CBS v. Primetime 24 Joint Venture

[PUBLISH]

\
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
MAR 26, 2001
Nos. 98-4945, 98-5082, 98-5582, 99-10177,THOMAS K. KAHN
CLERK
99-14039, 99-14040 and 00-10386
___________________________
D.C. Docket No. 96-03650-CV-LCN

CBS, INC., FOX BROADCASTING CO., et al.,

Plaintiffs-Appellees,

versus

PRIMETIME 24 JOINT VENTURE,

Defendant-Appellant.

____________________________

Appeals from the United States District Court
for the Southern District of Florida
____________________________
(March 26, 2001)

Before ANDERSON, Chief Judge, CARNES and OAKES*, Circuit Judges.
CARNES, Circuit Judge:

*
Honorable James L. Oakes, U.S. Circuit Judge for the Second Circuit, sitting by
designation.
 This copyright infringement action was brought against PrimeTime 24 Joint

Venture (“PrimeTime”), a satellite television carrier, by four major television

networks, four associations representing the networks’ local affiliates, and four

corporations owning affiliates. After the plaintiffs proved at trial that PrimeTime

had unlawfully distributed copyrighted network programming to satellite dish

subscribers who were not authorized to receive such programming by virtue of the

statutory, compulsory license under which PrimeTime was operating, the district

court entered a permanent injunction against PrimeTime requiring it to terminate

the transmission of such programming to unauthorized subscribers.

Thereafter, Congress passed the Satellite Home Viewer Improvement Act of

1999 (“Improvement Act”), Pub. L. No. 106-113, § 1001, et seq., 113 Stat. 1537,

515 (1999) which contained a “grandfather” clause permitting PrimeTime and

other satellite carriers to continue transmitting network broadcasting to satellite

dish owners who had received a particular type of transmissions before “any

termination” of such transmissions occurring prior to October 31, 1999. Id. § 1005

(a)(2)(B)(iii). Because of this clause, which was codified as 17 U.S.C. §

119(a)(2)(B)(iii), the district court entered an order modifying the permanent

injunction. PrimeTime brought this appeal because it contends that the

modifications to the injunction did not go far enough.

2
 The specific issue this appeal presents is whether the Improvement Act’s

“any termination” language includes voluntary as well as involuntary terminations

of transmissions. The more general and fundamentally important issue is whether

the plain meaning of statutory language trumps contrary legislative history. We

answer both questions in the affirmative. As a result, we vacate the district court’s

December 16, 1999 order modifying the injunction against PrimeTime and remand

for further modification of the injunction.

I. BACKGROUND

The plaintiffs in this case are four television networks (CBS Broadcasting,

Inc.; Fox Broadcasting Co.; ABC, Inc.; and the National Broadcasting Company),

four trade associations comprised of stations affiliated with the networks, and four

corporations which own local broadcast stations affiliated with CBS. (We will

refer to the plaintiffs collectively, as “the Networks.”) PrimeTime is a satellite

television carrier which transmits programming to subscribers who own or rent

satellite dishes. As a result of the Satellite Home Viewer Act (“SHVA”), 17

U.S.C. § 119, PrimeTime received a compulsory, statutory copyright license to

transmit network programming to viewers who are “unserved” by over-the-air

network broadcasters. The SHVA defined the meaning of “unserved households”

by reference to an objective level (Grade B) of signal intensity.

3
 The Networks brought this action against PrimeTime in 1996, asserting that

it had infringed the Networks’ copyrights by transmitting network material to

individuals who did not fit within the SHVA’s definition of “unserved.” They

alleged that PrimeTime had improperly relied on individual subscribers’ subjective

representations concerning their picture quality and signed up large numbers of

subscribers who were not eligible to receive network programming from a satellite

carrier. In March 1997, the Networks moved for a preliminary injunction, and

after finding that PrimeTime had ignored the objective standard set out in the

statute for determining unserved households, the district court entered a

preliminary injunction against it in July 1998. That injunction prohibited

PrimeTime from signing up any new “illegal” customers and ordered it to

terminate transmissions to existing illegal customers within 90 days. Thereafter,

the parties agreed to a number of extensions of the deadline for terminating illegal

subscribers, and those extensions were embodied in court orders modifying the

preliminary injunction.

In December 1998, following a full trial, the district court issued a final

judgment and permanent injunction in favor of the Networks. The permanent

injunction required that the transmission of network broadcasting to illegal

subscribers signed up during the pendency of the motion for an injunction to be

4
terminated by February 28, 1999, and that the transmission to subscribers signed

up before the motion was filed to be terminated by April 30, 1999. PrimeTime

carried out the February 1999 terminations. Before the next deadline, however, the

parties agreed to postpone the remaining terminations until June 30 and December

31, 1999.

The statutory license provided by the SHVA was scheduled to expire at the

end of 1999. Throughout that year Congress considered an extension of, and

changes to, the statutory license. After both houses of Congress passed differing

bills amending the SHVA, a conference committee negotiated what became the

Improvement Act. Congress passed the Improvement Act in November 1999, and

the President signed the bill into law on November 29, 1999.

