*3 BLACK, COX, Before BARKETT and build broadcast facilities at the new loca- Judges. Circuit summary, tion. In the licensee ob- must separate tain to two FCC orders relocate BLACK, Judge: Circuit (1) existing FM radio station: Real- Susquehanna Radio Appellant Corpora (2) lotment R&O and the CP. (Susquehanna) appeals tion the district 6, 1996, Susquehanna On November summary grant judgment Ap court’s to agreed purchase to Anni the assets of two (BCI) Investors, pellee Bridge Capital II ston, Alabama, (collectively radio stations in this of contract Specifi breach action. Station) Sapphire Broadcasting, from cally, Susquehanna contends the district Inc. (Sapphire) Seeking million. $15.05 court erred when it held Susquehanna’s to relocate thе Station to the more lucra unambiguously Construction be Permit Park, College tive Atlanta-area market of came a “Final Order” —as defined Sec Georgia, Susquehanna agreed pay Sap tion parties’ Asset Purchase phire an upon additional million satis (the Agreement Agreement) May —before faction of three conditions. These three 23, 2003, requiring thus Susquehanna to pertains solely conditions—each of which pay BCI the million pay appear Section 2.4 of the ment set forth in 2.4.1 Section We affirm. CP — (1) Agreement:2 grants Susque the FCC I. BACKGROUND hanna any a Class C-3 CP without “mate conditions,” rial The Federal Communications adverse as defined in Commis- Sec (FCC) standard, (2) 2.4; sion has a two-step proee- tion Susquehаnna’s the CP meets coverage substantially also contends the district popu- vide similar in granted lation, summary judg court should have square miles and location to that equitable 2.4, ment under the doctrine of grant shown on Schedule which CP briefs, estoppel. reviewing parties' After (as become a Final Order defined in Sec- record, and the case 5.4(d)), Seller, Buyer upon tion will conclude the district court did not abuse its (6) program authority test or six months rejected Susquehanna's ju discretion when it date from the the CP has become a estoppel dicial claim. See Burnes v. Pemco Order, sooner, Final whichever occurs Inc., Aeroplex, 291 F.3d Cir. amount, in addition to the amount set forth 2002) discretion, (apрlying the abuse of stan 2.1, in Section as follows: applica dard of review the district court's judicial estoppel). tion of (c) facility a If the CP is for Class C-3 below, the amount will be Ten Million added): provides (emphasis 2. Section 2.4 ($10,000,000). Dollars Payment. 2.4 Additional Additional as set In the event the consideration forth in (c)] (“CP”) grants [FCC] [subsection Construction Permit above be due shall any owing by Buyer Buyer without “material adverse to Seller if conditions" obtains (as 2.4) hereinafter defined in years this Section the Final Order for a CP within six pro- to WHMA-FM Closing location that will Date. FCC, require- July 2005. See Small v. coverage Atlanta-area broadcast (D.C.Cir.2005). ments; 11, 12 Susquehanna “obtains the Fed.Appx. a CP” within six Final Order for On November while Small’s 22, 1997, closing Agreement’s first for reconsideration of the petition 2003). (i.e., date pending, Reallotment R&O was the term Order”: defines requested granted Susquehanna its Class- mean an “Final Order” shall The term 2.4, 3 CP. In accordance with Section reversed, which is not FCC order CP did not contain “material adverse aside, stayed, enjoined, set annulled Susquehanna’s conditions” and satisfied respect to which no suspended and with coverage require- Atlanta-area broadcast *4 or timely request filed for administrative Susquehanna proceeded to con- ments. review, stay or judicial reconsideration College struct its broadcast facilities to the time for pending, and as which program Park and received FCC test au- for the filing any request, FCC broadcasting the thority begin to Station. motion, to aside its order on its own set 2001, January Since the Station has contin- expired. uously College broadcast from Park as receiving the million initial After $15.05 Nevertheless, Q100.” “All Hits when Susquehan- for the Station from payment million requested BCI additional $10 na, rights to Sapphire assigned to BCI its payment Susquehanna, Susquehanna from payment. million additional $10 “Final asserted its CP did not become a filed a Petition for Rule 2003, 23, May Order” before as required 6, on November Making with 2.4, pay- under and thus Section refused 1997, requesting a Reallotment R&O