Federal Trade Commission v. Motion Picture Advertising Service Co

• Decision Date: 02 February 1953
• Docket Number: No. 75,75
• Parties: FEDERAL TRADE COMMISSION v. MOTION PICTURE ADVERTISING SERVICE CO., Inc
• Court: U.S. Supreme Court

344 U.S. 392

73 S.Ct. 361

97 L.Ed. 426

FEDERAL TRADE COMMISSION

v MOTION PICTURE ADVERTISING SERVICE CO., Inc.

No. 75.

Argued Dec. 8, 1952.

Decided Feb. 2, 1953.

Rehearing Denied March 9, 1953.

See 345 U.S. 914, 73 S.Ct. 638.

Mr. James L. Morrisson, Chicago, Ill., for petitioner.

Mr. Louis L. Rosen, New Orleans, La., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Respondent is a producer and distributor of advertising motion pictures which depict and describe commodities offered for sale by commercial establishments. Respondent contracts with theatre owners for the display of these advertising films and ships the films from its place of business in Louisiana to theatres in twenty-seven states and the District of Columbia. These contracts run for terms up to five years, the majority being for one or two years. A substantial number of them contains a provision that the theatre owner will display only advertising films furnished by respondent, with the exception of films for charities or for governmental organizations, or announcements of coming attractions. Respondent and three other companies in the same business (against which proceedings were also brought) together had exclusive arrangements for advertising films with approximately three-fourths of the total number of theatres in the United States which display advertising films for compensation. Respondent had exclusive contracts with almost 40 percent of the theatres in the area where it operates.

The Federal Trade Commission, the petitioner, filed a complaint charging respondent with the use of 'Unfair methods of competition' in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 717, 719, 52 Stat 111, 15 U.S.C. § 45, 15 U.S.C.A. § 45. The Commission found that respondent was in substantial competition with other companies engaged in the business of distributing advertising films, that its exclusive contracts have limited the outlets for films of competitors and has forced some competitors out of business because of their inability to obtain outlets for their advertising films. It held by a divided vote that the exclusive contracts are unduly restrictive of competition when they extend for periods in excess of one year. It accordingly entered a cease and desist order which prohibits respondent from entering into any such contract that grants an exclusive privilege for more than a year or from continuing in effect any exclusive provision of an existing contract longer than a year after the date of service in the Commission's order.¹ 47 F.T.C. 378. The Court of Appeals reversed, holding that the exclusive contracts are not unfair methods of competition and that their prohibition would not be in the public interest. 5 Cir., 194 F.2d 633.

The 'Unfair methods of competition', which are condemned by § 5(a) of the Act, are not confined to those that were illegal at common law or that were condemned by the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note. Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Congress advisedly left the concept flexible to be defined with particularity by the myriad of cases from the field of business. Id., 291 U.S. at pages 310—312, 54 S.Ct. at pages 425—426. It is also clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act, see Federal Trade Commission v. Beech-Nut Co., 257 U.S. 441, 453, 42 S.Ct. 150, 154, 66 L.Ed. 307—to stop in their incipiency acts and practices which, when full blown would violate those Acts, see Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 463, 466, 61 S.Ct. 703, 706, 707, 85 L.Ed. 949, as well as to condemn as 'unfair method of competition' existing violations of them. See Federal Trade Commission v. Cement Institute, 333 U.S. 683, 691, 68 S.Ct. 793, 798, 92 L.Ed. 1009.

The Commission found in the present case that respondent's exclusive contracts unreasonably restrain competition and tend to monopoly. Those findings are supported by substantial evidence. This is not a situation where by the nature of the market there is room for newcomers, irrespective of the existing restrictive practices. The number of outlets for the films is quite limited. And due to the exclusive contracts, respondent and the three other major companies have foreclosed to competitors 75 percent of all available outlets for this business throughout the United States. It is, we think, plain from the Commission's findings that a device which has sewed up a market so tightly for the benefit of a few falls within the prohibitions of the Sherman Act and is therefore an 'unfair method of competition' within the meaning of § 5(a) of the Federal Trade Commission Act.

