Judge Rules for DirecTV in HD-Ad Spat

Time Warner Cable’s Injunction Request Denied

By Todd Spangler -- Multichannel News, 4/18/2007 2:25:00 PM

For now, DirecTV can continue to claim that it will “soon” have three times more HD programming than cable.

A federal judge Monday denied Time Warner Cable’s request to impose an injunction barring DirecTV from running its Back to the Future ads. The cable operator filed the request in February as part of a false-advertising suit against DirecTV.

In the disputed DirecTV ads, actor Christopher Lloyd -- who played the straggly-haired mad scientist in 1985’s Back to the Future -- says he has forgotten to tell Marty McFly in the future that the direct-broadcast satellite operator has “all the best channels, and soon, they’ll have three times more HD capacity than cable!”

The ad closes with a voiceover: “For a future of 150 HD channels, get DirecTV.”

Time Warner wanted an injunction stopping the ad, arguing that the DBS company’s claims of greater capacity were false. For one thing, the cable company said, it eventually could deliver as many as 200 HD channels using a combination of analog-bandwidth reclamation, switched-digital video and other techniques.

Time Warner also alleged that DirecTV’s claim of having “all the best channels” was bogus because the DBS operator doesn’t carry local broadcasters’ HD signals in every market, and that the spot’s claim that service is available “starting at $29.99 per month” was false because DirecTV charges extra for HD services.

In Monday’s ruling, Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York said Time Warner did not sufficiently prove that any of DirecTV’s claims were false.

The DirecTV spot cited a May 2006 Bank of America research report that said the DBS operator would have 150 HD channels by the end of 2007 while cable would have 30-40. Time Warner said the ad misconstrued the Bank of America report and pointed out that the same report said cable would be able to offer 100-200 HD networks in 3-5 years.

Time Warner also argued that there aren’t currently 150 HD channels in existence. Indeed, when DirecTV announced in January that it would add 100 national HD channels in 2007, the DBS company cited networks that hadn’t even announced plans to offer HD channels.

For Judge Swain, however, the key was the use of the word “soon.”

“TWC has failed to demonstrate any prospect of success in claiming that the capacity claim is unsupported by the report,” she wrote. “Again, the commercial claims that DirecTV will ‘soon’ have more than three times the HD capacity of cable, and the end of the current year, 2007, is certainly ‘soon.’”

As for DirecTV’s “best channels” claim, Judge Swain wrote, “The question of what channels are ‘best’ is inherently subjective.” She added that the claim of having the “best channels” amounted to puffery -- a term of art referring to advertising claims that no reasonable person would take literally.

Finally, the judge said the DirecTV pricing was not false when the commercial was “viewed as a whole.”

In a statement, Time Warner Cable said, "We are disappointed in the ruling but remain confident that we will prevail at trial. These Direct TV ads clearly misinterpret the independent [Bank of America] report they cite and, more important, they are factually false."

The judge has set a pretrial deadline of May 18 for all applications to amend pleadings in the case.

The case kicked off in December 2006, after DirecTV ran ads claiming that it provided superior HD picture quality compared with cable and that cable subscribers wouldn’t be able to watch National Football League games that were carried by NFL Network.

Time Warner sued for false advertising and requested a preliminary injunction blocking the spots. On Feb. 5, Judge Swain granted that request, which DirecTV is appealing.