Your SlideShare is downloading. ×
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Mediacom executives almost arrested for signal theft?
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

Mediacom executives almost arrested for signal theft?

561

Published on

Mediacom executives almost arrested for signal theft? …

Mediacom executives almost arrested for signal theft?
Response to defendants motion to dismiss

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
561
On Slideshare
0
From Embeds
0
Number of Embeds
0
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 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, /«<?,, 535 F. Siipp. 525,528 (D. Colo, 1982)(emphasis added). Further, theanalysisnnderthe third possible method ofobtainingpersonaljurisdiction over adefendant proceedsunder two separate inquiries; (1) whether the states long-arm statute provides for jurisdiction ofdefendants served outside of the forum state, and (2) whether such jurisdiction is proper under theDue Process Clause of the Fourteenth Amendment. See Schocket v. Classic Auto Sales, Inc., 832P,2d 233,235 (Colo.1992). A. Mediacom purposefully directed its intentional and tortious business activities toward the state of Colorado. Under the first inquiry, the Colorado long-arm statute was intended to extend the personaljurisdiction of Colorados courts to their maximum limits permissible under the United States andColorado Constitutions. K&efe v. Kitsehenbaum & Kirschenbaum, P,C.9 40 P.3d 1267, 1270(Colo.2002). Therefore, Colorados long-arm statute permits the jurisdiction of Colorado courts toextend to causes of action arising from a nonresident defendants transaction of business within the the commission of a tortious act within the state. See C.R.S. § 13-l-124(l)(a)-(b) (emphasisadded). To be subject to long-arm statute jurisdiction, a nonresident defendant must have minimumcontacts with Colorado or commit some act by which it "purposefully avails itself of the privilege 4
  • 5. Case 1:04-cv-00143-WLS Document 20-15 --> Page 5 of 37of conducting activities* in Colorado. Scheuer v. Dist. Court» 684 P.2d 249,251 (Colo. 1984)(quotingHansonv>Denkla,351 U.S. 235, 253,78 S.Cl 1228,1240(1958), To prove long-arm jurisdictionexists, a plaintiff seeking relief under the statute must allege facts to support a reasonable inferencethat the nonresident defendant has engaged in conduct subjecting the nonresident to personaljurisdiction. Keefev, Kirschenhatim &Kirschenbaumt P.C., 40P,3d 1267,1270 (Colo.2002); In reParental Responsibilities ofIIZ.G.,11 P.3d 848, 851 (ColoApp. 2003). Furthermore, when theparties have not conducted discovery, the plaintiff need only to make a prima facie showing that thedefendants were subject to personal jurisdiction. Id. at 1347; Graphic Controls Corp. v. Utah Med.Prods., 149F.3d 13S2,1385 (Fed.Cir, 199S). The pleadings and affidavits are to be construed in thelight most favorable to the plaintiff. Id. Further, long-arm jurisdiction may be exercised over a non-resident defendant if defendants tortious act causes injury in Colorado even though such an act wascommitted in a foreign state. Von Paljfy-Erdoedv. Buges&i, 70S F.2d 816, 818 (Colo.App. 1985).Thereafter, threshold jurisdiction is established where tortious conduct initiated in another statecauses injury in Colorado and where requiring a defendant to appear in this state would be consistentwith due process of law, D&D Fuller CATV Constr., Inc. v. Pace, 780 P.2d 520, 524 (Colo.1989).3 In this case, Mediacom engaged in an intentional and unlawful course of action to stealWSB/ABC from EchoStar for its own economic gain. In turn, EchoStar was deprived of a right for 2 Despite Mediacoms contention that D&D Fuller CATV Constr., Inc. v. Pace is notapplicable because the case does not specifically deal with cable television. D&D remains anauthoritative guide to Colorados assessment of a fact-specific personal jurisdiction inquiry in lightof an out-of-state defendants tortious conduct; in this case, Mediacoms unlawful retransmissionof EchoStars programming. 780 P.2d 520, 525 (Colo.1989)- 5
  • 6. Case 1:04-cv-00143-WLS Document 20-15 --> Page 6 of 37which it specifically contracted and purchased, as well as losing current and potential subscribersto Mediacom. Mediacoms activity constitutes a tortious act within the state of Colorado pursuantto Colorados long-aim statute. SeeC.K.S. § 13-l-124(l)(a)~(b). Even a single contact with the stateis sufficient to sustain long-arm jurisdiction where the cause of action arose out of that contact.Marquest Medical Products, Inc. v. EMDE Corporation, 19&0, 496 F.Supp, 1242, 124S(D.Colo. 1980). Further, Colorados long-arm statute, providing for personal jurisdiction overdefendants committing tortious acts within the state, is violated when, there is tortious action inanother state causing injury in Colorado. Classic Auto Sales, Inc. v. Schockel, 832 P, 2d 233,235-36(Colo. 1992). Encore Productions, Inc. v. Promise Keepersf 53 F.Supp.2d 1101, 1114(D.Colo.1999); see also National Business Brokers, Ltd. v. Jim Williamson Productions, Inc., 115F.Supp.2d 1250,1255 (D.Colo.2000). ha this case, Mediacom contends that personal jurisdiction isimproper because its tortious acts took place in the State of Georgia. (Def, 5 Mot. to Dismiss at 5).However, under the Colorado long-aim statute, the location of Mediacoms tortious acts are notdeterminative of jurisdiction when Mediacoms unlawful conduct undoubtedly caused injury toEchoStar in Colorado. See Id.; C.R.S, § 13-l-124(l)(a)-(b). Mediacom relies heavily on the facts of Encore Productionst Inc. v. Promise Keepers, 53F.Supp,2d 1101, 1114 (D.Colo,1999), in an attempt to prove that it does not maintain an office,property or telephone listings in Colorado. (Def. ? s Mot. at 7), However, whether a non-resident hasthe requisite minimum contacts to establish personal jurisdiction either through the exercise ofspecific or general jurisdiction must be evaluated on thefacte of each case. National Union Fire Ins.Comp. of Pittsburgh, P.A. v. Kozeny, 115 F.Supp,2d 1231, 1235-36 (D.Colo. 2000)(emphasis 6
