No. _________
IN THE
Supreme Court of the United States
________________
DISH NETWORK CORPORATION and
DISH NETWORK L.L.C.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION, et al.,
________________
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________________
E. JOSHUA ROSENKRANZ
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, New York 10019
(212) 506-5000
jrosenkranz@orrick.com
Counsel for Petitioners
i
QUESTIONS PRESENTED
A federal statute forces a private television
carrier to grant an extra channel to one category of
stations—government-funded stations that carry
certain
specified
types
of
programming.
Programming that is sufficiently educational gets
the preference, so long as the station is governmentfunded, but not if it is too religious, too political, or
too pedagogical. The questions presented are:
1. What is the baseline level of First Amendment
scrutiny that applies to laws requiring satellite TV
providers to carry broadcast stations—the strict
scrutiny that applies to most forms of
communication; the rational-basis scrutiny that (at
least currently) applies to over-the-air broadcast; or
the intermediate scrutiny that applies to cable?
2. Content-based laws are subject to heightened
scrutiny. Is a carriage requirement that favors
certain educational content considered content-based
and subject to heightened scrutiny?
ii
PARTIES TO THE PROCEEDING BELOW AND
RULE 29.6 CORPORATE DISCLOSURE
STATEMENT
Petitioners DISH Network L.L.C. and DISH
Network Corporation were the appellants before the
court
of
appeals.
Respondents
Federal
Communications Commission, Julius Genachowski,
Michael J. Copps, Robert M. McDowell, Mignon
Clyburn, Meredith Attwell-Baker, and the United
States of America were appellees.
Petitioner DISH Network L.L.C. is a wholly
owned subsidiary of DISH DBS Corporation, which
is a wholly owned subsidiary of DISH Orbital
Corporation, which is a wholly owned subsidiary of
DISH Network Corporation.
DISH Network
Corporation is a publicly traded corporation. No
other publicly traded company owns 10% or more of
DISH Network Corporation.
iii
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED ...................................... i
PARTIES TO THE PROCEEDING BELOW
AND RULE 29.6 CORPORATE
DISCLOSURE STATEMENT........................ ii
TABLE OF AUTHORITIES ......................................v
INTRODUCTION ..................................................... 1
OPINIONS AND ORDERS BELOW........................ 3
JURISDICTION........................................................ 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............................ 3
STATEMENT ............................................................ 4
ARGUMENT ............................................................. 8
I.
II.
THIS CASE PRESENTS TWO ISSUES
THAT HAVE SPLIT THE LOWER
COURTS ......................................................... 8
A.
The Circuits Are Split Over How
to Treat Carriage Obligations
Imposed on Satellite TV ...................... 9
B.
The Lower Courts Are Split on
How to Treat Educational and
Public Affairs Programming ............. 16
THE QUESTIONS PRESENTED ARE
IMPORTANT AND THIS CASE
PRESENTS A SUITABLE AND RARE
VEHICLE FOR ADDRESSING THEM....... 22
iv
TABLE OF CONTENTS
(cont’d)
III.
Page(s)
THE COURT OF APPEALS’
CONCLUSION IS WRONG ......................... 27
CONCLUSION........................................................ 37
APPENDIX
Opinion of the United States Court of Appeals
for the Ninth Circuit ................................................1a
Order of the United States District Court for
the District of Nevada Denying Plaintiffs’
Motion for a Preliminary Injunction .....................24a
Reporter’s Transcript of Proceedings in the
United States District Court for the District of
Nevada, July 22, 2010 Hearing on Plaintiffs’
Motion for a Preliminary Injunction .....................26a
Relevant Statutory Provisions...............................30a
v
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Bullfrog Films, Inc. v. Wick,
847 F.2d 502 (9th Cir. 1988)...............................30
Carey v. Brown,
447 U.S. 455 (1980).............................................18
Chicago Cable Commc’ns v. Chicago Cable
Comm’n, 879 F.2d 1540 (7th Cir. 1989) .............24
Citizens United v. FEC,
130 S. Ct. 876 (2010).....................................27, 33
City of Cincinnati v. Discovery Network,
507 U.S. 410 (1993).......................................18, 29
Comcast Corp. v. FCC,
579 F.3d 1 (D.C. Cir. 2009).................................28
Daniels Cablevision, Inc. v. United States,
835 F. Supp. 1 (D.D.C. 1993)..............................16
Denver Area Educ. Telecomms. Consortium v.
FCC, 518 U.S. 727 (1996) .............................19, 28
Eldred v. Ashcroft,
537 U.S. 186 (2003).............................................24
FCC v. Fox Television Stations, Inc.,
613 F.3d 317 (2d Cir. 2010), cert. granted,
79 U.S.L.W. 3629 (U.S. June 27, 2011) (No.
10-1293).........................................2, 11, 16, 24, 37
FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009).........................................11
vi
TABLE OF AUTHORITIES
(cont’d)
Page(s)
FCC v. League of Women Voters,
468 U.S. 364 (1984)...........................16, 17, 24, 32
Ladue v. Gilleo,
512 U.S. 43 (1994)...............................................36
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974)...............................................9
Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue,
460 U.S. 575 (1983).......................................32, 33
Police Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972).........................................18, 30
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969)...................................9, 10, 24
Satellite Broad. & Commc’ns Ass’n v. FCC,
275 F.3d 337 (4th Cir. 2001)...............................15
Satellite Broad. & Commc’ns Ass’n v. FCC,
146 F. Supp. 2d 803 (E.D. Va. 2001) ............15, 25
Time Warner Cable v. Bloomberg L.P.,
118 F.3d 917 (2d Cir. 1997) ..........................23, 24
Time Warner Entm’t Co. v. FCC,
93 F.3d 957 (D.C. Cir. 1996)
(per curiam).......................................14, 20, 21, 22
Time Warner Entm’t Co. v. FCC,
105 F.3d 723 (D.C. Cir. 1997) (dissent from
denial of rehearing en banc).........................15, 21
vii
TABLE OF AUTHORITIES
(cont’d)
Page(s)
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994)..................................... passim
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997)...........................11, 19, 34, 35
United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803 (2000).......................................18, 37
CONSTITUTIONAL PROVISIONS, FEDERAL
STATUTES AND REGULATIONS
U.S. Constitution amend. I.............................. passim
28 U.S.C. § 1254 .........................................................3
47 U.S.C.
§ 335(b)................................................................21
§ 338(a)........................................................ passim
§ 338(k)........................................................ passim
§ 531 ..............................................................21, 23
§ 541 ....................................................................23
Satellite Television Extension and Localism
Act of 2010, Pub. L. No. 111-175, § 207,
124 Stat. 1218, 1253 (2010), reprinted in 47
U.S.C. § 338 note ........................................ passim
In re Implementation of Section 25 of the
Cable Television Consumer Protection and
Competition Act of 1992, Direct Broadcast
Satellite Public Interest Obligations Report
and Order, MM Docket 93-25 (FCC Nov.
19, 1998), 13 F.C.C.R. 23254 ..............................29
viii
TABLE OF AUTHORITIES
(cont’d)
Page(s)
OTHER AUTHORITIES
Jim Chen, Conduit-Based Regulation of
Speech, 54 Duke L.J. 1359 (2005) ......................10
Kenneth L. Karst, Equality as a Central
Principle in the First Amendment,
43 U. Chi. L. Rev. 20 (1975) ...............................18
Thomas G. Krattenmaker & L.A. Powe, Jr.,
Converging First Amendment Principles for
Converging Communications Media,
104 Yale L.J. 1719 (1995) .......................10, 13, 30
Richard L. Weber, Note, Riding on a Diamond
in the Sky: The DBS Set-Aside Provisions of
the 1992 Cable Act, 40 Wm. & Mary L. Rev.
1795 (1999)..............................................13, 25, 29
Laurence H. Winer, The Red Lion of Cable, and
Beyond?—Turner Broadcasting v. FCC,
15 Cardozo Arts & Ent. L.J. 1 (1997)...........12, 29
State of Rhode Island, Division of Public
Utilities and Carriers, Rules Governing
Community Antenna Television Systems,
January 15, 2010, available at
http://www.ripuc.ri.gov/utilityinfo/cabletv/
CableRules_5862.pdf ..........................................23
1
INTRODUCTION1
The Ninth Circuit has issued an unprecedented
opinion upholding an unprecedented statute. For
the first time in history, Congress has required a
private party to grant preferential treatment to
specified speakers. Section 207 of the Satellite
Television Extension and Localism Act of 2010
(“STELA”), Pub. L. No. 111-175 (amending 47 U.S.C.
§ 338(a), (k)), requires satellite TV carrier DISH
Network Corporation (“DISH”) to grant an extra
channel to some local broadcast stations, but not
others.
The extra channel is to enable those
privileged stations to broadcast in the more vivid
colors of high definition. DISH is required to grant
that preference only to public television stations that
are federally funded and that satisfy strict federal
content guidelines, including a prescribed proportion
of educational programming and suppression of any
religious or political viewpoint.
Applying intermediate scrutiny, the Ninth
Circuit upheld the preference based on the
government’s interest in increasing the popularity of
federally funded stations to increase the flow of
viewer donations. In other words, telethons trump
editorial discretion.
The court based its decision to apply intermediate
scrutiny on two legal points—both of which have
split the lower courts. First, the court held that
content-neutral carriage obligations imposed on
1 The Appendix to this petition is cited as “App.” and the
Excerpts of Record before the court of appeals are cited as “ER.”
2
satellite TV are subject to the intermediate scrutiny
that applies to cable television—not the strict
scrutiny that applies to most other media and not
the rational basis scrutiny that applies to over-theair broadcast. The Ninth Circuit broke with the D.C.
Circuit (which applies rational basis scrutiny to
satellite TV). But it did not proceed all the way to
strict scrutiny, which would have been justified
because satellite TV is different from cable in critical
respects. Satellite TV burst on the scene over 15
years ago and now serves some 30 million
households—30% of the pay TV market. Yet, this
Court has never decided what level of scrutiny
applies to the medium.
Second, the court of appeals held that § 207 was
content-neutral and, therefore, declined to enhance
the baseline level of scrutiny.
The court
acknowledged that the preference would be contentbased—and therefore subject to strict scrutiny—
when applied to every medium from newspapers to
films to handbills to picketing. But it declined to
follow those cases. It held that a different definition
of “content-based” applies to “the broadcast
regulatory environment.” App. 15a n.5. More than
15 years ago, this Court left open the question how
to treat the educational and public affairs obligations
imposed on television carriers of all sorts—a
question that affects the mix of programming that
carriers provide to some 100 million households.
These questions are important and this case
presents a rare opportunity to resolve them. At a
minimum, this Court should hold this petition
pending the outcome of FCC v. Fox Television
3
Stations, Inc., No. 10-1293, which poses similar
issues in the context of over-the-air broadcasting.
OPINIONS AND ORDERS BELOW
The portion of the transcript in which the district
court orally denied the preliminary injunction is
reprinted at App. 26-29a. The district court later
memorialized the decision in an order reprinted at
App. 24-25a.
The court of appeals’ original opinion is reported
at 636 F.3d 1139 (9th Cir. 2011).
The order
amending the opinion and denying rehearing en
banc is reported at --- F.3d ---, 2011 WL 3449485,
along with the full opinion as amended. The opinion
is reprinted just once, at App. 1-23a, with the
amendments indicated in redline.
JURISDICTION
The court of appeals entered the amended
judgment sought to be reviewed on August 9, 2011,
simultaneously denying rehearing en banc. This
Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States
Constitution provides in relevant part: “Congress
shall make no law … abridging the freedom of
speech ….”
4
Sections 207 and 307 of STELA, codified at 47
U.S.C. § 338(a)(5)(A), (k)(6), are reproduced in the
Appendix. App. 30-33a.
