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 Federal  Communications  Commission  FCC  00-  283 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 


 American  Distance  Education  Consortium 
 Request  for  an  Expedited  Declaratory  Ruling 
 and  Informal  Complaint 


 Petition  for  Reconsideration 


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 File  No.  SAT-  PDR-  19990803-  00077 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  1,  2000  Released:  August  9,  2000 
 Before  the  Commission: 
 1.  By  this  Memorandum  Opinion  and  Order,  we  deny  a  petition  for  reconsideration  filed  on 
 December  27,  1999  by  EchoStar  Satellite  Corporation  (“  EchoStar”).  EchoStar  seeks  reconsideration  of 
 the  Commission’s  November  24,  1999  Declaratory  Ruling  and  Order  finding  that  EchoStar’s  proposal  to 
 place  all  of  its  public  interest  programming  on  a  satellite  not  capable  of  serving  the  entire  United  States 
 would  not  satisfy  the  Commission’s  public  interest  requirements  for  direct  broadcast  satellite  (“  DBS”) 
 providers.  1  EchoStar  has  failed  to  persuade  us  that  the  Declaratory  Ruling  was  in  error. 


 BACKGROUND 
 2.  In  1996  the  Commission  adopted  rules  imposing  public  interest  programming  and  other 
 obligations  on  DBS  providers.  2  These  rules  require  DBS  providers  to  set  aside  four  percent  of  their  DBS 
 systems’  total  channel  capacity  exclusively  for  programming  of  an  educational  or  informational  nature.  3 
 The  DBS  Public  Interest  Obligations  Order  required  DBS  providers  to  make  available  satellite  capacity 
 for  public  interest  programming  on  June  15,  1999,  and  provided  an  additional  six-  months  to  enter  into 
 arrangements  with  interested  programmers  for  the  delivery  of  public  interest  programming.  DBS  providers 
 were  required  to  commence  offering  programming  by  December  15,  1999.  4 


 1  American  Distance  Education  Consortium  Request  for  an  Expedited  Declaratory  Ruling  and  Informal 
 Complaint,  Declaratory  Ruling  and  Order,  14  FCC  Rcd  19976  (1999)  (“  Declaratory  Ruling”). 
 2  Implementation  of  Section  25  of  the  Cable  Television  Consumer  Protection  and  Competition  Act  of  1992, 


 Direct  Broadcast  Satellite  Public  Interest  Obligations,  Report  and  Order,  13  FCC  Rcd  23254  (1998)  (“  DBS 
 Public  Interest  Obligations  Order”). 


 3  47  C.  F.  R.  §  100.5(  c). 


 4  DBS  Public  Interest  Obligations  Order,  13  FCC  Rcd  at  23309. 
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 3.  ADEC  is  a  consortium  of  colleges  and  universities  that  pools  resources  to  develop 
 educational  programming.  ADEC  requested  access  to  EchoStar’s  public  interest  set-  aside  channels  and 
 was  advised  that  EchoStar  intended  to  place  all  of  its  public  interest  programming  on  its  satellite,  EchoStar 
 III,  at  the  61.  5°  W.  L.  orbit  location.  Because  the  61.  5°  W.  L.  orbit  location  is  not  a  full-  CONUS 
 (contiguous  U.  S.)  location  and  cannot  reach  subscribers  in  western  portions  of  the  United  States,  ADEC 
 asserted  that  EchoStar’s  proposal  violated  the  DBS  public  interest  obligation  requirement  to  make 
 programming  available  to  “all  subscribers.”  5  Consequently,  ADEC  filed  a  Request  for  an  Expedited 
 Declaratory  Ruling  and  Informal  Complaint  asking  the  Commission  to  rule  that  the  DBS  public  interest 
 obligations  require  EchoStar  to  provide  channel  space  on  a  satellite  with  full  coverage  of  the  United  States 
 and  that  can  be  received  by  subscribers  without  having  to  purchase  additional  equipment.  6  This  Request 
 was  placed  on  public  notice  and  23  organizations,  including  other  public  interest  programmers,  filed 
 comments.  7  All  of  the  commenters  supported  ADEC’s  Request  and  urged  the  Commission  to  require 
 EchoStar  to  provide  public  interest  programming  on  a  nationwide  basis.  EchoStar  filed  an  opposition  to 
 the  Request  and  ADEC  filed  a  reply. 