  • 7. Case 1 ;04-cv-00143-WLS Document 20-15 --> Page 7 of 37added). The individual facts of this Case detail that Mediacom did not simply "unlawfully intercept"EchoStars local channel "WSB/ABC. (Def,s Mot. to Dismiss at 3). Rather, Mediacomsystematically entered into and breached three separate subscriber agreements with DISH Networkin order to unlawfully retransmit the local programming 3 . (Exhibit "B"). Upon investigation,EchoStar discovered that Mediacom issued checks each month to DISH Network from MediacomsChief Technician, John Duran. In addition, two other subscriber accounts were registered at thesame Mediacom address as Mr. Duran. (Exhibit "B"). Mediacoms checks remitted to DISHNetwork were issued by "MEDIACOM COMMUNICATIONS CORPORATION". (Exhibit I( A").While fervently refuting jurisdiction, Mediacom makes absolutely no mention of the fact that itsemployees issued checks to DISH Network on Parent Company checks. The fact that Mediacomobtained programming only to unlawfully redistribute it was to EchoStars detriment and created abarm in the state of Colorado. See Encore Productions, Inc. v. Promise Keepers, 53 F.Supp,2d at1114 (D.Colo.1999). Therefore, threshold jurisdiction is satisfied where Mediacoms tortiousconduct initiated in Georgia caused injury to EchoStar in Colorado. D&D Fuller CATVConstr., Jnc,v. Pace, 780 P.2d 520, 524 (Colo.1989); C.R.S. § 13-1-124(1 )(a)-(b). 3 The EchoStar Residential Cu&tomer Agreement provides; "You agree that services will notbe viewed outside your private residence. You are permitted to exhibit the Services solely in yourprivate residence and not in any other areas. The Services may not be rebroadcast. transmitted,recorded or performed, nor may admission be charged for listening to or viewing and Servicesprovided by us." (Exhibit "B")(emphasis added), 7
  • 8. Case 1:04-cv-00l 43-VVLS Document 20-15 Page 8 of 37 B. Mediacoms tortious acts directed at EchoStar in the state of Colorado establish the requisite minimum contacts needed for this Court to confer specific personal jurisdiction over Mediaeoiru After determining whether the requirements of the long-arm statute have been met, the courtmust separately determine whether a defendant has the requisite minimum contacts to satisfy dueprocess. See Intl Shoe Co. v. Washington, 326 U.S. 310f 316, 66 S.Ct. 154, 158 (1945). Theminimum contacts standard may be satisfied in either of two ways- general jurisdiction or specificjurisdiction. SeeKuenzlev.HTMSport-UndFreizeitgeratp.AG• 102F.3d453,455 (10th Cir.1996).The district courts duty is the same in exercising either general or specific jurisdiction: it mustguarantee that the exercise of jurisdiction "does not offend traditional notions of fair play andsubstantial justice." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,292,100 S.Ct. 559?564 (19S0) (quoting Intl Shoe, 326 U.S. at 316, 66 S.Ct. 154). Moreover, specific personaljurisdiction may be based on activities that arise out of or relate to the cause of action and can existeven if the defendants contacts are isolated or sporadic. Burger King Corp. v. Rudzewiczt 471 U.S.462, 472-73,105 S.Ct. 2174 (1985). This Court has specific personal jurisdiction over Defendants based upon their tortiouscontacts with the State of Colorado. In fact, EchoStar specifically alleges in its Amended Complaintthat, EchoStar has suffered damage felt in the state of Colorado because Defendants obtainedsubscriptions to DISH Network programming, extracted local channel WSB/ABC andrebroadcastEchoStars signal in a manner that was not authorized by EchoStar as well as breached all threeResidential Customer Agreements with EchoStar." Amended Compl. at ^ 25. 8
  • 9. Case 1:04-cv-00143-WLS Document 20-15 -> Page 9 of 37 Mediacom attempts to refute jurisdiction by asserting that a contract, alone, does not conferjurisdiction. (Def.s Mot. to Dismiss at 7). However, Mediacoms argument is misguided asMediacom performed numerous other unlawful and tortious acts in addition to breaching theResidential Customer Agreement Amended Complaint f 25. Mediacom intentionally andpurposefully entered into and breached agreements with EchoStar only to facilitate its theft of DISHNetwork programming from Colorado. Moreover, when an individual defendant has expressly andintentionally aimed his conduct at the forum state, with the effect of injuring a plaintiff with itsprinciple place of business in that state, the defendant is subject to jurisdiction there. Carrot BunchCo. Inc., v. Computer Friends, Inc^ 218 F.Supp.2d 820, S;26 (N.D.Tex.2002). In Carrot Bunch7 aLanham Act case, the Federal District Court in Texas had specific personal jurisdiction over a non-resident infringer who intentionally directed his tortious activities toward the forum state byregistering, using and maintaining certain domain names with the knowledge that his actions wouldlikely injure the trade name and trademark, bolder in Texas. Id. at 826. As in this case, Mediacom.subscribed to EchoStar programming, accepted and wrote company checks for such programmingwith the knowledge that its theft and retransmission of WSB/ABC would likely injure EchoStar inthe State of Colorado. See id. Mediacom chartered a course of purposeful conduct to unlawfully useand retransmit EchoStars programming. Consequently, Mediacom has established the requisiteminium contacts with Colorado because EchoStars injuries arise out of and relate to Mediacomspurposeful contact with the state. 9
  • 10. Case 1 ;04-cv-00143-WLS Document 20-15 Page 10 of 37 C. This Courts assertion of jurisdiction over Mediaeom comports -with notions of fair play and substantial justice. Due process, the third and final jurisdictional inquiry, requires that individuals have fairwarning that a particular activity may subject them to the jurisdictionofaiiother state. They have fairwarning when their conduct and connection with the forum state are such that they should reasonablyanticipate being haled into court there. Keefe v, Kirschenbaum & Kirschenbaum, P. C. , 40 P,3d 1267,1270-71 (Colo.2002). In determining whether a particular exercise of state-court jurisdiction isconsistent with due process, the inquiry must focus on "the relationship among the defendant, theforum, and the litigation." Rush v. Savchuk, 444 U.S. 320, 327, 100 S.Ct 571, 577(1980) (quotingShaffer v„ Heitner, 433 U.S. 186,204, 97 S.Ct. 2569,2579 (1977)). In appropriate circumstances,however, a court may conduct an abbreviated minimum contacts analysis when the commission ofa tort forms the basis of personal jurisdiction. In D & D Fuller1 the Colorado Supreme courtobserved; Frequently, the commission of a tort, in itself, creates a sufficient nexus between the defendant and the state so as to satisfy the due process inquiry. In such cases there is no need to further engage in a minimum contacts analysis, because the defendant is so connected with the forum state that traditional notions of fair play and substantial justice are not offended by the states exercise of jurisdiction....D&D Fuller CATV Constr., Inc. v. Pace, 7S0 P.2d 520, 524 (Colo, 1989). The United S tates Supreme Court has also addressed the issue of what contacts are necessaryto satisfy due process in the context of an intentional tort. In Calder v. Jones, 465 U.S. 783,789,104S.Ct. 14S2, 1487 (1984), the Court approved an "effects" test and held that where a defendants 10
