Distant Networks: "NPS Distants" on Dish Network Equipment - Legal Issues

[James Long]

Wednesday at the Florida District Court:
1071 MOTION for Order to Show Cause Why Echostar and Two Parties Acting in Concert Should Not Be Held In Contempt by All Plaintiffs.

The plaintiffs are claiming that E* is working with NPS to provide distants.
See EchoStar to Provide Ku Bandwidth to National Programming Service for the press release.

[kstuart]

Unfortunately for the plaintiffs, their argument is faulty, as the injunction only applies to those acting in conjunction with E* on Oct 20th.

Amazing how professional lawyers cannot even read a sentence accurately.

And, the main thrust of the complaint is that Echostar's customers will be able to receive the channels without having to change equipment - as if the customers were somehow to blame.

[TNGTony]

Channels 5531-5538 ate "Test Channels" that just went up in Engineering mode. I guess my guess was correct. TP 15 at 119° was cleared off completely at 3 am easter today and loaded with these "test channels"

[JohnH]

The 4 Los Angeles SD Networks are still on Tp 15

The 8 test channels are not in the traditional E* Engineering package, but have each been assigned to a unique code, which is not familiar and probably does not exist elsewhere in the entire system.

[TNGTony]

Oops... Sorry... missed those. Perhaps Dish is just leasing 2/3 of a TP

See ya
Tony

[JohnH]

This works out correctly. It leaves 12 channels on the TP. Normal loading for better PQ.

Check my edit about the Tiers.

[joblo]

Thanks, as always, James, for providing the court documents.

Are the attached exhibits available?

It would be interesting to see just how "flagrantly contumacious” this “scheme" is.


Edit:

Originally Posted by JohnH

This works out correctly. It leaves 12 channels on the TP. Normal loading for better PQ.

Check my edit about the Tiers.

So possibly the test channels are not NY/LA but NY/Denver, and four more 55xx channels will appear later.

Didn't NPS package the "Denver 5" years ago?


Edit 2: The ironic thing about this “scheme”, if they can actually get away with it, is that because NPS sells no LIL whatsoever, they’ll be able to sell DNS to a whole lot more people than E* could.

[JohnH]

Originally Posted by joblo

Thanks, as always, James, for providing the court documents.

Are the attached exhibits available?

It would be interesting to see just how "flagrantly contumacious” this “scheme" is.


Edit:
So possibly the test channels are not NY/LA but NY/Denver, and four more 55xx channels will appear later.

Didn't NPS package the "Denver 5" years ago?


Edit 2: The ironic thing about this “scheme”, if they can actually get away with it, is that because NPS sells no LIL whatsoever, they’ll be able to sell DNS to a whole lot more people than E* could.

The channels could be anything as they are separate from the other channels on the TP.

NPS is uniquely qualified to offer this service. They have been selling Distant Networks on C band for years and already have a qualification system in place. They also are not the C band provider which is owned by EchoStar.

I was also thinking about that ironic thing earlier this morning.

So far this new service seems to be "above board".

[BobS]

I checked the calendar and since it is not April 1st, I must assume that you are serious. Perhaps you misread the injunction. Perhaps you are being contumacious. In either case your "analysis" is so ridiculous that nobody should give it any weight.

Originally Posted by kstuart

Unfortunately for the plaintiffs, their argument is faulty, as the injunction only applies to those acting in conjunction with E* on Oct 20th.

Amazing how professional lawyers cannot even read a sentence accurately.

And, the main thrust of the complaint is that Echostar's customers will be able to receive the channels without having to change equipment - as if the customers were somehow to blame.

[dave1234]

Sounds like CBS is trying to make a preemptive strike. It seems unlikely the court would act on this as no violation of the injunction has occurred yet. It won't occur unless the assertion in the filing turns true on Dec. 2 and distants are still being delivered. But then I'm not a lawyer so what makes sense to me is irrelevant.

[Darkman]

joblo .. or anyone else, hehe...

In simple words.. to summarize this.. - what is happening.. or what might happen with this thingy .. between E* and this NPS?

The bottom line.. - they found some loophole to provide those locals to customers?
If so... Free ..or it will not be free?
Or what else this partnership might do, etc...

In simple English though please..

[Darkman]

Actually i might have some idea by now on what is happening or might happen...

I just read posts #8. 9, 10 of this thread:
http://www.dbstalk.com/showthread.php?t=71442

[Greg Bimson]

Originally Posted by kstuart

Unfortunately for the plaintiffs, their argument is faulty, as the injunction only applies to those acting in conjunction with E* on Oct 20th.

Amazing how professional lawyers cannot even read a sentence accurately.

It wasn't the lawyers that misread anything.

This was the tact used by DirecTV during the last week of Februrary, 1999, prior to their injunction being enforced. That was when DirecTV severed their relationship PrimeTime 24 and started their own service.

Unfortunately for Dish Network, the way the injunction is worded would seem to make this action illegal:

ORDERED, ADJUDGED AND DECREED that, effective December 1, 2006, Defendants Echostar Communtications Corporation ... and those persons in active concert or participation with Echostar are hereby PERMANENTLY ENJOINED AND RESTRAINED [from using the license contained in Section 119, Title 17, with any network station affiliated with ABC, CBS, FOX and NBC].

This quite easily is against the terms of the injunction.

[whatchel1]

The injunction has an issue date that it was effective. That isn't the same as the cut off date. so I think that any partnership agreed to at a time after the issuance date are not affected by the shut off on the 1st. If E* has an agreement for carriage of another company post the injunction date will not be included in the shut off.

[kstuart]

Exactly.

