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Are broadcast networks needed? (spin off conversation)


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#51 OFFLINE   runner861

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Posted 19 July 2010 - 12:35 PM

If these OTA viewers can pick up an out of market station great ... but getting that feed via satellite or cable? If the only way to get a signal of that network is via satellite or cable why not have it be the affiliate who actually holds the distribution rights to that area?

You'd rather interfere with the network/affiliate agreements and import signals from wherever. "Ethically and morally" we shouldn't be encouraging violation of contracts. If due to terrain and RF issues the only way to get that content is via cable/satellite fine ... just let it be the affiliate who owns the rights to that viewer.

(If an out of market affiliate happens to have overlapping OTA coverage that would qualify it for carriage - if my rules were in place. Under the real rules the out of market would have to be "significantly viewed" to gain satellite carriage. Secondary to any in market station who holds the rights.)


Why should it be the affiliate who actually holds the distribution rights to the area, if the affiliate is not actually receivable OTA in that area? I don't believe it is ethically or morally correct for an affiliate to claim an area, yet in reality not provide OTA reception to that area. That is the case in many markets, where hills or other obstructions prevent OTA reception.

I am not advocating "moving," or any violation of contracts. What I am advocating is that Congress change the law and allow free nationwide distribution of any OTA signal. Locals should be required to be carried in every market as well. It is not a violation of the contract if Congress passes a law allowing this type of distribution. The affiliates will just have to figure the new law into their contract negotiations and market modeling.

If I am in Los Angeles, I can buy a San Francisco Chronicle. I don't have to first ask the LA Times if they will allow me to buy a Chronicle. Even if LA Times has exclusive access in the LA market to a wire service, say Pacific News Service, and if the Chronicle also has exclusive access to Pacific News in SF, I can choose either paper in LA, or SF, or anywhere. We must get over the idea that broadcast TV is different. It's not. It just has a very strong lobby, the NAB, that newspapers lack.

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#52 OFFLINE   James Long

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Posted 19 July 2010 - 12:43 PM

Yet none of the money paid by subscribers to the local cable company was going to the local channels...

Most of it was used for the infrastructure needed to deliver signals to their customers. Equipment, overhead, etc. Eventually "cable" systems made a profit but their service is providing a common antenna (community antenna).

None of the money paid to Radio Shack or Wiengard or Jampro or any other OTA antenna provider goes to local channels. Perhaps we need to institute some sort of fee for those who buy their OTA reception instead of renting it?


All one needs to do is point to the passage of the SHVIA back in 1999, when DBS satellite numbers went from less than 8 million subscribers without local channels to now more than 30 million in 2010 with local channels.

You're right. Nothing else has changed in the satellite industry. No new channels or services have been added to either satellite provider in the past 11 years that would account for the increase in subscribers. The systems have been stagnant except for the addition of locals.

Locals are an important part of pay TV - a required part of cable systems (thanks meddling Congress!) but not a required part of satellite systems. I'm embarrassed about how much of my satellite TV viewing is OTA signals ... why am I paying for "free TV"? But then the weekend comes and I watch stuff that is not on OTA ... I use my satellite system to better manage my OTA viewing (currently watching The Late Late show from last Wednesday with Thursday and Friday still waiting to be viewed) ... and even though I can receive OTA reception is more stable via satellite. So there is value added.

But I subscribed to the same level of programming before my locals were available. DISH managed to collect $5 more from me and exchange paid for a fiber link from an antenna nearby to their network and a lot of equipment to receive and move that signal around. If it were not profitable they wouldn't do it, but delivering "free TV" via satellite or cable isn't free.

#53 OFFLINE   James Long

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Posted 19 July 2010 - 01:05 PM

Why should it be the affiliate who actually holds the distribution rights to the area, if the affiliate is not actually receivable OTA in that area?

Because that is what the contract says. Station KAAA holds the right to air network ACN's programming within their broadcast market. No other station of that network holds that right.

And that right holds even if the local station decides not to air the network programming they hold a right to. (Although at some point the amount of deleted programing will become an issue and any content refused may be offered to another station or secondary affiliate covering the area.) The local station paid for it ... it is theirs.

I am not advocating "moving," or any violation of contracts.

The contract you want violated is between the network and the affiliate and all other affiliates of that network. "Any OTA signal nationwide" is certainly advocating bringing in an affiliate that has absolutely NO RIGHT to deliver their signal to that customer.

If I am in Los Angeles, I can buy a San Francisco Chronicle. I don't have to first ask the LA Times if they will allow me to buy a Chronicle. Even if LA Times has exclusive access in the LA market to a wire service, say Pacific News Service, and if the Chronicle also has exclusive access to Pacific News in SF, I can choose either paper in LA, or SF, or anywhere. We must get over the idea that broadcast TV is different. It's not. It just has a very strong lobby, the NAB, that newspapers lack.

