Compass Productions International LLC v. Charter Communications, Inc.
DECISION AND ORDER: re: 82 MOTION for Summary Judgment . filed by Charter Communications, Inc. Accordingly, for the reasons stated above, it is hereby ORDERED that the motion (Dkt. Nos. 82-85) of defendant Charter Communications, I nc. for summary judgment on Counts I and II of the complaint of plaintiff Compass Productions International, LLC (Dkt. No. 1-1) is GRANTED. The Clerk of the Court is directed to terminate all pending motions and close this case. So Ordered (Signed by Judge Victor Marrero on 1/10/2021) (js) Transmission to Orders and Judgments Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against :
CHARTER COMMUNICATIONS, INC.,
18 Civ. 12296 (VM)
DECISION AND ORDER
VICTOR MARRERO, United States District Judge.
Communications, Inc. (“Charter”) in New York State Supreme
Court, New York County (see “Complaint,” Dkt. No. 1-1), and
Charter thereafter removed the action to this district on the
basis of diversity jurisdiction. Compass’s Complaint alleges
breach of contract (Count I), promissory estoppel (Count II),
fraudulent inducement (Count III), and defamation (Count IV).
(See id. ¶¶ 126-83.) On August 8, 2019, the Court granted
Charter’s motion to dismiss Counts III and IV of the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Compass Prods. Int’l LLC v. Charter Commc’ns,
Inc., No. 18 Civ. 12296, 2019 WL 4198586, at **7–9 (S.D.N.Y.
Aug. 8, 2019). Now before the Court is Charter’s motion for
summary judgment on the remaining Counts pursuant to Rule
Case 1:18-cv-12296-VM-BCM Document 102 Filed 01/10/22 Page 2 of 22
56(a) of the Federal Rules of Civil Procedure. (Dkt. Nos. 82–
85.) For the reasons set forth below, Charter’s motion for
summary judgment is GRANTED.
A. FACTUAL BACKGROUND 1
Charter is a multichannel video programmer distributor
(“MVPD”). As an MVPD, Charter operates a cable service that
allows programmers to provide channels of video content to
Charter’s customers through linear or subscription video-ondemand (“SVOD”) services. Unlike linear services that make
television programming constantly available on a dedicated
channel, SVOD channels are typically available only to paying
subscribers through a subscriber-initiated menu selection.
Compass owns television programming called The Jewish
Channel (“TJC”), which Time Warner Cable (“TWC”) carried as
an SVOD channel. Charter has never carried TJC as an SVOD or
On May 26, 2015, Charter made public its intent to merge
with TWC. Upon hearing of this news, Compass’s CEO, Elie
Singer (“E.Singer”), called Charter’s head of Programming,
The factual recitation set forth below is confined to the facts in
Charter’s Local Rule 56.1 Statement (see “Def. SUMF,” Dkt. No. 85) that
Compass does not dispute. (See Dkt. No. 97.) Certain facts that the
parties dispute (or purportedly dispute) are examined in Part III, infra.
Unless specifically quoted or otherwise cited as necessary, no other
citation to Charter’s Local Rule 56.1 Statement will be made.
Case 1:18-cv-12296-VM-BCM Document 102 Filed 01/10/22 Page 3 of 22
Allan Singer (“A.Singer”) to request that Charter carry TJC
as a linear channel. A.Singer told E.Singer that Charter had
a lot going on at the time and suggested E.Singer call him
back during the following year.
In the meantime, Compass met with lobbyists to put
engaged Howard Friedman (“Friedman”), former President and
Chairman of the American Israel Public Affairs Committee, who
contacted Congressman Steny Hoyer’s office about talking to
the Federal Communications Commission (the “FCC”). While
Charter’s merger with TWC was pending before the FCC for
evaluating the carriage of diverse and independent networks
carriage of TJC on the basis that if Charter did not carry
TJC, post-merger the Jewish communities currently served by
TWC would lack a Jewish network.
Congressman Hoyer’s office put Friedman in touch with a
current lobbyist in the cable industry for advice on how to
proceed. This lobbyist told Friedman that before approaching
the FCC, Friedman should speak with someone from Charter. The
lobbyist connected Friedman to Waldo McMillan (“McMillan”),
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Compass “not to go to the FCC because that would mess up the
merger,” and instead McMillan would put E.Singer in touch
with a senior executive at Charter. (Def. SUMF ¶ 38.)
