The NAB filed an Opposition to Petitions for Reconsideration
of the FCC's interpretation that "required coverage" under the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) includes both high definition and multicast signals broadcast by local DTV stations in Alaska and Hawaii. EchoStar and DirecTV filed the Petition for Reconsideration.
NAB argued that the FCC should reject the petitioners' claims that requiring carriage of the entire free, off-air digital broadcast signal of local television stations in Alaska and Hawaii (potentially including an HD stream and/or one or more SD streams) would result in significant capacity burdens.
"As set forth in detail in NAB's opposition and in the attached engineering statement, these claims about capacity constraints are exaggerated and factually unsupported."
The NAB discounted First Amendment arguments in the Petition for Reconsideration, explaining, "Because the decision promotes important governmental interests and does not burden Petitioners' speech rights, their claims of a First Amendment violation are unmeritorious. And because the Alaska and Hawaii carriage requirement constitutes neither a permanent physical occupation of real property nor a regulatory taking, it is consistent with the Fifth Amendment as well."
EchoStar's reply to the filing (filed Dec. 19), said that NAB's opposition "misses the mark" for three reasons.
First EchoStar said, "The NAB has failed to demonstrate how the language of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act (SHVERA) can bear the meaning ascribed to it by the Commission. The NAB's Chevron 'deference' argument in support of the Commission's interpretation is inapplicable here."
Continuing, EchoStar said, "Multicast requirement furthers no important or substantial governmental interest. NAB's focus on refuting the burdens of multicast carriage on satellite carriers means that NAB misses this fundamental threshold point. As EchoStar has submitted, no one has shown that a multicast requirement would further any of the interests recognized as important or substantial by the Supreme Court in the Turner cases, nor can this reasonably be demonstrated."
Finally, EchoStar said, "The fact that must-carry requirements burden the speech of multichannel video programming distributors (MVPDs) is undeniable. In essence, such laws dictate that MVPDs 'speak' by carrying the messages of local broadcasters. Moreover, NAB's argument that there is no burden on free speech because 'money' is not 'speech' is simply wrong. Not only are satellite carriers being compelled by government mandate to engage in speech not of their choosing, but they are being forced to incur the substantial costs of engaging in such speech."
If you want to see all the comments filed in this proceeding, including the Petition for Reconsideration and other opposition and reply comments, go the FCC Search for Filed Comments
web site and enter 05-181 in the first box ("Proceeding") and click the "Retrieve Document List" button.