Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of:                | *  | CSR-5865-Z[^1]               |
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| National Association of          | ** |                              |
| Broadcasters and                 |    |                              |
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| Association of Local Television  | *) |                              |
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| Request for Modification or      | *  |                              |
| Clarification of                 | *) |                              |
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| Broadcast Carriage Rules for     |    |                              |
| Satellite Carriers               | *  |                              |
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**DECLARATORY RULING AND ORDER**

**Adopted: April 4, 2002; Released: April 4, 2002**

By the Chief, Media Bureau:

# INTRODUCTION 

1.  The Commission received a joint Emergency Petition from the National
    Association of Broadcasters ("NAB") and the Association of Local
    Television Stations ("ALTV") asking for modification or
    clarification of the Commission's rules concerning carriage of local
    television broadcast stations by satellite carriers pursuant to the
    Satellite Home Viewer Improvement Act of 1999 (the "SHVIA").[^2] NAB
    and ALTV ask the Commission to take prompt emergency action to
    address satellite carriage of certain local television broadcast
    stations in a manner that requires subscribers to obtain a second
    satellite dish antenna. The Petition states that one of the
    satellite carriers subject to the "carry-one, carry-all"
    requirements, EchoStar Communications Corporation ("EchoStar"),
    which provides direct broadcast satellite ("DBS") television
    products and services through its DISH Network, has placed some, but
    not all, local stations in particular markets on "wing slot"
    satellites located over the Atlantic (at 61.5° W.L.) or over the
    Pacific (at 148° W.L.).[^3] As a result, some EchoStar subscribers
    are required to obtain additional equipment (*e.g*., a second
    satellite dish antenna) to receive and view these local stations,
    although the other local stations (such as network-affiliated
    stations) offered in the same markets are available on one dish
    antenna served by satellites that provide service over the
    continental United States ("CONUS" satellites). NAB and ALTV request
    that the Commission immediately clarify or amend the rules governing
    satellite carriage of local television stations (*i.e*., 47 C.F.R. §
    76.66) to specify that carriage of some local stations in a manner
    that requires subscribers to use a different dish antenna from the
    antenna used to receive other local stations is discriminatory and
    does not comport with the SHVIA or the Commission's orders and
    rules.

2.  After reviewing the record in this proceeding, we do not believe
    that it is necessary to amend the satellite broadcast carriage rules
    at this time.[^4] There is, therefore, no need to initiate a
    rulemaking to address the issues raised in the Petition. Nor do we
    believe it is necessary to adopt an interpretation of the rules that
    would prohibit the use of a second dish in all cases.[^5] We agree
    with the majority of commenters that the issues raised in the
    Petition can be resolved by declaratory ruling, pursuant to our
    authority under Section 1.2.[^6] As set forth below, we conclude
    that EchoStar's "two-dish plan," as implemented, violates Section
    338(d) of the Act and Section 76.66(i) of the Commission's
    rules.[^7] Based on numerous reports detailed in this record and
    referenced below, we find that EchoStar's offer of a "free" dish has
    not been implemented as such and, in these instances, constitutes a
    violation of the statutory and regulatory prohibition of providing
    access to certain stations at a discriminatory price. In addition,
    we find that EchoStar does not, as required, retransmit the signal
    of local television broadcast stations to subscribers on contiguous
    channels and provide access to local television broadcast station
    signals in a nondiscriminatory manner on its on-screen program guide
    or menu. In essence, although it may be possible to offer certain
    local stations by use of a second antenna without engaging in
    prohibited conduct, we find that EchoStar has not done so in this
    case.

# background

## Satellite Home Viewer Improvement Act of 1999

3.  The SHVIA grants satellite carriers a royalty-free copyright license
    that enables satellite carriers to make secondary transmissions of a
    broadcast station's signal into that station's local designated
    market area ("DMA") without obtaining the authorization of those
    holding copyrights in the individual programs broadcast by that
    station.[^8] In exchange, the law requires that, by January 1, 2002,
    if a satellite carrier carries one local broadcast station in a
    local market pursuant to this license, it must carry all qualified
    local broadcast stations in the market upon request.[^9] This
    requirement is also known as the "carry one, carry all" rule.[^10]
    Although broadcasters can choose between retransmission consent and
    mandatory carriage, the SHVIA's carry one, carry all rule recognizes
    the practical realities of the television marketplace. As the courts
    have observed,

    \[m\]ajor network affiliates have bargaining power and will be
    carried voluntarily in most instances, so they will normally elect
    to proceed under the retransmission consent provision. In contrast,
    independent stations (affiliates of emerging networks, independent
    commercial stations, and noncommercial stations) may need the
    protection of the must-carry rules and will normally elect mandatory
    carriage.[^11]

    Congress sought to ensure that the carry one, carry all rule would
    prevent satellite carriers from "cherry-picking" (for example,
    carrying only network affiliates in local markets), but would
    instead protect the ability of all local broadcasters to reach their
    audiences and thereby "preserve free television for those not served
    by satellite or cable systems and . . . promote widespread
    dissemination of information from a multiplicity of sources."[^12]
    In a recent decision, the United States Court of Appeals for the
    Fourth Circuit upheld the constitutionality of the SHVIA and the
    Commission's implementing regulations.[^13]

4.  As directed by Congress, the Commission issued a *Report and Order*
    implementing the SHVIA's broadcast signal carriage
    requirements.[^14] The section of the *Report and Order* at issue
    here concerns the Commission's interpretation of the
    anti-discrimination language of Section 338(d) of the Act, which
    states:

    No satellite carrier shall be required to provide the signal of a
    local television broadcast station to subscribers in that station's
    local market on any particular channel number or to provide the
    signals in any particular order, except that the satellite carrier
    shall retransmit the signal of the local television broadcast
    stations to subscribers in the stations' local market on contiguous
    channels and provide access to such station's signals at a
    nondiscriminatory price and in a nondiscriminatory manner on any
    navigational device, on-screen program guide, or menu.[^15]

    Specifically with regard to the issue of additional equipment (which
    several broadcasters raised in the *Report and Order*), the
    Commission concluded:

    We find that the language of Section 338(d) covers the additional
    equipment concerns raised by the parties and bars satellite carriers
    from requiring subscribers to purchase additional equipment when
    television stations from one market are segregated and carried on
    separate satellites. However, we are not prohibiting a satellite
    carrier from requiring a subscriber to pay for an additional dish in
    order to receive all television stations from a single market. For
    example, DirecTV may require an additional dish to receive all
    television stations from the Baltimore market, but it may not
    require subscribers to purchase the same to receive some Baltimore
    stations where the others are available using existing
    equipment.[^16]

    Similarly, Section 76.66(i)(4) of the Commission's rules states:

    Within a market, no satellite carrier shall provide local-into-local
    service in a manner that requires subscribers to obtain additional
    equipment at their own expense or for an additional carrier charge
    in order to obtain one or more local television broadcast signals if
    such equipment is not required for the receipt of other local
    television broadcast signals.[^17]

5.  The Commission also issued an *Order on Reconsideration*, which
    again addressed the issue concerning additional equipment in
    response to a petition for reconsideration of the *Report and Order*
    (filed by DirecTV), which the Commission denied.[^18] In the *Order
    on Reconsideration*, the Commission clarified that while Congress
    did not completely prohibit satellite carriers from requiring
    subscribers to obtain an additional satellite dish antenna, it was
    clear that Congress would not allow satellite carriers to require an
    additional dish to receive only some, but not all, local signals,
    "if such a requirement created discriminatory effects."[^19] The
    Commission added, "\[w\]e believe that a limited prohibition on
    requiring subscribers to obtain a separate dish to receive some
    local signals when other local signals are available without the
    separate dish is necessary to give full effect to local station
    carriage requirements."[^20]

## EchoStar's "Two-Dish Plan"

6.  EchoStar is currently providing DBS service that includes local
    television broadcast signals to 36 markets from six satellites
    located in four orbital slots.[^21] Specifically, EchoStar is
    authorized to provide DBS service from orbital slots located at
    61.5°, 110°, 119°, and 148° West longitude.[^22] From the 110° and
    119° slots, the satellites -- referred to as "CONUS satellites" \--
    are able to provide service to the 48 contiguous United States. The
    CONUS satellites form the primary satellites in EchoStar's fleet.
    The remaining orbital slots, located at 61.5° and 148°, are able
    effectively to cover only a portion of the United States and are
    therefore referred to as "partial-CONUS," "secondary" slots, or
    "wing slots."

7.  Since January 1, 2002, EchoStar, with very few exceptions, has been
    using its CONUS satellites to deliver the signals of local broadcast
    stations affiliated with ABC, CBS, Fox, NBC, UPN, and WB, as well as
    some PBS and independent stations, to subscribers.[^23] No
    additional equipment is necessary in order to receive these signals,
    which can be obtained in a package of local signals for \$5.99 per
    month.[^24] In contrast, any remaining stations in a market not
    carried on CONUS satellites are carried on EchoStar's secondary
    satellites, operating from 61.5° and 148° W.L. The local stations
    that EchoStar carries on its secondary satellites tend to be
    Spanish-language stations, certain noncommercial stations (including
    public television stations), and independent commercial
    stations.[^25] In order for subscribers to receive these local
    stations (which EchoStar has characterized as "less popular"
    stations) from EchoStar's secondary satellites, subscribers must
    obtain and install additional equipment, including a second
    satellite dish.[^26] Although EchoStar claims to offer the
    additional equipment, including installation, to subscribers free of
    charge, broadcasters have presented evidence to dispute the extent
    of EchoStar's efforts in this regard.

