DISH Network Corp. v. FCC, 653 F.3d 771

DISH appeals a district court ruling denying its motion for a preliminary injunction against § 207 of STELA, which accelerates the HD carriage timetable for qualified noncommercial educational stations.
§ 207 requires satellite carriers to carry HD signals for qualified noncommercial educational stations in the local market if they carry local stations in HD.
DISH entered into a private carriage agreement with at least 30 qualified noncommercial stations to avoid § 207's stricter timetable, delaying HD deployment in ten markets.
DISH argues § 207 is a content-based First Amendment regulation that coerces editorial judgment by delaying HD for PBS in favor of other programming.
The district court found § 207 to be content-neutral and thus not a First Amendment violation, denying preliminary relief.
The court’s decision rests on whether DISH is likely to succeed on the merits and whether the Winter factors are satisfied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 207 implicates the First Amendment	DISH argues it restricts editorial discretion by delaying PBS in HD.	Government contends § 207 affects timing, not content, thus not a First Amendment burden.	First Amendment likely applies; district court decision on likelihood of merits preserved for later scrutiny.
If applicable, what level of scrutiny applies to § 207	Section 207 is a content-based regulation requiring strict scrutiny.	Section 207 is content-neutral and subject to intermediate scrutiny.	Court treats § 207 as content-neutral, subject to intermediate scrutiny.
Whether § 207 is substantially more restrictive than necessary	DISH contends less restrictive means (e.g., funding PBS) could address interests.	Goverment contends delay is reasonable to prevent PBS anticompetitive disadvantage.	District court did not abuse discretion; § 207 not substantially more restrictive than necessary.
Whether DISH showed likelihood of success on the merits to warrant injunctive relief	DISH will likely prove the statute violates the First Amendment.	Statute is a reasonable, content-neutral measure advancing pro-competitive aims.	DISH failed to demonstrate likelihood of success; injunction denied.

Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. 2008) (four Winter factors for preliminary injunctions)
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (review of preliminary injunction standard and irreparable harm)
Turner Broadcasting System, Inc. v. FCC (Turner I), 512 U.S. 622 (U.S. 1994) (content-neutral regulation under intermediate scrutiny; special treatment of press)
City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (U.S. 1986) (editorial discretion and cable programming authority discussed)
Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (test for content neutrality and viewpoint-based regulation)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (content-neutral regulations subject to intermediate scrutiny)
Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) (example of content-based challenge distinguished; not broadcast context)
O'Brien v. United States, 391 U.S. 367 (U.S. 1968) (intermediate scrutiny for incidental restrictions on speech)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (governmental interest and fit under intermediate scrutiny)
Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987) (precedent on regulatory reasonableness and evidence substantiality)