  • 11. Case 1:04-cv-00143-WLS Document 20-15 Page 11 of 37intentional, and allegedly tortious, actions, taken outside the forum, are expressly directed at causinga harmful effect within the forum state, a sufficient nexus exists between the defendant and the stateso as to satisfy due process. See D&D Fuller CATV Constr,, Inc. v. Pace, 780 P.2d 520, 524(Colo.1989). EchoStars injuries arise out of and relate to Mediacoms activities that were directed atEchoStar in Colorado, Id. Therefore, Mediacom had fair warning that its breach of contract and theftof programming from EchoStar, causing harm in the State of Colorado, were such that Mediacomshould reasonably anticipate being haled into court there. See Keefe v. Kirschenbaum &Kirschenbaum, P . C , 40P.3d 1267,1270-71 (Colo.2002). In fact, pursuant to the Colder effects test,Mediacoms intentional and tortious actions, although performed in Georgia, were expresslydirected at causing a harmful effect within Colorado; therefore, a sufficient nexus exists betweenMediacom and Colorado so as to satisfy due process. Calcterv.Jones, 465 U.S. 783,1.04 S.Ct. 1482,79 (1984). It flies in the face of substantial justice that Mediacom should systematically steal fromEchoStar only to demand the luxury of its preferred forum, II. Colorado is the proper venue for this case, and transfer to the Middle District of Georgia would impede the interests of justice. The burden of establishing that a suit should be transferred from, one district to another isupon the movants, and unless the evidence and circumstances of the case are strongly in favor of thetransfer, the plaintiffs choice of forum should not be disturbed, Texas Sulphur Company v. Ritter,371 F,3d 145, 147 (10th Cir.1967). As is jurisdiction, venue is proper in Colorado, Mediacom rallies fox a change of venue basedupon the argument that it did not actually commit its unlawful and tortious conduct while in the state 11
  • 12. Case 1:04-cv-00143-WLS Document 20-15 --> Page 12 of 37of Colorado. (Def.sMot to Dismiss at 10), As explained above, as well as in EchoStars AmendedComplaint, Mediacom need not be present in the state to harm EchoStar in Colorado. AmendedComplaint at^ffi 4-3,25; See Calder v, Jones1465 U.S. 7S3,104 S.Ct, 1482,79 (1984). Therefore,Mediacoms reliance on 28 U.S.C. 1406(a) is improper and without legal foundation. Furthermore, Mediacom does not meet tbe stringent burden required for disrupting theplaintiffs choice ofvenue. See Texas Sulphur Company v. Hitter, 371 F.2d 145,147 (10th Cir. 1967).Mediacoms only argument for a change of venue is that it will be unable to compel third-partywitnesses to testify in Colorado. (Def.s Mot. to Dismiss at 11). However, according to theDeclaration of Bruce Gluckman these possible witnesses are former employees of Mediacom.(Gluckman Decl. at f 4). Mediacom states that it is "likely" to call these former employees aswitnesses; however, it makes no claim that these witnesses will still be located within the subpoenapower of the court. Id. In view of the heavy burden imposed upon a party moving fox transfer of acivil action from one district to another, the factual content of a supporting affidavit is veryimportant, and an affidavit containing only conclusions is insufficient. Texas Sulphur Company v.R i t t e r ^ H F,2d 145,147(10th Cir. 1967). It operates against the interests ofjustice that Mediacomsteals a valuable commodity from EchoStar but demands the luxury of its own forum. As Mediacomhas not met its burden, venue remains proper in Colorado. IIL Mediacoms Request for costs is procedurally incorrect and without legal merit. Mediacom knew or should have known that Mediacom employees contracted with EchoStar,wrote monthly checks to EchoStar, and damaged EchoStar in the State of Colorado, (Exhibits "A"and "B"). Despite this knowledge, Mediacom represents to this Court that it has "had no contact 12
  • 13. Case 1;04-cv-00143-WLS Document 20-15 ~> Page 13 of 37with the state of Colorado," (Def.s Mot. to Dismiss at 5). Further, Mediacom improperly seeks anaward of costs, contending that EchoStar made an obvious error by filing in the wrong court,(Def.s Mot, to Dismiss at 11). To support its request, Mediacom relies on an award of costsassessed against plaintiffs in Nichols v. G..D. Searle & Co., 991 F,2d 1195, 1201 (4th Cin 1993).However, Mediacoms reliance on Nichols is misplaced because that case does not applyablanketrule that errors in determining jurisdiction and venue naturally yield costs to the prevailing party.Rather, in Nichols, Plaintiffs were 116 women who filed a products liability case in the state ofMaryland; however, none of the plaintiffs resided in Maryland, and none of their causes of actionarose there, Id. at 1198. As stated, EchoStar is a Colorado corporation, with its principle place of business inColorado and was damaged by Mediacoms intentional, tortious conduct directed at citizens of theforum state. Amended Complaint at fll, 25. Mediacom has made no showing otherwise. As evidenced by Defendants Motion to Dismiss and the letter attached thereto from R. BruceBeckner, Mediacom Counsel, to Courtney Tigner, EchoStar Counsel, no Rule 11 Motion was servedor filed, nor was a 21-day safe harbor period initiated by Mediacom. (Def.s Mot. to Dismiss at 11).Therefore, Mediacom improperly seeks sanctions against EchoStars counsel without use of thenecessary procedural mechanism. See Fed. R. Civ. p, 11, EchoStar has met its prima facie burdenfor showing that both jurisdiction and venue are proper in the District of Colorado. Accordingly,Mediacoms attempt to collect costs for its Motion to Dismiss is procedurally incorrect, without legalmerit and should be denied. 13
