# EchoStar Settles Nine Year Litigation With ABC, NBC, CBS and Fox Affiliates (maybe)



## JohnH (Apr 22, 2002)

EchoStar Settles Nine Year Litigation With ABC, NBC, CBS and Fox Affiliate Associations
ENGLEWOOD, Colo.--(BUSINESS WIRE)--Aug. 28, 2006--EchoStar Communications Corporation (NasdaqISH) announced today that it has settled its nine year litigation with the ABC, NBC, CBS and Fox Affiliate Associations.

Under terms of the settlement, EchoStar agreed to expand its industry leading local network channel by satellite service from approximately 165 markets, to 175 markets by the end of 2006, offering over 95 percent of the U.S. population more fully effective competition to cable. EchoStar also agreed to pay the Affiliate Associations $100 million to protect its subscribers from the potential shut off of their distant network channels.

Distant channels are ABC, NBC, CBS and Fox network channels that originate from a market outside the community in which the subscriber lives. The litigation does not involve, and there is no danger, that consumers could lose their local ABC, NBC, CBS or Fox network channels, or any of the other great programming available from EchoStar's DISH Network. While EchoStar has over 12 million subscribers, less than one million of those customers receive distant network channels. As part of the settlement, EchoStar agreed to re-qualify its distant network subscribers and terminate those channels later this year to the small percentage of customers who are not eligible to receive them today.

During the nine year course of litigation, EchoStar previously settled with hundreds of TV stations and station groups, including the ABC, NBC and CBS networks. With today's announcement, EchoStar has reached settlements with almost 800 total stations. EchoStar had hoped and expected to resolve the dispute with all remaining litigants, but late last week Fox Network declined EchoStar's universal settlement offer and pulled out of the discussions. Consequently, litigation with approximately 25 Fox owned-and-operated stations continues. Though unlikely, it is possible Fox's last minute tactic could derail the entire settlement and force EchoStar to seek legislation to protect its subscribers from disruption.

*The settlement is contingent on confirmation by the Federal District Court in Florida.
*
About EchoStar

EchoStar Communications Corporation (NasdaqISH) serves more than 12.46 million satellite TV customers through its DISH Network(TM), the fastest growing U.S. provider of advanced digital television services in the last five years. DISH Network offers hundreds of video and audio channels, Interactive TV, HDTV, sports and international programming, together with professional installation and 24-hour customer service.

CONTACT: EchoStar Communications Corporation
Kathie Gonzalez, 720-514-5351
[email protected]

SOURCE: EchoStar Communications Corporation


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## jessshaun (Sep 14, 2005)

Hopefully I won't loose my distant ABC after what the remaining Fox stations did last week.

I live in the Terre Haute DMA, and would hate to loose my ABC.


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## minnow (Apr 26, 2002)

Whose surprised that the holdout is FOX ? Shocking isn't it ? I doubt Charlie could ever offer enough money to Murdoch. I'm sure Murdoch see's this court ruling as a way to significantly hurt E*.


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## TheRatPatrol (Oct 1, 2003)

minnow said:


> Whose surprised that the holdout is FOX ? Shocking isn't it ? I doubt Charlie could ever offer enough money to Murdoch. I'm sure Murdoch see's this court ruling as a way to significantly hurt E*.


Yeah. With this lawsuit and the the Tivo lawsuit, makes you wonder how much longer E* can go paying out that money.


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## James Long (Apr 17, 2003)

JohnH said:


> Under terms of the settlement, EchoStar agreed to expand its industry leading local network channel by satellite service from approximately 165 markets, to 175 markets by the end of 2006,


"Approximately" ? They still can't decide how many markets they cover.  It's good to see 10 more markets come online ... as well as the requalification.


JohnH said:


> EchoStar had hoped and expected to resolve the dispute with all remaining litigants, but late last week Fox Network declined EchoStar's universal settlement offer and pulled out of the discussions. Consequently, litigation with approximately 25 Fox owned-and-operated stations continues. Though unlikely, it is possible Fox's last minute tactic could derail the entire settlement and force EchoStar to seek legislation to protect its subscribers from disruption.


Hopefully the court will accept the majority settlement. If FOX distants are lost it will only hurt FOX.


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## minnow (Apr 26, 2002)

James Long said:


> "Approximately" ? They still can't decide how many markets they cover.  It's good to see 10 more markets come online ... as well as the requalification.Hopefully the court will accept the majority settlement. If FOX distants are lost it will only hurt FOX.


It wouldn't help E* sub's either. And it could cause some E* subs. to convert to Direct.


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## BobMurdoch (Apr 24, 2002)

James Long said:


> "Approximately" ? They still can't decide how many markets they cover.  It's good to see 10 more markets come online ... as well as the requalification.Hopefully the court will accept the majority settlement. If FOX distants are lost it will only hurt FOX.


I hadn't thought about that.... Can the court approve the settlement in spite of D*'s objections? If everyone but them approves the deal, which is obviously an attempt to weaken a competitor for their own benefit by using FOX as a way to discriminate (something they agreed they would NOT do when they took over D*). I assumed that Rupert could veto the deal..... It will be interesting to see what happens next. Just about everyone BUT D* wants this settled now. Rural customers, the affiliates (who get more locals carried AND a lot of STFU money), and Congress who doesn't want to have to educate a couple of hundred thousand constituents as to the complexities of SHVERA while their phones and mailboxes get filled with gripes....


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## cdru (Dec 4, 2003)

With 95% of the markets covered, doesn't the entire purpose of "distant" networks essentially disappear (excluding that remaining 5% and/or markets not served by a particular network)?


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## BobMurdoch (Apr 24, 2002)

Show a US map with all of the affiliates claimed zip codes in red, and the rest of the areas in white. You will STILL see a LOT of white areas on that map. Plus they need to revisit the concept of a white area. If you can't pull in a signal with an antenna using a system like antennaweb.org, then you should be classified as a white area. Right now New York City claims extreme southern Ocean County, NJ as their area. Good luck getting a signal there......


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## JohnH (Apr 22, 2002)

The Pattern of infringement may still do them in.


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## alebowgm (Jun 12, 2004)

I wonder if this will

a. Make the Atlanta Distant channels move to spotbeam or if they will again decide to keep them on CONUS

b. Make it tighter to not get the Distant channels on the Dish website. There was a time there where anyone who really wanted the stations was able to get them.


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## James Long (Apr 17, 2003)

They could just move toward a private agreement with each network and affiliate group that would allow them to carry a distant network in any market were there is not a local affiliate AND there is no Grade B coverage. Let E* pay the stations directly (perhaps through a 100 million dollar check) for the royalties instead of using 17 USC 119 to force stations to become distants.


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## cdru (Dec 4, 2003)

BobMurdoch said:


> Show a US map with all of the affiliates claimed zip codes in red, and the rest of the areas in white. You will STILL see a LOT of white areas on that map.


But if the market is available via satellite but not OTA for what ever reason, what's the problem with allowing the subscriber to get the market they are in and not a distant?

I guess I just don't understand what all the hoopla is about. 5 years ago when only the top 40 DMAs had locals, I would agree that there was a definite need for people who could not pull in a useful OTA signal to get a distant network. But now that all but a tiny handful of the smallest DMAs are up (or will soon be), everyone in that DMA should be able to get a decent signal presuming they have a clear shot of the satellite.


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## CornChex (Dec 24, 2004)

So...at the risk of appearing obtuse and dangerously dense...

Will I get to keep my distant locals, or not? I have local channels from my viewing area, but pay extra to get the 4 networks out of NY and LA (for time-shifting purposes and picture quality.)

It sounds like E* is going to comb thru their database to weed out hangers-on like me (who are really not entitled to receive the distant networks).

We have horrible PQ from our local locals, but it is nice to be able to watch the local news.

If we lose our distant locals, any idea how soon they will be switched off?

(Thanks in advance for your help, and for not flaming me!)


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## Greg Bimson (May 5, 2003)

No, you aren't being obtuse.

We don't know how Dish Network will requalify everyone. We don't know if the settlement contains language to force requalification on everyone using the SHVERA rules, or since this is a settlement, to basically cut everyone off that has local channels available.

These will not be switched off until the settlement is approved by the judge.


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## kstuart (Apr 25, 2002)

And does the requalification affect those "grandfathered" (ie who did not have to qualify because they had the distants prior to the first bill)?


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## crackasmile (Nov 15, 2004)

Yes, I wonder about the grandfathered status too? I spend lots of hours trying to and finally getting waivers from all network stations back in 1997 or 1998.
We now have locals available for all but one network, but I was under the understanding that if I was grandfathered, I did not have to subscribe to the locals over my distants if I didn't have to.

So what will happen to us grandfathered folks who have locals available but don't want them?



kstuart said:


> And does the requalification affect those "grandfathered" (ie who did not have to qualify because they had the distants prior to the first bill)?


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## tsmacro (Apr 28, 2005)

Gee after reading so many posts of doom and gloom of how this whole thing was going to be the undoing of Dish and yet somehow Charlie and E* manage to work it all out.......again! Of course what was even more annoying were the people with the holier than thou attitudes that were just enjoying the whole thing way too much and assuring us all that everyone with any kind of distant networks for any reason was going to lose them and it was all well deserved because Dish was breaking the rules by allowing subscribers to break the rules. After all Dish and its rogue subscribers deserved to be punished for playing fast and loose with the rules. :sure: And yet here we are everything but some minor details to be hammered out and the distants are still here and will continue to be. Let me go out on a limb here and say Dish will also get through the TiVo situation without ever turning off anyones DVR and the company will continue to make plenty of $$$ and make Charlie and the shareholders happy.


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## JohnH (Apr 22, 2002)

Well, it ain't over 'til the maybe not so fat lady sings.


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## spaceghostinME (Aug 20, 2006)

cdru said:


> But if the market is available via satellite but not OTA for what ever reason, what's the problem with allowing the subscriber to get the market they are in and not a distant?
> 
> I guess I just don't understand what all the hoopla is about. 5 years ago when only the top 40 DMAs had locals, I would agree that there was a definite need for people who could not pull in a useful OTA signal to get a distant network. But now that all but a tiny handful of the smallest DMAs are up (or will soon be), everyone in that DMA should be able to get a decent signal presuming they have a clear shot of the satellite.


It's easy to not understand the hoopla when you are not in the 5% not being served and without the hope of being served anytime soon. Here in the Bangor, Maine area we do not have locals via satellite and as far as I know we won't be getting them anytime soon, although maybe we're one of the 10 being included in the bump from 165 to 175. To top things off, I personally live an a town that doesn't even have cable, so its either OTA or nothing - and most of the OTA stations come in poorly where we are located. But, because we're clearly in the Bangor market, we have no choice - waivers have not and will not be granted by the locals. I basically do not watch NBC, ABC, CBS, or PBS because they are not provided by satellite (but I do get Fox distants). While I'm with D* and not E*, the point is the same, there's still 35-45 markets that are not served with locals via satellite and that are still being underserved when it comes to the 4 major networks - yes we make up 5% or less of the population, but I think that we're kind of tired of being second class citizens when it comes to providing locals to all DMAs...


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## nova828 (Mar 29, 2004)

spaceghostinME said:


> It's easy to not understand the hoopla when you are not in the 5% not being served and without the hope of being served anytime soon. Here in the Bangor, Maine area we do not have locals via satellite and as far as I know we won't be getting them anytime soon, although maybe we're one of the 10 being included in the bump from 165 to 175. To top things off, I personally live an a town that doesn't even have cable, so its either OTA or nothing - and most of the OTA stations come in poorly where we are located. But, because we're clearly in the Bangor market, we have no choice - waivers have not and will not be granted by the locals. I basically do not watch NBC, ABC, CBS, or PBS because they are not provided by satellite (but I do get Fox distants). While I'm with D* and not E*, the point is the same, there's still 35-45 markets that are not served with locals via satellite and that are still being underserved when it comes to the 4 major networks - yes we make up 5% or less of the population, but I think that we're kind of tired of being second class citizens when it comes to providing locals to all DMAs...


Hey a fellow Bangor DMA person! Yes, we are pretty much second class TV viewers in this market that's for sure. There are ways of obtaining network programming...nothing I will mention here though. But, I will say that Bangor, Maine is _Rumored_ to be coming soon. According to a source at WLBZ, Dish has been there installing equipment to get then up. Hopefully the same is true for WABI, WVII and WFVX. That way us second class Bangor area viewers no longer have to resort to...ahem...alternative ways of obtaining network programming.


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## thopki2 (Mar 29, 2006)

Hey a fellow Bangor DMA person! Yes, we are pretty much second class TV viewers in this market that's for sure. There are ways of obtaining network programming...nothing I will mention here though. But, I will say that Bangor, Maine is _Rumored_ to be coming soon. According to a source at WLBZ, Dish has been there installing equipment to get then up. Hopefully the same is true for WABI, WVII and WFVX. That way us second class Bangor area viewers no longer have to resort to...ahem...alternative ways of obtaining network programming.

One more Bangor DMA person reporting in. Yes, I have heard the rumors also. Hopefully this time they are true. I am a little more fortunate as so far, have the DNS. Real nice being in the middle of the woods watching New York weather !!! Who cares?


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## anex80 (Jul 29, 2005)

spaceghostinME said:


> ...although maybe we're one of the 10 being included in the bump from 165 to 175...


Does anyone know which 10 DMA's will be brought up by year's end?


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## Greg Bimson (May 5, 2003)

According to uplink reports, Dish Network has uplinked: Beaumont-Port Arthur; Rochester-Mason City; Palm Springs, CA; and Odessa-Midland.

From what I recall, Dish Network has 166 markets available currently, with the four above uplinked.


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## billpa (Jul 11, 2003)

That new spotbeam that carries Portland and Burlington is just BEGGING to have another market put on it...Bangor (with really only four stations*) should be no problem. 

* I say four, because, they could take the Portland MPBN feed and just open that up for the Bangor (and Presque Isle) market people...in fact, they could do that today.


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## James Long (Apr 17, 2003)

167 Markets today per TNGTony (and he would know!).
4 more uplinked.

There are a few single or two station markets that could be put up if E* wants to quickly raise the market count without using all uplink space. "175" markets by the end of the year is doable.


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## brian24740 (May 1, 2005)

Any chance of them adding the Bluefield/Beckley Oakhill WV market?


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## FTA Michael (Jul 21, 2002)

Uh, maybe that sticking point with the Fox O&O's is really going to stay stuck. Per today's Rocky Mountain News article, a News Corp. spokesman said, "We have no interest in settling with EchoStar. We've achieved a complete victory in the courts. Parties that win don't normally settle."

Full article: http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_4952061,00.html


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## anex80 (Jul 29, 2005)

FTA Michael said:


> Uh, maybe that sticking point with the Fox O&O's is really going to stay stuck. Per today's Rocky Mountain News article, a News Corp. spokesman said, "We have no interest in settling with EchoStar. We've achieved a complete victory in the courts. Parties that win don't normally settle."
> 
> Full article: http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_4952061,00.html


Does anyone know if this will be enough to halt all distants or just the ones owned and operated by Fox?


