HDNET v. DIRECTV Application for Restraining Order

**Doug Brott** · 11-07-07, 01:05 PM

Over the past few days, we have been discussing a lawsuit filed by HDNET against DIRECTV in this thread.

Today, I received a copy of the Application for Temporary Restraining order and Temporary and Permanent Injunctions regarding this case. The original filing was on November 2, 2007, but an amended version was filed yesterday (November 6, 2007) in Dallas County, TX. You can find the entire text of the filing using the link below:

HDNET v. DIRECTV Application for Restraining Order

Carl Spock · 11-07-07, 01:41 PM

There is a fascinating section in that filing. It is an excerpt from the original contract between DirecTV and HDNet:

Quote:

If DIRECTV distributes a tier of package containing television-programming services in any high definition format, DIRECTV will immediately include both [HDNet and HDNet Movies] as part of the most widely distributed tier of package for which the customer pays a separate fee containing such services (the “[HD] Tier”)…. Once launched, except as expressly set forth herein, at no time during the Term may DIRECTV delete either or both of [HDNet and HDNet Movies} from the platform.

The contract’s term runs from June 2, 2003 through December 31, 2008.

flipptyfloppity · 11-07-07, 01:50 PM

I guess now we know why the regular HD pack is listed as an "HD access fee" instead of a package. Trying to get around contract language.

Carl Spock · 11-07-07, 01:52 PM

It's a fascinating filing to read. There is a lot of inside baseball in there.

Now I want to read DirecTV's counter filing.

say-what · 11-07-07, 01:52 PM

Funny, but I had never heard of HDNet prior to upgrading to the HD package and it certainly played no role in my decision to upgrade to HD with DirecTV. Actually, I can't ever recall watching much on HDNet or HDNet Movies - maybe 1 episode of ST: Enterprise and 1 movie. They're nice options to have and I'll keep the HD Extra pack, but they think way too highly of themselves.

Looks like there are going to be a lot of semantics at play as to what constitutes a separate "tier or package".

Ken S · 11-07-07, 01:53 PM

For those of you who have not read legal filings I'd suggest holding off on an opinion until you see the answer filed by DirecTV. There's almost always another side. I'm going to guess a TRO hearing will be held relatively quickly.

I think we'll get a real feeling for how the judge views this case with his ruling on the request for a Temporary Restraining Order. In general TROs are only given in cases where the plaintiff can't be compensated fairly for damages should they win the lawsuit.
It would seem to me that the difference in revenues between being in the main tier and the extra tier would be easily calculated. If the Judge grants a TRO...DirecTV should probably start negotiations to settle quickly.
Losing a request for a TRO does not mean the suit is without merit it can just be based on other remedies being available.

I'm not a member of the Texas Bar and don't know their state rules of civil procedure so I could be off. I am a bit interested in how the Texas rule on Discovery Plans works in practice. Any Longhorn Litigators out there?

Lee L · 11-07-07, 02:01 PM

Well, to a layman, there sure do not seem to be too many ways to interpret the paragraph posted above.

Ken S · 11-07-07, 02:05 PM

Quote:

Originally Posted by Lee L

Well, to a layman, there sure do not seem to be too many ways to interpret the paragraph posted above.

Lee,

True, but we don't have the whole contract. There could be a section below that giving DirecTV to move the content to another tier based on some sort of condition.

MikeR · 11-07-07, 02:07 PM

Quote:

Originally Posted by ggergm

There is a fascinating section in that filing. It is an excerpt from the original contract between DirecTV and HDNet:
the most widely distributed tier of package

Quote:

Originally Posted by flipptyfloppity

I guess now we know why the regular HD pack is listed as an "HD access fee" instead of a package. Trying to get around contract language.

Quote:

Originally Posted by Lee L

Well, to a layman, there sure do not seem to be too many ways to interpret the paragraph posted above.

Actually.....
since HD Access does not include any actual programming, as flippty mentioned that may be the "out".

Technically, "HD Extra" will be the first tier.

c152driver · 11-07-07, 02:07 PM

Quote:

Originally Posted by Lee L

Well, to a layman, there sure do not seem to be too many ways to interpret the paragraph posted above.

That's why we have lawyers to come up with creative interpretations.

Carl Spock · 11-07-07, 02:09 PM

There's also the phrase "except as expressly set forth herein" in that paragraph. What else in the contract could relieve DirecTV from honoring the paragraph?

Ken is right. We know half the story.

say-what · 11-07-07, 02:10 PM

Quote:

Originally Posted by MikeR

Actually.....
since HD Access does not include any actual programming, as flippty mentioned that may be the "out".

Technically, "HD Extra" will be the first tier.

Exactly, technically there has never been an HD tier to speak of until they proposed the HD Extra package. Based on the limited information in the initial petition, either side could have a valid argument as to why they are correct.

cruxer · 11-07-07, 02:12 PM

Quote:

Originally Posted by say-what

Funny, but I had never heard of HDNet prior to upgrading to the HD package and it certainly played no role in my decision to upgrade to HD with DirecTV. Actually, I can't ever recall watching much on HDNet or HDNet Movies - maybe 1 episode of ST: Enterprise and 1 movie. They're nice options to have and I'll keep the HD Extra pack, but they think way too highly of themselves.

