Dish Network Corporation, et al v. FCC, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, BARRY G. SILVERMAN and RICHARD C. TALLMAN) AFFIRMED. Judge: RCT Authoring. FILED AND ENTERED JUDGMENT. [7658309]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DISH NETWORK CORPORATION; DISH
NETWORK, L.L.C.,
Plaintiffs-Appellants,
v.
FEDERAL COMMUNICATIONS
COMMISSION; JULIUS GENACHOWSKI;
MICHAEL J. COPPS; ROBERT M.
MCDOWELL; MIGNON CLYBURN;
MEREDITH ATTWELL-BAKER; UNITED
STATES OF AMERICA,
Defendants-Appellees.




No. 10-16666
D.C. No.
2:10-cv-01075-JCMPAL
OPINION



Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
January 13, 2011—San Francisco, California
Filed February 24, 2011
Before: J. Clifford Wallace, Barry G. Silverman, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman

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COUNSEL
Courtney J. Linn, Orrick, Herrington & Sutcliffe LLP, Sacramento, California; E. Joshua Rosenkranz (argued), Orrick,
Herrington & Sutcliffe, LLP, New York, New York for
plaintiffs-appellants DISH Network Corporation and DISH
Network, L.L.C.
Tony West, Assistant Attorney General; Daniel G. Bogden,
United States Attorney; Mark B. Stern (argued) and Dina B.
Mishra, Department of Justice, Washington, D.C. for
defendants-appellees Federal Communications Commission,
Julius Genachowski, Michael J. Copps, Robert M. McDowell,
Mignon Clyburn, Meredith Attwell-Baker, United States of
America.

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OPINION
TALLMAN, Circuit Judge:
DISH Network Corporation and DISH Network, LLC (collectively “DISH”) appeal the district court’s order denying
DISH’s motion for a preliminary injunction. DISH argues that
it is likely to succeed in its argument that § 207 of the Satellite Television Extension and Localism Act of 2010 (STELA),
Pub. L. No. 111-175, § 207, 124 Stat. 1218 (amending 47
U.S.C. § 338 (2006)), which accelerates the timetable under
which satellite providers that carry local stations in highdefinition (HD) format in a particular market must carry
“qualified noncommercial educational television stations” in
HD, is a content-based regulation of free speech in violation
of the First Amendment. DISH asserts that the statute interferes with its editorial discretion and judgment by forcing it
to delay offering commercial programming in HD to certain
markets. That delay, DISH argues, forces DISH subscribers to
receive Public Broadcasting Service (PBS)1 programs in HD
before commercial programs, even though they “prefer watching the World Cup and American Idol in vivid colors over Jim
Leher and Elmo.”
Because we agree with the district court that DISH failed
to demonstrate it is likely to succeed on the merits, we affirm
the denial of injunctive relief. See Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 381 (2008).
I
It is helpful first to briefly review how satellite television
works, why it is regulated, and how § 207 came to be enacted.
There are only two major Direct Broadcast Satellite providers
1

The statute in question applies to all local public television stations.
While the majority of public television consists of PBS programming,
much of the content is locally produced.

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in the United States: DirectTV, which has about 18.5 million
subscribers, and DISH, which has about 14.1 million subscribers. They rely on assigned radio frequency bands to
transmit signals to consumers from satellites located at designated orbital locations in space. The transmissions are governed by the Federal Communications Commission (FCC)
and international regulations.
The United States has been assigned eight orbital locations
for providing satellite service. Each location is divided into 32
satellite channels. Transmissions from satellites in the same
orbital location may cause signal interference, so Congress
has authorized the FCC to grant licenses to satellite service
providers assigning them the use of specified channels at particular orbital locations. The licenses are limited in duration
and the FCC may grant or renew them only if doing so will
serve the public interest, convenience, or necessity. 47 U.S.C.
§ 307.
In 1999, Congress created an exception to copyright law to
better enable competition between satellite TV and cable TV.
The Satellite Home Viewer Improvement Act of 1999
(SHVIA) amended the Copyright Act to create statutory copyright licenses for satellite carriers that allow them to retransmit a local broadcast station’s signal without first getting
permission from the individual copyright holders. The copyright license is also subject to statutory and regulatory conditions.
As a condition of their licenses, carriers have certain public
obligations. For example, they must also carry, on request, the
signals of all other television broadcast stations in the same
local market. 47 U.S.C. § 338(a)(1). See Satellite Broad. and
Commc’ns Ass’n v. FCC, 275 F.3d 337, 352-66 (4th Cir.
2001) (rejecting First Amendment challenge). Additionally,
all satellite providers must set aside four to seven percent of
their channel capacity for “noncommercial programming of
an educational or informational nature.” 47 U.S.C. § 335(b);

