Nobody in Part. Presents v. Clear Channel Communs.

• Decision Date: 02 April 2004
• Docket Number: No. CIV.A. 01 N 1523 BNB.,CIV.A. 01 N 1523 BNB.
• Citation: Nobody in Part. Presents v. Clear Channel Communs., 311 F.Supp.2d 1048 (D. Colo. 2004)
• Parties: NOBODY IN PARTICULAR PRESENTS, INC., Ogden Resurrection Project, Inc., Swank Management, Inc., and N.I.P.P., LLC, Plaintiffs, v. CLEAR CHANNEL COMMUNICATIONS, INC., SFX Entertainment, Inc., d/b/a Clear Channel Entertainment, Clear Channel Broadcasting Inc., Jacor Broadcasting of Colorado, Inc., Citicasters Co., Citicasters Licenses, Inc., and Tsunami Communications, Inc., Defendants.
• Court: U.S. District Court — District of Colorado

Page 1048

311 F.Supp.2d 1048

NOBODY IN PARTICULAR PRESENTS, INC., Ogden Resurrection Project, Inc., Swank Management, Inc., and N.I.P.P., LLC, Plaintiffs, v.CLEAR CHANNEL COMMUNICATIONS, INC., SFX Entertainment, Inc., d/b/a Clear Channel Entertainment, Clear Channel Broadcasting Inc., Jacor Broadcasting of Colorado, Inc., Citicasters Co., Citicasters Licenses, Inc., and Tsunami Communications, Inc., Defendants.

No. CIV.A. 01 N 1523 BNB.

United States District Court, D. Colorado.

April 2, 2004.

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John Allen Francis, Dale R. Harris, Geoffrey H. Simon, Davis, Graham & Stubbs LLP, Walter L. Gerash, Gerash Law Firm, PC, Denver, CO, for Plaintiffs.

Sean Patrick Costello, Jones, Day, Reaves & Pogue, Cleveland, OH, Bruce A. Featherstone, Matthew D. Collins, Featherstone DeSisto LLP, Denver, CO, for Defendants.

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.

In this case, a concert promoter and its affiliates seek damages and an injunction for alleged antitrust violations and tortious conduct by its competitor.PlaintiffsNobody In Particular Presents, Inc.("NIPP"), Ogden Resurrection Project, Inc., Swank Management, Inc., and N.I.P.P., L.L.C., claim that DefendantsClear Channel Communications, Inc.("Clear Channel Communications"), SFX Entertainment, Inc. d/b/a/ Clear Channel Entertainment, Inc.("SFX/Clear Channel Entertainment"), Clear Channel Broadcasting, Inc., Jacor Broadcasting of Colorado, Inc.("Jacor"), Citicasters Co., Citicasters Licenses, Inc., and Tsunami Communications, Inc.(collectively "Clear Channel") engage in anticompetitive conduct that violates (1) the Sherman Act,15 U.S.C.A. §§ 1-2(West 1997), (2) the Colorado Antitrust Act, Colo.Rev.Stat. § 6-4-105(1999), (3) the Colorado Consumer Protection Act, Colo.Rev.Stat. § 6-1-101(1999), and (4) Colorado common law prohibiting tortious interference with contracts and prospective business relations.This matter is before the court on (1)"Defendants' Motion for Summary Judgment," filed October 7, 2002, (2)"Defendants' Motion for Summary Judgment," filed November 1, 2002, (3)"Combined Motion and Memorandum for Summary Judgment of Parent DefendantClear Channel Communications, Inc., On All Claims," filed November 1, 2002, and (4)"Defendants' Motion to Exclude Expert Testimony," filed August 6, 2003.Jurisdiction is based on 28 U.S.C.A. §§ 1331,1337 (West 1993), and15 U.S.C.A. § 15(West 1997).

FACTS

I.Factual Background

A.The Parties

Plaintiff NIPP is a music concert promoter in the Denver, Colorado area.(First Am. Compl. & Jury Demand¶ 3[filed August 8, 2002][hereinafter "Am. Compl."];admitted atDefs.' Answer and Affirmative Defenses to Pls.' FirstAm. Compl. ¶ 3[filed August 21, 2002][hereinafter "Answer"].)Founded in 1987, it has been a fixture in the Denver music industry since that time.(Id.)NIPP has promoted music concerts by jazz, folk, rock, and blues artists, including Beck, Pearl Jam, Sarah McLachlan, and the Neville Brothers.(Id.)It has promoted music concerts at numerous music venues in Denver, including the Ogden Theater, the Bluebird Theater, the Denver Botanic Gardens Amphitheater, Red Rocks Amphitheater, the Gothic Theater, and the Pepsi Center.(Statement of Undisputed Material Facts¶ 13[filed November 1, 2002][hereinafter "Statement of Undisputed Facts"];admitted at Pls.'Resp. to Defs.' Statement of Undisputed Material Facts¶ 13[filed December 23, 2002][hereinafter "Resp. to Statement of Undisputed Facts"].)NIPP controls concert-promotion access to the Ogden Theater, the Bluebird Theater, and the Denver Botanic Gardens Amphitheater.(Id.¶ 13;admitted in pertinent part at Resp. to Statement of Undisputed Facts¶ 13.)The parties dispute whether NIPP allows other concert promoters to use these venues.(Id.¶ 13;disputed at Resp. to Statement of Undisputed Facts¶ 13.)

