Dish Seeks New First Amendment Consideration of DBS

DBS programming requirements could see changes to First Amendment protection if the Supreme Court takes up Dish Network’s request for review, industry lawyers said. The company seeks high court review of DBS programming requirements that could amount to significant changes to the First Amendment protection given to the service. Dish recently asked the Supreme Court to review a lower court decision not to stop a STELA provision requiring HD carriage of local public TV stations. Like most Supreme Court review requests, the odds are against a court review, though several issues raised by Dish could pique the interest of the high court, said lawyers not involved in the case. The request may also be superseded by the FCC v. Fox being considered by the court this term, the lawyers said.

Under Section 207 of STELA, Dish is required to carry local public TV signals in HD in certain markets. Dish has asked the Supreme Court to look at the 9th U.S. Circuit Court of Appeals in San Francisco’s affirmation (CD Feb 25 p19) of a U.S. District Court’s decision not to give the company the injunction it sought. Dish had argued that the government was inserting itself into Dish’s editorial control by requiring carriage of HD public TV under STELA, but the appeals court found public TV to be content neutral and the case unlikely to succeed on the merits. Opposition filings at the Supreme Court are due Nov. 16, with replies due Nov. 26. The court will consider the petition during its Jan. 6 conference. Dish didn’t comment.

According to Dish, the U.S. Court of Appeals for the D.C. Circuit and the 9th Circuit have used different standards of First Amendment scrutiny for satellite TV. Dish said the D.C. Circuit in Time Warner Entertainment v. FCC applied a rational-based level of scrutiny, akin to the treatment of broadcast TV, generally allowing for more government involvement due to the use of public airwaves. The company said the 9th Circuit used an intermediate scrutiny, similar to cable. Dish said Supreme Court review is needed to resolve the discrepancies.

Dish also pushes for a strict scrutiny approach, a level of First Amendment scrutiny usually reserved for traditional media, like newspapers and billboards. While it’s common to point to disagreement among the lower courts as a need for Supreme Court review, it’s less common to say both the lower courts were wrong, said a satellite industry lawyer. Giving DBS a strict scrutiny approach would severely limit congress’ ability to regulate the industry, said the lawyer.

Section 207 doesn’t directly apply to DirecTV because the provision only applied to DBS companies that don’t have private agreement with public TV. Still, a high court review could change the way all DBS providers are considered in the eyes of the law, said an industry lawyer. DirecTV declined to comment.

The Supreme Court should “at minimum” hold up the decision to take up Dish’s request until it rules on Fox, “which poses similar issues in the context of over-the-air broadcasting,” said Dish in its filing. As part of Fox, the Supreme Court may revisit the Red Lion ruling that upheld broadcast regulation because of the scarcity of spectrum, though that’s not expected to be the focus (CD June 28 p1).

The Dish filing is a calculated risk, said Jonathan Albano, a First Amendment lawyer at Bingham McCutchen. “There should be a ‘careful what you wish for’ attitude,” when seeking Supreme Court review, he said. Dish must have decided that if a Supreme Court upholds the 9th Circuit decision, it won’t make things any worse and a review could add some regulatory certainty to the business environment, he said.

Generally, requests such as Dish’s face tough odds, said Patrick Strawbridge, an appellate lawyer also at Bingham who previously clerked in the Supreme Court. Typically, the court receives 6,000 to 10,000 requests for review each year, while actually hearing between 70 and 90 cases, said Strawbridge. With few exceptions, the decision to hear the case requires at least four justices voting in favor, he said.

"Congress included this provision because DISH Network was blatantly discriminating against local public television stations and refusing to carry them in HD in markets where they were carrying all of the commercial broadcasters,” Association of Public TV Stations General Counsel Lonna Thompson said in a written statement. “Unfortunately, DISH prefers to litigate this law rather than giving their customers what they want and deserve—high-quality public television programming. Congress listened to the American people on this critical issue and acted appropriately. The public depends upon DISH complying with the must-carry law as local public television stations do not have legal retransmission negotiation rights. DISH’s profound reluctance to do so contrasts starkly with DIRECTV’s voluntary agreement, now four years old, with APTS and PBS to carry the HD signal of every public television station in markets DIRECTV serves in local HD.”