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Cable Operators

Ads for HD Can Be In DirecTV’s Future

4/20/2007 8:00 PM Eastern

For now, DirecTV can continue to promise that it will “soon” have the capacity to offer three times more high-definition channels than cable, after a federal judge last week denied Time Warner Cable’s request to impose an injunction barring DirecTV from running its Back to the Future ads.

In the disputed commercials, actor Christopher Lloyd — who played the straggly-haired mad scientist Dr. Emmett Brown in the 1985 movie — 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, as part of an ongoing false-advertising suit against the El Segundo, Calif.-based direct-broadcast satellite provider, in February filed for an injunction to stop the ad. For one thing, the cable company said, it eventually could deliver as many as 200 HD channels using 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 Back to the Future ad cites 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 to 40.

But 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 to 200 HD networks within five years. “As more HD content becomes available, switched-digital technology will enable Time Warner Cable to meet and exceed the HD capacity offered by DirecTV,” the cable operator said last week, in a statement.

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 DirecTV 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 featuring Jessica Simpson and William Shatner claiming that it provided superior HD picture quality compared with cable.

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

September