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EXHIBIT 10.72
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EXHIBIT 10.72
TIME BROKERAGE AGREEMENT
TIME BROKERAGE AGREEMENT, made this 1st day of April, 1994, by and
between CHANNEL 35 OF MIAMI, INC., a Florida corporation (the "Licensee") and
XXXXXX COMMUNICATIONS OF MIAMI-35, INC., a Florida corporation (the
"Programmer").
WHEREAS Licensee owns and operates Television Station WCTD(TV),
Channel 35, Miami, Florida (the "Station") pursuant to authorizations issued by
the Federal Communications Commission ("FCC").
WHEREAS the Licensee wishes to retain Programmer to provide
programming for the Station that is in conformity with Station policies and
procedures, FCC policies for time brokerage arrangements, and the provisions
hereof.
WHEREAS Programmer agrees to use the Station to broadcast such
programming of its selection that is in conformity with all rules, regulations
and policies of the FCC, subject to Licensee's full authority to manage and
control the operation of the Station.
WHEREAS Programmer and Licensee agree to cooperate to make this Time
Brokerage Agreement work to the benefit of the public and both parties and as
contemplated in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and mutual
promises and covenants contained herein, the parties, intending to be legally
bound, agree as follows:
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SECTION 1 LEASE OF STATION AIR TIME
1.1 Representations. Both Licensee and Programmer represent that
they are legally qualified, empowered and able to enter into this Agreement and
that the execution, delivery, and performance hereof shall not constitute a
breach or violation of any agreement, contract or other obligation to which
either party is subject or by which it is bound.
1.2 Effective Date; Term. The effective date of this Agreement
shall be March 31, 1994. It shall continue in force for an initial term of
five years from that date unless otherwise extended or terminated as set forth
below.
1.3 Scope. During the term of this Agreement and any renewal
thereof, Licensee shall make available to Programmer broadcast time upon the
Station as set forth in this Agreement. Programmer shall deliver such
programming, at its expense, to the Station's transmitter facilities or other
authorized remote control points as reasonably designated by Licensee. Subject
to Licensee's reasonable approval, as set forth in this Agreement, Programmer
shall provide programming of its selection to the Licensee up to eighty-four
hours per week. Notwithstanding the foregoing, the Licensee may use such time
as it may require (up to eighty-four hours per broadcast week) without any
adjustment of the monthly consideration to be paid to Licensee under Section
1.5 and without any award of pro-rata credit to Programmer under Section 1.10
for the broadcast of its own regularly scheduled programming. All time not
reserved by or designated for Licensee shall be available for use by Programmer
and no other party.
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1.4 Option to Renew. Subject to the termination provisions of
Section 6 hereof, Programmer shall have the right to extend the initial term of
this Agreement for an additional term of five years. Notice of the exercise of
such option must be delivered to Licensee no later than one hundred eighty
(180) days prior to expiration of the initial term.
1.5 Consideration. As consideration for the air time made
available hereunder Programmer shall make payments to Licensee as set forth in
Attachment I.
1.6 Licensee Operation of Station. Licensee will have full
authority, power and control over the management and operations of the Station
during the term of this Agreement and during any renewal of such term.
Licensee will bear all responsibility for Station's compliance with all
applicable provisions of the Communications Act of 1934, as amended, ["the
Act"] the rules, regulations and policies of the FCC and all other applicable
laws. Licensee shall be solely responsible for and pay in a timely manner all
operating costs of the Station, including but not limited to maintenance of the
studio and transmitting facility and costs of electricity, except that
Programmer shall be responsible for the costs of its programming as provided in
Sections 1.8 and 2.3 hereof. Licensee shall employ at its expense management
level employees consisting of, at a minimum, a General Manager and an
Administrative Assistant, who will direct the day-to-day operations of the
Station, and who will report to and be accountable to the Licensee. Licensee
shall be responsible for the salaries, taxes, insurance and related costs for
all personnel employed by the Station and shall maintain insurance satisfactory
to Programmer covering the Station's transmission facilities, and Programmer
shall be responsible for reimbursing Licensee for such expenses. During the
term of the Agreement and any renewal hereof, Programmer agrees to
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perform, without charge, routine monitoring of the Station's transmitter
performance and tower lighting by remote control, if and when requested by
Licensee.
