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Dish sues FCC over PBS-HD requirement


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231 replies to this topic

#1 OFFLINE   HarveyLA

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Posted 26 June 2010 - 12:38 PM

UPDATE: DISH SUING FCC OVER THIS PROVISION: SEE POSTING BELOW
____________________________________________________________
A little noticed provision of the recently passed STELA satellite bill allows a 60 day window for Dish to reach a private agreement on carrying noncommercial stations in HD. Dish has been negotiating with the stations' parent body APTS for years, and is the only major carrier of any sort without an agreement.
As of this writing, the first 30 days has elapsed since the bill took effect. If no agreement is reached on or about July 26, the STELA provisions will take effect, accelerating the previous FCC mandated schedule.
Dish will be required to provide noncom HD locals in 50% of its markets by December 31, 2010, and the remaining 50% by December 31, 2011.

APTS issued this statement on May 28, the day after the president signed the bill. : "APTS has worked for several years to try to reach a private carriage negotiation with DISH Network, but unfortunately we have been unable to arrive at an agreement to date. While we will continue to try to negotiate with DISH, this legislation provides critical assurances that the American public will have access to the highest quality local public television services in the event that no such agreement can be reached."


Following enactment of STELA, Dish issued a glowing press release, praising other unrelated provisions of the bill, but didn't mention PBS HD at all.

Edited by HarveyLA, 02 July 2010 - 03:39 AM.


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#2 OFFLINE   Jim5506

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Posted 26 June 2010 - 05:05 PM

This provision's unintended consequences are that Dish has slowed adding new DMA's in HD.

If they carry one station in HD they must carry all by those deadlines, if they carry none, the deadline does not apply.

The way congress is throwing away money, they should have just funded PBS a wad and ordered Dish to carry them all free, or shut PBS down totally - if it can't support itself in the free market, it is not worth the wasted money.
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#3 OFFLINE   HarveyLA

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Posted 02 July 2010 - 03:35 AM

Well, I guess this answers the question as to whether Dish will reach a private agreement with the stations! In a letter to Congress late last year, Dish said an accelerated timetable for carrying noncommercial stations in HD might be unconstitutional. Congress went ahead and passed the STELA bill with the timetable. The law is worded so as to correct "discrimination" against the noncommercial stations. Dish, on the other hand, argues its constitutional rights are being violated.

Partial quote from Las Vegas Sun 7/1/10

http://www.lasvegass...ainst-fcc-bloc/

Satellite TV company DISH Network Corp. sued the Federal Communications Commission on Thursday in a bid to block enforcement of a law requiring it to carry the high definition programming of public television stations around the country.

DISH Network, based in Englewood, Colo., filed the suit in Las Vegas in U.S. District Court for Nevada, where the company is incorporated.

Attorneys for DISH Network sought in the suit a restraining order and injunction blocking enforcement of the law, called the Satellite Television Extension and Localism Act of 2010, which was signed into law on May 27.

DISH Network claims the law violates its constitutional rights by putting the government in the position of deciding what channels it will offer subscribers.

"The 'PBS HD Mandate' is designed to coerce DISH into giving preferential treatment to programming that the government prefers, rather than leaving DISH to decide for itself how best to serve its subscribers with the programming choices that they want," the lawsuit charges. "Until this law was enacted, DISH was largely free to decide which local stations it would offer in high-definition, or 'HD,' format, which uses triple the bandwidth of a standard-definition format.

"DISH has traditionally exercised that editorial discretion to determine how to use its limited satellite bandwidth based upon its assessment of consumer demand. Congress has now stepped in to override DISH's editorial choice with a mandate to carry local Public Broadcasting Service ("PBS") stations in HD format, because Congress believes that this government-sponsored speech is more valuable to DISH's subscribers than other programs that DISH might offer in HD or other uses to which DISH might put its scarce bandwidth," the suit says.

An FCC spokeswoman said the FCC would have no immediate comment on the lawsuit.

Kurt Mische, president of public station KNPB in Reno, said the DISH Network lawsuit was typical of the company's bias against local programming.

