Dish Network Corp. v. Federal Communications Commission
653 F.3d 771
| 9th Cir. | 2011Background
- DISH appeals the district court's denial of its motion for a preliminary injunction against § 207 of STELA.
- § 207 accelerates the HD carriage timetable for qualified noncommercial educational stations to HD in the local market, with 2010/2011 deadlines.
- DISH claimed § 207 is a content-based First Amendment restriction because it forces HD carriage timing affecting PBS and subscribers' choices.
- DISH had entered a private carriage agreement with at least thirty PBS stations to avoid § 207's timetable, delaying HD PBS in ten markets.
- The district court held § 207 content-neutral and did not abuse its discretion in denying injunction.
- The Ninth Circuit reviews for abuse of discretion and undertakes de novo analysis of the merits and Winter factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 207 implicates the First Amendment. | DISH argues § 207 burdens content via HD timing of PBS. | Government contends § 207 is a modest, non-contentual scheduling rule. | First Amendment likely implicated; statute affects HD timing of programming. |
| Whether § 207 is content-based and subject to strict scrutiny. | DISH asserts § 207 targets PBS content and preferences. | Government contends statute is content-neutral, improving competition. | § 207 is treated as content-neutral, applying intermediate scrutiny. |
| Whether a content-neutral regulation here advances an important governmental interest with no substantial overreach. | DISH contends the delay is unnecessary and overbroad. | Government argues promotion of fair competition and diversity of programming. | Regulation is substantially related to an important governmental interest and not overly burdensome. |
| Whether the district court abused its discretion in denying the preliminary injunction. | DISH shows likelihood of success on merits and irreparable harm. | Government contends DISH failed to show likelihood of success or irreparable harm. | No abuse of discretion; DISH failed to show likelihood of success at this stage. |
Key Cases Cited
- Winter v. N.R.D.C., 555 U.S. 7 (U.S. 2008) (four Winter factors apply to preliminary injunctions)
- Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (content-neutral regulation subject to intermediate scrutiny)
- Turner v. Turner I, 512 U.S. 642 (U.S. 1994) (highlights scrutiny for content-neutral restrictions on speech)
- City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (U.S. 1986) (editorial discretion in broadcasting and content considerations)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (principal inquiry for content neutrality)
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (content-neutral restrictions subject to intermediate scrutiny)
- O'Brien, 391 U.S. 367 (U.S. 1968) (intermediate scrutiny for noncontent regulation of speech)
- Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) (example of content-based challenge to educational exemptions)
- Television Project, Minority Television Project Inc. v. FCC, 649 F. Supp. 2d 1025 (N.D. Cal. 2009) (N.D. Cal. discussion of public broadcasting and diversity)
- Time Warner Entm't Co. v. FCC, 93 F.3d 957 (D.C. Cir. 1996) (cable must-carry and content-neutral considerations)
- Satellite Broad. and Commc'ns Ass'n v. FCC, 275 F.3d 337 (4th Cir. 2001) (statutory obligations to treat local stations comparably)