Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 1 of 12
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 1 of 12
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 2 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`Plaintiff,
`
`
`
`- against -
`
`
`
`Index No.:
`
`
`COMPLAINT
`
`
`
`
`
`NEXSTAR MEDIA INC.,
`
`
`
`
`
`COMCAST CABLE COMMUNICATIONS, LLC,
`
`
`
`
`Defendant.
`
`
`
`INTRODUCTION
`1.
`Nexstar Media Inc. (“Nexstar”) is a local television company that provides
`community-driven, locally produced content to households in various markets across the nation.
`Nexstar contracts with cable television companies such as defendant Comcast Cable
`Communications, LLC (“Comcast”), who then include Nexstar’s programming in the cable
`packages that they sell to subscribers. These “retransmission consent agreements” include
`carefully negotiated fees that the cable television companies pay in exchange for the
`programming they’re receiving. Nexstar was forced to bring this action because Comcast has
`flouted the terms of the parties’ retransmission consent agreement and refused to pay millions of
`dollars in fees owed to Nexstar.
`2.
`On January 1, 2020, Nexstar and Comcast entered into a retransmission consent
`agreement that set forth the rates and other terms that would govern Comcast’s carriage of
`television stations owned or, in certain circumstances, serviced by Nexstar (the “Comcast-
`Nexstar Agreement”).
`3.
`Retransmission consent agreements typically provide for retransmission of the
`programming of local television stations that are owned by the station operator (here, Nexstar).
`Nexstar’s agreement with Comcast, however, provided that in certain specific circumstances,
`
`
`
`1 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 3 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`retransmission of the programming of a station not owned by Nexstar would also be governed by
`the parties’ agreement.
`4.
`Specifically, in negotiating the Comcast-Nexstar Agreement, Comcast contemplated
`that Nexstar might contract with independently owned, third-party stations to provide local
`programming and other “local marketing” services. Accordingly, the parties carefully negotiated
`a provision in the Comcast-Nexstar Agreement, which provided that if Nexstar contracted to
`provide local marketing services to a third-party station during the term of the contract and had
`authority to negotiate retransmission consent on behalf of that station, then the third party station
`would become governed by the Comcast-Nexstar Agreement as an “Additional Station.” Such
`provisions are known in the industry as “Additional Stations” provisions.
`5.
`Furthermore, the parties specifically contemplated that WPIX (CW – New York)
`(“WPIX”), a New York City television station, might become an Additional Station pursuant to
`the Additional Stations provision. The parties therefore also negotiated the fees that would be
`paid for WPIX if the station were added to the Comcast-Nexstar Agreement.
`6.
`About a year later on December 30, 2020, WPIX was sold to a new owner, Mission
`Broadcasting, Inc. (“Mission”), and Nexstar entered into a local marketing agreement (“LMA”)
`with Mission to provide programming and other support services to WPIX. The transaction was
`approved by the Federal Communications Commission (“FCC”) without any objections from
`Comcast or other cable companies. And as of that date, Comcast’s retransmission of WPIX
`became governed by the terms of the Comcast-Nexstar Agreement, including the specific fees
`that the parties had negotiated.
`7.
`Rather than live up to its end of the bargain, however, Comcast decided to repudiate
`the Comcast-Nexstar Agreement. In a series of letters spanning April through July 2021,
`Comcast stated that it would not comply with its obligations under the Comcast-Nexstar
`Agreement, and confirmed that it had not been (and would not be) paying the fees required under
`that agreement for WPIX. Yet all the while, Comcast continues to reap all the benefits of the
`
`
`
`2
`2 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 4 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`Agreement that Comcast demanded, including continuing to carry Nexstar’s programming on its
`cable systems.
`8.
`Comcast’s refusal to honor its obligations is especially surprising here, given that the
`parties had specifically contemplated that WPIX could be added to the Comcast-Nexstar
`Agreement and included language in the Comcast-Nexstar Agreement to account for that
`possibility — language that Comcast only agreed to after receiving valuable concessions on
`other aspects of the agreement. Even more shocking, when Nexstar reached out to Comcast to
`request that it pay the contractual fees, Comcast refused to negotiate and instead blindsided
`Nexstar by filing a post-hoc petition with the FCC, demanding that the agency reverse its prior
`approval of the WPIX LMA in order to nullify Comcast’s contractual promises.