  • 14. Case 1:04-CV-00143-WLS Document 20-15 --> Page 14 of 37 CONCLUSION EchoStarTespectfully requests that this Court deny Mediacom s Motion to Dismiss Plaintiff sAmended Complaint pursuant to Fed. R, Civ. P. 12(b)(2) and 12(b)(3) or to transfer pursuant to 28U.S.C, § 1406(a) to the middle District of Georgia, Thomasville Division, and that the Court denyMediacoms improper request for costs. Respectfully submitted this 9th day of August, 2( TT- ToddA. Janseii Cockrell, Quinri & Creighton Mile High Center 1700 Broadway, Suite 1516 Denver, Colorado 80290 (303) 860-7140 (303) S60-7344 (fax) T. WADE WELCH & ASSOCIATES Courtney L. Tigner Richard Olsen 2401 Fountaiiwiew, Suite 700 Houston, Texas 77057 (713) 952-4334 (713) 952-4994 (fax) ATTORNEYS FOR PLAINTIFF ECHOSTAR SATELLITE LLCPlaintiffs Address:David Moskowitz, Esq.General Counsel and Vice PresidentEchoStar Satellite Corporation9601 South Meridian Blvd.Englewood, CO 80112 14
  • 15. Case 1:G4-cv-00143-WLS Document 20-15 --> Page 15 of 37 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on August 9,2004, via U.S. Mail, postage prepaid, upon the following counsel in accordance with the FederalRules of Civil Procedure:David Fine, Esq.Walter Gamsey, Jr., Esq.KELLY HAGLUND GARNSEY & KAHN LLC1441 Eighteenth Street, Suite 300Denver, Colorado 80202-1255R. Bruce Beckner, Esq.FLEISCHMAN AND WALSH, LLP1919 Pennsylvania Avenue, N.W., Suite 600Washington, D.C. 20006 Tod Jans 15
  • 16. Case 1:04-cv-00143-WlS Document 20-15 --> Page 16 of 37 EXHIBIT A
  • 17. Case 1:04-cv-00143-WLS Document 20-15 -> Page 1 ^ of 37IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOCivil 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 MCC GEORGIA, a Delaware Corporation, d/b/a MEDIACOM; JOHN DOES1-100 Defendants. DECLARATION OF SHANNON PICCHIONE1. My name is Shannon Picchione. I have personal knowledge of the events and facts discussed herein and they are true and correct. I am over 18 years of age, I have never been convicted of a felony, and I am competent in all respects to make this declaration.2. I am employed by EchoStar Satellite LLC ("EchoStar3*) as a Director of Accounting in the DISH Network Customer Management Operations division* located at 9601 South Meridian Blvd., Englewood, Colorado 80112,3. Attached hereto as Exhibit "A" are true and correct copies of checks that were written by Mediacom Communications Corporation to purchase three separate DISH Network subscriptions for DISH Network programming. The three Mediacom accounts arc registered to Michael Coutu, Account # 909111859051;
  • 18. Case 1:04-cv-00143-W^_S Document 20-15 -> Page 1S^of 37 Johnny Duran, Account #909111554585; and Jodi Walker, Account #909111859143,4, The copies of checks in Exhibit "A" are kept in the ordinary course of business at EchoStars headquarters in Englewood, Colorado. Pursuant to the requirements of 28 U.S.C, § 1746,1 declare under penalty ofpeijury that the foregoing is true and correct.Executed in the United States on ^2_ i . iMVAAA. "(? JL „ Shannon Picchione
  • 19. Case 1:04-cv-Q0143-WLS Document 20-15 Page 19 of 37 " EXHIBIT A
  • 20. Case 1:04-cV"00143-WJ^S Document 20-15 --> Page 20%of 37 5 qo^l i ^ ^ 0 5 ffUcVv*G CoirVu. fw«» 0^27^9 MEOMGOM COMMUNICATIONS CORPORATfQN •v « im < «M H «wwcr ann * Mi C T Wt W r H ML UM . lU An M K r ^ NU rMI VH»» KI PAY PT AE AM1B.20M 121.91 «• T E T 03HT M 8*100 D LA S WNY O OL R :iosofi VfMnWHMAVt- MA T . J 3WW014 t HA A < t*Di|Tsq«* i;03HQOi&7«; h o i s i m low oooooosa*?*/ CttW( ^ „ 8£§BI 032*36 ,p,w M O C W O W U l A l m C R O A K c M ] M^ £ u <JAU E AO O M N T O O O P R T M K «U J A y A lt , * fflUMHW 4M MM CX WI i PY A TWBttY WNB AK>ttrtOODOLLWl* O R Dx ^lM H( H POi0X10W3 t hft C f AARttUW AL NA C KBM-9013 TA T , A U ) £ m u m P O S S U M i:D3UOD36?t; fciOlEb^tf? sow C/^taoOdQH^W Msc nHft/e MD C M C M U C U M C W H T N E t O O M WA O S O O A t A t O ""wXhST1"- 03124 6 H MB MPTCmo f Wmi M AIS a P t tW ma Et tW JT pwi •imtuhT Wit PY A F«bfltory 10,2004 i?3,*9 T Yf Y NWE/V0 * W POlLAftS V pT WJ *£P DMfoMttfc t n KflbArnitHGAtt nvvniNS POBGtflWU A U T , O 3034*59** T NA A «jls 222% .;03 4i00?i7; t i o u v m r 8QW OOOODfWW
  • 21. Case 1:04-cv-G0143-V(LS Document 20-15 --> Page 2.1^of 37 QOQ/ u % § Q O S | Cot^Vu. QA nMUtlOl«|M WK Ma UM 030X98 MEDUOOM COMMUNICATIONS CORPORATION wimnM wp m i T Ww s , t w nK W i r tw*on mm S s r wis FAY Jpnylrf 1, S Q C4 120.49 " " TWffNTY NfNS ANDfl«1MOTUARB Rill OSHNtfiWCftK PCBO^itjsteo raBiFTCKMDAVi A A T t A K»M«N U NA O ZZ ••OIDIW uD3itcn;6?>i B a o i s c m i s0*>* oooadaqsq/ CMt MEDMCOM C0MMW««ATtQN9 ©pfiPQItAiriOH C «MW T CVWI *M Sabm H fW MMr IE W . . lM K W C T 02SG43 W MTH taw Jf»0 wur^HfWrtftfiflAetttrttt mpMHWMU IMC» raft) J H eM M M liww MS «Uf «*»*«.£ «tf* Mty tkt 8,4068 m,S« 1 TOSKTVNIHeWO MflQO POUAR* ionic «m*r DS Ni W t i I H fT Oo v » r E M A* g A7 K B r 01 POWKiwim A W &A U T6 *•0*161,311* «ra3UOOEB7»; 610 IS 1Hit** ^DOOOOOI^fl^ Payment Coupon Wdml Coatu .AaSL&&&2iiifi3£2£L Q »^Clii»i5kher«fqrAUt«ni»tteP«ywvafttJ Chang* o f u d d t a t e Infwitistlon, N w Hare Phww! ( ) o - fited: «. ^intf^toi$^fyew<^diw^wwpir»«. Cllf 5hla. ZflQade; • *£HeeK h s r s If you d o not want bQlfng Mitmaeriti ctntfatti«rc«n.%/i M*Jw Check Payafta Ttf Balance Due: fzass ^ PftWijont Du« Da to; gwiw. lmtErtcfc^d; Art» A U Wt %tt4*8fe» TV f MsswnwiswsiOQowft
  • 22. Case 1:04-cv-Q0143-WLS Document 20-15 Page 22 of 37 9a CouArU. crtAte $mkr 087030 MtOlACOM COMMUNICATIONS C0SPORATION "mmssstisr mwexSLte ihdi W£FWem,n. W# « QT A1 MY Ot W i,iow co f 129,99 1 mNlYMNfi A ) M/W O t A S M CL R nT t JU •"P1. ,DI»H NV Q K SVR t »OWKKWW A L N A C 30«B-5J53. TA T . A •rOifflJO* «05HQ0ifS7»} £30t9iqqtii ~504P ^00000w «ww CE HR 02T187 U6DIACOM COMMUWCATKMtt CCflPOHATON tmt nwMtm M C U K . N MA MU , A U El t tMnnw g n nM r io»wir K u s Or ejutt row •xHwr MH PY A }«M9- «"* T E T NW A D S r G D U -$ WNY 1 E N St O O A^ TOWS ojsh network pwj« (HUH <* PO B X 1081(9 O m A I N A A IW4M1W TA T .C •*osn57P t:aaiioo2&7t; £ 1 0 1 5 1 50qf rttteooGSMW U WSE V C ul KAlUUKCTdM MK . x tW WT street . A i Ml *£&* 026424 MD O M C M U I AI N C RO A I N E t O vWmpiftMimKMMrueagirr P R TO A O M NC TO S O ( fiULr4MKE,rtatsa M > / U 6 M n& i W AC H« K M t!JT» PY A AusiHttt.W# 1 »WS 2 5 T E T W * A D A/0 c U A WNY W N 9 Q O A d 1 W I W BBI" O N NT O K C EW R " poooxtotttra A L N A €A »U04f«9 TA T . ^D56i»5M- i;oniOO?fi?t; fc3Di51Wi /OOQOQSmW
