DirecTV said a California judge has stricken the central claims in a breach of contract lawsuit filed by Herring Networks over DirecTV’s decision to drop the One America News cable network in January 2022.

The ruling was made Friday by Judge John Meyer of the Superior Court of California in San Diego County.

“While we’ve anticipated this positive outcome, we’re pleased the judge has ruled in our favor and dismissed OAN’s central claims regarding our decision to not renew a commercial agreement with the programmer,” DirecTV said in a statement.

Herring sued DirecTV when it said it planned to stop carrying the channel when its distribution agreement expired. DirecTV also dropped another Herring channel, AWE.

DirecTV represented the bulk of the distribution of OAN, a conservative oriented channel that was sued by voting machine companies Dominion and Smartmatic for stories it aired regarding fraud in the 2020 election.

DirecTV’s former parent company AT&T helped support OAN with fees that represented as much as 90% of the networks revenue, according to a report from Reuters.

One America News was also dropped by Verizon in July 2022, leaving it with almost no pay-TV distribution.

OAN has remained on the air by getting distribution from broadcast television stations in about 30 markets. ■

A federal appeals court has upheld a lower court's dismissal of a defamation suit filed by One America News Network (OAN) against MSNBC host Rachel Maddow, saying no reasonable person could have taken Maddow's statement for objective fact.

That means OAN is on the hook for a reported $150,000-plus sin attorneys fees and court costs.

Maddow's June 2019 statement on The Rachel Maddow Show--she was reporting/commenting on a Daily Beast story about Kristian Rouz, an OAN employee who also freelanced for Russian government-funded Sputnik TV--was that OAN “really literally is paid Russian propaganda.”

OAN owner Herring Network Inc. had argued that the statement was false, that people could reasonably conclude it was not hyperbole even if that were not the intent, and that such a statement was harmful to an "American news agency" like OAN.

Also Read: Herring Files Brief in Defamation Suit

The U.S. Court of Appeals for the Ninth Circuit dismissed Herring's complaint "with prejudice," meaning it can't refile.

The court said that Herring had relied on evidence outside its complaint to argue that California's Anti-SLAPP statute did not prevent its defamation suit.

Anti-SLAPP (strategic lawsuits against public participation) laws are meant to prevent people from using lawsuits or threats of lawsuits to suppress free speech.

In dismissing the suit, the courts said Maddow's July 2019 statement was "well within the bounds of protected speech under the First Amendment."

The court said that, in context, the statement was "an obvious exaggeration, cushioned within an undisputed news story. The statement could not reasonably be understood to imply an assertion of objective fact, and therefore, did not amount to defamation."

The court also held that the lower court did not abuse its discretion in dismissing the suit without allowing Herring to amend it, adding that Herring didn't ask to amend it, and at any rate, sounding a Star Trek-like note, "amendment would have been futile."

OAN Plus, the over-the-top (OTT) news channel from Herring Networks, is launching on a digital subchannel of OTA (over-the-air) distributor independent KPVM-TV Las Vegas.

OAN Plus is a fee ad-supported spin-off of the national cable news network and will now add 2.7 million over-the-air homes via the TV station.

Also Read: OAN Signs Long-Term Deal with Buckeye

“OAN is one of the strongest center-to-right news brands in the nation," said KPVM-TV owner Vernon Van Winkle. 

OAN President Charles Herring said he was looking to get more OTA coverage for his OTT channel. 

"OTT and OTA delivery, both free to the consumer without the need for subscriptions or logins, will extend the life of linear channels," he said. "Live content such as news and sports will have the most relevant longevity on linear platforms...More roll-outs of OAN Plus as an OTA broadcast sub-channel are on the horizon.”

Herring Networks has filed its opening brief in an appeal of a lower court decision throwing out its defamation suit against MSNBC's Rachel Maddow and the cable network's owners, Comcast/NBCU.

The lower court dismissed the case before it came to trial, and with prejudice, meaning the case could not be re-filed, so Herring filed an appeal with the U.S. Court of Appeals for the Ninth Circuit.

At issue were statements made by MSNBC's Rachel Maddow that Herring's OAN network was paid Russian propaganda. Herring said that statement was false, that people could reasonably conclude it was not hyperbole even if that were not the intent, and that such a statement was harmful to an "American news agency" like OAN.

