Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp.

• Decision Date: 10 December 1976
• Docket Number: JEFFERSON-PILOT,No. 75-2326,75-2326
• Citation: 546 F.2d 570
• Parties: 1976-2 Trade Cases 61,184 CHARLOTTE TELECASTERS, INC., and North Carolina Cable, Inc., Appellants, Television Presentations, Inc., Plaintiff, v.CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 570

546 F.2d 570

1976-2 Trade Cases 61,184

CHARLOTTE TELECASTERS, INC., and North Carolina Cable, Inc. Appellants Television Presentations, Inc., Plaintiff, v. JEFFERSON-PILOT CORPORATION et al., Appellees.

No. 75-2326.

United States Court of Appeals Fourth Circuit.

Argued June 9, 1976.

Decided Dec. 10, 1976.

Jerry S. Cohen, Washington, D. C. (Michael D. Hausfeld, Herbert E. Milstein, Washington, D. C., Jerry W. Whitley, Charlotte, N. C., on brief), for appellants.

William L. Stocks, Greensboro, N. C. (Welch Jordan, Janet L. Covey, Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), for appellees.

Before HAYNSWORTH, Chief Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.

BUTZNER, Circuit Judge:

Charlotte Telecasters, Inc., and Television Presentations, Inc., (Telecasters) appeal the summary judgment dismissing their antitrust claim against Jefferson-Pilot Corp., Jefferson Standard Broadcast Co., and Jefferson-Carolina Corp. (Jefferson). Telecasters charged that Jefferson conspired with members of the city council of Charlotte, North Carolina, to obtain a television franchise, and to prevent the award of a franchise to the applicant in which Telecasters had an interest. ¹ The district court ruled that Telecasters' claim was barred by the statute of limitations, and, alternatively, that Jefferson did not violate Section 1 of the Sherman Act, 15 U.S.C. § 1. ² Since we find that the claim was barred by the statute of limitations, we do not consider whether summary judgment was appropriate on the merits.

I

On January 16, 1967, the city council enacted an ordinance authorizing non-exclusive franchises for cable television. The council awarded franchises to Jefferson and another applicant on March 20, 1967, and confirmed these awards on April 3, 1967. Although Telecasters did not receive a franchise, it was told, at the March meeting, that additional franchises might be considered in the future. On August 7, 1967, Telecasters asked the council to reconsider its application. The council, however took no further action.

Telecasters commenced this action on September 7, 1971. Section 4B of the Clayton Act, 15 U.S.C. § 15b, provides that an action to enforce the antitrust laws "shall be forever barred unless commenced within four years after the cause of action accrued." A cause of action generally accrues each time the defendant commits an act that injures the plaintiff's business. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). Accordingly, this action would ordinarily be barred unless an act injurious to Telecasters' business occurred after September 7, 1967.

Telecasters contends that the defendants were engaged in a continuing conspiracy to prevent it from obtaining a franchise. It argues that the cause of action did not accrue until the council had had a reasonable time at least thirty days to consider its request of August 7, 1967, and that the council's silence was an overt act of refusal. On the other hand, Jefferson claims that the alleged violation consisted of a single act which injured Telecasters. Under its theory, the cause of action accrued when the council confirmed the awards to Telecasters' competitors on April 3, 1967.

In deciding the date from which the cause of action accrued, we must determine whether the injury alleged by Telecasters was caused by a single or a continuing violation of the Act. Distinguishing between the two, the Supreme Court has held that a single violation necessarily occurs "within some specific and limited time span," whereas continuing violations "inflict continuing and accumulating harm." Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n.15, 88 S.Ct. 2224, 2236, 20 L.Ed.2d 1231 (1968). For this reason, exclusion from participation in an industry constitutes a continuing conspiracy, unless the exclusion is final in its impact. Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117, 126-27 (5th Cir. 1975); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512 F.2d 1264, 1270 (9th Cir. 1975). Thus, each refusal to deal gives rise to a claim under the antitrust laws. Pioneer Co. v. Talon, Inc., 462 F.2d 1106, 1108-09 (8th Cir. 1972). Nevertheless, even when the plaintiff charges a continual refusal to deal, the statute of limitations commences to run from the last overt act causing injury to the plaintiff's business. Poster Exchange,517 F.2d at 128.

In this case, Telecasters was not excluded from participation in the cable television industry by a single act of the alleged conspirators at one specific time. Since the council adopted a non-exclusive ordinance and left open the possibility of granting additional franchises, Telecasters has properly alleged a continuing conspiracy. However, the last overt act of the alleged conspiracy was the council's consideration of Telecasters' request on August 7, 1967. On that occasion, the mayor responded that the council would "leave it as it is." His additional comment that the council "will give some thought to what (Telecasters' spokesman) has said today" did not promise action in the future. The council's silence after the meeting, therefore, does not constitute an overt act. Cf. Poster Exchange, 517 F.2d at 128. Since no overt act occurred within the four years preceding the filing of the complaint, the action is barred unless it falls within one of the exceptions to the statute of limitations.

II

Claiming that its loss of future profits could not be ascertained in 1967, Telecasters asserts that it is entitled to rely on the exception to the statute of limitations created by Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-42, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). In Zenith, the Court held that a cause of action for future damages does not accrue until the damages become reasonably ascertainable and, therefore, capable of proof. However, Zenith did not prescribe new standards for determining whether damages are too speculative to permit recovery. The principal cases explaining the criteria for ascertaining whether damages are speculative remain Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946) and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562-66, 51 S.Ct. 248, 75 L.Ed. 544 (1931). These cases teach that when the defendant's wrong has been proven, "the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, 'juries are allowed to act upon probable and inferential, as well as direct and positive proof.' " 327 U.S. at 264, 66 S.Ct. at 580. Tested by these principles, we believe that Telecasters' damages could have been ascertained in September, 1967, with sufficient certainty to sustain a verdict.

Telecasters concedes that its future profits would depend on the number of subscribers to its cable television system. It argues that the subscriptions could not be estimated accurately until 1969 when Jefferson's success in signing subscribers could be evaluated.

We are not persuaded by Telecasters' argument. Telecasters' application to the council early in 1967 included its projection of subscribers and gross receipts for the first five years of operation under a franchise. These projections indicate that after the fourth year, its system would serve...