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see also Time Warner Entm’t Co. v. FCC, 93 F.3d 957,
973-77 (D.C. Cir. 1996) (per curiam) (rejecting First Amendment challenge), reh’g en banc denied, 105 F.3d 723 (D.C.
Cir. 1997). Finally, and particularly relevant to the case at
hand, satellite service providers are required to treat all local
television stations the same regarding picture quality. 16
F.C.C.R. 1918 ¶ 118 (2000).
The picture-quality condition was applied to HD programming in 2008 through an FCC rule. See 23 F.C.C.R. 5351, ¶ 5
(2008); 47 C.F.R. § 76.66 (k). Under that rule, satellite providers that carry any local stations in HD format in a particular market must carry all local stations in HD format. The
regulation gives providers four years to meet the following
implementation timetable: they must achieve compliance in
fifteen percent of the markets in which they carry local channels in HD by Feb. 17, 2010; thirty percent by Feb. 17, 2011;
sixty percent by Feb. 17, 2012; and one-hundred percent by
Feb. 17, 2013.
The challenge is that HD consumes three to four times the
channel capacity as standard definition (SD) programming.
Because DISH currently lacks capacity to offer all local channels in HD, it prioritized local market television stations
according to customer demand, and decided not to prioritize
transmitting PBS in HD. Instead, DISH offered the major networks in HD and delayed offering PBS in HD except in
Alaska and Hawaii, where it was legally obligated to do so.
By comparison, its competitor DirectTV provided 106 channels of HD PBS in its regions of operation.
Congress determined that by forcing public broadcasting
stations to the back of the HD priority line, DISH was jeopardizing public television’s ability to compete with commercial
television and thereby threatening the right of consumers “to
receive federally funded programming broadcast by PBS.”
156 Cong. Rec. E849-04 (daily ed. May 12, 2010) (speech of
Rep. Anna G. Eshoo). In response, Congress enacted § 207 of

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STELA to ensure “that satellite providers do not discriminate
against noncommercial high definition signals” and to promote “an even playing field.” Id.
The provision accelerates the HD timetable for “qualified
noncommercial educational television stations.” Under § 207,
satellite carriers who take advantage of the statutory compulsory copyright license to provide local broadcasts in HD format must also provide “qualified noncommercial educational
television stations located within that local market” in HD
format. Carriers were given until December 31, 2010, to meet
the requirement in fifty percent of the local markets in which
they provide HD programming and until December 31, 2011,
to comply fully in all remaining markets.
But Congress created an exemption to § 207 for satellite
providers who entered into a private carriage agreement with
at least thirty qualified noncommercial educational television
stations. To avoid § 207’s more burdensome timeline, DISH
entered into such a contract. Doing so forced it to postpone
launching HD services in ten new television markets. DISH
then filed suit to enjoin § 207, arguing that it is a constitutionally impermissible content-based regulation of the company’s
First Amendment right to free speech.
The district court denied DISH’s motion for a preliminary
injunction without opinion. During the hearing, the court
focused entirely on whether DISH was likely to succeed on
the merits of its claim. The court concluded the regulation
was content-neutral and not an infringement on DISH’s First
Amendment rights. It reasoned that § 207 “is designed to keep
PBS competitive with other local outlets,” not to regulate content. In summarizing its conclusions, the district court
explained:
[U]nder the case law we aren’t dealing with content.
You’ve got to offer PBS and now they’re saying . . .
you’ve got to offer it in HD so it’s as attractive as

