Time Warner Battles 'Future' Ad

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Jessica Simpson has been legally barred from saying DirecTV's high-definition channels look any better than those on cable.

Now, Time Warner Cable wants to stop Back to the Future actor Christopher Lloyd from claiming the direct-broadcast satellite operator can offer “more HD capacity than cable.”

The No. 2 cable company upgraded its legal strategy last week, after a federal judge granted its request for a preliminary injunction blocking DirecTV ads in Time Warner markets that claim the satellite carrier provides superior HD quality. Those included two TV spots, one featuring actress/singer Simpson and another with ex-Star Trek front man William Shatner, with the tagline, “For an HD picture that can't be beat, get DirecTV.”

APPEAL PLANNED

The Feb. 5 ruling from Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York was part of a false-advertising suit Time Warner Cable filed against the satellite-TV operator in December. DirecTV appealed the decision last Thursday.

Two days later, Time Warner filed a second request for a preliminary injunction, seeking to block DirecTV's ad with Lloyd, who played the frizzy-haired mad scientist in the Back to the Future films.

In the ad, the DBS operator alludes to its plans to roll out 100 nationwide high-definition channels by the end of 2007, with Lloyd saying DirecTV will “soon” have three times the capacity of cable. The spot ends with the tagline, “For a future of 150 HD channels, get DirecTV.”

Time Warner complained that DirecTV's claim of greater HD capacity was false — and the cable operator said it could increase its bandwidth capacity “in the near future” to provide more than 200 high-definition channels.

In an affidavit, Time Warner senior network engineer Ronald Boyer said the operator could offer more than 200 HD networks using a combination of technologies, including reclaiming analog bandwidth, improving signal compression, broadcasting MPEG-4 video streams and implementing node-splitting and switched digital video.

“Accordingly, DirecTV's claims that it will have 'three times more HD capacity than cable' by carrying '150 HD channels' in the future is false and misleading,” Boyer's statement said.

Time Warner Cable corporate communications manager Justin Venech said the operator hasn't detailed the deployment status of the technologies Boyer identified, with the exception of switched digital video. The company is currently using that technique in eight markets, including Columbia, S.C., and Austin, Texas, primarily to offer additional HD programming.

In its court filings, Time Warner pointed out that today, there are “far fewer than 150 networks with HD programming available.” It also cast doubt on DirecTV's own ability to carry that many high-definition channels anytime soon, with Boyer pointing to last month's explosion of a rocket carrying a Dutch satellite on Boeing's Sea Launch floating platform in the Pacific Ocean.

SATELLITES COMING

DirecTV plans to use the same platform to launch the second of two satellites to provide additional HD carrying capacity, and last week CEO Chase Carey told analysts the explosion would not affect the company's launch plans.

In a prepared statement, DirecTV senior vice president of advertising and public relations Jon Gieselman said: “We believe this is just another example of Time Warner's frustration that they cannot compete in the marketplace with DirecTV, so they have resorted to the courts.”

He said the DBS operator is “moving full steam ahead” with the launch of its additional satellites to increase its HD capacity as the Lloyd commercial “accurately represents.”

Swain, in her ruling last week, said both DirecTV and Time Warner Cable broadcast HD channels at 1080i, a specification defined by the Advanced Television Systems Committee.

“Providers such as TWC and DirecTV do not set the screen resolution for HDTV programming, but instead make available sufficient bandwidth to permit the relevant level of resolution to pass to customers,” she wrote.

The DirecTV commercials' assertion, Swain continued, that “a viewer cannot 'get the best picture' without DirecTV is therefore likely to be proven literally false, in that the undisputed factual record here establishes that DirecTV and TWC provide HD pictures of equal quality.”

Swain also ordered DirecTV to pull from its Web site a purported side-by-side comparison of its HD picture quality versus “basic cable,” in which the cable picture is depicted as highly pixelated, along with Web banner ads with the same claims.

But Swain denied Time Warner's request that the DBS operator be required to run corrective ads. And she said DirecTV may still run comparative ads stating its overall picture quality is better than Time Warner's, because the evidence didn't establish the falsity of DirecTV's claim that its all-digital lineup is superior to “cable's mix of digital and analog.”

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