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Saturday, April 13, 2024 | Back issues
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Dish Network Can’t Shelve Law to Put Elmo in HD

(CN) - Dish Network lost its bid for an injunction in the 9th Circuit against a new law that would require it to prioritize making local channels and educational programming available in high definition before regular commercial networks. Dish says it should not have to focus on making "Sesame Street" available in HD when its subscribers would rather it focus on channels that carry the World Cup and "American Idol."

The company was unlikely to succeed on the merits, according to the ruling published Thursday, because the law in question was "content-neutral" and did not constitute an impermissible of free speech rights, as Dish had claimed.

Dish took issue with a portion of the Satellite Television Extension and Localism Act of 2010 that would delay cable providers from offering commercial programs in HD in some markets. Section 207 of the act called for a rollout by Dec. 21, 2010, of "qualified noncommercial educational television stations" in HD in 50 percent of the local markets in which a provider offers HD programming, and full compliance by Dec. 31, 2011.

Dish claimed that it should have the right to cater to the majority of its customers who "prefer watching the World Cup and American Idol in vivid colors over Jim Leher and Elmo," as quoted in the 9th Circuit's ruling.

An exception to the provision, of which Dish Network took advantage, allowed more time for carriers who entered into private agreements with at least 30 noncommercial stations. After entering into such contracts forced Dish Network to postpone offering HD services in 10 new markets, the company sued to enjoin the provision on First Amendment grounds.

The company appealed after a Nevada District Court first declined the injunction request, but the federal appeals panel in San Francisco affirmed the lower court's decision. Both courts found that the law was meant to keep stations like Public Broadcasting Service competitive, not to regulate content.

"The satellite carriers benefit from the statutory copyright license established through [the act]," Judge Richard Tallman wrote for the court. "In return, Congress may place reasonable limitations on the use of that license, which is all Congress has done here. It enacted § 207 to promote fair competition, not suppress free speech. Section 207 is content-neutral."

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