 4.  On  November  24,  1999,  the  Commission  issued  a  Declaratory  Ruling  finding  that 
 EchoStar’s  proposal  to  place  all  of  its  public  interest  programming  on  EchoStar  III  at  61.  5°  W.  L.  did  not 
 comply  with  the  Commission’s  DBS  public  interest  rules.  8  The  Commission  stated  that  the  DBS  Public 
 Interest  Obligations  Order  made  clear  that  DBS  public  interest  programming  “must  be  made  available  to 
 all  of  a  DBS  provider’s  subscribers  without  additional  charge,”  and  that  the  obligations  “are  designed  to 
 expand  programming  choices  for  consumers  in  all  areas  of  the  United  States.”  9  It  also  noted  that  although 
 EchoStar  asserted  that  EchoStar  III  could  provide  coverage  to  the  entire  United  States,  it  elsewhere 
 represented  that  the  satellite  coverage  goes  only  as  far  west  as  Denver.  EchoStar’s  subscriber  information 
 also  failed  to  support  its  claim  that  a  “significant”  number  of  subscribers  in  the  Pacific  Northwest  received 
 service  from  EchoStar  III.  Further,  supplemental  information  submitted  by  EchoStar  showed  that  the 


 5  DBS  Public  Interest  Obligations  Order,  13  FCC  Rcd  at  23285  (1998)  (“[  T]  he  public  interest  programming 
 provided  for  in  the  order  must  be  made  available  to  all  of  a  DBS  provider’s  subscribers  without  additional 
 charge.”) 


 6  American  Distance  Education  Consortium,  Request  for  an  Expedited  Declaratory  Ruling  and  Informal 


 Complaint,  File  No.  SAT-  PDR-  19990803-  00077,  filed  August  3,  1999. 
 7  See  Declaratory  Ruling,  14  FCC  Rcd  at  19986,  Attachment  A. 


 8  Declaratory  Ruling,  14  FCC  Rcd  at  19980.  The  Declaratory  Ruling  also  addressed  two  other  issues  raised  by 
 ADEC.  The  first  concerned  EchoStar’s  proposed  monthly  access  fee.  ADEC  asked  the  Commission  to  order 
 EchoStar  to  lower  its  proposed  fee  of  $10,000  to  $1,970  until  EchoStar  justifies  the  higher  rate.  The  Commission 
 concluded  there  was  not  sufficient  information  in  the  record  on  this  issue  and  directed  EchoStar  to  provide  a  cost 
 justification  for  ADEC’s  review.  ADEC  was  directed  to  then  file  comments  with  the  Commission. 
 Subsequently,  however,  EchoStar  did  not  select  ADEC  for  carriage  on  its  system  and  thus  the  cost  issue  became 
 moot.  Therefore,  the  International  Bureau  dismissed  ADEC’s  complaint  regarding  the  fee  issue  because  there 
 was  no  relief  that  could  be  provided  to  ADEC.  See  American  Distance  Education  Consortium,  Request  for  an 
 Expedited  Declaratory  Ruling  and  Informal  Complaint,  Memorandum  Opinion  and  Order,  DA  00-  973  (rel.  May 
 16,  2000).  Second,  ADEC  objected  to  EchoStar’s  proposal  to  use  a  third  party  to  select  its  qualified  public 
 interest  programmers.  Because  the  use  of  such  agents  is  clearly  permitted  in  the  DBS  Public  Interest  Obligations 
 Order,  the  Commission  found  no  reason  to  preclude  EchoStar  from  using  this  service.  ADEC  did  not  seek 
 reconsideration  of  this  determination. 


 9  Declaratory  Ruling,  14  FCC  Rcd  at  19980. 
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 number  of  subscribers  receiving  service  from  EchoStar  III  was  de  minimis  in  relation  to  its  total  subscriber 
 base.  10  Consequently,  the  Commission  concluded  that  allowing  EchoStar  to  place  its  public  interest 
 programming  on  a  satellite  that  is  not  only  technically  incapable  of  reaching  all  of  its  subscribers,  but  in 
 fact  only  served  a  small  percentage  of  total  EchoStar  subscribers,  would  not  satisfy  its  public  interest 
 obligation. 


