I think you are misunderstanding an essential part of both the contract, as well as the assessment by SCONY Justice. According to the contract, the right to terminate under certain conditions only begins should a material breech occur twice in a year, or within 6 months of each other, as the right to cure allows for one breech, after which remediation steps are to be taken and the breech must not then recur within 6 months. Due to the annual nature of the supposed breech in question it has to be read that this breech occurs outside of the right to cure provision as the benchmark for the breech is the annual spend. It is impossible that this be violated twice in a year, thus, if you interpret the contract as you appear to be from your words above, lack of annual expediture is a deficiency that could continue ad finituum as the right to terminate could never be invoked by Echostar due to the way the cure provision is structured to include the wording about bi-annual recurrance.
So, essentially, this breech in my opinion occurs outside of both the contractual cure and termination provisions due to their limited scope, so the contract then becomes subject to interpretation, which is why it is being litigated, to determine what this interpretation should be.
Not to be an E* fanboy, but I think E* is in the right on this one. Seems to me, Voom intentionally deviated from GAAP practices to include overhead with the intent to decieve E* and figured that if they got caught, they could claim right to cure under the agreement and just not do it again. Due to what seems to be intentional disregard for the agreement and the ambiguity of how such a breech could be rectified, I am not sure how there is anyway any court which would find in favor of Voom. This is probably something best settled out of court, but it seem E* has come to the conclusion that the best business strategy for them is to avoid a settlement and nullify the agreement.
In the event that I get 15 new National HD Channels in place of Voom, I am all for it.
Just my 2 pesos....