The Satellite Broadcasting and Communications Association (SBCA), DirecTV and EchoStar are appealing a recent court ruling that must-carry rules in the Satellite Home Viewer Improvement Act (SHVIA) are constitutional.
The parties have taken their appeal to the 4th Circuit Court of Appeals in Richmond, Va., which is also where the SBCA is appealing a similar Federal Communications Commission’s report and order on the implementation of satellite must-carry rules.
In a related development centered on the FCC case, the 4th Circuit Court granted the SBCA’s motion for an expedited hearing. The FCC case is tentatively scheduled to begin on the week of September 24.
The FCC appeal is expected to address many of the same constitutional arguments in the district court appeal, the SBCA said.
“The SBCA, DirecTV and EchoStar are committed to fighting satellite must-carry all the way to a successful conclusion,” stated Chuck Hewitt, SBCA president. “Furthermore, we were extremely pleased to receive word late Friday that the 4th Circuit has granted our motion for an expedited oral argument in our challenge of the FCC’s rulemaking on implementing satellite must-carry rules.
“This important decision means that the court should be able to issue a ruling before the Jan. 1, 2002, deadline for implementation of the satellite must-carry rules.”
The SBCA is fighting a recent decision by the U.S. District Court for the Eastern District of Virginia that SHVIA’s must-carry provisions do not violate satellite carriers’ First Amendment rights since neither the language nor purpose is based on content, and the government’s authority under copyright law.
The court also ruled there was no breach of Fifth Amendment rights, because SHVIA does not take away a satellite carrier’s property since carriers choose to accept or decline a free copyright license to retransmit the local programs of any market.
The SBCA and its members are trying to thwart a requirement advocated by the broadcasting industry that satellite providers must carry all local off-air stations in any market they wish to serve with even one local broadcast station, beginning Jan. 1, 2002.
Currently, satellite operators select between four and six national network stations to broadcast in a market.
Ironically, it was the SHVIA provision that gave satellite providers the go-ahead to carry off-air terrestrial signals at all. However, the National Association of Broadcasters had successfully lobbied to have the must-carry conditions added to that law.
The satellite industry has charged the order is onerous because satellite systems have limited transponder capacity and must serve the entire United States, while cable companies, which also have must-carry orders, serve only one market.
The SBCA said the market should determine what to carry in any market and not the government, the SBCA said the current must-carry rules threaten the ability of satellite customers in smaller markets to receive local-into-local services.
Should the ruling stand, EchoStar and DirecTV have contingency plans to launch additional satellites to address some of the capacity burden.