One of the provisions of the Improvement Act “grandfathered” in the

transmission of network broadcasting by satellite carriers to C-band subscribers,1

even if those subscribers did not fit within the statutory license’s definition of

“unserved households.” Improvement Act § 1005(a)(2)(B)(iii), 113 Stat. 1537,

1
C-band refers to older, outmoded satellite equipment (which use 5-foot, rotating dishes).
The newer technology is referred to as “DBS.” At the time this action was brought, PrimeTime
transmitted to DBS and to C-band subscribers, but by November 1999, it only transmitted
network broadcasting to C-band customers. This appeal involves only transmissions to C-band
customers by satellite television carriers.

5
520 (codified at 17 U.S.C. § 119(a)(2)(B)(iii)). This provision, which is the

subject of this appeal, states that:

The limitations of clause [17 U.S.C. § 119(a)(2)(B)(i), which limits
the compulsory license to “unserved households” as defined by the
statute,] shall not apply to any secondary transmissions by C-band
services of network stations that a subscriber to C-band service
received before any termination of such secondary transmissions
before October 31, 1999.

Id. (emphasis added). Congress also provided that C-band subscribers who were

receiving network broadcasting as of October 31, 1999 could continue to receive

such broadcasting.

In light of the grandfather clause, PrimeTime moved the district court to

modify the permanent injunction in order to permit PrimeTime to transmit network

broadcasting to C-band subscribers falling within the scope of the clause.

PrimeTime argued that in light of the grandfather clause, it should be permitted to

transmit network broadcasting to any C-band dish owner whose service had

previously been terminated, regardless of whether the service had been terminated

voluntarily (service was canceled at the subscriber’s request or as a result of the

subscriber’s failure to pay) or involuntarily (service was canceled pursuant to court

order or as a result of a network’s challenge to the eligibility of a subscriber). In

support of its position PrimeTime focused on the fact that the grandfather clause

refers to “any termination.”

6
 The Networks countered by arguing that the grandfather clause was only

intended to permit transmission to C-band subscribers whose service had been

terminated involuntarily, either as a result of court orders or as a result of previous

challenges to eligibility. They argued that the phrase “any termination” in the

grandfather provision was intended to refer to, and was “shorthand” for, the

transmission cutoffs prompted by the district court’s injunction. In support of their

argument, the Networks quoted several statements from members of Congress,

from the district court, and from others in which the word termination was used in

reference to the court-ordered cutoffs. The Networks noted that the statute was

passed in the context of a so-called “cutoff crisis” resulting from the public

backlash (partly as a result of PrimeTime’s efforts) against the court-ordered

terminations. The Networks relied heavily on the Conference Report’s description

of this section of the Improvement Act which stated that:

Section 1005(a)(2) of this Act creates a new section 119(a)(2)(B)(iii)
of the Copyright Act to permit continued delivery by means of C-band
transmissions of network stations to C-band owners who received
signals of the pertinent network on October 31, 1999, or were recently
required to have such service terminated pursuant to court orders or
settlements under section 119.

Conference Report to the Improvement Act, 145 Congressional. Rec. H11792,

H11794 (daily ed. Nov. 9, 1999).

7
 After considering the parties’ arguments concerning the scope of the

grandfather clause, the district court noted that:

Now, I’ve read and reread this statute and I don’t think I understand it
too well insofar as it’s written. It’s not a model of clarity. However, I
have received some comfort from reading the conference report,
which I think is clearer.

The court then stated that “[t]he statute could have said very easily any subscriber

who received network programming at any time, and they didn’t say it.” The court

held that the § 1005(a)(2)(B)(iii) grandfather clause was only applicable to those

subscribers whose service had been involuntarily terminated as a result of court

orders. Consequently, the court amended its permanent injunction to state that:

PrimeTime 24 shall not be prohibited by this Order from delivering,
through C-band services, any network station . . . to:

(a) a C-band dish at a household that received any ABC,
CBS, Fox, or NBC station . . . from PrimeTime 24 by C-band services
as of October 30, 1999, or

(b) a C-band dish at a household that received any ABC,
CBS, Fox, or NBC station . . . from PrimeTime 24 by C-band services
before October 31, 1999 and who had such service terminated
pursuant to court order.

PrimeTime appealed, challenging the district court’s interpretation of §

1005(a)(2)(B)(iii) of the Improvement Act.

8
 II. DISCUSSION

The sole issue before us is whether the § 1005(a)(2)(B)(iii) grandfather

provision of the Improvement Act extends to all C-band satellite subscribers whose

service was terminated before October 31, 1999, or only to those whose service

was involuntarily terminated.

A. THE PLAIN MEANING OF THE STATUTE

This Court has repeatedly stated that “[w]e begin our construction of [a

statutory provision] where courts should always begin the process of legislative

interpretation, and where they often should end it as well, which is with the words

of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000)

(en banc). We have also said just as frequently that “[w]hen the import of words

Congress has used is clear . . . we need not resort to legislative history, and we

certainly should not do so to undermine the plain meaning of the statutory

language.” Id. at 976. In other words, “[w]hen the words of a statute are

unambiguous, then, this first canon [of statutory construction] is also the last:

judicial inquiry is complete.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186

(11th Cir. 1997) (citation omitted). The rule is that “we must presume that

Congress said what it meant and meant what it said.” United States v. Steele, 147

9
F.3d 1316, 1318 (11th Cir. 1998) (en banc) (citing Connecticut Nat’l Bank v.

Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149 (1992)).

