CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY ***. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
March 10, 2004
PRIMARY TELEVISION AFFILIATION AGREEMENT
----------------------------------------
General Manager
WSET-TV
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TELEVISION STATION: WSET/Lynchburg
Gentlemen:
The following shall constitute the agreement (the "Agreement") between American
Broadcasting Companies, Inc. ("ABC," "Network," "us" or "we") and WSET,
Incorporated ("you" or "your"), for program carriage and promotion on your
station, ("WSET," or "Station"). We and you hereby mutually agree upon the
following, which shall replace, effective upon execution hereof, the affiliation
agreement between you and us dated March 12, 1996, as amended.
I. NETWORK AFFILIATION AND PROGRAM SERVICE
A. PRIMARY AFFILIATION.
Your Station agrees to serve as our primary affiliate to broadcast Network
Television Programs, as hereinafter defined, in the community to which Station
is licensed by the Federal Communications Commission ("FCC"), subject to the
conditions and limitations set forth herein. As used in this Agreement, "Network
Television Program" means the complete television program or series of such
programs which is a part of the ABC Television Network schedule broadcast on a
national television basis and in the time period established for such broadcast
in Station's time zone by ABC, subject to any time period adjustments contained
herein. (Network Television Program will also be referred to herein as "network
programs," "television programs," "programs" or "programming" or in the singular
of such terms.)
B. FIRST CALL RIGHTS.
To enable your Station to serve as our primary affiliate, we agree to offer your
Station first call on the right to broadcast Network Television Programs, in the
community to which Station is licensed by the FCC, during the relevant time
period established by ABC for
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their broadcast in the Station's time zone (subject to delayed broadcasts as
permitted herein) ("First Call Rights"), for over-the-air reception by the
general public in places to which no admission is charged. Each such offer shall
set forth the terms of acceptance. 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.
1. First Call Offer.
a. Regularly Scheduled Programs. You agree that, within 15 days
following its receipt of our offer via the Affiliate
Communications System ("ACS") (or any replacement system) of a
First Call Right to a regularly scheduled Network Television
Program, Station will, consistent with its clearance obligations
as provided in Section I.C.2 below, advise us of its acceptance
(if requested to do so by the terms of our offer) or rejection of
the program. Acceptance by Station of our offer of a First Call
Right shall constitute Station's commitment to broadcast the
subject Network Television Program(s) in accordance with the
terms of this Agreement and the terms of our offer to Station.
Acceptance of a program, and its broadcast in accordance with the
terms of this Agreement and the offer, is referred to herein as
"to clear" or "clearance" of a program.
b. Other Programs. With respect to any Network program not regularly
scheduled or not part of Station's clearance obligations as
provided in Section I.C.2 below, Station will advise us of its
acceptance or rejection of our offer of a First Call Right within
seventy-two (72) hours (exclusive of Saturdays, Sundays and
holidays) after such offer has been received at Station. However,
if the first broadcast referred to in our offer is scheduled to
occur within less than fifteen (15) days after the date of our
offer with respect to regularly scheduled network programs or
less than seventy-two (72) hours after our offer has been
received at Station with respect to Network Programs not
regularly scheduled, notification of acceptance or rejection of
such offer shall be made as promptly as possible, but in no event
after the first broadcast time specified in such offer.
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2. Network Program Offerings. You will be offered First Call Rights
with respect to:
a. Network Sponsored Programs. "Network Sponsored Programs," as used
in this Agreement, shall mean those Network Television Programs
which contain one or more commercial announcements paid for by or
on behalf of one or more ABC network advertisers. Subject to the
clearance obligations in Section I.C.2, below, Station agrees 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
Station accepts, without interruption, modification, technical
degradation, deletion or addition of any kind (except for FCC
mandated local breaking news or emergency notification crawls).
This obligation includes unaltered carriage and pass through of
all content associated with network programs (including all
commercial and promotional advertisements) contained in the
Network feed that ABC associates with a Network Sponsored Program
including all enhanced and interactive content and enhanced and
interactive advertisements (including associated uniform (or
universal) resource locators Internet addresses and triggering
devices) as well as: (i) closed captioning information, (ii)
program identification codes, (iii) broadcast flags and
watermarks, (iv) rating information and data, and (v) secondary
audio programming feeds (collectively referred to herein as
"Program Related Material"). Notwithstanding the foregoing,
Station may substitute other Network promotional announcements
designated by ABC in lieu of program promotional material, which
is inaccurate as it pertains to Station. It is also understood
that no commercial announcement, promotional announcement or
public service announcement will be broadcast by Station during
any interval within a Network program designated by ABC as being
for the sole purpose of making a station identification
announcement.
b. Network Sustaining, Cooperative and Spot Carrier Programs.
i) We will from time to time offer you live or recorded Network
Television Programs identified as sustaining
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programs, cooperative programs or spot carrier programs. Except
as set forth below in Subsections I.B.2.b (ii) and (iii), you
agree to broadcast such programs which you accept in their
entirety, including all Program Related Material, without
interruption, modification, technical degradation, deletion or
addition of any kind (except for FCC mandated local breaking news
or emergency notification crawls).
ii) 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.
iii) 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. NETWORK STATION COMPENSATION, PROGRAM CLEARANCE AND PREEMPTION.