8.  EchoStar claims that its "must carry compliance plan" hinged on the
    deployment of two spot-beam satellites supplied by two different
    manufacturers, Lockheed Martin and Loral Space.[^27] It asserts that
    the manufacturers failed to meet delivery deadlines, which precluded
    EchoStar from meeting the January 1, 2002, statutory deadline "to
    carry over 200 additional qualified local broadcast signals."[^28]
    EchoStar states that its CONUS satellites were "too capacity
    constrained to carry all qualified local signals," and that it could
    not move "existing programming on central satellites to eastern or
    western satellites without significantly disrupting customer
    expectations and violating contractual obligations to
    programmers.\"[^29] It states that it proceeded to carry "roughly
    half of the additional local must carry station signals on its
    central satellites," and placed the remaining local signals on its
    wing satellites.[^30] According to EchoStar, its plan complies with
    the law because it provides the additional equipment required to
    receive the signals, including installation, free of charge to any
    subscriber who requests it.[^31]

9.  NAB/ALTV, on the other hand, interpret the Commission's Orders as
    "preven\[ting\] satellite carriers from forcing customers to acquire
    a second dish solely to obtain some local stations, without regard
    to who pays the out-of-pocket costs of doing so."[^32] Further,
    NAB/ALTV state that the Commission intended "to permit carriers to
    require customers to pay for a second dish 'at their own expense' if
    all of the stations in the market were available only through a
    second dish."[^33] It is NAB/ALTV's position that "any scheme that
    forces customers to undertake the burden of acquiring additional
    equipment to receive some -- but not all -- local stations is
    inherently and inevitably discriminatory."[^34] Numerous broadcast
    stations, programmers, and associations filed comments in support of
    NAB/ALTV's petition.[^35] Broadcast commenters concur with NAB/ALTV
    that EchoStar's practice of placing some -- but not all -- local
    stations entitled to carriage on wing satellites is unlawful.[^36]
    Further, several commenters argue that, independent of the alleged
    violations, EchoStar's actions are inexcusable given the time it had
    to prepare to meet its must carry obligations.[^37]

10. Broadcast commenters also contend that, even if EchoStar follows
    through on its commitment to offer the additional equipment free of
    charge to subscribers, the hassles, inconvenience, and aesthetic
    costs to consumers of a second dish as they currently are being
    provided by EchoStar act as a strong deterrent for obtaining
    one.[^38] Among other things, they point out that a consumer must
    become sufficiently educated to be aware that certain stations are
    missing and that the option of obtaining a second dish is available.
    Once a consumer is aware of the missing station, he or she must
    contact the satellite carrier (and a local installer) to arrange for
    an installation. In doing so, the consumer must be persistent enough
    to overcome initial misinformation concerning charges for the
    dish,[^39] installation,[^40] or the duration of the offer.[^41]
    Additionally, broadcasters state that there is also the possibility
    of being required to wait at home for an indefinite period for an
    installer to show up, of long waits on hold, or of multiple
    postponements of installer visits, and even of monetary penalties
    for failing to be home when the installer arrives. Further, a
    consumer must be willing to accept the aesthetic impact of a second
    dish, and for many apartment dwellers physical or legal impediments
    may make a second dish impractical.[^42]

11. NAB/ALTV recommend that the Commission "establish a minimum
    objective criteria for any satellite carrier that purports to
    justify a two-dish approach by ostensibly offering to pay for a
    second dish."[^43] They state:

    Among other things, the Commission should communicate to the DBS
    industry that to comply even with EchoStar's reading of the current
    FCC rules, (1) the offer of a free second dish must be prominently
    communicated both to existing customers and to new customers via the
    carrier's web site and otherwise, (2) any such offer must include
    all out-of-pocket costs of purchasing, installing, and hooking up
    the second dish and any other necessary equipment, (3) the
    installation must be prompt, and (4) there can be no preconditions
    for the offer.[^44]

    NAB/ALTV also request that the Commission establish an early
    deadline for compliance, and if the carrier claims to be unable to
    meet that deadline because of circumstances beyond its control
    (*e.g*., if a satellite is damaged while being launched), it should
    be required to seek a formal, temporary waiver from the Commission
    for good cause shown.[^45] NAB/ALTV, in addition to other
    commenters, express concern that if the Commission does not promptly
    clarify its rules, then the two-dish approach using the wing slots
    "may well prove to be a permanent strategy for both DirecTV and
    EchoStar, whether or not the merger is approved."[^46] Univision and
    WLNY-TV/Golden Orange, on the other hand, do not completely agree
    with NAB/ALTV's recommendation, asking the Commission to reject any
    suggestion that requiring EchoStar to better publicize the facts
    surrounding its local station package is an adequate solution to the
    problems that broadcasters on secondary satellites are facing.[^47]
    Finally, APTS/PBS propose that the second antenna must be installed
    automatically to any subscriber who signs up for local-into-local
    service.[^48] They add that subscribers who do not want the second
    antenna could refuse to accept it, provided they are aware that they
    are paying for more stations than they will receive.

# DISCUSSION 

12. In the factual context we are presented, the record demonstrates
    that EchoStar's "two-dish" plan, as implemented, violates both the
    Act and the Commission's rules. We note that satellite carriers have
    long argued for the ability to carry local stations as a way of
    becoming a more viable competitor to cable television. In acceding
    to the wishes of the satellite industry for the ability to carry
    local stations, the Congress, in granting satellite carriers a
    compulsory license, also sought to ensure that satellite carriers
    did not discriminate among local stations. Although it may be
    possible to offer certain local stations by use of a second antenna
    without engaging in prohibited discriminatory conduct, we find that
    EchoStar has not done so in this case.

13. In its Opposition, EchoStar begins by arguing that the Commission is
    barred from dealing with allegations of discrimination relating to
    acquisition of new equipment altogether, because of certain language
    in an early draft of the SHVIA.[^49] EchoStar states that Congress
    had considered an outright prohibition on second dishes, but because
    it was later rejected, Congress must have intended not to limit the
    use of second dishes in any way. The same legislative history
    argument has been raised previously and twice rejected by the
    Commission.[^50] We again reject EchoStar's repeated legislative
    history argument here. As the Commission explained in the *Order on
    Reconsideration*:

    The legislative drafting change cited . . . involved a deletion of a
    much broader limitation on satellite carriers than what the
    Commission adopted under the general anti-discrimination language
    that survived. The legislative drafting change, at most, indicated
    that Congress did not want to prohibit satellite carriers from
    requiring additional dishes generally, but the change does not imply
    that Congress wanted to allow satellite carriers to require
    additional dishes if such a requirement created discriminatory
    effects.

14. Because EchoStar's implementation of its second dish plan falls so
    far short of what is required to prevent unlawful discrimination, we
    do not need to reach the question of whether carrying some local
    stations such that additional equipment (*e.g*., a second dish) is
    needed should be prohibited in all cases. As explained below,
    EchoStar's "two-dish plan" violates the anti-discrimination
    provision of Section 338(d) in at least three respects: (1) EchoStar
    does not, as required, provide access to all local television
    broadcast signals at a nondiscriminatory price; (2) EchoStar does
    not, as required, retransmit the signal of local television
    broadcast stations to subscribers on contiguous channels; and (3)
    EchoStar does not, as required, provide access to local television
    broadcast station signals in a nondiscriminatory manner on its
    on-screen program guide or menu.[^51] Further, we find that
    EchoStar's two-dish plan violates similar requirements found in
    Section 76.66(i) of the Commission's rules.[^52]

## Nondiscriminatory Price 

15. The following facts support broadcasters' contention that EchoStar's
    "two dish" plan, as implemented, violates Section 338(d)'s
    requirement that satellite carriers "provide access to \[local
    television broadcast\] station's signals at a nondiscriminatory
    price."[^53] EchoStar's "two dish" plan does not necessarily
    constitute discriminatory pricing per se, but, as implemented, the
    plan is unlawful because it discriminates against the local stations
    not carried on the first dish, in violation of the nondiscriminatory
    price requirement of Section 338(d) of the Act and of Section
    76.66(i) of the Commission's rules.[^54] When some channels are
    available only via a second dish, and subscribers must incur
    significant effort to obtain the second dish, we believe that the
    cost associated with this effort should be imputed as a component of
    the \"price\" of obtaining these channels.[^55] As described below,
    we conclude that, in fact, the \"price,\" properly defined, of
    obtaining channels via a second dish under EchoStar's two-dish plan
    is higher than the price of obtaining channels via a single
    dish.[^56]

16. EchoStar is offering all local stations in a market for \$5.99 to
    its subscribers, but fails to disclose up-front, clearly and
    conspicuously, the need for a second dish in order to have access to
    stations that have been placed on the "wing" satellites. The
    unrefuted record in this proceeding demonstrates that EchoStar is
    neither affirmatively providing the second satellite dish antenna
    nor taking the steps necessary to ensure that subscribers are fully
    aware that, by refusing a second dish, they are paying for a package
    of stations, some of which they may not receive. Therefore, under
    EchoStar's pricing scheme, consumers are paying a monthly fee for an
    incomplete service. As a further consequence, local stations are
    adversely affected, because the scope of their potential viewing
    audience is limited as a result of EchoStar's actions.[^57] The fact
    that EchoStar is claiming to offer the second dish to subscribers
    free of charge does not shield it from the anti-discrimination
    requirement if, as in this case, subscribers are not directly
    offered and promptly provided with the additional equipment needed
    to receive the entire package of local stations.[^58]

17. Confirming the record evidence, a recent review of EchoStar's
    Internet website shows that in eight markets, as of March 26, 2002,
    the web listing of local stations did not disclose that any
    "additional local channels are available." Careful examination of
    the web page displaying the television station logos for each of
    these eight markets revealed that one additional station in each
    market could be available on a wing satellite were the subscriber so
    informed and provided with a second dish.[^59] In five markets, all
    the local-into-local stations are carried on a CONUS satellite and
    thus are available using one dish.[^60] In the remaining 23 DMAs in
    which EchoStar offers local-into-local service, between two and
    thirteen local stations are available only with a second dish.[^61]
    The website description of the local stations available in these
    markets lists these stations on a second "additional local channels
    available" page, which notes that a second dish is needed, but
    provides no information on how to obtain a second dish. To date,
    there is no information on the EchoStar website disclosing that the
    second dish needed to access all local stations is available without
    charge.

