# Petition for Writ of Certiorari — EchoStar Communications Corp. v. Fox Broadcasting Co. (No. 06-545) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1626%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text Shia 5 2 VS. wot 06-5 45 0CT 17 200g ~ OFFICE OF THE CLERK In The : Supreme Court of the United States S ECHOSTAR COMMUNICATIONS CORPORATION, et al., Petitioners, Vv. FOX BROADCASTING COMPANY, et al., Respondents. 6 On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit ¢ PETITION FOR A WRIT OF CERTIORARI & ‘ *THOMAS C. GOLDSTEIN MARK A. NADEAU AKIN GUMP STRAUSS CYNTHIA A. RICKETTS HAUER & FELD L.L.P. SQUIRE, SANDERS & 1333 New Hampshire DEMPSEY L.L.P. Avenue N.W. 40 North Central Avene, Washington, D.C. 20036 Suite 2700 Telephone: 202-887-4000 Phoenix, Arizona 85004 Facsimile: 202-887-4288 Telephone: 602-528-4000 *Counsel of Record Facsimile: 602-253-8129 _ MICHAEL C. SMALL AKIN GUMP STRAUSS : HAUER & FELD L.L.P. 2029 Century Park East, Suite 2400 Los Angeles, California 90067 Telephone: 310-229-1000 Fascimile: 310-229-1001 Attorneys for Petitioners COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2833 =— QUESTION PRESENTED The Satellite Home Viewer Act and the Satellite Home Viewer Improvement Act (collectively “the Act”) grant a ~ compulsory license to satellite carriers to retransmit copyrighted network television programming to eligible households. The Act’s remedial provision states, in rele- vant part, that if a satellite carrier “engages in a willful or repeated pattern or practice” of transmitting copyrighted network television programming to ineligible households on a substantially nationwide basis, the district court “shall order a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network... .” 17 _ US.C. §119(a)(7)(B)G). The question presented is whether that provision eliminates entirely the traditional discre- tion of district courts to fashion injunctive relief tailored to the particular factual circumstances of a case, and dictates instead that the distriet court enter a permanent nation- wide injunction forbidding the satellite carrier from retransmitting the programming authorized by the Act, even to households that are statutorily eligible to receive it. —_ one ii PARTIES TO THE PROCEEDING Petitioners are EchoStar Communications Corpora- tion; EchoStar Satellite L.L.C., formerly known as EchoStar Satellite Corporation; Satellite Communications Operating Corporation; and DirectSat Corporation. Peti- tioners are referred to herein collectively as “EchoStar.” Respondents are Fox Broadcasting Company; FBC Television Affiliates; ABC Television Affiliates; NBC Televi- sion Affiliates; and CBS Television Affiliates. CBS Broad- casting, Inc., ABC, Inc., and National Broadcasting Company originally were parties to the litigation, but have settled with Petitioners and so no longer are parties to the proceed- ings before this Court. RULE 29.6 STATEMENT EchoStar Communications Corporation is a publicly- held company. Satellite Communications Operating Corpo- ration is a direct wholly-owned subsidiary of EchoStar Communications Corporation. EchoStar Satellite L.L.C., doing business as DISH Network, is a direct wholly-owned subsidiary of EchoStar DBS Corporation, which is an indirect wholly-owned subsidiary of EchoStar Communica- tions Corporation. DirectSat Corporation was an indirect wholly owned subsidiary of EchoStar DBS Corporation, but. merged into EchoStar Satellite L.L.C. effective March 12, 1999. ili TABLE OF CONTENTS Page EE INTE wn siiiccrcsniticuiishibnbmnabensseegshiandskessnsaients 1 Pe aicscnihcsubiSeesetaliccucieulpioidoctangkovebbasaceesanes 1 STATUTORY PROVISION INVOLViW)..........cceeeeseees 1 STATEMENT OF THE CASE ......... piiccummabensineuctneniads ice ae A. Statutory Backpwround ..........cccccccccssssssesessosveeceses 2 Bae I BE pices piacere esicarciientgteniiaeiesonn 5 1. Initial District Court and Eleventh Circuit Proceedings: The Preliminary Injunction PN isincenciiintscidnailabacidsssstinecsisienabpaloboosins 6 2. The District Court’s Permanent Injunction a DOI Secs canissnatenvonem sas pielauacioniiidandtioaniesnanbare i 3. The Eleventh Circuit’s Permanent Injunction TEE sor ctiensisitssinvenibipesieindaneeerimmometatiinminiss 7 REASONS FOR GRANTING THE PETITION............. 9 I. THE ELEVENTH CIRCUITS DECISION INTERPRETING AN IMPORTANT FEDERAL STATUTE WILL HAVE PROFOUNDLY NEGA- - TIVE NATIONAL CONSEQUENCES ............... 11 Il. THE ELEVENTH CIRCUITS DECISION IS IN TENSION WITH THIS COURT’S STEAD- FAST POSITION THAT FEDERAL STATUTES SHOULD NOT BE LIGHTLY CONSTRUED TO REMOVE THE TRADITIONAL DISCh*- TION OF DISTRICT COURTS TO FASHION INJUNCTIONS TAILORED TO THE FACTS OF A PARTICULAR CASE ........ cesses 14 Eas Gib icciankorsceandeasuisddiensedckeniabebeaiirboneneines 21 TABLE OF AUTHORITIES . Page CASES ABC, Inc. v. PrimeTime 24, 184 F.3d 348 (4th Cir. BUN Eidaihisickits pivcveneuinbcainsdcgusentoimnieusicessiasnacaebiteicbabcaiias 14 Amoco Production Co. v. Village of Gambell, 480 Br ee CRE issn hadciciersebdeckcdsabecberiepleoeetcalceotaiel 19, 20 Califano v. Yamasaki, 442 U.S. 682 (1979).............0. 14, 16 CBS Broad., Inc. v. EchoStar Communications Corp., SNe ee Fete CA eee Cy RD iss nrcvvebsasentecéccecetvevnibectecs 6 CBS Inc. v_PrimeTime 24 Joint Veniure, 245 F.3d RET Ce Ca eS hin citicidssacsacckcccssseesiaatieiieecsivess 12 eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 CR hensive: dda bciiisuii cau dibdakd ai baedtoiidcwusietapaddssgradiidiiaes am Hecht Co. v. Bowles, 321 U.S. 321 (1944)... 14, 16 Miller v. French, 580 U.S. 327 (2000).........c.csccoseserscceseoses 14 Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)......... 13 Porter v. Warner Holding Co., 328 U.S. 395 (1946) ... 14, 15 Satellite Broad. & Commn’s Ass’n v. FCC, 275 F.3d Re CRE Gls. GD dissins Scscdcdcoeschetnsirctenechesvincnuwarecivanisiuns 12- United States ex rel. Totten v. Bombardier Corp., BF ae Be I Es I es sinteerd shstiscdenesvacsnsvavessivass 19 United States v. Donovan, 429 U.S. 413 (1977)................ 13 United States v. Texas, 507 U.S. 529 (1993)........... cc eeeseee 15 United States v. Wilson, 503 U.S. 329 (1992).............:.000 19 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)........ TABLE OF AUTHORITIES - Continued ie Page LEGISLATIVE MATERIALS AND RULES Se oii niece 20 ere ee IT Ne wtcenicschoteestbnibinntaiatbbauiandstanseienevicean 4 OF EE PIG FLEE) ceectotcrsuacnpsennsctinstaavebiuntisunesoerns 4,17 Be erg WRI Fic ela a passim Ae Ree Rks AUNT ED sp lhniconiokccniaiatnignindebeebdipeoinksocediaiamnanies 3 Be neha Iki isacivuidia seieccustnlccas * The Eleventh Circuit rejected Petitioners’ First Amendment challenge to,SHVA. 265 F.3d at 1211. Petitioners sought review in this Court on the First Amendment question. 2002 WL 32135979. That petition fer certiorari was denied. 535 U.S. 1079 (2002). 2. The District Court’s Permanent Injunc- tion Ruling On remand, the district court conducted a bench trial to determine whether a permanent injunction should be entered, and if so, what its contours would be. After the trial, the district court found ‘hat (with two minor excep- tions) EchoStar’s procedures for qualifying viewers eligible to receive distant network programming complied with the Act, Pet. App. 59-60a, and that EchoStar therefore was not currently engaged in a “pattern or practice” of violations within the meaning of the Act. Pet. App. 76a. In light of that finding, the district court declined to enter a nation- wide injunction precluding EchoStar from transmitting any distant network programming pursuant to the statu- tory copyright license. Pet. App. 76a. Concluding that- “such an extreme sanction” was unwarranted on the evidence before it, Pet. App. 76a, the district court entered instead a more modest permanent injunction to redress “individual” violations of the Act that, in its view, had occurred. Pet. App. 77-78a. In particular, the district court’s injunction would have required EchoStar to re- qualify its distant network subscribers and to disconnect distant network programming to those subscribers who were not eligible to receive it. Pet. App. 80a. It also would have required EchoStar to disconnect such programming to subscribers even if they were “grandfathered” under the Act. Pet. App. 82a. | 3. The Eleventh Circuit’s Permanent In- junction Ruling On August 13, 2003, the Eleventh Circuit stayed the district court’s permanent injunction pending the disposi- tion of appeals from both sides. In its appeal, EchoStar 8 contended that the entry of a permanent injunction of any stripe was unwarranted because it had not violated the Act. In their cross-appeal, Respondents contended that the district court should have entered a nationwide permanent injunction barring EchoStar from transmitting any distant network programming. Pet. App. 4a. In a decision issued on May 23, 2006, the Eleventh Circuit vacated the district court’s injunction and ordered the entry of a vastly more sweeping permanent nationwide injunction. Pet. App. 4la. While it did not override the district court’s finding that EchoStar was not currently engaged in a pattern or practice of statutory violations, the Eleventh Circuit “read the statute as imposing liability ‘[ilf a satellite carrier [ever] engages in a willful or repeated pattern or practice’ of statutory violations.” Pet. App. 34a (alteration and emphasis in Eleventh Circuit opinion). The Eleventh Circuit thus openly read the word “ever” into the statute in such a way that the pattern and practice provi- sion of the Act encompasses both past and present viola- tions. Applying that reading, the Eleventh Circuit held that EchoStar previously had engaged in a “pattern or practice” of vidlations, and therefore the remedial provi- sion for pattern and practice violations was implicated. Pet. App. 36-38a. Next, the Eleventh Circuit interpreted that provision as mandating the entry of a permanent nationwide injunction | barring E EchoStar from offering any distant network programming, e even to eligible households. In reaching that conclusion, the Eleventh Circuit con- strued the phrase “shall order a permanent injunction” in Section 119(a)(7)(B)(i) as eliminating altogether a district 9 court’s traditional power to exercise discretion in crafting injunctive relief. Pet. App. 40a.° 4 REASONS FOR GRANTING THE PETITION The question presented — whether the Act’s remedial provision for pattern and practice violations strips district courts of their traditional discretion to fashion equitable relief tailored to the particular circumstances of a case — is substantial and warrants this Court’s review in two respects. First, the sheer importance of the Act and the national impact of the Eleventh Circuit’s construction of * Petitioners filed a timely petition for rehearing en banc in the Eleventh Circuit on June 13, 2006. On July 19, 2006, the Eleventh Circuit denied that petition. Pet. App. 86a. On July 25, 2006, Petition- ers filed a motion to stay the issuance of the Eleventh Circuit's mandate pending certiorari proceedings. On August 7, 2006, the Eleventh Circuit denied Petitioners’ motion to stay the mandate. On August 17, 2006, Petitioners filed an application with this Court to recall and stay the Eleventh Circuit's mandate pending the filing and disposition of a petition for certiorari. The application was denied (per Justice Thomas) on August 22, 2006. On August 28, 2006, EchoStar reached a settlement agreement with the Affiliates, but not with Fox, which opposed the settlement. EchoStar’s settlement agreement with the Affiliates has been submitted to the district court, which has not yet approved it. See Notice of Settlement, CBS Broad., Inc. v. EchoStar Communications Corp., No. 98-2651-CIV (S.D. Fla. Aug. 28, 2006). In urging that the district court approve the settlement, EchoStar, joined by the Affiliates, has argued that no injunction on EchoStar’s distant network programming should be entered in light of the settlement agreement, and that if any injunction is entered, it should be limited to the retransmission of distant network programming on stations owned and operated by Fox Television Associa- tions, Inc., a sister company of Fox. See Joint Stipulation To Enter Consent Judgment And Approve Settlement Agreement, CBS Broad., Inc. v. EchoStar Communications Corp., No. 98-2651-CIV (S.D. Fla. Sept. 12, 2006). 10 its remedial provision for pattern and practice violations furnish grounds for the exercise of this Court’s certiorari jurisdiction. If it stands, the decision of the regional circuit in this case could have enormous implications throughout the country by mandating the entry of a nationwide permanent injunction blocking the ability of hundreds of thousands of Americans, who indisputably are eligible to receive distant network signals under the Act, to watch network television programming in their homes.” Second, the Eleventh Circuit’s construction of the Act is in tension with this Court’s precedents. Time and again, this Court has admonished that injunctive relief provisions in federal statutes should not be lightly interpreted so as to remove completely a district court’s power to exercise discretion in delineating the parameters of an injunction. The Eleventh Circuit’s rationale for departing from that bedrock princi- ple itself raises questions worthy of this Court’s review. * EchoStar and the Affiliates have argued to the district court that the Eleventh Circuit’s mandate (which, as indicated above, has issued and was not stayed) should not be interpreted to require the entry of a blanket nationwide injunction barring EchoStar from retransmitting all distant network programming. To support that argument, EchoStar and the Affiliates have pointed to limiting language of Section 119(a)(7)(B\(i), which authorizes the entry of a “permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network.” 17 U.S.C. §119(a)(7)(B)G) (emphasis added). EchoStar and the Affiliates contend that, if any injunction is entered (and, as indicated above, note 5, they argue that no injunction should be entered), the “same network” language of Section 119(a7B)i) indicates that the injunction should be limited to stations owned and operated by Fox Television Associations, Inc. Fox disagrees with this position and maintains that the Act and the Eleventh Circuit’s mandate require the entry of a permanent nation- wide injunction blocking EchoStar from retransmitting all distant network programming. 