  • 23. Case 1;04-cv-00143-WLS Document 20-15 --> Page 23 ot 37 ) / 9 0 9 ] J | 5 f e Johnny. Aeet« a a i l i n <5^588 Q • O f w c k how for Automatic Poyrnaml Change of *4<ir«as tnfarmitfon. 1 rdo«j(in(^AJiinwthibid((Uo^tU3p<)rnwiTco^». < Hiw H r ® Phong { on ) S,. S«4MWinMn<hiran«ntKim(i9(^WL - f f l m r i " - - •- * Wrf^bfbwnftpMRtfttntUafy: A ^mioli^lteifldstalfytiufciTJdiwowKwphj, - CHyj Stale:. Zip Ctrf»: • VChfpR her* If you do not w a n t WHlflfi MftWowiU u f t t Irt t h t mall, Obo: Mflka check PayaW* To: * 6 1 162 28.99 Ou* AawwmErtckftttfc A^NTA^ MWS 1 J G iJMltiinflnUJtiliiMwtlMkiMiJtuMttiiU t .uAfllffi 6B5SSDI}lll5bllJflt.00D£Wi « ^S .^uwag 5I S Johnny Dunn Q »*Gfi«ck h«r» f o r Aiitomstfp PtyvneMf Churtflf cf«ddr*u Infonaqflon. & 8^hlM»nenmp)y«H(itMyMi*nm)Vaflu|l New H«nt P h e w i J_%- StC Uw C2)r .ettte. zipr^ss:. • ^Check hcr« H you 4q sot wut MilitH t u t e n w i r t * s e n t In tlie m a n . Due; Makv ChwJt Paysbfo To: mantDue: Brwtased: . .,t^iH 6cSSiqJM>SbMSafa5D0e^fJl oou sgL MIiM O tB U t t A H W Q2&572 H 3lW Dkm WM M M MW H WU fT U TME I S U « MEDIACOU COMMUNJCXTWHS CORPORATION K u n pwtMwtwpn-jceawy pmw W M Q**H»N f MO O P*jji MTI HS MM L B r W S I w UA W A i M 6WM&tt.A4G« MOT tKf • T S T NN At sacioo D L A S WMY t R rO OL R tSrt* OlSrt NT O K w EW R P 0 P X 1«1*9 O A7UMrQA aOS4*-H« •6c4 4A ••nE6S?J»* tJO 31100ZfiYil ftiOlSt<ftl2 50^* /OQpQDO#qi?V
  • 24. Case 1:04-cv-00143-VVLS Document 20-15 -> Page 24^of 37 Wtl |56 johnny ouran Atttip 1238 40811 1564H6 OAutgmitlc Plymcrrt, (facft w AMOUNT DUE; S&.H tfwrm ACT# m4 tWHtmUbfrnMl* HI tor mpwte** ( Ucs W fi. Payment Duo: 03/3M94 • -WfWlWWfflKW wWTVMASNMiHCtwni/ too# n < nA u n Mt M. H Amount Stttlcsedv % z M —H , C^»W3WfW*»rt9njM to Km Serf Pay your bill ottiinv *t M i f c s C h e c k Ffl)rabfe To; d!ifin«(>vurfc.c(Nn tniHNfiTmw; Of MLMKWfftt 00 your TV on ATLANTA 8A M W 4 0 i a DISH Home ctaitnd t o n . Mjttf U i if II lilt tl li rtr lit fiftt M ifllUl J[ 11 idil I f] ilif*i 1 62fis(io«iii^5tM5flbaQa5imi w» WMMft 931867 U A MX S, MS9IACOM OOMMWflCATtONS GQPFORATttff «ir-" SATE PAT F«breny 85,2004 »2M9 TV/SNTT NINE /iNO Otf tt» J?QLLA«S O^R DttiNiwrt vmirmww* f>9 B r 195013 Qf A UK A A l SM48-9013 TiT. A wmrnm VCU5&?* saavwoesn: &aoisi*is^ s a i * B O D G Payment Coupon J o h n n y Duma, Apct#qff«8& 811 iSMSSt Q rthtek here for Automatic Ptymthtf Changs of Address biAmnatfsa v p i Wfcifwwfcflwnfc»taritilfr d W> pmnwrt bbwpsw, NewHtflfrPhwe:!. J . i, Sn*«fc I fevfetoMiiiJft^fufcnafety OjrL . State:. f ~ 1 KOhscfc h w H y « u d o r o t w a n t bifltng »t»wwt*il* i«nt influ*mrf. Jn^OUK Mxk» CtoeR Pty«N« T6: tDi» Date: IO S ?A CA W3<*4fH Etatfindwd: i 4^L * esSfJHUlSktfftbOltoiftHl
  • 25. Case 1:04-cv-00143-WLS Document 20-15: •—> Page of 37 ) f ujrUW-r. q o q | i w q4 3 "^vtnrsy f MiWMy AccWKMgQ a n ta681<3 • •Chtex b«rc tor AutoMau# Ptymentf ChMfttt «P address InfonriatiQfl. 1. WMtommfteTvtrtMoimmwtnleotpvi, Nf^Honjo Phone; { *T l_SKdk&mbiwtwttfflfaitW>ai*i. •8^—fc- i ftixMvibtlkrtlbc^utaittBfe. i. vWn^taltovMMIIyourttfTighM^icrcvirM. Coir. - Zip r } KtftscK n«r« IV you do net wit# toffllng etfltcmc nt» sent in uio moil. Balance Du« MaJt* Oheok Payable To; Psymtml Due; AL NA iSAJttW-J 1 TA T W I..I!inji.Till.J«IUi«.f.[o.,l]Ji.(4L,.t}..!.|4,4J,J CZ5S ASsswLmsqmsooflawii JadiWalkw j^tgqfisaofl-f-t taSsua Q ifChtCK h«o» for Automate Paywentl Gltipgt of addiass tnfomutlon. 1. coupon. N w H«n« P f w e ; (___), t- ^V)teiwndrtp«ir^ttj^nQCiittrwjutt9/2.=-/ oS> ft"—* City:. ,3Wk* £pcod«. n fi«r*tfyou do not w«ot btJUng ttataroents s e n t tn t h e mall. Mato Cfrrefc FW&to To; Payment ftto jmouS^Endocod: 3034*-«l69 asss^aiwasqi^aDaaawi Cl X fK DZ67Q4 flfflPlACOM COMUtfNfOATfONS CORPORATION C * K t fT ( M U& N M H« M M M K S J M n H iL l , I HTB Mf M QO C i O t wm -vBoammr we vxfmtax.ri.xm HTt PY A Aiiavrt22.Z003 1HS9 T C t t«HB A4 e^lOO O U At WN Y ?p OLf S Q H 5W K H H7 O K vote PY AS POBOXtt$lW ATLANTA, OA 3W49-51W u i« i*0?B7OU* p;a3UOOn?i! bsoisi* SOT*1 /oaoaoaitw
  • 26. Case 1 -.04-cv-00143-WLS Document 20-15 -> Page 2^ of 37 CjOAVAi^ § job WAutEH • Pwateii CMVtflHflWMttfftfKW AMOUNT DUE; S2B.98 • C *rc < to-fWMmwcif M ifm P « y m s n t Duo; 03/2//0 4 • WyW T tnfittRMuw V r&«4(Aflbwr«ftftfwii Chlfllt ot udnn. Amount £nelo»«d; 9 It 5 / 3 - n / ^ t»**NM ehwgn OtMSwfCtob Pay y<Wr bill 4tdin« «t Mak«ChwhP4yiibteT»: diihnctwork.com or 01SH NETWORK P A BOX 1WBI5 0r» your T wi V ATLANTA OA WW-5015 dish Hom<ichannel too. InlMlifiulJitlnlLJitLIilliuiutIitlLf}|IkJlJ>(itl fi355^(milftS<|ltt3C0OSWU wm cs^Ct W* WM 7 ( W W A *W 1 TM U R . W , tOJKH 031402 USOtACOM COMUUNlCAttON$ CORPORATION wro«wtwwniitWiff<<oawK IMS W T M A 0 A 1 M H A U B OW Q Va t iMAflKntiw r rannw e wntn tSiJWli v oa i M wC r Q •mf W CC **» E 2I . V PATEa / a t / i bH w efltnu3iyli.IQW "•tvmfTV ttws A D wn W O W R N O AS nnc «5« Dsh 9 imtnwiiiAii KB X C 1 J G 1 W3 ATLANTA, 8A SOMWMi "•osfcutji** «;D5iioo«6?t; n o i s i s * w so** ^•aoouaz^R^ P8YmgntcoMRPf>, Jdtfl Walfew AeaM 8MB flO P1< 1B58113 Q r ^ n t c * h e n far Automatic p«ym»nt! W a n g * or o t r a r » « tnfqrmatfoit, N w Honerone:(, » -)- t nadir «o« Sb«t i iwMitt&MifltofWtoimibityt Cty, .SfcUi. 4. ^ r o t f c ^ t t i t p t o g w c i r i t t a g c x M c i p i r a . n v ^ b t c k h e n It you A n o t m i n t ZtdCodK. fatUbig i t p t in t h e mail* Mato Cfa»rt P«yrtte To; BeJoirc* 0u«; I*m* » ^g^gDu#Dot»: ft ATUJfiX OA Amount Enefcnati; JLJ. j m m ItlltlffItHtj Jl jttttlttf I Iflllll# W llll ABSSWUMffUilSOODaini
  • 27. Case 1:04-cv-00143-WLS Document 20-15 -> Page 27 of 37 EXHIBIT B
  • 28. Case 1:04-cv-GG143-WLS Document 20-15 --> Page 2^ of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADOCivil Action No. Q4-M-0664 (CBS)ECHOSTAR SATELLITE LJLC. t a Colorado Limited Liability Corporation Plaintiff,V,MEDIACOM COMMUNICATIONS CORPORATION, a Delaware Corporation;and MCC GEORGIA, a Delaware Corporation, d/b/a MEDIACOM; JOHN DOES1-100 Defendants. DECLARATION OF GARY PALKA1. My name is Gary Palka. I have personal knowledge of the events and facts discussed herein and they are true and correct. I am over 18 years of age, I have never been convicted of a felony, and 1 am competent in all respects to make this declaration,2. I am employed by EchoStar Satellite LLC ("EchoStar") as a Senior Operations Analyst in the DISH Network Signal Integrity division, located at 90 Inverness Circle East, Englewood, Colorado 80112.3. Attached hereto as Exhibit "B" is a true and correct copy of EchoStar Satellite, LLCs Residential Customer Agreement (RCA). The RCA is kept by EchoStar in the ordinary course of business and is published via EchoStars website, http://www.dishnetwork.com.