Their affiliation agreement is not the same as the one that network television stations have agreed to. Nor regional sports networks. Nor carbonated beverage distributors.

Obviously something has been worked out with these affiliates that allows the papers to be available in each other's markets. Otherwise the news service would pull their content from the paper violating the contract. It isn't that the newspaper lobby is weak (or non-existent). It is that their agreements allow for the behavior of their affiliates. TV broadcast networks do not have the same affiliation agreements for network programming as newspapers have for wire feeds.

#54 OFFLINE   runner861

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Posted 19 July 2010 - 01:42 PM

Because that is what the contract says. Station KAAA holds the right to air network ACN's programming within their broadcast market. No other station of that network holds that right.

And that right holds even if the local station decides not to air the network programming they hold a right to. (Although at some point the amount of deleted programing will become an issue and any content refused may be offered to another station or secondary affiliate covering the area.) The local station paid for it ... it is theirs.

The contract you want violated is between the network and the affiliate and all other affiliates of that network. "Any OTA signal nationwide" is certainly advocating bringing in an affiliate that has absolutely NO RIGHT to deliver their signal to that customer.

Their affiliation agreement is not the same as the one that network television stations have agreed to. Nor regional sports networks. Nor carbonated beverage distributors.

Obviously something has been worked out with these affiliates that allows the papers to be available in each other's markets. Otherwise the news service would pull their content from the paper violating the contract. It isn't that the newspaper lobby is weak (or non-existent). It is that their agreements allow for the behavior of their affiliates. TV broadcast networks do not have the same affiliation agreements for network programming as newspapers have for wire feeds.


I understand that the station as the law and contracts currently stand holds the exclusive right to the content in the market, even if the station chooses not to offer it. However, is that really moral or ethical when the station holds the exclusive right, yet does not make its signal available OTA to any subscriber with a rooftop antenna?

This is where government and private enterprise run into trouble--when they try to engage in one-sided activity that is clearly not fair. Most people will accept the rule of government and the right of private enterprise to engage in free market activity. However, when things are not fair and defy logic, such as having a monopoly on OTA broadcast of a network or syndicated program, and then not even distributing the network or program OTA to all viewers, and not allowing any distant station to be available, people begin to sense that something is not fair, something is not right.

The contract is not violated if Congress passes a law allowing the stations to be distributed nationwide. It is just a factor that the stations must include in their contract negotiations and market modeling.

If there were any law prohibiting distribution of newspapers outside of their market, the federal judges would be lining up to strike it down on First Amendment grounds. Why not with broadcasting? When will some judge have the guts to strike down the distribution restrictions that apply to signals of OTA broadcasters distributed by cable and satellite?

#55 OFFLINE   kevinturcotte

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Posted 19 July 2010 - 01:56 PM

What about people who ONLY have OTA?

#56 OFFLINE   Greg Bimson

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Posted 19 July 2010 - 02:02 PM

Why should it be the affiliate who actually holds the distribution rights to the area, if the affiliate is not actually receivable OTA in that area? I don't believe it is ethically or morally correct for an affiliate to claim an area, yet in reality not provide OTA reception to that area. That is the case in many markets, where hills or other obstructions prevent OTA reception.

In reality, the affiliate has held the distribution rights to the area since the beginning of broadcast TV.

None of the money paid to Radio Shack or Wiengard or Jampro or any other OTA antenna provider goes to local channels. Perhaps we need to institute some sort of fee for those who buy their OTA reception instead of renting it?

The point being made here is that as a person, you have the right to improve upon your reception. You can buy powered antenna or towers to improve the reception of stations in your area and that was always a choice, since the beginning of TV.

The problem is that it changes once you outsource your responsibility to another party. And here is where it gets dicey:

Yet none of the money paid by subscribers to the local cable company was going to the local channels...

Most of it was used for the infrastructure needed to deliver signals to their customers. Equipment, overhead, etc. Eventually "cable" systems made a profit but their service is providing a common antenna (community antenna).

And once the community antenna started providing more stations from other sources, such as satellite-delivered programming, they ceased to be a community antenna. It is no coincidence that "CATV" left the vernacular at about the same time all of these cable networks started to pop-up. It's also no coincidence that these cable networks started to scramble their satellite signals in the mid-1980's; both cablers and the programmers saw people defecting to BUD's which meant that people could receive their locals and basic cable programming for free.

Cable TV profited once they had a 60 channel universe, but it was all predicated on not paying for OTA content.