1.7 Licensee Representations and Warranties. Licensee represents
and warrants as follows:
(a) Licensee owns and holds or will hold all licenses and other
permits and authorizations necessary for the operation of the Station, and such
licenses, permits and authorizations are and will be in full force and effect
throughout the term of this Agreement. There is not now pending, or to
Licensee's best knowledge, threatened, any action by the FCC or by any other
party to revoke, cancel, suspend, refuse to renew or modify adversely any of
such licenses, permits or authorizations. Licensee is not in material
violation of any statute, ordinance, rule, regulation, policy, order or decree
of any federal, state or local entity, court or authority having jurisdiction
over it or the Station, which would have an adverse effect upon the Licensee,
its Assets, the Station or upon Licensee's ability to perform this Agreement.
Licensee shall not take any action or omit to take any action which would have
an adverse impact upon the Licensee, its Assets, the Station or upon Licensee's
ability to perform this Agreement. All reports and applications required to be
filed with the FCC or any other governmental body have been, and during the
course of the term of this Agreement or any renewal thereof, will be filed in a
timely and complete manner. The facilities of the Station are and will
continue to be maintained in accord with good engineering practice and will
comply in all material respects with the engineering requirements set forth in
the FCC authorizations, permits and licenses for the Station, and Licensee will
ensure that the Station broadcasts a high quality signal to its service area
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(except at such time where reduction of power is required for routine or
emergency maintenance). During the term of this Agreement and any renewal
thereof, Licensee shall not dispose of, transfer, assign or pledge any of such
assets and properties except with the prior written consent of the Programmer,
if such action would adversely affect Licensee's performance hereunder or the
business and operations of Licensee or the Station permitted hereby.
(b) Licensee shall pay, in a timely fashion, all of the
expenses incurred in operating the Station including lease payments, utilities,
taxes, etc., as set forth in Attachment II (except those for which a good faith
dispute has been raised with the vendor or taxing authority); shall provide
Programmer with a certificate of such timely payment within thirty (30) days of
the end of each month; and shall be reimbursed by Programmer for those payments
listed on Attachment II.
1.8 Programmer Responsibility. Programmer shall be solely
responsible for any expenses incurred in the origination and/or delivery of
programming from any remote location and for any publicity or promotional
expenses incurred by Programmer, including, without limitation, ASCAP and BMI
music license fees for all programming provided by Programmer. Such payments
by Programmer shall be in addition to any other payments to be made by
Programmer under this Agreement.
1.9 Contracts. Programmer will not be required to assume
performance of any of the Licensee's contracts and leases pertaining to the
Station except as indicated on Attachment III hereof. Programmer will enter
into no third- party contracts, leases or agreements which will bind Licensee
in any way except with Licensee's prior written approval.
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1.10 Pro Rata Credit. Programmer shall receive from Licensee two
times the pro rata credit (up to the amount of the monthly consideration
specified in Section 1.5 herein) for any part of the weekly programming time
that Licensee uses to broadcast its own programming beyond those periods
specified in Sections 1.3, 2.1, 2.2 and 5.2 except for: (1) Programmer's
failure to deliver its programming to Licensee; and (2) except for periods
during which Licensee is unable, for any reason, to broadcast the Programmer's
programming due to technical reasons beyond its control.
1.11 Station Operation. Licensee shall notify Programmer
prior to: (i) making any changes in management personnel; (ii) entering into
any material contractual obligations; (iii) purchasing equipment with value in
excess of $25,000; or (iv) making any other material changes in the operation
of the Station.
1.12 Use of Station's Studios. Licensee agrees to provide
Programmer with access to the Station's complete facilities including the
studios and broadcast equipment for use by Programmer, if it so desires, in
providing programming for the Station. Under the overall supervision of
Licensee, Programmer shall and may peacefully and quietly have the full use of
and enjoy the use of the Station's facilities, studios and equipment free from
any hindrance from any person or persons whomsoever claiming by, through or
under Licensee.
SECTION 2 STATION OBLIGATIONS TO ITS COMMUNITY OF LICENSE
2.1 Licensee Authority. Notwithstanding any other provision of
this Agreement, Programmer recognizes that Licensee has certain obligations to
broadcast programming to meet the needs and interests of its community of
license. From time to time the
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Licensee shall air specific programming on issues of importance to the local
community. Nothing in this Agreement shall abrogate the unrestricted authority
of the Licensee to discharge its obligations to the public and to comply with
the Act and the rules and policies of the FCC.