1. Compensation. "Network Station Compensation" will be paid monthly
during calendar year 2004 in accordance with that certain Primary
Television Affiliation Agreement, dated as of March 12, 1996, by
and between WSET and ABC. Beginning on January 1, 2005, your
monthly Network Station compensation will be determined by the
formula set forth in Schedule A attached hereto and made a part
hereof. Your network station rate, the table of daypart
percentages forth in Schedule A (respectively, the "Original
Network Station Rate," and the "Original Percentages") shall be
used to calculate your compensation and are all subject to
adjustment as follows:
a. Loss of Compensation. Notwithstanding anything herein to the
contrary including, without limitation, authorized preemptions
under Section I.C.3 below, Station will earn compensation only
for Network Programs, which it clears. If Station fails to clear
a program or preempts an episode (whether on a Network approved
one-time-only ("OTO") basis or a multiple time basis) of a
previously cleared program for any reason, your monthly Network
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Station Compensation will be reduced by the amount of
compensation attributable to such program as provided in Schedule
A hereto.
b. Program Discontinuance. If Network discontinues programming a
time period that is currently part of the ABC Television Network
program schedule, then the Network Station Compensation described
in Section I.C.1 that is associated with that time period shall
be eliminated, effective on the date such change occurs.
c. Program Additions. If Network offers First Call Rights to a
program in a time period not currently part of the ABC Television
Network program schedule, and Station agrees to clear it, then
compensation will increase in accordance with Schedule A unless
modified by the terms of the offer of First Call Rights to the
program.
2. Clearance Obligations. Station agrees to the following clearance
obligations:
a. Network Schedule. Subject only to the preemption exceptions set
forth in Section I.C.3., below and to the Right to Reject
limitations set forth in FCC Rules as referenced in Section V.D.,
below, Station shall clear all of the programs supplied by
Network during the Term of this Agreement in the time periods of
the ABC Television Network program schedule (as set forth in
attached Exhibit 1), for as long as the Network continues to
program such time periods.
b. Program Specific Clearances. Station is also subject to the
following additional clearance obligations:
i) ▇▇▇▇▇ ▇▇▇▇▇▇ Live
Beginning upon execution of this Agreement and upon notice from
Network, Station agrees to clear the one-hour "▇▇▇▇▇ ▇▇▇▇▇▇ Live"
program in its Network designated in-pattern time period. After
December 31, 2005, and continuing for the remaining term of this
Agreement, if ▇▇▇▇▇ ▇▇▇▇▇▇ is no longer host of the program,
Station agrees to clear on a one-time 13 week test basis any
replacement program in the same time period so long as the format
of the replacement program remains substantially similar to the
current program airing in the 2003/2004 season. Upon notice from
ABC, Station
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agrees to clear "▇▇▇▇▇ ▇▇▇▇▇▇ Live" one half-hour earlier from
its current time period in the event that "Nightline" is removed
from the Network Schedule. Station will continue to receive the
current "Nightline" primetime incentive inventory for so long as
"▇▇▇▇▇ ▇▇▇▇▇▇ Live" remains in the new time slot. Additional
Network Station Compensation associated with in-pattern clearance
of "▇▇▇▇▇ ▇▇▇▇▇▇ Live" will be paid to Station through December
31, 2004 pursuant to Section I.C.1, above, in accordance with
Schedule A commencing upon clearance of the program. [SEE
SCHEDULE 1 FORM CHANGES ITEMS A & B]
ii) Nightline
Station will clear "Nightline" live, in-pattern, so long as the
program continues to be titled "Nightline" and retains a similar
news format. It is understood that a change of anchor does not
represent a change in program format. [SEE SCHEDULE 1 FORM
CHANGES ITEMS C & D]
iii) The View
Station will clear "The View" live, in-pattern so long as the
program is called "The View" and substantially similar to the
current show airing in the 2003/2004 season. It is understood
that a change in talent/hosts does not constitute a change in
program format.
iv) Good Morning America - Sunday
Station will clear "Good Morning America - Sunday" during
one-hour on Sunday mornings, between the hours of 7am-12:30pm for
so long as the program is offered to the Station and provided
that a 7am Eastern Time program feed continues to be available
for use by the Station. Station's current intention is to clear
the program at 8am on Sunday, leading into "This Week" during the
2004-2005 season. Station will give good faith consideration to
continue that time period clearance during the Term. In the event
Network cancels "Good Morning America - Sunday," Station will
clear an additional hour of Network supplied children's
programming on Saturdays or Sundays between the hours of
7am-12:30pm. [SEE SCHEDULE 1 FORM CHANGES ITEM E]
v) NBA Inside Stuff
Station will clear "NBA Inside Stuff" on Sundays at 12:30p.m.
during the months of September through February and Saturdays at
1:00 p.m. from March through August for so long as the program is
offered to the Station. To accommodate this clearance Network
will reduce the
7
Network sports Schedule on the weekends by twenty-six (26) hours
per calendar year, which time shall be available for Station use
during the year.
vi) Children's Programming
In the event that Network fails to offer First Call Rights to
enough FCC approved children's core educational programming to
allow Station to meet its FCC mandated educational children's
programming requirement, then Station's obligation to clear
Network programming during the Saturday morning time period shall
be reduced by only the amount needed to allow Station to
broadcast the substitute FCC mandated minimum amount of core
educational children's programming to replace that which is no
longer being offered by the Network. ABC will designate the
Network program(s) that Station may stop clearing in order to
implement this adjustment.
