WNAC, LLC
` 470 Atlantic Avenue, Floor 4
` Boston, MA 02210,
`Plaintiff,
`
`v.
`
`
`VERIZON CORPORATE SERVICES
`GROUP INC.
` 1 Verizon Way
` Basking Ridge, NJ 07920,
`
`
`NEXSTAR MEDIA GROUP, INC.
`545 E. John Carpenter Freeway, Suite 700
`Irving, Texas 75062,
`
`
`
`
`
`
`
`
`CIVIL ACTION NO.
`
`JURY TRIAL
`DEMANDED
`
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 1 of 18
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`Defendants.
`
`
`COMPLAINT
`
`Plaintiff, WNAC, LLC (“WNAC”), alleges as follows, upon actual knowledge with
`
`respect to itself and its own acts, and upon information and belief as to all other matters:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff WNAC seeks monetary relief from Defendants’ willful violations of
`
`WNAC’s retransmission consent rights for its licensed local television broadcast station WNAC-
`
`TV (“the Station”).
`
`2.
`
`Defendant Verizon Corporate Services Group Inc. (“Verizon”) retransmitted the
`
`Station’s signal in the Station’s designated market area in 2017-2019 without the consent from
`
`
`
`1
`
`
` 470 Atlantic Avenue, Floor 4
` Boston, MA 02210,
`Plaintiff,
`
`v.
`
`
`VERIZON CORPORATE SERVICES
`GROUP INC.
` 1 Verizon Way
` Basking Ridge, NJ 07920,
`
`
`NEXSTAR MEDIA GROUP, INC.
`545 E. John Carpenter Freeway, Suite 700
`Irving, Texas 75062,
`
`
`
`
`
`
`
`
`CIVIL ACTION NO.
`
`JURY TRIAL
`DEMANDED
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 1 of 18
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`Defendants.
`
`
`COMPLAINT
`
`Plaintiff, WNAC, LLC (“WNAC”), alleges as follows, upon actual knowledge with
`
`respect to itself and its own acts, and upon information and belief as to all other matters:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff WNAC seeks monetary relief from Defendants’ willful violations of
`
`WNAC’s retransmission consent rights for its licensed local television broadcast station WNAC-
`
`TV (“the Station”).
`
`2.
`
`Defendant Verizon Corporate Services Group Inc. (“Verizon”) retransmitted the
`
`Station’s signal in the Station’s designated market area in 2017-2019 without the consent from
`
`
`
`1
`
`
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 2 of 18
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`
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`WNAC that is required by federal law, and without compensating WNAC. Verizon’s actions
`
`constitute direct copyright infringement under the Copyright Act, 17 U.S.C. §§ 101 et seq.
`
`3.
`
`Defendant Nexstar Media Group, Inc. (“Nexstar”) knew of and materially
`
`contributed to Verizon’s unlawful actions, and its actions thus constitute contributory copyright
`
`infringement.
`
`4.
`
`Nexstar had the right and ability to control Verizon’s unlawful actions and
`
`financially benefitted from Verizon’s unlawful actions, and its actions thus constitute vicarious
`
`copyright infringement.
`
`5.
`
`Verizon and Nexstar (together “Defendants”), separately and in concert with one
`
`another, engaged in unfair or deceptive representations and acts in colluding to retransmit the
`
`Station’s signal in 2017-2019 without WNAC’s required consent, with Nexstar secretly
`
`collecting payments for unlawful retransmissions from Verizon. Defendants’ deceptive acts and
`
`practices harmed WNAC, including by denying WNAC fair value compensation for the
`
`retransmissions of its signal, in violation of M.G.L. ch. 93A, § 11.
`
`6.
`
`Defendants’ conduct constitutes unjust enrichment under Massachusetts law,
`
`based on the fair market value of retransmitting the Station’s signal in the Station’s designated
`
`market area from 2017-2019, which occurred without WNAC’s consent and without
`
`compensating WNAC.
`
`PARTIES
`
`7.
