The DISH Network satellite television provider lost a free speech argument when the 9th U.S. Circuit Court of Appeals Tuesday upheld the ruling of a federal judge in Las Vegas.
DISH Network, which has 14.1 million subscribers, sought a preliminary injunction against Federal Communications Commission enforcement of the Satellite Television Extension and Localism Act of 2010. DISH Network objected to a provision that accelerates the timetable under which satellite providers that carry local stations in high-definition format must also carry "qualified noncommercial educational television stations" in HD.
DISH Network argued that the provision violates its free speech rights under the First Amendment because it interferes with the network's editorial discretion and judgment, forcing it to delay offering high-definition commercial programming to certain markets. According to court records, the company argued that the delay forces its subscribers to receive Public Broadcasting Service programs in HD before commercial programs, even though they "prefer watching the World Cup and American Idol in vivid colors over Jim Lehrer and Elmo."
But U.S. District Judge James Mahan denied DISH Network's motion for a preliminary injunction and the Circuit Court upheld that ruling, determining that the network failed to prove it was likely to succeed in court on its arguments.
As Circuit Judge Richard Tallman wrote: "Congress determined that by forcing public broadcasting stations to the back of the HD priority line, DISH was jeopardizing public television's ability to compete with commercial television and thereby threatening the right of consumers 'to receive federally funded programming broadcast by PBS.'"