3. Preemptions. Station will be permitted in the aggregate a maximum
of *** separate one-half hour Preemptions per calendar year (the
"Preemption Basket"). All preemptions of any nature shall be
counted against the Preemption Basket, including (i) the failure
to clear and broadcast any program offered to Station that it is
required or has agreed to clear pursuant to this Agreement, and
(ii) any failure to broadcast, whether on a OTO or multiple time
basis, an episode of a previously accepted program.
Notwithstanding the preceding sentence, non-scheduled local
breaking news preemptions will not be counted against the
Preemption Basket. Station must provide specific dates of all OTO
Preemptions at least fourteen (14) days in advance and the
requested dates must be approved by the Network in advance.
Preemptions made pursuant to the FCC's right to reject rule (the
"Right to Reject Rule") shall also count against the Preemption
Basket; provided, however, any preemption made pursuant to the
Right to Reject Rule occurring after the Preemption Basket has
been fully utilized in any given calendar year shall not be
deemed to be a breach of this Agreement. The broadcast by Station
of preempted programs at another date or time ("Makegoods") shall
be at Network's sole discretion and may earn reduced compensation
in an amount to be determined by Network and the preempted time
may be added back to the preemption basket at Network's sole
discretion. [SEE SCHEDULE 1 FORM CHANGES ITEM F]
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a. Preemption Reimbursement. In addition to any reduction of Network
Station Compensation caused by a preemption, Station will
promptly reimburse Network for preemptions in excess of the
Preemption Basket in any given calendar year in an amount equal
to the product of the Station's Hourly Network Reimbursement Rate
(as set forth below) multiplied by the appropriate Reimbursement
Matrix percentage set forth below provided, however, that
preemptions made pursuant to the Right to Reject Rule are not
subject to such reimbursement.
Pre-emption Reimbursement Matrix (hourly)
Prime 100%
Daytime 20%
News-GMA/Nightline 25%
News-WNT 60%
Latenight (non-news) 15%
Kids 10%
Weekend Sports 40%
Hourly Network Reimbursement Rate:
----------------------------------
Lynchburg $5,900.00
b. Reimbursement Adjustments. The Hourly Network Reimbursement Rates
shall be applied to preemptions occurring in calendar year 2005.
Commencing with calendar year 2006 and continuing throughout the
remainder of the Term, the Hourly Network Reimbursement Rates
shall be adjusted on annual basis in an amount equal to the
product of the immediately preceding year's Hourly Network
Reimbursement Rate multiplied by the percentage change in total
Network sales revenue (as published by the Broadcast Cable
Financial Management Association (the "BCFMA") or another
mutually agreed industry standard publication should the BCFMA
cease publication). Reimbursement payments for Makegoods approved
by the Network will be reduced by the value of such Makegood as
determined by Network in its sole discretion.
9
D. FAILURE TO CLEAR PROGRAMS.
1. Notice. With respect to programs already accepted pursuant to the
First Call Offer in Section I.B.1, Station shall give us prompt
notice of any refusal to broadcast the program(s), rejection of
the program(s)or substitution of different program(s)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 Station agrees to
give us as much notice as possible under the circumstances. Such
notice shall include a statement of the reason(s) Station
believes 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.
2. First Call Termination - Unauthorized Preemptions. In addition to
all other remedies, we shall have the right, upon fourteen (14)
days' notice, to terminate Station First Call Rights on any
series of Network programs already accepted hereunder and
withdraw all future episodes of that series if one or more
individual program episode(s) is pre-empted by you for any reason
other than those set forth in Section V.D, below, or as a result
of an OTO preemption allowable under your Preemption Basket.
3. First Call Termination - Multiple Preemptions. We shall also have
the right, upon fourteen (14) days' notice, to terminate
Station's First Call Rights concerning any series of Network
programs already accepted hereunder and to withdraw all future
episodes of that series if three (3) or more individual program
episodes are pre-empted by Station in any consecutive thirteen
(13) week period for any reason, whether or not such preemptions
are for the reasons set forth in the FCC Right to Reject rule or
as a result of an OTO preemption.
4. First Call - Future Rights. We reserve the right not to offer to
Station First Call Rights for the current and subsequent
broadcast seasons on any Network program or series of Network
programs as to which we have terminated Station's First Call
Rights. Network may also refuse to offer to Station First Call
Rights for the current and subsequent seasons of a Network
program or series of
10
Network programs if Station has refused or failed to accept or
clear that program or series.
5. Compensation Reduction - Agreement Termination. A failure to
accept a program or series of programs pursuant to the clearance
obligations set forth in Section I.C.2, above, or failing to
broadcast said program or series in accordance with this
Agreement after acceptance, shall constitute a failure to clear
the program. Three (3) or more preemptions of an accepted program
during any consecutive thirteen (13) week period for any reason
shall also constitute a failure to clear the program. In addition
to the measures outlined in Section I.D.1-4, above, if Station
fails at any time to comply with the program clearance
requirements set forth in Section I.C.2 above, and we give you
written notice of such failure, Station shall have forty-five
(45) days following receipt of such notice for the first such
failure to return to complying fully with the clearance
requirements. The cure period will be reduced to seven (7) days
for any notices for the next and any subsequent failures. Only
one such notice will be given for any specific failure to clear.
