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New Texan
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Discussion Starter · #1 ·
Okay, this is a continuation of http://www.dbstalk.com/showthread.php?s=&threadid=3796 . This is a petition for reconsideration in regards to docket 00-96 in regards to ruling DA 02-765, with a code of CSR-5865-Z, and was filed on May 6th, 2002. As always, this is a summary of the 22-page filing by EchoStar, written by lawyers. As always, please refer to the original documents.

SUMMARY Echostar is seeking reconsideration of the FCC order. While E* doesn't take any issue with the various remedial steps outlined, and is working to comply with the order, it does take issue with the Bureaus repeated statements that EchoStar had violated the provisions of SHIVA. E* "submits that these findings were both procedurally and substantively improper and should be vacated." Specifically, E* had problems with the notice and comment form, was invited to comment on proposed modification of the existing rules, then then was found to have violated the existing rules without proper notice or opportunity to respond to any specific charged. Secondly, E* felt that the Bureau didn't not apply pre-existing standards, but instead rewrote the rules and found E* in violation. E* also feels that the bureaus reinterpretation of the requirements of SHIVA/Must carry is not consistent with the text of the applicable statutory and regulatory provisions, nor with congressional intent. E* feels that Congress did not intend to bar the use of second dishes generally, just that it prohibits actions that have certain specified discriminatory effects.

(And that was before we got to the main filing! The first part is essentially a repeat, so we'll skip ahead to page 3.)

The following issues are presented for reconsideration:
1. Whether the Bureau erred in holding that Echostar two-dish plan constituted "price discrimination" where the second dish is available to any subscriber who requests one without any monetary charge for equipment, installation, or ongoing use of the second dish.
2. Whether the Bureau erred in holding that Echostar's two-dish plan violated the "contiguous channel" requirement where all local channels are assigned a contiguous channel number, no non-local programming appears in the midst of the local channel "block" and any subscriber that receives free installation of a second dish can access all available local channels in a continuous and seamless manner.
3. Whether the Bureau erred in holding that Echostar's two-dish plan violated the "electronic program guide" provisions where all available local channels are listed on the electronic program guide for any subscriber that receives free installation of a second dish.

A. Statement of facts
* Beginning January 1st, if a satellite carrier transmits one local broadcast channel in a local market, it must carry all qualified local broadcast stations in that market upon request.
* The statute doesn't bar a satellite carrier from providing carriage for some of the local station in a market on "wing" satellites.
* The commision has previous acknowledged that when Congress adopted SHIVA, it rejected language that said subscribers could not be required to install an additiona dish to receive any local signals.
* The comission expressly recognized that there might be circumstances "when telelvision stations from one market are segregated and carried on seperate satellites."
* Based on a number of factors, E* determined that the least disruptive course would be to continue providing as much local broadcast service on the full-CONUS satellites, while commencing transmission of certain newly carried stations on eastern or western satellites. (Footnote: The alternatives would have to cancel local-in-local service in a large number of the existing 36 DMAs to make room for the remaining locals, or move all the channels in certain markets to the eastern/western satellites.
* Although there was no requirement to notify subscribers subscribers, a letter went out informing subscribers of the change and that additional channels may require additional equipment with no additional cost until March 31st, 2002. (Footnote: The March 31st deadline was to encourage subscribers to take advantage of the offer as soon as possible, there was curtail or limit the free second-dish offer in any way after March 31st, 2002).

B. Procedural history
* The whole thing started with a filing by NAB/ALTV on Januarty 4th to "modify" or "claify" it's SHIVA rules specifically to do precisely what the Commission had not done in the earlier round of rulemaking, namely to ban outright any requirement of a second dish to receive some but not all of local broadcast stations in a given market, regardless of whether the subscriber was asked to pay for the second dish.
* Public notice soliciting comments was issued, expeditied exchange of written comments.
* Although the FCC declined to adopt the blanket rule against second dishes, it held E*s inplementation of the two-dish plan violated SHIVA and related rules. (More repeated stuff)

