DISH Network Corp. v. FCC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DISH NETWORK CORPORATION; DISH 

NETWORK, L.L.C.,

Plaintiffs-Appellants, No. 10-16666

v. D.C. No.

2:10-cv-01075-JCM-

FEDERAL COMMUNICATIONS

COMMISSION; JULIUS GENACHOWSKI;  PAL

MICHAEL J. COPPS; ROBERT M. ORDER AND

MCDOWELL; MIGNON CLYBURN; AMENDED

MEREDITH ATTWELL-BAKER; UNITED OPINION

STATES OF AMERICA,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

January 13, 2011—San Francisco, California

Filed February 24, 2011

Amended August 9, 2011

Before: J. Clifford Wallace, Barry G. Silverman, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

10419

10422 DISH NETWORK CORP. v. FCC

COUNSEL

Courtney J. Linn, Orrick, Herrington & Sutcliffe LLP, Sacra-

mento, California; E. Joshua Rosenkranz (argued), Orrick,

Herrington & Sutcliffe, LLP, New York, New York for

plaintiffs-appellants DISH Network Corporation and DISH

Network, L.L.C.

Tony West, Assistant Attorney General; Daniel G. Bogden,

United States Attorney; Mark B. Stern (argued) and Dina B.

Mishra, Department of Justice, Washington, D.C. for

defendants-appellees Federal Communications Commission,

Julius Genachowski, Michael J. Copps, Robert M. McDowell,

Mignon Clyburn, Meredith Attwell-Baker, United States of

America.

ORDER

The opinion filed on February 24, 2011, and published at

636 F.3d 1139 (9th Cir. 2011) is superseded by the amended

opinion below. The opinion is amended as follows:

DISH NETWORK CORP. v. FCC 10423

(1) At 636 F.3d at 1148: Remove <The satellite carriers

benefit from the statutory copyright license established

through SHVIA. In return, Congress may place reasonable

limitations on the use of that license, which is all Congress

has done here. It enacted § 207 to promote fair competition,

not suppress free speech.>

(2) At id.: Replace <Section 207 is content-neutral. See

Turner I, 512 U.S. at 662.> with <For these reasons, we hold

that the district court did not abuse its discretion in concluding

that § 207 is likely a content-neutral restriction on speech. We

need not decide whether § 207 is actually content-neutral.>

With this amendment, Judges Silverman and Tallman have

voted to deny Appellant’s Petition for Rehearing En Banc

filed on April 11, 2011, and Judge Wallace so recommends.

The full court has been advised of the Petition for Rehear-

ing En Banc and no Judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The Petition for Rehearing En Banc is DENIED. No further

petitions for rehearing shall be entertained.

OPINION

TALLMAN, Circuit Judge:

DISH Network Corporation and DISH Network, LLC (col-

lectively “DISH”) appeal the district court’s order denying

DISH’s motion for a preliminary injunction. DISH argues that

it is likely to succeed in its argument that § 207 of the Satel-

lite Television Extension and Localism Act of 2010 (STELA),

Pub. L. No. 111-175, § 207, 124 Stat. 1218 (amending 47

U.S.C. § 338 (2006)), which accelerates the timetable under

which satellite providers that carry local stations in high-

10424 DISH NETWORK CORP. v. FCC

definition (HD) format in a particular market must carry

“qualified noncommercial educational television stations” in

HD, is a content-based regulation of free speech in violation

of the First Amendment. DISH asserts that the statute inter-

feres with its editorial discretion and judgment by forcing it

to delay offering commercial programming in HD to certain

markets. That delay, DISH argues, forces DISH subscribers to

receive Public Broadcasting Service (PBS)1 programs in HD

before commercial programs, even though they “prefer watch-

ing the World Cup and American Idol in vivid colors over Jim

Leher and Elmo.”

Because we agree with the district court that DISH failed

to demonstrate it is likely to succeed on the merits, we affirm

the denial of injunctive relief. See Winter v. Natural Res. Def.

Council, 129 S. Ct. 365, 381 (2008).

I

It is helpful first to briefly review how satellite television

works, why it is regulated, and how § 207 came to be enacted.

