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EchoStar v. FCC & USA, No. 04-1033 (D.C. Cir.)

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Released: March 30, 2012
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 1 of 74
BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NOS. 04-1033 & 04-1109 (CONSOLIDATED)
ECHOSTAR SATELLITE L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.
ON PETITIONS FOR REVIEW OF ORDERS OF THE
FEDERAL COMMUNICATIONS COMMISSION
SHARIS A. POZEN
AUSTIN C. SCHLICK
ACTING ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL
CATHERINE G. O’SULLIVAN
PETER KARANJIA
JAMES J. FREDRICKS
DEPUTY GENERAL COUNSEL
ATTORNEYS
JACOB M. LEWIS
UNITED STATES
ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
JAMES M. CARR
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 2 of 74

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. Parties.
All parties, intervenors, and amici appearing in this Court are listed in
the petitioner’s brief. Parties appearing before the Commission are listed in
Appendix A of the principal order on review (JA 471).
2. Rulings under review.
Implementation of Section 304 of the Telecommunications Act of 1996,
Second Report and Order, 18 FCC Rcd 20885 (2003) (“Order”) (JA 431), on
reconsideration, 18 FCC Rcd 27059 (2003) (“Reconsideration Order”) (JA
517).
3. Related cases.
This case has not previously been before this Court. We are not aware
of any related case pending before this Court or any other court.

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 3 of 74

TABLE OF CONTENTS

Table of Contents .............................................................................................. i
Table of Authorities.......................................................................................... ii
Glossary.............................................................................................................v
Jurisdiction ........................................................................................................1
Questions Presented ..........................................................................................2
Statutes and Regulations ...................................................................................4
Counterstatement...............................................................................................4
A.
Section 629 Of The Communications Act ............................................4
B.
The “Plug And Play” Agreement ..........................................................6
C.
The Proceeding Below ........................................................................10
D.
The Orders On Review........................................................................14
Summary of Argument....................................................................................20
Standard of Review .........................................................................................24
Argument.........................................................................................................25
I.
DISH’s Statutory Challenges Are Barred By Section 405 Of
The Communications Act ........................................................................25
II. The FCC Reasonably Concluded That It Had Authority To
Adopt The Encoding Rules ......................................................................28
A.
The Commission Had Authority To Adopt The Encoding
Rules Under Section 629.....................................................................29
B.
The Commission Had Authority To Adopt The Encoding
Rules Under Section 624A..................................................................40
III. The Commission Provided Adequate Notice And
Opportunity For Comment.......................................................................45
Conclusion.......................................................................................................51
i

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 4 of 74

TABLE OF AUTHORITIES

CASES

Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.
1986)............................................................................................................38
American Family Ass’n v. FCC, 365 F.3d 1156
(D.C. Cir. 2004)...........................................................................................27
American Library Ass’n v. FCC, 406 F.3d 689
(D.C. Cir. 2005).................................................................................... 36, 40
*
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
(1999) ................................................................................................... 37, 38
*
Baltimore Gas & Elec. Co. v. United States, 817
F.2d 108 (D.C. Cir. 1987) ...........................................................................46
BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir.
2003)............................................................................................................29
*
Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C.
Cir. 2011).............................................................................................. 33, 34
*
Charter Commc’ns, Inc. v. FCC, 460 F.3d 31 (D.C.
Cir. 2006).......................................................................................... 4, 25, 32
Cheney R.R. Co. v. ICC, 902 F.2d 66 (D.C. Cir.
1990)..................................................................................................... 42, 43
Chevron USA, Inc. v. Natural Res. Def. Council,
467 U.S. 837 (1984) ....................................................................................24
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir.
2010)............................................................................................................39
Consumer Electronics Ass’n v. FCC, 347 F.3d 291
(D.C. Cir. 2003)...........................................................................................33
Covad Commc’ns Co. v. FCC, 450 F.3d 528 (D.C.
Cir. 2006).....................................................................................................24
*
General Instrument Corp. v. FCC, 213 F.3d 724
(D.C. Cir. 2000).................................................................................. 4, 6, 39
Globalstar, Inc. v. FCC, 564 F.3d 476 (D.C. Cir.
2009)............................................................................................................25
Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) .......................................38
ii

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 5 of 74
Hengesbach v. Hengesbach, 114 F.2d 845 (D.C.
Cir. 1940).....................................................................................................37
Martini v. FNMA, 178 F.3d 1336 (D.C. Cir. 1999) ........................................42
*
Mobile Commc’ns Corp. of America v. FCC, 77
F.3d 1399 (D.C. Cir. 1996) .................................................................. 42, 43
National Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005)...........................................................24
National Tel. Coop. Ass’n v. FCC, 563 F.3d 536
(D.C. Cir. 2009)...........................................................................................25
Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007) .....................................25
RCA Global Commc’ns, Inc. v. FCC, 758 F.2d 722
(D.C. Cir. 1985)...........................................................................................38
*
Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C.
Cir. 2009).....................................................................................................45
Sacramento Mun. Util. Dist. v. FERC, 616 F.3d 520
(D.C. Cir. 2010)...........................................................................................24
Schlossberg v. Barney, 380 F.3d 174 (4th Cir. 2004) .....................................37
*
Sprint Nextel Corp. v. FCC, 524 F.3d 253 (D.C.
Cir. 2008).....................................................................................................27
Texas Office of Pub. Util. Counsel v. FCC, 265 F.3d
313 (5th Cir. 2001) ............................................................................... 47, 48
United States v. Midwest Video Corp., 406 U.S. 649
(1972) ..........................................................................................................42
United States v. Southwestern Cable Co., 392 U.S.
157 (1968) ............................................................................................ 14, 42

ADMINISTRATIVE DECISIONS

Implementation of Section 304 of the
Telecommunications Act of 1996, 13 FCC Rcd
14775 (1998) .................................................................................................6

STATUTES AND REGULATIONS

*
5 U.S.C. § 553 .................................................................................................45
5 U.S.C. § 706(2)(A) .......................................................................................25
iii

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 6 of 74
28 U.S.C. § 2342(1) ..........................................................................................2
28 U.S.C. § 2344 ...............................................................................................2
47 U.S.C. § 151 ...............................................................................................36
47 U.S.C. § 152(b)...........................................................................................37
47 U.S.C. § 256(b)(1)......................................................................................39
47 U.S.C. § 402(a).............................................................................................2
*
47 U.S.C. § 405 .................................................................................... 2, 20, 25
* 47
U.S.C.
§ 405(a)...........................................................................................25
47 U.S.C. § 522(13) ..........................................................................................5
* 47
U.S.C.
§
544a(a)(2) ....................................................................................41
*
47 U.S.C. § 544a(b)(1) ................................................................. 12, 20, 23, 40
47 U.S.C. § 548(b)...........................................................................................34
* 47
U.S.C.
§ 549 .................................................................................................5
*
47 U.S.C. § 549(a)............................ 3, 5, 11, 16, 20, 21, 22, 29, 31, 33, 35, 38
47 U.S.C. § 549(b)...................................................................................... 5, 38
47 U.S.C. § 549(f) .................................................................................... 22, 37
Balanced Budget Act of 1997, § 3003, Pub. L. No.
105-33, 111 Stat. 251 (1997).........................................................................7
Deficit Reduction Act of 2005, § 3002, Pub. L. No.
109-171, 120 Stat. 4 (2006)...........................................................................7
DTV Delay Act, § 2, Pub. L. No. 111-4, 123 Stat.
112 (2009) .....................................................................................................7

OTHERS

2A N. Singer, Sutherland Statutory Construction
§ 46.06 (4th ed. 1984) .................................................................................38
* Cases and other authorities principally relied upon are marked with
asterisks.

iv

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 7 of 74

GLOSSARY

CEA Consumer
Electronics
Association
DBS
direct broadcast satellite; a form of
multichannel video programming service
provided via satellite
down-resolution
the ability to degrade the resolution of
programming content from a higher to a lower
level (e.g., from high definition to standard
definition)
DTV digital
television
HRRC
Home Recording Rights Coalition
MOU
Memorandum of Understanding; the document
setting forth the details of the “plug and play”
agreement between the cable and consumer
electronics industries
MVPD
multichannel video programming distributor;
defined by the Communications Act to include
cable operators, DBS providers, and other
entities that make “available for purchase, by
subscribers or customers, multiple channels of
video programming” (47 U.S.C. § 522(13))
NCTA
National Cable & Telecommunications
Association
SBCA
Satellite Broadcasting & Communications
Association
selectable output control
the ability to remotely shut off a particular
output or connector on a program-by-program
basis
v

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 8 of 74
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NOS. 04-1033 & 04-1109 (CONSOLIDATED)
ECHOSTAR SATELLITE L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.
ON PETITIONS FOR REVIEW OF ORDERS OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR RESPONDENTS

JURISDICTION

The petitioner in this case seeks review of two FCC orders:
Implementation of Section 304 of the Telecommunications Act of 1996,
Second Report and Order, 18 FCC Rcd 20885 (2003) (“Order”) (JA 431), on
reconsideration, 18 FCC Rcd 27059 (2003) (“Reconsideration Order”) (JA

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 9 of 74
1
517). The Order was published in the Federal Register on November 28,
2003. 68 Fed. Reg. 66278 (2003). DISH’s predecessor, EchoStar, filed a
timely petition for review of the Order in Case No. 04-1033 on January 27,
2004, within the 60-day deadline established by 28 U.S.C. § 2344. The
Reconsideration Order was published in the Federal Register on January 28,
2004. 69 Fed. Reg. 4081 (2004). EchoStar filed a timely petition for review
of the Reconsideration Order in Case No. 04-1109 on March 29, 2004, within
the 60-day statutory deadline. The Court has jurisdiction to review these
orders under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1). As we explain in
Part I of the Argument below, however, the Court lacks jurisdiction to
consider DISH’s statutory arguments because they were never presented to
the Commission pursuant to 47 U.S.C. § 405.

