868 F.2d 1300 (D.C. Cir. 1989), 88-5286, Michigan Citizens for an Independent Press v. Thornburgh

Docket Nº:88-5286.
Citation:868 F.2d 1300
Party Name:MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS, et al., Appellants, v. Richard THORNBURGH, United States Attorney General, et al.
Case Date:February 24, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1300

868 F.2d 1300 (D.C. Cir. 1989)

MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS, et al., Appellants,

v.

Richard THORNBURGH, United States Attorney General, et al.

No. 88-5286.

United States Court of Appeals, District of Columbia Circuit.

February 24, 1989

Appeal from the United States District Court for the District of Columbia (C.A. No. 88-02322).

Prior Report: D.C.Cir., 868 F.2d 1285.

ON APPELLANTS' SUGGESTION FOR REHEARING EN BANC

Before WALD, Chief Judge; ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.

ORDER

Appellants' Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing it is

ORDERED, by the court en banc, that the suggestion is denied. It is

FURTHER ORDERED, by the court en banc, on its own motion, that the stay of implementation of the joint operating agreement reimposed by the order of Feb

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ruary 2, 1989, shall remain in effect until 5:00 p.m. E.S.T. on March 6, 1989, to afford appellants an opportunity to apply to the Supreme Court for a stay beyond that date.

Chief Judge WALD and Circuit Judges MIKVA, HARRY T. EDWARDS and RUTH BADER GINSBURG would grant the suggestion for rehearing en banc.

A concurring statement of Circuit Judge SILBERMAN, joined by Circuit Judge SPOTTSWOOD W. ROBINSON, III, is attached.

A dissenting statement of Chief Judge WALD, joined by Circuit Judges MIKVA and HARRY T. EDWARDS, is attached.

Circuit Judges STARR and D.H. GINSBURG did not participate in this matter.

Prior Report: D.C.Cir., 868 F.2d 1285.

SILBERMAN, Circuit Judge, with whom SPOTTSWOOD W. ROBINSON, III, Circuit Judge, joins, concurring in the denial of rehearing en banc:

The Chief Judge offers two justifications to slip Chevron 's restraining leash. Neither is grounded on an actual construction of the statutory language (which she concedes is ambiguous) nor its legislative history. Instead, the Chief Judge first interposes a theoretical economic argument to challenge the reasonableness of the Attorney General's interpretation of the statute. The Attorney General's conclusion that the Detroit Free Press is in "probable danger of financial failure" is unreasonable, we are told, because it is based on an economically unreasonable prediction--that the Detroit News is willing to continue to price below its costs in order to drive the Free Press to close its doors. 1 This is unreasonable because sophisticated firms do not--over a significant period of time--cut prices in order to drive a competitor out of the market, unless entry barriers prevent new competitors from emerging. If new competitors could emerge, the costs incurred in driving the old competitor out of the market would be wasted. See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 121 n. 17, 107 S.Ct. 484, 495 n. 17, 93 L.Ed.2d 427 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 589, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986).

I quite agree with that proposition. But I cannot see its relevance to this case. Congress obviously would not have passed the Newspaper Preservation Act unless it had perceived entry barriers that prevented an effective challenge to a monopoly newspaper. And, although it is not up to us to question Congress' judgment, surely we have seen nothing in this case to suggest Congress was misinformed. Whether those entry barriers, as a theoretical matter, are properly analyzed as due to a natural monopoly 2 or a variation on that classic

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economic theme (I am beginning to doubt that anyone truly understands the newspaper market) is beside the point. Congress authorized the Attorney General to prevent a city newspaper editorial monopoly--even at the risk of a shared economic monopoly--because it thought the unusual economics of the newspaper industry compelled that exception to the antitrust laws. Otherwise, one newspaper may achieve a stunning fusion of economic and editorial (political) power due to the loss of actual and potential competition. The Chief Judge's basic quarrel thus is with the premise of the statute itself.

