# Distant Networks: 9/12 Settlement Details and other court filings ...



## James Long (Apr 17, 2003)

From FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/12/06 1006 NOTICE of objection to Fox's proposed order attached as exhibit B to its motion for entry of judgment by EchoStar (ss) [Entry date 09/14/06]

9/12/06 1007 RESPONSE to [997-1] Order to Show Cause by EchoStar (ss) [Entry date 09/14/06]

9/12/06 1007 OPPOSITION by EchoStar to [1000-1] motion for entry of injunction (ss) [Entry date 09/14/06]

9/12/06 1007 REQUEST by EchoStar for hearing on implementation of the Mandate (ss) [Entry date 09/14/06]

9/12/06 1008 JOINT STIPULATION by ABC Television, CBS Television, FBC Television, NBC Television, EchoStar, EchoStar Satellite, Direct sat Corp., Satellite Operating In Re: consent judgment and approve settlement agreement (ss) [Entry date 09/14/06]

9/12/06 1009 OPPOSITION by ABC Television, CBS Television, FBC Television, NBC Television to [1000-1] motion for entry of injunction (ss) [Entry date 09/14/06]

9/12/06 1009 RESPONSE to [997-1] Order to Show Cause by ABC Television, CBS Television, FBC Television, NBC Television (ss) [Entry date 09/14/06]

9/13/06 1010 ORDER Requiring Expedited Reply Reply to Response to Motion reset to 9/21/06 for [1000-1] motion for entry of injunction (Signed by Judge William P. Dimitrouleas on 9/13/06) [EOD Date: 9/14/06] (ss) [Entry date 09/14/06]

[END OF DOCKET: 1:98cv2651]​
The most important line "*ORDER Requiring Expedited Reply Reply to Response to Motion reset to 9/21/06*" ... Another week delay!


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## Geronimo (Mar 23, 2002)

James Long said:


> The most important line "*ORDER Requiring Expedited Reply Reply to Response to Motion reset to 9/21/06*" ... Another week delay!


good catch! I am curious as to why that was not reported anywhere.


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## James Long (Apr 17, 2003)

Nobody is standing on the courthouse steps following this case.
PACER updates are generally done next day.
Unless someone offers apress release we have to poke around for news.

FYI: The text of the filings is not available on PACER.


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## minnow (Apr 26, 2002)

Thank you James for your time in keeping us all abreast on the latest court actions. I certainly appreciate your efforts !


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## joblo (Dec 11, 2003)

James Long said:


> FYI: The text of the filings is not available on PACER.


Does that mean not available yet or not available ever?

The gist of the response I got back re the Fox motion was:

1. It's only one side and they want opposition arguments.

2. Fox only cites two cases, neither of them recent.

3. It's "so short: Either they think they have a slam dunk or they know that they don't and didn't bother plowing a lot of time and effort into it."

Ya gotta love lawyers........


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## Greg Bimson (May 5, 2003)

Yes, but in the same sense, did Echostar's lawyers even offer any case law in their show cause motion? That is why it may be a slam dunk?

When you get the:
"Don't cut us off, because legitimate subscribers may be impacted, and because we got to flout the law from the point DirecTV had to stop in 1999 until at least 2002, we could do anything we want" but "an injunction may really benefit our competitor, DirecTV" speech, without any case law to back up the assertion the settlement should be offered is a truly horrible way to defend the show cause suit.

Which leads me to question if Echostar actually had any case law in their show cause argument. If not, this injunction will hit all networks.


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## joblo (Dec 11, 2003)

The mainstream press isn't likely to report case citations. The only way to get that sort of detail is to read the brief or some legal blog that's covering the case.

I know some bloggers that are following the DVR case, but not the distants case. Do you?


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## James Long (Apr 17, 2003)

joblo said:


> Does that mean not available yet or not available ever?


"Not yet." Although that moment has passed. 

Filing 1006 ... A simple focused complaint by Echostar that Fox wants a total ban on distants even though all other parties have settled. It does note that Fox's 25 stations represent 5% of the stations originally at issue and claims that Fox's reasons are anti-competitive. They also complain that Fox has no standing to seek an injunction on behalf of settling plantiffs. (4 pages including notice of service.)

Filing 1007 ... The big one from Echostar - 42 pages with exhibits on why the injunction should not be issued. The first paragraph sets the tone: (emphasis and error are as in filed text)


> The Eleventh Circuit's August 15, 2005 mandate does *not* direct this Court to enter, nor entitle Fox Broadcasting Company ("Fox") to a nationwide permanent injuction, which would cause EchoStar Communications Corporation ("EchoStar") to disconnect distant network programming to over 800,000 subscribers. _See_ 17 U.S.C. 119(a)(7)(B)(i) ("if the pattern or practice has been carried out on a substantially nationwide basis, the court shall order a permanent injuction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of *any primary network station affiliated with the same network* . . .") (emphasis added):


The filing further goes on to say that even IF the mandate directs the court to enter the nationwide injuction the injuction should not be entered because of the settlement with nearly 800 stations (95%).

Then they move on to accusing Fox of seeking the injuction not as a remedy for protecting copyrights but for anticompetitive reasons tied to the common ownership with DirecTV saying: "Fox and DirecTV have engaged in a pattern of predatory behavior and ultimately seek to eliminate competitive choice for hundreds of thousands of households in violation of federal antitrust laws."

In general, E*'s filing is attemting to limit the scope of the injuction to just customers within the 25 Fox markets and even then questions if a "pattern or practice" was proven against those customers.

E* also requests a hearing on the matter.

This filing also suggests that it would take EchoStar 120 business days to comply in an orderly and non-abrupt fashion with the injuction. Also there is a statement that says that E* can only send enough commands to shut off between 6,000 and 8,000 subscribers per day (which would take 120 days just to send the commands over the network) without interfering with normal authorizations/deauthorizations. A third attached statement requests 120 business days for E* to install alternate dishes and OTA antennas.

Filing 1008 ... This is the settlement filing. The joint settlement is attached to this post. if accepted, E* is looking at turning off distants to those no longer qualified no earlier than December 15th, 2006 and no later than December 31st, 2006. This filing also includes the proposed customer letter that is attached.

Filing 1009 ... This is the affilitates' opposition to Fox and support of the settlement. Not much more to be said, except it is coming from the network affilitates.

Filing 1010 ... This is the order - different than I expected, it is an order telling Fox they have until next Thursday to reply to the objections raised.


joblo said:


> Ya gotta love lawyers........


Only because they will sue you if you don't love them.


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## James Long (Apr 17, 2003)

If you are looking for the now closed previous threads on the issue (for background) here they are:
EchoStar Settles Nine Year Litigation With ABC, NBC, CBS and Fox Affiliates (maybe)
August 28th-September 15th

FOX request for Distant Networks Injunction (NO INJUNCTION ISSUED)
September 1st/2nd

EchoStar Rejected by High Court Justice, Must Halt Distant Networks
August 22nd-September 1st

EchoStar Loses Distant Network Appeal
July 26th-August 8th

I've attached the text of E*'s objection. Enjoy!


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## joblo (Dec 11, 2003)

Thanks, James! 

Btw, you might want to include a link to the old thread at the top of this one. My first post in this thread follows stuff from that thread.


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## James Long (Apr 17, 2003)

That would be in the post edited two minutes before your post. 

I'd considered doing the split when I got the PACER information, but until I got the full text it wasn't really news enough to break the thread. Now we have new developments it's time to change the sticky.


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## Mike D-CO5 (Mar 12, 2003)

After reading all of that I can conclude that Dish has a very good case in Not having the injunction placed on the distant nets. They make a very good point that many others and myself have made , that Fox and Directv are working in an anti -competitive move to be the sole monopoly for distant networks. It also doesn't sound like Fox has any ground to stand on since they dropped their counter suit like the other networks did. The court would be stupid to put an injunction on any network other than the 25 areas that are have Fox owned stations by the parent network. When all have settled except the 25 Fox owned stations , it makes no sense to piss off all of the distant network customers to please Fox and Directv. 

Directv - There is good tv, Better tv and Turd tv.


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## cj9788 (May 14, 2003)

Any one have any idea how this will affect things:

_ 9/12/06 *1008 JOINT STIPULATION by ABC Television, CBS Television, FBC Television, NBC Television, EchoStar, EchoStar Satellite, Direct sat Corp., Satellite Operating In Re: consent judgment and approve settlement agreement* (ss) [Entry date 09/14/06]

9/12/06 1009 *OPPOSITION by ABC Television, CBS Television, FBC Television, NBC Television to [1000-1] motion for entry of injunction *(ss) [Entry date 09/14/06]

9/12/06 1009 RESPONSE to [997-1] Order to Show Cause by ABC Television, CBS Television, FBC Television, NBC Television (ss) [Entry date 09/14/06]_

I may have changed my opinion just a little bit on FOX networks refusal to settle only because the joint stipulation to approve the settlement includes D*. If they the other networks can show cause to approve the settlement could the judge force fox to accept the terms?


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## Geronimo (Mar 23, 2002)

joblo said:


> The mainstream press isn't likely to report case citations. The only way to get that sort of detail is to read the brief or some legal blog that's covering the case.
> 
> I know some bloggers that are following the DVR case, but not the distants case. Do you?


actually they HAVe been covering this case. Not necessarily the mainstream press but certainly the portion of it related to the industry.


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## Geronimo (Mar 23, 2002)

thanks Mr. Long.

I am a tad confused though. Does this mean that what he had referred to as an "extension" for DISH is really an oder for FOX to show cause by that date or am I mixing things up/


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## joblo (Dec 11, 2003)

It looks like the 1010 order specifically requests Fox to respond to the 1009 objections of the other plaintiffs rather than to E*. Are 1009 filings available, James?


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## Greg Bimson (May 5, 2003)

Just to clarify Echostar's tone on Filing 1007, all it is saying is that the settlement should trump the mandatory need for the judge to issue a permanent injunction. And of course, as we've seen before, Fox's belief is that because Dish Network was found guilty of a pattern or practice of willful infringement against all four networks, that the judge must order an injunction against the delivery of the big four distant networks.

So, we are simply waiting for the judge to answer the question, "Which takes precedence, the mandatory penalty of permanent injunction of the distant networks, or the settlement?"


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## lacruz (Feb 24, 2005)

From reading Dish's proposed customer letter (in James' attachments above), it looks like that even if they DO shut off distants, those of us with permission from our local stations (waivers) would still be able to receive distants. I find it hard to believe that Dish would make such a glaring error in its submission to the Court. 

"The court required DISH Network to stop delivering distant network television signals to households that are considered to be "served" by their local stations, unless they have permission---called a waiver---from all of the nearby affected stations that are affiliated with the same network."


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## James Long (Apr 17, 2003)

cj9788,

The reference to DirectSat is to a part of EchoStar, not DirecTV. DirectSat held one of the underlying licenses that E* purchased in order to get all of their licenses on 119° and 110°.

Geronimo,

The "Dish wants 120 business days to comply" part of the story hit the press, but the point that the conclusion of the case was delayed in order to allow Fox to respond to the objections has not been reported anywhere I've seen. Apparently the judge finds the arguments made by the settling parties somewhat compelling or he would have simply ruled against E* and issued the injuction.

Setting a deadline of Sept 21st for Fox to respond gives time for the judge to think and confer as well as give Fox one more time to "speak now or forever hold your peace". No later complaints of "we didn't get to reply to their comments and accusations!"

The "order" does seem to be directed at Fox, but also serves to extend the case for another week while the judge sorts things out.

Joblo,

1009 filing attached. I hope you find, as I did, that it isn't much different than the other opinions. Although on second look there are some references to times where a district court ignored a mandate due to subsequent events. (There were a lot of pages in those filings for a quick skim.)


Greg Bimson said:


> So, we are simply waiting for the judge to answer the question, "Which takes precedence, the mandatory penalty of permanent injunction of the distant networks, or the settlement?"


Or deeper questions. It all depends on what the judge relies on to do what he is going to do (whatever that is). Have "subsequent events" trumped the appeals court's mandate? Every party to this case except Fox seems to believe so - and there is precedent for a district court ignoring a mandate due to "subsequent events" (page 11 of the network's response attached).

Questions that won't be answered until at least next Friday (give Judge Dimitrouleas a day to look over Fox's expected reply to the opposition to their petition).


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## James Long (Apr 17, 2003)

lacruz said:


> From reading Dish's proposed customer letter (in James' attachments above), it looks like that even if they DO shut off distants, those of us with permission from our local stations (waivers) would still be able to receive distants. I find it hard to believe that Dish would make such a glaring error in its submission to the Court.


It isn't the only one ... but I'd consider it minor, not glaring.

I don't see it as promising distants if one can get waivers (the proposed letter is going to customers losing distants, not keeping them). But it does make it sound like "if you had a waiver you would have distants" - which is not true.

I would not consider that line as a reason to decline E*'s request to put aside issuing an injuction. Unless the judge wants to rant and rave "you still don't get it, do you!!!" while passing judgement. 

The more I re-read the arguments and think about the week delay for Fox to respond the more I feel confident that this judge is going to side with the settling parties. Although this does give Fox "the last word" (unless time is given for a reply to the reply to opposition comments to Fox's petition. Fox may have been better off just replying to the judge's request for reasons not to issue an injuction instead of petitioning for an action and turning the focus on their request instead of the main issue.


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## Mike D-CO5 (Mar 12, 2003)

I think the judge will rule for Dish and against Fox . THe judge will do what is best for the majority of the people in the case: Dish /Abc, Cbs,Nbc. Fox is simply playing politics to get customers for Directv and it is shameless and very obvious to everyone here what they are doing. When all is said and done I still think it is always better to rule on the side of the consumer, or the little guy, vs the big corporations like Fox and Directv.


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## Geronimo (Mar 23, 2002)

I will take the answer to my question to be yes. Thanks. Let's see how Fox responds and what the court rules. All of the analysis in the press points to either no injuction or one limited to Fox but it in fairness the conventional wisdom is not always right.


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## James Long (Apr 17, 2003)

"Order to show cause" sounds like Fox is on the hot seat and ready to be punished. An "order to show cause" was what the court issued giving E* until the 12th to prove that the injunction should not be issued. (_"shall cause no later than September 12, 2006, why the court should not enter an immediate permanent injunction"_)

The order against Fox is an "Order Requiring Expedited Reply". They ARE being ordered to file a reply and have been given the deadline but it's not the same level. (_"shall file a Reply to Opposition to Fox's Motion for Entry of Injuction no later than September 21, 2006"_)

I suppose the judge could hold Fox in contempt if they failed to follow the judge's order - or the judge could make a decision not to Fox's liking if they failed to defend their position - but the proof level is different. All Fox has to do is reply, not 'show cause'. Although I do believe that Fox will have to make a case for a national injunction or one will not be issued.

I see several oddities in the filings ... hopefully it can be made clear that IF an injunction preventing Fox from being transmitted as a distant in their 25 markets is placed that it is limited to JUST Fox in JUST those markets. In some places it seems that the writing isn't entirely clear and the parties accept that the injuction could be against all networks in the 25 markets. I don't believe that is what the settling parties want.


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## Geronimo (Mar 23, 2002)

The court would be unlikely to issuea show cause oder against the plaintiff. a show cause order asks for a party to show cause (hence the name) why some action should not be taken and is therefore usually against a defendant. An order requesting an expedited reply is the most that one could expect in this matter. After all no one has to my knowledge requested that the court order Fox to do anything.

I would agree that all of the parties have accepted the idea that the court COULD rule against Echostar. But I am not sure that I would read that much into that.

FWIW it does give Fox one more opportunity to make a case for what it has been calling for all along. It does not look like a promising development for Fox but we will see.


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## BobS (Jun 23, 2006)

DNS (as we now know it) will be history for E* - the Court of Appeals heard all of E*'s tripe and it wasn't even close. If Judge D. does anything but issue the injunction, Atlanta will slap him silly. All of the paper flying is just eyewash for a Congressional lobbying effort. That is were the fun begins.

Congress: DBS providers must do X.
E*: Screw you!
Congress: Ok, well would you be willing to do Y?

So if Congress folds on this issue it looks like Charlie has them by the balls. The only possible solution is some fig leaf that gets concessions from E* such as complete LIL/additional channels/lower prices. And you can bet that new legislation will have criminal penalties attached so Charlie has to think of the old frog march before future indiscretions.


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## James Long (Apr 17, 2003)

Honestly, if Judge Dimitrouleas thought there was no option but to issue an injuction one would have been issued on August 28th. Instead he gave E* two full weeks plus a day (10 working days thanks to Labor Day) to make one last plea to stop the injuction. Now he's given a week (5 business days) to the only plantiff left to reply to that plea. He has left the door open to not issuing the injunction.

Hopefully you will read some of the legal arguments attached to this thread. There is a lot there. It should be an interesting decision which I'm sure will be appealed.

Also read the Joint Settlement and Proposed Consent Judgement to see how, within 17 USC 119, E* plans on offering distants in the future.


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## cj9788 (May 14, 2003)

From what I have read if the settlement is approved we will not have to pay for lil thru the end of the year. Also the only folks who will lose DNS are the ones who do not pass decisonmark audits of E*'s dns customers. So if you are truly elgible for DNS you will keep them. The only folks loseing DNS will be those in grade a and b areas with out waivers. Also grandfathersubs must be switched off by dec 15 and no later than dec 31st. Now are those grandfathered from SHIVA which was extended by shevra or does it include those in white areas with lil and dns at the end of 2004?


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## jacmyoung (Sep 9, 2006)

This really has put FOX in a very awkward position, if they relent and go along with the settling parties, they lose their argument, if they continue their position, they will be practically telling the judge he does not know what he is doing.


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## James Long (Apr 17, 2003)

cj9788 said:


> From what I have read if the settlement is approved we will not have to pay for lil thru the end of the year. Also the only folks who will lose DNS are the ones who do not pass decisonmark audits of E*'s dns customers. So if you are truly elgible for DNS you will keep them. The only folks loseing DNS will be those in grade a and b areas with out waivers. Also grandfathersubs must be switched off by dec 15 and no later than dec 31st. Now are those grandfathered from SHIVA which was extended by shevra or does it include those in white areas with lil and dns at the end of 2004?


The new rules for distants (above 17 USC 119, beyond settlement if accepted by the court) include:If local in local service is offered in your market, E* is REQUIRED to make those locals available to distant subs - supplying the equipment/installation needed at their cost. For those in current LIL markets who do not subscribe to their locals that new service will be free through the end of the year and then E* _may_ charge for the LIL service.

As new LIL markets are added subscribers with distants will get any equipment/installation needed to receive locals at E*'s cost and will get LIL service free for two months. After the two months E* _may_ charge for the LIL service. (This is the first two months E* offers LILs, not the first two months the customer accepts LILs.)​Bottom line: You CANNOT have distants without locals if your market has it's own locals._Also:_
E* will have at least 175 LIL markets by December 31st (not a hard goal with the current number of uplinked markets waiting in the wings).

Subscribers who no longer qualify for distants will lose the service no earlier than 12:01am on December 15th but no later than 12:01am on December 31st.

As of January 1st (2007) subscribers will NOT be able to get distants from a time zone that airs programming before their own local stations. (Which means the east coasters can keep west coast distants but west coasters cannot keep east coast distants.) This doesn't apply to subscribers in Alaska and Hawaii.

ALL RV/Commercial customers will be independently audited based on E*'s records and will be shut off no earlier than December 15th based on that audit.

The distant subscriber list will be subject to independent audit annually.

Subscribers in LIL markets will NOT be able to add distants. All new subscriptions to distants will be independently qualified or audited.​The "grandfathering" noted in the Consent Judgement as ending after December 15th, 2006, is noted as 17 USC 119 (e) --- that's the section that allows subscribers who do not now receive a Grade A signal if they had service terminated between July 11th 1998 and October 31st 1999 or were subscribers on October 31st 1999. This is not the section that allows people to keep distants and locals.All analog distants will end February 17, 2009 - the date that the FCC has set for stations to turn off their analog signals.​Kind of a moot point since there won't be any analog stations to BE analog distants.


jacmyoung said:


> This really has put FOX in a very awkward position, if they relent and go along with the settling parties, they lose their argument, if they continue their position, they will be practically telling the judge he does not know what he is doing.


The way the settlement and Consent Judgement are worded they completely exclude Fox. There is no simple way for them to sign on to the settlement - the settlement would have to be rewritten or (more likely) a separate settlement would have to be written covering just Fox distants into Fox's 25 markets.

At this point we don't know what the judge is doing, neither does Fox. It is a hopeful sign for everyone except Fox that the court has not yet issued an injuction but Fox's further disagreement is an expected reply - not an insult to the judge.


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## cj9788 (May 14, 2003)

James if I allready sub to LIL and DNS and did so before SHVERA was passed will I keep my DNS? My address is in a true white area. I know that no new subs in my area can get DNS because LIL is available. If LIL was not available the address would qualify for DNS.


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## joblo (Dec 11, 2003)

James Long said:


> Joblo,
> 1009 filing attached. I hope you find, as I did, that it isn't much different than the other opinions.


Thanks, James!

Actually, I found it far more compelling and enlightening than E*'s argument. More logical, concise, to the point, and generally better laid out. But that could be just a matter of style. E*'s arguments, with their *boldface*, _italics_, CAP LETTERS, and so on, always strike me as histrionic and overblown. ("Oh, please, _please, *PLEASE*_, don't punish our *800,000* subscribers&#8230;")

But I've been told the parties are under a gag order not to discuss details of the case publicly, so I can't help but suspect that E* does this not so much for the benefit of the judge, but rather so that its legal filings, which are public record, can double as press releases. All a reporter has to do is skim for the boldface type, and the story practically writes itself.



