If you want to talk TRUTH you should at least get the facts correct.
DISH wanted to keep VOOM, but after DISH pruned the channels with low viewership VOOM demanded that they return all 15 channels of drop them all.
DISH then dropped them all.
If VOOM didn't do this they would still be on DISH today. You don't give Charlie and ultimatium.
Except it was Charlie who issued the ultimatum when he told VOOM he was going to terminate the the 15-year Affiliation Agreement he signed. Additionally, VOOM could not accept Charlie's ultimatum (pennies on the dollar) because executives had a fiduciary responsibility to maximize shareholder wealth by enforcing the existing Affiliation Agreement.
Charlie: "I know we signed a 15-year contract for the VOOM HD package at the rate of $4-$6 per every Dish HD customer, but we're going to terminate the affiliation agreement, legally or illegally, if you don't agree to Tier VOOM HD and/or provide us with fewer channels. We will gladly pay you 10 cents per each and every VOOM HD subscriber."
Dolan: "I don't think so. We'll stick to the terms & conditions of our affiliation agreement - thank you. Please honor the contract you signed with us."
Charlie: "I hate ultimatums...I don't roll that way! Winning!"
Again, VOOM issued no ultimatum other than stating they wished to comply with the original Affiliation Agreement they penned with EchoStar. It was Charlie who threated to remove and terminate the agreement if he didn't get a better deal.
However, you're 100% correct in this matter assuming VOOM failed to meet the agreement's annual spend requirement. Of course, this matter (spend requirement) is being disputed by both parties and, according to Judge Lowe, this matter will ultimately be evaluated by a Jury...along with every artifact of VOOM's extrinsic evidence. In a nutshell, Judge Lowe stated the contract was ambiguous and practically telegraphed that he would have ordered summary judgment in favor of VOOM if the court were permitted to consider extrinsic evidence during a motion for summary judgment. The court was not given this authority.
According to Judge Lowe, if the contract (i.e., Affilition Agreement) were clear and unamiguous, the court would give effect to the plain-meaning of the contract's terms and provisions, and extrinsic evidence would not be considered to interpret the provisions of the contract. However, since there were "ambiguities in the contract" (as noted by Judge Lowe) the court may look to collateral circumstances during trail. Accordingly, Judge Lowe has permitted almost every shred of VOOM's extrinsic to be considered during the jury trial. Good luck to EchoStar refuting the hundreds of artifacts clearly defining "The Service" and the accounting methods used.
As I mentioned before...both parties are culpable - E* signed a bad deal, and V* decided to bleed them dry (not very nice of a business partner). This entire case is not a "money-grab" and deciding who was more right than wrong. In a nutshell:
- If V* met the spend requirement then E* is going to pay hundreds of millions after exhausing all appeals.
- If V* did not meet the spend then they'll have to pay E*'s legal costs and a few extra bucks in penalties.
- Illegally terminating the Affiliation Agreement with VOOM will save E* money in the long-run.
- VOOM is gone and CableVision will only pad their coffers should they win this case.
That's the way I see it.