`
`Plaintiff WNAC is a Rhode Island limited liability company with an address at
`
`470 Atlantic Avenue, Floor 4, Boston, MA 02210.
`
`8.
`
`Defendant Verizon is a New York corporation with a principal place of business
`
`at 1 Verizon Way, Basking Ridge, NJ 07920.
`
`
`
`2
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 3 of 18
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`
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`9.
`
`Defendant Nexstar is a Delaware corporation with a principal place of business at
`
`545 E. John Carpenter Freeway, Suite 700, Irving, Texas 75062.
`
`JURISDICTION AND VENUE
`
`10.
`
`This Court has jurisdiction over the subject matter of this action under 17 U.S.C.
`
`§ 501(c) and 28 U.S.C. §§ 1331 and 1338(a). The Court has supplemental jurisdiction over
`
`WNAC’s state law claims under 28 U.S.C. § 1367(a) because they are substantially related to its
`
`federal claims and arise out of the same case or controversy.
`
`11.
`
`This Court has personal jurisdiction over Defendants because they have
`
`purposefully availed themselves of the privilege of conducting business in Massachusetts.
`
`Nexstar owns and operates television broadcast station WPRI-TV and plays a substantial role in
`
`the operation of the Station. Both WPRI-TV and the Station transmit programming in
`
`Massachusetts. Verizon retransmits television programming in Massachusetts, including
`
`programming carried by the Station’s signal.
`
`12.
`
`Venue lies in this District pursuant to 28 U.S.C. § 1391(b) and (c) because a
`
`substantial part of the events giving rise to WNAC’s claims have occurred in this District and the
`
`rights at issue are located in this District.
`
`BACKGROUND ON RETRANSMISSION CONSENT RIGHTS
`
`13. Most households in the United States get their television programming by
`
`subscribing to a multichannel video programming distributor (“MVPD”)―typically a cable or
`
`satellite operator―which provides viewers with access to multiple video channels, often
`
`including the signals of television broadcast stations licensed by the Federal Communications
`
`Commission (“FCC”) to serve a particular household’s local market. More specifically, an
`
`MVPD typically receives, packages, and retransmits a broadcast station’s signal within that
`
`
`
`3
`
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 4 of 18
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`
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`station’s designated market area (“DMA”) as defined by Nielsen Holdings (“Nielsen”). DMAs
`
`comprise 210 distinct geographic regions in the United States, with each county in the country
`
`assigned to one of the DMAs. Local television viewing in each DMA is measured by Nielsen.
`
`14.
`
`The Communications Act of 1934, as amended (“Communications Act”),
`
`prohibits MVPDs from retransmitting a broadcast station’s signal unless they first obtain that
`
`station’s express consent, commonly known as “retransmission consent.” In certain scenarios,
`
`an MVPD may be required to retransmit a broadcast station’s signal, a requirement known as
`
`“must-carry.”
`
`15.
`
`Licensees of commercial broadcast television stations are required to elect
`
`between the two options of “must-carry” and “retransmission consent” every three years and
`
`must notify MVPDs of that election. Under Section 325(b)(l)(A) of the Communications Act,
`
`and Section 76.64(a) of the FCC Rules, if a television station exercises its retransmission consent
`
`rights, the MVPD cannot retransmit the station’s signal without having first obtained the
`
`station’s express consent. This consent must come from the FCC-approved licensee of the
`
`television broadcast station.
`
`16.
`
`Retransmission consent may be granted through a retransmission consent
`
`agreement between a television station and an MVPD. These agreements typically have a three-
`
`year term, but the term need not align with the FCC’s three-year cycle for retransmission
`
`consent/must-carry elections. For example, although the FCC may use 2015-2017 and 2018-
`
`2020 three-year cycles, the three-year cycle of a retransmission consent agreement may be 2017-
`
`2019. The retransmission consent agreement typically requires the MVPD to pay the broadcast
`
`station a monthly fee per subscriber for the right to retransmit the station’s signal.
`
`
`
`4
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`17.