> Questions that won't be answered until at least next Friday (give Judge Dimitrouleas a day to look over Fox's expected reply to the opposition to their petition).


A day?!?!? Wow, you're optimistic!

This isn't Judge Judy here. This judge can't just come out and say, "you're right and you're full of bull, case closed!" He's got to research all the case citations, and than craft a substantive legal opinion that will stand up on appeal. He's already been slapped once by the appeals court, he's not going to want that to happen again.

But let's move on to the new DNS rules, because I think these will come into effect one way or another, if not through the courts, then through the Congress. (And if Congress has to get involved, they'll probably be applied to D* as well.)



James Long said:


> If local in local service is offered in your market, E* is REQUIRED to make those locals available to distant subs - supplying the equipment/installation needed at their cost.


i.e. Free wing dishes, Superdishes, etc., for DNS subs, as necessary.



> Subscribers who no longer qualify for distants will lose the service no earlier than 12:01am on December 15th but no later than 12:01am on December 31st.


 i.e. Illegal service can be continued until after the election.



> Subscribers in LIL markets will NOT be able to add distants.


This is already true under the current statute.



> The grandfathering noted in the Consent Judgement as ending before December 15th, 2006, is noted as 17 USC 119 (e)


No, this ends _after_ Dec. 15, but before the end of the year. Basically, any DNS subscriber who was forced to choose between distants and locals will have that choice reversed and lose their distants -- unless they get a waiver.



> It is a hopeful sign for everyone except Fox that the court has not yet issued an injuction but Fox's further disagreement is an expected reply - not an insult to the judge.


I really think people are reading way too much into the delays here, which strike me as perfunctory.

After all, the litigation has gone on for 8 years, and E* is now facing what amounts to a death penalty as regards the particular service at issue, DNS. Two weeks to show cause -- i.e. if there's any potential reason or factor that may not yet have been considered -- hardly seems unreasonable. And in this case, the judge had been already been informed that there was a settlement, so he knew there was cause.

Likewise, I've been advised that the motioning partly always gets the last word when their motion is opposed, so the "reply to response" order was also routine.

As it happens, I think Fox's motion will be denied, but that's based on the strength of the networks' opposing arguments, not anything the judge has done. And I might change my mind after I see Fox's reply -- assuming they produce one rather than simply withdrawing the motion. And of course, I'm not a lawyer, so I might also change my mind after I have a chance to discuss the arguments further with people who are.


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## James Long (Apr 17, 2003)

cj9788 said:


> James if I allready sub to LIL and DNS and did so before SHVERA was passed will I keep my DNS? My address is in a true white area. I know that no new subs in my area can get DNS because LIL is available. If LIL was not available the address would qualify for DNS.


It is a Magic 8 Ball moment: _All signs point to Yes!_

The grandfathering E* is discarding is the old October 1999 subscribers - a list that E* has not been able to prove to the courts anyways. To the extent that the 2004 law allows for people with distants and locals to keep both (your apparent situation) there is no further restriction in the [Proposed] Consent Judgement.


joblo said:


> > Questions that won't be answered until at least next Friday (give Judge Dimitrouleas a day to look over Fox's expected reply to the opposition to their petition).
> 
> 
> A day?!?!? Wow, you're optimistic!


I said *at least*. I'm with you ... I expect that people will be here saying "well, the deadline passed - will we keep distants?" on Thursday ... they need to be patient!


joblo said:


> > Subscribers who no longer qualify for distants will lose the service no earlier than 12:01am on December 15th but no later than 12:01am on December 31st.
> 
> 
> i.e. Illegal service can be continued until after the election.


I find the 14 day window interesting for another reason. E* is claiming that they can only shut off 6,000 to 8,000 customers per day without interfering with normal operations. They have given themselves basically 10 business days to turn off distants to those who no longer qualify - which means if more that 60,000 to 80,000 people need to be turned off (out of the 800,000) there could be auth/deauth system problems. At least if the court filing stating it would take 120 business days to deauth all 800,000 is reasonably true. 


joblo said:


> > The grandfathering noted in the Consent Judgement as ending before December 15th, 2006, is noted as 17 USC 119 (e)
> 
> 
> No, this ends _after_ Dec. 15, but before the end of the year.


Correction made.


joblo said:


> I really think people are reading way too much into the delays here, which strike me as perfunctory.
> 
> After all, the litigation has gone on for 8 years, and E* is now facing what amounts to a death penalty as regards the particular service at issue, DNS. Two weeks to show cause -- i.e. if there's any potential reason or factor that may not yet have been considered -- hardly seems unreasonable. And in this case, the judge had been already been informed that there was a settlement, so he knew there was cause.
> 
> ...


I expect a reply to be produced. Simply withdrawing the motion isn't enough - there are outright accusations in the oppositions to their motions. They need to address those just so they are not allowed to remain standing without a response. The response to the accusations does need to be well worded ... not whiney in any way. It will probably focus on how Fox is a separate business unit and it's decision not to settle is in no way connected to DirecTV. But that is just for the PR side of the reply ... I doubt if that will affect the court decision (it shouldn't).

The arguments of whether or not Fox has standing to ask for the injuction, especially for networks they don't own and in markets they don't own stations in, seem to be the most important question they need to answer. Standing is important. They should also address why the past cases brought up in opposition do not apply to this mandated injuction.

I suspect that they will wait until Thursday to file this, but they could file earlier - especially if their reply reincorporates a demand that the injunction be issued immediately. If the court decides to accept the settlement there should still be one more hearing (of about an hour) to finish off the case.


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## Shellback X 23 (Sep 19, 2004)

> ALL RV/Commercial customers will be independently audited based on E*'s records and will be shut off no earlier than December 15th based on that audit.
> 
> 
> > I will be glad to requalify as a fulltime RVer to keep my Distants.


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## James Long (Apr 17, 2003)

Shellback X 23 said:


> > ALL RV/Commercial customers will be independently audited based on E*'s records and will be shut off no earlier than December 15th based on that audit.
> 
> 
> I will be glad to requalify as a fulltime RVer to keep my Distants.


Hopefully E* has kept good records in this area.


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## Geronimo (Mar 23, 2002)

BobS said:


> DNS (as we now know it) will be history for E* - the Court of Appeals heard all of E*'s tripe and it wasn't even close. If Judge D. does anything but issue the injunction, Atlanta will slap him silly. All of the paper flying is just eyewash for a Congressional lobbying effort. That is were the fun begins.
> 
> Congress: DBS providers must do X.
> E*: Screw you!
> ...


We have had a few folks in these forums read the word mandatory the way you have. I would suggest t6aht you read the filings. Go ahead and read the press articles as well. While they may not convince you that you are totally wrong they will at least make it clear that other interpretations are possible.


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## Ohioankev (Jan 19, 2006)

cj9788 said:


> From what I have read if the settlement is approved we will not have to pay for lil thru the end of the year. Also the only folks who will lose DNS are the ones who do not pass decisonmark audits of E*'s dns customers. So if you are truly elgible for DNS you will keep them. The only folks loseing DNS will be those in grade a and b areas with out waivers. Also grandfathersubs must be switched off by dec 15 and no later than dec 31st. Now are those grandfathered from SHIVA which was extended by shevra or does it include those in white areas with lil and dns at the end of 2004?


Okay, I'm confused... (sorry) 
So you're saying if I recieve one local in grade A or B(NBC) I will lose all distants? (I don't even have NBC on DISH just OTA)


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## cj9788 (May 14, 2003)

It Depends does E* offer LIL in your area? If not you should continue to receive any DN signals that are available according to your zip code. If E* does offer LIL then it depends on when you started receiving LIL and what ever DNS your eligible for. Also depends on the settlement getting approved. If it doesn't everyone will lose DNS.


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## James Long (Apr 17, 2003)

Ohioankev said:


> Okay, I'm confused... (sorry)
> So you're saying if I recieve one local in grade A or B(NBC) I will lose all distants? (I don't even have NBC on DISH just OTA)


Receiving a local station Grade B (or higher) only prevents you from getting a station of the SAME NETWORK as a distant (without a waiver). Your Grade B or better local NBC would prevent you from getting any NBC as a distant - not from getting ABC, CBS of FOX distants.

(If you have other Grade B stations they knock out distants of their own network.)


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## Greg Bimson (May 5, 2003)

One of the glaring mistakes made here was it appears Fox network may not have joined in on the cross-appeal that went to the Appeals Court. Fox may not have standing in the case for an injunction.

However, one of the other problems goes against Dish Network. Although the courts would generally favor settlement, even after a finding of guilt, these usually occur before the appeals process has been completed. In this case the appeals process is complete.

Which still goes back to the original question, which takes precedence, the settlement or the issuance of a permanent injunction?


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## voyagerbob (Jul 14, 2002)

James Long said:


> The new rules for distants (above 17 USC 119, beyond settlement if accepted by the court) include:If local in local service is offered in your market, E* is REQUIRED to make those locals available to distant subs - supplying the equipment/installation needed at their cost. For those in current LIL markets who do not subscribe to their locals that new service will be free through the end of the year and then E* _may_ charge for the LIL service.
> 
> As new LIL markets are added subscribers with distants will get any equipment/installation needed to receive locals at E*'s cost and will get LIL service free for two months. After the two months E* _may_ charge for the LIL service. (This is the first two months E* offers LILs, not the first two months the customer accepts LILs.)​Bottom line: You CANNOT have distants without locals if your market has it's own locals._Also:_​




Is there anything at all mentioned about Hi-Def distants in the agreement? I'm chomping at the bit to get these added.​


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## James Long (Apr 17, 2003)

"Digital" distants are mentioned - but the big note is that E* does not have digital distant channels (except CBS-HD in O&O markets and white/waivered areas).

The rules for digital are the same as analog. E* MUST provide digital LIL (if available) to anyone receiving digital distants. That does not force them to provide digital LIL in new markets - it just makes them install the proper dishes/etc for people to get their own LILs if they subscribe to a distant digital. (I say digital because that's how it is worded - "digital", not "HD".)

Since E* includes digital locals with their current locals and generally doesn't do digital distants it isn't much of an issue. Where it would make a change would be for customers without the ability to receive their digital locals (such as those who have not upgraded to ViP/DishHD plans or those without the proper dish for their locals). These people would have to be upgraded or lose their CBS-HD distant digital programming.

There is an exception for CBS O&O markets. E* can continue to deliver the 'distant' CBS-HD in the O&O markets without carrying the local CBS digital.


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## Greg Bimson (May 5, 2003)

Dumb question time:


James Long said:


> The new rules for distants (above 17 USC 119, beyond settlement if accepted by the court) include:
> If local in local service is offered in your market, E* is REQUIRED to make those locals available to distant subs - supplying the equipment/installation needed at their cost. For those in current LIL markets who do not subscribe to their locals that new service will be free through the end of the year and then E* may charge for the LIL service.
> 
> As new LIL markets are added subscribers with distants will get any equipment/installation needed to receive locals at E*'s cost and will get LIL service free for two months. After the two months E* may charge for the LIL service. (This is the first two months E* offers LILs, not the first two months the customer accepts LILs.)


Since the SHVERA is now the law of the land, doesn't forcing a customer to receive their local channels block that customer from receiving distants?


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## bobukcat (Dec 20, 2005)

joblo said:


> A day?!?!? Wow, you're optimistic!
> 
> This isn't Judge Judy here. This judge can't just come out and say, "you're right and you're full of bull, case closed!" He's got to research all the case citations, and than craft a substantive legal opinion that will stand up on appeal.


Nah, that's what he has Clerks for - so he can golf while they do all the research.... :grin:


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## James Long (Apr 17, 2003)

Greg Bimson said:


> Dumb question time: Since the SHVERA is now the law of the land, doesn't forcing a customer to receive their local channels block that customer from receiving distants?


17 USC 119 (a)(4)(A) for 'grandfathered' subs (pre October 1999 viewers of distants) requires the customer to choose distants or locals. These customers, if they have LIL in their market, will be going away in the [proposed] Consent Judgement.

17 USC 119 (a)(4)(B) seems to allow for continued reception of distants once LIL comes online. For those markets that were available January 1st, 2005, a list was due March 1st, 2005. For markets added after January 1st, 2005, a list was due 60 days after addition. Customers had to seek to add distants before their LILs came online.

17 USC 119 (a)(4)(C) for "Future Applicability" also stops customers from adding distants after their market gets LIL.


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## Greg Bimson (May 5, 2003)

Now that I looked at my own question, I figured I'd look over the proposed settlement and insert my thoughts:

1) Subscribers within at least a Grade B intensity will be cut-off. This will be administered through an audit by Decision Mark.
2) If local channels are available to a distant network subscriber, the distant network subscriber will be provided with the local channels. If a new market is placed into service, a distant network subscriber within the market will be provided with those local channels. Same applies for distant networks, although Dish Network does not offer distant networks except for CBS HD.
3) A distant network subscriber can only receive a distant network feed that airs at the same time or later than their timezone. No more advance time-shifting.
4) Dish Network must provide Decision Mark with the subscriber name, address, and other information for all distant network subscribers that were given a waiver through the Decision Mark process. Dish Network will also need to hand any blanket waivers to Decision Mark, as well as a list of markets and the date they were put in service. *All individual waivers that were obtained by subscribers after February, 2000, are null and void.*
5) Anyone with a Decision Mark waiver will be requalified by Decision Mark. The station must agree to issue a new waiver or the prior waiver will be revoked. There are some rules based upon whether or not the waiver was issued before or after Dish Network started service in a new market.
6) Grandfathered subscribers will be terminated.
7) All RV and Commercial Truck waivers will be audited.
8) New subscribers will not be able to receive distant networks if locals are available. Distants will only be available to those that qualify in unserved markets.
9) Some markets aren't completely covered by spot-beam. Dish Network will have to provide a list of zips in markets where the spot-beam doesn't cover the entire market, and this consent judgment will not apply to them, i.e., they can keep grandfather status, waivers, etc. They are the analog markets of Wichita, Albuquerque, Reno, Phoenix and Duluth; and the digital markets of Dallas and Portland, OR.
10) Any affiliate or group of affliates that have settled previously are not eligible for this consent judgment.
11) Dish Network must pay the affiliate boards $100 million.
12) Any letter sent to subscribers must not place blame or criticize any of the parties or the laws regarding this suit.

13) The Court shall retain continuing jurisdiction over the implementation of, and compliance with, this Consent Judgment.

Um, this is fairly bulletproof until one gets to that last statement. Either the court can agree to the Consent Judgment and administer the settlement, or the court can simply issue an injunction and be done with the whole issue. While even I agree that it is much better to have parties settle, there's this "thing" sitting out there...

A party was found guilty of a pattern or practice of willful copyright infringement, for which the only prescribed remedy from the Court is to terminate the license that enabled the infringement. The settlement is supposed to remove the courts from this altogether, yet they are supposed to administer the settlement, and still have jurisdiction over any claims?


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## James Long (Apr 17, 2003)

A thought: If the court does not maintain involvement and E* violates the Consent Judgement we are back to square one in the legal process. With the court staying involved the option to issue the permanent injuction if E* violates the agreement remains.

Also - on point two I'll read that as distant digital networks when referring to CBS-HD in the last line of (2).
And, as previously clarified, the grandfathered subscribers losing distants are the October 1999 subscribers.
People who had distants prior to their own locals could be considered grandfathered in another way.


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## JohnH (Apr 22, 2002)

Time required to shut off all receiving a specific Distant Network:

If all are authorized with the appropriate codes for Distant Networks, it would take only a few minutes plus the time for propagation through the receivers. This is somewhat evidenced by the activity surrounding the launch of New York and Los Angeles digital Locals. They showed up on receivers with analog distant subscriptions instantly. When they changed the codes on those channels, they went away instantly.

Now there is the possibility that some received the Local channel authorization instead of the Distant channel authorization. There were some mistakes made along the way. They should be able to determine which ones those are in a small amount of time and they should address those quickly. In fact, technically those should be being converted to Distants currently.

Of course, if they have to address specific niches in the shutdown, it could take a longer time than the 2 weeks mentioned.


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## James Long (Apr 17, 2003)

Check the codes. It appears that E* has marked the 240 area distants with the same codes as the 8000 'local' offerings. If distants are completely pulled they would need to tell all the receivers of the 800,000 distant subscribers that they can no longer descramble channels with that code - without toasting any subscribers in the local markets that are authorized under the same code.

Digital vs Analog it makes sense to use the same code as the permission to carry matches (except in cases where the analog is being used as a distant and they don't want to authorize the digital to people outside the local market).

The non 240 range channels (such as Chicago distants) would have a similar problem. How do you kill reception to a distant sub without killing it to a local sub without sending commands to each receiver of every distant sub?

120 working days to shut off ALL distant subs sending 6000-8000 commands per day? Sounds like a slow process. But needed to separate the distant subs from the locals.

10 working days to shut off those that shouldn't be receiving locals anyways? At 6000-8000 per day I hope they don't have more than 60,000-80,000 customers losing distants.


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## voyagerbob (Jul 14, 2002)

Reading this through, (Assuming it is approved) I only see three ways to receive distant digitals.

1. Have them before the settlement is reached and pass the eligibility test. (I don't think anyone has this now currently except for the CBS exception)

2. Not have your market in digital and are approved (qualified) for distant digitals.

3. An R/V - Trucker 

Two other possible ways I see as options but not likely.

A. The language "could" be read to mean new subscribers can't subscribe to distant digitals but if you already subscribe to distants and are in one of the current 25 local-to-local digital markets you "aren't" a new subscriber and you would have the digital distants added assuming you qualified after the audit as a legitimate distant subscriber for analogs. 

B. This one would be far off (2009 at the earliest) but I could see a potential for this as the analog distants would go away there may be a possibility to have anyone receiving distants in analog receive them in digital once the analogs go away. 

As I said these last two are not likely to happen but just interesting to think about. 


Voyagerbob


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## James Long (Apr 17, 2003)

One cannot add ANY analog distants if their market has analog LIL of the same network.
Customers in the 167 analog LIL markets CANNOT add analog distants.
One cannot add ANY digital distants if their market has digital LIL of the same network.
Customers in the 25 digital LIL markets CANNOT add digital distants.

If one HAS analog distants and your market is added analog LIL you will automatically get analog LIL (free for two months).
If one HAS digital distants and your market is added digital LIL you will automatically get digital LIL (very few in this catagory, if any).
E* has the option to charge you for LIL after the two months (new LIL markets).


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## JohnH (Apr 22, 2002)

James Long said:


> Check the codes. It appears that E* has marked the 240 area distants with the same codes as the 8000 'local' offerings. If distants are completely pulled they would need to tell all the receivers of the 800,000 distant subscribers that they can no longer descramble channels with that code - without toasting any subscribers in the local markets that are authorized under the same code.


 You missed the point which was evidenced by the Digital locals launch. The 4 networks in the 240 range have the same codes as the 4 networks in the 8000 range. The current code allows for Distant or Local subscription with different codes. If the code is changed to allow only a Local subscription the Distant subscribers no longer receive the channel. This only would work for a complete shutdown of distant service. After the group is shutdown there is time for the individual receiver activity to progress at whatever pace can be achieved. A shutdown of this type would require a billing system modification as well.


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## James Long (Apr 17, 2003)

Assuming SD receivers also received the code that would allow reception of the HD channel that would work for a mass shutdown scenario. Change the code on the 8000 range channel to match the code on the 6300 range channel. Only those authorized for that market's locals would continue to get the channels. (This assumes that the code is authorized on SD receivers that can't get the channel.)

6000-8000 shutoffs per day is E*'s number from the filings as the max they can do without interfering with other auth/deauth activity. If the code swap noted in the paragraph above would work then an 'instant off' would be possible (however hectic for the call centers).

The key is whether they sent the descrete codes for the HD channels to everyone in the market or just to ViP-HD receivers.

For a less than total shutdown we are back to 6000-8000 per day over a ~10 business day period.


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## voyagerbob (Jul 14, 2002)

Do we have any speculation as to who could possibly have distant digitals with the exception of CBS? I can think of no one. 

My other question is, would the other networks be able to reach the same agreement with E* that CBS did for distant digitals?

Voyagerbob


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## JohnH (Apr 22, 2002)

James Long said:


> Assuming SD receivers also received the code that would allow reception of the HD channel that would work for a mass shutdown scenario. Change the code on the 8000 range channel to match the code on the 6300 range channel. Only those authorized for that market's locals would continue to get the channels. (This assumes that the code is authorized on SD receivers that can't get the channel.)


There was already a specific code for Locals only which should have been sent to all receivers authorized for Locals, This code is different than the code sent for Distants, The codes assigned to the SD have been out there for a long time. The HD just responded to them. For the most part, the code scheme does not require different authorization codes be sent to an HD receiver.


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## Greg Bimson (May 5, 2003)

voyagerbob said:


> My other question is, would the other networks be able to reach the same agreement with E* that CBS did for distant digitals?


Well, let's use an assumption:

DirecTV is rebroadcasting all four networks. However, DirecTV will soon start to terminate distant digitals to subscribers that have local digitals available.

The other assumption here is that Dish Network's contract with CBS is similar to the agreements between the networks and DirecTV.

NBC, when the smoke clears from their sale of four O&O's, Dish Network will be rebroadcasting all NBC HD O&O's, except one. Why would NBC bother to sign an agreement to cover their O&O's with a distant signal when practically all their O&O's are already being rebroadcast?


