Williams Broadcasting 1

Case 2:14-cv-01523-GEB-AC Document 1 Filed 06/26/14 Page 1 of 56
1 MORGAN, LEWIS & BOCKIUS LLP

Benjamin P. Smith, Bar No. 197551
2 Christopher J. Banks, Bar No. 218779
Dennis J. Sinclitico, Jr., Bar No. 240260
3 One Market, Spear Street Tower
San Francisco, CA 94105-1126
4 Tel: 415.442.1000
Fax: 415.442.1001
5
Attorneys for Plaintiff
6 ENTERCOM CALIFORNIA LLC
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10 ENTERCOM CALIFORNIA LLC (F/K/A Case No.
ENTERCOM SACRAMENTO, LLC),
11 COMPLAINT FOR:
Plaintiff, (1) BREACH OF CONTRACT;
12 (2) BREACH OF THE IMPLIED
vs. COVENANT OF GOOD FAITH AND
13 FAIR DEALING;
WILLIAMS BROADCASTING (3) DECLARATORY JUDGMENT
14 INCORPORATED,
15 Defendant.
16
17 Plaintiff Entercom California LLC complains and alleges as follows:
18 1. This is a case about the deliberate efforts of defendants Williams Broadcasting
19 Incorporated (Williams) to disregard a clear contractual obligation to provide Entercom
20 California LLC (hereinafter Entercom), the company that devoted over a decade of resources
21 helped turn the Williams radio program known as the Rob Arnie & Dawn Show into one of
22 Sacramentos premier morning radio programs, with the opportunity to match any offer received by
23 Williams to take its show to a competitive radio station. In clear disregard of its contractual
24 obligations, Williams has rejected Entercoms clear exercise of its right to match the competitive
25 offer Williams has obtained, and seeks to take the Show Williams and Entercom spent the last
26 fourteen years developing to a competitor. Entercom stands to suffer substantial damages and
27 irreparable harm if Williams succeeds in disregarding its contractual obligation. Advertising
28 revenues, employee compensation, and customer, listener and employee goodwill would all suffer
MORGAN, LEWIS &
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ATTORNEYS AT LAW
S AN FRANCISCO
1 COMPLAINT
1 if Williams is allowed to breach its contract with Entercom.
2 THE PARTIES
3 2. Plaintiff, Entercom is, and at all relevant times was a limited liability company,
4 duly organized and existing under and by virtue of the laws of the State of Delaware, with its
5 principal place of business located in Bala Cynwyd, Pennsylvania. Entercom is also registered
6 and qualified to transact business in the State of California. Prior to 2011, Entercom was known
7 as Entercom Sacramento, LLC.
8 3. Plaintiff is informed and believes, and on that basis alleges, that defendant
9 Williams is and was at all relevant times a public entity, duly organized and existing under and by
10 virtue of the laws of the State of California, with its headquarters in Rocklin, California.
11 JURISDICTION AND VENUE
12 4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
13 section 1332. The amount in controversy exceeds the sum of $75,000, exclusive of interest and
14 costs, and there is complete diversity of citizenship between the parties.
15 5. Venue is proper in this division of the Eastern District of California pursuant to 28

16 U.S.C. section 1391(a) and (c) and Civil Local Rule 120.
17 GENERAL ALLEGATIONS
18 6. Entercom is an indirect wholly-owned subsidiary of publicly-traded Entercom

19 Communications Corp., one of the largest radio broadcasting companies in the United States with
20 a nationwide portfolio of over 110 radio stations in 23 markets, including six stations in
21 Sacramento. Entercom and its subsidiaries serve as the radio broadcast partner for several
22 professional sports teams (including locally the Oakland Raiders, Oakland Athletics and San Jose
23 Sharks). Entercom stations have won multiple awards for broadcasting excellence.
24 7. Williams owns the broadcast rights to the Rob Arnie & Dawn Show (hereinafter,
25 the Show). The Show is a syndicated morning talk show that has aired for nearly fourteen
26 years on Entercoms Sacramento radio station KRXQ (more popularly known as 98 Rock or
27 98.5 FM).
28 8. The Show features unique programming dependent upon banter by and between the
MORGAN, LEWIS &
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2 COMPLAINT
1 Shows three principle personalities: Robert Williams, Arnie States and Dawn Lintz (a/k/a Dawn
2 Rossi), as well as interaction with callers. Each of the Show personalities have become well-known
3 in the Sacramento area and beyond.