Following through on his promise, McMillan arranged for
E.Singer to speak to A.Singer again. On the morning of
unrecorded conversation with no one else on the line (the
“December 21 Call”). A.Singer understood Compass was seeking
an agreement from Charter to carry TJC as a linear channel,
and A.Singer asked E.Singer to describe the terms for such a
deal. The parties dispute which terms were discussed, but
they agree E.Singer asked A.Singer for a written contact and
A.Singer told E.Singer that he could not send one because he
did not know whether the merger would go through.
Friedman. According to Weiss, E.Singer stated that he and
A.Singer agreed to a contract for “five years” of linear
carriage of TJC. Weiss recounts that E.Singer told him the
launch timing “was something that had been left entirely
unclear,” but “[Charter] wouldn’t accelerate [launch] to 60
to 90 days.” (Id. ¶ 62.) Nevertheless, “[E.Singer] believed
[Compass] could still get 120 days possibly, but in any case,
six to nine months after the merger.” (Id.) Friedman similarly
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recalls that “one thing [E.Singer] was still waiting for was
an agreement on the launch date.” (Id. ¶ 63.)
document titled “The Jewish Channel Programmer Proposal to
Charter Communications” (the “Proposal”). The Proposal listed
a contract term of five years and included the following
statements: “Detailed terms to be defined in a contract
Communications will launch Programmer’s programming service
on all its systems, made available to all subscribers in the
subscribers on the launch date;” and Charter would launch TJC
“no later than 120 days after the closing of Charter’s merger
with Time Warner Cable.” (Id. ¶¶ 77–80.) The Proposal also
included a section heading titled “Rate Card” with a chart
underneath listing penetration rates, which are specific
rates dependent on the number of subscribers. The parties
agree E.Singer and A.Singer never discussed penetration-based
rates during the December 21 Call.
A.Singer forwarded the Proposal and Rate Card to other
Charter employees. In his cover email, A.Singer wrote, the
“[p]roposed agreement is not conditioned on close, assumes
approved and closes . . . I told [E.Singer] 120 days to launch
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would not [be] realistic post-close, asked for a year postclose to do this but suggested perhaps say commercially
reasonably efforts when [Charter] rebrand[s], no later than
6 months, ([E.Singer] did not like either apparently).” (Id.
On December 23, 2015, A.Singer responded to E.Singer’s
email. A.Singer told E.Singer “[t]o clarify, I believe you
understand it does not actually reflect all the points we
discussed, but thank you very much nonetheless.” (Id. ¶ 91.)
E.Singer responded on December 24, writing, “I really tried
to draft the document to incorporate the main points of our
conversation, and I thought I did.” (Id. ¶ 92.) E.Singer
stated that A.Singer could be referring only to the lack of
a most favored nation clause and timing for the launch of
TJC. E.Singer believed he had already addressed the launch
timing by proposing 120 days since A.Singer said 60 and 90
E.Singer’s December 24, 2015 email.
E.Singer later testified that as to the launch timing
term, “I remember specifically . . . [A.Singer] telling us
that 30 days would not be possible and 60 days would not be
possible and 90 days would be unlikely” and he “impl[ied]
that it would be a very busy time for them the first few
months . . . [after the merger closed] . . . which is why I
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put the term 120 days in there.” (“E.Singer Depo.,” Dkt. No.
97-2 at 32:11-25.) When pressed whether E.Singer and A.Singer
ever explicitly discussed the term of 120 days on the December
21 Call, E.Singer testified “I don’t recall specifically
whether we talked about 120 days.” (Id. at 34:4-8.)
A.Singer’s lack of response, Compass continued its lobbying
efforts by meeting with Congressional staff. On January 12,
2016, E.Singer emailed Friedman and stated:
I just wish we could turn up the volume on Charter
again. I feel like we’re so close to getting a
commitment from them. We’ve gotten agreement from
them on the two most important terms — 8 million
homes and $0.05 a month. They didn’t commit to a
launch date, so I don’t know if that means they’ve
committed. I’m afraid they need to commit to
someone like a political office that they’ll get
this done before I’ll say it makes sense to trust
(Def. SUMF ¶ 110.) Friedman and E.Singer then exchanged a
series of emails acknowledging Charter’s lack of commitment.
(Id. ¶¶ 113-15.)
On March 18, 2016, E.Singer emailed A.Singer and asked
for a phone call so that he could catch him up on some
developments. A.Singer did not respond, nor did he speak or
write to E.Singer after the December 2015 correspondence.