There are only two major Direct Broadcast Satellite providers

in the United States: DirectTV, which has about 18.5 million

subscribers, and DISH, which has about 14.1 million sub-

scribers. They rely on assigned radio frequency bands to

transmit signals to consumers from satellites located at desig-

nated orbital locations in space. The transmissions are gov-

erned by the Federal Communications Commission (FCC)

and international regulations.

The United States has been assigned eight orbital locations

for providing satellite service. Each location is divided into 32

satellite channels. Transmissions from satellites in the same

orbital location may cause signal interference, so Congress

1

The statute in question applies to all local public television stations.

While the majority of public television consists of PBS programming,

much of the content is locally produced.

DISH NETWORK CORP. v. FCC 10425

has authorized the FCC to grant licenses to satellite service

providers assigning them the use of specified channels at par-

ticular orbital locations. The licenses are limited in duration

and the FCC may grant or renew them only if doing so will

serve the public interest, convenience, or necessity. 47 U.S.C.

§ 307.

In 1999, Congress created an exception to copyright law to

better enable competition between satellite TV and cable TV.

The Satellite Home Viewer Improvement Act of 1999

(SHVIA) amended the Copyright Act to create statutory copy-

right licenses for satellite carriers that allow them to retrans-

mit a local broadcast station’s signal without first getting

permission from the individual copyright holders. The copy-

right license is also subject to statutory and regulatory condi-

tions.

As a condition of their licenses, carriers have certain public

obligations. For example, they must also carry, on request, the

signals of all other television broadcast stations in the same

local market. 47 U.S.C. § 338(a)(1). See Satellite Broad. and

Commc’ns Ass’n v. FCC, 275 F.3d 337, 352-66 (4th Cir.

2001) (rejecting First Amendment challenge). Additionally,

all satellite providers must set aside four to seven percent of

their channel capacity for “noncommercial programming of

an educational or informational nature.” 47 U.S.C. § 335(b);

see also Time Warner Entm’t Co. v. FCC, 93 F.3d 957,

973-77 (D.C. Cir. 1996) (per curiam) (rejecting First Amend-

ment challenge), reh’g en banc denied, 105 F.3d 723 (D.C.

Cir. 1997). Finally, and particularly relevant to the case at

hand, satellite service providers are required to treat all local

television stations the same regarding picture quality. 16

F.C.C.R. 1918 ¶ 118 (2000).

The picture-quality condition was applied to HD program-

ming in 2008 through an FCC rule. See 23 F.C.C.R. 5351, ¶ 5

(2008); 47 C.F.R. § 76.66 (k). Under that rule, satellite pro-

viders that carry any local stations in HD format in a particu-

10426 DISH NETWORK CORP. v. FCC

lar market must carry all local stations in HD format. The

regulation gives providers four years to meet the following

implementation timetable: they must achieve compliance in

fifteen percent of the markets in which they carry local chan-

nels in HD by Feb. 17, 2010; thirty percent by Feb. 17, 2011;

sixty percent by Feb. 17, 2012; and one-hundred percent by

Feb. 17, 2013.

The challenge is that HD consumes three to four times the

channel capacity as standard definition (SD) programming.

Because DISH currently lacks capacity to offer all local chan-

nels in HD, it prioritized local market television stations

according to customer demand, and decided not to prioritize

transmitting PBS in HD. Instead, DISH offered the major net-

works in HD and delayed offering PBS in HD except in

Alaska and Hawaii, where it was legally obligated to do so.

By comparison, its competitor DirectTV provided 106 chan-

nels of HD PBS in its regions of operation.

Congress determined that by forcing public broadcasting

stations to the back of the HD priority line, DISH was jeopar-

dizing public television’s ability to compete with commercial

television and thereby threatening the right of consumers “to

receive federally funded programming broadcast by PBS.”

156 Cong. Rec. E849-04 (daily ed. May 12, 2010) (speech of

Rep. Anna G. Eshoo). In response, Congress enacted § 207 of

STELA to ensure “that satellite providers do not discriminate

against noncommercial high definition signals” and to pro-

mote “an even playing field.” Id.