QUESTIONS PRESENTED

Ten years ago, cable operators and consumer electronics manufacturers
negotiated an agreement establishing technical standards for the design and
manufacture of digital cable equipment. Pursuant to that agreement, the

1 At the time it filed the petitions for review, petitioner was known as
EchoStar Satellite L.L.C. (“EchoStar”). The company later changed its name
to DISH Network (“DISH”). See Opening Brief (“Br.”) of Petitioner at i n.1.
When discussing petitioner’s participation in the proceeding below, this brief
will refer to petitioner as EchoStar. Otherwise, we will refer to petitioner as
DISH.
2

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 10 of 74
parties jointly proposed that the Federal Communications Commission
(“FCC” or “Commission”) adopt encoding rules – i.e., rules limiting the use
of technologies that could block consumers from recording television
programs. Under this proposal, the same encoding rules would apply to all
providers of multichannel video programming service, not just cable
operators.
In response to the agency’s notice seeking comment on the proposed
rules, providers of multichannel satellite video service argued that their
service should not be subject to any encoding restrictions because they did
not participate in the negotiations that produced the proposed rules.
Notwithstanding the objections of the satellite providers, the agency
adopted rules that apply to all providers of multichannel video programming
service. Citing its statutory mandate to “assure the commercial availability”
of equipment used to access multichannel video programming service, 47
U.S.C. § 549(a), the Commission concluded that uniform application of the
encoding rules would most effectively protect the interests of consumers and
preserve competitive parity among all multichannel video programming
distributors.
This case presents the following questions:
3

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 11 of 74
(1) Whether Section 405 of the Communications Act bars judicial
review of DISH’s statutory arguments because they were not first presented
to the FCC;
(2) If those statutory arguments have not been waived, whether the
Communications Act authorized the FCC to adopt the encoding rules; and
(3) Whether the Commission provided notice and an opportunity for
comment before adopting the rules.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are attached as an addendum to this
brief.

COUNTERSTATEMENT

A. Section 629 Of The Communications Act

Subscribers to multichannel video programming services use
“navigation devices” (such as set-top converter boxes) to access those
services. In the past, cable television subscribers could obtain a converter
box only from their cable operator. See Charter Commc’ns, Inc. v. FCC, 460
F.3d 31, 34 (D.C. Cir. 2006); General Instrument Corp. v. FCC, 213 F.3d
724, 727 (D.C. Cir. 2000).
In the mid-1990s, Congress concluded that consumers would benefit
from the development of a competitive retail market for navigation devices.
4

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 12 of 74
Accordingly, Congress amended the Communications Act in 1996 by adding
Section 629, 47 U.S.C. § 549.
Section 629 directs the FCC to “adopt regulations to assure the
commercial availability” of “equipment used by consumers to access …
services offered over multichannel video programming systems, from
manufacturers, retailers, and other vendors not affiliated with any
multichannel video programming distributor.” 47 U.S.C. § 549(a). The Act
defines the term “multichannel video programming distributor” (or “MVPD”)
to include cable operators, providers of direct broadcast satellite (“DBS”)
service (such as DISH), and other entities that make “available for purchase,
by subscribers or customers, multiple channels of video programming.” 47
U.S.C. § 522(13).
The commercial availability mandate of Section 629 is broad. The
statute applies to “converter boxes, interactive communications equipment,
and other equipment used by consumers to access … services offered over
multichannel video programming systems.” 47 U.S.C. § 549(a). For
purposes of implementing Section 629, however, the Commission is barred
from prescribing regulations that “would jeopardize security” of MVPD
services “or impede the legal rights” of MVPDs “to prevent theft of service.”
47 U.S.C. § 549(b). This provision is concerned with “system security” (i.e.,
5

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 13 of 74
signal security and prevention of unauthorized access to MVPD service)
rather than the protection of intellectual property rights. Order ¶ 50 (JA
2
453).

B.

The “Plug And Play” Agreement

Before a competitive market for navigation devices could take shape,
“a number of practical issues” concerning the design of the devices had to be
resolved. Order ¶ 4 (JA 434). The Commission recognized that some of
those issues could best be addressed by inter-industry coordination rather
than FCC regulation. For example, the formulation of uniform “engineering
and technical standards” for mass-produced, nationally marketed navigation
devices required close cooperation between equipment manufacturers and
MVPDs. Id.
In addition, manufacturers and MVPDs worked to reach consensus on
how much protection navigation devices should provide against

2 The FCC first adopted rules to implement Section 629 in 1998.
Implementation of Section 304 of the Telecommunications Act of 1996, 13
FCC Rcd 14775 (1998) (JA 1). At that time, the Commission adopted a rule
requiring MVPDs, as of January 1, 2005, to discontinue the sale or lease of
new navigation devices that integrate security and non-security functions.
The Commission found that this integration ban was necessary because the
continued availability of integrated devices – which only MVPDs could
provide – would “imped[e] consumers from switching to devices that become
available through retail outlets.” Id. at 14803 ¶ 69 (JA 29); see also Charter,
460 F.3d at 35. In General Instrument, 213 F.3d at 730-31, this Court held
that Section 629 authorized the Commission’s integration ban.
6

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 14 of 74
“unauthorized redistribution or copying of programming content legally
acquired for a limited use.” Order ¶ 4 (JA 434). One of the “stumbling
blocks” in inter-industry negotiations over navigation devices involved the
parties’ “inability … to agree on a comprehensive set of technical copy
protection measures and corresponding encoding rules” to govern digital
programming. Order ¶ 55 (JA 455). This impasse reflected a fundamental
“disagreement over how to protect high value content while permitting
consumers to watch and record [digital] programming as they had done with
analog programming.” NCTA Comments at 12-13 (JA 247-48). Resolution
of this dispute took on special urgency due to the impending transition of
over-the-air television broadcasts from analog format to digital television
3
(“DTV”).
“With the encouragement of” the FCC’s Chairman and other
Commission officials, senior executives from the cable television and
consumer electronics industries “engaged in five months of extensive
negotiations” in the second half of 2002 in an effort “to resolve questions and

3 Originally, Congress set December 31, 2006, as the deadline for
completion of the DTV transition. See Balanced Budget Act of 1997, § 3003,
Pub. L. No. 105-33, 111 Stat. 251 (1997). Congress twice extended that
deadline. See Deficit Reduction Act of 2005, § 3002, Pub. L. No. 109-171,
120 Stat. 4 (2006); DTV Delay Act, § 2, Pub. L. No. 111-4, 123 Stat. 112
(2009). The DTV transition was ultimately completed on June 12, 2009.
7

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 15 of 74
concerns regarding the interoperability of cable systems and consumer
electronics equipment.” Letter from Carl E. Vogel, Charter Communications,
to FCC Chairman Michael Powell, Dec. 19, 2002, at 2 (JA 90) (“MOU
Letter”). These negotiations produced a major breakthrough: “a
comprehensive agreement on a cable compatibility standard for integrated,
unidirectional digital cable television receivers.” Order ¶ 2 (JA 433). This
agreement was crafted to accommodate the development of so-called “plug
and play” devices: DTV sets that integrate reception and navigation
functions, enabling cable subscribers to receive digital cable channels without
4
a set-top box or other external navigation device. MOU Letter at 1 (JA 89).
On December 19, 2002, the parties to the “plug and play” agreement
submitted to the FCC a Memorandum of Understanding (“MOU”) setting
forth the details of the agreement. MOU Letter at 1 (JA 89). They explained
that their “voluntary, private sector agreements about standards, testing,
interoperability, and consumer support … assume and depend upon
implementation by the Commission of certain regulations” proposed by the
MOU. Id. at 2 (JA 90). The proposed regulations fell into three categories:

4 This agreement covered only “unidirectional” equipment. Consumers
using such equipment would still need a separate navigation device to access
“bidirectional” (i.e., interactive) services such as video on demand. Order ¶ 7
(JA 436).
8

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 16 of 74
technical rules; labeling rules; and encoding rules. Order ¶ 8 (JA 436). Only
the proposed encoding rules are at issue in this case.
The proposed encoding rules had three parts: (1) a rule prohibiting
MVPDs from encoding or modifying content to activate “selectable output
control” – i.e., “the ability to remotely shut off a particular output or
5
connector on a program-by-program basis,” Order ¶ 58 (JA 456); (2) a rule
barring MVPDs from degrading the resolution of broadcast programs from a
higher to a lower level (e.g., from high definition to standard definition) – a
practice known as “down-resolution,” Order ¶¶ 62-63 (JA 458-59); and (3)
“caps on the level of copy protection that may apply to various categories of
MVPD programming,” Order ¶ 65 (JA 459-60).
Under the proposed copy protection caps, (1) no copy restrictions could
be imposed on unencrypted broadcast television; (2) consumers would be
permitted to make at least one copy (for example, using a VCR or digital
video recorder) of pay television, non-premium subscription television, and
free conditional access delivery transmissions; and (3) copying of video on
demand, pay per view, and subscription-on-demand transmissions could be

5 An MVPD using selectable output control could, for example, block
subscribers from recording the Super Bowl by shutting off transmission of the
program to video recording devices that are connected to converter boxes.
9

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 17 of 74
prohibited, but “even when no copies are allowed, such content may be
paused up to 90 minutes from its initial transmission.” Order ¶ 65 (JA 460).

