The following e-filed documents, listed by NYSCEF document number (Motion 013) 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 325, 326, 327, 328, 329, 330 were read on this motion to/for JUDGMENT-SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 014) 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 331, 332, 333, 334, 335, 336 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. DECISION+ ORDER ON MOTION In motion sequence number 013, plaintiff DIRECTV, LLC (DIRECTV) moves, pursuant to CPLR 3212, for summary judgment in its favor on the first, second and fourth causes of action in the amended complaint and for summary judgment dismissing the counterclaims asserted by defendant Nexstar Broadcasting, Inc. (Nexstar). In motion sequence number 014, Nexstar moves, pursuant to CPLR 3212, for summary judgment in its favor on its counterclaims and for summary judgment dismissing the amended complaint. Background DIRECTV is a multichannel video programming distributor, or MVPD, that provides multiple television channels to its subscribers. (NYSCEF Doc. No. [NYSCEF] 315, Nexstar’s Response to DIRECTV’s Rule 19-A statement 2.) Nexstar owns numerous television stations across the country. (Id. 3.) In July 2015, DIRECTV and Nexstar executed a retransmission consent agreement (Agreement) whereby DIRECTV would retransmit television signals of numerous television broadcast stations (Stations) owned by Nexstar (id.
4, 6) for a three-year term commencing July 3, 2015 through July 2, 2018, with an option to renew for a fourth year, and pay fees to Nexstar to do so. (NYSCEF 252, Agreement at 21.) Exhibit A to the Agreement identifies 77 Stations with each Station’s call letters, “Local Territory,” and affiliations with the “Big Four” television broadcast networks, defined as ABC, NBC, CBS, and FOX (collectively, Network or Big Four), or with the CW, MyNetworkTV (MNT), CMT, or Telemundo television broadcast networks.2 (Id. at 26-28.) The Agreement was a renewal of a previous retransmission consent agreement between DIRECTV, Nexstar and two nonparties, which was in effect from July 3, 2011 to July 2, 2015 (2011 Agreement). (NYSCEF 259, 2011 Agreement at 2 and 8.) Linda Burakoff, DIRECTV’s Vice President, Programming Acquisitions,3 represented DIRECTV in the negotiations. (NYSCEF 204, tr at 17:4-11 [Burakoff depo].) Perry Sook, Nexstar’s CEO, and Elizabeth Ryder, Nexstar’s General Counsel, represented Nexstar. (NYSCEF 260, tr at 6:2-4 [Sook depo]; NYSCEF 206, tr at 187:8-13 [Ryder depo].) Section 7 of the Agreement provides as follows: “NETWORK AFFILIATION AND PROGRAMMING RIGHTS. The parties acknowledge that the Stations’ affiliations as identified on Exhibit A are the essence of this Agreement. Accordingly, if a Station changes network affiliations, it shall be subject to the License Fees set forth in Section 8 for its new network affiliation. Notwithstanding anything to the contrary in this Agreement, if a Stream ceases to be affiliated with the network listed in Exhibit A (and does not affiliate with another Network) during the Term, DIRECTV may cease carriage of such Stream if continued carriage would prevent DIRECTV from retransmitting the station or signal that replaced the lost network affiliation due to capacity constraints in the applicable Local Territory.” (NYSCEF 252, Agreement at 13.) Section 8, titled “LICENSE FEES,” provides that DIRECTV shall pay Nexstar a monthly “License Fee” for each DIRECTV “Subscriber” authorized to view a “Stream” in the Local Territory.4 (Id.) The Agreement specifies different rates depending on whether a Station was affiliated with a Network or with CW or MNT. (Id. at 2 and 14.) License Fees are calculated based on the average number of Subscribers in the month in which the fees accrued. (Id. at 14.) Section 8 also accounts for a rate change if the CW network ceased operating. (Id.) In that event, if a “Former CW Station” did not become affiliated with a Network or MNT, then, provided that certain conditions were satisfied, DIRECTV would pay Nexstar one-half of the then-current License Fee rate. (Id.) There is no dispute that, during negotiations for the Agreement, Nexstar represented that Station WHAG (WHAG) was an NBC affiliate (NYSCEF 315, Nexstar’s Response to DIRECTV’s Rule 19-A statement