2.2 Additional Licensee Obligations. Although both parties shall
cooperate in the broadcast of emergency information over the Station, Licensee
shall also retain the right to interrupt Programmer's programming in case of an
emergency or for programming which, in the reasonable good faith judgment of
Licensee, is of greater local or national public importance. Licensee shall
also coordinate with Programmer the Station's hourly station identification and
any other announcements required to be aired by FCC rules. Licensee shall
continue to maintain a main studio, as that term is defined by the FCC, within
the Station's principal community contour, shall maintain its local public
inspection file within Miami, Florida and shall prepare and place in such
inspection file or files in a timely manner all material required by Section
73.3526 of the FCC's Rules, including without limitation the Station's
quarterly issues and program lists; information concerning the broadcast of
children's educational and informational programming; and documentation of
compliance with commercial limits applicable to certain children's television
programming. Programmer shall, upon request by Licensee, provide Licensee with
such information concerning Programmer's programs and advertising as is
necessary to assist Licensee in the preparation of such information. Licensee
shall also maintain the station logs, receive and respond to telephone
inquiries, and control and oversee any remote control point which may be
established for the Station.
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2.3 Responsibility for Employees and Expenses. Programmer shall
employ and be solely responsible for the salaries, taxes, insurance and related
costs for all personnel used in the production of its programming (including
salespeople, traffic personnel, board operators and programming staff).
Licensee will provide and be responsible for the Station personnel necessary
for the broadcast transmission of Programmer's programs including, without
limitation, the Station's General Manager and Administrative Assistant, and
will be responsible for the salaries, taxes,insurance and related costs for all
the Station personnel used in the broadcast transmission of Programmer's
programs and necessary to other aspects of Station operation. Whenever on the
Station's premises, all personnel shall be subject to the overall supervision
of Licensee's General Manager and/or Administrative Assistant, consistent with
Programmer's right to the use of the Station's facilities pursuant to Section
1.13 hereof.
SECTION 3 STATION PROGRAMMING POLICIES
3.1 Broadcast Station Programming Policy Statement. Licensee has
adopted and will enforce a Broadcast Station Programming Policy Statement (the
"Policy Statement"), a copy of which appears as Attachment IV hereto and which
may be amended in a reasonable manner from time to time by Licensee upon notice
to Programmer. Programmer agrees and covenants to comply in all material
respects with the Policy Statement, to all rules and regulations of the FCC,
and to all changes subsequently made by Licensee or the FCC. Programmer shall
furnish or cause to be furnished the artistic personnel and material for the
programs as provided by this Agreement and all programs shall be prepared and
presented in conformity with the rules,
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regulations and policies of the FCC and with the Policy Statement set forth in
Attachment IV hereto. All advertising spots and promotional material or
announcements shall comply with applicable federal, state and local regulations
and policies and shall be produced in accordance with quality standards
established by Programmer. If Licensee reasonably determines that a program
supplied by Programmer is unsatisfactory or unsuitable or contrary to the
public interest, or does not comply with the Policy Statement it may, upon
written notice to Programmer, suspend or cancel such program without liability
under Section 1.10.
3.2 Licensee Control of Programming. Programmer recognizes that
the Licensee has full authority to control the operation of the Station. The
parties agree that Licensee's authority includes but is not limited to the
right to reject or refuse such portions of the Programmer's programming which
Licensee reasonably believes to be unsatisfactory, unsuitable or contrary to
the public interest. Programmer shall have the right to change the programming
supplied to Licensee and shall give Licensee at least twenty-four (24) hours
notice of substantial and material changes in such programming.
3.3 Programmer Compliance with Copyright Act. Programmer
represents and warrants to Licensee that Programmer has full authority to
broadcast its programming on the Station, and that Programmer shall not
broadcast any material in violation of the Copyright Act. All music supplied
by Programmer shall be: (i) licensed by ASCAP, SESAC or BMI; (ii) in the
public domain; or (iii) cleared at the source by Programmer. Licensee will
maintain ASCAP, BMI and SESAC licenses as necessary. The right to use the
programming and to authorize its use in any manner shall be and remain vested
in Programmer.
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3.4 Sales. Programmer shall retain all revenues from the sale of
advertising time within the programming it provides to the Licensee and within
Licensee's programming. Programmer may sell advertising on the Station in
combination with any other broadcast stations of its choosing. Programmer
shall be responsible for payment of the commissions due to any national sales
representative engaged by it for the purpose of selling national advertising
which is carried during the programming it provides to Licensee.
3.5 Children's Television Advertising. Programmer agrees that it
will not knowingly broadcast advertising within programs originally designed
for children aged 12 years and under in excess of the amounts permitted under
applicable FCC rules, and will take all steps necessary to pre-screen
children's programming broadcast during the hours it is providing such
programming, to establish that advertising is not being broadcast in excess of
the applicable FCC rules.