that ment. enable it to relocate Station would 29, 2004, alleging BCI filed suit June College Anniston to Park. Preston from CP a “Final Order” Susquehanna’s became competing pro- Small then submitted a W. 23, therefore, 2003, and, May Sus- Midgeville, Georgia, sta- posal to move his quehanna’s refusal to make the million Circle, If Georgia. granted, tion to Social payment constituted a breach counterproposal pre- would have Small’s Both moved for sum- contract. moving from the Sta- vented 26, 2005, the mary judgment. January On 28, 2000, April Park. College tion to On Susquehanna’s district court determined granted Susquehanna’s petition May to prior a “Final Order” CP became by counterproposal and denied Small’s 23, 2003, to BCI was thus entitled and R&O. means of Reallotment its breach of con- summary judgment on 19, 16, 2000, August and Between June accordingly claim. The district court tract multiple petitions filed for re- Small and plus interest аwarded BCI million and consideration of the Reallotment R&O appeal This en- attorney’s and costs. fees reopen the record. The FCC motions sued. petition each and motion. On Jan- denied precluded uary the FCC also II. OF REVIEW STANDARD filing requests further for ad- Small from novo the district “We review de rehearing. ministrative relief or Small apply summary judgment, court’s sought review of the Reallotment then as the district ing legal the same standards Appeals for the R&O the U.S. Court court, reasonable viewing and all facts and Circuit, peti- his D.C. but the court denied light drawn therefrom in inferences May tion for review on and de- non-moving par- most favorable to request rehearing en banc on nied his Susquehanna’s acqui- T. ty.” Washington owing uрon v. Booker Johnson Serv., Inc., Broad. 234 F.3d sition of “the Final Order for a CP.” Cir.2000). 5.4(d) turn to deter- We now" Section mine whether the CP became a III. DISCUSSION Order” before 2003. Section the follow appeal presents This sets, forth three requirements ing interpretation: question of contract qualify as a “Final Order”: CP Susquehanna’s unambiguously be Did CP “reversed, the CP has never been a “Final defined in come Order” —as Sec aside, enjoined, stayed, set annulled Agreement tion —before suspended”; question, 2003? To answer this timely request “no filed for adminis- 15.8, must look first to which in review, trative or reconsider- Agreement structs us to construe the ation or is pending” “with re- accordance with New York law. Under CP; spect to” the York “[w]hether New (3) (a) filing any “the timе for such re- ambiguous clear or is for the court quest administrative or [for as a v. determine matter law.” Fetner *5 review, stay reconsideration or Fetner, 645, 256, 293 A.D.2d 741 N.Y.S.2d expired,” ... has CP] and (N.Y.App.Div.2002). 258 “[W]here (b) ... “the time for the FCC to set unambiguous and on is clear aside on its own motion ... [the CP] face, parties the intent of the must be expired.” gleaned from within the four corners of id., instrument,” and ripe “the case is briefs, parties’ After reviewing summary judgment,” Express Am. record, statutes, regula- and the relevant Bank, Inc., Uniroyal, Ltd. v. 164 A.D.2d tions, and case we conclude each of 275, 613, (N.Y.App.Div. 562 N.Y.S.2d 614 requirements these three was satisfied be- 1990). 23, First, May fore 2003. the CP was “reversed, stayed, enjoined, never set With these basic rules of contract aside, Seсond, suspended.” annulled or mind, interpretation begin analy our FCC, Secretary Marlene H. Agreement’s language. sis of the Dortch, request certified “no for ad- mil Again, stipulates Section 2.4 the $10 review, judicial ministrative or reconsider- payment lion additional “shall be due stay respect ation or has been filed with owing by [Susquehanna] and [BCI] Third, filing any [the CP].” the “time for [Susquehanna] obtains the Final Order for request judicial [for administrative 23, May before explained CP” 2003. As review, reconsideration or of the CP]” above, the Reallotment and R&O the CP 17, (i.e., expired on days December 30 separately are Ac issued FCC orders. public after the FCC issued notice of the cordingly, could have made the 17, 2000), CP November see U.S.C. on рayment owing upon, due and 405(a), 402(b)-(c), §§ and for ... the “time events, among other Susquehanna’s acqui the FCC to set aside on [the CP] its own (1) sition the “Final Order” for a Real 27, expired motion” December R&O; lotment