4 From 1999 to 2014, Entercom and Williams Grew The Show Into
A Marquee Success And Entered A Programming Agreement
5 Governing Their Relationship
6 9. Entercom California initially began airing the Show on radio station KRXQ 98.5-
7 FM in 1999. Prior to that, the show had been broadcast in Reno, Nevada. According to a 2012
8 interview with Williams Rob Williams, the lead personality on and founder of the Show, the
9 Show was successful in attracting the important 18-35 year old male demographic in Reno, but
10 otherwise was limping along, and failed to find much of an audience outside of its core
11 demographic.
12 10. In 1999, the Show moved to 98 Rock in Sacramento, where Entercom invested
13 substantial resources, including both time and money, supporting and promoting the Show. Since
14 the Show moved to 98 Rock, it has enjoyed tremendous success and become the marquee
15 program on 98 Rock. As Mr. Williams explained in his 2012 interview, We came to Sacramento
16 in May, 1999 and in the 50 Arbitron quarterlies since then, we've been #1 18-34 and 18-49 Adults
17 48 times.
18 11. The Shows success has continued to the present day, and it continues to
19 consistently rank as the number one or number two morning radio program in the Sacramento
20 market for in the ratings demographics most valued by advertisers. For example, in the Winter
21 2014 reporting period (the last full reporting period currently available), the Show achieved an
22 Average Quarter Hour share of 7.9 in the Adults aged 25-54 demographic. Share refers to the
23 percentage of listeners then utilizing their radios during that time period. The Show was ranked
24 second, behind another Entercom station, KDND. The Shows share was nearly 38% higher than
25 the third place station.
26 12. Morning radio shows are generally critical to the success of a radio station, as ratings
27 during the morning hours tend to drive ratings throughout the day. Advertisers Entercoms clients
28 and customers, i.e., the primary means through with Entercom generates revenue require not only
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3 COMPLAINT
1 current high ratings, but also value ratings that have been high for an extended period of time.
2 Advertisers use historical ratings to predict future performance. They therefore value consistency
3 and treat it as an important factor, separate from the ratings themselves. Advertisers also are willing
4 to pay more for shows or dayparts that have significant separation from other shows in the market.
5 13. On June 30, 2005, Entercom and Williams entered into a contract entitled
6 Programming Agreement Between Williams Broadcasting Incorporated and Entercom

7 Sacramento, LLC (the Programming Agreement) to license the terrestrial broadcast rights in the
8 Show in the Sacramento market. A true and correct copy of the Programming Agreement is
9 attached hereto as Exhibit 1.

10 14. [REDACTED]
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4 COMPLAINT
1 offer, whereupon [Williams] and [Entercom] shall enter into an

