DNS Cutoff Fees and Contratual Obligations

[rjallen]

All
My DNS were pulled November 1.

I live in an "white area" - cannot receive OTA stations. I've had a waiver and DNS for many years- circa 2000. I am troubled by Dish's reaction because not one thing has been said about how my monthly bill will be affected. I already get locals through Dish for what they are worth- small town Montana stations with very poor local content and poor production values.

Has anyone talked directly with DISH concerning fees? I assume they will take DNS service off my bill. As an existing subscriber of locals do I still have to pay for them between now and January 1st?

Additionally, what does this do to contractual obligations. I am not currently under one but would this give subscribers an out?

I am loath to switch to Direct and think Ruppert Murdock has pulled a fast one. I don't hold out much hope for congress at this late date.

Seems Dish should do something to make up of this mess.

Rick

 

[odbrv]

I lost my distants. I went to https://customersupport.dishnetwork.com/customercare/prepLogon.do . I logged in and my refund is already there. My normal billing period is 10/13 to 11/12. I received a refund for the period 11/2 to 11/12. I assume the charges will not be on my next bill.
I have no plans to leave E*. So i cannot tell you about contract relief.

 

[Clancy]

There are a couple of things someone in your situation can do.
To retain network stations from somewhere else a person could :

Look into a Canadian system such as Star Choice.
They have Buffalo,NY., Detroit, Spokane and Seattle.

Or, by checking with your Dish Network receiver and its transponder signal meter, see if there are any other spot beam signals from somewhere else that happen to be in your area. If so, you could move your service there.

It is too bad that the laws at the present time force people to have to take this route just to watch tv. Makes one wonder where they are living.

 

[ThomasRz]

All My DNS were pulled November 1.

I hope you're doing ok.

I live in an "white area" - cannot receive OTA stations. I've had a waiver and DNS for many years- circa 2000. I am troubled by Dish's reaction because not one thing has been said about how my monthly bill will be affected. I already get locals through Dish for what they are worth- small town Montana stations with very poor local content and poor production values.

If you were in a white area you wouldn't have needed a waiver. So you don't really care about network programming? Exactly what did you watch?

as anyone talked directly with DISH concerning fees? I assume they will take DNS service off my bill. As an existing subscriber of locals do I still have to pay for them between now and January 1st?

Well if a service isn't provided why should anyone pay for it?

A

dditionally, what does this do to contractual obligations. I am not currently under one but would this give subscribers an out?

Depends on the contract. I am fairly confident that any E* contract does not include a provision that make it conditional upon receiving DNS. If DNS was that important to a subscriber, he should have negotiated it in.

I am loath to switch to Direct and think Ruppert Murdock has pulled a fast one. I don't hold out much hope for congress at this late date.

Why? Do you want DNS or not? Rupert Murdoch didn't do anything to you. Charlie Ergen did. It would be like refusing to call the fire department because you don't like the mayor. I don't understand why you are paying E* for this "sucky" locals. You apparently fall into that rarified group that can have DNS and LIL. You didn't have to sign up for LIL.

Seems Dish should do something to make up of this mess. Rick

What do you want them to do?

 

[garys]

I went to check my bill online as well, checked under 'Recent Activity' and credit for 11/1 to end on billing is listed there, there is no charge for downgrade service. My credit was for over $7.00.

 

[ts7]

Rupert Murdoch didn't do anything to you. Charlie Ergen did.

I'm not sure this is a fair statement. Charlie had the settlement for DNS worked out with all the other networks, but Fox refused to go along with it. Being that Rupert Murdoch owns both Fox and D*, I think there is reason to be angry with him.

 

[ThomasRz]

I'll try this just one more time. Please pay attention. I am going to shout. No offense intended.