STATEMENT
DISH Network is a satellite TV provider. Like
any pay-TV provider, DISH makes editorial
judgments as to what programming to offer its
subscribers. ER 200. Among the judgments it
makes is choosing the stations to which it will grant
an extra channel to run its programs in high
definition, or “HD.” Id. HD is the beachfront
property of television carriage. Every local station
would love to force DISH and other providers to
grant it an additional HD channel. Id. HD’s colors
are richer and its pictures more vivid than a
standard definition, or “SD,” channel. ER 245. But
to run a local station in HD, DISH does not just
substitute an HD signal for an SD one; it has to add
an extra channel in addition to that station’s SD
channel. ER 245-46. An HD channel consumes up
to four times the bandwidth of the SD channel. App.
6a.
Under a current FCC regulation, satellite
carriers will be required to air every local station in
HD in 2013. App. 5-6a. But at the moment, DISH
lacks the bandwidth to give every local station an
extra HD channel. App. 6a. It currently grants that
extra channel to only 18% of all local stations. ER
75, 78-124. DISH decides which stations receive
that special status based mainly on what programs
it thinks its subscribers would most enjoy in HD.
ER 200.
While DISH carries more Public
5
Broadcasting Service (“PBS”) stations than any
other pay-TV provider in SD, ER 198, it had not
historically granted PBS an extra HD channel in
most markets. DISH believes its viewers are more
interested in seeing Harry Potter and the Super
Bowl in HD than Charlie Rose and Sesame Street.
Congress overrode DISH’s editorial judgment
with § 207, which requires DISH to move a
privileged group of local television stations to the
head of the HD line.
Section 207 grants the
preference to certain, but not all, “noncommercial
educational stations” (or “NCEs”)—only those that
are “qualified.” 47 U.S.C. § 338(a)(5)(A), (k)(6). An
NCE is not “qualified” unless it is “eligible to receive
a community service grant … from the Corporation
for Public Broadcasting,” or “CPB,” which is the
organization that doles out federal funds to local
television stations. Id. § 338(k)(6)(A), (B). CPB’s
eligibility rules, in turn, prescribe five criteria that
distinguish a “qualified” NCE from all other NCEs,
thereby limiting § 207’s beneficiaries:
1. Government-funded. The only stations that
are “eligible” for a CPB grant are “existing
grantees that receive[d] [CPB] grants during
FY 2009.” ER 186.
2. Educational content.
The NCE must
dedicate a “substantial majority” of its “daily
total programming hours” to “educational,
informational and cultural” programming. ER
187.
6
3. Not too religious. A station that “furthers
the principles of particular … religious
philosophies” is ineligible. ER 188.
4. Not too political. A station that “furthers
the principles of particular political …
philosophies” is ineligible. Id.
5. Not too pedagogical. Stations that are
“primarily for in-school or professional inservice
audiences”—arguably
the
most
“educational” stations of all—are ineligible.
Id.
Congress crafted this definition to direct the
benefit with laser precision almost exclusively (98%
of the beneficiaries, to be precise) to PBS stations,
which, in turn, air mostly government-funded PBS
shows (91% of their content, to be precise). ER 20,
22-24, 134-37.
To illustrate how § 207’s preference works,
consider the Albuquerque television market. That
market has 13 local broadcast stations. ER 25, 7576.
Of these, 11 are commercial and 2 are
noncommercial educational stations. Id. DISH
chose to add an extra HD channel for only 5 of the 13
stations—the affiliates of the four major networks
and the Spanish-language Univision—leaving 8 to
make do with SD only for the time being. Id.
Section 207 forces DISH to give preferential
treatment to only 1 of those 13 stations—the local
PBS station. Id. Affiliates of the other national
networks (MyNetwork and the CW Television
Network) get no preference.
Nor do the local
Spanish-language
affiliates
(Telemundo
and
7
TeleFutura) or the local commercial religious
stations (God’s Learning Channel and Son
Broadcasting Network) that DISH opted not to offer
in HD; Congress did not value their content enough
to move them to the front of the line. Id. The one
other
noncommercial
station,
Alpha-Omega
Broadcasting Network, which the FCC has certified
as educational, gets no preference; it is too religious
to be “qualified” under Congress’s criteria. Id.
Congress moved only the local PBS station to the
head of the line.
The carriage requirement takes two alternative
forms. Alternative 1: DISH had to contract with 30
qualifying stations to carry their programming in
HD within two months of enactment. See 47 U.S.C.
§ 338(a)(5), (k)(2). Alternative 2: Failing that, DISH
would have had to carry at least 78 qualifying
stations in HD by December 2010 and at least 212
by December 2011.
Id. § 338(a)(5)(A).
DISH
satisfied Alternative 1, but its contract with those 30
stations provides it will be relieved of its obligations
if § 207 is declared unconstitutional. ER 11, 14.
It is undisputed that when § 207 went into effect,
DISH had to postpone plans to launch 10 new
markets in HD because it could not accommodate
§ 207’s burdens. ER 201-02, 247.
DISH challenged § 207’s burden under the First
Amendment and sought a preliminary injunction.
The district court denied the preliminary injunction,
focusing entirely on the merits and holding that
§ 207 was likely constitutional. The district court
believed that Congress may require DISH to give a
8
preference to PBS simply because it is allowed to
fund PBS: “Congress has decided and the Supreme
Court has said it’s okay, that we’ve got government
sponsored television in effect, PBS, and it doesn’t
violate the First Amendment.” ER 62.
The court of appeals affirmed. It, too, addressed
only “the underlying legal principles” of the First
Amendment claim “on de novo review.” App. 9a.
The court held that § 207 is “‘subject to at least some
degree of heightened First Amendment scrutiny,’”
App. 11a (citations omitted), but did not apply strict
scrutiny, App. 12-18a. It concluded that the PBScarriage mandate is not content-based, echoing the
district court’s view that “the Government[’s] long
support[]” for public television stations entitles it to
force DISH to grant PBS a preference as well. App.
17a (emphasis added).
DISH filed a petition for rehearing en banc. The
panel made certain edits to its opinion, see App. 2a,
18a, and the court of appeals denied rehearing en
banc, App. 2a.
ARGUMENT
I.
THIS CASE PRESENTS TWO ISSUES THAT
HAVE SPLIT THE LOWER COURTS.
This Court has applied different levels of scrutiny
to laws requiring a speaker to carry the speech of
others. The level of scrutiny depends both on the
medium of communication and on whether the
regulation is content-based. Within this intricate
taxonomy, this Court has never resolved two key
9
questions about a pervasive mode of communication
(satellite TV) and about a particular category of
regulation
(educational
and
public
affairs
programming).
Those questions have split the
courts.
A. The Circuits Are Split Over How to
Treat Carriage Obligations Imposed on
Satellite TV.
This Court has grappled with the implications of
laws forcing speakers to carry the speech of others in
many different contexts. It has concluded that the
level of scrutiny of such laws depends upon the
particular mode of communication. It has applied
three different levels of scrutiny—to traditional
modes of communication, over-the-air broadcasts,
and cable television. But it has never addressed
what level of scrutiny applies to satellite TV, and the
circuits are split on that question.
1. Traditional modes of communication—such as
newspapers, films, billboards, and picketing—enjoy
strict scrutiny.
Thus, if Congress required a
newspaper to publish an op-ed against its will, that
law would be subject to strict scrutiny. See Miami
Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 254
(1974). The law would fail even if the newspaper
were the only paper in town and the goal of the law
were to expose the public to a variety of viewpoints.
Id.
On the other extreme, the government has far
more latitude to impose carriage obligations on overthe-air broadcast. In Red Lion Broadcasting Co. v.
10
FCC, 395 U.S. 367 (1969), this held that carriage
obligations imposed in that medium are subject only
to rational-basis scrutiny because of the peculiar
attributes of broadcast medium—most notably, “the
scarcity of radio frequencies.” Id. at 390. “[T]here
are substantially more individuals who want to
broadcast than there are frequencies to allocate.” Id.
at 388. When multiple broadcasters try to speak on
the same frequency, the “cacophony of competing
voices” results in none being “clearly and predictably
heard.” Id. at 376. The government must therefore
allocate available frequencies by granting relatively
few broadcast licenses. Id. at 388. In return for this
grant, the government may require the licensee to
“[s]hare his frequency with others and conduct
himself as a proxy or fiduciary with obligations to
present those views and voices which are
representative of his community and which would
otherwise, by necessity, be barred from the
airwaves.” Id. at 389.
This Court has noted, in a bit of an
understatement, that “courts and commentators
have criticized the scarcity rationale since its
inception.” Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 638 & n.5 (1994) (“Turner I”), (citing numerous
scholarly articles). The fact is that “[d]issatisfaction
with Red Lion has spawned an academic cottage
industry.” Jim Chen, Conduit-Based Regulation of
Speech, 54 Duke L.J. 1359, 1403 & n.310 (2005)
(citing 13 articles criticizing Red Lion); see, e.g.,
Thomas G. Krattenmaker & L.A. Powe, Jr.,
Converging First Amendment Principles for
Converging Communications Media, 104 Yale L.J.
1719 (1995). Justice Thomas captured a prevalent
11
sentiment when he opined that “Red Lion [was]
unconvincing when … issued, and the passage of
time has only increased doubt regarding [its]
continued validity.” FCC v. Fox Television Stations,
Inc., 129 S. Ct. 1800, 1820 (2009) (Thomas, J.,
concurring). This Court may well reconsider the
entire Red Lion rubric when it decides FCC v. Fox
Television Stations, Inc., No. 10-1293, this Term.
For cable carriers, this Court has rejected both
rubrics, applying instead “the intermediate level of
scrutiny applicable to content-neutral restrictions
that impose an incidental burden on speech.”
Turner I, 512 U.S. at 662; see Turner Broad. Sys.,
Inc. v. FCC, 520 U.S. 180, 186 (1997) (“Turner II”).
In the Turner cases, cable companies challenged a
statute that required them to carry all local
broadcast stations without regard to the nature of
their programming. This Court held that “[t]here
can be no disagreement on an initial premise: Cable
programmers and cable operators engage in and
transmit speech, and they are entitled to the
protection of the speech and press provisions of the
First Amendment.” Turner I, 512 U.S. at 636.
Carriage obligations infringed on their editorial
discretion in part by “reduc[ing] the number of
channels over which cable operators exercise
unfettered control.” Id. at 637. But when it came to
setting a standard of review, this Court split the
baby.
On the one hand, the Court rejected the
government’s argument that regulations governing
what cable companies must carry are subject to Red
Lion’s rational-basis scrutiny. Id. at 637-40. “The
12
broadcast cases are inapposite” to cable, the Court
held, because “cable television does not suffer from
the inherent limitations that characterize the
broadcast medium.” Id. at 638-39. First, “[c]able
technology is capable of transmitting many more
channels than are available through broadcasting,
giving subscribers access to far greater programming
variety.” Id. at 628 (emphasis added). The Court
noted, in particular, that by then (in 1994) “[m]ore
than half of the cable systems in operation today
have a capacity to carry between 30 and 53
channels.” Id. at 628. Second, “[n]or is there any
danger of physical interference between two cable
speakers attempting to share the same channel.” Id.
at 639.
On the other hand, this Court declined to grant
cable the same protection as traditional media such
as newspapers. A main distinction was that back
then the cable company had “special characteristics.”
Id. at 661. Cable companies had “bottleneck, or
gatekeeper, control over most … of the television
programming that is channeled through the
subscriber’s home.” Id. at 656. That meant that “[a]
cable operator, unlike speakers in other media, can
thus silence the voice of competing speakers with a
mere flick of the switch,” id., thereby threatening the
very “viability of broadcast television,” id. at 661.
Like the Red Lion principle, this gatekeeper
principle is controversial. See, e.g., Laurence H.