3.6 Payola. Programmer agrees that it will not accept any
consideration, compensation, gift or gratuity of any kind whatsoever,
regardless of its value or form, including, but not limited to, a commission,
discount, bonus, material, supplies or other merchandise, services or labor
(collectively "Consideration"), whether or not pursuant to written contracts or
agreements between Programmer and merchants or advertisers, unless the payer is
identified in the program for which Consideration was provided as having paid
for or furnished such Consideration, in accordance with the Act and FCC
requirements. Programmer agrees to annually, or more frequently at the request
of the Licensee, execute and provide Licensee with a
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Payola Affidavit from each of its employees involved with the Station
substantially in the form attached hereto as Attachment V.
3.7 Cooperation on Programming. Licensee shall, on a regular
basis, assess the issues of concern to its community and address those issues
in its public service programming. Programmer, in cooperation with Licensee,
will endeavor to ensure that programming responsive to the needs and interests
of the community of license and surrounding area is broadcast, in compliance
with applicable FCC requirements. Licensee will describe those issues and the
programming that is broadcast in response to those issues and place
issues/programs lists in the Station's public inspection file as required by
FCC rules. Further, Licensee may request, and Programmer shall provide,
information concerning such of Programmer's programs as are responsive to
community issues so as to assist Licensee in the satisfaction of its public
service programming obligations. Licensee shall also evaluate the local need
for children's educational and informational programming and shall inform
Programmer of its conclusions in that regard. Licensee, in cooperation with
Programmer, will ensure that educational and informational programming for
children is broadcast over Station in compliance with applicable FCC
requirements. Programmer shall also provide Licensee upon request such other
information necessary to enable Licensee to prepare records and reports
required by the Commission or other local, state or federal government
entities.
3.8 Staffing Requirements. Licensee will be in full compliance
with the main studio staff requirements as specified by the FCC.
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SECTION 4 INDEMNIFICATION
4.1 Programmer's Indemnification. Programmer shall indemnify and
hold harmless Licensee from and against any and all claims, losses, costs,
liabilities, damages, forfeitures and expenses (including reasonable legal fees
and other expenses incidental thereto) of every kind, nature and description,
including but not limited to, slander or defamation or otherwise arising out of
Programmer's broadcasts and sale of advertising time under this Agreement to
the extent permitted by law.
4.2 Licensee's Indemnification. Licensee shall indemnify and hold
harmless Programmer from and against any and all claims, losses, consents,
liabilities, damages, FCC forfeitures and expenses (including reasonable legal
fees and other expenses incidental thereto) of every kind, nature and
description, arising out of Licensee's broadcasts to the extent permitted by
law.
4.3 Limitation. Neither Licensee nor Programmer shall be entitled
to indemnification pursuant to this section unless such claim for
indemnification is asserted in writing delivered to the other party.
4.4 Time Brokerage Challenge. If this Agreement is challenged at
the FCC, whether or not in connection with the Station's license renewal
application, counsel for the Licensee and counsel for the Programmer shall
jointly defend the Agreement and the parties' performance thereunder throughout
all FCC proceedings at the sole expense of the Programmer. If portions of this
Agreement do not receive the approval of the FCC Staff, then the parties shall
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reform the Agreement as necessary to satisfy the FCC Staff's concerns or, at
Programmer's option and expense, seek reversal of the Staff's decision and
approval from the full Commission on appeal.
SECTION 5 ACCESS TO PROGRAMMER MATERIALS AND CORRESPONDENCE
5.1 Confidential Review. Prior to the provision of any
programming by Programmer to Licensee under this Agreement, Programmer shall
acquaint the Licensee with the nature and type of the programming to be
provided. Licensee, solely for the purpose of ensuring Programmer's compliance
with the law, FCC rules and Station policies, shall be entitled to review at
its discretion from time to time on a confidential basis any programming
material it may reasonably request. Programmer shall promptly provide Licensee
with copies of all correspondence and complaints received from the public
(including any telephone logs of complaints called in), and copies of all
program logs and promotional materials. However, nothing in this section shall
entitle Licensee to review the internal corporate or financial records of the
Programmer.
5.2 Political Advertising. Programmer shall cooperate with
Licensee to assist Licensee in complying with all rules of the FCC regarding
political broadcasting. Licensee shall promptly supply to Programmer, and
Programmer shall promptly supply to Licensee, such information, including all
inquiries concerning the broadcast of political advertising, as may be
necessary to comply with FCC rules and policies, including the lowest unit
rate, equal opportunities, reasonable access, political file and related
requirements of federal law. Licensee,
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in consultation with Programmer, shall develop a statement which discloses its
political broadcasting policies to political candidates, and Programmer shall
follow those policies and rates in the sale of political programming and
advertising. In the event that Programmer fails to satisfy the political
broadcasting requirements under the Act and the rules and regulations of the
FCC and such failure inhibits Licensee in its compliance with the political
broadcasting requirements of the FCC, then to the extent reasonably necessary
to assure such compliance, Programmer shall release broadcast time and/or
advertising availabilities to Licensee at no cost to Licensee or with no
responsibility to provide pro rata credit under Section 1.10; provided,
however, that all revenues realized by Licensee as a result of such a release
of advertising time shall be immediately paid to Programmer.