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other local stations and I don’t think it impinges or
infringes the First Amendment.
We agree.
II
We review a district court’s grant or denial of a preliminary
injunction for abuse of discretion and the underlying legal
principles de novo. Stormans, Inc. v. Selecky, 586 F.3d 1109,
1119 (9th Cir. 2009). The grant or denial of a preliminary
injunction lies within the discretion of the district court and
we may reverse a district court only where it relied on an erroneous legal premise or abused its discretion. Sports Form, Inc.
v. United Press Int’l, Inc., 686 F.2d 750 (9th Cir. 1982). To
determine whether the district court abused its discretion, the
reviewing court “must consider whether the decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment.” Id. at 752 (citations
omitted).
We have noted that “in some cases, parties appeal orders
granting or denying motions for preliminary injunctions in
order to ascertain the views of the appellate court on the merits of the litigation,” but that due to the “limited scope of our
review . . . our disposition of appeals from most preliminary
injunctions may provide little guidance as to the appropriate
disposition on the merits” and that such appeals often result
in “unnecessary delay to the parties and inefficient use of
judicial resources.” Id. at 753. Thus, we offer our analysis
with the necessary caveat that accompanies any preliminary
injunction review—that this opinion is not an adjudication on
the merits of DISH’s claim. We conclude only that, based on
our de novo review of the underlying legal principles, the district court did not abuse its discretion in finding that DISH is
not likely to succeed.

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III
A
[1] To warrant a preliminary injunction, DISH must demonstrate that it meets all four of the elements of the preliminary injunction test established in Winter v. Natural Res. Def.
Council, 129 S. Ct. 365, 374 (2008): that an injunction would
be in the public interest, that without an injunction irreparable
harm is likely, that the balance of equities tips in its favor, and
that it is likely to succeed on the merits. Id. at 374. DISH
argues that in the case of a First Amendment claim, all four
of the Winter factors collapse into the merits. We have held
otherwise.
While a First Amendment claim “certainly raises the specter” of irreparable harm and public interest considerations,
proving the likelihood of such a claim is not enough to satisfy
Winter. Stormans, 586 F.3d at 1138; see also Klein v. City of
San Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009) (even
where the plaintiff was likely to succeed on the merits of his
First Amendment claim, he “must also demonstrate that he is
likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public
interest tip in his favor”) (citing Winter, 129 S. Ct. at 374).
Therefore, even if we were to determine that DISH is likely
to succeed on the merits, we would still need to consider
whether it satisfied the remaining elements of the preliminary
injunction test. However, because we agree with the district
court that DISH has failed to satisfy its burden of demonstrating it has met the first element, we need not consider the
remaining three.
B
[2] To determine whether DISH is likely to succeed on the
merits of its claim, we must first consider whether the First

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Amendment likely applies. The Government argues that § 207
does not implicate the First Amendment because it does not
constitute a serious infringement on DISH’s editorial discretion. It suggests that the provision is merely a “modest alteration to the HD timetable” concerning only “the timing of a
means of signal transmission[.]” The Government stresses
that DISH is not challenging Congress’s initial requirement
that satellite carriers offer PBS in HD, only its timing, which
does not rise to the level of a First Amendment burden.2 Additionally, the Government argues that the First Amendment is
not implicated because § 207 does not affect DISH’s selection
of channels or interfere with its expressive decisions.
DISH counters that § 207 does affect DISH’s selection of
channels because HD transmissions are offered on separate
channels than SD transmissions and that if DISH carries PBS
in HD, it cannot carry other stations in HD. Regarding the
question whether the First Amendment applies to a provision
that merely affects the timing of a requirement, DISH proposes that the accelerated pace unconstitutionally benefits
PBS; the fact that the benefit lasts only three years is irrelevant.
The Supreme Court has recognized that cable television
operators exercise “ ‘a significant amount of editorial discretion regarding what their programming will include.’ ” City of
Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 494
(1986) (quoting FCC v. Midwest Video Corp., 440 U.S. 689,
707 (1979)). In Turner Broadcasting System, Inc. v. FCC, 512
U.S. 622 (1994) (Turner I), the Supreme Court applied intermediate scrutiny to a content-neutral regulation that required
carriage of local broadcast stations on cable systems. In doing
so, the Court announced that “laws that single out the press,
or certain elements thereof, for special treatment pose a particular danger of abuse by the State . . . and so are always sub2

DISH does not concede that the FCC’s 2008 rule establishing the initial timetable is constitutional, but does not challenge it here.

