ASS'N OF INDEPENDENT TV STATIONS v. College Football Ass'n

• Decision Date: 20 March 1986
• Docket Number: 84-2367-JB.,Civ. No. 84-2283-JB
• Citation: 637 F. Supp. 1289
• Parties: ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC., Plaintiff, v. The COLLEGE FOOTBALL ASSOCIATION; The Big Eight Football Conference; American Broadcasting Companies, Inc.; ABC Sports, Inc.; Entertainment and Sports Programming Network, Inc., Defendants. SPORTS VIEW COMPANY, Plaintiff, v. The COLLEGE FOOTBALL ASSOCIATION; American Broadcasting Companies, Inc.; ABC Sports, Inc.; and Entertainment and Sports Programming Network, Inc., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

637 F. Supp. 1289

ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC., Plaintiff, v. The COLLEGE FOOTBALL ASSOCIATION; The Big Eight Football Conference; American Broadcasting Companies, Inc.; ABC Sports, Inc.; Entertainment and Sports Programming Network, Inc., Defendants.

SPORTS VIEW COMPANY, Plaintiff, v. The COLLEGE FOOTBALL ASSOCIATION; American Broadcasting Companies, Inc.; ABC Sports, Inc.; and Entertainment and Sports Programming Network, Inc., Defendants.

Civ. Nos. 84-2283-JB, 84-2367-JB.

United States District Court, W.D. Oklahoma.

March 20, 1986.

COPYRIGHT MATERIAL OMITTED

Forrest A. Hainline, III, John H. Hanson, Washington, D.C., Michael Minnis, Oklahoma City, Okl., Michael Medina, Tulsa, Okl., for plaintiff.

Andy Coats, Clyde A. Muchmore, Oklahoma City, Okl., Gary J. Smith, Washington, D.C., Kenneth R. Webster, Oklahoma City, Okl., Clyde W. Curtis, Kansas City, Mo., for defendants.

MEMORANDUM OPINION

BURCIAGA, District Judge, sitting by designation.

These consolidated actions are for treble damages and injunctive relief for violations of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1 et seq., and for tortious interference with contractual and business relations. The plaintiffs Association of Independent Television Stations, Inc. (INTV) and Sports View Company (SVC) challenge a series of television plans and television rights agreements among the defendants the College Football Association (CFA), the Big Eight Football Conference (the Big Eight), ABC Sports, Inc. (ABC), and Entertainment and Sports Programming Network, Inc. (ESPN) conferring rights to telecast football games played by CFA's and the Big Eight's member colleges and universities. INTV and SVC allege that by these agreements the defendants fixed prices, limited output, divided markets, excluded competition, and restricted television viewers' choices among games, and thus unreasonably restrained trade in violation of 15 U.S.C. § 1. They also allege that the defendants have conspired and attempted to monopolize and in fact have monopolized the college football television market in violation of 15 U.S.C. § 2. SVC further alleges that CFA, ABC, ESPN, and the Big Eight tortiously interfered with 1984 telecast rights contracts in which it had interests.

In accordance with Federal Rule of Civil Procedure 56, INTV has moved for summary judgment establishing the antitrust liability of the defendants and enjoining many of their collaborative market activities. SVC has joined in the motion. The motions do not address SVC's state law claims or the amount of its alleged damages.¹

I. STANDARD OF DECISION

INTV and SVC may have summary judgment only after showing that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). All doubts must be resolved in favor of the existence of triable issues of fact. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 77, 88 L.Ed.2d 63 (1985); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975).

Allegations of purposeful, concerted action to restrain trade raise questions about commercial purposes and private intentions that are difficult to resolve summarily.² Summary judgment is particularly difficult when the anticompetitive effects or procompetitive justifications of complex and novel arrangements must be evaluated. Whether a set of related agreements promotes or suppresses competition is a question not easily answered by summary disposition. The instant cases typify the difficulties inherent in summary adjudication of antitrust matters.

Apart from the question of whether the parties directly disagree about the material facts, when a choice of permissible inferences may be drawn from the record the choice must be made in favor of the party opposing summary disposition. As is described below, there are direct factual confrontations between the plaintiffs and the defendants in these cases. But even if INTV's and SVC's allegations of subsidiary facts were taken as true, the court could not permissibly select from competing inferences that might be reasonably drawn from the present record and grant summary judgment. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

After careful consideration of all the evidence and the briefs of counsel, the court determines that these cases present genuine issues of material fact and that INTV and SVC therefore are not entitled to judgment as a matter of law. Accordingly, INTV's and SVC's motions for summary judgment must be denied.

