EXHIBIT 10.4
[CAPITAL CITIES/ABC, INC. LETTERHEAD]
July 14, 1989
PRIMARY TELEVISION AFFILIATION AGREEMENT
WTAE Division/The Hearst Corporation
Pittsburgh, Pa.
TELEVISION STATION: WTAE
Gentlemen:
In order that your station may continue to serve the public interest,
convenience and necessity, this Company and your Television Station WTAE hereby
mutually agree upon the following plan of network cooperation, which shall
replace the affiliation agreement between you and us dated May 5, 1987.
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 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 thereof. The network station rate for your station shall be $3,100.00 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
ninety (90) 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 forty-five (45) 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.
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IV. CUT-IN ANNOUNCEMENTS AND LOCAL TAG SERVICES
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".
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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 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.
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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 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 of 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.
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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 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) or 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
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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, 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
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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 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 31st day of
August, 1989, and it shall continue until 3:00 AM, NYT, on the 31st day of
August, 1991. 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.
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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 Broadcasting Companies, Inc.
-----------------------------------------
Executive Vice President, In Charge
Of Affiliate Relations
Accepted this 14th day of
July, 1989
Television Station: WTAE
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.
------------------------------------------
Executive Vice President, In Charge
Of Affiliate Relations
Accepted this 14th day of
July, 1989
Television Station
By: /s/ The Hearst Corporation
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