Dish Network is asking the Supreme Court to rule on what First Amendment test should apply to its Congressional mandate to carry noncommercial stations in HD over other stations, reports Broadcasting & Cable. "At issue, if the Supremes take the case, could be the underpinnings of entire government must-carry regime," reporter John Eggerton notes.
Dish filed a petition for certiorari, asking for a review of a decision last February in which the Ninth Circuit Court of Appeals held that Congress could require a private party (Dish) to grant preferential treatment to noncommercial stations. Dish claims the government is favoring one type of speech over another. "Applying intermediate scrutiny, the Ninth Circuit upheld the preference based on the government's interest in increasing the popularity of federally funded stations to increase the flow of viewer donations. In other words, telethons trump editorial discretion," Dish said in its current filing.
It added: "Dish believes its viewers are more interested in seeing Harry Potter and the Super Bowl in HD than Charlie Rose and Sesame Street."
In July 2010, after several years of negotiations with the Association of Public Television Stations, Dish struck an independent HD carriage agreement with some 30 pubcasting stations.
UPDATE: In a statement today, APTS Chief Operating Officer and General Counsel Lonna Thompson said the group is "deeply disappointed" at Dish Network's request for a Supreme Court review of the carriage mandate. “Congress included this provision because Dish Network was blatantly discriminating against local public television stations and refusing to carry them in HD in markets where they were carrying all of the commercial broadcasters," Thompson said. “Unfortunately, Dish prefers to litigate this law rather than giving their customers what they want and deserve — high-quality public television programming. Congress listened to the American people on this critical issue and acted appropriately."
"The public depends upon Dish complying with the must-carry law as local public television stations do not have legal retransmission negotiation rights," she said. "Dish’s profound reluctance to do so contrasts starkly with Direct TV's voluntary agreement, now four years old, with APTS and PBS to carry the HD signal of every public television station in markets Direct TV serves in local HD."