EchoStar Communications Corp. filed a class-action lawsuit
in a federal court in Colorado last week against the top four broadcast networks, their
owned-and-operated stations and their affiliates.
The direct-broadcast satellite company wants the courts to
do what Congress and the Federal Communications Commission have not yet been able to --
come up with a clear, uniform standard to determine which consumers are eligible to
receive distant-network signals over satellite.
EchoStar named CBS Corp., Fox Broadcasting Co., National
Broadcasting Co. and ABC Inc. as plaintiffs in the suit. At press time last week, none of
the broadcasters would comment, pending review of the suit by their attorneys.
"This is not intended to be an adversarial
process," insisted David Moskowitz, general counsel and vice president of EchoStar,
adding that the company was not seeking monetary damages from the broadcasters.
Instead, Moskowitz said, both the DBS industry and the
broadcasters would benefit from a consistent decision, so that "everyone knows what
the rules are."
EchoStar is asking the court to confirm that it has the
right to sell its distant feeds without doing a signal measurement on every home. It wants
the predictive maps that are used to determine distant-network-service eligibility to take
into account obstacles like trees, hills and buildings, and not just distance from a
Moskowitz said a judge in Colorado may be more sympathetic
to EchoStar's point of view on the matter because that judge would readily understand
how television-signal availability in mountainous areas is not always accurately portrayed
on the maps that are currently in use.
EchoStar wants territories designated to be within the
grade-B contour of signals to ensure that 95 percent of the locations are able to receive
signals 95 percent of the time, with a 50 percent accuracy level -- the so-called 95-95-50
model. A "50-50-50" model is used in mapping systems recommended by
EchoStar chose to include all of the broadcasters and their
affiliates in the suit because it wants a nationwide resolution to the issue. Moskowitz
said EchoStar has received threats from a number of broadcasters across the country, and
each could have taken EchoStar to trial separately over copyright infringement.
PrimeTime 24 which, until this summer, had
distributed distant-network feeds to EchoStar, and which still supplies them to DirecTv
Inc. and some C-band programming packagers -- has been sued by broadcasters in several
jurisdictions for selling signals to ineligible consumers. A North Carolina court order
prohibited PT24 from delivering its distant-network feeds to Raleigh residents.
And a court in Miami has issued a preliminary injunction
against PT24 to "served households" on a national basis. Because a permanent
injunction could mean a loss of network feeds for hundreds of thousands of DBS customers,
the case gained the attention of the consumer press and Congress, but it has not yet been
The FCC has taken comments on the matter, and it is
expected to issue a rulemaking on the topic in February.
After the Miami decision was handed down, EchoStar
terminated its contract with PT24 and began distributing its own distant-network feeds.
PT24 has since filed suit against EchoStar for breach of contract.
Moskowitz said he does not know when EchoStar's case
against the broadcasters will go to trial, or whether the company can reach a settlement
with the broadcasters first.