Winer, The Red Lion of Cable, and Beyond?—Turner
Broadcasting v. FCC, 15 Cardozo Arts & Ent. L.J. 1,
4 (1997) (“Turner threatens to be the Red Lion of
cable, badly skewing the next generation of
13
electronic media regulation”). Particularly as modes
of communication converge, the notion of applying
different First Amendment rubrics to different
media outlets has not gained uniform acceptance.
See Krattenmaker & Powe, supra, at 1719-20.
2. Satellite TV bears some similarities to cable
and some similarities to conventional broadcast, but
is materially different from both. Like cable (but
unlike conventional broadcast), satellite TV offers
extensive menus of television programming—about
20 times the number of channels cable carried back
in the Turner days—with different packages at
different price points. ER 199-200 (600 channels).
Cable and satellite compete vigorously for the same
households to a point where, in any particular
market, the leading cable company’s biggest
competitors are almost always the two major
satellite TV providers, DIRECTV and DISH.
On the other hand, like over-the-air broadcast
(but unlike cable), satellite TV reaches consumers
directly with a digital signal that travels through the
air—not with cables laid underneath public roads
and along utility poles. One commentator has
described satellite TV as “simply broadcast from a
taller mast.” Richard L. Weber, Note, Riding on a
Diamond in the Sky: The DBS Set-Aside Provisions
of the 1992 Cable Act, 40 Wm. & Mary L. Rev. 1795,
1807 (1999). Both must license the right to use a
portion of the spectrum.
And, as is true of
conventional broadcasters, if different satellite
providers tried to transmit from the same orbital
position on the same frequency, they would interfere
with each other.
14
3. In light of these differences and similarities,
courts have wrestled with whether to treat satellite
TV like cable, conventional broadcasters, or
newspapers.
The D.C. Circuit held that satellite TV is more
like conventional broadcast and therefore subject to
the same “relaxed standard of scrutiny that [this
Court] has applied to the traditional broadcast
media.” Time Warner Entm’t Co. v. FCC, 93 F.3d
957, 975 (D.C. Cir. 1996) (per curiam) (citation and
internal quotation marks omitted). The court found
that satellite TV is subject to the same sort of
scarcity as over-the-air broadcast: “Because the
United States has only a finite number of satellite
positions available for [satellite TV] use, the
opportunity to provide such services will necessarily
be limited.” Id. Based on that holding, the D.C.
Circuit upheld a statute requiring satellite TV
providers to set aside 4% to 7% of their time for
public affairs broadcasting, even though the
government had conceded that neither Congress nor
the FCC had made any findings justifying the need
for the set-aside. Id. at 976.
That holding split the D.C. Circuit. More D.C.
Circuit judges registered disagreement with the
holding (five) than agreement (three). But, in an odd
twist, the court denied rehearing en banc because
two recusals left the court one vote short of the sixvote majority necessary to grant rehearing en banc.
In a dissent from that denial, Judge Williams
(writing for all the dissenters) argued that satellite
TV “is not subject to anything remotely approaching
the ‘scarcity’ that the Court found in conventional
15
broadcast in 1969.” Time Warner, 105 F.3d 723, 724
(D.C. Cir. 1997) (Williams, J., dissenting from the
denial of rehearing en banc). As he explained,
satellite “technology already offers more channel
capacity than the cable industry, and far more than
traditional broadcasting.” Id. Satellite TV “is more
than an order of magnitude less scarce than
traditional broadcasting.” Id. at 725.
In this case, the government urged the Ninth
Circuit to follow the D.C. Circuit and apply the Red
Lion principles of conventional broadcast to satellite
TV. See Brief of Appellees at 25-26. But the Ninth
Circuit rejected the invitation and adopted Turner’s
intermediate scrutiny, equating cable with satellite
TV.
The Fourth Circuit, for its part, affirmed a
district court judgment that expressly rejected the
D.C. Circuit’s approach. The district court held that
“[r]ational basis scrutiny is not the appropriate
analytical scheme” for satellite TV. Satellite Broad.
& Commc’ns Ass’n v. FCC (“SBCA”), 146 F. Supp. 2d
803, 823 (E.D. Va.), aff’d, 275 F.3d 337, 353 (4th Cir.
2001). It observed that this Court “declined to
extend the Red Lion rationale … ‘to media that did
not suffer the inherent limitations that characterize
the broadcast medium (e.g., cable).’” Id. (citation
omitted). The Fourth Circuit declared that “Turner I
provides the starting point” to “determine the
appropriate standard of review,” 275 F.3d at 353,
and proceeded to apply Turner I’s intermediate
scrutiny to a regulation that the court found to be
content-neutral, although it declined to decide
16
definitively whether a lower level of scrutiny could
apply, id. at 355.
The clash on this issue is direct and stark. Only
this Court can resolve the dispute. And when it
does, it is not limited to the two alternatives
presented by the circuits. There is a third choice—
that laws compelling satellite TV providers to carry
the speech of others, like laws imposing such
requirements on most any form of communication,
are subject to strict scrutiny. One district court
applied strict scrutiny to carriage obligations
imposed on satellite TV, observing that “[t]here is
absolutely no evidence in the record upon which the
Court could conclude that regulation of [satellite]
service providers is necessary to serve any
significant regulatory or market-balancing interest.”
Daniels Cablevision, Inc. v. United States, 835 F.
Supp. 1, 8 (D.D.C. 1993). The D.C. Circuit’s Time
Warner opinion effectively overruled this decision.
But this Court is free to adopt this analytical
approach, which might well flow from this Court’s
resolution of Fox Television this Term.
B. The Lower Courts Are Split on How to
Treat Educational and Public Affairs
Programming.
Regardless of the baseline level of scrutiny that
applies to carriage obligations imposed on satellite
TV, the scrutiny ratchets up a notch when a law is
content-based. When a regulation on over-the-air
broadcast is content-based, the scrutiny ratchets up
to intermediate scrutiny. See FCC v. League of
Women Voters, 468 U.S. 364, 380-81 (1984). And in
17
the cable context, “the most exacting scrutiny”
applies “to regulations that suppress, disadvantage,
or impose differential burdens upon speech because
of its content.” Turner I, 512 U.S. at 642. This case
raises the question whether regulations directed at
promoting educational programming on television
are impermissibly content-based.
If Congress had imposed § 207’s preference for
government-supported educational content on any
other medium outside the broadcast context, there is
no doubt it would be considered unconstitutionally
content-based. Congress could not declare, “All
newspapers shall reserve an additional page for
qualified educational content,” or “Newspapers shall
publish all qualified educational content in 14-point
type or vivid color.”
A long line of precedent—involving various forms
of expression—confirms the point. In Arkansas
Writers’ Project, Inc. v. Ragland, for example, this
Court considered a state statute that taxed sales of
tangible property but granted a preferential
exemption to some magazines but not others. 481
U.S. 221, 223 (1987).
Magazines that covered
“religious, professional, trade and sports” subjects
enjoyed the preference, but those that covered, say,
general news, politics, gossip, or entertainment did
not. Id. at 224. This Court held that the statute was
content-based because “[i]n order to determine
whether a magazine is subject to sales tax,
Arkansas’ ‘enforcement authorities must necessarily
examine the content of the message that is
conveyed.’” Id. at 230 (quoting League of Women
Voters, 468 U.S. at 383).
18
This Court also struck an ordinance banning
news racks dispensing commercial handbills, but not
newspapers. See City of Cincinnati v. Discovery
Network, 507 U.S. 410, 429 (1993). The preference
was impermissibly content-based because “whether
any particular newsrack falls within the ban is
determined by the content of the publication resting
inside that newsrack”—i.e., whether its subject
matter was commercial or news. Id. So, too, with
regard to statutes that generally prohibited all
“peaceful picketing” but gave a preference for
“picketing on the subject of a school’s labormanagement dispute.” Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 95 (1972); Carey v. Brown, 447
U.S. 455, 460-61 (1980).
In each of these contexts, the controlling principle
was that a regulation that favors some “subject
matter” over others is content-based and
presumptively unconstitutional. Mosley, 408 U.S. at
95-96; see United States v. Playboy Entm’t Group,
Inc., 529 U.S. 803, 813 (2000); Turner I, 512 U.S. at
658.
The government is free to enter the
marketplace of ideas as a participant. But it may
not “manipulate the public debate” as a regulator by
imposing burdens or forcing preferences on other
participants based on the government’s assessment
of the value of the content. Turner I, 512 U.S. at
641; Kenneth L. Karst, Equality as a Central
Principle in the First Amendment, 43 U. Chi. L. Rev.
20, 29-31 (1975) (describing the “equality in the
marketplace of ideas” as the “heart of the first
amendment”).
19
In Turner I and Turner II, this Court twice
expressly left open the question how to treat
preferences for educational content in the cable
context. One provision of the statute required cable
companies to carry certain “low-power broadcast
stations,” but “only if … the station’s programming
‘would address local news and informational needs’”
that are not otherwise being addressed. 512 U.S. at
643 n.6. This Court “recognize[d] that this aspect of
[the statute] appears to” grant “special benefits on
the basis of content.” Id. But it twice declined to
decide “whether these particular provisions are
content based,” id.; see Turner II, 520 U.S. at 223-24,
and never revisited the question. See also Denver
Area Educ. Telecomms. Consortium v. FCC, 518 U.S.
727, 821 n.6 (1996) (Thomas, J., concurring in part
and dissenting in part) (noting that in the wake of
Turner I, “some commentators have questioned the
constitutionality of leased and public access”
requirements on cable).
In Turner I itself, this Court gave mixed signals
as to how it would address such a requirement. On
the one hand, a bare five-Justice majority held that
“the privileges conferred by the must-carry
provisions are … unrelated to content.” 512 U.S. at
645. The main reason was that “[t]he rules benefit
all full-power broadcasters who request carriage—be
they commercial or noncommercial, independent or
network affiliated, English or Spanish language,
religious or secular.” Id. (emphasis added). This
passage suggests that a regulation would be contentbased if its burdens and preferences depended on
whether
a
station
was
“commercial
or
noncommercial”
and
“educational
or
20
noneducational.” Certainly, the four dissenters left
little doubt how they would treat such a provision:
They believed that the must-carry obligations were
content-based in part because they gave a preference
“for educational programming.”
Id. at 677
(O’Connor, J., dissenting).
On the other hand, as the court below observed,
another passage in Turner I seemed to point the
other way. App. 16-18a. The cable companies had
argued “that the must-carry rules are content based”
because they require carriage of broadcast stations,
which, in turn, are “subject to certain limited content
restraints imposed by statute and FCC regulation.”
512 U.S. at 649. This Court rejected that argument,
noting that it “exaggerates the extent to which the
FCC is permitted to intrude into matters affecting
the content of broadcast programming.” Id. at 650.
Because of these mixed signals, circuits have
departed from this Court’s traditional definition of
content-based and have taken divergent approaches
to deciding whether a television carrier’s educational
obligations are content-based or content-neutral. On
the one hand, in the Time Warner case discussed
above, the D.C. Circuit considered two different laws
imposing obligations to carry educational content—
one for satellite TV and one for cable—and held that
the obligation to carry educational and public affairs
programming is sometimes considered content-based
and sometimes not, depending upon a variety of
factors.
The law governing satellite TV required a carrier
to diversify its programming, setting aside a small
21
percentage of its offerings (4-7%) for “noncommercial
programming of an educational or informational
nature.” 47 U.S.C. § 335(b)(1); see Time Warner, 93
F.3d at 973. Focusing on that second passage from
Turner I, the D.C. Circuit found the set-aside
content-neutral because “the government does not
dictate the specific content of the programming that
[satellite] operators are required to carry,” id. at 977,
but left the carrier free to exercise its editorial
discretion as to how best to satisfy the set-aside, id.
The court concluded:
“Because [the set-aside
requirement] is ‘a reasonable means of promoting
the
public
interest
in
diversified
mass
communications,’ it does not violate the First
Amendment.” Id. (citation omitted). Even so, the
D.C. Circuit panel did not suggest that the definition
of “content-based” varies from one context to
another.