The Supreme Court has similarly stated that “[g]iven [a] straightforward

statutory command, there is no reason to resort to legislative history.” United

States v. Gonzales, 520 U.S. 1, 6, 117 S. Ct. 1032, 1035 (1997); accord, Circuit

City Stores, Inc. v. Adams, ___ U.S. ___, ___ S. Ct. ___ , ___ (2001) (“As the

conclusion we reach today is directed by the text of § 1, we need not assess the

legislative history of the . . . provision.”). Even where “[t]here are . . . contrary

indications in the statute’s legislative history . . . we do not resort to legislative

history to cloud a statutory text that is clear.” Ratzlaf v. United States, 510 U.S.

135, 147, 114 S. Ct. 655, 662 (1994). “We do not start from the premise that [the

statutory] language is imprecise. Instead, we assume that in drafting legislation,

Congress said what it meant.” United States v. LaBonte, 520 U.S. 751, 757, 117 S.

Ct. 1673, 1677 (1997). Likewise, we assume the Supreme Court, in saying that,

said what it meant.

Our first task in deciding this case, then, is to determine whether the plain

meaning of the Improvement Act’s § 1005(a)(2)(B)(iii) grandfather clause, and in

particular its phrase “any termination,” is apparent. “In the absence of a statutory

definition of a term, we look to the common usage of words for their meaning.”

10
Consolidated Bank, N.A. v. United States Dep’t of Treasury, 118 F.3d 1461, 1464

(11th Cir. 1997). See also In re Griffith, 206 F.3d 1389, 1393 (11th Cir. 2000) (en

banc) (“In interpreting the language of a statute, we generally give the words used

their ordinary meaning.”) (citations and quotations omitted).

In order to determine the common usage or ordinary meaning of a term,

courts often turn to dictionary definitions for guidance. See, e.g., Gonzales, 520

U.S. at 5, 117 S. Ct. at 1035; Harris, 216 F.3d at 973. Employing this approach

confirms our common sense impression that the ordinary meaning of the phrase

“any termination” is plain and apparent. The word “termination” is defined as

follows:

1. The act of terminating or the condition of being terminated. 2.a.
The end of something in time; the conclusion. b. An end of something
in space; a limit or an edge. 3. A result; an outcome.

American Heritage College Dictionary 1399 (3d ed. 1993). The word “terminate”

has the following definition:

1. To bring to an end or a halt. 2. To occur at or form the end of;
conclude. 3. To discontinue the employment of; dismiss. – intr. 1. To
come to an end. 2. To have as an end or a result.

Id. There is no ambiguity in the word “termination.” The ordinary meaning of that

word includes voluntary terminations as plainly as it does involuntary terminations.

The Networks do not dispute that, and admit in their brief that their interpretation

11
of the statute is contrary to the “literal application of the statute according to the

dictionary terms.” The fact that the Networks have to write into the statutory

phrase the limiting adjective “involuntary” in order to express what they think

Congress intended is further proof that the plain meaning of what Congress

actually said is against their position. What Congress actually did, of course, is

choose an expansive modifier – the word “any” – instead of a restrictive one.

Both the Supreme Court and this Court have had occasion to consider the

meaning of the word “any.” In Gonzales, the Supreme Court noted that “[r]ead

naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind.’” 520 U.S. at 5, 117 S. Ct. at 1035 (quoting

Webster’s Third New Int’l. Dictionary 97 (1976)). The Court noted that in the

absence of “any language limiting the breadth of that word,” it must be read as

referring to all of the subject that it is describing. Id.

Similarly, this Court has held that “the adjective ‘any’ is not ambiguous; it

has a well-established meaning.” Merritt, 120 F.3d at 1186. See also Lyes, 166

F.3d at 1337 (same). As we have said before, because “‘Congress did not add any

language limiting the breadth of that word,’ . . . ‘any’ means all.” Merritt, 120

F.3d at 1186 (quoting Gonzales, 520 U.S. at 5, 117 S. Ct. at 1035)). See also Lyes

v. City of Riviera Beach, 166 F.3d 1332 (11th Cir. 1999) (en banc) (same); United

12
States v. Castro, 837 F.2d 441, 445 (11th Cir. 1988) (concluding that “any” meant

“every” or “all”). “This long history of established meaning is important, because

we readily presume that Congress knows the settled legal definition of the words it

uses, and uses them in the settled sense.” Harris, 216 F.3d at 974. It is beyond

reasonable dispute that if plain meaning and common usage are the guide, as they

should be, the phrase “any termination” in the Improvement Act’s §

1005(a)(2)(B)(iii) grandfather clause means all terminations of any kind, not just

involuntary terminations such as those resulting from court orders.