He said DISH has long favored "putting up a national feed from the East Coast, which doesn't work well for us on the West Coast."

"It's very disappointing," Mische said of the lawsuit.

In contrast, cable TV companies and satellite competitor DirecTV have embraced carrying high definition local PBS programming, Mische said.

"DISH is the only holdout," said Mische, whose station has three digital channels and serves some 180,000 viewers in Northern Nevada and Northern California.


#4 OFFLINE   Greg Bimson

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Posted 02 July 2010 - 08:00 AM

The way congress is throwing away money, they should have just funded PBS a wad and ordered Dish to carry them all free, or shut PBS down totally - if it can't support itself in the free market, it is not worth the wasted money.

Well, part of the mandate s that Dish Network has to carry them all for free. Because PBS stations are non-commercial, they can only invoke must-carry rights and cannot receive money from Dish Network. STELA forces Dish Network to come to an agreement with PBS by the end of the 60-day window, or else the law kicks in and determines a schedule in which the PBS stations MUST be delivered in HD along with any other market where HD is delivered.

Dish Network sued back in 2000 regarding the must-carry provision when SD was launching, and lost badly. I don't supect the times have changed much, so Dish Network wil probably be soundly beaten again...

#5 OFFLINE   James Long

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Posted 02 July 2010 - 08:33 AM

Well, part of the mandate s that Dish Network has to carry them all for free. Because PBS stations are non-commercial, they can only invoke must-carry rights and cannot receive money from Dish Network.

The big cost to DISH being backhaul and satellite bandwidth. I disagree with DISH on their "editorial decision" not to carry PBS. I can understand where they wouldn't want to carry several PBS stations per market all in HD but PBS is important programming and the idea that a satellite carrier is making "editorial" decisions is offensive.

If they focused on stations based on popularity I could agree but the "I don't like their programming" is a path to a losing argument.

STELA forces Dish Network to come to an agreement with PBS by the end of the 60-day window, or else the law kicks in and determines a schedule in which the PBS stations MUST be delivered in HD along with any other market where HD is delivered.

The 60 days is a question ... For the purposes of the distant "qualified carrier" status, the FCC is considering February 27th as the "date of enactment" for STELA, not the May 27th presidential signing date. If May 27th is the reference there are still a few weeks left.

Dish Network sued back in 2000 regarding the must-carry provision when SD was launching, and lost badly. I don't supect the times have changed much, so Dish Network wil probably be soundly beaten again...

This is another one of those times I wish that DISH would take the high road ... just offer the channels and be done with it ... instead of going to court.

#6 OFFLINE   phrelin

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Posted 02 July 2010 - 09:01 AM

I wonder how pleased the courts will be to learn Charlie got a provision in STELA to overturn a previous court ruling but thinks he ought to be exempt from another part of STELA.

I'm not used to the federal court system. Can a customer get "friend of the court" status to file their own brief at the District Court level on a matter like a restrainng order and injunction?

I have lots of time and am not amused that Charlie thinks he can pick and choose the provisions of STELA he likes and will take advantage of and those he doesn't like and will try to avoid, all the while depriving me of PBS HD.

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#7 OFFLINE   HarveyLA

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Posted 02 July 2010 - 11:17 AM

I wonder how pleased the courts will be to learn Charlie got a provision in STELA to overturn a previous court ruling but thinks he ought to be exempt from another part of STELA.

I'm not used to the federal court system. Can a customer get "friend of the court" status to file their own brief at the District Court level on a matter like a restrainng order and injunction?

I have lots of time and am not amused that Charlie thinks he can pick and choose the provisions of STELA he likes and will take advantage of and those he doesn't like and will try to avoid, all the while depriving me of PBS HD.

The Association of Public Television Stations (APTS) would almost certainly be involved in this. You can contact them to see if there's some way to offer your support. 202-654-4200

#8 OFFLINE   phrelin

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Posted 02 July 2010 - 11:24 AM

The Association of Public Television Stations (APTS) would almost certainly be involved in this. You can contact them to see if there's some way to offer your support. 202-654-4200

Good idea!