WHETHER OR NOT FOX ACCEPTED THE OFFER IS IRRELEVANT! READ THE $%$@ DECISION. THE INJUNCTION WAS MANDATORY. EVEN IF FOX HAD ACCEPTED THE DEAL, THE INJUNCTION WOULD HAVE ISSUED. IT WAS NOT FOX'S DECISION. THE INJUNCTION WAS REQUIRED BY THE LAWS OF THE UNITED STATES OF AMERICA. STOP LIVING IN FANTASY LAND. WHAT RUPERT OWNS OR DOES NOT OWN PLAYED NO ROLE IN THIS DECISION. WHAT IS IT THAT YOU DO NOT UNDERSTAND?

I'm not sure this is a fair statement. Charlie had the settlement for DNS worked out with all the other networks, but Fox refused to go along with it. Being that Rupert Murdoch owns both Fox and D*, I think there is reason to be angry with him.

 

[Zero327]

If Fox and the affiliates would have agreed to the terms of the settlement the courts would have fallen in line. The injunction was a result of no unanimous decision from all of the carriers. But yell all you like, I suppose someone will agree with you...sooner or later.

 

[Clancy]

I'll try this just one more time. Please pay attention. I am going to shout. No offense intended.

WHETHER OR NOT FOX ACCEPTED THE OFFER IS IRRELEVANT! READ THE $%$@ DECISION. THE INJUNCTION WAS MANDATORY. EVEN IF FOX HAD ACCEPTED THE DEAL, THE INJUNCTION WOULD HAVE ISSUED. IT WAS NOT FOX'S DECISION. THE INJUNCTION WAS REQUIRED BY THE LAWS OF THE UNITED STATES OF AMERICA. STOP LIVING IN FANTASY LAND. WHAT RUPERT OWNS OR DOES NOT OWN PLAYED NO ROLE IN THIS DECISION. WHAT IS IT THAT YOU DO NOT UNDERSTAND?

It needs to be pointed out to you that if you expect anyone to take your statements seriously, wrong as they are, that this forum has said in the past that your type of shouting does not follow anyones protocal.

 

[Greg Bimson]

If Fox and the affiliates would have agreed to the terms of the settlement the courts would have fallen in line.

So, if a defendant is found guilty of first-degree murder in a court of law, the DA and the Defense team can "negotiate" for the murderer can get out in three years, even though for federal statutes there is only either a "life" or a "death" sentence.

Cool. I'll have to remember that.

Or, the super-easy method, why not read the judge's explanation? It basically states that because the LAW states the remedy for a party's nationwide pattern or practice of willful infringement is a permanent injunction against the license. It also states that since this case came down from the Appeals Court with the instructions to issue a permanent injunction against the license, the District Court judge had no choice but to issue the injunction.

But who am I to let facts stand in the way of your opinion?

Edit: to read Judge Dimitrouleas' explanation, go here. It is the last attachment at the bottom of the page.

 

[ts7]

So, if a defendant is found guilty of first-degree murder in a court of law, the DA and the Defense team can "negotiate" for the murderer can get out in three years, even though for federal statutes there is only either a "life" or a "death" sentence.

Cool. I'll have to remember that.

Or, the super-easy method, why not read the judge's explanation? It basically states that because the LAW states the remedy for a party's nationwide pattern or practice of willful infringement is a permanent injunction against the license. It also states that since this case came down from the Appeals Court with the instructions to issue a permanent injunction against the license, the District Court judge had no choice but to issue the injunction.

But who am I to let facts stand in the way of your opinion?

Since I have never had nor wanted DNS, I admit that I have been following this casually more from the aspect of "how does this affect E* overall". My understanding, though, is that this was a civil, not a criminal case so I'm not sure the analogy to a murder case is quite the same. I believe (I'm not a lawyer, so forgive me if I'm wrong) that in civil cases, that judgments can and are vacated if all parties involved can work out an amicable settlement. If this was not the case, then why would E* and ALL the other networks EXCEPT the Rupert Murdoch (owner of D*) owned Fox, even attempt to work out a settlement?

