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DISH Sues FCC Over Noncom Mandate - Broadcasting & Cable

DISH Sues FCC Over Noncom Mandate

Satellite TV operator seeks temporary restraining order, injunction on First Amendment grounds
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DISH Network has taken the FCC to court over the congressional
mandate to deliver noncommercial stations' HD signals by next year.

DISH
is seeking temporary restraining order and an injunction against the
FCC's enforcement of the congressional mandate, arguing that the it
violates the companies' First Amendment rights to choose its own
programming.

"This is not a case about whether PBS provides
important and worthwhile programming or should receive funding from the
Government," said DISH in the suit. "DISH highly values PBS programming,
and, in fact, carries more local PBS stations than any other pay
television provider in the country. This case is about who gets to make
the editorial judgment whether to carry local PBS stations in HD-DISH or
the Government."

The suit was filed in a U.S. District Court in
Las Vegas Thursday, where the satellite operator is incorporated. DISH
had no comment on the suit, but it has said before it could not meet the
mandate.

Dish's move did not sit well with Rep. Anna Eshoo (D-calif.), who had been a driving force behind the noncom provision in the bill. "I and millions of other Americans depend on public television to deliver truth, entertainment, facts and beaut," she told B&C in an e-mailed statement. "The decision by DISH to challenge the federal requirement to carry public broadcasting stations in high definition is an affront to their customers who expect and deserve this service. If DISH has room to carry pornography, they can find room for PBS."

The Satellite Television Extension and Localism Act
(STELA), which passed in May, included a provision that requires DISH to
deliver public TV stations' HD versions on an accelerated timetable.
The FCC had a phased-in schedule that required carriage of all TV
station HD signals by 2013. But the bill requires 50% carriage of
noncoms by 2010 and the balance by 2011 in any market where DISH is
carrying any station in HD.

Back in October, in a letter to the
House Energy & Commerce Committee, Dish Network EVP and
General Counsel R. Stanton Dodge said the company would not be able to
comply with the proposal that it deliver all noncommercial stations' HD
signals by 2011 in markets where it delivers any local station HD
signals.

Dodge said that not only did that raise First Amendment
concerns, but that it could not comply with the rollout schedule--50%
by 2010, the rest by 2011--without the additional satellite capacity
which it won't have until it launches a new satellite in the fourth
quarter of 2012.

That $350 million satellite is being launched
to meet the current FCC timetable for delivering all HD signals in any
market where it carries any by February 2013. The FCC's is actually a
phased transition over four years: carriage in 15% of markets by 2010,
30% by 2011, 60% by 2012 and 100% by 2013.

Dish and the
Association of Public Television Stations had been negotiating for three
years without success. APTS already has a deal with DirecTV.

Dish
has pointed out that it already delivers the standard-definition feeds
of PBS stations in 181 markets, more than any single multichannel video
provider, and will be doing so in all 210 markets if Congress lets it
back into the distant-signal business.

STELA also allowed DISH
back into the business of delivering distant netework affiliated TV
station signals to subscribers who cannot receive a viewable local
signal from that network. DISH this week formally asked the FCC for
permission to start delivering those signals, which it was barred from
doing by a court decision that it had failed to correctly identify who
did and did not qualify to receive distant signals.

In exchange
for a waiver of that court ban, DISH agreed to deliver local TV station
signals to subs in the remaining dozen and a half smaller markets where
it was not delivering them because it was not economical to do so. As
contrasted to cable operators, who are required to carry local TV
stations in their markets (unless those stations opt to try to negotiate
payment), satellite operators have a carry one, carry all mandate that
means if they carry any station in a market they must carry all of them.

STELA is the law that reauthorizes the blanket copyright license
for delivering distant signals.

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