Court Orders Dish to Drop ALL Distant Networks

[minnow]

Well I just looked at Direct TV and see that I can get every network except CBS. That was the same scenario I have with E* and got a waiver for CBS(twice, no less !). I've been with E* almost since the beginning but if I lose the net's, then I'm gone.
And now that this topic is 24 pages, shouldn't it qualify as a sticky thread and be displayed at the top of the page ? This topic and the ramifications are pretty important to many of us.

 

[Lucky]

Dish can seek a rehearing "en banc" - which basically is a rehearing by all of the 11th Circuit judges. The initial opinion was decided (as is almost always the case) by a panel of 3 judges and one of them was sitting by designation, which means that he isn't normally an appellate judge of that Circuit. The 11th Circuit has several other judges who did not participate in this appeal but would participate if rehearing en banc is granted. I can't project Dish's chances on having the rehearing granted (it is not automatic) or, if granted, the likelihood of success. But, having read the opinion, I suspect they (Dish) may focus on whether the 3 judge appellate panel properly applied the legal standard of review in (1) rejecting the findings and relief adopted by the trial court and (2) substituting their own findings as to the nature of Dish's conduct and the appropriate remedy.

Regardless whether Dish attempts the rehearing route (or if the rehearing approach fails), Dish can still appeal to the SCOTUS, but this is very difficult . . . .

Thank you for explaining that so thoroughly. You obviously are an attorney. I hope Dish appeals in some way.

 

[Yo Howdy]

I've been with E* for a long time and have found the service to be pretty good. However, if I lose all my locals and can then only receive CBS OTA in analog and no others due to my rural location then I would have no choice but to change providers. I don't think there is much question that most people, including myself, watch network programming the majority of the time and there would be little value to a programming package lacking them.
Of even more concern, however, is whether E* will try to forcefully retain customers or charge early termination penalties to those who are in 12 month or 18 month contracts. I would be outraged if they advised me that since they upgraded my 811 to a VIP211 I am bound for another 18 months even if they cannot deliver any network programming to me.
Lastly, am I imagining this or is there a possibility that under new federal rules to be put forward in the next couple of months that E* can offer all the distant HD networks even if they are precluded from offering the analog versions? That would solve the problem for many of us.

 

[Tom Bombadil]

I don't think there is much question that most people, including myself, watch network programming the majority of the time and there would be little value to a programming package lacking them.

Viewer ratings of the networks have been dropping every year. I think they consume maybe 5% of my viewing. However viewership is still high, with about 40% of all households watching a program from CBS, ABC, NBC, or Fox every day.

However most subs don't get their networks exclusively via DNS, so I don't know how badly this would hurt Dish.

 

[rdinkel]

What about distant digital vs distant analog? Will the injunction apply to both?

 

[JP Threw]

And now that this topic is 24 pages, shouldn't it qualify as a sticky thread and be displayed at the top of the page ? This topic and the ramifications are pretty important to many of us.

I agree!

 

[Judicature]

Question for Judicature.
In reguard to your statement,
But, having read the opinion, I suspect they (Dish) may focus on whether the 3 judge appellate panel properly applied the legal standard of review in (1) rejecting the findings and relief adopted by the trial court and (2) substituting their own findings as to the nature of Dish's conduct and the appropriate remedy.

What have been the en banc rehearing reversals in this particular Circuit spoken as a percentage ?

Thank you for your time.

I don't know, but I will do some checking with some attorneys I know who practice in that Circuit (I am in a 10th Circuit state). If I gain any insights from my inquiries, then I will be happy to post the information.

 

[bonipie]

Do you have HD with Dish? Do you really need the 5 sats or would the normal 3 sat solution work for you?

Yes, we do get HD. We get 110, 119, and 129. We would love to get 148 for CBSHD as it is the only network hd we get since we are distant network rv'ers. Could until we got new 211 with Dish 1000, but s/w won't even recognize another sat even thought we have the seperate dish for it. Need another switch, but we are being strung along with promise of CBSHD going to 110 in the future. Hope is eternal, or whatever they say.