11 I. THE ELEVENTH CIRCUIT’S DECISION IN- TERPRETING AN IMPORTANT FEDERAL STATUTE WILL HAVE PROFOUNDLY NEGA- TIVE NATIONAL CONSEQUENCES. Lying at the intersection of telecommunications and intellectual property laws, SHVA and SHVIA address a glaring national problem. A huge number of Americans across the country, especially in rural areas, are unable to receive signals from network television stations through basic rooftop antefinas because their homes are located too far away from cities where television stations are located. SHVA and SHVIA seek to fill that void. The statutes grant a compulsory license to satellite carriers to retransmit copyrighted network television programming to house- holds that otherwise are unable to receive that program- ming. In short, because of the Act, hundreds of thousands of Americans are able to receive distant network signals via satellite and thus watch network television program- ming in their homes. That will no longer be true if this Court declines to review the Eleventh Circuit’s decision in this single case. At bottom, the nationwide permanent injunction that Fox contends is mandated by the Act and the Eleventh Cir- cuit’s decision will result in the disruption of distant network television programming to vast numbers of households across the country. Such an injunction would draw no distinction between eligible and ineligible house- holds: all of EchoStar’s distant network subscribers will be deprived of distant network programming. That result is at odds with the primary purpose of SHVA: to provide network television programming via satellite to consumers who cannot otherwise get it through basic television antennas. See H.R. Rep. No. 100-887(II), at 19-20 (1988); 12_ see also CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1229 (11th Cir. 2001). The Eleventh Circuit’s decision is also at odds with a secondary, albeit important purpose of SHVA: to spur competition between cable and satellite companies in an effort to reduce prices to consumers for subscription television services. See Satellite Broad. & Commn’s Ass’n v. FCC, 275 F.3d 337, 343 (4th Cir. 2001).’ The Eleventh Circuit’s decision threatens to upset that competitive balance because the termination of EchoStar’s distant network satellite service will prompt many of its subscrib- ers to switch to cable in order to continue to watch net- work television programming.” ” SHVIA has the same consumer-oriented bent. It was passed, in part, to address “administrative difficulties in deciding which house- holds were genuinely unserved” under SHVA, which “led to increasingly bitter disputes between satellite \carriers and broadcasters,- leaving bewildered, angry consumers stuck in the middle.” Satellite Broad., 275 F.3d at 348. Broad injunctions entered in a dispute between broadcast- ers and a then-existing satellite provider, PrimeTime 24, spawned a public outcry, prompting Congress to adopt SHVIA. Referring to PrimeTime 24’s dispute with broadcasters, the House Report for SHVIA recognized that “[w]hile the courts’ ability and authority to interpret the law is unquestionable, their remedies are sometimes too blunt, - particularly in cases, such as this one, where the remedy affects a broad class...” H.R. Rep. No. 106-79(I), at 14 (1999); see also 145 Cong. Rec. S5775-02 (daily ed. May 20, 1999) (“We have been racing against the clock because court orders have required the cutoffs of distant CBS and Fox television signals to over a million households in the U.S.”) (statement of Sen. Leahy). * EchoStar’s distant network subscribers could, of course, switch to DirecTV, the nation’s only other company offering television programs via satellite. (And in many rural areas of the country not served by cable, DirecTV will be the only option for EchoStar subscribers who wish to continue receiving distant network television programming). The prospect of EchoStar subscribers transferring distant network (Continued on following page) : | 13 This Court frequently has exercised its certiorari jurisdiction in cases such as this one where a regional circuit’s interpretation of a significant federal statute has broad national ramifications. See, e.g., United States v. Donovan, 429 U.S. 413, 422 (1977) (“We granted certiorari to resolve these issues, which concern the construction of a major federal statute... .”). Furthermore, this case pre- sents the classic circumstance in which this Court should intervene to decide an issue of national importance arising under a significant federal statute, despite the absence of a circuit conflict on that issue. See Robert L. Stern et al., Supreme Court Practice 247 (8th ed. 2002) (“Many of the cases coming to the Supreme Court on certiorari involve the construction and application of acts of Congress.... In some of them it can be shown that there is a conflict of decisions among lower courts.... In others, however, the importance of the issue is the major basis for securing review.”) (emphasis added). No circuit conflict is likely ever to arise with respect to the question presented because EchoStar currently is the only satellite carrier affected by judicial construction of the Act,’ and because EchoStar will be precluded from relitigating in any other circuit in a subsequent case the statutory construction issue decided by the Eleventh Circuit in this case. See Parklane Hosiery service to DirecTV has its own anti-competitive effects. News Corpora- tion, the parent company of Respondent Fox, owns approximately 34% of DirecTV, as well. See www.newscorp.com/news/ news_271.html. * There are only two satellite carriers that presently transmit distant network programming, EchoStar and DirecTV. In 1999, however, DirecTV settled a dispute with Respondents with respect to the transmission of distant network programming. See DirecTV Reaches Agreement With Major Networks, N.Y. Times, March 13, 1999, at C3. DirecTV's distant network activities are thus governed by its settlement agreement with Respondents, not the Act. 14 Co. v. Shore, 439 U.S. 322, 331 (1979). All told, this Petition probably furnishes the Court with its only oppor- tunity to decide the important national question presented here. i. THE ELEVENTH CIRCUIT’S DECISION IS IN TENSION WITH THIS COURT'S STEADFAST POSITION THAT FEDERAL STATUTES SHOULD NOT BE LIGHTLY CONSTRUED TO REMOVE THE TRADITIONAL DISCRETION OF DISTRICT COURTS TO FASHION INJUNCTIONS TAI- LORED TO THE FACTS OF A PARTICULAR CASE. The Eleventh Circuit held that the remedial provision governing pattern and practice violations of the Act completely removes the traditional discretion of district courts to craft injunctions. That holding is in tension with this Court’s precedents interpreting federal statutes that are purported to eliminate all discretion in district courts to fashion injunctive relief, commensurate with the facts of a particular case. See, e.g., Miller v. French, 530 U.S. 327, 340-41 (2000); Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982); Califano v. Yamasaki, 442 U.S. 682, 694 (1979); Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); Hecht Co. v. Bowles, 321 U.S. 321, 327-28 (1944). Such conflicts are a well-established ground for the exer- cise of this Court’s certiorari jurisdiction. Sup. Ct. R. 10(c) (that “a United States court of appeals ... has decided an important federal question in a way that conflicts with ” The Fourth Circuit construed the Act in the same way in litigation involving a former satellite carrier. See ABC, Inc. v. Prime- Time 24, 184 F.3d 348, 354 (4th Cir. 1999). 15 relevant decisions of this Court” is a consideration in granting a petition for a writ of certiorari). This Court repeatedly has stated that federal statutes - should not be loosely construed to eviscerate all discretion in district courts to tailor fact-specific injunctive relief. The Court’s steady refrain has been that a district court’s “equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescap- able inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” Porter v. Warner Holding Co., 328 U.S. at 398." The Court echoed that theme just last Term in eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006), which, like this case, involved an intellectual property dispute. In eBay, the Court stressed that it “has consistently rejected invita- tions to replace traditional equitable considerations with a rule that an injunction automatically follows a determina- tion that a copyright has been infringed.” Jd. at 1840. The Eleventh Circuit deviated from these principles. Its reasons for doing so raise serious questions that warrant this Court’s review. The Eleventh Circuit’s characterization of Section 119(a)(7)(B)G) of the Act as containing “no ambiguous statutory language,” Pet. App. 40a, is out of step with this " In passing a statute, legislatures are presumed to act with knowledge of legal principles in court decisions. The statute will not alter those principles, unless the legislature expresses a contrary intent. United States v. Texas, 507 U.S. 529, 534 (1993). Thus, in SHVA and SHVIA, Congress is presumed to have acted with knowledge of the principle that district courts have inherent discretion in crafting injunctions. 16 Court’s precedents. To be sure, Section 119(a)(7)(B)(i) provides that district courts “shall order a permanent injunction” upon finding a pattern or practice of violations. 17 U.S.C. §119(a)(7)(B)(i) (emphasis added). This Court has, however, held that the use of the mandatory-sounding word “shall” does not automatically foreclose a district court’s discretion to impose narrower remedies. See, e.g., Califano v. Yamasaki, 442 U.S. at 693 n.9 (“[T]he use of the word ‘shall,’ particularly with reference to an equitable decision, does not eliminate all discretion. . . . ”); Hecht Co. v. Bowles, 321 U.S. at 327-28 (holding that “shall be granted” language in a statute was not mandatory and did not eliminate a district court’s traditional discretion.). The language of SHVA and SHVIA, as well as the legislative history of those statutes, does not inexorably lead to the Eleventh Circuit’s supposition that the use of the word “shall” in Section 119(a)(7)(B)(i) was intended to denude district courts of their traditional equitable discretion to fashion injunctive relief in a given case. To support its construction of the statute, the Elev- enth Circuit asserted that while Section 119(a)(7)(B)(i) states district courts “may order statutory damages” for pattern or practice violations (which the Eleventh Circuit deemed a “discretionary” remedy), it also states that courts- “shall order a permanent injunction” for such violations (which the Eleventh Circuit deemed a “manda- tory” remedy). Pet. App. 40a. According to the Eleventh Circuit, Congress’ use of “may” and “shall” in the same provision manifests an “unequivocal|] ... purpose to restrict the courts’ traditional equitable authority upon a finding of a ‘pattern or practice.’” Pet. App. 40a. The Eleventh Circuit read too much into the provision’s juxta- position of “shall” and “may.” 17 For one, the Eleventh Circuit ignored Congress’ recognition that satellite carriers could make good faith mistakes in signing up subscribers for distant signal programming and that they therefore should not be harshly penalized as a result of such errors. H.R. Rep. No. 100-887(1T), at 19 (1988). The legislative history of SHVA indicates that, in light of this concern, Congress sought to give satellite carriers a wide degree of latitude before liability would be imposed. In particular, even if as many as 19% of its subscribers are ineligible to receive distant network signals, a satellite carrier will not be considered in violation of the statute. Jd. Under the Eleventh Circuit’s construction of the statute, however, the entry of a manda- tory, permanent nationwide injunction could turn on the slightest of numerical discrepancies: such an injunction must be entered upon a finding of a pattern and practice of violations in which -20% of a carrier’s subscribers are ineligible, but such an injunction should not be entered if 19% of a carrier’s subscribers are ineligible. There is no clear sign that Congress intended to command district courts to enter a permanent nationwide injunction barring the retransmission of all distant network programming based on such razor-thin distinctions. Furthermore, the Eleventh Circuit made a threshold misstep in determining that the pattern and practice provision of the Act even applied in this case. By its terms, that provision is triggered only when a satellite carrier “engages in a willful or repeated pattern or practice” of statutory violations. 17 U.S.C. §119(a)(7)(B) (emphasis added). Applying that language, the district court found that Petitioners’ existing qualification procedures comply with the Act, and that therefore EchoStar was not pres- ently engaging in a pattern or practice of violations. Pet. 18 App. 76a (“The current qualification system employed by EchoStar[|] and applied to every potential distant network subscriber is a reasonable system to prevent ineligible households from receiving distant network pro- gramming....”).” The Eleventh Circuit did not disturb that finding on appeal. Nevertheless, the Eleventh Circuit read the Act’s pattern and practice provision to extend to cases in which a “satellite carrier fever] engages in a willful or repeated pattern or practice” of statutory viola- tions. Pet. App. 34a (alteration and emphasis in Eleventh Circuit opinion). In short, according to the Eleventh Circuit, the present-tense word “engages” is interchange- able with the past-tense phrase “ever had engaged.” Applying that interpretation, the Eleventh Circuit con- cluded that EchoStar previously had engaged in a pattern or practice of violations, thereby implicating the remedial provision for such violations. The notion that the pattern and practice provision reaches both past and present violations is inconsistent with the Act’s legislative history, which states that Con- gress did not intend “to subject a satellite carrier to ‘pattern or practice’ liability ... provided that the carrier is reasonably diligent in avoiding and correcting violations through an internal compliance program....” H.R. Rep. No. 100-887(I), at 19. As found by the district court, EchoStar’s internal compliance program reflects reason- able measures to correct prior violations and prevent future violations. Pet. App. 76a. Given that finding, the “ Even a representative of Respondent CBS Television Affiliates testified at the trial that “EchoStar today is making legitimate efforts to qualify subscribers.” Pet. App. 60a. a 19 legislative history of SHVA signals that EchoStar should not have been subjected to pattern and practice liability. Moreover, the Eleventh Circuit’s interpretation conflating “engages” with “ever had engaged” contravenes the venerable principle that Congress’ choice of a particu- lar verb tense should be accorded great weight in constru- ing statutes. United States v. Wilson, 503 U.S. 329, 333 (1992); see also United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 493 (D.C. Cir. 2004) (Roberts, J.) (rejecting interpretation of a statute that “equate[d] the present-tense ‘provides’ in the statute with the past-tense ‘has provided’” because that reading “r{an] afoul of the Supreme Court’s admonition that Congress’ use of a verb tense is significant in construing statutes”) (internal quotations omitted), cert. denied, 544 U.S. 1032 (2005). It was the failure to adhere to that principle in the first place that led the Eleventh Circuit to reach the question whether the pattern and practice provision of the Act eliminates the traditional equitable discretion of district courts — and then to order an injunctive remedy for past violations that the district court found had been largely redressed through EchoStar’s revamped qualification procedures. In sum, the Eleventh Circuit concluded that Congress intended to mandate a sweeping nationwide injunction, detrimental to the interests of hundreds of thousands of individuals throughout the country, on the basis of conduct that had ceased. The conclusion is dubi- ous. Finally, this Court has said that the policies underlying a statute must inform the interpretation of the breadth of the statute’s injunctive relief provisions. