### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10935

NEXSTAR BROADCASTING, INCORPORATED, Plaintiff - Appellant
v. TIME WARNER CABLE, INCORPORATED, Defendant - Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:12-CV-2380

Before REAVLEY, JOLLY, and SMITH, Circuit Judges. E. GRADY JOLLY, Circuit Judge: * N e x s t a r B r o a d c a s t i n g , I n c
. (“Nexstar”) contends Time W arner C ab l e , I n c
. ’ s (“Time Warner”) distant r e transmissions of various Nexstar s tation signals violated the terms of the parties’ Retransmission Consent Agreement (“RCA”). Nexstar filed claims for breach of contr a c t a nd copyright infringement and moved for a p r e l i m inary injunction and a temporary r e straining o rder. The distric t c o u r t d e n i e d N e x s t a r ’ s m o t i o n s, and N e xstar timely filed an interlocutory appeal. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D May30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10935 Document: 00512256851 Page: 1 Date Filed: 05/30/2013No. 12-10935 I. Nexstar is a Delaware corporation with its principal place of business in Irving, Texas. Nexstar owns and o perates television stations i n various markets

across the United S t ates, actively producing and distributin g b r o adcast television programs and other copyrighted works. M o st of these stations are affiliated with national programming n etworks, 1 but Nexstar also offers local programming services, including local news production a nd sales. Time Warner is the second-largest cable television operator in the U n ited States and h as more than 12 million residenti a l v i d e o subscribers in 29 states. That i s , Nexstar creates signals a nd Time Warner operates systems that distribute these signals. At issue i n this appeal is the extent t o which the RCA Nexstar and Time Warner executed in June 2 0 0 9 permits T ime Warner to r etransmit Nexstar signals o n systems outside a station’s local market. Nexstar contends the RCA only allows Time Warner t o retransmit Nexstar’s signals in certain local markets, whereas Time Warner asserts t he R CA provides a broad right for it to retransmit Nextar signals over each of Time Warner’s c a ble s ystems, regardless of that cable system’s location. The relevant provisions of the RCA are as follows. Section 1 states: Retransmission C onsent

. [Nexstar] hereby gives [Time Warner] its consent, pursuant to Section 325(b) of the [Communications Act of 1934] and the FCC Rules, to t h e nonexclusive retransmission of the entire broadcast signal of each [Nexstar] S tation (the “Signal”)
over each [Time Warner] System [2 ] p u rsuant to t he terms of this

1 F o r exam p le, N exs tar is a local af f iliate of N BC in s om e mark ets

. T he broad c a s t agreem ent betw ee n N e x s t ar and N BC p rohibits N exs tar f rom granting “cons ent to the retrans m is s ion of its broad cas t signal by any cable televis ion sys tem

. . . if s uch cable s ys tem

. . . is located outs id e the [ D es ignated M ark et Area] to w hich [the N exs tar] Station is
as s igned

. ” Ap pellant’s Br. at 18 n. 10 ( f irs t alteration in original)

.

2 The RCA d ef

ines “Sys tem ” a s “a m ultichannel vid eo d is tribution sys tem that is ow ned , op erated or m anaged by: ( i) any of O p e r a t o r [ Tim e Warner] , T im e Warner Entertainm ent C om p any, L. P. ( “TWE”) , Tim e Warner NY Cable LLC ( “TWN Y”) , Tim e W a r n e r E n t e r t a i n me n t

2 Case: 12-10935 Document: 00512256851 Page: 2 Date Filed: 05/30/2013No. 12-10935

Agreem e n t. [Time Warner] a grees to retransmit the Stations’ Signals subject to the requirements of Section 2 below. . . . S e c tion 325(b)(1)(A) of t he Communications Ac t p r o v i d e s , “ N o c ab l e s y s t e m

or o ther multichannel vid e o p r o gr a m m i n g d i s t r ib u t o r shall retransmit t he signal of a broadcasting station, or any p art thereof, except with t he e xpress authority of the originating station[.]” 47 U.S.C. § 325(b)(1)(A). The F CC Ru l e s further provide “Retransmission consent agreements between a b roadcast station and

a multichannel video progr a m m i n g distributor s hall b e in w riting and shall specify the extent of the consent being granted, whether for the entire signal or any portion of the signal.” 47 C.F.R. § 76.64(j). Section 2 of the RCA then provides: Carriage