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## BobMurdoch (Apr 24, 2002)

It could scotch the whole deal, but I can't see the judge allowing that to happen. Too many parties are harmed by this going through, ESPECIALLY since the party in question owns a subsidiary which is the sole competitor of the defendant, and was contractually obligated to not wield monopoly power to harm the other by withholding content or engaging in practices that violated antitrust laws. Being the sole holdout trying to kill a settlement certainly fits the bill.....

It's up to the judge whether to accept the deal and make it mandatory. Just because one party in a class action status hates a deal, does not mean he can kill it....

Look for a backroom deal to bring extreme pressure on FOX to settle.....


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

Greg Bimson said:


> According to uplink reports, Dish Network has uplinked: Beaumont-Port Arthur; Rochester-Mason City; Palm Springs, CA; and Odessa-Midland.
> 
> From what I recall, Dish Network has 166 markets available currently, with the four above uplinked.


 Sorry there are 167 dmas currently available and when the 4 new dmas become available it will be 171.


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## Greg Bimson (May 5, 2003)

Puerto Rico isn't a true DMA.


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## James Long (Apr 17, 2003)

Ah, but you said MARKETS, not designated markets in your original post. 
167 markets, 166 DMAs covered.

Food for thought: If E* covers 95% of the population with 166 DMAs then the remaining 44 DMAs cover 5% of the population and count for an average increase in population coverage of 0.11% each. Adding 10 average markets would only raise the total coverage (by population) to 96%. Growing at a slow crawl.


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## dbconsultant (Sep 13, 2005)

Hopefully for those of us with rv waivers, they send a request for another copy of the rv registration rather than just shutting down our distant feeds and then we have to dig around for the form again! It wasn't easy to find the first time!!!:eek2:


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## James Long (Apr 17, 2003)

dbconsultant said:


> Hopefully for those of us with rv waivers, they send a request for another copy of the rv registration rather than just shutting down our distant feeds and then we have to dig around for the form again! It wasn't easy to find the first time!!!:eek2:


Even if they requested a copy of your registration there would be a deadline ("submit by August 29th or lose your distants" type of wording - that day chosen for illustration - don't panic).

No timetable for requalification has been announced - I suspect that will happen over a period of time AFTER the judge approves of the settlement. Not "off until requalified".


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## Greg Bimson (May 5, 2003)

James Long said:


> Ah, but you said MARKETS, not designated markets in your original post.
> 167 markets, 166 DMAs covered.


Point taken.

There are 210 DMA's and Puerto Rico, which is considered a DMA but not a domestic one.


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## kstuart (Apr 25, 2002)

James Long said:


> Ah, but you said MARKETS, not designated markets in your original post.
> 167 markets, 166 DMAs covered.
> 
> Food for thought: If E* covers 95% of the population with 166 DMAs then the remaining 44 DMAs cover 5% of the population and count for an average increase in population coverage of 0.11% each. Adding 10 average markets would only raise the total coverage (by population) to 96%. Growing at a slow crawl.


But they don't usually add average markets, they usually add them in order from top down (as possible).
The bottom few markets have about ten people and a couple of chickens each and they skew the average.


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## Paul Secic (Dec 16, 2003)

FTA Michael said:


> Uh, maybe that sticking point with the Fox O&O's is really going to stay stuck. Per today's Rocky Mountain News article, a News Corp. spokesman said, "We have no interest in settling with EchoStar. We've achieved a complete victory in the courts. Parties that win don't normally settle."
> 
> Full article: http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_4952061,00.html


BOYCOT Fox channels!


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## James Long (Apr 17, 2003)

kstuart said:


> But they don't usually add average markets, they usually add them in order from top down (as possible). The bottom few markets have about ten people and a couple of chickens each and they skew the average.


Of the bottom 44 markets (of 210) 14 of them are already available on E*. The "next four" markets (assuming other markets are not uplinked and added first) are Beaumont, TX (140), Austin, MN/Mason City, IA (152), Palm Springs/Indio, CA (153) and Midland/Odessa, TX (159) --- all in the top 166.

The highest market (by rank) not available is Springfield-Holyoke, MA #106, next is Columbus, GA #127 and Wilmington, NC #139. There is also Salisbury, MD #148, Bluefield/Beckley/Oak Hill, WV #149 and Bangor, ME #151 between Beaumont TX and Austin MN. The last three added were #90, #124 and #129.

If they were to fill out the rest "in order" (breaking the current pattern) the 10 markets mentioned in this post are 10 the biggest 13 not already available.

Thanks to TNGTony for keeping track of the changes on the Echostar Knowledge Base.
Dish Locals by Market Rank


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## Geronimo (Mar 23, 2002)

I suspect that some markets like Spingfield/Holyoke (which i think should be merged with the Hartford DMA) and Salisbury, MD simply don't fit into the spotbean scheme----or may ahve one holdout station. In other words providing carriage in these markets may be harder than we think. DISH may just cover those markets that are convenient as opposed to the largest remaining ones.


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## James Long (Apr 17, 2003)

How to get a lot of markets up without a lot of uplink space ---

Single Channel Markets:
Alpena MI, Glendive MT, Lafayette IN, Mankato MN, Parkersburg WV, Saint Joseph MO (if TBN National is used) and Zanesville OH.

Seven markets that could be complete if they just can fit one channel up each. Probably the biggest cost is for a POP and backhaul for a single channel.


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

James Long said:


> How to get a lot of markets up without a lot of uplink space ---
> 
> Single Channel Markets:
> Alpena MI, Glendive MT, Lafayette IN, Mankato MN, Parkersburg WV, Saint Joseph MO (if TBN National is used) and Zanesville OH.
> ...


Wouldn't they have to provide significantly viewed channels to those single channel markets to fill in the missing networks?


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## James Long (Apr 17, 2003)

They COULD provide SV stations ... probably the best reason to uplink those channels is without the market's own channels E* is forbidden from offering SVs. In some of these markets distants are not available due to neighboring DMA Grade B coverage.

They are not the biggest markets ... but they have customers and could be "easy adds" if backhaul costs are not too bad.


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## crackasmile (Nov 15, 2004)

Does anyone know how this new development will affect "grandfathered" viewers who now have locals available in their DMA?


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## spaceghostinME (Aug 20, 2006)

thopki2 said:


> Hey a fellow Bangor DMA person! Yes, we are pretty much second class TV viewers in this market that's for sure. There are ways of obtaining network programming...nothing I will mention here though. But, I will say that Bangor, Maine is _Rumored_ to be coming soon. According to a source at WLBZ, Dish has been there installing equipment to get then up. Hopefully the same is true for WABI, WVII and WFVX. That way us second class Bangor area viewers no longer have to resort to...ahem...alternative ways of obtaining network programming.
> 
> One more Bangor DMA person reporting in. Yes, I have heard the rumors also. Hopefully this time they are true. I am a little more fortunate as so far, have the DNS. Real nice being in the middle of the woods watching New York weather !!! Who cares?


Yeah, I've been hearing rumors for years, but until it happens I'm not going to get too excited. I heard an interview a while back when there was the WABI/Time Warner hubbub in which WABI said that they had been talking to Dish and were hoping something would come out of that soon, but that it was up to Dish. Of course I am a D* sub, so that wouldn't help me a whole lot right yet, but I'd have to hope that once one of the 2 picks up the market the other one will too, but I guess we'll just wait and see...


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## DonLandis (Dec 17, 2003)

Requalifing people with a legal FCC waiver may involve adhering to FCC waiver challenge regulations which I believe is spelled out. It's not easy nor cheap to challenge a legal waiver once granted.


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## Greg Bimson (May 5, 2003)

Waivers can be revoked in the time it takes for someone to stand up. They are not perpetual.


crackasmile said:


> Does anyone know how this new development will affect "grandfathered" viewers who now have locals available in their DMA?


No one knows anything at this point except for the lawyers that drew up the settlement contract and the parties to the suit.

Someone on another board brought this up...

The Appeals Court sent this case back to District Court, simply for the judge to issue the injunction because it is the only remedy available for the violations of the SHVA/SHVIA.

So, even with a settlement from the affiliate boards, won't the judge still have to issue the injunction?


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## James Long (Apr 17, 2003)

Customers may have to reapply for their waivers. By law, waivers issued prior to December 2004 DO NOT APPLY to customers who have local into local service. Only those in non LIL markets get to keep their waivers. With all the other claims against E*, not cancelling waivers in January 2005 would not seem out of character.


> So, even with a settlement from the affiliate boards, won't the judge still have to issue the injunction?


It depends on the judge and the next judge and the next judge until the injunction is overturned.

The judge may revolke the injunction due to the settlement - they may not. It seems like his call.

He could also impose the injunction JUST against future carriage of the FOX network as a distant, since they are the only ones complaining at this point.

It does bring up an interesting point of law. E* violated 17 USC 119 ... that fact doesn't change even if all parties agree to a settlement. Is the required penalty tied to the plaintiff's request or 17 USC 119?


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## Greg Bimson (May 5, 2003)

James Long said:


> The judge may revolke the injunction due to the settlement - they may not. It seems like his call.


Yes, I'd say it is his call to a point.

Part of the reason Dish Network is in this jam is that they appealed their punishment, and the Appeals Court hammered them with the "death penalty", stating that the case was being remanded back to the District Court to issue the injunction.


James Long said:


> Is the required penalty tied to the plaintiff's request or 17 USC 119?


The penalty is tied to 17 USC 119.

Yes, I realize that a settlement means that all claims are basically complete, but according to the Appeals Court order, the judge must issue the injunction. Dish Network was found guilty of the violation, found to have willfully infringed, and that they would be subject to the "death penalty" injunction which MUST be issued.

I assume if all parties agree to the settlement, fine. No one will complain if the injunction isn't issued. But even if one party is still hell-bent on the verdict and relief, I think the judge must issue the injunction to everyone that was injured in the suit. Simply, I am saying that because Fox won't agree, the injunction will apply to all networks, because the verdict and the punishment must stand.

I am not a lawyer, so I'll need one to explain how a plaintiff can come to a settlement with a guilty party that bypasses the mandatory sentencing. Or, in this instance, how to sever the plaintiffs which settled and those which did not settle, after the verdict has been read.


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## Greg Bimson (May 5, 2003)

Actually, now that I think about it, the judge could issue the injunction, and then stay the injunction because of the settlement. But I think it is impossible to do if all parties don't agree on the settlement.


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## BobS (Jun 23, 2006)

The Court of Appeals reamed the judge in this case so I think it unlikely that she will do other than instructed. The last two paragraphs of the 11th Circuit opinion are clear and instructive.

*Because, as discussed, we come to the unavoidable conclusion that EchoStar engaged in a "pattern or practice" of SHVA violations, we hold that the district court is required to issue a nationwide permanent injunction barring the provision of distant network programming pursuant to the Act's statutory license.
...
For the foregoing reasons the judgment of the district court is AFFIRMED in part and REVERSED in part, and we REMAND the case to the district court for the entry of a nationwide permanent injunction as mandated by the Act. SO ORDERED.*

Doesn't say "unless the trial judge thinks a different result would be better."



Greg Bimson said:


> Actually, now that I think about it, the judge could issue the injunction, and then stay the injunction because of the settlement. But I think it is impossible to do if all parties don't agree on the settlement.


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## James Long (Apr 17, 2003)

Evidently the judge has some leeway or the injunction would already be issued ... The effective date (September 11th) was negotiated by the parties.


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## Greg Bimson (May 5, 2003)

Well, now I'll go back to basic law. Yes, this case has a verdict. The appeals, however, have not run out.

So, one can assume a settlement can be reached prior to the "event horizon" of the appeals process, when the appeals have run out.

Since it appears Fox will not settle, that this will go through the normal appeals process. However, I am not sure if plaintiff parties can sever once a verdict is given.


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## jrbdmb (Sep 5, 2002)

Perhaps the settlement contains provisions for DNS outside of the compulsory lisence granted by SHVERA?


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## BobMurdoch (Apr 24, 2002)

Don't forget the legislative threat..... Look for rural area congresspeople to threaten to reopen the whole shebang, if several thousand of their consituents start ringing their phones off the hook....


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## kstuart (Apr 25, 2002)

jrbdmb said:


> Perhaps the settlement contains provisions for DNS outside of the compulsory lisence granted by SHVERA?


SHVERA has no provisions for *D*omain *N*ame *S*ervers.


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## James Long (Apr 17, 2003)

kstuart said:


> SHVERA has no provisions for *D*omain *N*ame *S*ervers.


*D*istant *N*etwork *S*tations ...


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## juan ellitinez (Jan 31, 2003)

La La La The Fat Lady is warming up (to the tune of Taps) http://www.multichannel.com/article/CA6367824.html?display=Breaking+News


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## shamus46 (Sep 29, 2002)

juan ellitinez said:


> La La La The Fat Lady is warming up (to the tune of Taps) http://www.multichannel.com/article/CA6367824.html?display=Breaking+News


*Well, this has just made my decision very easy. As much as I really want locals, I will go without them before I will give Direct TV a dime.  They play to dirty for my liking so I will stay with Dish.*


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## Greg Bimson (May 5, 2003)

> *From the Multichannel News article:*
> In its motion, Fox claimed that Dimitrouleas had only one legal option: the "issuance of a nationwide permanent injunction ..." that would stop EchoStar from providing distant network service involving any of the Big Four networks. Fox's filing said the settlement can't trump Dimitrouleas's obligation to issue the blanket injunction as required by the U.S. Court of Appeals for the 11th Circuit.


That is my belief. The lawsuit went too far for Dish Network to settle.


shamus46 said:


> Well, this has just made my decision very easy. As much as I really want locals, I will go without them before I will give Direct TV a dime.  They play to dirty for my liking so I will stay with Dish.


"...play too dirty"?

DirecTV had one of these lawsuits, which I believe lasted for two years. Dish Network's lawsuit is now entering its ninth year. For all that time, Dish Network flouted the rules, by playing dirty with their qualification methods.

I do feel sorry for those that have no other choice in receiving networks. However, it is easy to see why Dish Network was smacked down in court. Dish Network believed they were superior to the rules, and will most likely pay the piper in some fashion. Whether it be by $100 million settlement and a requalification of subscribers, or termination of the distant network license to most of their subscriber base, it will hurt. And neither of those are regarding DirecTV.

To wrap, I simply go back to the one sentence in the Appeals Court's decision:


> we REMAND the case to the district court for the entry of a nationwide permanent injunction as mandated by the Act.


There doesn't appear to be a way around this when found "GUILTY".


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## juan ellitinez (Jan 31, 2003)

Greg Bimson said:


> That is my belief. The lawsuit went too far for Dish Network to settle."...play too dirty"?
> 
> DirecTV had one of these lawsuits, which I believe lasted for two years. Dish Network's lawsuit is now entering its ninth year. For all that time, Dish Network flouted the rules, by playing dirty with their qualification methods.
> 
> ...


 Sure there is ..the OFFENDED PARTY just never asks for the Injunction


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## James Long (Apr 17, 2003)

juan ellitinez said:


> Sure there is ..the OFFENDED PARTY just never asks for the Injunction


Fox is offended. 