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 544-45 (1987), is illustrative. In that case, the Court held that the Ninth 20 Circuit erred in directing the entry of an injunction pursuant to the Alaska National ‘Interest Lands Conservation Act (ANILCA). Id. at 545-46. Concluding that ANILCA did not deprive district courts of their traditional equitable discretion in shaping injunctive relief, the Court rebuked the Ninth Circuit for “erroneously focusing] on the statutory procedure rather than on the underlying substantive policy the process was designed to effect. . . .” Jd. at 544 (emphasis added). Like the Ninth Circuit in Gambell, which disregarded the purposes of the ANILCA, the Eleventh Circuit in this case gave insufficient attention to the purposes of SHVA and SHVIA. The permanent nationwide injunction ordered by the Eleventh Circuit would frustrate the Act’s primary goal of making network television programming available to all Americans. Likewise, it would frustrate the secondary goal of fostering a competitive balance between cable and satellite providers. Indeed, injunctive remedies for a cable company’s violations of a network’s copyrighted programming are discretionary. 17 U.S.C. §§111(c)(2), 502. By insisting that injunctive remedies for certain violations by satellite carriers of that same copyrighted programming are mandatory, the Eleventh Circuit gave a leg-up to cable companies. There is no firm indication that Congress intended the application of Section 119(aX(7)(B\i) to have that result.” ¢ ‘* The Eleventh Circuit’s interpretation could lead to other peculiar results. It would, for example, require the entry of a permanent nationwide injunction even if a copyright owner has unclean hands or unduly delayed seeking relief — considerations that courts, in the exercise of their discretion, routinely take into account in tailoring an injunction. See 11A Wright, Miller, & Kane, Federal Practice and Procedure §2946, at 108, 116 (2d ed. 1995). 21 CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, *THOMAS C. GOLDSTEIN AKIN GUMP STRAUSS HAUER & FELD L.L.P. 1333 New Hampshire Avenue N.W. Washington, D.C. 20036 *Counsel of Record MICHAEL C. SMALL AKIN GUMP STRAUSS HAUER & FELD L.L.P. 2029 Century Park East, Suite 2400 Los Angeles, California 90067 MARK A. NADEAU CYNTHIA A. RICKETTS SQUIRE, SANDERS & DEMPSEY L.L.P. 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 la 450 F.3d 505 United States Court of Appeals, Eleventh Circuit. CBS BROADCASTING, INCORPORATED, Fox Broadcasting Company, Plaintiffs-Counter-Defendants-Appellees, FBC Television Affiliates Association, ABC Television Affiliates Association, NBC Television Affiliates, CBS Television Affiliates Association, Plaintiffs-Counter-Defendants- Appellees-Cross-Appellants, ABC, Inc., Plaintiff, National Broadcasting Company, Plaintiff-Counter-Defendant, v. ECHOSTAR COMMUNICATIONS CORPORATION, dba DISH Network, EchoStar Satellite Corporation, Satellite Communications Operating Corporation, Direct SAT Corp., Defendants-Counter- Claimants-Appellants-Cross-Appellees. No. 03-13671. May 23, 2006. Cynthia A. Ricketts, Mark A. Nadeau, Squire, Sanders & Dempsey, L.L.P., Debora Lynn Verdier, Sanders & Parks, P.C., Phoenix, AZ; for Defendants-Counter- Claimants-Appellants-Cross-Appellees. Katherine A. Fleet, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, New York City, David M. Rogero, David M. Rogero, P.A., Miami, FL, Thomas P. Olson, A. Stephen Hut, Jr., E. Colin Rushing, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, Reid L. Phillips, David Kushner, Wade H. Hargrove, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Raleigh, NC, for Plaintiffs. 2a Charles C. Murphy, Jr., Vaughan & Murphy, Lawrence K. Nodine, Needle & Rosenberg, P.C., Atlanta, GA, for Amici Curiae, Keenan and Comer. Appeals from the United States District Court for the Southern District of Florida. Before TJOFLAT and HILL, Circuit Judges, and MILLS*, District Judge. TJOFLAT, Circuit Judge: The Satellite Home Viewer Act of 1988 (“SHVA”), Pub. L. No. 100-667, tit. II, 102 Stat. 3935 (codified as amended at 17 U.S.C. § 119), as amended by the Satellite Home Viewer Improvement Act of 1999 (“SHVIA”) (collectively, the “Act”), Pub. L.-No. 106-113, § 1001 et seg., 113 Stat. 1501, 1501A-523, gives satellite carriers a compulsory, statutory license to transmit copyrighted distant network programing’ to “unserved households,” that is, households unable to receive network -programing at a specified level of intensity through the use of conventional rooftop anten- nas.’ This case involves claims by network stations CBS * Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation. * “Distant network signals are network stations from outside a subscriber’s market area. For example, a person who lives in Fort Lauderdale but receives an ABC, CBS, Fox or NBC network station from New York City is receiving ‘distant network programming’ or ‘distant network stations.’” CBS Broad., Inc. v. EchoStar Commce’ns Corp., 276 F.Supp.2d 1237, 1241 (S.D.Fla.2003). * In its report, the House Committee on Energy and Commerce stated that it “believes that this approach will satisfy the public interest in making available network programming in these (typically rural) areas, while also respecting the public interest in protecting the network-affiliate distribution system.” H.R.Rep. No. 100-887(II), at 19- 20 (1988), reprinted in 1988 U.S.C.C.A.N. 5577, 5648. See also ABC, (Continued on following page) 3a Broadcasting, Inc. (“CBS”) and Fox Broadcasting Company (“Fox”), and network affiliate associations ABC Television Affiliates Association, CBS Television Network Affiliates Association, FEC Television Association, and NBC Televi- sion Affiliates Association (collectively, “networks”),’ that defendant EchoStar, a satellite carrier doing business as DISH Network,’ is retransmitting their programs to “served” households and thereby infringing their exclusive right, under the Copyright Act, to control the retransmis- sion of their programs. In CBS Broadcasting, Inc. v. EchoStar Communica- tions Corp., 265 F.3d 1193 (11th Cir.2001) (EchoStar TD, we vacated the district court’s preliminary injunction uphold- ing the networks’ claims and ordering EchoStar to cease transmitting the programs to “served households,” id. at 1193, and remanded the case to the district court for a trial on the networks’ application for injunctive relief pursuant to the Act. On remand, the district court found at the conclusion of the bench trial that EchoStar had not satisfied its statutory burden of proving 'that the house- holds at issue were unserved. CBS Broad., Inc. v. Inc. v. PrimeTime 24 Joint Venture, 184 F.3d 348, 350-51 (4th Cir.1999), CBS Broad., Inc. v. PrimeTime 24 Joint Venture, 48 F.Supp.2d 1342, 1355 (S.D.Fla.1998). - ° The Affiliate Associations are voluntary membership trade associations comprised of network stations that are affiliates with the respective networks. Plaintiffs ABC, Inc. (“ABC”) and National Broad- casting Company, Inc. (“NBC”) were dismissed and are no longer parties to the case. * As of April 2002, EchoStar provided satellite television services to over nine million Americans, including both local network subscribers under the compulsory license in 17 U.S.C. § 122, and distant network subscribers under the Act. EchoStar provided distant network pro- gramming to about 1.2 million subscribers. 4a EchoStar Commce’ns Corp., 276 F.Supp.2d 1237, 1248 (S.D.Fla.2003). In fact, in the district court’s judgment, the evidence indicated that EchoStar had been retransmitting the networks’ programs to thousands of served households. Id. at 1253-54. Given these findings, the networks asked the court permanently to enjoin EchoStar from any use of the Act’s statutory license for distant network programing. The court denied their request, and instead issued an injunction ordering EchoStar to use a different method for determining whether its subscribers are unserved house- holds. Jd. at 1254-55." EchoStar now appeals the court’s injunctive order and its grant of summary judgment to the networks on EchoStar’s counterclaims. The networks cross-appeal, contending that the district court was required as a matter of law permanently to enjoin the carrier from using the statutory license. We organize this opinion as follows. In Part I, we explain the statutory licensing scheme the Act created and the burden of proof a satellite carrier must satisfy to permit the court to find that the subscribers at issue are eligible to receive distant network programming. In Part II, we review how the trial proceeded, the district court’s findings of fact, and its legal conclusions. In Part III, we address both EchoStar’s and the networks’ claims of error. Despite reversing the district court’s determination that EchoStar’s use of two vendors was unlawful, we affirm on the remainder of EchoStar’s claims and the court’s conclu- sion that EchoStar engaged in a “willful or repeated” ° In addition to prescribing a method for determining subscriber eligibility, the court held that none of EchoStar’s current subscribers were eligible for grandfather status pursuant to 17 U.S.C. § 11%e). CBS Broad., Inc., 276 F.Supp.2d at 1257. 5a violation of the Act. We also hold that the court erred in not finding a “willful or repeated pattern or practice” of statutory violations, and in not barring EchoStar from further use of the license. In Part IV we briefly conclude. I. The scheme the Act created is set out in considerable detail in EchoStar I. We reiterate what was said there only to set the stage for the discussion that follows. As noted, SHVA created a compulsory, statutory license for satellite carriers to retransmit copyrighted network programming (“secondary transmission”) for private home viewing to “persons who reside in unserved households.” 17 U.S.C. 119%a)(2B)i).° SHVIA defines “unserved households” * Subject to provisions not relevant here, SHVA as amended, states that - (A) In general. - ... [Slecondary transmissions [i.e., re- transmissions] of a performance or display of a work embod- ied in a primary transmission made by a network station shall be subject to statutory licensing under this section if the secondary transmission is made by a satellite carrier to the public for private home viewing, with regard to secon- dary transmissions the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals, and the carrier makes a direct or indirect charge for such retransmission service to each subscriber receiving the secondary transmission. (B) Secondary transmissions to unserved households. - (i) In general. —- The statutory license provided for in sub- paragraph (A) shall be limited to secondary transmissions of the signals of no more than two network stations in a single day for each television network to persons who reside in un- served households. (Continued on following page) 6a by dividing them into five categories, the first three of which are pertinent here: 1. Households that “cannot receive, through use of conventional, stationary, outdoor rooftop receiving antenna, an over-the-air signal of a primary network station affiliated with that network of Grade B intensity as defined by the Federal Communications Commission under sec- tion 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999.” Id. § 119(d)(10)A). 2. Households that receive a waiver from each network station affiliated with a particular i network that is predicted to deliver a Grade B or better signal to the subscriber’s residence. Id. § 119(d)(10)(B), (a)(14), (a)(2)(B). 3. Households that (a) receive a signal of less than Grade A intensity for a particular net- work and (b) received satellite service of that net- work’s signals on October 31, 1999 or had such service terminated for SHVA ineligibility between July 11, 1998 and October 31, 1999 (“grand- fathered subscribers”). Id. §§ 119(d)(10)(c), (e).’ 17 U.S.C. §§ 119(aX2XA), (B)G). SHVA’s definition of “unserved households” was altered by the SHVIA amendment. The amended definition is controlling in this case. ” The fourth and fifth categories are: 4. Subscribers who receive distant signals through a satel- lite dish located on a commercial truck or recreational vehi- cle, and who satisfy the strict statutory documentation requirements. Id. § 119(d 10D), (aX12). 5. Subscribers who receive “secondary transmissions by C- band services of network stations that [the subscriber] received (Continued on following page) ) 7a Anticipating that litigation would ensue over whether households are served or unserved, Congress, as part of the SHVIA amendment, instructed that the courts may use two methods to resolve the issue: the “Accurate meas- urements” method and the “Accurate predictive model.” The “Accurate measurements” method requires actual physical measurements to determine the strength of the television station’s signal at the subscriber’s residence. Jd. § 119(a)(2)(B)Gi)(II). These measurements must follow the procedures elaborated in 47 U.S.C. § 339 and 47 C.FR. § 73.686, including measuring the signal intensity at a “minimum of five locations as close as possible to the specific site where the site’s receiving antenna is located.” 47 C.FR. § 73.686(d)(1)Gi). The “Accurate predictive mode)” for determining signal intensity is “the Individual Location Longley-Rice [ILLR] model set forth by the Federal Communications Commission.” 