By DAVID KOENIG, AP Business Writer
EchoStar Communications Corp. rushed to a federal appeals court Friday in a successful bid to avoid shutting down more than 3 million digital video recorders used by customers of its Dish satellite-TV service.
But the victory could be only temporary. EchoStnar is fighting an uphill battle against TiVo Inc., which convinced a jury in April that EchoStar infringed on its patented TV-viewing technology in making set-top boxes for Dish customers.
Late Thursday, the federal district court judge who presided over the trial also sided with TiVo. He issued an injunction ordering EchoStar to stop selling the recorders and to turn off machines already in customers' homes within 30 days.
Judge David Folsom also ordered EchoStar to pay TiVo $89.6 million in damages ? more than the $74 million the jury awarded.
The ruling helped push TiVo shares up more than 8 percent Friday. Investors kept bidding the shares higher even after a federal appeals court in Washington temporarily blocked the order to disable EchoStar's video recorders.
The appeals court said that it wasn't ruling on the merits of the case, only that it wanted more time to study whether the injunction should be delayed until appeals can be heard.
Meanwhile, EchoStar finds itself under attack in a Florida court on a separate issue that could also force it to curtail services to Dish customers.
EchoStar asked the Florida judge to delay until Sept. 11 an order that Dish stop selling signals of distant network stations ? for example, a customer in Dallas who wants to receive broadcasts from ABC, CBS, NBC or Fox affiliates in New York or Los Angeles. The judge denied the request.
A EchoStar spokeswoman, Kathie Gonzalez, said the company had appealed to the U.S. Supreme Court and was negotiating with broadcasters who had sued EchoStar to prevent customers from losing their distant programming.
Both cases hold the potential to cost Dish customers, but the TiVo affair is easily the more serious, said analyst Matthew Harrigan of Janco Partners Inc.
"There is absolutely no way they can turn off those (recording) boxes without getting blind-sided. They would lose a lot of customers," Harrigan said. "People who use those boxes really like them. They would be furious."
That was the argument EchoStar lawyers made in asking the appeals court in Washington to block Judge Folsom's injunction. Forcing Dish to disable those boxes would force customers to give up a treasured service or find new video-recording service from another provider, the lawyers said.
EchoStar said it continued to believe it didn't infringe TiVo's patent for "time-warp" technology the ability to record a live television program while playing another. But EchoStar also said it was working on modifications to its recorders to avoid future claims of patent infringement.
Gonzalez, the spokeswoman for Englewood, Colo.-based EchoStar, said more than 3 million of Dish's 12.5 million subscribers use an EchoStar recorder that would have been affected by Folsom's ruling. Dish is the nation's second-largest satellite-TV provider, behind DirecTV.
If the Texas judge's $89.6 million award stands up on appeal, it would represent about half a year's revenue for TiVo, which hasn't earned a profit since its founding in 1997. The potential boon could be seen Friday in Alviso, Calif., company's stock price.
TiVo shares rose 53 cents, or 8.2 percent, to close the day at $7.02 on the Nasdaq Stock Market. EchoStar shares dropped 30 cents, or just under 1 percent, to $32.45.
TiVo hopes that a victory against EchoStar will convince other cable and satellite-TV providers that sell digital video recorders, or DVRs, other than TiVo's to agree to pay royalties and licensing fees to the company whose name is synonymous with recording TV on a hard drive.
TiVo has a licensing agreement with the nation's largest satellite-TV provider, DirecTV, which has 3 million TiVo users. A deal with Comcast Corp., which has more than 23 million cable-TV subscribers, is set to begin in the fourth quarter. TiVo is still chasing deals with the other leading cable providers.
"The company on its own is running OK," said Daniel Ernst, an analyst for Soleil Securities. "Prevailing against EchoStar isn't necessary for their success and growth, but certainly it would be a nice catalyst."
The appeals court gave TiVo until next Wednesday to respond to Friday's move blocking the injunction against EchoStar.
The case is far from over. Even TiVo could appeal.
The Texas judge could have tripled the jury's $74 million award because jurors found that EchoStar willfully infringed TiVo's patent. TiVo is considering seeking a larger award on appeal, said spokesman Elliot Sloane.
Copyright 2006 The Associated Press.
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