Seriously, there is a court order telling the lower court to enter the injunction. It would be like your boss giving you a specific order. If you don't follow that specific order you will have to answer to your boss.

If the judge fails to apply the injunction or applies it to all except Fox you can be sure that Fox will be right back at the appeals court pointing out that the lower court did not do as told.


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## anex80 (Jul 29, 2005)

James Long said:


> Fox is offended.
> 
> Seriously, there is a court order telling the lower court to enter the injunction. It would be like your boss giving you a specific order. If you don't follow that specific order you will have to answer to your boss.
> 
> If the judge fails to apply the injunction or applies it to all except Fox you can be sure that Fox will be right back at the appeals court pointing out that the lower court did not do as told.


Unfortunately that's probably true. I'm becoming convinced that E*'s last minute settlement is no more than a ploy to make themselves look good while waiting for the inevitable to happen. That way when the distants are finally shut off they can say "It's not our fault. We tried to settle but Fox stood in the way."

They should have paid the networks years ago when they had the chance. If you always roll the dice, be prepared to come up empty-handed once in a while.


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## James Long (Apr 17, 2003)

From the end of the 11th District Court ruling:
3. Mandatory Nature of the Remedy​The Act instructs that, upon a finding of a "pattern or practice" of violations, a "court shall order a permanent injunction 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." 17 U.S.C. § 119(a)(7)(B)(i) (emphasis added). Despite the facially mandatory nature of the provision, EchoStar argues that the district court had discretion to issue the injunction, and properly exercised that discretion in not issuing the injunction in this case. In making this argument, EchoStar relies primarily on Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 (1944), for the proposition that, if Congress is going to remove courts' traditional equitable discretion, "an unequivocal statement of its purpose would have been made." 321 U.S. at 329, 64 S. Ct. at 591; see also id. at 330, 64 S. Ct. 592 ("We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied."). We believe there are important differences between the statute in _Hecht_ and the one before us that lead us to conclude that Congress removed courts' discretion upon a finding of a "pattern or practice" of violations.

The Hecht Court interpreted section 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C. § 901 _et seq._, (repealed 1956), which provided that, upon finding of certain conditions, "a permanent or temporary injunction, restraining order, or other order shall be granted without bond." The Court found statutory language ("or other order") and legislative history suggesting that Congress had not intended to remove courts' traditional equitable discretion. 321 U.S. at 328-29, 64 S. Ct. at 591. There is no ambiguous statutory language in the SHVA and we are unaware of any legislative history that would indicate that the remedial measure chosen by Congress is anything but mandatory. Cf. H.R. Rep. No. 106-464, at 94 (1999) (Conf. Rep.) ("The section 122 license contains remedial provisions parallel to those of Section 119, including a 'pattern or practice' provision that _requires_ termination of the Section 122 statutory license as to a particular satellite carrier if it engages in certain abuses of the license." (emphasis added)). Moreover, section 119(a)(7)(B)(i) itself contemplates both mandatory and discretionary remedies: Upon the same finding of a "pattern or practice," "the court shall order a permanent injunction" whereas "the court may order statutory damages." 17 U.S.C. § 119(a)(7)(B)(i) (emphasis added). Absent evidence to the contrary, we presume that Congress understood what it was doing when it instructed courts to provide a specific remedy and permitted courts to provide another. Accordingly, we find that Congress unequivocally stated a purpose to restrict the courts' traditional equitable authority upon a finding of a "pattern or practice." Accord ABC, Inc. 184 F.3d at 354-55.32 Because, as discussed, we come to the unavoidable conclusion that EchoStar engaged in a "pattern or practice" of SHVA violations, we hold that the district court is required to issue a nationwide permanent injunction barring the provision of distant network programming pursuant to the Act's statutory license.

IV.​For the foregoing reasons the judgment of the district court is AFFIRMED in part and REVERSED in part, and we REMAND the case to the district court for the entry of a nationwide permanent injunction as mandated by the Act.

SO ORDERED.
source​​I've checked at the Southern District of Florida's Courts and found that the US Supreme Court decision was officially returned to the court on August 28th. I cannot find when the court is scheduled to take action.

The September 11th date is bogus (even though the source was E*'s 10-Q). The parties may have agreed to hold off the injunction for 45 days (as noted) but the court DENIED their motion on August 17th.

I don't think this bodes well ...


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## juan ellitinez (Jan 31, 2003)

James Long said:


> From the end of the 11th District Court ruling:
> 3. Mandatory Nature of the Remedy​The Act instructs that, upon a finding of a "pattern or practice" of violations, a "court shall order a permanent injunction 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." 17 U.S.C. § 119(a)(7)(B)(i) (emphasis added). Despite the facially mandatory nature of the provision, EchoStar argues that the district court had discretion to issue the injunction, and properly exercised that discretion in not issuing the injunction in this case. In making this argument, EchoStar relies primarily on Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754 (1944), for the proposition that, if Congress is going to remove courts' traditional equitable discretion, "an unequivocal statement of its purpose would have been made." 321 U.S. at 329, 64 S. Ct. at 591; see also id. at 330, 64 S. Ct. 592 ("We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied."). We believe there are important differences between the statute in _Hecht_ and the one before us that lead us to conclude that Congress removed courts' discretion upon a finding of a "pattern or practice" of violations.
> 
> The Hecht Court interpreted section 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C. § 901 _et seq._, (repealed 1956), which provided that, upon finding of certain conditions, "a permanent or temporary injunction, restraining order, or other order shall be granted without bond." The Court found statutory language ("or other order") and legislative history suggesting that Congress had not intended to remove courts' traditional equitable discretion. 321 U.S. at 328-29, 64 S. Ct. at 591. There is no ambiguous statutory language in the SHVA and we are unaware of any legislative history that would indicate that the remedial measure chosen by Congress is anything but mandatory. Cf. H.R. Rep. No. 106-464, at 94 (1999) (Conf. Rep.) ("The section 122 license contains remedial provisions parallel to those of Section 119, including a 'pattern or practice' provision that _requires_ termination of the Section 122 statutory license as to a particular satellite carrier if it engages in certain abuses of the license." (emphasis added)). Moreover, section 119(a)(7)(B)(i) itself contemplates both mandatory and discretionary remedies: Upon the same finding of a "pattern or practice," "the court shall order a permanent injunction" whereas "the court may order statutory damages." 17 U.S.C. § 119(a)(7)(B)(i) (emphasis added). Absent evidence to the contrary, we presume that Congress understood what it was doing when it instructed courts to provide a specific remedy and permitted courts to provide another. Accordingly, we find that Congress unequivocally stated a purpose to restrict the courts' traditional equitable authority upon a finding of a "pattern or practice." Accord ABC, Inc. 184 F.3d at 354-55.32 Because, as discussed, we come to the unavoidable conclusion that EchoStar engaged in a "pattern or practice" of SHVA violations, we hold that the district court is required to issue a nationwide permanent injunction barring the provision of distant network programming pursuant to the Act's statutory license.
> ...


 smething is up though.. NO Placards telling customers to call Congress.. Unusully short "emergency" retailer chat..Chuck is waaaaaaaaaaay too quiet


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## James Long (Apr 17, 2003)

We have had long discussions on alternatives to 17 USC 122 copyright payments. Perhaps that is what is "up". Losing distants is a hit E* doesn't want to take, but I don't see it as a death knell either. They do need to expand their local and SV offerings to get 99% coverage.


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## UTFAN (Nov 12, 2005)

tsmacro said:


> Gee after reading so many posts of doom and gloom of how this whole thing was going to be the undoing of Dish and yet somehow Charlie and E* manage to work it all out.......again! Of course what was even more annoying were the people with the holier than thou attitudes that were just enjoying the whole thing way too much and assuring us all that everyone with any kind of distant networks for any reason was going to lose them and it was all well deserved because Dish was breaking the rules by allowing subscribers to break the rules. After all Dish and its rogue subscribers deserved to be punished for playing fast and loose with the rules. :sure: And yet here we are everything but some minor details to be hammered out and the distants are still here and will continue to be. Let me go out on a limb here and say Dish will also get through the TiVo situation without ever turning off anyones DVR and the company will continue to make plenty of $$$ and make Charlie and the shareholders happy.


I do wish I had a quarter, even a dime for every time someone posted the doom of Echostar. I could buy the company! Of course there would be legal actions and various lawsuits, which would result in more doom postings here.

Never mind.


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## tsmacro (Apr 28, 2005)

UTFAN said:


> I do wish I had a quarter, even a dime for every time someone posted the doom of Echostar. I could buy the company! Of course there would be legal actions and various lawsuits, which would result in more doom postings here.
> 
> Never mind.


Yeah I noticed my post was mostly ignored while people went mining legal brief's for more proof on how bleak everything was. Oh well I was just trying inject some positive energy into the whole thing, why even bother? :nono2: Somehow I bet when I get up tomorrow Dish will still be there and my TV will still have a few hundred choices of things for me to watch and some of them might even be worth my time! :lol:


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## James Long (Apr 17, 2003)

I agree ... E* will be fine with or without distants. 

No reason for gloom and doom.


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## Greg Bimson (May 5, 2003)

The only reason for gloom and doom are those people that are receiving distant networks AND depend on them. Otherwise, I am in still in your camp. there will be a quarter with an anomoly when it comes to churn, just like there would have been an anomoly when it came to the quarterly reports if Dish Network paid the $100 million, otherwise known as a one-time charge in financial circles.


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## James Long (Apr 17, 2003)

Without being too cold about it, gloom and doom for less than a million customers isn't nessisarily gloom and doom for E*. Losing distants isn't a good thing, but it can be marketed around.

(If I were E* I'd grab the markets where D* has locals and E* doesn't pretty quick. E* has more locals markets ... it would be nice to say that without the caveat that D* has markets E* doesn't carry.)


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## zmark (Apr 18, 2005)

This is why ownership of content and distrubtion by the same company is a bad thing. But of course, this is america, where the corporation is always right and **** the citizen.. oops, I mean consumer.


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## zmark (Apr 18, 2005)

James Long said:


> Without being too cold about it, gloom and doom for less than a million customers isn't nessisarily gloom and doom for E*. Losing distants isn't a good thing, but it can be marketed around.


Yes, never underestimate the willingness of the consumer to be ****ed in the ***.:kickbutt:


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## kstuart (Apr 25, 2002)

James Long said:


> *D*istant *N*etwork *S*tations ...


You are not watching TV.

If *D*omain *N*ame *S*ervers don't work, you don't end up reading DBStalk.

If someone has a company named "Italian Beauty Masks", they don't call it "IBM". :nono2:


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## juan ellitinez (Jan 31, 2003)

kstuart said:


> You are not watching TV.
> 
> If *D*omain *N*ame *S*ervers don't work, you don't end up reading DBStalk.
> 
> If someone has a company named "Italian Beauty Masks", they don't call it "IBM". :nono2:


ummmmm this enire thread is about Distant Network Stations


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## Stewart Vernon (Jan 7, 2005)

kstuart said:


> You are not watching TV.
> 
> If *D*omain *N*ame *S*ervers don't work, you don't end up reading DBStalk.
> 
> If someone has a company named "Italian Beauty Masks", they don't call it "IBM". :nono2:


That is in large part because International Business Machines owns the trademark on IBM as an acronym. That doesn't mean people "in the know" couldn't refer to your Italian Beauty Masks company as IBM.... just can't do it in an official capacity (marketing for instance).

As far as I know, no one owns "DNS" as an acronym.

But again, one more reason not to use acronyms...

#1. People may not understand what you are talking about.
#2. Someone inevitably will come along to cause intentional confusion even though he really knows what you meant.


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## juan ellitinez (Jan 31, 2003)

JL, Dont you think its abouttime to change the headline on the home page? THE INJUNCTION HAS BEEN ISSUED!!


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## James Long (Apr 17, 2003)

juan ellitinez said:


> ummmmm this enire thread is about Distant Network Stations


Agreed. While I probably wouldn't use the abbreviation it can be understood in context to be "distants". We generally don't discuss networking issues on the satellite forums here at DBSTalk so "Domain Name Services" is an incorrect leap.

:backtotop


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

juan ellitinez said:


> JL, Dont you think its abouttime to change the headline on the home page? THE INJUNCTION HAS BEEN ISSUED!!


 Wrong a correction has posted since you posted this. ONLY a Request for an injunction by Fox was made. No decision yet whether the court will agree to it.


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## juan ellitinez (Jan 31, 2003)

Mike D-CO5 said:


> Wrong a correction has posted since you posted this. ONLY a Request for an injunction by Fox was made. No decision yet whether the court will agree to it.


 Thanks for the update


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## Budget_HT (Jun 4, 2003)

kstuart said:


> You are not watching TV.
> 
> If *D*omain *N*ame *S*ervers don't work, you don't end up reading DBStalk.
> 
> If someone has a company named "Italian Beauty Masks", they don't call it "IBM". :nono2:


Do you think this is the first instance of a duplicate use of an acronym with very different meanings?

Over time I have worked in the telecom world, the A/V world, and the IT and data networking world.

I spend a good percentage of my time convincing people to clearly define each term or acronym they use because the reader/listener may assume a completely different meaning, depending on domains and context. But context helps alot.

When you are here, you need to accept the fact that DNS means distant network stations.


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## kstuart (Apr 25, 2002)

Budget_HT said:


> Do you think this is the first instance of a duplicate use of an acronym with very different meanings?
> 
> Over time I have worked in the telecom world, the A/V world, and the IT and data networking world.
> 
> ...


*D*ish *N*etwork *S*tations

*D*ish *N*etwork *S*atellites

*D*ish *N*etwork *S*hills (used to see that accusation a lot in the old days)

*D*ish *N*etwork *S*atisfaction (any JD Power awards recently?)

for starters.

Conversely, why not:

*D*istant *B*roadcast *S*tations 

Generally, the whole concept of creating acronyms started over 10 years ago amongst the new typing-challenged generation, as in:



> r u loosing your DNS 2 ?


Making more is always a step backwards.


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## James Long (Apr 17, 2003)

At some point, are we going to get back to the topic of E* potentially losing distants?
Now would be a good time. Thanks!

:backtotop


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## billpa (Jul 11, 2003)

Doesn't matter if we go off topic, there are three threads on this subject....for some reason.


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## WI0T (Mar 15, 2006)

James Long said:


> At some point, are we going to get back to the topic of E* potentially losing distants?
> Now would be a good time. Thanks!
> 
> :backtotop


I'll take it back with a question: My mother who lives in Nebraska (zip code 68701)
has E* and the Distant nets...from a long time ago.

Now on E* web page they show her DMA is Sioux City IA...Except she would rather
get the Omaha Ne networks.

Would she have a choice ? When I grew up there we used to watch Omaha,
Lincoln and Sioux City (all could be watched with big yagi and a rotor).

Right now, I suspect she'll get re-qualifiied, the DNS feeds will be removed,
and she'll be stuck with networks from Sioux City IA...


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## James Long (Apr 17, 2003)

billpa said:


> Doesn't matter if we go off topic, there are three threads on this subject....for some reason.