`
`In some instances, a retransmission consent agreement may be negotiated by an
`
`MVPD and a third party acting on the television station licensee’s behalf (with the station’s
`
`explicit consent). Since April 2015, however, federal law has prohibited a certain type of joint or
`
`coordinated retransmission consent negotiation, namely a party’s negotiation of retransmission
`
`consent on behalf of a television station where that party is itself the licensee of another
`
`commercial television station in the same DMA. See 47 U.S.C. §§ 325(b)(1)(A) and
`
`(b)(3)(C)(iv) and 47 C.F.R. § 76.65(b)(1)(viii).
`
`WNAC AND ITS RETRANSMISSION CONSENT RIGHTS
`
`18. WNAC, LLC owns WNAC-TV (“the Station”), a local broadcast station that
`
`transmits television programming in the Nielsen-defined Providence, RI-New Bedford, MA
`
`Designated Market Area (“the Station’s DMA”). The Station broadcasts programming provided
`
`by, at least, Fox Broadcasting Company, LLC and affiliated companies, the CW Network, LLC,
`
`and Nexstar under the applicable FCC framework and the authority of a 1996 Joint Marketing
`
`and Programming Agreement, as amended, between WNAC and Nexstar as a successor in
`
`interest (the “local marketing agreement” or “LMA”). For all periods of time relevant to this
`
`Complaint, WNAC timely notified Verizon of WNAC’s election exercising its retransmission
`
`consent rights.
`
`19.
`
`Before January 17, 2017, LIN Television Corporation (“LIN”) and then Media
`
`General, Inc (“Media General”) played a substantial role in Station programming, advertising,
`
`sales, and other operations under the LMA. LIN merged with Media General in December 2014.
`
`Under the terms of the LMA, LIN and Media General lawfully negotiated retransmission consent
`
`rights on behalf of WNAC with WNAC’s express consent. This practice included negotiating
`
`one or more retransmission consent agreements with Verizon.
`
`
`
`5
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 6 of 18
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`20.
`
`In 2015, WNAC (working through LIN/Media General) entered into an
`
`agreement with Verizon to retransmit the Station’s signal in the Station’s DMA (“the 2015
`
`Agreement”). The term of the 2015 Agreement was February 6, 2015, through August 5, 2017.
`
`21. Media General merged with Nexstar on January 17, 2017.
`
`22.
`
`Nexstar owns, operates, programs, or provides services to hundreds of television
`
`stations in the United States.
`
`23.
`
`Since January 17, 2017, Nexstar has played a substantial role in Station operations
`
`called for by the LMA.
`
`24.
`
`Concurrently with fulfilling its LMA role at the Station, Nexstar owns and
`
`operates another local broadcast station, WPRI-TV. WPRI-TV and the Station are located in and
`
`transmit their signals to the Station’s DMA.
`
`25.
`
`Because Nexstar merged with Media General, under federal law, Nexstar is not
`
`and has never been legally permitted to negotiate or grant retransmission consent on behalf of
`
`WNAC. Because Nexstar fills concurrent roles under the Station’s LMA and as a WPRI-TV
`
`licensee, MVPDs may not lawfully negotiate with Nexstar for consent to retransmit the Station’s
`
`signal.
`
`26.
`
`On December 31, 2016, Nexstar, as an entity that owns and/or operates numerous
`
`local broadcast television stations, executed a retransmission consent agreement with Verizon
`
`effective January 1, 2017 (“the 2016 Agreement”). The term of the 2016 Agreement was
`
`January 1, 2017, through December 31, 2019.
`
`27.
`
`At the time of the negotiation and execution of the 2016 Agreement (and at all
`
`times thereafter), Nexstar had no right either to negotiate or grant retransmission rights for the
`
`Station’s signal, including to Verizon.
`
`
`
`6
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`
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`28. WNAC was not party to the negotiation or execution of the 2016 Agreement and
`
`did not consent to Verizon’s retransmission of the Station’s signal for the 2017-2019 period.
`
`29.
