Appeals Court Voids EchoStar Challenge to FCC Longley-Rice Model
An EchoStar challenge of a model the FCC uses to predict broadcast signal strength was batted down by the U.S. Appeals Court, D.C. in a long-awaited opinion released Tues. The FCC formula upheld by the court is used to gauge eligibility of households for distant network TV signals by satellite due to poor local TV network reception over-the-air. EchoStar said the FCC model was inadequate, particularly for VHF stations. But the court sided with the Commission, backing the FCC’s reading of the 1999 Satellite Home Viewer Improvement Act (SHVIA) and holding EchoStar’s arguments “inconsistent” with the statute.
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EchoStar sought court review of 2 orders in which the FCC adopted a revised version of its Individual Location Longley-Rice (ILLR) model. The DBS operator said ILLR doesn’t account for structures that weaken broadcast signals, noting a section of SHVIA telling the Commission to ensure any predictive model accounts for “terrain, building structures, and other land cover variations.” The Commission erred by setting the land clutter loss factor to zero for VHF channels, EchoStar argued. The Commission shot back, saying the ILLR model was derived from empirical observations and does account for land cover. Changing the model would serve only to reduce its accuracy, the FCC argued.
The court sided with the Commission. “The clearly expressed preference of the Congress is for a reliable model and, as we have seen, acceptance of EchoStar’s proposed clutter loss values would have derogated from that goal,” the court said, defending its decision by adding: “This conclusion does not, as EchoStar hyperbolically contends, render the mandate… ‘meaningless.’ That mandate is forward-looking and continuing. If EchoStar, another interested party, or the Commission itself in the future identifies an adjustment to the model that both varies with land cover and increases the accuracy of the model, then presumably the Commission will be obligated to refine the model accordingly.”
NAB hailed the decision, saying broadcasters are “pleased the court unanimously rejected EchoStar’s challenge to FCC methodology… This opinion affirms the FCC’s hard work and expertise in establishing who is fairly eligible to receive [distant network TV] signals.” Six broadcaster associations and Fox Bcstg. intervened to back the Commission, according to the court opinion.
The court also rejected EchoStar arguments against an Assn. for Maximum Service TV (AMSTV) and NAB signal strength field study. The Commission relied on the NAB/AMST data even though it wasn’t made publicly available, EchoStar said. The data corroborated ILLR. The court disagreed, and said: “The NAB/AMST study was the only empirical study submitted by any commenter, and no commenter, including EchoStar, criticized the study prior to the Commission’s initial decision.” After a look at the 2000 public record and “liberal ex parte rules” at the FCC, the court decided EchoStar had a chance to criticize the NAB/AMST study, but didn’t. EchoStar should have asked “for the data before the Commission issued its final rule,” the court said.