Suit Assails DirecTV’s HD

Sep 25, 2006  •  Post A Comment

A California attorney has filed a class-action lawsuit against DirecTV over the image quality of its high-definition channels, claiming the bandwidth-strapped satellite broadcaster is downsizing its HD package.

The suit alleges DirecTV’s hi-def channel streams have become so crunched, they no longer meet the commonly accepted definition of the term “HD” and are therefore defrauding subscribers. In other words, he claimed DirecTV’s HD isn’t really HD.

“[DirecTV] knowingly misrepresented the quality of the video in its HD Package to convince consumers to invest in their decoder box and subscribe,” the suit states.

Philip Cohen, a criminal defense attorney based in Santa Monica, originally filed the suit in 2004. DirecTV countered with a motion to force arbitration, noting a provision in its customer service agreement that prevents class-action lawsuits. But last week, a Los Angeles Superior Court judge ruled against DirecTV’s motion and allowed the suit to proceed.

If successful, the suit could deliver a financial blow to DirecTV, which has sold millions in HD equipment and services. The size of the class entitled to restitution, and therefore the amount of capital at stake, would be determined by the court should Mr. Cohen win his case. Even if unsuccessful, publicity from the suit could hurt the service’s efforts to attract and retain HD subscribers, who place a premium on picture quality.

News of the lawsuit flew under the radar until the judge’s ruling lit up HD blogs and message boards. DirecTV HD subscribers have long accused the company of selling “HD Lite,” a downsized HD stream not compatible with competitors. Hardcore HD fans on sites such as AVS Forum often post pictures of their TV screens, comparing and contrasting the quality of DirecTV versus other providers.

DirecTV has maintained it provides the highest-quality HD video, but will not state specifics regarding its bandwidth or resolution (nor will its primary competitor, EchoStar). When asked about online accusations of “HD Lite” last year, DirecTV’s Executive VP of Entertainment Eric Shanks told TelevisionWeek, “people don’t watch the backs of their TVs.”

As for the suit, a DirecTV spokesman said last week that the company is disappointed with the judge’s decision and that Mr. Cohen’s claims lack merit.

“We believe the plaintiff’s underlying claims are completely without merit because DirecTV’s high-definition service is high-quality, true HD service under accepted definitions for satellite TV,” he said. “If it were otherwise, we doubt the plaintiff would continue to subscribe to and pay for DirecTV HD programming.”

Crunching channel signals is a relatively common practice. As cable and satellite providers add more network and services, bandwidth has become scarce, and eagle-eyed consumers have griped about declining image quality.

DirecTV alone has become so constrained that to air its NFL Sunday Ticket HD package, the provider recently removed its TNT HD signal during the game to make room for the NFL stream. The company plans to launch two satellites next year to relieve its HD capacity problems.

Due to the additional costs associated with adding HD service, and HD’s inherent promise of providing a high-quality picture, Mr. Cohen’s lawsuit over his TV image quality might be the first of its kind to pass first-blush legal challenges.

“I’ve bought every possible service you can from them,” said Mr. Cohen, who described himself as “a huge DirecTV fan.” “I got two HD TiVos … the football package, the baseball package, the college football package. I’m hoping this leads to a remedy. I’m not about to get rid of DirecTV; I’ve invested a lot.”

DirecTV requires subscribers to buy proprietary equipment to view its HD signals. Until recently, its HD DVR retailed for about $800, though that price has since dropped considerably.

In Sept. 2004, Mr. Cohen claimed DirecTV lowered the resolution of its HD signal from the Advance Television Systems Committee standard of 1920×1080 lines of resolution to 1280×1080, a 33 percent drop. Furthermore, he claimed the amount of bandwidth used per stream was lowered from the standard 19.4 mbps to as low as 6.6 mbps, which is less than some standard-definition feeds.

DirecTV called the figures in the lawsuit “completely wrong,” while Mr. Cohen’s attorney said his clients can prove their claims.

“The image is there, it can be analyzed and we’ve analyzed it,” said Tom Ferlauto, partner at law firm King & Ferlauto. “I think they do something like 1088 instead of 1080 … so maybe they’re parsing words there, but they’re definitely reducing resolution by a third.”

Bert Deixler, a litigation attorney in Los Angeles with Proskauer Rose, said Mr. Cohen may have a case.

“If you assume the facts are true, the statute under which he has brought his claim could conceivably give rise to a lawsuit because the standard applied to those claims is very loose,” he said. “But it’s not clear if what he was promised was actually promised.”

“There’s a greater chance of the Jets winning the Super Bowl” then the case going to trial, he said.

David Bott, co-founder of AVS Forum, has closely followed the debate online and said that if Mr. Cohen’s numbers are correct, he has a valid claim.

“If I was subscribing to a service that stated `1080i HDTV,’ I would expect to receive the ATSC standard or close,” he said. “From the numbers stated in the suit, it is not close. The sad note is that most regular consumers really have no idea what they should be seeing because the image still looks better than standard definition.”

Bruce Leichtman, president of Leichtman Research Group and an expert on HDTV, said the suit struck him as “the definition of frivolous.”