20-0268-cv

Dish Network Corp. v. Ace Am. Ins. Co.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2020

(Argued: April 22, 2021 Decided: December 22, 2021)

Docket No. 20-0268-cv

DISH NETWORK CORPORATION, DISH NETWORK L.L.C.,

Plaintiffs-Counter-Defendants-Appellants,

v.

ACE AMERICAN INSURANCE COMPANY, 

Defendant-Counter-Claimant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: WALKER, LEVAL, and CHIN, Circuit Judges.

Appeal from a judgment of the United States District Court for the 

Southern District of New York (Carter, J.), entered December 27, 2019, holding 

that insurance company was not obligated under an insurance policy to defend 

insureds in underlying copyright infringement suits. The parties submitted 
2

cross-motions for summary judgment on the issue of whether the insureds were 

subject to the policy exclusion for injury purportedly caused by an insured in the 

business of "broadcasting" or "telecasting." The district court held that the 

exclusion applied, and it therefore dismissed the insureds' claim for a declaratory 

judgment that the insurance company had a duty to defend. The insureds

appeal.

AFFIRMED.

ERIC A. SHUMSKY (Benjamin F. Aiken, Ethan P. Fallon, 

and Sarah H. Sloan, on the brief), Orrick, 

Herrington & Sutcliffe LLP, Washington, D.C., 

and Lee M. Epstein and Matthew A. Goldstein, 

Flaster Greenberg P.C., Philadelphia, 

Pennsylvania, for Plaintiffs-Counter-DefendantsAppellants.

JOHNATHAN D. HACKER (Bradley N. Garcia and

Ephraim A. McDowell, on the brief), O'Melveny & 

Myers LLP, Washington, D.C., and Adam Ira 

Stein (Terri A. Sutton, on the brief), Cozen 

O'Connor, New York, New York, and Seattle, 

Washington, for Defendant-Counter-ClaimantAppellee.
3

CHIN, Circuit Judge:

Plaintiffs-counter-defendants-appellants Dish Network Corporation 

and its wholly owned subsidiary Dish Network L.L.C. (together, "DISH") 

provide satellite television products and services. DISH obtained a commercial 

general liability insurance policy from defendant-counter-claimant-appellee Ace

American Insurance Company ("ACE") that included coverage for "personal and 

advertising" liability subject to certain exclusions. One such exclusion, Exclusion 

j (the "Media Exclusion"), excluded from coverage any liability arising from

"'[p]ersonal and advertising injury' committed by an insured whose business 

is . . . [a]dvertising, broadcasting, publishing or telecasting." Joint App'x at 624.

After DISH was sued by four television networks in separate 

lawsuits for alleged copyright infringement, DISH requested coverage from ACE 

pursuant to its insurance policy. ACE denied coverage and refused to defend, 

relying on, inter alia, the Media Exclusion, arguing that DISH was in the business 

of "broadcasting." The networks' lawsuits settled without DISH incurring any 

monetary liability, but DISH incurred legal fees and other expenses in defending 

the lawsuits. DISH brought this action in the district court, claiming that ACE 
4

breached its duty to defend by failing to either defend DISH or reimburse its 

defense expenditures incurred in the underlying lawsuits.

The district court granted ACE summary judgment, holding that

ACE had no duty to defend DISH because DISH was subject to the Media 

Exclusion. The court rejected DISH's argument that "broadcasting" requires 

transmission to the public for free, rather than for a fee, concluding that the plain 

and ordinary meanings of "broadcasting" and "telecasting" include subscriptionbased broadcasting, like that provided by DISH.

For the reasons discussed below, we AFFIRM.

BACKGROUND

I. The Facts

The facts are largely undisputed and are summarized in the light 

most favorable to DISH.

By its own description, DISH "is a subscription-based television 

provider that transmits programming to its paying customers." Appellants' Br. 

at 6. According to its Articles of Incorporation, DISH was formed "[t]o engage in 

the business of satellite communications, including but not limited to Direct 

Broadcast Satellite communications: to own, sell, hold, lease, equip, maintain 
5

and operate transmission and receiving stations and any connection between any 

such stations, and to transmit, signals, and all matter and things of any kind, 

nature, and description whatsoever that may be transmitted." Joint App'x at 129. 