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## Geronimo (Mar 23, 2002)

Actually is is not all that unusual for the courts to have some role in approvinga settlenetn that is reached by the parties. It is somewhat less common for the courts to have an ongoing role in the enforcement of that settlement. Bur I won't go so far as to say that it is unprecedented.

Admittedly this whole matter is complexx but we do not have to make it more so.


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## voyagerbob (Jul 14, 2002)

What made me think of the question is the "Private Settlements" section of the Proposed Consent Judgment. I know at one time there was speculation that ABC and NBC possibly had signed agreements similar to CBS for distants with E*. Assuming those agreements were already signed and E* didn’t want to offer digital distants until they had all networks or they wanted the entire distants issue settled first, would they be able to utilize them or would this Proposed Consent Judgment override that. Would it work only in the O&O markets or everywhere? Food for thought.


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## cj9788 (May 14, 2003)

.I think the reason they want a delayed shut down has more to do with the huge increase in call volume that would be generated by an all at one cutoff of DNS. This was mentioned in one of the PDF that JL posted. The concern being the 10 call centers E* has would be so inundated with calls about DNS that new customers and existing customers calling to for other matters would be on hold for a very long time or may not even be able to get through. Example if E* cut 800k subs and only 10% were to call in at the same time that would be 80,000 calls on top of the normal call volume. That would be a csr nightmare.


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## pajer (Jan 9, 2004)

James Long said:


> One cannot add ANY analog distants if their market has analog LIL of the same network.
> Customers in the 167 analog LIL markets CANNOT add analog distants.
> One cannot add ANY digital distants if their market has digital LIL of the same network.
> Customers in the 25 digital LIL markets CANNOT add digital distants.
> ...


Jim, if i understand correctly, if the settlement is approved and i currently receive johnstown/altoona lil analog and i am currently getting ny and la analog distants, i will lose the analog distants, but since johnstown/altoona hd lil are not available through dish that i could subscribe to ny hd distants, what about la hd distants? thanks, pajer


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## Greg Bimson (May 5, 2003)

pajer, I'll at least start on this...

Why do you receive distant networks? Through a waiver, white area, grandfathering? What was your process for receiving them, and most importantly now, when did you start receiving them?


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## pajer (Jan 9, 2004)

i have been receiving both east and west distants since about mid 1998. i receive them because we enjoy watching the ny distants for news and use the west distants for recording prime time later in the evening.


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## kstuart (Apr 25, 2002)

How would this situation work with the Proposed Settlement:

- Grandfathered (Analog) Distants
- Grade B of a couple networks, but not the others
- LIL available of all networks, but only came online recently

??

Also, does the "No Distants in Earlier Timezones" apply to all (CONUS) customers regardless of other qualification (including RV for example) ?

(That last one seems odd to me, in light of the fact that Bell ExpressVu actually advertises the capability to see network programming earlier.)


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## James Long (Apr 17, 2003)

pajer said:


> i have been receiving both east and west distants since about mid 1998. i receive them because we enjoy watching the ny distants for news and use the west distants for recording prime time later in the evening.


Apparently you fall into the "pre-October 1999" grandfathered status.
If you now can receive your locals Grade B OTA you will lose your distants.

If you can't receive your locals Grade B you should be able to keep your distants.
If you do not yet subscribe to locals E* will be adding them to your subscription.
(If E* does the add these newly added locals will be free until the end of the year.)


kstuart said:


> How would this situation work with the Proposed Settlement:
> 
> - Grandfathered (Analog) Distants
> - Grade B of a couple networks, but not the others
> - LIL available of all networks, but only came online recently


You will be given locals (unless you subscribe already). For any networks where you are in Grade B you will lose their distants (unless you have a new waiver).


kstuart said:


> Also, does the "No Distants in Earlier Timezones" apply to all customers regardless of other qualification (including RV for example) ?


That rule doesn't care where you live. The RV Exemption is an interesting question but if you are qualified any other way you can't get earlier distants.


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## pajer (Jan 9, 2004)

what about the digital distants, if my local hd distants are not available will i be able to receive the ny or la hd distants or both?


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## kstuart (Apr 25, 2002)

Am I correct that LIL is only sold as a package, rather than individual channels (unlike Distants) ?


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## James Long (Apr 17, 2003)

There is no promise of E* offering digital distants in the future. This agreement is a limitation on distants (mostly matching existing law) and an expansion of locals (requiring LIL be provided to all distant subscribers). This agreement does not help on the digital distants issue.

And yes, LIL is ONLY sold as a package. $5.99 a la carte or $5 added to an AT, DishHD or other base package.


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## kstuart (Apr 25, 2002)

So, on January 1st, no Dish Network customer who is located outside of the Eastern Timezone, will be receiving New York Distant Network signals - is that correct ?

If I am reading correctly, that is the case regardless of the court outcome, and also regardless of the individual circumstances of the customer (lack of OTA, lack of LIl, waivers, grandfathering, whatever) - yes ?


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## scooper (Apr 22, 2002)

Central time Zone could also get NY distants (the nets use the same feed for each).
Central doesn't even tape delay - they broadcast at the same GMT time.

I've heard that Mountain timezone station typically record the Eastern feed and "tapedelay" (probably using a diskbased storage farm nowadays).


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## James Long (Apr 17, 2003)

kstuart said:


> So, on January 1st, no Dish Network customer who is located outside of the Eastern Timezone, will be receiving New York Distant Network signals - is that correct ?


As scooper noted, both the eastern and central time zones use the "east coast" eastern feed.


kstuart said:


> If I am reading correctly, that is the case regardless of the court outcome, and also regardless of the individual circumstances of the customer (lack of OTA, lack of LIl, waivers, grandfathering, whatever) - yes ?


No advance feeds, regardless of how you qualified for distants. The only "whatever" is the RV exemption (now that I've had a chance to check: "Eligible recreational vehicles and commercial trucks are not subject to this prohibition.").

We can't say 'regardless of court outcome' because if the court issues the permanent injuction instead of issuing the Consent Judgement NOBODY gets distants from Echostar. Even from their own time zone.


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## kstuart (Apr 25, 2002)

James Long said:


> We can't say 'regardless of court outcome' because if the court issues the permanent injuction instead of issuing the Consent Judgement NOBODY gets distants from Echostar. Even from their own time zone.


On the contrary - that's why I worded it "no Dish Network customer who is located outside of the Eastern Timezone, will be receiving New York Distant Network signals".

That also happens if Dish has to shut off all Distants, period !

Perhaps I can restate:

" As of January 1st, no Dish Network customer in Pacific or Mountain timezone will be receiving New York Distant Networks, unless they have an RV waiver. This will be the case for any court outcome. Is this correct ? "

I want to clarify this, because it is a significant fact, as probably at least 100,000 of those people (maybe more) will have been watching New York Distants for years. For one thing, having two channels of a particular Network allows one to avoid pre-emptions due to car chases, sports overtime, political addresses, weather alerts and other local self-important "breaking" events.

I'm trying to figure out why the Networks would find any value in someone who had a *legitimate* lack of access to a local channel, watching another channel in the same timezone as opposed to another affiliate who happened to be several hours ahead.

Note that there is no prohibition for East Coast residents receiving Los Angeles Distants.

Any possibilities as to why ?


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## James Long (Apr 17, 2003)

kstuart said:


> I want to clarify this, because it is a significant fact, as probably at least 100,000 of those people (maybe more) will have been watching New York Distants for years.


Do you have a source for that number or is that just your guess? What number does the 100,000 represent?


kstuart said:


> For one thing, having two channels of a particular Network allows one to avoid pre-emptions due to car chases, sports overtime, political addresses, weather alerts and other local self-important "breaking" events.


Unless you are claravoyant and KNOW that there will be an interruption or pessimistic enough to pre-record and advance feed 'just in case', how does having advanced distants help in such a situation?

I can understand an east coast (Texas to Maine really) customer who normally gets eastern/central time programming getting an interruption, uttering a curse word, then setting a DVR event or staying up for the same program three hours later and hoping LA doesn't also interrupt the show - but a feed that aired three hours ago doesn't help in "breaking" event situations unless you KNOW in advance there would be interruptions.

The real benefit is to get a jump on your neighbors and be able to watch "prime time" three hours early ... or better yet, watch programs from all networks with less overlap. (Instead of using dual tuner DVRs to delay one program while you watch another in your own time zone record something early from the NY feed and watch when you want.)

Here is a thought: Why not offer Hawaii locals to people in the Pacific time zone so they too will get a 2-3 hour delayed programming?


kstuart said:


> I'm trying to figure out why the Networks would find any value in someone who had a *legitimate* lack of access to a local channel, watching another channel in the same timezone as opposed to another affiliate who happened to be several hours ahead.


The networks promise "first run" to their affiliates. While you may not be able to actually receive an affiliate in your market, they want programs aired on THEIR schedule ... not before. After isn't as much of a problem.

Also: For ratings purposes they usually set their lineups up against the other networks. Watching early does not force a decision between their programs and the other guys.

Also: For FCC purposes there is certain content the networks have agreed not to broadcast before 10pm. Timeshifting moves that programming into normal prime time when children are more likely to be present.

But mainly it is because "that's the way they want it".


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## Greg Bimson (May 5, 2003)

kstuart said:


> I'm trying to figure out why the Networks would find any value in someone who had a legitimate lack of access to a local channel, watching another channel in the same timezone as opposed to another affiliate who happened to be several hours ahead.


Reread this statement and you'll have figured out why. I'll give you a hint: what did you watch at 6PM Pacific?

And Dish Network is ready to throw their customers to the wolves.


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## James Long (Apr 17, 2003)

It will be moot in a couple of years anyways. SHVERA doesn't allow 'earlier than local' digital distants and in February of 2009 we should see the end of all analog stations. (Regardless of the outcome of this case.)


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## joblo (Dec 11, 2003)

Greg Bimson said:


> One of the glaring mistakes made here was it appears Fox network may not have joined in on the cross-appeal that went to the Appeals Court. Fox may not have standing in the case for an injunction.


If you buy the first argument in the affiliates' brief, this was not so much a mistake as tacit recognition that Fox, suing in its capacity as a broadcasting company that produced programs rather than in its capacity as a station owner, lacked standing for a 119 injunction in the first place.



Greg Bimson said:


> *All individual waivers that were obtained by subscribers after February, 2000, are null and void.*


NO. Waivers issued *BEFORE* February 2000 are void.

Basically, the affiliates want everything validated by DecisionMark, such that to qualify for DNS you must either be certified by DM as being in a true white area or you must have a valid DM waiver granted after LIL service started in your area. Valid DM waivers granted prior to LIL availability will be resubmitted, but anyone in grade A or B with no DM waiver at all will be terminated, thus leaving out all 119(e) "grandfathered" subs and those whose waivers predate the DM process, which started circa February 2000.



> Either the court can agree to the Consent Judgment and administer the settlement, or the court can simply issue an injunction and be done with the whole issue.


Actually, accepting the settlement is the easier path for the court. Issuing an injunction will necessitate hearings on implementation details, etc, which could potentially drag things out considerably.

The easiest thing for the court would be to sign the consent decree, and then deny Fox's standing based on the second affiliate argument, that Fox waived its right by declining to cross-appeal. That way, no injunction has to issued at all, even in Fox O&O territory; the court can avoid again, as it did previously, the question of whether a network has standing under 119 vs. 502; and the original judgment from 2003 (?) is still applicable with regard to Fox, because the 11th Circuit rejected all of E*'s appeals, thus affirming the original judgment.

Or in other words, E* lost, Fox won (as their spokesperson said to the press), that's that, and neither a settlement nor an injunction is necessary at all. The only thing left is for SCOTUS to deny cert (which it will), and it's "Case Closed."



bobukcat said:


> Nah, that's what he has Clerks for - so he can golf while they do all the research.... :grin:


True, and since the reply brief can only refer to cases already discussed in the opposition responses to the motion, it's even possible that all the homework could be done in advance and the ruling will be immediate. But I think it's more likely the judge will take a few days to a week to consider everything before issuing his ruling.



voyagerbob said:


> Assuming those agreements were already signed and E* didn't want to offer digital distants until they had all networks or they wanted the entire distants issue settled first, would they be able to utilize them or would this Proposed Consent Judgment override that. Would it work only in the O&O markets or everywhere?


Since ABC, CBS, and NBC settled separately, and Fox has not settled at all, I would assume that all network O&O territories are excluded from the consent judgment.



pajer said:


> Jim, if i understand correctly, if the settlement is approved and i currently receive johnstown/altoona lil analog and i am currently getting ny and la analog distants, i will lose the analog distants,


Assuming that E* implemented the SHVERA changes correctly in 2004 and 2005 (admittedly a somewhat dangerous assumption), the fact that you still have both distants and locals means you are NOT a 119(e) "grandfathered" sub, and you will probably be able to keep your distants.

I know Johnstown/Altoona is a mountainous area. Can you receive local signal OTA where you are or not?



scooper said:


> I've heard that Mountain timezone station typically record the Eastern feed and "tapedelay" (probably using a diskbased storage farm nowadays).


Actually, I think the nets provide an MT feed now, one hour delayed from the ET feed. (Ken English could confirm/deny.)

For a long time though, there was no feed and the stations were left to fend for themselves, which meant stations in large markets like Denver and Salt Lake did their own tape delays, and stations in smaller markets either took the ET feed or got their programming from feeder stations in the larger markets. I can still remember stations in Idaho complaining whenever a Salt Lake station would censor their feed to suit Mormon sensibilities. But that was long ago and far away.

Interestingly, the Denver stations still don't use the feed, but continue to do their own tape delays, so that they can start prime time a minute or two early, end it a minute or two late, and thus squeeze a few additional minutes of local ads into prime time. Very annoying for DVR programming.



kstuart said:


> I'm trying to figure out why the Networks would find any value in someone who had a *legitimate* lack of access to a local channel, watching another channel in the same timezone as opposed to another affiliate who happened to be several hours ahead.


If/when LIL becomes available, the local station wants first-run exclusivity, and they prefer your east coast feeds be cut off now rather than later, so that when a new market or station is uplinked, that isn't seen as the reason for losing them.


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## James Long (Apr 17, 2003)

One thing to consider is that if Fox had not made the motion the court's focus would not be on the motion and whether or not they had standing to ask for an injunction. By demanding the injunction they turned the focus to their issues.

The court SHOULD be focused on the issue that was already before them. The MANDATE from the appeals court and whether or not the defendant (E*) could show cause that the mandate should not be followed and an injuction issued.

I doubt if the court will stop with the Fox issue. Whether or not Fox has standing or should have filed the request for injuction, the court needs to deal with the bigger issue. I can see the court dismissing Fox's request for injuction - and then moving on with the true issue. The mandate and whether or not there is cause not to issue the injuction.

I believe that the court will find that their is significant reason not to issue the mandated injuction. Whether or not Fox appeals (assuming they can appeal if they are found not to have standing) is another issue. The other plantiffs have agreed not to appeal the Consent Judgement.

Without an appeal the appeals court has no opportunity to reverse anything.


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## JohnH (Apr 22, 2002)

Seems like an attempt to create a distants setup which is not administered by E* and does not violate any of the provisions of SHVERA, but likely goes a bit beyond SHVERA in protecting localizm.


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## kstuart (Apr 25, 2002)

James Long said:


> Do you have a source for that number or is that just your guess? What number does the 100,000 represent?


 A guess.


> Unless you are claravoyant and KNOW that there will be an interruption or pessimistic enough to pre-record and advance feed 'just in case', how does having advanced distants help in such a situation?


Pessimistic enough. And you use two different receivers, due to "one minute recordings" and other wonderful DVR aberrations. 


> Also: For FCC purposes there is certain content the networks have agreed not to broadcast before 10pm. Timeshifting moves that programming into normal prime time when children are more likely to be present.


That's not really the DBS reality - channels like USA, TBS, TNT, SciFi and others already are on "East Coast" schedules and the "10pm" programming is aired at 7pm. That's aside from the fact that it's hard to discern much difference between the 8pm and 10pm programming on the networks. I don't find either "Prison Break" or "Lost" to be suitable for children. In fact, FOX cannot possibly have made that agreement, since their prime time ends at 10pm.

There has to be a concrete $$ reason for all 4 networks to agree on wanting the earlier timezone banned. At first I thought that:


> Also: For ratings purposes they usually set their lineups up against the other networks. Watching early does not force a decision between their programs and the other guys.


sounded right, but then it occurred to me that a) allowing East Coast residents to choose Los Angeles Distants also has the same effect, and b) Distants are usually all from the same timezone, so that would not apply.


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## TNGTony (Mar 23, 2002)

kstuart said:


> Am I correct that LIL is only sold as a package, rather than individual channels (unlike Distants) ?


Local Into Local *MUST* be sold as a package per SHVIA (and its successor). This is part of the Must Carry thing. Equal treatment and distribution of local channels into their local areas.

So yes. You are correct. LIL is only sold as a package rather than individual channels.

See ya
Tony


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## kstuart (Apr 25, 2002)

joblo said:


> Basically, the affiliates want everything validated by DecisionMark, such that to qualify for DNS you must either be certified by DM as being in a true white area or you must have a valid DM waiver granted after LIL service started in your area. Valid DM waivers granted prior to LIL availability will be resubmitted, but anyone in grade A or B with no DM waiver at all will be terminated, thus leaving out all 119(e) "grandfathered" subs and those whose waivers predate the DM process, which started circa February 2000.


YAQ (Yet Another Question):

Is there any likelihood of having a DM waiver processed and granted between now and December 15th ?

The text mentions that you are disqualified for Distants if an affiliate that is *not* your local affiliate happens to have a Grade B signal. One might think that in those cases, local affiliates might agree to granting waivers, since the customer can't receive their channel in any case.


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## joblo (Dec 11, 2003)

TNGTony said:


> Local Into Local *MUST* be sold as a package per SHVIA (and its successor). This is part of the Must Carry thing. Equal treatment and distribution of local channels into their local areas.


I don't think equal treatment requires bundling. Bundling locals is just much easier administratively, and there's no great demand for a la carte locals, so why bother?



kstuart said:


> Is there any likelihood of having a DM waiver processed and granted between now and December 15th ?


Waivers are supposed to be processed within 45 days. I see no reason the chances of getting one between now and Dec. 15 would be any better or worse than at any other time. Remember that most of E*'s 800,000 DNS subs and 11 million overall subs are not hanging on every turn of this lawsuit like those of us here, and the parties to the settlement want to keep it that way. This is why they're settling in the first place, to avoid disruptions.


> The text mentions that you are disqualified for Distants if an affiliate that is *not* your local affiliate happens to have a Grade B signal. One might think that in those cases, local affiliates might agree to granting waivers, since the customer can't receive their channel in any case.


And this is why they sued in the first place. If you have a grade B signal, then presumably you *CAN* receive that channel's signal OTA. E*'s consideration of only the local affiliate's signal rather than all grade B signals is one of the policies that got them into trouble.


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## Greg Bimson (May 5, 2003)

Greg Bimson said:


> All individual waivers that were obtained by subscribers after February, 2000, are null and void.





joblo said:


> NO. Waivers issued BEFORE February 2000 are void.
> 
> Basically, the affiliates want everything validated by DecisionMark, such that to qualify for DNS you must either be certified by DM as being in a true white area or you must have a valid DM waiver granted after LIL service started in your area. Valid DM waivers granted prior to LIL availability will be resubmitted, but anyone in grade A or B with no DM waiver at all will be terminated, thus leaving out all 119(e) "grandfathered" subs and those whose waivers predate the DM process, which started circa February 2000.


You missed the part about requalifying everyone. Only those with waivers from Decision Mark after February 2000 are considered valid, and even those will be rechecked.

How many people have we seen post that they got waivers *directly* from their local stations in 2001 and 2002, and sent them to Dish Network? Those are also no longer valid.


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## cj9788 (May 14, 2003)

So not ALL waivers after 2000 are void just the ones not obtained through decisonmark?

Granted the decisonmark waivers will have to be resubmitted so if you had a waiver through decisonmark the local can now change their mind.


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## joblo (Dec 11, 2003)

cj9788 said:


> So not ALL waivers after 2000 are void just the ones not obtained through decisonmark?


Correct.



> Granted the decisonmark waivers will have to be resubmitted so if you had a waiver through decisonmark the local can now change their mind.


Decisionmark waivers granted after LIL availability only need to be "validated", not resubmitted, unless there has been a change in the station's circumstances, such as, for example, a new or relocated transmitter.


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## James Long (Apr 17, 2003)

On why earlier than your own distants will not be allowed:


James Long said:


> But mainly it is because "that's the way they want it".


Don't forget that reason!


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## cj9788 (May 14, 2003)

Yeah as you pointed out the* law *on time zones only covers Digital distants.


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## James Long (Apr 17, 2003)

From FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/15/06 1011 UNOPPOSED MOTION by Fox Broadcasting for leave to file Combined Reply (gp) [Entry date 09/18/06]

9/18/06 1012 ORDER Granting [1011-1] unopposed motion for leave to file combined reply to the two memoranda filed in opposition to its motion for entry of injunction (Signed by Judge William P. Dimitrouleas on 9/19/06) [EOD Date: 9/20/06] (ss) [Entry date 09/20/06]

[END OF DOCKET: 1:98cv2651]​Trivial filings ... Fox wanted to file one reply to both objections to their motion, and the court is letting them do that.


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## kstuart (Apr 25, 2002)

cj9788 said:


> Yeah as you pointed out the* law *on time zones only covers Digital distants.


Is this true ?

Does some law require that Digitial distants cannot be provided that are broadcast earlier than the customer's timezone?

