Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 1 of 8
`
`Andrew A. August (State Bar No. 112851)
`Kevin F. Rooney (State Bar No. 184096)
`STEYER LOWENTHAL BOODROOKAS
` ALVAREZ & SMITH LLP
`235 Pine Street, 15th Floor
`San Francisco, California 94104
`Telephone:
`(415) 421-3400
`Facsimile:
`(415) 421-2234
`E-mail:
`aaugust@steyerlaw.com
`krooney@steyerlaw.com
`WALTER E. DIERCKS (pro hac vice application to follow)
`RUBIN, WINSTON, DIERCKS,
` HARRIS & COOKE, LLP
`Suite 700
`1250 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`Telephone: (202) 861-0870
`Facsimile: (202) 429-0657
`E-mail:
`wdiercks@rwdhc.com
`Attorneys for Plaintiff
`MINORITY TELEVISION PROJECT, INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`MINORITY TELEVISION PROJECT,
`INC., a non-profit corporation,
`Plaintiff,
`
`Case No.
`
`COMPLAINT
`
`v.
`DISH NETWORK L.L.C.,
`Defendants.
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`COMPLAINT
`1871770.1 - MINORITY.DISH
`
`CASE NO.
`
`

`

`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 2 of 8
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`Plaintiff, Minority Television Project, Inc. (hereinafter “Minority” or “Plaintiff”) alleges
`as follows:
`Plaintiff is bringing this action against DISH Network L.L.C. (hereinafter “DISH
`1.
`LLC” or “Defendant”) pursuant to 47 U.S.C. Section 401 to enforce an order of the Federal
`Communications Commission. As described more fully below, DISH LLC is failing to obey a
`regularly made order of the Federal Communications Commission, other than to pay money:
`Section 76.66 of the FCC’s Rules, 47 CFR§ 76.66,1 which was published in the Federal Register
`on October 29, 2019 at 84 FR 45659 and which presently is in effect (the “FCC Order”). DISH
`LLC was duly served and has actual knowledge of the FCC Order. Since January 1, 2021, the
`FCC Order has required and continues to require DISH LLC to carry the television broadcast
`signal of Minority for KMTP-TV but, from January 1, 2021 to the present, DISH LLC has failed
`to obey the FCC Order by refusing and failing to carry the broadcast signal of KMTP-TV.
`Minority has been injured by DISH LLC’s failure to obey the FCC Order by not carrying the
`broadcast signal of KMTP-TV. 47 U.S.C. Section 401 authorizes Minority to apply to the
`appropriate district court for enforcement of the FCC Order. This district court is the appropriate
`district court for enforcement of the FCC Order. Minority is entitled to entry of an order of this
`Court requiring DISH LLC to obey the FCC Order and requiring DISH LLC to carry the
`television broadcast signal of KMTP-TV.
`THE PARTIES, JURISDICTION AND VENUE
`The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 47 U.S.C. §
`
`2.
`
`401.
`
`3.
`follows:
`
`This action is authorized by 47 U.S.C. § 401, which provides in pertinent part as
`
`(b) Orders of Commission – If any person fails to obey an order of
`the Commission, other than for the payment of money, while the
`same is in effect, the Commission or any party injured thereby, or the
`United States, by the Attorney General, may apply to the appropriate
`district court of the United States for the enforcement of such order.
`If, after hearing, that court determines that the order was regularly
`made and duly served, and that the person is in disobedience of the
`
`1 A copy of Section 76.66 is attached hereto and made a part hereof as Exhibit A.
`1
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
`
`CASE NO.
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 3 of 8
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`same, the court shall enforce obedience to such order by a writ of
`injunction or other proper process, mandatory or otherwise, to
`restrain such person or the officers, agents, or representatives of such
`person, from further disobedience of such order, or to enjoin upon it
`or them obedience to the same.
`The Federal Communications Commission regularly issued the FCC Order within
`4.
`the meaning of 47 U.S.C. § 401. The FCC Order was published in the Federal Register on
`October 29, 2019 at 84 FR 45659. The FCC Order is an order within the meaning of 47 U.S.C. §
`401.
