Sky Angel/Discovery Appellate Fight Over Distribution Details Disagreement

Much of Sky Angel's legal fight with Discovery and its Animal Planet network may involve what Discovery knew about how Sky Angel distributed content and when did it know its signals were being carried online to Sky Angel subscribers. In dueling briefs filed Tuesday in the 4th U.S. Circuit Court of Appeals (see here and here, in Pacer), Sky Angel cited emails and other communications with Discovery since 2007 that noted its internet distribution, while Discovery/Animal Planet said that throughout dealings with Sky Angel, it never knowingly allowed distribution of its linear networks over the internet, regardless of the distributor. Sky Angel is appealing a 2016 verdict in favor of Discovery (see 1609120042) after the former over-the-top MVPD's 2013 suit claiming breach of contract after Discovery ended their affiliation agreement (see 1303070045). Sky Angel, which now distributes via Dish Network, in 2010 filed a still-open program access complaint against Discovery. The lower court verdict wrongly focused on Discovery's view of the contract rather than on agreed-upon language, as well as whether the programmer was dissatisfied, Sky Angel said in its opening appellant brief. Thus the lower court ruling focused on Discovery internal policy "rather than on any information of which Sky Angel would have been aware," it said. It said U.S. District Court in Greenbelt, Maryland, erred when it found the phrase "high-speed data connection" in the affiliation agreement to be ambiguous. Such a connection "need not be the public Internet, [but] that is an obvious possibility," Sky Angel said in a reply brief (in Pacer) also filed Tuesday. It said Discovery doesn't explain how such a term "can be interpreted to exclude 'the public Internet.'" The lower court's finding "is only reviewable for clear error, and Sky Angel's appeal never comes close to -- or could come close to -- the clear error standard," Discovery/Animal Planet said in an appellee brief. It said Sky Angel, faced with sizable evidence the termination right was exercised in good faith, "takes the Court through a maze of detours and dead-end turns" by arguing for de novo review that gives no deference to the lower court's previous ruling, instead of clear error review. Discovery/Animal Planet said it hadn't allowed any distributor at that time to distribute via IPTV in part because it didn't have internet distribution rights for some licensed content, and due to security and signal quality concerns, and that letting any distributor do so could trigger most-favored nation obligations to other distributors.