Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`COXCOM, LLC, d/b/a COX
`COMMUNICATIONS,
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`SUPER TOWERS, INC., and
`WNAC, LLC,
`
`
`
`Defendants.
`
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`COMPLAINT
`
`Plaintiff CoxCom, LLC, d/b/a Cox Communications, (“Cox”) brings this civil action to
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`obtain equitable and other relief against Defendants Super Towers, Inc. (“Super Towers”) and
`
`WNAC, LLC (“WNAC”).
`
`INTRODUCTION
`
`1.
`
`This action seeks to redress the wrongful conduct that Defendants committed
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`against Cox with respect to broadcast television station WNAC-TV, licensed by the Federal
`
`Communications Commission (“FCC”) to serve the Providence, Rhode Island—New Bedford,
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`Massachusetts market. Since 2017, Cox has retransmitted on its cable systems WNAC-TV’s
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`broadcast signal to its local subscribers in the Providence—New Bedford market under a
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`negotiated retransmission consent agreement with Defendants, as required by federal law. Instead
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`of upholding their contractual and legal obligations, and despite their repeated representations to
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`Cox, Defendants transferred ownership of WNAC-TV but failed to assign the retransmission
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`consent agreement to WNAC-TV’s buyer as the agreement requires. Defendants’ wrongful
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`conduct eviscerates the bargained-for terms of the retransmission consent agreement through its
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`term expiring at the end of February 2023, creates a risk that Cox must pay substantially increased
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`

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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 2 of 18
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`subscriber licensee fees for WNAC-TV’s broadcast signal under the station’s new ownership, and
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`potentially exposes Cox to claims for breach of contract from WNAC-TV’s new owner, copyright
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`infringement, and FCC regulatory enforcement if Cox continues to exercise its right to retransmit
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`WNAC-TV’s broadcast signal under the retransmission consent agreement duly negotiated with
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`Defendants.
`
`PARTIES
`
`2.
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`Plaintiff Cox is a Delaware limited liability company with its principal place of
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`business in Georgia. Cox Communications, Inc. is the sole member of Cox and is incorporated in
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`Delaware with its principal place of business in Georgia.
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`3.
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`Defendant Super Towers is a Florida corporation with its principal place of business
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`in Massachusetts.
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`4.
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`Defendant WNAC is a Rhode Island limited liability company with its principal
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`place of business in Massachusetts. Upon information and belief, Super Towers is the sole member
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`of WNAC, and no member is a citizen of Georgia or Delaware.
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`JURISDICTION AND VENUE
`
`5.
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`This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §
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`1332(a) because the parties are citizens of different states and the amount in controversy exceeds
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`$75,000 exclusive of interest and costs.
`
`6.
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`This Court also has subject matter jurisdiction over Cox’s declaratory judgment
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`claim under 17 U.S.C. § 501(c) and 28 U.S.C. §§ 1331 and 1338(a), and supplemental jurisdiction
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`over Cox’s state law claims under 28 U.S.C. § 1367 because those claims are so closely related to
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`Cox’s federal declaratory judgment claim that they form part of the same case or controversy.
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`2
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 3 of 18
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`7.
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`This Court has personal jurisdiction over Defendants because they each maintain a
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`principal place of business in Massachusetts and have purposefully availed themselves of the
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`privilege of conducting business in Massachusetts.
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`8.
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`Venue is proper in this Court under 28 U.S.C. § 1391(b) and (c) because a
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`substantial part of the events giving rise to Cox’s claims occurred in this District and because
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`Defendants reside in this District.
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`9.
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`The WNAC Retransmission Agreement,1 as defined below, is construed in
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`accordance with the laws of the State of Delaware.
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`10. Massachusetts law governs the statutory unfair competition claim under M.G.L. ch.
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`93A, § 11 because the parties engaged in trade or commerce in Massachusetts, and Defendants’
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`unfair or deceptive acts or practices occurred primarily and substantially in Massachusetts, where
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`both Defendants reside and have their principal place of business.
