Dish Distant-Signal Challenge Falls Short

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Charlie Ergen's latest attempt to blast away the legal cement that bonds broadcast networks to their affiliates came to an end last week in the Supreme Court.

Ergen, EchoStar's chairman and CEO, challenged a federal law that regulates access to distant-network signals by an EchoStar satellite-TV subscriber.

Generally, the law says that any home-dish subscriber who can receive network programming from a local station with an off-air antenna is not entitled to receive distant networks from EchoStar.

EchoStar asked the Supreme Court to eliminate the restriction as a violation of the First Amendment, arguing that the law illegally favored the speech of local network TV stations over the speech of distant stations.

Without comment, the Supreme Court refused to hear the case. Usually, at least four members of the nine-member tribunal must vote to hear a case.

EchoStar had appealed a ruling by a panel of the U.S. Court of Appeals for the 11th Circuit, which held that EchoStar's First Amendment argument was "wholly without merit."

Under the Satellite Home Viewer Act of 1988, Congress award satellite carriers a compulsory license to provide distant network signals to so-called unserved households, which were expected to be a small percentage of all TV households.

EchoStar wanted the courts to say that the compulsory license should allow the distribution of any network signal to any household regardless of location — or, put another way, to make every TV station in the country a superstation.

TIME SHIFTING

Had the Supreme Court taken EchoStar's case and sided with the company, the DBS provider would have been in position to offer network programming from numerous distant markets to its subscribers. That's an attractive offering, as it affords access to network primetime and sports programming on a time-shifted basis.

The National Association of Broadcasters has been fighting the satellite industry in court for years, in an effort to protect local TV markets from an invasion of distant-network signals.

Local network affiliates fear that distant-network importation by satellite carriers would shrink their audiences and cut into advertising revenue if the problem is left unchecked.

"NAB is pleased the Supreme Court has refused to consider EchoStar's frivolous First Amendment challenge," said NAB spokesman Dennis Wharton. "The high court's action enhances the concept of localism in the delivery of free, over-the-air television."

EchoStar issued a statement expressing disappointment in the high court's action, claiming the law restricts viewer choice.

"While every consumer in America has the right to purchase and read a newspaper printed outside the consumer's hometown, consumers are being prevented by an antiquated law from watching local news from other cities via satellite television," EchoStar said.

Although thousands of appeals land at the Supreme Court every year, about 100 cases are actually heard.

EchoStar is awaiting word on another case pending before the high court: a challenge to the 1999 law that requires DBS carriage of all local TV signals in markets where a satellite carrier has elected to carry any.

Last December, a panel from the U.S. Court of Appeals for the 4th Circuit upheld the law as consistent with the First Amendment.

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