Fubo Hoping to Expose Decades of Disney, Fox, WBD Negotiation Secrets
Carriage deal talks are usually closely-guarded secrets, and even basic details are kept strictly confidential.
Fubo may be about to pull back a curtain that has been held shut for decades. As part of its ongoing lawsuit against the Venu Sports joint venture streaming service from Disney, Fox, and Warner Bros. Discovery, both sides are due back in court for a pretrial conference on Thursday morning. Ahead of that conference, the plaintiffs and defendants signed a joint letter to enumerate their priorities, and Fubo informed the judge that it would be seeking details of carriage negotiations between the three defendants and their pay-TV distributing partners dating back years, as it tries to dismantle the traditional formula that channel owners use to get their networks distributed.
Key Details:
- Fubo will be looking for information about Disney, Fox, and WBD’s bundling practices during carriage negotiations.
- The goal is to reveal more information about the longstanding practice of forcing distributors to carry all channels from a provider, leading to higher prices.
- DIRECTV is pursuing similar goals in its current carriage fight with Disney.
Thursday’s pretrial conference will serve several purposes, including laying out a timeline for the trial at which Fubo will try to demonstrate that Disney, Fox, and WBD have used bundling practices that have led to higher pay-TV prices for customers for years, among other points.
The conference will also establish the scope of discovery and depositions to be used in the trial process. Fubo will seek information on carriage negotiations from the three companies that could stretch back decades as it tries to prove that Disney, Fox and WBD’s tactics have caused inflated subscription prices for a long time. Details of these negotiations are usually closely guarded secrets; companies are not even allowed to confirm or deny the length of time carriage deals cover, much less the intricate parleying that goes into them.
It could be an eye-opening experience for consumers, and will likely go to show how far Disney, Fox, and WBD have gone to ensure distributors are forced to pay more to carry all of their various cable and broadcast channels, even if viewership is not particularly high for many of them. Fubo has warned that the three companies could try to use a “scorched-earth” discovery policy, where they turn over an overwhelming number of documents to potentially try to hide the information Fubo needs in a mountain of other, less relevant paperwork.
Fubo would like the Venu trial to begin as early as possible, setting a target date of June 2025. The defense is in less of a hurry and has said it wants a trial no earlier than October 2025, and perhaps not even until 2026. In the meantime, Venu is currently on ice thanks to a preliminary injunction, which Disney, Fox, and WBD have already appealed; the three companies originally intended to begin selling it to customers in August.
DIRECTV Looks On
The discovery process will be of great interest to DIRECTV, which is also hammering the point that Disney has long forced it to carry less desirable channels in exchange for its best programming as part of the unrelated carriage dispute between the two sides. Disney-owned broadcast and cable networks have been unavailable to DIRECTV customers since Sept. 1.
The major holdup in a new deal between the two sides is DIRECTV’s insistence that it be allowed to sell smaller-sized channel packages similar to Venu, which Disney says it has offered. However, DIRECTV officials say that the packages Disney has proposed still come with minimum penetration requirements that will continue to force the company to bundle networks in ways it doesn’t want to any longer.
While DIRECTV tries to fight what it has deemed an unfair system from the inside, Fubo is doing everything it can to expose it to the public from the outside. Both have a chance to fundamentally alter the way carriage deals are made in the future, which would be a huge disruption for channel-owning companies that are trying to figure out their next steps as video increasingly moves to streaming formats.
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