On May 10, 2016, the FCC issued an order approving
Charter’s merger with TWC, and six days later the merger
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closed. Charter began incorporating programming offered by
TWC but decided not to carry TJC. Compass subsequently filed
B. MOTION TO DISMISS ORDER
Charter moved previously to dismiss Compass’s breach of
contract and promissory estoppel claims. See Compass Prods.,
2019 WL 4198586, at *3. Charter’s main argument against the
breach-of-contract claim was that the parties never formed a
valid contract. Charter invoked the statute of frauds, a legal
principle that requires a contract that cannot be performed
within a year to be made in writing. See D&N Boening, Inc. v.
Kirsch Beverages, Inc., 472 N.E.2d 992, 993-94 (1984).
On August 8, 2019, the Court denied the motion as to
Complaint which, when read in favor of Compass, made the
statute of frauds inapplicable. See Compass Prods., 2019 WL
4198586, at **7-8. The Court found that if Compass viewed the
putative contract to embody an agreement by Charter to launch
and carry TJC, performance was possible within a year. On the
other hand, if the putative contract embodied an agreement by
obstacle to Compass’s breach of contract claim. The Court
gave Compass the benefit of the factual ambiguity in the
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Complaint and left the option open for Charter to renew the
statute of frauds defense upon a fuller evidentiary record.
As to Compass’s promissory estoppel claim, the Court
found that Compass’s allegations sufficed to establish a
prima facie case of promissory estoppel. See Compass Prods.,
demonstrated a clear and unambiguous promise by A.Singer
that, in return for Compass’s forbearance from lobbying the
FCC and in the event the merger were approved, Charter would
launch and carry TJC as a linear channel. The Court further
found that Compass adequately alleged reasonable reliance
upon that promise and reasonably refrained from lobbying the
FCC to Compass’s detriment -- Compass potentially lost a
valuable opportunity that may not arise again for some years
since Compass withheld lobbying the FCC after previously
failing at multiple attempts to convert TJC to a linear
channel through direct negotiation with cable operators.
claims for breach of contract and promissory estoppel at the
motion to dismiss stage, the Court allowed those claims to
proceed, and discovery ensued.
C. PARTIES’ ARGUMENTS
At this stage, Charter argues that Compass’s breach of
contract claim fails for four independent reasons. See “Def.
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Mem.,” Dkt. No. 83 at 14-26.) First, the parties did not agree
on all essential terms of a carriage deal. Second, the statute
of frauds bars enforcement of the alleged oral agreement.
Third, the parties clearly communicated their intent to be
fruition. And fourth, Compass has no evidence to substantiate
its alleged damages.
As for Compass’s promissory estoppel claim, Charter
argues it fails as a matter of law because, among other
carriage. (See Def. Mem. at 26-29.) Specifically, discovery
has proven that Charter never made a promise to carry TJC in
exchange for Compass refraining from lobbying the FCC. If any
promise was made in exchange for Compass not going to the
FCC, Charter avers, the promise was to arrange a call between
A.Singer and E.Singer, and that call occurred on December 21,
Compass opposes the Motion and contends that its breach
material fact. (See “Pl. Opp.,” Dkt. No. 92 at 9-23.) First,
essential terms of a standard carriage agreement, including
agreeing to a launch window of three to six months. Second,
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Compass contends that the statute of frauds does not apply
because its breach of contract claim is based on the agreement
for Charter to launch and carry TJC as a linear channel, which
could be performed within one year. Third, Compass claims
that neither side conditioned its agreement on a formal
reasonably accurate expectation damages.
Compass additionally argues that its promissory estoppel
substantial questions of fact surrounding Charter’s alleged
promise to Compass during the December 21 Call. (See Pl. Opp.
at 23-27.) Compass argues that even if A.Singer and E.Singer
did not make explicit reference to the FCC during the Call,
A.Singer agreed, on behalf of Charter, to carry TJC as long
as Compass did not approach the FCC for fear those efforts
could block the merger.
In connection with a motion for summary judgment under
Federal Rule of Civil Procedure 56, “[s]ummary judgment is
proper if, viewing all the facts of the record in a light
most favorable to the non-moving party, no genuine issue of
material fact remains for adjudication.” Samuels v. Mockry,
77 F.3d 34, 35 (2d Cir. 1996) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-50 (1986)). The role of a court
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in ruling on such a motion “is not to resolve disputed issues
of fact but to assess whether there are any factual issues to
be tried, while resolving ambiguities and drawing reasonable
inferences against the moving party.” Knight v. U.S. Fire
Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
The moving party bears the burden of proving that no
genuine issue of material fact exists or that, because of the
paucity of evidence presented by the nonmovant, no rational
jury could find in favor of the nonmoving party. See Gallo v.