 

[odbrv]

US Senator responds

I have sent the following to the FCC, my congressman, and my two US Senators
and the NAB.
The National Association of Broadcasters and the U.S. Court of Appeals in Atlanta have overturned a FCC ruling concerning DISH Network and Distant Networks. I have thousands of dollars invested in Dish Network equipment. In punishing Dish Network the court is also punishing all their subscribers who cannot get Local channels. I went through years of not getting my local stations over the air. Finally Dish offers a way to get network broadcasts and I get all the required waivers from my local stations to see these national broadcasts and the court is now taking that away from me. Where was this court in fining/punishing my local stations for not providing me with a viewable signal. Now that HD is suppose to be the national standard , where was the court in punishing the local stations for not meeting the 2006 deadline. You all simply added 3 years. Why don't you simply give Dish and us 3 more years to get our local HD.
I live 1/2 time in Texas and 1/2 time in NH . Why am I not allowed to get the NH locals while in Texas and the Texas locals while in NH. I still need to know what is going on while I am away. Dish has the technology to do that. It is you who do not allow it. I can get the local Lubbock newspaper in NH and the NH newspaper in Texas. I can even get radio stations from both areas via the internet. Why are you making separate rulings for television. Is it the NABs lobbying money at work.

Just received a formal letter from US Senator Cornyn of Texas in response to my e-mail published above in this thread. He has contacted the appropriate officials at the FCC to review my complaint. He says he will let me know when he gets a reply.
So please start the writing campaign to your Congressman and Senators. The FCC might not listen directly to us. However, if they get enough complaints from the US Congress, who funds them. They might start a review. One quick solution would be to allow Distant Network HD. It might help push their( Congress and the FCC) desire to have HD be the tv standard.

 

[Clancy]

I don't know, but I will do some checking with some attorneys I know who practice in that Circuit (I am in a 10th Circuit state). If I gain any insights from my inquiries, then I will be happy to post the information.

Thank you again for your interest and time.
I await your reply.
I hope this country has the ability to allow people to purchase and view programs of their own choosing without the meddling of a select few.

 

[Clancy]

Just received a formal letter from US Senator Cornyn of Texas in response to my e-mail published above in this thread. He has contacted the appropriate officials at the FCC to review my complaint. He says he will let me know when he gets a reply.
So please start the writing campaign to your Congressman and Senators. The FCC might not listen directly to us. However, if they get enough complaints from the US Congress, who funds them. They might start a review. One quick solution would be to allow Distant Network HD. It might help push their( Congress and the FCC) desire to have HD be the tv standard.

Good for you odbrv.
Let right be done.

 

[waltinvt]

<snip>.....Lastly, am I imagining this or is there a possibility that under new federal rules to be put forward in the next couple of months that E* can offer all the distant HD networks even if they are precluded from offering the analog versions? That would solve the problem for many of us.

What "new federal rules" are you referring to?

 

[Greg Bimson]

waltinvt, I think Yo Howdy is talking about the SHVERA's direction to the FCC to create a separate set of qualification rules for digital.

The problem here is how the distant license is now crafted. In my opinion, a permanent injunction stops Dish Network from delivering ALL distant network feeds, both analog and digital. I do need to re-read the law to make sure.

The issue here is that there is only one license to deliver distant networks. If Dish Network is no longer allowed to use that license (which is what the injunction will say), then Dish Network will not be allowed to retransmit distant locals of any kind. Like I said, this is my opinion, as I need to re-read the law.

 

[BobMurdoch]

I don't see how they prevent carriage of something that didn't even exist when the first challenge was made.....

Wow, I can see now why lawyers get rich. There are no black and white facts anymore, just endless shades of grey to argue over. Hey, if we're lucky it will take another 10 years to resolve and we'll all be using Fios by then anyway....

