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Court of Appeals Upholds DISH Hopper Ruling — Again


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#1 OFFLINE   James Long

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Posted 26 January 2014 - 07:51 PM

Court of Appeals Upholds DISH Hopper Ruling — Again

ENGLEWOOD, Colo.--(BUSINESS WIRE)-- Today, the United States Court of Appeals for the Ninth Circuit unanimously denied Fox Broadcasting Company's petitions to rehear the court's July 2013 rejection of Fox's efforts to bar DISH subscribers from use of the PrimeTime AnytimeTM and AutoHopTM features found on the pay-TV provider's Hopper® Whole-Home HD DVR.

The PrimeTime Anytime feature provides consumers with the ability to easily record primetime shows on up to each of the four broadcast networks (ABC, CBS, NBC and Fox) and save them for up to eight days. The AutoHop feature provides consumers the ability to play back certain PrimeTime Anytime recordings commercial-free, starting the day after broadcast.

The following statement can be attributed to DISH Executive Vice President and General Counsel, R. Stanton Dodge:

"With this decision, the Court continues to reject Fox's efforts to deny our customers' access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home HD DVR.

"This is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control."

About DISH

DISH Network Corporation (NASDAQ: DISH), through its subsidiary DISH Network L.L.C., provides approximately 14.049 million satellite TV customers, as of Sept. 30, 2013, with the highest quality programming and technology with the most choices at the best value, including HD Free for Life®. Subscribers enjoy the largest high definition line-up with more than 200 national HD channels, the most international channels, and award-winning HD and DVR technology. DISH Network Corporation is a Fortune 200 company. Visit www.dish.com.

http://dish.client.s...eleaseID=821073
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#2 OFFLINE   MysteryMan

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Posted 27 January 2014 - 03:38 AM

Good. 


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#3 ONLINE   Curtis0620

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Posted 27 January 2014 - 09:05 AM

This is only the Injunction, the court case has yet to held.  This is far from over.


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#4 OFFLINE   lparsons21

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Posted 27 January 2014 - 09:08 AM

Correct, but it is an indication that the case is weak imo.


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#5 ONLINE   Curtis0620

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Posted 27 January 2014 - 09:51 AM

Correct, but it is an indication that the case is weak imo.

That is a weak assumption.  A Judge would not severely harm the defendant before the case is heard.  This injuction would have severely hurt DISH.


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#6 OFFLINE   Stewart Vernon

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Posted 27 January 2014 - 12:00 PM

Exactly...  it's like when someone is going to trial for a crime but there is not enough evidence to lock them up during the trial.  It doesn't mean they will not still get convicted by a preponderance of the evidence as a result of the trial, but "innocent until proven guilty" gives enough leeway for them to be released under bond and not be restrained in prison unless and until they conviction.

 

An injunction is a similar thing.  IF you think you have a strong case you try to also get an injunction to try and stop the defendant from doing "whatever" during the trial because it benefits you... but not getting an injunction doesn't reflect on the actual trial and should you win the trial, you'd get to extract punishment for the time during the trial that the activity continued as well.

 

I am on the fence with all this stuff, though.  I can see a case against Dish given the way they have implemented the commercial skip feature only on specific channels that they seem to have a specific axe to grind.  I think that will work against Dish's favor in the actual trial.


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#7 OFFLINE   inkahauts

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Posted 27 January 2014 - 03:41 PM

Frankly I think the aero case is much bigger than this one right now and I hope this one is decided after the aero case. I think it's got a better shot then.

Still auto hop will hurt more than help retrans fees for us in the long run.

#8 OFFLINE   SayWhat?

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Posted 27 January 2014 - 04:47 PM

I can see a case against Dish given the way they have implemented the commercial skip feature only on specific channels that they seem to have a specific axe to grind.  I think that will work against Dish's favor in the actual trial.

I don't know about that.  Isn't it on all OTA channels but no 'cable' channels?  I haven't heard that they did any pick-and-choose  or mix-and-match.

 

Don't have it and don't use it though so I'm not sure which channels are really affected.


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#9 OFFLINE   Stewart Vernon

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Posted 27 January 2014 - 06:15 PM

I don't know about that.  Isn't it on all OTA channels but no 'cable' channels?  I haven't heard that they did any pick-and-choose  or mix-and-match.