All I have pretty much been trying to argue is that it is CONTRACTS that make the business run. Some want to hasten the demise of the network/affiliate model, the same model that still provides the most-watched programs to the general public, on the grounds that it is "outdated". Technologically, it may be outdated. Economically, it is far from outdated, as there has been no groundswell from the existing networks to abandon the network/affilate model.

So I argue that since the most-watched programming is available on local channels that they should be entitled to some compensation from rebroadcasters, those same rebroadcasters that need local channels and their exclusive network programming in order to survive.

#57 OFFLINE   Greg Bimson

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Posted 19 July 2010 - 02:27 PM

Let's have this discussion take a different tact...

If there were any law prohibiting distribution of newspapers outside of their market, the federal judges would be lining up to strike it down on First Amendment grounds. Why not with broadcasting? When will some judge have the guts to strike down the distribution restrictions that apply to signals of OTA broadcasters distributed by cable and satellite?

Strike down what law? There is no law restricting the distribution of OTA signals. There is a law that allows for a channel to be rebroadcast in-market on satellite, but there is no law that forbids a channel from being carried outside of its market.

#58 OFFLINE   James Long

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Posted 19 July 2010 - 02:38 PM

However, is that really moral or ethical when the station holds the exclusive right, yet does not make its signal available OTA to any subscriber with a rooftop antenna?

They are making the attempt required by their contract. Any failure to perform should be handled within the terms of their contract, not by ad hoc decisions made by people who are not parties to the contract.

This is where government and private enterprise run into trouble--when they try to engage in one-sided activity that is clearly not fair.

What is fair about interfering with the private contract between network and affiliate? We're not talking about a life or death issue here ... there is no need for a government taking.

The contract is not violated if Congress passes a law allowing the stations to be distributed nationwide.

NEWS FLASH! No such law is needed. The current law offering statutory carriage are not the only way a network can get their programming carried. If some station in Iowa wants nationwide coverage there is no law that prevents them from working out an agreement outside of the statutory carriage laws. What prevents such an outside agreement with a network station is the station's own affiliation agreements not to deliver the content outside of the market they have paid for.

If there were any law prohibiting distribution of newspapers outside of their market, the federal judges would be lining up to strike it down on First Amendment grounds. Why not with broadcasting?

Because broadcasters themselves wrote those laws, campaigned for those laws and went to court to PREVENT satellite companies from carrying their signals without compensation or permission. The compromise written into the law is that if there is no other way of getting the content a distant can be provided. If there is another way the distant cannot be provided without permission from (guess who) the stations with the rights to that content.

The law you seek to overturn has been upheld by the courts. If a newspaper went to court to prevent someone else from distributing their papers outside of their area they might win. Say an Indianapolis and Fort Wayne newspaper (cities about 100 miles apart) made a non-compete agreement where in order to sell Fort Wayne newspapers the Indianapolis paper would feed them statewide stories via a wire service and not sell their Indianapolis papers in Fort Wayne. It all works out fine until one day when an enterprising paperboy picks up bundles of Indianapolis papers, drives them to Fort Wayne and sells them in gas stations and convenience stores. As his business grows the Fort Wayne newspaper notices and asks the Indianapolis paper to stop providing bundles of newspapers to that carrier. He sues - using your assumed right to sell an Indianapolis newspaper anywhere he desires. When the case reaches court he will stand against BOTH the Indianapolis and Fort Wayne newspapers who want their contract honored. Just like satellite companies stood in court against ALL of the major networks and their affiliate organization. I believe that news carrier would lose.

#59 OFFLINE   James Long

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Posted 19 July 2010 - 02:48 PM

And once the community antenna started providing more stations from other sources, such as satellite-delivered programming, they ceased to be a community antenna. It is no coincidence that "CATV" left the vernacular at about the same time all of these cable networks started to pop-up. It's also no coincidence that these cable networks started to scramble their satellite signals in the mid-1980's; both cablers and the programmers saw people defecting to BUD's which meant that people could receive their locals and basic cable programming for free.

Note what they were protecting ... the 'cable' channels. One can still get OTA for free. These companies EXPANDED their service offerings beyond a shared antenna and charged for those expanded offerings. The infrastructure was there from the days of being a simple community antenna. Improvements have been made but those improvements support the provision of more pay TV services (on demand, internet, phone) and really don't help OTA.

The basic monthly cost of delivering locals via cable is no where near the average cable bill. People are paying for things other than locals. And when (as required by Congress) people are given the option to subscribe to "lifeline" service they pay an infrastructure fee - and whatever fee the local broadcasters have managed to get out of the cable system for rebroadcasting their "free" signal. Lifeline services should be a reference for how much it would cost to return to the days of "CATV" with locals and community access only. Consider everything else a separate product and the money earned from that separate product NOT payable to OTA broadcasters.