`
`After the change in the law that prohibited a party like Nexstar from negotiating
`
`retransmission consent rights on WNAC’s behalf, WNAC began to negotiate agreements with
`
`various MVPDs directly once the prior retransmission consent agreements expired. From 2016
`
`to the present, WNAC has executed retransmission consent agreements with several MVPDs,
`
`providing WNAC’s required consent to retransmit the Station’s signal. WNAC did not execute a
`
`retransmission consent agreement with Verizon for the 2017-2019 cycle and never consented to
`
`Verizon’s retransmission of the Station’s signal for the 2017-2019 cycle.
`
`30.
`
`In 2020, WNAC executed a retransmission consent agreement with Verizon that
`
`provided WNAC’s required consent to retransmit the Station’s signal for the 2020-2022 cycle.
`
`DEFENDANTS AND THEIR WRONGFUL ACTS
`
`31.
`
`Verizon is an MVPD and retransmits television programming throughout the
`
`United States. Upon information and belief, Verizon retransmits programming through at least
`
`the fiber optic cable system Verizon Fios.
`
`32.
`
`Upon information and belief, Verizon attracts and earns advertising revenue
`
`based, at least in part, on the number of subscribers for its Verizon Fios cable system.
`
`33.
`
`Upon information and belief, Nexstar’s role at the Station under the LMA
`
`includes controlling MVPDs’ access to a conduit (e.g., a fiber optic cable) carrying the Station’s
`
`signal. Upon information and belief, MVPDs rely on this access to retransmit the Station’s
`
`signal.
`
`34.
`
`The Communications Act precludes any party other than WNAC, including
`
`Nexstar, from negotiating or granting retransmission consent for the Station’s signal to any
`
`
`
`7
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 8 of 18
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`
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`MVPD. Because Nexstar owns and operates WPRI-TV in the same DMA as the Station,
`
`Nexstar is prohibited by federal law from negotiating retransmission consent for the Station’s
`
`signal on WNAC’s behalf.
`
`35.
`
`Nexstar did not have the authority to grant Verizon consent to retransmit the
`
`Station’s signal in 2017-2019 (whether under the 2016 Agreement or otherwise).
`
`36. WNAC did not grant Verizon consent to retransmit the Station’s signal in 2017-
`
`2019.
`
`37.
`
`Verizon willfully, knowingly, and without WNAC’s authorization retransmitted
`
`the Station’s signal in the Station’s DMA in 2017-2019.
`
`38.
`
`Upon information and belief, Verizon paid Nexstar for retransmission of the
`
`Station’s signal during the 2017-2019 cycle (although Nexstar could neither lawfully grant
`
`retransmission consent nor negotiate a per subscriber rate for Station retransmission fees and
`
`Nexstar knew that Verizon lacked consent to retransmit the Station’s signal).
`
`39.
`
`During the 2017-2019 cycle, neither Verizon nor Nexstar compensated WNAC
`
`for retransmitting the Station’s signal.
`
`40.
`
`Upon information and belief, Nexstar provided Verizon access to a conduit (e.g.,
`
`a fiber optic cable) carrying the Station’s signal in 2017-2019.
`
`41.
`
`Upon information and belief, Nexstar willfully, knowingly, and without WNAC’s
`
`consent facilitated the unauthorized retransmission of the Station’s signal in the Station’s DMA.
`
`42.
`
`Upon information and belief, Nexstar had the right and ability to control
`
`Verizon’s access to the Station’s signal and allowed, enabled, or otherwise facilitated such
`
`access despite lacking WNAC’s consent.
`
`
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`8
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 9 of 18
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`43.
`
`Upon information and belief, Nexstar had a direct financial interest in Verizon’s
`
`unauthorized retransmissions.
`
`44.
`
`Upon information and belief, Nexstar accepted payments from Verizon for the
`
`2017-2019 cycle in connection with Verizon’s unauthorized retransmissions of the Station’s
`
`signal in the Station’s DMA. Nexstar did not inform WNAC of these unauthorized
`
`retransmissions or payments and did not turn over to WNAC any payments related to these
`
`unauthorized retransmissions.
`
`45.