`
`DISH LLC was duly served and has actual knowledge of the FCC Order.
`5.
`Pursuant to the FCC Order Minority timely filed a mandatory carriage request on
`6.
`behalf of KMTP-TV.
`7.
`On November 5, 2020, the Federal Communications Commission issued an Order
`on Reconsideration in Minority Television Project, Inc., 35 FCC Rcd 12747 (“MB 2020”), which
`held that Minority had timely filed a mandatory carriage request on behalf of KMTP-TV and that
`“KMTP-TV timely filed its mandatory carriage request under the revised procedures and will be
`carried by DISH commencing with the new carriage cycle in January 2021.” A copy of MB 2020
`is attached hereto as Exhibit B.
`8.
`Minority is informed and believes and thereon alleges that DISH was duly served
`with and has actual knowledge of MB 2020.
`9.
`Pursuant to the FCC Order and MB 2020, DISH LLC has been required to carry
`the television broadcast signal of Minority for KMTP-TV.
`10.
`Since January 1, 2021, DISH LLC has failed and continues to fail to obey the FCC
`Order and MB 2020 by not carrying said signal of KMTP-TV.
`11.
`Venue is proper because this district court is an appropriate district court under 47
`U.S.C. § 401(b) as is more fully set out in Paragraphs 12 through 17 infra.
`12. Minority is a non-profit corporation organized under the laws of the State of
`California and resides, has its principal offices and conducts its operations, namely the operation
`of educational noncommercial television station KMTP-TV, which is licensed to San Francisco,
`California, in this judicial district. KMTP-TV’s broadcast signal is received throughout much of
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
`
`2
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`CASE NO.
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 4 of 8
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`this judicial district.
`13.
`DISH LLC is a Colorado limited liability company with its principal place of
`business in Colorado. DISH LLC is wholly owned by DISH Network Corporation, which is a
`Nevada Corporation with its principal place of business in Colorado. The stock of DISH
`Network Corporation is publicly traded. DISH LLC is qualified to do business in California as a
`foreign limited liability company.
`14.
`DISH LLC is a business which operates a satellite broadcast system which
`provides satellite television service to subscribers throughout the United States, including
`subscribers in San Francisco and elsewhere in this judicial district. As of the third quarter of
`2020, DISH LLC had almost 9 million subscribers in the U.S.
`15.
`DISH LLC markets its satellite television service to residents in San Francisco and
`elsewhere in this judicial district.
`16.
`In addition, DISH LLC leases equipment to subscribers throughout the United
`States, including subscribers in San Francisco and elsewhere in this judicial district and said
`equipment is physically located in San Francisco and throughout this judicial district.
`17.
`Additionally, DISH LLC uses headend physical facilities located in this judicial
`district that capture the signals of local television stations in San Francisco and elsewhere in the
`judicial district off the air for satellite uplink and subsequent rebroadcast to subscribers located in
`San Francisco and elsewhere in this judicial district. DISH LLC carries at least one local
`television broadcast signal pursuant to a statutory copyright license.
`CLAIM FOR RELIEF
`
`Violation of Regularly Made Order of the Federal Communications Commission.
`
`This case involves two kinds of television businesses: a) a local broadcast
`18.
`television station and b) a satellite television company. Local broadcast television stations use a
`tower to broadcast programming over-the-air to a local community. Minority operates KMTP-
`TV as a local broadcast television station.
`19.
`Satellite television companies use satellites to distribute programming all over the
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
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`CASE NO.
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 5 of 8
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`United States. DISH LLC is a satellite television company,
`20.
`Part of the programming that satellite television companies, including DISH LLC,
`carry and distribute to their subscribers is obtained from local broadcast television stations.
`21.
`Section 338 of the Communications Act of 1934, 47 U.S.C. § 338 (“Section 338”),
`provides a regulatory scheme related to the carriage of local broadcast stations by satellite
`television companies.
`22.