The provision accelerates the HD timetable for “qualified

noncommercial educational television stations.” Under § 207,

satellite carriers who take advantage of the statutory compul-

sory copyright license to provide local broadcasts in HD for-

mat must also provide “qualified noncommercial educational

television stations located within that local market” in HD

format. Carriers were given until December 31, 2010, to meet

the requirement in fifty percent of the local markets in which

DISH NETWORK CORP. v. FCC 10427

they provide HD programming and until December 31, 2011,

to comply fully in all remaining markets.

But Congress created an exemption to § 207 for satellite

providers who entered into a private carriage agreement with

at least thirty qualified noncommercial educational television

stations. To avoid § 207’s more burdensome timeline, DISH

entered into such a contract. Doing so forced it to postpone

launching HD services in ten new television markets. DISH

then filed suit to enjoin § 207, arguing that it is a constitution-

ally impermissible content-based regulation of the company’s

First Amendment right to free speech.

The district court denied DISH’s motion for a preliminary

injunction without opinion. During the hearing, the court

focused entirely on whether DISH was likely to succeed on

the merits of its claim. The court concluded the regulation

was content-neutral and not an infringement on DISH’s First

Amendment rights. It reasoned that § 207 “is designed to keep

PBS competitive with other local outlets,” not to regulate con-

tent. In summarizing its conclusions, the district court

explained:

[U]nder the case law we aren’t dealing with content.

You’ve got to offer PBS and now they’re saying . . .

you’ve got to offer it in HD so it’s as attractive as

other local stations and I don’t think it impinges or

infringes the First Amendment.

We agree.

II

We review a district court’s grant or denial of a preliminary

injunction for abuse of discretion and the underlying legal

principles de novo. Stormans, Inc. v. Selecky, 586 F.3d 1109,

1119 (9th Cir. 2009). The grant or denial of a preliminary

injunction lies within the discretion of the district court and

10428 DISH NETWORK CORP. v. FCC

we may reverse a district court only where it relied on an erro-

neous legal premise or abused its discretion. Sports Form, Inc.

v. United Press Int’l, Inc., 686 F.2d 750 (9th Cir. 1982). To

determine whether the district court abused its discretion, the

reviewing court “must consider whether the decision was

based on a consideration of the relevant factors and whether

there has been a clear error of judgment.” Id. at 752 (citations

omitted).

We have noted that “in some cases, parties appeal orders

granting or denying motions for preliminary injunctions in

order to ascertain the views of the appellate court on the mer-

its of the litigation,” but that due to the “limited scope of our

review . . . our disposition of appeals from most preliminary

injunctions may provide little guidance as to the appropriate

disposition on the merits” and that such appeals often result

in “unnecessary delay to the parties and inefficient use of

judicial resources.” Id. at 753. Thus, we offer our analysis

with the necessary caveat that accompanies any preliminary

injunction review—that this opinion is not an adjudication on

the merits of DISH’s claim. We conclude only that, based on

our de novo review of the underlying legal principles, the dis-

trict court did not abuse its discretion in finding that DISH is

not likely to succeed.

III

A

[1] To warrant a preliminary injunction, DISH must dem-

onstrate that it meets all four of the elements of the prelimi-

nary injunction test established in Winter v. Natural Res. Def.

Council, 129 S. Ct. 365, 374 (2008): that an injunction would

be in the public interest, that without an injunction irreparable

harm is likely, that the balance of equities tips in its favor, and

that it is likely to succeed on the merits. Id. at 374. DISH

argues that in the case of a First Amendment claim, all four

DISH NETWORK CORP. v. FCC 10429

of the Winter factors collapse into the merits. We have held

otherwise.

While a First Amendment claim “certainly raises the spec-

ter” of irreparable harm and public interest considerations,

proving the likelihood of such a claim is not enough to satisfy

Winter. Stormans, 586 F.3d at 1138; see also Klein v. City of

San Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009) (even

where the plaintiff was likely to succeed on the merits of his

First Amendment claim, he “must also demonstrate that he is

likely to suffer irreparable injury in the absence of a prelimi-

nary injunction, and that the balance of equities and the public

interest tip in his favor”) (citing Winter, 129 S. Ct. at 374).

Therefore, even if we were to determine that DISH is likely

to succeed on the merits, we would still need to consider

whether it satisfied the remaining elements of the preliminary

injunction test. However, because we agree with the district

court that DISH has failed to satisfy its burden of demonstrat-

ing it has met the first element, we need not consider the

remaining three.

