Injunction Criteria Not Met by Dish, DOJ Says
Dish Network’s request for a preliminary injunction that would block a federal statute requiring the direct broadcast satellite service carry significantly more public TV programming in HD fails to meet the necessary criteria, the Department of Justice said in opposing the request. Dish is suing the FCC as the enforcer of the law passed by Congress in May as part of the Satellite Television Extension and Localism Act of 2010 (STELA) (CD May 13 p2). Dish said the statute violates the company’s First Amendment rights by requiring carriage of certain programming. Per the statute, Dish must reach an agreement with public TV stations for carrying the HD programming by July 27 or face an accelerated schedule to add those broadcasters’ streams in that format.
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The company was unable to prove it will suffer immediate irreparable harm without an injunction, Justice said in a filing to U.S. District Court in Las Vegas on Dish v. FCC. An injunction would “not redress the alleged harm related to the” July 27 deadline because it wouldn’t allow the courts to change dates and definitions of the statute, the DOJ said. STELA doesn’t infringe on Dish’s “editorial discretion” as interpreted by the courts because the mandate doesn’t force the company to “carry any stations it is not already willingly carrying … nor will it prohibit Dish from offering any stations to its subscribers,” said Justice. The First Amendment only applies to conduct that is “expressive or communicative” and doesn’t protect the company’s discretion in choosing which stations are carried in HD.
Because the U.S. has a finite number of satellite positions for DBS use, such services will be limited and under a less vigorous standard of First Amendment scrutiny than broadcast TV, said Justice. Dish can’t deny that HD is “an important competitive advantage for local television broadcast stations, or that viewers are increasingly likely to watch only HD programming,” the agency said. “Congress need not wait for public television stations to be on the brink of extinction before it acts to address this problem, and Dish cites nothing to suggest otherwise."
Dish is scheduled to file its reply to the department’s arguments Monday, the final official filing between the two named parties in the case before a Thursday court date, when a judge will decide if a preliminary injunction is warranted. The Association of Public Television Stations will file an amicus brief before the hearing, said interim President Lana Thompson.