SECTION 6 TERMINATION AND REMEDIES UPON DEFAULT
6.1 Termination. In addition to other remedies available at law
or equity, this Agreement may be terminated as set forth below by either
Licensee or Programmer by written notice to the other if the party seeking to
terminate is not then in material default or breach hereof, upon the occurrence
of any of the following:
(a) this Agreement is declared invalid or illegal in
whole or substantial part by an order or decree of an administrative agency or
court of competent jurisdiction and such order or decree has become final and
no longer subject to further administrative or judicial review;
(b) the other party is in material breach of its
obligations hereunder and has failed to cure such breach within thirty (30)
days of notice from the non-breaching party;
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(c) the mutual consent of both parties;
(d) there has been a material change in FCC rules,
policies or precedent that would cause this Agreement to be in violation
thereof and such change is in effect and not the subject of an appeal or
further administrative review; or
(e) upon sale of the Station.
6.2 Force Majeure. Any failure or impairment of the Station's
facilities or any delay or interruption in the broadcast of programs, or
failure at any time to furnish facilities, in whole or in part, for broadcast,
due to Acts of God, strikes, lockouts, material or labor restrictions by any
governmental authority, civil riot, floods and any other cause not reasonably
within the control of Licensee, or for power reductions necessitated for
maintenance of the Station or for maintenance of other stations located on the
tower from which the Station will be broadcasting, shall not constitute a
breach of this Agreement and Licensee will not be liable to Programmer for
reimbursement or reduction of the consideration owed to Licensee or for pro
rata reimbursement under Section 1.10 of this Agreement.
6.3 Other Agreements. During the term of this Agreement or any
renewal hereof, Licensee will not enter into any other time brokerage, program
provision, local management or similar agreement with any third party.
However, licensee shall be permitted to make a conditional assignment of this
Agreement for purposes of obtaining bank financing required by its financing
institution with the prior written permission of Programmer.
SECTION 7 MISCELLANEOUS
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7.1 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors and assigns including
specifically any purchaser of the Station from Licensee. Programmer shall have
the right to assign this Agreement and all of its rights and obligations
hereunder, following written notice to Licensee, to any affiliate, parent
company or subsidiary of Programmer, provided, however, that Programmer shall
require any third- party party to whom this Agreement is assigned to agree in
writing to assume Programmer's obligations hereunder and Programmer shall
guarantee the third-party purchaser's performance thereunder.
7.2 Call Letters. Upon request of Programmer and at Programmer's
expense and subject to the mutual consent of the Licensee, Licensee shall apply
to the FCC for authority to change the call letters of the Station (with the
consent of the FCC) to such call letters that Programmer shall reasonably
designate. Licensee must coordinate with Programmer any proposed changes to
the call letters of the Station before taking any action to change such
letters.
7.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
7.4 Entire Agreement. This Agreement and the Attachments hereto
embody the entire agreement and understanding of the parties with respect to
the matters contained herein and supersede any and all prior agreements,
arrangements and understandings relating to matters provided for herein and
supersedes any and all prior agreements, arrangements and understandings
relating to matters provided for herein. No amendment, waiver of compliance
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with any provision or condition hereof, or consent pursuant to this Agreement
will be effective unless evidenced by an instrument in writing signed by the
parties.
7.5 Taxes. Licensee and Programmer shall each pay its own ad
valorem taxes, if any, which may be assessed on such party's respective
personal property for the periods that such items are owned by such party.
Programmer shall pay all taxes, if any, to which the consideration specified in
Section 1.5 herein is subject, provided that Licensee is responsible for
payment of its own income taxes.
7.6 Headings. The headings are for convenience only and will not
control or affect the meaning or construction of the provisions of this
Agreement.
7.7 Governing Law. The obligations of Licensee and Programmer are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to, the Act and the Rules and Regulations of the
FCC. The construction and performance of the Agreement will be governed by the
laws of the State of Florida.