B

[2] To determine whether DISH is likely to succeed on the

merits of its claim, we must first consider whether the First

Amendment likely applies. The Government argues that § 207

does not implicate the First Amendment because it does not

constitute a serious infringement on DISH’s editorial discre-

tion. It suggests that the provision is merely a “modest alter-

ation to the HD timetable” concerning only “the timing of a

means of signal transmission[.]” The Government stresses

that DISH is not challenging Congress’s initial requirement

that satellite carriers offer PBS in HD, only its timing, which

does not rise to the level of a First Amendment burden.2 Addi-

2

DISH does not concede that the FCC’s 2008 rule establishing the ini-

tial timetable is constitutional, but does not challenge it here.

10430 DISH NETWORK CORP. v. FCC

tionally, the Government argues that the First Amendment is

not implicated because § 207 does not affect DISH’s selection

of channels or interfere with its expressive decisions.

DISH counters that § 207 does affect DISH’s selection of

channels because HD transmissions are offered on separate

channels than SD transmissions and that if DISH carries PBS

in HD, it cannot carry other stations in HD. Regarding the

question whether the First Amendment applies to a provision

that merely affects the timing of a requirement, DISH pro-

poses that the accelerated pace unconstitutionally benefits

PBS; the fact that the benefit lasts only three years is irrele-

vant.

The Supreme Court has recognized that cable television

operators exercise “ ‘a significant amount of editorial discre-

tion regarding what their programming will include.’ ” City of

Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 494

(1986) (quoting FCC v. Midwest Video Corp., 440 U.S. 689,

707 (1979)). In Turner Broadcasting System, Inc. v. FCC, 512

U.S. 622 (1994) (Turner I), the Supreme Court applied inter-

mediate scrutiny to a content-neutral regulation that required

carriage of local broadcast stations on cable systems. In doing

so, the Court announced that “laws that single out the press,

or certain elements thereof, for special treatment pose a par-

ticular danger of abuse by the State . . . and so are always sub-

ject to at least some degree of heightened First Amendment

scrutiny.” Turner I, 512 U.S. at 640-41 (quoting Arkansas

Writer’s Project, Inc. v. Ragland, 481 U.S. 221, 228 (1987)).

[3] Section 207 does not affect DISH’s ability to offer pro-

grams. It affects only when DISH can offer those programs in

HD. Even so, Turner I instructs that any law that singles out

an element of the press is subject to some form of heightened

First Amendment scrutiny. For example, in Turner I, the

Supreme Court determined that regulations that “impose spe-

cial obligations upon cable operators and special burdens

upon cable programmers” implicate the First Amendment.

DISH NETWORK CORP. v. FCC 10431

Turner I, 512 U.S. at 641. Applying that logic to the case at

hand, while § 207’s obligations and burdens on satellite carri-

ers are minimal and nuanced, they do exist. Therefore, the

First Amendment is likely implicated.

C

[4] Strict scrutiny applies to government actions that stifle

or promote speech on account of its message. Such laws con-

flict with basic First Amendment principles valuing and pro-

tecting an individual’s right to decide which ideas and beliefs

are worth expressing, and almost always violate the First

Amendment. See id. (acknowledging that “the First Amend-

ment, subject to only narrow and well-understood exceptions,

does not countenance governmental control over the content

of messages expressed by private individuals”). By contrast,

regulations of speech unrelated to content are less likely to

conflict with core First Amendment values, so they are sub-

ject only to intermediate scrutiny. Id. at 642.

DISH argues that we should apply strict scrutiny because

§ 207 is a content-based regulation of free speech. The

Supreme Court has said that the “principal inquiry in deter-

mining content neutrality . . . is whether the government has

adopted a regulation of speech because of agreement or dis-

agreement with the message it conveys.” Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989); see also Turner I,

512 U.S. at 642. Generally, “laws that by their terms distin-

guish favored speech from disfavored speech on the basis of

the ideas or views expressed are content based. By contrast,

laws that confer benefits or impose burdens on speech without

reference to the ideas or views expressed are in most instances

content neutral.” Turner I, 512 U.S. at 643 (internal citations

omitted). Finally, even a statute that facially distinguishes a

category of speech or speakers is content-neutral if justified

by interests that are “unrelated to the suppression of free

expression.” City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 48 (1986).

