DISH Avoids STELA Noncom Mandate

[TravelFan1]

Artcile on multichannel.com:

DISH Avoids STELA Noncom Mandate - 2010-07-29 20:00:52 | Multichannel News

DISH Avoids STELA Noncom Mandate

Strikes independent HD carriage deal with 30 noncom stations

John Eggerton -- Multichannel News, 7/29/2010 4:00:52 PM
Dish Network has managed to avoid the expedited noncommercial high-definition carriage mandate in the newly reauthorized satellite distant signal blanket license law by striking an independent HD distribution agreement with at least 30 noncommercial stations, the company confirmed to Multichannel News.
But it still plans to challenge the law that forced it to strike that deal.
After a court rejected its request for a preliminary injunction against the mandate, the satellite operator was facing a July 27 deadline in the Satellite Television Extension and Localism Act for either striking its own, independent carriage deal with at least 30 noncoms, or be subject to a mandate that it carry all noncommercial stations in HD by the end of next year rather than by 2013, the FCC deadline -- as part of a phase-in plan -- for satellite HD carriage for commercial and noncommercial stations alike.
The No. 2 DBS provider had tried to negotiate a blanket deal with the Association of Public Television Stations, but had failed to do so. The pact was not with APTS, which represents noncoms nationwide, but does include a geographically diverse group of stations, according to the company, which had no comment on when that HD carriage would begin. The law only requred that the deals be struck by July 27.
Dish filed the injunction three weeks ago in Nevada, where it is incorporated, because it faced the July 27 deadline for coming to carriage terms with 30 noncom stations or triggering an accelerated (by the end of next year) timetable for carriage of all noncommercial signals in any market where it carries any stations in HD.
Dish's bone to pick wasn't with the FCC, which is required to enforce the law, but with the legislation that it argues puts a thumb on the scale in favor of a particular type of programming.
The distributor has said that the mandate violates its First and Fifth Amendment rights and has already put a crimp in business plans it based on the 2008 FCC timetable for phasing in HD carriage of all local TV stations, including noncoms, by 2013.
Dish said it will continue to push the constitutional challenge to the law in the Ninth Circuit, both the requirement that it had to forge the 30-station deal to avoid the mandate, and the mandate itself.

 

[TravelFan1]

Now what the "diverse" 30 markets are? So far, Dish has launched PBS in HD in very small markets. Neither one of the 3 HD PBS available in NYC Metro area(the NYC one, the NJ one and the LI one) are available in HD on Dish.

 

[kstuart]

The relevant STELA bill text is :

‘(2) ELIGIBLE SATELLITE CARRIER- The term ‘eligible satellite carrier’ means any satellite carrier that is not a party to a carriage contract that--
‘(A) governs carriage of at least 30 qualified noncommercial educational television stations; and
‘(B) is in force and effect within 150 days after the date of enactment of the Satellite Television Extension and Localism Act of 2010.’;

SCOTT - Do your sources know the 30 stations ?

 

[multnomah]

The relevant STELA bill test is :



SCOTT - Do your sources know the 30 stations ?

More importantly, what did those 30 stations agree to? Maybe they agreed NOT to be broadcast on DISH!

 

[DishSubLA]

Considering the FCC had already put the date according to Dish's capacity plans (after all, Dish had to prove its case to the FCC) and both parties were satisfied, it is hard for one not to think that Dish's satellite competitor greased the U.S. Congress and worked hard to put the more draconian deadline in STELA, just as it was reported at the time that DirecTV under Rupert Murdoch successfully lobbied for and slipped in the "one dish" for all LIL's in the old SHIVRA that had nothing to do with DirecTV, but everything to do with hampering the competition: Dish Network. This will be a pain for Dish, and it may even be over-compressed LIL PBS HD, but Dish will rise to the occasion and make it happen, but I do believe it will further delay 24/7 HD RSN's. Just because a politician says they are fighting on behalf of PBS doesn't mean they aren't doing Dish's satellite competition's bidding.