 5.  The  Commission  also  emphasized  its  intent  to  give  DBS  providers  flexibility  in 
 implementing  their  obligations  within  the  parameters  of  the  rule.  Therefore,  instead  of  directing  EchoStar 
 to  place  all  of  its  public  interest  programming  on  one  particular  satellite,  the  Commission  directed  EchoStar 
 to  reserve  four  percent  of  the  total  number  of  channels  available  at  each  of  its  full-  CONUS  orbit  locations 
 for  such  programming.  11  The  Commission  further  stated  that  any  remaining  reserved  channels,  that  is,  the 
 difference  between  the  four  percent  at  each  full-  CONUS  orbit  location  and  four  percent  of  all  channels  in 
 EchoStar’s  system,  can  be  placed  at  the  location  of  its  choice.  12  The  Commission  concluded  that  this  result 
 provides  the  greatest  benefit  to  the  vast  majority  of  EchoStar  subscribers,  who  will  be  able  to  receive  public 
 interest  programming  without  purchasing  additional  equipment.  13 


 6.  EchoStar  seeks  reconsideration  of  the  Declaratory  Ruling  on  three  grounds.  First, 
 EchoStar  asserts  that  the  Commission  exceeded  its  statutory  authority  in  this  ruling.  The  statute,  according 
 to  EchoStar,  merely  authorizes  the  Commission  to  require  DBS  providers  to  set  aside  a  portion  of  their 
 channel  capacity,  it  does  not  authorize  the  Commission  to  dictate  where  in  its  system  a  DBS  provider  must 
 offer  these  channels.  Second,  EchoStar  states  that  the  Declaratory  Ruling  deviates  from  the  DBS  Public 
 Interest  Obligations  Order  by  creating  “sub  set-  asides”  based  on  individual  orbit  locations,  thus  creating  a 
 new  requirement  inconsistent  with  the  existing  regulation.  EchoStar  states  the  Commission  failed  to  justify 
 adequately  this  departure  from  the  DBS  Public  Interest  Obligations  Order  which  bases  the  set-  aside  on  a 
 DBS  system’s  total  channel  capacity  as  opposed  to  capacity  on  individual  satellites.  Finally,  EchoStar 
 states  that  the  requirement  set  forth  in  the  Declaratory  Ruling  imposes  a  burden  on  EchoStar’s  First 
 Amendment  rights  “above  and  beyond  the  burden  imposed  by  Section  25  itself.”  EchoStar  also  claims  the 
 Commission  failed  to  address  any  reasonably  available  alternatives  that  are  less  restrictive  and  failed  to 
 demonstrate  that  the  new  requirement  is  necessary  to  fulfill  a  substantial  government  interest  as  required  by 
 the  First  Amendment. 


 DISCUSSION 
 7.  Standard  of  Review.  Reconsideration  is  appropriate  only  where  the  petitioner  either  shows 
 a  material  error  or  omission  in  the  original  order  or  raises  additional  facts  not  known  or  existing  until  after 
 the  petitioner’s  last  opportunity  to  present  such  matters.  14  Section  1.106(  d)  of  the  Commission’s  rules 


 10  Id.  at  19981. 


 11  Declaratory  Ruling  at  19982. 
 12  For  example,  a  DBS  provider  with  100  channels  in  its  system  must  set  aside  four  channels  for  public  interest 
 programming.  If  75  of  these  channels  were  at  a  full-  CONUS  location,  and  25  at  a  non  full-  CONUS  location  then 
 the  provider  would  have  to  set  aside  3  channels  at  the  full-  CONUS  location  and  could  place  the  one  remaining 
 channel  at  the  location  of  its  choice. 


 13  Declaratory  Ruling  at  19982. 


 14  WWIZ,  Inc.,  37  FCC  685,  686  (1964),  aff’d  sub  nom.  Lorrain  Journal  Co.  v.  FCC,  351  F.  2d  824  (D.  C.  Cir. 
 1965).  cert.  denied,  383  U.  S.  967  (1966);  47  C.  F.  R.  §  1.106. 
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 provides  that  a  petition  for  reconsideration  must  state  with  particularity  the  respects  in  which  the  petitioner 
 believes  the  action  taken  by  the  Commission  should  be  changed.  Additionally,  the  petition  must  specifically 
 state  the  form  of  relief  sought.  15  EchoStar  has  not  shown  a  material  error  or  omission  in  the  Declaratory 
 Ruling. 