Once again, forgive me if I'm wrong on this. It is only my interpretation. Any way you look at it, though, I think that Murdoch's ownership of both D* AND Fox is a major conflict of interest and anti-competitive. That is my OPINION, so take it for what it's worth.

 

[Zero327]

So, if a defendant is found guilty of first-degree murder in a court of law, the DA and the Defense team can "negotiate" for the murderer can get out in three years, even though for federal statutes there is only either a "life" or a "death" sentence.

Cool. I'll have to remember that.

Or, the super-easy method, why not read the judge's explanation? It basically states that because the LAW states the remedy for a party's nationwide pattern or practice of willful infringement is a permanent injunction against the license. It also states that since this case came down from the Appeals Court with the instructions to issue a permanent injunction against the license, the District Court judge had no choice but to issue the injunction.

But who am I to let facts stand in the way of your opinion?

Edit: to read Judge Dimitrouleas' explanation, go here. It is the last attachment at the bottom of the page.

Yes... Because the law has never just stepped aside in a corporate business settlement before. That would be just plain foolish. If you're going to argue tort law however, please remember that criminal proceedings carry federal stipulations as to the madnatory requirement for sentencing and restitution whereas civil regulatory hearings and remedies can be overturned when the majority party feels that the corporation has been unduely restricted under statement of wrongful interference or unfair competition.

253 F.3d 34, 50 (D.C. Cir. 2001) (en banc)

Now, would you like to re-examine that murder analogy or do you feel the use of the term "murder" justifies your argument?

 

[Greg Bimson]

My understanding, though, is that this was a civil, not a criminal case so I'm not sure the analogy to a murder case is quite the same. I believe (I'm not a lawyer, so forgive me if I'm wrong) that in civil cases, that judgments can and are vacated if all parties involved can work out an amicable settlement.

If you're going to argue tort law however, please remember that criminal proceedings carry federal stipulations as to the madnatory requirement for sentencing and restitution whereas civil regulatory hearings and remedies can be overturned when the majority party feels that the corporation has been unduely restricted under statement of wrongful interference or unfair competition.

EXCEPT...

In this civil case, there is a "mandatory sentencing guideline" for a "pattern or practice of willful infringement". The Eleventh Circuit Court of Appeals ruled that there was a define pattern or practice of willful infringement, and that kicked in the special provision in the law that forces a permanent injunction to be issued.

So, this case has been going on for eight plus years and Dish Network was found guilty of copyright infringement. The Appeals Court added the special circumstances that led to the mandatory penalty.

This isn't like the TiVo v. Echostar suit or the Blackberry suit, where all patent violations can be "settled". There are mandatory penalties in those suits.

There is a mandatory penalty here which Dish Network was quite aware of going into this suit. All one needs to do is check the 10-K and 10-Q filings where Dish Network always stated there was a possibility that they may have to terminate all distant networks if the courts ruled against them.

And lest we forget, Dish Network had no wish to settle, until they realized there wasn't any recourse...

May, 2006: The Eleventh Circuit Court of Appeals rules that Dish Network violated 17 USC 119 with a "pattern or practice of willful infringement", for which the remedy is a permanent injunction against said license. The injunction would be handed out by the District Court, by Judge Dimitrouleas, upon remanding the case back to his court.

June, 2006: Dish Network appealed to the Eleventh Circuit Court of Appeals for the entire bench to hear the appeal. This en banc hearing was denied.

July, 2006: Dish Network then appealed to the Supreme Court for an emergency stay of this injunction while Dish Network would be filing their writ of certoriari. Justice Thomas denied the request in August.

With the only option of having to file a writ of certoriari with the Supreme Court in order to save distant network channels, Dish Network finally came to a "settlement" with the four network affiliate boards that cross-appealed and won a stiffer penalty.

To bad that stiffer penalty was both codified as the sentencing guideline within the law and also mandated by the Eleventh Circuit Court of Appeals upon remand to the District Court.

