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An ironclad contract provision protects a Philadelphia-area sports cable channel from having to pay damages to an advertising agent under an industrywide practice, a New York state judge has ruled. Although Comcast Sport Net Cable Channel may have initially entertained thoughts of paying the agent a buyout under a standard industry formula, Justice B. Lowe ruled the channel was within its rights in relying on the contract clause to refuse any payment whatsoever. Referring to the contractual provision that the advertising agent, Petry Television, was seeking to avoid, Lowe wrote: “that the plaintiff made a bed which it now finds an uncomfortable place to lie is not for the court to remedy.” Petry Television, which is based in New York City, was given an exclusive contract in July 2000 to sell advertising time for Philadelphia Flyers and Philadelphia 76ers games broadcast on Comcast Sports. After being notified on Aug. 14, 2001, that it had been replaced, Petry sued both Comcast and the company hired to replace it, Harrison, Righter & Parsons, as the exclusive agent selling advertising time for games played by Philadelphia’s professional hockey and basketball teams. Although Lowe dismissed Petry’s claims against Comcast Sports in the suit, Petry Television v. Comcast Spectacor, 600851/02, he allowed the agency to pursue its claims for tortious interference with its contract against its successor, Harrison Righter. Lowe found some substance to Petry’s claim that initially Comcast had considered making a buyout payment under a “standard, if informal, industry formula.” “[I]t does appear that Comcast was willing to pay, and may even have expected to pay, a buyout to the plaintiff,” Lowe wrote. But analysis of the contract provision, which barred recovery of “loss of revenues or profits,” explicitly trumped any industry practice, he ruled. Lowe had observed that the cancellation of exclusive brokerage contracts of the type secured by Petry “appears to be a fairly common practice in the television broadcast industry.” Lowe further noted that the sweeping prohibition against damage claims had been undoubtedly inserted into the contract at Comcast’s insistence, and that Petry, a “sophisticated business entity” had “fully participated” in the contract negotiations. However, Petry’s replacement could claim no similar contractual protection against any form of damages, Lowe wrote in refusing to dismiss the tortious interference claim against Harrison Righter. Thomas B. Kinzler, of Kelley Drye & Warren, represented both Comcast and Harrison Righter. Lawrence E. Tofel, of Tofel Karen & Partners, represented Petry Television.

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