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EchoStar Rejected by High Court Justice, Must Halt Distant Networks

Discussion in 'General DISH™ Discussion' started by Chris Blount, Aug 22, 2006.

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  1. JohnH

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    As I have said many times, there are no local channels on Sky Angel. Those are Networks.
     
  2. BobS

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    47 USC 338(e) Compensation for carriage
    A satellite carrier shall not accept or request monetary payment or other valuable consideration in exchange either for carriage of local television broadcast stations in fulfillment of the requirements of this section or for channel positioning rights provided to such stations under this section, except that any such station may be required to bear the costs associated with delivering a good quality signal to the local receive facility of the satellite carrier.
     
  3. James Long

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

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    Although that doesn't stop stations from charging E* and D*. :D

    The money CAN change hands as long as it isn't the station paying.
     
  4. BobS

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    No, a station may simply choose not to be carried period.

    Congress said in effect: We are giving the satellite carrier and network station an easy way to arrange carriage. The station must request carriage and provide a good signal. There is to be no consideration given for carriage. If you do it our way, copyright is not a problem. If the station wants to take a chance and miss mandatory carriage for three years, all must be negotiated. If this includes royalties, it includes royalties. If it includes charges for carriage so be it. It would be laughable to allow either the station or satellite company to profit from the negotiation while telling the copyright owners they are SOL regarding royalties. No royalties was an incentive for the players to choose mandatory carriage. The statutory license of 17 USC 122 only applies to cases where the station has chosen mandatory carriage under if one, then all. The "all" part was to prevent the satellite company from putting the screws to weaker stations. If you are a "hot" station, you may choose a negotiation because you know that E* really wants you. This is akin to Internet broadcast - get the required permissions or substitute something else/a black screen. Retransmission consent (aka "private contract") is outside the scope of 17 USC 122. A contract between Party A (E*) and Party B (WXXX) cannot impose a requirement (give us your stuff for free) upon Party C (copyright owner).
     
  5. BobS

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    From the FCC:

    We find that Section 338 provides a satellite carrier with two options for carrying local television broadcast signals. If a satellite carrier provides its subscribers with the signals of local television stations through reliance on the statutory copyright license, they will have the obligation to carry all of the commercial television signals in that particular market that request carriage. If a satellite carrier provides local television signals pursuant to private copyright arrangements, the Section 338 carriage obligations do not apply. In this context, we note that a retransmission consent agreement, in most instances, is not analogous to a private copyright arrangement. Retransmission consent permits an MVPD to retransmit a station’s signal, but it does not generally grant copyright clearance for the program content carried by that station. To obtain private clearances for material carried by a particular station, the copyright holders of each of the programs, advertisements, and music aired by that station must consent to the retransmission. In some cases, however, a television station may have permission from the copyright holders to provide clearances on their behalf. We therefore conclude that unless the retransmission contract clearly provides for all copyright clearances, a carrier retransmitting television stations electing retransmission consent would be subject to the compulsory license and be required to carry all other local market television stations under the provisions set forth in Section 338.

    That is to say that unless there is copyright clearance under retransmission consent then the DBS MUST be using the statutory license and therefore "carry one carry all" applies. The converse of this is that true "retansmission consent" requires copyright clearance and is NOT using the statutory license. The DBS cannot get around carry one carry all by claiming its carriage of WXXX is being done by retransmission consent when copyright clearance is a required feature of that method.
     
  6. Greg Bimson

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    Then you missed it in your own reference:
    So, a retransmission consent agreement (i.e., a carriage agreement) is not analogous to a private copyright arrangement (i.e., a "private contract"). This is because:
    Reread this one in plain English:

    Unless the retransmission contract clearly provides for all copyright clearances (what you have been calling a "private contract"), the station declares retransmission consent and makes the license active, and then the carriage contract follows.

    Which in turn means that if the local-into-local license were ever injuncted, the carriage contract follows the terms set in the license set forth in 17 USC 122, and all local channels would be dropped, even though there is a contract.

    See? I was right.

    And that is why I said that if the CBS-HD contract with Dish Network is simply a blanket waiver, it was in jeopardy.
     
