United States District Court, W.D. Missouri, Central Division
NEIL STOKES and CRAIG FELZIEN, on behalf of themselves and all others similarly situated, Plaintiffs,
DISH NETWORK L.L.C., a Colorado Limited liability corporation, Defendant.
NANETTE K. LAUGHREY, District Judge.
Before the Court is Defendant DISH Network's Motion to Dismiss Plaintiff Neil Stokes' claims arising out of an interruption of his satellite television service. [Doc. 16]. For the reasons set forth below, DISH's Motion to Dismiss is denied as to Counts I and II and granted with respect to Counts III through VI.
Defendant DISH Network is a Colorado corporation that markets and sells satellite television access packages nationwide. The programming packages DISH markets and sells include different combinations of channels depending on the package. Plaintiffs Neil Stokes, in 2008, and Craig Felzien, in 2000, (collectively Plaintiffs) ordered and selected one of DISH's programming packages. Immediately after installing the satellite equipment in Plaintiffs' homes, a DISH representative presented them with a Subscription Agreement. The Subscription Agreement is comprised of the Digital Home Advantage Plan Agreement (Plan Agreement) and the Residential Customer Agreement (RCA).
The Plan Agreement, which Plaintiffs signed, contains the following relevant provisions:
This agreement (the "Agreement") sets forth the terms and conditions of the Digital Home Advantage promotion. Additional terms and conditions of service are contained in the Residential Customer Agreement provided to you in your receiver User's Guide and made available at www.dishnetwork.com.
BY SIGNING BELOW YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RECEIVED, READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE TERMS AND CONDITIONS SET FORTH ON ITS SECOND PAGE, AND THE RESIDENTIAL CUSTOMER AGREEMENT, WHICH IS INCORPORATED HEREIN BY REFERENCE, AND THAT THE FOLLOWING TERMS WERE DISCLOSED TO YOU PRIOR TO LEASE:
WE RESERVE THE RIGHT TO CHANGE PRICES, PACKAGES, AND PROGRAMMING AT ANY TIME, INCLUDING WITHOUT LIMITATION, DURING ANY TERM AGREEMENT PERIOD TO WHICH YOU HAVE AGREED.
Plaintiffs also received the RCA after installation of the satellite equipment. The RCA, which was located in the back of a 156-page Satellite Receiver User's Guide, contains the following relevant provisions:
1. THE DISH NETWORK SERVICE
I. Changes in Services Offered. We may add, delete, rearrange and/or change any and all programming... including without limitation, during any term commitment period to which you have agreed.... In the event that we delete, rearrange or change any programming... we have no obligation to replace or supplement such programming.... You are not entitled to any refund because of a deletion, rearrangement or change of any programming....
[Doc. 4-3, p. 3].
3. CANCELLATION OF SERVICE
D. No Credits. If your Services are cancelled or disconnected for any reason, you still must pay all outstanding balances accrued.... Except in certain limited circumstances, charges for Services, once charged to your account, are non-refundable, and no refunds or credits will be provided in connection with the cancellation of Services....
[Doc. 4-3, p. 5].
7. LIMITATION OF OUR LIABILITY
A. INTERRUPTIONS AND DELAYS. NEITHER WE NOR OUR THIRD-PARTY BILLING AGENTS... WILL BE LIABLE FOR ANY INTERRUPTION IN ANY SERVICE OR FOR ANY DELAY OR FAILURE TO PERFORM, INCLUDING WITHOUT LIMITATION: IF SUCH INTERRUPTION, DELAY OR FAILURE TO PERFORM ARISES IN CONNECTION WITH THE TERMINATION OR SUSPENSION OF DISH NETWORK'S ACCESS TO ALL OR ANY PORTION OF SERVICES; THE RELOCATION OF ALL OR ANY PORTION OF THE SERVICES TO DIFFERENT SATELLITE(S); A CHANGE IN THE FEATURES AVAILABLE WITH YOUR EQUIPMENT; ANY ...