The U.S. Supreme Court on Nov. 5 declined to review a Ninth Circuit decision
that a group of cable television subscribers alleging that programmers and
distributors tied cable channels failed to plausibly allege the injury to
competition necessary to support a Sherman Act §1 claim (Brantley v. NBC
Universal, Inc., U.S., No. 12-171, cert. denied, 11/5/12).
A putative class of cable subscribers alleged that distributors and
programmers violated §1 by bundling or tying low-demand and high-demand cable
channels together, thereby precluding consumers from purchasing only those
individual channels that they wish to watch. According to the complaint, this
practice limits the distributors' method of doing business and reduces consumer
choice while, at the same time, raising prices. The district court, however,
dismissed the complaint on the ground that the plaintiffs could not show an
injury to competition.
The Ninth Circuit agreed. “[L]imitations on the manner in which Distributors
compete with each other do not, without more, constitute a cognizable injury to
competition,” the Ninth Circuit explained, and harm to consumers, rather than
competition, is not cognizable under the Sherman Act.
The Supreme Court's denial of certiorari is at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-171.htm
-- at the Court's website.