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Judge dismisses WPGA lawsuit against Cox

Cox Communications won a key victory in its long-running dispute with WPGA-TV when a judge agreed with Cox’s motion to dismiss a suit filed by WPGA.

Bibb County Superior Court Judge Lamar Sizemore issued a ruling Friday that dismissed WPGA’s case against the local cable company. WPGA filed a suit saying Cox breached its agreement with the station after Cox tried to move WPGA out of the Channel 6 and 706 spots after WPGA stopped broadcasting ABC’s signal Jan. 1.

Sizemore left a temporary restraining order in place that keeps WPGA in those spots until an appeals court hears the case. WPGA station owner Lowell Register said Monday he would file an appeal.

“It’s obviously disappointing,” Register said. “It’s also kind of surprising. I guess one judge looks at it one way and another looks at it in a different way.”

Lynn Murphey, vice president of Cox Communications, said the company is pleased with the decision and is hopeful it could be a signal to moving ABC back to Channels 6 and 706. WGXA, which also broadcasts the Fox signal, picked up ABC’s signal when WPGA dropped it. ABC is currently on Cox Cable Channel 15.

“Obviously, we’re very pleased with the order,” she said. “It upholds our position. Obviously, this was in our favor and we hope to continue to prevail if WPGA appeals.”

The dispute goes all the way back to October, when WPGA announced it would no longer carry ABC’s programming once its contract expired Jan. 1. Much of the decision came because ABC wanted $500,000 from WPGA to stay as the affiliate in the Middle Georgia market. It marked a sharp departure from the old days of television, in which networks paid affiliates to carry their signal.

But because WPGA was no longer a Big Four network — ABC, CBS, NBC and Fox — Cox wanted to keep ABC at Channels 6 and 706 and drop WPGA.

Much of the debate between the two parties is whether the agreement between Cox and WPGA was “retransmission consent” or “must-carry.”

Retransmission consent means Cox would compensate WPGA for carrying the signal. Must-carry would mean no compensation.

Cox argued that it gave WPGA about $100,000 in license fees per their agreement, something it wouldn’t have done had the agreement been “must-carry.” WPGA argued it defaulted back to “must-carry” when the nation made a mandated switch under federal law from analog to digital signals.

In his ruling, issued as a letter to both parties, Sizemore wrote that the terms of the contract prevail over the allegations contained in the pleadings.

“Based on this well established law, the Court finds that Plaintiff’s allegation that the agreement is ‘ambiguous’ is not sufficient to defeat Defendant’s motion to dismiss,” Sizemore wrote. “Because the terms of the agreement do not support a finding of ambiguity, this action is ripe for dismissal.”

Register has also filed a petition to the FCC to issue a decision over WPGA’s status. There’s no word when the FCC will hear the case or issue a decision.

Murphey said should Cox ultimately prevail, the cable company would simulcast ABC on both Channels 6 and 15 for a period of time to get viewers used to ABC returning to Channel 6. It would then use the bandwith to broadcast three HD channels in high demand by viewers — ESPN News, Style and Fuse, Murphey said.

Information from The Telegraph’s archives was included in this report.

To contact writer Phillip Ramati, call 744-4334.

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