[Greg Bimson]

This is from the fax headlines at SatBizNews.com.

I wonder what legal wranglings are happening now?

 

[Randall DBS]

:nono: These morons have too much time on their hands. :nono:

 

[Greg Bimson]

Well, this moron had a touch too much time...

It appears that there were still issues related to the injunction. From SatBizNews.com on Wednesday, 7 February...

The U.S. Appeals Court granted a motion by EchoStar and broadcasters to dismiss their appeals of the injunction that led to EchoStar having to turn off its distant network station service…

So the appeal that has lived is the one the broadcasters filed after allowing the NPS and Echostar deal to continue. Echostar is trying to roll the old appeal regarding the injunction into the newer appeal regarding the legality of the NPS deal with Echostar.

It's about as clear as mud.

 

[pdxsam]

It's about as clear as mud.

Which is the only way the legal system operates these days.

 

[James Long]

There has been very little filed in the past few weeks on the matter ... most of it not really worth mentioning. Here are the most recent documents filed:

Fox and E* are apparently still fighting over legal fees. The last document filed last week (Feb 8th, #1152) was from Fox on this matter.

#1151 on the docket is a dismissal of an appeal ... 06-15875-BB (actually dismissed on January 23rd) ... IIRC this was E*'s appeal of the injunction.

#1150 on the docket is a receipt for filing the remaining appeal ... 07-10178-B, which was the appeal of the judge's decisions in favor of the NPS deal.
#1149 on the docket is a more important reference to 07-10178-B, the appeals court is questioning whether or not it has jurisdiction. This was a letter dated January 25 that gave the parties 14 days (until February 8th) to respond, then the appeals court will decide the jurisdictional issue. The question:

Whether the January 4, 2007, order denying plaintiffs' motion for issuance of an order to show cause is final or immediately appealable?​

#1141 on the docket is a reference to another appeals court case ... 07-10020-B, the appeals court is also questioning their jurisdiction. This was dated January 9th and the 14 day period passed January 23rd. The question:

Whether the December 18, 2006, order denying the plaintiffs' motion for clarification of the October 20, 2006, permanent injunction, and the December 22, 2006, order, denying planitiffs' motion for reconsideration of the December 18 order and denying plantiffs' motion for issuance of an order to show cause, are final and immediately appealable, in whole or in part.​

The other recent documents are mostly the hagling over legal fees and receipts for the appeals. The court still has some work to do over the NPS issue, if they decide they have jurisdiction.

 

[Greg Bimson]

New update, today...

From Satbiznews.com, dated 4 June:

JUDGE LAYS OUT ECHOSTAR-NDS CASE TIMELINE

I guess the Court of Appeals believes they should accept jurisdiction over an injunction.

 

[James Long]

The court system website seems to be skewed at the moment:
https://ecf.ca11.uscourts.gov/
Case will be 07-10020-B IIRC ... could be 07-10178-B
Probably some other number ... as long as the search is broken it is hard to tell.

Edit: 07-10020-BB is the winning number.
https://pacer.ca11.uscourts.gov - subscription required.
The schedule isn't posted but the briefs in the case are.
Let I'll read them when I get home tonight for anything juicy!

 

[alebowgm]

now im excited

 

[James Long]

The three cases were combined into one nice little appeal complaining about the deal Echostar and NPS have entered into that allows NPS to lease an entire transponder from Echostar for the purpose of transmitting distant network signals that Echostar can no longer transmit due to last year's injunction. Or, as the appellants put it, the issue is:

Whether a satellite carrier that engages in a willful or repeated pattern or practice of violating statutory restrictions on the retransmission of " distant" network-affiliated television signals, and is thus subject to a flat ban on retransmitting any such signals, may nonetheless continue retransmitting such signals if it does so at the behest of a third party that deals directly with the enjoined carrier' s customers.​

More from their brief:

4. EchoStar's Arrangement with NPS
The permanent injunction required EchoStar to cease its distant network service on December 1, 2006. On November 29, however, two days before that injunction was to take effect, EchoStar unveiled the scheme at issue in this appeal. In return for a substantial payment, EchoStar is collaborating with third-party NPS to provide, over EchoStar' s facilities, a complete package of (i) the non-broadcast channels unaffected by the injunction (sold in EchoStar' s own name) plus (ii) the distant network signals that EchoStar is prohibited from transmitting (sold in NPS' s name). Until this arrangement, NPS was essentially a niche provider of " large-dish" satellite television service. EchoStar apparently calculated that, by arranging for NPS to front for it in the delivery of network programming to EchoStar' s customers, this scheme would enable it to circumvent the severe consequences of the permanent injunction by offering its subscribers essentially the same programming line-ups they enjoyed before the injunction.