7.8 Notices. Any notice, demand or request required or permitted
to be given under the provisions of the Agreement shall be in writing and shall
be deemed to have been duly delivered on the date of personal delivery or on
the date of receipt if mailed by registered or certified mail, postage prepaid
and return receipt requested, and shall be deemed to have been received on the
date of personal delivery or on the date set forth on the return receipt, to
the following addresses, or to such other address as any party may request, in
the case of Licensee, by notifying Programmer, and in the case of Programmer,
by notifying Licensee.
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To Programmer: Xxxxxx Communications of Miami-35, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
To Licensee: Channel 35 of Miami, Inc.
c/o The Christian Network, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
7.9 Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
In the event that the FCC alters or modifies its rules or policies in a fashion
which would raise substantial and material question as to the validity of any
provision of this Agreement, the parties hereto shall negotiate in good faith
to revise any such provision of this Agreement with a view toward assuring
compliance with all then existing FCC rules and policies which may be
applicable, while attempting to preserve, as closely as possible, the intent of
the parties as embodied in the provision of this Agreement which is to be so
modified.
7.10 Specific Performance. The parties recognize that in the
event Licensee should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. In the event that Programmer is
not itself in breach of this Agreement, Programmer shall therefore be entitled
to obtain specific performance of all terms of this
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Agreement. In the event of any action to enforce this Agreement, Licensee
hereby waives the defense that there is an adequate remedy at law.
7.11 Arbitration. Any dispute arising out of or related to this
Agreement that Licensee and Programmer are unable to resolve by themselves
shall be settled by arbitration in Miami, Florida by a panel of three
arbitrators. Licensee and Programmer shall each designate one disinterested
arbitrator and the two arbitrators designed shall select the third arbitrator.
The persons selected as arbitrators need not be professional arbitrators, and
persons such as lawyers, accountants and bankers shall be acceptable. Before
undertaking to resolve a dispute, each arbitrator shall be duly sworn
faithfully and fairly to hear and examine the matters in controversy and to
make a just award according to the best of his or her understanding. The
arbitration hearing shall be conducted in accordance with the commercial
arbitration rules of the American Arbitration Association. The written
decision of a majority of the arbitrators shall be final and binding on
Licensee and Programmer. The costs and expenses of the arbitration proceeding
shall be assessed between Licensee and Programmer in a manner to be decided by
a majority of the arbitrators, and the assessment shall be set forth in the
decision and award of the arbitrators. Judgment on the award, if it is not
paid within thirty days, may be entered in any court having jurisdiction over
the matter. No action at law or in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Licensee or
Programmer against the other except: (i) an action to compel arbitration
pursuant to this Section; (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section; or (iii) a suit for
specific performance pursuant to Section 7.10.
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7.12 Sale. In the event that Licensee and Programmer have entered
into a purchase and sale agreement or an application has been filed with the
FCC seeking approval for the assignment of the Station's license to Programmer,
and such FCC approval shall not have been approved or the assignment shall not
have been consummated by the termination of this Agreement or any renewal
thereof, Programmer shall continue to make all payments contemplated by the
Agreement until such approval and consummation have occurred, or until such
application is no longer pending or the subject of an appeal or petition for
reconsideration, whichever last occurs.
7.13 Mandatory Carriage/Retransmission Consent Election. Licensee
shall consult with Programmer prior to making any election of mandatory
carriage rights or retransmission consent pursuant to Section 76.64 of the
FCC's Rules and the provisions of the Cable Television Consumer Protection and
Competition Act of 1992.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
LICENSEE: CHANNEL 35 OF MIAMI, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
PROGRAMMER: XXXXXX COMMUNICATIONS OF
MIAMI-35, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
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ATTACHMENT I
Compensation Schedule
During the term of this Agreement, Programmer shall pay Licensee
$420,000 annually.
These annual amounts shall be paid in twelve equal monthly payments on
the first day of each month.
Programmer shall also reimburse Licensee on a monthly basis for
Licensee's payment of Station expenses listed on Attachment II upon receipt
from the License of a certificate (with attached invoices, etc.) documenting
payment of those expenses.
Payments shall be made by delivery of a check to Licensee at an
address to be designated.
This compensation schedule is based upon Licensee making available to
Programmer the entirety of the air time not explicitly reserved to Programmer
pursuant to Section 1.3 or which becomes unavailable under Section 2.1, 2.2 or
5.2.