The Networks dress up another kind of argument in “plain meaning” clothes

by urging us to view the text of the statute against the backdrop of the “cutoff

crisis,” and say that if we do so we will see that the legislators used the word

“termination” as shorthand for involuntary cutoffs. 2 It follows, they contend, that

2
According to the Networks, PrimeTime and its allies engaged in a campaign to stir up a
public outcry against the district court’s injunction requiring termination of the illegal
transmission of network broadcasting. It was the resulting public reaction, the Networks claim,
which brought the issue of the termination of network programming by satellite carriers to the
attention of Congress and resulted in the Improvement Act’s grandfather provision which is the
subject of this appeal. It follows, the Networks say, that the meaning of the grandfather clause
can best be understood against that background, which, they say, was one of protest against
involuntary terminations.

Although we decline the invitation to consider the legislative history of the Improvement
Act, we pause to point out that while it seems likely that Congress was concerned with, and
perhaps even primarily concerned with, the termination of network broadcasting resulting from
court orders when it included the § 1005(a)(2)(B)(iii) grandfather clause in the Improvement
Act, none of the legislative history pointed out by the Networks establishes that concern was the
exclusive purpose for the provision. Where there exists “straightforward language . . . [w]e
cannot read the lack of specific legislative history confirming one possible application of a single

13
the “plain meaning” of the phrase actually supports their position that “any

termination” does not really mean any termination but only involuntary

terminations. But the plain meaning clothes do not fit that argument. It is not a

plain meaning argument, but instead an argument that we should depart from the

plain meaning of the words Congress chose in favor of what we might divine from

the surrounding circumstances that it really meant. 3

provision in an enormous statutory structure to signify Congressional intent to exclude such an
application.” Blue Cross and Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir.
1990). The reason is that “it is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.” Lyes, 166 F.3d at 1338 (quoting Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 1002 (1998)).
3
The Supreme Court has recently reminded us that perceptions about the circumstances
giving rise to legislation, or about private interest groups’ roles in lobbying for or against
legislation, provide a dubious basis from which to infer legislative intent. As the Court
explained:

Legislative history is problematic even when the attempt is to draw inferences
from the intent of duly appointed committees of the Congress. It becomes far
more so when we consult sources still more steps removed from the full Congress
and speculate upon the significance of the fact that a certain interest group
sponsored or opposed particular legislation. . . . We ought not attribute to
Congress an official purpose based on the motives of a particular group that
lobbied for or against a certain proposal – even assuming the precise intent of the
group can be determined, a point doubtful both as a general rule and in the instant
case. It is for the Congress, not the courts, to consult political forces and then
decide how best to resolve conflicts in the course of writing the objective
embodiments of law we know as statutes.

Circuit City, ___ U.S. at ___, ___ S. Ct. at ___ (citations omitted). We are not persuaded by the
Networks’ arguments based upon the events leading to the enactment of the grandfather
provision or PrimeTime’s role in lobbying for that provision.

14
 The “plain” in “plain meaning” means that we look to the actual language

used in a statute, not to the circumstances that gave rise to that language. Our

decisions back that up, requiring that ambiguity in statutory language be shown

before a court delves into legislative history. See, e.g., Harris, 216 F.3d at 976

(“When the import of the words Congress has used is clear, as it is here, we need

not resort to legislative history, and we certainly should not do so to undermine the

plain meaning of the statutory language.”); United States v. Veal, 153 F.3d 1233,

1245 (11th Cir. 1998) (“Review of legislative history is unnecessary unless a

statute is inescapably ambiguous.” (citation and quotation omitted)). The Supreme

Court’s decisions establish the same thing. See Circuit City, ___ U.S. at ___, ___

S. Ct. at ___ (where the meaning of a provision can be drawn from the text of a

statute, there is no need to assess the legislative history of the provision);

Gonzales, 520 U.S. at 6, 117 S. Ct. at 1035 (same); Ratzlaf, 510 U.S. at 147-48,

114 S. Ct. at 662 (“There are, we recognize, contrary indications in the statute’s

legislative history. But we do not resort to legislative history to cloud a statutory

text that is clear.”). Any ambiguity in the statutory language must result from the

common usage of that language, not from the parties’ dueling characterizations of

what Congress “really meant.” Where the clear and unambiguous language of a

15
statute provides a bridge to Congress’ intent, we need not and will not wade into

the brackish waters of legislative history.4

Even where the statutory language is not entirely transparent, which we

believe the provision at issue in this case is, the Court has tools at its disposal for

elucidating the meaning of a statute without reverting to legislative history. These

tools are the canons of construction. The canons of construction are “interpretative

tools, . . . which ‘are no more than rules of thumb that help courts determine the

meaning of legislation.’” Griffith, 206 F.3d at 1393 (citation omitted). The canons

assist the Court in determining the meaning of a particular statutory provision by

focusing on the broader, statutory context. See, e.g., DBB, 180 F.3d at 1281

(noting that canons allow courts to avoid “look[ing] at one word or term in

isolation, but instead [allows us to] look to the entire statutory context”).