the “Final for a Order” (i.e., days public after the FCC issued CP; or the “Final Order” for both a notice of its of the CP on November Reallotment R&O and a The lan CP. 17, 2000), short, § see 47 C.F.R. 1.117. In guage unambiguously of Section 2.4 indi Order,” “Final parties opted op cates the for the second the CP became a as defined 5.4(d), tion payment and made the additional due no than Section later December 27, -nearly years gravamen Susquehanna’s two and a half be- The 2000— is that we should judicially re Agreement’s six-year deadline. fore write Seсtions 2.4 and to make the 2.4 Accordingly, we hold Sections and additional payment owing upon due and Susquehan- unambiguously obligate the Reallotment R&O and the CP becom an additional million. na to BCI 23, ing May “Final Orders” before 2003. make an end-run around the Seeking to contracting parties in express When their unambiguous Agreement’s language, Sus however, in unambiguous tent language, 5.4(d)’s quehanna argues Section second “words cannot be read into [the] contract requirement i.e., timely request “no filed — import wholly unexpressed an intent judicial for administrative or review when the contract was executed.” In re pending” respect to” the “with CP —was Trust, Rivas’ 100 N.Y.S.2d ' Specifi not satisfied before 2003. omitted). (N.Y.Sup.Ct.1950) (quotation cally, Susquеhanna asserts multi Small’s did not refer to the Reallot judicial ple requests for administrative and 5.4(d); ment R&O Sections 2.4 and in review of constitut R&O stead, they unambiguously agreed to make “timely requests for ed filed administrative payment million additional contin respect review” with the CP. gent upon the CP —and the CP alone— requests Because these for administrative Order,” becoming a as defined in review of the Reallotment If “pending” R&O were between June' Susquehanna genuinely intended to link July thus payment the additional to the Reallotment contends the CP did not become a “Final finality, R&O’s it should have exercised July until two 2005—over greater negotiating care in *6 5.4(d).4 six-year in Agreement’s employed deadline.3 Sections 2.4 and after not, however, opinion requiremеnt; 3. The dissent devotes Part A of her the second it did 5.4(d)’s analyzing portion the latter of Section requirement. bold the of third This requirement -i.e., ... third "the time for the emphasis highlighted selective textual for the — [the CP] FCC to set aside on its own motion Susquehanna district court that focused its analysis, expired.” ... has Based on this 5.4(d)’s argument exclusively sec- on Section dissent concludes the CP "could not have requirement. ond forty days become a 'Final Order' until after Susquehanna presented therefore never of the Reallotment R&O review third-requirement-re- district court with the 26, July Dissenting ... terminated” on argument the A lated dissent raises in Part Op. at 1222. law, opinion. her Under our circuit's case Yet, briefs, Susquehanna in its district court any argument Susquehan- wаived thus deem 5.4(d)’s never addressed Section third re- 5.4(d)'s na have had as to Section third instead, argument quirement; it based its See, requirement. e.g., Hotels & Four Seasons 5.4(d)’s solely requirement. on Section second Resorts, S.A., 377 B.V. v. Consorcio Barr F.3d importantly, Susquehanna expressly Most ad- clear, 1164, (11th Cir.2004) ("To 1170 be it is requirement’s language, dressed the second position [appellant] our that waived its not (1) asserting the Reallotment R&O "was sub- argument sufficiently because it did not raise ject pending administrative review as of below; rather, [ap- it conclude that [we] 22, 2003,” (2) "the continued re- FCC’s pellant] previously the issue at did not raise view of Reallotment [the R&O] constituted] Therefore, we all. decline to address it for CP,” and, (3) "[aсcordingly, review of the appeal.”); Chapman the first time on v. AI subject the CP was to adminis- ” 1012, (11th Cir.2000) Transp., 229 F.3d 1044 trative review and was a 'Final Order.' not ("It argument contrast, not raised is axiomatic that Susquehanna In either failed or de- waived.”). trial court ... has been provide any analysis clined to of the third Furthermore, requirement's language. each argument support 4. To about Section Susquehanna quoted time in its briefs, 5.4(d)’s requirement, Susquehanna district court it bolded the second 1218 un-
Furthermore,
ject to
review the
fails to
Susquehanna
proceeding.”