The primary thread is being kept at the top of the forum as a sticky. We've changed the threads as the headline changes so new conversation doesn't get lost in replies to old messages. Normally I'd say close the other threads but they still have on topic conversations continuing.

Topics do matter, especially in important threads like this one where there is great interest in the outcome.


WI0T said:


> I'll take it back with a question: My mother who lives in Nebraska (zip code 68701) has E* and the Distant nets...from a long time ago.
> 
> Now on E* web page they show her DMA is Sioux City IA...Except she would rather get the Omaha Ne networks.
> 
> ...


It is likely she will lose distants since "her" locals are available. Significantly Viewed was supposed to be the answer to problems like this - areas where people actually watch stations from another market. (Madison County has KLKN 8 ABC and KOLN 10 CBS from Lincoln and WOWT 6 NBC from Omaha, NE listed as possible for SV. Not quite what she wants, but certainly more than just Sioux City.)

{INSERT STANDARD SV RANT HERE}


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## WI0T (Mar 15, 2006)

James Long said:


> <snip>
> 
> Topics do matter, especially in important threads like this one where there is great interest in the outcome.It is likely she will lose distants since "her" locals are available. Significantly Viewed was supposed to be the answer to problems like this - areas where people actually watch stations from another market. (Madison County has KLKN 8 ABC and KOLN 10 CBS from Lincoln and WOWT 6 NBC from Omaha, NE listed as possible for SV. Not quite what she wants, but certainly more than just Sioux City.)
> 
> {INSERT STANDARD SV RANT HERE}


She would prefer Omaha not Sioux City. I told here to sit tight and wait until
E* does something or contacts here...and when something happens, ask for the
Omaha Locals.

Alternatively she's thinking about switching to D* - friends of hers have D* and
get the Omaha networks. I told her to wait and see what happens before 
jumping ships and figure out what new equipment she wants (HD ? DVR ? HD DVR 
?, etc), since once you are a subscriber, you don't get as good of deals on
equipment that a new subscriber does (Her E* equipment is from 1998/1999).

Of course there's always cable in Norfolk, but she's biased against cable from
previous experience.

Thanks, Rod


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## TNGTony (Mar 23, 2002)

The locals your mother can receive are determined 100% by the county she lives in and what TV market that county is/was in when Dish or DirecTV "froze" the DMA bounderies. These boundaries run along county lines 99% of the time and are "tweaked" every year depending on surveys by Nielsen Media reseach which guestimate not only what TV stations residents of that county watch, but where they are most likely to do business. If a county has a larger population doing business with one market than another but more peopl watch the other market's TV stations, things get very funky and the county moves from market to market constantly.

Anyway, the 2005/2006 boundaries for the Omaha market looked like this


The boundaries for Sioux City look like this


Also notice the counties in white. These were counties that USED to belong to that market but moved to another market.

See ya
Tony


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## WI0T (Mar 15, 2006)

TNGTony said:


> The locals your mother can receive are determined 100% by the county she lives in and what TV market that county is/was in when Dish or DirecTV "froze" the DMA bounderies. These boundaries run along county lines 99% of the time and are "tweaked" every year depending on surveys by Nielsen Media reseach which guestimate not only what TV stations residents of that county watch, but where they are most likely to do business. If a county has a larger population doing business with one market than another but more peopl watch the other market's TV stations, things get very funky and the county moves from market to market constantly.
> 
> Anyway, the 2005/2006 boundaries for the Omaha market looked like this
> 
> ...


That pretty well shows what she's going to get...

Question: Does this apply to E* and D* ? She was considering switching to D* 
and was under the impression she would get Omaha locals then.

Comment: It's interesting that if she switched to cable, show would the get locals
from Omaha, Sioux City and Lincoln.

Thanks!
Rod


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## TNGTony (Mar 23, 2002)

The laws dealing with local channels via satellite and via cable are unrelated and evolved from totally different circumstances. I know it doesn't seem right, but you have to look where each set of laws dealing with ALLOWING local into local channels (not restricting--without the current law in place local into local would be MUCH more ificult) came from.

As to what DirecTV and E* have depends on where they "froze" the lines. Say for example E* froze the bondaries at the 2002 markings and DirecTV chose to freeze them at the 2001 lines, there would be a few counties that would have one set of locals on DirecTV and another on Dish.

Another thing to consider, are your mother's friends living in the same county *AND* in the same zip? If the answer is no, there is no guarantee. You have to check with DirecTV's qualifying tables to see what locals they offer at your mother's address.

The reason the zip is important is that some times, the zip code is considered a neigboring county. This can work for or against you depending on what you want to get! The DMA lines are supposed to run on the county line, but sometimes Dish and DirecTV's lines are a little fuzzy and use zip boundaries more than they should.

See ya
Tony


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## Jerry 42 (Feb 25, 2003)

I asked this elsewhere but perhaps is is best to post here -

As the network Stations continue to lose shares of views would not they (each station that is) be better off offering Distant waviers to people at a price, perhaps $100, $125 or something per year for those views who want waviers? Nobody wants to pay more than necessary but under this everybody who is willing to pay gets what they want and the Stations and Dish make money too.

While I am Grandfathered under the current regs (and pending the judge's Dish rulings), others and myself who are willing to pay for access to Distant stations could get them as well as the local station. While possibly only a few who really want Distants would go for the Wavier "fee charge" it would bring in money to the station to offset rating loss and those people might very well watch local news etc on which ratings is were stations make the most profits. It maybe that you would still need to pay Dish the $ 5 per month and have a Dish pointed to the right satellite.

I am retired in CA with a fixed income, but if I want NY sports etc I would find a way to pay for it. It does seem to me to be an answer most could live with.

Anybody feel the way I do?

Edit/Delete Message


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## kstuart (Apr 25, 2002)

James Long said:


> The primary thread is being kept at the top of the forum as a sticky. [...]Topics do matter, especially in important threads like this one where there is great interest in the outcome.


I think that the Sticky threads should *only* contain information posted by the moderators and should thus be locked.

Thus someone who was looking for news and information on the topic could just check whether there has been a new post in the sticky thread.

The _discussion_ on those topics could go in separate, unsticky threads that go up and down in the list depending on their popularity, like all the others.


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## joblo (Dec 11, 2003)

kstuart:

1. You assume incorrectly that only moderators provide useful news and info.

2. Moderators have enough to do without the responsibility for keeping all the sticky threads up to date. 

Please... let's not make life difficult for moderators.


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## James Long (Apr 17, 2003)

Generally speaking, we sticky threads that we believe to be important. If there are two threads on similar topics they will probably get merged or one will get stickied and the other closed. Having a topic sticky at the top is a "suggested reading list".

This is an odd situation where the news is migrating as the story changes. We don't want to simply close the old theads in this case since there were side discussions on-going. Many people stop reading after the fifteen or fiftieth time the "news" is repeated. Changing the sticky when something big happens allows those who have tuned out to realize that there is something worth tuning into.

The forums are participatory. We do have a few locked stickies as "read me"s in other forums but generally speaking - we want your input !

Anyways, enough of 'under the hood' ...

:backtotop


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## Nick (Apr 23, 2002)

*Group to D.C.: Eye Fox Actions in Distant Nets Case*

*"It appears clear for all to see that the reason the News Corporation's
Fox Network filed suit with the Court is so that the News Corporation's
DirecTV will have an unfair monopoly..."*

A D.C. think tank continues to weigh in on the distant networks skirmish involving EchoStar and broadcasters, including Fox's refusal to participate in a settlement the satellite TV service scored with other TV station owners.

Public policy foundation Frontiers of Freedom Institute on Tuesday urged Congress to take action on the distant network matter by investigating efforts from Fox and News Corp. to derail the EchoStar/broadcaster resolution tied to the long-running dispute.

Fox pulled out of distant nets settlement discussions and said it has no intention of rejoining negotiations with EchoStar. The broadcaster also filed a motion with the U.S. District Court in Miami asking a judge to issue a nationwide, permanent injunction barring EchoStar from delivering any ABC, CBS, NBC or Fox distant network signals.

Fox's action is an attempt to derail the settlement agreement EchoStar entered into with the broadcast affiliates of ABC, CBS and NBC, Frontiers of Freedom said. The organization also pointed out News Corp. controls both Fox and satellite TV competitor DirecTV.

Said George Landrith, president of Frontiers of Freedom, "News Corporation, by attempting to create an unfair monopoly for itself, is looking to hold rural America hostage and putting its profits before the interests of rural consumers. Seven of the eight broadcasters that have been parties to this matter signed agreements because it was in the best interest of consumers and represented a significant victory for the broadcasters."

Landrith added, "It appears clear for all to see that the reason the News Corporation's Fox Network filed suit with the Court is so that the News Corporation's DirecTV will have an unfair monopoly when it comes to offering consumers distant network channels - especially to consumers in rural America."

www.SkyReport.com - used with permission


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

I totally agree with thier sentiment. They need to stop Fox from derailing the settlement and give the subs who did nothing wrong , their distant networks. ON the same note Dish should make a 100% effort to finish the rest of the dmas in the country and use significantly viewed locals from nearby dmas to fill in the missing networks. Then the distant networks won't be needed as much except for rv drivers and truck drivers. Once February of 2009 comes in 2 and a half years, the distant networks would go away anyway unless they start providing the digital equivalent down converted to 480p or 480i. 

Rupert and Directv needs to find another way to take customers from Dishnetwork. How about providing better picture quality , more hd channels in true hd, cheaper lease prices for the hd mpeg4 dvr, lower prices on programming? If they could do any of these they would at least be on equal footing with Dishnetwork. 

Rupert has a monopoly in both content- Fox , content provider- Directv and the parent company - Newscorp. This is why they should have never allowed one person to own all these media outlets. I hope congress will step in and stop this legal manuvering by Directv/Fox/Rupert to screw thousands of rural customers from getting their distant networks especially since they did nothing wrong. Rupert stop being a petty jerk and find another way to create subs legitamately . You do not need to be this low and try to steal subs from Dish over this issue. 

Rupert running Directv -- straight into the ground.


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## Chris Walker (May 19, 2004)

Rupert is doing the same thing Tivo is doing, they have an inferior service and all they can do is try to sue and ask for injunctions to stop their competitors who they are unable to compete with.


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## Greg Bimson (May 5, 2003)

Chris Walker said:


> Rupert is doing the same thing Tivo is doing, they have an inferior service and all they can do is try to sue and ask for injunctions to stop their competitors who they are unable to compete with.


It is funny to see the pig-tails and pom-poms.

If DirecTV is unable to compete, then why do they have more subs and a higher customer satisfaction rating than Dish Network, who gives out distant networks illegally to help pad their subscriber numbers?

If TiVo is unable to compete because Dish Network stole the patented process that TiVo uses to make DVR's cheaper, why would you call TiVo inferior when the entire process Dish Network uses came from another company?

I'm all for pom-poms when they need to be out, but when a blanket statement comes out about "inferior service", it needs to be put in check.

In case anyone has forgotten, and I bet they have, Fox and CBS put the screws to DirecTV on distant network service back in 1999. DirecTV had to terminate 600,000 customers. Yes, FOX terminated DirecTV's distants to unqualified subscribers.

Fox is not operating out of character. They've done this before.


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## cj9788 (May 14, 2003)

But now FOX is owned by the same folks who own D*. That changes the rules. Can any one say conflict of interest or antitrust laws?

3 out of 4 networks have agreed to a settlement. Is it really any surprise that the 1 that did not settle has a direct involvement with E*'s only competition. 

So yes E* is guilty as sin no doubt about it. But is right that the only road block to a settlement is FOX and not one of the other networks who were just as harmed by E* and still found a way to reach an acceptable settlement.

What makes FOX so special and unwilling to accept a settlement? It surely could not have anything to do with the fact they have a financial stake in D*. That could not possibly be the reason. No way. Not in a million years.


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## James Long (Apr 17, 2003)

cj9788 said:


> What makes FOX so special and unwilling to accept a settlement? It surely could not have anything to do with the fact they have a financial stake in D*. That could not possibly be the reason. No way. Not in a million years.


It really doesn't matter what their reason is ... people will always believe that it is driven by FOX helping D*.

The 'high moral stand' seems to be out of place ... may they be judged as harshly as they wish to punish E* - they can't claim perfection. Perhaps the next time one of their programs violates a decency standard the FCC can look at them and punish the network to the fullest extent of the law since FOX is demanding that others be punished to the full extent of the law. But that is another issue.

Fox does have a point: Why settle when they won?

If they don't settle the network will lose over 600,000 distant network viewers that DO qualify for distants. Some may move to D* where distants can be offered but they are basically abandoning viewership outside of the markets Fox affilates cover.

If they settle they get cash ... something they never got before other than a federally controlled copyright fee ... plus they get to keep those 600,000 viewers. Perhaps not a number that they care about ... but a lot to cast aside.

They need to decide which is more important - winning or being seen. Most networks want to be seen. The "win" is a fleeting one - even if they are doing it to harm E* it won't be more than a bubble of churn then back to steady growth. Distants are important, but it won't be the end of E* if they didn't have them.


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## BobS (Jun 23, 2006)

cj9788 said:


> But now FOX is owned by the same folks who own D*. That changes the rules. Can any one say conflict of interest or antitrust laws?


In three different languages. But you are confused. You (and a couple of others - unless you are the same person) simply don't know what you're talking about. Please explain how there is a CONFLICT of interest issue. First I suggest that you find out what a CONFLICT of interest is. Antitrust violation? Again - how? Other than mindlessly repeating your mantra do you have ANYTHING to back up this position?



cj9788 said:


> 3 out of 4 networks have agreed to a settlement. Is it really any surprise that the 1 that did not settle has a direct involvement with E*'s only competition.


So what? Would you change your position if it were 2/4 or 1/4? I think not. It really doesn't matter what the reason is. E* lost. The networks won. Each is entitled to (and are) following the path that is in its interest.



cj9788 said:


> So yes E* is guilty as sin no doubt about it. But is right that the only road block to a settlement is FOX and not one of the other networks who were just as harmed by E* and still found a way to reach an acceptable settlement.


Nice of you to admit the obvious. If you and three others were cheated by a con man, would you be willing to accept a "settlement" that you found inadequate just because the others did?



cj9788 said:


> What makes FOX so special and unwilling to accept a settlement? It surely could not have anything to do with the fact they have a financial stake in D*. That could not possibly be the reason. No way. Not in a million years.


In reality the "settlement" is a separate issue. The law does not allow for a "settlement" in lieu of the injunction. Perhaps the next criminal can reach a cash settlement instead of going to prison. What a good idea - NOT! Your problem is with Congress not Fox.


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## Geronimo (Mar 23, 2002)

Fox is not obligated to accept the settlement but it is far from a settled matter that a settelment is not possible. As for whether a conflict of interest exists well one can certainly argue that there is one---but that has nothing to do with the mattetrs that led to all this. It might wind up hurting News Corp in other ways.


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## Greg Bimson (May 5, 2003)

James Long said:


> They need to decide which is more important - winning or being seen. Most networks want to be seen. The "win" is a fleeting one - even if they are doing it to harm E* it won't be more than a bubble of churn then back to steady growth. Distants are important, but it won't be the end of E* if they didn't have them.