17 U.S.C. § 119(a)(2)(B)(ii)(1).” If used, the ILLR model permits the satellite carrier to avoid having to make time-consuming physical measurements of the signal intensity at a sub- scriber’s residence by allowing the carrier to establish presumptively that a household cannot receive at least a Grade B signal and is therefore unserved. See 17 U.S.C. § 119(a)(2)(B)Gi)\(1); EchoStar I, 265 F.3d at 1200. But before any termination of such secondary transmissions be- fore October 31, 1999.” Id. § 119% d)(10)(E), (a)(2)(B iii). * Prior to the SHVIA amendment, SHVA limited the statutory license to “secondary transmissions to persons who reside in unserved households,” 17 U.S.C.A § 119(a)(2)(B) (West, Westlaw through Novem- ber 28, 1999 amendments), but did not set out specific ways in which a satellite carrier could demonstrate whether a household was unserved. The FCC adopted ILLR as a method for determining signal strength in February 1999. See EchoStar I, 265 F.3d at 1204. 8a ILLR determinations are nothing more than presumptive- eligibility is ultimately based on the signal strength a household actually receives, as measured by on-site testing. See 17 U.S.C. § 119(a)(2)(B)(ii(1) (indicating that the ILLR model is to be used “[i]Jn determining presump- tively whether a person resides in an unserved house- hold”); H.R. Rep. 106-464, at 97 (1999) (Conf.Rep.) (Joint Explanatory Statement of the Committee of Conference) (“(Clourts should rely on the FCC’s ILLR model to pre- sumptively determine whether a household is capable of receiving a signal of Grade B intensity. ... [T]he ultimate determination of eligibility to receive network signals shall be a signal intensity test pursuant to 47 C.F.R. § 73.686(d), as reflected in new section 339(c)(5) of the Communica- tions Act of 1934.”). The Act makes abundantly clear that it is the satellite carrier who bears the burden of proving that its subscrib- ers are, in fact, unserved. 17 U.S.C. § 119(a)(7)(D).’ Plain- tiff network stations have no obligation to put on any evidence demonstrating a violation of the terms of the statutory license. To the extent networks put on affirma- tive evidence of ineligibility, a satellite carrier cannot simply rebut or impeach that evidence. The satellite _ carrier must provide additional evidence that its chal- lenged subscribers are unserved. Thus, a satellite carrier * This provision states: Burden of proof. - In any action brought under this para- graph, the satellite carrier shal] have the burden of proving that its secondary transmission of a primary transmission by a network station is to a subscriber who is eligible to re- ceive the secondary transmission under this section. 17 U.S.C. §.119%(aX7)(D). 9a may be found to have violated the Act even if a court does not find that its subscribers are “served.” A violation occurs so long as a carrier does not satisfy its burden of proving that its subscribers are “unserved.” The Act contemplates two categories of violations as it relates to the secondary transmission of distant network service to served households: “Individual violations” and “Pattern(s] of violations.” An “Individual violation” occurs where there is a “willful or repeated secondary transmis- sion ... to a subscriber who is not eligible to receive the transmission under this section.” Jd. § 119(a)(7)(A). A district court has broad discretion to remedy such viola- tion(s). See id.; id. §§ 502-506, 509. A “Pattern of viola- tions” arises where “a satellite carrier engages in a willful or repeated pattern or practice of delivering [distant network service} to subscribers who are not eligible to receive the transmission under this section.” Id. § 119(a)(7)(B). The Act grants a court no discretion in its choice of remedy for a “pattern or practice” of violations.” Upon finding such a “pattern or practice,” the Act instructs that “the court shall order a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network, and the court may order statutory damages of not to exceed $250,000 for each 6-month period during which the pattern or practice was carried out.” Jd. § 119(a)(7)(Bi)."' ° EchoStar contends that courts retain their traditional equitable discretion regardless of the Act’s explicit limitations. As we discuss infra, we disagree. " The scope of the permanent injunction depends on the scope of the “pattern or practice” of violations. Where the “pattern or practice” (Continued on following page) 10a I, Despite not having the burden of proof at trial, plain- tiffs presented affirmative evidence, in the form of expert testimony from Jules Cohen as well as ILLR analyses of EchoStar’s subscribers at various points in time, tending to demonstrate that EchoStar has provided, and continues to provide, distant network service to ineligible house- holds. EchoStar responded with the testimony of company executives, as well as that of Dr. Charles Jackson, an expert whose testimony was intended to criticize plaintiffs’ expert testimony and whom the court determined lacked credibility. CBS Broad. Inc., 276 F.Supp.2d at 1244, 1252 n. 10. The court specifically and correctly noted that merely impeaching the plaintiffs’ affirmative evidence would be insufficient given defendant’s statutory burden. Id. at 1244. After evaluating the evidence presented by the parties, the court made the following findings of fact and conclusions of law.” A. Findings of Fact 1. EchoStar’s History of Compliance Procedures From March 1996 to July 1998, EchoStar offered distant network programming through an agreement with another satellite provider, PrimeTime 24 Joint Venture. PrimeTime 24 utilized a subjective method of determining has been carried out on a “substantially nationwide basis,” the Act mandates a nationwide injunction. See 17 U.S.C. § 119(a)(7)(B)i). A local or regional “pattern or practice” results in a permanent injunction limited to “that locality or region.” See id. § 119(a)(7 BXii). “ We summarize only those findings that are relevant to this appeal. lla subscriber eligibility based simply on a potential sub- scriber’s qualitative evaluation of her television signal. In 1998, the United States District Court for the Southern District of Florida issued first a preliminary, then a permanent injunction requiring PrimeTime 24 to termi- nate the delivery of distant network signals to subscribers who had been signed up using this subjective method. Days after the entry of the injunction, EchoStar termi- nated its agreement with PrimeTime 24 and canceled its subscribers’ PrimeTime 24 distant network programming packages. EchoStar then switched virtually all subscribers to new, EchoStar-designed distant network programming packages. After EchoStar terminated its relationship with PrimeTime 24, it began evaluating new-subscriber eligibil- ity through a system referred to as the “red-light/green- light method.” Under this system, each zip code was designated as either a red-light or a green-light zip code- based on predicted signal strength. A household in a red- light area was presumptively ineligible for service. EchoStar claims that it refused to sign up subscribers who lived in red-light zip codes unless the subscribers obtained a valid waiver from the network station. The district court found, however, that EchoStar presented no real evidence. that its determination of whether zip codes were red-light or green-light areas was reasonably calculated to prevent signups of ineligible subscribers. Additionally, the court found that EchoStar’s customer service representatives were able to override the red-light/green-light designations — that is, even if a subscriber was in a red-light zip code, a customer service representative still had discretion to sign up that subscriber for distant network programming. 12a EchoStar began using the ILLR model to determine subscriber eligibility in 1999. Echostar’s ILLR methodol- ogy involved the following three relevant factors: First, until October 2000, EchoStar utilized a “DMA Rule” by which it only used the ILLR model to consider the signal strength of network stations in a given household’s Niel- sen-defined designated market area (“DMA”). In other words, even if a household received a Grade B or higher signal from network stations outside a household’s DMA, EchoStar would consider it potentially unserved. Addi- tionally, EchoStar included interference in its ILLR analyses until January 2002.” Finally, EchoStar utilized (and continues to use) two vendors — Decisionmark and Dataworld — for its ILLR analysis. So long as one vendor indicates that a household cannot receive a Grade B signal, EchoStar considers the household to be unserved.” The district court found that recently, EchoStar has taken significant measures to ensure compliance with the Act. Customer service representatives are trained and are no longer able to override system determinations of subscriber ineligibility. Additionally, EchoStar uses a backup compliance system and, on a monthly basis, reanalyzes all new subscribers to ensure eligibility. EchoStar terminates distant network programming to any subscribers found to be ineligible. " Incorporating interference in the ILLR analysis can-potentially result in weaker predicted signal strength, as the model would then factor in the predicted presence of interfering signals from other stations. ‘* The two vendors might differ in their ILLR output as a result of database inaccuracies. CBS Broad. Inc., 276 F.Supp.2d at 1250. 13a 2. Analysis of EchoStar’s Subscriber Base Plaintiffs presented analyses of EchoStar subscriber lists at different points in time. The analyses were super- vised and explained by plaintiffs’ expert witness, Jules Cohen. a. PrimeTime 24 Subscribers In an effort to dissuade the district court from issuing the original injunction in this case, EchoStar’s CEO, Charles Ergen, made a formal pledge under penalty of perjury in September 1999. In that pledge, he promised that for each of the subscribers that had originally been signed up for EchoStar’s distant network programming using the subjective PrimeTime 24 method, EchoStar would (1) determine if they were served or unserved using the ILLR method and (2) terminate all ineligible subscrib- ers. To comply with this promise, EchoStar submitted a list of its 331,586 PrimeTime 24 subscribers to Decision- mark, an ILLR vendor, for an ILLR analysis. EchoStar received the analysis the following month. The analysis revealed that of the 331,586 total sub- scribers signed up for distant network programming with EchoStar pursuant to the agreement with PrimeTime 24, the percentages of Grade A subscribers were 61% (ABC), 60% (CBS), 58% (Fox), and 60% (NBC). These totals amount to more than 258,000 former PrimeTime 24 * We believe it is worth re-emphasizing: An unserved household is one that cannot-receive a Grade B signal, let alone the stronger Grade A variety. 17 U.S.C. §119(d)(10XA). Subscribers receiving a Grade A signal are not even eligible for grandfather status pursuant to section 119(e). l4a subscribers (approximately 78% of the total) who were predicted to receive a Grade A signal from at least one of the four networks. Contrary to Ergen’s promise, the district court found no evidence that EchoStar terminated service to any of these subscribers for compliance-related purposes. CBS Broad., Inc., 276 F.Supp.2d at 1245-46. b. Red-Light/Green-Light Subscribers The district court found that during the period in which EchoStar utilized the red-light/green-light method- ology, it signed up a substantial number of subscribers in the ineligible red-light zip codes. For example, between November 1988 and March 1999 EchoStar signed up 62,374 red-light subscribers for CBS distant network programming and 63,979 red-light subscribers for Fox distant network programming. An ILLR analysis of this group of subscribers shows that 167,000 are predicted to receive a Grade B or better signal.” Of the CBS distant programming subseribers signed up during this period, 69% were predicted to receive at least a Grade B signal and 41% were predicted to receive a Grade A signal. Id. at 1242. c. September 1999 Subscriber List Along with its submission of PrimeTime 24 subscrib- ers, EchoStar submitted a list of all of its distant network receiving subscribers as of September 1999. The results * EchoStar objects to an ILLR analysis of subscribers signed up before the ILLR methodology was incorporated into the Act via the SHVIA amendment as an impermissible retroactive application of the amendment. As discussed, infra, we disagree. 