 

Don't have it and don't use it though so I'm not sure which channels are really affected.

 

But Dish delivers those OTA channels via satellite.

 

Dish is only using AutoHop on ABC, CBS, FOX, and NBC...  They aren't even doing it on all OTA... such as CW and others.

 

The Dish statements of believing that consumers should have the right to skip commercials doesn't hold water when you realize that Dish isn't supporting that notion on 99% of the channels they offer... and on top of that, Dish themselves sells ads on those other channels, which is probably part of why they don't implement AutoHop on those channels... or at least that's what the "big 4" networks would likely argue in court.

 

Dish is specifically targeting only those 4 networks with the commercial-skip features.


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#10 OFFLINE   James Long

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Posted 27 January 2014 - 06:17 PM

This is only the Injunction, the court case has yet to held.  This is far from over.

Yet Fox still tried again to get the injunction. If the decision was not important Fox would not be pushing to change it.
 

I can see a case against Dish given the way they have implemented the commercial skip feature only on specific channels that they seem to have a specific axe to grind.  I think that will work against Dish's favor in the actual trial.

DISH did not pick just the Fox channels or just the ABC channels or just the CBS channels or just the NBC channels. They chose the OTA channels from ALL four major networks. Those four networks generally have the highest viewership and are the easiest to implement AutoHop.

If DISH would have picked just the Fox channels (Fox broadcast and FX, FXX, FXM, FS1, FS2, etc.) you might have a point. But the channels chosen are not targeting one broadcaster.

Smaller networks such as CW don't have the viewership and time on air of the big four. And while AutoHop should not require PTAT recording, the features are closely tied.
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#11 OFFLINE   Stewart Vernon

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Posted 27 January 2014 - 09:30 PM

DISH did not pick just the Fox channels or just the ABC channels or just the CBS channels or just the NBC channels. They chose the OTA channels from ALL four major networks. Those four networks generally have the highest viewership and are the easiest to implement AutoHop.

If DISH would have picked just the Fox channels (Fox broadcast and FX, FXX, FXM, FS1, FS2, etc.) you might have a point. But the channels chosen are not targeting one broadcaster.

Smaller networks such as CW don't have the viewership and time on air of the big four. And while AutoHop should not require PTAT recording, the features are closely tied.

 

Yes... but an analogy would be...  if the police setup speed traps but only catch the slower speeders that are easier to catch.  If one can prove bias in the enforcement of laws, one can get those laws to change.

 

In the case of the networks...  The "big 4" can make a case that they are unfairly being singled out by Dish who is only attacking their network's revenue source (ads) with the AutoHop feature.  Perhaps their most successful charge here against Dish would be that Dish is singling them out and not offering this feature on ALL of Dish's channels... and on top of that, Dish is certainly not offering it on channels for which Dish is selling ads itself... so Dish has a conflict of interest too.

 

Injunction failures aside... I really think Dish is going to eventually lose this unless the "big 4" decide to stop fighting it... or unless someone like Disney with their deal makes a side-deal on AutoHop along with the other stuff and breaks away from the other 4 in challenging AutoHop.


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#12 OFFLINE   inkahauts

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Posted 27 January 2014 - 09:41 PM

Yet Fox still tried again to get the injunction. If the decision was not important Fox would not be pushing to change it.

DISH did not pick just the Fox channels or just the ABC channels or just the CBS channels or just the NBC channels. They chose the OTA channels from ALL four major networks. Those four networks generally have the highest viewership and are the easiest to implement AutoHop.

If DISH would have picked just the Fox channels (Fox broadcast and FX, FXX, FXM, FS1, FS2, etc.) you might have a point. But the channels chosen are not targeting one broadcaster.

Smaller networks such as CW don't have the viewership and time on air of the big four. And while AutoHop should not require PTAT recording, the features are closely tied.


Why are those channels easier to implement than any other channel? If anything I would think cable ones that are already set up to insert local ads rather than national ads on their feeds would be easier to mark beginning and ends of commercials.

#13 OFFLINE   James Long

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Posted 27 January 2014 - 11:21 PM

Why are those channels easier to implement than any other channel? If anything I would think cable ones that are already set up to insert local ads rather than national ads on their feeds would be easier to mark beginning and ends of commercials.

