Plea for delay on DISH satellite TV ban
on Aug 18, 2006 at 2:04 pm
The DISH satellite television network on Thursday asked Supreme Court Justice Clarence Thomas to delay a federal appeals court order that would shut down any re-broadcast by that network of copyrighted TV shows from traditional broadcast networks. EchoStar Communications Corp., which operates the DISH Network, asked for a stay until it can pursue an appeal to the Supreme Court.
“The number of EchoStar subscribers affected by this looming injunction is staggering,” EchoStar said in its application. “It reaches into the hundreds of thousands of individual consumers.” Even though many of them would be eligible to continue getting the programming, they would be blocked, too, under the injunction, and EchoStar might never be able to get them back as subscribers, it argued.
When the coming appeal is filed, the network said, it will pose the question of whether federal law governing satellite carriers of copyrighted programming “strips district courts of their traditional discretion to fashion equitable relief tailored to the particular circumstances of a case.” (The application in EchoStar Communications Corp., et al., v. CBS Broadcasting, Inc., et al., is docketed as 06-A-198. It can be found here. The appendix, including the Eleventh Circuit Court ruling at issue, is here.
EchoStar has settled its legal differences with CBS and with affiliates of ABC and NBC but continues to be in dispute with the Fox network, its affiliates and with the National Association of Broadcasters. But the application indicated that the injunction EchoStar now faces is so sweeping that it would nullify the settlement agreements, since it would bar EchoStar from engaging in any broadcast of what is called “distant network signal programming.” Thus, the DISH Network viewers who stand to benefit from the settlement deals would not be able to do so, the application indicated.
The case involves the scope of two federal laws dealing with “distant network signals” — the Satellite Home Viewer Act and the Satellite Home Viewer Improvement Act. Those laws grant a compulsory license to satellite broadcasters to retransmit copyrighted network TV programs to households that are out of reach of normal antennas, because the subscribers are in areas — often, rural areas — where network signals would be weak.
At issue at this stage of this eight-year-old case is whether those laws require a permanent injunction against any distant network signal programming by a satellite carrier if it has been found to have engaged in a pattern of broadcasting to subscribers who are not eligible for the service because they actually are served by the on-air networks or stations. A District Court fashioned a narrower injunction but the Eleventh Circuit in May overturned that order, concluding that the laws require a permanent nationwide ban on any further programming of this type by EchoStar.
In mandating a permanent injunction on secondary transmissions for a repeat violator, the Circuit Court said, “Congress removed courts’ discretion.” It rejected an argument by EchoStar that the Supreme Court’s decision last Term in eBay v. MercExchange (05-130, decided May 15), reaffirming District Court discretion regarding patent case injunctions, should govern this case. “Because eBay said nothing of Congress’s ability to remove unambiguously courts’ traditional equitable discretion, the opinion has no bearing on this case,” the Circuit Court said.
