EXHIBIT 10.2
[CAPITAL CITIES/ABC, INC. LETTERHEAD]
November 21, 1989
PRIMARY TELEVISION AFFILIATION AGREEMENT
The Hearst Corporation
Boston, Massachusetts
TELEVISION STATION: WCVB
Gentlemen:
In order that your station may continue to serve the public interest,
convenience and necessity, this Company and your Television Station WCVB hereby
mutually agree upon the following plan of network cooperation, which shall
replace the affiliation agreement between you and us dated August 11, 1987, as
amended.
I. NETWORK AFFILIATION AND PROGRAM SERVICE
A. FIRST CALL. We will offer you, for television broadcasting by your
station, the first call on all our network television programs which are to be
broadcast on a television network basis in the community to which your station
is licensed by the Federal Communications Commission, except as hereinafter
provided in Paragraph V.3. Notwithstanding the foregoing, ABC shall have the
right to authorize any television broadcasting station regardless of the
community to which it is licensed by the FCC, to broadcast any network
presentation of a subject we deem to be of immediate national significance
including, but not limited to, a Presidential address.
B. PROGRAM SERVICE. The program service we are offering will be as follows:
1. Network Sponsored Programs. "Network sponsored programs," as used in
this agreement, shall mean those television network programs which contain one
or more commercial announcements paid for by or on behalf of one or more ABC
Network advertisers.
You agree to broadcast network sponsored programs in their entirety, including
but not limited to the network commercial announcements ordered for your
station, network identifications, program promotional material or credit
announcements contained in such programs which you accept, without interruption
or deletion or addition of any kind. Notwithstanding the foregoing, you may
substitute other ABC-TV promotional announcements in lieu of
program promotional material for programs which your station has not ordered or
which is inaccurate as it pertains to your station. It is also understood that
no commercial announcement, promotional announcement or public service
announcement will be broadcast by you during any interval within a network
program designated by ABC as being for the sole purpose of making a station
identification announcement.
2. Network Sustaining, Cooperative and Spot Carrier Programs.
a) We will from time to time offer you live or recorded network
programs identified as sustaining programs, cooperative programs or spot
carrier programs. Except as set forth below in subparagraphs (b) and (c),
you agree to broadcast such programs which you accept in their entirety
without interruption or deletion or addition of any kind.
b) The network sustaining programs which we may offer to you may not,
without our prior written consent, be sold by your station for commercial
sponsorship or interrupted for commercial announcements or used for any
purpose other than sustaining broadcasting.
c) You may carry the cooperative or spot carrier programs on the same
basis as regular sustaining programs or you may offer them for commercial
sponsorship on terms and conditions specified by us at the time such
programs are offered to you.
C. PROGRAM ACCEPTANCE. You agree that you will advise us within 15 days of
the date of our offer of your acceptance (if requested to do so by the terms of
our offer) or rejection of any offer by us relating to a regularly scheduled
network program. With respect to any network program not regularly scheduled,
you will advise us of your acceptance or rejection of our offer within 72 hours
(exclusive of Saturdays, Sundays and holidays) after such offer has been
received at your station. However, if the first broadcast referred to in our
offer is scheduled to occur within less than 15 days after the date of our offer
with respect to regularly scheduled network programs or less than 72 hours after
our offer has been received at your station with respect to network programs not
regularly scheduled, you shall notify us of your acceptance or rejection of such
offer as promptly as possible, but in no event after the first broadcast time
specified in such offer. Acceptance by you of our offer of a network program(s)
shall constitute your agreement to broadcast such network program(s) in
accordance with the terms of this agreement and of our offer to you.
D. PROGRAM DELIVERY. By means satisfactory to us, we will arrange, at our
own expense, for programs to be delivered to your station.
