• 800 Channels and Nothing On? Ninth Circuit Affirms Dismissal of Sherman Act Claim Alleging Tying of Popular Television Channels with Less Popular Television Channels
  • September 12, 2011
  • Law Firm: Greenberg Traurig LLP - Miami Office
  • Characterizing it as “a consumer protection class action masquerading as an antitrust suit,” in Brantley et. al. v. NBC Universal, Inc. et. al., the Court of Appeals for the Ninth Circuit recently affirmed the dismissal of an antitrust suit brought by a purported class of consumers against television programmer/network owners, such as NBC Universal and Fox Entertainment Group, (“Programmers”), and cable and satellite operators (“Distributors”) of systems to which the consumers subscribed.[1] The Programmers were charged with violating § 1 of the Sherman Act by tying the channels they license to the Distributors to “programming packages” that grouped their popular “must-have” channels with less-popular channels that the Distributors did allegedly not desire. The Distributors were charged with passing on the “programming packages” to consumers and not allowing them to purchase individual channels “a la carte.” According to the Complaint, the Programmers’ tying practice limited the Distributors’ ability to offer individual channels to consumers, which allegedly would eventually raise prices to consumers and destroy consumer choice.

    The Ninth Circuit panel applied a rule of reason analysis because the consumer plaintiffs did not dispute that such an analysis was appropriate, and affirmed dismissal of the Complaint with prejudice, agreeing with the district court that the plaintiffs had failed to allege the injury to competition necessary to support a rule of reason Sherman Act claim.[2] In doing so, the Ninth Circuit reaffirmed the well-established rule that harm to consumers, while necessary to an antitrust violation, is not by itself sufficient to support a Sherman Act suit.[3]

    The Complaint

    Programmers, such as NBC Universal, create television shows and sell them to the Distributor defendants and others through their owned television and cable “channels.”[4] Each major Programmer owns several channels, and markets them to the cable and satellite operators (“Distributors”) in a bundle. For example, to get access to the NBC network, a cable system must also accept all the other channels in the NBC Universal group (such as MSNBC, CNBC, and Bravo).[5] The cable operator Distributor then offers the entire group of channels to consumers. Thus, the Distributors allegedly must accept the entire bundle of channels offered by the Programmer and, in turn, have offered that bundle to consumers rather than individual channels--a practice generally called “full-line forcing”--a form of tying.

    It will come as no surprise to television viewers that the channels in each Programmer’s arsenal are of differing levels of popularity. For example, the Plaintiffs dubbed channels such as the NBC network the “must-have” channels, and the other channels in the NBC package as “low-demand” channels.[6] As noted above, the Programmers’ full-line forcing according to Plaintiffs, prevented Distributors from purchasing single “must-have” channels and, allegedly, forced the defendant Distributors to sell only multi-channel cable packages to consumers. Without these limitations, Plaintiffs contended, Distributors would be able to purchase single channels and consumers would be able to purchase television stations from the Distributors at lower subscription prices on an “a la carte” basis.[7]

    Based upon these allegations, the consumer Plaintiffs contended that “the challenged bundling practices limit Distributors’ methods of doing business and reduces consumer choice, while raising prices.”[8] This allegedly violated §1 of the Sherman Act,[9] which proscribes unreasonable restraints on trade.

    The District Court

    The district court granted a motion to dismiss the initial Complaint, with leave to amend, because Plaintiffs had failed to show that their alleged injuries were caused by a cognizable injury to competition, as required under the antitrust rule of reason.[10] Plaintiffs then filed an Amended Complaint, alleging that the defendant Programmers’ practices foreclosed independent programmers from entering and effectively competing with them. This time the court denied Defendants’ Motion to Dismiss because the Amended Complaint had adequately pleaded that competing Programmers had been injured, and the court granted limited initial discovery as to the alleged injury to competition.[11]

    After completing initial discovery, however, the Plaintiffs’ elected to abandon their allegations that independent programmers had been excluded from the market, and filed a Third Complaint alleging only harm to the consumer class.[12] A stipulation was entered to the effect that if the Defendants’ subsequent Motion to Dismiss was granted, Plaintiffs would not be permitted to file yet another Complaint.[13] The district court did, in fact, grant Defendants’ third Motion to Dismiss, declaring that the Plaintiffs had again failed to allege injury to competition. The appeal to the Ninth Circuit followed.