18. Broadcast commenters present unrefuted evidence of misinformation
    and obfuscation with respect to the manner in which EchoStar has
    publicized and implemented its second-dish offer. EchoStar's
    asserted "good faith" publication of its offer to subscribers
    consists of a single letter (that was sent after the January 1, 2002
    statutory carriage deadline) announcing the second dish offer only
    in a footnote.[^62] The primary purpose of the letter was to
    announce "changes in the packaging and pricing of . . . DISH network
    programming," such as premium movie services and pay-per-view
    offerings.[^63] While the letter provides subscribers with explicit
    instructions on how to obtain a free pay-per-view coupon, similar
    instructions are lacking regarding the second dish offer.[^64] The
    footnote containing the "free offer" reads simply:

    Channels vary by market. Some channels may require the installation
    of additional hardware; installation available at no cost until
    3/31/02.[^65]

    While the footnote states that the installation is free until March
    31, 2002, we agree with commenters that it does not make clear that
    the "additional hardware" also is free.[^66] Further, the offer does
    not specify what kinds of additional equipment may be required.
    Given the text and format of the letter, we agree with APTS/PBS that
    "\[t\]he effect and purpose of EchoStar's letter is clear: to
    encourage the purchase of premium services by making them convenient
    and easily accessible while, at the same time, discouraging the
    purchase of additional local channels by making access to these
    channels inconvenient and practically impossible."[^67]

19. Since sending the letter to subscribers, EchoStar has not made any
    additional, serious efforts of which we are aware to publicize its
    free second dish offer. As many commenters point out, and as
    discussed above, EchoStar's website is strikingly devoid of any
    information about the second dish offer.[^68] Although EchoStar
    claims that EchoStar Chairman Charlie Ergen has gone to great
    lengths to publicize this offer in his weekly "Charlie Chat"
    show,[^69] EchoStar is unable to confirm the number of subscribers
    that have seen this program. Indeed, based on the evidence in the
    record describing the problems that consumers continue to encounter
    in obtaining accurate information from EchoStar
    representatives,[^70] this minimal effort cannot be regarded as
    providing adequate and effective information to subscribers about
    the status of their local stations and EchoStar's second dish offer.

20. EchoStar claims, despite the evidence presented by other commenters
    to the contrary, that its customer service representatives ("CSRs")
    "have been trained to help customers receive the second dish."[^71]
    Broadcasters, however, documented numerous consumer calls to
    EchoStar's CSRs that suggest that either the CSRs are
    extraordinarily misinformed or are deliberately discouraging
    consumers from obtaining a free second dish. For example, APTS/PBS
    state, "\[e\]ach time, our researchers had to raise the issue of the
    free second dish first with EchoStar customer service
    representatives, and even then, the researchers had to be aggressive
    in asserting their right to free equipment and installation."[^72]
    According to NAB/ALTV, they have received reports from stations
    indicating that EchoStar's two-dish plan is "dysfunctional and in
    chaos." They state:

    Customers calling EchoStar and seeking information about additional
    dishes are being put on hold interminably. When subscribers do get
    through, many consumer service representatives do not know about the
    supposed "plan." When subscribers call local installers, many of the
    installers have likewise never heard of the plan. When installers do
    agree to put in a second dish, they sometimes schedule the
    appointment many weeks in the future, with a threat to charge the
    customer a large fee if the customer is not present when the
    installer comes. And some subscribers are being told that EchoStar
    will provide only one receiver capable of processing signals from
    the new dish even though the household has multiple receivers.[^73]

    Similarly, Univision states: "\[S\]ubscribers are falsely told that
    particular stations are not carried in the market. When asking why a
    particular local station is not available, an alarming number of
    consumers are being told outright falsehoods, such as the stations
    asked not to be carried, or that a local Spanish-language station
    'is broadcast from Mexico' and therefore cannot be local."[^74]
    Maranatha adds that EchoStar CSRs have told interested viewers to
    contact the local station to obtain information on how to obtain the
    station's signal.[^75] Further, a potential viewer informed
    Maranatha that "he called DISH Network on January 1, 2002, and was
    told that WFMZ-TV was on 'satellite 129' and was not available to
    DISH Network subscribers."[^76]

21. Broadcasters also provide evidence to show that this problem extends
    beyond EchoStar's toll free number to the installers and retailers
    serving their customers. According to Univision, in many markets
    those attempting to sign up for all local stations were told by
    EchoStar sales personnel and dealers that there would be additional
    costs associated with the second dish ranging from \$99.00 to
    \$289.00.[^77] KSLS, Inc., the licensee of station KSCI(TV), Long
    Beach, California, detailed viewer complaints regarding EchoStar\'s
    statements that a second dish would cost \$70, or that a dish was
    free to new subscribers but that current subscribers would need to
    call and discuss their accounts.[^78] Pappas Telecasting indicates
    that its representatives were told that a second dish would cost
    "\$100 for equipment and \$69 for installation" and "\$185 for the
    equipment with installation included."[^79] HCC also details a
    consumer's experience in obtaining, and actually being billed \$200
    for, the installation of a "free" second dish.[^80] Pappas
    Telecasting asserts,

    far from making a concerted effort to educate its subscribers about
    EchoStar's second dish "offer" and to encourage subscribers to take
    advantage of it, the evidence seems to suggest that EchoStar may
    actually be inclined to deter its customers from exercising their
    option to have an additional dish installed, thereby impeding its
    customers' right to receive all local stations. In so doing,
    EchoStar seeks to avoid its statutory obligation to "carry one,
    carry all."[^81]

    Indeed, even if an appointment for free installation is successfully
    arranged, the record demonstrates significant problems associated
    with obtaining successful installation, as broadcasters allege.[^82]
    EchoStar has implemented a program that has made access to a second
    dish inconvenient and, in some instances, impossible because
    consumers are unaware or misinformed about the free second dish
    offer.

22. EchoStar claims, however, that "after a few weeks, thousands of
    subscribers have taken advantage of EchoStar's offer of a free
    dish," and in a later submission notes, "it was reported that almost
    7,000 subscribers have taken advantage of EchoStar's offer by
    requesting installation of a second dish to receive additional local
    channels."[^83] EchoStar attempts to characterize that result as a
    testament to its asserted success in advertising the free dish
    offer. The facts, however, do not support that inference. EchoStar
    is reportedly providing service to more than 6 million subscribers
    as of June 2001, 2 million of whom subscribe to local-into-local
    service. The fact that such a small percentage of subscribers have
    taken advantage of the offer seems to support, if anything,
    NAB/ALTV's and other commenters' contention that many subscribers
    remain unaware of the free dish offer or, if they are aware, have
    been reluctant to request one, given the misinformation provided by
    EchoStar and the difficulties associated with having another dish
    installed.[^84]

23. As the Commission has found, "Section 338's anti-discrimination
    language prohibits satellite carriers from implementing pricing
    schemes that effectively deter subscribers from purchasing some, but
    not all, local television signals."[^85] From the subscriber\'s
    point of view, the costs of obtaining the \"free\" dish under
    EchoStar's implementation of its two-dish plan include the time,
    trouble, and inconvenience to the subscriber to obtain the
    information concerning the need for the second dish, the procedures
    for arranging to get the second dish (including overcoming any
    misinformation), plus the time spent waiting for the second dish to
    be installed.[^86] If all local stations were offered automatically
    upon payment of the \$5.99 monthly fee, along with prompt and
    voluntary installation of the "free" additional equipment, the mere
    requirement for a second dish would not necessarily violate the
    statute, the Commission's Orders or the rules. In this case, based
    upon the record in this proceeding, EchoStar's two-dish plan imposes
    real and significant additional costs upon those subscribers who
    would access the stations on the wing slot satellites. As such,
    EchoStar's two-dish plan results in discrimination based on price of
    the type Congress and the Commission intended to prohibit.

