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The
satellite industry contends that satellite companies
provide a service similar to that of
magazine/newspaper editors, and they have the right
to select (and exclude) the content they deliver on
their privately-owned systems. “SHVIA’s
carry-one, carry-all requirement is a conditional,
speech-triggered (and thus content-based)
restriction,” that violates the platform
providers’ First Amendment right to freedom of
speech and press. Further, the satellite
industry believes that Congress abused its Copyright
power “by conditioning receipt of the statutory
license upon acceptance of the carry-one, carry-all
burden.” The satellite industry asked the
Court to find that the "carry one, carry
all" provision of SHVIA, and the FCC
regulations which implement it, violate the U.S.
Constitution, and to therefore set aside the FCC
Final Order.
On
January 1, 2002, DIRECTV and EchoStar's Dish Network
each made over 250 local channels available to
customers in markets where local-into-local is
available, in compliance with the satellite
must-carry requirement of the 1999 Satellite Home
Viewer Improvement Act (SHVIA). The statute
(47 U.S.C. §338) mandates that once a satellite
carrier exercises its editorial discretion to
provide its subscribers with the programming of any
local television broadcast station within that
station's local market, the satellite carrier
"shall carry upon request the signals of all
television broadcast stations located within that
local market."
The
SBCA, EchoStar and DIRECTV, and supporting
programmer companies challenged the “carry one,
carry all” provision in federal court last year.
In September 2000, the SBCA, EchoStar and DIRECTV,
and supporting programmer companies challenged
the “carry one, carry all” provision in the
District Court for the Eastern District of Virginia
(Alexandria, VA). In June 2001, U.S. District
Court Judge Gerald Bruce Lee granted the government
and broadcasters’ Motion to Dismiss the lawsuit.
The satellite industry subsequently appealed
that decision to the Fourth Circuit Court of
Appeals (Richmond, VA), which was combined with
DIRECTV's request for review of the Final Order of
the Federal Communications Commission (FCC) that
implements the must-carry provision. In a
December 2001 ruling, the Fourth Circuit Court of
Appeals upheld the District Court’s decision that
the provision does not violate the constitutional
rights of satellite providers. On March 7,
2002, the SBCA and EchoStar filed a petition for a writ of
certiorari to the United States Supreme Court.
The U.S. Supreme Court denied the petition on June
19, 2002.
Satellite
Industry Filings in the Constitutional Challenge to
Satellite Must-Carry
Court
Decisions
- Track
the Appeal at the U.S. Supreme Court (Docket No.
01-1332)
- Decision
of the U.S. Court of Appeals for the Fourth
Circuit- December 7, 2001
- Decision
of
the District Court for the Eastern District of
Virginia- June 19, 2001
FCC
Proceeding
In
January 2002, the National Association of
Broadcasters (NAB) and the Association of Local
Television Stations (ALTV) filed a petition for
rulemaking. In their January 4, 2002 filing, the NAB
and ALTV asked the Commission to modify or clarify
the rules concerning carriage of local television
broadcast stations by satellite carriers.
Specifically, the NAB and ALTV are asking the
Commission to specify that carriage of some local
stations in a manner that requires the subscriber to
use a different dish antenna from the antenna used
to receive other local stations is discriminatory
and does not comply with the SHVIA or the
Commission's orders and rules.
This
very stipulation was considered and subsequently
rejected when SHVIA was being drafted, and is not
part of the law that Congress passed. Further, the
Commission has also ruled against such a provision.
In September, the FCC ruled that DBS operators could
not require customers to pay for additional
equipment to receive certain local channels, but did
not say that a DBS provider could not offer the
stations from different orbital positions and
provide customers with a new dish to receive some
local channels at no cost to the consumer.
FCC
Decisions and Rulings
SBCA
Filings
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