`
`FACTUAL BACKGROUND
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`Retransmission Agreements
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`11. Most households in the United States get their television programming by
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`subscribing to a multichannel video programming distributor (“MVPD”), such as a cable or
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`satellite operator, which provides subscribers with access to a variety of news, sports, and general
`
`entertainment channels, including local broadcast television stations licensed by the FCC to serve
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`a Nielsen-defined designated market area (“DMA”). Under federal law, MVPDs must obtain
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`stations’ consent to retransmit their signals.
`
`
`1 Cox incorporates by reference the WNAC Retransmission Agreement, which is confidential by
`its terms. Cox includes certain terms of the WNAC Retransmission Agreement as necessary and
`as permitted under Section 16 of the WNAC Retransmission Agreement. If required, Cox will file
`the WNAC Retransmission Agreement under seal.
`3
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`

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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 4 of 18
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`12.
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`The Communications Act of 1934, as amended, requires MVPDs to obtain consent
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`from certain local broadcast television stations in order to retransmit such stations’ signals to
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`subscribers. More specifically, MVPDs are not permitted to “retransmit the signal of a
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`broadcasting station, or any part thereof, except with the express authority of the originating station
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`. . . .” 47 U.S.C. § 325(b).
`
`13.
`
`The Copyright Act grants copyright holders several “exclusive rights to do and to
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`authorize” use of their works, including “in the case of . . . audiovisual works, to perform the
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`copyrighted work publicly.” 17 U.S.C. § 106(4). In the context of broadcast television, this
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`includes the exclusive right to transmit a performance of the work to the public. 17 U.S.C. § 101.
`
`MVPDs are subject to compulsory licensing schemes to allow the retransmission of broadcasts
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`containing copyright works, which are further conditioned on compliance with the “rules,
`
`regulations, or authorizations of the Federal Communications Commission.” See 17 U.S.C. §§
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`111, 119, 122; 47 U.S.C. § 325(b).
`
`14. MVPDs and the owners of broadcast television stations enter into retransmission
`
`consent agreements to establish the terms and conditions for retransmission of stations’ signals,
`
`including compliance with the Communications Act and the Copyright Act.
`
`15.
`
`Retransmission consent agreements commonly include after-acquired station and
`
`assignment provisions in the event the broadcast owner purchases or sells a television station from
`
`or to another broadcast owner through merger or acquisition, which is a common occurrence in
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`recent years as the broadcast industry consolidates and owners grow or liquidate their television
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`station portfolio.
`
`16.
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`After-acquired station and assignment provisions in retransmission consent
`
`agreements govern how an owner’s television station(s) is treated upon the purchase or sale of a
`
`4
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 5 of 18
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`station, ensure that only one transmission consent agreement with an MVPD applies with respect
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`to one or more television stations, avoid the inconvenience of having to renegotiate the agreement
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`every time a station changes ownership, and ensure certainty about which agreement applies in a
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`change in ownership.
`
`The WNAC Retransmission Agreement
`
`17.
`
`As part of its business, Cox enters into retransmission agreements to retransmit
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`local broadcast television stations in various markets.
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`18.
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`Cox has a Retransmission Consent Agreement with Super Towers and WNAC that
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`authorizes Cox to retransmit WNAC-TV’s broadcast signal in the Providence, Rhode Island—
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`New Bedford, Massachusetts television market (“WNAC Retransmission Agreement”).
`
`19.
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`The WNAC Retransmission Agreement became effective on March 1, 2017, was
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`amended and extended on February 11, 2020, and expires at 11:59 p.m. Eastern Standard Time on
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`February 28, 2023.
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`20.
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`Neither Super Towers, WNAC, nor Cox has terminated the WNAC Retransmission
`
`Agreement.
`
`21.