One benefit of applying canons of construction, rather than considering

legislative history, is that their application does not require resort to extrinsic

material. Instead, the canons of construction focus on the text actually approved

by Congress and made a part of our country’s laws. As the Supreme Court’s recent

4
Our decision in United States v. DBB, Inc., 180 F.3d 1277, 1281-82 (11th Cir. 1999),
which the Networks rely upon, is not to the contrary. There we found the term “restraining
order” to be ambiguous only after noting that, consistent with common usage and dictionary
definitions, the phrase could refer either to a temporary restraining order or, more generally, to
other forms of injunctive relief. Id. at 1282. The finding of ambiguity in DBB was in no way
based upon legislative history, but instead arose from the common usage of the term.

16
opinion in Circuit City confirms, where the meaning of a statute is discernible in

light of canons of construction, we should not resort to legislative history or other

extrinsic evidence.5 Canons of construction are essentially tools which help us to

determine whether the meaning of a statutory provision is sufficiently plain, in

light of the text of the statute as a whole, to avoid the need to consider extrinsic

evidence of Congress’ intent.6

Application of canons of construction bolster our conclusion in this case that

the phrase “any termination” is not limited to involuntary terminations resulting

from court orders. One canon recognized by the Supreme Court is that “[w]here

Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” Russello v.

United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (citation and quotations

omitted). Also, “[w]here Congress knows how to say something but chooses not to,

5
In Circuit City, the Court applied the canons of construction to a provision of the Federal
Arbitration Act. ___ U.S. at ___, ___ S. Ct. at ___. After ascertaining the meaning of the
provision through use of the canons, the Court stated that there was no need to consider the
legislative history of the provision. Id.
6
On occasion, this Court has referred to the plain meaning rule itself as a one of the
canons of construction. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185-86 (11th
Cir. 1997). While this may be true, we believe that the clear language of a statutory provision
holds a status above that of any other canon of construction, and often vitiates the need to
consider any of the other canons. Therefore, if the plain meaning rule is a canon of construction,
it is the largest caliber canon of them all.

17
its silence is controlling.” Griffith, 206 F.3d at 1394 (citation and quotations

omitted, alteration in original). In addition, “[a] term appearing in several places in

a statutory text is generally read the same way each time it appears.” Ratzlaf, 510

U.S. at 143, 114 S. Ct. at 660 (citation omitted).

Application of these canons further convinces us of the same conclusion

dictated by the plain meaning of the statutory phrase “any termination.” We find

significant Congress’ use of the word “terminated” elsewhere in a similar provision

in the same Act. In § 1005(c) of the Improvement Act, which is a separate

grandfather provision, Congress provided for the transmission of network

broadcasting to certain subscribers who “had satellite service . . . terminated after

July 11, 1998, and before October 31, 1999, as required by this section. . . . ”

Improvement Act § 1005(c), 113 Stat. 1537, 521 (emphasis added). This provision

apparently allows both C-band and DBS subscribers to receive network

broadcasting from satellite carriers until December 31, 2004 if they do not receive

an over-the-air network signal of Grade A intensity, which is a clearer signal than

the Grade B intensity used in the definition of “unserved households.” By

including the phrase “as required by this section” in the § 1005(c) grandfather

clause, Congress modified the word “termination” in that provision so that it refers

18
only to terminations required by the section of the SHVA governing the

compulsory license, 17 U.S.C. § 119.

So, Congress chose to modify and limit the word “termination” in another

grandfather clause in the same statute but not in the grandfather clause at issue in

this case. As we have explained before, “Congress’ clear ability to modify [a] term

. . . to indicate the type thereof in other instances . . ., and the fact that it did not do

so in the disputed phrase, indicates that it had no intention to so limit the term.”

Consolidated Bank, 118 F.3d at 1465. See also Gonzales, 520 U.S. at 5, 117 S. Ct.

at 1035 (finding significant that the word “any” was modified in one portion of the

statute, but not in another); Russello, 464 U.S. at 23, 104 S. Ct. at 300 (same).

Therefore, the canons of construction support our conclusion that the meaning of

the Improvement Act’s § 1005(a)(2)(B)(iii) grandfather clause is clear and

unambiguous. Because the plain meaning of the phrase “any termination” is

settled and clear – both on its face and in light of the canons of construction – the

Networks may only prevail if they show that an exception to the plain meaning rule

applies. We turn now to that question.

B. POSSIBLE EXCEPTIONS TO THE PLAIN MEANING RULE

19
 The Networks argue that even if we conclude that the plain meaning of the

term “any termination” includes voluntary ones – which we do – they should

prevail nonetheless. The Networks point to language from several of our cases

which indicates that we may “look beyond the plain language of a statute at

extrinsic evidence” if:

(1) the statute’s language is ambiguous; (2) applying it according to
its plain meaning would lead to an absurd result; or (3) there is clear
evidence of contrary legislative intent.

DBB, 180 F.3d at 1281. The Networks argue that each of these circumstances is

present in this case.

1. Ambiguity

The first of the supposed exceptions mentioned in the quotation from DBB

is really just a restatement of the plainness requirement of the plain meaning rule.

If the statutory language is ambiguous, its meaning is not plain. Stating that

ambiguity is an exception, instead of part of the predicate for the rule, merely

confuses things.

