Question
From:
(REDACTED)
Sent:
Tuesday, July 15,20082:58 PM
To:
Verne, B. Michael
Subject:Confirming question
Hi Mike:
I am providingadvice on the formation of a joint venture in the form of an LLC. The controlissues are pretty clear and the result under Rule 801.50 is pretty straightforward, unless the key assets being contributed aren't "assets"under the HSR rules.
One party to thejoint venture is a creator of content for television, cable and satellite TV.Its contribution to the N would consist of (l) programming of aparticular kind (the joint venturer creates many kinds of content, but this Nwill concentrate on content for a particular audience segment), and (2)"pass-through" of certain distribution arrangements (i.e., the N partnerwould not assign a distribution agreement to which it is a party to the N, butwould enter into an agreement with the N to pass through to the N thedistribution payments, renewal rights, etc., under the distribution agreement).
I have notes of aphone call you and I had a couple of years ago about programming and whether itwould be deemed to be an asset, and the particular example I used at the timewas whether, when (REDACTED) received the rights to broadcast the (REDACTED),that would be deemed to be the acquisition of an asset. Your answer was no, itwould not --though neither you nor I could find a letter or interpretation thatsaid that explicitly. I think my question today is sort of a derivative of theearlier analysis --if (REDACTED) obtained the right to broadcast the (REDACTED)but subsequently re-sold the right to broadcast the swimming competitions,would that secondary transaction be the acquisition of an asset? Does theresult depend on the exclusivity or non-exclusivity of the arrangement? Does itdepend on whether one is broadcasting only live events, as opposed to preparedprogramming?
Your thoughtswould be appreciated.
Thanks,