Beginning in 2004, DISH purchased a yearly commercial general 

liability ("CGL") policy from ACE. For the period from August 1, 2011 to August 

1, 2012, ACE issued CGL Policy No. XSL G25531309 (the "Policy") to DISH.

The Policy included coverage for bodily injury and property damage 

liability ("Coverage A") and personal and advertising injury liability ("Coverage 

B"). It defined "personal and advertising injury" to include injury arising out of 

"[i]nfringing upon another's copyright, trade dress or slogan in [an] 

'advertisement.'" Id. at 634.1 Coverage B contained the Media Exclusion, which 

excluded coverage for liability arising from "'[p]ersonal and advertising injury'

committed by an insured whose business is . . . [a]dvertising, broadcasting, 

publishing or telecasting." Id. at 624.

DISH's insurance broker, Denver Series of Lockton, LLC ("Lockton"), 

reviewed the Policy and noted the Media Exclusion. Lockton recommended that 

1 Coverage B's "personal injury" liability is distinct from Coverage A's "bodily 

injury" liability, which is defined as "bodily injury, sickness or disease sustained by a 

person, including death resulting from any of these at any time." Id. at 632.
6

DISH purchase "Broadcasters Errors & Omissions" insurance to cover DISH's 

"liability as a broadcasting professional[]," including for "unintentional errors 

you made in advertising or programming you produced or broadcasted as a 

professional broadcaster." Id. at 307. DISH declined to purchase such a policy.

In May 2012, four major television networks sued DISH, alleging 

breach of contract and copyright infringement in connection with DISH's 

"Hopper" product, a digital video recording service that during play-back 

automatically skips "advertisements within the television networks' copyrighted 

works." Id. at 1143, 1145.2 The networks sought to enjoin DISH from marketing 

and distributing the Hopper. Although the lawsuits were settled without DISH 

making any monetary payments, DISH sought coverage from ACE for expenses 

incurred in the defenses.

On July 31, 2012, ACE advised DISH that it had no duty to cover the 

expenses under the Policy because the Media Exclusion bars coverage "if the 

insured is involved in the business of broadcasting or telecasting," and, in ACE's 

2 The four network lawsuits were DISH Network L.L.C. v. Am. Broadcasting Cos., Inc.

(In re Autohop Litig.), No. 12-cv-4155 (S.D.N.Y.); CBS Broadcasting Inc. v. DISH Network 

Corp., No. 12-cv-6812 (S.D.N.Y.); Fox Broadcasting Co. v. DISH Network LLC, No. 12-cv4529 (C.D. Cal.); and NBC Studios, LLC v. DISH Network Corp., No. 12-cv-4536 (C.D. 

Cal.). 
7

view, DISH was "involved in the broadcasting" of the four networks'

programming. Id. at 1163. 

II. Procedural History

On May 28, 2016, DISH sued ACE in the district court, alleging that 

ACE breached its duty to defend DISH in the network lawsuits. On March 18, 

2019, after discovery, ACE and DISH cross-moved for summary judgment, with 

both parties focusing on whether DISH was in the business of "broadcasting."

The district court granted summary judgment for ACE, holding that 

ACE had no duty to defend DISH because DISH was in the business of 

"broadcasting" and "telecasting" under the Media Exclusion. Dish Network Corp. 

v. ACE Am. Ins. Co., 431 F. Supp. 3d 415, 431 (S.D.N.Y. 2019).3 The court rejected 

DISH's contention that "broadcasting" requires transmission of "programming to 

the public at large for free," rather than for a fee, and held that "[t]he plain and 

ordinary meaning of the terms 'broadcast' and 'telecast' encompass a 

subscription-based broadcasting service" like that of DISH. Id. at 429. Judgment

was entered December 27, 2019. This appeal followed.

