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Dish Sues FCC Over Noncom Mandate: Report

Dish Network has taken the Federal Communication Commission to court over the congressional mandate to deliver noncommercial stations' HD signals by next year.

The suit was filed in a U.S. District Court in Las Vegas Thursday, where the satellite operator is incorporated. DISH is seeking a temporary restraining order and injunction against the FCC from enforcing the congressional mandate, which the company argues violates its First Amendment right to chose its own programming.

 "This is not a case about whether PBS provides important and worthwhile programming or should receive funding from the Government,: saidthe company. "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."

DISH's decision 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 Multichannel News 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.

In a letter to the House Energy & Commerce Committee last October, Dish Network executive vice president 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, the law that reauthorizes the blanket copyright license for delivering distant signals, also allowed Dish back into the business of delivering distant network affiliated TV station signals to subscribers who cannot receive a viewable local signal from that network. Dish earlier 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. In contrast to cable operators, which 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.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.