and i represent your honor as this appeal all comes down to burdens to show that summary judgment was appropriate ace had the burden of demonstrating that there isn't even a reasonable basis for a difference of opinion about the meaning of a policy if the terms of the contract even and this is a direct quote suggest more than one meaning of the language of morgan stanley the contract is ambiguous in ace hasn't at its  likewise to show that an exclusion bar is coverage ace has the burden of showing that there is no other reasonable interpretation of the provision but plainly there's a reasonable basis for a difference of opinion about whether dishes in the business broadcasting because federal law specifically provides that dish is not a broadcaster according to the f c c in this heavily regulated area our regulator has fully and finally determine after notice and comment rule making that broadcasting requires programming that is quote available to all members of the public without any special that the key and in your view it does i mean does it doesn't make sense that you have to reach every single member of the public in order to be a broadcaster i mean the other side gives a number of examples you know you  as many people as you can can get but you're not going to get everybody and why should that mean that you're not a broadcaster well it let me make two points about this action so in the context federal law there is no question and hasn't disputed this but that that's the line that federal law draws in unless you have this special equipment you are not broadcasting to the public you are not and  shift over to dictionary definitions in a moment you are not making your signal obliquity available in the sorts of examples that a scribe vides sure of your art you may want members of the public to come in but that it certainly your honor but that doesn't mean that it's public there are all kinds of private property where you pay a fee to get access but it's still private but i do want to and you are taking the  about your microphone you're taking the position if i understand correctly that at least with respect to this element that summary judgment should go the other way that there's no you're saying that there's simply no no dispute that that the simple fact of charging a fee even if it's a tiny fee means that you're that you're that you're not a broadcaster no  judge we're not going that far and we don't need our our but how are you i know you don't need to but how are you not going that far if you say that the definition of broadcasting is the the the definition that has been applied to c if you're not broadcasting to the general public for free you're not a broadcaster well that and that's exactly the nub of it judge of our position is not that the federal definition is necessarily governing but simply that there's a reasonable basis for dispute about this and that forecloses summary judgment and it also for the reasons i was sitting at the outset means that a scan showed that the exclusion applies here and there is similar a dictionary definition those likewise reflect a reasonable basis for a difference of opinion which is again all that there needs to be as the travelers court put it broadcasting can mean the dissemination of television and radio programming to the public at large and dish network does not engage in this type of of broadcasting dish doesn't send out signals and i'm going to quote a couple of dictionary definitions here it doesn't send them out  general reception it doesn't send them out to all receivers it sends encrypted signals that require specialized equipment you have to have one of dishes satellite dishes on your roof you have to have a proprietary box to decode the signals and under those early if we agree we are persuaded that there is some ambiguity here then want you think there should be a trial and a jury interprets these terms or or what that the fundamental point that i want to make is that the legal standards for summary judgment and for a striving to avoid the duty to defend an ace trying to rely on an exclusion all really line up pretty neatly and so while all this court needs say is that is that summary judgment is vacated it may well be that the practical effect is that is that as a matter of law ace can't meet the burden of establishing that the exclusion applies and your broadcasting then they have to defend there may not have to indemnify but they have to defend that's exactly right judge walker and i commend to the court the opinion in hugo boss which really walks through a lot of this it draws the distinction between for instance the duty to defend and the duty to indemnify and makes very clear that an insurer an ace this decision has a really easy way out they can come in and file a declaratory judgment action hugo boss explains that that's commonplace is the language hugo boss use and if they want to resolve the uncertainty they can do it in that very simple way but when they choose not to do so then they're operating at risk and they're operating at risk that there may well be a distinction between the duty to defend and the duty to indemnify and they'll end up having to cover the defense at the end of the day they're going to come in early they can get into character judgement and then on the basis of that i suppose there could be negotiations as to what the what the obligations would be that's exactly right judge walker and that's what hugo boss encourages that says if you is the insurer think that there's any uncertainty you have a very simple way to deal with this and it goes on to explain there are multiple types of uncertainty that could apply there might be factual uncertainty there might as here be legal uncertainty and under those circumstances if the  insurer wants to cut off their liability for providing a defense in the meantime they can do so and that makes a lot of sense given the nature of the duty to defend i mean remember that the whole idea is that you are purchasing litigation insurance and that may not be catastrophic for a company like dish