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Stand and (Don’t) Deliver

STELA! DISH has been saying for a
while now that it was not prepared to start delivering
noncommercial stations’ high-definition signals on
the advanced timetable proposed, then mandated,
by Congress in Satellite Television Extension and
Localism Act. So it should come as no big surprise that it has
taken the Federal Communications Commission to court over
enforcement of that mandate.

In fact, nervous legislators wrote a severance clause into the
bill just in case the noncom provision was eventually
thrown out.DISH will get its day in court July
22, and should get at least a stay of its July 27 deadline
for starting to comply with the law’s noncom

Nobody is arguing that PBS doesn’t air some of
the best programming around. But if subscribers
have to have it, the market will find a way to deliver
it without the government playing middleman.

In 2007, the FCC laid down the law that satellite
companies would have to phase in HD signals of
noncommercial stations in any market where it was
carrying another station’s HD signals — in essence
an HD version of the carry one, carry all mandate for
satellite carriage of standard-definition TV station signals.

That timetable gave them until 2013 to deliver 100% of noncom
stations. So, not surprisingly, that is how it set up its business
plan, which had to include building and launching a new
satellite. But in the new satellite-reauthorization bill that
passed in May, 2013 has become 2011. On top of that, the bill
dangled the lure of Dish’s return to the distant-signal business
in exchange for delivering local station signals in the small
markets where it did not make business sense for Dish to deliver
them. With that extra capacity constraint, it is even tougher
for Dish to meet the government’s noncommercial mandate.

“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.”

So, Dish already delivers all those PBS stations, but Congress
decides that the HD version is sufficiently important to cut the
FCC’s own timetable in half and dispense with the regulatory
certainty the FCC was supposed to be establishing
when it came up with that 2013 date. Obviously, the
FCC thought HD carriage was important too. Perhaps
it should keep that in mind while it is trying to
talk broadcasters out of their spectrum or into sharing
channels that would not allow two stations to
deliver the kind of sports programming that the FCC
itself says is must-have programming.

And wasn’t it the FCC that just this past January
decided that HD programming is a separate service
for the purposes of program access complaints because
it is the kind of must-have programming that
competitors, well, must have?

But Congress has only advanced the HD timetable
for noncoms, suggesting their government-backed programming
is more beautiful and truthful than all that commercial
fare that draws so many eyeballs. But if the issue is America’s Test
Kitchens vs. Hell’s Kitchen
, rather than HD vs. standard definition,
the government is playing programming favorites, which
has definite First Amendment implications. And while Dish tries
to draw a distinction between that and the must-carry rules, a
higher court down the road may not see it that way.

Could noncoms inadvertently have given the cable industry a
new avenue to getting must-carry a second look in the courts? If
so, they have not done themselves or their commercial brethren
any favors.

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.