If so, I'd like to be able to see that text as that issue is of particular interest to me.

I might be able to research that and find a rationale for it.


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## JohnH (Apr 22, 2002)

Yeah, D* implemented it last year. They took away East HDs from Mountain and Pacific. They went farther and took West HDs away from East and Central.

Rationale for the "no earlier"is we want our presentation to be the first available.


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## kstuart (Apr 25, 2002)

Okay, I did a search and found the exact text of SHVERA.

In that law (the law that is being referred to in the posts previous to mine), a *Digital* Distant cannot be provided that has earlier Prime Time programming (and the words "Prime Time" as used in the law, amusingly enough) than a *Local in Local* channel that is available to the customer.

What that means is that the original rationale was to allow elgible customers to choose Digital Distants over Analog Locals only for their digital aspect, not because they provided earler programming.

Clearly the network people do not understand the value of having two different network channels in different time zones that are not subject to "pre-emption". This makes sense, as they are the same people who order the pre-emption when one snowflake is spotted or any time the police are chasing a vehicle. If they understood this annoyance (which I read about in all Forums having to do with TV shows as well as those about TV hardware), they would not do it.

Anyway, it seems clear that the rationale for the "No earlier Analog Distants" is thus the following:

- Some people qualify for Analog Distants despite having LIL available.
- The settlement requires Distant viewers to have LIL provided for two months.
- Some people may watch an earlier Distant broadcast instead of the LIL channel, simply because it is earlier
- So if we force the distants to be in the same timezone, they will watch the local channel, because there is no advantage to watching the distant channel.

The implication is that the later timezone is not competition because, for example, Los Angeles broadcasts of Prime Time occur at 11pm, midnight, and 1am on the East Coast. This in turn implies that they are only really thinking about the East Coast and the West Coast, which should not come as any surprise to those who follow the TV industry.

Their logic is faulty because a one hour later broadcast can be just as attractive as a one hour earlier broadcast, especially for the first hour or two of Prime Time.

Note also that the settlement includes Dish's promise to further increase LIL coverage. Since each added market is usually amongst the biggest remaining ones, I think that Dish will have - guesstimate - 97% of households covered by LIL due to terms of the settlement. So, the affiliates are not really concerned with 3%, they are concerned with 97%. Thus, their concern is that elgible customers (no good OTA signal) watch the LIL instead of Distants.

I must say I am surprised that a) SHVERA and even more so b) the Settlement, don't include a rule "if LIL is available, you can't have Distants". I suppose that network channels realize that OTA is still necessary to define their priveledges over TNT and USA, and so they have to continue to use it also as a definition of "availability".

*Sorry for the long post, but the issue is unreasonably complicated...*


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## James Long (Apr 17, 2003)

Digital distants usually have competition from analog locals. The idea of getting a digital distant hours before your local channel makes it more likely that people will choose the non-local channel (as if having it in HD is not enough reason to watch the non-local).

You can talk yourself blue trying to figure out the logic ... it all comes back to:
_*That's the way they want it.*_​


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## kstuart (Apr 25, 2002)

But my question was "Why do they want it?". The settlement simply applies the SHVERA Digital Distant requirements to Analog Distants. Back at the time of SHVERA, they could only ask for a limited number of requests, so why that one? The answer is (see my previous post) - "They want you to watch the local channel instead of the distant channel". They are not concerned with the rights of the 3% who don't have any sort of access to a local channel, because they figure that number is already approximately zero  and will reach exactly zero in the near future.


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## cj9788 (May 14, 2003)

James Long said:


> From FLSD PACERDistrict Web PACER (v2.4)​
> [ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]​
> 9/15/06 1011 UNOPPOSED MOTION by Fox Broadcasting for leave to file Combined Reply (gp) [Entry date 09/18/06]​
> 9/18/06 1012 ORDER Granting [1011-1] unopposed motion for leave to file combined reply to the two memoranda filed in opposition to its motion for entry of injunction (Signed by Judge William P. Dimitrouleas on 9/19/06) [EOD Date: 9/20/06] (ss) [Entry date 09/20/06]​
> [END OF DOCKET: 1:98cv2651]​Trivial filings ... Fox wanted to file one reply to both objections to their motion, and the court is letting them do that.


Thanks for the update!


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## kstuart (Apr 25, 2002)

( I removed this, since I misread the complicated legal code of SHVERA - one needs to know the shorthand that "(e)" only refers to the grandfathered dsitant subs. No actual contradiction exists, as explained by James Long below. )


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## James Long (Apr 17, 2003)

In the law the only group of distants subscribers that must choose to keep their distants or subscribe to their locals are the Pre Oct 1999 grandfathered subscribers. In all other cases all the satellite carrier is required to do, under SHVERA, is provide a list of all distant subscribers who have elected to keep distants 60 days after LIL is available (and, of course, not allow any new distants subs in an area that now has LIL). A customer who currently qualifies for distants in a non-LIL market can add them today and not lose them when their market gets LIL.


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## cj9788 (May 14, 2003)

I know that if you were in a true white area receiving DNS and LIL before October 8th 2004 then you are ok. The only folks who had to chose between the two were those that signed up for DNS and LIL (once available) after the october date. I believe it is those folks who this settlement is going to affect. 

Now if you are in a DMA with only 3 of the 4 nets available via LIL and you are in a true white area and recvd DNS and LIL before the Oct 8 2004 date then you can receive all DNS analog signals. It should not matter if E* adds the 4th net to the lil package. If you did not recv both dns and lil befor the oct 2004 date then you can keep the one station as a dns until e* adds to the lil pack. I do not know how it affects markets with only 2 local nets. 

Hope this is right and hope it helps.


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## Geronimo (Mar 23, 2002)

joblo said:


> I don't think equal treatment requires bundling. Bundling locals is just much easier administratively, and there's no great demand for a la carte locals, so why bother?


Wher do you see an authority to offer locals on any basis other thanbundling?


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## James Long (Apr 17, 2003)

The law requires the entire market be carried (with the caveat being stations can choose not to be carried). A la carte locals would be illegal.


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## kstuart (Apr 25, 2002)

Thanks James for the clarifications - it does turn out that you need to have the original Section 119 at hand for reference, while reading SHVERA, otherwise one can be misled.

Two further questions :

- Is there currently any site that shows the Grade B signal predictions (roughly speaking) ?

- In the latest interpretation, if a Grade B signal is present from a station of that network that is *not* the DMA station, does the waiver need to come from the DMA station or from the Grade B signal station ?

Thanks!


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## cj9788 (May 14, 2003)

James Long said:


> In the law the only group of distants subscribers that must choose to keep their distants or subscribe to their locals are the Pre Oct 1999 grandfathered subscribers. In all other cases all the satellite carrier is required to do, under SHVERA, is provide a list of all distant subscribers who have elected to keep distants 60 days after LIL is available (and, of course, not allow any new distants subs in an area that now has LIL). A customer who currently qualifies for distants in a non-LIL market can add them today and not lose them when their market gets LIL.


James

I must be a little slow I thought that section e only applied if you received DNS before October 1 2004.

So if a sub ordered DNS because they were in a white area on jan 15 2005 then the seciton would not apply and they would have to choose between DNS and LIL. According to the fcc fact sheet for SHVERA it states:

The 2004 SHVERA statute changed distant signal eligibility in some circumstances.

If you received distant signals as of December 8, 2004, because you lived in an unserved household, you may also receive local stations if the satellite company is currently offering them in your DMA or introduces new local-into-local service in the future. *However, if you did not receive or try to receive distant signals as of December 8, 2004, you are not eligible for distant service if local channels are offered.* (You may be able to get a waiver of the "no-distant-where-local" requirements from the local television stations; check with your satellite company to see if this is possible.) 
Alternatively, you may be receiving distant analog signals because you are a "_grandfathered subscriber_." Check with your satellite company to determine whether you are grandfathered and what distant and local signals you may receive. 
You may be receiving distant analog signals because you received a waiver from one or more television stations that are predicted to serve your household. If you have such a waiver, you may continue to receive distant analog signals and you also may subscribe to local-into-local service. 
Now the Fact Sheet has a December date but SHVERA has an Octber 1st date. Please clarify.


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## James Long (Apr 17, 2003)

The reference 17 USC 119 that I use for answering these questions is one from 2004 with the changes SHVERA made marked in the copy. I took the old text and made the changes specified by law, marking phrases and paragraphs as deleted instead of removing them from view and marking new text so it can be recognized. Sometimes online copies of the USC and CFR can be out of date. Make sure you are getting the right year when you find the text online.

The difference on the FCC website comes from the text where in some places it says October 1st, 2004, (which is a new grandfather cutoff date for the October 1999 grandfathered customers) and in others it says "the date of enactment" which turned out to be December 8th, 2004. When reading 17 USC 119 keep the dates in mind - if it says 'October 1st' it means October 1st - if it says 'the date of enactment' it means December 8th.

17 USC 119 is a mess ... it isn't written in strict paragraph form where (a) is one situation (b) is a second situation and (c) is a third. There is a certain amount of overlap. Sometimes tying a date or a rule to a situation takes a lot of reasoning.


> - Is there currently any site that shows the Grade B signal predictions (roughly speaking) ?


IIRC individual stations can be checked at the FCC, although the maps they provide are simple circles for each station and not ILLR point by point maps. They are very rough estimations.
(See http://www.fcc.gov/mb/video/tvq.html - search for a station and then from the detailed page select "Service Contour Map" -- you will get a map something like this.)


> - In the latest interpretation, if a Grade B signal is present from a station of that network that is not the DMA station, does the waiver need to come from the DMA station or from the Grade B signal station ?


A waiver must come from ALL stations that provide a Grade B signal to the customer's location. If you have a LIL station you need a waiver from them regardless of Grade B.


> However, if you did not receive or try to receive distant signals as of December 8, 2004, you are not eligible for distant service *if local channels are offered*.


If local stations are now offered. This doesn't include grandfathered "had distants before LIL" customers.


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## joblo (Dec 11, 2003)

Geronimo said:


> Wher do you see an authority to offer locals on any basis other thanbundling?


These are the only relevant code sections I know about (emphasis added):


> *47USC338(a)* Carriage obligations
> (1) IN GENERAL.--Each satellite carrier *providing*, under section 122 of title 17, United States Code, secondary transmissions to subscribers located within the local market of a television broadcast station of a primary transmission made by that station shall *carry* upon request the signals of all television broadcast stations located within that local market, subject to section 325(b).
> 
> *47USC338(d)* Channel positioning
> No satellite carrier shall be required to provide the signal of a local television broadcast station to subscribers in that station's local market on any particular channel number or to provide the signals in any particular order, except that the satellite carrier shall retransmit the signal of the local television broadcast stations to subscribers in the stations' local market on contiguous channels and *provide access to such station's signals at a nondiscriminatory price* and in a nondiscriminatory manner on any navigational device, on-screen program guide, or menu.


Not that the first provision does not say "provide one, provide all", but rather "provide one, carry all", and the second provision requires providing "access to", not providing the stations themselves. Further, the nondiscriminatory pricing requirement implies the possibility of a la carte subscription, because the notion of discriminatory pricing _within_ a bundle is meaningless.

Now if you or anybody else knows of another provision that specifically requires bundling, please post.



kstuart said:


> if a Grade B signal is present from a station of that network that is *not* the DMA station, does the waiver need to come from the DMA station or from the Grade B signal station ?


To amplify on James's answer - which is correct - there are two different waiver provisions involved here - one for grade B signals and another for LIL stations. As I read the statute, if LIL is not available to you, you only need grade B waivers from ALL relevant stations, whether inside the DMA or not, but if LIL is available, then you still need all the same grade B waivers PLUS additional waivers from any LIL station(s) of the network in question, whether grade B or not.

For a grade B station that is provided LIL, the fact that there are actually two waiver provisions involved is an administrative detail that is presumably hidden within the electronic process.



James Long said:


> In the law the only group of distants subscribers that must choose to keep their distants or subscribe to their locals are the Pre Oct 1999 grandfathered subscribers.


It's worth nothing that these subscribers, otherwise known as 119(e) subscribers, are, by definition, grade B subscribers without waivers. In other words, if you are in a white area, regardless of when you subscribed, then you qualify on that basis; and the 119(e) provision and all requirements associated with it, whether in the law or the proposed consent judgment, are not applicable.

Edit:


cj9788 said:


> According to the fcc fact sheet for SHVERA it states:


cj9788, do you have a link for this?

James, do you have the joint letter to Congress referred to in paragraph 4 of the Settlement Agreement? I'm wondering if that's just a standard notice that they've settled their differences or whether it contains specific proposals or references to specific proposals to amend the satellite home viewer statues.


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## cj9788 (May 14, 2003)

http://ftp.fcc.gov/cgb/consumerfacts/shvera.html


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## kstuart (Apr 25, 2002)

Thanks for the replies !

More details :

All Grade B stations (two of the networks) come from a low-power translator. These stations are also on local cable. Local cable gets the other two networks from another state.

When LIL came around, it turned out that the so-called DMA was those channels in another state. In between us and that city is a big mountain range - the Interstate over it is regularly closed by snow. The signal from those stations here is zero point zero. The local cable must have gotten those two other networks by dedicated phone line or something prior to satellite relays.

The LIL stations are neither the closest affiliates, nor the Grade B signals. So, people here would still have to get waivers from both the Grade B *and* the LIL affiliates of that network ?


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## Geronimo (Mar 23, 2002)

thanks for the clarification joblo. i completely misunderstood your intent---and the misunderstanding was 1005 my fault.


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## James Long (Apr 17, 2003)

joblo said:


> James, do you have the joint letter to Congress referred to in paragraph 4 of the Settlement Agreement? I'm wondering if that's just a standard notice that they've settled their differences or whether it contains specific proposals or references to specific proposals to amend the satellite home viewer statues.


It's boring. Hardly worth posting, which is why I didn't earlier.


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## kstuart (Apr 25, 2002)

There's also some interesting general observations about the Settlement:

- All Distant subscribers who are turned off on December 15-31, must still be provided with whatever equipment and installation is necessary to receive LIL (if available).

- There are some legal ramificatins to the word "provide" that could be interpreted as meaning that Distant subscribers must have the necessary equipment for LIL installed. In other words, the word "provide" is used, not the word "offered".

- The *deadline* for LIL providing is October 1st - at most a week from when everything is agreed. Aside from the thousands of installations that would need to be done (and you could argue either way as to whether the installations needed to be done by October 1st), there is no question that the agreement requires Dish to do all the authorizing of receivers over that one week. Close to one million subscribers' accounts need to be checked during that week.

It seems that Dish will be far busier during a shorter period of time if the settlement is agreed to by the court, than if not !


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## James Long (Apr 17, 2003)

*Distants Off* - Dish can spend the next three months preparing for the two week rush in December ... which I'm sure they are confident will not be to bad. Remember, they come from a position where their current distants customers are all legal subscribers. Unless the audit turns up a lot of people receiving distants in error their biggest event will be turning off east coast distants from west coast subscribers.

*Locals On* - Most LIL is on 119° or 110° - satellite positions that most of their customers already have. There will be a relative few 119° only subscribers who will need D500's to see 110° or something else if their locals are elsewhere. But the majority of subscribers can get their own locals on a D500. This "October 1st" rush will be an easily met deadline for dish installs in most markets.

*Authorizations* - 800,000 in a week or so? I'm curious how many don't subscribe to locals. Many of those could be in non-LIL areas. If they can't get it done by October 1st due to overburdening the system (and the court's delay in accepting the settlement) I'm sure there will be some grace period.


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## BobS (Jun 23, 2006)

While E* could offer individual local network stations (or smaller packages), it has chosen not to do so. Since as a practical matter, E* must carry all local stations, it makes business sense to offer them only as a package. Now discriminatory pricing may be relevant in bundling if, for example, E* offered different local packages:

ABC, CBS, NBC, FOX $1.50/each per month or
ABC+CBS+NBC $3.00/month
ABC+CBS+FOX $4.00/month
CBS+NBC+FOX $4.25/month

would be unlawful discriminatory pricing done with bundled programming. Therefore it is unlikely that anything other than a complete package (or equally priced individual stations) would be marketed. Something like

individual station - 1.50
any two - 2.75
any three - 4.00
all four - 5.25

would seem to be legal but an administrative nightmare



joblo said:


> These are the only relevant code sections I know about (emphasis added):
> Not that the first provision does not say "provide one, provide all", but rather "provide one, carry all", and the second provision requires providing "access to", not providing the stations themselves. Further, the nondiscriminatory pricing requirement implies the possibility of a la carte subscription, because the notion of discriminatory pricing _within_ a bundle is meaningless.
> 
> Now if you or anybody else knows of another provision that specifically requires bundling, please post.


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## kstuart (Apr 25, 2002)

I have to think that a big chunk of the close to one million distants customers are "grandfathered" - from the early period when there was no LIL at all, and from my reading of Forums back then, people did not want their "inept and low quality" local stations. Those people could not - in theory  - subscribe to LIL without losing distants, but more importantly, they did not want to.

Just speculation, but I think there will be a lot of authorizations.

More importantly, each one of the million accounts has to be checked to see whether or not it already has LIL. (I say million, because it is the sum of the four network's subscribers minus the overlap - even those who only have one distant network will need to be checked and their LIL turned on).

PS Note that Dish wants six months to turn everyone off, if the settlement is refused.


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## James Long (Apr 17, 2003)

kstuart said:


> Just speculation, but I think there will be a lot of authorizations.


A lot has changed since the early days ... While inept locals is a valid reason for wanting distants, not having locals via sat was a bigger reason (now 95% of America in 168 markets plus PR can get their own locals). Plus getting OTA EPG data on the newest receivers requires locals (a minor influence).

It's all speculation ... but I'm sure that E* will find a way top handle the load. Turning ON channels is a lot easier than turning them off.


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## kstuart (Apr 25, 2002)

The thought just occurred to me that by far the easiest way of doing the authorizations (especially if the decision is not made until mid-next week ! ) would be to simply declare a "Free Preview of Your Local Channels" for all subscribers, and just turn on all the LIL channels for all receivers.

Then, they would have two months to turn them off for those who don't already have LIL and also don't have distants. In fact, they might get a few new customers who didn't know LIL existed as in... "Hey Joan, look at those new channels in the 7400's - they come from right here in Springfield !".


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## juan ellitinez (Jan 31, 2003)

I thought this was supposed to be a mere formality for D*.. Could this case be more complex than originally thought?


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## joblo (Dec 11, 2003)

kstuart said:


> The LIL stations are neither the closest affiliates, nor the Grade B signals. So, people here would still have to get waivers from both the Grade B *and* the LIL affiliates of that network ?


Yep. That's my understanding, anyway.

Just curious, are you in Medford DMA with tx of 7 and 12 from Chico-Redding?

Also just curious, Geronimo, what did you think I meant?

BobS, the question was whether or not ALL locals had to be sold as a bundle. My point was that if that were the requirement, then the provision for non-discriminatory pricing would be superfluous.

James, thanks for posting the letter.


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## Geronimo (Mar 23, 2002)

joblo said:


> Yep. That's my understanding, anyway.
> 
> Also just curious, Geronimo, what did you think I meant?
> 
> .


Just to show you how far off I was I though that you were referring to a specific reference to ala carte and possibly even a reference to only offereing a subset of the channels as opposed to all of them. . You meant nothing of the kind and never said it. You just said that a la carte locals might meet the letter of the regulation but would be a nightmare to administer. you also drewa clear distinction between what is carried and how it is offered. I was just out to lunch.


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## Geronimo (Mar 23, 2002)

BobS said:


> While E* could offer individual local network stations (or smaller packages), it has chosen not to do so. Since as a practical matter, E* must carry all local stations, it makes business sense to offer them only as a package. Now discriminatory pricing may be relevant in bundling if, for example, E* offered different local packages:
> 
> ABC, CBS, NBC, FOX $1.50/each per month or
> ABC+CBS+NBC $3.00/month
> ...


i don't think that you could offer one block of three stations for a different price than another three. that would be seen as discriminatory or could be. but your second example might fly but there would be charges of unfairness in terms of some getting all of their locals (ina small DMA) for a lower price than people in al arge one----just as we now hear why do i get four channels when people in the next county get eight/


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## Geronimo (Mar 23, 2002)

kstuart said:


> Thanks for the replies !
> 
> More details :
> 
> ...


I believe that the answer is yes. I live in the DC DMA. May have to get waivers from the DC and BALTIMORE affiliates (even though they can't get the Baltimore locals by DBS) to get a distant net.


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## kstuart (Apr 25, 2002)

By the way, does the customer have to know any of this (regarding waivers), or does Dish simply submit to the required stations ?


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## buddhawood (Nov 4, 2003)

I'm not sure if this is the proper area for this posting but I just receieved the e-mail from DISH wanting me to resubmit my info for RV exemption.

Dear XXXX XXXX,

You previously provided us with documentation we are required by law to obtain in order to provide ABC, NBC, CBS and Fox network programming to your RV or commercial truck. In order for us to continue providing ABC, NBC, CBS and Fox network channels to your RV or commercial truck, the law requires that we update our records. The most efficient way to update this information is to go to www.dishnetwork.com.

This will then take you to an instructional page that provides you with what documents are necessary for you to send to us along with the RV\Commercial Truck Declaration Form that is required for you to complete, sign and send back to us. This form is located at the bottom of this instructional page. It is necessary for you to complete the RV\Commercial Truck Declaration form and attach your Current State vehicle registration and send this back to us. Please note for commercial trucks in addition to the completed, signed, form and the current vehicle registration we also require that you send us a copy of your current valid CDL as well.