If by the end of such period, Station fails to return to
complying fully with such obligations, we shall have the right,
in our sole discretion, to reduce your monthly Network Station
Compensation as set forth in Section I.C.1 above, and Station's
network station rate as set forth in Schedule A, by up to and
including twenty-five (25) percent upon written notice to
Station. We shall also have the right in our sole discretion,
subject to Section V.D., below, in addition to any other remedy
set forth in this Agreement, to terminate this Agreement upon no
less than ninety (90) days' written notice to Station.
E. LOCAL NEWS.
In order to serve Station's local community and to promote local and Network
audience flow for the benefit of Station and Network, Station shall maintain,
during the term of this Agreement, locally produced news programs of at least
thirty (30) minutes in length adjacent to "World News Tonight," ("WNT") leading
into "Good Morning America" ("GMA"), and leading into the Network's late night
programming. In the event that Station discontinues its local news lead-in to
"Good Morning America" then, upon notice from Network and in addition to any
other remedies provided in this Agreement, Station shall clear ABC's "World News
This Morning" (or any replacement early news program) in the "Good Morning
America" lead-
11
in time period. Station further agrees to continue to subscribe to NewsOne or
any replacement affiliate news service and timely pay for that service during
the Term of this Agreement. Station will not, however, be obligated to
participate in more than one Network news service. [SEE SCHEDULE 1 FORM CHANGES
ITEM G]
F. PROMOTION.
Station will fully participate in Network's (1) "Baseline Promotion Plan"
described below, and (2) affiliate co-op program. Station's participation will
conform to ABC's reasonable standard terms offered generally to affiliates.
1. Baseline Promotion Plan.
a. Weekday. Station will provide eleven (11) local commercial spots
per weekday (time periods and lengths delineated below) for
promotion of Network programming. Network shall designate the
content of such spots. An illustrative initial designation of
Network priorities for Monday through Friday Eastern Time is
reflected below.
ABC Baseline Promotion Weekday Schedule:
----------------------------------------
5-7am: 2x (:15) supporting GMA
1x (:20) supporting Prime
9am-4pm: 1x (:20) supporting Prime or "The View"
2x (:20) supporting Prime
4-7pm: 1x (:15) supporting WNT
2x (:20) supporting Prime
7-8pm: 1x (:20) supporting Prime
11-11:35pm: 1x (:15) supporting Late Night
b. Weekend. Station will provide five (5) local commercial spots per
weekend day including four (4)twenty second (:20) spots each day
for supporting Prime to air between 7am-8pm (at least one promo
to run in Prime Access between 7pm and 8pm on Saturday and
6pm-7pm on Sunday) as well as one (1) fifteen second (:15) spot
each weekend day supporting "World News Tonight" in the hour
prior to that program (all times Eastern).
2. Network Availabilities. In return for complete participation in
the Baseline Promotion Plan, Station will have access to four(4)
additional thirty second (:30) primetime spots per week, as well
as the Network's authorization to convert seven (7) current
thirty second
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(:30)- local newsbrief opportunities in Prime Time (one per day)
to local sale. These spots previously have been associated with
Station's commitment to the Affiliate Promotion Swap plan.
3. Cross Promotion. Station agrees to participate in the Network
Affiliate Plan ("N/AP II") referenced herein in Section V.A.
below. The cross-promotion provisions reflected in Section V.3 of
N/AP II will be extended for the entire Term of this Agreement.
G. PROGRAM DELIVERY.
By means satisfactory to us, we will arrange, at our own expense, for programs
to be delivered to Station. We may require that Station purchase the Network
approved reception devices, hardware and software, necessary to receive ABC
network programs for broadcast under this Agreement in accordance with Network's
then current network-signal reception equipment standards, which standards will
be reasonable and consistent with those applicable to Network affiliates
generally.
H. DIGITAL PROGRAM DELIVERY.
1. First Call Rights and Clearance. In exchange for the
consideration received under this Agreement, Station agrees to
become ABC's primary affiliate with respect to the over-the-air
programming that ABC distributes in a digital ("DTV") format as
set out in this Section. Station agrees to clear, in accordance
with the terms and conditions of this Agreement, the simulcast
digital feed of the analog service (or its equivalent in the
event that the Station is required to relinquish its analog
spectrum). In addition, Station will have the First Call Right to
the over-the-air broadcast of any additional channels of
programming contained in the digital feed. In the event that
Station declines the First Call Rights for an additional channel,
ABC shall be free to distribute that channel by any other means
and without being limited by the terms of this or any other
agreement in the community of license of the Station. Network and
Station agree to negotiate in good faith with respect to other
potential uses of the Station's spectrum.
2. Technical Clearance. Station agrees to transmit on its DTV
channel the digital feed of all network programs it is obligated
to or otherwise agrees to clear, including
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HDTV programs and Program-Related Material, in a technical format
consistent with ATSC standards, without alteration, modification,
insertion, degradation or down conversion of any type. [SEE
SCHEDULE 1 FORM CHANGES ITEMS H & I]
I. COMMERCIAL INVENTORY.
For all time periods, ABC will continue during the term of the Agreement to
offer to Station substantially the same local availabilities at substantially
the same times as are then offered to non-Network owned ABC affiliates generally
but in no event lower than those offered generally during the 2002-2003 season;
provided that incentive spots associated with additional clearance obligations
will be offered conditioned upon Station's acceptance of the incentive criteria.