`THE PARTIES
`9.
`Nexstar is a Delaware corporation headquartered in Irving, Texas. Over the last 25
`years, Nexstar has grown from a single television station to the one of the largest local television
`companies in the United States. Nexstar is committed to localism, and it delivers unique, locally
`produced programming and content to television households in various markets across the nation
`while offering local businesses the ability to connect with local consumers. Today, Nexstar
`produces over 270,000 hours of local programming weekly. Nexstar also offers certain
`programming services to independently owned television stations.
`10.
`Comcast is a Delaware corporation headquartered in Philadelphia, Pennsylvania.
`Upon information and belief, Comcast (which operates under the “Xfinity” brand for residential
`consumers) is the largest cable TV company, the largest pay-TV company, and the largest
`internet service provider in the United States.
`JURISDICTION AND VENUE
`11.
`Defendant Comcast is subject to personal jurisdiction in this Court pursuant to
`sections 301 and 302(a)(1) of the CPLR. Comcast transacts extensive business in New York
`State, including the sale of cable television and internet services throughout the State.
`
`
`
`3
`3 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 5 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`Furthermore, upon information and belief, Comcast maintains corporate offices in New York
`City and is one of the largest office tenants in Manhattan.
`12.
` Venue is proper in New York County pursuant to CPLR 503, because, among other
`things: (a) a substantial part of the events and omissions giving rise to this lawsuit occurred in
`this county and a substantial part of the property at issue in the action is located here. The
`television station at issue is WPIX, which is based in New York City, and (b) Comcast maintains
`its corporate offices in Manhattan.
`13.
`New York law governs this case because the Comcast-Nexstar Agreement
`specifically provides for its application.
`FACTUAL ALLEGATIONS
`Nexstar’s Agreement with Comcast
`14.
`Cable operators such as Comcast are in the business of selling television
`programming to subscribers, in exchange for monthly subscription fees. Many of these
`programs are the retransmitted signals of local broadcast channels, which the cable operators
`carry pursuant to “retransmission consent agreements” that are carefully negotiated with station
`owners and programmers, such as Nexstar.
`15.
`On January 1, 2020, Nexstar and Comcast negotiated one such retransmission consent
`agreement — the Comcast-Nexstar Agreement — which set the fees that Comcast would pay for
`retransmitting the signals of approximately 171 different stations to Comcast’s subscribers. The
`parties negotiated the contract to govern their relationship for the next three years — to
`December 15, 2022.
`16.
`The Comcast-Nexstar Agreement contained an “Additional Stations” provision,
`which delineated the circumstances under which additional stations would become governed by
`the Comcast-Nexstar Agreement during contract’s term:
`
`Additional Stations. In the event that during the Term hereof,
`[Nexstar] becomes the licensee, programmer, and/or bona fide
`manager of (or otherwise obtains an ownership interest in or enters
`into a contract to provide certain services, including but not limited
`to shared services, local marketing and/or joint sales agreement(s),
`
`
`
`4
`4 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 6 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`with) a television station(s) other than a Station and [Nexstar] is not
`prohibited from negotiating for retransmission consent on behalf of
`such station under FCC’s Rules (each, an “Additional Station(s)”),
`such Additional Station(s) shall be added to this Agreement as of the
`date of consummation of the relationship with such Additional
`Station(s) and shall be subject to the same terms and conditions as
`those applicable to the Stations, and any Operator Cable System(s)
`or MVPD system(s) that retransmits such Additional Station(s)’s
`Signals(s) shall be added to this Agreement as a System with
`respect to such Additional Station(s). Upon the date an Additional
`Station(s) is added under this Agreement, any other agreement
`with respect to such Additional Station(s) shall be deemed
`terminated with respect to such Additional Stations and the
`System(s) carrying such Additional Station(s)’s Signal(s),
`notwithstanding anything contained in any such other agreement.