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`Under Section 3(a) of the WNAC Retransmission Agreement, Super Towers and
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`WNAC granted Cox the non-exclusive right to retransmit WNAC-TV’s broadcast signal in the
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`Providence, Rhode Island—New Bedford, Massachusetts market during the term of the WNAC
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`Retransmission Agreement:
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`Consent to Carriage; Signal Delivery.
`
`3.
`
`Broadcaster [Super Towers and WNAC] hereby grants to Operator
`(a)
`[Cox] the non-exclusive right (but not the obligation, except as otherwise
`provided in Section 4 below) to receive, retransmit and distribute each
`Station’s Digital Signal (including any portion thereof and whether licensed
`under the current call letters or any successor call letters thereto) in an
`analog, SD or HD format, over each System that (i) serves Subscribers
`
`5
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 6 of 18
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`located within the applicable Station’s Television Market, (ii) carries the
`Station as of the Effective Date, or (iii) is located in an area where such
`Station is deemed “significantly viewed” (as such term is defined in FCC
`Rules).
`
`Under Section 9(a) of the WNAC Retransmission Agreement, Super Towers and
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`22.
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`WNAC agreed for Cox to pay a monthly license fee per subscriber in exchange for the right to
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`retransmit WNAC-TV’s broadcast television signal:
`
`9.
`
`License Fee.
`
`Subject to the terms of this Section 9, Operator [Cox] shall pay a
`(a)
`monthly license fee (the “License Fee”) for each Top-4 Station as set forth
`in the table below. The License Fee for each such Station shall equal the
`product of the applicable monthly rate set forth below, subject to any
`adjustment in the applicable monthly rate in accordance with this Section
`9(a), and the number of Subscribers authorized to and who do receive such
`Station from a Television Market System for the applicable month as
`calculated in Section 9(b) below. If a Station broadcasts a Multicast Feed
`affiliated with a Top-4 Network, Operator [Cox] will pay a separate License
`Fee for retransmission of such Multicast Feed. The License Fee shall be
`prorated for partial months (if any). Payment of the monthly License Fee
`shall be made within 45 days after the conclusion of the applicable calendar
`month. Included with each monthly payment shall be a monthly report
`indicating the aggregate number of Subscribers for the applicable
`Television Market Systems.
`
`23.
`
`Under Section 13(a) of the WNAC Retransmission Agreement, Super Towers and
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`
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`WNAC represented and warranted that they had and would maintain, for the term of the WNAC
`
`Retransmission Agreement, the necessary rights to operate WNAC-TV and to comply with the
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`terms of the WNAC Retransmission Agreement:
`
`13.
`
`Representations and Warranties.
`
`Broadcaster [Super Towers and WNAC]
`By Broadcaster.
`(a)
`represents and warrants that: (i) it is an entity duly organized, validly
`existing and in good standing under the laws of the state of its formation,
`(ii) it has the requisite power and authority to execute and deliver this
`Agreement and to perform fully its obligations hereunder; (iii) it is under no
`contractual or other legal obligation that will interfere with its full, prompt,
`and complete performance hereunder; (iv) the individual executing this
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`6
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 7 of 18
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`Agreement on behalf of Broadcaster [Super Towers and WNAC] has the
`authority to do so; (v) it owns, controls or manages each Station; (vi) each
`Station transmits a good quality, full-power digital broadcast television
`signal and is licensed by the FCC to operate in the Television Market set for
`in Attachment A; (vii) it has all necessary rights, licenses, consents,
`permissions, authorizations and permits from all relevant authorities to
`operate the Stations and comply with the terms of this Agreement and,
`during the Term, it shall continue to maintain or obtain the same; and (viii)
`it is in material compliance with all applicable laws and FCC rules.
`
`Under Section 15(a) of the WNAC Retransmission Agreement, Super Towers,
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`24.
