Major Media Station, which broadcasts TV and radio programs around the country, contracts with shock jock Don Marco, who hosts the station's most successful morning drive radio program in the country: Mark My Words. The program consists of traffic and sports updates, interviews with sports figures and celebrities, and Mark's Words, which are in the nature of rants and opinions on whatever topic of interest the host decides to focus on, including news articles and happenings around the country and locally. Audience participation is encouraged by way of phone calls to the station during the program.
On more than one occasion, Mark My Words has made national news because of controversial statements made by the host regarding people's looks, religion, lack of intelligence, actions, race, etc. In fact, the contract between Major Media Station and Don Marco specifies that Mark My Words is to be controversial. The greater the controversy, the higher the audience ratings and the higher Marco's compensation. However, the term controversial is not defined, although the station manager who broadcasts Mark My Words is responsible for activating a delay button in the event Marco uses a word or makes comments that would cause the FCC to fine the station.
One morning, Mark My Words featured a rant full of derogatory sexual and racial comments about the members of a visiting ball team that succeeded in beating the local favored team at the championship game. As soon as the program aired, Major Media Station was bombarded with complaints. Following letters to sponsors and pressure from respected public figures, three large sponsors cancelled their advertising contracts. This happened in spite of the host's public apology in which he claimed to have just made another stupid comment. In spite of fan protests, the station terminated Don Marco's five-year $20 million contract. The contract was in its second year.
Marco is now suing Major Media Station for breach of contract, and the insulted players are also suing the station for defamation and intentional infliction of emotional distress.
i. What arguments do you think Marco will make in his suit against Major Media Station?
ii. In order to support his claim against the station, Marco wishes to introduce parol evidence regarding the term controversial. What would be the purpose of introducing this evidence? What arguments will Major Media Station make in opposition to the introduction of this evidence? Will Marco be successful in this regard, and why?
iii. As for the tort claims by the insulted players, Major Media Station argues it has no liability, as Don Marco is an independent contractor who is solely responsible for his rants, and that his public apology constitutes an admission of liability. Is Major Media Station off the hook?
The arguments that Marco will make in his suit against Major Media Station will be that the contract between the station and Marco indicated that the program Mark My Works was to be controversial. Marco was carrying out his contractual obligation. On the other hand the station manager had the option of using the delay button and editing out those phases and words that may offend people. If the delay button was not used or the controversial comments were ...
The contract between the station and Marco is discussed step-by-step in this solution. The response also has the sources used.