As lawyers, we frequently receive questions along the lines of, “I know the rule says [x], but what if I do [y] instead?  That’s consistent with the spirit of the rule, right?”  We now have further proof that complying with the “spirit of the rule” may not be good enough.  In a recent decision, the Commission rejected Minority Television Project Inc.’s (MTP) must carry complaint against DISH Network L.L.C. (DISH) because MTP sent its otherwise valid election request for station KMTP-TV via Priority Express Mail rather than certified mail, return receipt requested.

In a letter to DISH dated September 27, 2017, MTP timely elected mandatory carriage for the election cycle that commenced on January 1, 2018.  The letter included all of the information required by Section 76.66(d)(1) of the Commission’s rules, but was sent by Priority Express Mail.  Despite having received the letter, DISH rejected MTP’s carriage election because “pursuant to federal regulations, elections for mandatory carriage must be sent by certified mail, return receipt requested. Your letter was sent to DISH by United States Postal Service Priority Mail, and therefore is not a valid election. As such, your election is rejected based on the foregoing.”  MTP subsequently filed a must carry complaint against DISH, arguing that “Certified Mail is a lesser included service to Priority Express Mail,” and therefore is compliant with the Commission’s rules.

The Commission sided with DISH, reasoning that Section 76.66(d)(1)(ii) of its rules “provides one specific mailing method for carriage elections: certified mail, return receipt requested. The provision does not indicate that this is a suggested method, or a preferred method…. Because KMTP failed to send its carriage election by the method required under our rules, we must deny its complaint.”  The Commission acknowledged that the reason for specifying certified mail, return receipt requested in its rules was to “ensure that the broadcast stations are able to demonstrate that they submitted their elections by the required deadline, and that the satellite carrier received them.”  The fact that Priority Mail provides the same assurances, however, was not enough to sway the Commission in favor of MTP.

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