 8.  Statutory  Authority.  EchoStar  first  asserts  that  the  Declaratory  Ruling  exceeded  the 
 authority  delegated  by  Section  25  of  the  Act.  16  It  claims  that  the  statute  only  authorized  the  Commission  to 
 require  DBS  providers  to  set  aside  a  portion  of  their  systems’  channel  capacity  for  public  interest 
 programming  and  did  not  authorize  the  Commission  to  require  a  certain  number  of  channels  to  be  set  aside 
 at  each  full-  CONUS  location  as  set  forth  in  the  Declaratory  Ruling.  17  Citing  to  the  statutory  obligations  of 
 cable  operators  to  carry  local  broadcast  signals,  EchoStar  states  that  where  Congress  intended  to  establish 
 such  a  requirement,  it  expressly  did  so.  18  In  its  opposition,  ADEC  responds  that  Congress  granted  the 
 Commission  considerable  discretion  with  respect  to  implementing  DBS  public  interest  programming 
 requirements.  Specifically,  ADEC  notes,  Congress  authorized  the  Commission  to  “decide  public  interest  or 
 other  requirements  for  providing  video  programming.”  19  ADEC  states  that  as  the  agency  charged  with 
 implementing  these  obligations,  the  Commission  is  entitled  to  have  its  interpretation  of  the  statute  followed 
 as  there  are  no  compelling  indications  that  the  Commission  is  wrong. 


 9.  Section  25  directs  the  Commission  to  adopt  rules  imposing  public  interest  obligations  on 
 DBS  providers,  including  the  requirement  that  DBS  providers  set  aside  a  portion  of  their  channel  capacity 
 for  noncommercial  programming  of  an  educational  or  informational  nature  as  a  condition  to  their 
 authorization.  The  DBS  Public  Interest  Obligations  Order  was  released  in  response  to  this  statutory 
 mandate.  The  Declaratory  Ruling  clarified  how  the  DBS  Public  Interest  Obligations  Order  applies  in  the 
 context  of  a  specific  factual  situation.  The  fact  that  Congress  did  not  specify  which  particular  satellite 
 orbit  locations  must  be  used  for  public  interest  programming  does  not  foreclose  the  Commission  from  doing 
 so  in  the  Declaratory  Ruling.  Section  25  simply  provides  that  the  Commission  shall  require  DBS 
 providers  to  reserve  a  portion  of  their  channel  capacity  of  not  less  than  4  percent  or  more  than  7  percent 
 exclusively  for  noncommercial  programming  of  an  educational  nature.  The  Commission  acted  within  its 
 authority  by  interpreting  the  statute  in  a  manner  consistent  with  the  stated  purpose  of  Section  25  of  the 
 statute,  which  is  to  “promote  the  availability  to  the  public  of  a  diversity  of  views  and  information  through 
 cable  and  other  video  distribution  media.”  20  For  these  reasons,  the  Declaratory  Ruling  was  consistent  with 
 the  statutory  objectives  intended  by  Congress. 


 10.  Consistency  with  the  DBS  Public  Interest  Obligations  Report  and  Order.  EchoStar  also 
 15  47  C.  F.  R.  §  1.106(  d)(  1)  and  (d)(  2). 
 16  47  U.  S.  C.  §  335. 
 17  Petition  for  Reconsideration  of  EchoStar  Satellite  Corporation,  filed  December  27,  1999  (“  EchoStar  Petition”) 
 at  5. 
 18  Id.,  citing  47  U.  S.  C.  §  614(  b)(  6)  (signals  carried  in  fulfillment  of  this  obligation  shall  be  carried  on  the  cable 


 system  channel  number  on  which  the  local  commercial  television  station  is  broadcast). 
 19  American  Distance  Education  Consortium’s  Opposition  to  EchoStar  Satellite  Corporation’s  Petition  for 