`
`In around November 2019, Verizon and Nexstar approached WNAC to negotiate
`
`an agreement for WNAC’s required retransmission consent for 2020-2022. This request
`
`suggested to WNAC that Verizon had retransmitted the Station’s signal without WNAC’s
`
`consent in 2017-2019.
`
`46.
`
`Upon confirming Verizon had retransmitted the Station’s signal since 2017,
`
`WNAC requested from Defendants a copy of any relevant agreements.
`
`47.
`
`On December 18, 2019, Nexstar shared with WNAC a heavily redacted version of
`
`the 2016 Agreement. This is the first time WNAC had seen any part of the 2016 Agreement.
`
`48.
`
`In December 2019, Nexstar represented to WNAC that the 2016 Agreement
`
`permitted retransmission of the Station’s signal from 2017-2019 by Verizon (although it was
`
`impossible to confirm from the heavily redacted agreement provided by Nexstar to WNAC).
`
`Nexstar later recanted this admission and argued (notwithstanding Verizon’s and its own prior
`
`claims to the contrary) that WNAC was not part of the 2016 Agreement with Verizon.
`
`49.
`
`Verizon has not identified to WNAC any valid authority under which it
`
`retransmitted the Station’s signal in 2017-2019.
`
`
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`9
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 10 of 18
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`50.
`
`Nexstar has not identified to WNAC any authority under which Verizon
`
`retransmitted the Station’s signal in 2017-2019, nor has Nexstar identified any authority under
`
`which it allowed, enabled, or otherwise facilitated Verizon’s retransmission of the Station’s
`
`signal in 2017-2019.
`
`51.
`
`Defendants knew or should have known that Nexstar did not have the authority in
`
`2016 or thereafter to negotiate or grant retransmission consent on WNAC’s behalf.
`
`52.
`
`Defendants knew or should have known that WNAC did not consent to Verizon’s
`
`retransmissions of the Station’s signal in 2017-2019.
`
`53.
`
`Defendants knew or should have known that WNAC did not consent to Nexstar
`
`allowing, enabling, or otherwise facilitating Verizon’s retransmissions of the Station’s signal in
`
`2017-2019.
`
`54.
`
`Defendants knew or should have known that, absent WNAC’s express consent,
`
`Verizon could not lawfully retransmit the Station’s signal in the Station’s DMA in 2017-2019.
`
`55.
`
`Verizon willfully and knowingly retransmitted the Station’s signal despite lacking
`
`authority to do so.
`
`56.
`
`Nexstar willfully and knowingly allowed, enabled, or otherwise facilitated
`
`Verizon’s retransmission of the Station’s signal despite lacking authority to do so.
`
`57.
`
`Fully aware of WNAC’s rights in its signal and of the federal laws controlling
`
`secondary retransmissions in a local broadcast station’s DMA, Defendants acted knowingly,
`
`willfully, with reckless disregard of those rights and laws, and in bad faith.
`
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`10
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 11 of 18
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`INJURY TO WNAC
`
`58.
`
`The unauthorized retransmissions violated WNAC’s unilateral right to consent to
`
`retransmissions of the Station’s signal.
`
`59.
`
`Defendants’ actions denied WNAC compensation for retransmissions of the
`
`Station’s signal in 2017-2019.
`
`60.
`
`Defendants profited from retransmitting the Station’s signal without WNAC’s
`
`consent. Verizon benefitted from its unlawful retransmissions of the Station’s signal in 2017-
`
`2019 (without WNAC’s required consent and compensation). Specifically, through its unlawful
`
`retransmissions, Verizon was able to provide its subscribers with access to the Station’s highly
`
`desirable content, maintain and/or grow its subscriber base, and attract and receive substantial
`
`advertising revenue, which, upon information and belief, is based on and/or tied to the number of
`
`subscribers.
`
`61.
`
`Upon information and belief, Nexstar and Verizon colluded to retransmit
`
`WNAC’s signal in 2017-2019, without WNAC’s required consent, with Nexstar pocketing the
`
`payments it had received from Verizon for the unauthorized retransmissions.
`
`62.