  • 29. Case 1 ;04-cv-Q0143-WLS Document 20-15 -> Page 2^ of 37 f4.. While conducting my investigation, in CoIorado> to determine whether Mediacomhad any subscriber accounts with DISH Network, I reviewed the website http://mbc-databank.com. This website was entitled Media Business Corp, (MBC). MBC is theonline and real-time source of business and industry intelligence within the cabletelevision industry. Cable operators and the vendors that support their business have aresource to gather strategic and tactical information for sales and product development,5. I conducted a search for Mediacom in Georgia on MBC and was taken to a pagecontaining the contacts, names and titles of Mediacom employees. These individualsincluded: General Manager, Jim Walker; Chief Technician, John Duran; MarketingManager, Dan Carleton; and Office Manager Annie Dennard.6. I then performed a search of these names in the EchoStar database of subscribers.I found a subscriber account for Johnny Duran. I then performed searches on the accountinformation including phone number, physical address and mailing address.7. The report I received on the mailing address found two more DISH Networkaccounts with the same mailing address as Johnny Duran. Those two customers wereMichael Coutu and Jodi Walker. AH three of these accounts had identical mailingaddresses, and the physical addresses were all on the same street in Cleveland, Georgia.8. After I obtained the information regarding Mediacom employees having DISHNetwork accounts, I then investigated the website http://www,oablevellpwi)ages.coin, Onthis website I found the Mediacom post office box that was the common address for John
  • 30. Case 1 ;G4-cv-G0143-V^LS Document 20-15 -> Page 3^ of 37Duran, Michael Coutu and Jodi Walker. The website listed the address as belonging toMediacom. P.O. Box 1707, 509 Flint Avenue, Albany, Georgia 31702-1707.9. I also conducted a subsequent investigation of the above mentioned Mediacomsubscriber accounts. After EchoStar filed its lawsuit against Mediacom on April 5, 2004,I returned to the EchoStar database to learn that all three accounts had been disconnected:Jodi Walkers account was disconnected in April 22, 2004; Johnny Duran and MichaelCoutu disconnected their subscriber accounts on April 28, 2004.Pursuant to the requirements of 28 U.S.C. § 1746,1 declare under penalty of perjury thatthe foregoing is true and correct.Executed in the United States on "Jung. . Gary Palka
  • 31. Case 1 ;04-cv-QQ143-Y^LS Document 20-15 -> Page 3^ of 37 EXHIBIT B
  • 32. 1 UiU Page 3 ^ of 37 IfsallntfieM home ( lacote a retailor | en ^spaftql | About I GET DISH I RRBBUCIS I CUSTOMER CARE RESIDENTIAL, c u s t o m e r a g r e e m e n t Effective as of September 1, 2001 until replaced. THIS DOCUMENT DESCRIBES THE TERMS AND CONDmONS UNDER WHICH PISH NETWORK WILL PROVIDE U S SERVICE TO YOU. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE NOTIFY US IMMEDIATELY AND WE WILL CANCEL YOUR SERVICE. IF YOU ARE A NEW DISH NETWORK CUSTOMER, YOUR ACTIVATION OF A DISH NETWORK ACCOUNT AND RECEIPT OF DISH NETWORK SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS AND CONDITIONS YfiU. BE LEGALLY BINDING UPON YOU. IF YOU ARE AN EXISTING DISH NETWORK CUSTOMER, YOUR CONTINUED RECEIPT OF DISH NETWORK SERVICES FOLLOWING RECEIPT OR PUBLICATION BY DISH NETWORK ON ITS WEB SITE OF TWJS AGREEMENT SHALL CONSTITUTE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS, AND, ACCORDINGLY, THEY WILL BE LEGALLY BINDING ON YOU. Thank you for choosing DISH Network for your television service provider. DISH Network Is happy to answer any questions you m a y have and to provide you with technical ond other customer support through the following toll-free number and email address: 1-S00-333-DISH fBBdbddkd«chc>9tBr.com or you may write to: PISH Network Customer Service Center P.O. b o x 9 3 5 7 7 NOrthgleJIn, CO 8 0 2 3 3 and, for oeneral knowledge, try our website at w w w . d i s h n e t w o r k . c o m . "Di5H Network" is a trademark of EchoStar Satellite Corporation. 1. THE DISH NETWORK SERVICE A. Services Defined. DISH Network offers a wide variety of video and audio programming and other services and we are constantly striving to add new services to our lineup. For purposes of this Agreement the term "Services" shall mean the programming available on DISH Network (whether subscription based or pay per view based) and any other services that we may provide to consumer? either now or in the future. For purposes of this Agreement the t e r m s "You" or "Your" refer to you, the DISH Network subscriber, B. Programming Changes. Except as otherwise s e t forth In this Agreement, you may change your programming selection at any time by notifying us* A fee may apply to such changes (Change of Service Fee), In addition/ you may be charged a fas (Service Access Fee) if you fail to subscribe to o r e of DISH Networks basic programming packages which Include Americas Top 50, Americas Top 100/CD r Americas Top i 5 0 r DISH Latino or DISH Latino Dos. C. Programming Availability. Certain Services transmitted by us, Including but nothttp; //www.diahnetwork.cc^/contcnt/aboutus/RC A/iiidcx.shtml 6/22/2004
  • 33. - Gase-1:04scv^0+43-WbS4"D,<wcmTerit 20-15 -> Page 33 of 37 r a^CJ 4, *71 V limited to s o m e subscription Services, sporting events and broadcast network Services, may be blacked out In / o u r a r e a of reception. If you circumvent o r a t t e m p t to circumvent any of t h e s e blackouts, you may be subject to legal action, You m u s t be a t least IB years of age, or the applicable a g e of majority where you reside. In order to receive adult-ortented programming services. D. Ordering Pay Per View. You may order 01SH Network pay-per-view Services by using your on-screen Program Guide and r e m o t e control unit to select the movies and other events w e offer. To order DISH Network pay-per-view Services, your DISH Network PBS digital receiver must be connected to a telephone outlet. You may also order DISH Network special events and pay-p«r-vl«w Services over t h e telephone by calling t h e Customer Service Center or by using our a u t o m a t e d s y s t e m through t h e following toll-free number; i-877-MSH-PPV {347-4778) for ordering movies A small fee Will apply fOr use of t h e a u t o m a t e d system (Pay-Per-View Automated Fee) or t h e Customer Service Center (Pay-Per-View Fee), E. Private ViewlnQ. DISH Network provides Services t o you for your private home viewing, u s e and enjoyment. You agree t h a t t h e Services provided will not be viewed outside of your private residence. YOU a r e permitted t o exhibit t h e Services solely In your private residence and not In any other a r e a s . T h e Services m a y not be rebroadcast, transmitted, recorded or performed, nor may admission be charged for listening to or viewing any Services provided by us. If we later determine t h a t you Utilised your DISH Network Equipment (including any additional DISH Network receivers) or sold, leased or otherwise gave possession of t h e s a m e to a third party who you knew or reasonably should h a v e known intended t o use It to permit the viewing of the Services In a commercial establishment or any o t h e r area open to t h e public, we may terminate t h e Services and In addition to all other applicable fees, you a g r e e to pay us t h e difference between t h e price actually paid for t h e Services and t h e fall commercial rate for such Services, regardless of w h e t h e r we h a v e or had t h e commercial rights to such Services. The p a y m e n t of that a m o u n t a n d / o r the termination of Services shall n o t prejudice our ability to exercise a n y other rights and r e m e d i e s we may have u n d e r this Agreement, at law, in equity, or otherwise, F. Additional Receivers. To independently tune additional televisions within your home, a s e p a r a t e DISH Network receiver is required for each television. DISH Network. WIN allow you to place up t o five additional receivers on your account. Each additional receiver would be authorized to receive the s a m e s e r v i c e s as your Initial receiver, DISH network will charge you a reduced monthly fee (Additional Receiver Authorization Fee) for each additional receiver a d d e d to your account. This option Is only available if your initial DISH Network receiver and all additional receiver^) a r e located at t h e s a m e residence a n d a r e continuously connected t o t h e s a m e telephone line. If you desire to receive Services a t two different locations, you m u s t open a s e p a r a t e account for each location. You a g r e e t h a t you will not directly or Indirectly u s e a single account for t h e purpose of authorizing Services for multiple DISH Network receivers t h a t a r e not all located In t h e s a m e residence and connected to t h e s a m e phone line. If we later determine t h a t you did, we may t e r m i n a t e your Services and, in addition t o all o t h e r applicable f e e s , you a g r e e to pay us t h e difference between t h e a m o u n t s actually received by us