Local availabilities associated with N/AP II or its successor agreements and the
Baseline Promotion Plan are treated elsewhere in this Agreement and are not
governed by this Section. Inventory availabilities can be further adjusted for
(a) the number of local units in Network programming that is not cleared by the
Stations; (b) the number of local units that are lost as a result of sustaining
programming, or special event programming, run by the Network in lieu of Network
programming that would otherwise bear a more traditional commercial load; and
(c) the number of local units lost as result of a reduction in the amount of
Network programming including incentive spots associated with cancelled programs
or time periods, subject to the provisions of Section I.C.2.b involving the
possible move of "▇▇▇▇▇ ▇▇▇▇▇▇ Live" to the "Nightline" time period. In the
event that ABC does not offer the inventory (as adjusted above), ABC shall make
Station whole for the then current economic value to the Station of any
shortfall by (aa) providing other local commercial availabilities of such value,
or (bb) adjusting the Station's compensation by that amount, or (cc) a
combination of (aa) and (bb) that would make the Station whole.
J. COMPENSATION AND CLEARANCE UPON ASSIGNMENT.
In the event that this Agreement is assigned by you as provided in Section V.I
below, then, upon the effective date of such assignment: (i) Station shall,
subject only to the Right to Reject and the Preemption Basket, be obligated to
full live in-pattern clearance of all network programs then a part of the
Network schedule; and (ii) Commencing on January 1, 2010 or the effective date
of the assignment (whichever occurs later), Network Station Compensation through
the remaining term of this Agreement will be completely eliminated.
II. TERM
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This Agreement shall be effective from upon execution hereof and continue
through and including December 31, 2012 (the "Term").
III. NETWORK NON-DUPLICATION PROTECTION/CABLE RETRANSMISSION
A. NON-DUPLICATION.
Station shall be entitled to network non-duplication protection, as defined by
Section 76.92 of the FCC rules, as follows:
1. The geographic zone of network non-duplication protection shall
be the Designated Market Area ("DMA") (as defined by the ▇.▇.
▇▇▇▇▇▇▇ Company) in which Station is located, or any lesser zone
pursuant to any geographic restrictions contained in the FCC
rules and regulations, now or as subsequently modified.
2. Network non-duplication protection shall extend to all Network
programs that Station broadcasts in accordance with this
Agreement. Protection shall not extend to individually pre-empted
programs of an otherwise cleared series.
3. Network non-duplication protection for Network programs that
Station broadcasts in accordance with this Agreement shall be
effective only for the simultaneous live time period designated
by us for broadcast of such Network programs by Station.
4. You are under no obligation to exercise in whole or in part the
network non-duplication rights granted under this Agreement.
B. CABLE RETRANSMISSION.
With respect to the analog version of Network Television programs and the
simulcast digital feed of the analog service, or its equivalent in the event
that Station relinquishes its analog spectrum(the "Primary Channel")and subject
to the provisions of NAP II or any successor agreement to which you are a party,
you are authorized to grant retransmission consent, pursuant to Part 76 of the
FCC Rules, to cable systems (and other multichannel video program distributors,
"MVPDs") located within your DMA and areas where your station is "significantly
viewed" as defined by Section 76.54 of the FCC Rules. In the event that ABC and
Station agree upon such conditions as the parties may then decide to pool their
retransmission rights with respect to the Primary Channel for the
15
purposes of coordinated retransmission negotiations, then Network and Station
will share fifty percent (50%) of any monies received by Station (or its parent
and affiliated companies) in exchange for or attributable to the grant of
Station's retransmission consent for the Primary Channel above what Station
received prior to pooling retransmission consent rights with the Network.
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 or promotional announcement 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 Station alone, or (b)
originate from Station cut-in announcements to one or more other
stations, without regard to whether or not Station is requested
to broadcast said cut-in announcement(s). Notwithstanding
anything herein to the contrary in, you may refuse to broadcast
any such cut-in announcement in the community to which Station is
licensed by the FCC if, in your opinion, it does not serve 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 Station
to one or more other Network-affiliated 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. For each program during which such cut-in announcements are
included, if we have requested your assistance we shall pay you
in accordance with the applicable table set forth in Schedule B
hereto, unless the cut-in involves the substitution of Station's
local commercial, in which case no additional compensation or
reimbursement will be paid to the Station.
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
16
a Network advertiser, not exceeding ten (10) seconds of a one-minute Network
commercial announcement or five (5)seconds of a thirty-second Network commercial
announcement projected by means of an electronic insert.
1. Upon at least twenty-four (24) hours' notice, you shall, at our
request, furnish 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 information 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 therefore and shall have
assumed sole responsibility for payment of such oral
announcements.
3. For each program during which such Local Tag Announcements are
included, if we have requested your assistance we shall pay you
in accordance with the applicable table set forth in Schedule B
hereto.
V. GENERAL
A. NETWORK/AFFILIATE PLAN.
The side letter amendments dated June 30, 1999 ("N/AP I")and even date herewith
("N/AP II"), attached hereto as Schedules C and D, respectively, are
incorporated herein and made a part of this Agreement. The parties agree to
negotiate in good faith regarding a successor agreement to N/AP II with the
expectation that Station will be a full participant in such successor agreement.
B. PROGRAM SUBSTITUTION.
We may at any time, upon notice to Station, 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.
C. PROGRAM CANCELLATION.
Nothing contained in this Agreement shall prevent or hinder us, nor shall it be
construed to prevent or hinder us, at any time upon notice to Station as soon as
practicable, from canceling one or more Network programs, whether sponsored or
sustaining.
