Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-00607-JLK

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Filed 08/12/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-0607-JLK DOMINION VIDEO SATELLITE, INC., Plaintiff, v. ECHOSTAR SATELLITE L.L.C. f/k/a ECHOSTAR SATELLITE CORP., Defendant. ______________________________________________________________________________ DOMINION'S OPPOSITION TO ECHOSTAR'S MOTION TO VACATE SUPPLEMENTAL ARBITRATION AWARD ______________________________________________________________________________ Plaintiff Dominion Video Satellite, Inc. ("Dominion") responds to the Motion to Vacate Supplemental Arbitration Award ("Motion to Vacate") filed on July 28, 2005 by Defendant EchoStar Satellite L.L.C. f/k/a EchoStar Satellite Corp. ("EchoStar"). EchoStar has asked that this Court vacate, pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 ­ 16 (2004), the Final Order and Award on Motion for Supplemental Relief ("Supplemental Award") issued September 5, 2004 by the American Arbitration Association ("AAA"). Both parties agree that this Court has considered and rejected the arguments EchoStar advances in its Motion to Vacate and that EchoStar has filed its Motion to Vacate merely to preserve its appellate rights. Accordingly, Dominion requests that this Court deny the Motion to Vacate and enter the Supplemental Award as a judgment.

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FACTUAL BACKGROUND1 On September 10, 2004, the AAA arbitration panel ("Panel") issued its Final Award finding EchoStar in breach of certain provisions of the parties' agreement ("Agreement"), and ordering various relief, including an injunction directing EchoStar to immediately cease broadcasting two stations, Daystar and FamilyNet, and monetary damages for EchoStar's past broadcast of those stations. The Panel also retained jurisdiction for 90 days "to address matters arising from [the] award or other continuing issues, if any." Despite the Final Award's

directives, EchoStar continued to broadcast FamilyNet until September 20, 2004 and Daystar until October 21, 2004. On September 13, 2004, Dominion filed a Motion to Confirm Final Arbitration Award. EchoStar filed an Opposition to that motion, as well as a separate Motion to Vacate. EchoStar argued, inter alia, the First Amendment to the United States Constitution and principles of federal preemption permitted EchoStar to broadcast Daystar and FamilyNet and that money damages were completely barred under the Agreement. On October 20, 2004, this Court held a hearing and rejected all of EchoStar's arguments for vacating the Final Award. On October 22, this Court entered the Final Award as a judgment.2 On December 3, 2004, Dominion filed a Motion for Supplemental Relief with the Panel seeking, inter alia, additional damages for EchoStar's continued broadcast of FamilyNet and Daystar after the date of the Final Award. After briefing and a telephonic hearing, the Panel

A more complete recitation of the factual and procedural history of this case is set out in Dominion's Motion to Confirm Supplemental Arbitration Award.
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EchoStar appealed this judgment to the Tenth Circuit Court of Appeals and the appeal is currently pending.

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issued the Supplemental Award, which, inter alia, granted Dominion additional damages for EchoStar's continued broadcast of FamilyNet and Daystar. ARGUMENT The only portion of the Supplemental Award that EchoStar seeks to vacate is the damage award of $29,580 for EchoStar's continued broadcast of Daystar and FamilyNet beyond the date of the Final Award. In support, EchoStar reasserts by reference the arguments it advanced in its Motion to Vacate Final Arbitration Award -- that the First Amendment to the United States Constitution and principles of federal preemption permitted EchoStar to broadcast Daystar and FamilyNet and that money damages were completely barred under the Agreement. (See Motion to Vacate at 3.) In response, Dominion incorporates by reference the arguments it asserted in its Reply in Support of Motion to Confirm Final Award (Docket No. 100) and its Opposition to Motion to Vacate Final Award (Docket No. 101). Both parties agree that this Court previously rejected all of EchoStar's arguments in support of vacating the Final Award, including its arguments concerning the First Amendment, federal preemption and the award of monetary damages under the Agreement. Consistent with its oral ruling on October 20, 2004 (Docket No. 103) and its October 22, 2004 Judgment (Docket No. 104), this Court should deny the Motion to Vacate and enter the Supplemental Award as a judgment. CONCLUSION For the reasons stated above, Dominion requests that this Court deny EchoStar's Motion to Vacate and enter the Supplemental Award as a judgment.

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Dated: August 12, 2005 Respectfully submitted,

s/Thomas D. Leland Thomas D. Leland, Esq. Allan L. Hale, Esq. Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Tel.: (720) 904-6000 Email: [email protected] And Mark D. Colley, Esq. Holland & Knight LLP 2099 Pennsylvania Ave., N.W. Suite 100 Washington, DC 20006 Tel.: (202) 955-3000 Email: [email protected] Co-Counsel for Plaintiff Dominion Video Satellite, Inc.

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CERTIFICATE OF SERVICE I certify that on August 12, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Ross W. Wooten: [email protected] Todd A. Jansen: [email protected]

s/Thomas D. Leland Thomas D. Leland Attorney for Plaintiff Dominion Video Satellite, Inc. HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6026 Fax: (720) 904-6006 Email: [email protected]

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