`
`WNAC, and Cox have the right to early termination, upon written notice, only if the other party
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`has made a material misrepresentation or has materially breached its duties under the WNAC
`
`Retransmission Agreement:
`
`15.
`
`Termination.
`
`Either Broadcaster [Super Towers and WNAC] or Operator [Cox]
`(a)
`may terminate this Agreement, effective no earlier than thirty (30) days after
`written notice to the other party, if the other has made a material
`misrepresentation or has materially breached its duties or obligations
`hereunder, and such misrepresentation or breach is not cured within fifteen
`(15) days of such notice; provided, that if such breach is confined to a
`System and/or Station, or to a limited number of Systems and/or Stations,
`then the non-breaching party shall have the right to terminate this
`Agreement only as to the affected System(s) and/or Stations; and, provided,
`further, that if such breach giving rise to the right of termination cannot
`reasonably be cured within fifteen (15) days, but the party seeking to cure
`such breach has commenced good-faith efforts to cure such breach, then the
`cure period shall be extended for an additional fifteen (15) days.
`
`Under Section 18(b) of the WNAC Retransmission Agreement, if Super Towers
`
`25.
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`and/or WNAC sell, transfer, assign, or otherwise dispose of its ownership interest in one or more
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`stations to a third party (defined as a “Station Transferee”), then at Cox’s request, Super Towers
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`and WNAC shall require the Station Transferee to assume the WNAC Retransmission Agreement,
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`to agree to abide by the terms through the remainder of the term, and to agree that the terms
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`supersede any conflicting provision in any other retransmission consent agreement:
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`7
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 8 of 18
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`18. Assignments: Divested Systems and Stations.
`
`This Agreement may not be assigned by Broadcaster [Super Towers
`(b)
`and WNAC] without the prior written consent of Operator [Cox], which
`consent shall not be unreasonably withheld, conditioned or delayed:
`provided, that Broadcaster [Super Towers and WNAC] may assign this
`Agreement without the consent of Operator [Cox] (but upon prior written
`notice to Operator [Cox]) to (i) any Broadcaster Entity, or (ii) any entity
`acquiring all or substantially all of the assets of Broadcaster [Super Towers
`and WNAC] or any Station(s); provided, further, that any assignee assumes
`all of Broadcaster’s [Super Towers and WNAC’s] obligations arising
`hereunder with respect to the applicable Station(s). In the event of any valid
`assignment of this Agreement by Broadcaster [Super Towers and WNAC],
`Broadcaster [Super Towers and WNAC] shall be relieved of all obligations
`arising thereafter and Operator [Cox] shall look solely to the assignee for
`enforcement of such obligations. Notwithstanding the foregoing, if
`Broadcaster [Super Towers and WNAC] sells, transfers, assigns or
`otherwise disposes of its ownership interest in one or more Stations to a
`third party (the “Station Transferee”), then at Operator’s [Cox’s] request,
`Broadcaster [Super Towers and WNAC] shall require such Station
`Transferee (i) to assume this Agreement with respect to such Station(s) and
`the applicable terms and conditions hereof and agree to abide by the terms
`hereof through the remainder of the Term, regardless of whether Operator
`[Cox] has a retransmission consent agreement in effect with such Station
`Transferee for the carriage of other broadcast television signals (and
`regardless of any conflicting “after-acquired station” language contained
`therein to the contrary, and (ii) to agree that the terms herein shall supersede
`any conflicting provision in any such other retransmission consent
`agreement, regardless of which agreement was signed later and regardless
`of any conflicting provision in such other agreement that purports to
`supersede conflicting provisions in other agreements[.]
`
`By the plain and ordinary terms in Section 18(b) of the WNAC Retransmission
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`26.
`
`Agreement, Super Towers and WNAC shall require a Station Transferee to assume and agree to
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`the WNAC Retransmission Agreement, “regardless of whether Operator [Cox] has a separate
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`retransmission consent agreement in effect” with a Station Transferee, “regardless of any
`
`conflicting ‘after-acquired station’ language” in any such agreement, “regardless of which
`
`agreement was signed later,” and “regardless of any conflicting provision in such other agreement
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`that purports to supersede conflicting provisions in other agreements.”