`
`Consequently, Defendants have benefitted unfairly from the retransmissions of
`
`the Station’s signal.
`
`FIRST CLAIM FOR RELIEF
`Against Defendant Verizon
`Direct Willful Copyright Infringement of Retransmission Consent Rights
`
`63. WNAC repeats and realleges each and every allegation set forth in this
`
`Complaint.
`
`64. WNAC is licensed under appropriate federal laws to transmit all programming
`
`carried by the Station’s signal.
`
`
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`11
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 12 of 18
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`65. WNAC did not consent to Verizon’s retransmission of the Station’s signal in the
`
`Station’s DMA in 2017-2019.
`
`66.
`
`This lack of WNAC’s legally required consent notwithstanding, Verizon
`
`retransmitted the Station’s signal in the Station’s DMA in 2017-2019.
`
`67.
`
`Verizon did not compensate WNAC for the unauthorized retransmissions in 2017-
`
`2019.
`
`68.
`
`Verizon violated WNAC’s retransmission consent rights under the Copyright Act
`
`in violation of 17 U.S.C. § 111(c)(2)(A).
`
`69.
`
`Verizon’s conduct constitutes willful direct copyright infringement in violation of
`
`17 U.S.C. § 111(c)(2)(A).
`
`SECOND CLAIM FOR RELIEF
`Against Defendant Nexstar
`Contributory Copyright Infringement of Retransmission Consent Rights
`
`70. WNAC repeats and realleges each and every allegation set forth in this
`
`Complaint.
`
`71.
`
`Verizon violated WNAC’s retransmission consent rights under the Copyright Act
`
`in violation of 17 U.S.C. § 111(c)(2)(A).
`
`72.
`
`Nexstar unlawfully allowed, enabled, or otherwise facilitated Verizon’s access to
`
`the Station’s signal for Verizon’s unauthorized retransmissions in 2017-2019.
`
`73.
`
`Nexstar knowingly induced, caused, and/or materially contributed to Verizon’s
`
`direct infringement.
`
`74.
`
`Upon information and belief, Verizon paid Nexstar for retransmitting the
`
`Station’s signal in 2017-2019. Thus, Nexstar knew or had reason to know of and directly and
`
`materially benefitted from Verizon’s infringement.
`
`
`
`12
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`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 13 of 18
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`
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`THIRD CLAIM FOR RELIEF
`Against Defendant Nexstar
`Vicarious Copyright Infringement of Retransmission Consent Rights
`
`75. WNAC repeats and realleges each and every allegation set forth in this
`
`Complaint.
`
`76.
`
`Defendant Verizon violated WNAC’s retransmission consent rights under the
`
`Copyright Act in violation of 17 U.S.C. § 111(c)(2)(A).
`
`77.
`
`Defendant Nexstar unlawfully allowed, enabled, or otherwise facilitated
`
`Verizon’s access to the Station’s signal for Verizon’s unauthorized retransmission and did not
`
`revoke that access in 2017-2019.
`
`78.
`
`79.
`
`Nexstar had the right and ability to control Verizon’s direct infringement.
`
`Upon information and belief, Verizon paid Nexstar for retransmitting the
`
`Station’s signal in 2017-2019. Nexstar thus had a direct financial interest in Verizon’s
`
`infringement.
`
`FOURTH CLAIM FOR RELIEF
`Against All Defendants
`Breach of Massachusetts Unfair Trade Practices Statute
`M.G.L. ch. 93A, § 11
`
`80. WNAC repeats and realleges each and every allegation set forth in this
`
`Complaint.
`
`81.
`
`82.
`
`Defendants and WNAC were engaged in trade or commerce.
`
`Upon information and belief, Verizon and Nexstar colluded to retransmit
`
`WNAC’s signal in 2017-2019 without WNAC’s required consent, with Nexstar pocketing the
`
`payments from Verizon in connection with the unlawful retransmissions.
`
`83.
`
`At various times, Defendants have represented that the 2016 Agreement between
`
`Nexstar and Verizon authorized Verizon’s retransmission of the Station’s signal in 2017-2019.