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ATTACHMENT II
Categories of Anticipated Station Expenses
Tower/Studio Lease
Transmitter Power Xxxx
Building Utilities Xxxx
Telephones
Insurance
Property Taxes
Property Insurance
ASCAP/BMI Fees
Station Supplies
Station Maintenance
FCC Filing and Annual Fees
Professional Fees
Florida Intangible Tax
Other Miscellaneous Items to be agreed
upon by Licensee and Programmer
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ATTACHMENT III
Contracts
None
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ATTACHMENT IV
Broadcast Station Programming Policy Statement
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BROADCAST STATION PROGRAMMING POLICY STATEMENT
The following sets forth the policies generally applicable to the
presentation of programming and advertising over Television Station WCTD(TV),
Miami, Florida. All programming and advertising broadcast by the station must
conform to these policies and to the provisions of the Communications Act of
1034, as amended [the "Act"], and the Rules and Regulations of the Federal
Communications Commission ["FCC"].
Station Identification
The station must broadcast a station identification announcement once an hour
as close to the hour as feasible in a natural break in the programming. The
announcement must include (1) the station's call letters (currently, WCTD);
followed immediately by (2) the station's city of license (Miami, Florida).
Broadcast of Telephone Conversations
Before recording a telephone conversation for broadcast or broadcasting such a
conversation simultaneously with its occurrent, any party to the call must be
informed that the call will be broadcast or will be recorded for later
broadcast, and the party's consent to such broadcast must be obtained. This
requirement does not apply to calls initiated by the other party which are made
in a context in which it is customary for the station to broadcast telephone
calls.
Sponsorship Identification
When money, service, or other valuable consideration is either directly or
indirectly paid or promised as part of an arrangement to transmit any
programming, the station at the time of broadcast shall announce (1) that the
matter is sponsored, either whole or in part; and (2) by whom or on whose
behalf the matter is sponsored. Products or services furnished to the station
in consideration for an identification of any person, product, service,
trademark or brand name shall be identified in this manner.
In the case of any political or controversial issue broadcast for which any
material or service is furnished as an inducement for its transmission, an
announcement shall be made at the beginning and conclusion of the broadcast
stating (1) the material or service that has been furnished; and (2) the
person(s) or association(s) on whose behalf the programming is transmitted.
However, if the broadcast is 5 minutes duration or less, the required
announcement need only be made either at its beginning or end.
Prior to any sponsored broadcast involving political matters or controversial
issues, the station shall obtain a list of the chief executive officers,
members of the executive committee or board of directors of the sponsoring
organization and shall place this list in the station's public inspection file.
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Payola/Plugola
The station, its personnel, or its programmers shall not accept or agree to
accept from any person any money, service, or other valuable consideration for
the broadcast of any matter unless such fact is disclosed to the station so
that all required station identification announcements can be made. All
persons responsible for station programming must, from time to time, execute
such documents as may be required by station management to confirm their
understanding of and compliance with the FCC's sponsorship identification
requirements.
Rebroadcasts
The station shall not rebroadcast the signal of any other broadcast station
without first obtaining such station's prior written consent to such
rebroadcast.
Fairness
Station shall seek to afford coverage to contrasting viewpoints concerning
controversial issues of public importance.
Personal Attacks
The station shall not air attacks upon the honesty, character, integrity or
like personal qualities of any identified person or group. If such an attack
should nonetheless occur during the presentation of views on a controversial
issue of public importance, those responsible for programming shall submit a
tape or transcript of the broadcast to station management and to the person
attacked within 48 hours, and shall offer the person attacked a reasonable
opportunity to respond.
Political Editorials
Unless specifically authorized by station management, the station shall not air
any editorial which either endorses or opposes a legally qualified candidate
for public office.
Political Broadcasting
All "uses" of the station by legally qualified candidates for elective office
shall be in accordance with the Act and the FCC's Rules and policies, including
without limitation, equal opportunities requirements, reasonable access
requirements, lowest unit charge requirements and similar rules and
regulations.
Obscenity and Indecency
The station shall not broadcast any obscene material. Material is deemed to be
obscene if the average person, applying contemporary community standards in the
local community, would find that the material, taken as a whole, appeals to the
prurient interest; depicts or describes in a
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patently offensive way sexual conduct specifically defined by applicable state
law; and taken as a whole, lacks serious literary artistic, political or
scientific value.
The station shall not broadcast any indecent material outside of the periods of
time prescribed by the Commission. Material is deemed to be indecent if it
includes language or material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities or organs.
Billing
No entity which sells advertising for airing on the station shall knowingly
issue any xxxx, invoice or other document which contains false information
concerning the amount charged or the broadcast of advertising which is the
subject of the xxxx or invoice. No entity which sells advertising for airing
on the station shall misrepresent the nature or content of aired advertising,
nor the quantity, time of day, or day on which such advertising was broadcast.