Or, to make this simple: if there is a penalty in civil law that has a mandatory sentence associated with it, does anyone just ignore it if the parties wish to settle? Or do parties get to settle even after winning they remedy they requested (that would be the four network affiliate boards win in the Appeals Court that forced the permanent injunction to be issued)?

 

[hometheaterman]

The superstations will not be lost with distants correct? I already am unhappy about loosing my dns but If I lost the superstations too I think that might be the end of my Dish service.

 

[rjallen]

I hope you're doing ok.

Interesting attitude here.

If you were in a white area you wouldn't have needed a waiver. So you don't really care about network programming? Exactly what did you watch?

I live in the mountains. I GET NOTHING over-the-air. As far as I am concerned its a white area. There is no cable either. I am limited to sat. providers. My "local" stations are over 150 miles away. There are repeaters in an adjacent valley that put out OTA signals 20 to 50 miles away but these signals are blocked by mountains. I seem to remember I only one waiver was required at sign-up. That was granted.

I do care about some network programming. "Local" stations have poorer quality signals and do not carry eastern college sport teams that I follow.



Well if a service isn't provided why should anyone pay for it?

Dish, if you cared to find out, has provided others without "local" stations- these stations at no charge until January 1st. I already pay for them- what will they do for me? Will I have to pay for them during same time period? Is that fair?

Depends on the contract. I am fairly confident that any E* contract does not include a provision that make it conditional upon receiving DNS. If DNS was that important to a subscriber, he should have negotiated it in.

Your are probably right but it WAS an option that I have paid for for 7 years. I like having that option.


Why? Do you want DNS or not? Rupert Murdoch didn't do anything to you. Charlie Ergen did. It would be like refusing to call the fire department because you don't like the mayor. I don't understand why you are paying E* for this "sucky" locals. You apparently fall into that rarified group that can have DNS and LIL. You didn't have to sign up for LIL.

So you think Murdoch did nothing. Why do you think Dish was unable to settle with those 20 or so FOX owned stations? You think it had something to do with his ownership of Direct---?

No I didn't have to sign up for LILs I did so for the really poor local news. But that is my decision. I would rather watch other events on stations with better quality service. Why should you or anyone else limit my access to service by geography.

What do you want them to do?[/QUOTE]

I don't know. My point was there was nothing in any communication to me that indicated they would credit my account for the loss of service. I have already paid for most of November. Dish knew this was going to happen and chose do to let anyone know a time frame etc. My opinion is they wanted to cause maximum about of confusion to get maximum amount of flack to the politicians.

IMHO, I think we subscribers are caught in the middle of a fight between the big boys and we will be the losers.

Rick

 

[Greg Bimson]

So you think Murdoch did nothing. Why do you think Dish was unable to settle with those 20 or so FOX owned stations? You think it had something to do with his ownership of Direct---?

Even if Dish Network was able to settle with the Fox-owned affiliates, the judge would have still issued the permanent injunction, because 1) that is the law, and 2) the higher court also told him to issue the injunction.

It is like disobeying a direct order from a superior officer in the military. It just isn't done without some form of retribution.

 

[Greg Bimson]

The superstations will not be lost with distants correct? I already am unhappy about loosing my dns but If I lost the superstations too I think that might be the end of my Dish service.

The injunction covers the use of the license granted in 17 USC 119. The injunction is only used for ABC, CBS, FOX and NBC.

Therefore, the superstations are still alive and kicking.

 

[Mr Tony]

The superstations will not be lost with distants correct?

correct. Those are a different animial

 

[rjallen]

Even if Dish Network was able to settle with the Fox-owned affiliates, the judge would have still issued the permanent injunction, because 1) that is the law, and 2) the higher court also told him to issue the injunction.

It is like disobeying a direct order from a superior officer in the military. It just isn't done without some form of retribution.