. (a) Subject to Section 3 below, each Upgraded S ystem [3 ] that is located in the Television Marke t ( as defined by t he FCC Rules) of a Station s hall retransmit, at i t s own expense, such Station’s Primary Program Transport Stream, t h e Required Stream for such System (if any, as s et forth in Exhibit A) (subject to applicable notice requirements), and to the extent techni c a lly feasible, the Program-related Material relating t h e reto, without interruption, additions, insertions, a lterations or deletions. Each such System shall carry the Primary Program Transport Stream of each applicable Station on the same tier of service as all o ther local full-power Big Four Network affiliated (as d efined in Exhibit B) signals are carried in such System. . . . Section 7 reads:

Ad vance/ N ew hous e Partners hip ( “TWEAN ”) ; ( ii) any af f iliate or w holly- ow ned s ubs id iary of TWC, T WNY or TWEAN ; or (iii) any other corp oration, p artners hip , joint venture, trus t, joint
s tock com p any, as s ociation, unincorp orated organization ( includ ing a group acting in concert)
or other entity as to which any one or m ore of O p erator, TWE, TWNY or T WEAN d irectly or ind irectly p os s es s es the p ow er to d irect or caus e the d irection of s uch entity’s m anagem ent and p olicies , w h e t h e r through the ow ners hip of voting s ecurities , by contract, m anagem ent agreem ent or otherw is e. ”

3 The RCA def

ines “U p g rad ed Sys tem ” as “a Sys tem that has an activated band w id th of at leas t 750 M H Z, and has launched and dis tributes ( on a non- tes t bas is ) the over the air d igital broad cas t s ignal ( in a d igital f orm at) of any other local f ull- p ow er com mercial broad cas t televis ion s tation. ” 3 Case: 12-10935 Document: 00512256851 Page: 3 Date Filed: 05/30/2013No. 12-10935

C o pyright, Trademarks and Unauthorized Use

. Operator
a c k n o w l edges t hat, except as o therwise set forth herein

. . . the
r e t r a nsmission right granted herein to each Station’s Signal doe s not convey any l icense or sublicense in o r t o the copyrights o f and to the underlying programming tra nsmitted by the Station, or to t h e marks, names a n d logos that may b e used therein; and that, as between the parties, except as set forth herein, it shall remain the obligation of [Time Warner] t o ob t a i n any necessary l i censes for retransmission on t he System, whet h e r u n d e r c ompulsory copyright license p ursuant to 17 U.S.C. § 111, or o t h erwise.

. . . Except as specifically permitted herein o r as n e c e s sary to exercise r ights granted herein, no [Time Warner] S ystem shall, for pay or otherwise, record copy, duplicate, retransmit o r expressly authorize the r ecording, copying, d uplication or retransmission of any portion of the Stations ’ Signals without [Nexstar’s] p r ior written consent; provided, however, t h a t t h e foregoing shall not be deemed to prohibit Operator [Time Warner] or any System from undertaking any activity that is not prohibited by applicable law i n the absence of a license[.] Finally, Section 11, entitled “Termination” provides, “[Time Warner] m ay discontinue c arriage of any Program Transport Stream of a ny S tation if

. . . the System carrying s uc h P r o gram Transport Stream is located outside such Station’s Television Market.” RCA § 11(b)(iii). N otably, there is n o provision of the RCA that purports t o place explicit l imits upon Tim e W a r n e r’s ability to retransmit Nexstar’s signals. Nonetheless, Nexstar argu e s t h e RCA p r ovides Time Warner narrow retransmission authority, confining Time Warner’s ability to retransmit signals to the relevant local market. Accordingly, N e xstar c ontends T i m e Warner breached the R CA by retransmitting the s tation signals o f WBRE-TV (the NBC

a f f i l iate in Wilkes-Barre, PA), W TWO (the N BC affiliate i n Terre-Haute, IN), and WR O C-TV (the CBS affiliate in Rochester, NY) outside of their local

mar k e t s and into five distant markets. Following these distant retransmissions, Nexstar filed breach of contract and copyright infringement claims and moved for a temporary restraining order and a preliminary injunction.

