Antitrust Law Daily Wrap Up, ANTITRUST—DKan: Religion-Based TV Program Producer Failed to State Monopoly Claims Against Cox Cable Entities for Refusal to Deal, (Feb 15, 2013)

By E. Darius Sturmer, J.D.

A producer of 30-second television shows that provide religion-based news, educational information, and entertainment could not maintain claims that media communications giant Cox Enterprises, Inc. and three subsidiaries violated federal antitrust law by “refusing to allow him access to cable television,” the federal district court in Wichita, Kansas, has ruled (Drake v. Cox Enterprises, Inc., February 13, 2013, Melgren, E.).

The producer lacked standing because he failed to sufficiently plead an antitrust injury. Even if he had, he still failed to provide any facts defining a relevant market, the court added. The suit was dismissed with prejudice.

In his amended pro se complaint, the TV program producer alleged that the defendants “refuse[d] to sell plaintiff any more commercial air time on Cox cable television as they have in the past, despite the fact that defendants would benefit financially from the transactions.” In support of this proposition he cited an email conversation in which a Cox sales manager replied to his request to purchase time spots with a terse “we are not interested in a business relationship at this time.” Further, the amended complaint asserted that Cox undertook its conduct to “gain monopolistic profit by refusing to sell commercial air time to competing shows that do not feature Christian and Jewish history and theology.”

Antitrust injury. The producer’s charge that Cox did not allow him commercial air time did not describe an antitrust injury because it was a harm only to him, the court stated. The amended complaint contained no factual allegations of an actual adverse effect on competition. The averment that the refusal to sell “harms consumers and competition” was entirely conclusory, in the court’s view.

Relevant market. In addition, the producer’s proposed relevant market—“religion based television shows and religion based consumer products such as books, CDs, and DVDs”—was legally insufficient, as it was overly broad, in the court’s view. While the plaintiff’s pleading did not define “religion based,” he had stated in another court filing that “ANY television show that features the history or theology of ANY religion, is a religion based show” and that “All religion based television shows offer the audience religion based consumer products such as books, CDs, and DVDs.” None of these products was interchangeable, the court found, and the cross-elasticity of demand could not be calculated. Furthermore, there was no factual support for the alleged geographic market, which was defined several different ways in the amended complaint.

The producer’s request that the court grant him to leave to amend his complaint was turned down. He had already filed two complaints in the case, both of which consisted of conclusory allegations and lacked substance, the court noted. There was “no reason to believe that a Second Amended Complaint would include sufficient facts to correct these deficiencies.”

The plaintiff’s motion for appointment of a Muslim federal judge, on the basis that the presiding judge was presumably a “Christian or a Jew” and that this religious affiliation could affect the outcome of the case, was also denied.

The suit is Case No. 12-2115-EFM-JPO.

Attorneys: James M. Armstrong (Foulston Siefkin LLP) for Cox Enterprises, Inc.

Cases: Antitrust KansasNews