Dish Appealing Media Bureau Finding in Broadcaster Retrans Complaint
OpticalTel fit the definition of an MVPD and its contract with Dish required it to get Sun Broadcasting approval before retransmitting WXCW Naples, Florida, to its customers, Dish said in an application for review of the Media Bureau's March order…
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dismissing WXCW's OpticalTel complaint (see 1703200037). The order followed an OpticalTel petition for reconsideration of a 2016 order that said OpticalTel had retransmitted WXCW's signal without retrans consent. The Dish application, posted Thursday in docket 14-258, said OpticalTel wasn't a direct broadcast satellite reseller but a TV receive-only satellite program distributor and the erroneous determination it was a DBS reseller spawned the bureau's error in deciding Dish is the one that should have sought retransmission consent from Sun. Dish said its contract with OpticalTel was clear that Dish provided transport-only services. Dish also asked the FCC to clarify that the determination whether a satellite carrier is providing retransmission and thus acting as an MVPD "is fact-dependent and should be made on the facts of each case." OpticalTel outside counsel Art Harding of Garvey Schubert said the Dish application is deficient procedurally, since Dish never participated in the proceeding except when ordered by the FCC, and deficient substantively, since Dish never disputed the contract OpticalTel entered into evidence and the contract was clear that OpticalTel was a reseller of Dish's signal. The full commission could issue an order either affirming or reversing the Media Bureau decision, with that order then appealable to circuit court, Harding said.