                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       August 8, 2012
                                        PUBLISH                     Elisabeth A. Shumaker
                                                                        Clerk of Court
                       UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT


 GOL TV, INC., a Florida corporation,
               Plaintiff–Appellee,                          No. 10-1435
        v.
 ECHOSTAR SATELLITE
 CORPORATION, a Colorado
 corporation; ECHOSTAR SATELLITE,
 L.L.C., a Colorado limited liability
 company, n/k/a/ Dish Network, LLC,
               Defendants–Appellants.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLORADO
                      (D.C. No. 1:08-CV-02143-PAB-MJW)


Stewart McNab of Carver Schwarz McNab & Bailey, LLC, Denver, Colorado, for
Defendants–Appellants.

Christopher P. Beall of Levine Sullivan Koch & Schulz, L.L.P., Denver, Colorado, for
Plaintiff–Appellee.


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.


McKAY, Circuit Judge.



      This is a corporate breach-of-contract case involving licensing fees for television

programming. The specific disputes in this case involve two separate issues: (1) the
calculation of licensing fees for the final ten days of the contract period, and (2) the

accrual of interest for overdue payments.

                                       BACKGROUND

       Plaintiff Gol TV produces soccer-related television programming, while

Defendants EchoStar Satellite Corporation and EchoStar Satellite L.L.C. (now known as

DISH Network) distribute television programming to individual viewers via satellite.

From February 1, 2003, until August 1, 2008, Gol TV’s programming was made available

to subscribers of certain EchoStar service packages in exchange for EchoStar’s payment

to Gol TV of contractually determined licensing fees. Section 5.1.1 of the contract

explained the monthly licensing fee would include:

       An amount derived by multiplying the average Residential Service
       Subscribers by the applicable monthly per Residential Service Subscriber
       License Fee (as specified in Exhibit B hereto). The average Residential
       Service Subscribers for any given reporting month shall be calculated by
       adding the number of Residential Service Subscribers authorized to receive
       the Programming Service on the last day of the reporting month and the
       number of Residential Service Subscribers authorized to receive the
       Programming Service on the last day of the prior reporting month, and
       dividing the resulting sum by 2.

(Appellants’ App. at 242.) Although the contract did not define what was meant by the

phrase “reporting month,” EchoStar consistently calculated payments based on a

reporting month that ran from the twenty-second day of one calendar month to the

twenty-first day of the next month.

       When the contractual arrangement terminated on August 1, 2008, EchoStar was

several months in arrears on its payments. In September 2008, Gol TV sent EchoStar a

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demand letter requesting payment of the overdue amounts, but EchoStar still failed to

make any payment. On October 3, 2008, Gol TV filed a federal complaint on the basis of

diversity jurisdiction, raising claims of breach of contract and quantum meruit. More

than one month later, on November 17, 2008, EchoStar finally paid Gol TV the overdue

amounts for the period between March 22 and July 21. For the final ten days of the

contract, however, EchoStar paid Gol TV only $38,724.42, less than one-sixth of the

amount EchoStar paid for each of the preceding full reporting months. To reach this

figure, EchoStar calculated the “average Residential Service Subscribers” under the

contract by adding the number of subscribers on July 21 (1,397,520) to the number of

subscribers on August 21 (zero) and dividing by two. After thus effectively cutting in

half the true average number of subscribers during the service period, EchoStar then

further reduced its calculated fee payments by dividing the applicable per subscriber

license fee by thirty-one and multiplying by ten. EchoStar argued it was permitted to

prorate the per subscriber fee in this fashion to reflect the partial month of service, since

the contract described this fee as a “monthly” fee.

       On cross motions for summary judgment, the district court held that EchoStar

correctly calculated the “average Residential Service Subscribers” according to the

contractual formula. The court held, however, the contract did not permit EchoStar to

additionally prorate the monthly per subscriber license fee. The court thus held that

EchoStar should have paid Gol TV $81,318.43 for the final ten days of the contract

period.

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       The court additionally held that EchoStar owed Gol TV interest for its late

payments of licensing fees for the reporting periods between March 21 and July 31. The

court rejected EchoStar’s argument that interest only began to accrue after Gol TV sent its

September demand letter, since the contract did not make the accrual of interest

conditional on a formal demand of interest. Pursuant to the contractual language, the

court held that interest began to accrue forty-five days after the end of each reporting

month. This interpretation resulted in a further award of $57,442.55 in interest.

                                        DISCUSSION

       We review the district court’s summary judgment decision de novo, applying the

same standards as the district court. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,

670 (10th Cir. 1998). The parties agree that our interpretation of the contract in this

diversity case is governed by Colorado law. Under Colorado law, “a contract must be

construed to ascertain and effectuate the intent of the parties as determined primarily from

the language of the contract.” East Ridge of Fort Collins, LLC v. Larimer & Weld

Irrigation Co., 109 P.3d 969, 974 (Colo. 2005). “To determine the intent of the parties,

the court should give effect to the plain and generally accepted meaning of the contractual

language.” Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692, 697 (Colo. 2009).

