EchoStar granted a reprieve

Court says DBS operator does not have to cut off 'illegal' subs-just yet
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EchoStar Communications Corp. can keep its distant network customers turned on for at least a little longer, a federal appeals court ruled last week.

"It is disappointing that the networks and their affiliates.have attempted to trample this most fundamental constitutional right of consumers to receive televised news and other information from whatever source they choose," said EchoStar CEO Charlie Ergen in a statement.

Disappointing, perhaps, but not surprising. Two years ago, a federal district court in Miami forced DirecTV to turn off thousands of its distant-network subscribers, ruling they were receiving signals illegally.

Broadcasters, who won that case, say copyright law is clear: Satellite TV subscribers may receive local TV signals via satellite only if they can't otherwise receive them over the air. And they may not receive out-of-market signals of network affiliates if they can receive the local affiliates over the air. Broadcasters worry about protecting the boundaries of their local markets because viewers in local markets are essential to their getting advertising revenue.

EchoStar's case started in the same Miami court that ruled last September that EchoStar should turn off all subscribers who are illegally receiving distant signals.

The Eleventh Circuit Court of Appeals in Atlanta last week stayed that ruling and agreed to hear EchoStar's case. EchoStar asked the court to rule quickly because the injunction issued by the Miami court in September made several errors with regard to dates and facts. Briefs are expected to be completed by the end of January 2001, according to EchoStar.

The difference between EchoStar's lawsuit and DirecTV's is that EchoStar also is challenging other aspects of the TV satellite law Congress passed a year ago.

Among them: the standard by which the quality of a subscriber's television picture is measured. EchoStar argues that the standard, which the FCC uses to determine whether a household can receive a "good" quality over-the-air TV signal, was developed in the 1950s and is no longer a good gauge. EchoStar fought in vain in the two years preceding the new law to change that standard.

Broadcasters don't want to alter the standard. They say it is based on objective physics-how far the broadcast signal measurably extends-and accurately determines their market reach. EchoStar says broadcasters just want to maintain their markets and are unwilling to concede that some TV pictures, even within their determined signal area, are not acceptable.