On October 12, 1976 CRI filed its "Complaint for Specific Performance and Motion for Preliminary Injunction."
A hearing on the preliminary injunction was conducted on October 22, 1976, testimony taken and the matter taken under advisement.
The defendant has suggested that this court should relinquish to the FCC its jurisdiction over the matter. We do not believe this to be feasible. Certainly this court is not empowered to designate successful television channel applicants initially; this is a function of the FCC. 47 U.S.C. § 151 et seq. Neither, however, is the FCC the proper forum to adjudicate private controversies between parties involved in such applications. Gerald J. Block, 36 Pike and Fischer RR 2d 924 (1976); In re Application of Transcontinent Television Corp. (WROC TV) 21 Pike and Fischer RR 945 (1961).
This court has great discretion in determining whether a preliminary injunction should be issued in a commercial context to grant specific performance of a contract. A.L.K. Corp. v. Columbia Pictures Industries, Inc., 440 F.2d 761 (3rd Cir. 1971).
As a prerequisite to issuance of a preliminary injunction the moving party must generally show: (1) a reasonable probability of eventual success in litigation; and (2) that it will be irreparably injured pendente lite if relief is not granted. Oburn v. Shapp, 521 F.2d 142 (3rd Cir. 1975); A.L.K. Corp. v. Columbia Pictures Industries, Inc., supra; Ikirt v. Lee National Corp., 358 F.2d 726 (3rd Cir. 1966). When relevant, other considerations are: (3) possibility of harm to other interested persons from the grant or denial of the injunction and, (4) the public interest. Oburn v. Shapp, supra; Delaware River Port Auth. v. Transamerican Trail. Tr., Inc., 501 F.2d 917 (3rd Cir. 1974).
The latter two factors, harm to others or the public interest, do not appear relevant considerations in this case at this point in time.
1. Reasonable Probability of Eventual Success
It appears that WPCBC would like to put off indefinitely the date on which CRI may exercise its option by obtaining modifications of the permit regardless of whether or not it ever substantially constructs the station. It is inconsistent with the language of paragraph 4 of the agreement to argue that the date by which WPCBC was required to "substantially construct" may be extended indefinitely.
The interpretation of a provision of a written contract is a matter of law to be determined by reference to the entire contract. Restatement Contracts § 235(c), § 236(a).
Paragraph 4A of the agreement refers variously to WPCBC's intention of " promptly proceeding with the construction," of its " present strong intent to immediately proceed to construct," of " promptly rendering an additional television service to the people of Pittsburgh," of its " current intention to promptly institute the proposed service."
CRI's rights in this matter rest upon WPCBC's failure to proceed promptly with the construction of Channel 22. Since WPCBC intended to proceed promptly, it would appear that the deadline for its efforts, as defined in footnote 3 of the Agreement (supra), may well have been the expiration of the permit as initially issued to WPCBC. Based on the testimony taken at the initial hearing of this matter, we believe that September 17, 1976, was the date by which WPCBC had to achieve substantial construction of Channel 22.
"Substantial construction" was defined in footnote 3 as meaning that the tower, antenna, transmitter and basic studio equipment had been delivered to the site, barring acts of God, strikes or failures of suppliers. Mr. Julian Smith, president of CRI, testified that he had seen WPCBC's site for Channel 22 on October 21, 1976 and saw no tower, no antenna, no transmitting equipment and no studio. Mr. Smith testified that to his knowledge there were no shortages of such equipment in the industry. WPCBC did not refute the obvious lack of these items on its site nor was there testimony indicating acts of God or labor strikes. According to the agreement's definition of "substantial construction" such equipment must have been delivered to WPCBC's premises prior to the date for filing a Form 701 requesting an extension. It is obvious that WPCBC had failed to substantially construct as of September 17, 1976, and it is now past February 5, 1977, the date to which the permit had been extended.
2. Irreparable Harm
The second criteria for the issuance of a preliminary injunction is irreparable harm if relief is not granted. In A.L.K. Corp. v. Columbia Pictures Industries, Inc., supra, Chief Judge Seitz commented:
"Generally speaking a breach of contract results in irreparable injury warranting equitable relief in two types of cases:
'1. Where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable substitute for or representative of that subject-matter in the hands of the party who is entitled to its benefit; or in other words, where the damages are inadequate ;