 Reconsideration,  filed  January  18,  2000  (“  ADEC  Opposition”)  at  5,  citing  47  U.  S.  C.  §  335(  a). 
 20  Time  Warner  Entertainment  Co.,  L.  P.,  v.  FCC,  93  F.  3d  957,  976  (D.  C.  Cir.  1996)  (citations  omitted). 
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 claims  that  the  Declaratory  Ruling  deviates  from  the  DBS  Public  Interest  Obligations  Order,  imposing  a 
 new  requirement  that  cannot  be  undertaken  without  a  reasoned  explanation  and  new  rulemaking.  21 
 EchoStar  asserts  that  the  DBS  Public  Interest  Obligations  Order  emphasizes  that  the  set-  aside  requirement 
 is  based  on  the  total  channel  capacity  of  a  DBS  system  and  that  DBS  providers  must  calculate  set-  aside 
 requirements  based  on  channels  available  on  all  satellites  combined.  22  EchoStar  states  that  in  specifying  in 
 the  Declaratory  Ruling  that  some  public  interest  programming  must  be  on  full-  CONUS  satellites,  the 
 Commission  departed  from  its  original  policy.  23  Further,  EchoStar  states  that  the  record  in  the  DBS  Public 
 Interest  Obligations  Order  indicates  that  the  Commission  did  not  intend  to  adopt  the  requirement  imposed 
 by  the  Declaratory  Ruling.  EchoStar  claims  it  specifically  opposed  a  “slot-  by-  slot”  requirement  in  the 
 DBS  Public  Interest  Obligations  proceeding  and  because  the  Commission  failed  to  reject  EchoStar’s 
 argument  there,  the  DBS  Public  Interest  Obligations  Order  “at  least  implies”  the  set-  aside  would  not  be 
 based  on  orbit  locations.  24  In  its  opposition,  ADEC  states  that  the  Declaratory  Ruling  does  not  impose  a 
 new  substantive  requirement  but  is  a  reasonable  interpretation  of  the  public  interest  obligations  drawn  from 
 the  DBS  Public  Interest  Obligations  Order.  25  ADEC  asserts  that  to  allow  EchoStar  to  place  all  of  its 
 public  interest  programming  on  its  satellite  at  61.  5°  W.  L.  would  result  in  a  large  number  of  EchoStar 
 subscribers  being  unable  to  obtain  public  interest  programming  without  purchasing  additional  equipment. 
 This,  ADEC  states,  would  be  inconsistent  with  the  national  scope  of  the  programming  intended  by 
 Congress  and  the  Commission.  26 


 11.  In  the  DBS  Public  Interest  Obligations  Order,  the  Commission  specified  that  DBS 
 providers  must  calculate  the  number  of  channels  they  must  set  aside  based  on  the  number  of  channels 
 available  to  subscribers  on  all  satellites  during  the  previous  year.  27  The  Declaratory  Ruling  did  not,  as 
 EchoStar  asserts,  depart  from  this  requirement.  DBS  providers  must  still  set  aside  four  percent  of  their 
 total  channel  capacity  for  noncommercial  educational  programming.  The  Declaratory  Ruling  simply 
 clarifies  how  EchoStar  must  fulfill  the  Commission’s  established  policy  of  ensuring  that  this  programming 
 is  available  to  all  subscribers  while  at  the  same  time  providing  flexibility  to  implement  its  public  interest 
 obligations.  28  This  policy  was  clearly  set  forth  in  the  DBS  Public  Interest  Obligations  Order,  which  states 
 that  the  programming  must  be  available  to  all  subscribers  and  notes  that  the  obligations  are  designed  to 
 benefit  consumers  in  all  areas  of  the  United  States.  If  we  were  to  interpret  the  rule  to  allow  EchoStar  to 
 limit  its  programming  to  the  61.  5°  W.  L.  orbit  location  exclusively,  the  public  interest  programming  would 


 21  EchoStar  Petition  at  7;  Reply  of  EchoStar  Satellite  Corporation  to  Opposition  to  Petition  for  Reconsideration 
 (“  EchoStar  Reply”)  at  2. 
 22  EchoStar  Petition  at  6. 


 23  Id.  at  7. 
 24  EchoStar  Petition  at  7;  EchoStar  Reply  at  3. 
 25  ADEC  Opposition  at  3-  4. 
 26  Id.  at  4. 
 27  In  establishing  this  measurement,  the  Commission  recognized  that  technological  advances  will  continue  to 
 expand  the  number  of  channels  that  can  be  offered  in  a  given  amount  of  spectrum.  DBS  Public  Interest 
 Obligations  Order,  13  FCC  Rcd  at  23284,  n.  159. 


