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Appeals Court Hands Dish Another Victory in Fox Fight

The 9th Circuit Court of Appeals refused to overturn a lower court ruling in favor of Dish’s offering of a feature that allows subscribers to watch broadcast TV outside the home.

A three-judge panel of the appeals court, which heard oral arguments in the case only last week, on Monday concluded that U.S. District Judge Dolly M. Gee “committed no legal error and made no clearly erroneous factual findings” when she refused to grant Fox’s request for an injunction that would have forced Dish to halt its offering of Dish Anywhere and Hopper Transfers. She concluded that Fox had not shown that it would suffer “irreparable harm” — a key element for courts issuing the injunction — if Dish was allowed to continue using the features.

Dish is using Slingbox technology for its Anywhere service, and has made much of the fact that the broadcasters have not challenged its legality up until now. The Slingbox was first introduced in 2005 and deployed in the Dish services in 2012.

The three-judge panel rejected Fox’s arguments that a preliminary injunction should be issued because it would be impossible to calculate damages should it prevail. They also wrote that “the district court’s ruling that Fox’s assertion of lost advertising revenue absent an injunction of Dish Network’s technologies was inadequately supported by Fox’s evidence was not clear error, in light of the evidence that advertisers are adapting to the changing landscape of television consumption.”

Fox also is challenging other Dish services via its Hopper technology, including a feature that allows subscribers to automatically have entire nights worth of programming recorded with commercials automatically deleted. Gee also ruled in favor of Dish in that portion of the litigation, and a 9th Circuit panel affirmed her ruling. Fox is awaiting word from the 9th Circuit on its petition for rehearing.

R. Stanton Dodge, Dish’s executive vice president and general counsel, said in a statement, “Today’s decision is the fifth in a string of victories for consumers related to our Hopper Whole-Home DVR platform. Dish is pleased that the court has sided again with consumer choice and control by rejecting Fox’s efforts to deny our customers access to the Dish Anywhere and Hopper Transfers features. Last year, the 9th Circuit also rejected Fox’s attempt to block customers from using the AutoHop and PrimeTime Anytime features. We will continue to vigorously defend consumers’ right to choice and control over their viewing experience.”

A spokesman for Fox said in a statement, “While we are disappointed in today’s ruling, it is not unexpected, as the bar for a preliminary injunction is extremely high.  The decision had nothing to do with the merits of our claim and does not address the fact that ‘DISH Anywhere’ is both illegal and in violation of our existing distribution agreement.  We will now move forward and fully expect to prevail at trial.”

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