The statement stemmed from a report on MCNBC about an OAN employee who also wrote articles for Sputnik News, which is connected to the Russian government. Herring said because that employee was low level and that his Sputnik contributions were confined to freelance summaries of global financial news, the story "was hardly a story worthy of prime-time coverage on MSNBC’s most popular show" in the first place, and in any event Maddow went beyond the story to assert the network was Russian propaganda, then refused to retract that statement.

"Claims of payment from Russia to run pro-Russian content is disastrous to OAN’s brand," Herring said in its brief to the Ninth Circuit.

Herring said the lower court erred in four ways: 1) wrongly excluding Herring's evidence; 2) misapplied the law' 3) it wrongly concluded that if Maddow's statement was hyperbole it could not also be actionable defamation; and 4) Herring should have been allowed to amend its complaint before it was dismissed with prejudice.

"For all of these reasons, Herring respectfully asks this Court to reverse the dismissal of Herring’s defamation claim and remand for further proceedings," the brief said.

One America News Network (OAN) and lifestyle channel A Wealth of Entertainment (AWE) have signed long-term carriage agreements with Buckeye Broadband and MaxxSouth Broadband.

“We appreciate our partnership with Buckeye and MaxxSouth and are thrilled that Buckeye and MaxxSouth Broadband customers will have continued access to OAN and AWE," said Ann Schick, executive VP for content distribution at parent company, Herring Networks.  

Herring Networks said that for the week of Aug. 24, OAN was the fourth-ranked news network. It has gotten a boost from President Donald Trump, who has tweeted that it could be his new favorite network. He also routinely calls on OAN during press conferences.

OAN launched July 4, 2013. AWE was formerly WealthTV.

RELATED:Finding ‘Truth’ in ‘The Big Interview’ > A Q&A With Dan Rather

When Al Jazeera America officially closes its doors April 12, it will leave a void among emerging cable news network voices that will be difficult to fill, industry observers said.

The three-year-old network, which this past February announced it would close down after unsuccessfully attempting to compete with cable’s upper echelon of news networks in Fox News Channel, CNN and MSNBC, will most likely not be replaced on most cable and satellite lineups with other emerging networks such as TheBlaze, Fusion, Newsmax TV or One America News Network, even as the 2016 political campaign heats up and drives news-network ratings.

ELECTION-YEAR RELEVANCE

Those emerging cable-news networks say the loss of Al Jazeera America does not signal a diminishing value for alternative voices beyond the big three cable news networks. Rather, it’s a realization that in a crowded, evolving pay TV marketplace, television news, like politics, is a di_ cult arena in which to rack up wins.

“There’s no doubt there’s an opportunity, and the live component of news in general preserves the linear platforms and makes them relevant,” said Charles Herring, president of Herring Networks, which owns conservative-leaning One America News. “MVPDs are always looking for live content, whether it’s news or sports, and a lot of the viewers tune to the linear offering to watch breaking news — that’s where the latest source of information is.”

Al Jazeera America, which debuted in 2013 after the Qatar-based Al Jazeera Media purchased the former Current TV network from former Vice President Al Gore and other investors for $500 million, will sign off with more than 60 million subscribers across numerous pay TV affiliates, including Comcast, Time Warner Cable, DirecTV, Dish Network and Verizon Communications’s Fios TV.

Several potential suitors, including Herring, have looked at purchasing Al Jazeera America’s assets, as well as its affiliate agreements, but at press time no deals were thought to be imminent.

“We’ve taken a very good look at the opportunities around Al Jazeera closing,” Herring said, although he would not provide specifics.

With distributors looking to pare down channel lineups amid rising programming costs and a loss of subscribers turning to less-expensive streaming services, industry executives say its unlikely any cable network will replace Al Jazeera America on distributor lineups.

“What we have found is the distributors are not saying to themselves, ‘Oh, we lost Al Jazeera and we need to fill that hole,’” Newsmax Media CEO Christopher Ruddy said. “I think there’s a lot of anxiety on the operator side of the business where they are not looking for new channels, and Al Jazeera was pushed on them because of existing deals.”

Indeed, Comcast and another major distributor confirmed to Multichannel News that they don’t plan to fill Al Jazeera America’s channel slot with a new or existing programmer.

Al Jazeera America’s demise comes as the unpredictable and contentious 2016 presidential campaign is driving big ratings for cable news networks. Fox News has won the lion’s share of weekly cable primetime ratings races so far this year, and is primed to finish the first quarter as the most-watched cable network in primetime.