Unfortunately for the plaintiffs, using some sort of Einstein or Hawking definition of present tense won't fly.

But I suppose it might be interesting to speculate whether an Egyptian Pharoah who went through a Star Gate to 2007 and then provided Distant Networks to E* customers would be in violation...

[Greg Bimson]

What definition of present tense?

Effective 1 December, [insert list of parties here, which could grow] are hereby permanently enjoined and restrained [insert distant networks here].

I thought the word "are" is present tense? Or is this going to turn into some kind of presidential debate?

[BobS]

Originally Posted by Greg Bimson

What definition of present tense?

Effective 1 December, [insert list of parties here, which could grow] are hereby permanently enjoined and restrained [insert distant networks here].

I thought the word "are" is present tense? Or is this going to turn into some kind of presidential debate?

I think some people are trying to make something of the fact that the "those acting in concert" somehow indicates a specific point in time. The injunction should be seen as a "status." That is, until the law is changed (by the Congress or the Supreme Court), E* has a permanent barrier to doing something. The "acting in concert" is a continuous evaluation. Whatever day it is you check to see if E* or their stooges are using the license. Any attempt to read in freezing the reference point to the date of issue is beyond silly. Injunctions by their very nature are prospective (forward looking). The court says to the party - "You shall not do X." Sometimes you can have a mandatory (as in "mandate") in which the court says "You shall do X." - but those are uncommon and not relevant here. Although the court of appeals instruction to Judge D. was mandatory in two senses 1. It was required by law and 2. It was an order to do something.

[makman]

I think this will get struck down by the judge. I don't think it will get struck down by tomorrow. I think that if and when the new legislation is passed, NPS will have a new (and now legal) customer base.

Mitch

[Darkman]

Time will show i guess...

[whatchel1]

In concert would mean that the company is part of E* or working for E*. NPS doesn't qualify as in concert. Reason is they are buying space from E*. That means they are separate from E*. Which means they have the right to buy the customer base from E* and offer their services to that base outside of E*. Then all that E* has to do is drop the price that is charged to their customers to off set the new service that the customers will pay to NPS. This way neither are in violation of the injunction. Also most likely NPS will not offer the same stations thst E* was selling them so it isn't the same package. NPS did offer to C-band the Denver 5 as well as other cities on the E coast. So if you were getting the NY stations you will be offered another E coast set of stations from say Miami. On the W. coast the stations offered could be San Francisco or Seattle instead of LA. To stop this it would mean that a new injunction would have to be issued against NPS to stop delivery to then customer base. Which if I remember correctly they have already compiled with the law and can't be enjoined to stop carriage of their stations.

[JohnH]

Will the court tell NPS it cannot provide Distants? NO

Will the court tell NPS they cannot lease satellite space? NO

Will the court tell NPS they cannot procure data services for system administration? NO

Will the court tell EchoStar they cannot lease their capacity to someone else? NO

Is there a paper trail to prove the "concert" thing???

Acquiring the database from EchoStar would constitute a "concert" of sorts. That would be a questionable move if this is to pass the totally separate thingy.

Rumor is it may be Atlanta and San Francisco.

[kstuart]

Of course, we have seen many times that legal issues are overlooked by humans acting on their emotions, whether or not they are judges.

We saw that the Judge disregarded the fact that there were no legal impediments to allowing an extension in order to avoid negative impacts on innocent parties - namely, the customers.

So, even if this NPS scheme has no direct financial benefit to E* and thus is only a convenience to E* customers, nevertheless it seems likely that the Judge will act against it. However, that action could likely be overturned on appeal.

PS James - I assume that your system does not have access to the "Exhibits" ? It would be interesting to read the letters from NPS to the Networks announcing their intent to broadcast Distant Networks.

[whatchel1]

The mailing list doesn't have to come from E* they can buy it from another party that distributes to E* customers. Dish has sold it to others in the past and that is the most likely place that NPS will go to get it. You just need a marketing mind to realize that any list that came from E* would be suspect. Why would E* sell to a "competitor"? Beginning to think that maybe E* will do this and and "get" out of the distant nets business. Then if they are no longer supplying distant nets to their customers why would they have to comply with the injunction or put up the $20 m. They can just have the agreement with other providers and not even have to sell to anyone outside of the legal DMA's. This also means that before long almost everyone that gets nets via sat may be contacted by NPS to come over to them. I would love this in that I might be able to buy a net from some other place as long as I also had the locals on my E* program pack. I would jump in a hot second to be able to get HD's out of say Atalanta or Dallas instead of the dorkie locals I have here. In fact that would allow me to record OTA and national HD at the same time w/ no conflict. Like I said you have to think of marketing not legal here.

[Boba Fett]

Could this be Dish related ? It was on the NPS web site. http://www.callnps.com/

https://www.mydistantnetworks.com/

[Greg Bimson]

Originally Posted by kstuart

We saw that the Judge disregarded the fact that there were no legal impediments to allowing an extension in order to avoid negative impacts on innocent parties - namely, the customers.

Uh, we saw that there were no "legal" impediments to have Dish Network terminate their subscriber base by 1 December. This had less to do with the subscribers and more to do with Echostar wishing to continually extend their use of distant networks.

If Dish Network can terminate CBS stations owned by Viacom three years ago overnight, they certainly can comply with the distant network cut-off.

Originally Posted by kstuart

So, even if this NPS scheme has no direct financial benefit to E* and thus is only a convenience to E* customers, nevertheless it seems likely that the Judge will act against it.

This NPS scheme has a direct financial benefit to Dish Network. Dish Network is receiving compensation for leasing the transponder to NPS.