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AMERICAN FEDN. OF TV & RADIO ARTISTS v. BENTON & B

February 4, 1986

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, Plaintiff,
v.
BENTON & BOWLES, INC., Defendant



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.

The plaintiff, American Federation of Television and Radio Artists, AFL-CIO ("AFTRA"), brought this action to vacate and modify a portion of an arbitration award. AFTRA now moves for summary judgment pursuant to Fed. R. Civ. P. 56. The defendant, Benton & Bowles, Inc. ("B&B"), cross-moves for summary judgment confirming the award.

I. Background

 The facts on this motion are essentially undisputed. The action is, therefore, ripe for summary judgment.

 AFTRA is a labor union representing, among others, television performers throughout the United States. Defendant B&B, as part of its business, produces television programs. Both AFTRA and B&B were, at all pertinent times, parties to a collective bargaining agreement known as the 1979-82 AFTRA National Code of Fair Practice for Network Television Broadcasting (the "TV Code"). The TV Code governs the terms and conditions of employment of performers on programs originally produced for network television. *fn1"

 A. The TV Code

 The TV Code sets a pay-scale for compensating performers when programs in which they appeared are subsequently rebroadcast. The compensation varies depending on the nature of the rebroadcast. The TV Code provides for "re-play" fees in the event a program is rebroadcast over "free" television, as opposed to cable or pay television. An addenda to the Code specifies substantially smaller fees payable when a program is released for exhibition on pay cable, on basic cable, in flight, or on video cassette.

 The TV Code also restricts a producer's right to "edit" a previously broadcast program without first obtaining AFTRA's consent on mutually agreeable terms and conditions. Specifically, subparagraph 73(d) of the TV Code provides, in pertinent part, that "no excerpt, part, portion, segment or version of any program or edited variation thereof or combination of program material, may be used in any manner or for any purpose unless AFTRA consents thereto upon terms and conditions as mutually agreed upon." Jaffe Affidavit, Exhibit A P 73(d). However, a producer has the right to "replay an edited-down program, where editing is required by program time exigencies." Id. Disputes between a producer and AFTRA are arbitrable under a very broad arbitration clause in the TV Code. *fn2"

 B. The Dispute

 In 1981 and 1982, B&B produced "Texas," a soap opera. During those years, "Texas" was exhibited over the facilities of the National Broadcasting Company ("NBC") television network. "Texas" was seen over "free" television. Each episode of "Texas" as originally produced and exhibited was sixty minutes in length. NBC cancelled "Texas" in December 1982.

 B&B thereafter entered into an agreement with WTBS Superstation, Inc. ("Superstation") to provide "Texas" to Superstation for exhibition as two thirty-minute episodes on consecutive days each week. B&B did not obtain AFTRA's consent to provide "Texas" to Superstation in two thirty-minute versions as opposed to one sixty-minute program. Commencing on October 3, 1983, Superstation exhibited the original "Texas" episodes over the facilities of WTBS, a "free" television station in the Atlanta area, and, simultaneously, via satellite to cable television systems throughout the country. *fn3"

 As compensation for these rebroadcasts, B&B paid performers who appeared on the episodes of each program the fees payable under the TV Code when a network television program is rebroadcast over basic cable. AFTRA objected to this, contending that "Texas" performers were entitled to both the basic cable fee and to the far greater payment for rebroadcasts over free television. A dispute having arisen between AFTRA and B&B concerning the fees paid by B&B to the performers who appeared on "Texas" and with respect to B&B's right to edit "Texas" into two thirty-minute programs, AFTRA served and filed an arbitration demand, pursuant to the arbitration provisions of the TV Code.

 On November 26, 1984, following nine separate days of hearing memorialized in over 1100 pages of trial transcript and 90 exhibits, the arbitration panel rendered its opinion and award. Bertram T. Kupsinel, the neutral arbitrator and chairman of the arbitration panel wrote the opinion. The B&B-designated arbitrator concurred. ...


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