We apologize for the inconvenience; the law requires us to stop providing these channels to you unless the required documents are updated. You will still continue to receive your other great programming services that DISH Network currently provides to you. Without updated documentation from you for these four channels, by law, we will have to disconnect those services. If for any reason you cannot access this for and would like to speak to a customer service to have a form and sent out to you, please call us at 1-800-333-DISH, (3474).

By completing and returning to this us in the next 5 business days, it will help us to ensure that you will not have an interruption in Services to local broadcast channels, ABC, NBC, CBS and Fox network.

Thank you for your immediate attention to this matter.

From our,

Customer Care Services of DISH Network


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## BobS (Jun 23, 2006)

Geronimo said:


> i don't think that you could offer one block of three stations for a different price than another three. that would be seen as discriminatory or could be.


Umm, isn't that exactly what I said?



Geronimo said:


> but your second example might fly but there would be charges of unfairness in terms of some getting all of their locals (ina small DMA) for a lower price than people in al arge one----just as we now hear why do i get four channels when people in the next county get eight


Nonsense. Are cable prices consistent between markets? Can you buy a Big Mac in NYC for the same price as Peoria, IL? The ban on discriminatory pricing pertains to stations in the same market and furthermore has nothing to do with SV stations.


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## boylehome (Jul 16, 2004)

Here is a new report that looks grim: http://www.redorbit.com/news/techno..._transmissions/index.html?source=r_technology


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## Geronimo (Mar 23, 2002)

How does the fact that it might be nonsense refure the idea that some people would complain about it. 

As for your other comment i was responsing to someone else's post.


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## James Long (Apr 17, 2003)

kstuart said:


> The thought just occurred to me that by far the easiest way of doing the authorizations (especially if the decision is not made until mid-next week ! ) would be to simply declare a "Free Preview of Your Local Channels" for all subscribers, and just turn on all the LIL channels for all receivers.


The problem being teaching the receivers what market's locals can be displayed. If a channel is put up in free preview it could be available outside of it's own DMA and that would violate the law.


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## James Long (Apr 17, 2003)

boylehome said:


> Here is a new report that looks grim: http://www.redorbit.com/news/techno..._transmissions/index.html?source=r_technology


Yes it does. But despite the headline of September 22nd, the slug on the page says *(20060823/WIRES /)* and the story is old ... pre settlement. Much has changed since the supreme court passed on looking at this case.


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## kstuart (Apr 25, 2002)

James Long said:


> The problem being teaching the receivers what market's locals can be displayed. If a channel is put up in free preview it could be available outside of it's own DMA and that would violate the law.


Yes, you are certainly right there !

What I realized is this - since the date of October 1st is "hard coded" (i.e. not x days or weeks after some event), then Dish must have already started on the plans to add LIL to all Distants subscribers.

In fact, it is probably what they want to do either way - if they lose Distants altogether, then the best way to keep those subscribers (especially since it will be Dish's fault) will be to give them access to those same networks for free for some period, and give those customers a chance to try LIL (their only way to get the networks through Dish).

So, they may have started planning for turning on LIL for Distant subscribers even before the Settlement was agreed to.

PS I assume now that nothing will happen until next week, with regard to the Court...


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## boylehome (Jul 16, 2004)

James Long said:


> Yes it does. But despite the headline of September 22nd, the slug on the page says *(20060823/WIRES /)* and the story is old ... pre settlement. Much has changed since the supreme court passed on looking at this case.


Most excellent. Untimely old news just to stir things up. Hopefully the outcome will be favorable.


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## James Long (Apr 17, 2003)

From FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/15/06 1011 UNOPPOSED MOTION by Fox Broadcasting for leave to file Combined Reply (gp) [Entry date 09/18/06]

9/18/06 1012 ORDER Granting [1011-1] unopposed motion for leave to file combined reply to the two memoranda filed in opposition to its motion for entry of injunction (Signed by Judge William P. Dimitrouleas on 9/19/06) [EOD Date: 9/20/06] (ss) [Entry date 09/20/06]

9/21/06 1013 RESPONSE by Fox Broadcasting in opposition to [1008-1] stipulation (cj) [Entry date 09/22/06]

9/21/06 1014 REPLY by Fox Broadcasting to response to [1000-1] motion for entry of injunction (cj) [Entry date 09/22/06]

[END OF DOCKET: 1:98cv2651]​Text not yet available for Fox's responses ... A note from the earlier ORDER that the court gave for Fox to file a single reply, they were limited (as requested) to 20 pages. 

1011 and 1012 attached for your amusement.


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## kstuart (Apr 25, 2002)

Since there are no reporters on the Courtroom steps, maybe DBSTalk can pay some out of work teenager a few bucks to wait there for us, and call James Long with any news ?


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## JohnH (Apr 22, 2002)

Reliable Source.


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## Geronimo (Mar 23, 2002)

actaully the media was doping a pretty good job on all of this until the last few weeks. Thank you mr. long for "filling in"a bit.


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## shippert (Aug 12, 2003)

James Long said:


> From FLSD PACERDistrict Web PACER (v2.4)
> [ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]
> ​




The irony is, this courtroom play-by-play is a lot more entertaining than anything on FOX this season.​


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## cj9788 (May 14, 2003)

James is 1013 and 1014 available yet?


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## James Long (Apr 17, 2003)

cj9788 said:


> James is 1013 and 1014 available yet?


Yep.

1013 is a short objection to the Consent Judgment.
1014 is the longer response ... Highlights:Throughout this litigation, the Affiliates have vehemently argued that this Court _lacks_ discretion to enter anything other than a nationwide permanent injunction. The Affiliates now take the contrary position and argue for this Court to exercise discretion and enter a consent decree instead. Given EchoStar's blatant violation of this act and its conduct in this proceeding (and others), FOX fails to understand why any plaintiff would set aside the straightforward injunctive relief it had sought for eight years for a settlement agreement that depends on EchoStar abiding by an enforcement scheme that is even more complicated than the statute itself - and that requires EchoStar to keep the very promises it broke to this Court.​FOX presents the argument that the mandated injunction is not optional, and presents some previous cases to support that view. They also claim that a settlement is not a "changed circumstance" that would allow the mandate not to be issued.

On subscriber terminations - FOX holds that as many as half of E*'s current 800,000 distants subscribers are not eligible and would lose distants under the proposed settlement. FOX also points to E*'s provision of locals in 167 markets (now 169) and 10-Q statements about providing network stations OTA or by other means if the injunction were put in place. FOX also (in a footnote on page 12) state:The divestiture of EchoStar's _statutory_ license does not mean that EchoStar's subscribers can no longer receive distant-signal network service. EchoStar can still negotiate directly with the networks and upstream copyright holders for licenses to transmit copyright material; it simply no longer has the blanket license conferred by the act.​FOX's response on the DIRECTV antitrust issue is on page 13.FOX, however, as a prevailing party, simply seeks the relief to which it is entitled under the Eleventh Circuit's mandate and the Act. Surely, FOX's pursuit of a remedy to which it has been judged entitled does not raise antitrust concerns. Moreover, FOX commenced this litigation years before it acquired any interest in DIRECTV.​On page 14:FOX also stands to suffer significant harm if EchoStar were only enjoined from transmitting distant signals for the FOX network. Networks suffer concrete harms when a satellite carrier is enjoined from transmitting their signals to distant markets. [. . .] FOX decided those harms were outweighed by the benefit of stopping EchoStar's illegal behavior once and for all, and FOX and fox also concluded that it would bear those harms along with the other networks. Were EchoStar enjoined only as to FOX programming, FOX would bear those harms alone, which constitutes a "demonstrable, particularized injury."​FOX claims standing based on being a network (not just the owner of 25 stations). They also claim that the Affiliates have NOT dismissed their claims against EchoStar but have instead asked for a complicated Consent Judgment. (Evidently they missed paragraph 22 of the CJ which states "_All pending motions or other matters pending before the Court with respect to these parties are hereby declared moot and are dismissed with prejudice._" )


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## pdxsam (Jun 20, 2004)

And there's the entire crux of what Fox is trying to do.

Fox doesn't want to settle and Fox doesn't want to lose the DNS eyeballs. Therefore Fox is playing the irreparable harm card. They're hoping the judge will look at that portion of the argument and enjoin the entire settlement from being accepted, rather than "cause harm" to Fox.

If the judge ignores that aspect it would seem Fox would then have another legal avenue to pursue and continue to needle E*. This all looks like it's farther from over than it was a couple of weeks ago.


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## James Long (Apr 17, 2003)

Apparently all other parties in this case looked at the decision FOX made and decided differently. "_Networks suffer concrete harms when a satellite carrier is enjoined from transmitting their signals to distant markets. FOX decided those harms were outweighed ..._" However ABC, NBC, CBS and the affiliate groups all decided that those harms were not outweighed. Should the business decision of one party in a case inflict harm on ALL other parties in the case?


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## makman (Dec 2, 2002)

I am not a lawyer, and I certainly want Fox to lose, but the argument they are making seems pretty clear. They say that based on law the judge has no choice but to enforce the injunction, even if none of the parties want it (and even if Fox was one of the settling parties).

Perhaps there are precedents contradicting Fox's position. I hope so, because if there are not, the judge will impose the injunction.

Mitch


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## JohnH (Apr 22, 2002)

$100 million can repair a lot of harm.


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## minnow (Apr 26, 2002)

Of course Fox makes no mention of the fact that Direct and Direct alone will be the only satellite provider able to offer Distants to those that are eligible(which must be several hundred thousands current E* subscribers) and will by sheer coincidence able to offer the Fox network feed as well. 
A blind man could read the motivation between those written lines of FOX's response.


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## Greg Bimson (May 5, 2003)

James Long said:


> FOX claims standing based on being a network (not just the owner of 25 stations). They also claim that the Affiliates have NOT dismissed their claims against EchoStar but have instead asked for a complicated Consent Judgment. (Evidently they missed paragraph 22 of the CJ which states "All pending motions or other matters pending before the Court with respect to these parties are hereby declared moot and are dismissed with prejudice." )


The problem is that _at this time_, the claims above have still not been dismissed. Sure, paragraph 22 claims all pending matters are now moot, but since this is a part of the settlement, the settlement must be approved by the judge before the claims are actually considered moot.

If we take a look at this settlement, there is a space for the signatures of all the parties involved (minus FOX network), and even a space for the judge to sign.


makman said:


> Perhaps there are precedents contradicting Fox's position. I hope so, because if there are not, the judge will impose the injunction.


Uh, get ready everyone, because it will now take an absolute miracle to save distants as we currently know them.


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## James Long (Apr 17, 2003)

Overall Fox's response was "as needed". They mentioned the major points and spent most of their pages arguing the important issues --- not the last minute allegations intended on slandering Fox. But there is still a window of opportunity for the Court to decide against Fox and for all of the other parties in the case.

The parties have requested dismissal ... all signed that request on the filings sent to the court along with the Consent Judgement. We're splitting legal hairs here ... and I believe Fox is under the spotlight more than E* in making sure their arguments stand up in court.


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## bobukcat (Dec 20, 2005)

I'm no lawyer, but I'm also really glad I'm not someone relying on receiving distant networks from E* because it sure doesn't look too good to me. I can't help but wonder why there wasn't a settlement in the 8 years this thing has been cooking, but that point has been made here dozens of times.


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## makman (Dec 2, 2002)

James Long said:


> .... But there is still a window of opportunity for the Court to decide against Fox and for all of the other parties in the case.
> 
> The parties have requested dismissal ... all signed that request on the filings sent to the court along with the Consent Judgment. We're splitting legal hairs here ... and I believe Fox is under the spotlight more than E* in making sure their arguments stand up in court.


Again I hope I am wrong. However Fox argues you cannot have a consent judgment that contravene's the law. They then make the point that the law dictates the injunction, not the judge or the parties to the dispute. It is kind of like a minimum sentence for a crime. If Congress says bank robbery mandates a minimum 10 year sentence, a judge cannot give less. That is why some people go to jail for stealing a loaf of bread under the 3 strikes laws.

Mitch


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## Greg Bimson (May 5, 2003)

James Long said:


> But there is still a window of opportunity for the Court to decide against Fox and for all of the other parties in the case.


I am in the belief the window has passed. As a matter of fact, the window passed ages ago, like when the case went to the Appeals Court.

As makman mentioned, it is almost exactly like the three strikes law. The court must issue the sentence given in the law. And on this go-round of briefs, even Fox made mention that mandates from higher courts are not to be ignored, and had case law to back it up. And Fox even made the point that the "Settling Affiliates" also were seeking a permanent injunction, but flip-flopped when the issue of $100 million was brought up.

What I believe happened here is that the Judge gave every opportunity for all points to be heard before he issues his decision. And we will probably see that when the Judge's order is given. This will lead to a more "bulletproof" remedy which cannot be appealed.


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## James Long (Apr 17, 2003)

There are differences between civil cases and criminal cases. Fox seems to be approaching this from a criminal case perspective ... seeking punishment for the crime ... instead of a civil case perspective of righting a wrong. Wrongs can be righted in many ways.

The arguments have been tossed back and forth for eight years. I'm not saying that Fox didn't make a compelling argument ... but the Court needs to look at what is the best outcome of this case. It is a bigger question that I'm sure we will be hearing more about within the next couple of days.

Anything can be appealed. Only the Supreme Court has a right to end appeals (and then only on what has already been appealed).


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## kstuart (Apr 25, 2002)

JohnH said:


> $100 million can repair a lot of harm.


Yes, all the parties in this suit are businesses, and as such, the harm is to their business.

All the other networks and affiliates have stated that monetary compensation for lost revenue, solves the problem for them - as businesses.

The only people involved who have non-financial harm are consumers, and they only have harm if their distant channels are turned off.

The other interesting point - which I hope the judge notices - is that Fox Affiliates have agreed to the settlement. Thus, the only characteristic whatsoever that differs Fox Network from all the other parties is that they own DirecTV.

PS I assume that the "delay" is simply the clerks finding all possible precedent for the decision that the judge already made.


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## makman (Dec 2, 2002)

James Long said:


> There are differences between civil cases and criminal cases. Fox seems to be approaching this from a criminal case perspective ... seeking punishment for the crime ... instead of a civil case perspective of righting a wrong. Wrongs can be righted in many ways.
> 
> ... but the Court needs to look at what is the best outcome of this case. It is a bigger question that I'm sure we will be hearing more about within the next couple of days.
> 
> Anything can be appealed. Only the Supreme Court has a right to end appeals (and then only on what has already been appealed).


James, I hope you are right, but I doubt it.

It has been appealed to the Supremes, and they refused to hear it. This means the Appeals Court decision is no longer appealable. Certainly if this was simply one party suing another a consent agreement would probably be enforceable. However this is not really everyone suing Echostar. This is everyone basically pointing out to the court that Echostar broke the law. That law has mandated penalties. Now that it is decided from a legal standpoint that Echostar indeed violated the law, the parties cannot go back in time and say never mind, even if they all wanted to, including Fox. The judge will have no choice but to impose the penalty that Congress wrote into the law. Congress did not give leeway.

I hope that Fox left out the precedents that refute their argument, and that those precedents exist. If not they pointed out to the judge what he must do, irrespective of their motivation.

Mitch


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## Greg Bimson (May 5, 2003)

James Long said:


> There are differences between civil cases and criminal cases. Fox seems to be approaching this from a criminal case perspective ... seeking punishment for the crime ... instead of a civil case perspective of righting a wrong. Wrongs can be righted in many ways.


True enough. However, remember that this same judge issued a nationwide injunction in 2003, only to have Echostar appeal it. Echostar could have settled then. The mistake that Dish Network made was one of arrogance: if they find us guilty and force us to turn off all distant networks, we'll just throw money at them. The problem is that like a criminal case, this civil case has only one remedy which must be followed. Which happens exactly to be Fox's argument.

I still caste my lot that the injunction will be issued. Whethr or not it is appealed to a higher court is unknown (and moot to me).


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## James Long (Apr 17, 2003)

If ALL the lower court did was follow the mandate of the appeals court as confirmed by one justice of the supreme court I would tend to agree with you, makman. But the judge has already left that path.

He left the path to injuction when he gave E* until September 12th to show cause why an injuction should not be issued. He left it further when asked Fox for a reply to the objections to their motion (instead of simply dismissing their motion and objections as unnessisary). The judge should be concentrating on what HE ordered --- the issue of E* showing cause why an injunction should not be issued -- not on Fox's actions. We are *far* off the path to injunction.

That is why I'm not ready to close the case and assume that E* will lose distants. It seems that the judge is looking for every opportunity NOT to issue that injuction.

Even if an injuction is issued it is not the end of the line. Regardless of the decision it will be appealed, either by the settling parties or by Fox. It's not over until the Supreme Court says that it is over (or all parties stop appealing).


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## James Long (Apr 17, 2003)

Greg Bimson said:


> remember that this same judge issued a nationwide injunction in 2003, only to have Echostar appeal it.


So why is E* still offering distants? Or is this the silly injuction referred to in Fox's latest filing (where an injuction was issued commanding E* not to provide distants to those NOT eligible)?

Odd injunction - Like a cop telling you to stop at a stop sign and not go the wrong way down a one way street. No further restriction than already on law abiding citizens/corporations. Just a further restatement of the law.


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## makman (Dec 2, 2002)

You make a valid argument James. I hope you are right. Fox makes the argument that the judge has no choice. It really comes down to whether or not that is true. We will soon find out.

Mitch


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## kstuart (Apr 25, 2002)

makman said:


> You make a valid argument James. I hope you are right. Fox makes the argument that the judge has no choice. It really comes down to whether or not that is true.


Aside from legal aspects, James' point is very insightful. If the judge were just going to say "I have to issue the injunction, I have no choice", then he would have done so.
Every day that passes without an injunction, makes the settlement more likely. The amound of documentation that the judge needs to sign the settlement is much more than he needs to simply say "the law gives me no choice but to issue the injunction", so I think that the fact that there is no ruling yet, 5 days after the last statements by the lawyers, means that a settlement is likely.
The number of civil cases is quite large, and the judge's clerks are sure to be able to find some case that was settled despite a mandatory penalty.


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## makman (Dec 2, 2002)

kstuart said:


> If the judge were just going to say "I have to issue the injunction, I have no choice", then he would have done so.


As someone else said, he may simply be trying to bulletproof his ruling by giving both parties one last time to comment. That way they cannot go back to the appeals court saying he did not listen to them. Of course they can say he listened and ignored.

Mitch


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## James Long (Apr 17, 2003)

Which is why I expect further appeals, regardless of the decision.


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## kstuart (Apr 25, 2002)

makman said:


> As someone else said, he may simply be trying to bulletproof his ruling by giving both parties one last time to comment. That way they cannot go back to the appeals court saying he did not listen to them.


But that last comment was 5 days ago.

If his thought was, "I am bound by the law to issue an injunction, because it is mandatory, but I'll give both sides one last time to comment", then he could have issued the injunction on Friday.


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## makman (Dec 2, 2002)

kstuart said:


> But that last comment was 5 days ago.
> 
> If his thought was, "I am bound by the law to issue an injunction, because it is mandatory, but I'll give both sides one last time to comment", then he could have issued the injunction on Friday.


Well, he does have a life and other cases. He gets to set the deadlines for others, not vice versa.

Mitch


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## James Long (Apr 17, 2003)

With the inherant delay in the information we are getting (at least the end of the next business day for docket summaries and two business days on full text via PACER) we are always going to be a step behind on the story. We will have the court's decision when issued ... but as noted before ... we are likely to see a news release from a party to the case praising or complaining about the outcome before the public court document system catches up.

There may have been another filing or a request for additional information or other activity yesterday - or perhaps today - we won't know until tomorrow or the next day.

BTW: I don't consider myself right or wrong either way when it comes to the outcome. I'm not going to sit here and say there will be an injuction or that there will not be an injuction. Although my gut feeling is that the court is looking for a reason not to issue the injunction.

I do fully expect an appeal regardless of Judge William P. Dimitrouleas' decision and would be very suprised if this ended without a further appeal from whomever he decides against.


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## kstuart (Apr 25, 2002)

James Long said:


> I do fully expect an appeal regardless of Judge William P. Dimitrouleas' decision and would be very suprised if this ended without a further appeal from whomever he decides against.


I have to say that I think it very very unlikely that Judge Dimitrouleas' decision will be overturned. We've been through that whole process, up to the Supreme Court who said "go away, the Wizard does not want to see you".

If the Judge issues the injunction, I cannot see any other judge issuing a temporary stay. If the Judge signs the settlement, I cannot see any other judge issuing a temporary stay of the settlement.

In either case, Dish will be probably be turning on Locals this weekend.


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## makman (Dec 2, 2002)

kstuart said:


> If the Judge issues the injunction, I cannot see any other judge issuing a temporary stay. If the Judge signs the settlement, I cannot see any other judge issuing a temporary stay of the settlement.


I partially agree. If he issues the injunction, and DISH appeals, the appeals court will simply refuse to hear it because the judge followed their orders. Same with the Supremes.

If he signs the settlement, that is a different story. That is deviating from the mandate from the appeals court, and they will likely want to have a little input on that.

Mitch


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## James Long (Apr 17, 2003)

I said appeal, not successful appeal. 

Justice Thomas decided to leave the case up to the 11th Circuit - if they decide to withdraw their mandate he will probably agree. His prior decision to pass on accepting this case at the Supreme Court does not prevent the case from reaching that level in the future - although I hope things can be settled at a lower level.