James is correct.

However, I think there is a secondary consideration. If the injunction against distant networks is issued, not only does it terminate the current distant analog nets, but also stops digital distants. As Dish Network only plans three markets in HD by the end of the year, the need to get digital distants to the smaller markets increases. Without the license, Dish Network would not be able to offer digital distants to their large contingent of rural subscribers.

And Fox knows this. They probably don't want to file suit again in a few years because Dish Network would probably infringe on the license again.


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## Geronimo (Mar 23, 2002)

Greg Bimson said:


> James is correct.
> 
> However, I think there is a secondary consideration. If the injunction against distant networks is issued, not only does it terminate the current distant analog nets, but also stops digital distants. As Dish Network only plans three markets in HD by the end of the year, the need to get digital distants to the smaller markets increases. Without the license, Dish Network would not be able to offer digital distants to their large contingent of rural subscribers.
> 
> And Fox knows this. They probably don't want to file suit again in a few years because Dish Network would probably infringe on the license again.


I agree with that and I am sure that explains why the other nets have settled. Some other posters have noted that News Corp may ahve another motive here. I can't say that this is the case but I am sure that this angle will be examined.


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## cj9788 (May 14, 2003)

BOB

I would not be posting anything if it was ABC or NBC with whom the settlement could not be reached, but it was not it was FOX. Why do people continue to deny that the parent company of FOX will directly benefit from actions against E*? When Rupert was given the ok to buy up D* it was under the condition that he would not take advantage of his media empire to harm or affect the competition. By FOX not accepting a reasonable settlement that the other networks can come to an agreement on is puzzling. If you can not see the conflict then you are not as bright as you think you are. Or maybe you are one of THOSE people who hate E* and can not see past that hatred. Looking at it from a neutral perspective it reeks of impropriety and should be investigated.


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## Greg Bimson (May 5, 2003)

cj9788 said:


> Why do people continue to deny that the parent company of FOX will directly benefit from actions against E*?


I haven't denied it. I have pointed out that Fox has shown a pattern or practice of cutting people off of their distant networks. They did it to DirecTV in 1999; they are going to do it again to Dish Network in 2006.

Of course, a cut-off of distants helps DirecTV. However, one could say that illegally providing distant networks to Dish Network customers gave Dish Network an advantage the past seven years.


cj9788 said:


> When Rupert was given the ok to buy up D* it was under the condition that he would not take advantage of his media empire to harm or affect the competition.


No, this is where you are wrong. News Corporation agreed to binding arbitration for any contractual issues regarding content. In this case, however, Fox Network was a plaintiff in a lawsuit they won.


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## Geronimo (Mar 23, 2002)

As Mr. Bimson points out the alleged COI might be real but it might not be relevant to this particular case. That does not mean that the whole situation won't come back to haunt them in some other form----and it does not mean that Fox won't be enticed to settle at some point but time is growing short.


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## FTA Michael (Jul 21, 2002)

To address the question of why a party would settle after winning a court case, remember that winning a case is not the same as having money in your hand.

If you sue somebody and win, you've got to collect. Even if there's a legal sanction in your pocket, the losing party can keep appealing or (in such large cases) begging for legislative relief. On the other hand, a settlement means the terms you agree on and money in your pocket right away.


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## Greg Bimson (May 5, 2003)

FTA Michael said:


> To address the question of why a party would settle after winning a court case, remember that winning a case is not the same as having money in your hand.
> 
> If you sue somebody and win, you've got to collect. Even if there's a legal sanction in your pocket, the losing party can keep appealing or (in such large cases) begging for legislative relief.


But in this case, the appealing has run out. There is only one appeal left, which is for Echostar to have their case heard in front of the Supreme Court. And if the injunction is issued, the Supreme Court has said it will not stay the injunction.

Here. I can make this easy, but I will not do anyone's dirty work for fact finding.

What were the demands of the networks and their affiliate boards for judicial relief? Hint: it was never about money.


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## Geronimo (Mar 23, 2002)

Greg Bimson said:


> But in this case, the appealing has run out. There is only one appeal left, which is for Echostar to have their case heard in front of the Supreme Court. And if the injunction is issued, the Supreme Court has said it will not stay the injunction.
> 
> Here. I can make this easy, but I will not do anyone's dirty work for fact finding.
> 
> What were the demands of the networks and their affiliate boards for judicial relief? Hint: it was never about money.


All FTA MIChael said was that sometimes people DO settle for money even when they asked for something else. In this case some of the parties were willing to. So far Fox is not and we will see if they hold to that and they very well might.


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## James Long (Apr 17, 2003)

Greg Bimson said:


> What were the demands of the networks and their affiliate boards for judicial relief? Hint: it was never about money.


It was about getting E* to stop providing distants to customers wo did not qualify for distants. It is the law that suggests "the death penalty" of never being able to offer any distants to any customers ever again.

The settlement ends at getting E* right with the existing laws as well as recouping some of the costs involved. The settlement shows that the those networks and affiliates ARE willing to accept a lesser penalty than "the death penalty". ABC, NBC and CBS are not trying to get ALL distants off E* forever. They just want E* to play by the rules.

Of course one of those rules is "the death penalty" for distants, but the three networks are willing to forgive - for a price. Hopefully the fourth will see the light.

At this point I can see the court accepting the settlement for all networks but Fox, issuing a death penalty against carrying Fox as a distant and seeing this go back to court on Fox's nickel appealing the decision as unfair and anti-competitive. Fox is on a path toward being the only network not offered as a distant. It would be best for all involved to get off that path.

The alternative, a death penalty for all distants, would be appealed by seven parties in this case (three networks, three affiliate boards and E*). I don't see how Fox can win.


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## JohnH (Apr 22, 2002)

Appeal to what court that has not seen an appeal in this case? What new evidence indicates that E* did not do the dirty deeds?


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## Geronimo (Mar 23, 2002)

JohnH said:


> Appeal to what court that has not seen an appeal in this case? What new evidence indicates that E* did not do the dirty deeds?


At taht point the appeal would be on the decision not to accept the settlement. I have no idea where the courts would go on that one.

Mr. Longisi speculating but he is not alone in that some articles have theorized the same thing. So he certainly could be correct.


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

I just read the headlines at SatbizNews.com and one of them says:

"Court tells Directv to live with the verdict."

Does this mean that the court has told Directv to suck it up and live with the settlement maybe? Or maybe they are saying there will be no injunction at this time till the 9/12 deadline is up.

www.satbiznews.com


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## James Long (Apr 17, 2003)

Mike D-CO5 said:


> I just read the headlines at SatbizNews.com and one of them says:
> 
> "Court tells Directv to live with the verdict."


It is a very poorly written headline if it is related to Fox and the distants issue. The court wouldn't tell D* anything in the distants case.


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## Chris Walker (May 19, 2004)

Greg Bimson said:


> I haven't denied it. I have pointed out that Fox has shown a pattern or practice of cutting people off of their distant networks. They did it to DirecTV in 1999; they are going to do it again to Dish Network in 2006.
> 
> Of course, a cut-off of distants helps DirecTV. However, one could say that illegally providing distant networks to Dish Network customers gave Dish Network an advantage the past seven years.No, this is where you are wrong. News Corporation agreed to binding arbitration for any contractual issues regarding content. In this case, however, Fox Network was a plaintiff in a lawsuit they won.


Greg, why do you want Dish to cut its distants off so much? An injunction is not mandatory, if it was then it would have already been issued. There would be no negotiating on settlement terms between Dish and the broadcasters. If there's no lawsuit, there's no injunction. The parties were given until September 11th to prove why an injunction is not necessary. The broadcasters don't want an injunction; they want Charlie's 100 million.


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## Chris Walker (May 19, 2004)

Greg Bimson said:


> But in this case, the appealing has run out. There is only one appeal left, which is for Echostar to have their case heard in front of the Supreme Court. And if the injunction is issued, the Supreme Court has said it will not stay the injunction.
> 
> Here. I can make this easy, but I will not do anyone's dirty work for fact finding.
> 
> What were the demands of the networks and their affiliate boards for judicial relief? Hint: it was never about money.


It's ENTIRELY about money. If it wasn't, the broadcasters and their affiliate boards would not have settled for 100 million. The broadcasters have nothing to gain by cutting off viewers.


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## Chris Walker (May 19, 2004)

Geronimo said:


> All FTA MIChael said was that sometimes people DO settle for money even when they asked for something else. In this case some of the parties were willing to. So far Fox is not and we will see if they hold to that and they very well might.


At this point, I don't think it matters what FOX decides to do. The vast majority of the plantiffs have settled and their greivances are over with, the only plantiff with a problem has an obvious conflict of interest that is being investigated by Congress.


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## Greg Bimson (May 5, 2003)

Chris Walker said:


> It's ENTIRELY about money. If it wasn't, the broadcasters and their affiliate boards would not have settled for 100 million. The broadcasters have nothing to gain by cutting off viewers.


Except we can assume that hundreds of thousands of distant network subscribers will be cut-off if the settlement is accepted.


Chris Walker said:


> An injunction is not mandatory, if it was then it would have already been issued.


According to the Appeals Court, a permanent injunction is mandatory. That is the language given by the Appeals Court while remanding the case back to the District Court to issue the injunction.


Chris Walker said:


> There would be no negotiating on settlement terms between Dish and the broadcasters. If there's no lawsuit, there's no injunction.


There most certainly is a lawsuit. Dish Network was found guilty of a pattern or practice of willful infringement. There appears to be only one remedy for the judge: issue a permanent injunction.

This isn't like the Blackberry case, where the threat of an injunction looms. The injunction, just like in the TiVo v. Echostar case, is at the judge's discretion. A settlement wipes away all claims. In the distant network case, finding willful infringement requires the judge to issue a permanent injunction.


Chris Walker said:


> The parties were given until September 11th to prove why an injunction is not necessary. The broadcasters don't want an injunction; they want Charlie's 100 million.


The broadcasters also want a requalification of every distant network subscriber. So if Dish Network cuts off your distant networks based upon the settlement, you'd be fine with that?


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## juan ellitinez (Jan 31, 2003)

Greg Bimson said:


> Except we can assume that hundreds of thousands of distant network subscribers will be cut-off if the settlement is accepted.According to the Appeals Court, a permanent injunction is mandatory. That is the language given by the Appeals Court while remanding the case back to the District Court to issue the injunction.There most certainly is a lawsuit. Dish Network was found guilty of a pattern or practice of willful infringement. There appears to be only one remedy for the judge: issue a permanent injunction.
> 
> This isn't like the Blackberry case, where the threat of an injunction looms. The injunction, just like in the TiVo v. Echostar case, is at the judge's discretion. A settlement wipes away all claims. In the distant network case, finding willful infringement requires the judge to issue a permanent injunction.The broadcasters also want a requalification of every distant network subscriber. So if Dish Network cuts off your distant networks based upon the settlement, you'd be fine with that?


If what you say is true..WHERE IS THE INJUNCTION???


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## anex80 (Jul 29, 2005)

E* doesn't seem to be changing thier practices in regards to qualifying distant subs or letting you pick your own DNS from the website. I checked on-line today and the option to select distants had returned after being absent for months. Either they're going down swinging or they fully expect to come out of this thing on top.


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## James Long (Apr 17, 2003)

Greg Bimson said:


> Except we can assume that hundreds of thousands of distant network subscribers will be cut-off if the settlement is accepted.


In Fox's case, based on 2002 numbers, with the settlement they would lose 200,000 distant viewers who could watch Fox programming via grade B or better OTA or via in market locals. They would KEEP 600,000 distant viewers who would not be able to view Fox programming if it were not for distants.

Yes, hundreds of thousands would be cut off from their network. But those viewers would have other options. If the injunction is issued they lose viewers who have no other Fox option (other than D* - if they choose to offer distants).


Greg Bimson said:


> According to the Appeals Court, a permanent injunction is mandatory. That is the language given by the Appeals Court while remanding the case back to the District Court to issue the injunction.


The legal avenues do seem tight - but circumstances change. It would be, on paper, controversial for a court to disregard such a directive from a higher court but in this case they have new information that can be submitted.

I don't find a document that says anything about September 11th being a court appointed date. If you know of one please link or post it. The last reference I found was a REQUEST by all parties for a 45 day delay that would have ended aproximately September 11th, but that was denied.

If you know why an injunction has not been issued yet please enlighten us all. I can't find a reason other than 1) the assumption that the judge is actually considering the settlement or 2) the court is so busy that the judge has not gotten around to it.


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## Greg Bimson (May 5, 2003)

James Long said:


> If you know why an injunction has not been issued yet please enlighten us all. I can't find a reason other than 1) the assumption that the judge is actually considering the settlement or 2) the court is so busy that the judge has not gotten around to it.


here

The judge just received the case materials in late August, and has given Echostar until 12 September to show cause.


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## James Long (Apr 17, 2003)

Thank You ... I missed that reading the PACER reports (I probably looked before the page was updated).
District Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

8/17/06 994 ORDER Denying [993-1] joint motion to stay implementation of the Court of Appeals' 5/23/06 order and mandate for 45 days to allow the parties to engage in settlement discussions (Signed by Judge William P. Dimitrouleas on 8/17/06) [EOD Date: 8/17/06] (ss)

8/18/06 995 MANDATE OF USCA (certified copy) affirming in part and REVERSED IN PART, and REMAND the case to the district court for the entry of a nationwide permanent injunction as mandated by the ACT; and Bill of Cost are hereby taxed in the amount of $113.40 against appellant and are payable directly to Appellee [926-1] appeal, [927-1] appeal, [896-1] appeal Mandate Issued Date: 8/15/06; USCA Appeal #: 03-13671-DD; Copy to Judge. (vl) [Entry date 08/23/06]

8/23/06 996 Record on appeal returned from U.S. Court of Appeals: (Miami/Records) consisting of (27) volumes of Pleadings, (22) Volumes of Transcripts, (1) Accordian Folder and (92) Sealed Documents [926-1] appeal by FBC Television, ABC Television, NBC Television, CBS Television, [927-1] appeal by CBS Broadcasting, Fox Broadcasting, FBC Television, ABC Television, NBC Television, CBS Television, [896-1] appeal by All Defendants USCA #: 03-13671-DD (vl) [Entry date 08/28/06]

8/25/06 998 NOTICE OF SETTLEMENT filed by All Plaintiffs (cj) [Entry date 08/31/06]

8/28/06 997 *ORDER TO SHOW CAUSE why the Court should not immediately enter a nationwide permanent injunction pursuant to the Eleventh Circuit's mandate. Response to Order to Show Cause due 9/12/06* (Signed by Judge William P. Dimitrouleas on 8/28/06) [EOD Date: 8/31/06] (ss) [Entry date 08/31/06]

8/28/06 --- Unable to select Robert C.L. Vaughn, Esq. for fax back re: DE #997 (ss) [Entry date 08/31/06]

8/28/06 999 NOTICE of attorney appearance for Fox Broadcasting by John F. O'Sullivan (cj) [Entry date 08/31/06]

8/31/06 1000 MOTION by Fox Broadcasting (Attorney John F. O'Sullivan) for entry of injunction (ss) [Entry date 09/01/06]

[END OF DOCKET: 1:98cv2651]​The first entry was the denial of the 45 day delay for a settlement.