C. The Proceeding Below

In January 2003, the Commission sought comment on the MOU, its
rule proposals, and their “potential impact” on “consumers, content providers,
small cable operators and MVPDs other than cable operators.”
Implementation of Section 304 of the Telecommunications Act of 1996, 18
FCC Rcd 518, 519 ¶ 4 (2003) (JA 75, 76) (“Further NPRM”). The agency
also requested comment on “the jurisdictional basis for Commission action in
this area, including the creation of encoding rules for audiovisual content
provided by MVPDs.” Id. (JA 76)
The Commission received comments from a wide variety of parties,
including equipment manufacturers, cable operators, consumer groups,
content providers, and non-cable MVPDs. See Order, Appendix A (JA 471).
In their comments, neither EchoStar nor DIRECTV (the nation’s other
DBS provider) disputed the FCC’s statutory authority to adopt the encoding
rules set out in the MOU. Instead, the DBS providers and their trade
association maintained that the agency should not apply the rules to DBS
because no DBS providers had participated in the negotiations that produced
the encoding proposals. For example, EchoStar asserted that, “in light of the
10

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 18 of 74
entire DBS industry’s exclusion from the [MOU] talks,” there is “serious
question” concerning “the legality of adopting the draft rules in their
6
entirety.” EchoStar Reply Comments at 6 (JA 330). The DBS providers
also questioned the need for encoding rules as a policy matter. They posited
that the best way to resolve copy protection issues was to allow each MPVD
to establish its own encoding standards through private agreements with
content providers. See SBCA Comments at 5 (JA 268); DIRECTV
Comments at 6 (JA 217).
By contrast, the cable and consumer electronics industries urged the
Commission to adopt the encoding rules. They assured the agency that it had
jurisdiction to regulate encoding under two provisions of the
Communications Act: Section 629, which directs the FCC to “adopt
regulations to assure the commercial availability” of navigation devices from
sources other than MVPDs, 47 U.S.C. § 549(a); and Section 624A, which
mandates that the Commission adopt regulations to assure “compatibility

6 See also Satellite Broadcasting & Communications Association (“SBCA”)
Comments at 4 (JA 267) (contending that the “exclusion” of DBS providers
“from the MOU process resulted in” encoding proposals “that unfairly
discriminate against DBS”); DIRECTV Comments at 3 (JA 214)
(complaining that the proposed rules would impose encoding restrictions on
DBS providers “without taking into account their unique interests”).
11

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 19 of 74
between televisions and video cassette recorders and cable systems,” 47
7
U.S.C. § 544a(b)(1).
The parties to the MOU warned the FCC that their agreement would
likely “unravel” if the agency did not adopt the encoding rules. Comcast
Reply Comments at 5 (JA 276); see also CEA Reply Comments at 25 (JA
320). When the cable industry originally proposed to license the manufacture
of navigation devices that met certain specifications, the consumer electronics
industry pointed out that any such licensing regime “would be incomplete and
unbalanced” without encoding rules. CEA Comments at 13 (JA 202).
Manufacturers would not agree to make “cable-ready devices that read and
respect[ed] copy protection signals” unless they obtained some “assurance
that such signals would not be used to nullify home copying.” NCTA Reply
Comments at 12 (JA 374).
The proponents of the encoding rules opposed the DBS industry’s
request for an exemption. They contended that the proposed limits on copy
protection “must apply to all” MVPDs: “[O]therwise,” content owners could
“snuff out settled consumer expectations” regarding home recording by
providing high value content (such as recently released movies) only to

7 See National Cable & Telecommunications Association (“NCTA”)
Comments at 17 (JA 252); Consumer Electronics Association (“CEA”)
Comments at 4-15 (JA 193-204).
12

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MVPDs that “employ the most restrictive [copy protection] ‘tools.’” CEA
Reply Comments at 21 (JA 316). Movie studios had already “threatened to
restrict the supply of [their video content] to cable” unless the cable industry
adopted the more stringent copy protections afforded by DBS. NCTA Reply
Comments at 13 (JA 375). If the proposed encoding constraints applied only
to cable operators, content providers might choose to “provide their most
highly-valued content only to DBS and other non-cable MVPDs.” Comcast
Comments at 14 (JA 182). Faced with this prospect, cable operators refused
to agree to restrictions on the use of copy protection tools unless the same
8
restrictions applied to all MVPDs. NCTA Reply Comments at 15 (JA 377).
Various commenters also warned that the market for video recording
devices could suffer unless the FCC adopted the MOU’s proposal to bar all
MVPDs (including DBS providers) from using selectable output control –
“the remote signaling of home devices … to turn off consumer home
interfaces on a program-by-program basis.” Home Recording Rights
Coalition (“HRRC”) Comments at 8 (JA 230). According to advocates of
home recording rights, the use of selectable output control would “discourage
consumers from relying on an interface that supports … home recording,”

8 See also Comcast Reply Comments at 9 (JA 280) (“it is essential that the
encoding rules be imposed on all MVPDs in order to ensure that all MVPD
customers will have equal access to high-value digital content”).
13

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 21 of 74
CEA Comments at 18 (JA 207), and “would have the likely effect of driving
from the market any home interface that supports home recording.” HRRC
Comments at 8 (JA 230).

D. The Orders On Review

With certain revisions, the FCC adopted the MOU’s proposed
encoding rules in October 2003. Order ¶¶ 42-74 (JA 450-64).
The Commission found that it had “explicit authority” under Section
629 to adopt the encoding rules. Order ¶ 45 (JA 451). Describing those rules
as “an essential component” of the MOU, the Commission concluded that
they “will assure the commercial availability of navigation devices and strike
a measured balance between the rights of content owners and the home
viewing expectations of consumers.” Order ¶ 47 (JA 452). Consequently,
the Commission decided that adoption of the encoding rules was “necessary
to fulfill” the commercial availability mandate of Section 629. Id.
In addition to its direct authority under Section 629, the Commission
determined that it had “ancillary jurisdiction” to adopt the encoding rules
under Sections 629 and 624A – i.e., authority reasonably ancillary to the
agency’s effective performance of its statutorily mandated responsibilities.
Order ¶¶ 55-57 (JA 455-56) (citing, inter alia, United States v. Southwestern
Cable Co., 392 U.S. 157, 172 (1968)). It reasoned that the rules would
14

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“increase consumer demand” for digital “navigation devices at retail” – and
thus “significantly advance” Section 629’s “mandate of commercial
availability of navigation devices” – by ensuring that consumers have “access
to high value digital content.” Order ¶ 55 (JA 455).
Similarly, the Commission concluded that the encoding rules would
“advance” the mandate of Section 624A: “to ensure that cable subscribers
will be able to enjoy the full benefits of available cable programming and the
functionality of their televisions and video cassette recorders.” Order ¶ 56
(JA 456). Acknowledging that Section 624A “does not directly apply to
MVPDs other than cable operators,” the Commission found that its exercise
of ancillary jurisdiction over non-cable MVPDs would “avoid the creation of
a regulatory and marketplace imbalance between cable and DBS.” Order
¶ 57 (JA 456). The Commission explained that unless the encoding rules
applied to all MVPDs, “cable operators would be at a significant competitive
disadvantage in obtaining access to content,” and this market disparity “could
frustrate the [FCC’s] ability to satisfy Section 624A’s mandate.” Id.
Therefore, the Commission concluded, application of the proposed encoding
rules to all MVPDs would “further the goals of Section 624A.” Id.
The Commission rejected the contention that Section 629(b) bars the
FCC from adopting the encoding rules. Order ¶¶ 49-52 (JA 453-54). It
15

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explained that because those rules concern the copying of content that MVPD
subscribers have “legally acquired,” they “do not implicate” the issues
addressed by Section 629(b): “theft of [MVPD] service” and “harm to the
MVPD network.” Order ¶ 51 (JA 453). The Commission found “nothing in
either the statutory language or the legislative history” to suggest that Section
629(b) bans the regulation of copy protection technologies for programming
that subscribers have paid to receive. Order ¶ 50 (JA 453). The Commission
determined that even if Section 629(b) applied to copy protection, the
encoding rules would not violate the statute because they “will not jeopardize
the security of copyrighted programming or impede the legal rights of
9
MVPDs to prevent theft of programming.” Order ¶ 52 (JA 453-54).
The Commission further concluded that the MOU’s specific encoding
proposals would promote the commercial availability of digital navigation
devices in accordance with the mandate of Section 629. Order ¶¶ 58-74 (JA
456-64); see 47 U.S.C. § 549(a).