derlying
R&O]
pre-Agree
[Reallotment
single
to a
our attention
direct
indi
statute,
or FCC case
regulation,
ment
however,
unavailing,
is
This
a “Final
can
become
cating that a CP
fаcts in these three cases are
because the
R&O
related Reallotment
not,
asserts, “indistin-
as
If such authori
a “Final Order.”
becomes
In-
facts in this case.”
guishable from the
existed,
arguably read
ty
we could
deed,
these three cases involved
none of
R&O” into Sections
“Reallotment
words
Rather,
R&O.
each
because,
“unless a contract
2.4 and
(1)
A
B
Applicant
Applicant
submitted
otherwise,
in force at the
the law
provides
to con-
mutually
applications
exclusive CP
into
is entered
be
agreement
time
(2)
station;
the FCC
struct a new radio
agreement
part
much a
comes as
application,
A’s CP
Applicant
dismissed
or referred to
expressed
it
though were
for reconsider-
Applicant
petitioned
A
therein,
that
presumed
dismissal;
grant-
ation of this
contemplation when the
had
law in
application; and
Applicant
ed
B’s CP
made.” Dolman v. U.S.
contract was
grant could
Applicant
the FCC held
B’s
N.Y.,
110,
2 N.Y.2d
Tmst Co.
adjudi-
not
“final” until the FCC
become
(1956).
138 N.E.2d
N.Y.S.2d
petition
A’s
for reconsider-
Applicant
cated
accordingly cites three FCC
Commc’ns, 2
at
ation. Meridian
F.C.C.R.
Communications,
Media,
5904;
cases—In re Meridian
8 F.C.C.R. at
Open
(1987);
4072;
nor other adminis Contrary Susquehanna’s suggestions, judicial challenge to the FCC’s trative intеrpretation our of 2.4 Sections in Susquehanna’s application; of CP 5.4(d) does not give rise to an unfair res stead, challenged only the Reallot Small January ult.6 Susquehanna Since Susque cases ment R&O. The three FCC reaped the financial of contin benefits simply hanna cites do not address whether uously broadcasting through the Station challenge- to the Small’s Reallotment R&O “All out the Atlanta area as the Hits prevented Susquehanna’s subsequent CP noted, Q100.” As the district court there becoming Susque from a “Final Order.” fore, Susquehanna has “realized the bene n to cite hanna has thus failed BCI, bargain.” fit of its on the other force at the time the executed the hand, yet has not “realized the benefit of Agreement, stating a CP cannot become a bargain,” Susquehanna because refuses until the related Reallot to surrender million additional short, ment R&O becomes a “Final Order.”5 Ac In payment. Susquehanna has thus cordingly, “presume[ cannot managed ] far BCI Anniston-area contemplation price had such law in for an Atlanta-area radio station. four, supra, College 5. As indicated in footnote it could not broadcast from Park. In however, Agreement, FCC cited Meridian Communications in Para- the context of this graph Perhaps, Susquehanna 7 of the CP. relatively risk assumed was suggest, Indeed, included cita- seems the FCC acknowledged small. the FCC has analogized tion because it the facts of Meridi- ”[o]nly very percentage small of an Communications to the facts of this challenges [to R&Os] Reallotment are ulti- challenge and concluded Small’s to the Real- mately successful” and "the vast