New filing aims to keep war in separate courts

Viacom and Time Warner Cable have opened up a new front in their legal battle over the cable operator’s app that streams linear channels to the iPad.

In a pair of motions filed Wednesday by Viacom in federal courts in New York and Dallas, the conglom sought to block the MSO’s effort to combine its quest to provide its subs with access to MTV Networks channels via tablets with a claim that one of those networks, CMT, is in violation of its affiliate agreement.

The filing wasn’t actually the first legal maneuver as both sides agreed in June to a suspension of court proceedings that had begun in April in order to negotiate. But those talks apparently were not fruitful.

TW Cable quietly ended that standstill on Oct. 3, seeking to bolster its bid for streaming rights with a separate argument that CMT has drifted so far from its original mission as a home for programming about country music, according to court documents.

But in Wednesday’s filing, Viacom sought to repel TW Cable’s effort to pull the CMT claim out of a Texas court and into the U.S. District Court for the Southern District of New York where the iPad-related claim resides.

“TW Cable should not be permitted simply to tack on to a federal court action a completely separate and unrelated garden variety contract dispute when there is no independent basis for this court’s subject matter jurisdiction,” Viacom argued in its motion.

Whether TW Cable’s move will add weight to its legal argument is open to interpretation. The MSO may simply be looking to leverage another aspect of its contractual relationship with Viacom to avoid or minimize the compensation the programmer is likely seeking to grant rights for transmitting channels over iPad.

The resumption of hostilities reignites a fight that began in March when the TWCable TV app first launched. The MSO withdrew seven Viacom-owned networks including MTV, VH1 and CMT from the app’s lineup a few weeks later but has continued to operate ever since with dozens of channels from other programmers.

Viacom already put to rest a similar conflict with Cablevision in August. TW Cable cites that fact in its own motion, claiming it is entitled to the same terms of that deal because of a most favored nation clause in their own affiliate agreement. Moreover, TW Cable suggests it can either remove Viacom channels from its lineup or cease paying license fees if the iPad matter isn’t resolved to its liking.

Viacom argues that the matter should be resolved on issues related strictly to the technology behind transmission to tablets.

TW Cable first filed that Viacom was in breach of its contract regarding CMT in May. The TW Cable motion cites a press release from February in which the network declares its intent to push into “new directions that will expand programming in surprising ways and take CMT on a wild ride.”

As the motion indicates, “TW Cable’s bargained for content clause was intended precisely to avoid ‘wild rides’ and ‘surprising’ and ‘huge’ changes to CMT’s programming.”

The TW Cable motion also cites a programing analysis that found that while country music-related programming comprised 60% of Viacom’s schedule in 2004, that has dwindled to less than 1% in 2011.

Cable operators occasionally clash with programmers when cable channels change the composition of their programming or brand identity, though such objections are often interpreted as a negotiation ploy. Back in 2005, TW Cable obtained a favorable court ruling when Cablevision-owned channel AMC began modernizing its movie library and drifting from its roots as American Movie Classics. But some industry observers saw TW Cable’s move as a tactic to obtain better terms to a carriage deal for other channels owned by Cablevision.

Viacom itself has experienced the consequences of channel repositioning when it attempted to transform TNN, another channel with a country-music identity, into male-oriented Spike TV in 2001. Viacom acquired both TNN and CBS when the conglom merged with CBS.

While TW Cable’s motion focuses on programming decisions made earlier this year, CMT has been straying from its country music roots as far back as 2006 when the channel first began adding longform, non-music-related programming such as the Miss America Pageant, which has since moved off the network.

TW Cable announced earlier this week that the TWCable TV app will be available on tablets powered by Android later this year.

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