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II. NETWORK STATION COMPENSATION
1. We agree to pay you, and you agree to accept, compensation in accordance
with the provisions set forth in Schedule A attached hereto and hereby made a
part hereof. The network station rate for your station shall be $4,400.00 and
shall be used by us in determining your station compensation in accordance with
the formula set forth in Schedule A.
2. If you should be unable, for any reason to broadcast any network
sponsored program(s), or any portion thereof, your compensation hereunder from
us for that period shall be reduced accordingly.
3. We reserve the right to reevaluate and change at any time (a) the
network station rate set forth in Subparagraph 1 above, (b) the percentage(s)
set forth in the Table in Schedule A, or (c) your network weekly deduction, by
notice to you in writing to such effect. Any increase in your station rate or in
the percentage(s) in Schedule A, or any decrease in your network weekly
deduction, will become effective on the date specified in our notice to you.
Should we (a) decrease the network station rate below that set forth in
Subparagraph 1 above, (b) decrease the percentage(s) in Schedule A, or (c)
increase your network weekly deduction, we will notify you in writing at least
one hundred eighty (180) days prior to the effective date of such change, and
you may, if you so elect, terminate this affiliation agreement as of the
effective date by giving us prior written notification within ninety (90) days
after the date of our notice to you. However, if such reduction in compensation
is part of a general rate revision on the ABC Network, we will notify you in
writing at least thirty (30) days prior to the effective date of such change,
and you may, if you so elect, terminate this affiliation agreement as of the
effective date by giving us prior written notification within fifteen (15) days
after the date of our notice to you of such change. You agree that a general
rate revision on the ABC Television Network may be expressed by us as a
modification of your network rate, and/or as a modification of the percentage(s)
set forth in Schedule A and/or as a modification of your network weekly
deduction.
III. NETWORK NON-DUPLICATION PROTECTION
As of January 1, 1990 (or such other effective date established by the
Federal Communications Commission for operation of the revised network
non-duplication rules), you shall be entitled to network non-duplication
protection provided as and to the extent set forth in Rider One to this
agreement, which is attached hereto and made a part hereof.
IV. CUT-IN ANNOUNCEMENTS AND LOCAL TAG SERVICES
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A. CUT-IN ANNOUNCEMENTS. "Cut-In Announcements," as used herein, shall mean
the substitution of a special commercial in place of a regularly scheduled
network commercial.
1. Upon at least twenty-four (24) hours' notice, you shall, at our request,
furnish such personnel and equipment as may be necessary to (a) broadcast cut-in
announcements from your station alone, or (b) originate from your station cut-in
announcements to one or more other stations, without regard to whether or not
your station is requested to broadcast said cut-in announcement(s).
Notwithstanding anything contained in this agreement, you may refuse to
broadcast any such cut-in announcement in the community to which your station is
licensed by the FCC if, in your opinion, it is not in the public interest,
convenience or necessity, but you shall nevertheless furnish such personnel and
equipment as may be necessary to originate such cut-in announcement(s) from your
station to one or more other stations.
2. Cut-in announcements shall be broadcast only when authorized by us and
then only in accordance with the instructions furnished to you. You will be
supplied, as promptly as possible, with the material and instructions for these
announcements.
3. We may cancel any order for cut-in announcements without liability on
our part, provided we do so upon not less than twenty-four (24) hours' notice to
you, failing which, we will pay you the compensation you would have received if
the announcement(s) had continued as scheduled for twenty-four (24) hours
following receipt by you of such notice of cancellation.
4. For each program during which such cut-in announcements are included, we
shall pay you in accordance with the applicable table set forth in Schedule B
hereto and hereby made a part hereof.
B. LOCAL TAG SERVICES. "Local Tag Announcements," as used herein, shall
mean a visual commercial announcement, made by you on behalf of a local dealer
of a network advertiser, not exceeding ten seconds of a one-minute network
commercial announcement or five seconds of a thirty-second network commercial
announcement projected by means of a slide and not utilizing more than two (2)
slides.