3 As part of its analysis of the terms "broadcasting" and "telecasting," the district 

court found that the definition of "telecast" "necessarily encompasse[d] broadcasting," 

and that therefore the definition of '"telecast" in the Policy overlapped with the 

definition of "broadcast." Id. at 429.
8

DISCUSSION

I. Applicable Law

A. Construction of Insurance Policies

Under New York law, "an insurance contract is interpreted to give 

effect to the intent of the parties as expressed in the clear language of the 

contract." Parks Real Est. Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 

F.3d 33, 42 (2d Cir. 2006) (internal quotation marks omitted). Unambiguous 

provisions of an insurance policy are to be given their "plain and ordinary 

meaning," and the plain and ordinary meaning of words may not be disregarded 

to find an ambiguity where none exists. Fed. Ins. Co. v. Am. Home Assurance Co., 

639 F.3d 557, 567 (2d Cir. 2011) (internal quotation marks omitted). Where the 

intent of the parties is clear based on the "plain and ordinary meaning" of the 

contractual terms, summary judgment may be appropriate. Id. Courts may refer 

to the dictionary to determine the "plain and ordinary meaning" of contract 

terms. Id.

A contractual term is ambiguous "if reasonable minds could differ as 

to [the] meaning" of the term. Haber v. St. Paul Guardian Ins. Co., 137 F.3d 691, 695 

(2d Cir. 1998). "Ambiguity is determined by looking within the four corners of 
9

the document, not to outside sources." Lockheed Martin Corp. v. Retail Holdings, 

N.V., 639 F.3d 63, 69 (2d Cir. 2011) (internal quotation marks omitted). Where 

"resolution of a dispute turns on the meaning of an ambiguous term or phrase," 

summary judgment should usually be denied. Fed. Ins. Co., 639 F.3d at 567.

An insurer wishing to exclude coverage under its policy "must do so 

in clear and unmistakable language," and "[a]ny such exclusions or 

exceptions . . . must be specific and clear in order to be enforced." Beazley Ins. Co. 

v. ACE Am. Ins. Co., 880 F.3d 64, 69 (2d Cir. 2018) (internal quotation marks

omitted). "[A]n insurer bears the burden of proving that an exclusion applies." 

Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co., 702 F.3d 118, 121 (2d Cir. 

2012). If the insurer does so, "the burden shifts to the insured to demonstrate 

that an exception to the exclusion applies." Id. at 122 (internal quotation marks 

omitted).

Many CGL policies contain coverage exclusions for advertising 

injuries, including a "media exclusion" that applies to insureds in media-andinternet-type businesses. See 9A Steven Plitt et al., Couch on Insurance § 129:37

(3d ed. 2021); Laura J. Grabouski, Current Controversies over Personal and 

Advertising Injury Coverage, Ins. Coverage Litig., July-Aug. 2014, at [15]
10

(discussing coverage exclusions for insureds in media-and-internet-type 

businesses in CGL policies that provide advertising injury "coverage for 

specifically defined torts that cause purely economic losses"). Some insurance 

companies include the media exclusion in their policies to limit their exposure to 

"mass media-type injuries." DISH Network Corp. v. Arch Specialty Ins. Co., 989 F. 

Supp. 2d 1137, 1148 (D. Colo. 2013), aff'd sub nom. DISH Network Corp. v. Arrowood 

Indem. Co., 772 F.3d 856 (10th Cir. 2014).

B. Standard of Review

"We review a district court's grant of summary judgment de novo, 

construing the evidence in the light most favorable to the non-moving party and 

drawing all reasonable inferences in its favor." Fed. Ins. Co., 639 F.3d at 566 

(internal quotation marks omitted). "Summary judgment is appropriate where 

there exists no genuine issue of material fact and, based on the undisputed facts, 

the moving party is entitled to judgment as a matter of law." Id. (internal 

quotation marks omitted); see also Fed. R. Civ. P. 56(a). When both parties have 

moved for summary judgment, "the court must evaluate each party's motion on 

its own merits, taking care in each instance to draw all reasonable inferences 
11

against the party whose motion is under consideration." Coutard v. Mun. Credit 

Union, 848 F.3d 102, 114 (2d Cir. 2017) (internal quotation marks omitted).