This holding, too, split the D.C. Circuit. The fivejudge dissent from the denial of rehearing en banc
insisted that this “provision speaks directly to
content, creating an obligation framed in terms of
‘noncommercial programming of an educational or
informational nature.’” 105 F.3d at 726 (quoting 47
U.S.C. § 335(b)(1)). The dissent concluded that “as a
simple government regulation of content, the
[satellite TV] requirement would have to fall.” Id.
The cable provision at issue in that same case
was a statute that merely authorized local
franchising authorities to “require … as part of a
[cable] franchise … that channel capacity be
designated for public, educational, or governmental
use.” 47 U.S.C. § 531(b). The court rejected a facial
22
challenge to that statute, because such requirements
would be constitutional or not depending on their
specifics. 93 F.3d at 973. Even so, the court
described a hypothetical obligation that would be
unconstitutionally content-based: a “require[ment]
… that a cable operator designate three-quarters of
its channels for ‘educational’ programming, defined
in detail by the city council.” Id.
Under the D.C. Circuit’s sliding scale, § 207
would almost certainly fail because “‘educational’
programming [is] defined in detail by the”
government. Id. But the Ninth Circuit in this case
did not apply any such balancing test. It held that
educational requirements are categorically contentneutral—even where the statute favors only those
television stations that are government-funded and
benefits mainly those stations that carry
government-favored content—because § 207 “seeks
to support expression, not suppress it.” App. 15-16a
(internal quotation marks omitted).
In sum, the lower courts are in disarray as to how
to
assess
educational
and
public
affairs
programming obligations imposed on cable and
satellite TV.
II. THE
QUESTIONS
PRESENTED
ARE
IMPORTANT AND THIS CASE PRESENTS
A SUITABLE AND RARE VEHICLE FOR
ADDRESSING THEM.
Over 100 million households subscribe to pay TV,
more than 30 million of them from satellite
providers. ER 218. These providers strive to
23
present a diverse array of programming catered to
the tastes of their audiences. Every channel that the
government co-opts for content it prefers is a
channel (or, in the case of HD, four channels) that
the carrier cannot use to meet the audience’s
interests.
Section 207’s more onerous command, for
example, would have required DISH to accommodate
on an accelerated schedule an HD channel in each of
212 markets, which would have consumed the
bandwidth of nearly 850 channels. Even § 207’s less
onerous alternative—of 30 HD stations—still
consumes the bandwidth of up to 120 SD stations.
The broader statutory mandate requires satellite TV
providers to set aside 4% to 7% of their channels—24
to 42 channels—for noncommercial educational
programming, which represents a huge incursion on
a satellite provider’s editorial discretion. If the
government imposes HD requirements on all of
them, that translates into an equivalent of 96 to 168
channels displaced.
Cable companies confront an even more complex
set of obligations that are subject to the whims of
thousands of franchising authorities throughout the
country. See generally 47 U.S.C. §§ 531-37 (carriage
obligations), §§ 541-49 (franchise requirements).
Some franchising authorities require the cable
company to reserve over 10% of its channels for
educational and public affairs programming. See 47
U.S.C. § 531; Time Warner Cable v. Bloomberg L.P.,
118 F.3d 917, 920 (2d Cir. 1997) (nine of 77
channels); State of Rhode Island, Division of Public
Utilities and Carriers, Rules Governing Community
24
Antenna Television Systems, January 15, 2010, at
43,
available
at
http://www.ripuc.ri.gov/utilityinfo/cabletv/CableRule
s_5862.pdf
(minimum
6-channel
set-aside).
Franchising authorities have gone so far as to
require cable companies to create their own local
programming, see Chicago Cable Commc’ns v.
Chicago Cable Comm’n, 879 F.2d 1540, 1543 (7th
Cir. 1989), and to carry two news channels (Fox
News and Bloomberg Information Television) on
government access channels, see Time Warner Cable,
118 F.3d at 923 (striking the requirement because it
was inconsistent with the franchise agreement).
The degree to which the government can intrude
on a TV provider’s editorial discretion is obviously an
important issue, “implicat[ing] … the heart of the
First Amendment.” Eldred v. Ashcroft, 537 U.S. 186,
220-21 (2003). But that question is all the more
important in this case, which presents an
unprecedented circumstance where the government
has imposed on a provider the obligation not just to
set aside channels for a particular subject matter but
to set aside channels for a particular set of
government-preferred
and
government-funded
speakers. Whether the government is permitted to
do that is at least as important as whether the
government may prohibit government-funded
stations from editorializing, see League of Women
Voters, 468 U.S. 364 (1984); require broadcasters to
air contrary viewpoints, Red Lion, 395 U.S. 367
(1969); or prohibit broadcasters from airing fleeting
expletives and nudity, see FCC v. Fox Television, No.
10-1293.
25
Satellite TV, in particular, is overdue for this
Court’s consideration. This Court has established
the baseline level of scrutiny for every other
medium. Satellite TV erupted on the scene more
than 15 years ago—when Congress enacted the
Telecommunications Act of 1996 with the goal of
fostering a viable competitor to cable—and it has
revolutionized the delivery of pay TV services. See
generally Weber, supra, at 1797-1804. Yet, this
Court has never addressed the baseline level of
scrutiny that split the D.C. Circuit down the middle
and that has now split the circuits.
For several reasons, there will be few other
opportunities for this Court to address the question
in the future. First, the carriage obligations imposed
on satellite TV companies, while onerous, are
implemented in just a handful of regulatory
provisions. And for the most part, they have all been
challenged and upheld.
Second, satellite TV
providers are far less numerous than newspapers,
cable companies, or broadcasters. There are only
two nationwide satellite TV providers and they have
typically banded together in challenging regulator
provisions. See, e.g., SBCA, 146 F. Supp. 2d at 809
(both DIRECTV and DISH join challenge to
requirement to carry local broadcast stations). So
unless and until Congress or the FCC imposes
additional obligations, these two carriers will be
unable to file any further challenges to the current
regime.
Nor is the preliminary injunction posture of this
case disqualifying. Both the district court and the
court of appeals resolved the case entirely on the
26
merits of the First Amendment issue, without
reference to any of the other preliminary injunction
elements. Both adopted definitive legal standards—
both a level of scrutiny and a definition of contentneutrality. Those legal standards will control the
outcome of this case as well as the outcome of most
any case involving any carriage obligation imposed
on satellite TV. Especially because the preliminary
injunction record was quite voluminous, it is highly
unlikely that the district court or another panel of
the Ninth Circuit will depart from the conclusion the
panel reached at the preliminary injunction stage.
In fact, it is unlikely that there will be an
opportunity for a future Ninth Circuit panel to
revisit the issue because the preferential treatment
that Congress granted to PBS will expire in early
2013, when satellite TV providers will be required to
carry all broadcasters in HD.
That raises the question why this Court should
address a preference that will expire in 15 months.
Of course, the constitutional issues are no less
weighty—and the violation no less egregious—just
because it has an expiration date. But the more
important point is that the issues transcend this
particular statute. And the expiration date does put
a premium on this Court’s intervention now, for if
this Court does not grant review at this stage, the
case will be effectively unreviewable. For this
particular statute—and perhaps even for the broader
issues presented in this petition—it is now or never.
27
III. THE COURT OF APPEALS’ CONCLUSION
IS WRONG.
The court of appeals reached the wrong
conclusion because (A) it started with the wrong
baseline level of scrutiny for satellite TV; (B) it
incorrectly concluded that the forced preference for
specified educational programming was contentneutral; and (C) its scrutiny was excessively
deferential.
Baseline for satellite TV. The Ninth Circuit
correctly rejected the government’s invitation to
follow the D.C. Circuit’s lead and apply Red Lion’s
rational basis scrutiny to satellite TV. But even
Turner’s intermediate scrutiny is unduly permissive
as applied to satellite TV.
Apart from being controversial, see supra at 12,
the bottleneck rationale on which this Court
distinguished cable from traditional media, such as
newspapers, is also subject to change. Even when it
embraced the bottleneck rationale, this Court
observed that “given the rapid advances” in
“technology, soon there may be no practical
limitation on the number of speakers who may use
the cable medium.” Turner I, 512 U.S. at 639; see
also Citizens United v. FEC, 130 S. Ct. 876, 890
(2010) (media-specific First Amendment rules “might
soon prove to be irrelevant or outdated by
technologies that are in a rapid flux”).
The technology has, indeed, advanced to a point
where Turner’s premise is no long applicable even as
to cable. Shortly after Turner I was issued, three
28
Justices observed that “recent developments—which
include the growth of satellite broadcast
programming … — suggest that local cable operators
have little or no monopoly power and create no
programming bottleneck problems, thus effectively
negating the primary justification for treating cable
operators differently from other First Amendment
speakers.”
Denver Area, 518 U.S. at 818 n.3
(Thomas, J., concurring in part and dissenting in
part). And more recently, the D.C. Circuit confirmed
that cable operators today “no longer have the
bottleneck power over programming that concerned
Congress in 1992.” Comcast Corp. v. FCC, 579 F.3d
1, 8 (D.C. Cir. 2009). Cable has lost about a third of
its market to satellite TV providers—DIRECTV and
DISH. ER 218. And they are all losing market
share to telephone companies, such as Verizon
(which offers pay TV by fiber optic service, or
“FiOS”) and AT&T (which offers it by “U-verse”). Id.
In light of all these changes, a cable monopoly can no
longer “silence the voice of competing speakers with
a mere flick of the switch.” 512 U.S. at 656.
More important, Turner’s analysis has never
been true for satellite TV, and DISH in particular.
DISH has never had anything approaching the
bottleneck monopoly power cable once enjoyed.
DISH has only 15% of the pay TV market,
nationally. ER 198. “Unlike cable systems, which
almost always have a de facto local monopoly,
[satellite TV] systems must compete amongst
themselves”—and with cable companies—“for
programming and viewers. A programmer’s inability
to gain carriage on one [satellite] service does not
bar it from access to the entire medium of
29
communication in its community, as there are rival
providers that could provide the desired access.”
Weber, supra, at 1831; see In re Implementation of
Section 25 of the Cable Television Consumer
Protection and Competition Act of 1992, Direct
Broadcast Satellite Public Interest Obligations
Report and Order, MM Docket 93-25 (FCC Nov. 19,
1998), 13 F.C.C.R. 23254, 23278 (acknowledging the
“disparity in market power” between satellite and
cable). No one could ever characterize satellite TV
as a bottleneck for television programming—and
certainly not for PBS’s HD feed, which is carried by
every other pay TV provider in the country. Weber,
supra, at 1831; ER 201.
Accordingly, there is less justification to depart
from the strict scrutiny that applies when the
government requires speakers to carry speech
against their will in virtually all other media. See
generally Winer, supra, at 6 (“[T]here should be a
strong presumption that the newer electronic media
are to be treated no differently from the traditional
print media.”).
Accord, Krattenmaker & Powe,
supra, at 1719-20.
Content-based. Even if intermediate scrutiny is
the appropriate baseline for content-neutral
regulations of satellite TV, § 207 is subject to strict
scrutiny because it is content-based.
As we
demonstrate above, this Court has consistently
found laws content-based when, like § 207, they
impose preferences or burdens based on subject
matter—at least in the context of newspapers,
magazines, news racks, and picketing. See supra at
17-19 (discussing Arkansas Writers’, Discovery
30
Network, and Mosley). Under these precedents,
§ 207 is the quintessential content-based preference
that exalts speech on some subjects over speech on
others. It does not just distinguish on the basis of
whether the subject matter is educational versus
noneducational. The preference goes only to stations
that have the right amount of educational content,
and that do not carry too much disfavored content,
such as religious and political content. Worse yet,
Congress took content-based regulation even further
by: (1) reserving the preference for a subset of
beneficiaries that are government-funded; (2) with
only trivial exceptions, granting the preference only
to PBS member stations, which fill 91% of their
programming with government-supported PBS
content, ER 134-37; and (3) broadcasting its desire to
elevate the favored stations above all others because
of qualitative judgments about the value of their
programming.