1. Upon at least twenty-four (24) hours' notice, you shall, at our request,
furnish such personnel and equipment as may be necessary to broadcast "local tag
announcements."
2. Local tag announcements shall be broadcast in accordance with our
instructions. The network advertiser shall supply to you or purchase from you,
as promptly as possible, the slide(s) for each local tag announcement. Local tag
announcements shall not be accompanied by oral announcements unless the network
advertiser shall make direct requests of you therefor and shall
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have assumed sole responsibility for payment of such oral announcements.
3. We may cancel any order for local tag announcements without liability on
our part provided we do so upon not less than twenty-four (24) hours' notice to
you, failing which we will pay you the compensation you would have received if
the local tag announcement(s) had continued as scheduled for twenty-four (24)
hours following receipt by you of such notice of cancellation.
4. For each local tag announcement which you broadcast, we shall compensate
you in accordance with the applicable table set forth in Schedule B hereto and
hereby made a part hereof.
V. GENERAL
1. We may at any time, upon notice to you, substitute for any scheduled
network program another network program, except that if such other network
program in our judgment involves a special event of public interest or
importance, no such notice is required. No compensation will be paid to you for
the scheduled program or for the substitute program unless such substitute
program is a "network sponsored program" in which event you shall be compensated
in accordance with the terms or formula, whichever is applicable, set forth in
Schedule A hereof.
2. Nothing contained in this agreement shall be construed to prevent or
hinder us, at any time upon notice to you as soon as practicable, from
cancelling one or more network programs, whether sponsored or sustaining, in
which event you shall receive no compensation for any such canceled network
sponsored program(s).
3. With respect to network programs offered or already contracted for
pursuant to this affiliation agreement, nothing herein contained shall be
construed to prevent or hinder you from:
a) rejecting or refusing network programs which you reasonably believe
to be unsatisfactory, unsuitable or contrary to the public interest; or
b) substituting a program, which in your good faith opinion, is of
greater local or national importance.
We shall not compensate you for any such program you have refused or rejected or
for which you have substituted a program which is of greater local or national
importance. With respect to programs already contracted for hereunder, you shall
give us prompt telegraphic notification of any such refusal, rejection or
substitution no later than fourteen (14) days prior to the air date of such
programming, except where the nature of the substitute program makes such notice
impracticable (e.g., coverage of breaking news or other unscheduled events), in
which case you agree to give
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us as much advance notice as possible under the circumstances. Such notice shall
include a statement of the reason(s) you believe that a rejected or refused
network program is unsatisfactory, unsuitable or contrary to the public
interest, and/or that a substituted program is of greater local or national
importance.
In addition to all other remedies, we shall have the right, upon thirty
(30) days' notice, to terminate your "First Call" rights on any program series
already contracted for hereunder and withdraw all future episodes of that series
if one or more individual program episode(s) is pre-empted by you in violation
of this Paragraph.
We shall also have the right, upon thirty (30) days' notice, to terminate
your "First Call" rights concerning any program series already contracted for
hereunder and to withdraw all future episodes of that series if three or more
individual program episodes are pre-empted by you in any thirteen-week period,
whether or not such pre-emptions are for the reasons set forth in (a) and (b)
above. Such thirteen-week periods shall be measured consecutively from the first
broadcast date of the program series in question.
We reserve the right not to offer you the "First Call" for the next
broadcast season on any program series as to which we have terminated your
"First Call" rights and withdrawn future episodes of that series pursuant to
this Paragraph and which has been placed by ABC on another station serving your
market.
4. You will submit to us in writing, upon forms provided by us for that
purpose, such reports covering network programs broadcast by your station as ABC
may request from time to time.
5. Subject to Subparagraph 2 of Section II of this agreement, neither you
nor we shall incur any liability hereunder because of our failure to deliver, or
your failure to broadcast, any or all network programs due to:
(a) failure of facilities
(b) labor disputes, or
(c) causes beyond the control of the party so failing to
broadcast.
