The trio of broadcasters who are backing the upstart streaming platform Venu Sports have lost a motion to dismiss a legal challenge brought by similarly-situated sports streaming Fubo.
The decision came at the conclusion of a hearing that lasted nearly two hours on Friday, during which U.S. District Court Judge Margaret Garnett rejected a request by Fox Corporation, the Walt Disney Company and Warner Bros Discovery (WBD) to toss Fubo’s antitrust lawsuit over the streaming service. The judge similarly rejected a request by Fox to have a portion of the case moved to another judicial district.
Fubo sued the three sports broadcasters after they unveiled the formation of their Venu Sports joint venture earlier this year. The service was described as a future offering that would allow streamers to access their local Fox and ABC stations, plus sports-inclusive networks like Fox Sports 1, Fox Sports 2, TBS, TNT, Tru TV and ESPN.
Venu Sports was not designed to carry non-sports channels — no entertainment or news networks, or other channels that are available on cable and satellite platforms. The move was intended to make Venu Sports a cost-effective solution for sports fans who wanted access to premium sports like the National Football League (NFL), National Hockey League (NHL) and various college sports.
But Fubo objected to the formation of Venu Sports, saying the distribution of sports-only channels through a streaming service backed by broadcasters was very different from the terms it and other pay TV providers must agree to in order to carry premium and college-level sports.
Typically, a pay TV service like Fubo is required to carry all channels offered by a programmer — sports and non-sports networks alike — which drive up the price of the overall service for customers who pay for channels they may not want or otherwise don’t watch.
At a court hearing earlier this year, executives for Fubo said the likelihood of bankruptcy was likely if Venu Sports was allowed to launch. They posited that customers who pay over $80 per month for channels on Fubo Sports would leave for Venu Sports in droves, which was expected to cost between $40 and $50 per month.
In August, the judge overseeing Fubo’s antitrust case approved a request for a temporary injunction, which prevented Venu Sports from launching in time for the NFL’s regular season. NFL games are carried on Fox, ABC and ESPN, and are a major driver of subscription sign-ups to sports-inclusive services like Fubo.
Subsequent hearings in the case indicate that a jury trial could start as soon as next October, if both sides do not settle the matter before then.