`Nexstar Agreement, § 6(c).
`17.
`The Additional Stations provision provides that if Nexstar becomes the
`“programmer” of a station or otherwise enters into a “joint marketing and/or joint sales
`agreement” to provide services to a station, then that station is added to the Comcast-Nexstar
`Agreement and “any other agreement with respect to such Additional Station(s) shall be deemed
`terminated . . . .” Id. The parties carefully negotiated the Additional Stations provision and
`considered it a material term of the Agreement.
`18.
`During these negotiations, the parties specifically contemplated that WPIX (the
`station at the heart of this dispute) might be added to the Comcast-Nexstar Agreement pursuant
`to the Additional Stations provision. Accordingly, the parties expressly negotiated the fees that
`would apply in such a circumstance and distinguished WPIX from any other station that might
`be added to the agreement:
`
`Furthermore, if WPIX is added to this Agreement as a Non-Big 4
`Station during the Term, (1) from the date that WPIX is so added
`to this Agreement as a Non-Big 4 Station through June 31, 2021,
`WPIX shall be treated as a Qualified Non-Big 4 Station with
`respect to a Fee (even though it may not meet all of the criteria
`necessary to qualify as a Qualified Non-Big 4 Station) . . . .
`
`If an Additional Station (other than WPIX) is added to this
`Agreement as a Qualified Non-Big 4 Station during the Term,
`notwithstanding anything to the contrary herein, such Qualified
`
`
`
`5
`5 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 7 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`Non-Big 4 Station shall receive, in lieu of the Fee set forth above,
`eighty-five percent (85%) of the applicable Fee.
`Comcast-Nexstar Agreement, § 5(a)(ii).
`19.
`At all times during the negotiation process, Nexstar reasonably believed that Comcast
`was negotiating in good faith and intended to actually follow through with its end of the contract.
`WPIX Becomes an “Additional Station”
`20.
`On July 13, 2020, Mission, an independent third party that owns several broadcast
`stations, sought to purchase WPIX from its then-owner, the E.W. Scripps Company.
`21.
`Pursuant to FCC rules, Mission’s proposed acquisition of WPIX required FCC
`approval. As part of Mission’s application to the FCC, Mission indicated that it would be
`entering into an LMA with Nexstar with respect to WPIX. LMAs are common in the television
`industry and refer to contracts whereby the non-station owner provides specified services (e.g.
`supplying programming, providing day-to-day management, or managing revenue collection) to
`the station owner, with the station owner retaining ultimate control and authority over the station.
`22. Mission filed a copy of the yet-to-be executed LMA as part of its application to the
`FCC. The LMA disclosed, among other things, that Nexstar would be providing programming
`services for WPIX and also managing revenue collection for WPIX (e.g. collecting the fees owed
`by cable companies such as Comcast who retransmit WPIX to their subscribers).
`23.
`As is its usual practice, the FCC issued a public notice announcing the filing of
`Mission’s application and provided the public with 30 days to file a “petition to deny” or to
`otherwise object to the application. Mission’s application, including the LMA, was available for
`review by any member of the public on the FCC’s web site. On information and belief, Comcast
`was aware of Mission’s application to acquire WPIX, as well as its intent to enter into the LMA
`with Nexstar. All in all, the application remained pending on the public docket for 141 days
`before the FCC approved the transaction on December 1, 2020, after having carefully considered
`the application and the LMA. Comcast did not object to the application or the proposed LMA at
`any point during the pendency of the application.
`
`
`
`6
`6 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 8 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`24.
