The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
The present question before the Court is whether defendant DISH Network, L.L.C., ("DISH") may unilaterally implement a 60-month cap on the duration of certain payments owed to plaintiff CenturyLink, Inc. ("CenturyLink"). After careful consideration of the parties' respective interpretations of the Contract, I conclude that DISH may not.
In July 2012, I granted CenturyLink's motion for judgment on the pleadings and interpreted the Contract in CenturyLink's favor. See CenturyLink, Inc. v. DISH Network, L.L.C., 11 CIV. 5528 HB, 2012 WL 3100782 (S.D.N.Y. July 31, 2012). Familiarity with that Opinion and Order is assumed. In September 2012, after the parties appeared before me for a mediation to resolve outstanding damages and other issues, I invited the parties to brief the question of whether DISH may modify the Payment Standards in Schedule 9.8.1 to limit the duration of monthly incentive ("MI") payments to 60 months-a standard that DISH purportedly uses for its retailers generally.
The same standards for contract interpretation relied on in my earlier Opinion and Order apply here as well. If the Contract is clear and unambiguous, it must be enforced according to its terms. Otherwise, we are presented with a question of fact that I am unprepared to, but need not, address at this time.*fn1
The following standards are currently employed by [DISH] for the payment of Incentives. [DISH] reserves the right, in its sole discretion, to extend and/or modify these standards from time to time, provided that [DISH] will use the same standards that it uses for retailers, generally.
Activation Incentives and Promotional Compensation
Payment of Activation Incentives or Promotional Compensation will be made in accordance with the following standards: . . .
Payment of [MIs] will be made in accordance with the following standards: Each Qualified Subscriber account must have been authorized to receive Qualified Programming for twenty-eight (28) days within a given month in order to be eligible for [MIs]. [MIs] pay forty-five (45) days from the last day of the qualifying month (on or around the 15th of each month). For example, January [MIs] pay forty-five (45) days from the last day in January (the 31st) which would be approximately March 15th.
Provided [CenturyLink] has reached the [MI] activation minimum (1 activation), payment of [MIs] to [CenturyLink] will commence when and for such times as [MIs] payable to ...