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## Geronimo (Mar 23, 2002)

A mndatory injunction DOES NOT mean that they have to issue one. What si mandatory is the direction it gives-----not the injunction itself.


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## James Long (Apr 17, 2003)

> we REMAND the case to the district court for the entry of a nationwide permanent injunction as mandated by the Act.


Does it get any clearer? Here is the act where the injunction is mandated.


> 17 USC 119 (a)(5)
> (B) Pattern of violations. -
> If a satellite carrier engages in a willful or repeated pattern or practice of delivering a primary transmission made by a network station and embodying a performance or display of a work to subscribers who do not reside in unserved households, then in addition to the remedies set forth in subparagraph (A) -
> (i) if the pattern or practice has been carried out on a substantially nationwide basis, the court shall order a permanent injunction 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, and the court may order statutory damages of not to exceed $250,000 for each 6-month period during which the pattern or practice was carried out;


It was proven that they followed that pattern or practice for ALL four networks. Does a settlement change that?

That is what the parties have to show, apparently by Tuesday. Is there any reason why the law should not be followed to the letter?


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## Geronimo (Mar 23, 2002)

I have said two thngs consistently. First that there will likely be an injuction on the 12th unless certain conditions are met. Second that the term MANDATORY does not refer to what Mr. Bimson saus it does and that of this matter is settled the parties will go back to the court which will likely approve the settlement

The word MANDATORY means something else in this context. The argument that we have to have one even when the parties have settled because the word mandatory is in the description of the injunction is not accurate.


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## Chris Walker (May 19, 2004)

Greg Bimson said:


> Except we can assume that hundreds of thousands of distant network subscribers will be cut-off if the settlement is accepted.?


Who exactly is assuming this other than you? I expect people that truly don't qualify and slipped through the cracks (people getting locals, along with distants from 4 different cities as well) to be shut off due to the settlement but everyone else should be fine.


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## Chris Walker (May 19, 2004)

Greg Bimson said:


> here
> 
> The judge just received the case materials in late August, and has given Echostar until 12 September to show cause.


The settlement is showing cause that an injunction is unnecessary. Why would a court issue an injunction when the plantiffs DON'T WANT ONE??


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## BobS (Jun 23, 2006)

Chris Walker said:


> The settlement is showing cause that an injunction is unnecessary. Why would a court issue an injunction when the plantiffs DON'T WANT ONE??


Umm, because that's the law? And of course the premise of your question is false and not only because Fox doesn't want to sign up. What relief was requested by ALL the plaintiffs at the outset.......A Permanent Injunction! I don't see where this was amended so as the case is over, and as there is one result mandated (the court could have imposed a fine as well but chose not to do so) that is what we will see. This would be the case even if the plaintiffs had asked for something else. For example, if from the outset they had requested $250 million in damages (and proved it), the court would have been unable to award it. Congress has specified the penalty and in doing so have excluded anything else. _expressio unius est exclusio alterius_ This "settlement" is interesting to the parties but not to the court. E* DNS is going bye bye next Tuesday. If the Supreme Court or Congress get involved this may change somewhere down the line but I wouldn't bet on it.


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## Geronimo (Mar 23, 2002)

BobS said:


> Umm, because that's the law? And of course the premise of your question is false and not only because Fox doesn't want to sign up. What relief was requested by ALL the plaintiffs at the outset.......A Permanent Injunction! I don't see where this was amended so as the case is over, and as there is one result mandated (the court could have imposed a fine as well but chose not to do so) that is what we will see. This would be the case even if the plaintiffs had asked for something else. For example, if from the outset they had requested $250 million in damages (and proved it), the court would have been unable to award it. Congress has specified the penalty and in doing so have excluded anything else. _expressio unius est exclusio alterius_ This "settlement" is interesting to the parties but not to the court. E* DNS is going bye bye next Tuesday. If the Supreme Court or Congress get involved this may change somewhere down the line but I wouldn't bet on it.


The courts can always award damages in a civil case. To say that they could not award them if the plaintiffs had proven the damages does not make sense. this particualr may discuss othe rlegal remedies but it does not invalidate the notion that if one party causes samages to another then compensation can be sought.

Yes the parties startes out by asking for a permanent injunction---and tha may well be the outome of all this. But as some have pointed out that really is not the ideal situation for those parties. It certainly was better than having Echostar continue as they were but it is not ideal. that ii why ALL the parties (including Fox) entertained one.

A settlement would lead to a trip back to court. Even this settlement may lead to that but clearly one blessed by all parties has a greater chance of being accepted by the courts.


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## BobS (Jun 23, 2006)

Geronimo said:


> The courts can always award damages in a civil case. To say that they could not award them if the plaintiffs had proven the damages does not make sense. this particualr may discuss othe rlegal remedies but it does not invalidate the notion that if one party causes samages to another then compensation can be sought..


This is simply untrue, it depends on what the law says. Furthermore in some instances where damages are awarded, it can be done so without any showing of harm.



Geronimo said:


> Yes the parties startes out by asking for a permanent injunction---and tha may well be the outome of all this. But as some have pointed out that really is not the ideal situation for those parties. It certainly was better than having Echostar continue as they were but it is not ideal. that ii why ALL the parties (including Fox) entertained one.


Well, the ideal is nice but it is not what the case decided. You still don't grasp the concept that the parties cannot rewrite the statute or overrule the court. Suppose you are in a traffic accident with the other party 100% at fault. You may settle your claim for damages but you cannot incorporate a term that says the other driver won't be cited for a traffic violation. It's not your call.



Geronimo said:


> A settlement would lead to a trip back to court. Even this settlement may lead to that but clearly one blessed by all parties has a greater chance of being accepted by the courts.


Not under the current law and decision. Congress dictated a penalty. Whatever a settlement includes it cannot change this reality.


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## Geronimo (Mar 23, 2002)

BobS said:


> This is simply untrue, it depends on what the law says. Furthermore in some instances where damages are awarded, it can be done so without any showing of harm.
> 
> Well, the ideal is nice but it is not what the case decided. You still don't grasp the concept that the parties cannot rewrite the statute or overrule the court. Suppose you are in a traffic accident with the other party 100% at fault. You may settle your claim for damages but you cannot incorporate a term that says the other driver won't be cited for a traffic violation. It's not your call.
> 
> Not under the current law and decision. Congress dictated a penalty. Whatever a settlement includes it cannot change this reality.


I am sorry but it is not true that a plaintiff can't recover damages if he proves them. that right was there before and it is there now.

As for there being no possibility of settlement perhaps you can explain to us how a civil suit exists if the plaintiffs and defendants settle ---or why all parties negotiated for a settlement if one cannot happen.

i do grasp the idea of what the statite says---but your analogy is faulty. It involves a sitaution where there might be a separate criminal (in that case traffic) offense. That is not the case here. This is a single case and all of the penalties being discussed are civil not criminal.

Personally I am interested in seeing what E*'s next move will be. I suspect that they are still trying to settle w/Fox but if that fails (likely) will they take the settlement that they have to the court as several articles have speculated? If they do how will the court view a settlement with only a subset of the plaintiffs?

it si intersting but I am glad that I do not depend on (or even have) distant nets.


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

Oh God I wish they would hurry up and settle this mess so we can all move on with our lives. Between this legal lawsuit and the Tivo mess I am really tired of al these legal cases. The funniest thing is that 98 % of the Dish customers know nothing of either of these two cases and are living in ignorant bliss.


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## Geronimo (Mar 23, 2002)

That is probably more insightful than any other post here Mike. Let's just wait till the 12th. By then the outcome should be fairly clear (well hopefully)


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## Greg Bimson (May 5, 2003)

Hey, although I have been beating the drum about the possible injunction, I've said that we need to wait for the judge to rule on 12 September.

I've finally found something that may be of use, regarding injunctions. From the Cornell.edu pages regarding injunctions:


> An injunction is a court order requiring an individual to do or omit doing a specific action. It is an extraordinary remedy that courts utilize in special cases where preservation of the status quo or taking some specific action is required in order to prevent possible injustice. *Injunctive relief is a discretionary power of the court* in which the court, upon deciding that the plaintiff's rights are being violated, balances the irreparablility of injuries and inadequacy of damages if an injunction were not granted against the damages that granting an injunction would cause.


I bolded the above, for context.

The difference between an injunction as described here and the one in this case is that the law states a permanent injunction shall be issued in the case of a practice or pattern of willful infringement. Because Echostar was found both guilty and infringing willfully by practice, the injunction is supposed to be issued *because the judge does not have the discretion to ignore it.*

So the question is does the judge have the authority choose between the mandatory punishment of a permanent injunction or set the injunction aside because a settlement is available? Stay tuned, because we'll find out on the 12th.


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## James Long (Apr 17, 2003)

Geronimo said:


> As for there being no possibility of settlement perhaps you can explain to us how a civil suit exists if the plaintiffs and defendants settle ---or why all parties negotiated for a settlement if one cannot happen.


True - one would think that the parties would stop paying their lawyers and just accept the outcome if there were no way to stop the injunction.


Geronimo said:


> i do grasp the idea of what the statite says---but your analogy is faulty. It involves a sitaution where there might be a separate criminal (in that case traffic) offense. That is not the case here. This is a single case and all of the penalties being discussed are civil not criminal.


In this case there is a statute that defines what damages are. Perhaps in the other civil cases you are considering there is no statutory definition of damages. In this case we have a clear definition of damages ... $250,000 per six months of violations and a permanent injunction against carrying any distants in the future.

Perhaps what the lawyers are relying on is the fact that this is an untested law. Not to say that it is unconstitutional (it may or may not be) but that the statutory penalty could be considered unfair - especially when the majority of the plantiffs agree with the defendant and agree to a lesser penalty. Courts have ignored statues before.

We'll see next week. Not nessisarily on Tuesday, but certainly not before then.


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## Geronimo (Mar 23, 2002)

Not quite. It says that there is a ceiling amount on statutory damages. In doing so it it affirms that they are entitled to them which contradicts the earlier claim that they are not entitled to them.

Statutory damages are specified when it would be difficult to otherwise put a dollar value on the damages. They atre generally used in intellectual property cases. i see them in matters involving alleged copyright violations---which is what we are discussing here. They generally are supposed to be punitive and do not limit recovery but I would agree with your statement that this particular law and the application of the concept here is untested. 

But I agree that we will see what happens here. If a settlement is reached with Fox---and no one seems to think it will be---we might hear earlier but I suspect taht youa re 100% right that Tuesday is the first realistic date to hear something.


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## Geronimo (Mar 23, 2002)

Greg Bimson said:


> Hey, although I have been beating the drum about the possible injunction, I've said that we need to wait for the judge to rule on 12 September.
> 
> I've finally found something that may be of use, regarding injunctions. From the Cornell.edu pages regarding injunctions:I bolded the above, for context.
> 
> ...


I could wordsmith that but that is all it would be. What you are saying here is somewhat different from what I understood you to say before and i think that it is substantially correct.


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## James Long (Apr 17, 2003)

Geronimo said:


> Not quite. It says that there is a ceiling amount on statutory damages. In doing so it it affirms that they are entitled to them which contradicts the earlier claim that they are not entitled to them.


The fine is also something that *may* occur as well. They court could decide zero dollars in statutory damages thanks to the use of the word *may* by Congress.

The problem with the injunction is that it uses a different word - _the court *shall* order a permanent injunction barring the secondary transmission by the satellite carrier_. No may to that. The injuntion is a *shall*. _If a satellite carrier engages in a willful or repeated pattern or practice_ they *shall* reap the injunction. It *shall* be done unless they convince the judge by Tuesday that there is a reason not to follow US Code and the specific directive to issue such passed down to the court.

Best wishes on E* making an excellent argument why US Code and the specific directive should not be followed.


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## Geronimo (Mar 23, 2002)

James Long said:


> The fine is also something that *may* occur as well. They court could decide zero dollars in statutory damages thanks to the use of the word *may* by Congress.
> 
> The problem with the injunction is that it uses a different word - _the court *shall* order a permanent injunction barring the secondary transmission by the satellite carrier_. No may to that. The injuntion is a *shall*. _If a satellite carrier engages in a willful or repeated pattern or practice_ they *shall* reap the injunction. It *shall* be done unless they convince the judge by Tuesday that there is a reason not to follow US Code and the specific directive to issue such passed down to the court.
> 
> Best wishes on E* making an excellent argument why US Code and the specific directive should not be followed.


iiwould agree with all of that especially the part at the end. Echostar's only hope is to have a settlement. If they have something else to show the court it would be like pulling a rabbit out of a hat. Good luck to them on taht one.

The point that most of the media articles (but not all) and i are trying to bring across is that a settlement of the matter means that there is no mater before the court any longer---but admittedly even that has to be blessed by the court and as Mr. Long has rightfully pointed out this law is untested and the courts may interpret all this differently than they have in other situations. And while some have speculated that the court might let them broadcast everyone but Fox that is hard to see . The language does not seem to allow that room but maybe the court will see somethign I do not.


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## anex80 (Jul 29, 2005)

Stupid question: Why did the first court not issue the injunction itself? Why delegate the job to a lower court? I'm very naive to the legal system so I'm sure there's an easy answer to this one. I was just wondering.


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## James Long (Apr 17, 2003)

The case was handled by the lower court. It is that judge's task to issue the injunction. A higher court can overturn a lower court's action - usually by pointing out the errors a lower court has made and sending it back with a directive on what to do next.

I like to think of it as a worker and a boss. The lower court is the worker. Tasks are assigned and they handle it. If someone wants to complain they take it to the worker's supervisor. If there are still complaints the next supervisor up is called on until the head of the company makes a decision. The decisions are handed back through the chain to the worker for them to perform the task. Generally speaking the 'higher ups' don't do the actual task - they just command that it be done.


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## Geronimo (Mar 23, 2002)

anex80 said:


> Stupid question: Why did the first court not issue the injunction itself? Why delegate the job to a lower court? I'm very naive to the legal system so I'm sure there's an easy answer to this one. I was just wondering.


higher courts often "remand" a case back to the lower court with guidance. Generally a higher court would not take a specific action without a hearing whereas the lower court can do so. There area lot of exceptions to that rule but let's say this any further examination by the higher court would have taken time and that time delay might be one of the factors.

In the end Echostar did gain some time but as the clock ticks it is harder and harder to see how they will retain their right to broadcast distant nets.


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## Greg Bimson (May 5, 2003)

anex80 said:


> Stupid question: Why did the first court not issue the injunction itself? Why delegate the job to a lower court? I'm very naive to the legal system so I'm sure there's an easy answer to this one. I was just wondering.


Good point, and good clarification by James Long and Geronimo. I'll try to dive into the details:

This case has gone up the appeals chain twice. The second time is where we are now. When the judge in this case ruled that Dish Network was violating the law, he issued an injunction to have distant networks removed from all disqualfied customers, but then issued a stay until the appeal was heard. This was Dish Network's press release about the stay.