Contests
Any contests conducted on the station shall be conducted substantially as
announced or advertised. Advertisements or announcements concerning such
contests shall fully and accurately disclose the contest's material terms. No
contest description shall be false, misleading or deceptive with respect to any
material term.
Hoaxes
The station shall not knowingly broadcast false information concerning a crime
or catastrophe.
Children's Programming
The station shall broadcast reasonable amounts of educational and informational
programming designed for children aged 16 years and younger.
Children's Advertising
Programming designed for children aged 12 years and younger shall not include
more than 12 minutes of commercial matter per hour, Monday through Friday, and
shall not include more than 10.5 minutes of commercial matter per hour on
weekend programming. There shall be no host selling, as that term is defined
by the FCC, in children's programming on the station.
Emergency Information
Any emergency information which is broadcast by the station shall be
transmitted both aurally and visually or only visually.
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Lottery
The station shall not advertise or broadcast any information concerning any
lottery (except the Indiana State Lottery and any other state lottery). The
station may advertise and provide information about lotteries conducted by
non-profit groups, governmental entities and in certain situations, by
commercial organizations, if and only if there is no state or local restriction
or ban on such advertising or information and the lottery is legal under state
or local law. Any and all lottery advertising must first be approved by
station management.
Advertising
Station shall comply with all federal, state and local laws concerning
advertising, including without limitation, all laws concerning misleading
advertising, and the advertising of alcoholic beverages.
Programming Prohibitions.
Knowing broadcast of the following types of programs and announcements is
prohibited:
False Claims. False or unwarranted claims for any product or
service.
Unfair Imitation. Infringements of another advertiser's rights
through plagiarism or unfair imitation of either program idea or copy,
or any other unfair competition.
Commercial Disparagement. Any unfair disparagement of competitors or
competitive goods.
Profanity. Any programs or announcements that are slanderous,
obscene, profane, vulgar, repulsive or offensive, as evaluated
by station management.
Violence. Any programs which are excessively violent.
Unauthenticated Testimonials. Any testimonials which cannot be
authenticated.
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ATTACHMENT V
Payola Statement
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FORM OF PAYOLA AFFIDAVIT
City of ________________________ )
)
County of ______________________ ) SS:
)
State of _______________________ )
ANTI-PAYOLA/PLUGOLA AFFIDAVIT
________________________, being first duly sworn, deposes and says as follows:
1. He is _____________________ for _____________________.
Position
2. He has acted in the above capacity since ____________.
3. No matter has been broadcast by Station _____ for which service, money
or other valuable consideration has been directly or indirectly paid,
or promised to, or charged, or accepted, by him from any person, which
matter at the time so broadcast has not been announced or otherwise
indicated as paid for or furnished by such person.
4. So far as he is aware, no matter has been broadcast by Station _____
for which service, money, or other valuable consideration has been
directly or indirectly paid, or promised to, or charged, or accepted
by Station ____
or by any independent contractor engaged by Station _____ in
furnishing programs, from any person, which matter at the time so
broadcast has not been announced or otherwise indicated as paid for or
furnished by such person.
5. In future, he will not pay, promise to pay, request, or receive any
service, money, or any other valuable consideration, direct or
indirect, from a third party, in exchange for the influencing of, or
the attempt to influence, the preparation of presentation of broadcast
matter on Station _____.
6. Nothing contained herein is intended to, or shall prohibit receipt or
acceptance of anything with the expressed knowledge and approval of my
employer, but henceforth any such approval must be given in writing by
someone expressly authorized to give such approval.
7. He, his spouse and his immediate family do___ do not___ have any
present direct or indirect ownership interest in (other than an
investment in a corporation whose stock is publicly held), serve as an
officer or director of, whether with or without
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compensation, or serve as an employee of, any person, firm or
corporation engaged in:
1. The publishing of music;
2. The production, distribution (including wholesale and retail
sales outlets), manufacture or exploitation of music, films,
tapes, recordings or electrical transcriptions of any program
material intended for radio broadcast use;
3. The exploitation, promotion, or management or persons
rendering artistic, production and/or other services in the
entertainment field;
4. The ownership or operation of one or more radio or television
stations;
5. The wholesale or retail sale of records intended for public
purchase;
6. Advertising on Station _____, or any other station owned by
its licensee (excluding nominal stockholdings in publicly
owned companies).
8. The facts and circumstances relating to such interest are none____ as
follows ____:
_______________________________________________________________________
________________________
Affiant
Subscribed and sworn to before me
this ______ day of ____________, 19___.
_________________________________
Notary Public
My Commission expires: _____________.
