13-123

CenturyLink v. Dish Network

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

7th day of February, two thousand fourteen.

Present: ROSEMARY S. POOLER,

GERARD E. LYNCH,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

_____________________________________________________

CENTURYLINK, INC. 

Appellee,

 -v- 13-123-cv

DISH NETWORK, L.L.C.,1

Appellant.

_____________________________________________________

Appearing for Appellant: Robert M. Loeb, Orrick, Herrington & Sutcliffe LLP, Washington,

D.C., (Rachel Wainer Apter, E. Joshua Rosenkraz, New York,

N.Y.; John Michael Agnello, Melissa Ellen Flax, Carella, Byrne,

Cecchi, Olstein, Brody & Agnello, Roseland, N.J., on the brief).

 

Appearing for Appellee: Douglas P. Lobel, Cooley LLP, Reston, VA.

1

 The Clerk of the Court is directed to amend the caption as shown above. 
Appeal from the United States District Court for the Southern District of New York

(Baer, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the orders of said District Court be and they hereby are AFFIRMED in

part and VACATED and REMANDED in part. 

DISH Network, L.L.C. appeals from the July 31, 2012 and December 12, 2012 opinions

and orders of the United States District Court for the Southern District of New York (Baer, J.)

granting CenturyLink, Inc.’s motion for judgment on the pleadings and prohibiting DISH from 

unilaterally modifying the duration of certain payments due to CenturyLink, respectively. We

assume the parties’ familiarity with the underlying facts, procedural history, and specification of

issues for review.

We affirm the July 31, 2012 opinion and order for the reasons set forth in the district

court’s thorough opinion. “Under New York law, which the parties agree governs their contract

dispute, the question of whether a written contract is ambiguous is a question of law for the

court.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 396 (2d Cir. 2009). To be unambiguous, the

contract terms must have “a definite and precise meaning, unattended by danger of

misconception in the purport of the [contract] itself, and concerning which there is no reasonable

basis for a difference of opinion.” Id. (quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355

(1978)). “A written agreement that is clear, complete and subject to only one reasonable

interpretation must be enforced according to the plain meaning of the language chosen by the

contracting parties.” Brad H. v. City of New York, 17 N.Y.3d 180, 185 (2011). “Ambiguity is

present if language was written so imperfectly that it is susceptible to more than one reasonable

interpretation.” Id. at 186.

However, we disagree with the district court’s conclusion that the agreement between the

parties was unambiguous regarding DISH’s ability to unilaterally limit the monthly incentive

payments to 60 months by invoking the language of Schedule 9.8.1. The relevant provision in

Schedule 9.8.1 states that “[DISH] reserves the right, in its sole discretion, to extend and/or

modify these standards from time to time, provided that [DISH] will use the same standards that

it uses for retailers, generally.” Schedule 9.8.1 appears to grant DISH great discretion, subject

to two restraints: (1) any modifications made must be consistent with the standards applicable to

other retailers; and (2) Section 12.1(i) of the agreement permits CenturyLink to terminate the

agreement should DISH exercise its discretion in such a way as to work “a materially adverse

change” to CenturtyLink’s “reasonably anticipated economic benefits.” While the first restraint

appears to apply unambiguously post-termination, the second appears inapplicable once the

agreement is terminated. It cannot be said, from a plain reading of the language in both

provisions, whether the parties intended that DISH be able to invoke Schedule 9.8.1 posttermination to impose a 60-month cap. In this regard, we find the contract sufficiently

ambiguous on its face to survive judgment on the pleadings. In addition, any argument that the

change made by DISH worked such a severe economic hardship on CenturyLink that the change

rises to the level of a breach of the covenant of good faith and fair dealing raises questions of

fact that would require a trial.

2
Accordingly, the orders of the district court hereby are AFFIRMED in part, and

VACATED and REMANDED in part for further proceedings consistent with this order. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

3