The U.S. Court of Appeals for the Eleventh Circuit recently handed television network broadcasters an important victory in their long-running battle against satellite TV provider EchoStar Communications Corp. The court ruled EchoStar violated federal copyright law and remanded the case to district court for entry of a nationwide permanent injunction. CBS Broadcasting v. Echostar Communications., Case No. 03-13671 (May 23, 2006) (Tjoflat, J.).
The Satellite Home Viewer Act of 1998 gives satellite carriers a compulsory, statutory license to transmit copyrighted network programming to "unserved households." Typically in rural areas, these are households unable to receive network programming at a specified level of intensity through conventional rooftop antennas.
In 1998 a group of network broadcasters including CBS Broadcasting, Inc.; NBC Universal, Inc.; ABC, Inc.; and Fox Broadcasting Company accused EchoStar of intentionally abusing the law by re-transmitting network broadcasts to "served" households that already received network signals. The networks argued these were illegal transmissions that eroded the value of their copyrighted broadcast material. The networks disputed EchoStar’s methods of assessing subscriber eligibility and EchoStar’s characterization of many of its subscribers as "unserved."
In a first appeal the Eleventh Circuit vacated the district court’s preliminary injunction against EchoStar, which had ordered EchoStar to cease transmitting programs to "served" households. On remand, the district court ordered EchoStar to narrowly focus its subscriber classification method. The court declined to address whether EchoStar had engaged in a "willful or repeated pattern or practice" of violations mandating a permanent injunction.
Unsatisfied, both sides appealed. Once again, the Eleventh Circuit remanded the case but this time for entry of a permanent injunction. Rather than instruct the district court to make the underlying determination in the first instance, the court took it upon itself to find the "willful or repeated pattern or practice" of statutory violations that mandates the injunction:
As if the magnitude of its ineligible subscriber base were insufficiently disconcerting, we have found no indication that EchoStar was ever interested in complying with the Act. Indeed, based on the district court’s findings, we seem to have discerned a "pattern" and "practice" of violating the Act in every way imaginable.
Practice Note
Satellite providers are likely to face new challenges as broadcasting networks, emboldened in their efforts, attempt to stem unauthorized re-transmissions of their copyrighted signals.
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