The issue here is that the Appeals Court looked at the case, and found errors, but most of them were against Dish Network. Hence, the case was remanded back to the court from which the original injunction was issued, to issue this permanent injunction.


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## juan ellitinez (Jan 31, 2003)

Greg Bimson said:


> Good point, and good clarification by James Long and Geronimo. I'll try to dive into the details:
> 
> This case has gone up the appeals chain twice. The second time is where we are now. When the judge in this case ruled that Dish Network was violating the law, he issued an injunction to have distant networks removed from all disqualfied customers, but then issued a stay until the appeal was heard. This was Dish Network's press release about the stay.
> 
> The issue here is that the Appeals Court looked at the case, and found errors, but most of them were against Dish Network. Hence, the case was remanded back to the court from which the original injunction was issued, to issue this permanent injunction.


so where is it ?


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## Greg Bimson (May 5, 2003)

It will not happen until 12 September, when the court has this case scheduled on the docket. And that is of course unless there is some solution to working around an injunction that the judge must issue as the penalty for breaking the law.


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## Chris Walker (May 19, 2004)

I get the feeling that a couple of you, for whatever reason, are going to be very disappointed when there's no injunction against E*. Why would the parties be spending so much money, time, and effort to settle if it didn't matter? If the court was so hell-bent on stopping E* from selling distants, the injunction would have been issued long ago. Come on guys use a little common sense.


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## Chris Walker (May 19, 2004)

Greg Bimson said:


> It will not happen until 12 September, when the court has this case scheduled on the docket.


So this judge is going to tell the broadcasters and their affiliate boards they can't have the 100 million in monetary relief they are asking for? Sure.. This case is over, E* will pay 100 million, everyone will be requalified, and E* will add 5 more local cities by year's end. This is what E* wants, and more importantly in the courts' eye, it's what the plantiffs want.


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## James Long (Apr 17, 2003)

As a first test of 17 USC 119's penalty provision anything can happen. Regardless of what Judge William P. Dimitrouleas decides it will be appealed by some party.


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## Greg Bimson (May 5, 2003)

Chris Walker said:


> So this judge is going to tell the broadcasters and their affiliate boards they can't have the 100 million in monetary relief they are asking for?


You mean the $100 million for which a settlement was reached between Dish Network and the broadcasters, but only because without the settlement Dish Network will have to turn off all distant feeds?


Chris Walker said:


> If the court was so hell-bent on stopping E* from selling distants, the injunction would have been issued long ago. Come on guys use a little common sense.


OK, Mr. Walker. Let's let you use your common sense. The first date since the Appeals Court remanded the case back to District Court was 28 August, when the judge told Echostar they had to announce a show-cause order on 12 September. You know, due process and all...

Some of us believe that the judge can accept a settlement, some of us believe the permanent injuction will be issued because it is a mandatory penalty. Like most of us have all been saying, we shall see on 12 September.


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

Counting down..... 4 days to go.....


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## BobS (Jun 23, 2006)

I am sorry but it is not true that a plaintiff can't recover damages if he proves them. that right was there before and it is there now.

I did not say it was NEVER true but rather that it is not ALWAYS true. You can have the following combinations.

P has damages, P proves damages = Award under applicable law. Under some no fault laws P cannot recover from D for damages.

P has damages, P cannot prove damages = No award unless provided by statute

P has no damages, P proves damages = logically impossible

P has no damages and (by implication) P cannot prove damages = no award except if there is a statutory award. For instance P (a man) is denied free admission to club on ladies night. He has not suffered a loss but statute specifies $250 award as a matter of public policy. See for example Unruh statute in California.

As for there being no possibility of settlement perhaps you can explain to us how a civil suit exists if the plaintiffs and defendants settle ---or why all parties negotiated for a settlement if one cannot happen.

There can be an agreement but it cannot impact the statute. In essence E* has offended the U.S. by violation of copyright law. A violation for which there is a specified penalty. Only a higher court or Congress can remedy this.

i do grasp the idea of what the statite says---but your analogy is faulty. It involves a sitaution where there might be a separate criminal (in that case traffic) offense. That is not the case here. This is a single case and all of the penalties being discussed are civil not criminal.

No, not all traffic violations are criminal in nature. Here again there is a distinction between the offense against the other driver (bodily injury perhaps) and offense against the government (violation of the law). The offender can be sanctioned in both ways even though they may be civil.

Personally I am interested in seeing what E*'s next move will be. I suspect that they are still trying to settle w/Fox but if that fails (likely) will they take the settlement that they have to the court as several articles have speculated? If they do how will the court view a settlement with only a subset of the plaintiffs?

Courts make new law all the time. It is certainly within the realm of possibility that Judge D. will come up with a novel approach that (he will claim) is consistent with the law. Whether or not it stands up on appeal is a different matter.

it si intersting but I am glad that I do not depend on (or even have) distant nets.[/QUOTE]


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## jacmyoung (Sep 9, 2006)

When the two Colorado senators wrote to the Senate Judiciary Committee for a investigation into News Corp's conduct, in response the Committee "urged" all parties to reach a settlement in order to avoid E* DN shutoff. It appeared to me the Committee believed settlement was not only possible to replace the injunction, but should be encouraged by all parties, which I interpret as to include the court.

Unless the Senate Judiciary Committee lacked basic understanding of the Statute the Congress had created? That would be something!


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## Greg Bimson (May 5, 2003)

jacmyoung said:


> Unless the Senate Judiciary Committee lacked basic understanding of the Statute the Congress had created? That would be something!


And that would not surprise me in the least.

Everyone is being told to settle, yet the only penalty allowed for pattern or practice of willful infringement is an injunction. I'd believe even if all parties settle, the judge would still have to issue the injunction anyway, because it is a matter of law. It is what the judge must do.

The question is if the judge can issue the injunction, then stay the injunction for all parties that were in settlement and accept the settlement offer. That is the only creative way I see it happening.


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## Ohioankev (Jan 19, 2006)

This is from the DirectTV website using thier eligibility standards

Network Affiliate Channel Status 
ABC Eligible (Columbus/Charleston) 
CBS Eligible (Columbus, OH) 
FOX Eligible (Charleston, WV)
NBC WTAP 15 Grade A 
PBS Eligible (Who cares) 

Digital (HD) Distant Network Service
Network Affiliate Status 
ABC Eligible 
CBS Eligible 
FOX Eligible 
NBC WTAP-DT Grade A (strong signal) 


I currently have FOX, ABC and CBS on my DISH because i was eligible. So will i qualify under the new requalification rules ? If not i'm going to be very angry when I have to pay $15 a month for basic cable on top of my DISH Network fees. Anyone know if you can rent a DVR box with just basic cable ?

Anyone notice any scrolling bars on the bottom of thier screens on the Distant Network channels yet?


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## greatwhitenorth (Jul 18, 2005)

spaceghostinME said:


> Yeah, I've been hearing rumors for years, but until it happens I'm not going to get too excited. I heard an interview a while back when there was the WABI/Time Warner hubbub in which WABI said that they had been talking to Dish and were hoping something would come out of that soon, but that it was up to Dish. Of course I am a D* sub, so that wouldn't help me a whole lot right yet, but I'd have to hope that once one of the 2 picks up the market the other one will too, but I guess we'll just wait and see...


October 15th, for Bangor DMA is what we're gearing up for...Rumor has it that D* will not be adding Bangor locals in the near future....


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## minnow (Apr 26, 2002)

With Time Warner here, you need the the digital level of service to get the DVR. And by the way, if the injunction is enforced, there will be no requalifications for anyone as the court ordered DISH to turn off Distants for everyone permanently.


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## anex80 (Jul 29, 2005)

The "DNS eligibility" page on the E* website is down. The fat lady could be warming up...


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## James Long (Apr 17, 2003)

Nothing new from the courts ... other than some notes on attourneys ...
District Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]

9/6/06 1001 APPLICATION by CBS Television, NBC Television for Ronald G. Dove Jr. to appear pro hac vice (gp) [Entry date 09/08/06]

9/6/06 ---- Filing Fee Paid for Ronald G. Dove Jr. to appear pro hac vice; FILING FEE $ 75.00 RECEIPT # 538111 (gp) [Entry date 09/08/06]

9/6/06 1002 MOTION by CBS Television, NBC Television for Neil K. Roman to appear pro hac vice (gp) [Entry date 09/08/06]

9/6/06 ---- Filing Fee Paid for Neil K. Roman to appear pro hac vice; FILING FEE $ 75.00 RECEIPT # 538111 (gp) [Entry date 09/08/06]

9/6/06 1003 APPLICATION by CBS Television, NBC Television for Joshua D. Wolson to appear pro hac vice (gp) [Entry date 09/08/06]

9/6/06 ---- Filing Fee Paid for Joshua D. Wolson to appear pro hac vice; FILING FEE $ 75.00 RECEIPT # 538111 (gp) [Entry date 09/08/06]

9/6/06 1004 APPLICATION by CBS Television, NBC Television for Gerard J. Waldron to appear pro hac vice (gp) [Entry date 09/08/06]

9/6/06 ---- Filing Fee Paid for Gerard J. Waldron to appear pro hac vice; FILING FEE $ 75.00 RECEIPT # 538111 (gp) [Entry date 09/08/06]

[END OF DOCKET: 1:98cv2651]​Looks like some lawyers would like to speak to the judge. 
_*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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## joblo (Dec 11, 2003)

James Long said:


> 9/6/06 1001 APPLICATION by CBS Television, NBC Television for Ronald G. Dove Jr. to appear pro hac vice (gp) [Entry date 09/08/06]


Probably to file objection to CBS and NBC being included in the injunction when those networks have settled and their affiliates are willing to settle.


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## thopki2 (Mar 29, 2006)

October 15th, for Bangor DMA is what we're gearing up for...Rumor has it that D* will not be adding Bangor locals in the near future.

That is good news. I have heard 10/5. So, are we past the rumor stage and heading for reality?


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## kstuart (Apr 25, 2002)

I would be interested in hearing of any previous incidents where two parties were prevented from paying and receiving an amount equivalent to 100 million 2006 US Dollars.

( I can think of plenty of historical precedents where the payment occurred, such as the Romans giving vast quantities of gold in exchange for their city not being sacked, and the Allied Powers requiring huge reparations from Germany that were not-so-indirectly the cause of WW2, for starters. )

PS Cases where the government prevented the purchase of a company due to something like anti-trust laws, does not qualify, it is a different sort of situation.


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## James Long (Apr 17, 2003)

And the lawyers will get their day in court ...
District Web PACER (v2.4)
[ RECENT EVENTS FROM THE DOCKET REPORT FOR CASE: 1:98cv02651 ]
9/7/06 1005 ORDER granting [1004-1] motion for Gerard J. Waldron to appear pro hac vice, granting [1003-1] motion for Joshua D. Wolson to appear pro hac vice, granting [1002-1] motion for Neil K. Roman to appear pro hac vice, granting [1001-1] motion for Ronald G. Dove Jr. to appear pro hac vice (Signed by Judge William P. Dimitrouleas on 9/07/06) [EOD Date: 9/11/06] (gp) [Entry date 09/11/06]

[END OF DOCKET: 1:98cv2651]​


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## yellowfever101 (Aug 17, 2006)

anex80 said:


> The "DNS eligibility" page on the E* website is down. The fat lady could be warming up...


 its been down for months.......................nothing new there


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## James Long (Apr 17, 2003)

It still works for me.


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## Geronimo (Mar 23, 2002)

BobS said:


> I am sorry but it is not true that a plaintiff can't recover damages if he proves them. that right was there before and it is there now.
> 
> I did not say it was NEVER true but rather that it is not ALWAYS true. You can have the following combinations.
> 
> ...


[/QUOTE]

the bottom line is that damages ARE recoverable. In fact in this case there are statutory damages meaning that the plaintiff does not have to pprove the AMOUNT of damage to recover. This law does not limit the right of plaintiffs to recover it actually makes it easier.

We will see what happens here.


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## Geronimo (Mar 23, 2002)

jacmyoung said:


> When the two Colorado senators wrote to the Senate Judiciary Committee for a investigation into News Corp's conduct, in response the Committee "urged" all parties to reach a settlement in order to avoid E* DN shutoff. It appeared to me the Committee believed settlement was not only possible to replace the injunction, but should be encouraged by all parties, which I interpret as to include the court.
> 
> Unless the Senate Judiciary Committee lacked basic understanding of the Statute the Congress had created? That would be something!


By participaing in settlement negotiations all of the parties including Fox hae endorsed the idea that a settlement is possible. I can't find any reference to an article that calims that one is not. But when such settlements are reached they do have to be accepted by the court. If all the parties had accepted it I would see no problem but two plaintiffs (Fox and their affiliate board) did not. So that opens up speculstion about whether the court will accept it reject or possibly bar E* from broadcating Fox.

BTW a settlement is possible even AFTERa mandatory injunction is issued. Here is one example http://64.233.161.104/search?q=cach...ent&hl=en&gl=us&ct=clnk&cd=6&client=firefox-a

And here si one wherea "madatory" injuction was ordered vacated and specifically discusses a settlement. http://news.com.com/2100-1007_3-1021452.html

As I have said before a madatory injunction is simply one that MANDATES a specific act be performed. it is not necessarily final and there is nothing that precludes a settlement---and obviously the parties in this case share that view.

BTW the only party that will be subject to the injunction is Echostar. the palintiffs are not subject to it. I don't follow the logic about staying the injunction for parties in the settlement in light of that. But many have theorized that the injunction would only include FOX programming. Who knows? Not me.

Stay tuned as they say in the TV business.


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## BobS (Jun 23, 2006)

Geronimo said:


> By participaing in settlement negotiations all of the parties including Fox hae endorsed the idea that a settlement is possible. I can't find any reference to an article that calims that one is not. But when such settlements are reached they do have to be accepted by the court. If all the parties had accepted it I would see no problem but two plaintiffs (Fox and their affiliate board) did not. So that opens up speculstion about whether the court will accept it reject or possibly bar E* from broadcating Fox.


Normally at least one party to a case (called the "loser") is wrong about the law therefore the fact that some of the plaintiffs THINK that this is a possibility is not determinative of whether or not it is. Plaintiff participation is a necessary but not sufficient feature.



Geronimo said:


> BTW a settlement is possible even AFTERa mandatory injunction is issued. Here is one example http://64.233.161.104/search?q=cach...ent&hl=en&gl=us&ct=clnk&cd=6&client=firefox-a.


And what does this have to do with the question at hand????



Geronimo said:


> And here si one wherea "madatory" injuction was ordered vacated and specifically discusses a settlement. http://news.com.com/2100-1007_3-1021452.html





Geronimo said:


> As I have said before a madatory injunction is simply one that MANDATES a specific act be performed. it is not necessarily final and there is nothing that precludes a settlement---and obviously the parties in this case share that view..