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`8
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 9 of 18
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`27.
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`Cox, Super Towers, and WNAC included the specific provisions in Section 18(b)
`
`of the WNAC Retransmission Agreement—including the terms “regardless of whether Operator
`
`[Cox] has a separate retransmission consent agreement in effect” with a Station Transferee,
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`“regardless of any conflicting ‘after-acquired station’ language” in any such agreement,
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`“regardless of which agreement was signed later,” and “regardless of any conflicting provision in
`
`such other agreement that purports to supersede conflicting provisions in other agreements”—over
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`more general provisions in other retransmission agreements.
`
`28.
`
`Under Section 14(a) of the WNAC Retransmission Agreement, Super Towers and
`
`WNAC shall indemnify and hold harmless Cox against any third-party claims, liability, causes of
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`action, and costs (including reasonable attorneys’ fees) arising from, or in connection with, the
`
`breach by Super Towers and WNAC of any of its covenants, representations, warranties, or
`
`agreements contained in the WNAC Retransmission Agreement:
`
`Indemnification.
`
`14.
`
`Broadcaster [Super Towers and WNAC] shall indemnify and hold
`(a)
`harmless Operator [Cox], each Operator Entity, each System, and the
`officers, directors, employees, shareholders, members, representatives and
`other agents of each from and against any third-party claims, liability,
`causes of action, and costs (including reasonable attorneys’ fees) (“Losses”)
`arising from, or in connection with, (i) the breach by Broadcaster [Super
`Towers and WNAC] of any of its covenants, representations, warranties or
`agreements contained herein and/or (ii) any programming or other content
`provided by Broadcaster [Super Towers and WNAC] pursuant to or in
`connection with this Agreement, including, but not limited to, any suit or
`proceeding for libel, slander, defamation, invasion of property or privacy
`rights, or violation of trademark, patent, copyright or other intellectual
`property rights.
`
`Under Section 20 of the WNAC Retransmission Agreement, Cox, Super Towers,
`
`29.
`
`and WNAC agreed their entire agreement and understanding were contained in the WNAC
`
`Retransmission Agreement:
`
`9
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`

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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 10 of 18
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`This Agreement constitutes the entire agreement and understanding
`between the parties with regard to the subject matter hereof, and supersedes
`all prior or contemporaneous oral or written agreements and representations
`between the parties, including, without limitation, all other amendments,
`term sheets, and other agreements between Operator [Cox] or an Operator
`Entity and Broadcaster [Super Towers and WNAC] or a Broadcaster Entity
`. . . .
`
`
`The Mission Sale, and Super Towers and WNAC’s Representations
`
`30.
`
`On or around November 5, 2020, Super Towers and WNAC informed Cox that
`
`Super Towers intended to assign the FCC broadcast license and sell the ownership interest in
`
`WNAC-TV to Mission Broadcasting, Inc. (“Mission”).
`
`31.
`
`In their November 5, 2020 letter, Super Towers and WNAC represented to Cox that
`
`they understood and intended to comply with their obligations under Section 18(b) of the WNAC
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`Retransmission Agreement. Super Towers and WNAC stated that on the closing date of the
`
`transaction Super Towers (and its wholly owned subsidiary, WNAC) intends to assign to Mission
`
`the WNAC Retransmission Agreement.
`
`32.
`
`On November 16, 2020, Super Towers and WNAC again represented to Cox that
`
`they understood and intended to comply with their obligations under Section 18(b) of the WNAC
`
`Retransmission Agreement. Super Towers and WNAC stated to Cox that as part of the closing,
`
`Super Towers will assign to Mission and Mission will assume the WNAC Retransmission
`
`Agreement.
