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Dish sues FCC over PBS-HD requirement

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

  1. James Long

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

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    Charlie began with an assumption that he could take free OTA TV signals and rebroadcast them to anywhere, regardless of the station's consent, payment to stations or respecting the affiliation contracts and the station's broadcast area.

    He (and DirecTV) ended up being sued ... and lost. Turns out he didn't have permission to take anyone's signal and broadcast it anywhere ... let alone broadcasting it everywhere. And while the lawsuit went through court he (as Greg noted) worked with congress to get a law that WOULD allow him to rebroadcast local TV stations under a statutory license system.

    Many years and a few revisions later the law isn't perfect but it is the law we have today. Local into local with either forced carriage (must carry - no payment to the station) or negotiated carriage (consent to carry - the station may charge). Distant stations only if a local station of that network does not cover the viewer or waives it's exclusive rights. A few years ago "significantly viewed" stations from neighboring markets were allowed for satellite. (These were originally considered a form of distants but was moved to the locals law by STELA).
     
  2. Greg Bimson

    Greg Bimson Hall Of Fame

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    Dish Network does not have 'the right to "rebroadcast" local programming'. There are certain criteria which must be met before that can happen.
    Then come to an agreement. That's what this thread is all about; Dish Network couldn't come to an agreement with APTS.

    It appears they've come to an agreement with PBS, but the member stations might not want to sign a carriage agreement under the terms of the PBS-Dish Network master agreement.

    BTW, I believe DirecTV is only showing KQED in HD. Most likely as the terms of the agreement they have with APTS.
     
  3. mlcarson

    mlcarson Mentor

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    This mandate is crazy. Satellite providers should have the option of simply carrying 1 PBS station in HD per time zone or just 1 station nationwide. This is what Canada does. Having to carry hundreds of PBS stations showing the same programming is a waste of valuable bandwidth. Of course, I think the same thing about having to broadcast the big three for every DMA but at least that was Dish's choice.
     
  4. Greg Bimson

    Greg Bimson Hall Of Fame

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    And have Congress and the President abrogate PBS' rights? Just wait until a law is passed to restrict your rights...
    We live in a society with more freedoms here than in Canada.
    Not really. Spot-beams kind of make that point moot.
    And if Dish Network has made the determination to serve a market with HD local channels, then it is imperative that the local channels that tend to produce local programming be included.
     
  5. prm1177

    prm1177 Cool Member

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    PBS and their local affiliates should figure out a way to make this happen ASAP. Discovery and various other HD channels, including the Learning, Nature, and History Channels are sucking up a lot of the PBS market, even with commercials.

    The only thing the PBS locals seem to have are Britcoms and pledge drives these days.
     
  6. HarveyLA

    HarveyLA Legend

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    The local stations pay PBS for the programs they carry. No pledge drive, no pay PBS, no programs. PBS bypasses local stations- local stations disappear- same result. Even if you could fund a national only PBS somehow, you would wipe out the diversity of programming and local programming. We have three PBS stations in the Los Angeles area. KCET is the primary with first run PBS and its own local programs, KOCE also covers greater Los Angeles and has a lot of local programming. Check out their web site if you doubt it.
    By the way, KCET recently hinted it might drop PBS and contract for its own programs (maybe a negotiating ploy to get their payments to PBS reduced, but ..maybe not.) They're also floating an idea for the L.A. PBS affiliates to join forces and share the first run PBS programs.
    In any case, the main point is that local stations are at the heart of U.S. broadcasting, and will always be protected by Congress (at least until new technology or market forces cause them to fold on their own.) I've made this point before, but it bears repeating. Anyone who is willing to weaken or kill off local stations so they can get their national HD PBS programs a little sooner, is in my opinion short-sighted. If you can't wait for the inevitable- all PBS locals will be in HD sooner or later, then why not switch to DirecTV?
    And I would not put the blame on PBS or its affiliates for Dish Network's failures. The PBS stations are eager to be carried in HD, for free. The reason for the negotiations is that Dish was trying to hold off action by Congress that threatened to impose a tough new deadline. Dish's proposal was not good enough to be approved by the affiliates. Congress acted. Dish is now doing its best to tie it up in the courts.
     
