Fox Corporation, the Walt Disney Company and Warner Bros Discovery (WBD) are hoping to launch their joint venture’s sports-inclusive streaming service by late August, The Desk has learned.
The time frame is intended to capitalize on interest in professional sports heading into the start of the National Football League’s (NFL) 2024-25 season, and the service could launch before the start of the college football season around August 24, attorneys representing streaming service Fubo said in a letter filed in federal court last week.
Fubo is suing the three broadcasters over their joint venture, which is tasked with developing and launching a sports-inclusive streaming service that will offer channels like Fox, ABC, ESPN, Fox Sports 1, TBS and TNT.
The service, internally called “Raptor,” won’t include general entertainment or cable news channels like CNN, Cartoon Network, Disney Channel or FX, which breaks from the convention of bundling channels together and selling them to cable and satellite companies for distribution.
Fubo filed an antitrust lawsuit shortly after the joint venture was announced, arguing that the broadcasters are offering Raptor — which some in the industry also call “Spulu” — more-favorable distribution terms than what cable, satellite and streaming cable-like providers are offered.
Fubo, which primarily markets itself around live sports programming, says Fox and Disney force it to carry expensive entertainment and news channels that some viewers don’t want, but all subscribers wind up paying for.
Earlier this month, Fubo asked a federal judge overseeing the antitrust case for an injunction that would legally prohibit Fox, Disney and WBD from moving forward with their plans to launch the service until the antitrust case is decided.
In the letter filed in federal court last week, Fubo said the three defendants have asked for a hearing associated with the motion to be delayed until early August, citing unspecified scheduling issues. But Fubo said the broadcasters’ plans to launch their service in late August warrant an earlier hearing date of July 22.
“Fubo spends millions of dollars in August marketing to consumers, which may need to be repurposed or redirected depending on the court’s decision,” attorneys representing Fubo wrote in the letter.
If the court approves Fubo’s request for an injunction, “the parties will need time to make alternative plans, including with respect to marketing and licensing, in advance of football season.” But if the court denies Fubo’s request, “Fubo will likewise need to adjust its marketing and licensing plans to reposition itself in a market that will be fundamentally changed by the introduction of an exclusive skinny sports bundle.”
In other words, Fubo’s marketing budget heading into the NFL season — which it admits is substantial — will be materially affected in one way or another, depending on how the judge rules on its injunction.
Fubo floated a third possibility: That the judge overseeing the case allows the broadcasters to move forward with their plans, but only if they allow Fubo and other pay TV services the same carriage terms that affords them the ability to launch so-called “skinny” sports bundles of their own.
If that happens, “Fubo will need time to create and market that bundle,” the attorneys wrote, which they argue also warrants an earlier hearing date.
Attorneys for the broadcasters had their say in the same letter, arguing that the judge should continue with the August 7 date because “defendant witnesses and counsel have insurmountable conflicts during the week of July 22.”
One witness for Fox is unavailable due to a pre-planned family vacation that goes from July 22 to August 2, the letter says, while a witness for WBD will be out of the country around the same time. Attorneys for Fox are also unavailable on the day Fubo proposed, with one of the lawyers “preparing for an anticipated 10-day jury trial” involving a non-media client.
The attorneys were unsympathetic to Fubo’s position, noting that the streaming service waited two months after the antitrust complaint was filed to move for an injunction.
“Fubo, which delayed filing the Motion for two months, insists on July 22, but identifies no conflicts with or real prejudice from starting just two weeks later,” the attorneys state, adding that an August 7 hearing would still give the judge about two weeks to decide on the injunction before the broadcasters are tentatively scheduled to launch their joint venture.
The judge ultimately decided to move forward with the August 7 hearing, giving both sides until late June to exchange records through the discovery process and late July to present expert testimony as discovery. The hearing will be held at 9:30 a.m.
