Broadcast Corp. of Georgia v. Subscription Television of Greater Atlanta, No. 71547
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | BANKE; McMURRAY, P.J., and BENHAM |
| Citation | 338 S.E.2d 775,177 Ga.App. 199 |
| Decision Date | 05 December 1985 |
| Docket Number | No. 71547 |
| Parties | BROADCAST CORPORATION OF GEORGIA v. SUBSCRIPTION TELEVISION OF GREATER ATLANTA. |
Page 775
v.
SUBSCRIPTION TELEVISION OF GREATER ATLANTA.
Page 776
[177 Ga.App. 200] Sidney O. Smith, Jr., R. Wayne Thorpe, Atlanta, for appellant.
J. Allen Maines, Caryn R. May, Philip S. Coe, Atlanta, for appellee.
[177 Ga.App. 199] BANKE, Chief Judge.
The appellee, Subscription Television of Greater Atlanta (STGA), and the appellant, Broadcast Corporation of Georgia (BCG), were parties to an agreement whereby STGA was to pay BCG to broadcast certain television programming, using a "scrambled" signal which could be enjoyed only by viewers using decoder boxes furnished by STGA. The transmissions were to be made via a UHF television station to be constructed by BCG at least partially for the specific purpose of complying with its obligations under the agreement. The arrangement broke down when the FCC severely restricted BCG's broadcast authorization due to the fact that its transmissions were interfering with those of other FCC licensees.
STGA brought the present action against BCG to recover for breach of contract, fraud, and other alleged wrongs, based on BCG's alleged failure to comply with its obligations under the agreement; and BCG counterclaimed to recover for STGA's alleged noncompliance with its obligations under the agreement. BCG later amended its counterclaim to seek recovery of an additional $2,500,000 under an alleged "liquidated damages" provision contained in the contract. Both sides moved for partial summary judgment on the issue of whether the contractual provision in question provided for liquidated damages or an unenforceable penalty. The trial court ruled in favor of STGA, on this issue, prompting BCG to file this appeal.
The contract between the parties was executed as part of an arrangement whereby BCG secured $2,500,000 in financing, structured as an equipment lease, to build the UHF TV station in question. Under the terms of the contract, STGA was entitled to make the payments for the transmission of its programming directly to the lessor under the BCG's equipment lease rather than to BCG itself. In the event the agreement was terminated for any reason, STGA agreed to pay all past-due and accrued "air-time" payments, plus an additional sum to be computed in accordance with a formula set forth in the contract. Under the circumstances as they actually developed, the amount of this additional sum...
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