## Placement of Local Stations on Contiguous Channels

24. Broadcasters contend that EchoStar violated Section 338(d)'s
    requirement that satellite carriers "retransmit the signal of the
    local television broadcast stations to subscribers in the stations'
    local market on contiguous channels . . . ."[^87] Similarly, we note
    that Section 76.66(i)(1) of the Commission's rules states: "No
    satellite carrier shall be required to provide the signal of a local
    television broadcast station to subscribers in that station's local
    market on any particular channel number or to provide the signals in
    any particular order, except that the satellite carrier shall
    retransmit the signal of the local television broadcast stations to
    subscribers in the stations' local market on contiguous
    channels."[^88] WLNY-TV/Golden Orange assert that EchoStar is
    transmitting from its CONUS satellites the signals of its "favored"
    local stations \-- which are largely VHF major network affiliates
    \-- on channels that are not contiguous with the channels EchoStar
    has assigned to its "disfavored" local independent stations.[^89]
    They argue that "EchoStar's CONUS satellite channel offering plainly
    is not in compliance with Section 338(d), because it includes only
    EchoStar's 'favored' select local signals and not all local signals
    on contiguous channels."[^90] EchoStar responds that it has not
    violated the contiguous channel requirement. It states that "the
    contiguous channel requirement relates to placement and presentation
    of channels on consumer's program receiver, and not to placement of
    channels on satellites."[^91] EchoStar argues that the presentation
    of all local stations to consumers in a block on the channel line-up
    satisfies the contiguous channel requirement, regardless of whether
    some stations are carried on different satellites.[^92]

25. We agree with the broadcasters that EchoStar's "two dish" plan, as
    implemented, does not satisfy the contiguous channel requirement.
    The Conference Report to the SHVIA states that "\[t\]he obligation
    to carry local stations on contiguous channels is . . . to ensure
    that satellite carriers position local stations in a way that is
    convenient and practically accessible for consumers."[^93] The
    Commission has previously stated that "the statutory directive for
    channel positioning confirms that satellite carriers are required to
    present local broadcast channels to satellite subscribers in an
    uninterrupted series."[^94] The Commission further held that "a
    satellite carrier is obligated to carry both retransmission consent
    stations and mandatory carriage stations in a block on the satellite
    carrier's channel line-up."[^95] EchoStar's "two-dish" plan violates
    the contiguous channel placement requirement of the statute and our
    rule in this respect because subscribers cannot find or tune to the
    local stations relegated to "wing slot" satellites unless and until
    the subscriber gets a second dish. As described above, the way in
    which EchoStar has implemented its plan makes it highly unlikely
    that its subscribers will even know a second dish is necessary much
    less obtain one. As some broadcast commenters explain, if a
    subscriber learned about and wanted to watch a particular program
    broadcast by a local station carried on a wing slot satellite, and
    that subscriber typed in the appropriate station's channel number on
    the remote, he or she would not be able to view the desired program
    or even get confirmation that the station exists because nothing
    would appear on the screen.[^96] In fact, EchoStar confirms that
    selecting the channel number assigned to one of the affected local
    stations results in nothing but skipping to the next channel that is
    carried on a CONUS satellite, unless the subscriber has had the
    necessary additional equipment installed.[^97] As such, EchoStar has
    failed to position these local stations "in a way that is convenient
    and practically accessible for consumers" and has failed to ensure
    that the local broadcast channels are presented in an uninterrupted
    series to its subscribers, thus violating the contiguous channel
    requirement.

## On-Screen Program Guide and Menu Treatment 

26. Broadcasters also contend that EchoStar violated Section 338(d)'s
    requirement that satellite carriers offering local-into-local
    service provide access to local television broadcast stations'
    signals "in a nondiscriminatory manner on any . . . on-screen
    program guide\[ \] or menu."[^98] They point out that while
    EchoStar's on-screen program guide provides the means for
    subscribers to access local television station signals, it does not
    inform viewers of the availability of stations that are on "wing
    slot" satellites.[^99] They assert that, as a result, there is
    simply no way that EchoStar's local-into-local subscribers would
    know about the programming offered by affected television
    stations.[^100] According to the broadcasters, because of EchoStar's
    two-dish plan, the offerings of the "favored" local stations carried
    on CONUS satellites will be readily available to subscribers merely
    through routine channel-surfing; in contrast, the consumer must know
    enough about the programming offered on the missing stations --
    which he or she has not had available -- to be motivated to obtain
    the second dish.[^101]

27. EchoStar disagrees, asserting that subscribers with a second
    satellite dish have the same access to all available local stations
    on the electronic program guide.[^102] Access to local stations,
    however, is predicated on whether subscribers have the required
    additional equipment. As EchoStar's own facts indicate, only 7,000
    of the 2 million subscribers who paid for a package of local
    stations have "request\[ed\] installation" of the second dish
    antenna.[^103] We agree with broadcast commenters that EchoStar's
    manner of carriage for certain local stations is discriminatory in
    terms of access to such stations on the on-screen program guide and
    menu.[^104]

28. The SHVIA and the Commission's rules prohibit satellite carriers
    from discriminating against local stations with regard to their
    placement on on-screen program guides and menus.[^105] If certain
    stations are to be relegated to "wing" satellites, those stations
    must be displayed on electronic program guides and listed on program
    menus in the same manner and with the same prominence and
    accessibility as stations carried on the main satellites. EchoStar's
    on-screen electronic program guide unlawfully discriminates against
    "disfavored" local signals because those stations do not appear on
    the program guide unless and until a second dish is obtained and
    installed. Indeed, EchoStar's on-screen program guide does not even
    list the affected stations and provides no disclosure that they are
    available with a second dish.[^106] Broadcast commenters note that
    if a subscriber without the additional equipment knows the channel
    number of one of these stations and clicks to it, nothing appears
    and it skips to the next channel.[^107] Broadcasters also note that
    EchoStar's program menu lists only EchoStar's "favored" local
    stations, and makes no mention of the "disfavored" stations.[^108]
    Under EchoStar's "two-dish plan," when consumers look to the
    electronic program guide, they have no way of knowing that they may
    be able to access certain must-carry stations by obtaining
    additional equipment. EchoStar acknowledges that the stations
    carried on the "wing slots" do not appear on the electronic program
    guide until after the second dish is installed and the receiver is
    adjusted accordingly. Thus, subscribers attempting to tune to all
    the local stations that they have paid for as part of a package will
    be unable to find certain local stations in some markets. Based on
    the record in this proceeding, we find that EchoStar has failed to
    provide access to such local stations' signals in a
    nondiscriminatory manner on its on-screen program guide and menu as
    required by the statute and the Commission's rules.

## Summary and Compliance Actions

29. Given the circumstances of this case and the need for immediate
    relief to affected local stations and subscribers, we require
    EchoStar to remedy the unlawful discrimination identified in this
    declaratory ruling as expeditiously as possible. We recognize there
    are various ways in which EchoStar may remedy the situation. To
    ensure that EchoStar's compliance efforts are prompt and effective,
    we are requiring that it file Compliance Reports within 30, 90 and
    150 days describing both its plan and completed actions to bring its
    carriage of broadcast stations into compliance. We believe that an
    immediate response by EchoStar to remedy the situation is warranted
    here, particularly in light of broadcasters' legitimate concerns
    about the possibility that EchoStar's "two-dish" plan might become
    permanent. In this regard, we note that EchoStar initially claimed
    that its second dish offer was merely an "interim plan" which was
    necessary to ameliorate the failure of Lockheed Martin and Loral
    Space to deliver and launch spot-beam satellites on time. Now, in
    contrast with its initial position, EchoStar indicates that the
    two-dish offer will remain in effect until "EchoStar's pending
    merger with Hughes Electronics is approved."[^109]

30. EchoStar indicates that if we do not permit it to place certain
    local stations on wing satellites, it will have no choice but to
    terminate local-into-local service to as many as one million
    subscribers.[^110] In that regard, we underscore that placing
    certain local stations on wing satellites may be permissible, but
    only insofar as such placement does not have a discriminatory
    effect.[^111] We note that the action taken here is intended to
    address the violations without resulting in a loss of service to any
    existing subscribers. We also note that, in passing the SHVIA,
    Congress recognized that more local markets might be served if
    satellite carriers were permitted to "cherry pick" certain local
    stations, but Congress chose instead the "carry-one, carry-all"
    requirement.[^112] We believe we are bound by this choice and by
    Congress's concern for the local stations that are, as EchoStar puts
    it, "less popular."

31. EchoStar must remedy the unlawful discriminatory actions described
    in this ruling. We outline here several actions EchoStar could take
    to achieve this required result. EchoStar can choose some or all of
    these approaches \-- or others not enumerated here \-- provided the
    actions result in compliance with the statute, rules and Orders,
    including this Declaratory Ruling. For example, EchoStar may move
    stations off the wing slot satellites and onto a CONUS satellite, or
    transfer all local-into-local stations in a market to a wing slot
    satellite, or take other measures that result in providing access to
    all local stations in a market without the need for additional
    equipment to access some of them.[^113]

32. The record in this proceeding indicates that EchoStar's means of
    communicating the two dish offer in a letter primarily concerning
    pay-per-view with a footnote containing a confusing reference to the
    two-dish offer was not effective to prevent the unlawful
    discrimination described above. Whatever methods EchoStar chooses to
    use to remedy its current unlawful behavior and avoid such future
    violations should ensure that the communications are effective in
    providing complete and accurate information promptly and clearly to
    all subscribers affected by its two-dish plan. For example,
    automatically providing the additional equipment to any existing or
    new subscriber to local-into-local service would likely be an
    effective remedy. Immediate and direct communication with all
    affected local-into-local subscribers that they are not receiving
    all the local stations for which they are paying unless EchoStar has
    installed the necessary additional equipment, and that EchoStar will
    provide the necessary equipment free of any charge, would also
    address the unlawful discriminatory actions.

