21 F.4th 207
2d Cir.2021Background
- DISH Network is a subscription-based satellite TV provider that transmits encrypted programming to paying subscribers and charges fees to decrypt it.
- DISH purchased a commercial general liability policy from ACE that provided Coverage B for "personal and advertising injury" but contained a Media Exclusion barring coverage for injury committed by an insured whose business is "advertising, broadcasting, publishing or telecasting."
- Four broadcast networks sued DISH over its Hopper ad‑skipping product; the suits settled without monetary liability to DISH, but DISH incurred defense costs.
- DISH sought defense/reimbursement under the ACE policy; ACE denied coverage relying on the Media Exclusion and claimed DISH was in the business of "broadcasting."
- The district court granted summary judgment for ACE, holding the Media Exclusion applied because the ordinary meaning of "broadcasting" includes subscription-based transmissions; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the term "broadcasting" in the Media Exclusion is ambiguous | DISH: "Broadcasting" should be read to mean transmissions to the public generally and not to paid, subscriber‑only services; thus ambiguous and should be construed against insurer | ACE: "Broadcasting" has its plain and ordinary meaning (transmitting TV/radio signals to receivers) which covers DISH's satellite transmissions | Court: Not ambiguous; plain meaning includes transmitting signals to receivers and applies to DISH |
| Whether "broadcasting" requires free, public transmission (i.e., excludes fee‑for‑service/subscription models) | DISH: Broadcasting implies transmission to the public at large free of charge; subscription transmissions are not "broadcasting" | ACE: Dictionary and common usage do not require transmissions be free; fee‑based services can be publicly available and are encompassed by "broadcasting" | Court: Rejected the free‑only limitation; subscription transmissions fall within ordinary meaning of "broadcasting" |
Key Cases Cited
- Parks Real Est. Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33 (2d Cir.) (insurance contracts interpreted to effect parties' intent; unambiguous terms get plain meaning)
- Fed. Ins. Co. v. Am. Home Assurance Co., 639 F.3d 557 (2d Cir.) (plain and ordinary meaning may be determined by dictionary; summary judgment appropriate when terms unambiguous)
- Beazley Ins. Co. v. ACE Am. Ins. Co., 880 F.3d 64 (2d Cir.) (insurer must exclude coverage using clear and unmistakable language)
- Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600 F.3d 190 (2d Cir.) (whether insurance language is ambiguous is a question of law reviewed de novo)
- DISH Network Corp. v. Arch Specialty Ins. Co., 989 F. Supp. 2d 1137 (D. Colo. 2013) (district court held DISH's transmissions are "broadcasting")
- DISH Network Corp. v. Arrowood Indem. Co., 772 F.3d 856 (10th Cir.) (affirming that commonly understood definitions of "broadcasting" and "telecasting" encompass DISH's transmissions)