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ject to at least some degree of heightened First Amendment
scrutiny.” Turner I, 512 U.S. at 640-41 (quoting Arkansas
Writer’s Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987)).
[3] Section 207 does not affect DISH’s ability to offer programs. It affects only when DISH can offer those programs in
HD. Even so, Turner I instructs that any law that singles out
an element of the press is subject to some form of heightened
First Amendment scrutiny. For example, in Turner I, the
Supreme Court determined that regulations that “impose special obligations upon cable operators and special burdens
upon cable programmers” implicate the First Amendment.
Turner I, 512 U.S. at 641. Applying that logic to the case at
hand, while § 207’s obligations and burdens on satellite carriers are minimal and nuanced, they do exist. Therefore, the
First Amendment is likely implicated.
C
[4] Strict scrutiny applies to government actions that stifle
or promote speech on account of its message. Such laws conflict with basic First Amendment principles valuing and protecting an individual’s right to decide which ideas and beliefs
are worth expressing, and almost always violate the First
Amendment. See id. (acknowledging that “the First Amendment, subject to only narrow and well-understood exceptions,
does not countenance governmental control over the content
of messages expressed by private individuals”). By contrast,
regulations of speech unrelated to content are less likely to
conflict with core First Amendment values, so they are subject only to intermediate scrutiny. Id. at 642.
DISH argues that we should apply strict scrutiny because
§ 207 is a content-based regulation of free speech. The
Supreme Court has said that the “principal inquiry in determining content neutrality . . . is whether the government has
adopted a regulation of speech because of agreement or disagreement with the message it conveys.” Ward v. Rock

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Against Racism, 491 U.S. 781, 791 (1989); see also Turner I,
512 U.S. at 642. Generally, “laws that by their terms distinguish favored speech from disfavored speech on the basis of
the ideas or views expressed are content based. By contrast,
laws that confer benefits or impose burdens on speech without
reference to the ideas or views expressed are in most instances
content neutral.” Turner I, 512 U.S. at 643 (internal citations
omitted). Finally, even a statute that facially distinguishes a
category of speech or speakers is content-neutral if justified
by interests that are “unrelated to the suppression of free
expression.” City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 48 (1986).
DISH argues § 207 is content-based because:
(1) To be a “qualified noncommercial educational television station,” a station must be eligible for a Corporation for
Public Broadcasting (CPB) grant, and those grants are allocated according to certain content criteria.3
(2) Congress’s motive in enacting § 207 was to promote
subject matter it deemed “worthier.” To support this contention, DISH highlights comments § 207’s primary sponsor,
Rep. Anna Eshoo, made announcing her personal preference
for PBS programming over certain pay-per-view channels.4
3

Specifically, applicants must devote the substantial majority of their
daily total programming hours to “general audience programming that
serves demonstrated community needs of an educational, informational
and cultural nature.” Programs that further the principles of “particular
political or religious philosophies” do not qualify.
4
DISH emphasizes parts of the following passage from Rep. Eshoo’s
remarks during a congressional hearing:
My bill does not prevent satellite carriers from carrying any program. It merely mandates the carriage of all digital PBS programming, and I know . . . I have heard the argument before that you
don’t have enough room, enough space and that you would have
to drop some. And I would suggest that you drop some of your

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(3) Strict scrutiny applies where Congress’s preference is
based on subject matter, regardless of whether it discriminates
on the basis of viewpoint. Brief for Plaintiffs-Appellants at
36-37 (citing Bullfrog Films, Inc. v. Wick, 847 F.2d 502,
509-10 (9th Cir. 1988))5.
(4) Section 207’s preference is reserved only for a subset
of government-funded beneficiaries, so that “even the most
educational, irreligious, apolitical station gets no preference if
it is not currently on the Government dole.”
First, the criteria used to determine whether a station
receives federal funding are designed not to promote Congress’s preference, but to guard against the influence of special interests. Cf. 127 Cong. Rec. 13,145 (June 22, 1981)
(Rep. Gonzalez) (recognizing the need to “insulate public
broadcasting from special interest influences—political, commercial, or any other kind.”); H.R. Rep. No. 97-82, at 16
(1981) (noting the risk of “influence of special interests—be
they commercial, political, or religious.”). Furthermore, the
CPB offers financial incentives for stations to differentiate
their programming and the government is forbidden by law
pay-per-view channels that carry soft porn. I would take PBS any
day over soft porn so would you address yourself to the question
as to why you refuse to negotiate a carriage agreement with public TV that provides for nondiscriminatory carriage in HD?
DISH also points out that during the same hearing, Rep. Eshoo
remarked that “PBS is important in the life of the American people and
I think what they do has already been set down and is a gold standard[.]”
5
In Bullfrog Films, we found unconstitutional regulations implementing
a multilateral treaty that exempted “educational, scientific and cultural”
audio-visual materials from import duties. That case is distinguishable
because it did not involve the broadcast regulatory environment, which the
Supreme Court has analyzed in a separate First Amendment context. The
broadcast regulatory environment differs from the film environment
because satellite companies rely on having access to a regulated and
scarce public resource and are subject to specific public obligations in
return for a Copyright Act exemption that allows them to compete.

