Television Programmers Convince Ninth Circuit To Cancel “Must See” TV Antitrust Suit

The United States Court of Appeals for the Ninth Circuit has affirmed the dismissal of a purported class action against television programmers and distributors alleging that the programmers’ practice of selling multi-channel cable packages violates Section 1 of the Sherman Act.

In Brantley v. NBC Universal, Inc., plaintiffs claimed that defendants derived market power from offering “must-have,” high-demand television channels, and exploited this market power by tying or bundling low-demand channels with the sales of the high-demand channels.

Judge Ikuta, writing for a unanimous appellate panel, called the case a “consumer protection class action masquerading as an antitrust suit,” noting that although plaintiffs alleged antitrust injury in the form of reduced choice and increased prices, they failed to allege any harm to competition.  In other words, plaintiffs failed to show that other sellers of low-demand channels were excluded from the market.