Channel Twenty v. Spire

----ooOoo----

Channel Twenty
Television Company, L.L.C.,
Plaintiff and Appellant,

v.

Garry A. Spire
dba Hokeiko Broadcasting Company;
Lawrence Rogow
dba Front Range Broadcasting Company;
and Utah Television, L.L.C.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000074-CA

F I L E D
November 9, 2000 2000 UT App 312 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Jerome Romero and Vincent C. Rampton, Salt Lake City, for Appellant
R. Stephen Marshall and David L. Arrington, Salt Lake City, and Terry R. Spencer, Sandy, for Appellees

-----

Before Judges Jackson, Bench, and Orme.

ORME, Judge:

We agree with the trial court that the key language of the parties' agreement is clear and unambiguous. We disagree with its interpretation of the agreement, a legal question on which we accord the trial court no particular deference. SeeNova Cas. Co. v. Able Constr., Inc., 1999 UT 69,¶6, 983 P.2d 575.

Paragraph 13 provided for two distinct termination opportunities: (1) If the FCC did not approve the agreement, grant the application, and dismiss the competing applications within twelve months; (2) if, notwithstanding FCC approval, its actions did not result in final orders. Defendants were free to terminate for failure of the FCC to approve the package within twelve months, even if defendants chose not to exercise that right for some months after the expiration of the twelve-month period. Once the FCC did approve, however, the second clause controlled, not the first clause. Under the second clause, once there was approval, the termination right would again be triggered only if final orders did not issue in due course. It is mutually conceded that final orders eventually were entered by the FCC. Accordingly, we need only consider whether the requisite approval occurred before defendants purportedly terminated.

Defendants contend the October 6 letter could not constitute approval because FCC regulations condition finality on the FCC giving proper public notice of its decision, which did not occur until after defendants gave their termination notice. This argument would be compelling if the second clause were triggered by public notice or a notion of finality or effectiveness. However, the termination right under the second clause is instead triggered by the mere approval of the actions listed in the first clause, i.e., approval of the settlement agreement, granting of CTTC's application, and dismissal of the competing applications. In the context of this case, the October 6 letter is clearly the approval that signaled the end of a continuing right to terminate pursuant to the first clause, thereby shifting the propriety of any further termination right to the second clause. The October 6 letter uses the present tense and tracks quite precisely the criteria specified in paragraph 13. Thus, the letter refers specifically to the settlement agreement and indicates it "IS APPROVED." It names the three competing applications and states they "ARE DISMISSED." It makes appropriate recitals about CTTC's qualifications and the public interest and concludes by stating that CTTC's application "IS GRANTED."

Defendants did not terminate prior to the FCC approval actions, which shifted their rights from being governed by the first clause to being governed by the second clause. The right to terminate under the second clause never materialized because the requisite "Final Orders" were ultimately issued by the FCC. Accordingly, the summary judgment appealed from is reversed and the case remanded for such further proceedings, consistent with our decision, as may now be in order.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge