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Fubo gets support from Dish, DirecTV executives in sports-focused antitrust case

The sports-centric streaming service has asked a federal court to issue a preliminary injunction barring Fox, Disney and Warner Bros Discovery from acting on their joint venture.

The sports-centric streaming service has asked a federal court to issue a preliminary injunction barring Fox, Disney and Warner Bros Discovery from acting on their joint venture.

The logo of Fubo TV appears on the marquee outside the Times Square studios of ABC television in New York City. (Photo via LinkedIn, Graphic by The Desk)
The logo of Fubo TV appears on the marquee outside the Times Square studios of ABC television in New York City. (Photo via LinkedIn, Graphic by The Desk)

Fubo has asked a federal judge overseeing its antitrust lawsuit against Fox Corporation, the Walt Disney Company and Warner Bros Discovery (WBD) to issue a preliminary injunction that would bar the companies from launching a sports-focused streaming service of their own.

The motion, filed earlier this month in federal court, includes written declarations offered by Fubo CEO David Gandler and senior executives at Dish Network and DirecTV in support of a proposed court order that would bar the three broadcasters from bringing a sports-inclusive streaming service to market while Fubo’s antitrust case is pending.

Fubo filed its antitrust lawsuit against Fox, Disney and WBD in February after the companies affirmed plans to develop a streaming service that offers sports-inclusive broadcast and cable networks like ESPN, ABC, Fox and TNT beyond the traditional pay TV bundle.

While the broadcasters assert the yet-to-be-named streaming service will operate under the same structure as any other pay TV product, Fubo complains that the companies are offering preferential treatment to their joint venture by allowing the service to carry networks that offer live sports while excluding general entertainment and news channels — an arrangement that is fundamentally different from how broadcasters distribute their networks on other pay TV services.

Fubo appeared to be battling the three broadcasters alone until earlier this month when the company filed affidavits from executives at Dish Network and DirecTV, the country’s two main satellite broadcasters that also carry Fox, Disney and WBD-owned channels.

In an affidavit filed on April 8, DirecTV’s Chief Programming Officer Rob Thun said his company had “grave concerns about the effect that the sports content joint venture between the defendants in this case will have on competition for the distribution of sports programming.”

“More specifically, the joint venture partners are offering content in a manner that they do not allow DirecTV or other distributors to offer to consumers,” Thun wrote. “Rather, the joint venture partners require that DirecTV offers a large bundle of channels and do not allow DirecTV to offer a smaller sports-focused bundle of channels.”

Thun referred to the joint venture’s streaming service as “Raptor,” utilizing the internal project name given to the forthcoming product. He warned that if Raptor is allowed to launch as described by the broadcasters, “consumers will be deprived of meaningful competition from DirecTV and others.”

Gary Schanman, Dish Network’s Vice President for Video Services, also provided a written declaration in support of Fubo’s motion for an injunction. His statement was sealed by a federal court at Fubo’s request. A source familiar with Schanman’s declaration said it contained “material information” about Dish’s programming deals with Fox and Disney, which involve the satellite broadcaster’s carriage of local and national networks and which are covered by non-disclosure agreements.

DOCUMENTS: Download court records associated with this story [Pro Access]

The affidavits made by senior Dish and DirecTV executives are the first sign that Fubo is not alone in preventing the broadcasters from launching a service that gets more-favorable carriage terms than what traditional and streaming pay TV companies are offered.

Still, it isn’t clear if DirecTV or Dish will formally join Fubo as plaintiffs in the case at any point in the future. Reached for comment on Thursday, a DirecTV spokesperson referred to Thun’s comments in his affidavit, saying the “statement really speaks for itself.” Representatives from Dish and Fubo have not yet returned requests for comment.

Earlier this week, attorneys representing Fox Corporation filed a motion of their own — one that seeks the full dismissal of Fubo’s antitrust case.

In their motion, attorneys for Fox said Fubo’s efforts to litigate the matter was “a transparent effort to protect its business from competition,” charging Fubo with operating a streaming service that “offers little that is particularly unique.”

“With its stock price trading below $2 per share, and its business model under attack by a growing number of competitors, Fubo brings this lawsuit because it fears that Defendants’ new joint venture…might further undercut its competitive position,” Fox’s attorneys wrote. “But the antitrust laws exist to promote competition, not to protect Fubo from other competitors.”

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About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 10 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
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