Three outcomes:
1) Judge Dimitrouleas issues a permanent injunction pursuant to the mandate from the appeals court and walks away. E* and the settling parties appeal to that court. The appeals court then has to decide if they can set aside their own mandate and clear the injunction - or not. "Go away" is an option at the appeals court level, but even that can be appealed.

2) Judge Dimitrouleas issues a permanent injunction pursuant to the mandate then promptly sets aside the injuction (he's done his bit for the appeals court by issuing the mandate and has the authority to set aside his own injuctions). Fox cries foul and we're back at the appeals court deciding if the mandate was followed and, based on Judge Dimitrouleas' opinion, what needs to be reversed/upheld.

3) Judge Dimitrouleas accepts the Consent Judgement and does not issue an injunction. Fox takes it to the appeals court.

Three options ... all involving appeals.


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## makman (Dec 2, 2002)

Isn't this game fun?


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## pdxsam (Jun 20, 2004)

I dropped notes to my congressman and senators weeks ago. I got a reply from one of my senators office today. In the letter the Fox situation was specifically named. The letter said conversations with Fox from that level are ongoing. So it should be interesting in the next couple of weeks.


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## Geronimo (Mar 23, 2002)

makman said:


> James, I hope you are right, but I doubt it.
> 
> It has been appealed to the Supremes, and they refused to hear it. This means the Appeals Court decision is no longer appealable. Certainly if this was simply one party suing another a consent agreement would probably be enforceable. However this is not really everyone suing Echostar. This is everyone basically pointing out to the court that Echostar broke the law. That law has mandated penalties. Now that it is decided from a legal standpoint that Echostar indeed violated the law, the parties cannot go back in time and say never mind, even if they all wanted to, including Fox. The judge will have no choice but to impose the penalty that Congress wrote into the law. Congress did not give leeway.
> 
> ...


This is till a civil proceeding. it wil proceed based on civil law rules not criminal law rules.


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## Greg Bimson (May 5, 2003)

Yes, Geronimo, this is still a civil proceeding. The difference is that FOX network in their response showed that a mandate from a higher court cannot be ignored upon remand, even in civil case law, and referenced the cases to prove it.


James Long said:


> So why is E* still offering distants? Or is this the silly injuction referred to in Fox's latest filing (where an injuction was issued commanding E* not to provide distants to those NOT eligible)?


Because that injunction was stayed while awaiting the Appeals Court's. Let's take a look at Dish Network's celebratory press release, when Echostar decided to appeal the judgment...


> LITTLETON, Colo.--(BUSINESS WIRE)--June 11, 2003--EchoStar Communications Corporation (Nasdaq: DISH) is pleased that a Florida court has found that EchoStar's current network channel qualification policies are in substantial compliance with copyright laws. We are also pleased that the court rejected the outrageous attempt by broadcasters to try to force EchoStar to terminate local and distant network channels to all customers. Importantly, the decision today does not impact any DISH Network customers who are receiving their local ABC, NBC, CBS or FOX network channels by satellite. No damages were awarded by the court.
> 
> "This has been a long and hard fought legal case that attempts to balance the rights of broadcasters and consumers," said Charles Ergen, chairman and CEO of EchoStar. "We look toward moving forward with broadcasters by continuing to add local cities and to make sure that all sides honor the Satellite Home Viewer Improvement Act (SHVIA) of 1999."
> 
> ...


Or let's look at the celebratory press release when the stay of the injunction was granted:


> LITTLETON, Colo.--(BUSINESS WIRE)--Aug. 13, 2003--In a major victory for satellite TV subscribers, EchoStar Communications Corporation (NasdaqISH) reported today that the U.S. Court of Appeals 11th Circuit Court in Atlanta granted EchoStar's motion to stay a District Court's injunction, pending appeal.
> 
> The court decision impacts a long-running case regarding the limits broadcasters can place on the right of consumers to receive CBS, Fox, ABC and NBC network channels by satellite from markets other than the city in which the consumer lives.
> 
> ...


This would be when the network affiliate boards cross-appealed for a more broad injunction.

Dish Network could have settled right then and there. The same judge issued an injunction to requalify every one of Dish Network's distant customer. Echostar took their fight to the Appeals Court and basically had the rug pulled right out from under them in the form of the "death penalty". So, we are still waiting for the judge to issue the injunction, or whatever remedy he believes is fitting.


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## joblo (Dec 11, 2003)

A few things…

First, James, do you have appendix B, and does that contain Fox’s proposed text for the injunction?

Second, my understanding is that E*’s SCOTUS appeal is still pending, and that all Thomas did was decline to stay the Eleventh Circuit order pending that appeal. While it’s unlikely the Supreme Court will grant cert, that issue isn’t completely dead yet.

Third, I said before and I’ll say again, I don’t think people should read anything one way or the other into the delays in the case. The issues are complicated, and the fact that the judge is taking his time in issuing a ruling doesn’t suggest to me that an injunction is either more or less likely.

Now regarding the arguments…

The issues regarding standing are complex and almost certain to be appealed either way if the decision turns on those. The fact that a network and its affiliates are now arguing against each other is definitely a new twist with the potential to drag things out considerably.

Aside from issues of standing, Fox’s arguments all boil down to the fact that this court can’t reverse a higher court’s mandate. Ok, fine, but the appeals court could certainly reverse its own mandate, so if the decision turns on that point, it seems to me the settling parties’ appeal all but writes itself, and if the Eleventh Circuit sees any potential merit to an appeal on that basis, it will almost certainly stay the injunction again pending that appeal, just as it did in 2003.

Probably the biggest hoot, though, is Fox’s whine that it shouldn’t have to suffer the competitive disadvantage of having only its own network signals turned off. Aw, poor babies. I mean, really, if you sue for copyright infringement, loss of distribution/circulation/etc. is par for the course. If they don’t like that, they can always let E* have FOXNET.

In any case, whatever the merits of that argument, I doubt Congress will want to give Fox the day over even its own affiliates, much less allow Fox to disrupt distribution of ABC/CBS/NBC signals to eligible rural households.

Bottom line…

I can understand why Fox sees the affiliates’ settlement as taking away the fruits of its legal victory and why they are loathe to give those up, but politically, going up against the affiliates of all four networks is such a boneheaded move, it’s really hard for me to see what they hope to accomplish in the long run. Certainly this is no way to win friends and influence Congress.


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## James Long (Apr 17, 2003)

joblo said:


> First, James, do you have appendix B, and does that contain Fox's proposed text for the injunction?


Attached. (Sorry, I thought I had uploaded that earlier.)


joblo said:


> Second, my understanding is that E*'s SCOTUS appeal is still pending, and that all Thomas did was decline to stay the Eleventh Circuit order pending that appeal. While it's unlikely the Supreme Court will grant cert, that issue isn't completely dead yet.


I can't find the copy of the ruling I read, but media reports suggest that is the right interpretation.


joblo said:


> Probably the biggest hoot, though, is Fox's whine that it shouldn't have to suffer the competitive disadvantage of having only its own network signals turned off. Aw, poor babies. I mean, really, if you sue for copyright infringement, loss of distribution/circulation/etc. is par for the course. If they don't like that, they can always let E* have FOXNET.


Wikipedia has FOXNET as dead. Is it still even out there?


joblo said:


> I can understand why Fox sees the affiliates' settlement as taking away the fruits of its legal victory and why they are loathe to give those up, but politically, going up against the affiliates of all four networks is such a boneheaded move, it's really hard for me to see what they hope to accomplish in the long run. Certainly this is no way to win friends and influence Congress.


True - this is no way to make friends. Perhaps they think that E* will offer them $100 million as a network to go away? Of course at this point it is too late for that. Fox could not be caught changing it's own argument after making that accusation about the affilates in their reply.


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## Geronimo (Mar 23, 2002)

A mandate froma higher court cannot be denied in eithera criminal or a civil case. So that really is not relevant to my point that we can expect this to proceed like a civil case. 

What isat issue is whether the courts can consider the settlement and how. You have indicated that you feel that they cannot. We will see.


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## minnow (Apr 26, 2002)

Anyone know where I could find an avatar showing a stick figure grinding an ax? There are a few frequent and persistent naysayers here that I would like to share this with.
Until the judge makes a ruling all the speculation in the world isn't going to change the decision, irrespective of some of our learned colleagues here my postulate.


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## Geronimo (Mar 23, 2002)

Point well taken.


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## Greg Bimson (May 5, 2003)

joblo said:


> Aside from issues of standing, Fox's arguments all boil down to the fact that this court can't reverse a higher court's mandate. Ok, fine, but the appeals court could certainly reverse its own mandate, so if the decision turns on that point, it seems to me the settling parties' appeal all but writes itself, and if the Eleventh Circuit sees any potential merit to an appeal on that basis, it will almost certainly stay the injunction again pending that appeal, just as it did in 2003.


I would seriously doubt the Appeals Court would reverse its own mandate, especially when the judges of the 11th Circuit Court of Appeals refused to rehear the appeal _en banc_.

Question: if Judge Dimitrouleas issues the injunction, and Echostar and the Settling Affiliates wish to appeal, doesn't this go to the Supreme Court? I don't think the 11th Circuit would rehear this new appeal?

There is nothing wrong with being a nay-sayer.


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## minnow (Apr 26, 2002)

And if memory serves me correctly, several years ago, you were quite vociferous and a prolific poster regarding getting your Baltimore locals. That was obviously something you wanted very much. Now that the prospect appears that many of us that don't have locals and may will lose our distants, you seem to take great delight is dashing any glimmer of hope. You as a person who did have the shoe on the other foot, I would of expected a little more maturity or at least a little bit if humility.


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## James Long (Apr 17, 2003)

Lets keep this focused on the distants issue and not each other ... thanks!


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## Greg Bimson (May 5, 2003)

minnow, you have the wrong Greg. I could have cared less if my locals were available or not. Now that they are, I wouldn't do without them as the integration of the locals with the integrated DVR makes life much easier.

And I do feel for you if your locals are not available, which allows you to get distants. If the distants are terminated, it makes a DVR about as powerful as a running turtle.


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## James Long (Apr 17, 2003)

There are things on other channels ...


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## minnow (Apr 26, 2002)

Greg Bimson said:


> minnow, you have the wrong Greg. I could have cared less if my locals were available or not. Now that they are, I wouldn't do without them as the integration of the locals with the integrated DVR makes life much easier.
> 
> And I do feel for you if your locals are not available, which allows you to get distants. If the distants are terminated, it makes a DVR about as powerful as a running turtle.


My mistake then. I apologize.


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## minnow (Apr 26, 2002)

James Long said:


> There are things on other channels ...


That works if you don't care to see any of the programs the networks offer. That statement doesn't provide any relief for those that do want to watch a network program and will be unable to do so.


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## Geronimo (Mar 23, 2002)

Greg Bimson said:


> I would seriously doubt the Appeals Court would reverse its own mandate, especially when the judges of the 11th Circuit Court of Appeals refused to rehear the appeal _en banc_.
> 
> Question: if Judge Dimitrouleas issues the injunction, and Echostar and the Settling Affiliates wish to appeal, doesn't this go to the Supreme Court? I don't think the 11th Circuit would rehear this new appeal?
> 
> There is nothing wrong with being a nay-sayer.


The only reason for anyone to do anything different than what the higher court ordered is to consider the changed circumstances.

You are right nothing wrong with being eithera yea or naysayer but perhaps some of us (myself included) sgould take the earlier poter's message to heart.

Anyway we will eventually see how it all falls out.


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## joblo (Dec 11, 2003)

Greg Bimson said:


> I would seriously doubt the Appeals Court would reverse its own mandate, especially when the judges of the 11th Circuit Court of Appeals refused to rehear the appeal _en banc_.


But there was no proposed settlement on the table at the time the mandate was issued, and the Appeals Court might regard that development in a different light than the District Court. The _en banc_ appeal is irrelevant for the same reason.



> Question: if Judge Dimitrouleas issues the injunction, and Echostar and the Settling Affiliates wish to appeal, doesn't this go to the Supreme Court? I don't think the 11th Circuit would rehear this new appeal?


IIRC, the Schiavo case bounced back and forth between District and Circuit several times even while SCOTUS appeals were pending. I think anything the District does can be appealed back to the Circuit, even in parallel with appeals from Circuit to SCOTUS.

Of course, one can't just appeal for the sake of appealing. There have to be grounds. But given the complexities raised in the recent filings, does anyone seriously believe this judge can craft an opinion that the losing lawyers won't find a way to appeal?

- - -

Thanks, James, for posting Fox's proposed injunction. The way I read it, that language would take away not only DNS, but also SV, low power LIL, WMUR in northern NH, Burlington stations in southern VT, and Jackson stations in southwest MS, all of which licenses were not even a part of the statute at the time of the infringement. That goes beyond the Eleventh Circuit mandate, and as such, I don't see it happening.

There's also a question as to whether CW and MyNet stations could be considered affiliated with CBS Broadcasting, Inc., and Fox Broadcasting Company, respectively, in which case the supers would go, too. But again, I don't see that happening.


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## James Long (Apr 17, 2003)

minnow said:


> That works if you don't care to see any of the programs the networks offer. That statement doesn't provide any relief for those that do want to watch a network program and will be unable to do so.


Read again:


Greg Bimson said:


> If the distants are terminated, it makes a DVR about as powerful as a running turtle.





James Long said:


> There are things on other channels ...


DVRs can be used for recording things other than distant networks.

You are taking an extreme view ... as if not having the distants will totally destroy all value there is in E*'s service. Yet 95% of the American populaton lives in E*'s LIL markets and can get local network stations (and would not qualify for distants now unless they had them pre LIL and/or pre SHVERA). 94% of E* customers do not have distants today.

I had a DVR before I subscribed to locals. There are a lot of programs I never saw because they never showed up in the EPG. Programs I could have watched OTA but never bothered since I didn't know they were on. Programs I really never missed. But amazingly I found a use for my DVR and a reason to pay E* for service without watching network TV.

YMMV - but the end of distants is not the end of E*.


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## Geronimo (Mar 23, 2002)

The superstations are under an rentirely different authority. They do not go if the distant nets go.


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## James Long (Apr 17, 2003)

Geronimo said:


> The superstations are under an rentirely different authority. They do not go if the distant nets go.


They shouldn't ... but joblo was referring to the poor wording on the injunction Fox suggested should be issued. It did not specify 'distants' as being the service E* could not offer --- and 17 USC 119 includes more than 'distants' - it includes superstations and SV stations.

Saying that CW stations are CBS affiliates and MyTV stations are FOX affiliates is a stretch in my mind, but the injunction - if issued - needs to be more specific than Fox has written.


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## Geronimo (Mar 23, 2002)

James Long said:


> They shouldn't ... but joblo was referring to the poor wording on the injunction Fox suggested should be issued. It did not specify 'distants' as being the service E* could not offer --- and 17 USC 119 includes more than 'distants' - it includes superstations and SV stations.
> 
> Saying that CW stations are CBS affiliates and MyTV stations are FOX affiliates is a stretch in my mind, but the injunction - if issued - needs to be more specific than Fox has written.


Apparently I misunderstood. Not the first time. i don't think that too many think


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## Greg Bimson (May 5, 2003)

Sorry, James. Being unclear again. I think since minnow is in upstate NY, that he may actually have distants without locals, which would leave him no network TV through Dish Network. I feel for him if that is the case.

By the way, it appears that DirecTV may be running scared. DirecTV is cutting off *some* distant subscribers either today or tomorrow. They may be afraid of being sued again.


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## James Long (Apr 17, 2003)

I am concerned for those individuals who will have no networks (or missing networks) if distants are withdrawn ... but we do need to keep it in perspective. In the grand scheme of things losing distants harms E* but is not fatal.

On the D* issue:
If DirecTV is found to be illegally broadcasting distants it won't help Fox's case. (Of course any _legal_ finding would be years away, but an allegation with proof would be enough to hurt their image and allow E* to point out the hypocrisy.)


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## JohnH (Apr 22, 2002)

See if you can find the flaw in this section of an 8-K just filed by E*:

http://phx.corporate-ir.net/phoenix...vPXRlbmsmaXBhZ2U9NDQwMzY5MSZkb2M9MyZudW09MTA=


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## James Long (Apr 17, 2003)

JohnH said:


> See if you can find the flaw in this section of an 8-K just filed by E*:
> 
> http://phx.corporate-ir.net/phoenix...vPXRlbmsmaXBhZ2U9NDQwMzY5MSZkb2M9MyZudW09MTA=


_THE_ flaw?

First, it would be nice if they used the 2004 name for the law ... SHVIA has been rewritten a couple of times. But that's minor - at the level of typo.The Satellite Home Viewer Improvement Act permits satellite delivery of distant network channels only to "unserved households." An example of a distant network channel is a Los Angeles ABC, NBC, CBS or FOX network station retransmitted by satellite to a subscriber outside of the Los Angeles market. That subscriber qualifies as an "unserved household" if he or she cannot receive, over the air, a signal of sufficient intensity, or Grade B intensity, from a Los Angeles station affiliated with the same broadcast network.​I can't receive the Los Angeles station affilated with the same network as my local NBC. I must qualify for distants. OK, now were are above the typo stage - that last line should be: "_from any network station affiliated with the same broadcast network._" The LIL prohibition on getting distants needs to be worked in as well.

I don't know all the finer points, but "_In addition, the FCC's sports blackout requirements, which apply to all distant network signals, may require costly upgrades to our system._" is flawed.

And my last highlight: "_in the markets of all of the approximately 800 TV stations across the United States_". There are more than 800 TV stations in the US. Poorly worded - it would be much easier and clearer to write "in all TV markets".

I probably missed the other flaws. I'll leave those to others.


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## JohnH (Apr 22, 2002)

The first one was enough for me. I didn't go any farther. I can't receive Los Angeles.


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## minnow (Apr 26, 2002)

I read most of the filing and if you take what that document says at face value, Echostar may at any second from now go belly up. What a bunch of hooey. The sky is falling, the sky is falling !! We may lose the distants, we can compete with cable, we may not be able to continue to offer foreign language stations, we may not be able to re-negotiate existing programming contracts. If I were facing all these problems as a CEO, I'd close and lock the door. And I don't believe 90% of what they have written.


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## James Long (Apr 17, 2003)

From FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/12/06 1008 JOINT STIPULATION by ABC Television, CBS Television, FBC Television, NBC Television, EchoStar, EchoStar Satellite, Direct sat Corp., Satellite Operating In Re: consent judgment and approve settlement agreement (ss) [Entry date 09/14/06]
. . .
9/25/06 1015 REPLY by EchoStar in support of [1008-1] stipulation (ss) [Entry date 09/27/06]

[END OF DOCKET: 1:98cv2651]​E* replied in support of a stipulation that THEY (along with the affiliate groups) filed? (1008 is the joint settlement.)_"Why yes, we agree with what we said."_​Full text attached. (Looks like more of the same.)


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## James Long (Apr 17, 2003)

minnow said:


> I read most of the filing and if you take what that document says at face value, Echostar may at any second from now go belly up.


That is normal for that portion of a SEC filing. Fill it with gloom and doom so they can't be sued later for not being up front with shareholders about potential problems.


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## kstuart (Apr 25, 2002)

James Long said:


> From FLSD PACERDistrict Web PACER (v2.4)
> [ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]
> 
> 9/12/06 1008 JOINT STIPULATION by ABC Television, CBS Television, FBC Television, NBC Television, EchoStar, EchoStar Satellite, Direct sat Corp., Satellite Operating In Re: consent judgment and approve settlement agreement (ss) [Entry date 09/14/06]
> ...


No, that's not what this is.

It is a rebuttal to Fox's last arguments.

It also gives the Judge legal precedents of where "mandatory" penalties were not enacted in favor of settlements, i.e. arguing against Greg and other posters' claims that the Judge cannot legally do anything other than issue the injunction, and giving legal reasons why.

PS I think discussion of the SEC filing should be a different thread - having it in the same thread can be confusing for those not following all this in depth.


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## makman (Dec 2, 2002)

Well, after reading Echostar's reply in 1015, I feel better. They came up with multiple seemingly valid reasons why Fox's argument is wrong. Fox made it seem like the judge had no choice. Now it is up to the judge.

Mitch


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## Geronimo (Mar 23, 2002)

minnow said:


> I read most of the filing and if you take what that document says at face value, Echostar may at any second from now go belly up. What a bunch of hooey. The sky is falling, the sky is falling !! We may lose the distants, we can compete with cable, we may not be able to continue to offer foreign language stations, we may not be able to re-negotiate existing programming contracts. If I were facing all these problems as a CEO, I'd close and lock the door. And I don't believe 90% of what they have written.


As JL has alluded to publicly traded companies are actually required to share negative information with their investors. It does sound like gloom and doom just like some other bits of corporate news sounda biut optimistic.


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## James Long (Apr 17, 2003)

makman said:


> Well, after reading Echostar's reply in 1015, I feel better. They came up with multiple seemingly valid reasons why Fox's argument is wrong. Fox made it seem like the judge had no choice. Now it is up to the judge.
> 
> Mitch


It has always been up to the judge ... (Subject to appeal).


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## makman (Dec 2, 2002)

kstuart said:


> ...arguing against Greg and other posters' claims that the Judge cannot legally do anything other than issue the injunction, and giving legal reasons why.


I did say in one of my previous posts that I hoped there would be precedents arguing against what Fox argued. I am glad that there were.

Mitch


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## makman (Dec 2, 2002)

James Long said:


> It has always been up to the judge ... (Subject to appeal).


Perhaps, but Fox's argument clearly said it wasn't.