17
D. RIGHT TO REJECT.
With respect to Network programs offered or already accepted pursuant to this
Agreement, nothing herein contained shall be construed to prevent or hinder
Station from exercising its rights under FCC rules to:
1. reject or refuse network programs which Station reasonably
believe to be unsatisfactory, unsuitable or contrary to the
public interest; or
2. substitute a program, which in Station's good faith opinion, is
of greater local or national importance.
E. CARRIAGE REPORTS.
Station will submit to us in writing, upon forms provided by us for that
purpose, such reports covering Network programs broadcast by Station as ABC may
reasonably request from time to time. To verify your carriage of Network
commercial announcements, identifications and program promotional material, we
may require delivery by Station, within five (5) days following our request,
copies of your official station logs, air checks or broadcast tapes, and we may
install at Station, monitoring equipment and attendant software that monitors
your Station's broadcast signal.
F. FORCE MAJEURE.
Neither Station nor we shall incur any liability hereunder because of our
failure to deliver, or Station's failure to broadcast, any or all Network
programs due to:
1. failure of facilities
2. labor disputes, or
3. causes beyond the control of the party so failing to deliver or
broadcast.
G. TRANSMITTER MODIFICATIONS.
Station agrees to notify us of any application made to the FCC to modify
Station's transmitter location, power, frequency or hours of operation within
ten (10) days following the filing of such application. In the event that the
transmitter location, power, frequency or hours of operation of Station are
changed at any time so that Station is of less value to us as a Network outlet
than it is as of the effective date of this Agreement including, but not limited
to, as a result of additional overlap of Station's broadcast signal with that of
another ABC affiliate, we will have the right to terminate this Agreement upon
thirty (30) days' advance written notice.
18
H. TIME BROKERAGE/LOCAL MARKETING ARRANGEMENTS.
Except upon our prior written consent, which consent may be withheld for any
reason, you agree that Station will not enter into any local marketing, time
brokerage or similar agreement whereby another party or entity supplies
programming to Station, manages it or otherwise operates Station. If you or
Station enters into such an agreement without our written consent, we shall have
the right to terminate this Agreement upon fourteen (14) days' advance written
notice.
I. ASSIGNMENT.
The assignment provision (reflected in Paragraph 16 of N/AP II) will govern any
proposed assignments or transfers of this Agreement during the entire Term of
this Agreement.
J. LIMITED TRANSMISSION RIGHTS.
Your and Station's rights under this Agreement are limited to the First Call
Rights to Network Television Programs pursuant to the terms hereof. 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 the use of any
program which we supply to you hereunder for any purpose other than broadcasting
by Station pursuant to the terms hereof, in the community in which Station is
licensed by the FCC, for over the air reception by the general public in places
to which no admission is charged. You agree when you are authorized to record a
program for subsequent broadcast that the recording will be broadcast not more
than once in its entirety and will be erased or deleted from your system within
six (6) hours following use. All rights not specifically granted to you by this
Agreement shall be retained by Network.
K. REBROADCAST/RECORDING RESTRICTIONS.
Except with our prior written consent (or as provided in the Cable
Retransmission Section III.B above) and upon such terms and conditions as we may
impose, which consent may be withheld for any reason, you and Station agree not
to authorize, cause, permit or enable (1) any recording on film, tape or
otherwise to be made or broadcast of a program which has been, or is being,
broadcast on the Network; or (2) a rebroadcast or a retransmission to be made of
the broadcast transmission of Station during any hours when Station is
broadcasting a program provided by Network.
L. PROMOTION RESTRICTIONS.
With respect to any and all promotional material issued by Station or under your
direction or control, you agree to abide by any and all restrictions of which we
advise you pertaining to the promotion
19
of a Network program(s) scheduled to be broadcast by Station in its community,
including, without limitation, on-the-air promotion, billboards, and newspaper
or other printed advertisements, announcements or promotions.
M. LICENSE MAINTENANCE.
You agree to maintain for 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. Network currently clears 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 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.
N. ENTIRE AGREEMENT; INDUCEMENTS; WAIVER.
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 agreement and understanding 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.
O. NOTICES.
All notices, demands, requests or other communications which may be or are
required to be given or made by ABC or you pursuant to this Agreement (except
for our program offers and your notices of acceptance or rejection, if required,
of such offers and any other program information or program administration
communications) shall be delivered (postage or fee prepaid) by first-class mail,
express mail, express delivery service or by facsimile transmission addressed as
follows:
20
1. If to you:
General Manager
WSET-TV
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
General Counsel
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
2. If to ABC:
▇▇▇▇ ▇▇▇▇▇
Senior Vice President
Affiliate Relations
ABC Television Network
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
ABC, Inc.
Law & Regulation Department
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other person, address or facsimile number as you or ABC may designate
by written notice. Any notice under this Agreement shall be deemed duly received
i) on the first business day following the date such notice was deposited with
express mail or an express delivery service ii) on the third business day
following the date of mailing whether or not accepted by the addressee, or
21
iii) at the time of facsimile transmission with a confirmation of receipt, as
the case may be.
P. CHOICE OF LAW.
This Agreement and all questions relating to its validity, interpretation,
performance, and enforcement (including, without limitation, provisions
concerning limitations of action), shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflict-of-laws thereof. For the purposes of any suit, action or
proceeding involving this Agreement or its performance, you hereby submit to the
jurisdiction of all Federal and State courts sitting in the County of New York
and agree that such courts shall have exclusive jurisdiction over any suit,
action or proceeding involving this Agreement or its performance.