  7. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    So what you're arguing is that there just isn't enough airtime on only one PBS station in the LA area because the various stations produce so much quality HD local programming watched by millions of different people?

    The problem is that even at best PBS stations don't compete well in ratings. Nothing you say could convince me that LA and the Bay Area would be better served by one PBS station. IMHO Dish and DirecTV shouldn't have to waste resources on serving up more than one in a DMA.

    The case I'm arguing for one national version is the same argument I've made elsewhere for the commercial broadcast networks. We're being forced to provide the local affiliates with economic life support no matter how bad they are and how little audience the local programming attracts. Even if that life support is one of four HD spotbeams available and the uplink costs, many times its way too much.

    Way too many PBS locals feel like a local Lions Club with self-important members serving on boards and their non-profit mission is nothing more than keeping the "station" alive because there is virtually no economic chance for any more significant purpose.

    If, instead of broadcast TV, TV started in wires and satellite the model would have been different. For most American households today, TV comes from wires and satellites. Why are we supporting that outdated local broadcast model? It's 2010, not 1950. In technology time that is six centuries.
     
  8. Greg Bimson

    Greg Bimson Hall Of Fame

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    Did lawmakers grant a second license to most stations in order to transition to digital TV? The current model is OTA transmissions...
    Economic life support? The affiliates have rights, too. In this argument, the main concern identifies uplink costs, which means the only issue with the current system is that it duplicates some programming, i.e. it is not beneficial to Dish Network and DirecTV. And those companies have the right to stop serving this programming.

    Yet Dish Network just finished serving all 210 markets nationwide, and DirecTV is still adding more and more local markets, which means it doesn't appear they mind.

    I'll still go back to March to July, 1999. When DirecTV lost their court case regarding violations of the SHVA and were forced to disconnect about a quarter of their subscriber base from distant networks, DirecTV was in a dire position. There was no way for them to provide network programming as the SHVIA hadn't been passed. By about July, DirecTV was then able to take Dish Network's crusade to provide local channels and then set Dish Network on the sidelines regarding their lobbying effort.

    Long story short, DirecTV was able to come to an agreement with the NAB to establish a framework which would become the SHVIA, providing local-into-local service. It seemed that because DirecTV lost their suit on the SHVA, they noticed their churn getting a bit higher. Dish Network was being sued for violations of the SHVA, but that suit wasn't going to be settled for a couple years (and that ended up turning into seven years through the course of appeals and a retrial).

    When the DirecTV/NAB deal was announced, the one set of parties that were wondering what happened were the networks. The networks, who at that time were just starting to lose money, wondered aloud why DirecTV didn't come to them. The thought was that the networks may have created a special, national feed for a fee in order to provide their programming to DirecTV, a de-facto cable channel if you will.

    And we'll never know if that would have come to pass. The affiliate community was in an uproar when cable channels were able to rebroadcast episodes of popular series two weeks after they were first shown on the network. It may have taken the networks an absolute miracle to negotiate a contract with DirecTV, Dish Network and the networks' own affiliate groups because that would have marked the first time in history a network would no longer have given their affiliates the first-run exclusive.
     
  9. James Long

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

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    They would have run in to the same problems as you note below ... serving the affiliates via a "first run" contract as well as serving potential viewers who had no or limited access to affiliate feeds.

    And that is what prevents a national network feed ... the network's desire to continue to protect their deal with affiliates. Every major network has cable feeds ... it is only their own self control and not wanting to tick of affiliates that keeps broadcast programs off of cable to the extent that the two worlds are kept separate.
     
  10. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Northern...
    This will be my last post on the subject of national feeds in this thread. But I just must [strike]respond[/strike] rant.

    I'm as sentimental about Hoffman TV's and the DuMont Television Network as the any other old fart here. I was watching TV in 1951. I had family working for NBC radio then who didn't make the transition successfully. That didn't mean I wanted to block advances in TV.