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from exercising any direction, supervision, or control over the
CPB.
[5] Section 207 “seeks to support expression, not suppress
it,” the Government maintains. The record supports that assertion. Rep. Eshoo may have expressed a personal preference
for PBS over pay-per-view, but it does not follow that her personal preference is what drove Congress to enact § 207. The
legislative record clearly indicates that in § 207 Congress
aimed to prohibit satellite carriers from “discriminating”
against noncommercial stations in a manner that interferes
with “the rights of consumers to receive federally funded programming broadcast by America’s Public Broadcasting Service, PBS.” 156 Cong. Rec. E849-04 (daily ed. May 12, 2010)
(speech of Rep. Anna G. Eshoo). The legislation sought to
even the playing field and promote fair competition. DISH’s
contention that Congress enacted § 207 because Congress
thinks PBS is better than commercial television contradicts
the legislative record.
As for DISH’s remaining arguments, Turner I is informative. In Turner I, the Supreme Court held that sections of the
Cable Television Consumer Protection and Competition Act
of 1992 requiring cable television systems to dedicate some
of their channels to local broadcast television stations constituted a content-neutral restriction on speech, subject to intermediate scrutiny. Turner I, 512 U.S. at 661-62. The Court
determined that the provisions were meant “to protect broadcast television from what Congress determined to be unfair
competition” and that “[a]ppellants’ ability to hypothesize a
content-based purpose for these provisions rests on little more
than speculation and does not cast doubt upon the contentneutral character of must-carry.” Id. at 652.
As to the extent the regulations required cable carriers to
carry noncommercial educational stations, those regulations
were deemed content-neutral because “noncommercial licensees are not required by statute or regulation to carry any spe-

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cific quantity of ‘educational’ programming or any particular
‘educational’ programs.” Id. at 651. The Court noted that the
FCC and Congress have negligible influence over broadcast
programming and may not use funding to the CPB to affect
programming decisions. Id. at 651-52. During DISH’s hearing, the Government’s attorney reiterated that point:
The government’s funding is not specific as to the
programming choice. It’s actually done in a specific
way so that the appropriations aren’t even year to
year, they’re over a very long period of time. So the
fact that the money comes from the government, the
government has absolutely no control . . . over what
kind of programming public television stations provide.
DISH argues that Turner I should be distinguished because
the statute at issue in that case provided benefits to all fullpower local television stations whereas the statute at issue
here provides benefits only to public broadcasting stations,
which must meet certain content requirements.
However, the Government has long supported public television stations and passed legislation benefitting them not
because they broadcast specific content, but because the “economic realities of commercial broadcasting do not permit
widespread commercial production and distribution of educational and cultural programs which do not have a mass audience appeal.” H.R. Rep. No. 90-572, at 10-11 (1967).
Congress supports public broadcasting because it fills “certain
programming voids” and promotes diversity in programming.
Minority Television Project Inc. v. FCC, 649 F. Supp. 2d
1025, 1033-34 (N.D. Cal. 2009); see also 47 U.S.C.
§ 396(a)(5) (recognizing that “[i]t furthers the general welfare
to encourage public telecommunications services which will
be responsive to the interests of people both in particular
localities and throughout the United States, which will constitute an expression of diversity and excellence, and which will

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constitute a source of alternative telecommunications services
for all the citizens of the Nation.”).
[6] The satellite carriers benefit from the statutory copyright license established through SHVIA. In return, Congress
may place reasonable limitations on the use of that license,
which is all Congress has done here. It enacted § 207 to promote fair competition, not suppress free speech. Section 207
is content-neutral. See Turner I, 512 U.S. at 662.
D
[7] A content-neutral regulation will be sustained if “it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S.
367, 377 (1968); see also Turner I, 512 U.S. at 662. A regulation need not be the least-restrictive means available as long
as it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Turner
I, 512 U.S. at 662 (citing Ward, 491 U.S. at 799 (1989)). The
question is not whether Congress was correct to determine
that a particular statute was necessary, but whether its determination was reasonable and based on substantial evidence.
Turner I, 512 U.S. at 666 (citing Century Commc’ns Corp. v.
FCC, 835 F.2d 292, 304 (D.C. Cir. 1987)).
[8] The Supreme Court has recognized that “[T]he Government’s interest in eliminating restraints on fair competition
is always substantial, even when the individuals or entities
subject to particular regulations are engaged in expressive
activity protected by the First Amendment.” Turner I, 512
U.S. at 664. The Court has also recognized that “assuring that
the public has access to a multiplicity of information sources
is a governmental purpose of the highest order, for it promotes values central to the First Amendment.” Id. at 663. The