10432 DISH NETWORK CORP. v. FCC

DISH argues § 207 is content-based because:

(1) To be a “qualified noncommercial educational televi-

sion station,” a station must be eligible for a Corporation for

Public Broadcasting (CPB) grant, and those grants are allo-

cated according to certain content criteria.3

(2) Congress’s motive in enacting § 207 was to promote

subject matter it deemed “worthier.” To support this conten-

tion, DISH highlights comments § 207’s primary sponsor,

Rep. Anna Eshoo, made announcing her personal preference

for PBS programming over certain pay-per-view channels.4

(3) Strict scrutiny applies where Congress’s preference is

based on subject matter, regardless of whether it discriminates

on the basis of viewpoint. Brief for Plaintiffs-Appellants at

36-37 (citing Bullfrog Films, Inc. v. Wick, 847 F.2d 502,

509-10 (9th Cir. 1988))5.

3

Specifically, applicants must devote the substantial majority of their

daily total programming hours to “general audience programming that

serves demonstrated community needs of an educational, informational

and cultural nature.” Programs that further the principles of “particular

political or religious philosophies” do not qualify.

4

DISH emphasizes parts of the following passage from Rep. Eshoo’s

remarks during a congressional hearing:

My bill does not prevent satellite carriers from carrying any pro-

gram. It merely mandates the carriage of all digital PBS program-

ming, and I know . . . I have heard the argument before that you

don’t have enough room, enough space and that you would have

to drop some. And I would suggest that you drop some of your

pay-per-view channels that carry soft porn. I would take PBS any

day over soft porn so would you address yourself to the question

as to why you refuse to negotiate a carriage agreement with pub-

lic TV that provides for nondiscriminatory carriage in HD?

DISH also points out that during the same hearing, Rep. Eshoo

remarked that “PBS is important in the life of the American people and

I think what they do has already been set down and is a gold standard[.]”

5

In Bullfrog Films, we found unconstitutional regulations implementing

a multilateral treaty that exempted “educational, scientific and cultural”

DISH NETWORK CORP. v. FCC 10433

(4) Section 207’s preference is reserved only for a subset

of government-funded beneficiaries, so that “even the most

educational, irreligious, apolitical station gets no preference if

it is not currently on the Government dole.”

First, the criteria used to determine whether a station

receives federal funding are designed not to promote Con-

gress’s preference, but to guard against the influence of spe-

cial interests. Cf. 127 Cong. Rec. 13,145 (June 22, 1981)

(Rep. Gonzalez) (recognizing the need to “insulate public

broadcasting from special interest influences—political, com-

mercial, or any other kind.”); H.R. Rep. No. 97-82, at 16

(1981) (noting the risk of “influence of special interests—be

they commercial, political, or religious.”). Furthermore, the

CPB offers financial incentives for stations to differentiate

their programming and the government is forbidden by law

from exercising any direction, supervision, or control over the

CPB.

[5] Section 207 “seeks to support expression, not suppress

it,” the Government maintains. The record supports that asser-

tion. Rep. Eshoo may have expressed a personal preference

for PBS over pay-per-view, but it does not follow that her per-

sonal preference is what drove Congress to enact § 207. The

legislative record clearly indicates that in § 207 Congress

aimed to prohibit satellite carriers from “discriminating”

against noncommercial stations in a manner that interferes

with “the rights of consumers to receive federally funded pro-

gramming broadcast by America’s Public Broadcasting Ser-

vice, PBS.” 156 Cong. Rec. E849-04 (daily ed. May 12, 2010)

(speech of Rep. Anna G. Eshoo). The legislation sought to

audio-visual materials from import duties. That case is distinguishable

because it did not involve the broadcast regulatory environment, which the

Supreme Court has analyzed in a separate First Amendment context. The

broadcast regulatory environment differs from the film environment

because satellite companies rely on having access to a regulated and

scarce public resource and are subject to specific public obligations in

return for a Copyright Act exemption that allows them to compete.

