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Dish sues FCC over PBS-HD requirement

Discussion in 'DISH™ High Definition Discussion' started by HarveyLA, Jun 26, 2010.

  1. Jul 16, 2010 #81 of 232
    James Long

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

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    The conversation that spun away from the actual topic of this thread has been moved to a thread of its own in the regulatory forum ...
    Are broadcast networks needed? (spin off conversation)

    Let's see if we can keep this thread on the topic of DISH carriage of PBS-HD.
     
  2. Jul 17, 2010 #82 of 232
    HarveyLA

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    Thank You!
    And on the subject of the original topic, what is likely to happen at the court hearing on July 22? Here are some possible scenarios.

    The judge is inclined to deny the request for an immediate restraining order, setting a date for another hearing and asking for more information from both sides. After all, interfering with a law passed by Congress is no trivial matter. And, the advanced timetable doesn't kick in until the end of the year. Dish argues, but there are only a few days left to take advantage of the "escape clause" in the STELA law (signing of a private agreement with APTS that would supersede the timetable laid out in STELA).

    In this earlier report, DISH said this was the reason for court filing now:

    DISH filed for an injunction last week in Nevada, where it is incorporated, because it is facing a July 27 deadline for coming to carriage terms with 30 noncom stations or triggering a speeded-up..timetable for carriage of all noncommercial signals in any market where it carries any stations in HD.

    The judge says, well, you've had several years to negotiate an agreement. The fact that you haven't isn't my problem. Dish says, we may be able to reach an agreement if you give us a little more time.

    The judge says..
    A. Sorry. No immediate postponement of STELA. (Dish then has five days to decide whether to take whatever agreement APTS has offered, or continue the lawsuit against the FCC to overturn the STELA provision, which is probably a real uphill battle)

    B. Okay, postponement granted until the next court hearing when more information is available.

    In all scenarios, I see Dish losing the lawsuit before the end of the year. Does all this convince Dish to go for the private agreement, whatever it is?
    The great unknown, but in my opinion, not very likely!
     
  3. Jul 17, 2010 #83 of 232
    James Long

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

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    An injunction issued now would allow DISH to introduce new HD markets without their PBS-HD. We would see that uplink activity noted earlier in the thread reversed and the several pending HD markets turned on without their PBS-HD. If the injunction is refused then DISH has to make the hard choice of adding these markets with PBS-HD or not at all. Keeping in mind that they have to go back through ALL of the previously released HD markets and add the local PBS-HD before the deadlines given (half within a few months).

    The law strengthens APTS' negotiating position ... perhaps unfairly. Now they can pretty much demand anything they want using the federal government as leverage. "Meet our demands or fill your satellite and backhauls with feeds of our affilitate stations." Without the injunction DISH will have to weigh the cost of agreement against the cost of carriage.

    I don't know how compelling DISH's argument is ... but we will soon see. An injunction would do little harm so I wouldn't rule it out.
     
  4. Jul 17, 2010 #84 of 232
    HarveyLA

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    An injunction issued now would allow DISH to introduce new HD markets without their PBS-HD.

    It's not clear whether DISH is asking for a freeze on that particular requirement (which says any new markets added must have PBS in HD). I haven't seen the exact legal document anywhere. But according to news reports, It is not all of STELA's PBS timetable that DISH wants halted. The only provision mentioned is the requirement to provide 50% PBS markets in HD by the end of this year and the remaining 50% by the end of next year.

    Dish still has to meet the preexisting FCC benchmark that it does not dispute, which calls for all HD locals in 30% of markets by next February, an increase of 15%. The newly added PBS-HD stations could go towards that quota depending on whether other locals in those markets also become all HD. Dish loves to go for the very smallest markets possible, as it did to meet the first deadline this past February.
     
  5. Jul 17, 2010 #85 of 232
    James Long

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

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    And that's the problem with the rule. Markets with a lot of HD stations could be the last to see all of their locals in HD. Markets with no non-network HD stations already count toward the quota. It makes sense to use the markets that require the least bandwidth to meet the quota.

    In my market there are eight stations ... three are low power with the two HD channels carried in SD and one SD only not carried at all. Five are full power ... the three that are major networks are carried in HD. One is SD only and the final one is PBS. To carry all the HD in my market DISH would have to add the two LD stations and PBS-HD.

    I don't believe low power HD carriage is required (could be wrong) and my PBS is odd ... they air the national APTS feed on .1 and do all local programming on .2. DISH currently airs the .2 feed (which matches what they aired in analog). If DISH moved over to the HD feed in my market I would lose the local PBS programming. (DirecTV carries all six HD channels, including the low powers. They carry both PBS feeds.)
     
  6. Jul 17, 2010 #86 of 232
    HarveyLA

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    And that's the problem with the rule. Markets with a lot of HD stations could be the last to see all of their locals in HD.

