mediacom executives almost arrested for signal theft?
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DESCRIPTIONMediacom executives almost arrested for signal theft? Response to defendants motion to dismiss
- 1. Case 1:04-cv-0G143-WLS Document 20-15 --> Page 1 of 37 v t r -g f a ^ I ^ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO^ pep.cu VCivil Action No- 04-M-0664 (CBS) "* "ECHOSTAR. SATELLITE L.L.C., a Colorado Limited Liability Corporation Plaintiff,v.MEDIACOM COMMUNICATIONS CORPORATION, a Delaware Corporation; and MCCGEORGIA, a Delaware Corporation, d/b/a MEDIACOM; JOHN DOES 1-100 Defendants, PLAINTIFF ECHOSTAR SATELLITE LLCS RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT PURSUANT TO RULES 12(B)(2) AND 12(B)(3), FED. R. CIV, P. OR TO TRANSFER PURSUANT TO 28 U-S.C. 1406(3) Plaintiff EchoStar Satellite, LLC ("EchoStar" or "DISH Network")- by and through itsattorneys, responds to Defendants, Mcdiacom Communications Corporation and MCC Georgia,Motion to Dismiss Plaintiff s Amended Complaint Pursuant to Rules 12(b)(2) and 12(b)(3), FederalRules of Civil Procedure or to Transfer pursuant to 28 U.S.C. 1406(a). In support thereof, Plaintiffresponds as follows: INTRODUCTION Mcdiacom either could not or would not obtain the retransmission rights to broadcast localchannel WSB/ABC to its customers. Therefore, to compete with DISH Network, Media.com
- 2. Case 1:04-cv-00143-WLS Document 20-15 --> Page 2 of 37engaged in a course of unlawful conduct so that it may steal the channel for which DISH Networkbargained and purchased the retransmission rights. Three Mediacom employees, including ChiefTechnician John Duran, entered into Residential Subscriber Agreements with DISH Network toobtain DISH Network programming. 1 Thereafter, Mediacoms employees would remit checks toDISH Network each month printed on "MEDIACOM COMMUNICATIONS CORPORATION"checks to pay for its subscriptions. Once Mediacom obtained access to DISH Network channelWSB/ABC, it extracted the local channel, made it cable ready and retransmitted it to Mediacomcustomers. In fact, Mediacom advertised via the local Chamber of Commerce website and itsprogramming guide that it offered WSB/ABC as part of its channel linc-up. Despite Mediacoms claims, this is not a case about Mediacom having absolutely no contactswith the State of Colorado. To the contrary* Mediacom directed its intentional, tortious conduct tothe State of Colorado to harm EchoStar. As such, Mediacom has availed itself of the long-aimjurisdiction of the State of Colorado. Mediacoms unlawful conduct creates the requisite minimumcontacts needed for this Court to confer specific personal jurisdiction over Mediacom. Likewise,Mediacoms intentional, tortious actions, taken outside the forum, were expressly directed at causinga harmful effect within the forum state. Therefore, a sufficient nexus exists between Mediacom andColorado so as to satisfy due process. *Due to its investigation, EchoStar learned the identity of Mediacoms employees whoentered into the Residential Subscriber Agreements with EchoStar which prohibits theretransmission of programming. As such, EchoStar amended its Complaint to add a claim for breachof contract. 2
- 3. Case 1 :Q4-cv-00143-WLS Document 20-15 --> Page 3 of 37 FACTS EchoStar Satellite LLC, is involved ill the Direct-To-Home satellite television DBS (directBroadcast Satellite) business. Amended Complaint at f9, EchoStar is a Colorado corporation andmaintains its headquarters and principle place of business in Englewood, Colorado, AmendedComplaint at 1fl. To better serve its customers, EchoStar enters into Retransmission Agreementswith local network affiliates to provide ABC, NBC, CBS and FOX to subscribers in the appropriategeographic location. Amended Complaint at 1j 12. Mediacom, EchoStars competition, was eitherunwilling or unable to enter into Retransmission Agreements with these same affiliates. AmendedComplaint at Tfl[ 14-16. Therefore. Mediacom executives entered into three separate ResidentialCustomer Agreements with DISH Network, a Colorado corporation (attached hereto as Exhibit"B")- The company would then extract local channel WSB/ABC from the DISH Networksubscriptions, make it cable ready, and illegally retransmit the channel to its own customers.Amended Complaint at fll2-14. In fact, throughout its course of unlawful conduct, Mediacomwould pay for its multiple DISH Network subscriptions by writing checks to DISH Network on"MEDIACOM COMMUNICATIONS CORPORATION" company checks, (attached hereto asExhibit 4 A"). Due to Mediacom 5 s breach of contract and unlawful retransmission, EchoStar hassuffered the injury of Defendants tortious conduct in Colorado. Amended Complaint at f 25. ARGUMENT AND AUTHORITIES L Mediacom is subject to the specific personal jurisdiction of this Court In a federal question case, where the defendant resides outside the forum state, federal courtsapply the forum states personal jurisdiction rules if the applicable federal statute does not providefoi national service ofproccss. Sunward Electronics, Inc., v. McDonald, 362 JF .3d 17, 22 (2nd Cir. 3
- 4. Case 1:04-cv-00143-WLS Document 20-15 -> Page 4 of 372004). The causes of action in this case, the Lanham Act, the Digital Millennium Copyright Act and47 U.S.C. 605 do not provide for national service of process; therefore, there are three ways in whichthis Court may obtain personal jurisdiction over defendants; (1) consent of the parties; (2) presencein the forum state; and (factions by the defendant which affect people in the forum state. Ruggieriv. General Well Service, /