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question here is whether § 207 advances that interest in a
manner that is not substantially more restrictive than necessary.
[9] In support of its position that Congress’s procompetitive determination was unreasonable, DISH cites its
expert’s declaration concluding that a delay in providing PBS
in HD would not cure any threat to the viability of local PBS
stations. The Government argues that because of the nature of
public television funding, a delay in carrying public television
in HD would indeed compromise the financing mechanism on
which public broadcasting stations depend. As the Government’s attorney explained at argument before the district
court: “[I]f [satellite carriers are] going to go in and show
ABC, or CBS, or FOX, they also need to go in and show PBS
just over the intervening three years so that when we get to
the point where everyone is broadcasting in HD that PBS isn’t
so far behind the local networks.”). As most PBS supporters
know, while Congress provides some financial support for
public broadcasting through grants, most comes from other
sources, and the stations’ daily operations depend on donations from local viewers. Congress enacted § 207 because it
feared that failure to keep up with enhancements in commercial signals and picture quality would impair the ability of
public television stations to compete for viewers.
To further emphasize the reasonableness of Congress’s
action, the Government cites a New York Times article stating
that shortly before STELA’s passage, half of the country was
watching television in HD format and that “HD may limit the
number of channels that viewers turn to, because once they
can watch programs in HD, they have little desire to watch
anything of a lower quality.” Brian Stelter, Crystal-Clear,
Maybe Mesmerizing, N.Y. Times, May 24, 2010, B4. The
Government also highlights an FCC report noting that “subscribers do not consider SD programming to be an acceptable
substitute for HD programming.”

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[10] Considering the record before us and that Congress
recognized whether a program is offered in HD affects
whether viewers watch it (a fact DISH concedes by the very
nature of its argument), it was reasonable for Congress to conclude that allowing satellite carriers to delay offering PBS in
HD would lead to anticompetitive results. The Government
would likely succeed at trial in demonstrating that Congress
made a reasonable determination based on substantial evidence when it determined that § 207 was necessary to promote this substantial interest.
Arguing the regulation is substantially more restrictive than
necessary, DISH proposes that the Government could satisfy
any interest it might have simply by “providing adequate
funds to public stations that could make HD carriage financially attractive.” It also suggests that the public can easily
access public broadcasting in HD by “hooking up rabbit ears
and flicking a switch.”
As for the first argument, PBS receives congressional support in part because by its very nature it is not commercially
attractive. DISH’s suggestion that instead of passing legislation Congress should spend money making PBS more attractive to commercial enterprises undercuts the very purpose that
has driven decades of legislation promoting diversity in television programming.
In response to the second argument, DISH’s own marketing
materials demonstrate that many residents of areas with weak
broadcast signals cannot receive over-the-air transmissions.
For example, one DISH advertisement reads: “Because satellite technology is not limited by geographic area or landbased cable lines, you can receive DISH Network service no
matter where in the nation you live. In fact, if you live in a
rural area or on an RV, satellite TV is probably your only
option.” Similarly, a DISH Network press release reads:
“DISH serv[es] the many rural markets that lack vital local
TV signals.”

Case: 10-16666 02/24/2011 Page: 18 of 18

2872

ID: 7658309 DktEntry: 36-1

DISH NETWORK CORP. v. FCC

[11] We conclude that the district court did not abuse its
discretion in determining that DISH failed at this stage of the
proceedings to demonstrate that § 207 would likely not survive intermediate scrutiny. The provision is not substantially
more restrictive than necessary to address Congress’s reasonable fear that without action, DISH’s decision to deprioritize
PBS would jeopardize the ability of public broadcasters to
compete with commercial stations.
IV
Because we conclude that the district court did not abuse its
discretion in determining that DISH failed to demonstrate at
this stage that it is likely to succeed on the merits of its claim,
we decline to consider the remaining three elements of the
preliminary injunction test. The district court did not abuse its
discretion in denying DISH’s motion for a preliminary injunction.
AFFIRMED.