9 The agency also found no basis for the claim that “adoption of the
encoding rules would impermissibly involve the Commission in copyright
issues.” Order ¶ 54 (JA 454). As the Commission pointed out, the encoding
rules “are not directed at” copyright owners and will not alter content
providers’ rights and remedies under copyright law, which “are set by statute
and interpreted on a fact-specific basis by the courts.” Id.
16

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The Commission expressed concern that selectable output control (the
ability to remotely shut off a particular programming outlet or connector on a
program-specific basis) “would harm” consumers “whose DTV equipment
only has component analog inputs for high definition display, placing these
consumers at risk of being completely shut off from the high-definition
content they expect to receive.” Order ¶ 60 (JA 457). The agency was also
“concerned that consumer expectations regarding the functionality” of DTV
products “would be frustrated by the use of down-resolution by MVPDs.”
Order ¶ 64 (JA 459). The Commission found that banning the use of
selectable output control and the down-resolution of broadcast programming
would “ensure that consumer expectations” concerning the capabilities of
DTV products “are met,” Order ¶ 11 (JA 437), and thereby help assuage
“concerns over connectivity and functionality” that might dissuade
consumers from buying DTV equipment, Order ¶ 61 (JA 458).
For similar reasons, the FCC largely adopted the MOU’s proposed caps
10
on copy protection for specific categories of programming. The

10 The caps adopted by the FCC differed from the MOU’s proposal in one
respect: the treatment of subscription video on demand. The MOU proposed
to permit a prohibition on copying of subscription video on demand. The
Commission chose to give MVPDs “discretion to determine whether
specific” offerings of this service “merit different encoding terms.” Order
¶ 74 (JA 464).
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Commission concluded that the caps strike “a measured balance” between the
desire of content providers “to prevent the unauthorized redistribution or
copying of content distributed by MVPDs” and “the preservation of
consumer expectations regarding the time shifting of programming for home
viewing and other permitted uses of such material.” Order ¶ 11 (JA 437). In
the agency’s assessment, this reasonable accommodation of the “competing
interests” of consumers and content providers would “foster the development
of a commercial market in navigation devices.” Order ¶ 68 (JA 461).
The Commission declined to adopt the DBS industry’s request to
create an exemption from the encoding rules for non-cable MVPDs such as
the two DBS providers, EchoStar and DIRECTV. The agency reasoned that
“[u]niform application” of the encoding caps to all MVPDs was essential to
“ensuring that consumers have equal access to content regardless of their
service provider.” Order ¶ 71 (JA 462). Likewise, the Commission
concluded that “the ban on selectable output control logically should apply
uniformly to all MVPDs in order to ensure that consumer expectations are not
unreasonably frustrated regardless of the MVPD platform to which they
subscribe.” Order ¶ 61 (JA 457-58).
The encoding rules were designed to ensure “competitive parity among
MVPDs in access to high value digital content” by requiring all MVPDs to
18

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start from the same “baseline” when negotiating copy protection issues with
content providers. Order ¶ 71 (JA 462). The Commission explained that if
the encoding restrictions applied only to the cable industry, and if non-cable
MVPDs could offer content providers copy protections that cable operators
were legally barred from matching, the rules “would create a permanent
competitive imbalance in the MVPD programming market,” which “could
negatively impact consumers.” Id.
The Commission found no merit in the DBS providers’ argument that
they should not be subject to the encoding rules “because they did not
participate in the MOU negotiations.” Order ¶ 43 (JA 450). The agency
observed that the Further NPRM gave interested parties an opportunity to
comment on the MOU’s proposals, and that both DBS providers filed
comments explaining their objections to the proposed encoding rules. Id. (JA
450-51). The Commission concluded on the merits, however, that “the
arguments advanced by the DBS providers” for exempting DBS from the
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encoding rules were “insufficient to outweigh the need for competitive parity
11
among MVPDs.” Id. (JA 451).

SUMMARY OF ARGUMENT

The FCC reasonably concluded that the Order’s encoding rules will
assure the commercial availability of MVPD navigation devices, as required
by Section 629 of the Communications Act, 47 U.S.C. § 549(a), and promote
compatibility between televisions and video recorders and cable systems in
accordance with Section 624A of the Act, 47 U.S.C. § 544a(b)(1). In the
Commission’s considered judgment, application of the encoding rules to all
MVPDs, including DBS providers, best advances those statutory mandates.
I. DISH’s principal arguments on appeal (that the Commission lacked
statutory authority to adopt the encoding rules) have not been preserved for
review by this Court because those arguments were not presented to the FCC.
Therefore, the Court lacks jurisdiction to consider those claims under Section
405 of the Communications Act, 47 U.S.C. § 405.

11 On reconsideration, the Commission on its own motion revised the
encoding rules’ definition of “Unencrypted Broadcast Television” to clarify
that the same encoding restrictions apply to both encrypted and unencrypted
broadcast programming. Reconsideration Order ¶ 2 (JA 517-18). Although
DISH has petitioned for review of the Reconsideration Order, it does not
make any arguments that pertain specifically to the Commission’s action in
that order.
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II. Even if they had not been waived, DISH’s statutory authority
arguments lack merit. The Commission’s adoption of the encoding rules
plainly fell within its authority under Section 629 to “adopt regulations to
assure the commercial availability” of navigation devices. See 47 U.S.C.
§ 549(a).
As the Commission explained in the Order, the encoding rules were an
“essential component” of an agreement that was designed to jump-start the
retail market for digital cable equipment. Order ¶ 47 (JA 452). The
Commission reasonably found that the rules “will assure the commercial
availability of navigation devices and strike a measured balance between the
rights of content owners and the home viewing expectations of consumers.”
Id.
In particular, the encoding rules sought to guard against frustration of
the legitimate “expectations of consumers regarding their home viewing
habits and the functionality of their digital devices.” Order ¶ 68 (JA 461). In
the absence of encoding restrictions, the use of certain copy protection tools
could seriously disrupt consumers’ efforts to record – or even watch – their
favorite television programs on DTV equipment. The resulting consumer
frustration could severely hinder the development of the retail market for
DTV products. The encoding rules addressed this concern by taking steps to
21

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“ensure that consumer expectations regarding the functionality” of DTV
devices “are met.” Order ¶ 11 (JA 437).
DISH argues that the encoding rules fall outside the scope of Section
629 because they do not affect the design, manufacture, sale, or support for
navigation devices. Br. 35-40. The statute places no such restrictions on the
FCC’s regulatory authority. Section 629 simply directs the agency to “adopt
regulations to assure the commercial availability” of navigation devices. 47
U.S.C. § 549(a). Congress did not limit the FCC to regulating the design,
manufacture, or marketing of navigation devices in order to carry out the
Commission’s responsibility to assure the commercial availability of those
devices.
DISH also asserts that Section 629 is not an independent grant of
authority. Br. 33-35. It bases that claim entirely on Section 629(f), which
states that nothing in Section 629 “shall be construed as expanding” pre-
existing FCC authority. 47 U.S.C. § 549(f). But the general rule of
construction prescribed by Section 629(f) cannot override the specific grant
of regulatory authority contained in Section 629(a). DISH’s proposed
reading would render Section 629(a) meaningless.
As an alternative and independent source of authority, the Commission
found that the encoding rules fall within the Commission’s ancillary authority
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under Section 624A to assure “compatibility between televisions and video
cassette recorders and cable systems,” 47 U.S.C. § 544a(b)(1), by preventing
the creation of a competitive imbalance between the cable and DBS industries
and ensuring that consumer expectations regarding the functionality of their
DTV devices are not frustrated. Contrary to DISH’s contention (Br. 22-33),
Congress’s decision in Section 624A to mandate regulation of compatibility
with respect to cable systems did not deprive the FCC of its discretion to
extend regulation to non-cable MVPDs in order to preserve competitive
parity and consumer expectations.
III. The only claim in this case that DISH did not waive is its
contention that DBS providers were denied adequate notice and opportunity
for comment in this proceeding. See Br. 43-46. But that claim is baseless.
There is no dispute that (1) the FCC provided notice and an opportunity for
public comment on the proposed rules, (2) it received comments from
numerous parties, including EchoStar (DISH’s predecessor), and (3) it
considered those comments before adopting the encoding rules (with certain
changes). Nothing more was required.
The Commission determined that it could most effectively protect
consumer interests and maintain competitive parity by applying the proposed
encoding rules to all MVPDs. That reasonable decision should be upheld.
23

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STANDARD OF REVIEW

DISH’s challenge to the FCC’s interpretation of its authority under the
Communications Act is governed by Chevron USA, Inc. v. Natural Res. Def.
Council, 467 U.S. 837 (1984). Under Chevron, if “Congress has directly
spoken to the precise question at issue,” the Court “must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. But “if the
statute is silent or ambiguous with respect to the specific issue, the question”
for the Court is whether the agency has adopted “a permissible construction
of the statute.” Id. at 843. If the implementing agency’s reading of an
ambiguous statute is reasonable, Chevron requires the Court “to accept the
agency’s construction of the statute, even if the agency’s reading differs from
what the [Court] believes is the best statutory interpretation.” Covad
Commc’ns Co. v. FCC, 450 F.3d 528, 537 (D.C. Cir. 2006) (quoting National
Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005)). The Commission’s “interpretation of its own statutory jurisdiction is
entitled to Chevron deference.” See Sacramento Mun. Util. Dist. v. FERC,
616 F.3d 520, 536 (D.C. Cir. 2010) (internal quotation marks omitted).
DISH’s contention that the Commission failed to comply with the
Administrative Procedure Act (“APA”) is also subject to “highly deferential”
judicial review. See National Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541
24

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 32 of 74
(D.C. Cir. 2009). Under the applicable standard, the FCC’s action must be
upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).