These generally applicable rules can function somewhat differently 

in relation to insurance policies, and in particular in relation to an insurer's duty 

to defend the insured. Regardless of whether the motion for summary judgment 

is made by the insurer or the insured, ambiguities as to coverage are generally 

construed against the insurer, in accordance with the doctrine of contra 

proferentem. See Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 615 (2d Cir. 

2001). And the insurer is bound to defend its insured until such time as any 

ambiguity as to coverage is resolved in the insurer's favor. See id. at 620-22. 

"Whether the language of an insurance policy is ambiguous is a question of law, 

which we review de novo." Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600 

F.3d 190, 201 (2d Cir. 2010). If the language is ambiguous, then "resolution of the 

ambiguity is for the trier of fact." State v. Home Indem. Co., 66 N.Y.2d 669, 671

(1985); see also Fed. Ins. Co., 639 F.3d at 567 (same).

C. Prior Cases

The issue of whether DISH is in the business of "broadcasting," and 

therefore subject to the Media Exclusion, has been presented to three courts, with 
12

differing results. In the first case, DISH sought a declaratory judgment from a 

court in the District of Colorado that its insurers had a duty to defend it in an 

underlying patent infringement action. Arch Specialty Ins. Co., 989 F. Supp. 2d at

1141-43. Each of the insurers' "advertising injury" liability coverage incorporated

a media exclusion against injuries caused by insureds in the business of 

"broadcasting." Id. at 1145.4 The district court held that DISH was in the 

business of "broadcasting," within the plain meaning of the word, rejecting 

DISH's argument that its transmissions to paying subscribers was not 

"broadcasting." Id. at 1146-48. It thus granted summary judgment in favor of the 

insurers. The Tenth Circuit affirmed, holding that "the commonly-understood 

definitions of the terms 'broadcasting' and 'telecasting' undoubtedly 

encompass[ed]" DISH's transmissions. Arrowood, 772 F.3d at 872, 876.

A few months before the Tenth Circuit's decision, a court in the 

Central District of Illinois reached the opposite conclusion. See Travelers Prop. 

Cas. Co. of Am. v. DISH Network, LLC, No. 12-cv-3098, 2014 WL 1217668, at *15

(C.D. Ill. Mar. 24, 2014). There, the insurer sought a declaratory judgment that it 

had no duty to defend DISH in an underlying lawsuit for DISH's alleged role in 

4 The district court referred to the exclusion as the "business exclusion."
13

making unsolicited telemarketing phone calls to consumers. Id. at *2. The 

insurer's "advertising injury" coverage also excluded injuries caused by insureds 

in the business of "broadcasting." Id. at *3-4.5 The district court held that the 

term "broadcasting" was ambiguous because it was unclear whether it

encompassed businesses that transmitted only to paid subscribers. Id. at *9-11. It 

also found the district court's contrary holding in Arch Specialty Insurance Co. was 

belied by Webster's New World Telecom Dictionary, which provided two meanings 

of the term "broadcasting" as a transmission sent "either for 'all receivers' or for 

'only subscribers.'" Id. at *9, *11. The district court granted DISH summary 

judgment, id. at *15, and the case subsequently settled without appeal.

II. Application

We conclude that ACE does not owe DISH a duty to defend under 

the Policy. First, "broadcasting," as used in its Media Exclusion, is not 

ambiguous and applies to DISH's business.6 Second, DISH's argument that the

plain and ordinary meaning of "broadcasting" does not apply here fails.

 

5 The district court referred to the exclusion as the "broadcasting exclusion."

6 Because we conclude that DISH is in the business of broadcasting, we need not 

consider whether DISH is also in the business of "telecasting," or the extent to which the 

two terms overlap.
14

A. The Plain and Ordinary Meaning of "Broadcasting"

The Media Exclusion excluded coverage for liability arising from

"personal and advertising injury" committed by "an insured whose business 

is . . . broadcasting." 