`Accordingly, as of December 30, 2020, WPIX became an Additional Station under
`the plain language of the Comcast-Nexstar Agreement. As discussed in paragraphs 16 and 17,
`the Comcast-Nexstar Agreement’s “Additional Stations” provision applies to any station for
`which Nexstar becomes a “programmer” or provides services pursuant to a “local marketing
`and/or joint sales agreement[],” provided that Nexstar is not prohibited by the FCC’s rules from
`negotiating for retransmission consent on behalf of the station. Here, each of these conditions
`was satisfied: Nexstar was the “programmer” for WPIX, it had also entered into an LMA to
`provide services for WPIX, and it is allowed to negotiate retransmission consent on behalf of
`WPIX because Nexstar does not own any stations in the same market. See 47 C.F.R. §
`76.65(b)(1)(viii) (prohibiting joint retransmission consent negotiation by two or more television
`broadcast stations only if the stations are in the same local market and not under common de jure
`control).
`25.
`Thus, as of December 30, 2020, Comcast’s distribution of WPIX, a Non-Big 4
`Station, was subject to the fees that the parties had specifically negotiated for that station. See
`Comcast-Nexstar Agreement, § 5(a)(ii).
`Comcast’s Willful Breach and Untenable Contract Theory
`26.
`To date, Comcast continues to retransmit the WPIX programming to its subscribers
`and continues to collect monthly fees from its cable television subscribers. Comcast, however,
`has failed to make any of the payments for WPIX that are required under the Comcast-Nexstar
`Agreement.
`27.
`Nexstar initially notified Comcast on December 24, 2020, that WPIX would become
`an “Additional Station” under the Comcast-Nexstar Agreement, and that Comcast would need to
`begin paying at the contracted rates by January 1, 2021. Comcast did not do so and, on April 8,
`2021, Nexstar followed up with a second letter informing Comcast that it was in breach of the
`Comcast-Nexstar Agreement, and requesting that Comcast cure the breach. Comcast again
`refused to cure its breach.
`
`
`
`7
`7 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 9 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`28.
`In subsequent correspondence, Comcast took the position that it had also entered into
`a contract with Mission, which Comcast claimed supplanted whatever obligations it had under
`the Comcast-Nexstar Agreement. Comcast’s argument, of course, is frivolous. Comcast made
`promises to Nexstar in its contract with Nexstar. Under basic tenets of contract law, Comcast
`cannot void those promises by promising something else to another party. Comcast’s theory also
`fails because the Comcast-Nexstar Agreement expressly provides that any other agreement
`would be “deemed terminated” as to WPIX if it became an Additional Station. See Paragraphs
`16 and 17.
`29.
`Indeed, on information and belief, Mission itself informed Comcast in or around June
`2021 that the Comcast-Mission Agreement did not apply to WPIX. Thus, even the other party
`with whom Comcast contracted has rejected Comcast’s position.
`30.
`Rather than engaging in any meaningful negotiations or discussions with Nexstar to
`resolve this dispute (much less attempt to defend its novel contract theory), Comcast instead filed
`a surprise petition with the FCC demanding that the agency overturn its prior approval of the
`WPIX LMA and rewrite well established retransmission consent rules. Comcast then
`disseminated the petition to the press in a cynical attempt to cast Nexstar in a negative light.
`31.
`Of course, neither of the requests in Comcast’s petition is proper. Comcast elected
`not to object to the WPIX LMA while the LMA was pending FCC approval, so cannot ask now
`that the agency overturn its prior decision.1 And if Comcast wishes to change the FCC’s rules,
`the proper procedure is to file a petition for rulemaking, not to ask the FCC to intervene in a
`private contract dispute.
`32.
`Comcast not only knew that the addition of WPIX to the Comcast-Nexstar Agreement
`was a possibility, but it actually negotiated and agreed to terms for that precise circumstance in
`
`
`1
`Relatedly, if Comcast believed that the “Additional Stations” and WPIX fee provisions it
`had negotiated were unfair or improper, Comcast should have filed a “good faith negotiation”
`complaint with the FCC during the negotiation process. Comcast did not do so.
`
`
`
`8
`8 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 10 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`return for receiving valuable concessions on other aspects of the contract. Comcast’s willful
`breach is wholly unjustified, and it must be held responsible for its contractual obligations.
`FIRST CAUSE OF ACTION
`(Breach of Contract)
`33.
`Nexstar repeats and realleges each of the preceding paragraphs of this complaint as if
`fully set forth herein.
`34.