The court of appeals mistakenly believed that the
definition of “content-based” is different in the
television context than in any other context. App.
15a n.5. That was the only way the court could
distinguish one of its earlier precedents, Bullfrog
Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988).
The law at issue in Bullfrog Films granted benefits
to certain imported films, but only to films that did
not express “any political, religious or economic
views.” Id. at 510. The Ninth Circuit had concluded
that “[e]ach of these requirements draws contentbased lines forbidden by the First Amendment.” Id.
The panel in this case seemed to acknowledge that
under this traditional definition, § 207’s preference
is content-based. But the panel declined to apply
31
that holding because “the broadcast regulatory
environment” is “a separate First Amendment
context.” App. 15a n.5.
The definition of “content neutrality” does not
morph from one medium to the next. See League of
Women Voters, 468 U.S. at 383-84 (applying the
usual definition in conventional broadcast context).
As noted above, Turner I’s core rationale for finding
the must-carry statute content-neutral means that a
statute cannot stand when, like § 207, its benefits
depend entirely on whether the broadcaster is
“commercial or noncommercial,” whether it is
educational or noneducational, whether it is political
or apolitical, and whether it is “religious or secular.”
512 U.S. at 645; see supra at 19.
Moreover, any rationale there once was for
foisting on television carriers an obligation to carry
educational content has long since evaporated. Back
when rabbit-ear antennas would pick up only a
handful of stations, there was a legitimate concern
that the government needed to step in and ensure
that the masses would receive a modicum of
educational fare and public affairs programming.
There is no longer a concern that the public is
starved of such fare now that cable companies and
satellite companies carry upwards of 600 channels.
The public is awash in 24-hour news programs like
CNN and MSNBC. The Discovery Channel and the
History Channel offer some of the most detailed,
thoughtful, and enlightening programs on the
natural world and historical events.
And
educational programming is abundant on a variety
of more specialized channels, from the Learning
32
Channel to Home and Garden Television to the TV
Food Network. In light of all this educational
activity by commercial enterprises, the notion that
the government needs to step in to make sure we eat
our vegetables is anachronistic, if not downright
paternalistic.
Under its medium-specific rules, the court of
appeals offered several reasons for finding § 207
content-neutral, all of them flawed. First, it noted
that “the criteria used to determine whether a
station receives federal funding are designed not to
promote Congress’s preference, but to guard against
the influence of special interests.” App. 15a. The
government presented almost the same rationale in
defense of the ban on editorializing by public
television stations. See League of Women Voters, 468
U.S. at 385 (arguing that the hazards of these
stations being “capture[d] by private interest groups”
were so great as to justify content-based restriction
on editorializing).
But this Court rejected the
rationale, because though its objectives were
“broadly consistent” with the Court’s broadcast
precedents, id., the means chosen could not
overcome the “First Amendment’s hostility to
content-based regulation,” id. at 384; see also
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 592 (1983) (“illicit legislative
intent is not the sine qua non of a violation of the
First Amendment”).
Second, the court below observed that “the
government is forbidden by law from exercising any
… control over the CPB.” App. 15a. But contentneutrality depends upon whether the government
33
prefers one subject matter to another, not on
whether the government controls what the speaker
says on the subject. This Court struck the law in
Arkansas Writers’ as content-based, for example,
even though the government was obviously not
publishing the magazines or dictating their prose.
481 U.S. at 230.
Finally, the court noted that Congress “sought to
even the playing field and promote fair competition,”
App. 16a, and to enable PBS “stations … to compete
[with the major networks] for viewers,” App. 20a.
But leveling the playing field between popular
speech and unpopular speech—to allow the
unpopular speech to compete more effectively—is
ordinarily a definitive ground for striking a law, not
a basis for diminishing the level of scrutiny. See,
e.g., Citizens United v. FEC, 130 S. Ct. 876, 904
(2010); Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue, 460 U.S. at 591 (invalidating tax
that falls only on the most popular magazines to
favor the least popular).
Applying intermediate scrutiny. In upholding
§ 207, the court of appeals applied a deferential
standard bearing no resemblance to the rigorous
intermediate scrutiny that this Court applied in
Turner.
The Court in Turner I “had no difficulty
concluding” that Congress’s stated purpose in
imposing must-carry obligations was important, but
that did not suffice. 512 U.S. at 664 (plurality
opinion).
Even though Congress there—unlike
here—had made “unusually detailed statutory
34
findings” over the course of three years of hearings
documenting local television’s doomed future, and an
FCC study corroborated those findings, the Court
emphasized that the government must prove that
the “recited harms are real, not merely conjectural
and that the regulation will in fact alleviate these
harms in a direct and material way.” Id. This Court
concluded there was a paucity of evidence
“indicating that broadcast television is in jeopardy”
and remanded the case “to permit the parties to
develop a more thorough factual record.” Id. at 66768 (plurality opinion). Even after “[t]he District
Court oversaw another 18 months of factual
development,” and amassed “‘a record of tens of
thousands of pages’ of evidence,” Turner II, 520 U.S.
at 187, the Court still came within one vote of
striking the legislation.
Under this version of intermediate scrutiny,
§ 207 fails by a wide margin. The statute is devoid
of legislative findings supporting § 207’s preference
for PBS stations. And in litigation, the government
asserted several interests, but adduced no evidence
to support any of them, and did not dispute any of
DISH’s abundant evidence showing that § 207
addresses phantom concerns.
The court of appeals believed that the incursion
on DISH’s rights was justified because “a delay in
providing public television in HD would …
compromise the financing mechanism on which
public broadcasting stations depend.” App. 20a.
This rationale has three steps: (1) public television
“stations’ daily operations depend on donations from
local viewers”; (2) “failure to keep up with
35
enhancements in commercial signals and picture
quality would impair the ability of public television
stations to compete for viewers”; and (3) because
viewership will not keep pace unless DISH grants
PBS stations their own HD channels, funding will
decline—and PBS will go under. App. 20a.
In adopting this rationale, the court rejected the
only evidence in the record as to the actual effect of
DISH’s
editorial
HD
decision—an
expert’s
declaration concluding that PBS is widely available
and that DISH’s decision not to dedicate HD
channels to PBS as all the other major carriers do
has an “immaterial” effect on PBS viewership and an
even smaller effect on financial support. ER 219-26;
see App. 20a. Instead, the court relied on what “the
Government’s attorney explained at argument before
the district court,” and a press clip about viewer
preferences for HD. App. 20-21a. There is not a
scintilla of evidence in this record that PBS is
actually in danger. Obviously, the vast majority of
the television-viewing public—the 85% that do not
subscribe to DISH—can get PBS from providers
other than DISH, ER 220; after all, the whole
impetus for § 207’s forced preference was that DISH
is “almost alone in refusing to negotiate [an HD]
carriage agreement with public TV.” ER 267. In
short, public television’s status is not even close to
the near-death experience that local broadcasters
confronted when a deeply divided Court concluded,
in Turner II, based on an extensive legislative and
litigation record, that Congress was justified in
imposing the must-carry requirements on cable. See
Turner II, 520 U.S. at 225-26 (Breyer, J.,
concurring).
36
But even if there were such evidence, § 207 must
fail. If Congress prefers the content of public
television to other content, Congress is free to
support it more. But Congress has no legitimate
interest in enlisting private enterprises to aid in the
government’s effort to make its favorite content
catchier or more attractive—particularly when that
enterprise is brimming with educational and public
affairs content.
Moreover, the government’s stated objective is
belied by the statute Congress passed. If Congress
actually believed that public television would be in
peril unless DISH carried local public television
stations in HD, then Congress would not have given
DISH the option of entering into an HD carriage
contract with only 30 qualified stations—a mere 8%
of all qualified stations. ER 20, 22-24 (tallying 356
PBS stations). This is a classic situation where
“[e]xemptions from an otherwise legitimate
regulation of a medium … diminish the credibility of
the government’s rationale for restricting speech in
the first place.” Ladue v. Gilleo, 512 U.S. 43, 52
(1994).
In sum, since the interventionist days of Red
Lion, the judiciary has grown increasingly skeptical
of paternalistic efforts to control the content of
messages—and particularly television content—
based on the government’s view of what speakers
ought to talk about and what the public ought to
like. This Court has reinforced with increasing
ardor the precept that “[w]hat the Constitution says
is that these judgments are for the individual to
make, not for the Government to decree.” Playboy
37
Entm’t, 529 U.S. at 818; see also Turner I, 512 U.S.
at 641. The Ninth Circuit bucked the trend by
condoning a government command that amounts to
Red Lion on steroids. If, in the name of public
interest, Congress can require private carriers to
grant
preferences
to
government-preferred,
government-funded speakers, then there is no
discernible limit to the First Amendment liberties
the government can take to amplify the speech it
favors.
CONCLUSION
For these reasons, the Court should grant the
petition for a writ of certiorari. At a minimum this
Court should hold this petition pending the outcome
of Fox Television, which may affect the legal
framework governing the regulation of television
content.
38
Respectfully submitted,
E. JOSHUA ROSENKRANZ
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, New York 10019
(212) 506-5000
jrosenkranz@orrick.com
Counsel for Petitioners
October 17, 2011
APPENDIX
1a
For the Court’s convenience, the opinion of the
Ninth Circuit is reprinted only once, with
differences between the August 9 version and
the February 24 version shown in redlined
format.
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
DISH NETWORK CORPORATION; DISH NETWORK,
L.L.C., PLAINTIFFS-APPELLANTS, V. FEDERAL
COMMUNICATIONS COMMISSION; JULIUS
GENACHOWSKI; MICHAEL J. COPPS; ROBERT M.
MCDOWELL; MIGNON CLYBURN; MEREDITH
ATTWELL-BAKER; UNITED STATES OF AMERICA,
DEFENDANTS-APPELLEES.
Appeal from the United States District Court for the
District of Nevada, James C. Mahan, District Judge,
Presiding
No. 10-16666. Argued and Submitted January 13,
2011. Filed February 24, 2011. Amended August 9,
2011.
Before: J. Clifford Wallace, Barry G. Silverman, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
______________
[AUGUST 9, 2011] ORDER AND AMENDED
OPINION
2a
The opinion filed on February 24, 2011, and
published at 636 F.3d 1139 (9th Cir. 2011) is
superseded by the amended opinion below. The
opinion is amended as follows:
(1) At 636 F.3d at 1148: Remove <The satellite
carriers benefit from the statutory copyright license
established through SHVIA. 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.>
(2) At id.: Replace <Section 207 is content-neutral.
See Turner I, 512 U.S. at 662.> with <For these
reasons, we hold that the district court did not abuse
its discretion in concluding that § 207 is likely a
content-neutral restriction on speech. We need not
decide whether § 207 is actually content-neutral.>
With this amendment, Judges Silverman and
Tallman have voted to deny Appellant’s Petition for
Rehearing En Banc filed on April 11, 2011, and
Judge Wallace so recommends.
The full court has been advised of the Petition for
Rehearing En Banc and no Judge has requested a
vote on whether to rehear the matter en banc. Fed.
R. App. P. 35.
The Petition for Rehearing En Banc is Denied. No
further petitions for rehearing shall be entertained.
______________
3a
OPINION
TALLMAN, Circuit Judge:
DISH Network Corporation and DISH Network,
LLC (collectively “DISH”) appeal the district court’s
order denying DISH’s motion for a preliminary
injunction. DISH argues that it is likely to succeed
in its argument that § 207 of the Satellite Television
Extension and Localism Act of 2010 (STELA), Pub.