Unless the contract is ambiguous, extrinsic evidence cannot be used to vary the terms of a

written contract. See Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154

(10th Cir. 2008). However, a court may conditionally admit extrinsic evidence to

determine whether the contract is in fact ambiguous. See id. In general, a court “should

                                             -4-
not allow a hyper-technical reading of the language in a contract to defeat the intentions

of the parties,” Ad Two, Inc. v. City & Cnty. of Denver, 9 P.3d 373, 377 (Colo. 2000), and

“[a]n interpretation which makes the contract or agreement fair and reasonable will be

preferred to one which leads to a harsh or unreasonable result.” Hutchinson v. Elder, 344

P.2d 1090, 1092 (Colo. 1959).

       We first consider whether the district court correctly interpreted Section 5.1.1. of

the contract to permit EchoStar to calculate the “average Residential Service Subscribers”

using an end count of zero. As previously stated, Section 5.1.1 provides in relevant part:

       The average Residential Service Subscribers for any given reporting month
       shall be calculated by adding the number of Residential Service Subscribers
       authorized to receive the Programming Service on the last day of the
       reporting month and the number of Residential Service Subscribers
       authorized to receive the Programming Service on the last day of the prior
       reporting month, and dividing the resulting sum by 2.

(Appellants’ App. at 242.) In the district court proceedings, Gol TV argued the phrase

“reporting month” effectively meant “reporting period,” whatever the duration of that

period might be. Gol TV thus contended the final reporting month of the contract was the

ten-day period between July 22 and July 31, meaning the “average Residential Service

Subscribers” should have been calculated by adding the number of subscribers on July 21

to the number of subscribers on July 31, then dividing by two. However, we agree with

the district court that the “plain and generally accepted meaning,” Copper Mountain, 208

P.3d at 697, of the term “month” is a period of approximately thirty days, not any period

of undetermined duration. See, e.g., Webster’s II New College Dictionary 711 (1995)


                                             -5-
(listing several definitions of the term “month,” all of which describe a period of time

somewhere between twenty-seven and thirty-one days long). The extrinsic evidence cited

by Gol TV does not indicate the term “reporting month” as used by the parties was

ambiguous and could have referred to a time period other than the commonly understood

meaning of the word “month.” Nor are we persuaded by Gol TV’s alternative argument

on appeal that EchoStar should have used the average number of subscribers authorized

to receive the service packages that had previously included Gol TV’s programming. The

plain language of the contract ties the calculation of the average to the number of

subscribers “authorized to receive the Programming Service [i.e., Gol TV] on the last day

of the reporting month.” (Appellants’ App. at 242.) While it is true that “average

Residential Service Subscribers” calculated in this fashion underestimates the true

average number of subscribers by approximately fifty percent when service stops or starts

within a reporting month, this is what the unambiguous language of the contract requires.

       However, we agree with the district court that EchoStar was not permitted to

additionally prorate the “monthly per Residential Service Subscriber License Fee” that is

multiplied by the “average Residential Service Subscribers” to determine the licensing

fees owed under the contract each month. The contract nowhere provides for proration of

this monthly per subscriber fee. We are not persuaded by EchoStar’s argument that the

word “monthly” inherently authorizes proration in order to reflect the fact that service

was not provided for the entire reporting month. The contract already contains a

mechanism for accounting for partial months of service, since the calculation of “average

                                            -6-
Residential Service Subscribers” effectively cuts the licensing fee in half for any partial

month of service. There is no reason to find an implied right to proration to account for

partial months when the contract already contains an explicit mechanism for doing so.

Indeed, finding such an implied right would lead to a harsh and unreasonable result, since

it would essentially permit EchoStar to obtain a double discount on licensing fees

whenever service starts or stops during a reporting month. We are also unpersuaded by

EchoStar’s argument that extrinsic evidence of the parties’ course of conduct during the

contractual period reveals an ambiguity in this term. The other instances of rate

adjustments over the course of the contract differed from this situation in material

respects and do not suggest any ambiguity in the phrase “monthly per Residential Service

Subscriber License Fee.” We conclude that the plain language of the contract does not

allow EchoStar to prorate the per subscriber fee for partial months of service. We

therefore affirm the district court’s holding that EchoStar owed Gol TV $81,318.42 for

the final ten days of the contract period.

       We turn now to the question of the accrual of interest. The contract provides in

pertinent part:

       5.1 Rates and Payments. On or before the 45th day following the last day
       of each reporting month during the Term, EchoStar will pay to Network
       [i.e., Gol TV], at the address specified by Network, a license fee equal to
       the sum of the following 5.1.1. through 5.1.3. In the event that payments
       are not received by Network within forty-five (45) days after the end of the
       month for which payment is due, then Network may, in addition to any
       other rights or remedies that it may have, charge interest at a rate equal to
       the lesser of one percent (1%) per month or the maximum legal rate permitted under Colorado law


                                             -7-
(Appellants’ App. at 242.) EchoStar argues interest does not automatically accrue under

the contract because this provision states Gol TV “may . . . charge” interest, and thus

interest only began to accrue when Gol TV stated in its September 2008 demand letter

that it would be charging interest for EchoStar’s overdue payments. However, the

contract’s permissive language simply means that Gol TV may exercise its discretion not

to demand the payment of interest for overdue payments. It does not mean the accrual of

interest is conditional on Gol TV making a formal demand for interest. Nothing in the

contract requires a formal demand of interest, nor does the contract tie the calculation of

interest to the date of such a demand. Under the plain terms of the contract, we agree

with the district court that interest began accruing for each late payment forty-five days

after each payment was due.

                                       CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s decision.




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