ARGUMENT

I.

DISH’S STATUTORY CHALLENGES ARE BARRED BY
SECTION 405 OF THE COMMUNICATIONS ACT

DISH principally argues that the FCC lacked statutory authority to
adopt the encoding rules. Br. 22-40. In a similar vein, DISH contends that
the agency’s decision to apply the rules to DBS was based on factors that
Congress did not intend the FCC to consider. Br. 46-48. Neither DISH nor
any other party presented those claims to the Commission in this proceeding.
Accordingly, the Court lacks jurisdiction to consider them under Section 405
of the Communications Act, 47 U.S.C. § 405.
Section 405 “requires that the Commission be afforded an ‘opportunity
to pass’ on an issue as a ‘condition precedent to judicial review.’” Charter,
460 F.3d at 39 (quoting 47 U.S.C. § 405(a)). Construing Section 405
“strictly,” this Court has repeatedly held that it “generally lack[s] jurisdiction
to review arguments that have not first been presented to the Commission.”
Globalstar, Inc. v. FCC, 564 F.3d 476, 483 (D.C. Cir. 2009) (quoting Qwest
Corp. v. FCC, 482 F.3d 471, 474 (D.C. Cir. 2007)). In this case, Section 405
precludes the Court from considering DISH’s statutory arguments because
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USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 33 of 74
the Commission was never provided with an opportunity to address those
claims.
In response to the Further NPRM, commenters raised only two
challenges to the FCC’s authority to adopt the encoding rules. Some
copyright holders contended that the rules “would impermissibly involve the
Commission in copyright issues.” Order ¶ 54 (JA 454). And the Motion
Picture Association of America argued that Section 629(b) prohibits the FCC
from adopting the rules. Order ¶ 49 (JA 453). DISH does not raise either of
those claims here.
Instead, DISH presents the Court with entirely different arguments
concerning the FCC’s authority. It argues that the agency cannot rely on
ancillary jurisdiction under Section 624A to apply the encoding rules to DBS
providers. Br. 22-33. DISH also contends that Section 629 cannot provide a
basis for adopting the encoding rules because it is not “an independent grant
of authority” (Br. 33-35), and because the statute limits the Commission to
measures affecting the design, manufacture, or marketing of navigation
devices (Br. 35-40). Finally, DISH maintains that the FCC improperly
subjected all MVPDs to the encoding rules out of concern for competitive
parity – a factor that (according to DISH) Congress did not intend the
Commission to consider. Br. 46-48. None of these arguments were
26

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presented to the Commission in this proceeding. Therefore, Section 405 bars
DISH from raising any such claims here. See Sprint Nextel Corp. v. FCC,
524 F.3d 253, 256-57 (D.C. Cir. 2008).
We note that an attachment to an ex parte notice filed by EchoStar in
August 2003 asserted without elaboration that the “Commission does not
have clear authority to apply [the MOU] to DBS.” Letter from David R.
Goodfriend, EchoStar, to Marlene H. Dortch, FCC, August 27, 2003,
Attachment at 3 (JA 426). That vague and equivocal statement does not
suffice to satisfy Section 405, which requires that arguments be raised “with
sufficient clarity” to give the FCC an opportunity to address them. American
Family Ass’n v. FCC, 365 F.3d 1156, 1167 (D.C. Cir. 2004). EchoStar’s ex
parte notice did not present any of the statutory arguments that DISH makes
here. As this Court has observed, “relying on [ex parte] notices to satisfy
§ 405 is a risky strategy,” particularly when such notices contain no specific
arguments. Sprint Nextel, 524 F.3d at 257.
As DISH notes (Br. 10 n.4), DIRECTV questioned the FCC’s
jurisdiction to adopt encoding rules in a petition for reconsideration. But
DIRECTV made a different argument from the one DISH advances here.
DIRECTV asked the Commission to reconsider whether the encoding rules
were barred by Section 629(b), which prohibits the Commission from
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adopting measures that would “jeopardize” the “security” of MVPD services
or impede the legal rights of MVPDs to “prevent theft of service.”
DIRECTV Petition for Reconsideration at 2-3 n.5 (JA 524-25). DISH makes
no such argument in this case. To the contrary, it concedes that the agency’s
12
interpretation of Section 629(b) “appears reasonable.” Br. 39.
In short, no party presented the FCC with an opportunity to address the
statutory arguments that DISH presents to this Court. As a result, the Court
lacks jurisdiction to consider DISH’s statutory arguments under Section 405.

II.

THE FCC REASONABLY CONCLUDED THAT IT HAD
AUTHORITY TO ADOPT THE ENCODING RULES

Even if DISH’s statutory arguments were not procedurally barred, they
lack merit. The Commission identified three separate and independent
jurisdictional bases for adopting the encoding rules under the
Communications Act: direct authority under Section 629; ancillary
jurisdiction under Section 629; and ancillary jurisdiction under Section 624A.

12 Even if DIRECTV’s reconsideration petition had raised the same
statutory arguments presented by DISH’s brief, those arguments still would
be precluded by Section 405. Because DIRECTV’s petition was filed after
the FCC adopted the Order, it could not possibly have given the Commission
an opportunity to pass on DIRECTV’s arguments in the Order. To be sure,
the agency received an opportunity to address those arguments when it denied
DIRECTV’s petition. See Implementation of Section 304 of the
Telecommunications Act of 1996,
25 FCC Rcd 14657 (2010) (JA 544). But
DISH did not seek review of the order denying DIRECTV’s petition.
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Order ¶¶ 45-57 (JA 451-56). If the Court finds any one (or more) of these
jurisdictional grounds sufficient to authorize adoption of the rules, it must
13
reject DISH’s claim that the agency lacked authority.

A. The Commission Had Authority To Adopt The Encoding

Rules Under Section 629.

The Commission reasonably determined that it had authority to adopt
the encoding rules under Section 629. “The mandate of Section 629 is
broad.” Order ¶ 46 (JA 451). The statute directs the FCC to “adopt
regulations to assure the commercial availability” of navigation devices – i.e.,
“equipment used by consumers to access” MVPD services – from sources
that are “not affiliated” with any MVPD. 47 U.S.C. § 549(a). By its terms,
Section 629 “applies to any type of equipment used to access MVPD
programming and services” – not just set-top converter boxes, but a variety of
other consumer electronics products, including television sets, personal
computers, and video recorders. Order ¶ 46 (JA 451-52). Moreover, the

13 See BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) (when
“an agency offers multiple” independent “grounds for a decision,” the Court
“will affirm the agency so long as any one of the grounds is valid”).
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statute covers “all MVPDs” – not only cable operators, but also DBS
14
providers and other non-cable MVPDs. Id. (JA 451-52).
1. The Commission reasonably concluded that its adoption of the
encoding rules fell well within the agency’s “explicit authority” under
Section 629 to adopt regulations to assure the commercial availability of
navigation devices. Order ¶ 45 (JA 451). The encoding rules were an
“essential component” of the MOU – an agreement crafted to assure the
commercial availability of the next generation of navigation devices. Order
15
¶ 47 (JA 452). The Commission specifically found that the encoding rules
“will assure the commercial availability of navigation devices and strike a
measured balance between the rights of content owners and the home viewing
expectations of consumers.” Id.