 28  See  paragraph  5,  supra. 
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 be  received  only  by  the  small  percentage  of  EchoStar’s  customers  receiving  service  from  this  location.  In 
 addition,  those  customers  receiving  EchoStar’s  service  from  other  orbit  locations  but  within  the  geographic 
 service  area  of  61.5°  W.  L.  would  be  forced  to  purchase  additional  equipment  in  order  to  receive  public 
 interest  programming.  Thus,  the  Declaratory  Ruling  is  consistent  with  the  DBS  Public  Interest 
 Obligations  Order  and  is  a  reasonable  exercise  of  the  Commission's  discretion  in  ensuring  the  greatest 
 benefit  to  consumers. 


 12.  First  Amendment  Claims.  EchoStar  states  the  requirement  set  forth  in  the  Declaratory 
 Ruling  is  a  significant  restriction  on  the  manner  in  which  it  may  fulfill  its  public  interest  obligation, 
 imposing  a  burden  on  its  First  Amendment  rights.  29  Further,  according  to  EchoStar,  the  Declaratory 
 Ruling  does  not  provide  the  “reasoned  support”  required  for  a  new  regulatory  pronouncement  with 
 significant  First  Amendment  implications.  30  EchoStar  states  that  nowhere  is  there  any  indication  that  the 
 “sub  set-  aside”  requirement  is  necessary  to  fulfill  the  substantial  governmental  interests  assumed  to 
 underlie  Section  25  and  that  the  Commission  did  not  consider  reasonably  available  alternatives.  31  EchoStar 
 also  asserts  that  the  Declaratory  Ruling  diminishes  its  flexibility  to  make  decisions  about  allocating 
 programming. 


 13.  In  its  opposition,  ADEC  states  that  the  Commission’s  interpretation  of  the  Section  25 
 requirement  furthers  the  important  governmental  interest  of  promoting  the  dissemination  of  noncommercial, 
 educational,  and  informational  programming  to  the  public.  Further,  under  the  “less  rigorous”  standard  of 
 First  Amendment  scrutiny  applicable  here,  ADEC  contends  that  the  set-  aside  requirement  is  a  reasonable 
 means  of  promoting  this  interest  and  therefore  does  not  infringe  on  EchoStar’s  First  Amendment  rights.  32 
 ADEC  also  notes  that  EchoStar  does  not  challenge  the  government’s  stated  interest  in  Section  25  of 
 assuring  public  access  to  a  multiplicity  of  informational  sources.  33  The  only  way  to  ensure  access,  ADEC 
 states,  is  to  require  EchoStar  to  provide  access  on  its  full-  CONUS  satellites.  34 


 14.  The  DBS  public  interest  obligations  do  not  present  an  unconstitutional  infringement  on 
 DBS  providers’  First  Amendment  rights.  In  Time  Warner,  the  D.  C.  Circuit  upheld  the  constitutionality  of 
 Section  25  and  stated  the  obligations  represent  nothing  more  than  a  “new  application  of  well-  settled 
 government  policy  of  ensuring  public  access  to  noncommercial  programming.”  35  The  court  noted  that 
 both  broadcasters  and  the  public  have  First  Amendment  rights  that  must  be  balanced  when  the  government 
 seeks  to  regulate  access  to  the  radio  spectrum.  It  is  the  right  of  viewers  and  listeners,  however,  which  is 
 paramount.  36  An  essential  goal  of  the  First  Amendment,  the  court  stated,  is  to  “achieve  the  widest  possible 


 29  EchoStar  Petition  at  8. 
 30  Id.  at  9. 
 31  Id.  at  10. 
 32  ADEC  Opposition  at  9. 
 33  ADEC  Opposition  at  13. 
 34  Id. 
 35  Time  Warner  Entertainment  Co.  L.  P.  v.  FCC,  93  F.  3d  957,  976  (D.  C.  Cir.  1996)  (“  Time  Warner”). 
 36  Id.  at  975. 
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 dissemination  of  information  from  diverse  and  antagonistic  sources.”  37  Broadcasting  regulations  that 
 affect  speech  have  been  upheld  when  they  further  this  First  Amendment  goal.  38  In  so  ruling,  the  court 
 applied  the  same  relaxed  standard  of  scrutiny  applied  to  traditional  broadcast  media.  39  Under  this  less 
 rigorous  or  intermediate  standard,  a  content-  neutral  regulation  will  be  sustained  if  it  advances  an  important 
 governmental  interest  unrelated  to  the  suppression  of  free  speech  and  does  not  burden  substantially  more 
 speech  than  necessary  to  further  those  interests.  40 