  7. BobS

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    Greg,

    You are missing the essence. I understand the wording is confusing. If the 17 USC 122 license is being used then COCA applies. A non-statutory license agreement involves two things 1. retransmission consent (permission from the station to carry the signal) and 2. copyright clearance from the content owners - may be the station, a syndicator, Joe Blow. The FCC is saying that if a agreement to carry a station DOES NOT include copyright clearance then the ONLY possible arrangement must be a 17 USC 122 license and COCA applies. Again this is to prevent the DBS company and one station from scamming the system by claiming that a "retransmission consent" agreement is in place (and thus avoiding COCA). It is the exact opposite of what you are stating. E* can have a TRUE retransmission consent agreement with XABC (XABC having obtained all the necessary copyright clearances) and ignore XNBC, XCBS and XFOX - there would be NO requirement to carry them. 47 USC 338(a)(1) makes this perfectly clear. COCA is linked to the statutory license, retransmission consent agreements (which are necessary but not sufficient for rebroadcasting) are not. Failure to get retransmission consent is a violation of Title 47 in its own right - even if copyright clearance has been obtained. If retransmission consent automatically included a 17 USC 122 license then this discussion by the FCC is meaningless.







     
  8. Greg Bimson

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    I am not quite missing the essense, as I may not be wording my opinion as well as I should.

    Without trying to hit the semantics, I had part of the process backwards. From BobS' FCC post:
    The local channel license is in 17 USC 122. The election of stations to either claim must-carry or retransmission consent is what invokes the license.

    I don't particularly feel like delving into the details of how a station elects, but the essense is that once a selection is made, the carriage contract is under the terms and conditions of the license, which means the license is somehow tied to the carriage contract. I have been stating the retransmission contract would have the license listed with these terms and conditions, but in reality, according to that FCC paragraph, the contracts with a station that claims retransmission consent automatically must follow the license.

    And, like I said earlier, but now can clarify, if there is ever an injunction of the local channel license, all the local channels would be pulled even if there is retransmission consent contract, because somehow the carriage contracts under retransmission consent are linked to the local channel license.
    Correct.

    The issue here is that everyone is stating that CBS-HD is a "private agreement", kind of like you state in the quote above. I am tossing out the plausible theory that the CBS-HD agreement with Dish Network is simply a blanket waiver under 17 USC 119, because it mirrors exactly what a waiver under the section accomplishes. Why?

    WCBS-HD and KCBS-HD have syndicated programming on it. I do not believe that CBS nor the stations involved have received the copyright clearances from their syndicators, since it is a difficult task. Especially when all that is needed to distribute CBS-HD to customers within CBS O&O areas is a blanket waiver under 17 USC 119.
     
  9. BobS

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    17 USC 119 Hypotheticals. Please indicate the part of the law that is relevant.

    Let's say that I live in the East Elbow DMA, wherein is located WELB-TV, an Network Y affiliate. All interested parties agree that I cannot receive a Grade B signal from WELB-TV. However, another Network Y affiliate, WUSH - located in the neighboring West Undershirt DMA is receivable at the Grade B level. There is no LIL service in either DMA. Do I qualify for a distant Network Y signal?

    Same scenario but I am within WELB Grade B and they have given me a waiver. Do I qualify for a distant Network Y signal?

    Does either answer change if West Undershirt is in a different state?
     
  10. James Long

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

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    You MUST have waivers from all stations that you can receive Grade B regardless of DMA or LIL service. All of your hypotheticals lead to the same answer: NO.

    17 USC 119 (a)(14) WAIVERS.—
    A subscriber who is denied the secondary transmission of a signal of a network station under subsection (a)(2)(B) may request a waiver from such denial by submitting a request, through the subscriber’s satellite carrier, to the network station asserting that the secondary transmission is prohibited.

    17 USC 119 (a)(2)(B) Secondary transmissions to unserved households. -
    (The section that defines ILLR model, accurate site measurement, and C Band grandfathered definitions of an unserved household.)
     
  11. Greg Bimson

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    I'll expand on Mr. Long's correct post, but simply by editing the parts of BobS' question in order of relevance:
    No matter what happens, in order to receive distant network service, you need a waiver from WUSH.
    No, because WUSH also claims you as within their Grade B contour. In order to qualify for a distant network, one must obtain waivers from any network affiliate that claims the subscriber can receive at least a Grade B signal. In this case, both WUSH and WELB must issue waivers, since both are available to the subscriber.

    Here is one that follows a slightly different track, because it is related to the SHVERA:
    Ok. The way the law is currently written, if your locals are available, and you are a new subscriber, you cannot get distant networks. There is some question regarding asking for waivers.