    Wouldn't it be in the best interests of the APTS and DISH to strike a deal adding the top markets first in PBS-HD, covering the most number of people, and give Dish some partial relief on the satellite capacity issue they claim they have? They still have a few days to do so (pending the outcome of the court hearing next week).
     
  7. Jul 17, 2010 #87 of 232
    James Long

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

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    That doesn't help DISH with the "everything in HD" requirement. Adding small markets kills two birds with one stone ...

    If I were DISH I'd reach the 1/3rds goal with medium sized markets (big enough to be in HD but not have more than one or two non-network HD stations) and meet the 1/2 PBS goal by adding in the largest markets (where more people are served). That would leave a lot of markets in the middle that have "too many" HD stations to uplink but not enough viewers to make it worthwhile.
     
  8. Jul 17, 2010 #88 of 232
    phrelin

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    Northern...
    I'm still having trouble piecing together information on which PBS stations in DMA's are HD and offer some local programming, but it appears that the number Dish is going to have to cope with is going to be something less than, but close to, the actual number of DMA's - 210 - with some stations serving more than one DMA and some DMA's having more than one.

    The thing is 50% of the population is in the largest 25 DMA's. About 75% of the population is in the top 70 out of 210 (⅓). Had Dish prepared by negotiation to do those along with the five primary commercial broadcast networks, there likely would be no problem today.

    Instead I live in the 6th largest DMA with no PBS HD or The CW HD, both of which have more regular prime-time viewers than any station in the bottom third of the DMA's. Of course, I have no idea how that correlates to Dish customers.
     
  9. Jul 18, 2010 #89 of 232
    HarveyLA

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    Some more details about what's been going on behind the scenes, thanks to John Eggerton who's been really on top of this story. Here's what hasn't been heard before:
    1. Dish's "last best offer" was made in December according to APTS, which appears to be no real offer at all.
    2. Dish says it has had to put HD local expansion of major networks on hold in ten markets because of the "unresolved" mandate to carry PBS-HD locals. (Unresolved apparently referring to the Dish lawsuit against FCC).
    3. Dish accuses APTS of not wanting to make a deal for "30 stations", the minimum required under a private agreement, because it finds the STELA timetable better.


    http://www.multichannel.com/article/454635-Dish_Rolls_Dice_in_Nevada.php?rssid=20212

    The second-biggest U.S. satellite-TV provider must, by July 27, have reached carriage terms with at least 30 noncommercial stations. If not, under a provision in the Satellite Home Viewer Reauthorization and Extension Act (STELA), Dish faces a speeded-up timetable (by the end of next year) for carriage of all noncommercial signals in any market where it carries any stations in HD.

    The APTS has an incentive not to make a deal for those 30 stations, according to Dish, because failure to reach that 30-station mark triggers a carry-one, carry-all provision in the bill.

    “Carrying all” would mean broadcasting more than 150 noncommercial stations in HD by 2011.

    APTS interim CEO Lonna Thompson said the group has always been willing to negotiate, citing deals with DirecTV and cable.

    APTS did not consider Dish’s last, best offer in December to be a “meaningful one,” though, as Dish only promised to use “commercially reasonable efforts to accelerate compliance with the FCC’s carry one, carry all rules for noncommercial educational stations,” she said.

    STELA has already put a crimp in Dish’s business plans, which had been based on the FCC’s 2008 timetable for phasing in HD carriage of all local TV stations, including noncommercial ones, by 2013.

    Dish said it completed equipment installs and fiber upgrades to launch NBC, ABC, CBS and Fox stations in HD in 10 more markets earlier this month — but put those plans on hold for two or three months because of the unresolved noncommercial mandate.
     
  10. Jul 20, 2010 #90 of 232
    rasheed

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    I am not sure APTS should bother making a deal either. Aside from some of the tactics Dish will do to delay HD (likely to lose HD sensitive customers to other distributors), it seems the STELA force will get PBS HD faster..'eventually'.

    Rasheed
     
  11. Jul 20, 2010 #91 of 232
    HarveyLA

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    I am not sure APTS should bother making a deal either.

    Unless the STELA provision could be changed by joint agreement to 50% of estimated viewers by the end of 2010 and the remaining 50% by the end of 2011 instead of the current "50% of markets..etc.) This would benefit both sides. APTS would get more people served, sooner, and Dish would need to use less of its satellite capacity by the end of 2010. 50% of markets is likely to mean a lot of small markets, as previously pointed out.
    It was also pointed out that 50% of the population is in the largest 25 DMA's.
    So Dish would only have to add 30 PBS-HD locals at the end of this year instead of half of them. (small secondary noncoms could be eliminated from this formula)
     
  12. Jul 22, 2010 #92 of 232
    HarveyLA

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    Judge denies Dish's request for an injunction

    http://www.broadcastingcable.com/article/455119-DISH_Court_Won_t_Delay_Noncom_HD_Mandate.php

    DISH: Court Won't Delay Noncom HD Mandate
    Network says mandate violates First and Fifth Amendment rights
    By John Eggerton -- Broadcasting & Cable, 7/22/2010 4:20:55 PM
    A Nevada U.S. district court has denied DISH Network's request for a preliminary injunction against implementation of the noncommercial station HD carriage mandate in the satellite reauthorization law, according to a DISH spokesperson.