Q. TERMINATION EFFECT.
Upon termination of this Agreement, the consent theretofore granted to broadcast
our Network programs or use ABC logos or trademarks shall be deemed immediately
withdrawn and you shall have no further rights of any nature whatsoever in such
programs, logos or trademarks.
R. UNIQUE SERVICES.
You acknowledge that, in view of the uniqueness of the plan of network
cooperation set forth in this Agreement, in the event that your obligations
under this Agreement are not performed in accordance with its terms, Network
would not have an adequate remedy at law and therefore agree that Network shall
be entitled to specific performance of the terms hereof in addition to any other
remedy to which it may be entitled at law or in equity.
S. INDEMNIFICATION.
You and Station agree to indemnify and hold Network and its parent corporation,
subsidiaries and their respective officers, directors, agents and employees,
successors and assigns harmless from and against any and all claims made against
us and all damages, liabilities, costs and expenses incurred as a result of such
claims, including reasonable attorney's fees, arising out of the broadcast by
Network of any material supplied by you to Network in accordance with this
Agreement, and we agree to indemnify and hold you harmless from and against any
and all claims made against you and all damages, liabilities, costs and expenses
incurred as a result of such claims, including reasonable attorney's fees,
arising out of the broadcast by you of any material provided by Network to you
in accordance with this Agreement. It is understood that the foregoing
indemnities shall apply only with respect to
22
materials that are broadcast without change from the form and content in which
such materials were originally provided and in strict conformance to any
instructions or limitations given by the party providing the material. Each
party will notify the other promptly of any litigation or claim to which such
indemnity applies and will cooperate fully in the defense at the other party's
request. The provisions of this Section V.S. shall survive the expiration or
earlier termination of this Agreement.
T. NO JOINT VENTURE.
Nothing in this Agreement shall create any partnership, association, joint
venture, fiduciary or agency relationship between Network and you or Station.
U. HEADINGS.
The headings herein are for convenience purposes only and shall not create or
modify the meanings of any term or provision of this Agreement.
If, after examination, you find that the arrangement herein proposed is
satisfactory to you, please indicate your acceptance by signing the copy of this
Agreement enclosed for that purpose and returning such executed copy to us.
Very sincerely yours,
AMERICAN BROADCASTING COMPANIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
Accepted this 24th day of
______
March , 2004
_______________
WSET Incorporated:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
________________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Exec. Vice President
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications regarding Section I.C.3.a
are acceptable to you, please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Executive Vice President
Harrisburg Television, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreement between Harrisburg Television, Inc. and
the ABC Network dated as of this date ("Agreement"). This letter provides the
following clarifications. To the extent that any provision of this letter is in
conflict with the provisions of the Agreement, the provisions of this letter
will prevail.
***
All other provisions of the Agreement will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
Harrisburg Television, Inc. (WHTM)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Executive Vice President
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications regarding Section I.B.2
are acceptable to you, please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
March 10, 2004
▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President & COO
▇▇▇▇▇▇▇▇▇▇ Communications Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ***
Dear ▇▇. ▇▇▇▇:
You have requested clarification with respect to the above-referenced
provision of the Affiliation Agreements between the various ▇▇▇▇▇▇▇▇▇▇
affiliated stations and the ABC Network dated as of this date ("Agreements").
This letter provides the following clarifications. To the extent that any
provision of this letter is in conflict with the provisions of the Agreements,
the provisions of this letter will prevail.
***
All other provisions of the Agreements will remain in effect without
modification. To the extent that these clarifications are acceptable to you,
please sign below where indicated.
Sincerely,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
ACCEPTED AND AGREED:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA); Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET); WCIV, LLC (WCIV); TV Alabama, Inc. (WCFT/WJSU); KATV,
LLC (KATV); and KTUL, LLC (KTUL)
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
President and Chief Operating Officer
SCHEDULE 1
The preceding Affiliation Agreement is identical in all material respects to
those entered into between American Broadcasting Companies, Inc. and the
following entities except as cross referenced in the agreement text with changes
reflected in the substituted paragraphs below:
▇▇▇▇▇▇▇▇▇▇ Communications Company (WJLA);
Harrisburg Television, Inc. (WHTM);
WSET, Incorporated (WSET);
WCIV, LLC (WCIV);
TV Alabama, Inc. (WCFT/WJSU);
KATV, LLC (KATV); and
KTUL, LLC (KTUL)
A. For KATV
Station may delay by one-half hour its broadcast of the "▇▇▇▇▇ ▇▇▇▇▇▇ Live"
program from its Network designated in-pattern time period. After December 31,
2005, and continuing for the remaining term of this Agreement, if ▇▇▇▇▇ ▇▇▇▇▇▇
is no longer host of the program, Station agrees to clear on a one-time 13 week
test basis any replacement program in the same delayed time period so long as
the format of the replacement program remains substantially similar to the
current program airing in the 2003/2004 season. Upon notice from ABC, Station
agrees to clear "▇▇▇▇▇ ▇▇▇▇▇▇ Live" one half-hour earlier from its current time
period as broadcast on the Station in the event that "Nightline" is removed from
the Network Schedule. Station will receive the current "Nightline" primetime
incentive inventory that is offered generally to affiliates in the event Station
clears the program in-pattern at 10:35pm following the removal of "Nightline."