    The Ninth Circuit Decision

    At the outset, the Ninth Circuit stressed that the Plaintiffs’ failure to allege that the challenged “tying” (or “bundling”)[14] claims had excluded any Programmers of low-demand channels (the tied product) from the market. As a result, there was no allegation of injury to competition.[15] It was insufficient to claim that “the sale of multi-channel packages harms consumers by limiting the manner in which the cable and satellite systems compete with one another because they allegedly are unable to offer individual channel programming, thereby reducing consumer choice, and ultimately increasing prices.”[16]

    Though the Plaintiffs did allege antitrust injury to consumers, that was insufficient alone to allege the required harm to competition.[17] According to the Ninth Circuit, “[a]lthough [the consumer] Plaintiffs may be required to purchase bundles that include unwanted channels in lieu of purchasing individual cable channels, antitrust law recognizes the ability of businesses to choose how to sell their products. The Distributors were not forced to resell the “bundled” networks in packages, but chose to pass on the “bundles” to consumers. Since it was stipulated that no competing Programmers were excluded from the market by the practice, competition had not been harmed either at the Programmer level or at the cable or satellite system level, since the Distributors voluntarily had chosen to pass on the packages to consumers.

    The Court recognized that the case was somewhat similar to the Supreme Court’s decision almost 40 years ago in United States v. Loew’s, Inc.,[18] in which the Antitrust Division of the Department of Justice had successfully challenged major film distributors that had conditioned the licensing of popular feature films to television stations only if the stations agreed to accept a block containing unwanted films, as well.[19] According to the Ninth Circuit, in Loew’s, the Supreme Court specifically held that the full line forcing at issue in that case had forced television stations not to accept movies from other distributors. Here, Plaintiffs had not alleged any such injury to competition from the alleged restrictive arrangements. Plaintiffs had not alleged that the cable and satellite systems were foreclosed from dealing with other programmers and channel owners. In fact, such an allegation had specifically been disclaimed after limited discovery had taken place.[20]

    The Ninth Circuit also rejected the argument that the challenged practices were so pervasive in the market, that in the aggregate they constituted injury to competition.[21] Again, the court noted that harm to consumers in not enough, even in the face of a pervasive vertical tying arrangement.[22] Although the Complaint did allege that higher prices resulted from the practice, it “included no allegations that [the sale of channels] in bundles has any effect on other programmers’ efforts to produce competitive programming channels or on [cable or satellite system] competition on cost and quality of service.”[23]

    Conclusions

    In this decision, the Ninth Circuit confirmed the precept that the Sherman Act is not meant to protect consumers or individual competitors as such, but overall competition in the market in which a defendant competes. Even in the face of a pervasive practice of vertical agreements that allegedly limit consumer choice and may raise prices, antitrust plaintiffs must show that competition in the market as a whole is in someway harmed, usually by showing that competitors of the defendant are being excluded or cannot enter the market as a result of the challenged practice. Here, the plaintiffs failed to avoid a dismissal motion by the very nature of cable television itself. As anybody with a cable box can attest, the number of cable channels has proliferated substantially in recent years. In a consumer market that apparently has little or no capacity limitations, tying arrangements cannot effectively exclude other competitors, because the suppliers to consumers--the cable and satellite systems-- can always just increase the number of channels they offer. Although that may have the regrettable effect of raising consumer prices and/or bombarding them with a proliferation of programming, it is not, in and of itself, an antitrust violation.

    [1] -- F.3d ----; 2011 WL 2163961 (9th Cir. June 3, 2011).
    [2] Id. at *4-6. Plaintiffs’ determination not to make a claim of per se illegality may have doomed the Complaint. Tying arrangements traditionally have been considered per se violations if the tie has the potential to substantially restrain competition in the tied product market, i.e., suppliers competing in the sale of the tied products with the defendant--in this instance, programmers offering channels competing with the less desired channels offered by the Programmer defendants. See JeffersonParish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 16 (1984).
    [3] Id.
    [4] Id. at *1.
    [5] Id.
    [6] Id.
    [7] Id.
    [8] Id.
    [9] Id. See also 15 U.S.C. § 15.
    [10] Id. at *2.
    [11] Id.
    [12] Id.
    [13] Id.
    [14] The Ninth Circuit’s use of the term “bundling” for the challenged practice appears to be erroneous , since that Circuit has in the past distinguished bundling from tying by recognizing that tying requires a sale conditioned on the customer’s agreement to purchase an undesired product, while bundling does not involve a conditioned sale, but the offering of a better price or discount if the customer agrees to buy another product or products. See Cascade Health Solutions v. PeaceHealth, 502 F.3d 895 (9th Cir. 2007).
    [15] Id. at 4.
    [16] Id. at 5.
    [17] Id. at 5.
    [18] 371 U.S. 38, 83 S. Ct. 97, 9 L.Ed.2d 11 (1962).
    [19] Brantley, at *5 (citing Loew’s, at 40, 83 S. Ct. 97.).
    [20] Id. at *6. .
    [21] Id.
    [22] Id.
    [23] Id.