An Oklahoma state appeals court has affirmed the ruling of a trial court, which denied a motion for a preliminary injunction sought by a jilted cable company in a contract dispute with the Oklahoma Secondary Schools Athletic Association (OSSAA).
Central to the court’s ruling was that CoxCom, Inc. (Cox), an Oklahoma cable TV operator, “did not demonstrate (the) irreparable harm by clear and convincing evidence” that it would suffer if the defendant were allowed to move forward with its new contract with a rival cable TV operator.
Cox signed a contract with the OSSAA in June 2002, giving it the exclusive right to telecast “any or all” OSSAA championship events for a three year term from August 2002 through August 2005. In addition, the contact provided that “Cox shall have first right of refusal on renewal beyond August 2005.”
On September 2, 2005, Cox submitted a new contract to the OSSAA, which essentially updating the dates while retaining the terms of the 2002-2005 contract. Four days later, the Family Broadcasting Group, d/b/a KSBI-TV, an independent commercial television station [presented OSSAA with a proposal to telecast OSSAA’s member games on KSBI’s independent commercial station throughout its coverage area, which was four times the size of that offered by Cox.
The OSSAA board of directors voted to accept KSBI’s proposal to telecast OSSAA state championship events, and then advised Cox of their decision.
Cox asked for, and was granted, the opportunity to exercise its “first right of refusal” under the 2002 Cox Contract. The OSSAA advised Cox in the following letter of the rationale it used in moving forward with KSBI:
“The Board, in making the decision to go with the other company stated the strongest point of the agreement was the opportunity for the contests to be shown in a much wider geographic area. They reach 47 counties and you state that you only reach 13… I will extend Cox Communications the opportunity to match the proposal by the third party provided you can respond to OSSAA within a 24 hour period your plan to reach the additional areas of the state with TV coverage … If I have not received assurance from Cox of their ability to match this portion of the agreement, I will move forward with the other company.”
Cox promised that it would submit a plan by September 20. However, when that plan was delivered, Cox advised the association that would address the question of coverage area at a later date.
The OSSAA signed a contract with KSBI two days later.
Cox wasn’t finished, though. On November 18, 2005, on the eve of the high school football playoff games, and nearly two months after the KSBI agreement was signed, Cox filed a lawsuit against OSSAA and FBG d/b/a KSBI, alleging breach of contract, unfair competition, wrongful interference with contractual relations, and specific performance. Cox also sought an injunction, a request that remains the issue in the instant opinion.
On January 5, 2006, the trial court overruled Cox’s Motion for Preliminary Injunction. “The trial court stated Cox had not met its clear and convincing burden of proof regarding its likelihood of success on the merits, nor had it met its burden of proof that it would suffer irreparable harm absent an injunction,” paraphrased the appeals court.
The appeals court agreed with that finding, writing “Cox has not demonstrated it is losing a unique position in the marketplace by losing its exclusive right to telecast OSSAA’s championship events. It may still televise regular season events, and Cox subscribers can still view OSSAA games broadcast by KSBI on other channels carried by Cox. Cox did not demonstrate its viewers will note any distinction, or that its ratings have dropped at all.
“Cox complains its losses cannot be adequately compensated by monetary damages. However, its ‘loss of programming’ in not being able to broadcast the high school playoff games amounts to the revenue lost by its inability to broadcast these events. This injury can be quantified by loss of advertising and/or loss of viewership. Mr. Brus, president of FBG and general manager of KSBI, testified air coverage has a definite and distinct price which can be calculated. Cox does not dispute this. ‘If the injury complained of may be compensated by an award of monetary damages then an adequate remedy at law exists and no irreparable harm may be found as a matter of law.’ Paradise Distributors, Inc., v. Evansville Brewing Co., Inc., 906 F. Supp. 619 (N.D. Okla. 1995).
“Cox did not demonstrate irreparable harm by clear and convincing evidence. Instead, the evidence indicated any harm to Cox could be adequately compensated with money damages. Because Cox did not demonstrate irreparable harm, it becomes unnecessary for this Court to determine whether Cox met the other criteria for issuance of a preliminary injunction.
“The trial court’s decision denying Cox’s motion for a preliminary injunction is not against the clear weight of the evidence. Therefore, the trial court did not abuse its discretion in denying Cox’s motion for preliminary injunction.”
Coxcom, Inc. v. Oklahoma Secondary Schools Athletic Association; and Family Broadcasting Group, Inc. D/B/A KSBI Television Network; Ct.Civ.App.Ok, Div. 1; Case No. 103,036, 2006 OK CIV APP 107; 2006 Okla. Civ. App. LEXIS 84; 9/14/06
Attorneys of Record: (for plaintiff) Patrick M. Ryan, Phillip G. Whaley, Daniel G. Webber, Jr., Matthew C. Kane of Ryan, Whaley & Coldiron, Oklahoma City, Oklahoma, (for defendant Oklahoma Secondary Schools Athletic Association) George S. Corbyn, Jr., Kathryn M. Zynda, Corbyn Law Firm, Oklahoma City, Oklahoma.