`
`33.
`
`On December 10, 2020, Cox provided Super Towers and WNAC with its formal
`
`request and consent to assign the WNAC Retransmission Agreement to Mission following
`
`consummation of the sale under Section 18(b) of the Agreement.
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`10
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`Super Towers and WNAC’s Breaches and Unfair and Deceptive Acts
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`34.
`
`Contrary to their contractual and legal obligations, and despite their repeated
`
`representations to Cox, on or around December 18, 2020, Super Towers and WNAC stated to Cox
`
`that WNAC-TV will comprise an “after-acquired” station under the retransmission agreement in
`
`place between Mission and Cox, instead of Mission assuming the WNAC Retransmission
`
`Agreement.
`
`35.
`
`On or around December 29, 2020, Cox notified Super Towers and WNAC that they
`
`would breach the WNAC Retransmission Agreement by failing to require Mission to assume and
`
`agree to the WNAC Retransmission Agreement.
`
`36.
`
`On or around January 12, 2021, Cox further notified Super Towers and WNAC that
`
`breach of the WNAC Retransmission Agreement would cause estimated minimum damages
`
`through February 28, 2023 (i.e., the remaining term of the Agreement) of approximately $4 million
`
`in increased licensing fees.
`
`37.
`
`Despite multiple requests, Super Towers and WNAC refused to meet with Cox to
`
`resolve the contractual and legal dispute and concealed material information about the proposed
`
`transaction from Cox, including assignment and assumption of the WNAC Retransmission
`
`Agreement.
`
`38.
`
`On or around June 18, 2021, Super Towers and WNAC notified Cox of the
`
`consummation of the sale of WNAC-TV to Mission effective on June 16, 2021, and did not state
`
`that Super Towers and WNAC had assigned nor that Mission had assumed and agreed to the
`
`WNAC Retransmission Agreement.
`
`39.
`
`On or around June 18, 2021, Mission notified Cox that on June 16, 2021, Mission
`
`had consummated Mission’s acquisition from Super Towers of WNAC-TV, and also did not state
`
`11
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`

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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 12 of 18
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`that Super Towers and WNAC had assigned nor that Mission had assumed and agreed to the
`
`WNAC Retransmission Agreement. Mission instead stated to Cox that effective on June 16, 2021,
`
`the station will now be governed by a retransmission agreement with Mission and that Cox should
`
`pay higher license fees for WNAC-TV under the terms of the retransmission agreement with
`
`Mission.
`
`40.
`
`Super Towers and WNAC sold, transferred, assigned, or otherwise disposed of their
`
`ownership interest in the station to Mission and knew that Mission was a Station Transferee under
`
`Section 18(b) of the WNAC Retransmission Agreement.
`
`41.
`
`Super Towers and WNAC knew the plain and ordinary terms of Section 18(b) of
`
`the WNAC Retransmission Agreement required Super Towers and WNAC to assign and to have
`
`Mission assume and agree to the WNAC Retransmission Agreement.
`
`42.
`
`Super Towers and WNAC knew the specific provisions in Section 18(b) of the
`
`WNAC Retransmission Agreement—including the terms “regardless of whether Operator [Cox]
`
`has a separate retransmission consent agreement in effect” with a Station Transferee, “regardless
`
`of any conflicting ‘after-acquired station’ language” in any such agreement, “regardless of which
`
`agreement was signed later,” and “regardless of any conflicting provision in such other agreement
`
`that purports to supersede conflicting provisions in other agreements”—were included over more
`
`general provisions in the retransmission agreement with Mission.
`
`43.
`
`Super Towers and WNAC knew the WNAC Retransmission Agreement was
`
`negotiated and understood with Cox that the WNAC Retransmission Agreement included the
`
`specific provisions of Section 18(b) of the WNAC Retransmission Agreement addressing which
`
`retransmission agreement would govern the right to retransmit WNAC-TV’s broadcast signal if
`
`12
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 13 of 18
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`Super Towers and WNAC sold, transferred, assigned, or otherwise disposed of its ownership
`
`interest in the television station.
