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Dish Rolls Dice in Nevada

7/12/2010 12:01 AM Eastern

Washington — Dish Network hopes a July
22 federal court hearing in Nevada will aid its
efforts to resist forced carriage of noncommercial
public-TV stations on the government’s
timetable.

Dish wants the U.S. District Court for Nevada
in Las Vegas to temporarily halt Federal
Communications Commission enforcement of
a high-definition carriage mandate in the new
law that reauthorized satellite-TV firms to carry
distant TV-network signals.

The second-biggest U.S. satellite-TV provider
must, by July 27, have reached carriage
terms with at least 30 noncommercial stations.
If not, under a provision in the Satellite
Home Viewer Reauthorization and Extension
Act (STELA), Dish faces a speeded-up timetable
(by the end of next year) for carriage of all
noncommercial signals in any market where
it carries any stations in HD.

So far, Dish has not reached an agreement
with those noncommercial broadcasters, represented
by the Association of Public Television
Stations. The APTS has already struck HD-carriage
deals with DirecTV and cable operators.

Dish objects to the requirement that, it argues,
puts a thumb on the scale in favor of a particular
type of programming by singling out public-
TV stations and mandating a timetable different
from the FCC’s HD must-carry rules.

“This is not a case
about whether PBS
provides important
and worthwhile programming
or should
receive funding from
the government,”
Dish said, referring
to Public Broadcasting
Service member
stations, in requesting
the injunction.
“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 claims the government mandate violates
its First Amendment rights to choose
what programming to carry and its Fifth
Amendment rights to due process.

The APTS has an incentive not to make a deal
for those 30 stations, according to Dish, because
failure to reach that 30-station mark triggers a
carry-one, carry-all provision in the bill.

“Carrying all” would mean broadcasting
more than 150 noncommercial stations in
HD by 2011.

APTS interim CEO Lonna Thompson said
the group has always been willing to negotiate,
citing deals with DirecTV and cable.

APTS did not consider Dish’s last, best offer in
December to be a “meaningful one,” though, as
Dish only promised to use “commercially reasonable
efforts to accelerate compliance with
the FCC’s carry one, carry all rules for noncommercial
educational stations,” she said.

STELA has already put a crimp in Dish’s
business plans, which had been based on the
FCC’s 2008 timetable for phasing in HD carriage
of all local TV stations, including noncommercial
ones, by 2013.

Dish said it completed equipment installs
and fiber upgrades to launch NBC, ABC,
CBS and Fox stations in HD in 10 more
markets earlier this month — but put those plans
on hold for two or three months because of the
unresolved noncommercial mandate.

Rep. Anna Eshoo (D-Calif.), a driving force
behind the noncommercial-carriage provision
in STELA, wasn’t happy about Dish’s
court maneuver.

“I and millions of other Americans depend
on public television to deliver truth, entertainment,
facts and beauty,” 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.”

Dish did not comment on the court action
or on Eshoo’s comments.

September