and t h e full retail price for t h e Services authorized for each DISH Network DBS receiver on t h e account, w h e t h e r owned by you or not. The p a y m e n t of that a m o u n t and/or t h e termination of Services shall not prejudice o u r ability to exercise any other rights and remedies we m a y h a v e under this Agreement, at low, In equity, or otherwise. <5. Changes in Services offered. DISH Network reserves t h e right to c h a n g e the Services that we offer, and our prices or fees related to such Services at any time. If t h e change affects you, we will provide you notice of t h e change and its effective date. The notice may be provided on your billing s t a t e m e n t or by o t h e r communication permitted under Section 9B. In t h e e v e n t of a change In t h e contents of any programming, programming packages or other Services, you understand e n d aflree that we h a v e no obligation to replace or supplement t h e programming, programming packages or other Services previously offered that have (Teen deleted, rearranged or otherwise changed, You f u r t h e r understand a n d agree you will not be entitled t o any refund b e c a u s e of a change In t h e contents of any programming, programming packages, or o t h e r Services previously offered. H, Multi-Month Subscriptions. For multi-month subscriptions, you m a y downgrade t h e Services only a t t h e time of renewal. You m a y not downgrade t h e Services during t h e term of t h e multi-month subscription.http://www.dishiieiwork.com/content/aboutus/RCA/index.shtml <5/22/2004
  • 34. Case 1.04-CV-QQ143-WtS Document 20-15 --> Page,34 of 37 J. u ^ v % VI U / 1 / X. BILLING POLICIES AND PAYMENTS FOR SERVICES A. You agree to pay a I! amounts billed for Services and to pay all taxes, fees and other charges, If any, which are now or may in t h e future be assessed on the Services you receive from us. Unless you prepay for a multi-month subscription t o Services, we will bill you each month, In advahce, for Services ordered by you or anyone who uses your DISH Network Equipment, whether with or without your permission, until you cancel the services. The bills you receive will show the total amount due, the payment dge date, payments, credits, purchases and other charges to your account. B, You agree to pay us In full monthly by the payment due date for the Services and for any other charges due us f Including any f e e s set forth In this Section 1. Payment of your bill after the due date will result in you paying us a Late payment Fee. Other fees and charges may also be assessed. If partial payments are made, they will be applied first to the oldest outstanding bill. If you send checks or money orders marked "payment in full," we can accept them without losing any of our rights to collect any Other amounts owed by you, notwithstanding your characterization of the payment. DISH Network does not extend credit to our customers, and the Late Payment Pee is not interest, a credit service charoe or a finance charge. You understand and agree that in the case of late payment or nonpayment for any Services ordered by you or for any of the charges stated below, we may report such late payment or nonpayment to credit reporting agencies. If you do not pay your bill by t h e due date, we have the right to disconnect your Services at any time thereafter, in our sole discretion. DISH Network may require you to pay alt past due charges, a Reconnect Fee, a deposit equal to a minimum of one months advance charges and all outstanding balances accrued through the date of deactivation, before we reconnect yout- services. Deposits will not bo held segregated from other funds and shall not earn or accrue interest. C. If you at any time fall, neglect, or refuse to make timely payments hereunder, or if a petition in bankruptcy shall be filed on your behalf or against you, or If you take advantage of any insolvency law or become insolvent or make an assignment for the benefit of creditors, or if a receiver, liquidator, or trustee is appointed for your property or affairs, we shell be wholly relieved from our obligations hereunder. C>. If yau paid for On annual or other multi-month subscription to any Services and your account Is past due for any amounts owed to us, at our option we may suspend a n y or all Service until payment is received, a n d / a r convert your annual or other multHnonth subscription to a monthly subscription. If we convert your multi-month subscription to a monthly subscription, we will first apply the amount yog paid for your multi-month subscription to any past due amounts and then any remaining a m o u n t s to future obligations. If we elect to offset the amount paid Tor the remaining portion of a multi-month subscription against amounts past due, you a g r e e to pay, in addition to all other applicable fees, t h e Offset Fee set forth below for each month and partial month that the multi-month subscription was previously received. E. If We Use a collection agtricy or attorney to collect money you owe US or to assert any other right which we may have against you, you agree to pay the reasonable costs of collection or other action. These costs m l j h t include, but »re not limited to, t h e costs of a collection agency, reasonable attorneys fees and court costs. If there a r e billing errors or other requests for credit, you can contact our Customer Service Center by telephone or in writing. You m u s t contact us within sixty (60) days of t h e time yew receive t h e billing statement for which you are seeking corrections. Failure to timely notify us of a dispute shall constitute acceptance of t h e bill. Undisputed portions of t h e billing statement m u s t be paid before t h e next biding s t a t e m e n t ts Issued to avoid an administrative fee for late payment. All payments for Services must be made directly by you to us. DISH Network shall have no obligation to provide Services for which payment is m a d e by you to a third party. F. In addition to the amounts due for Services, you agree to pay the fees referenced below ("Fees") when applicable. DISH Network reserves the right to Increase these Fees or add additional Foes In t h e future, in our sole discretion. Smart Card Replacement Fee $5Q.QQ Additional Receiver Authorization Fee (monthly, per receiver) $4.99 Late Payment Fee $5.00 Change of Service Pee 45.00 Duplicate Billing Statement Fee $2.00 Overnight Delivery Fee $18.00http://w^.dishnetworkTCQE^ 6/22/2004
  • 35. Case 1:04-cv-00143-WLS Document 20-15 --> Page 35 of 37 ) ) Restart Fee $ 2 5 . 0 0 Returned Payment f e e $25.00 Service Access Fee (monthly) $S.Q0 Offset Fee $ 2 . 0 0 Ledger Request Fee $5.00 Pay-Per-View Automated Fee $5,00 Pay-Per-View Fee $ 5 , 0 0 3. CANCELLATION OF SERVICE A. Your Service will continue until cancelled a s provided for herein. Your subscription will be automatically renewed unless you contact uS to cancel as provided for in the next paragraph, B. You have the right to cancel your Service for any reason at any time by notifying us via telephone or in writing a t the phone n u m b e r or address s e t forth on page l , above. Please be a w a r e that certain promotional offers have a minimum subscription c o m m i t m e n t (usually 12 months) and If you cancel your service prior to t h e expiration of t h a t c o m m i t m e n t , certain early termination fees may apply c . DISH Network h a s t h e right to terminate your Services at any time without providing notice to you If: (1) you fall to pay your bill when ft Is d u e ; (li) we receive confirmation that you have received t h e Services, Or any part of t h e Services without paying for t h e m ; or (in) you otherwise violate t h e t e r m s of this Agreement. D. If your Service j$ cancelled for any reason, yog a r e still responsible for payment of alf outstanding balances accrued, Including a n y applicable Fees, E. You understand that c h a r g e s tor Services* once charged to your account, are nonrefundable. For monthly subscription?/ t h e cancellation will be effective at the e n d of the period covered by the last monthly bill. No refunds or credits will be provided in connection with t h e cancellation of monthly subscriptions. For annual or Other multi-month subscriptions, t h e cancellation will be effective a s of t h e d a t a t h e multi-month subscription expires. Because you a r e receiving a discounted price in e x c h a n o e f o r your a g r e e m e n t t o pay for your services on a n annual or o t h e r multi- m o n t h basis, in t h e e v e n t you cancel t h e Services prior t o expiration of your mufti- month subscription, you understand and a g r e e t h a t you are not entitled to any refund or credit for t h e unused portions of t h e multi-month subscription and t h a t we have t h e right to retain any prepaid monies »s liquidated d a m a g e s . 