`
`44.
`
`Super Towers and WNAC knew the WNAC Retransmission Agreement was
`
`amended and extended on February 11, 2020, later in time than the retransmission agreement
`
`between Cox and Mission.
`
`45.
`
`Super Towers and WNAC knew that failing to require Mission to assume and agree
`
`to the WNAC Retransmission Agreement would breach the WNAC Retransmission Agreement,
`
`cause an estimated minimum damages of approximately $4 million in increased licensing fees,
`
`and create potential claims of copyright infringement and FCC regulatory enforcement.
`
`46.
`
`Super Towers and WNAC thus knowingly and willfully failed to assign and to
`
`require Mission to assume and agree to the WNAC Retransmission Agreement, violated their
`
`representations to Cox, breached their contractual obligations with Cox, breached their duty of
`
`good faith and fair dealing with Cox, and committed unfair and deceptive acts against Cox.
`
`COUNT I
`Declaratory Judgment
`
`Cox repeats and realleges Paragraphs 1 through 46.
`
`This Court has authority to grant declaratory relief under the Declaratory Judgment
`
`47.
`
`48.
`
`Act, 28 U.S.C. § 2201.
`
`49.
`
`The WNAC Retransmission Agreement is a valid and enforceable contract to which
`
`Defendants are parties and under which they owe duties to Cox.
`
`50.
`
`Cox has been placed in apprehension of an ongoing dispute regarding the status and
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`terms of Cox’s retransmission rights with respect to the WNAC-TV broadcast signal because of
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`Defendants’ failure to assign and to require Mission to assume and agree to the WNAC
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`Retransmission Agreement.
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`13
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 14 of 18
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`51.
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`Because of this uncertainty, there is a ripe controversy between Cox and Defendants
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`regarding the effect of Section 18(b) of the WNAC Retransmission Agreement. Absent resolution
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`of this controversy by the Court, Cox will face uncertainty regarding the status and terms of its
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`bargained-for rights under the WNAC Retransmission Agreement.
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`52.
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`Additionally, there is a ripe controversy between Cox and WNAC with respect to
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`the applicable licensing fees and other terms governing Cox’s continued retransmission of the
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`WNAC-TV broadcast signal. Absent a declaration of the parties’ rights, Cox will face uncertainty
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`regarding a claim for copyright infringement and FCC regulatory compliance.
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`53.
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`Cox seeks a declaration that (a) Defendants were required to assign and to have
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`Mission assume and agree to the WNAC Retransmission Agreement; (b) the terms of the WNAC
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`Retransmission Agreement remain in full force and effect until 11:59 p.m. ET on February 23,
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`2023, or until further order of this Court; (c) Cox does not infringe upon WNAC’s copyright by
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`continuing to retransmit the WNAC-TV broadcast signal under the WNAC Retransmission
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`Agreement; and (d) Defendants shall indemnify and hold harmless Cox against any third-party
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`claims, liability, causes of action, and costs (including reasonable attorneys’ fees) arising from, or
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`in connection with, the breach by Super Towers and WNAC of the WNAC Retransmission
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`Agreement.
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`54.
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`55.
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`COUNT II
`Breach of Contract
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`Cox repeats and realleges Paragraphs 1 through 46.
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`The WNAC Retransmission Agreement is a valid and enforceable contract to which
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`Defendants are parties and under which they owe duties to Cox.
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`56.
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`Cox has performed all obligations under the WNAC Retransmission Agreement.
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 15 of 18
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`57.
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`Defendants have breached the WNAC Retransmission Agreement, including by
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`failing to assign and to require Mission to assume and agree to the WNAC Retransmission
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`Agreement under Section 18(b) of the Agreement.
`
`58.