6. In the event that the transmitter location, power, frequency or hours of
operation of your station are changed at any time so that your station is of
less value to us as a network outlet than it is as of the effective date of this
agreement, we will have the right to terminate this agreement upon thirty (30)
days' advance written notice.
7. You agree not to assign or to transfer any of the rights or privileges
granted to you under this agreement without our prior consent in writing. You
also agree that if any
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application is made to the Federal Communications Commission pertaining to an
assignment or a transfer of control of your license, or any interest therein,
you shall notify us in writing immediately of the filing of such application.
Except as to assignments or transfers of control comprehended by Section
73.3540(f) of the Rules and Regulations of the Federal Communications
Commission, we shall have the right to terminate this agreement effective as of
the effective date of any assignment or transfer of control (voluntary or
involuntary) of your license or any interest therein, provided ABC shall have
given you notice in writing of such termination within thirty (30) days after we
have been advised that such application for assignment or transfer has been
filed with the Federal Communications Commission.
If we do not so terminate this agreement, you agree, prior to the effective
date of any such assignment or transfer of control of your station to procure
and deliver to us, in form satisfactory to us, the agreement of the proposed
assignee or transferee that, upon consummation of the assignment or transfer of
control of your station's authorization, the assignee or transferee will assume
and perform this agreement in its entirety without limitation of any kind. If
you fail to notify us of the proposed assignment or transfer of control of your
station's authorization, or fail to procure the agreement of the proposed
assignee or transferee in accordance with the preceding sentence, we shall have
the right to terminate this agreement upon thirty (30) days' advance written
notice to you and the transferee or assignee, after the effective date of such
assignment or transfer or the date on which we learn of such assignment or
transfer, whichever is later.
8. You agree not to authorize, cause, permit or enable anything to be done
whereby any program which we supply to you herein may be used for any purpose
other than broadcasting by your station in the community to which it is
licensed, which broadcast is intended for reception by the general public in
places to which no admission is charged. You agree when you are authorized to
tape a program for subsequent broadcast that the recording will be broadcast not
more than once in its entirety and will be erased within six (6) hours of use.
9. Except with our prior written consent and except upon such terms and
conditions as we may impose, you agree not to authorize, cause, permit or enable
anything to be done whereby a recording on film, tape or otherwise is made or a
recording is broadcast, of a program which has been, or is being, broadcast on
our network, or a rebroadcast is made of the broadcast transmission of your
station during any hours when your station is broadcasting a program provided by
ABC.
10. With respect to any and all promotional material issued by you or under
your direction or control, you agree to abide by any and all restrictions of
which we advise you pertaining to the promotion of a network program(s)
scheduled to be broadcast by you in your community, including, but without
limitation,
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on-the-air promotion, billboards, and newspaper or other printed advertisements,
announcements or promotions.
11. You agree to maintain for your television station such licenses,
including performing rights licenses as now are or hereafter may be in general
use by television broadcasting stations and necessary for you to broadcast the
television programs which we furnish to you hereunder. We will clear all music
in the repertory of ASCAP and of BMI used in our network programs, thereby
licensing the broadcasting of such music in such programs over your station. You
will be responsible for all music license requirements for any commercial or
other material inserted by you within or adjacent to our network programs in
accordance with this agreement.
12. The furnishing of film or tape recorded programs hereunder is
contingent upon our ability to make arrangements satisfactory to us for the film
or tape recordings necessary to deliver the programs to you. Such film or tape
recorded programs shall be used only for a single television broadcast over your
station. Positive prints of film or tape recorded programs are to be shipped by
us, shipping charges prepaid, and you agree to return to us or to forward to
such television station as we designate, shipping charges prepaid, each print or
copy of said film or tape recording received by you hereunder, together with the
original reels and containers furnished therewith. You will return or forward
all prints in the same condition as received by you, ordinary wear and tear
excepted, immediately after a single TV broadcast over your station. In the
event you damage a print of any film or tape recorded program which is delivered
to you, or fail to return or forward the original reels and containers furnished
therewith, as aforesaid, you agree to pay the cost of replacing the complete
print, original reels and/or containers as and when billed by us.