of prevented lotment R&O the CP from becom- petitions for reconsideration [of ing a "Final Order.” Because the FCC did ultimately are denied.” In re Amend- R&Os] citing not state its reasons for Meridian Com- 1.420(f) ment the Commission’s munications, way knowing we have no Concerning Stays Rules Automatic Certain Dolman, Regardless, certain. under we must Orders, Allotment 11 F.C.C.R. analysis limit our to "the law in force at the (1996). agreement time the entered into.” 157 [was] apparent Given the unlikelihood of at 787. N.Y.S.2d 138 N.E.2d The FCC overturning or the D.C. Circuit the Reallot- roughly issued CP four after sig- ment knеw it would Thus, signed. assuming was even *8 nificantly improve successfully its chances of expanded the FCC Meridian Communications’ College relocating upon the Station to Park CP, holding by citing Susquehanna obtaining the CP. Once had identify controlling still fails law exist- hand, the CP in it could construct broadcast ing contracting. at the time of Park, College program facilities in receive test and, authority, begin broadcasting, most im- interpretation 6. Nor is our unreasonable portantly, money. make We therefore think it when considered in the context of radio-in- assume, unambig- True, reasonable to based on the dustiy transactions. under our inter- 5.4(d), language uous of Sections 2.4 and pretation, Susquehanna a assumed certain pаrties regarded lynch- the CP as the of CP had a amount risk. If the become pin Susquehanna's efforts to relocate "Final before but the Station, and, consequently, made the addi- FCC or D.C. Circuit had overturned the .Real- upon payment due the CP itself becom- lotment would have had tional million, though ing an additional even a "Final Order.” parties’ intent.1 The is language to determine the unambiguous Agreement’s The my reading of the con did not contract sue is not whether indicates correct; the issue majority’s tract or the is an outcome.7 I plausible. Because is whether both are CONCLUSION IV. the contract admits of more believe that reasons, conclude foregoing For the I interpretation, than one dissent. unаmbiguously became Susquehanna’s CP Order,” as defined I than December no later disagreement no that section There is (i.e., a half nearly two and three condi- of the contract sets out deadline). Susque- six-year Section 2.4’s n tions, for an all of which must be satisfied million
hanna’s refusal
to make
to become a “Final Order”
FCC order
required under Section
payment
meaning
of the contract be-
within
Agree-
2.4
constitutes a breach of the
thus
Susquehanna.
BCI and
tween
accordingly affirm the district
ment. We
first condition—that
also concede that the
summary judgment
court’s
reversed,
at
is “not
the FCC order
issue
BCI.
aside,
stayed, enjoined, set
annulled or
AFFIRMED.
suspended”
questions
satisfied. The
—is
appeal
issue in this
are whether
sеcond
BARKETT,
Judge, dissenting:1
Circuit
I
and third conditions are also satisfied.
majority’s interpretation of
Although the
not,
they
submit
are
and address
provide that
section
Con-
—to
them reverse order.