4 Case: 12-10935 Document: 00512256851 Page: 4 Date Filed: 05/30/2013No. 12-10935

The district court denied Nexstar’ s m o t i o ns, holding Nexstar did not demonstrate i t had a substantial like l i h o o d o f succeeding on the m erits of its breach of contract c laim, and, further, that its copyright claim hinged upon the assertion that Time W arner’s retransmission w as outside t he scope o f N exstar’s consent in the RCA. In reaching this d e cision, t he district court applied Texas law to find the RCA was n ot ambiguous as a matter of law, and that “[n]owhere in the R CA d[id] Nexstar limit its ret r a n s m i s s i on consent.” The district court noted that the RCA mentioned systems “located i n the T e l e v i s ion Market of a Station” only in Section 2(a), w hich details Time Warner’s obligations to carry Nexstar signals—not in Section 1, which describes Time Warner’s right to retransmit. Reasoning t hat Texas l a w req u i r e s c ourts to “ presume that omissions are p urposeful,” the district c ourt f ound this reference to Television Markets did not limit Time Wa r n e r ’s ability to retransmit signals. Moreover, the court noted Section 11 (Termination) conferred upon Time Warner the right to discontinue transmissions to o ut-of-market locations. T h e court found this conferment n ecessarily implies Time Warner has the right to r etransmit signals outside of their l ocal m arkets, a n d h e l d t his reasoning further supported its holding that the RCA provided Time Warner the ability to distantly retransmit the signals at issue. Nexstar timely filed an interlocut o ry appeal, pursuant to 28 U.S.C. § 1292(a)(1). I I. W e review a district court’s ultimate decision to grant or d e n y a preliminary injunction for abuse of discretion. Janvey v. Alguire , 647 F.3d 585, 591-92, 595 (5th Cir. 2011). With respect to each element of the district court’s
pre l i m i n a r y injunction analysis, we review findings of fact for clear error and conclusions of law de n ovo
. Id. at 592 (quoting White v. Carlucci , 8 62 F.2d 1209,

5 Case: 12-10935 Document: 00512256851 Page: 5 Date Filed: 05/30/2013No. 12-10935

1211 (5th Cir. 1 989), and citing Byrum v. L andreth , 566 F.3d 442, 445 ( 5th Cir. 2009)). In constru i n g a c o n t ract under Texas law, the court should consider the contract “as a whole,” affording “each part of the contract

. . . effect.” Forbau v. Aetna Life Ins. Co. , 876 S.W. 2d 132, 1 33 (Tex. 1 9 9 4 )

. Discerning the parties’ true intent, as expressed in the language of the c o ntract, is the court’s primary

concern. Kelley-Coppedge, Inc. v. Highlands Ins. C o
. , 980 S.W. 2d 462, 464 (Tex. 1998); R & P Enterprises v. LaGuarta, Gavrel & Kirk, I nc. , 596 S.W.2d 5 17, 518- 19 (Tex. 1980). The court should generally give words and phrases i n c ontracts their “ordinary, popular, and commonly accepted meanings.” Phillips v. Union Bankers Ins. C

o. , 812 S.W.2d 616, 618 (Tex. App. 1991); see also DeWitt County Elec. Co-op., Inc. v
. Parks , 1 S.W

. 3 d 9 6 , 101 (Tex. 1999) (“The language in an agreement is to be given its p lain grammatical meaning unless to d o so would defeat the parties’ intent.”). III. Nexstar argues the district cou r t e r red as a matter of law in finding Nexstar is not likely to succeed on t he merits o f its b reach of co n t r a c t c l aim because the R CA clearly prohibits distant retransmis s i o n s
. To support this argument, Nexstar contends (1) “ each” does not mean “all;” (2) Section 325(b) of the C ommunications Act and the FCC rules limit Time Warner’s retransmission authority because they are incorporated by reference into the RCA; (3) Section 2, along with Exhibits A and B, identifies the specific—and only—markets to which Time Warner m a y retransmit Nexstar sign a l s ; a n d (4) the “[e]xcept as specifically permitted herein” language in Section 7 limits Time Warner’s ability to retransmit t he signals at issue. These contentions, however, do not persuade

us. In analyzing Nexstar’s arguments, w e f irst e xamine the l anguage of the RCA. A s the district c ourt noted, Section 1 c onfers broad retran s m i s s i o n
6 Case: 12-10935 Document: 00512256851 Page: 6 Date Filed: 05/30/2013No. 12-10935

authority: “ [ N e xstar] h ereby gives [Time Warner] its consent, pursuant to Section 325(b) of the Act a nd the FCC Rules, to the nonexclusive retransmission of the entire broadcast signal of each Station (the “ Signal”) over e ach System pursuant to the t erms o f t his Agreement.” 4 T he RCA broadly defines “System” to mean all Time Warner Systems 5—it does n ot limit the term to only those Time Warner Systems s ervicing the relevant local television markets. Thus, the plain language of t h i s c o nferment does not proscribe Time Warner’s retransmission authority to loc a l t e levision markets; instead, i t a llows Time Warner to retransmit Nexstar signals on every “System” as defined in the c on t r a c t