 15.  As  the  court  noted  in  Time  Warner,  the  government  interest  in  the  set-  aside  requirement  is 
 to  assure  public  access  to  diverse  sources  of  information.  This  interest,  the  court  held,  “lies  at  the  core  of 
 the  First  Amendment.”  41  In  directing  EchoStar  to  set  aside  four  percent  of  its  capacity  at  each  full-  CONUS 
 location,  we  did  not  impose  a  new  restriction  but  merely  provided  further  guidance  to  EchoStar  concerning 
 implementation  of  its  obligation  to  provide  public  interest  programming  to  all  of  its  subscribers.  The 
 Declaratory  Ruling  does  not  increase  the  number  of  channels  that  must  be  set-  aside,  leaves  DBS  operators 
 free  to  carry  whatever  programmers  they  want  on  non  set-  aside  channels,  and  does  not  require  or  prohibit 
 the  carriage  of  particular  points  of  view.  42  It  does,  however,  further  the  important  governmental  interest 
 specified  by  the  court  in  Time  Warner  –  to  provide  the  public  access  “to  a  multiplicity  of  informational 
 sources”  –  and  does  not  impose  any  new  burden  beyond  that  which  the  court  held  is  consistent  with  the 
 First  Amendment.  43  Therefore,  the  Declaratory  Ruling  does  not  infringe  on  EchoStar’s  First  Amendment 
 rights.  44 


 CONCLUSION  AND  ORDERING  CLAUSES 


 37  Id.  (citations  omitted) 
 38  Id. 
 39  The  court  noted  that  like  the  limited  availability  of  radio  spectrum  for  broadcast  purposes,  DBS  technology  is 
 subject  to  similar  limitations.  Timer  Warner,  93  F.  3d  at  975. 
 40  Turner  Broadcasting  System,  Inc.  v.  FCC,  117  S.  Ct.  1174,  1186  (1997). 


 41  Time  Warner,  93  F.  3d  at  976. 
 42  See  Time  Warner,  93  F.  3d  at  976-  77. 
 43  Time  Warner,  93  F.  3d  at  976  (citation  omitted). 
 44  As  a  result,  contrary  to  EchoStar’s  assertion,  the  Commission  was  not  required  to  assess  “reasonably  available 
 alternatives  that  are  less  restrictive  of  speech.”  As  an  example,  EchoStar  suggests  that  DBS  providers 
 collectively  provide  nationwide  access  to  qualified  noncommercial  programming.  This  proposal,  however,  may 
 leave  many  DBS  subscribers  without  this  programming.  Nonetheless,  in  making  this  assertion  EchoStar 
 incorrectly  refers  to  the  strict  scrutiny  standard  of  constitutional  review.  Laws  that  regulate  speech  based  on 
 content  are  subject  to  strict  strutiny.  These  laws  are  presumptively  invalid  and  survive  constitutional  review  only 
 if  they  promote  a  compelling  interest  and  employ  the  least  restrictive  means  to  further  the  articulated  interest. 
 Time  Warner,  957  F.  3d  at  966.  The  less  restrictive  analysis  has  never  been  part  of  the  inquiry  into  the  validity  of 
 content  neutral  regulations  on  speech.  Turner  Broadcasting  System  v.  FCC,  117  S.  Ct  1174,  1199  (1997) 
 (citations  omitted);  Time  Warner,  93  F.  3d  at  977  (The  government  does  not  dictate  the  specific  content  of  the 
 programming  DBS  operators  are  required  to  carry). 
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 16.  Based  on  the  foregoing,  we  find  that  EchoStar  has  failed  to  present  sufficient  reasons  to 
 warrant  reconsideration  of  the  Declaratory  Ruling  and  Order.  We  affirm  our  conclusion  that  the 
 Declaratory  Ruling  and  Order  is  in  the  public  interest. 


 17.  Accordingly,  IT  IS  ORDERED,  that  the  Petition  for  Reconsideration  of  the  November  24, 
 1999  Declaratory  Ruling  and  Order  filed  by  EchoStar  Satellite  Corporation  on  December  27,  1999  is 
 DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas 
 Secretary 
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