other information the FCC wants.

    Then there is a 30-day period for public comment. Within 90 days after the comment period closes the FCC must either grant or deny the certificate.

    Once Dish obtains the certificate, Dish can then return to court to seek the removal of the injunction.

    It is a cumbersome process. However, the most difficult part is that the applicant must be providing local service in all markets. I believe that Dish is now doing that. There is no reason that I can see that they should not be initiating that process with the FCC at this time. Even if things go smoothly, it still will probably be a few months before Dish can have the injunction fully lifted.
     
  7. Jun 5, 2010 #47 of 244
    James Long

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    I missed it. Section 342 is added by Section 206 of STELA (the authors of S.649 will have to use a different number if their bill passes). 342 starts on page 91 of the 112 "engrossed Senate" version of the bill.

    (a) CERTIFICATION.—The Commission shall issue a certification for the purposes of section 119(g)(3)(A)(iii) of title 17, United States Code, if the Commission determines that—
    (1) a satellite carrier is providing local service pursuant to the statutory license under section 122 of such title in each designated market area; and
    (2) with respect to each designated market area in which such satellite carrier was not providing such local service as of the date of enactment of the Satellite Television Extension and Localism Act of 2010—
    (A) the satellite carrier’s satellite beams are designed, and predicted by the satellite manufacturer’s pre-launch test data, to provide a good quality satellite signal to at least 90 percent of the households in each such designated market area based on the most recent census data released by the United States Census Bureau; and
    (B) there is no material evidence that there has been a satellite or sub-system failure subsequent to the satellite’s launch that precludes the ability of the satellite carrier to satisfy the requirements of subparagraph (A).​
    Section (b) is a list of the deep technical information required (beam coverage, census data, etc.).

    (c) CERTIFICATION ISSUANCE.—
    (1) PUBLIC COMMENT.—The Commission shall provide 30 days for public comment on a request for certification under this section.
    (2) DEADLINE FOR DECISION.—The Commission shall grant or deny a request for certification within 90 days after the date on which such request is filed.​
    I'd like to see this move as fast as possible (for DISH's sake) but I'm really looking forward to seeing the data that this request generates. Filed for public comment with the FCC all that deep technical information should be pretty much public.



    After these 90+ days there is still the time the court will take to decide. I sure hope DISH moves forward with the SV coverage of portions of the markets (where possible) before then.
     
  8. Jun 5, 2010 #48 of 244
    James Long

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    (Section 342 also starts on page 45 of the [​IMG]2671-1174-Petition for Relief.pdf court filing that I posted earlier in this thread.)
     
  9. Jun 5, 2010 #49 of 244
    jacmyoung

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    Personally I do not see this new certification a big deal, Dish made a point of being able to provide LIL to all DMAs, and now has the waiver, the waiver can be extended. Dish never really lost much business because of the injunction. The public (a very small portion of it BTW) needs Dish to carry the distants more so than Dish needs it.

    This is similar to the situation when some people had declared Charlie had lost the distants game, when he managed to let another guy do the carriage for him as if he was carrying the distants. He plays this kind of games well, one only needs to look at the TiVo v. E* case for proof. All eyes have been on the court front and how he had "lost the court fight every time," yet one USPTO action rejecting TiVo's software claims would likely end the case for good.
     
  10. Jun 5, 2010 #50 of 244
    psdstu

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    What is/was the reason for DISH requesting this permission if not to provide those of us affected with our missing station?

    I did not realize all the legal hurdles that were in the path of providing a missing station for those of us in a short market.

    I initally thought that once permission was given allowing DISH to provide distant networks to those of us in these areas that it was going to be a matter of "flipping a few switches" and presto chango-o, here is your missing station.

    Looks like this could/will be another long slow process for those of us affected by this issue.

    I'd be interested to know over the next few weeks if there is a way to know whether or not DISH is even going to pursue this issue..... or not??

    Stu
     
  11. Jun 5, 2010 #51 of 244
    runner861

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    I expect that Dish will pursue the issue. It appears that they lobbied to have STELA written with the provisions that allow repeal of the injunction. No company other than Dish benefits from these sections dealing with the repeal. Furthermore, now that Dish is providing service in all markets, Dish can now go forward with the next step--seeking the certification from the FCC.

    After Dish gets the certification from the FCC, Dish must return to the court to seek the lifting of the injunction. One of the things that will happen at the court is the court must appoint a special master. I could see things getting dicey at this point. Dish will have to pay for the special master, which I am sure they will do. However, the special master will be monitoring Dish for compliance, which means Dish will have to let the special master into their business so he can monitor it. They may find this intrusive, but they must do it if they want to have the injunction lifted. The special master will report directly to the court.

    The special master will be part of their business until at least 2012.

    At any time, an aggrieved party can seek to have the "qualified carrier" designation revoked, thus having the injunction reinstated.

    Dish may get this injunction lifted, but they won't be operating as freely as Direct or AAD when it comes to distants for several years.