10434 DISH NETWORK CORP. v. FCC

even the playing field and promote fair competition. DISH’s

contention that Congress enacted § 207 because Congress

thinks PBS is better than commercial television contradicts

the legislative record.

As for DISH’s remaining arguments, Turner I is informa-

tive. In Turner I, the Supreme Court held that sections of the

Cable Television Consumer Protection and Competition Act

of 1992 requiring cable television systems to dedicate some

of their channels to local broadcast television stations consti-

tuted a content-neutral restriction on speech, subject to inter-

mediate scrutiny. Turner I, 512 U.S. at 661-62. The Court

determined that the provisions were meant “to protect broad-

cast television from what Congress determined to be unfair

competition” and that “[a]ppellants’ ability to hypothesize a

content-based purpose for these provisions rests on little more

than speculation and does not cast doubt upon the content-

neutral character of must-carry.” Id. at 652.

As to the extent the regulations required cable carriers to

carry noncommercial educational stations, those regulations

were deemed content-neutral because “noncommercial licens-

ees are not required by statute or regulation to carry any spe-

cific quantity of ‘educational’ programming or any particular

‘educational’ programs.” Id. at 651. The Court noted that the

FCC and Congress have negligible influence over broadcast

programming and may not use funding to the CPB to affect

programming decisions. Id. at 651-52. During DISH’s hear-

ing, the Government’s attorney reiterated that point:

The government’s funding is not specific as to the

programming choice. It’s actually done in a specific

way so that the appropriations aren’t even year to

year, they’re over a very long period of time. So the

fact that the money comes from the government, the

government has absolutely no control . . . over what

kind of programming public television stations pro-

vide.

DISH NETWORK CORP. v. FCC 10435

DISH argues that Turner I should be distinguished because

the statute at issue in that case provided benefits to all full-

power local television stations whereas the statute at issue

here provides benefits only to public broadcasting stations,

which must meet certain content requirements.

However, the Government has long supported public televi-

sion stations and passed legislation benefitting them not

because they broadcast specific content, but because the “eco-

nomic realities of commercial broadcasting do not permit

widespread commercial production and distribution of educa-

tional and cultural programs which do not have a mass audi-

ence appeal.” H.R. Rep. No. 90-572, at 10-11 (1967).

Congress supports public broadcasting because it fills “certain

programming voids” and promotes diversity in programming.

Minority Television Project Inc. v. FCC, 649 F. Supp. 2d

1025, 1033-34 (N.D. Cal. 2009); see also 47 U.S.C.

§ 396(a)(5) (recognizing that “[i]t furthers the general welfare

to encourage public telecommunications services which will

be responsive to the interests of people both in particular

localities and throughout the United States, which will consti-

tute an expression of diversity and excellence, and which will

constitute a source of alternative telecommunications services

for all the citizens of the Nation.”).

[6] For these reasons, we hold that the district court did not

abuse its discretion in concluding that § 207 is likely a

content-neutral restriction on speech. We need not decide

whether § 207 is actually content-neutral.

D

[7] A content-neutral regulation will be sustained if “it fur-

thers an important or substantial governmental interest; if the

governmental interest is unrelated to the suppression of free

expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the fur-

therance of that interest.” United States v. O’Brien, 391 U.S.

10436 DISH NETWORK CORP. v. FCC

367, 377 (1968); see also Turner I, 512 U.S. at 662. A regula-

tion need not be the least-restrictive means available as long

as it does not “burden substantially more speech than is neces-

sary to further the government’s legitimate interests.” Turner

I, 512 U.S. at 662 (citing Ward, 491 U.S. at 799 (1989)). The

question is not whether Congress was correct to determine

that a particular statute was necessary, but whether its deter-

mination was reasonable and based on substantial evidence.

Turner I, 512 U.S. at 666 (citing Century Commc’ns Corp. v.

FCC, 835 F.2d 292, 304 (D.C. Cir. 1987)).

[8] The Supreme Court has recognized that “[T]he Gov-

ernment’s interest in eliminating restraints on fair competition

is always substantial, even when the individuals or entities

subject to particular regulations are engaged in expressive

activity protected by the First Amendment.” Turner I, 512

U.S. at 664. The Court has also recognized that “assuring that

the public has access to a multiplicity of information sources

is a governmental purpose of the highest order, for it pro-

motes values central to the First Amendment.” Id. at 663. The

question here is whether § 207 advances that interest in a

manner that is not substantially more restrictive than neces-

sary.