    However, in this scenario, the local channels aren't available. Because they aren't available, waivers can certainly be requested. If you are within the Grade B contour of two stations of the same network, both affiliates must issue waivers before you can be qualified. I seem to recall this is another of the problems that Dish Network had during this lawsuit. Dish Network was qualifying based on the home market's broadcast contour, while ignoring any of the other channels that may have been available to the subscriber at their location.
     
  12. Greg Bimson

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    And I truly believe this:

    The only reason Dish Network settled is that they hope to get some consideration during the rulemaking sessions at the FCC for HD distants. Without the settlement, the HD distants will go away with the injunction that the judge in the case must issue. And that is the reason Fox is so hell-bent on stopping Dish Network from using the license.

    Until Dish Network gets more bandwidth to offer local channels in HD, Dish Network will have to use the distant network license to offer network HD to a large chunk of their subscriber base.
     
  13. BobS

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    I think I may have found the source of the confusion. That is using the term "retransmission consent" to mean two different things or rather the same thing in two different contexts.

    In a given market, once the 122 license is invoked (and used) there are two choices for the station (1) elect compulsory carriage with no payment to DBS permitted or (2) elect negotiation with DBS which may or may not result in carriage. In the case of a successful negotiation (the station consents to rebroadcast) the 17 USC 122 license IS being used. Copyright clearance is not a concern. In other words, once used it is available for that DMA. The license is "out of the bag."

    If the license has NOT been invoked then a negotiation for rebroadcast must cover copyright clearance. Thus if DBS wants to carry one and only one station, it must not invoke the license and deal with both retransmission consent and copyright (probably with assistance from the station). It could follow the same procedure with other local stations.

    What is not clear is if during an election cycle, DBS negotiates a non-122 agreement with Station A, can it then later invoke a 122 license for Stations B, C and D without affecting the contract with Station A.

    There is no mandatory carriage without the 17 USC 122 license. However the 17 USC 122 license may be used without mandatory carriage (if all stations opted to negotiate instead).

    Does this make sense? Now to think more about CBS-HD.....
     
  14. BobS

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    I should have added that the 122 license can never be a subject of retransmission consent negotiation/contract. It is either there or it isn't. It's just that if it isn't there copyright has to be dealt with in the normal commercial manner. Greg B. - I apologize if this is what you have been trying to say. My head is swimming with USC sections that are not written as clearly as they could be.
     
  15. BobS

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    Also - all "retransmission consent" contracts are "private contracts" in the sense that the government is not a party. The only question is how many parties there are. If a 122 license exists, only the DBS and station are parties. If not, those two and the copyright holder(s) are parties to the contract.
     
  16. Greg Bimson

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    You made me go into the sections of the code. I'll never be the same again! :)

    In all seriousness, I understand these sections, but if I never have to read them again it would be fine with me.

    Yes, it is what I was trying to say. Once the SHVIA was passed, and all these sections came along with it, there was this local license. And from the refresher course here, the license is tied to whether or not a station in a given market does its election for either must-carry, retransmission consent, or no election at all.

    And the only reason I ever brought up the local license was because the CBS-HD carriage agreeement with Dish Network, to me, appears to be a blanket waiver of the existing distant license. I needed a comparasion somewhere.

    Unfortunately, in my current job status, I understand the problems with terms and conditions that flow down through agreements. That is what all of these agreements look like to me.

    Of course, the only reason there is now any importance in this is if Fox derails the entire settlement.
     
  17. Greg Bimson

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    True. However, the private contract may use the license, which of course means that any injunction of the license will remove the ability to even use the contract, as the revocation of a license deems the point moot.
     
  18. James Long

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

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    It appears that 17 USC 122 only gives copyright protection - The retrans consent / must carry argument is separate.

    For example, 17 USC 122 specifically covers LP stations within 35 miles of their transmitters (within 50 miles of their transmitters in the top 50 DMAs) within the bounds of their own DMA. But LPs do not have the right to claim must carry.

    The concepts of consent and must carry are presented elseswhere ... not in 17 USC 122. Section 122 applies to all stations for the payment of royalties unless a private arrangement is made outside of the section.
     
  19. James Long

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

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    Wouldn't a distant fall under 17 USC 119 anyways?

    The payment of copyright could always be done via private arrangement. We are talking about Viacom owned stations here - not carrying some podunk station nationally. They would have the clout and buying power to get national rights on all of their programming ... including syndication.
     
  20. BobS

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    Correct. After all, Title 17 is Copyright. However the titles reference each other back and forth so it is often difficult to follow and then there are the cases where the various sections contradict each other.....Incidentally, the 122 license is royalty-free (unlike the 119).


     
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