#60 OFFLINE   runner861

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Posted 19 July 2010 - 03:59 PM

Let's have this discussion take a different tact...Strike down what law? There is no law restricting the distribution of OTA signals. There is a law that allows for a channel to be rebroadcast in-market on satellite, but there is no law that forbids a channel from being carried outside of its market.


The current STELA law, as well as the previous SHVIA, prohibits the distribution of any OTA signal outside of its market except in very limited circumstances.

#61 OFFLINE   James Long

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Posted 19 July 2010 - 04:18 PM

The current STELA law, as well as the previous SHVIA, prohibits the distribution of any OTA signal outside of its market except in very limited circumstances.

Incorrect.

It prevents using the statutory license to distribute an OTA signal outside of it's own market unless the circumstances are met.
The law does not prevent networks and stations from negotiating carriage outside of the statutory licensing structure.

#62 OFFLINE   runner861

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Posted 19 July 2010 - 06:07 PM

Incorrect.

It prevents using the statutory license to distribute an OTA signal outside of it's own market unless the circumstances are met.
The law does not prevent networks and stations from negotiating carriage outside of the statutory licensing structure.


How am I incorrect? Wouldn't negotiating around the statutory license be one of the limited exceptions? That is how, for example, a station could fill its schedule with programming that no other station had exclusive rights to and then it could get a satellite carrier to transmit its signal nationwide. I'm not aware of any station that is currently doing that.

At the Congressional hearings on STELA, there was a little discussion/debate between Charles Ergen and the NAB representative. Ergen wanted to have the law changed so that stations could be distributed nationwide, like newspapers. That was his analogy. The NAB representative said that was already possible if the station negotiated a separate agreement involving programming that no other station had exclusive rights to, like local news. Basically, Ergen said viewers wanted to watch news from other stations all across the nation. The NAB representative said that is already possible. Ergen said that it is too cumbersome to be switching stations on and off.

By the way, "its" is possessive--no apostrophe. "It's" is a contraction for "it is." Check a dictionary.

#63 OFFLINE   James Long

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Posted 19 July 2010 - 07:24 PM

So now you know you're wrong you claim that was an "exception" and resort to grammar flames?

Oh well. As long as you agree with Greg and I that stations CAN be carried outside of their own market via satellite - and there is no law preventing such carriage - we're on the same page. STELA and the predecessors are PERMISSIVE laws, they provide a statutory license and allow carriage within that license, not restrictive laws that ban carriage.

#64 OFFLINE   scooper

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Posted 19 July 2010 - 08:17 PM

I like the note where someone said what needs to be fixed on DBS (and cable, by analogy) -

If the L-R filings of a broadcaster at the FCC cover a location - then they should be able to get it via pay-tv provider, This of course should EXCLUDE E-skip type reception and the like.
You CAN put antennas on your owned and/or controlled property...

http://www.fcc.gov/mb/facts/otard.html

#65 OFFLINE   runner861

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Posted 19 July 2010 - 08:58 PM

So now you know you're wrong you claim that was an "exception" and resort to grammar flames?

Oh well. As long as you agree with Greg and I that stations CAN be carried outside of their own market via satellite - and there is no law preventing such carriage - we're on the same page. STELA and the predecessors are PERMISSIVE laws, they provide a statutory license and allow carriage within that license, not restrictive laws that ban carriage.


Why do you need/want me to agree with anyone? I understand the law. I believe that you understand the law as well. I thought that this topic dealt with our opinions as to whether broadcast networks are needed, not a debate over what the law allows or does not allow. I thought that we all in this thread pretty much agreed on what the law says, but were debating what the law should be.

Whether you want to call it permissive or restrictive is a distinction without a difference. Can you cite to me one case where a court said that STELA or the predecessors are "permissive," rather than "restrictive"? I would like to read that opinion, if it exists.

I also have another question: What is your opinion on whether a satellite carrier may carry a distant digital signal from an eastern time zone and broadcast it into a western time zone? If so, under what circumstances?

#66 OFFLINE   James Long

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Posted 19 July 2010 - 10:30 PM

OK, getting back to topic - the law that certain people (plural) in this thread seem to wish to strike down ...

The current STELA law, as well as the previous SHVIA, permitted the distribution of OTA signals outside of their own market using a statutory license under very limited circumstances. This carriage does not require the permission of the station carried nor the network with which the station is affiliated. The station/network cannot refuse to be carried as a distant. Use of these stations is not voluntary - therefore the stations need not be concerned with violating their affiliation agreements by providing a signal outside of their contract defined territories. (Through rewrites, the law has also been refined to attempt to exclude as many customers as possible who can receive the network some other way, including the 2004 change barring a distant signal being offered in markets where locals are offered that have a local station of the same network.)