Prudential Residential Servs., L.P., 22 F.3d 1219, 1223–24
(2d Cir. 1994). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
requirement is that there be no genuine issue of material
fact.” Anderson, 477 U.S. at 247–48.
In determining whether the moving party is entitled to
judgment as a matter of law, the court must “resolve all
ambiguities and draw all justifiable factual inferences in
favor of the party against whom summary judgment is sought.”
Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d
290, 309 (2d Cir. 2008). Though a party opposing summary
judgment may not “rely on mere conclusory allegations nor
speculation,” D’Amico v. City of New York, 132 F.3d 145, 149
(2d Cir. 1998), summary judgment is improper if any evidence
Case 1:18-cv-12296-VM-BCM Document 102 Filed 01/10/22 Page 13 of 22
in the record allows a reasonable inference to be drawn in
favor of the opposing party. See Gummo v. Village of Depew,
75 F.3d 98, 107 (2d Cir. 1996).
Charter moves for summary judgment on the two remaining
counts in this action -- breach of contract and promissory
estoppel. For the reasons discussed below, both claims fail
as a matter of law and summary judgment in favor of Charter
A. BREACH OF CONTRACT
Compass’s breach of contract claim fails because on the
record before it, the Court finds that the parties did not
agree on at least one essential term. To establish a breach
of contract under New York law, 2 a plaintiff must prove the
following elements: (i) the existence of a contract; (ii)
breach by the other party; and (iii) damages suffered as a
result of the breach. See First Inv’rs Corp. v. Liberty Mut.
Ins. Corp., 152 F.3d 162, 168 (2d Cir. 1998). Charter denies
that a contract with Compass ever existed. (See Def. Mem. at
As explained in the Court’s prior decision on Charter’s motion to
dismiss, New York law applies to this action predicated upon diversity
jurisdiction because neither party demonstrates a conflict with New York
law. See Compass Prods., 2019 WL 4198586, at *5 n.5 (citing Zervos v.
Trump, 94 N.Y.S.3d 75, 88 (App. Div. 1st Dep’t 2019); SNS Bank, N.V. v.
Citibank, N.A., 777 N.Y.S.2d 62, 64 (App. Div. 1st Dep’t 2004)).
Case 1:18-cv-12296-VM-BCM Document 102 Filed 01/10/22 Page 14 of 22
For a contract to exist, plaintiff must prove: (i) an
offer; (ii) acceptance; (iii) consideration; (iv) mutual
assent; and (v) mutual intent to be bound. See Register.com,
Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004). The
fundamental basis of a valid enforceable contract is a meeting
of the minds, and, if there is no meeting of the minds on all
essential terms, there is no contract. See Schurr v. Austin
Galleries of Ill., 719 F.2d 571, 576 (2d Cir. 1983).
Whether there has been a meeting of the minds on all
essential terms is a question of fact that must be resolved
by analyzing the totality of the circumstances. See United
States v. Sforza, 326 F.3d 107, 116 (2d Cir. 2003); see also
Bazak Int’l Corp. v. Tarrant Apparel Grp., 378 F. Supp. 2d
377, 389 (S.D.N.Y. 2005) (“To determine the presence of mutual
assent, . . . [t]he totality of parties’ acts, phrases and
expressions must be considered, along with the attendant
objectives they were striving to attain.” (internal quotation
marks and citations omitted)). If the Court finds substantial
assented to all material terms, then the Court can neither
find, nor enforce, a contract. See Schurr, 719 F.2d at 576;
see also Missigman v. USI Ne., Inc., 131 F. Supp. 2d 495, 506
(S.D.N.Y. 2001) (“If a contract is not reasonably settled in
Case 1:18-cv-12296-VM-BCM Document 102 Filed 01/10/22 Page 15 of 22
its material terms, there can be no legally enforceable
contract.”); Express Indus. & Terminal Corp. v. New York Dep’t
of Transp., 715 N.E.2d 1050, 1050 (1999) (“To create a binding
contract, there must be a manifestation of mutual assent
sufficiently definite to assure that the parties are truly in
agreement with respect to all material terms.”).
