Section 119 Licensing & Injunctions

CBS Broadcasting, Inc. v. Echostar Communications Corp. (11th Circ. May 23, 2006)

Pages upon pages of this opinion describe in detail Echostar’s consistent pattern of behavior violating Section 119 of the Copyright Act. The Satellite Home Viewer Act of 1988 created Section 119 and it governs the statutory licensing of traditional television broadcasts to satellite television providers. The nature of the dispute here involved Echostar’s methods of determining whether its customers could receive television broadcasts as “`unserved households,’ that is, households unable to receive network programming at a specified level of intensity through the use of conventional rooftop antennas.”

On appeal, the central question was whether Echostar’s failures to comply with the statute represents “repeated individual violations” or a “pattern or practice” of violations. The district court had concluded on the former, thereby avoiding a permanent nationwide injunction required by the statute. Relying on legislative intent and public policy arguments, the appeals court disagreed with the district court. Whereas the district court had assumed that Section 119 required ongoing disobedience, the appeals court concluded that “for the purpose of evaluating “pattern or practice” liability, that a finding that a satellite carrier failed to carry its burden of establishing eligibility is tantamount to a finding of ineligibility.” Further, the evidence on the record was sufficient for the appeals court to order that the case be remanded to the district court with instructions to issue the permanent nationwide injunction required by Section 119.