`
`
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`13
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`
`
`
`84.
`
`Defendants knew or should have known that the 2016 Agreement could not have
`
`provided such authorization and that only WNAC (and not Nexstar) could have granted
`
`retransmission consent to Verizon. Defendants thus engaged in unfair or deceptive acts or
`
`practices in the conduct of trade or commerce.
`
`85.
`
`Upon information and belief, Verizon paid Nexstar a monthly fee, based on
`
`subscriber counts, for unlawful retransmissions of the programming carried by the Station’s
`
`signal in 2017-2019.
`
`86.
`
`Defendants failed to disclose to WNAC (a) Verizon’s unlawful retransmissions of
`
`the Station’s signal, (b) Nexstar’s facilitation of Verizon’s unlawful retransmissions, and
`
`(c) Verizon’s payments to Nexstar in connection with the unlawful retransmissions, including
`
`after the November 2019 discussions among Verizon, Nexstar, and WNAC.
`
`87. WNAC has requested from Defendants an accounting of payments made from
`
`Verizon to Nexstar for Verizon’s unauthorized retransmissions of the Station’s signal in 2017-
`
`2019. WNAC has also requested from Defendants subscriber counts in the Station’s DMA for
`
`each month of 2017-2019. Defendants have refused to comply.
`
`88.
`
`Defendants’ unfair or deceptive acts or practices occurred primarily and
`
`substantially in Massachusetts where WNAC maintains a place of business and where the
`
`Station’s signal was unlawfully retransmitted.
`
`89.
`
`Defendants’ unfair or deceptive acts or practices were willful or knowing.
`
`90. WNAC suffered a loss of money as a result of Defendants’ unfair or deceptive
`
`acts or practices. As result of Defendants’ unfair or deceptive acts or practices, WNAC was
`
`denied at least the fair market value of the retransmissions of the Station’s signal in 2017-2019.
`
`
`
`14
`
`
`
`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 15 of 18
`
`
`
`FIFTH CLAIM FOR RELIEF
`Against All Defendants
`Unjust Enrichment
`
`91. WNAC repeats and realleges each and every allegation set forth in this
`
`Complaint.
`
`92.
`
`Verizon engaged in retransmissions of the Station’s signal in 2017-2019 without
`
`WNAC’s consent, conferring a benefit to Verizon, including its ability to offer the Station’s
`
`highly desirable programming to its subscriber base during that period.
`
`93. Moreover, upon information and belief, offering the Station’s programming
`
`(through its unlawful retransmissions) has resulted in Verizon maintaining and/or growing its
`
`subscriber base and receiving substantial advertising revenue, which, upon information and
`
`belief, is based on and/or tied to the number of subscribers. Upon information and belief, but for
`
`its unlawful retransmissions of the Station’s signal in 2017-2019, Verizon would have lost
`
`subscribers (and/or would not have been able to grow its subscriber base).
`
`94.
`
`Upon information and belief, but for its unlawful retransmissions of the Station’s
`
`signal in 2017-2019, Verizon would not have gained substantial advertising revenue, which,
`
`upon information and belief, was calculated based on and/or otherwise tied to the number of
`
`subscribers.
`
`95.
`
`Upon information and belief, Verizon paid Nexstar for the unauthorized
`
`retransmissions for the 2017-2019 cycle.
`
`96.
`
`Nexstar allowed, enabled, or otherwise facilitated Verizon’s retransmissions of
`
`the Station’s signal in 2017-2019 without WNAC’s consent, conferring a benefit to Nexstar, who
`
`collected, retained, and profited from Verizon’s payments.
`
`97.
`
`Defendants appreciated and understood the benefits conferred upon them.
`
`
`
`15
`
`
`
`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 16 of 18
`
`
`
`98.
`
`Defendants did not compensate WNAC for the retransmission of the Station’s
`
`signal in 2017-2019.
`
`99.
`
`Defendants were conferred these benefits despite lacking retransmission consent
`
`from WNAC. It would be inequitable for Defendants to retain their respective benefits.