L. No. 111–175, § 207, 124 Stat. 1218 (amending 47
U.S.C. § 338 (2006)), which accelerates the timetable
under which satellite providers that carry local
stations in high-definition (HD) format in a
particular
market
must
carry
“qualified
noncommercial educational television stations” in
HD, is a content-based regulation of free speech in
violation of the First Amendment. DISH asserts
that the statute interferes with its editorial
discretion and judgment by forcing it to delay
offering commercial programming in HD to certain
markets. That delay, DISH argues, forces DISH
subscribers to receive Public Broadcasting Service
(PBS)1 programs in HD before commercial programs,
even though they “prefer watching the World Cup
and American Idol in vivid colors over Jim Leher and
Elmo.”
Because we agree with the district court that
DISH failed to demonstrate it is likely to succeed on
the merits, we affirm the denial of injunctive relief.
The statute in question applies to all local public television
stations. While the majority of public television consists of PBS
programming, much of the content is locally produced.
1
4a
See Winter v. Natural Res. Def. Council, 555 U.S. 7,
129 S.Ct. 365, 381, 172 L.Ed.2d 249 (2008).
I
It is helpful first to briefly review how satellite
television works, why it is regulated, and how § 207
came to be enacted. There are only two major Direct
Broadcast Satellite providers in the United States:
DirectTV, which has about 18.5 million subscribers,
and DISH, which has about 14.1 million subscribers.
They rely on assigned radio frequency bands to
transmit signals to consumers from satellites located
at designated orbital locations in space.
The
transmissions are governed by the Federal
Communications
Commission
(FCC)
and
international regulations.
The United States has been assigned eight orbital
locations for providing satellite service.
Each
location is divided into 32 satellite channels.
Transmissions from satellites in the same orbital
location may cause signal interference, so Congress
has authorized the FCC to grant licenses to satellite
service providers assigning them the use of specified
channels at particular orbital locations. The licenses
are limited in duration and the FCC may grant or
renew them only if doing so will serve the public
interest, convenience, or necessity. 47 U.S.C. § 307.
In 1999, Congress created an exception to
copyright law to better enable competition between
satellite TV and cable TV. The Satellite Home
Viewer Improvement Act of 1999 (SHVIA) amended
the Copyright Act to create statutory copyright
5a
licenses for satellite carriers that allow them to
retransmit a local broadcast station’s signal without
first getting permission from the individual
copyright holders. The copyright license is also
subject to statutory and regulatory conditions.
As a condition of their licenses, carriers have
certain public obligations. For example, they must
also carry, on request, the signals of all other
television broadcast stations in the same local
market. 47 U.S.C. § 338(a)(1). See Satellite Broad.
and Commc’ns Ass’n v. FCC, 275 F.3d 337, 352–66
(4th
Cir.2001)
(rejecting
First
Amendment
challenge). Additionally, all satellite providers must
set aside four to seven percent of their channel
capacity for “noncommercial programming of an
educational or informational nature.” 47 U.S.C. §
335(b); see also Time Warner Entm’t Co. v. FCC, 93
F.3d 957, 973–77 (D.C. Cir. 1996) (per curiam)
(rejecting First Amendment challenge), reh’g en banc
denied, 105 F.3d 723 (D.C. Cir. 1997). Finally, and
particularly relevant to the case at hand, satellite
service providers are required to treat all local
television stations the same regarding picture
quality. In re Implementation of Satellite Home
Viewer Improvement, 16 F.C.C.R. 1918 ¶ 118 (2000).
The picture-quality condition was applied to HD
programming in 2008 through an FCC rule. See In
the Matter of Carriage of Digital Television
Broadcast Signals, 23 F.C.C.R. 5351, ¶ 5 (2008); 47
C.F.R. § 76.66(k).
Under that rule, satellite
providers that carry any local stations in HD format
in a particular market must carry all local stations
in HD format. The regulation gives providers four
6a
years to meet the following implementation
timetable: they must achieve compliance in fifteen
percent of the markets in which they carry local
channels in HD by Feb. 17, 2010; thirty percent by
Feb. 17, 2011; sixty percent by Feb. 17, 2012; and
one-hundred percent by Feb. 17, 2013.
The challenge is that HD consumes three to four
times the channel capacity as standard definition
(SD) programming. Because DISH currently lacks
capacity to offer all local channels in HD, it
prioritized local market television stations according
to customer demand, and decided not to prioritize
transmitting PBS in HD. Instead, DISH offered the
major networks in HD and delayed offering PBS in
HD except in Alaska and Hawaii, where it was
legally obligated to do so.
By comparison, its
competitor DirectTV provided 106 channels of HD
PBS in its regions of operation.
Congress determined that by forcing public
broadcasting stations to the back of the HD priority
line, DISH was jeopardizing public television’s
ability to compete with commercial television and
thereby threatening the right of consumers “to
receive federally funded programming broadcast by
PBS.” 156 Cong. Rec. E849–04 (daily ed. May 12,
2010) (speech of Rep. Anna G. Eshoo). In response,
Congress enacted § 207 of STELA to ensure “that
satellite providers do not discriminate against
noncommercial high definition signals” and to
promote “an even playing field.” Id.
The provision accelerates the HD timetable for
“qualified noncommercial educational television
7a
stations.” Under § 207, satellite carriers who take
advantage of the statutory compulsory copyright
license to provide local broadcasts in HD format
must also provide “qualified noncommercial
educational television stations located within that
local market” in HD format. Carriers were given
until December 31, 2010, to meet the requirement in
fifty percent of the local markets in which they
provide HD programming and until December 31,
2011, to comply fully in all remaining markets.
But Congress created an exemption to § 207 for
satellite providers who entered into a private
carriage agreement with at least thirty qualified
noncommercial educational television stations. To
avoid § 207’s more burdensome timeline, DISH
entered into such a contract. Doing so forced it to
postpone launching HD services in ten new
television markets. DISH then filed suit to enjoin §
207, arguing that it is a constitutionally
impermissible content-based regulation of the
company’s First Amendment right to free speech.
The district court denied DISH’s motion for a
preliminary injunction without opinion. During the
hearing, the court focused entirely on whether DISH
was likely to succeed on the merits of its claim. The
court concluded the regulation was content-neutral
and not an infringement on DISH’s First
Amendment rights. It reasoned that § 207 “is
designed to keep PBS competitive with other local
outlets,” not to regulate content. In summarizing its
conclusions, the district court explained:
[U]nder the case law we aren’t dealing
8a
with content. You’ve got to offer PBS and now
they’re saying . . . you’ve got to offer it in HD
so it’s as attractive as other local stations and
I don’t think it impinges or infringes the First
Amendment.
We agree.
II
We review a district court’s grant or denial of a
preliminary injunction for abuse of discretion and
the underlying legal principles de novo. Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009).
The grant or denial of a preliminary injunction lies
within the discretion of the district court and we
may reverse a district court only where it relied on
an erroneous legal premise or abused its discretion.
Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d
750 (9th Cir.1982). To determine whether the
district court abused its discretion, the reviewing
court “must consider whether the decision was based
on a consideration of the relevant factors and
whether there has been a clear error of judgment.”
Id. at 752 (citations omitted).
We have noted that “in some cases, parties
appeal orders granting or denying motions for
preliminary injunctions in order to ascertain the
views of the appellate court on the merits of the
litigation,” but that due to the “limited scope of our
review ... our disposition of appeals from most
preliminary injunctions may provide little guidance
as to the appropriate disposition on the merits” and
that such appeals often result in “unnecessary delay
9a
to the parties and inefficient use of judicial
resources.” Id. at 753. Thus, we offer our analysis
with the necessary caveat that accompanies any
preliminary injunction review—that this opinion is
not an adjudication on the merits of DISH’s claim.
We conclude only that, based on our de novo review
of the underlying legal principles, the district court
did not abuse its discretion in finding that DISH is
not likely to succeed.
III
A
To warrant a preliminary injunction, DISH must
demonstrate that it meets all four of the elements of
the preliminary injunction test established in Winter
v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct.
365, 374, 172 L.Ed.2d 249 (2008): that an injunction
would be in the public interest, that without an
injunction irreparable harm is likely, that the
balance of equities tips in its favor, and that it is
likely to succeed on the merits. Id. at 374. DISH
argues that in the case of a First Amendment claim,
all four of the Winter factors collapse into the merits.
We have held otherwise.
While a First Amendment claim “certainly raises
the specter” of irreparable harm and public interest
considerations, proving the likelihood of such a claim
is not enough to satisfy Winter. Stormans, 586 F.3d
at 1138; see also Klein v. City of San Clemente, 584
F.3d 1196, 1207 (9th Cir. 2009) (even where the
plaintiff was likely to succeed on the merits of his
First Amendment claim, he “must also demonstrate
that he is likely to suffer irreparable injury in the
10a
absence of a preliminary injunction, and that the
balance of equities and the public interest tip in his
favor”) (citing Winter, 129 S.Ct. at 374).
Therefore, even if we were to determine that
DISH is likely to succeed on the merits, we would
still need to consider whether it satisfied the
remaining elements of the preliminary injunction
test. However, because we agree with the district
court that DISH has failed to satisfy its burden of
demonstrating it has met the first element, we need
not consider the remaining three.
B
To determine whether DISH is likely to succeed
on the merits of its claim, we must first consider
whether the First Amendment likely applies. The
Government argues that § 207 does not implicate the
First Amendment because it does not constitute a
serious infringement on DISH’s editorial discretion.
It suggests that the provision is merely a “modest
alteration to the HD timetable” concerning only “the
timing of a means of signal transmission[.]” The
Government stresses that DISH is not challenging
Congress’s initial requirement that satellite carriers
offer PBS in HD, only its timing, which does not rise
to the level of a First Amendment burden.2
Additionally, the Government argues that the First
Amendment is not implicated because § 207 does not
affect DISH’s selection of channels or interfere with
DISH does not concede that the FCC’s 2008 rule establishing
the initial timetable is constitutional, but does not challenge it
here.
2
11a
its expressive decisions.
DISH counters that § 207 does affect DISH’s
selection of channels because HD transmissions are
offered on separate channels than SD transmissions
and that if DISH carries PBS in HD, it cannot carry
other stations in HD.
Regarding the question
whether the First Amendment applies to a provision
that merely affects the timing of a requirement,
DISH proposes that the accelerated pace
unconstitutionally benefits PBS; the fact that the
benefit lasts only three years is irrelevant.
The Supreme Court has recognized that cable
television operators exercise “ ‘a significant amount
of editorial discretion regarding what their
programming will include.’ ” City of Los Angeles v.
Preferred Commc’ns, Inc., 476 U.S. 488, 494, 106
S.Ct. 2034, 90 L.Ed.2d 480 (1986) (quoting FCC v.
Midwest Video Corp., 440 U.S. 689, 707, 99 S.Ct.
1435, 59 L.Ed.2d 692 (1979)).
In Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114
S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I), the
Supreme Court applied intermediate scrutiny to a
content-neutral regulation that required carriage of
local broadcast stations on cable systems. In doing
so, the Court announced that “laws that single out
the press, or certain elements thereof, for special
treatment pose a particular danger of abuse by the
State ... and so are always subject to at least some
degree of heightened First Amendment scrutiny.”
Turner I, 512 U.S. at 640–41, 114 S.Ct. 2445
(quoting Arkansas Writers’ Project, Inc. v. Ragland,
481 U.S. 221, 228, 107 S.Ct. 1722, 95 L.Ed.2d 209
(1987)).
12a
Section 207 does not affect DISH’s ability to offer
programs. It affects only when DISH can offer those
programs in HD. Even so, Turner I instructs that
any law that singles out an element of the press is
subject to some form of heightened First Amendment
scrutiny. For example, in Turner I, the Supreme
Court determined that regulations that “impose
special obligations upon cable operators and special
burdens upon cable programmers” implicate the
First Amendment. Turner I, 512 U.S. at 641, 114
S.Ct. 2445. Applying that logic to the case at hand,
while § 207’s obligations and burdens on satellite
carriers are minimal and nuanced, they do exist.