14 DISH does not dispute that Section 629 applies to all MVPDs. For that
reason, when DISH contends that Congress did not intend for the FCC to
consider competitive parity (Br. 46-48), it makes that argument only with
respect to Section 624A. There is no question that Section 629 authorizes the
Commission to apply the encoding rules to all MVPDs.
15 The cable and consumer electronics industries indicated that without the
encoding rules, “the compromise agreement reached in the MOU” would be
“upset,” and “their efforts to produce unidirectional digital cable products
will falter.” Order ¶ 47 (JA 452). The resulting harm, the Commission
found, “would directly undermine the explicit goal of Section 629, to assure
the commercial availability of navigation devices.” Id.
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As the Commission explained, the encoding rules help ensure that
“consumer expectations regarding the functionality” of DTV products “are
met.” Order ¶ 11 (JA 437). The rules thus serve to “assure the commercial
availability” of DTV products “from manufacturers, retailers, and other
vendors not affiliated with any [MVPD].” 47 U.S.C. § 549(a). The
Commission was justifiably concerned that consumers might be reluctant to
purchase DTV equipment if they were unsure whether it would provide them
with the same viewing and recording capabilities they had come to expect
from their home entertainment systems. Such doubts could dampen
consumer demand and stunt the growth of the nascent retail market for digital
navigation devices. The encoding rules were designed to allay those doubts
by accommodating the legitimate “expectations of consumers regarding their
home viewing habits and the functionality of their digital devices.” Order
¶ 68 (JA 461); see also id. ¶¶ 60-61, 64 (JA 457-59).
In particular, the Commission reasonably concluded that selectable
output control and the down-resolution of broadcast television could erode
consumer confidence in the performance of DTV equipment. Order ¶¶ 58-64
(JA 456-59). Down-resolution could upset DTV viewers by causing an
unexpected degradation of the picture quality on their DTV sets. Order ¶ 64
(JA 459). Even worse, selectable output control could leave DTV viewers
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with a blank screen, “completely shut off from the high-definition content
they expect to receive,” if their “DTV equipment only has component analog
inputs for high definition display” (a common feature of DTV products at the
time the Order was adopted). Order ¶ 60 (JA 457). By prohibiting these
copy protection tools, the Commission sought to alleviate “concerns over
connectivity and functionality” that might discourage consumers from
purchasing DTV equipment. Order ¶ 61 (JA 458).
The record showed that the Commission’s concern with consumer
expectations was warranted. According to advocates of home recording
rights, the use of selectable output control would “discourage consumers from
relying on an interface that supports … home recording,” CEA Comments at
18 (JA 207), and “would have the likely effect of driving from the market any
home interface that supports home recording,” HRRC Comments at 8 (JA
230). In light of this evidence, the Commission reasonably concluded that
without encoding restrictions, disappointed consumer expectations could
seriously hamper efforts to develop the then-incipient retail market for DTV
equipment. That sort of predictive judgment is entitled to substantial
deference. The Court is “particularly deferential” where (as here) the “FCC
must make judgments about future market behavior with respect to a brand-
new technology.” Charter, 460 F.3d at 41 (internal quotation marks
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omitted); see also Consumer Electronics Ass’n v. FCC, 347 F.3d 291, 303
(D.C. Cir. 2003).
DISH claims that the encoding rules “have no connection” to the
purpose of Section 629 because they do not affect “the design, manufacture,
sale, [or] support for navigation devices.” Br. 35. The statute, however, does
not require the FCC’s implementing rules to regulate any particular
characteristics of navigation devices. Section 629 simply directs the
Commission to “adopt regulations to assure the commercial availability” of
navigation devices from sources unaffiliated with MVPDs. 47 U.S.C.
§ 549(a) (emphasis added). By enhancing the availability of navigation
devices in the retail market, the Commission’s adoption of the encoding rules
plainly served the statute’s purpose.
DISH also asserts that the FCC’s concern with consumer expectations
was unrelated to “the availability of navigation devices.” Br. 41. This Court
rejected a similar argument in Cablevision Sys. Corp. v. FCC, 649 F.3d 695
(D.C. Cir. 2011). The Court there upheld the Commission’s authority under
Section 628(b) of the Communications Act to bar cable operators from
unfairly withholding cable-affiliated terrestrial programming from rival
MVPDs because such withholding would “hinder” competitors “significantly
… from providing satellite … programming to subscribers.” 47 U.S.C.
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16
§ 548(b). In particular, the Court affirmed the Commission’s finding that if
a competing MVPD could not obtain popular terrestrial programming (such
as regional sports networks), its ability to provide satellite programming
would be greatly diminished because it would be less commercially attractive
than cable. Cablevision, 649 F.3d at 708-09.
Petitioners in Cablevision argued that “the Commission lacks authority
to regulate terrestrial programming withholding under” Section 628(b)
because “the effect of such withholding on the provision of satellite
programming” was “too attenuated.” Cablevision, 649 F.3d at 708.
Specifically, petitioners contended that “commercial attractiveness has
nothing to do with whether” a rival MVPD “can provide satellite
programming.” Id. The Court explained that petitioners’ argument “wrongly
assumes an MVPD’s lack of commercial attractiveness will never prevent or
significantly hinder it from providing satellite programming.” Id.
Similarly, DISH in this case incorrectly presumes that consumer
expectations have no effect on the commercial availability of navigation
devices. To the contrary, the record contained evidence that the use of
selectable output control, which would “discourage consumers from relying

16 Satellite programming refers to “programming transmitted to MVPDs via
satellite.” Cablevision, 649 F.3d at 700. Terrestrial programming refers to
“programming delivered to MVPDs over land-based networks.” Id.
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on an interface that supports … home recording,” CEA Comments at 18 (JA
207), “would have the likely effect of driving from the market any home
interface that supports home recording.” HRRC Comments at 8 (JA 230).
By prohibiting selectable output control, the Commission acted to assure the
continued commercial availability of video recording devices pursuant to
Section 629(a).
More generally, by adopting encoding restrictions that reflect
consumers’ reasonable expectations regarding home viewing and recording,
the Commission sought to address consumer concerns that might stifle the
growth of the nascent retail market for DTV navigation devices. In taking
this action, the agency properly exercised its authority under Section 629 to
“adopt regulations to assure the commercial availability” of navigation
devices. 47 U.S.C. § 549(a).
2. The Commission also reasonably found that it had ancillary
jurisdiction arising from Section 629 to adopt the rules. Order ¶ 55 (JA 455).
This Court has held that the FCC may exercise ancillary jurisdiction when
two conditions are met: “(1) the Commission’s general jurisdictional grant
under Title I [of the Communications Act] covers the regulated subject and
(2) the regulations are reasonably ancillary to the Commission’s effective
performance of its statutorily mandated responsibilities.” American Library
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USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 43 of 74
Ass’n v. FCC, 406 F.3d 689, 691-92 (D.C. Cir. 2005). Both of these
conditions are present here.
First, the subject regulated by the encoding rules – “MVPD content
distribution” – falls within “the Commission’s broad authorization” under
Title I “‘to make available to all Americans a radio and wire communication
17
service.’” Order ¶ 55 (JA 455) (quoting 47 U.S.C. § 151). Second, the
encoding rules are reasonably related to the FCC’s fulfillment of its mandate
under Section 629. The Commission explained that the rules would help
“increase consumer demand” for “digital cable products and other navigation
devices at retail” by ensuring that consumers have “access to high value
digital content.” Id.; see also pp. 30-35, supra.
3. DISH contends that Section 629 “cannot be the basis for an
assertion of either direct or ancillary jurisdiction” (Br. 33) because it “is not

17 In that respect, the encoding rules differ from the FCC rules that the
Court struck down in American Library Association. The Court ruled that
those rules “exceeded the scope of [the FCC’s] general jurisdictional grant
under Title I” because the Commission in that case “impose[d] regulations on
devices that receive communications after those communications have
occurred.” American Library Ass’n, 406 F.3d at 703 (emphasis added).
Unlike those rules – which did “not regulate the communications
themselves,” id. – the rules at issue here regulate MVPDs’ encoding of
programs that they transmit to subscribers. This regulation of MVPD content
distribution indisputably falls within the FCC’s general jurisdiction under
Title I. Moreover, in contrast to American Library Association, where the
agency relied solely on its ancillary jurisdiction, the Commission here acted
pursuant to an express grant of authority under Section 629(a).
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an independent grant of authority from Congress” (Br. 35). In support of its
claim, DISH points to Section 629(f). That provision states: “Nothing in this
section shall be construed as expanding or limiting any authority that the
Commission may have under law in effect before [the date of enactment of
the Telecommunications Act of 1996].” 47 U.S.C. § 549(f).
DISH’s reading of the statute cannot withstand scrutiny. “Where the
language of a statute is plain there is nothing to construe.” Hengesbach v.
Hengesbach, 114 F.2d 845, 846 (D.C. Cir. 1940). See also Schlossberg v.
Barney, 380 F.3d 174, 182 (4th Cir. 2004) (because courts “must account for
a statute’s full text,” they “cannot interpret one section of a statute in a way
that would nullify the clearly worded language of other sections of the same
statute”) (internal quotation marks omitted). Consequently, a general rule of
construction such as Section 629(f) has no power to invalidate a specific and
unambiguous grant of authority such as Section 629(a).
The Supreme Court made this clear in AT&T Corp. v. Iowa Utils. Bd.,
525 U.S. 366 (1999). Although Section 2(b) of the Communications Act
provides that “nothing in this [Act] shall be construed to apply or to give the
Commission jurisdiction with respect to” intrastate telecommunications
services, 47 U.S.C. § 152(b), the Court in AT&T held that Section 2(b) could
not be read to “nullify” certain 1996 amendments to the Act because those
37