15a were no more encouraging. Of its 879,808 distant network subscribers, 53% were predicted to receive a Grade A signal for ABC, 51% for CBS, 48% for Fox and 52% for NBC. An additional 18% for ABC, 21% for CBS, 12% for Fox, and 27% for NBC were predicted to receive a Grade B signal. As of September 1999, 72% of EchoStar’s distant network subscribers (630,000 subscribers), regardless of the compliance method used to enroll them, were predicted to receive a Grade A signal from at least one of the four networks. The district court found no evidence that EchoStar, despite receiving the analysis in October 1999, terminated any of the 630,000 Grade A subscribers for compliance reasons. Jd. at 1245. d. April 2002 Subscriber List During the course of pre-trial discovery, EchoStar provided the plaintiffs with a list of its subscribers as of April 25, 2002. Plaintiffs submitted the list for ILLR analysis under Cohen’s supervision. This analysis showed that hundreds of thousands of EchoStar’s distant network programming subscribers are predicted to receive signals of Grade A or B. Of the 898,847 ABC subscribers, 50.9% (457,584) were predicted to receive a Grade B or better signal from an ABC station; 28.5% (255,980) of those were Grade A. Of the 864,494 CBS subscribers, 55.7% (481,659) were predicted to receive a Grade B or better signal] from a CBS station; 28.2% (244,022) of those were Grade A. Of the 993,490 Fox subscribers, 38.7% (383,987) were pre- dicted to receive a Grade B or better signal from a Fox station; 25.8% (256,741) of those were Grade A. Of the 867,240 NBC subscribers, 56.4% (489,315) were predicted 16a to receive a Grade B or better signal from an NBC station; 29.6% (256,503) of those were Grade A. Id. at 1243.” B. Conclusions of Law” The district court concluded that “EchoStar has failed to meet its burden of proving that its subscribers are ‘unserved households,’” within the meaning of the Act. Jd. at 1248.” The court noted that, after a trial in which " The court also considered the impact that grandfather status and waivers might have on the analysis assuming that all of EchoStar’s claims to such subscriber eligibility were valid. This analysis revealed more of the same: Of the 898,847 ABC subscribers, 26.5% (238,048) were predicted to receive a Grade B or better-signal from an ABC station; 18.3% (164,409) of those were Grade A. Of the 864,494 CBS subscribers, 26.9% (232,699) were predicted to receive a Grade B or better signal from a CBS station; 17.6% (152,140) of those were Grade A. Of the 993,490 Fox subscribers, 20.2% (200,422) were predicted to receive a Grade B or better signal from a Fox station; 15.8% (156,906) of those were Grade A. Of the 867,240 NBC subscribers, 28.1% (243,342) were predicted to receive a Grade B or better signal from an NBC station; 18.8% (163,011) of those were Grade A. CBS Broad., Inc., 276 F.Supp.2d at 1244. * Prior to trial, in an order dated March 24, 2003, the district court granted summary judgment to the networks on EchoStar’s counter- claims. EchoStar had sued alleging tortious interference, unfair competition, and conspiracy to commit tortious interference and unfair competition based on statements made by plaintiffs, plaintiffs’ counsel, local network affiliates and the National Association of Broadcasters. The court concluded that, based on Florida law — which both parties agreed should apply — “EchoStar has failed to present evidence that raises a general [sic] issue of materia! fact that would establish that Plaintiffs possessed the requisite intent and that EchoStar was harmed by the statements at issue.” Order at 8. * The court fluctuated in its conclusions as to whether it found that EchoStar had in fact provided service to ineligible households or that EchoStar had failed to satisfy its burden of demonstrating that its subscribers were unserved. Compare id. at 1253 (“EchoStar has failed to present credible evidence, either in the form of an ILLR analysis or (Continued on fellowing page) 17a EchoStar presented no ILLR analysis or on-site signal intensity measurements, EchoStar had failed to prove that any of its subscribers cannot receive a network signal of at least Grade B strength. Jd. Moreover, the court found fault with EchoStar’s ILLR methodology. Jd. at 1249-50. First it found the “DMA Rule” to be an improper method to ensure compliance with the Act. Additionally, it found that EchoStar’s use of interference in its ILLR mode! from May 2000 to January 2002 was improper.” Finally, the court found that EchoStar’s past and present use of two ILLR vendors, whereby EchoStar always chooses the vendor that designates a subscriber as unserved whenever there is a discrepancy, was, and continues to be, unlawful. The court also found that “EchoStar has not met its burden in showing that any of its distant signal subscrib- ers meet the grandfathering requirements,” of section 119(e). Jd. at 1250. As previously indicated, to be eligible for grandfather status, a subscriber must (1) have been a subscriber on October 31, 1999 or have had distant net- work service terminated pursuant to the Act between July signal intensity measurements, that any of its subscribers are unserved as defined under SHVA.”) with id. at 1248-49 (“Mr. Cohen’s testimony and reports ... support the conclusion that hundreds of thousands of EchoStar’s distant network programming subscribers are not unserved households.”); id. at 1252 (“EchoStar has provided service to a large number of subscribers who have been incorrectly issued grandfather status.”). As we discuss, infra, the distinction is immaterial in this context. The two conclusions are equivalent violations of the statute. * In May 2000, the-FCC issued a First Report and Order and published a “cookbook” describing how the ILLR model is to be em- ployed. The May 2000 publications eliminated interference as a factor to be included in the model. CBS Broad., Inc., 276 F.Supp.2d at 1249. The Act permits reliance on the ILLR model “set forth by the [FCC]... as that model may be amended by the Commission over time ... to increase the accuracy of that model.” 17 U.S.C. § 119% aX2)ByXii)(1). 18a 11, 1998 and October 31, 1999 and (2) receive a signal of less than Grade A intensity. 17 U.S.C. § 119%e). EchoStar presented no evidence that its putative grandfathered subscribers receive a signal of less than Grade A intensity, no list of subscribers as of October 31, 1999 and no list of subscribers terminated, for Act compliance reasons, between July 11, 1998-and October 31, 1999. More impor- tantly, EchoStar did present testimony that it does not have a list of its subscribers as of October 31, 1999. CBS Broad., Inc., 276 FSupp.2d at 1251. Thus, because EchoStar had not demonstrated that any of its subscribers were eligible for grandfather status, and conceded that it did not have the data necessary ever so to prove, the court refused to acknowledge any alleged grandfather subscrib- ers as eligible, id. at 1251-52, and held that “EchoStar subscribers are no longer entitled to grandfather status,” id. at 1257.” Finally, the district court concluded that EchoStar “failed to prove that any of its subscribers are eligible because they have obtained waivers from the relevant network stations,” pursuant to 17 U.S.C. § 119(a)(14). Id. at 1252. EchoStar again made use of its “DMA Rule” in this context and only sought waivers from stations in a subscriber’s DMA. Because EchoStar did not consider ” As part of its discussion, the court concluded that eligibility for grandfather status depends upon the strength of signal a subscriber currently receives, not the strength of signal received on October 31, 1999. CBS Broad., Inc., 276 F.Supp.2d at 1251. In other words, eligibility for grandfather status can change over time as the signal strength a household receives changes. We believe that this is the correct interpretation of the statutory language and is consistent with our conclusion, discussed infra, that the Act imposes a requirement of continual subscriber eligibility based on the strength of network signal that a given household receives. 19a subscribers who received Grade B or stronger signals from stations outside the subscribers’ DMA to be served, they did not seek waivers from those stations. The court, however, concluded that “(flor a particular household to have a valid waiver with respect to a particular network, it is necessary to obtain a waiver from every station affili- ated with that network that the ILLR model predicts to deliver a Grade B signal to the household.” Jd. Thus, because EchoStar did not present evidence that it had obtained waivers from all relevant stations, the court held that EchoStar did not carry its burden of proving that any of its subscribers were unserved on account of valid waivers. Id. As a result of these findings, the district court con- cluded that EchoStar’s conduct and failure to satisfy its statutory burden amounted to a “willful or repeated” copyright infringement, which was actionable pursuant to 17 U.S.C. § 119(a)(7)(A). Jd. at 1253.” The court declined, however, to find that EchoStar engaged in a “pattern or practice” of violations. According to the Act, upon such a “ The district court found that EchoStar’s action constituted “willful or repeated” violations under two interpretations of “willful or repeated.” The court first noted that “{iJn order to prove willfulness, ‘it is necessary only to show that a person knew it was doing the acts in question, not that the person knew those acts were wrong.’” CBS Broad. Inc., 276 F.Supp.2d at 1253 (quoting CBS Broad., Inc., 48 F.Supp.2d at 1356). The court also found that EchoStar had acted willfully under a gross negligence standard for willfulness. Jd. EchoStar did not challenge either interpretation and we therefore need not resolve the issue here. We pause only to note that the strict-liability- like former definition may be inconsistent with our prior opinion in which we referred to a “willful desire to avoid compliance,” EchoStar /, 265 F.3d at 1204. Regardless, we are confident that the record demon- strates that EchoStar knew what it was doing and knew it was not in compliance with the Act. 20a finding, “the court shall order a permanent injunction” barring the satellite carrier from providing distant net- work service of any network station affiliated with the infringed-upon network. 17 U.S.C. § 119(a)(7)(B)i). The court did not find it necessary to determine conclusively whether EchoStar had ever engaged in a “pattern or practice” of violations, because “no such pattern or practice currently exists which would warrant such an extreme sanction.” Jd. at 1254. Accordingly, the court crafted an injunction designed to remedy the willful or repeated individual violations of the Act. Jd. at 1255-58. ITI. Both EchoStar and plaintiffs appealed. We address EchoStar’s appeal before moving on to the plaintiffs’ claim that EchoStar engaged in a “pattern or practice” of viola- tions and, as a result, the district court was obligated by the statute to issue a permanent, nationwide injunction. We review the district court’s findings of fact for clear error. and its interpretation of the SHVA de novo. See United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999) (“The interpretation of a statute is a question of law subject to de novo review.”); Fed.R.Civ.P. 52(a) (“In all actions tried upon the facts without a jury or with an advisory jury ... [flindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”).” f * The district court relied upon the testimony of the networks’ expert witness, Jules Cohen, throughout its Findings of Fact and (Continued on following page) 2la In this appeal, EchoStar has alleged a staggering seventeen claims of error.“ Despite EchoStar’s apparent characterization of the trial as one of gross mismanage- ment, utter incompetence, and widespread chaos, we find the district court’s orders and opinions to be generally thoughtful, careful, and well-reasoned. We applaud the court’s efforts in dealing with a complicated, technical matter — oftentimes in spite of, rather than with the aid of, defendant’s cooperation. We find the vast majority of EchoStar’s claims to be completely without merit and address those briefly in the margin.” Conclusions of law, and specifically questioned the credibility of EchoStar’s expert witness, see CBS Broad., Inc., 276 F. Supp.2d at 1244, 1252 n. 10. Because “[a]ppellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony,” Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.1983), we do not second guess the court's judgments. ” * In EchoStar’s opening brief, these claims are sometimes clearly correlated to section headings, and other times they are overlapping and/or only tangentially mentioned in the course of discussing another alleged error and left for this court to discover and evaluate. * EchoStar contends that the district court erred by “entering an overly broad permanent injunction,” because the court ruled that none of EchoStar’s subscribers had valid waivers and none were properly considered “grandfathered” or could ever be considered “grandfathered.” See CBS Broad., Inc., 276 F.Supp.2d at 1257. The scope of an injunction is reviewed for abuse of discretion. Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir.1996). As we discuss, infra, we agree with the district court’s conclusion that the “DMA Rule’ is inconsistent with the Act, and therefore EchoStar has not carried its burden of proving that any of its subscribers have valid waivers from all the necessary network stations. EchoStar also claims that the injunctive requirement of a “written waiver” is infeasible given electronic record-keeping and the possibility of waiver-by-failure-to-respond. (Continued on following page) 22a Neither we, nor plaintiffs, read into the court’s injunction an inflexibility that would make it inconsistent with those realities. With respect to grandfathered subscribers, because EchoStar failed to provide any evidence that any of its subscribers met any of the criteria for grandfathered status, and represented that it did not have the data to do so, the district court committed no error in concluding that none of the subscribers were or could ever be demonstrated to be grandfathered. EchoStar attempts to counter by suggesting that “it is literally impossible that not one of EchoStar[’s) subscribers is ‘grand- fathered.’” Appellant’s Reply Brief at 12. The argument is too clever by half. EchoStar seems to overlook the fact that it simply does not matter whether this is true; EchoStar, not the networks, and certainly not the court, has the burden of demonstrating that any given subscriber is grandfathered. Accordingly, we cannot say that the district court abused its discretion in crafting the injunction. EchoStar makes a related argument that, by denying subscribers their duly-earned grandfathered status, the court deprived them of their property without due process of law. EchoStar relies primarily on language in EchoStar I, that “eligibility [for grandfathered status] belongs to the subscriber, and nothing is said in the statute about carriers.” 