but this is a principle that of course applies to every policy holder and the idea is that if there is any ambiguity at all the insurer has to provide coverage unless and until there's an absolute certainty that the policy doesn't apply thank you you have three minutes for a bottle we'll hear from on the other  hand good morning or honors john hacker for the tele at the ace policies exclusion for quote insurance in media type businesses excludes liability for all personal now advertising injury committed by an insured who business is advertising broadcasting publishing or telecasting basically any business that's any i'm sure that's in the business of widely disseminating information the question is here that you're that that's your in the other side's brief and in the argument it is this court has said time and again in shooting in including in hugo boss that you look at the you apply the ordinary meaning of language read as in the words of hugo boss in the context of the entire integrated agreement other cases say repeatedly in the context of the whole policy so we read a word like broadcasting in its context both the context in which it's specifically situated and the policy the policy here is a general ordinary commercial general liability policy with a broad exclusion where the word broadcasting doesn't appear in an exclusion for for example violating f c c license exclusion is it titled insurance in media type businesses and that it defines them to be advertising publishing broadcasting and telecasting as judge laval said in the very st argument this is an example of a string of words that's used with overlapping possible so that an ordinary person looks at this and says if you're a media type business if you're out there disseminating information broadly then you're going to be subject to the exclusion there's that is the st key point with with respect to that context you're not argued and you're not arguing any of the other three elements you're just arguing you're broadcasting right well we're arguing broadcasting in the context in which it appears you absolutely can never know you'll never find a judicial decision saying it's ok to take a particular term out of a out of its context pluck it and then look for definitions that might support your theory the way you look at a term like broadcasting is how is it used in the policy in what what is the policy trying to accomplish what is the provision trying to accomplish the provision is excluding advertising injury and personal injury insurance claims against insureds and media type businesses who  information and the what's the reason for that the reason is if you're in a business that widely disseminates information the exposure for advertising injury and the perfectly specified personal injuries can be enormous because you're so many people receive the slanderous or infringing information that's why the exclusion exists and that there's no basis for that why get the policy that you know i mean what is how does that were the purpose in getting a policy if you are in this business and suddenly this exclusion kitson how does that work because as dish itself says repeatedly and absolutely correctly they are also in a business where in order to receive the signal that they broadcast to the universe they install equipment and there's substantial liability that comes from installing the dish equipment that used to receive their broadcast signal so they need that particularly coverage hey there may be coverage some coverage fee but coverage a for this form clearly provides coverage for those kinds of risks but it absolutely just as clearly and unambiguously excludes all liability for business in that is in the business a widely disseminated information what you do after that kind of business is get specialized coverage to ensure that you have coverage what if you want it that's completely available as recommended to disappear they chose not to the pain that insurance and that's fine but that's how the structure of it works if you're in that have to look at the industry practice as a whole in order to in order to reach the conclusion you want i don't mean to be at all we don't think you need to look at any expense of evidence of just say has it not had to say that because of what you say we do need to as it  broadcasting they use the word communication i don't know what that means and where that goes that doesn't talk about broadcasting widely it could be communication in any in any way i mean lots of businesses are in the that the business was broadcasting today so two points on the star st they said communication which unambiguously compass is broadcasting of course it does and it's a completely accurate description of dishes business because as i just mentioned it's just dish itself repeatedly emphasizes they're also in the business of communications equipment installation so you if you set broadcaster to describe dish you would be wrong other in the business of communications and which includes equipment installation it's also in the of broadcasting and telecasting a word i don't term like that again the string of words is judge labelle described earlier to encompass all businesses widely disseminated information is to not make them the state of thinking that you would focus narrowly on something like an f c c definition of broadcasting  but instead to include telecasting to ensure that you are compassing everybody who does this and not nearly deaf think about what i'm not sure i'm not sure that that i that i found your answer to judge chin's question a while ago satisfactory and he asked why why would they want this insurance aren't they just excluded from benefiting from this insurance in any way if we except your your view and you answered well part of their business installing equipment and they can incur liability from that but if the exclusion but as i see it according to your argument they are necessarily they are in the business of broadcasting and if they are in the business of broadcasting the the insurance doesn't apply to them is it's excluded