The question for the Court is whether the parties had a
“meeting of the minds” as to all essential terms of a carriage
deal. The parties do not dispute that launch timing is an
essential term of any binding carriage contract. (See Pl.
Opp. at 5 (“As discussed by Compass’ expert . . . in this
industry, there are three essential terms . . . a description
of the network’s genre and content, the launch tier and date,
and the license fee.”)); (Def. SUMF ¶ 160 (“Charter’s and
Compass’s industry experts agree that each of these three
terms is necessary in a carriage agreement.”)). What is in
dispute is whether Compass and Charter ever agreed on a window
of time to launch TJC as a linear channel.
Putting aside the question of whether a window of time,
rather than a date certain, 3 is sufficient to establish launch
E.Singer’s testimony makes clear, and Compass does not contest, that
E.Singer and A.Singer never agreed to a specific launch date. (See, e.g.,
E.Singer Depo. at 194:7-12, 222:6-10.) Rather, Compass contends that the
parties agreed to a launch window, which is an acceptable custom within
the industry. (See Pl. Opp. at 10.) The Court accepts Compass’s position
for purposes of this motion for summary judgment.
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timing, the Court finds that the totality of circumstances
demonstrates there was no meeting of the minds on any amount
of time to launch TJC, 4 much less the three-to-six-month
December 21 Call, A.Singer and E.Singer agreed to launch TJC
sometime between three and six months after the merger, which
is purportedly evidenced by A.Singer’s internal email, dated
December 22, 2015. (See Pl. Opp. at 10 (“[T]his internal
communication clearly shows that . . . the launch would take
place no later than 6 months after Charter’s rebrand.”));
(Dkt. No. 97-19.) A.Singer recounts in this internal email
that he told E.Singer “120 days to launch would not be
realistic” and instead he suggested “no later than 6 months.”
(Dkt. No. 97-19.) Compass uses this statement as alleged proof
that Charter agreed to launch TJC no later than six months
after the merger.
However, Compass ignores a crucial parenthetical in
A.Singer’s email accompanying his sixth month suggestion -“([E.Singer] did not like that either apparently).” (Id.) It
comes as no surprise that Compass avoids drawing attention to
this parenthetical in its opposition memorandum because this
Although the Court’s decision on Charter’s motion to dismiss left open
the possibility that the statute of frauds defense may pose an obstacle
for Compass, see Compass Prods., 2019 WL 4198586, at *6, the Court finds
that Compass’s breach of contract claim is premised on an alleged
agreement to launch TJC, which could be performed within a year.
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statement undermines the conclusion that on the December 21
deadline. Conceivably, A.Singer may have been willing to set
the six-month deadline, but this email, on which Compass
heavily relies, when examined in context and its full content
suggests that “apparently” E.Singer was not then ready to
agree to that material term. (Id.)
Compass’s witness testimony corroborates the lack of an
recounted the December 21 Call to two people -- Friedman and
Weiss -- neither of whom mentioned a launch window during
their testimony and in fact, contradicted such a finding.
efforts after the December 21 Call because he feared that
Compass “could push [the launch] up for six months to a year.”
(Dkt. No. 97-3, “Friedman Depo.,” at 158:10-19.) If the
parties had firmly agreed to a three-to-six month launch
window for TJC, there is no reason E.Singer would fear Charter
pushing the launch date to as much as one year post-merger.
Likewise, Weiss testified that E.Singer told him after
the December 21 Call that the “details of the launch date
which is to say was it 120 days, was it 150 days, 180 days,
nine months, yeah, that was still open to negotiation.” (Dkt.
No. 97-6, “Weiss Depo.,” at 61:3-6.) Nine months clearly does
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E.Singer, Friedman, nor Weiss testified that the parties
agreed to launch TJC within a specified window of time.
There also is no evidence that A.Singer agreed to three
months as the start of the possible launch window. It is
undisputed that A.Singer told E.Singer “30 days would not be
possible and 60 days would not be possible and 90 days would
be unlikely.” (Dkt. No. 97-2 at 32:11-25); (see also Dkt. No.