    You could have fooled me that Dish "finished serving all 210 local markets nationwide." I guess the San Francisco Bay Area is a DMA in Canada because because I'm not served at a 21st Century level. I don't get The CW or PBS in HD. Or do you define "serve" as cropping down an HD picture, reducing its quality, and sending it out SD? Using that approach would you include in "served" a signal that is mono audio with a black and white picture using minimal bandwidth?

    Would you allow local broadcasters to get away with defining "serve" in a manner that includes a geographic service area within which 50% of the area (I mean land area, not customers) cannot get a signal. Oh, I forgot! That's exactly what they and the FCC do mean in the majority of DMA's in the west.

    It's a darned good thing local businesses didn't somehow get a federally protected interest in the internet, or I'd still have to use dialup whenever I wanted to contact someone outside the Mendocino County Comcast ISP system.

    Using the television industry in 2010 as a model, we would all be driving on a "roadway system" (a system that includes OTA, cable and satellite) that precludes the use of the Interstate highway system (satellite) by all local residents for half their trips (half their viewing) because local businesses would take heavy losses if traffic didn't drive through the middle of town past their storefronts as opposed to driving by interchanges where regional shopping centers made up of national chains sell the same products.

    Would we value the local guy tapping out Morse Code on the national telegraph system so much that people would fight to prevent the telephone system from providing long distance service?

    I can be a Luddite about some technology "advances" but I don't impose my backwardness on others (unless you have some need to call me on my cell phone).

    When I got my C-band dish in the 1980's, I thought "this and cable are the ways TV service should be provided!" The local broadcasting model should have died before the turn of the century, but we're keeping it on life support. And it appears that in the satellite community there are many defenders of the status quo.

    In the 21st Century satellite and cable customers should be getting, and satellite companies should be paying for, no more than one feed of national broadcast network programming handled just like cable channels IMHO. The success or failure of local broadcasters should be dependent upon their ability to attract viewers and advertisers (or donors) exclusively through their use of their OTA signals. Their ability to demonstrate to cable and satellite companies that a demand exists for their signal should determine if they get carried.

    In our DMA, virtually no demand would exist in Mendocino County for the local programming on KNTV, the NBC-owned affiliate with its office located in San Jose, 182 miles from my house with several mountain ridges in between.

    If nothing else, keeping the current local broadcast network model in 2010 is a waste of a lot of the nation's electricity. I don't get it and I never will.
     
  11. Greg Bimson

    Greg Bimson Hall Of Fame

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    Just a couple of points, and I'm done...
    Ahh, and now the crux of the issue...

    Under the system we have, whose fault is it you aren't getting those channels? There is a choice of compromise; there is another satellite provider giving their customers the two channels you desire in the format you want. But for some reason, your choice is elsewhere, and the blame is going to everyone else but the company that won't provide those channels.
    But along with many others I've debated on this issue, everything is about the technology. However, businesses work by serving their customers to make a buck.

    There is a major difference between technological advances and solid business fundamentals. Everyone learned that the hard way with the dot-com and the dot-bomb. It took Amazon a while to be competitive; copyright holders cringed regarding how their rights were being violated as Napster was full-out destroyed while YouTube flourished.

    And until someone can convince the NETWORKS to change their business plan to remove the affiliate system and put a cable network in its place, there's no sense watching the programming from those networks. That means you are supporting the business model you so loathe. It may seem trivial, but it is very true.
    Congress wrote the bill and the President signed the law ordering the use of the Nielsen DMA as local-into-local boundaries, not the FCC. Lines had to be drawn somewhere. What map would you have used?

    Keep in mind that the largest reason for the advent of cable TV was to act as a community antenna in order to pull in stations one could not get clearly, and the advent of consumer satellite was to have rural folk without cable receive channels from the sky. With the advent of the small dish, they were competing for customers of both the C-band market and the cable company. And no surprise, they package and act pretty much like cable companies, with some minor "technological" differences.