An attack is made on that part of the order which restricts the exclusive contracts to one-year terms. It is argued that one-year contracts will not be practicable. It is said that the expenses of securing these screening contracts do not warrant one-year agreements, that investment of capital in the business would not be justified without assurance of a market for more than one year, that theatres frequently demand guarantees for more than a year or otherwise refuse to exhibit advertising films. These and other business requirements are the basis of the argument that exclusive contracts of a duration in excess of a year are necessary for the conduct of the business of the distributors. The Commission considered this argument and concluded that, although the exclusive contracts were beneficial to the distributor and preferred by the theatre owners, their use should be restricted in the public interest. The Commission found that the term of one year had become a standard practice and that the continuance of exclusive contracts so limited would not be an undue restraint upon competition, in view of the compelling business reasons for some exclusive arrangement.² The precise impact of a particular practice on the trade is for the Commission, not the courts, to determine. The point where a method of competition becomes 'unfair' within the meaning of the Act will often turn on the exigencies of a particular situation, trade practices, or the practical requirements of the business in question. Certainly we cannot say that exclusive contracts in this field should have been banned in their entirety or not at all, that the Commission exceeded the limits of its allowable judgment, see Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 612, 66 S.Ct. 758, 760, 90 L.Ed. 888; Federal Trade Commission v. Cement Institute, 333 U.S. 683, 726—727, 68 S.Ct. 793, 815, 816, 92 L.Ed. 1009, in limiting their term to one year.³ The Court of Appeals held that the contracts between respondent and the theatres were contracts of agency and therefore governed by Federal Trade Commission v. Curtis Publishing Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408. This was on the theory that respondent furnishes the films by bailment to the exhibitors in exchange for a contract for personal services which the exhibitors undertake to perform. But the Curtis case would be relevant here only if § 3 of the Clayton Act⁴ were involved. The vice of the exclusive contract in this particular field is in its tendency to restrain competition and to develop a monopoly in violation of the Sherman Act. And when the Sherman Act is involved the crucial fact is the impact of the particular practice on competition, not the label that it carries. See United States v. Masonite Corp., 316 U.S. 265, 280, 62 S.Ct. 1070, 1078, 86 L.Ed. 1461.

Finally, respondent urges that the sole issue raised in the Commission's complaint had been adjudicated in a former proceeding instituted by the Commission which resulted in a cease and desist order. 36 F.T.C. 957. But that was a proceeding to put an end to a conspiracy between respondent and other distributors involving the use of these exclusive agreements. The present proceeding charges no conspiracy; it is directed against individual acts of respondent. The plea of res judiciata is therefore not available since the issues litigated and determined in the present case are not the same as those in the earlier one. Cf. Tait v. Western Maryland R. Co., 289 U.S. 620, 623, 53 S.Ct. 706, 707, 77 L.Ed. 1405.

Reversed.

Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting.

My doubts that the Commission has adequately shown that it has been guided by relevant criteria in dealing with its findings under § 5 of the Federal Trade Commission Act are dispelled neither by those findings nor by the opinion of the Court. The Commission has not explained its conclusion with the 'simplicity and clearness' necessary to tell us 'what a decision means before the duty becomes ours to say whether it is right or wrong.' United States v. Chicago, M., St. P. & P.R. Co., 294 U.S. 499, 510, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023.

My primary concern is that the Commission has not related its analysis of this industry to the standards of illegality in § 5 with sufficient clarity to enable this Court to review the order. Although we are told that respondent and three other companies have exclusive exhibition contracts with three-quarters of the theaters in the country that accept advertising, there are no findings indicating how many of these contracts extend beyond the one-year period which the Commission finds not unduly restrictive. We do have an indication from the record that more than half of respondent's exclusive contracts run for only one year; if that is so, that part of respondent's hold on the market found unreasonable by the Commission boils down to exclusion of other competitors from something like 1,250 theaters, or about 6%, of the some 20,000 theaters in the country. The hold is on about 10% of the theaters that accept advertising.

Apart from uncritical citations in the brief here,¹ The Commission merely states a dogmatic conclusion...