`
`JURY DEMAND
`Pursuant to Fed. R. Civ. P. 38, WNAC respectfully demands a trial by jury on all issues
`
`properly triable by a jury in this action.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, WNAC respectfully requests that this Court enter judgment in its favor
`
`on each and every claim for relief set forth above and award it relief, including but not limited to
`
`the following:
`
`A. With respect to the First Claim for Relief, an Order declaring that Verizon’s
`
`unauthorized retransmissions of the Station’s signal in the Station’s DMA in 2017-2019
`
`constitute copyright infringement, as detailed above.
`
`B. With respect to the Second Claim for Relief, an Order declaring that Verizon’s
`
`unauthorized retransmissions of the Station’s signal in the Station’s DMA in 2017-2019
`
`constitute copyright infringement and declaring that Nexstar is secondarily liable for
`
`contributory copyright infringement.
`
`C. With respect to the Third Claim for Relief, an Order declaring that Verizon’s
`
`unauthorized retransmissions of the Station’s signal in the Station’s DMA in 2017-2019
`
`constitute copyright infringement and declaring that Nexstar is secondarily liable for vicarious
`
`copyright infringement.
`
`D.
`
`On the First, Second, and Third Claims for Relief, an award of statutory damages
`
`to WNAC under 17 U.S.C. § 504(c) for willful copyright infringement or, at WNAC’s election,
`
`
`
`16
`
`
`
`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 17 of 18
`
`
`
`under 17 U.S.C. § 504(b), an award of actual damages to WNAC, Defendants’ profits from
`
`infringement, and prejudgment and post-judgment interest, in an amount to be determined at
`
`trial, and trebling such damages.
`
`E.
`
`On the Fourth Claim for Relief, an award to WNAC of the fair market value of
`
`the retransmission fees for Verizon’s unauthorized retransmissions in 2017-2019 (including but
`
`not limited to disgorgement of money paid to Nexstar for said retransmissions) and prejudgment
`
`and post-judgment interest, in an amount to be determined at trial, and trebling such damages
`
`and/or awarding punitive damages for Defendants’ willful and knowing conduct.
`
`F.
`
`Regarding the Fifth Claim for Relief, an award to WNAC of the fair market value
`
`of the retransmission fees for Verizon’s unauthorized retransmissions in 2017-2019 (including
`
`but not limited to disgorgement of money paid to Nexstar for the unauthorized retransmissions)
`
`and prejudgment and post-judgment interest, in an amount to be determined at trial, and trebling
`
`such damages and/or awarding punitive damages for Defendants’ willful and knowing conduct.
`
`G.
`
`An award to WNAC of attorneys’ fees and costs under 17 U.S.C. § 505, M.G.L.
`
`ch. 93A, § 11, and other applicable laws.
`
`Other relief as the Court may deem appropriate.
`
`
`
`H.
`
`
`
`
`
`17
`
`
`
`Case 1:21-cv-10750 Document 1 Filed 05/06/21 Page 18 of 18
`
`Dated: May 6, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Respectfully submitted,
`
`
`
`/s/ Alissa K. Lipton
`Alissa K. Lipton (BBO # 678314)
`Sara Leiman (BBO # 703618)
`FINNEGAN, HENDERSON,
`FARABOW, GARRETT &
`DUNNER, L.L.P.
`Two Seaport Lane
`Boston, MA 02210-2001
`(617) 646-1600 (phone)
`(617) 646-1666 (fax)
`alissa.lipton@finnegan.com
`sara.leiman@finnegan.com
`
`Anna Naydonov (pro hac vice
`pending)
`Margaret Esquenet (pro hac vice
`pending)
`FINNEGAN, HENDERSON,
`FARABOW, GARRETT &
`DUNNER, L.L.P.
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
`(202) 408-4000 (phone)
`(202) 408-4400 (fax)
`margaret.esquenet@finnegan.com
`anna.naydonov@finnegan.com
`
`Counsel for Plaintiff,
`WNAC, LLC
`
`18
`
`
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