4 . EQUIPMENT A, in order t o receive t h e Services it will be necessary for you to p u r c h a s e o r lease certain reception equipment consisting primarily of a DISH Network compatible satellite receiver, a satellite a n t e n n a , LN&f unit a n d remote control ("Equipment*). You will also be provided with a condition*! access card ( S m a r t Card*) that Is inserted Into your satellite receiver. The S m a r t Card remains t h e property of EchoStar Communications Corporation, t h e corporate parent of DISH Network and a n y tampering or other unauthorized modification to the S m a r t C a r t is strtctty prohibited and m a y result in, a n d subject you to, legal action. You a g r e e to return t h e S m a r t Card to us upon request. B. S m a r t c a r d s are nontransferable. Your Smart Card will only work In the DISH Network receiver to which It w a s assigned by DISH Network. If you report to t h e Customer service c e n t e r t h a t your s m a r t Card w a s lost, d a m a g e d , defective or Stolen we will replace It, a s long a s t h e r e Is no evidence of unauthorized tamperino or modification. A replacement f e e will apply. In addition, In order t o minimize downtime for your Equipment, DISH Network will, upon your request, deliver a replacement S m a r t Card to you via overnight delivery. Our overnight Delivery f e e wiH apply. C. DISH Network reserves t h e right to alter software In your D]SH Network receiver, and provide content to PVR products, through periodic downloads, DISH Network w||{ u s e commercially reasonable efforts to schedule t h e s e downleads In a m a n n e r t h a t result In t h e least a m o u n t of Interference with or Interruption to your Service.http: //wwvy .dishnetwork .corn/content/ aboutus/RC A/index, shtml 6/22/2004
  • 36. C a s e 1:04-cv-00143-WLS Document 20-15 -> P a g e ^6 of 3 7 j . Tour DISH Network receiver contains certain c^.,.ponents and s o f t w a r e which a r e proprietary to DISH Network. You a g r e e t h a t you will not try to reverse-engineer, decompile or disassemble a n y s o f t w a r e or herd Weis Contained within your receiver or our S m a r t card. Such aetlorts a r e strictly prohibited and m a y result in t h e termination of your services a n d / o r legal action. E. For proper operation of your Equipment, DlSH Network requires t h a t you connect each DISH Network receiver on your account to a telephone line. For accounts containing multiple receivers, each receiver m u s t be c o n n e c t e d to t h e s a m e telephone line. F. If your DISH Network Equipment is stolen or otherwise removed from your premises without your authorization, you m u s t notify o u r c u s t o m e r Service Center immediately, but In any e v e n t not more than t h r e e (3) business days after such removal to avoid liability for payment for unauthorized u s e of the DISH Network Equipment. You will not be liable for unauthorized use a f t e r we h a v e received your timely notification. 5. LEASED EQUIPMENT A. If you decide to lease your Equipment from DISH Network, such Equipment shall at ail t i m e s remain t h e sole and exclusive property of DISH Network and we will h a v e t h e right, at our discretion,.to replace it with new or reconditioned equipment a n d to remove t h e equipment upon termination or Services. None of t h e e q u i p m e n t shall be d e e m e d fixtures or part of yogr reaHy, Ovr ownership of the e q u i p m e n t m a y be displayed by notice contained on t h e equipment. You shall have no right t o pledge, sell, m o r t g a g e , give away or remove, relocate, alter or t a m p e r with t h e equipment (or any notice of our ownership t h e r e o n ) at a n y time. Any reinstallation, return of or change in location of t h e equipment shall be p e r f o r m e d by us a t t h e service rates in effect a t t h e time of service. You shall not attach any electrical or other devices to or otherwise alter t h e e q u i p m e n t without our prior written consent. DISH Network shall h a v e t h e right t o m a k e such filings a s zr<» necessary t o evidence o u r ownership rights in the equipment, and you a g r e e to execute a n y and ail d o c u m e n t s a s are nec**±ary for us to make such filings. Upon termination of Services, you m u s t notify our Customer Service Center to schedule t h e return t h e Equipment, You shall notify us promptly of any defect m, d a m a g e to, or accident involving t h e equipment. AH maintenance and repair of the equipment shall be performed by u s or our designees. DISH Network m a y charge you for any repairs that are necessitated by any d a m a g e to, or misuse of, t h e Equipment. 6 , TRANSFER OF ACCOUNT, SERVICES OR EQUIPMENT DISH Network m a y sell, assign or transfer your account to a third party without notte* to yaw. You m a y not assign or transfer your Services without Our written c o n s e n t which will not be unreasonably withheld. We m a y , however, r e f u s e t o allow you to assign or transfer your Services if you l e a s e your Equipment or if your account h a s an outstanding balance. 7. LIMITATION OF OUR LIABILITY A. WE WIU. NOT BE LIABLE FOR ANY INTERRUPTIONS IN SERVICE OR LIABLE FOR ANY DELAY OR FAIWRE TO PERFORM, IF SUCH DELAY OR NONPERFORMANCE ARISES IN CONNECTION WITH THE TERMINATION OF ALL OR A PORTION OF THE SERVICES, THE RELOCATION OF ALL OR A PORTION OF THE SERVICES TO DIFFERENT SATELUTTE(S), A CHANGE IN THE FEATURES AVAILABLE WITH YOUR DISH NETWORK; DBS EQUIPMENT OR ANY ACTS OF GOD, FJRE5, EARTHQUAKES, FLOODS, POWER OR TECHNICAL FAILURE, ACTS OF ANY GOVERNMENTAL BODY OR ANY OTHER CAUSE BEYOND OUR CONTROL. WE WIU. NOT BE UABLE FOR ANY DAMAGE RESULTING FROM LOSS OF RECORDED MATERIAL OR THE PREVENTION OF RECORDING DUE TO ANY FAULT, FAILURE, DEFICIENCY OR DEFECT IN SERVICES OR EQUIPMENT. WE MAKE NO WARRANTY, EITHER EXPRESSED OR IMPLIED, REGARDING THE DISH N&TWORK DBS EQUIPMENT OR ANY SERVICES FURNISHED TO YOU. ALL SUCH WARRANTIES ARE EXPRESSLY EXCLUDED. IN NO EVENT SHALL WE HAVE ANY LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTJAL DAMAGES RELATING TO THE DBS EQUIPMENT OR RESULTING FROM OUR FURNISHING OR FAILURE TO FURNISH ANY SERVICES OR EQUIPMENT TO YOU, ORhttp://www»dishnfitwork.com/content/aboutusyRCA/index.shtml 6/22/2004
  • 37. Case 1:04-cv-00143-A/LS Document 20-15 -> P a g e 3^ of 37 ROM ANY FAULT, FAILURE, DEFICIENCY OR p E t — i * IN SERVICES OR EQUIPMENT FURNISHED TO YOU, B. It is YPMr responsibility to Impose any restrictions on viewing by you, other member* of your household, or guests, and we shall have no liability to anyone due to or based on the content of any of the Services furnished to you. 8* WARNING AGAINST PIRACY !t is a violation of several U.S. federal and state laws to receive any Services, or any portion of Such Services, without paying for t h e m . The penalties for violating such laws can range from imprisonment to cNH d a m a g e awards of up to $ltO,ooO per violation. 9 . MISCELLANEOUS A. physical Address/Chanae of Address. When setting up your DISH Network account, you agree to provide us with the physical street address where the Equipment will be located. A post office box does not constitute a physical address and Is not sufficient to meat this requirement. You agree to give us prompt notice of your change of name, mailing address, physical address where the Equipment is located or telephone number. You may do this by notifying our Customer Service Center by telephone or in writing. B. Notice. If we send you notice. It will be considered given when deposited In t h e U.S. Mall; addressed to you at your billing address or hand-delivered to you. Our notice to you w||| also be effective if provided on your billing s t a t e m e n t or by telephone, if you give notice to us. It rviil be deemed given when received uy us a t the address listed on t h e first page of this Agreement. C. ApnlicahleJ-aw. This Agreement, including all matter? relating to its validity, construction, performance and enforcement, shall be governed by applicable federal law, the rules and regulations of t h e Federal Communications Commission, and t h e laws and regulations of the s t a t e and local area where Service Is provided. These terms and conditions are subject to amendment, modification or termination if required by such regulations or laws, tf any provision in this Agreement is deetared to be Illegal or n conflict with any law or regulation, that provision may dtleted or modified, without affecting the validity of t h e other provisions. P« Qthec* This document contains the entire agreement between DISH Network and you, the customer, and no salesperson, installer, customer service representative, authorized retailer, or other similarly situated individual is authorized to change t h e terms s e t forth herein, DISH Network may, however, change the terms and conditions of this Agreement In t h e future and wili notify you if that occurs. The terms of this Agreement, which either are expressly stated to survive or by their nature would logically b e expected to survive termination,, shall eontihue there«ft«- yntii fully performed. CopVrlght 2004, EchoStar Satellite L.L.C, A rights reserved. M j Residential A g r e e m e n t ! Privacy s t a t e m e n t fhttp://www.dishiietwork.com/content/aboutus/RCA/indcx.shtml 6/22/2004

×