    Which leads me back to the fact that the satellite companies and the cable companies are rebroadcasters. You need permission from whatever channel you want to carry in order to rebroadcast it. And the issue I don't like is that some want those rules changed, meaning an abrogation of rights would have to occur via a law.
     
  12. runner861

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    Going to DirectTV is not going to change the situation, at least in many markets. There are many markets where Dish is providing HD, although not for PBS stations. Those same markets are receiving no locals from Direct, or only SD locals from Direct. Many of these markets are small, some are mid-size. For example, Dish provides HD locals in Monterey-Salinas, although not PBS in HD. Direct only provides SD locals in that market.

    The Monterey-Salinas market, although a small media market, is geographically huge. There are many rural viewers who are claimed by the local stations, yet no type of OTA antenna will receive any channel in parts of that market. Many parts of that market are not served by cable. So, viewers must elect Direct, or Dish, or no TV. Dish is the best choice, because it provides some locals in HD, although not PBS. Direct provides no locals in HD.

    There is no reason those local stations should be propped up by the system that Congress has set in place. There is no reason that these viewers should be denied HD. At the very least, the DMA's should be no larger than where the TV signal can realistically be received OTA.
     
  13. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Sigh. We aren't talking about fundamental rights. We're talking about a grant of privilege by the federal government - an FCC license for the exclusive use of the public's airwaves. The fact that it has been combined with complex rules providing significant governmental protections many of which were created as a result of heavy lobbying of Congress doesn't change the most basic fundamental fact.
    No lines "had to be drawn" by anyone. Congress was convinced by lobbying that lines should be drawn. The Nielsen DMA was a lazy way to draw these lines. The FCC should have sent a truck around with a 20' antenna measuring signals to create the map. The FCC should do that now to redraw the map for digital signals.
    You'll get no quarrel from me about that. But you're talking about the internet, now an old technology. Television is an even older technology. At some point we have to stop being forced to buy buggy whips in order to drive an automobile.
    Unfortunately for me, until someone reigns in the advantages granted to broadcast stations by the government, networks won't change their business model.

    The networks, though much weaker than twenty years ago, control a large piece of the money flow that creates content and have squeezed out independent sources by reducing what they buy outside related media production companies.

    I do watch more content from the very few sources not owned by the parent companies of ABC, CBS, Fox, and NBC. The scripted programming offered by HBO, AMC, IFC, Sundance, and BBCA is growing and the quality is good. Almost every other channel with first-run-in-the-US scripted programming is owned by a media conglomerate that owns ABC, CBS, Fox, or NBC.

    So it really doesn't matter if I watch something on ABC, CBS, Fox, or NBC as supporting scripted programming on Syfy, FX, Showtime, A&E, etc. puts money in the same pockets.

    PBS has been a consistent source of good scripted programming for me also. I really don't care if it's in HD, though I wish it wasn't letterboxed 4:3. I don't get IFC or Sundance in HD either. I still watch programming I like in SD. No biggie.

    I just don't like how the government is handling broadcasting. But then, I didn't like how they handled the railroads which on a mileage basis were given a grants similar to the broadcast licenses and I think we as a nation can now see we've lost our edge in rail transportation because we didn't take back those grants when the railroad corporations failed to serve the public interest.

    I don't see conspiracies against the public interest, but I do see patterns that fail the public interest.
     
  14. runner861

    runner861 Icon

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    Agree. 100 percent.
     
  15. Greg Bimson

    Greg Bimson Hall Of Fame

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    Of course they may not be "fundamental rights".
    I'm still trying to understand these "significant governmental protections". I don't see it, yet.
    Send a truck around and do signal measurements? Do you have any idea of the cost to implement that? That would be downright expensive.

    Reality dicates that if a station was to be carried on the DBS providers, there needed to be a mechanism to define the area in which customers can receive the channel. It may have been "lazy", but remember that management at Dish Network that stated they needed local channels to compete with cable. Also remember, DirecTV came to an agreement with the NAB which provided the framework for local service legislation, and that included the Nielsen market as the definition for the service area.
     