Mitch


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## Geronimo (Mar 23, 2002)

makman said:


> Well, after reading Echostar's reply in 1015, I feel better. They came up with multiple seemingly valid reasons why Fox's argument is wrong. Fox made it seem like the judge had no choice. Now it is up to the judge.
> 
> Mitch


If you subtract the actual Fox filings and what you read on this board you will see that most of the analysis has indicated that the settlement is likely to stand (though some think that an injunction will be issued involving FOX).

But the matter is not settled. BTW I would not take the Echostar filings at face value either. These are written by lawyers attempting to advocatea position. I am sure that they are men and women of rare decency and honor but they are also trying to advancea particular cause.


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## James Long (Apr 17, 2003)

makman said:


> Perhaps, but Fox's argument clearly said it wasn't.


I wouldn't read Fox's opinion (or E*'s) as the final answer.
It is ALWAYS up to the judge (whomever that may be).
And then the appeals ... jet another judge (or set of judges).


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## minnow (Apr 26, 2002)

I read the Echostar response to Fox's motion for which James provided the link above. To me it seems that what will drive the decision is if the Judge has the discretion to implement the injunction in light of the settlement. If the Judge does so possess that right, then I believe the court will accept the settlement. I do buy into the argument that E* makes in that filing that Fox does not have the right to speak on behalf of the remaining litigants. If those parties have come to a settlement, Fox cannot unilaterally decide to impose their secular will upon all the other litigants. Yes, certainly Fox can speak for itself but cannot speak for the others. But again what will turn this screw is if the Judge has the ability to change the order of the Court of Appeals. As someone else has already stated, I believe the Judge does otherwise he would of just issued the injunction weeks ago and not allowed the parties involved to keep arguing their points.
I also thought that some portions of E*'s written argument were poorly written, almost grade school level prose. I imagine that several different attorney's wrote specific sections of the response.


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## James Long (Apr 17, 2003)

We're still getting "FOX says" vs "E* says" arguments ... and basically the same points that they made two weeks ago.

I'm ready to hear what Judge Dimitrouleas says ...


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## makman (Dec 2, 2002)

James Long said:


> We're still getting "FOX says" vs "E* says" arguments ... and basically the same points that they made two weeks ago.


Not really.

Until we had the last E* filing, we only had Fox's argument which seemed to say that based on all the case law and precedents, the judge had no choice. We speculated as to whether that was true as none of us knew any case law to say otherwise.

Now E* has apparently shown case law that says the judge does have a choice. Of course this is why there are judges. He gets to decide which precedents are valid in the case.

Mitch


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## joblo (Dec 11, 2003)

makman, you apparently missed the E* and affiliate filings in 1007 and 1009, respectively, posted earlier in this thread.


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## James Long (Apr 17, 2003)

1007 has where E* attempted (succeeded? maybe) to show cause why the injuction should not be issued. Also 1009 has where the affilates made the same attempt. There was case law there (which, of course Fox said did not apply when they presented their own case law). A tit for tat {insert Benny Hill joke here}.

Perhaps 1015 was more clear ... but the argument comes down to FOX saying the judge MUST issue the permanent injunction and MUST make it apply to all networks nationwide vs E* saying the judge doesn't have to do that. Arguments that have been made time and time again.


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## minnow (Apr 26, 2002)

James Long said:


> We're still getting "FOX says" vs "E* says" arguments ... and basically the same points that they made two weeks ago.
> 
> I'm ready to hear what Judge Dimitrouleas says ...


\

I agree, Enough already. Issue the damn decision so all of us that will affected by this can make future decisions on how we are going to get the network feeds.


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## Greg Bimson (May 5, 2003)

James Long said:


> We're still getting "FOX says" vs "E* says" arguments ... and basically the same points that they made two weeks ago.
> 
> I'm ready to hear what Judge Dimitrouleas says ...


Actually, this is going to be quite interesting. In the 1015 filing, page 3, first paragraph, Echostar says...


> It is the Court's responsibility to determine whether the mandate requires entry of a nationwide injunction on behalf of _all_ networks, and whether the mandate requires the nullification of the recent settlement and, if so, whether any of the well-established exceptions apply.


Or, this written on 16 September:


Greg Bimson said:


> Just to clarify Echostar's tone on Filing 1007, all it is saying is that the settlement should trump the mandatory need for the judge to issue a permanent injunction. And of course, as we've seen before, Fox's belief is that because Dish Network was found guilty of a pattern or practice of willful infringement against all four networks, that the judge must order an injunction against the delivery of the big four distant networks.
> 
> So, we are simply waiting for the judge to answer the question, "Which takes precedence, the mandatory penalty of permanent injunction of the distant networks, or the settlement?"


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## kstuart (Apr 25, 2002)

So, the first part of the settlement is supposed to be implemented in 48 hours, and still no judgement. 

This is clearly taking longer than any of the lawyers thought it would take...


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## Geronimo (Mar 23, 2002)

One of the few things that we can say about this without fear of dispute is that lawyers are used to delays.


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## Greg Bimson (May 5, 2003)

Question:

If Judge Dimitrouleas doesn't issue his ruling by 1 October, and Dish Network has not complied with the settlement terms that are due on 1 October, doesn't it make the settlement moot?


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## bobukcat (Dec 20, 2005)

Greg Bimson said:


> Question:
> 
> If Judge Dimitrouleas doesn't issue his ruling by 1 October, and Dish Network has not complied with the settlement terms that are due on 1 October, doesn't it make the settlement moot?


I'd guess it means they have to create an amended settlement with a new "start" date because the decision won't be issued until after the proposed date.


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## Geronimo (Mar 23, 2002)

In this case the parties to the settlement seem interested in extending that deadline. it does provide an escape hatch for some party that changes their mind but it certainly does not automatically void the agreement.


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## James Long (Apr 17, 2003)

Greg Bimson said:


> If Judge Dimitrouleas doesn't issue his ruling by 1 October, and Dish Network has not complied with the settlement terms that are due on 1 October, doesn't it make the settlement moot?


What is the penalty listed in the settlement and Consent Judgement?

Sure, there are dates mentioned - but E* cannot be held to a date that occurs BEFORE the CJ is issued. And even if one does want to hold them to an impossible date, what is the penalty in the agreement for missing that date? (There is none.)


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## Geronimo (Mar 23, 2002)

In any settlement if one party does not fulfill the original terms then the other parties could back out. However in this case that appears unlikely.


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## kstuart (Apr 25, 2002)

If there was a "filing" today, when would the notice appear on the system ?


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## James Long (Apr 17, 2003)

Monday afternoon.


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## tsmacro (Apr 28, 2005)

.....when there's some actual news regarding this case?


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## James Long (Apr 17, 2003)

If anything major happens there will be a new thread ... sticky at the top of the forum. Goodnight!


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## James Long (Apr 17, 2003)

Thursday activity from FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/28/06 1016 REPLY by ABC Television, CBS Television, FBC Television, NBC Television to [1013-1] opposition response (ss) [Entry date 09/29/06]

[END OF DOCKET: 1:98cv2651]​1013 was FOX's opposition to the Consent Judgement. (Not to be confused with 1014 which was FOX's combined reply to the opposition to their motion for entry of injunction.) Text of the 1016 reply not yet available. (I don't expect anything Earth shattering.)


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## cj9788 (May 14, 2003)

Looks like E* is keeping to the time schedule in case the settlement gets approved. There is a thread on satguys about DNS subs having a free preview of the LIL channels.


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## James Long (Apr 17, 2003)

cj9788 said:


> Looks like E* is keeping to the time schedule in case the settlement gets approved. There is a thread on satguys about DNS subs having a free preview of the LIL channels.


Interesting. Looks like they are covering all the bases.
I suppose that covers kstewart's concerns about not having the 'free' locals on by October 1st.


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## levibluewa (Aug 13, 2005)

tonight in the Sub list. Is that an omen that NY and LA distant stations are going to be blacked out? Boooooo!!!


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## James Long (Apr 17, 2003)

You (in WA) should not lose LA unless you are one of the Oct 1999 grandfather customers.

Part of the settlement is to provide locals to all distants subs (whether they want them or not).
Also under the settlement you (in WA) will lose NY distants at the end of December.

These "100 mi away distants". Are they in your local market? What stations are you getting?


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## levibluewa (Aug 13, 2005)

James,

All the Seattle-Tacoma stations--KOMO, KING, KIRO, KSTW, MYQ22, religous and shopping channel.

So we lose NY at the end of December? Have been getting NY & LA since 1997 with DISH and from 1995-1997 with Directv.

Bruce


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## kstuart (Apr 25, 2002)

cj9788 said:


> There is a thread on satguys about DNS subs having a free preview of the LIL channels.


 It's interesting that no one on that Forum seems to have a clue about what is in the settlement, and only a small minority of the posters seem to even know about the settlement...


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## Geronimo (Mar 23, 2002)

While it has not created as biga stir over there there has been considerable discussion over there about the whole matter.


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## minnow (Apr 26, 2002)

Probably got to be a paying member of the "pub" to be a true insider over there.


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## James Long (Apr 17, 2003)

kstuart said:


> It's interesting that no one on that Forum seems to have a clue about what is in the settlement, and only a small minority of the posters seem to even know about the settlement...


Not everyone (even here) has followed this as closely as a few of the posters in this thread. 



levibluewa said:


> All the Seattle-Tacoma stations--KOMO, KING, KIRO, KSTW, MYQ22, religous and shopping channel.
> 
> So we lose NY at the end of December? Have been getting NY & LA since 1997 with DISH and from 1995-1997 with Directv.


Sounds like normil LIL locals (distants don't include stations outside the big four).

Yes, E* has negotiated away carrying distants that air prime time before the local market prime time - as well as the Oct 1999 grandfathering of distants withing Grade B of a local affiliate. If you are withing Grade B (but not Grade A) of a local affiliate you will need a waiver from that affiliate to continue getting distants. (Nobody within Grade A should get distants legally.)

BTW: The topic of this thread is E*'s distant networks not a comparison of forums discussing E*'s distant networks. Please stay on topic. Thanks!


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## Chris Walker (May 19, 2004)

James Long said:


> You (in WA) should not lose LA unless you are one of the Oct 1999 grandfather customers.
> 
> Part of the settlement is to provide locals to all distants subs (whether they want them or not).
> Also under the settlement you (in WA) will lose NY distants at the end of December.
> ...


James, I started that thread at satelliteguys and I didn't really get any answers to what was going on so this is interesting. Where did you read about what the settlement says? And what do you mean by providing the locals to people whether they want them or not? When I called Dish yesterday, the recording I received made it clear that if I didn't want locals, I could call the CSR and have them removed. Maybe they just have to activate them?

Also, why would the guy in Washington lose NY distants? You mean he can keep his LA distants?


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## James Long (Apr 17, 2003)

Please see the beginning of this thread. Post 8 was where I posted the settlement (from public court records). Discussion follows from there.

The settlement REQUIRES E* to provide LIL to all distant network subscribers if their market has LILs.
The settlement has not actually been approved (unless it was approved Friday and E* is not bragging.)
This "free preview" would meet the needs of the settlement (which requires that the locals added to distant's accounts be provided free through the end of the year).

LA distants are in the same time zone as WA so they are safe. The settlement does not allow distants from an earlier time zone.


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## colavsfaninnwia (Jan 25, 2006)

I got a waiver from Fox for having a grade B signal from local Fox in my DMA. Thats not to say I don't get a grade A signal from another Fox station. Although, currently, that other Fox station is undergoing transmitter changes and they are in low power mode until those changes are complete. So they are currently unwatchable. *IF* I was able to get that other Fox station as SV, which E* could give to me, I wouldn't want my distants(would save $1.50 that way). But until that time comes, I'm pushing for Fox distants to stay the way they are.


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## kstuart (Apr 25, 2002)

To clarify to newcomers:

As of January 1st, no Dish subscriber will have Distant Network channels that broadcast earlier than their timezone.

Either the injunction is issued, in which case Dish subscribers will have no Distants at all, or else the settlement is signed by the judge, in which case, a provision of the settlement says Dish has to turn off earlier Distants (but can continue to provide Distants that are the same time or later to qualified subscribers).

( I don't know exactly which Distants are still available, but basically this means that Pacific and Mountain timezone subscribers will lose NY, Atlanta, Chicago and any other Distants in the eastern half of the country. Pacific subscribers will lose all Distants other than L.A. )


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## Chris Walker (May 19, 2004)

Thanks for the information guys! I guess one other question I have is do I need to have this free preview of my locals removed from my account so it doesn't endanger my distants or is it irrelevant?


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## makman (Dec 2, 2002)

kstuart said:


> To clarify to newcomers:
> 
> As of January 1st, no Dish subscriber will have Distant Network channels that broadcast earlier than their timezone.


Where do RV waivers fit in?

Mitch


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## James Long (Apr 17, 2003)

RV users will be requalified based on E*'s records. IURC they can get East and West. (It is a couple of pages back in the thread.)

Also: Alaska and Hawaii customers with distants are not restricted by the time zone issue.
(Federal law still applies in all cases.)


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## juan ellitinez (Jan 31, 2003)

Chris Walker said:


> Thanks for the information guys! I guess one other question I have is do I need to have this free preview of my locals removed from my account so it doesn't endanger my distants or is it irrelevant?


You might want to invest in a "RV"


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## kstuart (Apr 25, 2002)

Chris Walker said:


> Thanks for the information guys! I guess one other question I have is do I need to have this free preview of my locals removed from my account so it doesn't endanger my distants or is it irrelevant?


You are getting the free preview *because* you have distants.

The rule of having to decide one or the other no longer applies - the local channels must have realized that if you have both, you are more likely to watch their local news etc - even if you end up watching the distant channel in Prime Time.

In any event, the locals are free for 2 months and then you will have to call to remove them simply to avoid the $5.99 per month charge ($5 per month if you combine them with a package).


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## makman (Dec 2, 2002)

James Long said:


> RV users will be requalified based on E*'s records. IURC they can get East and West.


What's IURC ?

Mitch


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## James Long (Apr 17, 2003)

IIRC with a miskeyed I. :sure:
(If I recall correctly ...)


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## anex80 (Jul 29, 2005)

kstuart said:


> To clarify to newcomers:
> 
> As of January 1st, no Dish subscriber will have Distant Network channels that broadcast earlier than their timezone.
> 
> ...


So what happens to subscribers who live in an area that no longer qualifies for distants? Is E* still going to requalify everyone or is having LIL AND distants enough to satisfy the courts?


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## joblo (Dec 11, 2003)

kstuart said:


> As of January 1st, no Dish subscriber will have Distant Network channels that broadcast earlier than their timezone.


Not necessarily.

The restrictions in the agreement are only applicable where there is no previous settlement with the local affiliate in question. That lets out all O&O exclusive territory right off the bat, because ABC/CBS/NBC have previous settlements and Fox is not (yet) part of this settlement. And there are probably a number of other station groups with previous settlements as well, probably attached to the most recent retrans consent agreements.

In any case, it looks like they are going to proceed with implementation of the agreement unless and until the judge imposes an injunction that renders it moot. Assuming that E* is not providing free LIL service in any area where the agreement doesn't require it, that means that if you have been given free LIL service, there is at least one local station covered by the new settlement, and so if you are in the Mountain or Pacific time zones, at least one distant network will become unavailable to you from earlier time zones by January 1, 2007.



kstuart said:


> n any event, the locals are free for 2 months and then you will have to call to remove them simply to avoid the $5.99 per month charge ($5 per month if you combine them with a package).


The way I read the agreement, removing locals to avoid the charge will not be an option in the future, unless you also remove DNS.


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## pdxsam (Jun 20, 2004)

RV requalifications have already started. I got an email last week to resubmit my paperwork.


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## James Long (Apr 17, 2003)

kstuart said:


> In any event, the locals are free for 2 months and then you will have to call to remove them simply to avoid the $5.99 per month charge ($5 per month if you combine them with a package).


Actually "free until the end of the year" (three months). The two months applies to new markets added (distant subs get two months of locals free).

As far as cancelling, the settlement says "EchoStar shall provide by satellite" LILs. It doesn't say shall offer. While this free preview may be able to be cancelled in the settlement LILs must be provided to customers. It does not look like one can cancel LILs if they have distants (if the settlement is accepted).

Whether or not this changes the rate structure of LILs and distants in January is a good question. The settlement allows E* to charge for locals after the free months but does not require it, so perhaps anyone paying for a full slate of distants will get a full slate of locals "for free".


joblo said:


> The restrictions in the agreement are only applicable where there is no previous settlement with the local affiliate in question. That lets out all O&O exclusive territory right off the bat, because ABC/CBS/NBC have previous settlements and Fox is not (yet) part of this settlement. And there are probably a number of other station groups with previous settlements as well, probably attached to the most recent retrans consent agreements.


While it probably doesn't limit E* within pre-settled markets, they are likely to follow the same rules in all areas.


joblo said:


> The way I read the agreement, removing locals to avoid the charge will not be an option in the future, unless you also remove DNS.


With that I agree.


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## BobMurdoch (Apr 24, 2002)

OK, I'm confused.....

So East Coasters in Grade B or White areas need NEW waivers, or are the ones we have already sufficient? 

So this means that folks west of the Mississippi will lose all East Coast distants?

I keep noticing how many of the people that win the "home case game" on the East Coast feed on Deal or No Deal seem to be calling in from outside the east coast time zone. (Someone from Oklahoma got it last week). Sounds like this goes away under the new "deal".


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## joblo (Dec 11, 2003)

James Long said:


> While it probably doesn't limit E* within pre-settled markets, they are likely to follow the same rules in all areas.


What makes you think so?

This is, after all, E* we're talking about, not D*. If history is any guide, E* will continue providing service to the maximum extent of the law/settlement/agreement/etc, and possibly more, if they think they can still get away with it.

Besides that, we've seen no definitive information on how many of the approximately 800 stations are covered by other agreements. My guess, based on percentages given the filings, would be approximately 300, but that just a guess.

In any case, E* already has software which can handle qualification on a per-network, per-zip code basis, including for superstations. I see not reason to think they won't simply factor the territories covered by the agreement into that software, as they have already factored in various retrans agreements, and continue doing business in other territories as usual.



BobMurdoch said:


> I keep noticing how many of the people that win the "home case game" on the East Coast feed on Deal or No Deal seem to be calling in from outside the east coast time zone. (Someone from Oklahoma got it last week).


Oklahoma stations (and most other stations in the Central Time Zone) carry the Eastern feed during prime time and late night. Central Time ABC and CBS stations also use the Eastern feed for daytime programming. Early morning programming is on clock time for all networks in all zones, as is NBC and CW daytime programming.


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## Chris Walker (May 19, 2004)

James Long said:


> Actually "free until the end of the year" (three months). The two months applies to new markets added (distant subs get two months of locals free).
> 
> As far as cancelling, the settlement says "EchoStar shall provide by satellite" LILs. It doesn't say shall offer. While this free preview may be able to be cancelled in the settlement LILs must be provided to customers. It does not look like one can cancel LILs if they have distants (if the settlement is accepted).
> 
> Whether or not this changes the rate structure of LILs and distants in January is a good question. The settlement allows E* to charge for locals after the free months but does not require it, so perhaps anyone paying for a full slate of distants will get a full slate of locals "for free".While it probably doesn't limit E* within pre-settled markets, they are likely to follow the same rules in all areas.With that I agree.


James, so you are saying I can't have these locals removed from my account even before January 1? They are going to force me to pay for something I don't want?


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## cj9788 (May 14, 2003)

Yes they are. They have no choice according to the terms of the settlement you have to have Lil (if available) if you have DNS. If the settlement is not approved then all E* DNS subs will lose the distants and will only have LiL if you do not want to pay for them there is always OTA.


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## kstuart (Apr 25, 2002)

joblo said:


> Not necessarily.
> 
> The restrictions in the agreement are only applicable where there is no previous settlement with the local affiliate in question. That lets out all O&O exclusive territory right off the bat, because ABC/CBS/NBC have previous settlements and Fox is not (yet) part of this settlement. And there are probably a number of other station groups with previous settlements as well, probably attached to the most recent retrans consent agreements.


Does anyone know:

- Which groups have settled previously ?

- The text/terms of the previous settlements ? (Did E* agree to change how it does Distants in any of those settlements, or is this the first settlement that involves more than just paying a fee ?)

PS I just found that Mr. Blo is correct ! The Settlement does not apply to any stations that have previously settled.


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## James Long (Apr 17, 2003)

Chris Walker said:


> James, so you are saying I can't have these locals removed from my account even before January 1? They are going to force me to pay for something I don't want?


At this point the LIL preview you are receiving isn't under the settlement - but once the settlement is approved all distants customers must be provided their LILs.

I can't speak for E* as to whether or not they will continue to be free in January. There are people who now pay for LIL and distants who will be ticked if the holdouts got the same service for free. We will all find out closer to the end of the year.


James Long said:


> Thursday activity from FLSD PACERDistrict Web PACER (v2.4)
> [ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]
> 
> 9/28/06 1016 REPLY by ABC Television, CBS Television, FBC Television, NBC Television to [1013-1] opposition response (ss) [Entry date 09/29/06]
> ...


Attached.


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## joblo (Dec 11, 2003)

Chris Walker said:


> James, so you are saying I can't have these locals removed from my account even before January 1? They are going to force me to pay for something I don't want?


Well, before January 1, you aren't paying for it, and after that, the network affiliates have essentially negotiated a contract that forces their channels to be bundled into any DNS subscription.*

I don't like that any more than you do, but it really isn't any different than any other service provider that negotiates its channels into the broadest distribution tier that it can, thereby driving up the price of the tier.