even if the liability even if the particular liability that's asserted against them is one that related to the installation of equipment still there in the business of broadcasting you know of side of sides it's about that's that's my mistake that's not accurate this only excludes the identified personal injury and advertising injury types of offenses bodily injury and property damage that's coverage that is the kind of damage that claims that would be covered that they would be exposed to in their equipment installation guys and that is fully covered and this exclusion absolutely would not  even exempts certain types of personal injuries that aren't inflicted on a mass injury basis for example a malicious prosecution which is a coverage a personal injury not bodily or property damage but this is exempt from it illustrating confirming the point that this is about mass media injuries which can be inflicted absolutely by a company that broadcasts to subscribers just as much as it can be done by a terrestrial broadcast there is absolutely no coherent basis and i have heard not either in the brief or argument this morning by which the parties will agree to limit this to exclusion to broadcasters who broadcasts by to subscribers  and not to those who don't subscribe to terrestrial broadcasters who broadcast everybody for free because the injury is the same when you have fourteen million subscribers as does dish the injury can find an ambiguity there would be to do consequences one would be that i summary judgment the other would be that if there's an ambiguity if there's if there's a real problem that  context but but the consequences of if the court says yes this term is ambiguous even when read in context of the entire policy the consequence is to do a further examination then of the extensive evidence as to what the  his her so to point taken both of those questions which i think are separate questions st of all industry the industry dictionaries uniformly support our position all of them say different versions of transmit to accessible to the public not one of them say that broadcaster exclude somebody who broadcasts only to those who will pay which of course makes sense it a broadcaster c n d c is much of  one webster's telecom dictionary which includes a definition of narrow casting referring to subscribers all that's describing your honor is a business strategy where a broadcaster of any kind jan broadcast two segments of the public so e s p n narrow casts to people that are interested in sports but they're still a broadcaster animal planet narrowcast of people who are interested in and animals but they're still a broadcaster as that definition says the definition they say wait says that direct broadcast satellite systems remember that's what dish is a direct broadcast satellite provider provides the broadcast to  subscription but it's even then it's using the term broadcast so a narrow caster is just a broadcaster to broadcast to a specified segment as to the f c c definition there are several problems there st of all we know that the policy again read in context when the policy means to refer to a federal regulation or law it does so there is the in the nuclear exclusion the definition of source material says you look at federal law the terrorism indorsement says you look to federal law the says you look to own fact this exclusion says nothing of the kind the parties knew how to refer to a specific federal statute or regulatory regime when that's what they intended nd the word telecast is not is part of the exclusion we're relying on that too that's not defined narrowly in the communications act the other side says well telecast is just a subset of broadcasts that can't be a right that would render it completely irrelevant what it's clearly doing is broadening again just in the way the judge about described earlier broadening the exclusion to encompass any business that widely disseminated information and therefore creates a risk of copyright infringement or slander with enormous liabilities the last point i'll make is that what dish tries to do is say in addition to drawing this distinction between subscriber non subscribers they say well it's based on those who provide content and they say to restoral networks provide content and they don't that distinction doesn't work at all again reading the provision in context for two reasons the st reason is that content providers include h b o e s p n all of them would be excluded exempted on dishes theories it doesn't make sense to draw that line that content creators because there are lots of content creators who provide their services by subscription nd content conveyors like dish create an enormous risk of copyright infringement in particular as this case a show so there's no reason that the exclusion would be drawing a line between a content creators and content you players what's your what's your response to the proposition that the that the proper means for you to follow in this circumstance for insured of following this circumstance is to bring a declaratory judgment action to settle the issue of and to settle the issue of  liability so no case under new york law including hugo boss says that an insurer is required to do that of course there is only one duty to defend and that is the insurer has a duty to defend your cases and this court has said repeatedly if the the allegations of the complaint assume to be true you read the allegations you assume them to be true to be true and if proven they would state a claim that falls d within the policy then there's a duty to defend that's the legal standard that same standard would apply in a declaratory judgment action the court would look at read the policy differently it wouldn't read the complaint differently either way you're just trying to determine does the insured have the insurer or have a duty to defend there's only one way to answer that question that is by again assuming the allegations of the complaint to be true and then comparing them to the training that shrink the duty to defend to being identical