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The Super Bowl has taken center stage in an increasingly contentious antitrust battle between EchoStar Satellite Corp. and CBS parent Viacom Inc. Responding to concerns that some fans might not be able to tune into next weekend’s game, U.S. District Judge Claudia Wilken has extended a temporary restraining order against Viacom. That means Viacom must continue to allow EchoStar to carry broadcasts from CBS stations. Wilken also delayed a preliminary injunction hearing until the end of February. EchoStar, which provides programming to 9 million satellite television subscribers, filed suit against Viacom earlier this month claiming the cable giant was forcing it to buy programming it doesn’t want as a condition for renewing the agreement to carry CBS programs. Antitrust lawyers say the case is significant since it raises new questions about what a corporation can bundle together and sell as a unit. Judge Wilken issued a temporary restraining order Jan. 16, saying EchoStar had shown that it would be “immediately and irreparably” injured if she didn’t act. “We continue to believe this is a dispute that belongs at the negotiating table, not the courtroom — and the extension that we requested will ensure that no football fan is denied the opportunity to watch the Super Bowl on CBS,” Viacom said in a statement Thursday. The suit arose when EchoStar began renegotiating an agreement to retransmit broadcast television signals from Viacom’s CBS stations. EchoStar contends Viacom tried to force it into purchasing unrelated programming, including “Nicktoons” and the Noggin network, through an unlawful tying arrangement. Viacom “has explicitly threatened not to grant retransmission rights and to deny EchoStar access to the Super Bowl broadcast unless EchoStar also purchases MTV, BET and other cable channel programming,” the suit says. “The terms of Viacom’s proposed settlement agreement for the purchase of the cable channels are onerous.” Viacom could not be reached for comment. But the company said in its statement that it “put a very fair offer on the table a week ago” and had not received a response from EchoStar. Viacom said it had completed deals with every other major distributor. Morrison & Foerster and Washington, D.C.’s Steptoe & Johnson represent EchoStar. MoFo partner Harold McElhinny referred questions about the case to the company. Disputes over so-called tying arrangements — in which a company with market power makes the sale of one product conditional on the purchase of another product — are not uncommon. But antitrust lawyers say EchoStar’s case may tread new ground. “For a long time there’s been a set of assumptions” that content owners can bundle their content whatever way they want, said Mark Lemley, a professor at Boalt Hall School of Law. “This may be the unraveling of that set of assumptions.” Lemley noted that cable companies were once on the other side of the battle, refusing to carry broadcast signals they didn’t want. Congress eventually passed legislation requiring them to open up their lines to broadcasters. But Congress didn’t address what cable companies can require of their distributors. Townsend and Townsend and Crew partner Eugene Crew said EchoStar’s suit is a textbook example of an antitrust complaint. “If the facts pled are true, it’s a pretty good case,” Crew said. “They’ve got all the elements there.”

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