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`Defendants’ breach of the WNAC Retransmission Agreement has caused damages
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`to Cox in an amount to be determined at trial.
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`COUNT III
`Breach of the Duty of Good Faith and Fair Dealing
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`Cox repeats and realleges Paragraphs 1 through 46.
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`Defendants have deprived Cox of the benefit of its bargain in the WNAC
`
`59.
`
`60.
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`Retransmission Agreement.
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`61.
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`By structuring a transaction with Mission without assigning and requiring Mission
`
`to assume and agree to the WNAC Retransmission Agreement, Defendants thwarted the purpose
`
`of the WNAC Retransmission Agreement, including the bargained-for licensing and other terms
`
`with Cox to retransmit the WNAC-TV broadcast signal for the full term of the WNAC
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`Retransmission Agreement.
`
`62.
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`Defendants have breached not only their express contractual obligations but also
`
`their implied obligations that a reasonable person in Cox’s position would be justified in
`
`understanding were included in the WNAC Retransmission Agreement, especially because of
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`Defendants’ repeated representations to Cox of their contractual and legal obligations under the
`
`WNAC Retransmission Agreement.
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`63.
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`Defendants’ breach of their duty of good faith and fair dealing has caused damages
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`to Cox in an amount to be determined at trial.
`
`15
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 16 of 18
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`COUNT IV
`Breach of Massachusetts Unfair Trade Practices Statute (M.G.L. ch. 93A, § 11)
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`64.
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`65.
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`66.
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`Cox repeats and realleges Paragraphs 1 through 46.
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`Cox and Defendants were engaged in trade or commerce in Massachusetts.
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`Defendants falsely represented to Cox that Defendants would assign and require
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`Mission to assume and agree to the WNAC Retransmission Agreement.
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`67.
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`Super Towers and WNAC refused to meet with Cox to resolve the contractual and
`
`legal dispute and concealed material information about the proposed transaction from Cox,
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`including assignment and assumption of the WNAC Retransmission Agreement.
`
`68.
`
`Defendants agreed with each other, and others, to violate the WNAC
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`Retransmission Agreement by failing to assign and to require Mission to assume and agree to the
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`WNAC Retransmission Agreement.
`
`69.
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`Defendants knew that they were precluded from selling, transferring, assigning, or
`
`otherwise disposing of their interest in WNAC-TV without obtaining the assignment and
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`assumption of the WNAC Retransmission Agreement.
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`70.
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`Defendants thus engaged in unfair or deceptive acts or practices in the conduct of
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`trade or commerce.
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`71.
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`Defendants’ unfair or deceptive acts or practices occurred primarily and
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`substantially in Massachusetts, where both entities reside.
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`72.
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`73.
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`Defendants’ unfair or deceptive acts or practices were willful or knowing.
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`Cox will suffer a loss of money as a result of Defendants’ unfair or deceptive acts
`
`or practices in an amount to be determined at trial.
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`JURY DEMAND
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`Cox demands a trial by jury under Fed. R. Civ. P. 38.
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`16
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`Case 1:21-cv-11124-DJC Document 1 Filed 07/07/21 Page 17 of 18
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff CoxCom, LLC, d/b/a Cox Communications, requests that the
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`Court find in its favor and against Defendants Super Towers, Inc. and WNAC, LLC, and grant the
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`following relief:
`
`A.
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`An order declaring that (a) Defendants were required to have Mission assume and
`
`agree to the WNAC Retransmission Agreement; (b) the terms of the WNAC
`
`Retransmission Agreement remain in full force and effect until 11:59 p.m. Eastern
`
`Standard Time on February 23, 2023, or until further order of this Court; (c) Cox
`
`does not infringe upon WNAC’s copyright by continuing to retransmit the WNAC-
`
`TV broadcast signal under the terms of the WNAC Retransmission Agreement; and
`
`(d) Defendants shall indemnify and hold harmless Cox against any thir