Federal Judge Refuses To Dismiss Class Action Suit Against Cablevision For 2010 Blackout Of FOX Channels

March 30, 2012


In re Cablevision Consumer Litigation

United States District Court for the Eastern District of New York

Civil Action No.: 10 CV 49952 (JS) (AKT)) 


            This week a Federal Court rejected the argument of cable television giant Cablevision Systems Corp. that the Fox television blackout of October 2010 was beyond its control.  In a decision dated March 28 2012, United States District Court Judge Joanna Seybert denied the motion of Cablevision Systems Corporation and CSC Holdings, LLC (collectively, “Cablevision”) to dismiss a class action suit brought on behalf of Cablevision’s five million subscribers in the New York, Pennsylvania and Connecticut broadcasting areas for a 2-week blackout of programming in October 2010.

Cablevision argued that the blackout of certain programming and networks owned by News Corporation, including WNYW (“Fox 5”), WWOR (“My9”), was the result of a failed contract negotiation with News Corp.  Therefore, Cablevision claimed, the blackout was a “force majeure,” or beyond Cablevision’s control, and Cablevision should not be held accountable.  The Court expressly rejected that argument: “The Court is largely receptive to Plaintiffs’ argument that a force majeure clause would not relieve Cablevision from having to refund a portion of Plaintiffs’ pre-paid subscription fees pursuant to Paragraph 4.”  (Emphasis in original).

In refusing to dismiss the breach of contract claim, the Court looked to Paragraph 4 of Cablevision’s Terms of Service, which states:

In any event, if there is a known program or service interruption in excess of 24 consecutive hours (or in excess of such lesser time period pursuant to state law), Cablevision, upon prompt notification of such failure or interruption, will either provide Subscriber with a pro-rata credit relating to such failure or interruption or, at its discretion, in lieu of the credit provide alternative programming during any program interruption.

In their complaint, the plaintiffs seek a refund of their monthly cable bill for the 2-week blackout.  It is alleged that the blackout came at a particularly important time, as subscribers were unable to watch the New York Giants or the Philadelphia Phillies, who were in the MLB playoffs, and were deprived of Fox’s political coverage during an important midterm election.

Judge Seybert’s opinion is a victory for consumers, who are often left without any choice of cable provider and must bear the brunt of contract negotiations, along with increased monthly fees, without any real alternative for cable television.

The Court dismissed the plaintiffs’ consumer fraud and other related claims.

The Law Office of Todd J. Krouner, in Chappaqua, New York, serves as interim co-lead and liaison counsel to the plaintiffs.  A copy of Judge Seybert’s decision is available here.  For further information, please contact Todd J. Krouner at (914) 238-5800.