appropriate three year agreement covering the Show.
2 Notwithstanding anything to the contrary in this Agreement,
[Williams] agrees that at no time during the third term hereof shall
3 [Williams] accept any offer (whether written or verbal) to broadcast
the Show, on a terrestrial basis, following this Agreements
4 expiration, unless such acceptance and/or agreement is specifically
subject to and subordinate to [Entercoms] right to match as set
5 forth in this Section 25.
6 By June 23, 2014, Entercom Exercised Its Contractual Right To Match Any
Competitive Offer Received By Williams
7
8 17. In early 2011, Entercom began discussions with Williams regarding an extension
9 of the Programming Agreement. Although the parties devoted significant time to those
10 discussions, they ended without an extension in late 2011. A second effort in 2012 also failed to
11 produce an extension.
12 18. In or around March 2014, discussions regarding an extension began again in
13 earnest. The parties exchanged various proposals, but did not reach any immediate agreements.
14 19. On Friday, June 13, 2014, Williams attorney, Kevin Hughey of the law firm
15 Hughey Moenig in Sacramento, advised Entercom that Williams was negotiating a potential
16 agreement with another party. In an email, Mr. Hughey advised that we [i.e., Williams] may
17 have an offer Williams Broadcasting deems acceptable and therefore subject to disclosure and
18 right to match decision by Entercom per contract section 25. A true and correct copy of Mr.
19 Hugheys June 13, 2014 email is attached to this Complaint as Exhibit 2.
20 20. Williams did not provide any specific offer from another company until
21 Wednesday, June 18, 2014. On that day, Mr. Hughey sent Entercom a copy of a term sheet offer
22 from Clear Channel (the Offer) as an attachment to an email. A true and correct copy of Mr.
23 Hugheys June 18, 2014 email, along with its attachment comprising of the Clear Channel term
24 sheet offer, is attached to this Complaint as Exhibit 3.
25 21. Later that same day, June 18, 2014, Mr. Hughey had a telephone call with Michael
26 Dash, Vice President / Deputy General Counsel for Entercoms ultimate parent corporation,
27 Entercom Communications Corp. Mr. Dash spoke with Mr. Hughey over the telephone in the
28 evening and informed him that Entercom would likely match the Offer that Mr. Hughey had
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5 COMPLAINT
1 provided. During the phone call, Mr. Hughey also advised that the Clear Channel Offer did not
2 include all of the terms Williams had wanted in its negotiations with Clear Channel.
3 22. In light of Mr. Hugheys statements, Mr. Dash requested a meeting or call with
4 Williams to discuss whether alterations to the Offer made more sense, rather than simply binding
5 Entercom and Williams to what Mr. Hughey said Williams had deemed to be a less-than-perfect
6 arrangement. As Mr. Dash explained to Mr. Hughey, the suggestion was that maybe Entercom
7 and Williams could, together, build a better mousetrap, i.e., a better agreement. To Mr. Dashs
8 surprise, Mr. Hughey responded by stating that Williams would likely not agree to a meeting or
9 call.
10 23. Two days later, on Friday, June 20, 2012, Mr. Hughey informed Mr. Dash in a
11 telephone call that Williams would not agree to meet with Entercom and would not accept any
12 attempt to match the Offer. He confirmed this position in an email early on Saturday, June 21. A
13 true and correct copy of Mr. Hugheys email on June 21, 2014 is attached to this Complaint as
14 Exhibit 4.
15 24. On Saturday, June 21, 2014, Mr. Dash responded to these communications from
16 Mr. Hughey in writing, wherein Mr. Dash confirmed that Entercom was exercising its right to
17 match the Clear Channel Offer. While Mr. Dash also explained that Entercom would be willing
18 to modify some of the terms if Williams preferred different terms on some of the issues,
19 Entercoms exercise of its right to match the Clear Channel Offer was unequivocal:
20 Entercom hereby exercises its right to match the June 18, 2014 offer Williams
received from Clear Channel (the Offer).
21 * * *
If Williams does not wish to discuss alterations to the Offer,
22 Entercom is prepared to match all of the provisions of the offer in
full and, again, exercises its right to do so.
23
24 A true and correct copy of Mr. Dashs June 21, 2014 email to Mr. Hughey is attached to this
25 declaration as Exhibit 5.
26 25. On Monday, June 23, Mr. Dash again confirmed Entercoms exercise of its right to
27 match in letters hand delivered to Mr. Hughey and Williams, and sent via overnight delivery to
28 Mr. Schavietello, Williams business partner. A true and correct copy of these letters in attached
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6 COMPLAINT
1 to this Complaint as Exhibit 6.
2 26. Later that day, Monday, June 23, Mr. Dash forwarded to Mr. Hughey a suggested
3 long-form agreement that incorporated the Offers terms into the existing Programming
4 Agreement form, leaving in place legacy provisions from that form that were not inconsistent
5 with the Offer. Given that the Programming Agreement represented Williams form syndication
6 license, albeit negotiated and somewhat tailored to Entercom, Mr. Dash believed that retaining
7 the provisions not inconsistent with the Offer seemed like an appropriate starting point for a long-
8 form draft. However, Mr. Dash also indicated Entercoms willingness to discuss any aspect of
9 this first draft. A true and correct copy of the June 23, 2014 email to Mr. Hughey is attached to
10 this Complaint as Exhibit 7.
11 In Breach of Williams Contractual Agreements,

