TNB Night Owl — Snark Attack: OANN Sues AT&T

12 October Carp Tail (second version) Photo by Howard J.

OANN (One America News Network, also known as OAN) was removed from DirecTV and U-verse this week, much to their great annoyance. In advance of this unceremonious dumping, they filed an emergency lawsuit, which the judge thought was such an emergency he did nothing about it before said dumping.

While I’ll be quoting from some of their 36-page filing, I’m going to try to keep this post to a minimum, giving you an overview instead. That way you won’t be bored out of your minds and have to scroll through great walls of text before you get down to the comments, because we know that’s why you’re all here. 😀

You can boil down their claims into a few points:

  1. breach of contract (due to their Affiliate Agreement with AT&T not being renewed)
  2. violation of business expectancy (they assumed their business relationship with AT&T would continue)
  3. violation of the non-disclosure provision in the Affiliate Agreement
  4. violation of the non-disparagement provision in the Affiliate Agreement

This is the opening paragraph in the lawsuit:

1. This is an action to redress the unchecked influence and power that Defendants have wielded in an attempt to unlawfully destroy an independent, family-run business and impede the right of American television viewers to watch the news media channels and programs of their choice. [emphasis mine]

Herring Networks, Inc. vs. AT&T, et al, page 2

No one disputes that Americans have the right to watch news channels and programs of their choice. But that doesn’t give OAN or any other outlet the ability to demand their channel appear on every or even any cable provider’s lineup.

As for the destruction of their independent, family-run business, well… that’s kinda on OAN and the Herrings themselves, given that the channel has become nothing but an unapologetic outlet for promoting Russian propaganda. (Yes, I said it.)

Through their lawyers, the Herrings claim that they and AT&T have enjoyed a mutually beneficial relationship which the defendants are now putting at risk for no good reason, other than politics. In the words of their lawsuit:

(Defendants) have bowed to political pressure and have put their unlawful interests and the unlawful personal, political, and financial interests of their management ahead of contractual and legal obligations. Defendants have egregiously disparaged Herring, disclosed confidential contractual terms and conditions, and interfered with Herring’s reasonable expectancy of a continued business relationship with DIRECTV. Additionally, their collective conduct constitutes unlawful and unfair competition in violation of the UCL.

Herring Networks, Inc. vs. AT&T, et al, pages 2 and 3

You’re gonna love what’s coming, because we’re about to bring Dominion Voting Systems into all this…

Yes, you read that right.

One of the defendants in this case is William Kennard, who is the Chairman of the Board of Directors of AT&T. According to the lawsuit, he also serves on the Executive Board of Directors of Staple Street, which is an investment firm which purchased a majority share of Dominion a few years ago. According to the lawsuit, this all had once been documented on Staple Street’s website, but it’s all been scrubbed.

Huh. I wonder if they’ve ever heard of this thing called the Internet Wayback Machine?

Anyhoo, let’s move past that for now and onto the other charges in this lawsuit.

I’m including this, which appears in the “Factual Background” section, beginning on page 4, because it’s going to come up later:

12. Herring is an independent, family-owned media company headquartered in San Diego, California. CEO Robert Herring Sr. started the company in 2003 with his sons, Charles Herring (“Charles”) and Robert Herring Jr. (“Bobby”). Charles is the President of Herring, and Bobby is the General Manager. The Herrings own and operate two television networks that are national cable channels: AWE and OAN.

Herring Networks, Inc. vs. AT&T, et al, page 4

So the Herrings not only founded OAN and AWE, they are involved in the daily operation of them. That’s an important point to keep in mind as we move forward here.

AT&T owns 70% of DirecTV; however, DirecTV runs its company independently of AT&T. (According to AT&T spokesman Jim Greer, AT&T does “…not dictate or control programming on channels we carry,” Greer said. “Any suggestion otherwise is wrong.”) AT&T also owns Xandr, “which provides marketers with advanced advertising solutions” (IOW, they sell ads to cable channels like OAN). AT&T also own WarnerMedia, which in turn owns CNN and HBO. This is important because the breach of contract portions of the lawsuit largely have to do with Xandr, while the non-disparagement portions of the lawsuit largely have to do with CNN and HBO.

I realize this is about as interesting as those “begat” chapters in the Old Testament. Sorry about that.

To give you a taste of how involved the Herring family is in the running of OAN, here’s a highlighted quote [emphasis mine below] from the Reuters article published last October that is mentioned in this lawsuit:

On January 6, after Trump supporters broke into the U.S. Capitol, an OAN news director cautioned staff via email, “Please DO NOT say ‘Trump Supporters Storm Capitol …’ Simply call them demonstrators or protestors … DO NOT CALL IT A RIOT!!!”

A day later, Herring suggested the riot might be a false-flag operation by the leftwing Antifa movement. “We want to report all the things Antifa did yesterday. I don’t think it was Trump people but lets investigate,” he emailed OAN producers.

How AT&T Helped Build Far-Right One America News, October 6, 2021

It gets better…

The next day, Herring tweeted: “If anyone thinks we will throw the best President America has had, in my 79 years, under the bus, you are wrong. We will continue to give him honest coverage.”

His network went on to support Trump in an unusual way: OAN allowed two reporters to raise $605,000 to help fund a “private” audit of the presidential vote in Arizona, despite Republican officials’ assurances that Biden won the state. According to an OAN executive, they did so with the network’s blessing but in a private capacity.

How AT&T Helped Build Far-Right One America News, October 6, 2021

Just for the sake of corroboration of the above facts, our amazing Tiff found this tweet from Christina Bobb about her fraudit fundraising:

And another quote, describing just how incestuous and unethical OAN’s coverage of Trump and the Arizona recount was:

One of the OAN reporters, Christina Bobb, also worked part-time for the Trump recount legal team, according to a recent deposition by Trump’s then-lawyer, Rudolph Giuliani. An OAN executive confirmed the arrangement. Bobb, a lawyer and former Trump administration official, did not reply to a request for comment.