Permit was a “Final Order”—
struction
intent,
captured
parties’
it is
may have
A
view of what their con-
only
plausible
one
relevant,
third condition is
If the contract can be read
As here
tract reflects.
majori-
I
if “the time for ...
differently, and
submit that the
satisfied
]
that it can to
aside its order on its own
ty’s
opinion
own
demonstrates
set
motionf
view,
be,
majority’s
summary judgment
inappropri-
expired.”
then
is
Under the
exclusively governed by
proceedings
necessary
period
and further
are
that time
is
ate
contract,
by questioning
of itself
7. The dissent concludes
our
the whole
is not in and
fact.”).
enough
to raise triable issue of
"methodology,” asserting that this case "be
longs in a different
[because it]
class
Although
ambiguity vel
contrac-
1.
non of
question
ambiguity
on the
centered
—where
York,
question
tual
is a
New
interpretation
differences in
should almost al
consensus,
reflecting
pro-
a near-universal
ways compel the same conclusion:
that the
summary judgment
appropri-
vides that
is not
ambiguous.” Dissenting
language is
ate in a
action where the
breach-of-contract
respectfully
Op. at
We
submit that the
ambiguous,
relevant contractual
critique
the well-estab
dissent's
overlooks
see,
Nurseries,
e.g., Group
Ergas, 167
W.
Inc. v.
interpretation-that
principle of
lished
contract
Cir.1999),
F.3d
and the am-
ambiguity
simply
does not
because the
exist
biguity cannot be resolved on the basis of the
parties urge
interpretations
different
of a con
alone, see, e.g., Japour
Ryan
v. Ed
&
tract’s terms. See Bethlehem Steel Co. v. Tur
Agency, 215 A.D.2d
625 N.Y.S.2d
Sons
*9
Co.,
456, 460,
2 N.Y.2d
161
ner Constr.
.750,
(1995). Ambiguity
751
in contractual
(N.Y.1957)
N.Y.S.2d
that reasonable that differently, and language
contractual 5.4(d) may not reading of section
my own adopt, my colleagues would
be that which competing interpretations
were a choice of jurisdiction for which our purpose
the sole Indeed, inescapable it is an invoked. was INC., PROPERTIES, a Florida cor JES that, many cases that come be- truism Farm, Cypress poration, d.b.a. Trails court, interpre- votes for one fore our two Plaintiffs-Ap Gallagher, Michael W. vote for trump will one tation of pellants, contrary view. v. others, belongs But this like some class, analysis is in a for our different EQUESTRIAN, INC., f.k.a. Ameri USA question ambiguity— centered on Assoc., al., et Dave can Horse Show interpretation should where differences Burton, Burton, Sr., a.k.a. a.k.a. Dave always compel the same conclusion: almost Burton, E. Dave E. Bur Dave a.k.a. ambiguous.5 that the relevant Sons, Inc., ton, Sr., Little Burton & observation, I agree that сannot that Given Fences, Inc., Burton, wood David majority’s reading of section Burton, Jr., David a.k.a. David a.k.a. admit, shortcomings they of which is the Burton, Burton, Jr., E. E. a.k.a. David only plausible one. Federation, Equestrian United States today The result reaches Inc., Inc., Eugene Jumping, Stadium ultimately proven to be the might have Mische, al., Defendants-Appel R. et remand, things one on but correct lees. parties’ intent vis-a-vis are true about No. 05-13255. yet do not know.
the contract much turns on the lan- Especially because Appeals, United States Court Permit, guage of the Construction Eleventh Circuit. contract, came well after formation Aug. evidence, parol evi- including extrinsic rule, likely proven dence would have cen- par-
tral of the intent of the to resolution
ties, and of the interaction between 5.4(d).
Construction Permit and section why summary judgment
That is is mani- language reasonably majority responds analysis by admits of 5. The to this contractual critique suggesting that over- "the dissent’s interpretation that the more than one —and principle of con- looks the well-established majority’s interpretation itself be unrea- interpretation ambiguity tract does not short, ambiguity in this case sonable. In urge simply different exist because simply "does not exist because interpretations of a contract's terms.” Ante urge interpretations different of a contract's assertion, Again, at 1220 n. 7. such an while pat- terms.” It exists because the contract is entirely a correct statement of the respects, ently ambiguous in the analysis point. beside the contained reasons I have set forth above. amply herein demonstrates that the relevant