265 F.3d at 1212. Even assuming that this language vests in subscribers a property interest for which they are entitled to due process, it is certainly not a right to receive service from EchoStar. EchoStar’s current subscribers are free to seek grandfathered eligibility from another satellite carrier so long as it can be proven that they qualify. We therefore reject EchoStar’s constitutional argument. EchoStar further maintains that the district court erred by admitting Jules Cohen’s testimony in violation of Fed.R.Evid. 702 because his testimony was based on ILLR analyses performed by Decisionmark. A trial court’s decision to admit expert testimony is reviewed for abuse of discretion. A.A. Profiles, Inc. v. City of Fort Lauderdale, 253 F.3d 576, 581 (11th Cir.2001). EchoStar does not contest that Cohen was qualified as an expert. Fed.R.Evid. 703 provides that if “facts or data in the particular case upon which an expert bases an opinion or inference” are “of a type reasonably relied upon by experts in the particular field,” then “the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” We cannot say that the district court abused its discretion in determining that it was reasonable for Cohen to rely on Decisionmark’s model output as the basis for his testimony. (Continued on following page) 23a EchoStar also claims that the court erred by not requiring the networks to prove irreparable harm before entering a permanent injunction. Under the Copyright Act, however, a plaintiff need not show irreparable harm in order to obtain a permanent injunction, so long as there is past infringement and a likelihood of future infringement. See Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1499 (11th Cir.1984). More- over, the district court did find that the networks demonstrated harm due to EchoStar’s delivery of illegal distant network programming to served households, because the number of viewers attributed to a particular television station determines the price it can charge adver- tisers. If a Nielsen household receives a network from a different city, then that household will not be counted as a viewer of the Jécal network affiliate, causing harm to that affiliate. EchoStar further argues that the district court prejudiced EchoStar by denying critical discovery and refusing to continue the trial, despite numerous discovery motions remaining pending until the eve of trial. Discovery rulings will not be disturbed absent an abuse of discretion and substantia] harm to the party seeking relief. See Arabian Am. Oil Co. v. Scarfone, 939 F.2d 1472, 1477 (11th Cir.1991). We do not find that the court’s discovery rulings and scheduling decisions were abuses of discretion that substantially harmed EchoStar. EchoStar also claims that the district court erred by finding that the networks had proven their ownership of the copyrights in question, and by entering a nationwide permanent injunction based on television programs which aired before EchoStar provided distant network programming. This argument is meritless. In its opinion vacating the preliminary injunction, this court stated that “[t]he Networks own the copyright or exclusive rights in numerous television programs broad- cast by CBS, Fox, ABC, and NBC network stations.” EchoStar I, 265 F.3d at 1196. The district court did not err by reaching the same conclusion on remand. We also agree with the district court’s March 31, 2003 Order addressing this argument. EchoStar next argues that the Affiliate Associations do not have standing to bring this action. Individual affiliate stations have standing pursuant to 17 U.S.C. § 501(e). We agree with the district court that the Affiliate Associations meet the requirements for representational standing under Hunt v. Washington State Apple Advertising Commis- sion, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). EchoStar also asserts that the court erred by granting summary judgment to the networks on EchoStar’s counterclaims, see supra note 18. In reviewing a district court’s grant of summary judgment, we view (Continued on following page) 24a 1. EchoStar’s ILLR Methodology EchoStar claims that the district court erred in its interpretation of the Act and its application to three components of EchoStar’s ILLR methodology. Although we reject Echostar’s first two arguments, we agree that the Act does not proscribe the use of multiple vendors. Be- cause this determination has no bearing on EchoStar’s failure to carry its statutory burden of proof, it does not impact the ultimate disposition of this case. the evidence in the light most favorable to the non-moving party. See Chapman v. Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir.1988). “Where the circumstantial evidence and reasonable inferences drawn therefrom create a genuine issue of material fact for trial, summary judgment is improper.” /d. at 1518-19. “However, an inference based on speculation and conjecture is not reasonable.” Jd. at 1518. We agree with the district court that the evidence presented by EchoStar purportedly establishing intent and harm was “nothing more than speculation” and “mere belief.” As such, no trier-of-fact, based on the evidence presented and the reasonable inferences that could be drawn therefrom, could find that EchoStar made out a claim for tortious interference, unfair competition, or a conspiracy to commit either. Nor does EchoStar point to any outstanding discovery requests that would have produced any evidence capable of altering this conclusion. Lastly, EchoStar claims that the district court erred in striking EchoStar’s jury trial demand days before trial. There is no right to a jury trial, however, when the plaintiffs seek purely equitable relief such as an injunction. See Ford v. Citizens & S. Nat'l Bank, 928 F.2d 1118, 1121-22 (11th Cir.1991). A request for attorney's fees does not change that result. See Whiting v. Jackson State Univ., 616 F.2d 116, 122 n. 3 (5th Cir.1980). It therefore was not reversible error for the district court to strike EchoStar’s demand. 25a a. “DMA Rule” EchoStar claims that, contrary to the district court’s determination, the Act endorses the “DMA Rule.”” Thus, EchoStar contends that so long as the network station in a household’s Nielsen-defined DMA does not provide a Grade B or better signal, the household is properly consid- ered unserved. The district court concluded, however, that if a household receives any signal of Grade B or better, regardless of its source, the household is served with respect to that network. We agree with the district court’s interpretation of the Act. The Act defines “unserved household” with respect to a given network as one that “cannot receive ... an over-the-air signal of a primary network station affiliated with that network of Grade B intensity.” 17 U.S.C. § 119(d)(10)A) (emphasis added). The definition is not limited to “the primary network station in the household’s DMA.” It refers to the signal of any network station. The plain meaning of the statute is not altered by EchoStar’s oblique reference to 17 U.S.C. § 122(j)(2)’s definition of “local market,” which is somehow supposed to shed light on the meaning of “local service area” as used in 17 U.S.C. § 501(e). Not only is this end-around unconvincing, it is unnecessary given the clear language of the statute. Thus, * Relatedly, EchoStar claims that if the Act prohibits the “DMA Rule,” it “improperly expands the affiliates’ contractual rights.” Appellants Brief at 33. This argument is bewildering. Even if it is factually correct, we have difficulty understanding why Congress is not free to define the scope of EchoStar’s statutory right. Evidently, according to EchoStar, it is perfectly legitimate for Congress to constrict any contractual right the affiliate may have had by granting satellite carriers a statutory license, but an expansion of anyone else’s right is wholly inappropriate. We disagree. 26a we agree with the district court that EchoStar’s use of the “DMA Rule” was in violation of the Act. b. Use of Interference EchoStar also objects to the district court’s conclusion that the use of interference in the [LLR model was im- proper after May 2000. We agree with the district court’s ~ resolution of this issue. As the court noted, in May 2000, the FCC issued a First Report and Order that made modifications to the ILLR model and provided a step-by- step “cookbook” describing how the model was supposed to be run. A prior “cookbook” had included interference, but the May 2000 and July 2002 “cookbooks” specifically and clearly omitted it. After the SHVIA amendment, the Act permits use of the ILLR model “set forth by the [FCC] ... , as that model may be amended by the Commission ... to increase the accuracy of that model.” 17 U.S.C. § 119(a)(2)(B\ii(1).” Accordingly, the use of any ILLR method that does not comply with the specific procedures * In its reply brief, EchoStar contends that removing interference from the ILLR model is beyond the scope of the FCC’s authority. The argument runs as follows: because the Act only permits the FCC to improve the accuracy of the model, and removing interference un- equivocally worsens the accuracy of the model, the FCC action was ultra vires, and should be invalidated pursuant to Chevron U.S.A., Inc. v. Natural Res. Defendant. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This distinct administrative law issue was not raised in EchoStar’s initial brief and is therefore waived. Moreover, even if the argument had not been waived, EchoStar points us to nowhere in the record where this issue was specifically raised and litigated. Absent an exhaustive bench trial and considering the deference due to administrative agencies in the conduct of their technological expertise, we would be extremely reluctant to determine that it was plain error to conclude that the FCC acted within the scope of its authority. 27a the FCC establishes for the model cannot be said to conform to the Act’s requirements. Therefore, because EchoStar’s model included interference and thereby did not conform to the FCC’s specifications, it did not comply with the Act and the district court could have determined that the non-compliant model provided no presumptive evidence of eligibility. - ¢. Use of Two Vendors EchoStar claims that it was error to hold that the Act prohibits the use of multiple ILLR vendors in assessing subscriber eligibility. The district court concluded that “EchoStar could have chosen either of these two competent vendors to check the ILLR status of its subscribers,” CBS Broad., Inc., 276 F.'Supp.2d at 1250, but because EchoStar ~ used both vendors to exploit inconsistencies between the two, it acted unlawfully. We find nothing in the Act to support this conclusion. The statute provides that “[iJn determining presumptively whether a person resides in an unserved household ... , a court shall rely on the [ILLR] model set forth by the [FCC].” 17 U.S.C. § 119(a)(2)(B)(@i)(D. So long as a satellite carrier uses vendors whose models comply with the FCC’s ILLR guidelines, the carrier may utilize as many different vendors as it would like. We note, however, that the ILLR model is only a presumptive determination of eligibility, and the satellite carrier bears the ultimate burden of proving that a household is un- served. Unless there is evidence that one model is more accurate than another — which, in this case, EchoStar’s witnesses did not suggest — when the models produce conflicting results, it would be difficult to conclude that a satellite carrier has satisfied its burden of proof. In such circumstances it would likely be necessary to obtain an 28a accurate measurement pursuant to section 119(a)(2)(B)(iiX ID) to demonstrate subscriber eligibility.” Thus, while Echo- Star’s use of two ILLR vendors may negatively affect its ability to satisfy its burden, it is not necessarily unlawful to do so. 2. Retroactive Application and Present Eligibility Finally, EchoStar argues that SHVIA’s ILLR provi- sions either do hot apply retroactively to customers signed up before SHVIA was passed, or if they do apply retroac- tively, they do so in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Relatedly, EchoStar argues that the district court erred by interpret- ing the Act “to imply an obligation upon satellite carriers to constantly re-test and re-qualify subscribers each time” the model changes or the model input, such as station power or antenna direction, changes. We address these arguments separately. EchoStar contends that any requirement that it qualify its subscribers by an ILLR model cannot be applied to subscribers who signed up prior to the incorporation of the ILLR provisions into the Act. So applying the SHVIA amendment, according to EchoStar, would be unconstitu- tionally retroactive. We do not see how this could possibly * In this regard, we find it hard to believe that EchoStar could benefit by using two vendors aside from being alerted to households for which EchoStar mj .to conduct an on-site measurement. Utilizing a second vendor will not likely provide the necessary proof that a household, deemed served by the first vendor, is presumptively unserved. Moreover, inconsistencies between the vendors could possibly force the court to question whether a household, which would have been presumptively unserved based on the first vendor alone, should be considered presumptively unserved. 29a be so. Neither the Act nor the district court’s opinion imposes any requirement that EchoStar ever use an ILLR model in any way. All the Act requires — and has ever required — is that EchoStar subscribers be unserved. The definition of an “unserved household” was originally, and continues to be, a household that “cannot receive, through the use of a conventional outdoor rooftop receiving an- tenna, an over-the-air signal of grade B intensity (as defined by the Federal Communications Commission) of a primary network station affiliated with that network.” Pub. L. No. 100-667, tit. II, § 202, 102 Stat. 3935, 3957; 17 U.S.C. § 119(d)(10)(A). Prior to the SHVIA amendments, courts may or may not have regarded ILLR results as presumptive indications of signal strength. The amend- ment simply made that presumption clear. But the touch- stone of eligibility has always been whether a given household actually receives a Grade B or stronger network signal. By incorporating the ILLR into the Act, Congress gave satellite carriers a relatively cheap and convenient method of presumptively establishing eligibility. It allowed the satellite carriers to satisfy its burden of proof — which could then be rebutted if the network station performed an actual measurement — without on-site testing at every household. To the extent the ILLR model exposed house- holds that were previously considered unserved as served, those households were never actually entitled to service. As such, SHVIA did not apply a retroactive obligation on satellite carriers. Rather it provided an evidentiary tool to enable the carriers to prove what it was always required to prove. EchoStar raises a related but distinct concern: it does not believe that the Act imposes an obligation to re-test and re-qualify subscribers once they have already been 30a qualified.” According to Echostar, so long as a subscriber is eligible (apparently, presumptively or actually) upon sign- up, the subscriber is always and forever eligible. We do not interpret the Act to impose such a one-time-only require- ment. To begin, we note that the Act is drafted in the present tense, without qualification; it limits the license to transmissions “to persons who reside in unserved house- holds.” 