II. THE CHALLENGED ARRANGEMENTS

In order to analyze the factual contentions of the parties it is necessary to set out the essential terms of the challenged agreements. SVC's claims for damages against the defendants are based upon television rights agreements between CFA, ABC, and ESPN for the 1984 college football season. INTV's claim for injunctive relief is grounded on the alleged illegality of the same 1984 agreements, which INTV asserts are perpetuated in subsequent agreements covering the 1985 and 1986 seasons. With certain exceptions not essential to resolution of the pending motions, therefore, the challenged arrangements are embodied in the 1984 contracts.

A. THE CFA-ABC SPORTS AGREEMENT

The broad contours of the plan adopted under the July 20, 1984 CFA agreement with ABC Sports are not in dispute and included the following provisions:

1. Exclusive³ national network rights. ABC Sports and ESPN were granted exclusive national network television rights to CFA games and CFA members were prohibited from appearing on any other national network regardless of the time of the game, whether the CFA opponent was itself a CFA member, and whether the CFA opponent had a contract with another network.

2. Exclusive time period. ABC Sports had exclusive rights to televise CFA member games from 3:30 to 7:00 p.m. eastern time during most Saturdays of the 1984 college football season and no other game in which a CFA member participated could be televised during this time period.

3. Selection of network games. ABC Sports was required to select its game of the week by 12 days before the Saturday of the telecast, except that games to be telecast in September were to be selected before the 1984 season began.

4. Number of exposures and appearances.⁴ ABC Sports was to offer its viewers 13 exposures of CFA games and a presentation of a total of 20 games during the 1984 season. Each CFA member was to appear on ABC Sports no more than three times during 1984, but two CFA members were to be selected for a "wild card" appearance and thus could appear a fourth time.

5. Other telecasts. CFA members were free to arrange telecasts of their games not selected by ABC Sports or ESPN provided kickoff of such games was not later than 12:20 p.m. eastern time or 11:34 a.m. central or mountain time.

6. Price and payment. CFA members were to be paid $12 million for their appearances on ABC Sports during the 1984 season. CFA was to receive the payment on behalf of CFA members and was to allocate revenue among its members according to a formula. There was no provision for ABC Sports to negotiate the prices of individual games with individual CFA members.

7. Contract duration. The agreement was for one year. ABC Sports was granted a right of first negotiation if CFA decided to sell a package of its members' games for the 1985 season.

B. THE CFA-ESPN AGREEMENT

Similarly, the skeleton of the July 24, 1984 CFA agreement with ESPN is not a subject of serious dispute. Its basic provisions were:

1. Exclusive national network rights. ESPN and ABC Sports were granted exclusive national network rights to CFA games and CFA members were prohibited from appearing on any other national network regardless of the time of the game, whether the CFA opponent was itself a CFA member, and whether the CFA opponent had a contract with another network.

2. Exclusive time period. ESPN was granted exclusive rights to telecast CFA member football games from 7:30 to 11:00 p.m. eastern time on Saturdays during the 1984 season and no other game in which a CFA member participated could be televised in whole or in part during this time period unless the game qualified as an "access" or "pay-per-view" telecast.⁵

3. Selection of games. ESPN was required to select its game of the week by 12 days before the Saturday of the cablecast, except for September games which were to be selected before the 1984 season began. ABC Sports had first choice and ESPN could not select a game already selected by ABC Sports. No game selected by ABC Sports or ESPN could be telecast or cablecast as an access or pay-per-view game.

4. Number of exposures and appearances. CFA and ESPN agreed to 15 exposures and telecasts of 15 games during the 1984 season. Each CFA member was limited to one appearance on ESPN during 1984, except that a second appearance might be made late in the season under certain circumstances, and each CFA member was limited to a total of four appearances on ABC Sports and ESPN. Each member was limited to two access telecasts or three pay-per-view cablecasts and no more than a total of three access and pay-per-view appearances.

5. Other telecasts. The ESPN agreement did not infringe the right of CFA members under the CFA agreement with ABC Sports to arrange telecasts of their games not selected by ABC Sports or ESPN provided kickoff of such games was no later than 12:20 p.m. eastern time or 11:34 a.m. central or mountain time. CFA members also were allowed access and pay-per-view telecasts during ESPN's exclusive time period. The geographical reach of an access telecast was limited to the grade B contours of local television stations serving the areas in which the competing colleges or universities were...