with the duty to indemnify because o answer is if the answer is it turns and it turns in either case on whether there is whether there is coverage then there are the same standard rather than being a looser standard for defender than that indemnify i mean i thought the point of hugo boss was that you could eliminate doubt as to who we could eliminate the duty to defend by eliminating doubt or ambiguity with respect to the the duty to indemnify because if you get a judgement there's no do this if there is  defend down to the duty to indemnify the difference between them and literally the only difference between the duty to defend and duty to indemnify is an enormous difference and that difference is that at the duty to defend state you assume the allegations of the complain are true you just take them to be true and  long as they could be proved there is therefore a possibility of coverage the duty to indemnify looks at the actual liability what was actually proved and so that could be much much narrower because who knows what can happen at a trial when the actual facts  filing for declaratory judgment there's no requirement that an insurer do that it doesn't change the analysis of the duty to defend which again is always just assuming the allegations the complaint to be true is there a possibility of coverage that's the question asked about or when you  only think hugo boss maybe suggests is a sort of supercharged uncertainty standard that when the insurer doesn't seek a declaratory judgment action you have to be really sure that there's no ambiguity and we submit that's easily satisfied here because there's no way to read this policy and this provision the in its entirety in its context recognize the objective of the exclusion as drawing a line between those businesses in the in media businesses that operate by ultimately determined i could be out of pocket more money yeah you're exactly right judge walker which is why there is no courts have generally not created sort of an additional legal requirement that you are sort of required to file a declaratory judgment action insurer has business incentives to either defend and file a declaratory judgment action or to be careful about what it decides not to defend because there are enormous consequences from not defending but those consequences occurred either way those are business decisions that are made on a regular basis and you declined a demand for four for sure and presumably right and you did it on the basis of the exclusion here that's right so that issue was known at the  on and and at that point you could have and i take it that at that point the insurer said well we're not in the in the business of broadcast so the issue in dispute was there  thank you your honor so my friend on the other side started by jumping straight to in asserted purpose about exclusion jay and i think that in and of itself is somewhat telling to jump past text to purpose but but let's look at that so the policy doesn't say widely disseminating in information it includes for specific categories one of which is broadcast ing and their theory is again that these are as he says and cities that widely disseminate information but there is a much better understanding of what unites them and certainly it is a reasonable interpretation and that indeed is that these are content providers content providers are the ones to create the greatest likelihood of risk for the types of liabilities that are at issue here now remember we are not talking about copyright infringement writ large and my friend on the other side is just wrong about that exclusion i already car copyright infringement we're just talking about copyright infringement in advertisements and the that entities that are most likely to incur liability that are most likely to give rise to claims to under those this distinction and says that the sort of underwriting buyable i am best explains that television broadcast stations encourage just this kind of liability they pose this kind of risk and there's no mention of that in a asked for entities like cable systems and satellite so it is not true as the other side has argued that the injury is the same the injury is not remotely the same and remember of course that dish is smaller by an order of magnitude than a traditional broadcaster in addition to the fact that it's not generating its own content that might give rise to liability for something like libel or slander in addition to copyright infringement and advertisement let me turn very briefly to this question about telecasting which is somewhat of a red herring both the district court and the th circuit understood that the common meaning of that term is to broadcast by television and the reason for its inclusion is a historical one that that originally broadcasting referred to radio so television just means broadcasting by by television and so it it  doesn't need to be adding anything independent there judge walker you asked about extrinsic evidence and i think it's noteworthy that the other side is kind of run away from that in the red brief they argued at length about extrinsic evidence and made services but judge walker is your honor noted these provisions about class codes and sick codes in the business of the insured so if i could just squeeze out one last sentence the question here the fundamental question is whether there is any ambiguity at all and you and you see that not only from federal law although the fact that the f c c definitively reached that conclusion is certainly highly probative but from la dictionaries which ex glued an entity like dish for instance talking about a signal being made public and even contrary to what my friend said from technical dictionaries webster's new world telecom dictionary refers to broadcast television as television programming sent over the air to all receivers and that is absolutely not what does dish sends a signal to its receivers and that's why newton's telecom dictionary likewise specifically exclude satellite from one of its definitions thank you both will reserve decision