    For those persons in a short market who cannot receive distants from Dish at this time, the best option is still AAD.

    This part is just speculation by me: Assuming Dish does receive the designation of qualified carrier, but chooses to provide neighboring or close distants to short markets, I think that AAD will remain. Dish must have at least 16 national distants (4 SD west coast, 4 HD west coast, 4 SD east coast, 4 HD east coast) on its system for RV customers. I don't believe that Dish would want to risk losing the RV customers. So I think that AAD customers are going to continue to receive service. Also, Dish's ability to provide distants may be limited by their contract with AAD.
     
  12. Jun 5, 2010 #52 of 244
    jacmyoung

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    There is no question Dish will pursue this issue, if you know Charlie, he will go to the very end of the Earth to pursue any issue:)

    My point was, what he has done, like he is doing in the TiVo v. E* case, or on many other issues, he never gives up trying to clear his name when faced with the so-called "defeats" in the court, while most people would just give up, he will go all the way to prove he can still be the last one standing.

    Any obstacles that may exist in this next pursuit of the issue, will pale in comparison to what he had been faced with in the past in this distants case.
     
  13. Jun 5, 2010 #53 of 244
    James Long

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    I have found no proof that DISH has signed a non-compete contract with AAD. The deal they filed with the court (years ago) was a simple payment for bandwidth. As long as AAD can afford to pay for the bandwidth there is a good chance their service will survive.

    DISH undercutting the AAD subscriber base by offering an alternative source for network programming (locals, SVs and distants from neighboring markets) at no incremental cost to the customer is not going to help AAD stay in business. DISH doesn't have to turn a profit on distants ... their profit comes from their overall service offerings. AAD has to make money on distants. They can't shift the cost of distants over to another part of their customer's bill. Distants is their bill. I don't believe their service can survive on the leftovers.

    Once all this FCC/court action is complete and DISH is qualified to offer distants an RV offering would be trivial. They may wait for the day AAD calls up and says they can no longer afford to lease the transponders. AAD's inability to pay is the likely end to any contract DISH and AAD have - regardless of any assumed "non-compete". But that outcome is months away.
     
  14. Jun 5, 2010 #54 of 244
    runner861

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    I don't know for sure what the contract between AAD and Dish says either. And, whatever it says, it has an expiration date. However, there must be some agreement. Also, I find it curious that in the Monterey-Salinas market, Dish is preparing to import a Santa Barbara ABC affiliate. Santa Barbara is a small market located some 200 miles away, although it is the market to the south. Cable offers the San Francisco ABC affiliate in the Monterey-Salinas market, and Direct offers the San Francisco and Los Angeles ABC affiliates. San Francisco is only 90 miles away and covers news in the Monterey-Salinas area. Los Angeles, although 300 miles away, is a major market. The Santa Barbara affiliate is not desired in Monterey-Salinas. However, to offer the San Francisco or Los Angeles affiliate would mean that Dish would be directly competing with AAD. There may be other reasons why Dish wants to offer Santa Barbara to Monterey-Salinas--they share the same spotbeam, for example.

    On the other hand, there may be more going on here than just the transponder lease agreement. AAD's website also markets the Dish service, so there is some business arrangement there. Furthermore, under the injunction, Dish is required to operate at arm's length from AAD. Once the injunction is gone, that is no longer the case. We just don't know the whole story. I would hate to see the Monterey-Salinas market lose access via Dish equipment to either KGO or KABC. The Santa Barbara affiliate can't fully fill that void. Both KGO and KABC have Sacramento bureaus, so viewers of those stations receive news from our state's capital. I don't think that the Santa Barbara affiliate offers anything other than ABC programming that is of interest to viewers in Monterey-Salinas.

    However, I agree with you that a RV offering by AAD would be trivial. At the same time, if AAD goes away, I expect that Dish will pick up those AAD stations. Dish does not want to lose the RV customers.

    Lastly, I believe that Dish will initiate the certification process with the FCC very soon. The waiver Dish currently has is only good for 120 days, although it can be extended. However, if Dish does not become a qualified carrier, the waiver will ultimately expire, and Dish will be unable to carry any distants.

    I agree that I would like to see "significantly viewed" carriage be widely instituted by Dish as soon as possible.
     
  15. Jun 5, 2010 #55 of 244
    Alan Gordon

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    The problem with that is that not everyone in a "short market" can receive distants from AAD.

    In the case of Albany, GA, the reason why I'm in a thread regarding Dish Network, most subscribers cannot receive ABC via AAD.

    Years ago, WTVM used to grant waivers for those outside of their DMAs, but when Dish Network lost the ability to offer distants, WTVM got inundated with waiver requests, and they implemented a DENY ALL policy, and later joked about turning down former President Jimmy Carter's waiver request (though he's in their DMA, so not very surprising).

    I'm not quite sure what WTXL's policy regarding waivers are, since I'm lucky to have ABC DNS with DirecTV from years ago when WTVM was granting waivers, and when WTXL's broadcast signal didn't carry as far, but I don't think they grant waivers as much now either.