`Section 338 requires satellite providers upon request, to carry all local television
`broadcast stations’ signals in local markets in which the satellite provider carries at least one local
`television broadcast signal pursuant to the statutory copyright license. MB 2020, 35 FCC Rcd at
`12748.
`
`Section 76.66 of the FCC’s Rules, 47 CFR § 76.66, (the FCC Order) sets forth the
`23.
`procedures and requirements pursuant to which television stations and satellite carriers are to
`implement the statutory requirement.
`24.
`The FCC rules provide that a noncommercial local television station may, in
`certain circumstances, require that a satellite broadcast company carry its signal. This
`requirement is generally referred to as a “must-carry.”
`25.
`Pursuant to Section 76.66(c)(4) of the FCC Order, noncommercial television
`stations must request carriage by electing mandatory carriage with the satellite carrier serving
`their local market by October 1st of the year preceding each three-year carriage election cycle.
`MB 2020, 35 FCC Rcd at 12748.
`26.
`If a station fails to properly make this election with its satellite carrier, the carrier
`is not required to carry the station’s signal during that three-year election cycle. MB 2020, 35
`FCC Rcd at 12748.
`27. When a station timely requests “must-carry” from a satellite television company,
`and the company refuses to provide such carriage, the local television station may, but is not
`required to, file a “must-carry complaint” with the FCC.
`28.
`This case involves a situation in which a local noncommercial television station
`(Minority for KMTP-TV) timely filed a mandatory carriage request under the FCC Order seeking
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
`
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 6 of 8
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`carriage for the three-year election cycle that began January 1, 2018, but the satellite television
`company - DISH LLC - refused carriage. Minority filed a “must-carry complaint” with the FCC.
`The FCC issued its Order on Reconsideration ( MB 2020), ruling Minority had timely filed a
`mandatory carriage request under the FCC Order for the three-year election cycle that began
`January 1, 2021 and, therefore, that DISH LLC was required to carry KMTP’s signal
`commencing on January 1, 2021. DISH LLC was duly served and has actual knowledge of both
`the FCC Order and MB 2020, but has continued its refusal to provide that carriage and has failed
`to carry KMTP’s signal as it is required to do by the Commission Order.
`29.
`DISH LLC did not file a timely request for reconsideration or review of MB 2020
`at the FCC or with the federal courts, and MB 2020 is now final and not subject to further review.
`30.
`DISH LLC’s continuing violation of the FCC Order and MB 2020 arose as
`follows:
`On September 27, 2017, Minority sent DISH LLC a timely letter electing
`31.
`mandatory carriage for the three-year election cycle that would begin January 1, 2018 and
`terminate on December 31, 2020. The record established that the letter was sent by Priority
`Express Mail. DISH, LLC received the letter but rejected KMTP’s carriage election letter,
`arguing that because FCC Order requires election notices to be sent via certified mail, return
`receipt requested, and because it was not sent certified mail, the notice was not a valid election.
`MB 2020, 35 FCC Rcd at 12748.
`32. Minority filed a complaint with the FCC requesting that the FCC order DISH LLC
`to carry the KMTP-TV signal. In its complaint, Minority argued that DISH LLC’s rejection of its
`election letter was wrongful because certified mail is a lesser included service to Priority Express
`Mail, and its election was therefore compliant with the FCC Order. Minority pointed out that
`Priority Express Mail is a superior service to certified mail in that it provides next day delivery
`and it is traceable. Minority further pointed out that Priority Express Mail did not exist when the
`FCC Order was adopted, and that DISH LLC was placing form over substance by challenging the
`use of Priority Express Mail. In response, DISH LLC maintained that, because the explicit rule
`requirements were not followed, the election was not valid, and it was under no obligation to
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
`
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`CASE NO.
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 7 of 8
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`carry the station. MB 2020, 35 FCC Rcd at 12748.
`33.
`The FCC initially concluded in 2018 that, although the notice was timely received
`by DISH LLC and included all of the information required to be included in the notice, because
`the Minority election notice was delivered via Priority Express mail and not via certified mail, it
`did not comply with the FCC Order and DISH, LLC’s rejection of the notice was permissible.