Looks like there are going to be a lot of semantics at play as to what constitutes a separate "tier or package".

I also had never heard of HDNet before I got HD in 2004. Then again, I had never heard of "Heroes" until I had, so I'm not sure what that has to do with anything. HDNet quickly became one of my favorite channels just because of the stunning technical quality and variety of shows. I always liked Get Out, Art Mann Presents, and the various concerts if I liked the artist.

In 2007, obviously, they're not as unique as they were in 2004, but for all the pissing and moaning about HD-lite, strectch-o-vision, and pop-ups, I would think that the readership here would be up in arms about the de facto relegation of 2 nets that have always been at the forefront in quality and quantity of HD.

That said, we will have to wait to see all the claims and counterclaims come out before we know whether or not HD Net has a legal leg to stand on. Spiritually, however, I can take a stand now and say I can't blame them for being a little ticked off about their treatment at the hands of D*. There are probably a number of subscribers who only kept the HD tier from 2003-2007 because HD Net was there.

-c

GenoV · 11-07-07, 02:14 PM

Quote:

Originally Posted by MikeR

Actually.....
since HD Access does not include any actual programming, as flippty mentioned that may be the "out".

Technically, "HD Extra" will be the first tier.

Don't you think that might be a hard sell though? You can't get the HD channels without paying the fee.

Upstream · 11-07-07, 02:25 PM

This sounds like it is going to come down to interpretation of the contract (the entire contract, not just the snippet we've read).

Also, I started laughing when I read paragraph 40 on page 11: "In an effort to seek help, a call to DIRECTV's 1-800 phone number was worse." Welcome to our world.

MikeR · 11-07-07, 02:33 PM

I just read that and was in the process of "cutting and pasting" when I saw your post!

F1 Fan · 11-07-07, 02:33 PM

Looks like we will be paying $14.99 for HD Access.

No point D* arguing that the HD Access isnt a tier/package as the invoked a clause in the contract when they introduced it to get a lower rate from Cuban - cant have both ways.

If HDNET can show just 1 advertiser or 3rd party (that they mention further into the filing) that has refused to re-order because of a suspected drop in subs then they have the right to the TRO immediately. You dont have to prove you would most likely win to get a TRO you have to show you are suffering damages (which they can show).

Without seeing D*'s reply yet I hold off on any opinion other than the TRO. It is going to be hard to argue that the HD Access isnt a tier if HDNet can show documentation (which again i am sure they can as they are stating it in their case) that D* called it a tier to get reduced costs in 2003. Looks like D* also cant say it is unique packages in that tier if Disc Theatre is not in it (I must admit I havent checked the site about that).

I do agree with HDNET about the premier package getting everything (it doesnt now - yes I get the Premier package) and that finding about the HD Extra Pack is not easy on their site - nor is it easy to order online.

If D* cant argue the tier/package stuff then they will have to bundle it all in one and put the price up of HD Access I think.

Just my opinion. Not a longhorn litigator but have just been involved in a very big litigation in TX.

MikeR · 11-07-07, 02:34 PM

Quote:

Originally Posted by GenoV

Don't you think that might be a hard sell though? You can't get the HD channels without paying the fee.

Certainly do...but if you follow Directv's legal speak on their site - that will be their defense.

That explains why it was so carefully worded before the actual launch of "HD Extra".

I'll be holding off on signing up for HD Extra...they'll get me with the $14.99+legal fee addition. ;-)

Upstream · 11-07-07, 02:41 PM

So HD-Net's contract with DTV expires at the end of 2008. Anyone think the networks will be dropped on the first day of January 2009?

Carl Spock · 11-07-07, 02:44 PM

I don't think they will.

I'm sure a new contract will be negotiated long before that.

This is just a lover's spat.

DirecTV needs content. That's all they have to deliver. HDNet needs a provider.

They'll work it out.

Milominderbinder2 · 11-07-07, 02:44 PM

I had not thought about the fact that there are HD channels with no SD counterpart that are not in the HD Extra Package, in particular Discovery HD Theater owned by Malone!

In addition, these are HD channels without an SD counter part that are not in the HD Extra Package:

Food HD* (231-1)
HGTV HD* (229-1)

I also never thought about how DIRECTV was using the 101 concerts to compete with HDNet movies...

If you have not read it the restraining order is pretty straight forward to read.

- Craig

cadet502 · 11-07-07, 02:54 PM

It would be easier to accept HD "access" as not being a tier if there were no channels included that did not have a 1 to 1 SD equivalent. There are at least 4 channels that do not have a 1 to 1.

**Doug Brott** · 11-07-07, 02:56 PM

Quote:

Originally Posted by Milominderbinder2

If you have not read it the restraining order is pretty straight forward to read.

Technically, it's just an application for a restraining order ..

PoitNarf · 11-07-07, 03:02 PM

Curiouser and curiouser...

loganbay · 11-07-07, 03:06 PM

OK. Am I missing somthing. Wasn't hd net always tied to a package sperate to any other programming and if so hasn't D* just changed the name of that package and lowered the price of it and then created a new "HD package" and charged $9.99 a month for it. So if the contract does tie it to a package that either has changed names or is no longer available, what leg is HDNet standing on?