Dish Plug-and-Play Fight Resumes in D.C. Circuit
Dish Network lacks the legal standing to force the FCC to pull back encoding rules for set-top boxes adopted in 2003 as part of plug-and-play device implementation, the FCC and Justice Department said in a filing with the U.S. Court of Appeals for the D.C. Circuit. The Dish appeal, filed in 2004, was paused as the agency considered DirecTV’s petition for reconsideration of the plug-and-play order, which the commission denied in 2010. Dish argued in its brief last month that the agency’s application of plug-and-play rules to all multichannel video programming distributors, rather than just cable, goes beyond the congressional intent.
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The encoding rules in question limited MVPDs’ digital copy protection of programming and prohibited the companies from using encoding to shut off a video output on a program-by-program basis and using a lower resolution for broadcast program. The rules were implemented as a result of a provision in the 1996 Telecom Act and were based on an industry-brokered agreement between the cable and CE industries. The government said Dish forfeited its rights to appeal because it never brought its principal argument of the appeal -- that the FCC lacked statutory authority -- to the commission. While the company did file an ex parte questioning the authority at the time, the “vague and equivocal statements” doesn’t satisfy requirements of Section 405 of the Communications Act, said DOJ and the FCC.
Dish’s arguments also lack merit, said Thursday’s filing. The FCC had authority to impose encoding rules under the 1996 Act, which tasked the agency with ensuring availability of navigation devices. The rules were adopted to help ensure consumer confidence in digital TV equipment, as the DTV transition deadline had originally been set for 2006, said the government. All full-power TV stations went all-digital in 2009.
The agency had ancillary authority to make rules to fulfill the goal of Section 624A: “To ensure that cable subscribers will be able to enjoy the full benefits of available cable programming,” said the DOJ and FCC. While the statute doesn’t directly apply to DBS, the FCC applied to rules to all MVPDs to avoid a market imbalance between cable and satellite, said the filing. The Supreme Court had held that the FCC was able to regulate the cable industry because of its regulatory responsibilities for broadcasters, even before the Communications Act was amended to include cable, said the agencies. The NCTA, which has been involved in the issue, didn’t comment. Dish’s reply is due March 16.