IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10935

NEXSTAR BROADCASTING, INCORPORATED,

Plaintiff - Appellant

v.

TIME WARNER CABLE, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CV-2380

Before REAVLEY, JOLLY, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

Nexstar Broadcasting, Inc. (“Nexstar”) contends Time Warner Cable, Inc.’s

(“Time Warner”) distant retransmissions of various Nexstar station signals

violated the terms of the parties’ Retransmission Consent Agreement (“RCA”). 

Nexstar filed claims for breach of contract and copyright infringement and

moved for a preliminary injunction and a temporary restraining order. The

district court denied Nexstar’s motions, and Nexstar timely filed an interlocutory

appeal. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

May 30, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I.

Nexstar is a Delaware corporation with its principal place of business in

Irving, Texas. Nexstar owns and operates television stations in various markets

across the United States, actively producing and distributing broadcast

television programs and other copyrighted works. Most of these stations are

affiliated with national programming networks,1but Nexstar also offers local

programming services, including local news production and sales. Time Warner

is the second-largest cable television operator in the United States and has more

than 12 million residential video subscribers in 29 states. That is, Nexstar

creates signals and Time Warner operates systems that distribute these signals.

At issue in this appeal is the extent to which the RCA Nexstar and Time

Warner executed in June 2009 permits Time Warner to retransmit Nexstar

signals on systems outside a station’s local market. Nexstar contends the RCA

only allows Time Warner to retransmit Nexstar’s signals in certain local

markets, whereas Time Warner asserts the RCA provides a broad right for it to

retransmit Nextar signals over each of Time Warner’s cable systems, regardless

of that cable system’s location. 

The relevant provisions of the RCA are as follows. Section 1 states:

Retransmission Consent. [Nexstar] hereby gives [Time Warner]

its consent, pursuant to Section 325(b) of the [Communications Act

of 1934] and the FCC Rules, to the nonexclusive retransmission of

the entire broadcast signal of each [Nexstar] Station (the “Signal”)

over each [Time Warner] System[2] pursuant to the terms of this

1 For example, Nexstar is a local affiliate of NBC in some markets. The broadcast

agreement between Nexstar and NBC prohibits Nexstar from granting “consent to the

retransmission of its broadcast signal by any cable television system . . . if such cable system

. . . is located outside the [Designated Market Area] to which [the Nexstar] Station is

assigned.” Appellant’s Br. at 18 n.10 (first alteration in original).

2The RCA defines “System” as “a multichannel video distribution system that is owned,

operated or managed by: (i) any of Operator [Time Warner], Time Warner Entertainment

Company, L.P. (“TWE”), Time Warner NY Cable LLC (“TWNY”),TimeWarner Entertainment2

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Agreement. [Time Warner] agrees to retransmit the Stations’

Signals subject to the requirements of Section 2 below. . . .

Section 325(b)(1)(A) of the Communications Act provides,“No cable system

or other multichannel video programming distributor shall retransmit the signal

of a broadcasting station, or any part thereof, except with the express authority

of the originating station[.]” 47 U.S.C. § 325(b)(1)(A). The FCC Rules further

provide “Retransmission consent agreements between a broadcast station and

a multichannel video programming distributor shall be in writing 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 System[3]

that is located in the Television Market (as defined by the FCC

Rules) of a Station shall retransmit, at its own expense, such

Station’s Primary Program Transport Stream, the Required Stream

for such System (if any, as set forth in Exhibit A) (subject to

applicable notice requirements), and to the extent technically

feasible, the Program-related Material relating thereto, without

interruption, additions, insertions, alterations or deletions. Each

such System shall carry the Primary Program Transport Stream of

each applicable Station on the same tier of service as all other local

full-power Big Four Network affiliated (as defined in Exhibit B)

signals are carried in such System. . . .

Section 7 reads:

Advance/Newhouse Partnership (“TWEAN”); (ii) any affiliate or wholly-owned subsidiary of

TWC, TWNY or TWEAN; or (iii) any other corporation, partnership, joint venture, trust, joint

stock company, association, unincorporated organization (including a group acting in concert)

or other entity as to which any one or more of Operator, TWE, TWNY or TWEAN directly or

indirectly possesses the power to direct or cause the direction of such entity’s management and

policies, whether through the ownership of voting securities, by contract, management

agreement or otherwise.”

3 The RCA defines “Upgraded System” as “a System that has an activated bandwidth

of at least 750 MHZ, and has launched and distributes (on a non-test basis) the over the air

digital broadcast signal (in a digital format) of any other local full-power commercial broadcast

television station.”