Under this scheme, NPS agreed to pay EchoStar nearly $2 million annually to transmit programming of NPS' s choice- which both sides understood would include distant network signals- from EchoStar' s satellite transponders, through EchoStar' s allotted frequencies, to EchoStar' s rooftop dishes, through EchoStar' s set-top boxes, where they are unscrambled by EchoStar' s access cards, en route to EchoStar' s existing subscriber base. NPS also agreed to take EchoStar' s place in paying the statutory royalties for the retransmission of these broadcast signals.

EchoStar ensured that this scheme would work by relentlessly supporting NPS' s recruitment of the EchoStar distant-signal customers affected by the injunction.

{particulars omitted}

SUMMARY OF ARGUMENT​

Section 119(a)(7)(B) provides that, when a satellite carrier engages in a pattern or practice of willful or repeated copyright infringement, a court shall issue " a permanent injunction barring the secondary transmission by the satellite carrier" of distant network signals. This statutory language is clear: EchoStar may not engage in the " secondary transmission" of distant network signals, even at the behest of third parties. But that is precisely what EchoStar is doing under its arrangement with NPS. Retaining full operational control over its transmission and reception infrastructure, EchoStar is using its satellite transponder to retransmit, over its FCC-licensed frequencies, the signals of distant network stations to its existing customers.

EchoStar argued below, and the district court appeared to agree, that the penalty provision of Section 119(a)(7)(B) is inapplicable here on the theory that EchoStar is a mere transmission " conduit" for NPS and falls within the " passive carrier exemption" of 17 U.S.C. § 111(a)(3). That conclusion is wrong as a matter of law for two reasons. First, the passive carrier exemption, where applicable, exempts providers only from liability for copyright infringement. It does not exempt them from the penalty provision of Section 119(a)(7)(B), which flatly prohibits an enjoined carrier from engaging in the secondary transmission of distant network signals whether or not such transmission constitutes copyright infringement. And in any event, EchoStar' s argument fails because Congress has expressly precluded " satellite carriers" like EchoStar from invoking the passive carrier exemption as authorization for the provision of secondary transmissions. 17 U.S.C. § 122(i).

The breadth of Section 119(a)(7)(B) was no mistake. Congress designed that provision to give satellite carriers a powerful incentive not to engage in the type of systematic copyright infringement that undermines privately negotiated intellectual-property rights and imperils the economic model underlying free over the-air broadcasting. That deterrent can work as intended only if the penalized carrier faces the prospect not just of losing revenue from the delivery of distant network signals, but also of losing customers altogether- customers who are likely, because of the loss of distant network signals, to defect to a competitive service provider for all television services. Otherwise, Section 119(a)(7)(B) adds little to ordinary copyright remedies. But this special deterrent would come to naught if, as EchoStar argues, an enjoined carrier may easily accomplish indirectly, through its business partner, what it is barred from doing directly. The history of this case, in which plaintiffs were forced to litigate for eight years before finally obtaining relief against EchoStar, provides a vivid example of why Congress prescribed strong medicine for extreme infringements.

Finally, EchoStar' s position here would nullify not only the penalty provision of Section 119(a)(7)(B), but also, in all likelihood, the " if local, no distant" provision enacted in 2004. In essence, that provision bars a satellite carrier from retransmitting the signals of a distant network affiliate to new customers in a geographic market in which the same satellite carrier is also retransmitting the signals of a local affiliate of the same network, even if those customers are in areas " unserved" by conventional terrestrial broadcasts. 47 U.S.C. § 339(a)(2)(C), (D)(iv). If EchoStar were to succeed in obtaining the precedent it seeks here, it could collaborate with companies such as NPS to defeat the " if local, no distant" rule on the theory that it, EchoStar, is providing only " local" network signals and is serving as a mere conduit for the " distant" network signals ostensibly provided by others. Thus, EchoStar' s position here would nullify not one but two Acts of Congress. This Court should avoid that perverse outcome by directing the district court to issue an injunction faithful to the language and purpose of Section 119(a)(7)(B).​

Echostar, on the other hand, sees the issue as such:

1. Whether Appellants have waived their right to seek any relief from this Court by failing to raise on appeal any error with the District Court's: (1) factual finding that EchoStar and NPS are not "acting in concert" to violate the Permanent Injunction and thus denial of Appellants' Contempt Motion; and (2) denial of Appellants' request to have the Permanent Injunction clarified or modified.

2. Whether Appellants have waived their right to any relief from this Court by raising the following new issues on appeal that were not first raised with the District Court: (1) Appellants' contention that the Permanent Injunction is inconsistent with 17 U.S.C. § 119(a)(7)(B); and (2) Appellants' contention that EchoStar is engaging in the "secondary transmission" of distant network programming such that EchoStar is not a "passive carrier" under 17 U.S.C. § 111(a)(3) (for reasons never identified or considered below).