Williams Has Rejected Entercoms Exercise Of
12 Its Right To Match And Wrongly Claimed That
The Programming Agreement Has Expir[ed]
13
14 27. Entercom did not receive a substantive response to the June 21 and 23
15 communications from Mr. Dash until Wednesday, June 25, 2014, when Mr. Hughey sent a letter
16 via email rejecting Entercom's exercise of its right to match and purporting to confirm and
17 memorialize expiry of the agreement between Entercom and Williams Broadcasting. In the
18 letter, Mr. Hughey identified ten areas where he erroneously claimed Entercom had not matched
19 the Clear Channel Offer. A true and correct copy of Mr. Hugheys June 25, 2014 letter is
20 attached to this Complaint as Exhibit 8.
21 28. Contrary to the claims made in Mr. Hugheys June 25, 2014 letter, Entercom in
22 fact had already agreed to match each of the ten items identified in Mr. Hugheys June 25, 2014
23 letter. Entercoms agreement to these terms is reflected and expressly stated in Mr. Dashs June
24 21, 2014 letter to Mr. Hughey and the draft long-form agreement sent to him on June 23, 2014
25 (i.e., Exhibits __ and __ to this Complaint). However, to avoid any doubt, Mr. Dash sent Mr.
26 Hughey one last letter, on Thursday, June 26, 2014, making clear, once again, that Entercom had
27 agreed to match each and every term in the Clear Channel Offer. A true and correct copy of my
28 June 26, 2014, letter to Mr. Hughey is attached to this Complaint as Exhibit 9.
MORGAN, LEWIS &
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ATTORNEYS AT LAW
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7 COMPLAINT
1 Williams Plan To Take The Show To A Rival Station Threatens

Substantial Damages And Irreparable Harm to Entercom
2
3 29. Entercom stands to suffer substantial damages and irreparable harm if Williams
4 succeeds in disregarding its contractual obligation to enter into a contract with Entercom that
5 matches the Clear Channel Offer, and thereby move the Show which Entercom has spent
6 millions supporting and helping to develop over the last fourteen years to a competitive radio
7 station in the Sacramento market. The effect of loss of the Show would be felt both immediately
8 and in the long-term. Advertising revenues, employee compensation, and customer, listener and
9 employee goodwill would all suffer.
10 30. As detailed previously, morning radio shows are generally critical to the success of
11 a radio station, as ratings during the morning hours tend to drive ratings throughout the day. The
12 Show is very highly ranked and has been for a significant period of time.
13 31. If Entercom were to lose the Show, Entercom would need to extend many months
14 and potentially years searching for a replacement show that could generate similar ratings
15 indeed, Entercom might never be able to find a true replacement for the Show. This is because
16 of the unique talents associated with the Show, and the franchise the Show has become over the
17 past decade in the Sacramento region. A significant number of Station listeners tune into the
18 Station specifically for the Show.
19 32. The Show is especially important given overall declines in the rock music format
20 over the past decade, such that radio stations including the Station have depended more
21 heavily on personalities rather than music to drive listenership. Loss of the Show would cause
22 advertising revenue declines that would extend for months, if not years, even assuming the
23 Station could promptly create and/or license a replacement show with comparable ratings.
24 Advertisers would demand a much longer period of high ratings perhaps a year or longer
25 before they would agree to pay the higher advertising rates associated with the Shows roughly
26 fourteen year track record in the market, and its history of high ratings.
27 33. Moreover, any change in a radio show particularly one as important and popular
28 as the Show is disruptive to the sales process irrespective of ratings generated by replacement
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8 COMPLAINT
1 programming. For example, sales staff spend a significant amount of time dealing with questions
2 and concerns from clients, rather than spending their time prospecting for new clients.
3 34. Ratings at the Station outside the Shows morning drive-time time slot (or
4 daypart) would also suffer. A powerful morning show that delivers a large audience lifts the
5 ratings of the midday daypart that immediately follows it, which in turn lifts the afternoon drive
6 daypart. Conversely, a morning show that does not deliver a large audience can be a drag on the
7 rest of the stations dayparts. Declines in the ratings of subsequent dayparts would likely be
8 correlated with revenue declines with those dayparts as well.
9 35. Loss of the Show would cause other harms as well. By way of example only,
10 Entercoms sales staff is compensated in large part by commissions on revenue they sell.
11 Entercoms sales managers receive incentive compensation based on how the entire cluster of
12 Entercom stations in Sacramento perform. A change in one part of a station can erode the sales
13 staffs confidence in the product they are selling to advertisers. Were Entercom to experience a
14 significant decline in revenue due to loss of the Show, this decline likely would lead to a decline
15 in income to sales personnel. Similarly, programming personnel receive incentive compensation

