Dish Network Fires Back at Disney and ESPN in New Countersuit Alleging Broken Antitrust Laws

An ongoing battle is taking place, with Dish network now filing a countersuit against the Walt Disney Company, citing that the company has broken antitrust laws and carriage agreements.

What’s Happening: 

• Dish Network is reportedly countersuing against Disney and ESPN in their legal dispute over the launch of Dish’s Sling TV’s limited time passes, alleging that they are violating antitrust laws, and has breached the terms of their contract with Dish. 
• Devotees may recall that back in August, Disney filed a suit against Sling TV (owned by Dish Network), after they debuted a daily pass option, giving access to their full bundle for a day starting at $4.99. 
• At the time, Disney alleged that Sling never consulted Disney about the “passes", which give users easy access to programming - potentially changing the landscape for sports, award shows, news, and various types of content. 
• Dish filed their suit against the Walt Disney Company and ESPN on Friday, January 2nd, alleging they violated the terms of the companies’ carriage deal, according to a report in Variety. 
• Back in November, a federal judge ruled in favor of Dish as Disney had requested to block the short-term streaming plans, finding that Disney had not shown a likelihood of success in their claims of breach of contract, nor did they demonstrate that they would suffer irreparable harm. 
• Dish’s counterclaim states that they had “no contractual obligation to consult” with Disney or ESPN prior to launching Sling Passes, and additionally (per the filing) Dish “admits that a limited number of promotional materials for Sling Passes included the phrase ‘with no subscription,’ which was inaccurate.”
• The Dish lawsuit also alleges that Disney is leveraging their market power to “destroy competition” and stifle innovation, and also alleging that Disney has “flagrantly” breached its own contracts. 
• The suit also claims that Disney gave competitors favorable terms but refused to extend those same terms to Dish and Sling, despite “most favored nation” (MFN) clauses in its carriage agreement that legally require Disney to do so.
• The filings also state that Disney has violated the Sherman Act by “conditioning access” to “must-have” sports programming on the purchase of certain low-value channels. According to Dish, trying to force Sling TV “to carry content customers don’t want, inflating costs and blocking affordable packaging.”
• Dish also cites Disney’s acquisition of Fubo, and the ESPN-Fox One Bundle as a violation of antitrust laws by “eliminating competition.” With Fubo, according to Dish, “Disney effectively hoards consumer-friendly sports options for itself and blocks alternative skinny bundles.”
• Dish also points to Disney’s launch of the new ESPN Unlimited as an attempt to corner the “skinny sports bundle market” and enforcing “restrictive contracts” to attempt to ensure that they are the only provider of flexible sports packages, artificially inflating consumer prices.
• The monetary damages that Dish is seeking have not been specified, but the company is also after a judgement that Disney and ESPN’s actions violate U.S. antitrust laws, and to force the “unwinding” of Disney’s Fubo acquisition and the ESPN-Fox One bundle.
• Disney shared a statement, saying “Dish’s counterclaims have no merit and are nothing more than a tactic to distract from their own misconduct, and we look forward to vindicating our position in court.”

A Bit of Background:

• All of this stems from an earlier lawsuit filed by The Walt Disney Company, suing Dish network and Sling TV saying that they included some of their networks in a new suite of packages with their permission. 
• Those packages were the aforementioned “Passes” that allow full access to their bundles for a day, weekend, or full week starting at just $4.99. 
• These packages could theoretically give users, more specifically “cord cutters” access to hugely in-demand programming like special sporting events, award shows, breaking headline newsmaking events, and other types of content as they see fit without a regular month-to-month subscription at a higher cost. 
• At the time, Sling doubled down on their offering, saying Passes were “designed to redefine streaming and give viewers more flexibility, more choice, and more control over how they watch live TV… [we will] vigorously defend our right to bring customers a viewing experience that fits their lives, on their schedule and on their terms."
• At the time, Disney fired back, saying “Sling TV’s new offerings, which they made available without our knowledge or consent, violate the terms of our existing license agreement…We have asked the court to require Dish to comply with our deal when it distributes our programming."