Clear Channel Communications, a Texas corporation and holding company, is one of the largest radio and entertainment conglomerates in the world.It owns significant holdings in radio, television, billboard advertising, concert venues, and the concert promotions industry, through its numerous wholly-owned subsidiaries.(Combined Mot. and Mem. for Summ. J. of Parent Def. Clear Channel Communications, Inc. on All Claims, Statement of Undisputed Material Facts¶ 2[filed December 23, 2002][hereinafter "CCC Mot. for Summ. J."];admitted at Pls.'Resp. to Undisputed Material Facts, Statement of Additional Disputed Facts, and Resp. to Mot. and Mem. for Summ. J. of Parent Def. Clear Channel Communications, Inc., Resp. to Undisputed Material Facts¶ 2[filed December 23, 2002][hereinafter "Resp. to CCC Mot. for Summ. J."].)Clear Channel Communications' wholly-owned subsidiaries include defendants SFX/Clear Channel Entertainment and Jacor.Eight years ago, Clear Channel Communications was just one of numerous radio station owners, unknown to most people living outside of San Antonio, Texas, where the company is based.(CCC Mot. for Summ. J., Statement of Undisputed Material Facts¶ 1;admitted at Resp. to CCC Mot. for Summ. J., Resp. to Undisputed Material Facts¶ 1;Sarah Greene, Clear Channel v. Competition Act of 2002: Is There A Clear End In Sight?, 12 Depaul-LCA J. Art & Entm'tL. 387, 402[2002].)At that time, Clear Channel Communications owned 43 radio stations and 16 television stations through its subsidiaries.(12 Depaul-LCA J. Art & Entm't L.at 402.)After Congress enacted the Telecommunications Act of 1996, however, Clear Channel Communications began acquiring broadcast and entertainment companies at amazing speed.(Id.)Today, Clear Channel Communications consists of what was once seventy separate broadcast companies, owning 1200 radio stations, or 10% of the radio stations in the United States.(Defs.' Br.at 14.)

In May 1999, Clear Channel Communications entered the Denver radio market when it acquired Jacor.(Mem. in Supp. of Defs.' Mot. for Summ. J.at 15[filed November 1, 2002][hereinafter "Defs.'Br."];Pls.' Resp. in Opp'n to Defs.' Mot. for Summ. J.at 3[filed December 23, 2002][hereinafter "Pls.'Resp."].)As a result of this acquisition, Clear Channel Communications' subsidiaries now own and operate eight radio stations in Denver, the maximum allowed by the Federal Communications Commission("FCC").(Statement of Undisputed Facts¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11.)These stations include five FM stations, KBCO, KBPI, KFMD, KRFX, and KTCL, and three AM stations, KHOA, KOA, and KTLK.(Id.¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11.)

Additionally, as a result of the $4.4 billion dollar acquisition of SFX in 2000, SFX/Clear Channel Entertainment, Clear Channel Communications' national concert promotions division, is the largest concert producer and entertainment promoter in the nation.(Statement of Undisputed Facts¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11;12 Depaul-LCA J. Art & Entm't L.at 402.)Additionally, Clear Channel Communications has a radio concert promotions division, previously known as Clear Channel Concerts, and now as Clear Channel Radio Festivals.(Statement of Undisputed Facts¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11.)Both of these divisions operate in Denver.(Id.¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11.)Clear Channel Communications also owns or has control over more than 100 music concert venues nationwide.(12 Depaul-LCA J. Art & Entm'tL. 387, 402.)SFX/Clear Channel Entertainment and Clear Channel Concerts/Clear Channel Radio Festivals promote music concerts by jazz, folk, rock, and blues artists.It has promoted these music concerts at numerous music venues in Denver and has exclusive access to the Fillmore Auditorium in Denver.(Id.¶ 11;admitted at Resp. to Statement of Undisputed Facts¶ 11.)

The parties dispute the extent to which Clear Channel Communications participates in the operation of its subsidiaries, such as its radio stations and SFX/Clear Channel Entertainment.Clear Channel argues that Clear Channel Communications merely acts as a holding company, while NIPP asserts that Clear Channel Communications acts as an operating company, determining the strategy and culture for all subsidiaries.(CCC Mot. for Summ. J.; disputed at Resp. to CCC Mot. for Summ. J.)

B.Concert Promotion in Denver

Music concert promoters are in the business of planning and promoting music concerts for the ticket-purchasing public.Specifically, a concert promoter bids on a particular musician or band in order to obtain the right to promote the artist's concert.In bidding on an artist, the concert promoter must often deal with the artist's manager or record label, which, in the jargon of the industry, is the entity that produces and sells the artist's recordings.(Pls.' Resp., Exs. Vol. 2, Ex. 35 [Dep. of Sabrina Saundersat 44, 116-118], Ex. 30 [Dep. of Michael O'Connorat 425-427], Ex. 22 [Dep. of David Loncaoat 37-40].)The concert promoter then arranges for the venue, ticketing, and advertising, among other things.Concert promoters advertise concerts using radio, television, the internet, newspapers, magazines, posters, and flyers.(Defs.'Br., Exs. Vol. 1, Ex. A-7[Am. Compl.¶ 21];Am. Compl. ¶ 21.)If the concert generates little interest and few ticket sales, the promoter absorbs the loss.Conversely, if the concert is hugely successful, the promoter keeps the profits.

Some promoters promote concerts of all kinds of music, while others may promote, for example, only rock or jazz concerts.Similarly, many venues will accept concerts by artists of all kinds of music, while others will not.(Statement of Undisputed Facts¶ 26;admitted at Resp. to Statement of Undisputed Facts¶ 26.)Artist agents may...