CNN and MSNBC are also posting significant viewership upticks in ratings during the first quarter of 2016.

While both Herring and Ruddy lamented the loss of Al Jazeera America’s voice in the cable news landscape, they both said that there remains a need for independent news outlets that provide viewers with alternative voices to the big cable news networks.

“I’m always disappointed when a news channel disappears because I believe there is strength in diversity,” said Ruddy. “The other channels are much more polarizing, and the public would like a more informational-based channel.”

Added Herring: “We’re having the most interesting election taking place right now, and I do not recall another election that was important, entertaining and thought provoking. … I haven’t come across a single individual that doesn’t have a strong opinion on the candidates. It’s an important part of our democracy to ensure that all this information gets out to the viewers so that they can make an informed decision regardless of where one might fall.”

In an effort to assure its voice is heard, Herring earlier this month filed suit against AT&T, saying the company is reneging on a promise to carry its One America News and AWE networks on DirecTV. In a statement AT&T claimed the lawsuit to be “baseless,” adding that it has offered to carry both channels on DirecTV at reasonable, market-based terms.”

Herring said the networks would only cost 6 cents per channel, per month, which equates to 72 cents per year. “Although DirecTV will always take the position that the rates being requested are out of line and not fair and not what the market demanded, it’s not a fact,” he said.

STILL REACHING OUT

Newsmax’s Ruddy said the network will continue to secure distribution deals with multichannel distributors despite the difficult marketplace. He said Newsmax isn’t banking on benefitting from Al Jazeera’s demise, and said the 46 million-subscriber network actually had greater reach than Al Jazeera America with several distributors, including DirecTV.

“We looked at Al Jazeera, and the problem is that there is not a lot of interest by Al Jazeera to transfer agreements, and there’s not a lot of interest among the operators to fill those holes with channels just for the sake of filling them,” he said. “Newsmax has never seen itself as having to depend on one network or another failing — we’ve always been competing with ourselves to build a better product and a bigger audience.”

One America News Network (OAN) parent Herring Networks is exploring buying the shuttering Al Jazeera America to get carriage on cable systems.

"Al Jazeera America and One America News Network (OAN) launched within a few months of each other," OAN parent Herring Networks told Multichannel News. "The latest ratings information from third party Rentrak shows that One America News Network has over four times the ratings [of Al Jazeera America]. "We are inquiring about the opportunity to acquire Al Jazeera America," he said.

The idea would be to replace it with OAN and thereby secure carriage (just as Al Jazeera tried to do when it bought Al Gore's Current TV). Al Jazeera has 60.8 million subs, according to Nielsen. "We would replace with One America News Network," he said, which has "a superior brand and ratings."

Herring also said he would be willing to "soften the blow" to Al Jazeera staffers by "absorbing some of their operations such as New York City and D.C. staff."

OAN has a D.C. bureau and Herring said they have already been looking at the same building and studios Al Jazeera uses in New York.

Al Jazeera has been leasing space in the Newseum, which has some of the best views in the city, particularly of Capitol Hill, but Herring signaled he would probably stay with his 101 Constitution Ave, which he points out is the closest commercial building to the Capitol and where he has negotiated rooftop access for live shots.

Herrring Networks and its fans have succeeded in flooding the FCC's Charter-TWC-Bright House merger docket with filings calling for its carriage as part of that deal.

Charter does not carry OAN, which Herring has pointedly pointed out to the FCC, saying it was an example of Charter’s unfriendliness to independent networks. But OAN is also not carried by Comcast, Time Warner Cable, Cox or most other major MVPDs — with the exception of Verizon Communications’s FiOS TV and AT&T’s U-verse TV.

Adonis Hoffman, Former chief of staff to FCC member Mignon Clyburn and chairman of Business in the Public Interest, who has been advising Herring on carriage and policy matters, said: "Herring Networks is an innovative, creative and entrepreneurial company, with high quality news programming through One America News. It has been looking to expand its offering to a broader audience, and this would be win-win for Herring as an independent, and any one or all of the big cable players. I also believe the Commission would find this a convenient and efficacious way to address some of the concerns raised by Herring and other independents concerning carriage."

One America News Network’s effort to use the government’s merger review of Charter Communications’s purchase of Time Warner Cable to leverage carriage on Charter has gone into hyperdrive, with a little help from an agency process that does not weed out duplicative comments.