Should this law be struck down or be allowed to expire distant network stations would cease to be available under the statutory license. Satellite providers would no longer be able to take the feed of any station without permission and would have to either find a station willing to violate their agreement with the network and other affiliates or make an agreement with the network that is willing to violate their prior agreement with affiliates.

Striking down the law would lead to LESS out of market carriage (reference: DISH losing permission to use the statutory license effective December 2006) not more.

DirecTV and DISH Network have been carrying network television via local stations for over 12 years. The networks have shown no interest in having their broadcast content shown in any other manner (other than reruns that have played on existing 'cable' distribution channels AFTER the original market exclusive network airings). Networks and their affiliates continue to support the affiliate distribution model and there is no sign that their support of that model will end.

Or are you expecting some judge to cherrypick an 11 year old law and strike out the parts that you don't like?

Edited by James Long, 19 July 2010 - 10:45 PM.


#67 OFFLINE   runner861

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Posted 19 July 2010 - 11:56 PM

OK, getting back to topic - the law that certain people (plural) in this thread seem to wish to strike down ...

The current STELA law, as well as the previous SHVIA, permitted the distribution of OTA signals outside of their own market using a statutory license under very limited circumstances. This carriage does not require the permission of the station carried nor the network with which the station is affiliated. The station/network cannot refuse to be carried as a distant. Use of these stations is not voluntary - therefore the stations need not be concerned with violating their affiliation agreements by providing a signal outside of their contract defined territories. (Through rewrites, the law has also been refined to attempt to exclude as many customers as possible who can receive the network some other way, including the 2004 change barring a distant signal being offered in markets where locals are offered that have a local station of the same network.)

Should this law be struck down or be allowed to expire distant network stations would cease to be available under the statutory license. Satellite providers would no longer be able to take the feed of any station without permission and would have to either find a station willing to violate their agreement with the network and other affiliates or make an agreement with the network that is willing to violate their prior agreement with affiliates.

Striking down the law would lead to LESS out of market carriage (reference: DISH losing permission to use the statutory license effective December 2006) not more.

DirecTV and DISH Network have been carrying network television via local stations for over 12 years. The networks have shown no interest in having their broadcast content shown in any other manner (other than reruns that have played on existing 'cable' distribution channels AFTER the original market exclusive network airings). Networks and their affiliates continue to support the affiliate distribution model and there is no sign that their support of that model will end.

Or are you expecting some judge to cherrypick an 11 year old law and strike out the parts that you don't like?


I have another, related question that I would like to ask you or anyone else who can answer it. Many cable systems, during the 1960s, 1970s, and 1980s, were routinely carrying distant network and independent stations. I personally observed this on one small cable system in the Monterey-Salinas market, and I have heard about many others that did this.

What law allowed the cable systems to do this? Or was there no law governing this behavior, so the cable systems simply grabbed the signal of any station that they wanted?

#68 OFFLINE   James Long

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Posted 20 July 2010 - 01:29 AM

Hopefully we can get back to the topic of THIS THREAD soon ... but for humor ...

I have another, related question that I would like to ask you or anyone else who can answer it. Many cable systems, during the 1960s, 1970s, and 1980s, were routinely carrying distant network and independent stations. I personally observed this on one small cable system in the Monterey-Salinas market, and I have heard about many others that did this.

The cable system I watched in the early eighties also had what today would be considered out of market stations on them. Applying today's terms to yesterday's practices may be misleading. One would need to find when Congress legally defined distants before assuming the stations were distants.

They were just stations ... received on the local CATV master antenna and with ONE exception the same selection that I could have received at home with the proper antenna. Pre-CATV many homes in the neighborhood had their own 30ft towers with an antenna. A rotor would have been needed to get all the channels.

There was only one station on the system that I believe was not receivable via a high end antenna. It was brought in by microwave from an antenna 12 miles away. OTA reception on a tall tower in that town. When the "distant" station was off the air one would occasionally see a station in Maine 800 miles away.

What law allowed the cable systems to do this? Or was there no law governing this behavior, so the cable systems simply grabbed the signal of any station that they wanted?

Perhaps you should ask in a cable forum? We focus on satellite around here.

For satellite there was no law and the companies did as they pleased until the networks and stations objected and took them to court to try to stop them. The outcome was Congress passing the original SHVA law providing statutory licenses and structure for carrying local broadcast stations using those licenses.

I suspect cable just did as they pleased until objections were raised and "significantly viewed" local stations were required in 70's and SYNDEX was required in the 90's (IIRC).

There are some crossovers in the law (the use of cable's Significantly Viewed list for satellite, for example) but most of the laws are separate and not quite equal between cable and satellite.