16 tied directly to ratings performance. A decline in income to employees affected by the loss of the
17 Show would render employee retention and recruitment more difficult.
18 36. As a result, the Show represents special, unique talent that cannot be replaced. If
19 Entercom were to lose the Show, especially to a competitor station in the Sacramento market,
20 Entercom would stand to lose substantial goodwill among customers and with other employees on
21 the Station and on other stations Entercom operates in Sacramento. The effects of such a loss
22 could not be stated in monetary terms alone.
23 FIRST CLAIM
(Breach of Contract)
24
25 37. Entercom realleges and incorporate herein by this reference each and every
26 allegation contained in paragraphs 1 through 36 above as though fully set forth in full herein.
27 38. On June 30, 2005, Entercom and Williams entered into the Programming
28 Agreement.
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9 COMPLAINT
1 39. From the date that the parties entered into the Programming Agreement, Entercom
2 fully performed any and all terms, obligations, and conditions on its part or was otherwise
3 excused from such performance.

4 40. As set forth above, Williams has breached the Programming Agreement by, among
5 other things, failing to abide by Section 25 which affords Entercom the right to match any offer to
6 broadcast the Rob Arnie & Dawn Show and requires Williams to enter into an appropriate
7 three year agreement covering the Show.
8 41. As a direct and proximate cause of Williamss breach, Entercom has and/or will
9 suffer general and special damages including, but not limited to, lost profits, in an amount to be
10 proven at trial and in excess of the statutory minimum. At this time, Entercom anticipates that its
11 quantifiable damages would be expected to exceed $5 million.
12 SECOND CLAIM
(Breach of the Covenant of Good Faith and Fair Dealing)
13
16 43. The Programming Agreement contained an implied covenant of good faith and fair
17 dealing which obligated Williams to perform the terms and conditions of the contract fairly and in
18 good faith and to refrain from doing any act that would deprive Entercom of the benefits of the
19 Programming Agreement.
20 44. As detailed above, the Programming Agreement affords Entercom the Right to
21 Match any offer from a third-party to broadcast the Rob Arnie & Dawn Show following
22 expiration of the Programming Agreement and obligates Williams to enter into an appropriate
23 three year agreement covering the Show.
24 45. Williams has breached the implied covenant of good faith and fair dealing by,
25 among other things, (a) failing to negotiate with Entercom in a timely, good faith fashion and (b)
26 concocting pretextual excuses for asserting that there is some difference between the Offer and
27 what Entercom has agreed to provide to Williams.
28 46. Williamss conduct was intentional, without justification, in bad faith, and for
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10 COMPLAINT
1 reasons extraneous to the Programming Agreement.
2 47. As a direct and proximate result of Williams breach, Entercom has been damaged
3 in an amount in excess of the statutory minimum. At this time, Entercom anticipates that its
4 quantifiable damages would be expected to exceed $5 million.
5 THIRD CLAIM
(Declaratory Relief)
6
9 49. Despite the language of the Programming Agreement set forth above, Williams
10 contends that it owes no duty to allow Entercom to match the offer from Clear Channel to
11 broadcast the Rob Arnie & Dawn Show and no obligation to enter into an appropriate three
12 year agreement to broadcast the show. Entercom contends that the Programming Agreement
13 confers upon it the right to match the offer from Clear Channel to broadcast the Rob Arnie &
14 Dawn Show and no obligation to enter into an appropriate three year agreement to broadcast the
15 show.
16 50. By reason of the foregoing, there now exists an actual, justiciable, controversy
17 among the parties hereto within the meaning of 28 U.S.C. section 2201. This Court is vested with
18 the power to declare and adjudicate the respective rights, duties and obligation of the parties
19 hereto with respect to the issues raised by this claim for declaratory relief.
20 PRAYER FOR RELIEF
21 WHEREFORE, Entercom prays for judgment against Williams on each and every claim
22 for relief set forth above and award it relief including, but not limited to, the following:
23 a. Judgment against Williams with general and special damages, including, but not
24 limited to, lost profits, in an amount to be proved at trial and which, at this time, are expected to
25 exceed $5 million;
26 b. Pre-judgment interest at the prevailing rate;
27 c. Post-judgment interest at the prevailing rate;
28 d. Costs incurred in bringing suit;
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11 COMPLAINT
1 e. Reasonable attorneys fees and costs incurred pursuant to the Programming
2 Agreement;
3 f. Specific performance of the Programming Agreement;