17 U.S.C. § 119(a)(2B)G) (emphasis added); see also id. § 119(a)(2)B)GiT) (prescribing use of ILLR model to “determin{e] presumptively whether a person resides in an unserved household” (emphasis added)); id. § 11% a)(2B)iiXTD) (providing for use of on-site measurements “to determine whether a person resides in an unserved household” (emphasis added)). The clear indication is that a person must always reside in an unserved househoid, not just initially. We recognize the possibility, however, that a person can be said to be “residing” in an unserved household, regardless of current conditions, if a household were deemed forever “unserved” so long as it met the eligibility requirements at sign-up. We therefore look to the definition *° EchoStar believes this is the consequence of interpreting the SHVIA ILLR amendments to apply “retroactively.” As we discussed, we do not believe SHVIA imposed any new requirement on the satellite carrier and therefore cannot be said to have required carriers to re-test and re-qualify existing subscribers. Because the argument is phrased in terms of re-testing upon changes in station power and antenna direc- tion, however, we interpret the argument as an objection to the on- going qualification requirement with respect to changes in inputs such as signal strength that can affect whether the ILLR model presump- tively establishes eligibility and whether a given household is, in fact, served. EchoStar argues that it is only obligated to demonstrate eligibility at sign-up regardless of any changes in conditions that might affect that determination. Sla “au of “unserved household.” All three relevant definitions refer to present criteria: either a household that (1) “can- not receive” a Grade B signal; (2) “is subject to a waiver;” or (3) “does not receive-a signal of Grade A intensity” and otherwise qualifies for grandfathered status. Jd. § 119(d)(10) (emphasis added). None of these definitions refer to sign-up, despite the ease with which Congress could have included such a qualification if that had been its intention. We note, moreover, that there is no requirement that network stations challenge a subscriber at the time of sign-up or any specified period of time thereafter. EchoStar’s interpretation, however, would either trans- form the ILLR model into de facto conclusive evidence of eligibility (because it would be difficult to rebut the pre- sumption with an actual measurement done at a later time if ehgibility referred only to eligibility at sign-up) or force networks to perform on-site measurements for every subscriber at the time of sign-up — the latter being a requirement that appears nowhere in the Act. Accordingly, we conclude that the Act imposes a requirement that a household be presently unserved, not unserved solely at sign-up, as EchoStar suggests. 3. Summary — Of EchoStar’s seventeen claims of error, we find only the district court’s determination that the Act proscribes the use of multiple ILLR vendors to be incorrect. Because we do not believe this decision had any effect on EchoStar’s inability to demonstrate that it has not will- fully or repeatedly infringed upon plaintiffs’ copyright — nor, as we discuss, infra, on our determination that EchoStar engaged in a “pattern or practice” of violations — 32a we do not need to remand for any reconsideration in light of this conclusion. Before we move on to plaintiffs’ cross-appeal, we pause briefly to comment on defendant’s approach. While it is not normally the place for courts to second guess the strategic decisions of counsel, we do note that, here, EchoStar may have been better served by focusing on and developing its serious objections, as opposed to its scattershot approach that ultimately wasted limited space on patently unmeri- torious claims of error. B. Plaintiffs also appealed, challenging the district court’s conclusion that, because EchoStar is not currently engaging in a “pattern or practice” of violations, it was not obligated to issue a nationwide permanent injunction prescribed by the statute.” EchoStar contends that the district court’s ruling was permissible because the court retained a measure of discretion not to issue the perma- nent injunction despite the mandatory language in the statute. EchoStar also suggests that the remedy does not apply so long as it is not currently engaging in a “pattern or practice” of violations. We disagree with both conten tions. Because we come to the inescapable conclusion, based on the district court’s findings, that EchoStar did engage in a “pattern or practice” of violations, we find that ® The district court’s findings of fact and conclusions of law dealt with all of EchoStar’s subscribers throughout the United States. Thus, any violations are on a “substantially nationwide” scale rather than “local or regional” indicating that, to the extent 17 U.S.C. § 119(a)(7)(B) comes into play, it is through subsection (i) rather than (ii). 33a the district court erred in not entering a permanent injunction. 1. Requirements for “Pattern or Practice” Liability According to the Act: If a satellite carrier engages in a willful or re- peated pattern or practice of delivering a primary transmission made by a network station ... to subscribers who are not eligible to receive the transmission... , then... if the pattern or prac- tice has been carried out on a substantially na- tionwide basis, the court shall order a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary net- work station affiliated with the same net- work. ... 17 U.S.C. § 119(a“7)(B)i). The Act itself provides no further explanation as to what constitutes a “pattern or practice,” except to indicate that it can occur on a nation- wide, regional, or local scale. See id. at §§ 119{a)(7)(B)(i), (ii). We find some guidance, however, in the legislative history of the Act: It is not the intent of this statute to subject a satellite carrier to “pattern or practice” liability as a result of good faith mistakes, provided that the carrier is reasonably diligent in avoiding and correcting violations through an internal compliance program that includes methods of confirmation of household eligibil- ae - In view of the possibilities for error which would occur despite reasonably diligent efforts to avoid them ... , it is the intent of this statute that no pattern or practice be found if. . . less ‘han 20% of the subscribers to a particular 34a network station (on either local, regional, or national bases) are found ineligible. H.R.Rep. No. 100-887(1), at 19 (1988), reprinted in 1988 U.S.C.C.A.N. 5577, 5622; see also CBS Broad. v. PrimeTime 24 Joint Venture, 48 F.Supp.2d 1342, 1357 (S.D.Fla.1998). Thus, while the statute itself does not automatically impose “pattern or practice” liability where the 20% threshold is met, nor does it preclude a finding of “pattern or practice” where the threshold is not reached, we believe the 20% ineligibility proportion to be a relevant marker for “pattern or practice” analysis. EchoStar would have us forgo even this preliminary inquiry of whether a “pattern or practice” ever existed because the district court found that “no ... pattern or practice currently exists,” CBS Broad. Inc., 276 F.Supp.2d at 1254, and EchoStar reads the Act to impose a require- ment of an ongoing “pattern or practice” before section 11% a\7Byi) is triggered. It reads the statutory lan- guage, “[iJf a satellite carrier engages in a willful or repeated pattern or practice,” 17 U.S.C. § 119(a)(7)(B) (emphasis added), as foreclosing application of the section so long as a satellite carrier ceases (most of) its illegal activity, presumably anytime before the close of trial. We _ do not believe this is the best reading of the statute. Rather than imposing an obligation on the networks to identify violations, bring suit, conduct discovery, and complete a full trial, all before the satellite carrier decides to become SHVA compliant -— we read the statute as imposing liability “[i]f a satellite carrier [ever] engages in a willful or repeated pattern or practice” of statutory viola- tions. Id. The moment a satellite carrier engages in what can be said to be a “pattern or practice” of violations, it makes itself eligible for the specified remedy, regardless of 35a when it is found to have been doing so. Cf, e.g., 18 U.S.C. § 1621 (indicating that the crime for perjury occurs where a duly sworn individual “states or subscribes any material matter which he does not believe to be true” but not requiring a defendant to be “stat[ing]” or “subscrib[ing]” at the time of his perjury trial). We also note that there is no requirement that a court find that the satellite carrier engage in a “pattern or practice” of actually providing distant network service to served households. This is again a function of the statu- tory burden of proof. While we do not find it particularly intuitive to think of a satellite carrier as engaging in “pattern or practice” of failing to prove that its subscribers are unserved, we have but little choice. The statute spe- cifically mandates that “[i]n any action brought under this paragraph,” the satellite carrier has the burden of proof. Id. § 119(a)(7)(D) (emphasis added). A requirement that a satellite carrier actually engaged in a “pattern or practice” of serving served households is inconsistent with that burden allocation. Accordingly, we presume, for the pur- pose of evaluating “pattern or practice” liability, that a finding that a satellite carrier failed to carry its burden of establishing eligibility is tantamount to a finding of ineligibility. Section 119(a)(7)(B) liability is triggered whenever a satellite carrier fails to carry its burden of proving eligibility on a sufficient scale, and to a sufficient degree, such that we can presume that the satellite carrier is engaging in a “pattern or practice” of serving ineligible subscribers. 36a 2. EchoStar Engage in a “Pattern or Practice” Based on these guidelines, we now must determine if EchoStar ever engaged in a “pattern or practice” of statu- tory violations. Because the district court found EchoStar’s current practices to be substantially compliant, it did not believe it necessary to determine if EchoStar’s prior conduct constituted a “pattern or practice” of violations. See CBS Broad., Inc., 276 F.Supp.2d at 1254. Ordinarily we would remand to the district court to make this deter- mination in the first instance. We believe, however, that there is no other possible conclusion that can be drawn from the district court’s findings of fact. We first note the length of time over which the district court found EchoStar to be using inadequate procedures for assessing subscriber eligibility. When EchoStar first began offering its own distant network packages in July 1998, it utilized the red-light/green-light method - a method for which the district court found “no evidence [that would indicate that it] was reasonably calculated to prevent signups of ineligible subscribers.” Jd. at 1241. Even after EchoStar switched to the ILLR model, it utilized the illegitimate “DMA Rule” through October £200, and unlawfully considered “interference” from at jeast August 2000 through January 2002. In other words, at no point from when EchoStar began offering distant network programming through January 2002 did it use a compliance method capable of reliably assessing sub- scriber eligibility.” * This says nothing of the unlawful PrimeTime 24 qualitative assessment that generated distant network subscribers for EchoStar from March 1996 to July 1998. 37a This three-and-half year period of unlawful eligibility screening predictably led to a sizeable number of subscrib- ers for whom EchoStar was unable to establish eligibility. We start with the ILLR analysis of EchoStar’s April 2002 subscriber list. The best case scenario, which takes as valid EchoStar’s claims of waivers and grandfathered status (the sane ones regarding which the district court found EchoStar failed to carry its burden of establishing), indicates that, on a nationwide basis, EchoStar is pre- sumptively providing illegal service to 26.5% of its sub- scribers receiving ABC distant network programming, 26.9% for CBS, 20.2% for Fox, and 28.1% for NBC. Thus, even for the network with the lowest percentage of viola- tions, factoring in claims of eligibility that the district court found not to have been established, EchoStar ex- ceeds the 20% threshold on a nationwide basis. While we believe this may very well be sufficiently objectionable, we glean some additional inculpatory conclusions from the district court’s opinion: “The Court finds that EchoStar has failed to meet its burden of proving that its subscrib- ers are ‘unserved households.’” Jd. at 1248; “EchoStar has failed to present any evidence . .. that any of its subscrib- ers are unserved as defined under SHVA.” Id. at 1253; “(T]he Court’s [findings] support the conclusion that hundreds of thousands of EchoStar’s distant network programming subscribers are not unserved households.” Id. at 1249; “Plaintiff’s evidence indicates that a signifi- cant percentage of EchoStar’s distant network program- ming subscribers receive a signal of Grade B intensity or better.” Jd. at 1253; “Echostar has not met its burden in showing that any of its distant signal subscribers meet the grandfathering requirements.” Jd. at 1250; “EchoStar has also failed to prove that any of its subscribers are eligible because they have obtained waivers from the relevant 38a network stations.” Jd. at 1252. If these findings do not describe a “pattern or practice” of violations, we do not know what does. Cf. ABC, Inc. v. PrimeTime 24 Joint Venture, 184 F.3d 348, 354 (4th Cir.1999) (“Since Prime- Time could prove that virtually none of its thousands of subscribers in the Raleigh-Durham market was eligible for satellite service, the district court held — and we agree — that the carrier had engaged in a ‘pattern or practice’ of infringement.”). 5 As if the magnitude of its ineligible subscriber base were insufficiently disconcerting, we have found no indica- tion that EchoStar was ever interested in complying with the Act. Indeed, based on the district court’s findings, we seem to have discerned a “pattern” and “practice” of violating the Act in every way imaginable. Whether it be overriding compliance determinations of ineligibility (more than 12,500 “red zone” subscribers per month), CBS Broad., Inc., 276 F.Supp.2d at 1242; making pledges under oath to terminate ineligible subscribers and then failing to present any evidence fhat this corrective action was taken, id. at 1244-45; blatantly disregarding FCC alterations to the ILLR model after it was specifically put on notice of such changes, id. at 1250; or failing to disconnect sub- scribers it initially recognized to be ineligible for grandfa- ther status based on an atextual “reinterpretation” of the statutory provision, id. at 1251; EchoStar has disregarded the limitations of its statutory license and sought to avoid its obligations under the Act at every turn. Accordingly, we have no trouble concluding that EchoStar has engaged in a nationwide “pattern or practice of delivering a primary transmission made by a network station . . . to subscribers who are not eligible to receive the transmission under this section.” 17 U.S.C. § 119(a)(7)(B). 