    Heck, there's parts of my county where at one time, you had to submit waivers to THREE ABC affiliates (WTVM, WTXL, WDHN). :rolleyes:

    BTW, is WTXL available to Colquitt Co. subscribers yet?!

    ~Alan
     
  16. Jun 5, 2010 #56 of 244
    runner861

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    The earlier versions of STELA, formerly SHVERA, were the products of heavy lobbying by the NAB. While these earlier versions strongly protected the local stations from competition, they were in many cases unfair to viewers and blocked viewers from receiving a network. Some of these viewers could not receive a signal over the air, yet were still blocked from receiving a distant network. And many local stations were arbitrarily denying waivers, even to viewers where there signal was not receivable over the air.

    With Dish hopefully regaining the ability to offer distants, and with Dish covering all markets, the instances of viewers being unable to receive a single network or even multiple networks should decrease. Also, now any station that is "significantly viewed" outside of its market can be offered by both Dish and Direct to any areas where the station is "significantly viewed." However, the FCC maintains a list of "significantly viewed" stations, and sometimes a station may have a lot of viewers in a neighboring market, yet not be on the "significantly viewed" list.
     
  17. Jun 5, 2010 #57 of 244
    shadough

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    My area has an ABC an CBS station from the Southwest of here listed as SV yet Directv offers neither of them, instead, Direct offers a PBS station from the North which isnt even on the list. *shrug*
     
  18. Jun 5, 2010 #58 of 244
    James Long

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    There is a saying about uplinks ... a channel isn't available until it is available. On Friday afternoon DISH made available three stations that were not uplinked in test mode and pulled down the expected channels for those three markets:
    6742 WBAL (11 Local) BALTIMORE, MD (NBC) SV* removed from 110° 23s5 (East Virginia) (SD Salisbury, MD market Hidden)
    6742 WHAG (25 Local) HAGERSTOWN, MD (NBC) SV* added to 119° 5sB16 (Philadelphia) (SD Salisbury, MD market Hidden) AVAILABLE

    6761 WTVH (5 Local) SYRACUSE, NY (CBS) SV* removed from 110° 4s4 (WMassachusetts) (SD Utica, NY market Hidden)
    6761 WWNY (7 Local) CARTHAGE, NY (CBS) SV* added to 119° 1sA15 (Hartford) (SD 8PSK Utica, NY market Hidden) AVAILABLE

    6782 WSTM (3 Local) SYRACUSE, NY (NBC) SV* removed from 110° 4s4 (WMassachusetts) (SD Watertown, NY market Hidden)
    6782 WKTV (2 Local) UTICA, NY (NBC) SV* added to 119° 1sA15 (Hartford) (SD 8PSK Watertown, NY market Hidden) AVAILABLE

    Plus DISH "moved" two other test locals (6671 WREG (3) MEMPHIS, TN (CBS) SV* and 6672 WMC (5) MEMPHIS, TN (NBC) SV*) to a transponder that doesn't have those channels on them (I expect a name change next week). The list of channels isn't set in stone.

    If Monterey-Salinas has no SV ABC they will have to be served by a distant. Hopefully DISH will pick a different one when they get permission to carry one.

    Remaining arms length is best. Otherwise one could argue that DISH was providing more than two distant signals to a subscriber and get their permission to carry distants pulled again permanently.
     
  19. Jun 5, 2010 #59 of 244
    James Long

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    Unless their coverage has reduced or the affiliation changed that situation has not changed. Waivers are still required to get a distant from every affiliate of that network that has coverage.

    Nope.
     
  20. Jun 6, 2010 #60 of 244
    runner861

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    This is an excerpt from an email from Dish:

    "I forwarded your email to our Programming Department so that I could find out exactly what the laws are concerning the Distant Networks. The response I was received was as follows: We will not be offering Continental U.S. distant networks. Also, everything concerning AAD will remain in place and as is. The new law will primarily give us the right to import missing network affiliates from adjacent markets into short markets."

    My belief: Dish will not directly compete with AAD. In other words, Dish will not provide nationwide distants and will not provide as neighboring distants any of the stations provided by AAD. This explains the otherwise illogical decision of Dish to provide Santa Barbara ABC, rather than San Francisco ABC or even Los Angeles ABC, to Monterey-Salinas. Providing San Francisco or Los Angeles ABC would place Dish in direct competition with AAD. Should AAD ever cease to provide service, Dish will pick up the 16 channels provided by AAD. This will allow Dish to retain RV customers and to continue to provide the same channels to AAD's current customers, as well as to any customers who prefer the distants offered by AAD instead of the neighboring distant. Given the situation, this is the best outcome for Dish, AAD, and the customers.

    Only when all local markets are offered, all significantly viewed channels are available, and distants are available as needed, will all customers nationwide be able to receive all of the networks, wherever the customer lives or is traveling.
     

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