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Copyright, Trademarks and Unauthorized Use. Operator

acknowledges that, except as otherwise set forth herein . . . the

retransmission right granted herein to each Station’s Signal does

not convey any license or sublicense in or to the copyrights of and to

the underlying programming transmitted by the Station, or to the

marks, names and logos that may be used therein; and that, as

between the parties, except as set forth herein, it shall remain the

obligation of [Time Warner] to obtain any necessary licenses for

retransmission on the System, whetherunder compulsory copyright

license pursuant to 17 U.S.C. § 111, or otherwise. . . . Except as

specifically permitted herein or as necessary to exercise rights

granted herein, no [Time Warner] System shall, for pay or

otherwise, record copy, duplicate, retransmit or expressly authorize

the recording, copying, duplication or retransmission of any portion

of the Stations’ Signals without [Nexstar’s] prior written consent;

provided, however, that the foregoing shall not be deemed to

prohibit Operator [Time Warner] or any System from undertaking

any activity that is not prohibited by applicable law in the absence

of a license[.]

Finally, Section 11, entitled “Termination” provides, “[Time Warner] may

discontinue carriage of any Program Transport Stream of any Station if . . . the

System carrying such Program Transport Stream is located outside such

Station’s Television Market.” RCA § 11(b)(iii). Notably, there is no provision of

the RCA that purports to place explicit limits upon Time Warner’s ability to

retransmit Nexstar’s signals.

Nonetheless, Nexstar argues the RCA provides Time Warner narrow

retransmission authority, confining Time Warner’s ability to retransmit signals

to the relevant local market. Accordingly, Nexstar contends Time Warner

breached the RCA by retransmitting the station signals of WBRE-TV (the NBC

affiliate in Wilkes-Barre, PA), WTWO (the NBC affiliate in Terre-Haute, IN),

and WROC-TV (the CBS affiliate in Rochester, NY) outside of their local

markets 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.

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The district court denied Nexstar’s motions, holding Nexstar did not

demonstrate it had a substantial likelihood of succeeding on the merits of its

breach of contract claim, and, further, that its copyright claim hinged upon the

assertion that Time Warner’s retransmission was outside the scope of Nexstar’s

consent in the RCA. In reaching this decision, the district court applied Texas

law to find the RCA was not ambiguous as a matter of law, and that “[n]owhere

in the RCA d[id] Nexstar limit its retransmission consent.” The district court

noted that the RCA mentioned systems “located in the Television Market of a

Station” only in Section 2(a), which details Time Warner’s obligations to carry

Nexstar signals—not in Section 1, which describes Time Warner’s right to

retransmit. Reasoning that Texas law requires courts to “presume that

omissions are purposeful,” the district court found this reference to Television

Markets did not limit Time Warner’s ability to retransmit signals. Moreover,

the court noted Section 11 (Termination) conferred upon Time Warner the right

to discontinue transmissions to out-of-market locations. The court found this

conferment necessarily implies Time Warner has the right to retransmit signals

outside of their local markets, and held this reasoning further supported its

holding that the RCA provided Time Warner the ability to distantly retransmit

the signals at issue. 

Nexstar timely filed an interlocutory appeal, pursuant to 28 U.S.C. §

1292(a)(1).

II.

We review a district court’s ultimate decision to grant or deny 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

preliminary injunction analysis, we review findings of fact for clear error and

conclusions of law de novo. Id. at 592 (quoting White v. Carlucci, 862 F.2d 1209,

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1211 (5th Cir. 1989), and citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.

2009)). 

In construing a contract 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, 133 (Tex. 1994). Discerning the parties’

true intent, as expressed in the language of the contract, is the court’s primary

concern. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W. 2d 462, 464 (Tex.

1998); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518-

19 (Tex. 1980). The court should generally give words and phrases in contracts

their “ordinary, popular, and commonly accepted meanings.” Phillips v. Union

Bankers Ins. Co., 812 S.W.2d 616, 618 (Tex. App. 1991); see also DeWitt County

Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999) (“The language in an

agreement is to be given its plain grammatical meaning unless to do so would

defeat the parties’ intent.”). 

III.

Nexstar argues the district court erred as a matter of law in finding

Nexstar is not likely to succeed on the merits of its breach of contract claim

because the RCA clearly prohibits distant retransmissions. To support this

argument, Nexstar contends (1) “each” does not mean “all;” (2) Section 325(b) of

the Communications 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 may retransmit Nexstar signals; and (4) the “[e]xcept as

specifically permitted herein” language in Section 7 limits Time Warner’s ability

to retransmit the signals at issue. These contentions, however, do not persuade

us.

In analyzing Nexstar’s arguments, we first examine the language of the

RCA. As the district court noted, Section 1 confers broad retransmission

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authority: “[Nexstar] hereby gives [Time Warner] its consent, pursuant to

Section 325(b) of the Act and the FCC Rules, to the nonexclusive retransmission

of the entire broadcast signal of each Station (the “Signal”) over each System

pursuant to the terms of this Agreement.”4 The RCA broadly defines “System”

to mean all Time Warner Systems5—it does not limit the term to only those Time

Warner Systems servicing the relevant local television markets. Thus, the plain

language of this conferment does not proscribe Time Warner’s retransmission

authority to local television markets; instead, it allows Time Warner to

retransmit Nexstar signals on every “System” as defined in the contract. 