84-35 (“I put it in at 120 because you said 60 and 90 days
weren’t possible.”).) But, based on A.Singer’s statement that
90 days wasn’t “possible,” one cannot reasonably infer from
such rejection that he nonetheless had agreed to a time window
starting long after 90 days. (Id.) There is simply no evidence
to support Compass’s position that E.Singer and A.Singer
agreed that Charter would possibly launch TJC after three
In fact, the December 22, 2015 internal email from
A.Singer that Compass relies on to establish the six-month
launch window it claims contradicts the three-month threshold
–- A.Singer writes that he told E.Singer on the December 21
Call that “120 days to launch would not be realistic.” (Dkt.
No. 97-19.) If A.Singer thought four months was not realistic,
it is improbable that the parties would have agreed to a start
of the launch window in three months.
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considered Compass’s arguments, the Court finds that the
totality of the circumstances weighs heavily in favor of a
finding that Charter and Compass never agreed to the timing
of a launch window, and that no rational jury could conclude
otherwise. Because there was no meeting of the minds between
Compass and Charter on this essential term, no contract
Galleries of Ill., 719 F.2d 571, 576 (2d Cir. 1983) (applying
New York law).
B. PROMISORRY ESTOPPEL
Under New York law, the elements of a promissory estoppel
claim are: (1) a clear and unambiguous promise by defendant;
asserting the estoppel by reason of his reliance; and (3) an
injury sustained by the party asserting the estoppel by reason
of the party’s reliance. See Ripple’s of Clearview, Inc. v.
Le Havre Assoc., 452 N.Y.S.2d 447, 449 (App. Div. 2d Dep’t
1982), appeal denied 57 N.Y.2d 609.
The premise of Compass’s promissory estoppel claim is
[Compass] that if Compass did not talk directly with the FCC
about conditioning approval of the merger on linear carriage
of TJC, then [Charter] would give [Compass] a Linear channel
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at the Silver Tier.” (Compl. ¶ 147.) Compass contends that it
reasonably and foreseeably relied on this promise and did not
engage in communication with the FCC, to its detriment. 5
Unlike the procedure governing the motion to dismiss,
for which the Court was bound to accept the allegations in
before the Court shows no evidence to support Compass’s
allegations of a clear and unambiguous promise made by Charter
to give TJC a linear channel, as Compass claims. Although
McMillan, on behalf of Charter, asked Friedman for Compass to
refrain from lobbying the FCC, he promised a call between
Charter and Compass, not carriage, in return. (See Def. SUMF
¶38); (Friedman Depo. 88:24-89:10.) That call occurred on
December 21 between E.Singer
No clear and unambiguous promise by Charter for TJC
carriage in exchange for Compass refraining from approaching
Throughout his testimony, E.Singer gave contradictory and
ambiguous answers regarding whether on that Call A.Singer
The Court is not persuaded by Compass’s latest argument that Charter’s
alleged promise to carry TJC post-merger can be separated from the premise
of the promise that Compass would not approach the FCC. Beginning with
the Complaint, and continuing through Compass’s opposition memorandum
Compass filed in connection with the instant summary judgment motion,
Compass, to establish elements two and three of its promissory estoppel
claim, has relied on the premise that it agreed to refrain from lobbying
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ever explicitly promised a carriage deal in exchange for
E.Singer testified that he “divined” from certain statements
A.Singer made that “he really didn’t want [Compass] going to
the FCC.” E.Singer Depo. at 55:11-20. He added:
Well, it wasn’t like he asked the question, and we
answered the question in exchange for this, we will
do that. It was understood by me the way he started
the call . . . and then when he softened and he
said, he started offering us a carriage deal, I
understood it to mean, well obviously, if we are
offering you this carriage deal, you can’t go out
and . . . keep getting in the way of our merger.
Id. 62:15-63:3. At most, this testimony shows that E.Singer
approaching the FCC. But subjective assumptions and selfserving expectations do not equate to clear and unambiguous
Considering this testimony, and the paucity of evidence
presented by Compass to the contrary, the Court is not
persuaded that a rational jury could find the existence of a
clear and unambiguous promise made by Charter as Compass
alleges. Absent such a promise, Compass’s promissory estoppel
claim fails as a matter of law. See Gallo, 22 F.3d at 1223–
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Accordingly, for the reasons stated above, it is hereby
ORDERED that the motion (Dkt. Nos. 82-85) of defendant Charter
Communications, Inc. for summary judgment on Counts I and II
International, LLC (Dkt. No. 1-1) is GRANTED. The Clerk of
the Court is directed to terminate all pending motions and
close this case.
Dated: New York, New York
10 January 2022
VICTOR MARRERO, U.S.D.J.
VICTOR MARRERO, U.S.D.J.
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