American Tel. & Tel. Co. v. Delta Communications Corp.

Citation590 F.2d 100
Decision Date21 February 1979
Docket NumberNo. 76-2095,76-2095
PartiesAMERICAN TELEPHONE AND TELEGRAPH COMPANY, a New York Corporation, Plaintiff- Appellee, v. DELTA COMMUNICATIONS CORPORATION, a Mississippi Corporation, Defendant & Counter-Claimant, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, CBS, Inc., American Broadcasting Companies, Inc., National Broadcasting Company, Inc., and Southern Television Corporation, Counter-Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Richard E. Wilbourn, Meridian, Miss., John C. Dawson, Sr., Robbin R. Dawson, A. A. White, Houston, Tex., for appellant.

Alex A. Alston, Jr., Jackson, Miss., James H. Kelley, James R. Loftis, III, William R. Robertson, for American Broadcasting, Etc.

E. L. Brunini, Sr., Jackson, Miss., Phillip M. Hammett, Peter S. Greenberg, Philadelphia, Pa., for N.B.C.

Sherwood W. Wise, Thomas G. Lilly, Jackson, Miss., Timothy B. Dyk, James Robertson, Ronald J. Greene, Washington, D. C., Meridian, Miss., for CBS, Inc.

Walter W. Eppes, Jr., Paul M. Neville, Meridian, Miss., for Southern Television Corp.

John P. Fons, Birmingham, Ala., Guerry R. Thornton, Atlanta, Ga., D. Winston Cameron, Meridian, Miss., George H. Butler, Lawrence J. Franck, Jackson, Miss., Alfred G. Walton, Bedminster, N. J., for American Tel. & Tel.

Appeal from the United States District Court for the Southern District of Mississippi.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion 9/11/78, 579 F.2d 972 (5th Cir. 1978))

Before GEE, FAY and VANCE, Circuit Judges.

PER CURIAM:

A careful consideration of claimant Delta's cogent petition for rehearing persuades us that our mandate should be modified in one respect and requires a brief further explication of our original holding.

Selecting and juxtaposing not entirely out of context various passages from the exhaustive opinion of the district court adopted by us, Delta presses upon us that we erred in our application of First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). Our error is said to be in having permitted the trial court, in passing on motions for summary judgment, to weigh inferences from the facts established and adopt the more probable inference in support of such a judgment, rather than indulging every reasonable inference in favor of Delta, the party opposing summary disposition. Since we did not intend such a holding, we write briefly to make this plain.

In passing on motion for summary judgment, even where the underlying facts are undisputed, it is hornbook law that the court must indulge every Reasonable inference from those facts in favor of the party opposing the motion. Insofar as any weighing of inferences from given facts is permissible, the task of the court is not to weigh these against each other but rather to cull the universe of possible inferences from the facts established by weighing each against the abstract standard of reasonableness, casting aside those which do not meet it and focusing solely on those which do. If a frog be found in the party punch bowl, the presence of a mischievous guest but not the occurrence of spontaneous generation may reasonably be inferred.

To take an example from this cause, the evidence showed that at no relevant time did Delta command a viewing audience approaching that required for affiliation by the basic policies of either ABC or NBC. As the opinion of the court notes (408 F.Supp. at 1084), "(t)hese policies evinced an economic judgment that unless the network's respective 6,000 or 7,000 household figure was met, national advertisers would not be willing to increase their overall compensation to the networks for the addition of the television stations." We do not believe, in the face of such facts, that an inference of anticompetitive conspiracy is reasonable. As the trial court noted:

In First National Bank v. Cities Service Co., 391 U.S. 253, 279, 88 S.Ct. 1575, 1588, 20 L.Ed.2d 569 (1968) the Court in the course of discussing the appropriateness of summary judgment in an antitrust action (a matter discussed in detail in part II, Infra ), stated:

Obviously it would not have been evidence of...

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