3. If Appellants have not waived their right to seek relief on their new issues, whether plain error exists such that this Court should rewrite the statutory remedy of 17 U.S.C. § 119(a)(7)(B) and whether plain error exists in the District Court's conclusion that EchoStar is a "passive carrier" under 17 U.S.C. § 111(a)(3).​

More from their brief:

... EchoStar has no involvement in the uplinking or transmission of distant network channels that NPS may decide to deliver to consumers. EchoStar has no involvement in the authorization or deauthorization of distant network programming subscribers. Indeed, NPS developed and maintains its own proprietary Subscriber Management System. This system is used by NPS to authorize and de-authorize consumers to receive distant network programming. EchoStar has no involvement in determining the eligibility of consumers to receive distant network programming; only NPS is involved in such determinations. EchoStar does not bill consumers for distant network programming and does not receive any revenue from distant network programming that NPS may elect to provide to eligible consumers. EchoStar also receives no revenue from NPS providing distant network channels.
{references removed}

III. Compliance With The Injunction Has Had A Considerable Adverse Economic Impact on EchoStar.
As a result of the Permanent Injunction, EchoStar has forfeited the revenues from distant network programming formerly delivered to 900,000 subscribers minus the royalty payments. The compensation that NPS pays for the lease of EchoStar's transponder is a fraction of that amount. Indeed, aside from the interim $5,000 monthly antenna fee, the only revenue that EchoStar receives is the $150,000 monthly amount for the lease of a transponder.

This lease payment is not tied in any way to the delivery of distant network programming. As of December 1, 2006, EchoStar's distant network revenue of over $3 million per month was reduced to zero. Thus, contrary to Appellants' patently erroneous statement that EchoStar receives "substantial payment" as a result of the lease with NPS, EchoStar has in fact suffered a tremendous adverse economic impact from the Permanent Injunction.

{more of the same}

SUMMARY OF ARGUMENT​

The District Court's factual finding that EchoStar and NPS are not "acting in concert" to violate the Permanent Injunction is correct and is not disputed. Indeed, Appellants do not challenge any of the District Court's factual findings. Nor do Appellants dispute the grounds on which the District Court denied their
Clarification Motion.

Appellants thus recognize that they cannot dispute the District Court's factual findings. Because Appellants fail to dispute these findings, or even raise them in their Opening Brief, Appellants are left with nothing to appeal and have waived any ability to challenge the District Court's Orders or argue that any of the District Court's factual findings are clearly erroneous.

Appellants accordingly now attempt a different tack and make new legal arguments to shop for a more favorable standard of review. Appellants claim for the first time that the District Court entered a Permanent Injunction that violates this Court's mandate and the Statute. Appellants also argue for the first time that EchoStar is engaging in the "secondary transmission" of distant network programming and thus 17 U.S.C. § 111(a)(3)'s "passive carrier" exemption does not apply, citing new cases and authority. By not raising these issues before the District Court and sponsoring the very Permanent Injunction the District Court ultimately entered, Appellants have waived these new issues. This Court should not consider Appellants' new arguments and should not enter Appellants' requested advisory opinion. Appellants' appeal instead should be dismissed. There is no basis to remand for entry of a new injunction as Appellants request.

Even if there is no waiver, Appellants' arguments have no merit. The Statute does not preclude a third party, such as NPS, from leasing transponder capacity from EchoStar and electing to use some of that capacity to provide distant network programming to eligible subscribers. Appellants cite no basis whatsoever for their contention that the pattern-or-practice injunction remedy was intended to confront a satellite carrier, such as EchoStar, with the "prospect not just of losing revenue from the delivery of distant network signals, but also of losing customers
altogether." The Statute's remedial provision cannot reasonably be read to hamper EchoStar from providing programming that EchoStar has full copyright authority to retransmit, in most cases through privately negotiated agreements with the copyright holders.

Relying on 17 U.S.C. § 122(i), Appellants nonetheless argue incorrectly that "Congress has expressly precluded 'satellite carriers' like EchoStar from invoking the passive carrier exemption as authorization for the provision of secondary transmissions." First, if Appellants were correct, this would mean that Section 122(i) was intended to write the passive carrier exemption out of the statute for satellite operators. No satellite operator could ever rely upon the passive carrier exception, even to backhaul broadcast programming to cable or "retail" satellite operators, a business that is a staple for satellite operators today.

Second, Appellants' reading of the pattern-or-practice injunction remedy provision to preclude any secondary retransmissions of a network station also would bar retransmissions of local network stations back to consumers located in the station's local market under 17 U.S.C. § 122. Yet, Appellants themselves concede that EchoStar remains free to provide such retransmissions. In attempting to discount the enormous adverse impact that their erroneous interpretation would have on the multi-channel video delivery market, Appellants also make factual statements that are diametrically opposed to their assertions in other proceedings and should not be credited by this Court.