The cable insert windows could be considered the only known point in the hour where commercials will be. Satellite and cable are given a specific cue for those commercial breaks. The rest of the hour belongs to the network. DISH would need to monitor each hour of network programming and mark all the commercial breaks to get AutoHop to work on each of those cable stations.

The four major networks? They are basically looking at tracking four feeds. Once they determine where the breaks are for those four feeds the times can be applied to other stations showing the same program. DISH also limits AutoHop to prime time ... a few hours per night - usually 22 hours per week on the four channels. If they were to attempt AutoHop on cable what hours should they cover?

I do not know the exact method DISH uses for marking hop points - but by limiting AutoHop to 3 or 4 hours on 4 feeds they have a manageable amount of content to deal with. Often the most watched channels at the most watched time of day.
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#14 OFFLINE   Laxguy

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Posted 28 January 2014 - 08:27 AM

The methodology is interesting. I don't see how they can fully automate the process of putting in markers to skip ads; there has to be some human oversight. After all, the big four have incentive to jam Dish's system on that, so starting early, late, small blocks, big blocks, blocks with program reminders in between and so on. 


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#15 OFFLINE   lparsons21

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Posted 28 January 2014 - 08:45 AM

And they don't always hit it just right which seems to indicate that it is an automated process.


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#16 OFFLINE   James Long

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Posted 28 January 2014 - 09:34 AM

And they don't always hit it just right which seems to indicate that it is an automated process.

I believe some of the drift is intentional since satellite transmission tends to put delays in reception. DISH would rather cut away a couple of seconds after show content and return a couple of seconds before show content than lose even a few seconds of the show.

I have noticed some oddities such as on Hawaii 5-0 when they put a car promo going in to the commercial break it is considered part of the show and isn't auto skipped. It isn't part of the drama but it isn't a standard commercial.

It would be an interesting war to put key content in the middle of commercial breaks ... but that would be a battle against all commercial skippers, not just AutoHop.
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#17 OFFLINE   Laxguy

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Posted 28 January 2014 - 11:48 AM

So, does anyone know exactly how they do it? Or more or less how commercials get cued out? 


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#18 OFFLINE   inkahauts

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Posted 28 January 2014 - 11:59 AM

The cable insert windows could be considered the only known point in the hour where commercials will be. Satellite and cable are given a specific cue for those commercial breaks. The rest of the hour belongs to the network. DISH would need to monitor each hour of network programming and mark all the commercial breaks to get AutoHop to work on each of those cable stations.

The four major networks? They are basically looking at tracking four feeds. Once they determine where the breaks are for those four feeds the times can be applied to other stations showing the same program. DISH also limits AutoHop to prime time ... a few hours per night - usually 22 hours per week on the four channels. If they were to attempt AutoHop on cable what hours should they cover?

I do not know the exact method DISH uses for marking hop points - but by limiting AutoHop to 3 or 4 hours on 4 feeds they have a manageable amount of content to deal with. Often the most watched channels at the most watched time of day.


While I get what you are saying, I see a flaw in your theory. Replaytv had this feature for all channels for all stations, and was never putting commercials in or anything else, it was strictly recording after the fact. And they did it for all channels. So we know for a fact it can be achieved. I've always said they made the best DVR that's ever been released, surpassed in some one way, only by more tuners. Those guys had the best DVR in the world. They just didn't have the money.

#19 OFFLINE   James Long

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Posted 28 January 2014 - 12:00 PM

So, does anyone know exactly how they do it? Or more or less how commercials get cued out?

DISH holds a patent for using closed captioning for queues. That would especially be good for syndicated shows that may be played from recordings with different length commercial breaks in each market. In another thread there is a post about a room full of techs setting the markers. It wouldn't take a roomful (unless it was a small room - like an editing bay).
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#20 OFFLINE   James Long

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Posted 28 January 2014 - 12:07 PM

While I get what you are saying, I see a flaw in your theory. Replaytv had this feature for all channels for all stations, and was never putting commercials in or anything else, it was strictly recording after the fact. And they did it for all channels. So we know for a fact it can be achieved.

We know it COULD be achieved ... I don't know the accuracy rate of Replay's system or if it would still work today. In the past signals to the stations would be encoded in the vertical blanking interval of the broadcast signal. These signals were not stripped out when the signal was rebroadcast. Today's signalling does not need to be on the passed through feeds.
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