1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MINORITY TELEVISION PROJECT, Case No. 21-cv-02214-MMC

INC.,

9 Plaintiff, ORDER GRANTING DEFENDANT'S 10 MOTION TO DISMISS; DISMISSING v. COMPLAINT WITH LEAVE TO 11 AMEND; CONTINUING CASE

DISH NETWORK L.L.C., MANAGEMENT CONFERENCE

12 Defendant. 13 14 Before the Court is defendant Dish Network L.L.C.'s ("Dish") Motion to Dismiss, 15 filed May 6, 2021. Plaintiff Minority Television Project, Inc. ("Minority") has filed 16 opposition, to which Dish has replied. Additionally, Minority, with leave of court, has filed 17 a surreply. Having read and considered the papers filed in support of and in opposition to 18 the motion, the Court deems the matter suitable for determination on the parties' 19 respective written submissions, VACATES the hearing scheduled for July 23, 2021, and 20 rules as follows. 21 In its complaint, Minority alleges that it operates KMTP-TV, a "local noncommercial 22 television station," in San Francisco, California (see Compl. ¶¶ 12, 28), and that Dish 23 operates a "satellite broadcast system" to "subscribers in San Francisco and elsewhere 24 in this judicial district" (see Compl. ¶ 14). Minority further alleges the Federal 25 Communications Commission ("FCC") has promulgated "rules" providing that a 26 "noncommercial local television station may, in certain circumstances, require that a 27 satellite broadcast company carry its signal." (See Compl. ¶ 24). In particular, Minority, 1 carriage by electing mandatory carriage with the satellite carrier serving their local market 2 by October 1st of the year preceding each three-year carriage election cycle." (See 3 Compl. ¶ 25.)1 Minority also alleges that, with respect to the election cycle beginning 4 January 1, 2021, Minority "timely filed a mandatory carriage request on behalf of KMTP- 5 TV" (see Compl. ¶¶ 1, 6), and that Dish has "failed to obey" § 76.66 by "refusing and 6 failing to carry the broadcast signal of KMTP-TV" (see Compl. ¶ 1). Based on said 7 allegations, Minority asserts a single claim for relief, specifically, a claim under 47 U.S.C. 8 § 401, which provides that, "[i]f any person fails to obey an order of the Commission," the 9 "party injured thereby . . . may apply to the appropriate district court of the United States 10 for enforcement of such order." See 47 U.S.C. § 401(b). 11 In seeking dismissal, Dish argues the complaint fails to include facts to support a 12 finding it has violated § 76.66. As set forth below, the Court agrees.2 13 Pursuant to § 76.66, "[e]ach satellite carrier providing . . . secondary transmissions 14 to subscribers located within the local market of a television broadcast station of a 15 primary transmission made by that station . . . shall carry upon request the signals of all 16 television broadcast stations located within the local market." See 47 C.F.R. 17 § 76.66(b)(1). Section 76.66 further provides that a television broadcast station seeking 18 to be carried by a satellite carrier must send "notice of its election" to "the email address 19 provided by the satellite carrier and carbon copied to ElectionNotices@FCC.gov," see 47 20 C.F.R. § 76.66 (d)(1)(iii), and that "[a] satellite carrier is not required to carry a television 21

22 1 Although § 76.66 does not include a deadline by which a noncommercial television broadcast station in the continental United States must assert its carriage 23 rights, see 47 C.F.R. § 76.66(c) (setting deadlines for "commercial television broadcast station[s]" and for "noncommercial television broadcast station[s] located in a local 24 market in Alaska or Hawaii"), the FCC, in announcing the revisions to § 76.66 effective October 29, 2019, made clear its intent that all noncommercial television broadcast 25 stations be "require[d]" to make their elections no later than October 1, 2020. See Rules and Regulations, FCC, Electronic Delivery of MVPD Communications; Modernization of 26 Media Regulation Initiative, 2019 WL 4077129, 84 FR 45659, 45663 (August 30, 2019). 27 2 In light thereof, the Court does not consider herein Dish's alternative argument 1 station, for the duration of the election cycle, if the station fails to assert its carriage rights 2 by the deadlines established in [§ 76.66]." See 47 C.F.R. § 76.66(d)(1)(vii). 3 As Dish points out, Minority does not allege that it sent, on or before October 1, 4 2020, the requisite notice to Dish's email address and to the above-referenced FCC 5 email address, see 47 C.F.R. § 76.66(d)(1)(iii), and, in the absence of Minority's providing 6 Dish with such notice, Dish's duty to carry KMTP-TV's signal did not arise, see 47 C.F.R. 7 § 76.66(d)(1)(vii). Although Minority relies on its allegation, noted above, that Minority 8 "timely filed" a mandatory carriage request, the Court is "not bound to accept as true a 9 legal conclusion couched as a factual allegation." See Ashcroft v. Iqbal, 556 U.S. 662, 10 678 (2009) (internal quotation and citation omitted). 11 Also unavailing is Minority's reliance on what is essentially dicta in an FCC order, 12 identified in the complaint as "MB 2020," namely, the FCC's comment therein that "KMTP 13 timely filed its mandatory carriage request under the revised procedures and will be 14 carried by Dish commencing with the new carriage cycle in January 2021." (See Compl. 15 Ex. B at 4.)3 To the extent Minority may be contending the above language constitutes 16 an order requiring Dish to carry KMTP-TV's signal (see Compl. ¶ 37 (alleging "[p]ursuant 17 to . . . MB 2020, [Dish] was obligated to begin carriage of KMTP-TV on January 1, 18 2021")), the Court disagrees. Moreover, Minority has clearly indicated, both in its 19 opposition and its surreply, that it is not seeking to enforce MB 2020. (See Pl.'s Opp. at 20 7:4-8; Pl.'s Surreply at 5:11-12.) 21 In sum, the complaint is subject to dismissal. The Court will, however, afford 22 Minority leave to amend, either to allege its compliance with § 76.66(d) or to otherwise 23 assert any cognizable claim it may have against Dish. 24 // 25

26 3 By the above-referenced order, the FCC denied a Petition for Reconsideration filed by Minority, whereby Minority had sought relief from the FCC's order denying an 27 earlier complaint filed by Minority against Dish and finding Minority had failed to give Dish 1 CONCLUSION 2 For the reasons stated above, Dish's motion to dismiss is hereby GRANTED, and 3 || the complaint is DISMISSED. If Minority wishes to file an amended complaint, it shall do 4 || sono later than August 13, 2021. 5 In light thereof, the Case Management Conference is hereby CONTINUED from 6 || August 27, 2021, to October 22, 2021, at 10:30 a.m. 7 IT IS SO ORDERED. 8 9 || Dated: July 21, 2021 .

INE M. CHESNEY

10 United States District Judge 11 12

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