33. EchoStar must take steps to remedy the current discriminatory
    treatment of certain local stations on its electronic program guide
    (EPG), other on-screen program guide, and menu so that they present
    a complete list of all the local channels in a nondiscriminatory
    manner. For example, the discriminatory exclusion of certain
    stations from the EPG available to every local-into-local subscriber
    must be remedied. In markets in which additional equipment is needed
    to obtain access to certain local-into-local stations, the guide or
    menu could, for example, describe the equipment necessary to obtain
    access to each station, including notification that there is no
    charge for the equipment or installation, and provide clear
    instructions on how to obtain the additional equipment. With respect
    to ensuring access to the retransmitted signals of all local
    stations on contiguous channels, one approach would be to ensure
    that when a subscriber attempts to tune to a particular channel
    number assigned to a local station, the subscriber either accesses
    the station or accesses a notification that the station is available
    with additional equipment, the equipment is available without
    charge, and the procedures to follow to obtain the equipment.
    EchoStar should also better educate its customer service
    representatives, distributors and retailers to ensure that
    subscribers and potential subscribers are given accurate and
    complete information concerning the free second dish offer. Updating
    its website with this information would also assist in remedying the
    situation.

34. To the extent that EchoStar is unable to come into compliance in
    every market immediately, EchoStar may seek a short-term waiver
    rather than terminate service in a market it is currently serving
    with local-into-local service.[^114] We would scrutinize any such
    waiver requests, however, to ensure that they are necessary, narrow,
    and limited in duration. We cannot consider or grant a waiver
    insofar as EchoStar\'s actions directly violate the statute.

35. Given our concerns about EchoStar's violations, and the severe
    impact they have on certain local stations and subscribers, EchoStar
    is required to submit a Compliance Report and Plan within 30 days
    after release of this Order. The purpose of submitting this Report
    and Plan is to describe the specific actions EchoStar has taken and
    plans to take to come into compliance with the SHVIA and the
    Commission's rules. For example, if EchoStar has remedied its
    violations by moving some local stations to different satellites,
    the Report should describe which markets and how these adjustments
    remedy the violations found herein. In addition, with respect to
    markets in which it remains necessary to obtain additional equipment
    to access some local stations, the Report should provide the number
    of subscribers as of the date of the Report who have requested a
    second dish to receive local stations, how many such antennas have
    been installed, and the average time period between a subscriber's
    inquiry concerning a second dish and successful installation. If
    EchoStar has taken steps to remedy the rule violations by
    communicating the terms of the two dish plan to current and new
    subscribers, then the Report should describe those steps and the
    means used to accomplish them (*e.g*., through prominent disclosure
    on the website, training of customer service representatives, etc.).
    In particular, the Report should describe how any local stations
    accessible only with additional equipment are presented on the
    on-screen program guides and menus.

36. EchoStar should not read the 30-day period for submitting the
    Compliance Report and Plan as an invitation for further delay in
    implementation of its carriage obligations. We expect that EchoStar
    will have taken steps necessary to remedy the unlawful
    discriminatory conduct within that period of time. EchoStar is
    required to update this Report and Plan with a second report filed
    60 days after the first report (90 days after the release of this
    Order) and a third report 60 days later (150 days after release of
    this Order). At that time, we will decide if additional Compliance
    Reports are necessary. [^115]

37. EchoStar's failure to comply with the statute, the rules and this
    Order on a timely basis, may subject it to further enforcement
    action, including forfeiture.[^116]

# ordering clauses 

38. Accordingly, **IT IS ORDERED**, pursuant to Sections 4(i), 303(r),
    and 338 of the Communications Act, as amended, 47 U.S.C. §§ 154(i),
    303(r), 338, and Sections 1.2 and 76.66(i) of the Commission's
    rules, 47 C.F.R. §§ 1.2, 76.66(i), that the Emergency Petition filed
    the National Association of Broadcasters and Association of Local
    Television Stations **IS GRANTED** to the extent indicated herein.

39. **IT IS FURTHER ORDERED THAT** EchoStar shall submit a Compliance
    Report and Plan, describing the specific actions EchoStar is taking
    and plans to take to come into compliance as outlined in this
    Declaratory Ruling, which shall be filed with the Commission within
    thirty (30) days after release of this Order. EchoStar is also
    required to update this report with a second report filed 60 days
    after the first report (90 days after the release of this Order) and
    a third report 60 days later (150 days after release of this Order).
    The reports should reference "CSR-5865-Z," the file number assigned
    to this proceeding.

40. This action is taken by the Chief, Media Bureau, pursuant to
    authority delegated by Section 0.283 of the Commission's rules, 47
    C.F.R. § 0.283.

    FEDERAL COMMUNICATIONS COMMISSION

    W. Kenneth Ferree Chief, Media Bureau

    **APPENDIX: List of Parties**

**Comments:**

African-American Broadcasting Company of Bellevue, Inc.

Arizona State University, Benedek Broadcasting Corporation, Draper
Communications, Inc., and LIN

Television Corporation (joint comments) (collectively "Arizona State
University")

Association of Public Television Stations and Public Broadcasting
Service ("APTS/PBS")

Board of Education of the City of Atlanta

Brunson Communications, Inc.

Cornerstone Television, Inc.

EchoStar Satellite Corporation ("EchoStar")

Hardy, Carey & Chautin, LLP, LeSea Broadcasting Corporation, Christian
Television Network, Inc.,

Carolina Christian Broadcasting, Inc. (joint comments) (collectively
"HCC")

Jovon Broadcasting Corporation

KSLS, Inc.

The Long Island Educational Television Council

Maranatha Broadcasting Company, Inc.

Mark Holtz

National Association of Broadcasters and Association of Local Television
Stations ("NAB/ALTV")

North Pacific International Television, Inc. ("NPIT")

Pappas Telecasting Companies ("Pappas Telecasting")

Paxson Communications Corporation

Rancho Palos Verdes Broadcasters, Inc.; Costa de Oro Television, Inc.;
KVMD Acquisition Corp.;

> and Entravision Holdings LLC (joint comments) (collectively "Rancho
> Palos Verdes Broadcasters")

Roberts Broadcasting Company and Roberts Broadcasting Company of Denver
(joint comments)

Satellite Broadcasting and Communications Association ("SBCA")

State Broadcaster Associations (joint comments of California
Broadcasters Association, Colorado

> Broadcasters Association, Illinois Broadcasters Association,
> Massachusetts Broadcasters Association, Texas Broadcasters
> Association, *et al*.) ("State Broadcaster Associations")

Telemundo Group, Inc.

Univision Communications Inc.

William H. Cummins

WLNY-TV Inc. and Golden Orange Broadcasting Co. (joint comments)
("WLNY-TV/Golden Orange")

**Replies:**

Association of Public Television Stations and Public Broadcasting
Service

EchoStar Satellite Corporation

Maranatha Broadcasting Company, Inc.

National Association of Broadcasters

Paxson Communications Corporation

Rancho Palos Verdes Broadcasters, Inc., *et al*.

Telemundo Group, Inc.

Univision Communications Inc.

WLNY-TV Inc. and Golden Orange Broadcasting Co.

**Supplemental Filings:**

Brunson

EchoStar

National Association of Broadcasters

State Broadcaster Associations

WLNY-TV, Inc. and Global Orange Broadcasting Co.

[^1]: For administrative convenience and to ensure that interested
    parties are able to obtain copies of documents filed in this
    expedited proceeding, we initially required parties to submit their
    comments and replies referencing CS Docket No. 00-96. On the date on
    which this document is released, any future filings related to this
    proceeding should be filed referencing number "CSR-5865-Z" to ensure
    that we are able to track future filings in this proceeding.

[^2]: *See* Emergency Petition of National Association of Broadcasters
    and Association of Local Television Stations to Modify or Clarify
    Rule, CS Docket No. 00-96 (filed Jan. 4, 2002) (hereinafter
    "NAB/ALTV Emergency Petition").

[^3]: EchoStar is one of four companies licensed by the Commission to
    provide DBS service, which is a nationally distributed subscription
    video service that delivers programming via satellite to a small
    parabolic "dish" antenna located at the viewer's home. Of the four
    companies, only three (*i.e*., EchoStar, DirecTV, and Dominion) are
    actually providing service. *See Annual Assessment of the Status of
    Competition in the Market for the Delivery of Video Programming*,
    Eighth Annual Report, 17 FCC Rcd 1244, 1271-73 (2002).

[^4]: In our preliminary review of the Petition, we found that the
    issues presented warranted speedy consideration and resolution to
    ensure proper implementation of the SHVIA requirements. Accordingly,
    we immediately issued a Public Notice regarding the Petition and
    established an expedited pleading cycle for the submission of
    comments and replies by interested parties on the substantive issues
    raised by NAB and ALTV. *See* Public Notice, "National Association
    of Broadcasters and Association of Local Television Stations Seek
    Modification or Clarification of Broadcast Carriage Rules for
    Satellite Carriers," DA 02-31 (rel. Jan. 8, 2002). While we believe
    that the issues raised are narrowly focused and may be susceptible
    of resolution by means of a declaratory ruling without the need for
    further rulemaking, we nevertheless asked interested parties to
    comment on whether the issues raised are appropriate for resolution
    by declaratory ruling, other means of clarification, or initiation
    of a rulemaking proceeding.

[^5]: We note that this ruling does not constrain the Commission from
    concluding in the future that rule revision is warranted if, for
    example, there are no means by which a satellite carrier could
    require subscribers to obtain additional equipment to access some
    but not all local stations in a market without a discriminatory
    effect as prohibited by the SHVIA.