. Nexstar’s argument that “ e ach” does not mean “all” does not alter this result. “It is well-settled t h a t ‘ w e should give words o f statutes their plain meaning.’” United S tates v. Ferguson , 369 F.3d 847, 851 (5th Cir. 2004) (quoting Demette v. Falcon Drilling Co. , 280 F.3d 492, 502 (5th Cir. 2002)). T he a d v e r b “each” is “distributive—that is, [it] refer[s] to every one of the several or m any things (or
person s ) c omprised in a group.” B R YA N A. G A R N E R , GA R N E R ’ S D I C T I O N A R Y O F L E G A L U S A G E 303 (3d ed. 2011). Section 1, then, grants Time W arner the ability to r etransmit Nexstar signals over every Syst e m

— n o t j ust systems in local markets. Furthermore, the plain language of Section 325(b) and the FCC rules, requires, respectively, “express authority of the originating station,” 47 U.S.C. § 3 25(b)(1)(A), and consent agreements that “shall be in writing and shall specify

4 The p h ras e “p urs uant to Section 325(b) of the Act and the FCC Rules ” ap p ears to
m od if y “cons ent” and not “nonexclus ive retrans mis s ion. ” Thus , it exp res s es that N exs tar has t he p ow er to cons ent to retrans m is s ions und er thes e extra- contractual p rovis ions a n d i s exercis ing that pow er in Section 1. N exs tar’s argum ent that Section 1 d oes not provid e Tim e Warner “exp res s ” authority to ret r a n s m i t its s ignals , theref ore, is w rong. T he Com m unications Act and the FCC Rules d o not require that the w ritten cons ent s p ecif y the geograp hic locations in w hich retrans m is s ion is allow ed—only that the cons ent be clearly articulated and s tate w hether the broad cas ter m ay retrans m it the entire s ignal or only p arts of the s ignal. Section 1 com p orts w ith thes e requirem ents

.

5 See sup ra note 2. 7 Case: 12-10935 Document: 00512256851 Page: 7 Date Filed: 05/30/2013No. 12-10935

the extent of the c o nsent being granted, whether for the entire signal or any portion of the signal,” 47 C.F.R. 76.64(j), and does not limit Time Warner’s retransmission consent t o l ocal markets. The RCA satisfies these standards—Section 1 clearly gives Time Warner retransmission c onsent for “the entire broadcast s ignal of e a ch Station . . . over each System.” 6Thus, the RCA validly bestows retransmission authority to Time Warner. Because we must give contractual language “its plain, g rammatical meaning unless the p arties d efinitely intended otherwise,” Phillips , 8 12 S.W.2d at 618, Nexstar w ould need t o d e m o n strate some o ther provision of t he RCA renders this understanding of Time Warner’s retransmission a uthority absurd,

or that this understanding defeats the parties’ intent in forming t he c ontract, in order t o demonstrate a likelihood of s uccess on t h e merits. See DeWitt County Elec. C o-op. , 1 S.W.3d at 101. Thus, Nexstar’s primary assertion in this respect is that Section 2 c learly limits Time Warner’s retransmission authority to local Television Markets, as detailed in Exhibits A and B. B ut this a ssertion is incorrect. Section 1 notes Time Warner “agrees to retransmit t he Station’s Si g n a l s s u b ject to the requirements of Section 2,” but S ection 2 describes only

w h at Time Warner must transmit—it s ays nothing about what Time Warn e r may transmit. That is, while Section 2 s tates Time Warner is required t o retra n s m it certain Nexstar streams in t he relevant Television Market, it does not purport to limit Time W a r n e r’s retransmissions to o nly those Television Markets. I ndeed, i f Time Warner had no authority to retransmit s ignals outside those r equirements defined in Section 2, there would a pparently be no need for Section 1—the RCA could simply define Time W a rner’s retransmission obligations. A s construing the R CA in this manner would render Section 1