2. Contrary Legislative Intent

As for the third listed exception in the quote from DBB, it is merely dicta in

that case, and it is also contrary to the law of this Circuit. The statement in DBB

that clear evidence of legislative intent can control over the plain meaning of

20
legislative language is merely dicta, because the statutory language in that case was

found to be ambiguous, 180 F.3d at 1282, so the plain meaning rule did not apply

there for that reason. Even if that statement had been a holding of DBB, it would

not bind us, because there is binding precedent of both this Court and the Supreme

Court to the contrary.

Our en banc opinion in Harris, which the DBB panel was powerless to

overrule, does not say that if the meaning of a legislative provision is plain from

the language, we will still consider contrary legislative history provided that it is

really clear legislative history. Such an exception would have serious rule-

swallowing potential because it would require that legislative history always be

considered in order to determine whether there was “clear evidence of contrary

legislative intent.” DBB, 180 F.3d at 1281. Instead, the en banc Court meant it

when it said in Harris that:

When the import of the words Congress has used is clear, as it is here,
we need not resort to legislative history, and we certainly should not
do so to undermine the plain meaning of the statutory language.

Harris, 216 F.3d at 976. The Merritt panel, whose decision binds subsequent

panels including the one in DBB, also meant what it said: “When the words of a

statute are unambiguous, then, this first canon . . . is also the last: judicial inquiry

is complete.” Merritt, 120 F.3d at 1186 (quotation omitted). Likewise, we have

21
every reason to believe that the Supreme Court also meant what it said: “Given [a]

straightforward statutory command, there is no reason to resort to legislative

history,” Gonzales, 520 U.S. at 6, 117 S. Ct. at 1035, and “we do not resort to

legislative history to cloud a statutory text that is clear,” Ratzlaf, 510 U.S. at 147-

48, 114 S. Ct. at 662.

The reasons for refusing to give even clear legislative history more weight

than clear statutory language are sound. This Court has explained that “it is

ultimately the provisions of our laws rather than the principal concerns of our

legislators by which we are governed.” Lyes, 166 F.3d at 1338 (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 1002 (1998)).

When a statute is passed by Congress, it is the text of the statute, and not

statements put in some committee report or made on the floor – and certainly not

someone’s understanding of the circumstances which gave rise to the legislation –

that has been voted on and approved by the people’s elected representatives for

inclusion in our country’s laws. The language of our laws is the law.

Moreover, as Judge Harold Leventhal once observed, the use of legislative

history is akin to “entering a crowded cocktail party and looking over the heads of

the guests for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519, 113 S. Ct.

1562, 1567 (1993) (Scalia, J., concurring). This problem of subjectivity and

22
indeterminacy may be avoided (or at least minimized) by focusing not on

legislative history, but instead on the text of a statute, which is “the result of

innumerable compromises between competing interests reflecting many competing

purposes and goals.’” Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d

235, 238 (11th Cir. 1995). The statutory language itself is the principal battlefield

where the warring interests struggle against each other, and it is to that battlefield

we should look for the results of the battle.

Another reason for adhering to the clear language Congress chose instead of

some other indicia of its intent is the absence of a convincing explanation for the

divergence of the two. For example, in this case, if Congress really meant in §

1005(a)(2)(B)(iii) of the Improvement Act to grandfather only involuntary

terminations resulting from court orders, then why did it say “any termination”?

Why not simply say “any involuntary termination” or “any termination resulting

from court orders”? It could easily have done so, but did not. Those who ask

courts to give effect to perceived legislative intent by interpreting statutory

language contrary to its plain and unambiguous meaning are in effect asking courts

to alter that language, and “[c]ourts have no authority to alter statutory language. . .

. We cannot add to the terms of [the] provision what Congress left out.” Merritt,

120 F.3d at 1187. “The language of the statute is entirely clear; and if that is not

23
what Congress meant then Congress has made a mistake and Congress will have to

correct it.” Conroy, 507 U.S. at 528, 113 S. Ct. at 1572 (Scalia, J., concurring).

3. Absurdity

The quote from DBB that we set out earlier in this opinion does list one

recognized exception to the plain meaning rule – absurdity of results. We have

recognized that courts may reach results inconsistent with the plain meaning of a

statute “if giving the words of a statute their plain and ordinary meaning produces

a result that is not just unwise but is clearly absurd.” Merritt, 120 F.3d at 1188.

However, we have also observed that:

Though venerable, the principle is rarely applied, because the result
produced by the plain meaning canon must be truly absurd before the
principle trumps it. Otherwise, clearly expressed legislative decisions
would be subject to the policy predilections of judges.

Id. In other words, it is irrelevant that “[w]e may not have made the same policy

decision had the matter been ours to decide [if] we cannot say that it is absurd,

ridiculous, or ludicrous for Congress to have decided the matter in the way the

plain meaning of the statutory language indicates it did.” Id.

The Networks argue that absurd results would follow from the plain

meaning interpretation of the Improvement Act’s § 1005(a)(2)(B)(iii) grandfather

clause because it would permit transmission to “any C-band dish owner who

formerly received network transmissions – no matter how far in the past.” They

24
also attempt to show absurdity by way of the example of a “C-band dish owner one

mile away from the local Fox station in Atlanta who subscribed to a distant Fox

station for one month in 1989 and then canceled her subscription for lack of

interest,” or of a subscriber who received transmission because of a computer error

or whose service was canceled because of failure to pay bills.