Although the appellants did not present the theoretical gloss that the Chief Judge puts on their argument, they did rely--as does the Chief Judge--on the Attorney General's statement that hypothetically Detroit could support both papers. That would be so if--and this is a big if--both papers raised their prices. The Attorney General, however, never predicted how long that hypothetical situation would last or how it might be enforced. 3 There is the rub. As Congress realized, see S.REP. NO. 535, 91st Cong., 1st Sess. 2-4 (1969), one of the competing newspapers in any American city seems all too often to achieve a dominant position, which means that a newspaper owner who holds an advantage in a two newspaper city might be irrational if he did not attempt to drive his competitor out of business. Otherwise, he might wake up one day to realize that he had lost the superior position and was already himself in the downward spiral. In other words, an unregulated long-term two newspaper competitive equilibrium may well be a rarity (if not a chimera), and surely no newspaper owner in such a market can be confident that he and his competitor are in that exceptional city. See 116 Cong.Rec. 1788 (1970) (Statement of Sen. Fong) ("[I]t [is] increasingly difficult for many newspapers to coexist in the same community under conditions of all-out economic competition."). Accordingly, the ALJ found that the "strategies pursued by the Free Press and News ... were perceived by management as economically rational given the history of the demise of junior papers which had entered the downward spiral." ALJ Report, at 112-13. Even if the Detroit market was an exception to the prevailing pattern, the News (and the Free Press) could not possibly know that, and therefore neither paper would rationally gamble on such an assumption.

I do not see, in short, how the Chief Judge's interposition of economic theory supports her contention that the Attorney General's construction of the statute or his prediction as to the Detroit News' behavior is unreasonable.

Chief Judge Wald's second contention (inconsistent with her first) assumes that it would be reasonable for the News to continue to price below cost in order to drive the Free Press out of business, but argues that such behavior constitutes illegal predation--or something "perilously close" to illegal predation. The difficulty with this argument, no matter how couched, is not only was it not raised by appellant in this court, 4 it was not raised by any party--including

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the antitrust division--before the ALJ or the Attorney General. Indeed, the ALJ specifically noted that it was unnecessary to consider whether predation would affect his analysis of the statute, because it was not argued in this case. ALJ Report, at 122 n. 303. And he observed that competition short of predation--even that designed to drive competitors out of business--was irrelevant, since the NPA "neither penalize[s] nor reward[s] firms determined to eliminate their competition." Id. at 122. No party specifically challenged either of those observations of the ALJ at any stage in these proceedings. It is, of course, black letter law that an argument not made before an agency cannot be the basis of a legal challenge on appeal. Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946); United States v. L.A. Tucker Trucklines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952); Safir v. Kreps, 551 F.2d 447, 452 (D.C.Cir.1977) ("[A]ppellant is not free to raise points without regard to whether they were argued at some stage of the administrative process."). 5

Chief Judge Wald's predation argument, moreover, implicates a good deal more than the Attorney General's approach to Joint Operating Agreements. If the Attorney General were to conclude that he would not approve a JOA if the stronger paper had engaged in below cost pricing for some period before the submission of the JOA, he would have to assume the responsibility for preventing that "predation." Otherwise, newspapers like the News would, for the reasons described above, engage in such behavior to achieve dominance in their markets without regard to a JOA. By suggesting that the News' pricing practices were "illegal predation," the Chief Judge, in other words, implicitly seeks to preempt prosecutorial decisions of the Executive Branch.

Nevertheless, the Attorney General and his Antitrust Division might ponder Chief Judge Wald's suggested approach to newspaper antitrust enforcement policy and modify their position accordingly. Or, in a future case, a party might make the argument the Chief Judge suggests. That, however, is all the more reason to deny rehearing here. If and when we are properly faced with the contentions the Chief Judge advances, we can decide their correctness. In that event, this case might not have any enduring impact.

WALD, Chief Judge, with whom MIKVA and HARRY T. EDWARDS, Circuit Judges, concur, dissenting from denial of rehearing en banc:

The split panel's approval of the Attorney General's decision to allow the Joint Operating Agreement ("JOA") between the Detroit Free Press and the Detroit News turns on the reasonableness of a single prediction: that even in the absence of a JOA or any possibility thereof, the News will continue to price below costs, sustaining significant losses itself and driving the Free Press from Detroit. See Majority Opinion, 868 F.2d 1285, 1290, 1291, 1294-95. Although the Newspaper Preservation Act's definition of a "failing newspaper" is ambiguous, Congress...

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