6 N exs ta r a s s e r t s the retrans m is s ion cons ent Section 1 conf ers is not “exp res s , ” but p rof f ers no cas e law or other evid ence ind icating the FCC Rules or the Com m unications Act
w ould require anything m ore clear than the language the R CA p rovid es
. 8 Case: 12-10935 Document: 00512256851 Page: 8 Date Filed: 05/30/2013No. 12-10935

meaningless, in violation o f Texas contract law, it is r easonable t o conclude the RCA provides Time Warner wit h b r o a der retransmission authority than the specific requirements articulated in Section 2(a). R & P Enterprises , 596 S.W.2d at 519. Nexstar also contends Se c t i o n 7 includes limiting language, namely, “Except as specifically permitted herein, no [Time Warner] Sys t e m s h a ll

. . . retransmit

. . . a ny portion o f the Sta t i o n s ’ Signals without [Nexstar’s] prior written consent.” This language, however, is not relevant to the case before us,

as w e have already concluded Section 1 does clearly confer upon T ime Warner specific permission to retransmit Nexstar signals over every System. Nexstar further argues the district court did not read the RCA as a whole, and that, when properly r e a d holistically, the R CA expresses a clear intent to provide Time W arner with narrow retransmission authority. 7 Nexstar s upports this argument by noting that other provisions r e f e r s p ecifically to local Television Markets; but it does not proffer a compelling reason why these other provisions proscribe Time Warner’s a bility to retransmit “the entire broadcast signal of each Station

. . . over each [Time Warner] System” granted i n Section 1

. 8 If anything, these references seem to weigh against Nexsta r ’ s

7 For ins tance, N exs tar argues Exhibit B ind icates T im e Warner is p aying N exs tar f or retrans m is s ions only into t h e l o c a l m ark ets d es cribed in that exhibit. Purs uant to the
s t a t utory licens ing s chem e the FCC cons tructed , how ever, cable sys tem s may retrans m i t s tations without a cop yright, and later p ay the cop yright hold er p urs uant t o the s tatutory p lan. Thus , Tim e Warner is obligated to p ay N exs tar f or its d is tant retrans m is sions , d es pite that the p arties d id not es tablis h a p rivate p aym ent s y s tem

.

8 For exam p le, N exs tar as s erts , “Section 7 p rovid es that no T im e Warner sys tem s other than thos e ‘located in a Televis ion M ark et’ of a C overed Station are given any authorization und er the RCA to retrans m it the s i g n a l s of Covered Stations .” Ap pellant’s Br. at 8- 9. But Section 7 actually read s: “Excep t as s p ecif ically p erm itted herein or as neces sary to exercis e rights granted herein, no Sys tem s hall

. . . retrans m it

. . . any p ortion of the Stations ’ Signals
w it h o u t [ N e xs tar’s ] p rior w ritten cons ent. ” T his provis ion s ays nothing about s ys tem s “‘located in a T elevis ion Mark et’ of a Cover e d Station, ” as N exs tar argues it does

. We have alread y f

ound Section 1 clearly grants Tim e W a rner the right to retrans m it in d is tant
m ark ets , thus this lim itation in Section 7 is inap p licable to the cas e bef ore us
. 9 Case: 12-10935 Document: 00512256851 Page: 9 Date Filed: 05/30/2013No. 12-10935

argument—they demonstrate t he parties knew how to ins e rt geographic limitations when relevant. 9 See, e .g. , Evanston Ins. Co. v. ATOFINA Petrochems., I

nc. , 2 56 S .W.3d 660, 664 (Tex. 2 008) (“[H]ad the parties intended to i n sure ATOFINA for v icarious liability only, ‘ language clearly embodying that intention was available.’” (citing McIntosh v. Scottsdale Ins. Co. , 992 F.2d 251, 255 (10th Cir. 1993))). Accordingly, t h e plain language of the RCA grants Time Warner broad authority to retransmit Nexstar signals on Time Warner stations. The district court did not err in concluding Nexstar is not likely to succeed on the merits of its breach of contract claim. IV. Nexstar next argues the d istr i c t c o u r t erred in finding it unlikely to succeed on the m erits of its copyright c laim. While the district court found the copyright claim was contingent u pon finding a breach of the R CA, Nexstar
argues this conclusion is incorrect; and, furthermore, t hat (1) Time Warner was ineligible for a s tatutory copyright license, and (2) Nexstar did not g rant Time Warner a copyright license. The Communications Act provides for statutory licenses: Subject to the provisions of paragraphs (2), (3), a nd (4) of this subsec t i o n a n d s e ction 114(d), secondary transmissions t o the public by a cable system o f a performance or display of a work embodied in
a primary transmission made by a broadcast s tation licensed by t h e