The Policy does not define "broadcasting," and so we discern its 

plain and ordinary meaning by looking to the dictionary. See Fed. Ins. Co., 639 

F.3d at 567. Here, the Policy employs the term "broadcasting" as either a verb or 

a noun. As a verb, "broadcasting" -- or "broadcast" -- means "to make widely 

known : disseminate or distribute widely," "to send out from a transmitting 

station (a radio or television program) for an unlimited number of receivers," or 

"to send out radio or television signals." Broadcast, Webster's Third New 

International Dictionary, Unabridged (2002). As a noun, it is defined as "the act of 

sending out sound or images by radio or television transmission esp. for general 

reception." Id.

These definitions make clear that the term "broadcast," put simply, 

means transmitting a signal, especially a radio or television signal, to some

number of receivers -- which is precisely the nature of DISH's business. DISH

transmits encrypted television signals to any receiver matched to its transmitters 
15

and charges its subscribers a fee to decrypt the signal. See Joint App'x at 861 

("DISH . . . transmit[s] [television] programming via satellite to paying 

subscribers.") (report of DISH expert Frank Washington); id. at 205 (DISH "tak[es] 

the signal of programmers . . . and transmit[s] . . . them via satellite to subscribers 

for a fee.") (deposition of DISH representative Jeffrey Blum). Accordingly, in the 

common, everyday sense of the word, DISH is in the business of "broadcasting." 

DISH rejects this plain meaning of the word "broadcasting" and 

argues that "broadcasting" applies only to the transmission of programming to 

the public for free, while it provides its programming only to paying subscribers 

with special receivers. This distinction, DISH argues, means that its 

transmissions are not "public," "for general reception," or "for an unlimited 

number of receivers," as indicated in the common dictionary definitions. 

Appellants' Br. at 31-32.

The line that DISH seeks to draw -- between free transmissions and 

transmissions to paid subscribers -- is not reflected in the common use of the 

term "broadcast." As the Tenth Circuit observed, "nothing in any of these 

common definitions of the term[] exclude[s] fee-for-service transmissions." 

Arrowood, 772 F.3d at 871. A service need not be free to be available to the public. 
16

Examples abound of services that are available to the public for a fee, including 

public transportation, shipping and mailing services, and parks or other venues 

that charge an admittance fee. Indeed, there is nothing in the dictionary 

definitions to suggest that "broadcasting" only encompasses broadcasting for 

free; the fact that DISH must add the "for free" qualifier to the definitions makes 

clear that no such requirement exists. See id. at 872; Arch Specialty Ins. Co., 989 F. 

Supp. 2d at 1147-48.

B. DISH's Rejection of the Plain and Ordinary Meaning

DISH argues that the "plain and ordinary" meaning of 

"broadcasting" does not apply here because (1) the Policy describes its business 

as "[c]ommunication," and (2) a technical or specialized definition of 

"broadcasting" applies. We are not persuaded.

First, DISH points to the Policy's description of its business as 

"[c]ommunication," Joint App'x at 610, and argues that it is thus not a 

broadcasting business subject to the Media Exclusion. The purpose of the 

Policy's "Business of Insured" provision, however, is to provide a "general 

identification of [DISH's] operations." Id. at 812. DISH cites no authority for the 

proposition that the description of the "Business of Insured" must be exhaustive 
17

or that it must match any other reference within the Policy to the insured's 

business. Entities may be involved in various businesses, and each of those 

businesses may be accurately described in different ways. Furthermore, DISH's 

argument makes no sense because broadcasting is unquestionably 

communication, regardless of whether a fee is charged. "Communication" is 

defined as "the act or action of . . . transmitting." Communication, Webster's Third 

New International Dictionary, Unabridged (2002); see also Communication, American 

Heritage Dictionary, Second College Edition (1991) (defining communication as 

"[t]he exchange of . . . messages, or information, as by . . . signals").

"Broadcasting," or the transmission of signals to receivers, is plainly a form of 

communication.

DISH argues that ACE's underwriting file for the Policy shows that 

ACE used the term communication in a more limited sense to refer to "businesses 

engaged in communications or telecommunications equipment manufacturing." 

Joint App'x at 1036 n.21. The underwriting file, however, is extrinsic evidence, 

and thus we do not consider it because the Media Exclusion is not ambiguous. 

