When it lost a summary injunction back in September, the network said it wasn’t done trying to get Dish Network’s Hopper service shut down and today ABC took another swing at it. In a brief dated November 12 and filed today (read it here) with the Second Circuit Court of Appeals, ABC and Disney Enterprises went after the satellite provider’s ad-jumping DVR service again. The thrust of the network’s new appeal is that U.S. District Judge Laura Taylor Swain not only misunderstood the market harm the service poses but misinterpreted copyright law in her ruling earlier this fall that it was not Dish but the consumers, by choosing what to record, who were actually engaged in the process of making copies of programming that they then could watch ad-free later. In its heavily redacted brief, ABC says that “by exercising exclusive control over the copying process and by operating the service to record” with the Hopper’s Primetime Anywhere and AutoHop services, it is Dish who is really in control of the process not the consumer.
The CBS chief is taking Dish Network Chairman Charlie Ergen at his word after he said this week that there’s a way for broadcasters to benefit from his Hopper DVR, which automatically zaps ads on recorded shows. “We’re very flexible. We’re willing to negotiate,” Les Moonves told investors today at the Guggenheim Securities TMT Symposium. Calling Ergen “a very smart man” he says “if there’s a way to do this that benefits everybody, we’re very open to it.” But the bottom line has to be that “we need to get paid for our content…. We spend $4M an episode for NCIS. I have to pay for it.” Broadcasters have sued Dish alleging that the Hopper infringes on their copyrights; Dish counters that it simply automates the ad skipping that DVR viewers already do. The fate of the device is an issue in Dish’s current program carriage negotiations with Disney. Ergen says the Hopper “has built-in technology that can target commercials to customers in a better [way]” and “give the broadcaster more revenue” — although he added that “it’s not a proven concept yet.”
Don’t include Charlie Ergen among the small but growing group of industry watchers who believe cable and satellite companies could soon face competition from a company that offers a similar bundle of channels via the web. “It’s going to happen at some point in time,” the Dish Network chairman told analysts today. “But most programmers have been hesitant to embrace that kind of dramatic change. In the short term, it’s unclear that that’s going to happen.” Intel is one of the companies that wanted to become an online power — but now hopes to sell its venture, called On Cue. Verizon and Liberty Media are said to be interested. Dish isn’t. “We’re not in any discussions with Intel about their over-the-top product,” Ergen says. Still, he evangelized about the value of keeping one’s options open. Although “we’re not trying to drive over-the-top,” he says that “if things are going to change, then we want to be involved with it.”
Dish Network’s chairman seems to be in sync with Disney CEO Bob Iger’s comments last week: Both execs say that they’re making progress toward a new program carriage agreement with Charlie Ergen telling analysts today that he’s …
The Marvel characters to be featured on Netflix in the four-series deal the companies announced today are “not among the most popular,” Disney CEO Bob Iger just told analysts. Daredevil, Jessica Jones, Iron Fist, and Luke Cage ”were never going to become feature films.” But that could change if the shows planned for the streaming service catch on. That makes the agreement “great for Netflix” — and opens “a great opportunity for Marvel to create more brand value…There are more opportunities beyond our platform to produce product for.”
The Disney chief also urged investors not to fret about the long time it’s taking for the entertainment giant to work out a new program carriage deal with Dish Network. The companies agreed to keep talking — without any programming black out — at the end of September when their previous agreement expired. “Progress is being made,” Iger says. Still, a deal “could take some time.” That’s because the negotiations are less about the price for carrying traditional TV channels than they are about the fees and conditions for Dish to stream
Say good night to the Blockbuster night. The video chain that a decade ago made moguls tremble with its stranglehold on video rentals will be gone in January: Dish Network, which paid $234M to take Blockbuster out of bankruptcy in early 2011, said today that it will close the 300 remaining U.S. retail stores as well as its distribution centers. Blockbuster’s DVD-by-mail service also will end, though franchisees and licensed Blockbusters stateside and overseas will be unaffected. “This is not an easy decision, yet consumer demand is clearly moving to digital distribution of video entertainment,” Dish CEO Joseph Clayton says. Dish will keep the Blockbuster brand and video library. It also will continue the Blockbuster @Home service it offers to Dish customers, as well as the Blockbuster On Demand transactional streaming service.
Liberty Media’s John Malone and other execs are pounding the drums for cable and satellite companies to merge — in part to help hold down their rising programming costs. You’d expect outlays to …
Dish Network, its chairman Charlie Ergen and several Board members were slapped this week with a potential multi-million dollar complaint by shareholders. And they want him and the individual Board members to pay up personally. In a verified shareholder derivative filing (read it here) on behalf of all Dish shareholders, the pension fund of Daytona Beach Police Officers’ and Firefighters Retirement System allege that since April 2013, Ergen has quietly been buying up more than $1 billion worth of debt from bankrupt wireless network company LightSquared, who Dish has a bid in for. Besides this big potential personal windfall for the Dish founder and controlling shareholder, the four-count complaint filed in federal court in Colorado on September 26, says Ergen also used a front company to put in a $2 billion bid for LightSquared in May 2013 to push up the auction price. “Thus, with this substantial debt purchase not only did Ergen take for himself (in stealth-like fashion) a strategic opportunity that was otherwise available to Dish, he did so knowing that his personal risk was minimized because the Company’s strategic plans already included purchasing more spectrum,” says the dense and detailed complaint. On July 23 of this year, Dish put in a $2.2 billion bid for LightSquared’s assets after a committee the company formed to look into a conflict of interest by Ergen was suddenly disbanded by the Board two days before.