`Minority Television Project, 33 FCC Rcd 216, 218-19 (“Initial Decision” or “MB 2018”).
`34. Minority sought reconsideration of the Initial Decision and MB 2020 was issued in
`response to that request for reconsideration.
`35. MB 2020 concluded that the Minority request for reconsideration was moot and
`dismissed the request for reconsideration.
`36. MB 2020 provided two reasons for concluding that the matter was moot. It stated:
`
`. . . . First, because the Commission’s must-carry and retransmission
`consent election rules have changed, we need not resolve this issue
`for future controversies.
`Second, because the election cycle at issue in this proceeding
`has now passed, this is no longer a live controversy. Carriage
`elections and change notices for the current election cycle were due
`by October 1, 2020 and required the use of the new election
`procedures adopted in the Electronic Delivery Report and Order.
`KMTP timely filed its mandatory carriage request under the
`revised procedures and will be carried by DISH commencing
`with the new carriage cycle in January 2021. Accordingly, we
`dismiss the Petition as moot. (emphasis added, footnotes omitted).
`MB 2020, 35 FCC Rcd at 12749-50.
`37.
`Pursuant to the FCC Order and MB 2020, DISH, LLC was obligated to begin
`carriage of KMTP-TV on its satellite system on January 1, 2021.
`38.
`The FCC Order was published in the Federal Register on October 29, 2019. 84 FR
`45659. DISH LLC was duly served and has actual knowledge of MB 2020 and the FCC Order.
`39.
`DISH, LLC did not begin to carry KMTP-TV on its satellite system on January 1,
`2021 and has not carried KMTP-TV’s signal at any time after December 31, 2017.
`40.
`At all times beginning on January 1, 2021 through and including the present,
`DISH LLC has been and presently is in violation of the FCC Order and MB 2020.
`41.
`At all times beginning on January 1, 2021 through and including the present,
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`COMPLAINT
`1871770.1 - MINORITY.DISH
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`CASE NO.
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`Case 3:21-cv-02214-TSH Document 1 Filed 03/30/21 Page 8 of 8
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`Minority has been injured and continues to be injured by DISH LLC’s failure to carry KMTP-
`TV’s signal in violation of the FCC Order and MB 2020.
`PRAYER
`WHEREFORE, Plaintiff Minority Television Project, Inc. seeks judgment in its favor and
`against Defendant, and for relief as follows:
`1.
`For a declaration of the rights, obligations and other legal relations between
`Plaintiff Minority on the one hand and Defendant DISH LLC on the other hand, namely for a
`declaration that Defendant DISH LLC is failing to obey a regularly made order of the Federal
`Communications Commission, other than for the payment of money, of which it has actual
`knowledge, namely Section 76.66 of the Commission’s Rules, as well as the FCC’s final and
`unreviewable order in MB 2020, while the same is in effect, by failing to carry the television
`broadcast signal of Minority as required by said FCC Order and MB 2020 and that Minority is
`injured thereby.
`2.
`For a permanent injunction requiring DISH LLC to obey said regularly made order
`of the Federal Communications Commission by carrying the television broadcast signal of
`Minority Television Project, Inc. for KMTP-TV on DISH LLC’s broadcast satellite service
`through and including December 31, 2023.
`3.
`For such other legal, statutory and equitable relief as the Court may deem just and
`proper.
`
`Dated: March 30, 2021
`
`COMPLAINT
`1871770.1 - MINORITY.DISH
`
`STEYER LOWENTHAL BOODROOKAS
`ALVAREZ & SMITH LLP
`
`By:
`/s/ Andrew A. August
`Andrew A. August
`Kevin F. Rooney
`STEYER LOWENTHAL BOODROOKAS
`ALVAREZ & SMITH LLP
`
`/s/ Walter E. Diercks
`By:
`Walter E. Diercks (D.C. Bar No. 161620)
`RUBIN, WINSTON, DIERCKS, HARRIS &
`COOKE, L.L.P.
`Attorneys for Plaintiff Minority Television
`Project, Inc.
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