39a 3. Mandatory Nature of the Remedy The Act instructs that, upon a finding of a “pattern or practice” of violations, a “court shall order a permanent injunction barring the secondary transmission by the satellite carrier, for private home viewing, of the primary transmissions of any primary network station affiliated with the same network.” 17 U.S.C. § 119(a)(7)(B)(i) (em- phasis added). Despite the facially mandatory nature of the provision, EchoStar argues that the district court had discretion to issue the injunction, and properly exercised that discretion in not issuing the injunction in this case. In making this argument, EchoStar relies primarily on Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), for the proposition that, if Congress is going to remove courts’ traditional equitable discretion, “an un- equivocal statement of its purpose would have been made.” 321 U.S. at 329, 64 S.Ct. at 591; see also id. at 330, 64 S.Ct. at 592 (“We do not believe that such a major depar- ture from that long tradition as is here proposed should be lightly implied.”). We believe there are important differ- ences between the statute in Hecht and the one before us that lead us to conclude that Congress removed courts’ discretion upon a finding of a “pattern or practice” of violations. The Hecht Court interpreted section 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C. § 901 et seq., (repealed 1956), which provided that, upon finding of certain conditions, “a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” The Court found statutory language (“or other order”) and legislative history suggesting that Congress had not intended to remove courts’ traditional equitable discretion. 321 U.S. at 328-29, 64 S.Ct. at 591. Unlike 40a Hecht here there is no ambiguous statutory language in the SHVA and we are unaware of any legislative history that would indicate that the remedial measure chosen by Congress is anything but mandatory. Cf H.R.Rep. No. 106-464, at 94 (1999) (Conf.Rep.) (“The section 122 license contains remedial provisions parallel to those of Section 119, including a ‘pattern or practice’ provision that re- quires termination of the Section 122 statutory license as to a particular satellite carrier if it engages in certain abuses of the license.” (emphasis added)). Moreover, section 119(a)(7)(B)(i) itself contemplates both mandatory and discretionary remedies: Upon the same finding of a “pattern or practice,” “the court shall order a permanent injunction” whereas “the court may order statutory dam- ages.” 17 U.S.C. § 119(a)(7B)(G) (emphasis added). Absent evidence to the contrary, we presume that Congress understood what it was doing when it instructed courts to provide a specific remedy and permitted courts to provide another. Accordingly, we find that Congress unequivocally stated a purpose to restrict the courts’ traditional equitable authority upon a finding ofa “pattern or practice.” Accord ABC, Inc. 184 ¥:3d at 354-55.” Because, as discussed, we “ This discussion is not altered by the Supreme Court's recent decision in eBay, Inc. v. MercExchange, L.L.C., _. U.S. __, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). There the Court, in invalidating the Federal Circuit's “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circum- stances,” id, 126 S.Ct. at __, 2006 WL 1310670, at *1 (quoting MercExchange, L.L.C v. eBay, Inc., 401 F.3d 1323, 1339 (Fed.Cir.2005)) (internal quotation marks omitted), specifically found that “[nJothing in the Patent Act indicates that Congress intended” a departure from traditional equitable principles, id., 126 S.Ct. at __, 2006 WL 1310670, at *2. As discussed, we do find such congressional intent in the SHVA. Because the Court in eBay said nothing of Congress’s ability to remove (Continued on following page) 4la come to the unavoidable conclusion that EchoStar engaged in a “pattern or practice” of SHVA violations, we hold that the district court is required to issue a nationwide perma- nent injunction barring the provision of distant network programming pursuant to the Act’s statutory license. IV. For the foregoing reasons the judgment of the district court is AFFIRMED in part and REVERSED in part, and we REMAND the case to the district court for the entry of a nationwide permanent injunction .as mandated by the Act. SO ORDERED. unambiguously courts’ traditional equitable discretion, the opinion has no bearing on this case. 42a 276 F.Supp.2d 1237 United States District Court, S.D. Florida. CBS BROADCASTING, INC. et al., Plaintiffs, V. ECHOSTAR COMMUNICATIONS CORPORATION et al., Defendants. No. 98-2651-CIV. June 10, 2003. David Michael Rogero, Coral Gables, FL, Thomas P. Olson, Natacha D. Steiner, Maya Alexandri, A. Stephen Hut, Jr., C. Colin Rushing, Mark L. Bieter, Katherine A. Fleet, Kyle M. DeYoung, Howard M. Shapiro, Wilmer, Cutler & Pickering, Nory Miller, Jenner & Block, Wash- ington, DC, Reid L. Phillips, David Kushner, Wade H. Hargrove, Brooks, Pierce, McLendon, Humphrey & Leo- nard, Raleigh, NC, for plaintiffs. : Kenneth M. Myers, Squire, Sanders & Dempsey, Miami, FL, John A. Burlingame, Kara K. Mather, Mark A. Miller, Squire, Sanders & Dempsey, Washington, DC, Richard S. Gurbst, Damond R. Mace, Squire, Sanders & Dempsey, Cleveland, OH, David W. Alexander, Squire, Sanders & Dempsey, Columbus, OH, Cynthia A. Ricketts, Mark A. Nadeau, Debora L. Verdier, Scott Day Freeman, Mitchell W. Fleischmann, Squire, Sanders & Dempsey, Phoenix, AZ, T. Wade Welch, T. Wade Wech [sic} & Associ- ates, Houston, TX, for defendants. Alan Graham Greer, Richman, Greer, Weil, Brum- baugh, Mirabito & Christensen, Miami, FL, for claimant. Kenneth M. Myers, Squire, Sanders & Dempsey, Miami, FL, Cynthia A. Ricketts, Mark A. Nadeau, Debora L. Verdier, Scott Day Freeman, Squire, Sanders & 43a Dempsey, Phoenix, AZ, T. Wade Welch, T. Wade Wech [sic] & Associates, Houston, TX, for defendants/counter- claimant. - David Michael Rogero, Coral Gables, FL, Thomas P. Olson, Natacha D. Steiner, Wilmer, Cutler & Pickering, Washington, DC, Nory Miller, Jenner & Block, Washing- ton, DC, for plaintiff/counter-defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW DIMITROULEAS, District Judge. THIS CASE came on for non-jury trial on April 11, 14, 15, 16, 17, 21, 22, 23, 24, and 25, 2003. The Court has carefully considered the arguments of counsel, the evi- dence presented, and the testimony of the witnesses. The Court has also determined the credibility of witnesses and is otherwise fully advised in the premises. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following Findings of Fact and Conclusions of Law. To the extent, if any, that the Findings of Fact as stated may be deemed Conclusions of Law, they shall be considered Conclusions of Law. Simi- larly, to the extent the matters expressed as Conclusions of Law may be deemed Findings of Fact, they shall be con- sidered Findings of Fact. I. INTRODUCTION 1. This is a copyright infringement action in which the Plaintiffs seek injunctive relief pursuant to 17 U.S.C. § 502 and § 119(a)(5)(B). Plaintiffs also seek costs and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505. 44a 2. Plaintiff CBS Broadcasting, Inc. (“CBS”) is a New York corporation with its principal place of business in New York, New York. Plaintiff Fox Broadcasting Company (“Fox”) is a Delaware corporation with its principal place of business in Los Angeles, California. CBS and Fox operate the CBS and Fox television networks, respectively, which provide CBS and -Fox network programming to television stations nationwide that are affiliated with CBS and Fox networks. 3. Plaintiffs ABC Television Affiliates Association, CBS Television Network Affiliates Association, FBC Television Affiliates Association and NBC Television Affiliates Association are voluntary membership trade associations representing network stations that are affiliates with their respective networks. 4. Defendant EchoStar Communications Corporation is a Nevada corporation. Defendants EchoStar Satellite Corporation and Satellite Communications Operating Corporation are Colorado corporations and subsidiaries of EchoStar Communications Corporation. The fourth defen- dant, DirectSat Corporation, a Delaware corporation, has merged with EchoStar Satellite Corporation. All defen- dants have their principal place of business in Littleton, Colorado. (The Court will refer to all the defendants collectively as “EchoStar.”) EchoStar has 8.5 million customers. It has eight satellites orbiting the earth at 22,000 miles over the equator. 5. Plaintiffs claim that EchoStar’s retransmission via satellite of copyrighted programming owned by Plain- tiffs violates Plaintiffs’ copyright in its network television 45a broadcasts.’ The principal issue is whether EchoStar’s actions are permitted by the Satellite Home Viewer Act (“SHVA”), as amended by the Satellite Home Viewer Improvement Act (“SHVIA”),’ which grants a limited statutory license to satellite carriers transmitting distant network signals to private homes if the subscribers are “unserved households.” 17 U.S.C. § 119(a)(2)(A), (B). II. PROCEDURAL HISTORY 6. On October 19, 1998, EchoStar filed suit in Colo- rado against CBS, Fox, NBC and ABC seeking a declara- tory judgment that EchoStar’s method of qualifying subscribers for distant network programming complied with the law. On November 5, 1998, the Plaintiffs filed their complaint in this Court alleging that EchoStar was infringing Plaintiffs’ copyrights by providing distant network programming to “served” households in violation of SHVA. The Colorado district court granted Plaintiffs’ motion to transfer the suit filed by EchoStar to Florida and the Colorado litigation was consolidated with this action. 7. On September 29, 2000, the Court entered a preliminary injunction against EchoStar. On November 22, 2000, the Eleventh Circuit stayed the enforcement of the preliminary injunction. On September 17, 2001, the " The Court has previously determined, in its Order dated March 31, 2003, that each of the plaintiffs has standing under the Copyright Act to pursue this copyright infringement lawsuit against EchoStar. * The Court will refer to both the Satellite Home Viewer Act and the Satellite Home Viewer Improvement Act collectively as SHVA unless otherwise indicated. 46a Eleventh Circuit vacated the preliminary injunction holding. The case was then remanded to this Court. 8. EchoStar filed a Motion for Summary Judgment on February 3, 2003. Plaintiffs filed a Motion for Summary Judgment on All Counts of Their Complaint and Count I of EchoStar’s Counterclaim on February 4, 2003. Plaintiff’s also filed a Motion for Summary Judgment on Counts II-V » of EchoStar’s Counterclaim on February 4, 2003. The Court granted Plaintiffs’ Motion for Summary Judgment on Counts II-V of EchoStar’s Counterclaim on March 24, 2003. The Court denied both EchoStar’s Motion for Sum- mary Judgment and Plaintiffs’ Motion for Summary Judgment on All Counts of Their Complaint and Count I of EchoStar’s Counterclaim on March 31, 2003. In that Order on Motions for Summary Judgment, the Court stated that all Plaintiffs had standing to proceed in this case. The Court further indicated that the issues to be decided at trial would be whether EchoStar is in violation of SHVA, whether a threat of future violation exists and whether EchoStar has engaged in a “willful or repeated pattern or practice.” 9. Plaintiff ABC was dismissed from this case on April 15, 2002. Plaintiff NBC was dismissed on November 25, 2002. II]. FINDINGS OF FACT A. EchoStar and Distant Network Programming 10. EchoStar is a satellite carrier within the mean- ing of the Satellite Home Viewer Act (““SHVA”), 17 U.S.C. § 119, as amended by the Satellite Home Viewer Im- provement Act (“SHVIA”). 47a 11. EchoStar operates a Direct Broadcast Satellite (“DBS”) service called “DISH Network,” which offers satellite television, programming to subscribers who receive programming using small satellite dishes. iZ. EchoStar retransmits the signals of network stations in two different ways: on a “local-to-local” basis and as distant signals. Local-to-local retransmission refers to the satellite delivery of network stations to a subscriber within the subscriber’s own local market. EchoStar cur- rently offers local-to-local programming in approximately 62 out of the 210 U.S. television markets. 13. Distant network signals are network stations from outside a subscriber’s market area. For example, a person who lives in Fort Lauderdale but receives an ABC, CBS, Fox or NBC network station from New York City is receiving “distant network programming” or “distant network stations.” 14. EchoStar sells distant ABC, CBS, Fox and NBC network programming to customers throughout the United States. As of April 2002. EchoStar had approxi- mately 1,180,000 distant network subscribers. B. EchoStar’s Past Compliance Efforts 1. Subscribers signed up during Prime Time 24 Period 15. From approximately March 1996 until approxi- mately July 19, 1998, EchoStar offered distant network programming pursuant to an agreement with Prime Time 24 Joini Venture (“Prime Time 24”). During this period, subscribers were signed up using a subjective method 48a which depended on the viewer’s opinion concerning the quality of his or her picture. 16. In December 1996, CBS, Fox and other plaintiffs brought suit against PrimeTime 24. In 1998, this Court issued a preliminary injunction, and then a permanent injunction, requiring PrimeTime 24 to terminate the delivery of distant network signals to subscribers who had been signed up illegally. On July 19, 1998, days after the entry of the preliminary injunction, EchoStar terminated the delivery of the PrimeTime 24 distant network pro- gramming package to its subscribers and switched virtu- ally all of the customers receiving the PrimeTime 24 network programming to its own, new distant network station packages, called DISH Nets East and DISH Nets West. On August 25, 1998, Michael Schwimmer, EchoStar’s Vice President of Programming wrote affiliate station managers asking them to waive any interest in litigating EchoStar implementation of a red light/green light method instead of an ILLR method. The letter placed a burden on the station managers to object to this proposal within one (1) week. 2. Red Light/Green Light Method 17. EchoStar claims that after its break with Prime- Time 24, it implemented a “red light/green light” zip code system to determine which subscribers were eligible for distant network programming. A red light/green light system means that the satellite provider would refuse to sign up subscribers in a “red light” zip code for distant signals, unless they obtained a waiver from the station. 18. However, EchoStar presented no evidenc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1626%3A1. Public record. Not legal advice.