How AT&T Helped Build Far-Right One America News, October 6, 2021

I don’t know about you, but this all seems kinda unethical to me. Especially when you consider that OAN had exclusive access during the “fraudit” that was denied to other media outlets. Further, none of this behind-the-scenes pushing of false narratives which were destructive to our nation or the channel’s connection to former Trump admin officials also working with the audit was mentioned in their lawsuit. Nope, OAN just pretends that there was some unfounded political witch hunt going on, and AT&T’s (and Kennard’s) treatment of them was totally unfair and unwarranted.

And the final bit of background you need:

AT&T Services, DIRECTV, and Herring subsequently entered into an Affiliation Agreement on March 9, 2017 (“Affiliation Agreement”). Upon information and belief, AT&T Services later fully assigned the Affiliation Agreement to DIRECTV. AT&T Services, a/k/a Xandr, and Herring later entered into an Advertising Agreement on April 15, 2019 (“Advertising Agreement”).

Herring Networks vs. AT&T, et al, page 7

So let’s get to the meat and potatoes of this lawsuit, now that we have all the background out of the way.

According to this filing, “As of 2021, a substantial amount of OAN’s revenue came from the Affiliation Agreement.” This sentiment was also expressed in a previous lawsuit, where OAN lawyer Patrick Nellies said, “If Herring Networks, for instance, was to lose (the case) or not be renewed on DirecTV, the company would go out of business tomorrow,”

The stakes for OAN couldn’t be more dire, so it’s no wonder they got pretty upset when the announcement was made that DirecTV would drop them from the lineup. But weirdly in this lawsuit, OAN isn’t seeking the remedy that DirecTV return them to the lineup. Nope, they want money. Oodles and oodles of it. One billion dollars has been stated by some sources, but the filing says that the Advertising Agreement alone will cost them that much in revenue, and they’re seeking compensatory damages for the Ad Agreement as well as the Affiliate Agreement. So it’s way north of that one billion dollar figure.

If you want specifics about any of this, read the current court case. I’m just giving you the tip of the highlights.

Paragraphs 35-49 cover the Dominion lawsuit against OAN, along with Kennard’s connection to that and putting his interests in Dominion above OAN. As I already mentioned, this lawsuit kinda glosses over how OAN knew they were not being entirely honest about pushing the Big Lie, and part of promoting that lie hinged on demonizing Dominion. Keep all this in mind when we get to the non-disparagement provision of the Affiliation Agreement.

Paragraphs 50-63 are about the Reuters article and the left’s push to get AT&T/DirecTV to drop OAN.

Paragraphs 64-73 are about how DirecTV caved to public pressure and announced they’d drop OAN.

The January 14, 2022 Bloomberg News article reported that a “person familiar with the matter” told Bloomberg that the Affiliation Agreement expires in April. Supra note 10. The only reasonable conclusion is that this information came from someone at DIRECTV or AT&T because the termination date of the Affiliation Agreement was confidential and thus unknown to non-parties.

OAN’s Ridiculous Lawsuit Against AT&T, page 18

It was certainly a matter of public record in February that the agreement with AT&T’s U-Verse and OAN was set to expire in April, when AT&T published a legal notice in USA Today mentioning that fact. It hardly seems reasonable that the approximate date of the end of their current Affiliate Agreement was such a closely guarded secret that to confirm the end month of it publicly was a violation of the non-disclosure agreement, yet that’s what OAN’s arguing here.

(If you care, you can find the non-disclosure provision of the Affiliation Agreement in paragraph 69 of this lawsuit. All you legal eagles can set me straight if I got anything wrong.)

Paragraph 72 quotes the non-disparagement provision of the Affiliation Agreement. And then we take a visit to crazy-town.

In Paragraph 74, this lawsuit begins their section about violations of the non-disparagement agreement:

74. While DIRECTV was still 100 percent owned by AT&T, AT&T and AT&T Services began breaching the non-disparagement provisions in the Affiliation Agreement through CNN, which competes with OAN. On January 10, 2021, during CNN’s Reliable Sources program, CNN chief media correspondent Brian Stelter interviewed CNN media reporter Oliver Darcy, who stated, “You have corporations and people that are profiting off of lies and conspiracy theories, whether that is big tech, whether that’s Fox News, whether that’s TV providers that beam OAN and Newsmax into homes.” (Emphasis added in the lawsuit filing.) Stelter responded, “Right. This is a poisoned informational well. That is the big story here.”11

OAN vs. AT&T, pages 19-20

To accept OAN’s argument, you must also accept that CNN’s employees such as Brian Stetler were bound by an agreement they didn’t sign, that their direct employer CNN didn’t sign, and that CNN’s parent company WarnerMedia also didn’t sign, while AT&T also had no control over the content any of these individuals or companies put out on their platform. Hey, remember a couple of minutes ago, when I was talking about OAN and the Dominion lawsuit in paragraphs 35-49? And I said keep it in mind when we get to the non-disparagement provision? Well, here we are, peeps. If individuals like Brian Stetler are somehow guilty of violating the non-disparagement agreement, how are OAN and the Herrings (who signed the Affiliation Agreement with AT&T and directly control the content on their network) NOT guilty of violating that same non-disparagement agreement when it came to Dominion?


Game, set, and match, OAN.

There’s more, but this post is already long, and we just proved the lawsuit’s doomed to fail.

As always, this is an open thread. Feel free to discuss this post, the lawsuit, or absolutely anything you like. And stay snarky, my Blender peeps!

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