`As set forth above (supra ¶ 2), Nexstar and Comcast are parties to the Comcast-
`Nexstar Agreement.
`35.
`Nexstar has performed all of its contractual obligations under the Comcast-Nexstar
`Agreement and satisfied any and all preconditions to claim, suit, and recovery, excepting only
`those that have been waived by Comcast.
`36.
`Under the Additional Stations provision of the Comcast-Nexstar Agreement, the
`parties agreed that, in the event (1) Nexstar “becomes the . . . programmer” of a station, or
`“enters into a contract to provide certain services, including but not limited to shared services,
`local marketing and/or joint sales agreement(s)” with respect to a station, and (2) Nexstar “is not
`prohibited from negotiating for retransmission consent on behalf of such station under FCC’s
`Rules”; then such a station would be (1) added to the Comcast-Nexstar Agreement as an
`“Additional Station,” (2) subject to the same terms and conditions as those applicable to the
`Stations” that are already part of the agreement; and (3) “any other agreement with respect to
`such Additional Station(s) shall be deemed terminated with respect to such Additional Stations.”
`Comcast-Nexstar Agreement, § 6(c)
`37.
`On December 30, 2020, Nexstar became the programmer of WPIX and also entered
`into a local marketing agreement to provide services to WPIX.
`38.
`Nexstar is not prohibited from negotiating for retransmission consent on behalf of
`WPIX under the FCC’s rules, because Nexstar does not own any stations in the WPIX market.
`39.
`Accordingly, under the plain language of the Comcast-Nexstar Agreement, WPIX
`became an “Additional Station” on December 30, 2020, subject to the terms of the Comcast-
`
`
`
`9
`9 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 11 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`Nexstar Agreement, including the terms governing the retransmission fees that would be
`applicable to WPIX.
`40.
`Comcast has breached its obligations under the Comcast-Nexstar Agreement by
`expressly repudiating, and refusing to comply with, the terms of the Comcast-Nexstar Agreement
`as to WPIX, including its obligations to pay the retransmission fees set forth in the Comcast-
`Nexstar Agreement.
`41.
`To date, Comcast has improperly withheld payments owed to Nexstar totaling over
`three million dollars for the December 2020 through June 2021 period. Comcast’s breach
`remains ongoing, however, and Nexstar continues to suffer damages, including in the form of
`improperly withheld payments. Nexstar is therefore entitled to judgment against Comcast for
`breach of contract, including an award of damages.
`PRAYER FOR RELIEF
`WHEREFORE, Nexstar seeks judgment against Comcast as follows:
`A.
`declaring that the Comcast-Nexstar Agreement’s terms govern Comcast’s
`retransmission of WPIX, finding Comcast liable for breach of contract, and awarding Nexstar its
`damages, plus applicable interest;
`B.
`awarding Nexstar its losses, liabilities, costs, and expenses incurred in this action,
`including but not limited to any attorneys’ fees, court costs, and expert fees; and
`C.
`granting Nexstar such other and further relief as the Court deems just and proper.
`
`
`
`
`10
`10 of 11
`
`

`

`INDEX NO. 654328/2021
`FILED: NEW YORK COUNTY CLERK 07/13/2021 05:26 PM
`Case 1:21-cv-06860 Document 1-1 Filed 08/13/21 Page 12 of 12
`NYSCEF DOC. NO. 2
`RECEIVED NYSCEF: 07/13/2021
`
`DATED: July 13, 2021
`
`
`
`
`
`
`COVINGTON & BURLING LLP
`
`
`_________________________________________________
`Mitchell A. Kamin
`Mark Chen
`
`1999 Avenue of the Stars, Suite 3500
`Los Angeles, CA 90067
`Telephone: (424) 332-4800
`Email: mkamin@cov.com
` mychen@cov.com
`
`The New York Times Building
`620 Eighth Avenue
`New York, NY 10018-1405
`Tel: (212) 841-1000
`
`Attorneys for Nexstar Media Inc.
`
`
`
`
`
`
`
`
`
`
`
`11
`11 of 11
`
`