9 Nexs tar f

urther con t e n ds it is ind us try p ractice f or RCAs to grant authority to
r e trans m it s ignals only to local m ark ets , and urges us to f ind the p lain read in g o f t h e R C A abs u r d to the extent it is at od d s w ith this p ractice. The Texas Sup rem e Court brief ly ad d res s ed a contention s im ilar to Nexs tar’s in Frost N a ti ona l B a nk v
. L & F D istri butors, Ltd. , 165 S

. W

. 3 d 3 10 ( Tex. 2005)

. The f acts of Frost are d is tinguis hable f rom the p res ent cas e ins of ar as the alleged ind us tr y p ractice rei nf orced, rather than contrad icted , the contract’s p lain language. See i d

. at 313 n. 3. The s am e res ult, how ever, obtains : Where the “p lain language of the contract is clear, ” “w e need not cons id er such evid ence” as “cours e of d ealing,
cours e of p erf

orm ance, and us age of trad e. ” I d

. Theref

ore, becaus e the language of the RCA is clear, w e do not cons id er the extraneous evid ence N exs tar p rof f ers
. 10 Case: 12-10935 Document: 00512256851 Page: 10 Date Filed: 05/30/2013No. 12-10935

Federal C ommunications Commission

. . . shall be subject to statutory licen s i n g upon compliance with t he requirements of subsection (d) [1 0 ] w h e r e t he carriage of t he signals c omprising t h e secondary transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission. 17 U.S. C

. § 1 1 1(c)(1). The Act further notes that a cable system’s willful or repeated retransmission may be actionable if (1) t hat r etransmission is not permissible u nder the rules, regulations, or authori z a tions o f the FCC, (2) the cable system has not complied with subsection (d)’s requirements regarding royalty f ees, or (3) the cable system w illfully alters the transmission. 17 U.S.C. § 111(c)(2)-(3). Nexstar argues Time Warner is ineligible for a statutory license because it h as violated v a r i ous FCC rules and regulations. As discussed above, the retransmission c onsent e xpresse d i n S ection 1 of the RCA comports with the rules and regulations requiring express, written consent. See, e.g. , 47 U .S.C. § 325(b)(1)(A); 47 C.F.R. § 76.64(a)&(j). Nexstar additionally contends T i m e Warner contravened the FCC’s non-duplication rules, expressed in 47 C.F.R. § 76.92. This provision allows a local s t a t ion, s uch as Nexstar, t o exercise nonduplicati o n r i ghts—however, in order to e xercise these rights, a station must first notify a cable system of i ts intent to do so. 4 7 C.F.R. § 76.94(a) (“In order to exercise the non-duplication rights pu r suant to § 76.92, television stations shall n otify each cable television system operator of t he non-duplication sought in accordance with the requirements of t his section.”). N e xstar has not argued it provided Time Warner with the requisite notice; th u s , t h e r e is no evidence Time Warner violated t hese rules. Accordingly, the evidence before us indicates

1 0 Subs ection ( d ) d eals w ith the calculation and p aym ent of royalty f ees to the cop yright
ow ner. Thus , cable s y s tem s m ay retrans m it s tations w ithout obtaining an actual cop yright, but the s tatutory licens ing s chem e s till requires them to com p ens ate the cop yright hold er. 11 Case: 12-10935 Document: 00512256851 Page: 11 Date Filed: 05/30/2013No. 12-10935

Time Warner was eligible for a statutory l icense and the distr i ct court did not

err i n finding Nexstar is unlikely to succeed on the merits of its copyright claims. V. The district court correctly found Nexstar is not l ikely t o succeed on the merits of its breach of contract or copyright cl a i m s. Thus, its denial of a preliminary injunction and a temporary restraining o rder was not an a buse of discretion. The orders of the district court are A FFIR M E D

.

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