In light of this Court’s exacting standard for finding absurdity, we do not

believe that the Networks have shown that the plain meaning interpretation of the

Improvement Act’s grandfather clause would lead to truly absurd results. In

particular, it seems to us that equally “absurd” results are possible under the

Networks’ own interpretation of the statute. Nothing in their interpretation would

prevent a subscriber who lived one mile from a local affiliate from receiving

transmission as long as the subscriber was terminated pursuant to a court order.

Yet, everyone, including the Networks, agrees Congress certainly intended to bring

about results which include that one. Nor are we convinced that permitting

subscribers to be grandfathered in even though considerable time may have passed

since they last received transmission is an absurd result. Interests such as fostering

competition between satellite and cable carriers, or protecting rural consumers who

25
invested in outmoded equipment – two objectives which have some support in the

Improvement Act’s legislative history – could be served by such results.7

We should always remember when a party argues the absurd results

exception that Congress often legislates at the macro level, not on a micro scale.

General problems are given general solutions; and even where more specific

solutions are possible, compromises are often struck. The language used may

sweep too broadly in some respects affording protection and relief to some who are

not truly deserving or aggrieved, and too narrowly in other respects failing to reach

some who are more deserving or aggrieved. But that is the nature of a political

process and of all worldly endeavors. Imperfection is not absurdity, but is inherent

in humankind and all of our works. The Networks have not shown that the plain

language interpretation of the grandfather clause will cause the type of truly absurd

or ludicrous results which would permit us to depart from the plain meaning of the

statute.

7
“Notwithstanding that well-recognized and bedrock principle [of not advancing to
legislative history when statutory text is clear], sometimes judges who find that legislative
history supports and complements the plain meaning of statutory language cannot resist the
temptation to set out that history. We have given in to that temptation more than once.” Harris,
216 F.3d at 977.

26
 C. THE NETWORKS’ NARROW CONSTRUCTION ARGUMENT

Finally, we address the Networks’ argument that the Court should not

interpret the Improvement Act’s § 1005(a)(2)(B)(iii) grandfather provision

according to the plain meaning of its words because doing so would expand a

compulsory copyright license. The Networks point to an opinion from our

predecessor court which stated that:

We begin by noting that the compulsory license provision is a limited
exception to the copyright holder’s exclusive right to decide who shall
make use of his composition. As such, it must be construed narrowly,
lest the exception destroy, rather than prove, the rule. Thus we should
neither expand the scope of the compulsory license provision beyond
what Congress intended in 1909, nor interpret it in such a way as to
frustrate that purpose.

Fame Publ’g. Co. v. Ala. Custom Tape, Inc., 507 F.2d 667, 670 (5th Cir. 1975). But

the Fame opinion nonetheless recognized that Congress’ intent is controlling. Id.

While the narrow construction rule makes good sense when the provision relating

to compulsory licenses is ambiguous, it does not require that the legislative intent

embodied in the plain meaning of statutory language be jettisoned in favor of that

or any other rule of construction. Any such requirement would be inconsistent

with this Court’s more recent binding precedent which emphasizes the primacy of

statutory language. See, e.g., Harris, 216 F.3d at 976. Whatever guidance the

quoted part of the Fame opinion might offer in general, it cannot require that we

27
interpret a specific statutory provision, which was enacted a quarter of a century

later, in a way that is contrary to the clearly expressed plain meaning of the

provision.

The Networks also point out, in support of their narrow construction

argument, that the conference committee report to the Improvement Act stated that

the committee was aware “it [was] acting in derogation of the exclusive property

rights granted by the Copyright Act to copyright holders, and that it therefore

need[ed] to act as narrowly as possible to minimize the effects of the government’s

intrusion on the broader market. . . . ” 145 Congressional. Rec. H11769, H11792

(1999). But as we have already explained, even clear evidence of contrary intent in

legislative history materials cannot override the plain meaning of unambiguous

statutory language. Besides, it is not altogether clear that the conference committee

report would require a different result, even if it were controlling. It is one thing to

construe a provision narrowly and another to construe it contrary to its plain

meaning and unambiguous terms.

III. CONCLUSION

The phrase “any termination” in 17 U.S.C. § 119(a)(2)(B)(iii), means “any

termination” prior to the specified date, and that includes both voluntary and

involuntary terminations. Accordingly, the district court’s December 16, 1999

28
order modifying the permanent injunction in this action is VACATED, and this

case is REMANDED to the district court for further proceedings consistent with

this opinion.

29
OAKES, Circuit Judge, concurring:

I heartily concur in the conclusion of Judge Carnes’s opinion, though I come

to it by a somewhat different route. I, by no means, intend to diminish either his

interpretation of the Eleventh Circuit precedents, supported by what some of the

Justices on the Supreme Court have said from time to time, or his ultimate

definition of the terms “any” and “termination” as including voluntary as well as

involuntary terminations in the context in which they appear. But I would add that

the legislative purpose of SHVIA provides an alternative basis for the result in this

case.

