NAD Finds NFL’s Claims Regarding AT&T’s Discontinuance of the NFL Network on its DIRECTV NOW and U-Verse Platforms are Supported

New York, NY – Oct. 7, 2019 – The National Advertising Division has concluded that NFL Enterprises LLC provided a reasonable basis for the challenged express claims that AT&T decided to discontinue carrying the NFL Network on its DIRECTV NOW and U-verse platforms.  The claims were challenged by AT&T Services, Inc. and DIRECTV, LLC (collectively AT&T) and appeared in an integrated marketing campaign consisting of emails, a website, and television advertising.

NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB NP’s self-regulatory and dispute resolution programs.

The claims challenged by AT&T included:

Express claims:

  • “U-VERSE AND DIRECTV NOW CUSTOMERS. NFL NETWORK IS NO LONGER AVAILABLE.”
    • “AT&T has discontinued carriage of NFL Network in AT&T U-Verse and DIRECTV NOW.”
    • “As a result of AT&T’s decision, AT&T U-Verse and DirecTV NOW subscribers will miss out on America’s #1 destination for NFL Football including, Live Breaking News and Commentary, NFL Total Access, Award winning original programming including, The Timeline and Good Morning Football and year-round in-depth coverage of all 32 NFL Teams.”

Implied claims:

  • AT&T unilaterally decided to discontinue carrying the NFL Network on DIRECTV NOW and U-verse services.
  • AT&T is at fault for its customers’ inability to view NFL Network on U-verse and DIRECTV NOW services.
  • AT&T could easily resume carrying NFL Network without further discussion with the NFL.
  • The NFL had no involvement in the circumstances that led AT&T to no longer carrying the NFL Network on U-verse and DIRECTV NOW platforms.

A carriage contract entitles a multichannel video programming distributor to “carry” or retransmit a broadcaster’s signal. It was undisputed that AT&T carried the NFL Network on its DIRECTV NOW and U-Verse platforms pursuant to a carriage contract between the parties that was initially set to expire on March 31, 2019, and which was extended two weeks until April 15, 2019. After that time, the contract expired and the NFL Network was no longer available on AT&T’s DIRECTV NOW or U-Verse platforms. 

NAD carefully reviewed the evidence relied upon by the advertiser and determined that the NFL provided a reasonable basis for its express claims that AT&T “discontinued” or “dropped” the NFL Network from AT&T’s DIRECTV NOW and U-Verse platforms and that the inability of AT&T’s viewers to watch the NFL Network on these platforms came about “as a result of AT&T’s decision.” As support for its claims, the NFL relied, in part, on two declarations from the Vice President of Affiliate Distribution for the NFL, and a statement by AT&T’s CEO on an earnings call which acknowledged that AT&T decided to discontinue the NFL Network. 

Further, after consideration of AT&T’s evidence, NAD concluded that it was insufficient to overcome the reasonable basis established by the NFL for its express communications to AT&T subscribers (NFL fans) that discontinuance of the NFL Network on DIRECTV NOW and U-Verse came about “as a result of AT&T’s decision” or the NFL’s statements that AT&T “dropped” or “discontinued” the NFL Network on the relevant platforms as that terminology is commonly understood in the context of the current marketplace and industry practices. 

Finally, NAD determined that the alleged implied claims set forth by the challenger are not reasonably conveyed by the NFL’s advertisements / communications by the NFL. NAD concluded that, at a minimum, consumers (here NFL viewers on the relevant platforms) are cognizant of the fact that the ability to view a program such as the NFL Network is dependent upon a carriage contract between the content provider and the platform and, further, are keenly aware that programming distributors and programmers regularly get into disputes over carriage agreements. In its advertiser’s statement, the NFL stated that “it is pleased that NAD has found that the NFL’s advertising and communications accurately informed consumers and fans about AT&T’s decision to discontinue the NFL Network from the DIRECTV NOW and U-Verse platforms.”