A check of the Federal Communications Commission’s comment docket on the deal reveals page after page of people saying the merger should be nixed unless it includes a carriage deal for OANN, or otherwise professing their love for the channel. In fact, at press time the docket had more than 44,000 comments in the last 30 days — more by a factor of 30 than the next most populous proceeding (special access rates at 1,387), fueled in part by the OANN fan club.

But if anyone tries to use the total number of OANN comments as argument for a groundswell of input, it will need to be with a grain or two of salt added. The docket contains numerous double, triple, and in some cases quintuple and sextuple postings of the same comments from the same people, so a total of those pro-OANN carriage comments would not be an accurate gauge.

A top FCC spokesperson signaled the agency takes that mirroring factor into account when vetting the docket. “As with all proceedings, the commission values public participation and takes a careful look at the feedback it receives,” FCC press secretary Kim Hart told The Wire. “In fully assessing the record, commission staff analyzes substantive arguments and accounts for comment patterns and anomalies.”

OANN parent Herring Networks initially praised Charter’s treatment of its networks and independent networks in general, but has since changed its tune, citing the hot-button issue of over-the-top carriage.

Charter does not carry OANN, which Herring has pointedly pointed out to the FCC, saying it was an example of Charter’s unfriendliness to independent networks. But OANN is also not carried by Comcast, Time Warner Cable, Cox or most other major MVPDs — with the exception of Verizon Communications’s FiOS TV and AT&T’s U-verse TV.

Vyve Pulls Surprise On ‘Spirited’ Artist Who Wins Contest

Vyve Broadband cooked up a fun surprise for 11-year-old Alexander Griffin, who’d entered Vyve’s first Christmas Card Art Contest. System manager Lloyd Walker, wearing a yellow Santa hat, made a surprise announcement at a Dec. 10 assembly at Griffin’s Forge Ridge Elementary School in Harrogate, Tenn., that the fifth grader had won the contest.

Griffin received a gift bag of prizes including an iPad Mini. The school got a check for $200 for art supplies. Students at the school were treated to cookies from a local bakery and hot chocolate. And Vyve partnered with Hallmark to use the artwork as the basis of its Christmas card this year.

More than 500 students in the nine states where Vyve operates submitted images of “The Spirit of Christmas.” Vyve’s New York-based ad agency selected the winner among seven finalists.

Auction Accounting: Who’s Got the Money?

Because The Wire loves arcana, here is some.

The Senate Commerce Committee quietly passed a bill (S. 2319, for fellow arcanians) that made a slight tweak to the Communications Act of 1934 and its 1996 update.

According to a committee staffer familiar with the bill’s progression, Sen. John Thune (R-S.D.) conferred with the Federal Communications Commission before offering up S. 2319 — it passed the subcommittee unanimously in a wink on Dec. 9 — that would change the way the agency deposits upfront payments from spectrum auction participants.

Payments include those from wireless companies that bid $40 billion-plus in the AWS-3 auction and are expected to bid in the broadcast incentive auction.

The FCC has been putting those payments in an interest-bearing account before turning them over to the Treasury. The interest went to the Telecommunications Development Fund. But the cost of administering that interstitial financial step did not justify continuing it, given how low interests rates are.

Up-front payments from the upcoming incentive auction will now go directly to the Treasury. Some of it will cover buyout bids to broadcasters or moving expenses for stations and cable operators, some of whom will have to retune headends to pick up the repacked TV stations after the auction.

The payments can be in the billions in aggregate. For example, a wireless company that wanted to bid on spectrum blocks in New York and Los Angeles would have to put up more than $1 billion just to be eligible to bid.

One America News, a news channel owned by Herring Networks, has secured carriage on Buckeye CableSystem, to launch in Toledo and Sandusky, Ohio, later in 2015, the programmer said.

OAN will be positioned near channels including CNN and Fox News, and Herring-owned AWE will receive broader carriage under the agreement, moving to Buckeye's Standard Service tier.

“We are extremely pleased to add Buckeye CableSystem to our growing list of One America News Network carriage partners and excited that AWE will be available to a broader audience,” Charles Herring, president of Herring Networks, said in a release. “With more live news coverage than any other cable news outlet, One America News will be welcomed by news viewers on Buckeye CableSystem.”

OAN launched on July 4, 2013. AWE was previously known as WealthTV and has carriage on providers including AT&T U-verse, Verizon FiOS and CenturyLink Prism TV.