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provisions “clearly ‘apply’ to intrastate service.” 525 U.S. at 379-80. By the
same reasoning, Section 629(f) cannot be read to nullify Section 629(a),
which clearly directs the FCC to “adopt regulations to assure the commercial
availability” of navigation devices. 47 U.S.C. § 549(a).
Moreover, it is well settled that the Court should “avoid interpreting a
statute in such a way as to make part of it meaningless.” Abourezk v. Reagan,
785 F.2d 1043, 1054 (D.C. Cir. 1986) (citing 2A N. Singer, Sutherland
Statutory Construction § 46.06 (4th ed. 1984)). DISH’s proposed reading of
Section 629 violates this basic canon of statutory construction. Its
interpretation of Section 629(f) “would deprive” Section 629(a) – an express
directive to adopt regulations to assure the commercial availability of
navigation devices – “of all substantive effect, a result self evidently contrary
to Congress’ intent.” See RCA Global Commc’ns, Inc. v. FCC, 758 F.2d 722,
733 (D.C. Cir. 1985). “Congress cannot be presumed to do a futile thing.”
18
Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997).
Finally, DISH’s reading of Section 629 conflicts with this Court’s
decision in General Instrument. The Court there held that Section 629
provided statutory authority for the FCC to impose a ban on integrated

18 DISH’s interpretation of Section 629(f) is also at odds with Section
629(b), which plainly contemplates that the Commission has authority to
“prescribe regulations under [Section 629(a)].” 47 U.S.C. § 549(b).
38

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converter boxes. General Instrument, 213 F.3d at 730-31. DISH’s brief does
not even mention that case, let alone try to distinguish it. In light of General
Instrument, DISH cannot plausibly argue (Br. 35) that Section 629 “is not an
independent grant of authority from Congress.”
DISH attempts to derive support for its reading of Section 629 from the
Court’s treatment of Section 256 of the Communications Act in Comcast
Corp. v. FCC, 600 F.3d 642, 659 (D.C. Cir. 2010). That attempt fails
because the two statutory provisions are very different from each other.
Unlike Section 629’s express grant of rulemaking authority to the
Commission, Section 256 provides only that the Commission “shall establish
procedures for Commission oversight of coordinated network planning by
[service providers] for the effective and efficient interconnection of public
telecommunications networks.” 47 U.S.C. § 256(b)(1). In light of that
statutory language, which can be read as directing only the establishment of
internal FCC operating procedures, the Court in Comcast concluded that the
FCC could not rely on Section 256 to prohibit discriminatory network
management practices of an Internet access provider. By contrast, the
encoding rules that the FCC adopted in this case are “regulations to assure the
commercial availability” of navigation devices – precisely the sort of rules
that Congress expressly directed the agency to adopt in Section 629(a).
39

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B.

The Commission Had Authority To Adopt The Encoding
Rules Under Section 624A.

As a separate and independent ground for adopting the encoding rules,
the FCC concluded that the rules would “advance the policies underlying
Section 624A of the Communications Act.” Order ¶ 56 (JA 456). Section
624A requires the Commission to issue regulations “assuring compatibility
between televisions and video cassette recorders and cable systems.” 47
U.S.C. § 544a(b)(1). The Commission reasonably found that the encoding
rules would help achieve the “end goal” of Section 624A: “to ensure that
cable subscribers will be able to enjoy the full benefits of available cable
programming and the functionality of their televisions and video cassette
recorders.” Order ¶ 56 (JA 456).
The agency acknowledged that Section 624A “does not directly apply
to MVPDs other than cable operators.” Order ¶ 57 (JA 456). Nonetheless,
the Commission reasonably concluded that it could “exercise ancillary
jurisdiction over non-cable MVPDs in order to avoid the creation of a
regulatory and marketplace imbalance between cable and DBS.” Id.
The FCC’s reliance on Section 624A satisfied this Court’s two-part test
for the proper exercise of ancillary authority. See American Library Ass’n,
406 F.3d at 691-92. First, the subject regulated by the encoding rules –
“MVPD content distribution” – falls within the FCC’s general jurisdiction
40

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under Title I of the Communications Act. Order ¶ 55 (JA 455). Second,
application of the rules to non-cable MVPDs is reasonably ancillary to the
FCC’s effective performance of its duties under Section 624A. The
Commission explained that unless the encoding rules applied to all MVPDs,
“cable operators would be at a significant competitive disadvantage in
obtaining access to content.” Order ¶ 57 (JA 456). In the agency’s
assessment, the resulting competitive disparity “could frustrate the [FCC’s]
ability to satisfy Section 624A’s mandate.” Id.
Congress enacted Section 624A because it found that cable
compatibility issues made “consumers … less likely to purchase, and
electronics equipment manufacturers … less likely to develop, manufacture,
or offer for sale, television receivers and video cassette recorders with new
and innovative features and functions.” 47 U.S.C. § 544a(a)(2). The
Commission was concerned that if its encoding rules did not apply uniformly
to all MVPDs, consumers might come to doubt whether DTV receivers and
digital video recording devices would provide the same functionality for
cable subscribers as for DBS subscribers. Such doubts could undermine the
FCC’s efforts to promote the market for cutting-edge consumer electronics
equipment in accordance with Section 624A. In light of that concern, the
Commission reasonably took steps here “to ensure that consumer
41

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expectations are not unreasonably frustrated regardless of the MVPD
platform to which [consumers] subscribe.” Order ¶ 61 (JA 458).
DISH contends that because Congress mentioned no MVPDs other
than cable operators in Section 624A, it clearly intended to bar the FCC from
applying the statute’s requirements to non-cable MVPDs. Br. 22-33. This
argument rests on “the expressio unius maxim – that the expression of one is
the exclusion of others.” Mobile Commc’ns Corp. of America v. FCC, 77
F.3d 1399, 1404 (D.C. Cir. 1996) (“MCCA”). As this Court has repeatedly
observed, however, that maxim is “an especially feeble helper in an
administrative setting, where Congress is presumed to have left to reasonable
agency discretion questions that it has not directly resolved.” Martini v.
FNMA, 178 F.3d 1336, 1343 (D.C. Cir. 1999) (quoting Cheney R.R. Co. v.
ICC, 902 F.2d 66, 69 (D.C. Cir. 1990)).
For example, long before the Communications Act was amended to
provide express authority for FCC regulation of cable television, the Supreme
Court held that the agency had ancillary jurisdiction to regulate cable in order
to ensure “the effective performance of [its] various responsibilities for the
regulation of television broadcasting.” Southwestern Cable, 392 U.S. at 178;
see also United States v. Midwest Video Corp., 406 U.S. 649, 659-63 (1972).
42

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The same sort of ancillary jurisdiction applies here. In the context of
Section 624A, “the contrast between Congress’s mandate” with respect to
cable operators and “its silence” with respect to non-cable MVPDs “suggests
not a prohibition” on FCC regulation, “but simply a decision not to mandate
regulation of non-cable MVPDs, i.e., “to leave the question to agency
discretion.” See Cheney, 902 F.2d at 69. The FCC reasonably exercised its
discretion here when it chose to apply the encoding rules to all MVPDs. The
Commission saw no good reason to create a competitive disparity between
cable and DBS by imposing encoding restrictions only on cable.
This Court has previously upheld the Commission’s use of ancillary
authority to ensure regulatory parity. In MCCA, 77 F.3d at 1404-07, the
Court held that the FCC could rely on its ancillary authority to require Mtel to
pay for a wireless telecommunications license obtained through the agency’s
“pioneer’s preference” program. Although Mtel was not subject to any
statutory payment requirement, all other wireless licensees were statutorily
required to pay for their licenses at auction. The Court concluded that the
Commission could require Mtel to pay for its license in order to prevent
Mtel’s “unjust enrichment” from “receipt of a free license.” Id. at 1406.
The same considerations of regulatory parity justified the FCC’s
decision in this case to apply the encoding rules to non-cable MVPDs as well
43

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as cable operators. The record showed that if only cable operators were
subject to the encoding rules, content providers would likely supply their high
value content only to non-cable MVPDs, which could offer more stringent
copy protections. See Comcast Comments at 14 (JA 182); NCTA Reply
Comments at 13 (JA 375); CEA Reply Comments at 21 (JA 316). On the
basis of that record, the Commission concluded: “Application of the
encoding rules to the cable industry alone would create a permanent
competitive imbalance in the MVPD programming market that could
negatively impact consumers.” Order ¶ 71 (JA 462). To prevent this market
distortion, the FCC reasonably chose to impose the same encoding
restrictions on all MVPDs.
DISH maintains that “Congress had not intended the FCC to consider”
regulatory parity when implementing Section 624A. Br. 47. It contends that
Congress’s principal concern in adopting the 1992 Cable Act was cable’s
dominance of the MVPD marketplace. Br. 47-48. As the Commission
observed, however, times have changed. Over the past two decades, “the
MVPD market has diversified greatly.” Order ¶ 57 (JA 456). DBS, which
“did not exist” when Section 624A was enacted in 1992, “has since grown to
serve approximately twenty percent of the MVPD marketplace.” Id.
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Given the growth of substantial competition in the MVPD market, the
Commission acted within its discretion in declining to adopt encoding rules
that would favor one class of MVPDs over another. Nothing in the text or
legislative history of Section 624A suggests that Congress intended to
foreclose the Commission from seeking to achieve regulatory parity after the
MVPD market became competitive.