Chris Walker said:


> Finally, he says if you do not wish to recieve your locals after December 31, please call and we will remove them.


*Or at least, that's what I thought they had done until I read this. I guess time will tell.

What time zone are you in, btw, and what locals are you getting?



kstuart said:


> PS I'm still trying to find verification in this settlement's paperwork that "the restrictions are only applicable where there is no previous settlement.


See Consent Judgment paragraph 14a.



James Long said:


> Text of the 1016 reply not yet available. (I don't expect anything Earth shattering.)


Yep, it seems to be more of the same. I do like the part at the top of page 6, though, where they comment on Fox's objection to the court's continuing jurisdiction, and they say, in effect, they think this court can handle it.



James Long said:


> At this point the LIL preview you are receiving isn't under the settlement


But I think it is intended to comply with the terms of the settlement, and I think E* ought to be careful, because the affiliates can still back out fairly easily if E* doesn't implement the settlement fully and in good faith.



> There are people who now pay for LIL and distants who will be ticked if the holdouts got the same service for free.


Just as there are people who pay for premiums who get ticked off every time they have to endure crawls and promotional pitches during a premium preview.

Life is just so UNFAIR!!! :crying:


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## James Long (Apr 17, 2003)

joblo said:


> > At this point the LIL preview you are receiving isn't under the settlement
> 
> 
> But I think it is intended to comply with the terms of the settlement, and I think E* ought to be careful, because the affiliates can still back out fairly easily if E* doesn't implement the settlement fully and in good faith.


I believe they are being careful enough. Until the settlement is accepted and the consent judgement is entered by the court this "free preview" stands alone. E* is just being nice, letting their distant's subscribers know that they can get their own locals and letting people see what they are missing by not subscribing to locals. What a coincidence that it matches one of the requirements of the settlement! 

Regardless of the outcome of the case, E* wants their customers to accept local programming - either (if the CJ is accepted by the court) as a suppliment to their distants or (if the permanent injunction is issued) as a replacement to their distants.

If the CJ is accepted I'm sure that E* will follow the rules ... there is the threat (firmly stated in 1016) that the affilates can return to court at any time and request the permanent injuction to keep them on the right track. It sounds like the message on the promo channel is clean enough ... They can always change the "there will be no interruption to any other service you receive" to whatever is appropriate when the time comes.


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## kstuart (Apr 25, 2002)

Okay, having re-read parts of the proposed settlement ("Consent Judgement") again, what it looks like (i.e. my best guess from the evidence) is that if a) you have distant networks from Dish, b) your locals are available from Dish (perhaps long after you first subscribed to distant networks), c) you did *not* get a "Free Preview" of your local channels starting October 1st, *then* it is likely that all the network stations in your DMA previously settled with Dish.

And, what that means is that *if* there is no injunction, then it is likely that you will continue to receive your distant networks just as you do now, including receiving distant networks that are earlier than the local channels in your DMA.

So, if you did not get the "Free Preview" - do *not* contact Dish asking for your local channels, because if you are "grandfathered", you will lose your distant networks.

( Of course if the injunction is issued and goes into effect, then all distant networks on Dish will go away - we are only talking about what happens if the settlement is accepted by the judge. )

PS If you *did* get a "Free Preview of local channels" starting October 1st, then all the terms of the Settlement will apply to your distant network subscription, see previous messages in this thread for the many details.


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## James Long (Apr 17, 2003)

I would not turn the "free preview" into an indicator that people are going to keep distants and the absence of a "free preview" into an indicator that people are going to lose their distants.

We also have to remember that there are four networks and affilation groups here. Even if some subset settled by prior arrangement it is not likely that all four networks in your market settled - if any network station in your market is party to this settlement the agreement stands. Find a market where all four network affiliates are part of a previously settled group and we'll talk. 

Also the wording of the consent judgement talks a lot about markets but does NOT limit the responsibility E* is taking on to JUST markets with stations settling. It specifically exempts providing FOX network in FOX O&O markets but that is it.

There are many reasons to offer this "free preview" ...
I can best sum it up in this way -
*How to watch network TV via E* as of January 1st, 2006*
1) Subscribe to LIL
2) Live in a LIL market and subscribe to a distant station (LILs must be provided)
3) Live in a non-LIL market and subscribe to a distant station (LILs must be provided when made available)

*Limits to getting a Distant Station*
1) You cannot get a distant station unless you subscribed to distants before December 2004 or before your market was offered LIL.
2) You cannot get a distant station if you are within "Grade B" of an affiliate of the same network UNLESS you get a waiver from all affiliates of that network that you are within "Grade B" of.
3) You cannot get a distant station airing an earlier time zone.
4) Fox network distants will not be provided to markets where a Fox O&O station exists.

_If the settlement is rejected and the permanent injunction is issued:_
*How to watch network TV via E* after the permanent injuction*
1) Subscribe to LIL, if available.​So many of the options end up with the customer either required to be provided LIL or forced off distants with LIL as the only option. It makes sense to make the "free preview" available to all distant customers who don't have LILs regardless of what the expected outcome and determination of their individual cases might be.


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## Jerry 42 (Feb 25, 2003)

Mr Long

Re: "Limits" # 3
I am wrong that the earlier time zone rule applied to Digital broadcast siginals not analog broadcast signals. Of cause analog broadcasts are scheduled to end 2009.


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## James Long (Apr 17, 2003)

The limit on earlier time zone is part of the settlement/consent judgement.
Although this rule is not applied to analog stations by federal law, E* is applying it as part of the agreement.
(BTW: The exeption for RV subscribers was not listed in that post. See earlier posts.)


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## kstuart (Apr 25, 2002)

James Long said:


> I would not turn the "free preview" into an indicator that people are going to keep distants and the absence of a "free preview" into an indicator that people are going to lose their distants.


I never said that.

However, Dish must provide LILs (if they are uplinked) to all Distant Network subscribers as of October 1st.

The exceptions are:
- RV waiver (in theory there should not be any defined local DMA since the dish is required to be on the vehicle).
- Previously settled markets - exempted in Proposed Consent Judgement 14a.
- The 4 weirdo exceptions in 17 USC 119 2 C i,ii,iii,iv (eg States with only one network station, etc.)

So, since E* bothered to provide LILs specifically to Distant Subscribers, and they did so on October 1st, they are doing so in order to follow the letter of the Settlement. If E* did so for some Distant Subscribers, and not for others, the only explanation for the ones who have not been provided with LILs is that those subscribers are exempted from the Settlement provisions.

Remember that if a subscriber has even one network subject to the settlement, then E* had to provide the LILs on October 1st for that subscriber. So, although it is conceivable that a subscriber is the subject of an "error" or a "glitch", it is far more likely that any Distant Network subscriber who did not get LILs provided on October 1st is exempted from the Settlement provisions.

Note that the reverse - that you implied I was stating - is not true. If a subscriber had LILs provided on October 1st, it only means that they are subject to the settlement. They may indeed qualify to retain Distant Networks - but not any that are earlier than their local channels (unless they are in Alaska or Hawaii).


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## James Long (Apr 17, 2003)

kstuart said:


> So, since E* bothered to provide LILs specifically to Distant Subscribers, and they did so on October 1st, they are doing so in order to follow the letter of the Settlement. If E* did so for some Distant Subscribers, and not for others, the only explanation for the ones who have not been provided with LILs is that those subscribers are exempted from the Settlement provisions.


We really have not heard from enough distant subscribers to correlate who gets the free preview and who doesn't. The only thing we know for sure is that they are distants subscribers living in LIL available areas that do not subscribe to locals and are now receiving them as a free preview. We don't know the number or future of those subscribers.

Settlement or not, the free preview is a good idea. Perhaps over the next few months a few people will decide their locals ARE worth paying for. Hopefully it won't be that long until we know if the preview is the first step in the settlement or the first step toward replacing distants as a reaction to a permanent injunction. At this point even E* doesn't know what the next step is - the preview serves both needs.


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## saltrek (Oct 22, 2005)

Here's my story. I have been getting the "wrong " locals for about four years. I used to live in the Miami DMA and moved (for real) to the Orlando DMA. Dish never switched my locals. I am now getting the free preview of Orlando locals in addition to Miami. I wonder what will happen to me Jan. 1.


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## kstuart (Apr 25, 2002)

saltrek said:


> Here's my story. I have been getting the "wrong " locals for about four years. I used to live in the Miami DMA and moved (for real) to the Orlando DMA. Dish never switched my locals. I am now getting the free preview of Orlando locals in addition to Miami. I wonder what will happen to me Jan. 1.


Dish's product called "Distant Networks" refers to a few cities (such as New York and Los Angeles) that were provided to customers who needed that product.

However, legally, any network provided to you that is not your local channels is technically a "distant network channel".

So, people in your situation qualify under the terms of the Settlement, and must be provided with their locals free until the end of the year. At that point - by my reading of the terms of the settlement - your Miami feeds will be terminated, and you will be free to subscribe to the Orlando locals or not as you please.

(Of course, any statement by anyone in these Forums is their best guess, you need to talk to Dish to get an accurate determination.)


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## James Long (Apr 17, 2003)

Tuesday activity from FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

10/3/06 1017 MOTION by ABC Television, CBS Television, FBC Television, NBC Television for James T. Williams, Jr. to appear pro hac vice (ss) [Entry date 10/04/06]

10/3/06 -- Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 538350 (ss) [Entry date 10/04/06]

[END OF DOCKET: 1:98cv2651]​Nothing major._*pro hac vice* Latin meaning "for this one particular occasion." The phrase usually refers to an out-of-state lawyer who has been granted special permission to participate in a particular case, even though the lawyer is not licensed to practice in the state where the case is being tried. _​


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## minnow (Apr 26, 2002)

My guess is that the settlement is a go. If the judge was intent on implementing the injunction, he would of done this several weeks ago and not continue to allow all these rebuttals and continuances.


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## James Long (Apr 17, 2003)

FYI: The general comments about the LIL preview and distants have been moved to a new thread so this thread can continue to concentrate on court issues.

See Free Preview of LIL for Distants Subs for the moved posts.

As promised, if major news breaks in the case this thread will leave the "sticky" area and a new thread will be posted.


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## James Long (Apr 17, 2003)

Thursday activity from FLSD PACERDistrict Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

10/4/06 1018 ORDER Granting [1017-1] motion for James T. Williams, Jr. to appear pro hac vice (Signed by Judge William P. Dimitrouleas on 10/4/06) [EOD Date: 10/5/06] (ss) [Entry date 10/05/06]

[END OF DOCKET: 1:98cv2651]​Trivial. Mr Williams can appear (doesn't mean that he will).


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## kstuart (Apr 25, 2002)

James Long said:


> Thursday activity from FLSD PACERDistrict Web PACER (v2.4)
> [ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]
> 
> 10/4/06 1018 ORDER Granting [1017-1] motion for James T. Williams, Jr. to appear pro hac vice (Signed by Judge William P. Dimitrouleas on 10/4/06) [EOD Date: 10/5/06] (ss) [Entry date 10/05/06]
> ...


That means though that we are unlikely to have a final resolution until some time next week.

Or maybe later.

Is there any legal requirement for a judge to make a ruling ?? 

Actually, I think that is the best outcome for E* - no injunction and no settlement payout of $100 million !


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## James Long (Apr 17, 2003)

As noted -- PACER is slow.
The day there is a resolution (good or bad) we will likely see a press release.

We will only be able to read the PACER docs a couple of days later.
(And FLSD is moving to a new system next Thursday ... hopefully public access will not be interrupted as the court changes the system.)


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## pdxsam (Jun 20, 2004)

kstuart said:


> Is there any legal requirement for a judge to make a ruling ??


Yes. Echostar has already lost the court case so technically the judge has to rule. The ruling was supposed to be "turn off all distants". At the 11th hour, all parties except Fox came to an agreement to settle. There's been speculation that there should be no ability to settle since the court case was closed. Regardless, the settlement is in place. The judge can ratify the settlement without Fox's participation. The holdup now is Fox's motion to set aside the settlement BECAUSE they don't want to settle. Their thought is one for all or all for naught.

It doesn't seem like it can be dragged on much longer but this IS the American legal system.


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## Geronimo (Mar 23, 2002)

There will bea ruling of some sort. What it will be and who will like it, dislike it ,or wigh to appeal it are all unknowns.


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## boylehome (Jul 16, 2004)

I just received this and thought it worthy of posting:

Subject: RE: Your email to Congressman Herger

Dear John:

Thank you for contacting me regarding the transmission of distant network signals through EchoStar's Dish Network satellite television service. I appreciate hearing from you on this issue, and I apologize for the delay in my response. I've been facing a rather large backlog of mail recently.

On September 21, the U.S. Supreme Court denied EchoStar's appeal of a May ruling by the 11th Circuit Court of Appeals. The 11th Circuit ruled in favor of broadcast networks who sued EchoStar for illegally retransmitting "distant network signals." Under the 1988 Satellite Home Viewer Act (SHVA), satellite television providers may retransmit broadcast network programming from a network affiliate outside the local market to households that cannot receive over-the-air broadcasts from the network affiliate in their market. However, the 11th Circuit found that EchoStar had been retransmitting these distant network signals to households that could receive local broadcasts over the air. The court stated, "We have found no indication that EchoStar was ever interested in complying with the SHVA."

The 11th Circuit's ruling requires EchoStar to shut down all retransmission of distant network signals, even to households that are legally entitled to receive them under SHVA. In my view, this injunction goes too far and effectively punishes hundreds of thousands of consumers in remote rural areas who have done nothing illegal. Unfortunately, as a member of Congress, I cannot intervene in a particular legal dispute while it is pending before the courts. By constitutional design, there is a virtual "brick wall" between the legislative and judicial branches of government. However, now that EchoStar has exhausted its appeals, I hope that Congress will consider legislation in the near future to help rural consumers who have lost access to broadcast programming as a result of the 11th Circuit's decision.

Although I do not serve on the House Committee on Energy and Commerce, which has jurisdiction over this issue, please know that I will keep your views in mind should relevant legislation come to a vote in the House of Representatives.

Again, thank you for taking the time to contact me on this matter. Please feel free to do so again on this or any other federal issue of importance to you. In addition, I would like to invite you to visit my web site on the Internet at http://www.house.gov/herger where you can find additional information on my position on a variety of issues and sign up for occasional e-mail updates on the federal issues important to you.

Sincerely,

WALLY HERGER
Member of Congress


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## James Long (Apr 17, 2003)

Wow. It sounds like someone on his staff actually knows something about the issue! 


Still no updates from the court ...


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## makman (Dec 2, 2002)

James Long said:


> Wow. It sounds like someone on his staff actually knows something about the issue!
> 
> Still no updates from the court ...


He probably has DISH with distants!

Mitch


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## kstuart (Apr 25, 2002)

Does the Judge have to recuse himself if *he* has Dish with Distants ??


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## James Long (Apr 17, 2003)

It depends. Does he have distants with DirecTV? :lol:

No updates in PACER ... unfortunately this is the last day FLSD will be using PACER so hopefully we won't miss anything in the conversion to CM/ECF that is effective tomorrow.


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## khearrean (Mar 24, 2004)

James Long said:


> Not everyone (even here) has followed this as closely as a few of the posters in this thread.
> 
> Sounds like normil LIL locals (distants don't include stations outside the big four).
> 
> ...


Hopefully this is the right thread for this, but can you tell me what's the actual difference between Grade A & Grade B (or tell me where I can find that info)? 
I ask this because I just had the new locals here in Beaumont activated and the local Fox is horrible PQ compared to my distant Fox out of Chicago. And I really only wanted Fox anyway since I cannot pick them up via an OTA antenna. So it would be great to just keep everything status quo, cancel the Dish locals and keep my Fox distant if I can do so legally.

Ken


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## kstuart (Apr 25, 2002)

Did the Locals come on for you as a Free Preview, or did you call to add them ?


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## James Long (Apr 17, 2003)

khearrean said:


> ... can you tell me what's the actual difference between Grade A & Grade B (or tell me where I can find that info)?


Grade A is defined as 68 dBu for channels 2-6, 71 dBu for channels 7-13 or 74 dBu for channels 14-69.
Grade B is defined as 47 dBu for channels 2-6, 56 dBu for channels 7-13 or 64 dBu for channels 14-69.
( http://www.fcc.gov/mb/audio/bickel/curves.html )

BTW: Still no updates from the courts.


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## khearrean (Mar 24, 2004)

kstuart said:


> Did the Locals come on for you as a Free Preview, or did you call to add them ?


They did not come on automatically. I called and spoke to an advanced tech & asked about the "free" preview. He indicated my address did not, for some reason, come up as qualified for the "free" preview. But he went ahead, activated them and gave me a $15 one-time credit & said I had until 1/13 to cancel w/o a cancellation fee. Once activated, this was when I discovered Fox (KUIL's) PQ was so bad. And I'd hate to have to settle for this, but instead would rather just keep things the way they were.

Ken


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## kstuart (Apr 25, 2002)

If a channel has just been turned on, the PQ might improve as reports come in about it.

Send a *polite* message to DishQuality AT echostar DOT com , giving specific details about the PQ.


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## minnow (Apr 26, 2002)

No new court news is still good news for us. I would be falling down shocked if the court refused to accept the settlement. Every day that passes makes me believe that the court will not enforce the injunction.


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## makman (Dec 2, 2002)

I tend to agree. One thing to keep in mind though. The judge is not going to issue a one line ruling saying Settlement approved or Injunction issued. It will likely be a lengthy document similar to the Dish and Fox documents last submitted. He will need to defend his decision with precedents, and show why he denied one party's motion. This is probably the reason for the delay.

Mitch


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## Greg Bimson (May 5, 2003)

Well, it appears Dish Network is on its last "appeal". From satbiznews.com, the headlines for Wednesday, 18 October:


> EchoStar Communications asked the U.S. Supreme Court yesterday to review an appeals court ruling that could lead to an injunction forcing EchoStar to turn off 800,000 to 1 million distant network station subscribers. A copy of the filing was not available at press time...


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## James Long (Apr 17, 2003)

Still no word out of Florida's Southern District.

Didn't E* already take the appeals court ruling to the Supreme Court and get pushed back by Justice Thomas?


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## Greg Bimson (May 5, 2003)

What Echostar did back in May:

Echostar went to the Supreme Court to obtain an emergency stay to the possible injunction, which was denied by Justice Thomas. That does not preclude SCOTUS to decide the case on its merits. However, this means if an injunction is issued, that SCOTUS will allow the injunction to stand prior to hearing the case based on its merits.


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## kstuart (Apr 25, 2002)

Greg Bimson said:


> Well, it appears Dish Network is on its last "appeal". From satbiznews.com, the headlines for Wednesday, 18 October:


For some reason, the media keep getting this wrong:

- Reuters mistakenly list a Fox Objection as a Judge's Ruling
- Two month old article posted as "new" by a web site (see Post #120)
- Now the old Supreme Court appeal from months ago posted as "new"

UPDATE: Satbiznews.com have removed the false report and replaced it with: 


> DISTANT RULING STILL LOOMING OVER ECHOSTAR
> At press time, EchoStar Communications Corp. was still waiting for word on whether a federal judge in Florida would accept the $100 million agreement the DBS service and affiliate groups for the four major broadcast networks reached that would end their eight-year white-area litigation and let EchoStar keep delivering distant network stations to the vast majority of the 800,000 to 1 million subscribers who receive them.


- "Trust No Web Site." - King Herod's advice to his friend Claudius


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## James Long (Apr 17, 2003)

We've been "waiting on word" all month. Nice of the media to catch up.


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## Greg Bimson (May 5, 2003)

Ken, you looked in the wrong spot. Look on the right-side column, where the Fax Update headlines are.

I do trust satbiznews.com. They've been right on when it comes to reporting.

This is completely a different type of appeal. The original one back in May was for an emergency stay of the injunction prior to filing a writ of certiorari (http://www.scotusblog.com/movabletype/archives/Echostar_final[2].pdf). I believe that Echostar filed the writ of certiorari yesterday with the Supreme Court, according to satbiznews.com.


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## tampa8 (Mar 30, 2002)

I don't think the Southern District ruling would be kept a secret if it was out and against Dish, so I am guessing Dish is filing this motion to cover all basses unless/until the ruling is made.


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## James Long (Apr 17, 2003)

http://www.supremecourtus.gov/docket/06a198.htm is the most current answer on the SCOTUS website.
So far the writ is not showing up.

This is not related to the issue before the FLSD court. This is just a continuance of what E* did months ago.
Courts can't keep decisions secret.


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## Geronimo (Mar 23, 2002)

Wait and see. that is all that we can do.


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## Greg Bimson (May 5, 2003)

And once again, satbiznews.com's headlines for Friday, 20 October...

ECHOSTAR DETAILS ARGUMENT TO HIGH COURT

These guys know what is going on, but it costs quite a bit of money to subscribe to their newsletter, which details the headlines.


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## James Long (Apr 17, 2003)

Not wanting to question an expensive source's headlines, but the Supreme Court only had one session day this week ... it was Monday and it was a non-argument session. The next day on the court calendar when the Supreme Court will be in session is a conference day NEXT Friday (the 27th).

The next time they will be hearing arguments is October 30th through November 1st and November 6th through 8th ... the list of cases does not include the Echostar Case. The court will also be hearing arguments November 27th through 29th and December 4th through 6th. Echostar is not listed there either.

The only thing they can be referring to is the Writ of Certiorari ... which is apparently still not available on the SCOTUS web site (if you can find it, cool).

But the headline will be in a new thread --- there is an injunction ... Stay tuned!

New Thread


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