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July 25, 1989


The opinion of the court was delivered by: VAN ANTWERPEN


 This matter comes before the court on defendant's motion for summary judgment. The action arises out of defendant's alleged breach of a contract to air a television commercial. For the reasons stated below, defendant's motion is denied.


 Since 1986, plaintiff Michael Shane ("Shane") has operated a telephone recorded-message service called Dial Santa. In this system, if a child dials a "976" telephone number, he will access a recording of Santa Claus narrating a Christmas story. After the story, the recorded Santa invites the child to tell him what he wants for Christmas. (Shane dep. at 11, 13, 22, 28, 30-31). In April, 1987, Shane met with Suzanne Banning ("Banning") and Muriel Hons ("Hons"), representatives of the Heron & Young Marketing Communications advertising agency, to discuss their purchasing advertising for Dial Santa on Philadelphia television stations. (Shane dep. at 45; Hons dep. at 25). According to Shane, he was specifically interested in advertising on a network affiliate during Saturday morning children's programming. (Hons. dep. at 42; LaFountaine dep. at 46-50).

 In May, 1987, Hons contacted Judith LaFountaine ("LaFountaine"), a WCAU-TV (CBS' Philadelphia affiliate) advertising account executive, to discuss the feasibility of advertising Dial Santa during the 1987 Christmas season. (Hons dep. at 41-42). According to Hons, she explained to LaFountaine that Dial Santa was aimed at juvenile callers, and she asked LaFountaine if this would pose a problem with the station's Commercial Clearance Department. (Hons dep. at 42). This department reviews all advertisements and ultimately determines whether the advertisement will air. LaFountaine indicated that there would not be a problem. (Id.).

 Based upon Hons' recommendations, Shane decided to purchase advertising time from WCAU-TV during its Saturday morning children's programming. Hons purchased the time for Shane and entered into a contract with CBS through LaFountaine. The contract included a clause incorporating "the terms and conditions . . . attached." (Hons dep. at 48-49, 52; Ex. MH-2). The terms and conditions provided that:

All Announcements broadcast pursuant hereto shall be under the sole direction and control of CBS, which shall have the right to refuse to broadcast any Agency Material or any Announcement or Announcements which, in the opinion of CBS: (a) do not maintain a quality creditable to CBS or do not conform to the Regulations hereinafter set forth or to its general programming policies applicable to Station.

 (Ex. MH-2). The terms and conditions further provided that CBS would have no liability with respect to any commercial it did not approve. (Id.). The cover letter which accompanied the contract stated that:

It is imperative that we receive commercial material with enough lead time to be broadcast and to properly process it through Continuity Acceptance, Traffic and Technical Operations. To insure this, the following deadlines must be adhered to: 1. Any commercial announcement received that is a single medium (film or tape or single slide) must be received two (2) calendar days prior to its first scheduled air date.


 Shane completed production of the Dial Santa advertisement in late July or early August, 1987. (Shane dep. at 11-12, 21-22, 27-28). In the last week of October, 1987, Shane delivered a tape of his Dial Santa commercial to the station. (LaFountaine dep. at 62). Within twenty-four hours, Patti Power, manager of commercial clearance, reviewed the tape. (Power Aff. at para. 7). After reviewing the commercial, Power concluded that it could not be broadcast during children's programming because it encouraged children to spend money on calls to Santa Claus at a time when children were likely to be watching television without adult supervision. (Power Aff. at para. 8). Power felt constrained by the CBS policy to avoid "the use of language which specifically urges children to buy or obtain a product or service." (Id. at P9 and Defendant's Ex. 3).

 Power immediately informed LaFountaine that she would not permit the commercial to be broadcast during children's programming. (LaFountaine Dep. at 63; Power Aff. at para. 10). After hearing this news, LaFountaine appealed the decision to Gordon Hughs ("Hughs"), station manager for WCAU-TV. Hughs, however, concurred with Power. (LaFountaine dep. at 66-68). LaFountaine immediately telephoned Hons and told her that WCAU would not air the commercial. Later Hons appealed again to Powers, informing her that the commercial had a money-back guarantee. Despite the guarantee, Allen Shaklan ("Shaklan"), vice-president of programming, news administration, and station services, again rejected the advertisement. (Power Aff. at para. 12; Shaklan Aff. at paras. 4-5).

 Plaintiff then instituted this action, alleging that in refusing to air his commercial, CBS breached its sales contract. ...

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