Neither the Permanent Injunction nor the Statute requires consumers legitimately entitled to receive distant network programming from NPS to stop receiving core programming or foreign language programming from EchoStar. The Statute also does not require consumers legitimately entitled to receive distant network programming from NPS to forfeit the set top box purchased from EchoStar, JVC, RCA, or others. Likewise, the Statute does not require consumers to accept an inferior provider for its core programming as a condition to receiving distant network channels from NPS.8 But that is precisely what Appellants demand.

The Statute's draconian "penalty" has been imposed: EchoStar is out of the distant network programming business. EchoStar has lost all monthly revenue previously earned through distant network programming. This has cost EchoStar over $25 million per year. These facts are absolutely undisputed. The Statute does not require any further penalty and the Court should decline Appellants' invitation to re-write the Statute. Expansion of the law beyond the scope of both the Permanent Injunction and the Statute embodied in that Injunction, and into the homes of EchoStar's customers, is inappropriate and contrary to the law. Expanding the Statute and the Permanent Injunction will only mean that consumers have fewer choices and innocent non-party NPS will be deprived of a business opportunity created by the Permanent Injunction.​

In addition NPS filed a brief which primarily attempts to support their argument that they have a right to defend themselves and their business against the appellates that are attempting to turn off NPS distants.

As usual, the reply comments of the appellates (networks) are very similar to their initial brief ... I expected that they would actually be a reply refuting the claims of Echostar and NPS. No such luck.

 

[levibluewa]

on this issue? Is there a link to a site following the case?

Thanks

 

[James Long]

The court has a subscription website where one can view the documents.
Nothing new there.

 

[Greg Bimson]

From Friday, 18 January's SatBizNews.com

NPS, BROADCASTERS GET NEW COURT DATE

I don't have access to PACER. Any ideas when?

 

[James Long]

The last word from the District Court for Florida's Southern District (case 1-98-cv-2651) was back on October 2nd when the record was transferred for the appeal. It is now in the hands of the United States Court of Appeals for the Eleventh Circuit, case 07-10020-BB. They state:

Oral Argument Scheduled: 02/14/08

FYI: Appeals cases 07-10178-BB and 07-10298-BB (NPS cross complaint) are related and open, but the main number to watch is 07-10020-BB.

 

[jclewter79]

Is there any chance that this injuntion will ever be reversed so that I receive my local ABC out of Dallas again?

 

[Greg Bimson]

No, this case is about whether or not All-America Direct is legal to rebroadcast distant networks on Dish Network satellites. The injunction will stand barring Dish Network from using out-of-market local channels. The question is whether or not other parties on the Dish Network platform should be allowed to rebroadcast distant networks.

 

[vankai]

I don't have access to PACER. Any ideas when?

http://pacer.psc.uscourts.gov/

 

[jclewter79]

Thanks for the info Greg. It is just getting really old haveing no ABC. Used to get it out of Dallas but no more. Can't seem to get it OTA from Dallas like the others. Contacted AAD and was told WFAA out of Dallas was preventing me from getting a distant feed because the were my local feed. But, DISH can't get it for me because that channel is in the Dallas DMA not Sherman/Ada. Just a shame that DISH was not able to keep up a good thing. Maybe someday. Thanks for the answer.

 

[James Long]

Is there any chance that this injuntion will ever be reversed so that I receive my local ABC out of Dallas again?

The only hope would be if Congress rewrote the law and retroactively removed the provision that allows for a permanent injunction. That is not likely to happen.

Congress does have a bill floating that would allow people to get stations out of a neighboring market that MAY help you ... but there is no guarantee that it will get anywhere.

The issue today (or Thursday in oral arguments) is whether NPS leasing a transponder from DISH to provide distant services (from Atlanta and San Fransisco) to primarily DISH customers is equivalent to DISH providing those services themselves and therefore covered by the injunction. So far this one is running in NPS and DISH's favor.

Thanks for the info Greg. It is just getting really old haveing no ABC. Used to get it out of Dallas but no more. Can't seem to get it OTA from Dallas like the others. Contacted AAD and was told WFAA out of Dallas was preventing me from getting a distant feed because the were my local feed. But, DISH can't get it for me because that channel is in the Dallas DMA not Sherman/Ada. Just a shame that DISH was not able to keep up a good thing. Maybe someday. Thanks for the answer.

That is unfortunate ... and HR 2821 is designed to fix that.

H.R. 2821 Adjacent markets considered local

 

[jclewter79]

Thank you James I will email my reps and ask for support for this bill.

 

[comizzou573]

Just wondering if anyone knows the lastest news on the nps lawsuit, thanks