Nexstar’s argument that “each” does not mean “all” does not alter this result. 

“It is well-settled that ‘we should give words of statutes their plain meaning.’” 

United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004) (quoting Demette v.

Falcon Drilling Co., 280 F.3d 492, 502 (5th Cir. 2002)). The adverb “each” is

“distributive—that is, [it] refer[s] to every one of the several or many things (or

persons) comprised in a group.” BRYAN A. GARNER, GARNER’S DICTIONARY OF

LEGAL USAGE 303 (3d ed. 2011). Section 1, then, grants Time Warner the ability

to retransmit Nexstar signals over every System—not just 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.

§ 325(b)(1)(A), and consent agreements that “shall be in writing and shall specify

4 The phrase “pursuant to Section 325(b) of the Act and the FCC Rules” appears to

modify “consent” and not “nonexclusive retransmission.” Thus, it expresses that Nexstar has

the power to consent to retransmissions under these extra-contractual provisions and is

exercising that power in Section 1. Nexstar’s argument that Section 1 does not provide Time

Warner “express” authority to retransmit its signals, therefore, is wrong. The

Communications Act and the FCC Rules do not require that the written consent specify the

geographic locations in which retransmission is allowed—only that the consent be clearly

articulated and state whether the broadcaster may retransmit the entire signal or only parts

of the signal. Section 1 comports with these requirements.

5 See supra note 2.

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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), and does not limit Time Warner’s

retransmission consent to local markets. The RCA satisfies these

standards—Section 1 clearly gives Time Warner retransmission consent for “the

entire broadcast signal of each Station . . . over each System.”6 Thus, the RCA

validly bestows retransmission authority to Time Warner.

Because we must give contractual language “its plain, grammatical

meaning unless the parties definitely intended otherwise,” Phillips, 812 S.W.2d

at 618, Nexstar would need to demonstrate some other provision of the RCA

renders this understanding of Time Warner’s retransmission authority absurd,

or that this understanding defeats the parties’ intent in forming the contract, in

order to demonstrate a likelihood of success on the merits. See DeWitt County

Elec. Co-op., 1 S.W.3d at 101. Thus, Nexstar’s primary assertion in this respect

is that Section 2 clearly limits Time Warner’s retransmission authority to local

Television Markets, as detailed in Exhibits A and B. But this assertion is

incorrect. Section 1 notes Time Warner “agrees to retransmit the Station’s

Signals subject to the requirements of Section 2,” but Section 2 describes only

what Time Warner must transmit—it says nothing about what Time Warner

may transmit. That is, while Section 2 states Time Warner is required to

retransmit certain Nexstar streams in the relevant Television Market, it does

not purport to limit Time Warner’s retransmissions to only those Television

Markets. Indeed, if Time Warner had no authority to retransmit signals outside

those requirements defined in Section 2, there would apparently be no need for

Section 1—the RCA could simply define Time Warner’s retransmission

obligations. As construing the RCA in this manner would render Section 1

6 Nexstar asserts the retransmission consent Section 1 confers is not “express,” but

proffers no case law or other evidence indicating the FCC Rules or the Communications Act

would require anything more clear than the language the RCA provides.

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meaningless, in violation of Texas contract law, it is reasonable to conclude the

RCA provides Time Warner with broader retransmission authority than the

specific requirements articulated in Section 2(a). R & P Enterprises, 596 S.W.2d

at 519.

Nexstar also contends Section 7 includes limiting language, namely,

“Except as specifically permitted herein, no [Time Warner] System shall . . .

retransmit . . . any portion of the Stations’ Signals without [Nexstar’s] prior

written consent.” This language, however, is not relevant to the case before us,

as we have already concluded Section 1 does clearly confer upon Time 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 read holistically, the RCA expresses a clear intent to

provide Time Warner with narrow retransmission authority.7 Nexstar supports

this argument by noting that other provisions refer specifically to local

Television Markets; but it does not proffer a compelling reason why these other

provisions proscribe Time Warner’s ability to retransmit “the entire broadcast

signal of each Station . . . over each [Time Warner] System” granted in Section

1.

8

If anything, these references seem to weigh against Nexstar’s

7 For instance, Nexstar argues Exhibit B indicates Time Warner is paying Nexstar for

retransmissions only into the local markets described in that exhibit. Pursuant to the

statutory licensing scheme the FCC constructed, however, cable systems may retransmit

stations without a copyright, and later pay the copyright holder pursuant to the statutory

plan. Thus, Time Warner is obligated to pay Nexstar for its distant retransmissions, despite

that the parties did not establish a private payment system.