 

[Brewer4]

I don't see how they prevent carriage of something that didn't even exist when the first challenge was made.....

Wow, I can see now why lawyers get rich. There are no black and white facts anymore, just endless shades of grey to argue over. Hey, if we're lucky it will take another 10 years to resolve and we'll all be using Fios by then anyway....

Isnt it. They get rich arguing over things that are complex that we made complex. But of course everyone wants the most money so they fight and fight. Forget common sense and learn to share. That would be too easy. So much for those lessons we teach our kids.

 

[Greg Bimson]

The issue is the copyright license for distant networks was changed in the SHVERA in 2004. The SHVERA amended use of the existing license to include the use of both analog and digital. Because there is not a separate HD license, an injunction would carry to all distant network programming, SD or HD.

Like I said, it is my opinion, as it's been awhile since I have read the law.

 

[waltinvt]

waltinvt, I think Yo Howdy is talking about the SHVERA's direction to the FCC to create a separate set of qualification rules for digital.

Maybe I'm mixed up but I thought the FCC's response to the '04 SHVERA directive was to issue a letter to congress this past Janurary basically saying that the existing (L-R) prediction method used for analog was plenty adequate for determing who's unserved with respect to digital.

I seem to remember, they did suggest congress address some minor, potential signal interference problems specific to digital but the jist was they didn't seem to think we needed much in the way of new rules for qualifing for digital.

However arn't the top 100 DMAs supposed to have some kind of digital signal testing proceedure in place now for "appealing" the pediction model determinations?

The problem here is how the distant license is now crafted. In my opinion, a permanent injunction stops Dish Network from delivering ALL distant network feeds, both analog and digital. I do need to re-read the law to make sure.

The issue here is that there is only one license to deliver distant networks. If Dish Network is no longer allowed to use that license (which is what the injunction will say), then Dish Network will not be allowed to retransmit distant locals of any kind. Like I said, this is my opinion, as I need to re-read the law.

Right, wrong or indifferent, if the courts actually prohibit Dish from providing ANY networking programming (SD, HD, local or distant), it could immediatly propel Direct TV to forefront and end up creating the monoply they were trying to avoid when they denied the "E"-"D" merger.

 

[Greg Bimson]

Walt, notice I said "distant locals". I mean "distant networks". Dish Network was not found guilty of violating the local-into-local provisions, so an injunction for local-into-local cannot be given. Local into local will remain on Dish Network.

That is until the local channels start reading these board and figure out what "moving" is. Once that happens, then the local channels could sue both DirecTV and Dish Network based on violations of the local-into-local license. And if found guilty, only then could an injunction be implemented. Based on the fact that this suit is EIGHT years old, any local-into-local issues would be at least six years out from the start of any lawsuit.

 

[Peter Parker]

Actually the NAB DID ask for DISH to lose the right to rebroadcast local channels. The court declined to issue an injunction like that but it could have.

 

[Judicature]

Question for Judicature.
In reguard to your statement,
But, having read the opinion, I suspect they (Dish) may focus on whether the 3 judge appellate panel properly applied the legal standard of review in (1) rejecting the findings and relief adopted by the trial court and (2) substituting their own findings as to the nature of Dish's conduct and the appropriate remedy.

What have been the en banc rehearing reversals in this particular Circuit spoken as a percentage ?

Thank you for your time.

OK, here is the scoop. I must credit a professor at the University of Tennessee - Knoxville - for pointing me to the right place for this data, and the most recent 12 month period for which data is available ended 3/2005. In private civil cases not involving prisoner petitions or the United States as a party, 11th Circuit panels reversed the lower district court in 13.1% of the appeals. The average reversal rate for all circuits across the U.S. is 11.9%; the highest reversal rate for that period is the 7th Circuit, which reversed 17.8%; the lowest reversal rate is the 2nd Circuit, which reversed 1.6% of the appeals from District Court.

All FWIW.

Source: http://www.uscourts.gov/caseload2005/tables/B05mar05.pdf