[^6]: *See* 47 C.F.R. § 1.2 ("The Commission may . . . on motion or on
    its own motion issue a declaratory ruling terminating a controversy
    or removing uncertainty.\"). There is broad support from the
    commenters on our authority to resolve the issues raised in this
    emergency proceeding by declaratory ruling or clarification. *See,
    e.g*., State Broadcasters Association Comments at 9-10 (rulemaking
    is unnecessary; Commission should issue a declaratory ruling);
    Brunson Communications Comments at 1 (urges clarification of the
    rules); HCC Comments at 17 (issues presented may be resolved by
    declaratory ruling); Univision Comments at 1 n.2 (declaratory ruling
    ensures an expeditious resolution of the issues); WLNY-TV/Golden
    Orange Comments at 7 (further rulemaking is not needed to remedy
    EchoStar's "willful violations" of existing federal law). A list of
    commenting parties (and their abbreviated names) appears in Appendix
    A of this Order.

[^7]: *See* 47 U.S.C. § 338(d); 47 C.F.R. § 76.66(i).

[^8]: *See* 17 U.S.C. § 122(a).

[^9]: Until January 1, 2002, satellite carriers were granted a
    royalty-free copyright license to retransmit television broadcast
    signals on a station-by-station basis, subject to obtaining a
    broadcaster's retransmission consent. *See* Joint Explanatory
    Statement of the Committee of Conference on H.R. 1554, 106^th^
    Cong., H.R. Conf. Rep. No. 106-464, at 100 (1999) (hereinafter
    "*Conference Report*").

[^10]: The obligations imposed by the carry one, carry all rule are more
    limited than the name implies. Satellite carriers, for example, are
    not required to carry local commercial stations whose signals
    substantially duplicate those of another station in the same market.
    *See* 47 U.S.C. § 338(c)(1). Additionally, a broadcast station
    seeking mandatory carriage must deliver a "good quality signal" in
    order to be entitled to carriage. *See id*. § 338(b)(1).

[^11]: *See* *Satellite Broadcasting and Communications Ass'n v. FCC*,
    275 F.3d 337, 350 (4^th^ Cir. 2002) ("*SBCA*") (citations omitted).

[^12]: *Conference Report*, at 100.

[^13]: *See* note 11, *supra*. On March 7, 2002, EchoStar and the
    Satellite Broadcasting and Communications Association filed a
    petition for a writ of certiorari with the United States Supreme
    Court to review the judgment of the Fourth Circuit in the *SBCA v.
    FCC* case.

[^14]: *See Implementation of the Satellite Home Viewer Improvement Act
    of 1999: Broadcast Signal Carriage Issues; Retransmission Consent
    Issues*, 16 FCC Rcd 1918, 1919 (2000) ("*Report and Order*").

[^15]: 47 U.S.C. § 338(d).

[^16]: 16 FCC Rcd at 1961.

[^17]: 47 C.F.R. § 76.66(i)(4).

[^18]: *See Implementation of the Satellite Home Viewer Improvement Act
    of 1999: Broadcast Signal Carriage Issues*, Order on
    Reconsideration, 16 FCC Rcd 16544 (2001) ("*Order on
    Reconsideration*").

[^19]: *Id*. at 16566.

[^20]: *Id*.

[^21]: *See* EchoStar Opposition at 1-2; NAB/ALTV Emergency Petition,
    Attachment ("EchoStar Subs Will Need Second Dish for Some New Local
    Stations," Satellite Business News, Fax Update, Vol. 7 No. 139,
    December 17, 2001). *See also* EchoStar's website *at*
    www.dishnetwork.com.

[^22]: *See EchoStar Satellite Corporation, Application for Minor
    Modification of Direct Broadcast Satellite Authorization Launch and
    Operating Authority for EchoStar* 7, DA 02-118, Order and
    Authorization (IB Sat. & Radiocomm. Div. rel. Jan. 16, 2002) (The
    Commission granted EchoStar authority to launch and operate EchoStar
    7, and co-locate it with EchoStar's existing satellites at 119°
    W.L.). EchoStar publicly announced the successful launch of EchoStar
    7 on February 21, 2002.

[^23]: *See* NAB/ALTV Emergency Petition, Attachment ("Ergen Tries to
    Clear Air with NAB on New Local Plan," Satellite Business News, Fax
    Update, Vol. 7 No. 146, January 4, 2002). *See also* APTS/PBS
    Comments at 4 & Appendix A (of the 64 public television stations
    carried, 27 are relegated to "wing" satellites).

[^24]: *See* EchoStar's website *at*
    [www.](http://www.echostar.com/)dishnetwork.com.

[^25]: Calculations based upon EchoStar's website show that a total of
    112 local stations require a second dish. *See*
    http://www.dishnetwork.com/content/programming/locals/index.shtml.

[^26]: *See* NAB/ALTV Emergency Petition, Attachment ("EchoStar Subs
    Will Need Dish for Some New Local Stations," Satellite Business
    News, Fax Update, Vol. 7 No. 139, December 17, 2001) (quoting
    EchoStar Executive Vice President Jim DeFranco as saying: "If the
    customer wants the less popular channels, they will need a second
    dish.").

[^27]: EchoStar Opposition at 1.

[^28]: *Id*.

[^29]: *Id*. at 2.

[^30]: *See id*.

[^31]: *Id*.

[^32]: NAB/ALTV Emergency Petition at 4.

[^33]: *Id*. at 5-6 (emphasis in original omitted).

[^34]: NAB/ALTV Comments at 2.

[^35]: *See* Appendix A (all the commenting parties on this list support
    the Petition, except for EchoStar, SBCA, and individual commenters
    William Cummins and Mark Holtz). Some of the commenters in the
    pending EchoStar/DirecTV merger proceeding, in CS Docket No. 01-348,
    also discussed this issue. *See* Comments of the following parties
    in CS Docket No. 01-348: APTS/PBS; Brunson Communications; Joint
    Comments of Carolina Christian Television, Inc. and LeSea
    Broadcasting Corp.; Eagle III Broadcasting, LLC; Joint Comments of
    Family Stations, Inc. and North Pacific International Television,
    Inc.; Johnson Broadcasting, Inc.; Pappas Telecasting Companies;
    Paxson Communications Corp.; and Univision Communications, Inc.

[^36]: *E.g*., Rancho Palos Verdes Broadcasters Comments at i; Roberts
    Broadcasting Company Comments at 1 ("Placing 'disfavored' local
    stations on a satellite that cannot be seamlessly received by
    subscribers of the 'favored' local stations . . . constitutes
    blatant discrimination against the 'disfavored' local stations.");
    KSLS, Inc. Comments at 1 ("EchoStar's conduct \[is\]
    discriminatory."); APTS/PBS Comments at 6 (EchoStar's "practice is
    fundamentally discriminatory and violates SHVIA"); Maranatha
    Comments at 4-11 (EchoStar has discriminated against independent
    local stations and in favor of network-affiliated stations by
    isolating the local stations on a separate satellite and erecting
    barriers to access to those signals by EchoStar customers); Long
    Island Educational Television Council Comments at 1-2 (EchoStar has
    "put a grossly disproportionate number of public television
    must-carry signals in a secondary service.").

[^37]: *E.g*., Arizona State University Comments at 3 (EchoStar
    disclosed its two-dish arrangement only a couple of weeks before the
    SHVIA carriage requirements became effective, even though EchoStar
    "knew months before that its channel capacity could not accommodate
    all of the stations it would need to carry."); Telemundo Comments at
    6 (EchoStar could have and should have remedied the problem by
    shifting to its "wingbirds" programming channels that do not have
    statutory carriage rights, such as pay-per-view channels.); Rancho
    Palos Verdes Broadcasters Comments at 9 ("EchoStar conveniently
    ignores the fact that it can resolve any legitimate channel capacity
    problem by shifting any of a number of programming channels that are
    not at all required to be carried by the Act.").

[^38]: *See, e.g*., NAB/ALTV Emergency Petition at 7.

[^39]: *See, e.g*., Pappas Telecasting Comments at 4.

[^40]: *See, e.g*., KSLS, Inc. Comments at 2-3; Univision Comments at 3.

[^41]: *See, e.g*., APTS/PBS Reply Comments at 6.

[^42]: *See* NAB/ALTV Emergency Petition at 8. *See also* Rancho Palos
    Verdes Broadcasters Comments at 5; APTS/PBS Comments at 6 ("It
    appears, for example, that EchoStar has not widely publicized its
    'offer' to give consumers a second dish for free. Moreover, even if
    a consumer is somehow made aware of the 'offer,' obtaining the
    promised services is likely to be extremely inconvenient and
    difficult."). Regarding, physical impediments to obtaining a
    station's signal, Univision notes:

    > According to the program provided on EchoStar's website for
    > calculating the azimuth and angle of elevation for the
    > installation of a new dish, the angle of elevation to secondary
    > satellites is almost always significantly lower than the angle of
    > elevation to the primary satellites. For example, in the Dallas,
    > Texas market, where Univision station KUVN(TV) is carried on a
    > secondary satellite, the angle of elevation above horizontal for
    > the primary satellite is 49 degrees, whereas the angle of
    > elevation for the secondary satellite is a meager 24 degrees. As a
    > result, even subscribers willing to install a second dish to
    > receive signals from a secondary satellite will often discover
    > that trees, buildings, or other obstacles that do not block a
    > subscriber's line of sight to the primary satellites will
    > absolutely block line of sight to the far-lower-in-the-sky
    > secondary satellites.

    Univision Comments at 11. *See also* Cornerstone Television Comments
    at 2 ("Some viewers have stated that they simply do not wish to have
    another dish installed on their homes for aesthetic reasons or
    because of the inconvenience involved. In at least one case, a
    viewer complained that a technician dispatched by EchoStar to his
    single family home was unable to effect service at the angle
    required to receive signals from the secondary satellite due to
    physical obstructions.").