While I have serious reservations about using legislative history to support

judicial reasoning, especially because so much of the “history” in recent years has

been manufactured to suit the purposes of Congress, I start with Judge Learned

Hand’s premise that “it is one of the surest indexes of a mature and developed

jurisprudence not to make a fortress out of the dictionary; but to remember that

statutes always have some purpose or object to accomplish whose sympathetic and

imaginative discovery is the surest guide to their meaning.” Cabell v. Markham,

148 F.2d 737, 739 (2d Cir. 1945). As Chief Justice Marshall said while discussing

the Commerce Clause in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824),

“[w]e know of no rule for construing the extent of such powers, other than as given

30
by the language of the instrument which confers them, taken in connection with the

purpose for which they were conferred.” (emphasis supplied).

Thus, “there is no surer way to misread any document than to read it

literally.” L. Hand, J., concurring in Giuseppe v. Walling, 144 F.2d 608, 623-24

(2d Cir. 1944), quoted in Archibald Cox, Judge Learned Hand and the

Interpretation of Statutes, 60 Harv. L. Rev. 370, 375-76 (1947). While it may be

true that “whatever the consequences, we must accept the plain meaning of plain

words,” United States v. Brown, 206 U.S. 240, 244 (1907) Holmes, J.), we should

be able to say, after having looked at the purpose of a statute to understand the

context in which the words are spoken, “if this be the literal construction of the

sentence, it is still more apparently its real meaning.” Schooner Paulina’s Cargo v.

United States, 11 U.S. (7 Cranch.) 52, 64 (1812) (Marshall, C.J.).

Happily, in this case, Judge Carnes’s view of the literal meaning of the

words here involved is, when viewed within the purpose and context of SHVIA,

“still more apparently [their] real meaning.”

I agree with appellant that SHVIA did not merely respond to court-ordered

cut-offs, such as those imposed by the district court in this case, but also sought to

ensure access to satellite broadcasts, in particular for rural owners of C-Band

dishes.

31
 SHVIA, as I read it, was a full review and restructuring of the satellite

transmissions statutes designed to benefit consumers and to ensure the viability of

the satellite industry as well as to recognize developments in technology which had

made the use of rooftop antennas in many ways obsolete. As Senator Leahy

remarked in the Congressional Record of August 5, 1999, “I want to make sure that

Vermonters will be offered the full range of TV services of satellite once we can

negotiate the final bill . . . I am in the same situation as many Vermonters. At my

home in Middlesex, Vermont, I only receive one local network channel clearly

with my rooftop antenna.” 145 Cong.Rec. S10357-02. The bill, sponsored by

Senator Leahy without objection, failed to pass because a Conference with the

House could not be set up.

Fellow Senators supporting the bill included not only Senator Hatch, Senator

McCain, the ranking member of the Antitrust Subcommittee, and Senator Lott, the

Majority Leader of the Senate, but also Senator Kohl. The latter had spoken about

the Leahy bill, observing that the Act “g[a]ve satellite carriers the ability to provide

local television broadcast signals (while appropriately phasing in must-carry),

reduce[d] the royalty fees for those signals, g[a]ve the FCC time to take a much-

needed second look at the definition of ‘unserved households,’ and ma[d]e sure no

32
one -- no one -- is terminated before February 28th of next year.” 144 Cong.Rec.

S10525 (September 17, 1998).

When the House passed H.R. 1554, the bill which actually became SHVIA,

House Commerce Committee Chairman Bliley of Virginia referred to it as “a better

approach. It is a procompetitive solution to the cable’s dominant market share.”

145 Cong.Rec. H2319 (April 27, 1999). And the Conference Report on SHVIA,

echoing the theme of satellite competition with the cable industry but also

emphasizing the importance of permitting satellite television to provide rural

households service, explained:

When Congress passed the Satellite Home Viewer Act in 1988, few
Americans were familiar with satellite television. They typically
resided in rural areas of the country where the only means of receiving
television was through use of a large, backyard C-band satellite dish.
Congress recognized the importance of providing these people with
access to broadcast programming, and created a compulsory copyright
license in the Satellite Home Viewer Act that enabled satellite carriers
to easily license the copyrights to the broadcast programming that
they retransmitted to their subscribers.

Conference Report, at 91, reprinted in 145 Cong. Rec. H11792

(Nov. 9, 1999).

In 1999, referring to SHVIA in its final form, Senator Leahy reiterated:

[U]nder current law many families must get their local TV signals
over an antenna which often does not provide a clear picture. . . .
While the hills and mountains of Vermont are a natural wonder, they

33
 are barriers to receiving clear TV signals over-the-air with roof top
antennas.

145 Cong.Rec. S700 (January 19, 1999) (quotations omitted).

I could go on, but the above will suffice to make it clear that SHVIA had not

only to do with court-ordered cut-offs, but with the broader purpose of giving rural

television owners more up-to-date reception while making satellite providers more

competitive with cable television. In context, the literal words of the statute are

supportive of its broader purpose, and I therefore am doubly pleased to concur in

Judge Carnes’s fine opinion.

34