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#9 OFFLINE   HarveyLA

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Posted 02 July 2010 - 11:25 AM

The 60 days is a question ... For the purposes of the distant "qualified carrier" status, the FCC is considering February 27th as the "date of enactment" for STELA, not the May 27th presidential signing date. If May 27th is the reference there are still a few weeks left

The reference does seem to be May 27. This was the intent- to put pressure on Dish for an agreement after signing of the bill, and the May 28 letter from APTS quoted in the first post of this thread does say they are continuing to try and negotiate with Dish.
But the 60 day window seems to have been slammed shut by the Dish lawsuit.

Edited by HarveyLA, 02 July 2010 - 11:38 AM.


#10 OFFLINE   phrelin

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Posted 02 July 2010 - 11:35 AM

We all know that this is a stalling tactic by Charlie. IMHO he out of his element when it comes to PBS and probably thinks there's enough ideological dislike of PBS that Congress won't be offended by what he's doing. You can't work the deals in the back halls of the Capitol and then renege after everything is done without consequences.

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#11 OFFLINE   runner861

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Posted 02 July 2010 - 12:38 PM

Dish Network has often resorted to litigation, even when that is not the best approach to handling a matter. Whether as a plaintiff or a defendant, Dish has involved itself in this PBS lawsuit, the Tivo lawsuit, and the distant networks lawsuit, just to name a few. Look at this quote from the appellate opinion in the distant networks lawsuit:

"While it is not normally the place for courts to second guess the
strategic decisions of counsel, we do note that, here,
EchoStar may have been better served by focusing on and
developing its serious objections as opposed to its
scattershot approach which ultimately wasted
limited space on patently unmeritorious claims of error."

Dish is acquiring a reputation with the courts.

#12 OFFLINE   JWKessler

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Posted 02 July 2010 - 02:03 PM

Partial quote from Las Vegas Sun 7/1/10

"The 'PBS HD Mandate' is designed to coerce DISH into giving preferential treatment to programming that the government prefers, rather than leaving DISH to decide for itself how best to serve its subscribers with the programming choices that they want,"


That is rather offensive in my opinion. There are lots of HD channels I will never watch but I get them and am forced to pay for them anyway. PBS is one channel I want in HD and can not get.

From the PBS website - "Public broadcasting receives 15 percent of its funding from the government, and that this amount translates to about one dollar per person per year of government support".

I assume that 15% is federal funding. The states can kick in some as well, but lately that source of funding has been severely cut. Our local Pennsylvania station (WVIA) has announced that the state has pretty much eliminated their funding. So this channel is mostly funded by the people who watch it along with some corporations and private foundations.

#13 OFFLINE   phrelin

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Posted 02 July 2010 - 02:48 PM

That is rather offensive in my opinion. There are lots of HD channels I will never watch but I get them and am forced to pay for them anyway. PBS is one channel I want in HD and can not get.

From the PBS website - "Public broadcasting receives 15 percent of its funding from the government, and that this amount translates to about one dollar per person per year of government support".

I assume that 15% is federal funding. The states can kick in some as well, but lately that source of funding has been severely cut. Our local Pennsylvania station (WVIA) has announced that the state has pretty much eliminated their funding. So this channel is mostly funded by the people who watch it along with some corporations and private foundations.

And I would have to point out that the PBS system isn't without obligation for receiving those federal funds as noted in the article mentioned above:

"We are deeply offended by the deliberately misleading conduct of this company," [Tom Axtell, general manager at Vegas PBS] said, adding there are emergency response and homeland security issues involved since public television stations are part of the nation’s emergency communications system.


"In a hundred years there'll be a whole new set of people."
"Always poke the bears. They sleep too much for their own good."

"If you're good enough, they'll talk about you." - Tom Harmon
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#14 OFFLINE   James Long

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Posted 02 July 2010 - 03:01 PM

And I would have to point out that the PBS system isn't without obligation for receiving those federal funds as noted in the article mentioned above:

"We are deeply offended by the deliberately misleading conduct of this company," [Tom Axtell, general manager at Vegas PBS] said, adding there are emergency response and homeland security issues involved since public television stations are part of the nation’s emergency communications system.