    "We are disappointed with the decision, and intend to appeal," said DISH in a statement. "We believe that our customers should be the ones who decide what they want to watch on TV and how they want to watch it. We also believe that it is important to defend those fundamental First Amendment rights."


    The court heard DISH's argument Thursday and ruled immediately, given the short time frame for action before the mandate kicked in.
     
  13. Jul 22, 2010 #93 of 232
    James Long

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

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    An expected result ... now let's see what DISH does.
     
  14. Jul 23, 2010 #94 of 232
    HarveyLA

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    APTS IS PLEASED, OF COURSE
    http://www.apts.org/

    They have also included a link to their legal argument presented to the judge. It is rather long, but some of it is pretty interesting.

    http://www.apts.org/upload/DISH-v-FCC-APTS-Amicus-Motion-and-Brief.pdf

    I've only done a quick scan so far, but they strongly refute the idea that this is a first amendment argument. They also point out that Dish is not denying that it has the available satellite capacity, instead referring to capacity that is being kept in reserve for future use and it would be unwise to assign it now. Included as "exhibit 1" at the end is congressional testimony from the APTS president who said one of the issues involved carriage of stations' multicasting (carriage of several programs at once on the digital broadcast). They are pressing for this. "Exhibit 2" is a letter Dish sent to the APTS in December 2009 with its "final offer." I gather for the most part Dish did make a commitment to carry stations WETA, KQED, KRMA, WGBH, WNET and KCET. The language is rather complicated. I suppose you would have to be an expert in this field to figure out exactly what it all means. But I do see that Dish would use "commercially reasonable efforts.." to add noncommercial HD stations.. no commitment there. It also indicates some sort of mechanism for multicasting to be sent to Dish receivers. If anyone else wants to sift through all this and find some significant new info.... go ahead! Not that it matters now, because with Dish appealing, the deadline for a private agreement will expire in a few days.


    ___________________________________________________________
    APTS Pleased with Court's Rejection of DISH Network's Motion for a Preliminary Injunction

    WASHINGTON – July 22, 2010 – The Association of Public Television Stations (APTS) expressed satisfaction with the decision by the United States District Court for the District of Nevada to deny DISH Network's motion for a preliminary injunction in the case of DISH Network v. FCC.

    The court, earlier today, rejected DISH Network's assertion that it would suffer irreparable harm by complying with the public television local high-definition (HD) carriage requirements enacted in the Satellite Television Extension and Localism Act (STELA). In denying the preliminary injunction, the court was not persuaded by DISH Network's contention that it would likely succeed on the merits of its claim.

    "APTS is pleased that the court understood that requiring DISH to carry public television stations' local HD signals is not an undue hardship to DISH. Simply put, there is no compelling justification for DISH's continued discriminatory treatment of local public television stations in those markets where it is carrying commercial stations' HD content," said Interim President and CEO Lonna Thompson.

    Thompson continued, "DISH customers are being denied access to public television HD programming, and as Congress stated, 'This constitutes discriminatory treatment of locally-owned and controlled stations that serve their communities with high-quality, local, educational and cultural content.'"

    Unlike DISH Network, satellite carrier DIRECTV entered into a voluntary agreement two years ago with APTS and PBS to carry the HD signal of every public television station in markets DIRECTV serves with local HD. To date, DIRECTV has launched 119 public television local HD channels. In enacting STELA, Congress rebuked DISH Network for its discriminatory refusal to carry local public television stations. In response, DISH Network filed suit against the government to enjoin the remedial provisions of STELA.

    In an amicus brief filed on Tuesday, July 20, APTS opposed DISH Network's request for a preliminary injunction. To view the amicus brief, prepared by former APTS employee Andrew Cotlar, click here.

    Thompson concluded, "APTS will continue to work with the Department of Justice in this lawsuit to ensure that all Americans receive access to public television's high-quality, local services, including HD programming, through satellite."
     
