Herald Publishing Company v. Florida Antennavision, Inc.

173 So. 2d 469, 145 U.S.P.Q. (BNA) 437, 5 Rad. Reg. 2d (P & F) 2082, 1965 Fla. App. LEXIS 4454, 59 P.U.R.3d 145
CourtDistrict Court of Appeal of Florida
DecidedApril 1, 1965
DocketF-353
StatusPublished
Cited by4 cases

This text of 173 So. 2d 469 (Herald Publishing Company v. Florida Antennavision, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herald Publishing Company v. Florida Antennavision, Inc., 173 So. 2d 469, 145 U.S.P.Q. (BNA) 437, 5 Rad. Reg. 2d (P & F) 2082, 1965 Fla. App. LEXIS 4454, 59 P.U.R.3d 145 (Fla. Ct. App. 1965).

Opinion

173 So.2d 469 (1965)

HERALD PUBLISHING COMPANY, a corporation, Appellant,
v.
FLORIDA ANTENNAVISION, INC., a corporation, Appellee.

No. F-353.

District Court of Appeal of Florida. First District.

April 1, 1965.

*470 Thomas Sale, Jr., and Davenport, Johnston, Harris & Urquhart, Panama City, for appellant.

Logue & Bennett, Panama City, for appellee.

WIGGINTON, Judge.

Appellant brought suit seeking an injunction and a money judgment for damages allegedly suffered as a result of the alleged tortious conduct and activities of appellee. From the final judgment dismissing with prejudice appellant's second amended complaint for failure to state a cause of action, this appeal is taken.

From the allegations of the complaint the following salient facts appear. Appellant is a corporation engaged in the business of broadcasting television programs over its facilities in Panama City. Appellant is affiliated with the National Broadcasting Company and American Broadcasting Company with whom it has contracts for broadcasting network programs. Appellant also holds contracts with the owners or distributors of syndicated film programs especially produced for broadcasting by commercial television stations, and motion pictures which have been converted to use for television broadcasting. The program material acquired by appellant is under contracts which provide the right to first broadcast the material in the area served by it. Under the terms of its contracts, or by industry custom and practice, no one else has the right to broadcast the programs in that area either simultaneously with or prior to their release by appellant.

Five other television broadcasting companies operating within a radius of approximately one hundred miles of appellant's facilities are affiliated with the three major national television networks and have contracts under which they also broadcast much of the same program material broadcast by appellant at times either simultaneously with or prior to the hour and date on which appellant transmits its broadcasts. All such program material broadcast by the various television companies is copyrighted under the laws of the United States, and is broadcast by facilities which are under the direct supervision and control of duly constituted administrative agencies of the Federal Government. The complaint does not allege that the programs or material telecast by appellant is protected under copyrights owned by appellant, so we are not here concerned with any question of infringement.

Appellee Florida Antennavision, Inc., is engaged in the business of operating a commercial enterprise which consists of the construction and installation of a closed circuit cable television distribution system in the City of Panama City where appellant's station is located. The system operated by appellee includes a large antenna located outside of Panama City which is constructed in such manner as to enable it to pick up television signals from the other broadcasting companies operating within a radius of one hundred miles of Panama City. Attached to the antenna is certain electronic equipment which receives and amplifies television signals originating at the other broadcasting stations, which amplified signals are transmitted over a cable installed on electric light poles along the streets of Panama City. From appellee's cable, connections are made into the home television sets of subscribers who pay a service charge permitting them to receive the programs originating outside of Panama City which they are incapable of receiving by use of a standard antenna.

*471 Appellee has no contracts with the national television networks or with any of the owners and distributors of the program material broadcast by television stations which it receives, amplifies, and sends out over its facilities, nor does it pay any charge to the owners or distributors of such program material. As a result of its activities, appellee picks up from the surrounding television stations, amplifies, and sends out over its facilities to its subscribers some of the same programs and program material which appellant has the exclusive right to first broadcast in Panama City. Many of the programs and much of the program material so furnished by appellee to its Panama City subscribers is on a date or at an hour simultaneously with or prior to the broadcast of the same programs or program material by appellant. Since appellee is not engaged in the television broadcasting business, its operation is not subject to regulation by any agency of government, and it therefore is not accountable to any regulatory body for the manner in which it conducts its business.

The complaint alleges that appellee, by its manner of operation, is wrongfully depriving appellant of a part of its listening and viewing audience by making available to television viewers in Panama City from broadcasting stations within a radius of one hundred miles the same programs and other material which appellant has exclusive contracts to telecast in the Panama City area. It is alleged that this action on the part of appellee diminishes the amount of advertising revenue which appellant would otherwise be able to charge and obtain from its advertisers based upon the number of viewers exclusively reached by appellant's broadcast signal. Appellant alleges that appellee is guilty of unfair competitive practices in that it transmits to the viewing public of Panama City, at no cost to itself, programs and program material which appellant is required to purchase for a valuable consideration; that appellee's activities constitute an interference with appellant's lawful and advantageous business relationships with the owners and distributors of the program material transmitted by appellant over its station in that such owners and distributors are prevented from assuring appellant that it will have the first and exclusive right to telecast such programs in the Panama City area and enjoy the benefits derivable therefrom; that if allowed to continue, appellee's operations will reduce and destroy the valuable property rights which appellant has in the programs and program material purchased by it for telecasting over its Panama City facilities. The complaint prays for an injunction restraining appellee from operating in such manner as to injure appellant in the particulars alleged in the complaint, and a money judgment for the damages suffered as a result of appellee's tortious conduct. It is based upon these allegations and prayer for relief that appellant contends its amended complaint states a cause of action, and that the chancellor erred in dismissing it with prejudice.

It appears to be appellant's basic position that even though it owns no copyrights of the programs it telecasts over its facilities, that under the circumstances alleged it nevertheless possesses a special property right in the subject matter of its telecasts which the law will protect against unfair competition and interference with its favorable contractual relations between it and those from whom it purchases the right to broadcast its material. In support of this position appellant cites and relies upon the case of International News Service v. Associated Press.[1] In this case Associated Press brought suit to enjoin International News Service from activities alleged to constitute unfair competition. The facts established that Associated Press, at great expense to itself, gathered and furnished to its subscribers news items which appeared in the Associated Press bulletin and in early editions of newspapers published by its subscribers. INS, a competing news gathering

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bergnes v. Bergnes
24 Fla. Supp. 2d 41 (Florida Circuit Courts, 1987)
American Television & Communications Corp. v. Manning
651 P.2d 440 (Colorado Court of Appeals, 1982)
KAKE-TV & RADIO, INC. v. City of Wichita
516 P.2d 929 (Supreme Court of Kansas, 1973)
Hubbard Broadcasting, Inc. v. City of Albuquerque
477 P.2d 602 (New Mexico Supreme Court, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
173 So. 2d 469, 145 U.S.P.Q. (BNA) 437, 5 Rad. Reg. 2d (P & F) 2082, 1965 Fla. App. LEXIS 4454, 59 P.U.R.3d 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herald-publishing-company-v-florida-antennavision-inc-fladistctapp-1965.