Moreover, the underwriting file does not purport to categorize DISH's business 

exhaustively or exclusively as equipment manufacturing. DISH also does not 
18

contend that it is solely in the business of equipment manufacturing or dispute 

that its business involves the transmission of signals to its subscribers. ACE's 

underwriting file and the Policy's declarations page's use of the term 

"[c]ommunication" in no way suggest that DISH is not in the business of 

"broadcasting." DISH is in the business of both "communications" and 

"broadcasting," and therefore is subject to the Media Exclusion.

Second, DISH contends that industry sources support its definition

of the term "broadcasting," including telecommunications dictionaries, Federal 

Communications Commission (the "FCC") regulations, and definitions under the 

Federal Communication Act (the "FCA"). But these sources provide technical, 

industry-specific definitions of terms, and New York law is clear that we do not 

assign a "narrow, technical definition," Michaels v. City of Buffalo, 85 N.Y.2d 754, 

757 (1995) (internal quotation marks omitted), to a term in an insurance policy 

that does not indicate that the term is meant to have a specialized meaning, see 

Christodoulides v. First Unum Life Ins. Co., 946 N.Y.S.2d 773, 776 (4th Dep't 2012).

Here, the Policy does not indicate that "broadcasting" was intended 

to have a specialized or technical meaning, and the technical sources to which 

DISH would have us look do not govern where the issue depends on the
19

"commonly understood definition of the term 'broadcasting.'" Arrowood, 772 F.3d 

at 871. Furthermore, where the parties to this Policy intended to incorporate a 

legal or statutory definition of a term, the Policy says so explicitly. For example,

Coverage A's Exclusion s indicates that terms such as "source material" and 

"special nuclear material" should "have the meanings given them in the Atomic 

Energy Act of 1954 or in any law amendatory thereof." Joint App'x at 622. If the 

parties had intended "broadcasting" to take on a definition assigned by the FCC 

or the FCA, they could have easily pointed to those sources. The language of the 

Policy does not suggest an intention to adopt a specialized definition of 

"broadcasting."7

7 DISH also claims to find support in an industry-specific definition of "broadcast 

television" as "[t]elevision programming sent over the air to all receivers," Broadcast 

Television, Webster’s New World Telecom Dictionary (Ray Horak ed., 2008), on the theory 

that it does not transmit programming to all receivers. We are not persuaded. To begin, 

if this definition were to be literally applied, there would be no such thing as "broadcast 

television" because there is no programming that is received by "all receivers." A 

transmission can be received only by those receivers equipped to receive it. Indeed, 

many industry-specific definitions explicitly include the type of transmissions DISH 

sends. See, e.g., Broadcast, Hargrave's Communications Dictionary (2001) (explaining that a 

"broadcast signal may be encrypted so that only selected groups of receivers may 

recover usable information from the signal"); Broadcast, A/V A to Z: An Encyclopedic 

Dictionary of Media, Entertainment and Other Audiovisual Terms (2010) (defining 

"broadcast" as "[t]o transmit an electronic signal (generally radio or television) from a 

central point to multiple, simultaneous recipients (listeners or viewers)," and using 

"satellite broadcast" -- DISH's technology -- as an example); Broadcasting, Dictionary of 

Media and Communications (2009) (using "Direct Broadcast Satellite" as an example of a 

"[b]roadcasting technolog[y]"); Broadcast, Newton’s Telecom Dictionary (24th ed. 2008) 
20

Accordingly, we reject DISH's invitation to discard the plain and 

ordinary meaning of the term "broadcasting" in favor of its preferred definitions.

The district court did not err in granting summary judgment to ACE.8

CONCLUSION

For the reasons set forth above, the judgment of the district court is 

AFFIRMED.

(defining "broadcast" as "[t]o send information to two or more receiving devices 

simultaneously -- over [inter alia] satellite system").

8 DISH and ACE each make arguments as to why extrinsic evidence favors their 

definition of "broadcasting." Because we conclude that the definition of "broadcasting" 

is not ambiguous, we do not consider the extrinsic evidence. See Alexander & Alexander 

Servs., Inc. v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998).