 

[Fitzie]

Considering the FCC had already put the date according to Dish's capacity plans (after all, Dish had to prove its case to the FCC) and both parties were satisfied, it is hard for one not to think that Dish's satellite competitor greased the U.S. Congress and worked hard to put the more draconian deadline in STELA, just as it was reported at the time that DirecTV under Rupert Murdoch successfully lobbied for and slipped in the "one dish" for all LIL's in the old SHIVRA that had nothing to do with DirecTV, but everything to do with hampering the competition: Dish Network. This will be a pain for Dish, and it may even be over-compressed LIL PBS HD, but Dish will rise to the occasion and make it happen, but I do believe it will further delay 24/7 HD RSN's. Just because a politician says they are fighting on behalf of PBS doesn't mean they aren't doing Dish's satellite competition's bidding.

Agreed.

Regards,
Fitzie

 

[Derwin0]

What consitutes "stations"?

For instance, if they struck a deal with MPT (Maryland Public TV), would that count as 6 stations? They could then just broadcast the Main Station in Annapolis, and mirror it to the other 5 locals.

Same with GPT (& it's 9 affiliates) or the other statewide systems. Real easy to get to 30 while only broadcasting a few.

 

[Greg Bimson]

Good question, Derwin. From the article:

The No. 2 DBS provider had tried to negotiate a blanket deal with the Association of Public Television Stations, but had failed to do so. The pact was not with APTS, which represents noncoms nationwide, but does include a geographically diverse group of stations, according to the company, which had no comment on when that HD carriage would begin. The law only requred that the deals be struck by July 27.

...but does include a geographically diverse group of stations.

From the law:

‘(2) ELIGIBLE SATELLITE CARRIER- The term ‘eligible satellite carrier’ means any satellite carrier that is not a party to a carriage contract that--
‘(A) governs carriage of at least 30 qualified noncommercial educational television stations;

"a carriage contract that governs carriage of at least 30 qualified noncommercial educational television stations."

What organization other than APTS can govern carriage of at least 30 qualified noncommercial educational television stations?

I have a feeling that someone is trying to change a definition.

 

[kstuart]

Good question, Derwin. From the article:...but does include a geographically diverse group of stations.

From the law:"a carriage contract that governs carriage of at least 30 qualified noncommercial educational television stations."

What organization other than APTS can govern carriage of at least 30 qualified noncommercial educational television stations?

I have a feeling that someone is trying to change a definition.

The law does not say "organization" it says "a carriage contract".

Federal law often uses wording that seems to apply to only one entity, to avoid actually naming the entity and thereby legislating a special interest directly.

For example, instead of naming "Louisiana", laws state something like "any state hit by a devastating disaster in 2005".

If whoever worded STELA was thinking about APTS, they did not word the law correctly to exclude Dish from coming to an agreement with 30 different stations, and then drawing up a single carriage contract that was signed by all 30 stations.

It's also interesting that APTS' clout has been shown to be less than expected, otherwise Dish would not have been able to get the 30 signatures...

 

[Greg Bimson]

The law does not say "organization" it says "a carriage contract".

For all of the bravado, Dish Network would usually issue a press release or something. Meanwhile, I cannot believe these non-commercial stations would sign "a carriage contract" that would be signed by 30 different stations.

Something is fishy.

 

[kstuart]

Meanwhile, I cannot believe these non-commercial stations would sign "a carriage contract" that would be signed by 30 different stations.

But - that is exactly what the Multichannel News article claims, and it is the only thing that would satisfy the provision of the STELA law.

Presumably, Dish has not issued a press release because a) they only did this to satisfy the legal requirement, and b) as mentioned, they are still pursuing the legal challenge as well.

By the way, 30 stations is less than 10% since the law stated "stations" rather than "licensees" -

There are 177 licensees operating 357 public television stations in all 50 states, Puerto Rico, U.S. Virgin Islands, American Samoa and Guam. The licensees are held by four basic local groups:


Licensees
Nonprofit Community Organization 90
University 59
Local Government 7
State Government 21
Total 177

PS I do not know what public disclosure is required in such instances - they may only need to disclose to the FCC or Congress, but not the public, since it is a contract between two parties, of the sort that is usually not disclosed (for example, we do not know for sure exactly what Dish or DirecTV pays for various channels).