[^43]: NAB/ALTV Emergency Petition at 12. *See* Maranatha Comments at
    15-16 (proposing similar measures).

[^44]: NAB/ALTV Emergency Petition at 12.

[^45]: *See id.* at 14 & n.15.

[^46]: *Id*. at 13-14.

[^47]: *See* Univision Comments at 12-13; WLNY-TV/Golden Orange Reply at
    4

[^48]: *See* APTS/PBS Comments at 9-10.

[^49]: *See* EchoStar Opposition at 6-7.

[^50]: *See Report and Order*, 16 FCC Rcd at 1959-61; *Order on
    Reconsideration*, 16 FCC Rcd at 16563-64.

[^51]: 47 U.S.C. § 338(d). *See, e.g*., Univision Reply Comments at 5-6;
    Rancho Palos Verdes Broadcasters Comments at 11.

[^52]: *See* 47 C.F.R. § 76.66(i).

[^53]: 47 U.S.C. § 338(d).

[^54]: *See* 47 C.F.R. § 76.66(i).

[^55]: *See Order on Reconsideration*, 16 FCC Rcd at 16568 ("The pricing
    should be based on relevant economic factors applied in a
    nondiscriminatory fashion that does not result in discriminatory
    treatment of any station or stations.").

[^56]: EchoStar charges \$5.99 per month for a local station package, so
    the relevant prices to compare would be as follows. For channels
    accessed via the subscriber\'s original dish, the price would be
    \$5.99 divided by the number of channels available via the original
    dish. For channels accessed via the new second dish, the price would
    be \$5.99 plus the amortized monthly cost of obtaining the second
    dish, divided by the total number of local channels offered.

[^57]: North Pacific International Television, Inc. (NPIT), licensee of
    Station KHCV(TV), Seattle, Washington, for example, explains that
    KHCV carries a significant amount of commercial matter for which it
    is compensated based on the number of cable television and direct
    broadcast satellite subscribers who are able to receive the
    station's signal, without regard to actual audience ratings. *See*
    NPIT Comments at 2. *See also* Long Island Educational Television
    Council Comments at 2 (The relegation of Station WLIW "to a
    decidedly inferior tier of carriage obviously hurts the station,
    which exists to provide service to the community and which relies in
    large part on memberships for financial support.").

    Many broadcasters also point out that EchoStar surely knows that its
    discriminatory carriage decision will harm the "disfavored"
    stations, given EchoStar's own experience regarding stations on
    "wing slots." *See, e.g*., Paxson Comments at 6; Telemundo Comments
    at 4. In this regard, NAB/ALTV note that EchoStar, in 1998 and 1999,
    offered local stations (including the most heavily-watched stations)
    in several markets, but on its "wing slot" satellites requiring a
    second dish, and that EchoStar found very few takers, because the
    two-dish solution was so unattractive to consumers. *See* NAB/ALTV
    Emergency Petition at 7 (citing EchoStar Satellite Corporation,
    Statement of Account for Secondary Transmissions by Satellite
    Carriers for Private Home Viewing (filed with U.S. Copyright Office
    on July 27, 1999)).

[^58]: In Los Angeles, New York, Philadelphia, and San Francisco,
    roughly half of the local stations are accessible only if a second
    dish is installed. Thus, subscribers paying \$5.99 a month for 18
    stations in San Francisco, in fact receive only 8 local stations
    unless they actively pursue EchoStar for information and
    installation of a second dish.

[^59]: *See*
    <http://www.dishnetwork.com/content/programming/locals/index.shtml>
    (March 26, 2002). The markets in which the possible availability of
    an additional station was not disclosed are: Atlanta, GA; Cleveland,
    OH; Detroit, MI; Kansas City; Minneapolis/St. Paul; Pittsburgh, PA;
    Raleigh/Durham; and Sacramento, CA. As of March 31, 2002, it appears
    that EchoStar has added the reference to "additional local stations
    available" in these markets.

[^60]: *See id.* (*i.e*., Austin, TX; Birmingham, AL; Cincinnati, OH;
    Portland, OR; and San Diego, CA).

[^61]: Fifteen of the markets list two, three, or four stations
    available only with a second dish; Los Angeles and San Francisco
    have ten or more on the second dish, which outnumber the stations
    available on the first dish. *See id.*

[^62]: *See* APTS/PBS Reply at 5-7. *See also* WLNY-TV/Golden Orange
    Comments, Attachment B (providing copy of EchoStar letter to
    subscribers ("EchoStar Subscriber Letter")).

[^63]: WLNY-TV/Golden Orange Comments, Attachment B (EchoStar Subscriber
    Letter).

[^64]: *See id.*

[^65]: *Id.*

[^66]: EchoStar has not publicly announced the terms for installation of
    the second dish after March 31, 2002. In an ex parte meeting with
    Commission staff on February 8, 2002, EchoStar explained that this
    deadline was intended as a "marketing device."

[^67]: APTS/PBS Reply at 6.

[^68]: NAB/ALTV, in its reply (at 5-6), also contend:

    > \[EchoStar's\] web site now reveals less than it did a few weeks
    > ago about the status of the stations that it has relegated to a
    > second dish. When one clicks on "Washington, D.C.," for example, a
    > page appears that lists only the stations that are carried on
    > EchoStar's CONUS satellites. At the bottom of that page appears
    > the phrase "Additional Local Channels Available." Only by clicking
    > on that link can one learn that there are additional stations that
    > have been placed in EchoStar's second-dish quarantine. And even
    > there is no mention whatsoever of the supposed "free offer" to
    > purchase and install dishes.

[^69]: EchoStar Opposition at 11.

[^70]: *See* Arizona State University Comments at 4-7 (Subscribers have
    reported that EchoStar's CSRs are not knowledgeable about the offer,
    that installations often are not scheduled in a timely manner, and
    that EchoStar will provide only one set-top box capable of
    processing signals from the second dish, even if the consumer
    requires more than one.); WLNY-TV/Golden Orange Comments at 7
    ("\[F\]ewer than one percent of EchoStar's customers currently have,
    have sought or even know about the second receive dish that is
    necessary to receive the 'wing slot' satellite transmissions of
    EchoStar's 'disfavored' local broadcast signals."); Brunson Comments
    at 9-10 ("untold numbers" of Philadelphia residents experienced
    problems in obtaining its signal through the EchoStar system);
    Maranatha Comments at i (Although EchoStar has stated that the
    additional dish will be provided to its customers "free of charge,"
    in fact, in many cases, EchoStar does not disclose its "free" offer
    to its customers or advise them of EchoStar's responsibility for the
    installation of the additional dish or replacement of existing
    equipment.); State Broadcasters Associations Comments at 7
    ("\[W\]hatever incentive may minimally exist under EchoStar's scheme
    is essentially eliminated where, as here, EchoStar raises
    administrative hurdles frustrating subscribers' attempts to obtain
    additional equipment.").

[^71]: EchoStar Opposition at 11.

[^72]: APTS/PBS Comments at 6. *See* Brunson Comments at 8-9 (describing
    EchoStar's failure to advertise and the difficulties experienced by
    consumers in obtaining service).

[^73]: NAB/ALTV Emergency Petition at 10-11. *See id*. at 11 n.12
    (quoting Internet chat discussions complaining about EchoStar CSRs).
    Rancho Palos Verdes Broadcasters Communications (Comments at 11)
    add:

    > As another example, management at KLUZ, Albuquerque, NM, reports
    > that EchoStar customer service representatives tell callers that
    > subscribers will need to pay an additional Six Dollars per month
    > to be able to receive the KLUZ signal via the second dish, with
    > the rest of the local Stations in the Albuquerque DMA already
    > carried on the main dish. Thus, while EchoStar may (or may not)
    > pay for the second dish \-- as it has pledged \-- it appears that
    > in at least one market EchoStar plans to charge an additional
    > monthly fee for use of the second dish.

[^74]: Univision Reply at 10.

[^75]: *See* Maranatha Comments at 6 ("'Marie' in Easton, PA, called
    WFMZ-TV at the suggestion of an EchoStar customer service
    representative. She says she was told that, to watch WFMZ-TV, she
    would need new equipment, including a new special receiver, but that
    the CSR 'hasn't seen one yet.' Marie was told to contact WFMZ-TV; as
    of January 9, 2002, more than 70 people had telephoned \[Maranatha\]
    asking how to view WFMZ-TV on the EchoStar satellite.").

[^76]: *Id.*

[^77]: *See* Univision Comments at 14 and associated Declarations.

[^78]: *See* KSLS, Inc. Comments at 3.

[^79]: Pappas Telecasting Comments at 4.

[^80]: *See* HCC Comments at 14.

[^81]: Pappas Telecasting Comments at 5.

[^82]: *See, e.g*., APTS/PBS Reply at 8-9; HCC Comments at 13-14
    (describing problems associated with actual installation, including
    multiple installation visits and erroneous billing).

[^83]: EchoStar Ex Parte Letter, CS Docket No. 00-96 (filed Feb. 12,
    2002), at 2.

[^84]: *See* NAB/ALTV Emergency Petition at 8. *See also* Rancho Palos
    Verdes Broadcasters Comments at 5; APTS/PBS Comments at 6; Univision
    Comments at 11.

[^85]: *Report and Order*, 16 FCC Rcd at 1960.

