Broadcasting Oct 31 - American Radio History

Fox price increase for `M *A *S *H'
draws protests, lawsuits
Stations carrying sitcom argue
they are entitled to remaining
episodes at previous prices
Syndication prices that 20th Century-Fox is
asking for the last three years of M *A *S *H
are bringing howls of protest from stations
and, in at least a few instances, lawsuits
against the film company.
Fox has been taken to court in New Ha-
ven, Conn.; Omaha; Rockford, Ill., and At-
lanta, although the Atlanta case was subse-
quently settled before trial. In all these
cases, the stations had been carrying the off -
network blockbuster and claim they were
entitled, by contract, to license the remain-
ing episodes at the old price. Instead, they
say, Fox demanded prices that station law-
yers describe in words like "prohibitive" and
"unbelieveable."
There may be other cases. At least two
other stations were reported unofficially to
be in court, or thinking of going to court,
with similar complaints, but key officials
could not be reached last week and lesser
ones declined to discuss the question. An
example of the price escalation is offered in a
U.S. district judge's decision, handed down
earlier this month in a suit filed by Capital
Cities Communications on behalf of its
WTNH -TV New Haven, Conn. Capcities
claimed WTNH -TV has an exclusive license to
M *A *S *H in the Hartford -New Haven mar-
ket until Sept. I , 1985, and it asked the court
to issue a preliminary injunction barring Fox
from offering M *A *S *H episodes to any oth-
er station in the market before that date, and
also to bar wTxxtTV) Waterbury, Conn. -
which acquired rights to the last three
M *A *S *H years after Fox's negotiations
with WTNH -TV broke down -from showing
the 58 episodes in that package.
After four days of trial, U.S. District
Judge T.F. Gilroy Daly issued a decision on
Oct. 17 denying the motion for injunctions,
holding that Capcities and WTNH -TV had not
shown they would suffer "irreparable harm"
if the injunctions were not issued. In the
decision, he tracked the pricing.
In August 1977, he said, Fox and WTNH-
TV entered an agreement giving the station
exclusive rights in that market to all 119
M *A *S *H episodes that had then been pro-
duced. WTNH -TV's broadcast rights were to
start Sept. I, 1979, and end Sept. I, 1985,
and it was to pay Fox $1,738.09 per episode,
for a total license fee of $205,832.71. The
contract also provided that WTNH -TV "shall
purchase all additional episodes produced by
Fox."
In July 1979, the judge wrote, there was a
superceding agreement: By then, 173 epi-
sodes had been produced for the same six-
year term, 1979 to 1985, at the same per -
episode price of $1,738.09, for a new total
fee of $342,403.73. This agreement also
provided that "licensee hereby licenses all
M *A *S *H series pictures produced and to be
produced by Fox."
For CBS's 1980 -81, 1981 -82 and 1982 -83
Fox produced a total of 58 episodes -and
according to the judge's decision Fox offered
these to WTNH -TV at $15,000 each, contend-
ing that the final 58 episodes were not cov-
ered by the earlier license agreement.
WTNH -Tv said it would seek legal advice on
the question.
Two months later, in January 1983, ac-
cording to Judge Daly, WTNH-TV got in touch
with Fox and offered to terminate the old
agreement and enter a new one giving it
rights to all 255 M *A *S *H episodes at
$5,000 each. Fox rejected the offer, and a
week later WTNH -TV came back with a new
offer: $8,000 per episode for all 255. Fox
rejected that one, too, and subsequently ad-
vised the station it would commence negoti-
ations with other stations in the market.
WTNH -TV told Fox: "Please be aware of your
contractual obligations to this station."
After all that, Judge Daly wrote, Fox and
WTXX made a deal whereby wTxx could
start airing the final 58 episodes on Sept. 1
this year. The judge's decision does not say
what wTXX agreed to pay. Other sources sug-
gested it was about $10,000 per episode, and
that Fox's asking price to WTNH -TV had been
$12,000.
In denying WTNH -TV's motion for prelimi-
nary injunction, Judge Daly said the station
must prove that it would suffer irreparable
harm in the absence of the injunctions, and
that it had failed to do so. WTNH -TV's own
testimony about the use of ratings and their
relationship to revenues, he wrote, "clearly
indicates that WTNH will be able to ascertain
and measure any decrease in its revenues
brought about by [wTxx] showing the last 58
episodes of M *A *S *H."
In addition, he said, "the court must note
that, although [WTNH -TV] contends it will be
irreparably harmed if the defendants' activi-
ties are not enjoined, it waited six months,
until the eve of [wTxx`s] scheduled broad-
casting of M *A *S *H, before seeking any
[court] relief."
Norman L. Faber of the New York law
firm of Hall, Dickler, Lawler, Kent & How-
ley, counsel to Capital Cities, said last week
no decision had been reached on whether to
appeal the judge's denial of preliminary in-
junction. Appeal or not, however, Faber said
Capcities would proceed for trial on the case
on its merits.
Arnold Stream, a New York attorney for
Fox, questioned whether this would happen.
Broadcasting Oct 31 1983
61
He said he had filed last Thesday a motion
asking Judge Daly to dismiss the Capcities-
WTNH case; in its entirety." He contended
their only choice was to convert the suit into
a breach -of- contract case.
The WTNH -TV suit is the only known
M *A *S *H case to have reached the courtroom.
WsB- TVAtlanta had filed one that was getting
into the deposition stage, but it was settled
out of court. WsB -Tv officials said last
week that one of the terms of the settlement
was that none of the other terms would be
divulged, but that WSB -TV gained the right to
continue to carry M *A *S *H, all 255 episodes,
for another six years.
In Omaha, KMTV(TV) has filed suit in U.S.
district court claiming its contract with Fox
gives it the right to acquire the last 58 episodes
at the same price paid for the earlier
ones. Tom Opatka, attorney for iu rry said
the station had been paying $870.71 per episode
but that Fox was asking "over $7,000."
He said Fox tried to get the case transferred
to a court in California but that KMTV successfully
defeated that effort. He did not
know when the case might come to trial.
In the Rockford, Ill., market, watt -TV
Freeport went to court when, according to its
attorney, Fox demanded a 500% increase in
M *A *S *H fees. Brad Koch, the attorney,
said Fox wanted to raise its per -episode fee
for the first eight years of M *A *S *H production
from $818 to $4,000 and to charge
$4,500 per episode of production in years
nine and 10 and to $5,000 per episode for the
final year. There, Fox agreed not to market
M *A *S *H to other stations until the court
rules on the case ( "Telecastings," Aug.
22).
0
Revamping
`Break Away'
Syndicated show changes
host, format, in attempt
to bolster weak ratings
Major changes have begun to take place in
the format and on -air talent of Break Away,
a first -run information/entertainment maga-
zine that has been plagued by low ratings
since it premiered in 70 markets in mid -Sep-
tember.
Norman Mark, who had been appearing in
Break Away two or three times each week as
entertainment critic, took over last Monday
(Oct. 24) as co -host of the program , replac-
ing actor Monte Markham, whose delivery
has been criticized as "stiff." Mark, whose
background includes 13 years as Tv critic
for the Chicago Daily News, had substituted
for Markham several times and tested well
with viewers, according to executive pro-
ducer Alan Bennett.
In another change, announcer Gary