4 g. That Williams be ordered to enter into an appropriate three year agreement to
5 broadcast the Rob Arnie & Dawn Show as is required by the Programming Agreement;
6 h. For temporary, preliminary and permanent injunctive relief (i) enjoining Williams
7 from entering into an agreement with another entity to broadcast the Rob Arnie & Dawn Show
8 until July 1, 2017 and (ii) requiring Williams to enter into an appropriate three year agreement
9 covering the Rob Arnie & Dawn Show as is required by the Programming Agreement;
10 i. A declaration of the parties respective rights, duties and obligations under the
11 Programming Agreement;
12 j. Such additional and further relief that the Court deems just and appropriate.
13 Dated: June 26, 2014 MORGAN, LEWIS & BOCKIUS LLP
14
15 By
Benjamin P. Smith
16 Christopher J. Banks
Dennis J. Sinclitico, Jr.
17 Attorneys for Plaintiff
ENTERCOM CALIFORNIA LLC
18
19 DEMAND FOR JURY TRIAL
20 Pursuant to Federal Rule of Civil Procedure 38, Entercom hereby demands trial by jury on
21 any and all issues so triable.
22 Dated: June 26, 2014 MORGAN, LEWIS & BOCKIUS LLP
23
24 By /s/
Benjamin P. Smith
25 Christopher J. Banks
Dennis J. Sinclitico, Jr.
26 Attorneys for Plaintiff
ENTERCOM CALIFORNIA LLC
27
28
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12 COMPLAINT
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Case 2:14-cv-01523-GEB-AC Document 1 Filed 06/26/14 Page 1 of 56

1 MORGAN, LEWIS & BOCKIUS LLP

17 Plaintiff Entercom California LLC complains and alleges as follows:

18 1. This is a case about the deliberate efforts of defendants Williams Broadcasting

19 Incorporated (Williams) to disregard a clear contractual obligation to provide Entercom

27 irreparable harm if Williams succeeds in disregarding its contractual obligation. Advertising

1 if Williams is allowed to breach its contract with Entercom.

11 JURISDICTION AND VENUE

14 costs, and there is complete diversity of citizenship between the parties.

15 5. Venue is proper in this division of the Eastern District of California pursuant to 28

18 6. Entercom is an indirect wholly-owned subsidiary of publicly-traded Entercom

3 in the Sacramento area and beyond.

6 Programming Agreement Between Williams Broadcasting Incorporated and Entercom

9 attached hereto as Exhibit 1.

1 offer, whereupon [Williams] and [Entercom] shall enter into an

12 18. In or around March 2014, discussions regarding an extension began again in

19 Hugheys June 13, 2014 email is attached to this Complaint as Exhibit 2.

24 sheet offer, is attached to this Complaint as Exhibit 3.

1 to this Complaint as Exhibit 6.

11 In Breach of Williams Contractual Agreements,

20 attached to this Complaint as Exhibit 8.

1 Williams Plan To Take The Show To A Rival Station Threatens

9 employee goodwill would all suffer.

18 Station specifically for the Show.

8 correlated with revenue declines with those dayparts as well.

15 in income to sales personnel. Similarly, programming personnel receive incentive compensation

17 Show would render employee retention and recruitment more difficult.

3 excused from such performance.

11 quantifiable damages would be expected to exceed $5 million.

1 reasons extraneous to the Programming Agreement.

1 e. Reasonable attorneys fees and costs incurred pursuant to the Programming

3 f. Specific performance of the Programming Agreement;

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