DISH Network has asked the Supreme Court to rule on what First Amendment test should apply to its Congressional mandate to carry noncommercial stations in HD in advance of other stations. It also wants to know, generally, what standard for First Amendment scrutiny should apply across various media. At issue, if the Supremes take the case, could be the underpinnings of entire government must-carry regime.
That came in a request to the Supreme Court last week, according to Scotusblog.com. DISH has filed a petition for certiorari, asking the High Court to review a Ninth Circuit Appeals court decision last February upholding a district court's denial of DISH's request for a preliminary injunction against implementing the Satellite Television Extension and Localism Act's (STELA) noncom HD mandate on DISH.
Per the law, DISH was required to strike deals with noncom stations for HD carriage or be subject to an early deadline for an HD carriage mandate that kicks in more generally in 2013.
DISH wants an answer on whether Congress can require a private party - DISH -- to "grant preferential treatment to specified speakers: noncom stations.
The Ninth Circuit, which applied intermediate scrutiny saying the law did implicate the First Amendment but was not the kind of content-based call that requires strict scrutiny, held that .
DISH argues that the government is favoring one type of speech over another. "Applying intermediate scrutiny, the Ninth Circuit upheld the preference based on the government's interest in increasing the popularity of federally funded stations to increase the flow of viewer donations. In other words, telethons trump editorial discretion," DISH told the High Court.
DISH summed up that discretion: "DISH believes its viewers are more interested in seeing Harry Potter and the Super Bowl in HD than Charlie Rose and Sesame Street."
DISH is also looking to establish what form of First Amendment scrutiny should apply across various media, saying that question has split the lower circuits. One of the reasons The Supreme Court will hear an appeal is to resolve a split in lower court decisions.
DISH summarizes the questions it wants answered as the following:
"What is the baseline level of First Amendment scrutiny that applies to laws requiring satellite TV providers to carry broadcast stations-the strict scrutiny that applies to most forms of communication; the rational-basis scrutiny that (at least currently) applies to over-the-air broadcast; or the intermediate scrutiny that applies to cable?" DISH would argue that it should be subject to strict scrutiny.
- "Content-based laws are subject to heightened scrutiny. Is a carriage requirement that favors certain educational content considered content-based and subject to heightened scrutiny?"
- The Ninth Circuit, in upholding a district court's denial of an injunction, said that the STELA noncom carriage provision is "not substantially more restrictive than necessary [the intermediate scrutiny threshold] to address Congress's reasonable fear that without action, DISH's decision to deprioritize PBS would jeopardize the ability of public broadcasters to compete with commercial stations."
DISH counters in its petition to the Supremes that the Ninth Circuit got it wrong. "Congress overrode DISH's editorial judgment [with STELA], which requires DISH to move a privileged group of local television stations to the head of the HD line," which it pointed out was not even all noncom stations, just ones that qualified for a government grant, which DISH says only those that are not too religious or too political, pointing to government funding criteria that exclude stations that "further the principles of particular religious or political philosophies" or primarily "in-school" stations, which DISH suggests are arguably the most educational of all.
"The Association of Public Television Stations (APTS) is deeply disappointed by DISH Network's request that the U.S. Supreme Court review the Congressional mandate to carry noncommercial stations in high-definition (HD)," said APTS COO Lonna Thompson. "Unfortunately, DISH prefers to litigate this law rather than giving their customers what they want and deserve-high-quality public television programming. Congress listened to the American people on this critical issue and acted appropriately.
"The public depends upon DISH complying with the must-carry law as local public television stations do not have legal retransmission negotiation rights," she said. "DISH's profound reluctance to do so contrasts starkly with DIRECTV's voluntary agreement, now four years old, with APTS and PBS to carry the HD signal of every public television station in markets DIRECTV serves in local HD."