Court Grants DISH Network’s Motion To Dismiss Copyright Infringement Retransmission Suit

On Monday Judge Thomas M. Durkin of the Northern District of Illinois issued an opinion granting DISH Network’s motion to dismiss the copyright infringement suit that Terrier Media Buyer brought against it, which concerns whether DISH had permission to retransmit 13 different stations.

In June 2018, DISH and Northwest Broadcasting, Inc. entered into an agreement whereby DISH could “retransmit various local television stations to its subscribers in the Northwest Retransmission Agreement.” In December 2019, Terrier Media Buyer purchased Northwest’s parent company, NBI Holdings, and NBI then acquired 13 local television stations from Cox Enterprises, which were governed by a different retransmission agreement with DISH. Under both provisions of the two different retransmission agreements, the Cox stations fell under the Northwest Retransmission Agreement, consequently, the Cox Retransmission Agreement ended.

According to the opinion dismissing the case, the Northwest Retransmission Agreement was set to expire on January 18, 2020 at 7:00 p.m. According to the opinion, “(a)s of that time, Terrier withheld its consent for DISH to retransmit the Cox stations.” In January, DISH obtained a temporary restraining order, which prevented Terrier from barring DISH from retransmitting the 13 Cox stations. After oral arguments, the temporary restraining order against Terrier was extended. Consequently, Terrier filed this copyright infringement suit and claimed that it has informed DISH “that any retransmission of the Cox stations after the January 18 expiration of the Northwest Retransmission Agreement is a knowing and willful infringement of the copyrights of that television programming.” However, DISH allegedly continued to retransmit the stations after the retransmission agreement. DISH moved to dismiss these copyright infringement claims.

The court stated that the issue at hand is “whether DISH had consent to retransmit the Cox stations.” The court pointed to “Section 122 of the Copyright Act(, which) establishes a statutory license for satellite carriers to retransmit copyrighted programming embedded in a television broadcast station’s signal into the station’s local market,” but the “license is conditioned upon satellite carriers’ compliance” with Federal Communications Commission (FCC) rules, regulations and authorizations for television broadcast signals. The FCC “prohibit(s) multichannel video programming distributors (‘MVPDs’) like DISH from retransmitting a station’s signal without the broadcaster’s consent.” Without this consent, the retransmitting entity “is liable for copyright infringement.”

The court concluded that since “the (temporary restraining order) ordered that the Cox Retransmission Agreement remained in full force and effect, DISH had consent to retransmit the Cox stations during…its pendency.” Since Terrier used DISH not having consent to retransmit as the basis of its copyright claim, the court found that “its claim fails.” Thus, the court has granted DISH’s motion to dismiss and Terrier’s claim is dismissed without prejudice. Terrier may move for leave to amend its complaint if it believes there are copyright damage claims outside the TRO period.

DISH is represented by Steptoe & Johnson LLP. Terrier Media Buyer is represented by Sidley Austin LLP.

In July, in a related suit, the Northern District of Illinois denied DISH’s motion for a preliminary injunction that it sought so it could continue to retransmit the Cox stations at the rate they previously agreed to after the retransmission fees were raised by Terrier’s acquisition of the aforementioned stations and entities.