I see the problem. The flinging about of the use of the word "mandatory." While it is true that a "mandatory" injunction dictates action (while a "regular" or prohibitive injunction forbids action this is not really the key issue. The "mandatory" nature of this injunction, as we have be talking about it, is that it is *mandatory on the court *to issue the injunction because that is what is specified in the law. The section uses the word "shall" (not "mandatory") so there should be no confusion on this issue. The injunction tells E* to STOP doing something so would not be a "mandatory injunction" as you are describing.



Geronimo said:


> BTW the only party that will be subject to the injunction is Echostar. the palintiffs are not subject to it. I don't follow the logic about staying the injunction for parties in the settlement in light of that. But many have theorized that the injunction would only include FOX programming. Who knows? Not me..


As the kids might say, "Well Duh!" - the plaintiffs are not the ones providing DNS, the DBS is. As to the exact contours of the injuction - anything is possible with a given judge but it would take some new legal theory to avoid the issuance.



Geronimo said:


> Stay tuned as they say in the TV business.


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## JohnH (Apr 22, 2002)

BTW: It would be a "permanent" injunction according to the law, not a "mandatory" injunction. The court "shall" issue it.

Where one gets the opinion that the FOX affiliate board did not approve the settlement is beyond any real info I have seen. FOX pulled their O&O affiliates out of that settlement.

Since the determination was made that there was a pattern of violations, how anything less or different than the injunction can be a penalty is a bit troublesome.


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## Greg Bimson (May 5, 2003)

Like I have said, I used the wrong wording...

According to the law, it is mandatory that the judge issue a permanent injunction on the use of the distant network license. And if anyone can find any case law where a settlement would trump the law forcing the judge to issue the injuction, I am all ears.


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## Geronimo (Mar 23, 2002)

Even when an injunction is issued settlements are possible. BTW I have provided examples of where this has occurred. 

Just sit tighht and see what happens.


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## James Long (Apr 17, 2003)

Geronimo said:


> Even when an injunction is issued settlements are possible. BTW I have provided examples of where this has occurred.
> 
> Just sit tighht and see what happens.


I believe the sticky point here is a "mandatory permanent injunction as required by law".

Do you have an example where such an absolute penalty was set aside? Not a penalty that the court invented and later reversed, but a penalty required by law?


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## Greg Bimson (May 5, 2003)

I understand that settlements are possible when injunctions are issued. If Echostar wished to end the litigation in the TiVo v. Echostar case, they only need to settle and dismiss all claims.

The difference here is the SHVIA law directs the judge to issue a permanent injunction. In the TiVo v. Echostar case, the injunction is at the judge's discretion.

This is one of the few civil cases I've seen where a single penalty must be given under certain circumstances.


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## joblo (Dec 11, 2003)

Umm, the key point here, I think, is that the mandatory sanction in 17USC119 -- i.e. the permanent injunction -- is actually a *remedy*, not a *penalty*. At least that's the way I read the provision.

But I'm not a lawyer, and even if I were, it's the judge's reading that ultimately counts.


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## Geronimo (Mar 23, 2002)

joblo said:


> , it's the judge's reading that ultimately counts.


I agree with that let's wait and see what happens. At this point we are going in circles about the meaning of words like mandatory and permanent and for that matter final. There is no point in that as no one is likely to convince the other side. No knock intended toward anyone just a recognition of the situation.

BTW i hope you don't mind me quoting you out of context.


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## Greg Bimson (May 5, 2003)

More new news:

From Broadcasting and Cable:


> EchoStar has told a Florida district court that it should not have to pull the distant network signals of 800,000 subscribers because circumstance have changed dramatically since a court ordered it to, and consumers would be unduly and unfairly hurt by the move. Also, they say, competitor DirectTV would directly benefit from the move.
> 
> The Florida court had given the company until Sept. 12 to explain why the court should not immediately impose a permanent injunction against delivery of those signals as ordered by the 11th Circuit U.S. Court of Appeals.


From Multichannel News:


> In a court filing late Tuesday, EchoStar Communications asked for at least 120 business days to comply if ordered by a federal judge to terminate Big Four network programming to more than 800,000 subscribers largely located in rural areas.


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## boylehome (Jul 16, 2004)

Do I hear a distant drum roll for a decision?


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## Geronimo (Mar 23, 2002)

I wonder if NewsCorp smells the blood in the water.


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## BobS (Jun 23, 2006)

Geronimo said:


> Even when an injunction is issued settlements are possible. BTW I have provided examples of where this has occurred.
> 
> Just sit tighht and see what happens.


Yes but they were irrelevant to this case. I am crushed that you did not read or did not understand my detailed post explaining your error.


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## kstuart (Apr 25, 2002)

Bob - you say that one side is always wrong (the "loser") about the law, but in this case, *both sides* have embraced the idea that a settlement is possible, as well as two US Senators' staffs.

That's dozens of attorneys who think that a settlement is legally possible.

But aside from that, I would bet on US$100 million to "win" over any number of attorneys and judges any day of the week.


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## joblo (Dec 11, 2003)

kstuart said:


> But aside from that, I would bet on US$100 million to "win" over any number of attorneys and judges any day of the week.


With only 25 out of 800 stations, Fox's piece of the settlement would be nothing but pocket money for NewsCorp. I suspect they may have other goals.

See, for instance, this thread.


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## Geronimo (Mar 23, 2002)

BobS said:


> Yes but they were irrelevant to this case. I am crushed that you did not read or did not understand my detailed post explaining your error.


I read your post and I appreciate it I just think that you a re mistaken---as you think I and those that have participated in the settlement process are . While i think that one is possible I think that we agree that it is unlikely that one will be reached that includes Fox.


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## Geronimo (Mar 23, 2002)

It is interesting that some are not finding NewsCorp owned WWOR listed as a superstation. But What agenda do you see? just asking.


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## Geronimo (Mar 23, 2002)

kstuart said:


> Bob - you say that one side is always wrong (the "loser") about the law, but in this case, *both sides* have embraced the idea that a settlement is possible, as well as two US Senators' staffs.
> 
> That's dozens of attorneys who think that a settlement is legally possible.
> 
> But aside from that, I would bet on US$100 million to "win" over any number of attorneys and judges any day of the week.


But NewsCorp would not see the entire sum. It is clear that they were not interested in the settlement offer. We will see what that does to the proceedings.


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## Greg Bimson (May 5, 2003)

kstuart said:


> Bob - you say that one side is always wrong (the "loser") about the law, but in this case, *both sides* have embraced the idea that a settlement is possible, as well as two US Senators' staffs.
> 
> That's dozens of attorneys who think that a settlement is legally possible.
> 
> But aside from that, I would bet on US$100 million to "win" over any number of attorneys and judges any day of the week.


There is a massive problem with this theory.

Settlements usually occur before a judge hands out the penalites. The Blackberry suit is one such example; the TiVo v. Echostar is another example where the parties can settle and dismiss all claims.

The distant network license is not so easy. For example, when the networks sued DirecTV and received their injunction in 1999, DirecTV and the networks settled before the injunction took hold; DirecTV would cut-off all misqualified subscribers within Grade A contours by 30 June, and all subscribers misqualified within Grade B contours by 31 December. It just so happens that Congress stepped in and created the SHVIA, which grandfathered the misqualified Grade B subscribers. The settlement was possible because DirecTV simply wanted to end the litigation, and there weren't any mandatory penalties for their transgressions.

However, Dish Network has been found guilty of a pattern or practice of willful infringement, for which the judge must issue a permanent injunction. The question is whether or not a settlement trumps the mandatory punishment. And you don't normally see mandatory punishments in civil law, which is why this so gray area.

By the way, WWOR, until the law is changed, will always be a superstation. If Dish Network elects not to offer it, that is fine and dandy, too.


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## Geronimo (Mar 23, 2002)

let's see what happens. Fox maintains that it MUST be issiued. Echostar something else in its filing. 


As for when settlements usaully occur I agree but that does not mean that one cannot happen---having said that it is my personal opinion that the judge will not look favorably on this settlement because all parties have not agreed to it. I realize that you see this as a "massive problem with this theory". Understand that others think that the existence of negotiations might point outa problem with your theory that no settlement is possible. 

Again ALL the parties entered into a settlement negotiation and continued it well after the initial ruling. What I am asking you to recognize is that this may be an indication that the outcome is not the slam dunk that some of you see in reading the underlying law or the rulings made to date.


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## joblo (Dec 11, 2003)

Geronimo said:


> Fox maintains that it MUST be issiued. Echostar something else in its filing.


Actually, it's not clear to me exactly what Fox's position is, since I haven't seen their brief, and I'm not sure that lay press reports are entirely reliable, especially after the recent Reuters mistake.

It someone w/PACER or other access could post Fox's brief, that would be helpful.


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## Geronimo (Mar 23, 2002)

If you are interested in PACER only check Mr. Long's posts. I believe he has provided links. 


As for the superstation reference I am not sure anyone ever said that WWOR is not one. I was asking what the first poster (joblo) meant by his comment.


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## kstuart (Apr 25, 2002)

Geronimo said:


> But NewsCorp would not see the entire sum. It is clear that they were not interested in the settlement offer. We will see what that does to the proceedings.


I think you (and the others who said the same thing) are missing the point.

The law is not a group of networked computers that operate the statutes as written. It's a group of self-interested human beings.

If government (and that includes attorneys and judges) were run for the best interest of the people, then we would have access to any network station we wanted.

We don't because of the financial interests of the stations and networks determine who gets money for election campaigns, who gets invited to all expenses paid "conferences" in Oahu, and so on.

There is a scene in the excellent film "Aguirre, Wrath of God" (based on a true story), where Emperor Guzman says "the case being proved, he is sentenced to death. But, today is the feast day of ______ [don't remember the name] so I will suspend the sentence." Prior to that, a whole trial goes on, in order to give the aura of legality, but Guzman can do what he likes.

US$100 million can do what it likes.

PS The judge will have a hard time not implementing the injunction for the Fox stations if Newscorp continues to refuse the settlement, so since Dish operates each network individually anyway, then the injunction will have to be issued for Fox distant channels only.


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## Geronimo (Mar 23, 2002)

i don't follow all your logic---but you may be right that the judge will stop DISH from selling FOX distant nets. Many articles have speculated that this will be the case. But we will see.


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## James Long (Apr 17, 2003)

joblo said:


> It someone w/PACER or other access could post Fox's brief, that would be helpful.


I hope this is worth the $$ it took to retrieve it. The way FLSC's PACER works one must pay to view the entire record of a case in order to view any documents attached. If you just want to see the docket entries with no attachments you can view the last few entries for only 16¢ (search plus page price). It gets expensive to view a 108 page docket just to grab an attachment (at another per page price).

Anyways ... Here is Fox's request.


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## Greg Bimson (May 5, 2003)

Your logic is severly flawed:


> If government (and that includes attorneys and judges) were run for the best interest of the people, then we would have access to any network station we wanted.


I am a person. If I start a company, how are my interests any different than "the best interest of the people"? My interests are discounted? And if I start a corporation and make billions of dollars, my interests are again discounted?

If government were run for the best interest of the people, there would be anarchy, as my best interest is more important than your best interest. 

I wrote this before, and I'll say it again: However, Dish Network has been found guilty of a pattern or practice of willful infringement, for which the judge must issue a permanent injunction. The question is whether or not a settlement trumps the mandatory punishment.

The judge will answer the question.


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## kstuart (Apr 25, 2002)

"People" is plural.

Also, both of you mention "my logic". My point is that logic is not involved.

I could spend thousands of hours posting illogical decisions by judges on every level, including the Supreme Court.


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## JohnH (Apr 22, 2002)

kstuart said:


> "People" is plural.


That would be "People are plural" then.


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## Greg Bimson (May 5, 2003)

Sure people is plural.

So because the people no longer want to be in Iraq, we should leave? Because the people want BMW's for free, BMW should acquiesce? After all, you've already jumped to the conclusion that if the government was run in "the best interest of the people", the business of network television would be ruined. Sounds like logic to me.

Laws should be based upon a "people's" desire, but only when those people are in the majority? How does this work, this "best interests of the people"? Laws to limit corporations and businesses? Inquiring minds want to know...


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## FLWingNut (Nov 19, 2005)

Nicely put.


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## Geronimo (Mar 23, 2002)

JohnH said:


> That would be "People are plural" then.


Actually the people as individuals are not but the word is.

but we are getting pretty far afield here comparing all this to Iraq or free BMWs. I am not sure i follow the earlier poster but I think that all he was saying was that the law protects economic interests and not the people and that therefore the verdict will follow the money. I don't necessarily agree but that seems to be the assessment.


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## James Long (Apr 17, 2003)

There is a difference between 'what the people want' and 'what is best for the people'. It takes a wise man to tell the difference, and then usually it is in retrospect.

I believe that if you actually polled the people they would care less about distants and out of market TV. Most would just want all the stations in their area, not all the stations in the US. It would be cool to be able to flip to any station when something is happining in that community ... but I'd have a hard time saying that a majority of people would want to fight for that priviledge.


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## Greg Bimson (May 5, 2003)

No, I understand kstuart as well. I get the idea. It is just far from the truth.

The fact is that, like most lawsuits, these are civil matters. All civil matters can be swept under the rug if both parties agree. Otherwise, someone is brought in to settle the disputes. That someone is the US Court system.

Even I understand about the illogical verdicts handed out by the courts. There is no reason to have an anti-trust exemption in baseball, but the courts agreed, and the presiding judge later became the Commissioner of MLB.

After all, when the Supreme Court normally gives out their decisions, they somewhat fall along party lines.

But in the instance we are discussing, one party fought tooth and nail until the courts decided the party was abusing the law. Only at that time did the plaintiff decide to settle. However, the way the law is written, the settlement might not trump the remedy. That is up to the judge to decide.


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## joblo (Dec 11, 2003)

James Long said:


> I hope this is worth the $$ it took to retrieve it.


We'll see after I hear back from some folks who actually have law degrees/licenses. 

Thanks.



> It gets expensive to view a 108 page docket just to grab an attachment (at another per page price).


Ouch&#8230; I hope you saved all you grabbed then. You didn't happen to get E*'s show-cause filing, did you?


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## James Long (Apr 17, 2003)

joblo said:


> We'll see after I hear back from some folks who actually have law degrees/licenses.


Much of it reads like the arguments here. Which says a lot for the people here. 


joblo said:


> Ouch&#8230; I hope you saved all you grabbed then. You didn't happen to get E*'s show-cause filing, did you?


The trouble is that in PACER for FLSD the only way one can get the attachments (which are copies, but not true copies, of what was filed) is by looking at the full docket list that goes back to the beginning using the 'local options' selection off of the menu. Using the normal PACER search one can get the 'recent activity' which is always one page but does not include links to the documents. So once something else is added it is back to the 108 page results ($8.64 each time) before you even find out if the attachment is in the system yet.  It would be nice if they would update the 'local option' search to have a one page 'recent activity' - with links. But the whole PACER system is going away next month (Oct 12th) for FLSD anyways. Hopefully this case will be done by then. 

BTW: I don't see E*'s response in the docket yet - but I only have the docket through 9/11 and the system is down for the night.


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## James Long (Apr 17, 2003)

Please see new thread .


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