#69 OFFLINE   runner861

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Posted 20 July 2010 - 06:07 AM

Hopefully we can get back to the topic of THIS THREAD soon ... but for humor ...
The cable system I watched in the early eighties also had what today would be considered out of market stations on them. Applying today's terms to yesterday's practices may be misleading. One would need to find when Congress legally defined distants before assuming the stations were distants.

They were just stations ... received on the local CATV master antenna and with ONE exception the same selection that I could have received at home with the proper antenna. Pre-CATV many homes in the neighborhood had their own 30ft towers with an antenna. A rotor would have been needed to get all the channels.

There was only one station on the system that I believe was not receivable via a high end antenna. It was brought in by microwave from an antenna 12 miles away. OTA reception on a tall tower in that town. When the "distant" station was off the air one would occasionally see a station in Maine 800 miles away.

Perhaps you should ask in a cable forum? We focus on satellite around here.

For satellite there was no law and the companies did as they pleased until the networks and stations objected and took them to court to try to stop them. The outcome was Congress passing the original SHVA law providing statutory licenses and structure for carrying local broadcast stations using those licenses.

I suspect cable just did as they pleased until objections were raised and "significantly viewed" local stations were required in 70's and SYNDEX was required in the 90's (IIRC).

There are some crossovers in the law (the use of cable's Significantly Viewed list for satellite, for example) but most of the laws are separate and not quite equal between cable and satellite.


The stations I am referring to were transmitted by microwave over hundreds of miles. There was a company in Monterey that operated a microwave system that was retransmitting stations from LA and SF, two cities about 400 miles apart. The stations were being supplied to smaller cities up and down the state of California. I am also aware of California stations being received in Oregon, Utah, and Arizona. These stations were not on the "significantly viewed" list for the communities where they were being received, and they would for the most part not be receivable on any 30-foot antenna on top of a mountain.

I am aware that cable and satellite are governed by different laws. However, these stations would be called "distants" today. Whether they were legally considered "distants," or anything else, in the past, I don't know.

Of course, satellite was generally doing what it wanted with distant stations until the first SHVA law was passed. Whether one wants to call it a permissive or a restrictive law is not really significant. The law does what it does. I'll ask again, since you didn't answer yet: Does any court opinion dealing with SHVA, or any of its successors, describe the law by using the term "permissive," or the term "restrictive?" Or is this just a distinction that you have decided to apply to the law? If it is your description, that is fine, but don't expect that others will automatically recognize your characterization or necessarily agree with it. If satellite was doing as it pleased, as you describe above, until Congress passed SHVA, then one could seem to describe the law as either restrictive or permissive, depending on one's point of view.

Anyway, your opinion doesn't matter. My opinion doesn't matter. The only opinion that matters is that of the court. The court is the institution that will interpret and apply the law when a dispute arises. I don't see the court as using the term "permissive" or "restrictive." I think we should avoid characterizations that spin the law one way or another and don't really add anything to the discussion.

#70 OFFLINE   Greg Bimson

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Posted 20 July 2010 - 07:13 AM

Basically, Ergen said viewers wanted to watch news from other stations all across the nation. The NAB representative said that is already possible. Ergen said that it is too cumbersome to be switching stations on and off.

But Ergen did not say it wasn't possible. He was simply posturing to get a handout.

Can you cite to me one case where a court said that STELA or the predecessors are "permissive," rather than "restrictive"? I would like to read that opinion, if it exists.

Sure. From the winning team, the response of the Department of Justice to the writ of certiorari:

Rather than restricting speech, the SHVIA license allows satellite carriers to use the property of others without regard to background copyright restrictions. If petitioners do not wish to make use of the statutory license in any market because they are dissatisfied with the terms of that license, they remain free to negotiate the carriage of individual broadcast stations and to carry other programming as well, just as before passage of the SHVIA.

This is for the response to the writ of certiorari.

However, I think you might want this, as I recall once the opinion of the SHVIA was given by the court of appeals, anyone else that could hear the appeal denied it. This is the decision from the Court of Appeals.

In other words, the voluntary decision to carry one local station in a market under the statutory copyright license will trigger an obligation to carry all the requesting stations in that market.

"...voluntary decision..." triggers "an obligation". Permissive. If you wish to use the license, then follow the terms given.

Anyone reading either the response to the writ of certiorari or the actual decision from the Court of Appeals will note that Congress would not pass a law that would destroy the stations' number one means of revenue, and certainly would not create a law that would invalidate exclusive contracts.

Edited by Greg Bimson, 20 July 2010 - 07:21 AM.


#71 OFFLINE   James Long

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Posted 20 July 2010 - 09:30 AM

Anyway, your opinion doesn't matter.

I disagree.