Therefore, the First Amendment is likely implicated.
C
Strict scrutiny applies to government actions that
stifle or promote speech on account of its message.
Such laws conflict with basic First Amendment
principles valuing and protecting an individual’s
right to decide which ideas and beliefs are worth
expressing, and almost always violate the First
Amendment. See id. (acknowledging that “the First
Amendment, subject to only narrow and wellunderstood exceptions, does not countenance
governmental control over the content of messages
expressed by private individuals”). By contrast,
regulations of speech unrelated to content are less
likely to conflict with core First Amendment values,
so they are subject only to intermediate scrutiny. Id.
at 642, 114 S.Ct. 2445.
DISH argues that we should apply strict scrutiny
because § 207 is a content-based regulation of free
13a
speech. The Supreme Court has said that the
“principal inquiry in determining content neutrality
... is whether the government has adopted a
regulation of speech because of agreement or
disagreement with the message it conveys.” Ward v.
Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct.
2746, 105 L.Ed.2d 661 (1989); see also Turner I, 512
U.S. at 642, 114 S.Ct. 2445. Generally, “laws that by
their terms distinguish favored speech from
disfavored speech on the basis of the ideas or views
expressed are content based. By contrast, laws that
confer benefits or impose burdens on speech without
reference to the ideas or views expressed are in most
instances content neutral.” Turner I, 512 U.S. at 643,
114 S.Ct. 2445 (internal citations omitted). Finally,
even a statute that facially distinguishes a category
of speech or speakers is content-neutral if justified
by interests that are “unrelated to the suppression of
free expression.” City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29
(1986).
DISH argues § 207 is content-based because:
(1) To be a “qualified noncommercial
educational television station,” a station must
be eligible for a Corporation for Public
Broadcasting (CPB) grant, and those grants
are allocated according to certain content
criteria.3
Specifically, applicants must devote the substantial majority
of their daily total programming hours to “general audience
programming that serves demonstrated community needs of an
educational, informational and cultural nature.” Programs that
3
14a
(2) Congress’s motive in enacting § 207 was
to promote subject matter it deemed
“worthier.” To support this contention, DISH
highlights comments § 207’s primary sponsor,
Rep. Anna Eshoo, made announcing her
personal preference for PBS programming
over certain pay-per-view channels.4
(3) Strict scrutiny applies where Congress’s
preference is based on subject matter,
regardless of whether it discriminates on the
basis of viewpoint.
Brief for Plaintiffs–
Appellants at 36–37 (citing Bullfrog Films,
Inc. v. Wick, 847 F.2d 502, 509–10 (9th
further the principles of “particular political or religious
philosophies” do not qualify.
DISH emphasizes parts of the following passage from Rep.
Eshoo’s remarks during a congressional hearing:
4
My bill does not prevent satellite carriers from carrying any
program. It merely mandates the carriage of all digital PBS
programming, and I know ... I have heard the argument
before that you don’t have enough room, enough space and
that you would have to drop some. And I would suggest
that you drop some of your pay-per-view channels that
carry soft porn. I would take PBS any day over soft porn so
would you address yourself to the question as to why you
refuse to negotiate a carriage agreement with public TV
that provides for nondiscriminatory carriage in HD?
DISH also points out that during the same hearing, Rep. Eshoo
remarked that “PBS is important in the life of the American
people and I think what they do has already been set down and
is a gold standard[.]”
15a
Cir.1988))5.
(4) Section 207’s preference is reserved
only for a subset of government-funded
beneficiaries, so that “even the most
educational, irreligious, apolitical station gets
no preference if it is not currently on the
Government dole.”
First, the criteria used to determine whether a
station receives federal funding are designed not to
promote Congress’s preference, but to guard against
the influence of special interests. Cf. 127 Cong. Rec.
13, 145 (June 22, 1981) (Rep. Gonzalez) (recognizing
the need to “insulate public broadcasting from
special interest influences—political, commercial, or
any other kind.”); H.R.Rep. No. 97–82, at 16 (1981)
(noting the risk of “influence of special interests—be
they
commercial,
political,
or
religious.”).
Furthermore, the CPB offers financial incentives for
stations to differentiate their programming and the
government is forbidden by law from exercising any
direction, supervision, or control over the CPB.
Section 207 “seeks to support expression, not
In Bullfrog Films, we found unconstitutional regulations
implementing
a
multilateral
treaty
that
exempted
“educational, scientific and cultural” audio-visual materials
from import duties. That case is distinguishable because it did
not involve the broadcast regulatory environment, which the
Supreme Court has analyzed in a separate First Amendment
context. The broadcast regulatory environment differs from the
film environment because satellite companies rely on having
access to a regulated and scarce public resource and are subject
to specific public obligations in return for a Copyright Act
exemption that allows them to compete.
5
16a
suppress it,” the Government maintains. The record
supports that assertion. Rep. Eshoo may have
expressed a personal preference for PBS over payper-view, but it does not follow that her personal
preference is what drove Congress to enact § 207.
The legislative record clearly indicates that in § 207
Congress aimed to prohibit satellite carriers from
“discriminating” against noncommercial stations in a
manner that interferes with “the rights of consumers
to receive federally funded programming broadcast
by America’s Public Broadcasting Service, PBS.” 156
Cong. Rec. E849–04 (daily ed. May 12, 2010) (speech
of Rep. Anna G. Eshoo). The legislation sought to
even the playing field and promote fair competition.
DISH’s contention that Congress enacted § 207
because Congress thinks PBS is better than
commercial television contradicts the legislative
record.
As for DISH’s remaining arguments, Turner I is
informative. In Turner I, the Supreme Court held
that sections of the Cable Television Consumer
Protection and Competition Act of 1992 requiring
cable television systems to dedicate some of their
channels to local broadcast television stations
constituted a content-neutral restriction on speech,
subject to intermediate scrutiny. Turner I, 512 U.S.
at 661–62, 114 S.Ct. 2445. The Court determined
that the provisions were meant “to protect broadcast
television from what Congress determined to be
unfair competition” and that “[a]ppellants’ ability to
hypothesize a content-based purpose for these
provisions rests on little more than speculation and
does not cast doubt upon the content-neutral
character of must-carry.” Id. at 652, 114 S.Ct. 2445.
17a
As to the extent the regulations required cable
carriers to carry noncommercial educational
stations, those regulations were deemed contentneutral because “noncommercial licensees are not
required by statute or regulation to carry any
specific quantity of ‘educational’ programming or any
particular ‘educational’ programs.” Id. at 651, 114
S.Ct. 2445. The Court noted that the FCC and
Congress have negligible influence over broadcast
programming and may not use funding to the CPB to
affect programming decisions. Id. at 651–52, 114
S.Ct. 2445.
During DISH’s hearing, the
Government’s attorney reiterated that point:
The government’s funding is not specific as
to the programming choice. It’s actually done
in a specific way so that the appropriations
aren’t even year to year, they’re over a very
long period of time. So the fact that the
money comes from the government, the
government has absolutely no control ... over
what kind of programming public television
stations provide.
DISH argues that Turner I should be
distinguished because the statute at issue in that
case provided benefits to all full-power local
television stations whereas the statute at issue here
provides benefits only to public broadcasting
stations, which must meet certain content
requirements.
However, the Government has long supported
public television stations and passed legislation
benefitting them not because they broadcast specific
18a
content, but because the “economic realities of
commercial broadcasting do not permit widespread
commercial
production
and
distribution
of
educational and cultural programs which do not
have a mass audience appeal.” H.R.Rep. No. 90–572,
at 10–11 (1967).
Congress supports public
broadcasting because it fills “certain programming
voids” and promotes diversity in programming.
Minority Television Project Inc. v. FCC, 649 F. Supp.
2d 1025, 1033–34 (N.D. Cal. 2009); see also 47 U.S.C.
§ 396(a)(5) (recognizing that “[i]t furthers the
general
welfare
to
encourage
public
telecommunications
services
which
will
be
responsive to the interests of people both in
particular localities and throughout the United
States, which will constitute an expression of
diversity and excellence, and which will constitute a
source of alternative telecommunications services for
all the citizens of the Nation.”).
For these reasons, we hold that the district court
did not abuse its discretion in concluding that § 207
is likely a content-neutral restriction on speech. We
need not decide whether § 207 is actually contentneutral. The satellite carriers benefit from the
statutory copyright license established through
SHVIA. 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. See Turner I, 512 U.S. at 662.
D
A content-neutral regulation will be sustained if
19a
“it
furthers
an
important
or
substantial
governmental interest; if the governmental interest
is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential
to the furtherance of that interest.” United States v.
O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d
672 (1968); see also Turner I, 512 U.S. at 662, 114
S.Ct. 2445. A regulation need not be the leastrestrictive means available as long as it does not
“burden substantially more speech than is necessary
to further the government’s legitimate interests.”
Turner I, 512 U.S. at 662, 114 S.Ct. 2445 (citing
Ward, 491 U.S. at 799, 109 S.Ct. 2746 (1989)). The
question is not whether Congress was correct to
determine that a particular statute was necessary,
but whether its determination was reasonable and
based on substantial evidence. Turner I, 512 U.S. at
666, 114 S.Ct. 2445 (citing Century Commc’ns Corp.
v. FCC, 835 F.2d 292, 304 (D.C.Cir.1987)).
The Supreme Court has recognized that “[T]he
Government’s interest in eliminating restraints on
fair competition is always substantial, even when
the individuals or entities subject to particular
regulations are engaged in expressive activity
protected by the First Amendment.” Turner I, 512
U.S. at 664, 114 S.Ct. 2445. The Court has also
recognized that “assuring that the public has access
to a multiplicity of information sources is a
governmental purpose of the highest order, for it
promotes values central to the First Amendment.”
Id. at 663, 114 S.Ct. 2445. The question here is
whether § 207 advances that interest in a manner
that is not substantially more restrictive than
20a
necessary.
In support of its position that Congress’s
procompetitive determination was unreasonable,
DISH cites its expert’s declaration concluding that a
delay in providing PBS in HD would not cure any
threat to the viability of local PBS stations. The
Government argues that because of the nature of
public television funding, a delay in carrying public
television in HD would indeed compromise the
financing mechanism on which public broadcasting
stations depend. As the Government’s attorney
explained at argument before the district court: “[I]f
[satellite carriers are] going to go in and show ABC,
or CBS, or FOX, they also need to go in and show
PBS just over the intervening three years so that
when we get to the point where everyone is
broadcasting in HD that PBS isn’t so far behind the
local networks.”). As most PBS supporters know,
while Congress provides some financial support for
public broadcasting through grants, most comes
from other sources, and the stations’ daily operations
depend on donations from local viewers. Congress
enacted § 207 because it feared that failure to keep
up with enhancements in commercial signals and
picture quality would impair the ability of public
television stations to compete for viewers.
To further emphasize the reasonableness of
Congress’s action, the Government cites a New York
Times article stating that shortly before STELA’s
passage, half of the country was watching television
in HD format and that “HD may limit the number of
channels that viewers turn to, because once they can
watch programs in HD, they have little desire to
21a
watch anything of a lower quality.” Brian Stelter,
Crystal–Clear, Maybe Mesmerizing, N.Y. Times, May
24, 2010, B4. The Government also highlights an
FCC report noting that “subscribers do not consider
SD programming to be an acceptable substitute for
HD programming.”
Considering the record before us and that
Congress recognized whether a program is offered in
HD affects whether viewers watch it (a fact DISH
concedes by the very nature of its argument), it was
reasonable for Congress to conclude that allowing
satellite carriers to delay offering PBS in HD would
lead to anticompetitive results. The Government
would likely succeed at trial in demonstrating that
Congress made a reasonable determination based on
substantial evidence when it determined that § 207
was necessary to promote this substantial interest.