  16. phrelin

    phrelin Hall Of Fame DBSTalk Club

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    Northern...
    OK. Here's how I see it. A license was granted around 50 years ago to a local TV channel for the exclusive use of a piece of the public's airwaves within a geographic boundary to transmit television signals subject to certain conditions. Those signals were to be free to anyone in the geographic area who paid for the equipment and electricity to get the signal into the TV set.

    That no one else could use the same radio frequencies in a defined area (not defined by DMA) was a significant governmental protection. Then there came the rule that prohibited bringing in duplicate programming from outside the area, another significant governmental protection. Without these two rules, the license would have minimal basic value. The government created this basic value.

    Today relatively few Americans use their own equipment to capture the signal and get it to their TV set. Without "must carry" rules the license would lose its much of its value, except for those stations affiliated with national networks. National networks create value apart from the local station license value. The national network value is not contingent upon having local stations deliver the programming as it could be delivered by cable and satellite.

    I realize there are private complex legal arrangements between affiliates and networks. But the fact is that the license granting the exclusive use of a piece of the public's airwaves underlies the entire private contract structure and that is a significant governmental protection.

    Perhaps if we just opened up these frequencies to any and all potential amateur TV operators much like ham radio frequencies, the resulting chaos would cause the networks to abandon the local channels. Eliminating the significant governmental protection would then move the whole industry into the 21st Century and allow the free market to control which local channels succeed.:sure:
     
  17. Greg Bimson

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    Yet the FCC and its forebearers were created in order to manage these frequencies for the public interest...
    So what you are saying is that "the resulting chaos" is in the public interest?
    Technically, that rule existed in the form of a contract between the syndicator and the broadcaster. When the Supreme Court inconveniently forgot the laws and ruled in favor of Fortnightly, the government had to act to stop the nullification of those contracts.

    And I'll still go back to one of the original arguments...

    The largest four markets in television have their affiliates owned by the network. So until someone can convince a network to abandon that model and write-off a couple billion dollar investment for something "new", nothing will change in the business of TV.
    Good. When can I expect my new car from the government? Cars that are sold at dealerships are obviously trucked into a dealer using roads that federal money built. Therefore, the entire underlying business is built on selling vehicles delivered using federally-funded infrastructure, and I deserve to have a say in how that infrastructure can benefit me.

    Now where can I pickup my Ferrari? :)
     
  18. runner861

    runner861 Icon

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    When will the government pass a law that says I can only buy from my local car dealer? When will the government say that I can no longer "Drive a little and save a lot in Gilroy"? Why should the broadcasters receive this special protection that the local car dealership does not receive?
     
  19. Greg Bimson

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    So let's expand on this...

    Dish Network could contract with WLS, the ABC affiliate out of Chicago, and broadcast the station. As of 1998, there were two basic choices, based on this issue:

    Copyright holders would need to clear their programming

    1) WLS would have to contact each copyright holder to clear their programming, and if none objected, then WLS could be broadcast nationwide.

    2) If any copyright holder countered with an area, then WLS would inform Dish Network where the rebroadcast could be delivered, and the rebroadcast would be limited to that area.

    On December 28, 1999, the Satellite Home Viewer Improvement Act (or SHVIA for short) created a special copyright exemption to allow for in-market rebroadcast of a local channel, so that clearing the copyrights was not an issue. So...

    If you want WLS broadcast nationwide, ask Dish Network to have WLS to clear their programming nationally, and not use the license in the SHVIA. And with that proves two points:

    1) the SHVIA does not give any special protection, as the license does not have to be used, and,
    2) the SHVIA does not prohibit receiving out-of-market feeds as long as the copyrights are cleared.

    The SHVIA only makes it easier to receive in-market feeds. Without the SHVIA's predecesors or successors, there would be no network TV on satellite.
     
  20. James Long

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

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    Have car dealerships asked for such protection? Broadcasters have.

    Broadcasters went to court and WON the right to prevent anyone from rebroadcasting their signal ... even to a customer next to their tower site ... without permission.
     

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