13. No inducements, representations or warranties except as specifically
set forth herein have been made by any of the parties to this agreement. This
agreement constitutes the entire contract between the parties hereto and no
provision thereof shall be changed or modified, nor shall this agreement be
discharged in whole or in part, except by an agreement in writing, signed by the
party against whom the change, modification or discharge is claimed or sought to
be enforced; nor shall any waiver of any of the conditions or provisions of this
agreement be effective and binding unless such waiver shall be in writing and
signed by the party against whom the waiver is asserted, and no waiver of any
provision of this agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same or of any other provision.
14. This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. Upon termination of this agreement, the consent theretofore granted to
broadcast our Network programs shall be
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deemed immediately withdrawn and you shall have no further rights of any nature
whatsoever in such programs.
16. We agree to indemnify, defend and hold you harmless against and from
all claims, damages, liabilities, costs and expenses arising out of the use or
exercise by you, in accordance with this agreement, of any rights or material
furnished by us hereunder, provided that you promptly notify us of any claim or
litigation to which this indemnity shall apply, and that you cooperate fully
with us in the defense at our request. You similarly agree to indemnify, defend
and hold us harmless with respect to material furnished by you.
VI. TERM
This agreement shall become effective at 3:00 AM, NYT, on the 19th day of
March, 1990, and it shall continue until 3:00 AM, NYT, on the 19th day of March,
1992. It shall then be renewed on the same terms and conditions for a further
period of two years, and so on for successive further periods of two years each,
unless and until either party hereto shall, at least six (6) months prior to the
expiration of the then current term, give the other party written notice that it
does not desire the contract renewed for a further period. It is understood and
agreed, however, that this agreement may be terminated at any time, both during
the initial term and any subsequent renewal term, by either party upon giving
the other party six (6) months' advance written notice.
If, after examination, you find that the arrangement herein proposed is
satisfactory to you, please indicate your acceptance on the copy of this letter
enclosed for that purpose and return that copy to us.
Very sincerely yours,
AMERICAN BROADCASTING COMPANIES, INC.
By: /s/ American Broadcasating Companies, Inc.
-------------------------------------------
Vice President, In Charge
Of Affiliate Relations
Accepted this 21st day of
November, 1989
Television Station: WCVB-TV
By:/s/ The Hearst Corporation
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RIDER ONE
As of January 1, 1990 (or such other effective date established by the
Federal Communications Commission for operation of the revised network
non-duplication rules), you shall be entitled to network non-duplication
protection (against simultaneous or non-simultaneous presentation of ABC
Television Network programs via cable pursuant to the compulsory license) as
follows:
a. The geographic zone of network non-duplication protection shall be
the Area of Dominant Influence ("ADI") (as defined by Arbitron) in which
your station is located, or any lesser zone pursuant to any geographic
restrictions contained in the Federal Communications Commission rules and
regulations, now or as subsequently modified.
b. Network non-duplication protection shall extend to all ABC
Television Network programs that you broadcast in accordance with this
agreement. Protection shall not extend to individually pre-empted programs
of an otherwise cleared series.
c. Network non-duplication protection shall begin 48 hours prior to
the live time period designated by us for broadcast of that network program
by your station, and shall end at 12:00 Midnight on the seventh day
following that designated time period.
You are under no obligation to exercise in whole or in part the network
non-duplication rights granted under this agreement.
AMERICAN BROADCASTING COMPANIES, INC.
By: /s/ American Broadcasting Companies, Inc.
------------------------------------------
Vice President, In Charge
Of Affiliate Relations
Accepted this 21st day of
November, 1989
Television Station: WCVB-TV
By: /s/ The Hearst Corporation
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