My opinion doesn't matter.

I agree. :D

The only opinion that matters is that of the court. The court is the institution that will interpret and apply the law when a dispute arises. I don't see the court as using the term "permissive" or "restrictive." I think we should avoid characterizations that spin the law one way or another and don't really add anything to the discussion.

This isn't a new law. The provisions in the law that you are most against are at least 20 years old and have only been strengthened in revisions. If there was a legal problem with the law that a court might "fix" it would have been done years ago. It is a sound law.

You seem to have instant access to court documents ... how about you use some of your time looking into the issues you have questions about? (Especially the cable carriage issues from 30-50 years ago that have no place in a DBS satellite forum). You can write a nice blog about it for people who care about cable. Or help flesh out your claims by finding every challenge to SHVA and it's revisions. You tell us if it has ever been challenged.

The only "challenge" I know of was the vs DISH lawsuit in Florida. DISH kept fighting and failed to properly follow the statutory license that should have settled that case - and lost. I am unaware of any other case where SHVA was challenged but if you have the resources - perhaps you can find one.

#72 OFFLINE   Greg Bimson

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Posted 20 July 2010 - 10:34 AM

How am I incorrect? Wouldn't negotiating around the statutory license be one of the limited exceptions?

How would negotiating without using the statutory license be a "limited exception"? Either one can use the license, or not. The satellite carriers do not have to use the license at all. However, using the license absolutely destroys the bottleneck of having a station negotiate with all of its programmers for copyright license rebroadcasting rights. So let's put this back into perspective:

I thought that this topic dealt with our opinions as to whether broadcast networks are needed, not a debate over what the law allows or does not allow.

Fine.

The copyright exemption tied to 17 USC 122 is not mandatory. There is no law FORCING the satellite companies to provide local channels. However, both DirecTV and Dish Network are using the license. Both DirecTV and Dish Network are rebroadcasting the affiliates of local networks, and have applauded the legislation which helps them accomplish that task.

It seems to me therefore that broadcast networks are needed, as they still provide the most-watched programming in the country, and Dish Network and DirecTV are happy to use the handout given by the government to rebroadcast those local channels which happen to include broadcast networks. Heck, Dish Network is taking the FCC to court because they would rather be able to provide more of the broadcast networks to other markets in HD than to supplement their current markets with their non-commercial HD broadcasts.

The argument here has been stating the network/affiliate model is outdated. Once again, I ask that a scenario be presented to entice the networks to abandon their network/affiliate distribution system, one that has been intact for decades because the economics of the network/affilate distribution system work as-is.

Edited by Greg Bimson, 20 July 2010 - 10:51 AM.
Better set my grammar correct


#73 OFFLINE   runner861

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Posted 20 July 2010 - 10:35 AM

Or help flesh out your claims by finding every challenge to SHVA and it's revisions.


But first you learn the difference between "its" and "it's."

#74 OFFLINE   James Long

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Posted 20 July 2010 - 11:08 AM

But first you learn the difference between "its" and "it's."

Another grammar flame. I guess that means you agree with everything else that I have said and concede that Greg and I are right.

No more off topic posts please. I've indulged this thread enough.

DBSTalk is a satellite forum, not a cable forum. This thread is about the importance (or lack thereof) of broadcast affiliate networks - being a satellite forum take that "as applied to satellite re-broadcasting". If there is no more discussion of Bigg's topic there is no need for this thread.

#75 OFFLINE   Bigg

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Posted 20 July 2010 - 05:41 PM

[quote name='Herdfan']While there are good arguments on both sides of this issue, the one thing that is broken is the antiquated DMA system used to determine "markets". [/QUOTE]

Yes, and allowing the cable and satellite companies to determine where the market lines are would eliminate this problem, as they would cobble together at least one full set of locals for that market.

[quote name='James Long']
Those that want to break the system are just interfering with free enterprise. There isn't a compelling reason for the government to override the affiliation contracts of the networks/affiliates. There is no constitutional right to view the product being offered.[/QUOTE]

No, you're wrong. Right now, the government, by using the DMA system, is propping up a series of partial monopolies that circumvent free market capitalism. Letting local channels compete with each other for viewers is true capitalism, and is a rather pure form of competition, since you just click a button, and you are watching the other channel.


[quote name='James Long']
Leveling the rules between cable and satellite so satellite at least carry the same channels that cable carries is important. [/QUOTE]

That would be a baby step in the right direction, but it still wouldn't create competition and consolidation among TV stations.