[9] In support of its position that Congress’s pro-

competitive determination was unreasonable, DISH cites its

expert’s declaration concluding that a delay in providing PBS

in HD would not cure any threat to the viability of local PBS

stations. The Government argues that because of the nature of

public television funding, a delay in carrying public television

in HD would indeed compromise the financing mechanism on

which public broadcasting stations depend. As the Govern-

ment’s attorney explained at argument before the district

court: “[I]f [satellite carriers are] going to go in and show

ABC, or CBS, or FOX, they also need to go in and show PBS

just over the intervening three years so that when we get to

the point where everyone is broadcasting in HD that PBS isn’t

so far behind the local networks.”). As most PBS supporters

DISH NETWORK CORP. v. FCC 10437

know, while Congress provides some financial support for

public broadcasting through grants, most comes from other

sources, and the stations’ daily operations depend on dona-

tions from local viewers. Congress enacted § 207 because it

feared that failure to keep up with enhancements in commer-

cial signals and picture quality would impair the ability of

public television stations to compete for viewers.

To further emphasize the reasonableness of Congress’s

action, the Government cites a New York Times article stating

that shortly before STELA’s passage, half of the country was

watching television in HD format and that “HD may limit the

number of channels that viewers turn to, because once they

can watch programs in HD, they have little desire to watch

anything of a lower quality.” Brian Stelter, Crystal-Clear,

Maybe Mesmerizing, N.Y. Times, May 24, 2010, B4. The

Government also highlights an FCC report noting that “sub-

scribers do not consider SD programming to be an acceptable

substitute for HD programming.”

[10] Considering the record before us and that Congress

recognized whether a program is offered in HD affects

whether viewers watch it (a fact DISH concedes by the very

nature of its argument), it was reasonable for Congress to con-

clude that allowing satellite carriers to delay offering PBS in

HD would lead to anticompetitive results. The Government

would likely succeed at trial in demonstrating that Congress

made a reasonable determination based on substantial evi-

dence when it determined that § 207 was necessary to pro-

mote this substantial interest.

Arguing the regulation is substantially more restrictive than

necessary, DISH proposes that the Government could satisfy

any interest it might have simply by “providing adequate

funds to public stations that could make HD carriage finan-

cially attractive.” It also suggests that the public can easily

access public broadcasting in HD by “hooking up rabbit ears

and flicking a switch.”

10438 DISH NETWORK CORP. v. FCC

As for the first argument, PBS receives congressional sup-

port in part because by its very nature it is not commercially

attractive. DISH’s suggestion that instead of passing legisla-

tion Congress should spend money making PBS more attrac-

tive to commercial enterprises undercuts the very purpose that

has driven decades of legislation promoting diversity in tele-

vision programming.

In response to the second argument, DISH’s own marketing

materials demonstrate that many residents of areas with weak

broadcast signals cannot receive over-the-air transmissions.

For example, one DISH advertisement reads: “Because satel-

lite technology is not limited by geographic area or land-

based cable lines, you can receive DISH Network service no

matter where in the nation you live. In fact, if you live in a

rural area or on an RV, satellite TV is probably your only

option.” Similarly, a DISH Network press release reads:

“DISH serv[es] the many rural markets that lack vital local

TV signals.”

[11] We conclude that the district court did not abuse its

discretion in determining that DISH failed at this stage of the

proceedings to demonstrate that § 207 would likely not sur-

vive intermediate scrutiny. The provision is not substantially

more restrictive than necessary to address Congress’s reason-

able fear that without action, DISH’s decision to deprioritize

PBS would jeopardize the ability of public broadcasters to

compete with commercial stations.

IV

Because we conclude that the district court did not abuse its

discretion in determining that DISH failed to demonstrate at

this stage that it is likely to succeed on the merits of its claim,

we decline to consider the remaining three elements of the

preliminary injunction test. The district court did not abuse its

discretion in denying DISH’s motion for a preliminary injunc-

tion.

AFFIRMED.