  15. Jul 23, 2010 #95 of 232
    phrelin

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    It's a very persuasive brief, but to me the most difficult statement for Dish to argue against legally is:
    However, I didn't really understand this:
    It's clear to me that the December 7, 2009, letter from R. Stanton Dodge, Dish's Executive Vice President and General Counsel, to Lawrence Sidman, President and Chief Executive Officer of APTS, that begins with an off-putting "Dear Larry" despite its otherwise formality, was more than "a day late and a dollar short" and reflects Dish's failure to join the party as a serious participant back in 2005, which many of us suspected.:mad:

    ___________

    EDIT: I also gained some information about numbers:
     
  16. Jul 24, 2010 #96 of 232
    adkinsjm

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    DirecTV hasn't done much to live up to the agreement. Where are those two national SD channels? What about PBS in HD in the Bismarck market or several others where D* offers HD locals. D* hasn't lived up to its agreement, so why should E* have to comply? Even E* offers PBS in HD in Bismarck and Fargo.
     
  17. Jul 25, 2010 #97 of 232
    Greg Bimson

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    That is a matter of interpretation. As APTS has not sued DirecTV, I'd believe that DirecTV has lived up to the agreement.
    From one news source, it appears the national SD channels could have been packaged as the subchannels:
    But wait, there's more: DirecTV will also carry two standard-definition national channels yet to be determined and work with PBS on national and local video-on-demand offerings.

    The deal does not include any commitment to carry the multicast channels of local stations, as did a deal between noncommercial broadcasters and the cable industry, but the two national channels can be branded with each local-market HD station -- say, "WETA's Space Channel” -- in DirecTV's electronic program guides.​
    How do you know DirecTV hasn't lived up to the agreement? Maybe there are technical difficulties prohibiting DirecTV from carrying the PBS in North Dakota?
    And that is Dish Network's choice. Dish Network could carry every PBS channel nationwide in HD under all current regulations and schemes, but they don't want to.
     
  18. Jul 25, 2010 #98 of 232
    runner861

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    Whether or not DirectTV has or has not lived up to its public television carriage obligations (those created by law or by contract) has legally no significance with regard to the public television carriage obligations of Dish. I am not sure in what way DirectTV may not have lived up to its carriage obligations, but it has no bearing on the situation with Dish.
     
  19. Jul 25, 2010 #99 of 232
    James Long

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

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    The issue so far:
    I realize DirecTV and cable negotiated their own deals long before STELA was written to force DISH to sign a contract by date certain or be forced to follow an accelerated carriage schedule. (Yes, STELA applies to DirecTV but they have an agreement that makes them immune to that schedule. So despite not being named in the law this particular part of STELA was directed at DISH.)

    Unless an agreement is made by date certain the timetable comes into play and by the end of the year DISH must carry the HD feed of PBS in 50% of the markets they offer in HD. By prior agreement (a joint proposal from DISH and DirecTV that was accepted by the FCC) the commercial station phase in sets targets of all available HD in 15% of markets offered in HD as of last February with the next milestone being all available HD in 30% of markets offered in HD coming up on February 17th, 2011.

    Of the markets DISH offers in HD, 50% of those markets must have the HD feeds of all non-comm stations like PBS by the end of the year (eg: 10 of 20 markets) and 30% of those markets must have the HD feeds of all commercial stations (eg: 6 of 20 markets) by February 2011. The thresholds only apply to markets carried in HD. If DISH only carries 20 markets in HD the numbers above work. But the more markets DISH has in HD the more full markets and non-comms they need to carry. (eg: 80 markets means 40 have all their non-comms and 24 have all their commercial stations by the next milestone date.)

    And it isn't just the stations in HD that DISH has to be concerned with. They have to be prepared to carry the HD signal of every qualified station in the market ... whether or not they ever have one. If there are nine qualified broadcasters in the market nine HD slots need to be set aside - even if only broadcaster is in HD. Although DISH would be unlikely to add such a market choosing a market such New York with 19 qualified broadcasters as a 100% HD market takes more space than choosing a market such as Lafayette, Indiana, which has one qualified broadcaster. It doesn't matter how many of those 19 are in HD ... DISH has to be prepared to carry them.

    Choosing the smallest markets helps DISH meet the milestones quicker. Probably not what APTS or the consumer wants but the law is forcing DISH's hand. And following the law will see a lot of small markets with 100% HD carriage and big markets waiting for the 2013 deadline (where all markets carried in HD must have all of their channels carried in HD).

    Subchannels:
    I'm a little lost about the subchannel carriage issue. What subchannels are required to be carried? I thought that only the primary channel needed to be rebroadcast but it seems that APTS and their deals with cable and DirecTV deal with subchannel carriage. Is this a "bonus" being offered to APTS in exchange for not needing to carry everything in HD immediately or is there some law or ruling requiring subcarrier carriage that I have missed?

    If DISH makes no agreement with APTS and simply follows the laws as written what are their subchannel carriage obligations?
     
  20. runner861

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    I am not aware of anything regarding mandatory subchannel carriage. However, an outside agreement could encompass subchannel carriage, at least as far as I know.

    Have you seen a codified version of STELA, or are you reading the Congressional bill? Seeing a codified version would make it easier to read and understand. I haven't seen a codified version yet.
     

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