[quote name='runner861']The comparison is not on point. DirectTV is not a free service, so taking it and retransmitting it without permission would be video piracy. OTA is free, or at least it used to be. The local stations and the networks are doing their best to say that it is free, but at the same time to make sure that it really is not free.[/QUOTE]

Thank god someone has a brain. :rolleyes:

Yeah, it makes no sense that their signal is available freely over the air, yet cable and satellite has to pay in order to give that station more viewers, which the station uses to generate advertising revenue. :confused:

[quote name='Greg Bimson']
Why does a satellite or cable company need to retransmit a "free" product? Could it be that without the "free" product people won't subscribe? All one needs to do is point to the passage of the SHVIA back in 1999, when DBS satellite numbers went from less than 8 million subscribers without local channels to now more than 30 million in 2010 with local channels.[/QUOTE]

Surely locals had something to do with the uptake in satellite, since that was before the days of OTA HD, and even today people are lazy. However, there are three other big drivers. The first was digital, while the cable companies had fuzzy analog, the second was the price, as the cable companies drove the price up and up, and the third was HD, where satellite is still way ahead of many cable systems in HD channel selection.

[quote name='James Long']If it were not profitable they wouldn't do it, but delivering "free TV" via satellite or cable isn't free.[/QUOTE]

Yeah, it costs DISH money, but the affiliate shouldn't be getting money for a signal that you could get for free OTA.

[quote name='James Long']
Their affiliation agreement is not the same as the one that network television stations have agreed to. Nor regional sports networks. [/QUOTE]

The newspaper analogy is a good one. There is nothing stopping anyone from selling their paper anywhere, and there used to be multiple papers in each city.

Also, you can pay extra and get the RSN's, although then you'd have to pay again to get the actual games.

[quote name='kevinturcotte']What about people who ONLY have OTA?[/QUOTE]

If the markets were opened up, let the free market decide. In some cases, they would have to get a dish or cable. In other cases, a distant affiliate would keep the transmitters running with a distant feed via microwave. In some cases, the local affiliate will stay around. Let the market decide.

[quote name='Greg Bimson']Economically, it is far from outdated, as there has been no groundswell from the existing networks to abandon the network/affilate model.[/QUOTE]

Economically, it is totally outdated, since relatively few people receive their TV OTA anymore, and those who do aren't attractive to advertisers, because they are either cheap or poor. Neither audience is a very good consumer. It would be far more efficient and much cheaper to distribute programming nationwide to pay-tv operators via satellite.

[quote name='James Long']Say an Indianapolis and Fort Wayne newspaper (cities about 100 miles apart) made a non-compete agreement where in order to sell Fort Wayne newspapers the Indianapolis paper would feed them statewide stories via a wire service and not sell their Indianapolis papers in Fort Wayne.[/QUOTE]

That's a cartel. Cartels are illegal under U.S. Federal Law, by the Sherman Antitrust Act.

[quote name='James Long']Incorrect.

It prevents using the statutory license to distribute an OTA signal outside of it's own market unless the circumstances are met.
The law does not prevent networks and stations from negotiating carriage outside of the statutory licensing structure.[/QUOTE]

Then why can U-Verse carry channels from two states away, while DISH can only carry channels from in-DMA?

[quote name='runner861']The NAB representative said that was already possible if the station negotiated a separate agreement involving programming that no other station had exclusive rights to, like local news.[/QUOTE]

But then, how does SV work? Even on DirecTV, my area can get duplicates of three of the big four. They are both showing prime-time programming.

[quote name='James Long']STELA and the predecessors are PERMISSIVE laws, they provide a statutory license and allow carriage within that license, not restrictive laws that ban carriage.[/QUOTE]

Then why are there markets without a full set of locals, and why isn't DISH doing SV's like cable and DirecTV?

[quote name='James Long']
The current STELA law, as well as the previous SHVIA, permitted the distribution of OTA signals outside of their own market using a statutory license under very limited circumstances.[/QUOTE]

What about SV? Also, I am arguing that the carriers should be able to carry any channel from CONUS, HI, or AK anywhere in CONUS, HI, or AK, by law. This would break the cartel-like structure of the current network system, and allow providers to respond to their customers.

Also, does the current law require gaps to be filled in with DNS, or can they be filled with the next market over?

[quote name='Greg Bimson']
It seems to me therefore that broadcast networks are needed, as they still provide the most-watched programming in the country, and Dish Network and DirecTV are happy to use the handout given by the government to rebroadcast those local channels which happen to include broadcast networks.[/QUOTE]

I bet if they were allowed to, in an actual free market, both of them would light up NYC, Chicago, and LA locals to the whole country, and then skip town on some small market locals to free up TP space. That would get everyone in the US access to HD locals.

[quote name='James Long']If there is no more discussion of Bigg's topic there is no need for this thread.[/QUOTE]

Let them go at it. It's an interesting topic. Thanks for splitting this off, so it didn't go out of control on the PBS thread.




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