Additional Network Station Compensation associated with in-pattern clearance of
"▇▇▇▇▇ ▇▇▇▇▇▇ Live" will be paid to Station through December 31, 2004 pursuant
to Section I.C.1, above, in accordance with Schedule A commencing upon clearance
of the program in-pattern.
B. For KTUL
Station may delay by one hour its broadcast of the "▇▇▇▇▇ ▇▇▇▇▇▇ Live" program
from its Network designated in-pattern time period. After December 31, 2005, and
continuing for the remaining term of this Agreement, if ▇▇▇▇▇ ▇▇▇▇▇▇ is no
longer host of the program, Station agrees to clear on a one-time 13 week test
basis any replacement program in the same delayed time period so long as the
format of the replacement program remains substantially similar to the current
program airing in the 2003/2004 season. Upon notice from ABC, Station agrees to
clear "▇▇▇▇▇ ▇▇▇▇▇▇ Live" one half-hour earlier from its current time period as
broadcast on the Station in the event that "Nightline" is removed from the
Network Schedule. Station will receive the current "Nightline" primetime
incentive inventory that is generally offered to affiliates in the event
Station clears the program in-pattern at 10:35pm following the removal of
"Nightline." Additional Network Station Compensation associated with in-pattern
clearance of "▇▇▇▇▇ ▇▇▇▇▇▇ Live" will be paid to Station through December 31,
2004 pursuant to Section I.C.1, above, in accordance with Schedule A commencing
upon clearance of the program in-pattern.
C. For KATV
Station may delay by one-half hour (from the Network designated time period) its
broadcast of "Nightline", and will otherwise continue to clear it so long as the
program continues to be titled "Nightline" and retains a similar news format. It
is understood that a change of anchor does not represent a change in program
format.
D. For KTUL
Station may delay by one hour (from the Network designated time period) its
broadcast of "Nightline", and will otherwise clear it so long as the program
continues to be titled "Nightline" and retains a similar news format. It is
understood that a change of anchor does not represent a change in program
format.
E. For WJLA
Notwithstanding the schedule on Exhibit 1, Station will clear "Good Morning
America - Sunday" during one-hour beginning at 800am on Sunday mornings,
adjacent to "This Week," to be cleared at 9am, for so long as GMA Sunday is
offered to the Station. In the event that Network cancels "Good Morning America
- Sunday," that time period will revert to Station but "This Week" will continue
to be cleared at 9am.
F. For KATV
Station will be permitted in the aggregate a maximum of three hundred eighty
three (383) separate one-half hour Preemptions per calendar year (the
"Preemption Basket"); provided, however, in the event that Station reduces its
clearance of Arkansas-related sporting events, its Preemption Basket will
decrease by the number of preemptions directly associated with such sporting
events; and provided further, that should the Network change its policy so as to
permit joining Network sports programming in progress, KATV's Preemption Basket
will also be reduced by the number of preemptions otherwise necessary to comply
with the policy against joining events in progress. All preemptions of any
nature shall be counted against the Preemption Basket, including (i) the failure
to clear and broadcast any program offered to Station that it is required or has
agreed to clear pursuant to this Agreement, and (ii) any failure to broadcast,
whether on a OTO or multiple time basis, an episode of a previously accepted
program. Notwithstanding the preceding sentence, non-scheduled local breaking
news preemptions will not be counted against the Preemption Basket. Station must
provide specific dates of all OTO Preemptions at least fourteen (14) days in
advance and the requested dates must be approved by the Network in advance.
Preemptions made pursuant to the FCC's right to reject rule (the "Right to
Reject Rule") shall also count against the Preemption Basket; provided, however,
any preemption made pursuant to the Right to Reject Rule occurring after the
Preemption Basket has been fully utilized in any given calendar year shall not
be deemed to be a breach of this Agreement. The broadcast by Station of
preempted programs at another date or time ("Makegoods") shall be at Network's
sole discretion and may earn reduced compensation in an amount to be determined
by Network and the preempted time may be added back to the preemption basket at
Network's sole discretion.
G. For WCIV
In order to serve Station's local community and to promote local and Network
audience flow for the benefit of Station and Network, Station shall endeavor but
shall not be required to maintain, during the term of this Agreement, locally
produced news programs of at least thirty (30) minutes in length adjacent to
"World News Tonight," ("WNT") leading into "Good Morning America" ("GMA"), and
leading into the Network's late night programming.
H. For WHTM
Station agrees to transmit on its DTV channel the digital feed of all network
programs it is obligated to or otherwise agrees to clear, including HDTV
programs and Program-Related Material, in a technical format consistent with
ATSC standards, without alteration, modification, insertion, degradation or down
conversion of any type. ABC acknowledges that WHTM's digital facilities are not
currently operational but Station agrees to use commercially good faith efforts
to commence digital broadcasting by November 1, 2004, or as soon thereafter as
feasible. This Section H will become effective upon the launch of Station's DTV
channel.
I. For WBMA
Station agrees to transmit on its DTV channel the digital feed of all network
programs it is obligated to or otherwise agrees to clear, including HDTV
programs and Program-Related Material, in a technical format consistent with
ATSC standards, without alteration, modification, insertion, degradation or down
conversion of any type. ABC acknowledges that digital facilities for WCFT and
WJSU are not currently operational but Station agrees to use commercially good
faith efforts to commence digital broadcasting by May 1, 2004 for WCFT and by
December 31, 2004 for WJSU, or as soon thereafter as feasible. This Section H
will become effective as to those Station's upon the launch of the Station's DTV
channel.