Sorry, as others have pointed this was a civil suit brought by a number of local stations and networks- if they settle THEY can request dismissal of the suit as the wronged party. All must settle but all did not.

You keep stating Dish violated the law as if they murdered somebody. Communication law is complex. I guess you are aware Dish felt they had not violated the law. There position was not uphelp but these things must be litigated to clarify what is at best confusing legislation.

That said, I do hold Dish at least partly at fault for the mess. My position is the court, to punish Dish has screwed the ONLY INOCENT PARTIES- the subscribers. There had to be another way

Rick

 

[Greg Bimson]

Sorry, as others have pointed this was a civil suit brought by a number of local stations and networks- if they settle THEY can request dismissal of the suit as the wronged party. All must settle but all did not.

No matter how many times that is repeated does not make it true.

There were three separate tracks of discussion relating to the injunction by Judge Dimitrouleas. Each will be detailed below from the decision (bold emphasis is mine):

1. Fox's Standing to Seek Entry of Injunction (last three sentences):

Moreover, the Court has a duty to carry out the mandate even without the application of a prevailing party. Thornton v. Carter, 109 F.2d 316, 321 (8th Cir. 1940) (stating that the prevailing party was entitled to entry of appellate court's decree without any application or motion on her part). Therefore, the Settling Parties' argument regarding Fox's standing to request implementation of the appellate court's mandate are unavailaling.

2. Court's Discretion to Review or Alter Mandate (starting at paragraph three):

Here, the Eleventh Circuit's mandate is clear and unambiguous, requiring this Court to enter "a nationwide permanent injunction as mandated by the Act." Echostar II, 450 F.3d at 527 (emphasis added). Reviewing this Court's factual findings, the appellate court concluded that Echostar had engaged in a "pattern or practice" of violating the Act, stating that the Defendant seemed to have violated the Act "in every way imaginable." Id. at 526. The court went on to conclude that because it reached the "unavoidable conclusion" that Echostar engaged in a pattern or practice of violating the SHVA, this Court is "required to issue a nationwide permanent injunction barring the provision of distant network programming pursuant to the Act's statuory license." Id. at 527.

Where a pattern or practice of violations is found, the Act's remedial provision mandates entry of a permanent injunction in scope determined by the scope of the violations. As the Eleventh Circuit noted, the statute contemplates both mandatory and discretionary relief, providing that "the court shall enter a permanent injunction" where as "the court may order statutory damages where a pattern of violations exist. Id. (citing 17 USC 119(a)(7)(B)(I)) (emphasis added). Because the Eleventh Circuit found that Echostar engaged in a "pattern or practice" of SHVA violations, the Court is required, by statute, to enter a permanent injunction and does not have discretion to enter the parties' consent judgment in place of carrying out the mandate.

3. Manifest Injustice (whole first paragraph followed by last sentence in last paragraph):

In addition to the presentation of new evidence or a change in controlling law, and exception to the law of the case doctrine exists where "the appellate decision is clearly erroneous, and, if implemented, would work a manifest injustice." Litman v. Massachusetts General Life Ins. Co., Inc, 825 F.2d at 1510. Echostar and the Affiliate Associations argue that entry of a nationwide permanent injunction would work a manifest injustice both to Echostar's customers and to the Settling Parites. The parties have identified no clear error in the Eleventh Circuit's opinion in Echostar II, however. The entry of a nationwide permanent injunction is based on the finding of a "pattern or practice" of SHVA violations occurring throughout the United States is neither clearly erroneous nor contrary to law. Rather, such an outcome is expressly required by the Act...

The Eleventh Circuit found that Echostar violated the Act "in every way imaginable" Echostar II, 450 F.3d at 526, and this Court does not find manifest injustice will result from this Court entering the specific remedy required by statute for such violations.

So, even if Fox settled, the part I bolded in section TWO still would have made the judge issue the injunction.

Any more opinions?