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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.
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