Judging by the tone of Michael White‘s comments to investors today, he’s souring on the thought of trying to merge the No. 1 satellite company with its chief rival Dish Network. At the beginning of August the DirecTV chief said that while it might take a lot of work to do a deal he’d “never say never.” But he just told the Goldman Sachs Communacopia Conference that “there’s no question it’s very challenging for any deal to get done” following the Justice Department’s decision last month to fight American Airlines’ plan to merge with US Airways. Some analysts thought that the companies might overcome government antitrust concerns by offering to use the airwave spectrum rights that Dish has amassed to build a national wireless broadband service. White says that conceptually “that would be a powerful argument,” but adds that “powerful doesn’t necessarily make the other [antitrust] issues go away.”
The conclusion in a report late today from Craig Moffett is a big change for the MoffettNathanson Research founder – and could weigh on both satellite distributors tomorrow. Moffett has been Wall Street’s leading evangelist for a DirecTV-Dish Network merger: In June he upgraded both companies, urging investors to buy their shares, in the belief that Dish Chairman Charlie Ergen would pursue a “spectacularly lucrative” deal with DirecTV after he failed to gain control of Sprint or an influential stake in wireless broadband company Clearwire. The idea swept through Wall Street, especially after the company chiefs said they wouldn’t rule it out.
But Moffett just conceded defeat. He downgraded both companies to “neutral” and lowered his price targets (by 7.4% to $63 for DirecTV and 8.5% to $43 for Dish). The reason: Ergen’s passion to create a wireless service “shows no sign of cooling.” He continues to amass rights to wireless airwave spectrum, and the more he buys “the less feasible it becomes for Dish to sell its trove.” Federal officials
For the second time in less than a week, Dish Network is claiming legal victory against one of the big broadcasters. On September 18th, it was ABC, today it’s Fox. A federal judge Monday spared the satellite provider the preliminary injunction requested by Fox against its ad-jumping Hopper DVR services. As has become the norm in the various Hopper cases, the ruling by Judge Dolly M. Gee was filed under seal for the time being so confidential and proprietary info could be stripped out. While Gee denied the injunction she did indicate to the parties’ lawyers that she believed Fox’s case had merit and could be compensated with damages rather than agreeing to the broadcaster’s motion. “We disagree that the harms caused by Dish’s infringing services are completely compensable by damages, and as a result we are looking at all options. We will file a response in due course,” a Fox spokesperson told me. Dish took a much less nuanced approach in responding to Monday’s decision. “Today’s decision is the fourth in a string of victories for consumers related to our Hopper® Whole-Home DVR platform. DISH is pleased that the Court has sided again with consumer choice and control by rejecting Fox’s efforts to deny our customers’ access to the DISH Anywhere and Hopper Transfers features. We will continue to vigorously defend consumers’ right to choice and control over their viewing experience,” said Dish’s EVP and general counsel R. Stanton Dodge in a statement Monday. Today’s ruling comes from a hearing on the matter held back on April 19th.
UPDATE: ABC Vows To Fight On As Dish Network Claims Consumer “Victory” In Denial Of Network Ad-Zapping Hopper Injunction; CBS Wins On Retrans Deal Motion
2nd UPDATE, 4:34 PM: This is far from over, ABC says. Dish Network may be claiming a win in today’s split opinion that saw a motion for preliminary injunction by ABC denied but the network says there’s more legal battles to come. Read ABC’s statement here and see Dish’s below:
Today’s ruling is only a preliminary decision and the first step in the judicial process. We continue to firmly believe that DISH’s AutoHop and PrimeTime Anytime services breach our retransmission consent agreement with DISH, infringe upon ABC’s copyrights, and unfairly compete with the authorized on-demand and commercial-free options currently offered by ABC and its licensees.
UPDATE, 1:58 PM: It might have been a split opinion delivered today in federal court for much sued Dish Network’s Hopper service, but the satellite provider is claiming victory. Read the statement I just got from Dish’s EVP and general counsel R. Stanton Dodge:
This decision is yet another victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control. This is the third federal court decision that has sided with DISH on consumers’ right to enjoy television as they want, when they want, including the right to skip commercials, if they so choose.
PREVIOUSLY, 12:59 PM: A mixed result was delivered today for Dish Network’s Hopper in federal court. On the one hand, the satellite provider was spared the preliminary injunction requested by ABC against its ad-jumping DVR service. On the other hand, NY-based District Court Judge Laura Taylor Swain Wednesday denied Dish’s motion to deny CBS’ desire to untangle itself from a January 2012 Retransmission Agreement with the provider.