III.

THE COMMISSION PROVIDED ADEQUATE NOTICE
AND OPPORTUNITY FOR COMMENT

Finally, the FCC complied with the rulemaking requirements of the
APA by seeking “comment on the MOU and the proposed Commission rules
contained therein.” Further NPRM ¶ 4 (JA 76). The agency received
comments from a wide array of interested parties, including equipment
manufacturers, cable operators, consumer groups, content providers, and both
DBS providers. See Order, Appendix A (JA 471). It considered those
comments before adopting the encoding rules with certain changes. The
APA requires nothing more. See 5 U.S.C. § 553; Rural Cellular Ass’n v.
FCC, 588 F.3d 1095, 1101 (D.C. Cir. 2009).
DISH argues that it did not receive a “meaningful” opportunity to
comment because the Commission gave “insufficient” consideration to the
concerns of DBS providers. Br. 43. According to DISH, the FCC treated the
proposed encoding rules as a “fait accompli.” Br. 42. This Court rejected a
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similar argument in Rural Cellular. Petitioners in that case claimed that
notice and comment “served no purpose” because the Commission “rubber
stamped” a rule change that had effectively been adopted in two earlier
adjudications. Rural Cellular, 588 F.3d at 1101 (internal quotation marks
omitted). But the Court found no indication that “the Commission
improperly prejudged the issue.” Id. (internal quotation marks omitted). It
held that the agency satisfied the APA by giving notice of the proposed rule
change, compiling a record of comments, and considering those comments
before adopting the rule. Id. Here, as in Rural Cellular, the Commission
fulfilled all of its procedural obligations under the APA.
DISH suggests that the Commission did not adequately consider
objections to the encoding rules because those rules were proposed as part of
“a private agreement.” Br. 43. As this Court long ago recognized, however,
“there is nothing objectionable about parties jointly submitting a proposed
rule to an agency,” even if the proposal is “the product of negotiation and
compromise.” Baltimore Gas & Elec. Co. v. United States, 817 F.2d 108,
117 (D.C. Cir. 1987) (internal quotation marks omitted). Moreover, the fact
that the FCC sought “to preserve” the “compromise” reached in the MOU by
adopting encoding rules that “differ little” from the MOU’s proposals “does
not itself establish” that the agency “elevated the effectuation of the
46

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negotiated rules over its duty to protect the public interest.” See id. (internal
quotation marks omitted). To the contrary, the Commission explained that its
efforts to preserve the “plug and play” agreement served the public interest by
ensuring that efforts to make digital navigation devices commercially
available would not be upended. See Order ¶ 47 (JA 452).
This is not the first case in which the FCC adopted rules that were
originally developed through negotiations between private parties. In Texas
Office of Pub. Util. Counsel v. FCC, 265 F.3d 313 (5th Cir. 2001)
(“TOPUC”), a group of local and long-distance telecommunications carriers
proposed a plan for reforming interstate access charges. Although local and
long-distance carriers generally “held opposing views on telecommunications
reform,” they developed the access charge reform proposal through
negotiation and compromise. Id. at 319. The FCC issued a notice of
proposed rulemaking to solicit comment on the carriers’ proposal. After
reviewing the comments it had received, the agency adopted a modified
version of the proposed reform plan. Id. at 319-20.
Much like DISH in this case, petitioners in TOPUC argued that “the
FCC had given approval” to the proposed rule changes “before considering
public comment.” TOPUC, 265 F.3d at 325. They characterized the FCC’s
adoption of the access charge reform plan as “a tainted political compromise
47

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 55 of 74
between the FCC” and the carriers that proposed the plan. Id. The Fifth
Circuit found no basis for these claims. It correctly held that the Commission
satisfied the APA’s rulemaking requirements by providing for notice and
comment before adopting the carriers’ proposal. Id. at 326-27.
The Commission followed the same approach in this case. After the
parties to the “plug and play” agreement submitted their MOU to the FCC,
the agency issued a notice of proposed rulemaking seeking comment on the
MOU’s rule proposals. The Commission received and reviewed comments
from many interested parties, including DBS providers. Moreover, in
response to the comments, the Commission modified the proposed rules
(where it deemed appropriate) before adopting them. For example, although
the MOU proposed to permit a prohibition on copying of subscription video
on demand, the Commission decided to give MVPDs “discretion to determine
whether specific” offerings of this service “merit different encoding terms.”
Order ¶ 74 (JA 464). The agency also adopted the MOU’s proposed
technical rules “with certain modifications.” Order ¶ 10 (JA 437). These
revisions to the proposed rules refute DISH’s claim that its opportunity to
comment in this proceeding was not meaningful.
DISH complains that because the two DBS providers “were shut out of
the [MOU] process,” they “could not negotiate in their own interest in order
48

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to balance the restrictions inherent in the encoding rules.” Br. 45. But both
of the DBS providers and their trade association presented their objections to
the proposed rules in comments filed with the FCC. The Commission
considered those objections. It simply found them unpersuasive.
Specifically, the Commission concluded that “the arguments advanced
by the DBS providers” for exempting DBS from the encoding rules were
“insufficient to outweigh the need for competitive parity among MVPDs.”
Order ¶ 43 (JA 451). The record indicated that if the encoding rules applied
only to cable operators, content providers would likely supply their high
19
value content only to DBS providers and other non-cable MVPDs. Such a
“competitive imbalance in the MVPD programming market,” the
Commission reasonably found, could have a negative impact on MVPD
consumers by depriving them of “equal access to content regardless of their
service provider.” Order ¶ 71 (JA 462).
The Commission also reasonably determined that application of the
encoding rules to all MVPDs, including DBS providers, would most
effectively “ensure that consumer expectations regarding the functionality” of
DTV products “are met.” Order ¶ 11 (JA 437). In particular, the

19 See Comcast Comments at 14 (JA 182); NCTA Reply Comments at 13
(JA 375); CEA Reply Comments at 21 (JA 316).
49

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 57 of 74
Commission explained that “the ban on selectable output control logically
should apply uniformly to all MVPDs in order to ensure that consumer
expectations are not unreasonably frustrated regardless of the MVPD
platform to which they subscribe.” Order ¶ 61 (JA 457-58).
Simply put, the Commission found that the public interest in
accommodating the expectations of consumers outweighed the private
interest of DBS providers. DISH has given the Court no good reason to
disturb this reasonable policy judgment.
50

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CONCLUSION

For the foregoing reasons, the Court should deny the petitions for
review.
Respectfully
submitted,
SHARIS A. POZEN
AUSTIN C. SCHLICK
ACTING ASSISTANT ATTORNEY
GENERAL COUNSEL
GENERAL
PETER KARANJIA
CATHERINE G. O’SULLIVAN
DEPUTY GENERAL COUNSEL
JAMES J. FREDRICKS
ATTORNEYS
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL
UNITED STATES
DEPARTMENT OF JUSTICE
/s/ James M. Carr
WASHINGTON, D.C. 20530
JAMES M. CARR
COUNSEL
FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
March 30, 2012
51

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 59 of 74
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
ECHOSTAR SATELLITE L.L.C.,
PETITIONER,
NOS. 04-1033 & 04-
v.
1109
F
(CONSOLIDATED)
EDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS.
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying “Brief for Respondents” in the captioned case
contains 10,472 words.
/s/ James M. Carr
James M. Carr

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
March 30, 2012

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04-1033

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

EchoStar Satellite LLC., et al. Petitioners

v.

Federal Communications Commission and the United States of
America, Repondents

CERTIFICATE OF SERVICE

I, James M. Carr, hereby certify that on March 30, 2012, I electronically
filed the foregoing Brief for Respondents with the Clerk of the Court for the
United States Court of Appeals for the D.C. Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.
Stephanie A. Roy
James Joseph Fredricks
Pantelis Michalopoulos
Catherine G. O’Sullivan
Steptoe & Johnson LLP
U.S. Department of Justice
1330 Connecticut Avenue, N.W.
Antitrust Division, Appellate Section
Washington, D.C. 20036-1795
Room 3224
Counsel for EchoStar Satellite L.L.C. 950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Counsel for USA

USCA Case #04-1033 Document #1366416 Filed: 03/30/2012 Page 74 of 74
04-1033
Neal Morse Goldberg
Paul Glist
*Loretta P. Polk
Davis Wright Tremaine LLP
National Cable &
1919 Pennsylvania Avenue, N.W.
Telecommunications Association
Suite 200
25 Massachusetts Avenue, N.W.
Washington, D.C. 20006-3402
Suite 100
Counsel for NCTA
Washington, D.C. 20001-1431
Counsel for NCTA
/s/ James M. Carr

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