A. The Bureau's finding that Echostar "Violated" SHVIA and the Must-Carry rules rests on a Improper Retroactive Reinterpretation of the Governing Standards
* E* notes that a private party cannot ordinarily be found to have "violated" a statute without being affording an adjudicatory proceeding in which it has proper notice of the charges against it and an adequate opportunity to present both a legal and factual defense of the charges.
(blah blah blah) Basically, the FCC didn't follow it's own procedures. (blah blah blah)
B. The Bureaus Finding That Echostar Violated the Ban on Price Discrimination Is without Merit
* Dish's two-dish plan does not violate the rules prohibiting price discrimination local channels in a in a particular market since in all cases, E*'s policy was to provide the dish without additional charge for the equipment, installation, or ongoing use of the Dish.
* Footnote: "hundreds of thousands of E* subscribers have acquired a second dish at their own expense in order to receive specialized programming such as HDTV and foreign language programming. Additionally, the subscribers who got the second dish also became eligible to obtain additional premium services withut having to pay for a second dish.
* However, the bureau charges that E* charges a package of $5.99 for local channels whether or not the subscriber gets the additional stations through a second dish, and that the "time, trouble, and inconvience" incurred by the subscriber to obtain a second dish, including the "time spent waiting for the second dish to be installed." E* feels that this is not a reasonable interpretation of the FCC rules.
* The FCC has explicitedly authorized satellite carriers to charge either a single package price for all local channels or an a la carte price that is "comparable" for each channel. There is no mention that a provider is barred from offering package simply because it requires a seond dish.
* The broadcasters resisted the a la carte pricing proposal on the ground it would discourage subscribers from taking all of the local channels available. (Gee, I wonder why)
* Indeed, the principal effect of the package price is to encourage local subscribers to get the second dish, decreasing the per channel price for the subscriber.
* The evidence that subscribers must "incur significant effort" to obtain the second dish was based by anecdotal evidence supplied by the broadcasters and not on a comprehensive factual record. Moreover, it reflects the transitional conditions that occurred during the earlyh weeks in which E* was attempting to implement a two-dish plan that was initiated necessitated by the delays in delivery of two new spot-beam satellites. (Page 17, and this is the first mention of the spotbeams)
* More text about "time, trouble, and inconvience" on the assertion that the subscribers "averge hourly wage or salage" can be translated into price discrimination is "fanciful".
C. The bureau erroed in finding that Echostar violated the statute and rules with regard to the contiguous channel placement.
* This does NOT mean that the channels have to be placed on the same satellite, since "contiguous" refers to the "tuning of channels" and not "frequency continuity".
* The Commission has interpreted the "statutory directive" as being "to present local channels to satellite subscribers in an uninterrupted series".
D. The Bureau erroed in holding that E* violated the requirement that local stations be transmitted in a nondiscriminatory manner on a electronic program guide
* Dish appreciates the clarification that the EPG show all channels offered in a local market, even if the reception of the channel requires a second dish.
* The receivers are now being reprogrammed so that if a subscriber who doesn't have a second dish tunes to a channel that requires a second dish, they would be instructed to call Dish Network to arrange for installation.
* E* notes that this interpretation of the EPG requirement is not contained in the text of the rules, and was never set forth in any prior Commission order. As a result, finding E* "violating" the statute and not following the rules by not anticipating interpretation is both unfair and in appropriate.

CONCLUSION"The Bureau should grant reconsideration and vacate that position of its order that purports to find that Echostar has violated SHVIA and the must-carry rules in its inplementation of its two-dish plan."
Well, there you have it folks. More material for the legal beagles to argue over. Folks, if you want a cure for insomnia, these petitions and comments can put you to sleep. It actually makes Monday's Tech Chat about HDTV interesting. I hope that the readers find this stuff interesting. Now, to find the actual FCC filing in PDF format.

DBSTalk E* Spot Beam Guru
443 Posts
I don't think this is ever going to end. Next we will probably hear E* ask the FCC to define the meaning of what "is" is. IMHO this is getting way out of hand.

Why doesn't E* just shut up and place the side sat locals for San Francisco, Seattle, Los Angeles, San Diego, Salt Lake City, Houston, St.Louis, Chicago, Miami, Charlotte, Raleigh, & Greenville on the spots where there is room for them. Then tell the FCC they have fully complied with 17 of their 36 cities.

E* should be bending over backwards for the FCC rather than argue with them. When it comes time to decide the merger the FCC with think 'Do we want this company that argues everything we do to have control over 90% of the satellite industry?' then reply with 'NO'. Knowing E* if the FCC denies the merger they will probably sue the FCC.

Hall Of Fame
7,802 Posts
They should not mention the Spotbeam satellites. Apparently they were designed as though Must Carry would not become a reality and it still appears they plan to put some of each new local package on the "side" sats, requiring more second dishes.

Grand Rapids will be a case in point.

123 Posts
I guess this finally answers why a number of us have finally lost the Distant Networks we've had for so many years and had been grandfathered. It seems Echostar may be trying to impress FCC and the courts by showing how they've complied with other SHIVA requirements in order to win favor in this two-dish argument.
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