 

[Greg Bimson]

But - that is exactly what the Multichannel News article claims, and it is the only thing that would satisfy the provision of the STELA law.

Well, in actuality the article is only reporting what Dish Network claimed. It is Dish Network that has claimed they've signed a carriage agreement with a diverse group of stations.

Of course the only way to prove it would be to see the agreement.

PS I do not know what public disclosure is required in such instances - they may only need to disclose to the FCC or Congress, but not the public, since it is a contract between two parties, of the sort that is usually not disclosed (for example, we do not know for sure exactly what Dish or DirecTV pays for various channels).

Correct. So the only way to know for sure is to see the agreement, and that will only happen if the contract is subpoenaed as part of litigation.

 

[kstuart]

Well, in actuality the article is only reporting what Dish Network claimed. It is Dish Network that has claimed they've signed a carriage agreement with a diverse group of stations.

Of course the only way to prove it would be to see the agreement.Correct. So the only way to know for sure is to see the agreement, and that will only happen if the contract is subpoenaed as part of litigation.

There is no conceivable reason for Dish to claim that they've signed an agreement with 30 stations if they have not done so.

Anyone that could affect Dish's Local HD rollout would end up knowing it is false, and in fact such a false claim would only make it less likely for the appeal process to be decided in Dish's favor.

It would also be an SEC violation to make a false claim that could influence investors.

These days, it seems like it would easy to find 30 small public stations that have enough financial difficulties that they would welcome some income from Dish - either sooner than otherwise, or perhaps slightly more than what they might get if they did not sign an agreement.

 

[mike123abc]

Dish probably has no problem finding 30 non coms in markets that have room on the spot beams. They could all be on Western Arc. I would expect a lot of WA markets to start filling out, since they do not have any new satellites announced before the 2013 agreed to mandate anyways. They will probably fill out all the markets exclusive to WA.

On EA, they will probably fill out all the markets served by 61.5. Those markets on 77 will probably have to wait until they have the new satellite at 77.

 

[reddice]

I would love Dish to carry my local PBS in HD since there OTA reception even with a roof antenna is very unreliable. Some days it would come in but many times I would just get squat and this is only 4 miles from the transmitters.

 

[Greg Bimson]

There is no conceivable reason for Dish to claim that they've signed an agreement with 30 stations if they have not done so.

This is what happens when one bases an opinion on error...

I was under the impression Dish Network had 60 days from the time of enactment to get an agreement, so I thought that deadline was 27 July. Which, coincendentally enough, turns out to be the date of the "carriage agreement" with about 30 non-commercial stations.

However, viewing the text of S. 3333, it appears Dish Network had 150 days from enactment to have that carriage agreement executed. So Dish Network had plenty of time to come to an agreement.

I still find it interesting that no stations have come forward to state they've signed Dish Network's 30 station agreement.

These days, it seems like it would easy to find 30 small public stations that have enough financial difficulties that they would welcome some income from Dish - either sooner than otherwise, or perhaps slightly more than what they might get if they did not sign an agreement.

I could be wrong, but I don't believe non-commercial stations can receive income from a carriage agreement.

 

[mdram]

si tis mandated they carry non comm?
and i cant get my locals? wtf

mandate they carry all commercial locals too, just to make it fair

 

[kstuart]

si tis mandated they carry non comm?
and i cant get my locals? wtf

mandate they carry all commercial locals too, just to make it fair

There is already a mandate that they carry all local HD channels by a date in 2013 (in any market that they carry any).

 

[Greg Bimson]

Then again, from the article:

After a court rejected its request for a preliminary injunction against the mandate, the satellite operator was facing a July 27 deadline in the Satellite Television Extension and Localism Act for either striking its own, independent carriage deal with at least 30 noncoms, or be subject to a mandate that it carry all noncommercial stations in HD by the end of next year rather than by 2013, the FCC deadline -- as part of a phase-in plan -- for satellite HD carriage for commercial and noncommercial stations alike.

Who knows? I'll guess we'll find out soon enough...

 

[kstuart]

The STELA bill states that the bill is effective February 27th, even if passed into law after that day (because the previous extension expired February 28th).