[^86]: That cost could be calculated by estimating the additional amount
    of time the average subscriber is required to expend to obtain the
    second dish, value it in dollars, with reference to an average
    hourly wage or salary, and convert it into a monthly \"surcharge\"
    on the subscription price. The value of time is usually measured by
    economists in terms of the "opportunity cost," namely what else one
    might have been doing with the time. One possible opportunity cost
    is to spend more time working. This opportunity cost is often
    approximated by the person's wage rate. *See* F. Thomas Juster &
    Frank Stafford, *The Allocation of Time: Empirical Findings,
    Behavioral Models, and Problems of Measurement*, XXIX Journal of
    Economic Literature 471, 504-507 (June 1991) (recognizing the value
    of time based on the production of market goods and services,
    household (non-market) goods and services, leisure, personal care,
    and biological maintenance and determined jointly by market wage
    rates, household production technology, and the preferences of
    household members in the way their time is used, taking into account
    "the value of the foregone alternative"). *See also* Gary S. Becker,
    *A Theory of the Allocation of Time*, Economic Journal, at 493-517
    (Sept. 1965).

[^87]: 47 U.S.C. § 338(d).

[^88]: 47 C.F.R. § 77.66(i)(1). *See Report and Order*, 16 FCC Rcd at
    1957-58.

[^89]: *See* WLNY-TV/Golden Orange Comments at 4.

[^90]: *Id*. at 4-5.

[^91]: EchoStar Reply at 5.

[^92]: *Id*. at 6.

[^93]: *Conference Report*, at 100.

[^94]: *Report and Order*, 16 FCC Rcd at 1957.

[^95]: *Id*. at 1958.

[^96]: *See, e.g*., Roberts Broadcasting Company Comments at 2; Jovon
    Broadcasting Comments at 2; WLNY-TV/Golden Orange Comments at 4-5.

[^97]: During an ex parte meeting on February 8, 2002, with Commission
    staff, EchoStar acknowledged that selecting the channel number
    assigned to one of these stations results in nothing but skipping to
    the next channel that is carried on a CONUS satellite.

[^98]: 47 U.S.C. § 338(d).

[^99]: *See, e.g*., Maranatha Comments at 9-10; HCC Comments at 4;
    Paxson Comments at 5.

[^100]: *See* Roberts Broadcasting Company at 2. *See also* Jovon
    Broadcasting Comments at 2; Telemundo Comments at 3 ("Few
    subscribers will know that the Spanish-language stations are
    available because \[EchoStar's\] on-screen programming guide do not
    include those stations.").

[^101]: *See* NAB/ALTV Emergency Petition at 7-8.

[^102]: *See* EchoStar February 12, 2002 Ex Parte Letter, at Attachment
    A.

[^103]: *Id*. at 2. EchoStar did not describe how many installations it
    had completed for the 7,000 subscribers who had requested
    installation of a second dish. EchoStar's Ex Parte submission also
    indicates that 400,000 of EchoStar's six million subscribers have a
    second dish "in order to access foreign language and high-definition
    programming" that are available on its wing satellites. Such
    subscribers would be able to receive any local-into-local stations
    that are also, coincidentally, available through use of that second
    dish, but EchoStar did not indicate how many (if any) of those
    customers were, in fact, local-into-local subscribers. *See id*.

[^104]: Some commenters, such as WLNY-TV/Golden Orange, further contend
    that EchoStar's relegation of some local stations to carriage on
    wing satellites from which signal reception is possible only by
    means of a second receive dish also violates Section 338(d)'s
    prohibition of discriminatory treatment with respect to signal
    availability on navigation devices. *See, e.g*., WLNY-TV/Golden
    Orange Comments at 2-3. They argue that because a satellite dish
    antenna is equipment used by consumers to access multichannel video
    programming, it can be said to function as a navigation device,
    particularly when considered in conjunction with the receiver, which
    must also be adjusted to accommodate those stations relegated to the
    second dish. We need not reach the question of whether a satellite
    dish used in this context is a navigational device, since we find
    that EchoStar has violated the nondiscrimination provision of
    Section 338(d) in other respects. For the same reason, we need not
    pass on some broadcasters' argument that EchoStar's two-dish plan
    discriminates against some local stations in other respects (*e.g*.,
    signal quality). *See, e.g*., APTS/PBS Reply at 13; Univision
    Comments at 11; WLNY-TV/Golden Orange Comments at 6.

[^105]: *See* 47 U.S.C. § 338(d); 47 C.F.R. § 76.66(i)(5) ("All
    television stations carried under mandatory carriage, in a
    particular market, shall be presented to subscribers in the same
    manner as television stations that elected retransmission consent,
    in that same market, on any navigational device, on-screen program
    guide, or menu provided by the satellite carrier.").

[^106]: *See* Maranatha Comments at 11 ("nothing on the EchoStar program
    guide advises subscribers of the availability of WFMZ-TV or other
    Philadelphia stations or how subscribers may access those signals").
    *See also* Jovon Broadcasting Comments at 2 ("WJYS(TV) does not
    appear on the on-screen electronic programming guide that depicts
    the local affiliates of the major networks"); Paxson Comments at 5
    ("EchoStar subscribers . . . cannot watch the disfavored stations or
    even view the programming in the EPGs unless the subscriber first
    contacts EchoStar, schedules an installation appointment, wait weeks
    or more for the installers to arrive, and have a second dish and new
    set-top box or boxes installed (if such installation is even
    practical and permitted).").

[^107]: *E.g*., Paxson Comments at 5; Maranatha Comments at 9-10. *See*
    note 97, *supra*.

[^108]: *See, e.g*., Maranatha Comments at 10; Roberts Broadcasting
    Company Comments at 2. EchoStar's website menu of local stations
    available in each market is similarly incomplete and discriminatory
    with respect to the stations not carried on a CONUS satellite. *See*
    paragraph 17 (discussion of extent of EchoStar's website
    information) and notes 58-60, *supra*.

[^109]: EchoStar Opposition at 2.

[^110]: *See* *id*. ("EchoStar faced a dilemma in which it would be
    forced to take down local service in multiple markets,
    disenfranchising as many as one million subscribers if it could not
    quickly develop another means of complying with the must carry law,
    utilizing all of EchoStar's orbital locations.").

[^111]: As noted above, in this proceeding we are not deciding whether,
    as a practical matter, requiring additional equipment for some but
    not all of the local stations in a market is inherently
    discriminatory no matter how conscientiously implemented. *See* note
    5, *supra.*

[^112]: *See SBCA*, 275 F.3d at 363-64.

[^113]: EchoStar has already received Commission authorization to
    operate and launch EchoStar 7, which EchoStar has successfully
    launched. *See* note 22, *supra*. Further, we understand that
    EchoStar is planning to file an application for authorization to
    launch EchoStar 8, and that both EchoStar 7 and EchoStar 8 will
    include spot beams to provide local-into-local service.

[^114]: A party seeking a waiver must meet the requirements of Section
    1.3 of the Commission's rules by demonstrating good cause, lack of
    other reasonable alternatives, and compliance with general
    requirements for granting waivers. *See* 47 C.F.R. § 1.3. *See also
    Northeast Cellular Co. v. FCC*, 897 F.2d 1164, 1166 (D.C. Cir.
    1990); *WAIT Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir. 1969),
    *cert. denied*, 409 U.S. 1027 (1972).

[^115]: As some broadcasters contend, the relegation of some stations to
    "second dish" status is arguably tantamount to not being carried at
    all if such stations are otherwise rendered unavailable because of
    the inability of subscribers to obtain the station's signal. We note
    that we have received several must carry complaints on this basis,
    and we will continue to review those claims and address them
    separately. If we find that EchoStar's actions in light of this
    Ruling have not remedied the violations, we can develop and require
    appropriate specific remedial action pursuant to Section 338(f)(3).
    *See* 47 U.S.C. § 338(f)(3). *See also* 47 C.F.R. § 76.66(m)(5).

[^116]: EchoStar has previously been fined by the Commission for rule
    violations and admonished for its "disingenuous" behavior and lack
    of candor. In June 1998, the Commission fined EchoStar, and its
    subsidiary Directsat, the maximum forfeiture amount permitted under
    the Commission's rules for operating satellites from non-authorized
    locations. *See In the Matter of EchoStar Satellite Corporation*,
    Notice of Apparent Liability, 13 FCC Rcd 16510 (1998) ("EchoStar
    Forfeiture NAL"); *In the Matter of Directsat Corporation*, Notice
    of Apparent Liability, 13 FCC Rcd 16505 (1998). The FCC justified
    the forfeiture amount based on EchoStar's degree of misconduct, lack
    of voluntary disclosure and continuing violation of the Commission's
    rules. In November 1999, EchoStar tried to disregard its public
    interest programming requirements by placing all of its public
    interest programming on secondary satellites in violation of the
    Commission's DBS rules. *See* *American Distance Education
    Consortium Request for an Expedited Declaratory Ruling and Informal
    Complaint*, Declaratory Ruling and Order, 14 FCC Rcd 19976 (1999).
    In this instance, the Commission assessed a forfeiture against
    EchoStar, finding that it had willfully violated the Communications
    Act and the Commission's rules, that it had been "disingenuous" in
    its legal interpretations, and that none of the circumstances
    EchoStar presented supported mitigation of the forfeiture. *In the
    Matter of EchoStar Satellite Corporation, Notice of Apparent
    Liability for Forfeiture*, 15 FCC Rcd 5557, 5558-59 (EB 2000). In
    August 2001, the Commission found that "EchoStar failed in its duty
    of candor" by withholding information from the Commission. *See
    EchoStar Satellite Corporation v. Young Broadcasting, Inc*.,
    Memorandum Opinion and Order, 16 FCC Rcd 15070, 15075 (CSB 2001).