8 For example, Nexstar asserts,“Section 7 provides that no Time Warner systems other

than those ‘located in a Television Market’ of a Covered Station are given any authorization

under the RCA to retransmit the signals of Covered Stations.” Appellant’s Br. at 8-9. But

Section 7 actually reads: “Except as specifically permitted herein or as necessary to exercise

rights granted herein, no System shall . . . retransmit . . .any portion of the Stations’ Signals

without [Nexstar’s] prior written consent.” This provision says nothing about systems

“‘located in a Television Market’ of a Covered Station,” as Nexstar argues it does. We have

already found Section 1 clearly grants Time Warner the right to retransmit in distant

markets, thus this limitation in Section 7 is inapplicable to the case before us.

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argument—they demonstrate the parties knew how to insert geographic

limitations when relevant.9 See, e.g., Evanston Ins. Co. v. ATOFINA

Petrochems., Inc., 256 S.W.3d 660, 664 (Tex. 2008) (“[H]ad the parties intended

to insure ATOFINA for vicarious liability only, ‘language clearly embodying that

intention was available.’” (citing McIntosh v. Scottsdale Ins. Co., 992 F.2d 251,

255 (10th Cir. 1993))).

Accordingly, the 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 district court erred in finding it unlikely to

succeed on the merits of its copyright claim. While the district court found the

copyright claim was contingent upon finding a breach of the RCA, Nexstar

argues this conclusion is incorrect; and, furthermore, that (1) Time Warner was

ineligible for a statutory copyright license, and (2) Nexstar did not grant Time

Warner a copyright license.

The Communications Act provides for statutory licenses:

Subject to the provisions of paragraphs (2), (3), and (4) of this

subsection and section 114(d), secondary transmissions to the public

by a cable system of a performance or display of a work embodied in

a primary transmission made by a broadcast station licensed by the

9 Nexstar further contends it is industry practice for RCAs to grant authority to

retransmit signals only to local markets, and urges us to find the plain reading of the RCA

absurd to the extent it is at odds with this practice. The Texas Supreme Court briefly

addressed a contention similar to Nexstar’s in Frost National Bank v. L & F Distributors, Ltd.,

165 S.W.3d 310 (Tex. 2005). The facts of Frost are distinguishable from the present case

insofar as the alleged industry practice reinforced, rather than contradicted, the contract’s

plain language. See id. at 313 n.3. The same result, however, obtains: Where the “plain

language of the contract is clear,” “we need not consider such evidence” as “course of dealing,

course of performance, and usage of trade.” Id. Therefore, because the language of the RCA

is clear, we do not consider the extraneous evidence Nexstar proffers.

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Federal Communications Commission . . . shall be subject to

statutory licensing upon compliance with the requirements of

subsection (d)[10] where the carriage of the signals comprising the

secondary transmission is permissible under the rules, regulations,

or authorizations of the Federal Communications Commission.

17 U.S.C. § 111(c)(1). The Act further notes that a cable system’s willful or

repeated retransmission may be actionable if (1) that retransmission is not

permissible under the rules, regulations, or authorizations of the FCC, (2) the

cable system has not complied with subsection (d)’s requirements regarding

royalty fees, or (3) the cable system willfully alters the transmission. 17 U.S.C.

§ 111(c)(2)-(3).

Nexstar argues Time Warner is ineligible for a statutory license because

it has violated various FCC rules and regulations. As discussed above, the

retransmission consent expressed in Section 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 Time

Warner contravened the FCC’s non-duplication rules, expressed in 47 C.F.R. §

76.92. This provision allows a local station, such as Nexstar, to exercise nonduplication rights—however, in order to exercise these rights, a station must

first notify a cable system of its intent to do so. 47 C.F.R. § 76.94(a) (“In order

to exercise the non-duplication rights pursuant to § 76.92, television stations

shall notify each cable television system operator of the non-duplication sought

in accordance with the requirements of this section.”). Nexstar has not argued

it provided Time Warner with the requisite notice; thus, there is no evidence

Time Warner violated these rules. Accordingly, the evidence before us indicates

10 Subsection (d) deals with the calculation and payment of royalty fees to the copyright

owner. Thus, cable systems may retransmit stations without obtaining an actual copyright,

but the statutory licensing scheme still requires them to compensate the copyright holder.

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Time Warner was eligible for a statutory license and the district court did not

err in finding Nexstar is unlikely to succeed on the merits of its copyright claims.

V.

The district court correctly found Nexstar is not likely to succeed on the

merits of its breach of contract or copyright claims. Thus, its denial of a

preliminary injunction and a temporary restraining order was not an abuse of

discretion. The orders of the district court are

AFFIRMED.

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