Arguing the regulation is substantially more
restrictive than necessary, DISH proposes that the
Government could satisfy any interest it might have
simply by “providing adequate funds to public
stations that could make HD carriage financially
attractive.” It also suggests that the public can easily
access public broadcasting in HD by “hooking up
rabbit ears and flicking a switch.”
As for the first argument, PBS receives
congressional support in part because by its very
nature it is not commercially attractive. DISH’s
suggestion that instead of passing legislation
Congress should spend money making PBS more
attractive to commercial enterprises undercuts the
very purpose that has driven decades of legislation
22a
promoting diversity in television programming.
In response to the second argument, DISH’s own
marketing materials demonstrate that many
residents of areas with weak broadcast signals
cannot receive over-the-air transmissions.
For
example, one DISH advertisement reads: “Because
satellite technology is not limited by geographic area
or land-based cable lines, you can receive DISH
Network service no matter where in the nation you
live. In fact, if you live in a rural area or on an RV,
satellite TV is probably your only option.” Similarly,
a DISH Network press release reads: “DISH serv[es]
the many rural markets that lack vital local TV
signals.”
We conclude that the district court did not abuse
its discretion in determining that DISH failed at this
stage of the proceedings to demonstrate that § 207
would likely not survive intermediate scrutiny. The
provision is not substantially more restrictive than
necessary to address Congress’s reasonable fear that
without action, DISH’s decision to deprioritize PBS
would jeopardize the ability of public broadcasters to
compete with commercial stations.
IV
Because we conclude that the district court did
not abuse its discretion in determining that DISH
failed to demonstrate at this stage that it is likely to
succeed on the merits of its claim, we decline to
consider the remaining three elements of the
preliminary injunction test. The district court did
not abuse its discretion in denying DISH’s motion for
23a
a preliminary injunction.
AFFIRMED.
24a
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DISH NETWORK CORPORATION; DISH NETWORK,
L.L.C., PLAINTIFFS-APPELLANTS, V. FEDERAL
COMMUNICATIONS COMMISSION; JULIUS
GENACHOWSKI; MICHAEL J. COPPS; ROBERT M.
MCDOWELL; MIGNON CLYBURN; MEREDITH
ATTWELL-BAKER; UNITED STATES OF AMERICA,
DEFENDANTS-APPELLEES.
Case No. 2:10-CV-01075-JCM-(PAL)
______________
ORDER DENYING PLAINTIFFS’ MOTION FOR
A PRELIMINARY INJUNCTION
Plaintiffs DISH Network Corp. and DISH
Network L.L.C. filed a motion for a preliminary
injunction in the above-captioned matter on July 2,
2010 [3]. Defendants filed a response on July 14,
2010 [16], and Plaintiffs filed a reply on July 19,
2010 [20]. On July 20, 2010, the Association of
Public Television Stations filed a motion for leave to
file an amicus curiae memorandum in opposition to
Plaintiffs’ motion [21], and on July 21, 2010,
Plaintiffs filed a motion for leave to file additional
declarations in support of their motion [22]. The
Court heard argument on Plaintiffs’ motion for a
preliminary injunction on July 22, 2010.
Based on the entire record before the Court, the
argument of the parties, and for the reasons stated
25a
from the bench, it is hereby
ORDERED that the Association of Public
Television Stations’ motion for leave to file an
amicus curiae memorandum is granted;
FURTHER ORDERED that Plaintiffs’ motion
for leave to file additional declarations is granted;
and
FURTHER ORDERED that Plaintiffs’ motion for
a preliminary injunction is denied.
Dated: this 30th day of July, 2010.
s/ James C. Mahan
HON. JAMES C. MAHAN
United States District Judge
______________
26a
REPORTER’S TRANSCRIPT OF
PROCEEDINGS, JULY 22, 2010 HEARING ON
PLAINTIFF’S MOTION FOR A PRELIMINARY
INJUNCTION (EXCERPTED PORTIONS)
THE COURT: … What I want to do is just tell
you what I’m inclined to do and try to focus you on
the issues that are important.
I don’t have any -- understand now, tell me
what’s -- yeah, I know, I know, it’s a motion for
preliminary injunction, what are the four things you
have to show under Linder (phonetic), and so on. It
just wastes everybody’s time. Let’s cut to the chase.
And, frankly, I’m inclined to deny the motion. And,
It seems like it’s at this point Dish has to offer, the
Dish Network, has to offer PBS, correct?
MR. ROSENKRANZ: Your Honor, I didn’t hear
the question. We have to offer PBS?
THE COURT: Dish, you have to offer PBS?
MR. ROSENKRANZ: Your Honor, Dish Network
has to offer PBS and other Public Broadcasting
stations - THE COURT: That’s right.
MR. ROSENKRANZ: - - in HD.
THE COURT: No, no, I understand. That’s the
purpose of the law, that’s what you’re fighting.
MR. ROSENKRANZ: Your Honor, that is correct,
but at this moment we have to offer PBS, correct.
27a
THE COURT: That was my only question was
right you have to offer PBS. So now we’re simply
saying, well, now you’ve got to offer it in HD.
MR. ROSENKRANZ: Yes, your Honor.
THE COURT: And it seems to me what this is
designed to do is to keep PBS from getting a short
shrift, if you will, in the communities. In other
words, if I were Dish Network, I would offer PBS to - I’m sorry, I’d offer HDTV to other channels. I mean
PBS is not the most popular channel in the whole
world. And I don’t know if it’s HBO, or NBC, or
what it is, but it’s public broadcasting.
And it’s supposedly - - it covers all points of view.
I mean everybody from William F. Buckley to
McLaughlin to whoever and represents this
community, and we’ve got these laws, for example,
Time Warner saying, yeah, you’ve got to carry it,
Dish Network. Now they’re saying we don’t want
this to get - - we don’t want short - - we don’t want
PBS to get short shrift, if I could use that term.
I have seen any case, but I mean I think that’s
the purpose of the law is to ensure that PBS is able
to stay competitive. People that have HDTV I think
tend to watch programs in HDTV, and I think this is
designed to say if you now offer HDTV to local
stations, then you’ve got to include PBS, its got to be
the first one to get it of the local stations.
So I just - - I think if you look at the case - - and
the cases, by the way, are interesting, but it’s not
like they say, oh, this one is controlling and this is
28a
the controlling law right here. I mean I think
they’re interesting, they are enlightening, but it’s not
like oh, this is it, here’s the Rosetta Stone that solves
the whole case for us, we can rely on that.
I just don’t see it, and again I don’t think that
this is - - I understand your argument that you’re
saying this is content based. I don’t think it is.
Public television is upposed to be content neutral. I
mean it should include all points of view and that’s
what they strive to do. So anyway I’m inclined to
deny the motion, but I’ll be glad now to hear
anything you have to say.
* * *
THE COURT: I’m going to go with my original
inclination. I mean again I’m not - - I was never a big
fan of having government sponsored television, and I
mean the whole idea of PBS, frankly, doesn’t sit well
with me, but that doesn’t matter. You know, we are
here to apply the law, not to apply my personal
predilections or feelings.
So my sympathies are with the plaintiff, but my
ruling is with the defendant. I don’t think we’re
dealing with content I mean any more than we - under the case law we aren’t dealing with content.
You’ve got to offer PBS and now they’re saying you
are going to offer it, you must offer it, and now
they’re saying you’ve got to offer it in HD so that it’s
as attractive as other local stations, and I don’t think
it impinges or infringes the First Amendment.
So let me ask the defendant’s side to prepare an
29a
appropriate order just denying the preliminary
injunction, and we’ll go from there, all right?
30a
RELEVANT STATUTORY PROVISIONS
Section 207 and 307 of the Satellite Television
Extension and Localism Act of 2010, Pub. L. No. 111175 (amending 47 U.S.C. § 338(a), (k)) provide as
follows:
SEC. 207. NONDISCRIMINATION IN
CARRIAGE OF HIGH DEFINITION
DIGITAL SIGNALS OF NONCOMMERCIAL
EDUCATIONAL TELEVISION STATIONS.
(a) IN GENERAL.—Section 338(a) is amended by
adding at the end the following new paragraph:
“(5)
NONDISCRIMINATION
IN
CARRIAGE OF HIGH DEFINITION SIGNALS
OF
NONCOMMERCIAL
EDUCATIONAL
TELEVISION STATIONS.—
“(A) EXISTING CARRIAGE OF HIGH
DEFINITION SIGNALS.—If, before the
date of enactment of the Satellite Television
Extension and Localism Act of 2010, an
eligible satellite carrier is providing, under
section 122 of title 17, United States Code,
any secondary transmissions in high
definition format to subscribers located
within the local market of a television
broadcast station of a primary transmission
made by that station, then such satellite
carrier shall carry the signals in highdefinition
format
of
qualified
31a
noncommercial
educational
television
stations located within that local market in
accordance with the following schedule:
“(i) By December 31, 2010, in at
least 50 percent of the markets in which
such satellite carrier provides such
secondary
transmissions in high
definition format.
“(ii) By December 31, 2011, in every
market in which such satellite carrier
provides such secondary transmissions
in high definition format.
“(B)
NEW
INITIATION
OF
SERVICE.—If, on or after the date of
enactment of the Satellite Television
Extension and Localism Act of 2010, an
eligible satellite carrier initiates the
provision, under section 122 of title 17,
United States Code, of any secondary
transmissions in high definition format to
subscribers located within the local market
of a television broadcast station of a
primary transmission made by that station,
then such satellite carrier shall carry the
signals in high-definition format of all
qualified
noncommercial
educational
television stations located within that local
market.”.
(b) DEFINITIONS.—Section 338(k) is amended—
32a
(1) by redesignating paragraphs (2) through
(8) as paragraphs (3) through (9), respectively;
(2) by inserting after paragraph (1) the
following new paragraph:
“(2) ELIGIBLE SATELLITE CARRIER.—
The term ‘eligible satellite carrier’ means any
satellite carrier that is not a party to a carriage
contract that—
“(A) governs carriage of at least 30
qualified
noncommercial
educational
television stations; and
“(B) is in force and effect within 150
days after the date of enactment of the
Satellite Television Extension and Localism
Act of 2010.”;
(3) by redesignating paragraphs (6) through
(9) (as previously redesignated) as paragraphs
(7) through (10), respectively; and
(4) by inserting after paragraph (5) (as so
redesignated) the following new paragraph:
“(6)
QUALIFIED
NONCOMMERCIAL
EDUCATIONAL TELEVISION STATION.—
The term ‘qualified noncommercial educational
television station’ means any full-power
television broadcast station that—
“(A) under the rules and regulations of
the Commission in effect on March 29, 1990,
is licensed by the Commission as a
33a
noncommercial
educational
broadcast
station and is owned and operated by a
public
agency,
nonprofit
foundation,
nonprofit
corporation,
or
nonprofit
association; and
“(B) has as its licensee an entity that is
eligible to receive a community service
grant, or any successor grant thereto, from
the Corporation for Public Broadcasting, or
any successor organization thereto, on the
basis of the formula set forth in section
396(k)(6)(B) of this title.”.
* * *
SEC. 307. EFFECTIVE DATE;
NONINFRINGEMENT OF COPYRIGHT.
(a) EFFECTIVE DATE.—Unless specifically
provided otherwise, this Act, and the amendments
made by this Act, shall take effect on February 27,
2010, and with the exception of the reference in
subsection (b), all references to the date of
enactment of this Act shall be deemed to refer to
February 27, 2010, unless otherwise specified.
(b) NONINFRINGEMENT OF COPYRIGHT.—The
secondary transmission of a performance or display
of a work embodied in a primary transmission is not
an infringement of copyright if it was made by a
satellite carrier on or after February 27, 2010, and
prior to enactment of this Act, and was in
compliance with the law as in existence on February
27, 2010.