All broadcast stations (and cable systems) are a part of the nation's emergency communications system - not just PBS.
EAS is a requirement placed on all, even those not receiving federal funds to operate.

#15 OFFLINE   HarveyLA

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Posted 03 July 2010 - 12:57 AM

http://www.broadcast...com_Mandate.php

From John Eggerton article in Broadcasting & Cable:

Dish's move did not sit well with Rep. Anna Eshoo (D-calif.), who had been a driving force behind the noncom provision in the bill. "I and millions of other Americans depend on public television to deliver truth, entertainment, facts and beaut(y)," she told B&C in an e-mailed statement. "The decision by DISH to challenge the federal requirement to carry public broadcasting stations in high definition is an affront to their customers who expect and deserve this service. If DISH has room to carry pornography, they can find room for PBS."



#16 OFFLINE   James Long

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Posted 03 July 2010 - 07:18 AM

DISH carries one porn channel in HD. There are over 350 PBS member stations.
It is a little easier to carry the one national porn channel than hundreds of locals.

#17 OFFLINE   deepen10

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Posted 03 July 2010 - 07:35 AM

wow DISH is ridiculous.. they need to just pay up and give us customers our HD CHANNELS! WTF! I still don't get my9 HD in the NY DMA. And no PBS-HD either(not that I ever watch PBS, but still!)
and then with this new ESPN/DISNEY/ABCfamily crap. DISH is doing us customers wrong and they are gonna lose a lot of customers this year.

and how the hell can they sue the FCC!! that's the damn gov't for god sake! WHAT KIND OF BS IS THAT? The FCC should require DISH to provide any channel that's available in HD to every single market.. this is one of those times when more government is needed!

#18 OFFLINE   TulsaOK

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Posted 03 July 2010 - 08:04 AM

And no PBS-HD either(not that I ever watch PBS, but still!)...


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#19 OFFLINE   runner861

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Posted 03 July 2010 - 08:41 AM

Dish can sue the government. People/companies sue the government all the time. For example, a district court judge just overturned the six-month ban of the Obama administration on deep-water oil drilling in response to a lawsuit filed by an oil driller in the Gulf Coast region.

However, the First Amendment arguments that Dish is raising are frivolous and will not succeed. They have been raised by cable operators in lawsuits in the past regarding carriage of local stations. Dish also raised the argument in their scatter-shot defense to the distant networks lawsuit a few years ago.

Dish, for whatever reason, consistently chooses to enter into litigation and continue fighting, even when the chances of success are essentially zero.

Does anyone know what Dish's position on the PBS carriage part of STELA was when the bill was under consideration? Or were they so focused on the distant networks portion that they failed to notice?

Edited by runner861, 05 July 2010 - 05:48 PM.


#20 OFFLINE   James Long

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Posted 03 July 2010 - 09:04 AM

Does anyone know what Dish's position on the PBS carriage part of STELA was when the bill was under consideration? Or were they so focused on the distant networks portion that they failed to notice?

They were against it but were unable to keep the deadlines out of the bill.


If DISH is unable to comply with the new law going through the courts seems to be the only option other than blatently ignoring the law and waiting for someone to sue them. At the moment all new HD markets added MUST have their PBS channel immediately added in HD. Which means all of the markets DISH has been ready to add this year would have to have their PBS HD added immediately or DISH would be in violation of the law. The rest of the time based goals are based on the percentage of markets covered. Adding new HD markets raises the number of PBS HDs that need to be added.

This new regulation is causing DISH to hold back on new HD markets. Not only because any added now would need to include PBS HD but any market added would raise the number of PBS HDs to add.

If DISH wins the lawsuit they can add the new markets (and many others) without PBS HD. Without the lawsuit DISH has the choice of either not adding markets or violating the law (and potentially losing permission to ever carry local channels). If DISH cannot comply a lawsuit is the best option.




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