Poller v. Columbia Broadcasting System, Inc., 3761-56.

Citation174 F. Supp. 802
Decision Date03 June 1959
Docket NumberNo. 3761-56.,3761-56.
PartiesLou POLLER, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, INC., CBS Television, J. L. Van Volkenburg, H. K. Akerberg, Bartell Broadcasters, Inc., and Thad Holt, Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

William M. Smith, Washington, D. C., and Abraham L. Freedman, Philadelphia, Pa., for plaintiff.

Leon R. Brooks, Washington, D. C., and Samuel I. Rosenman. New York City, for defendants.

HOLTZOFF, District Judge.

This is an action to recover triple damages for violations of the antitrust laws. The action is before this Court at this time on defendants' motion for summary judgment.

The suit is predicated both on Section 1 of the Sherman Act, 15 U.S.C.A. § 1, which proscribes unreasonable restraints of trade, and Section 2 of the statute, 15 U.S.C.A. § 2, which bans monopolies and attempts to monopolize. The plaintiff is the assignee of the owner of a television station that was operating in the City of Milwaukee under the call letters of WCAN. It was a UHF station. The plaintiff claims that as a result of activities which it is asserted were in violation of the Sherman Act the defendant, Columbia Broadcasting System, Inc., practically destroyed the value of the plaintiff's station.

It must be borne in mind at the outset that the issues presented in an action brought by a private individual for triple damages caused by violations of the antitrust laws are entirely different from those in an action brought by the United States to enjoin such violations. In a private action it is not sufficient to show violations of the antitrust laws committed by the defendant. That is all that the government need show in an action brought by the United States. In a private action, however, it is essential for the plaintiff to show that such violations resulted in an injury to the plaintiff.

The facts are not in dispute so far as their salient features are concerned, and insofar as there is any difference in the approach or inferences to be drawn from the facts the Court necessarily will construe them most favorably towards the plaintiff since it is the defendants who move for summary judgment. The defendant, Columbia Broadcasting System, Inc., generally known as CBS, is a business concern that produces shows or programs to be broadcast by individual television stations. It distributes its shows or programs among numerous television stations throughout the United States, making a contract with each of them known as an affiliation contract, by which it undertakes to supply broadcasting material for the station, and the station in turn undertakes to allocate a certain amount of time for the production of such programs. In this instance, the plaintiff's station, WCAN, had an affiliation contract with the principal defendant, Columbia Broadcasting System, Inc. This affiliation contract, as was true with many other such contracts, contained a provision reserving to CBS the right to cancel at the end of any six months' period. In other words, CBS could cut off the affiliation of the station on six months' notice at any time.

The plaintiff's station was a UHF station. There was at the time in question another UHF station operating in Milwaukee. Under the then existing rules of the Federal Communications Commission a broadcasting corporation such as CBS was not permitted to become the owner of more than five television stations. The rule was modified so as to permit each television broadcasting corporation, in addition to owning five VHF stations, also to acquire not more than two UHF stations. When that rule became effective or was about to become effective, CBS determined to acquire a UHF station in Milwaukee. Instead of, however, acquiring the plaintiff's station it decided to acquire his competitor's station, WOKY. It did so by procuring an option on WOKY through an intermediary, so that the owner of WOKY was not aware that the real purchaser was CBS. Having procured this option, CBS then cancelled the affiliation contract with the plaintiff's station, taking advantage of the six months' provision. Obviously the cancellation of the affiliation contract seriously injured the plaintiff and greatly reduced the value of his station.

The basic question in this action is, however, whether this injury is damnum absque injuria or whether it was caused by any violation of the antitrust laws. It is claimed that certain uniform provisions that were inserted in affiliation contracts generally by CBS known as clauses providing for option time and similar provisions constitute illegal restraints of trade in violation of Section 1 of the Sherman Act. It is also claimed that as a result of the transaction just described CBS acquired a monopoly of UHF in Milwaukee in violation of Section 2 of the Act.

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3 cases
  • Egan v. City of Aurora, 58 C 2113.
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 10, 1959
  • Washington Post Company v. Keogh
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 28, 1966
    ... ... United States Court of Appeals District of Columbia Circuit ... Argued April 6, 1966 ... Decided July 28, ... E. g., Ross v. Esquire, Inc., 2 Cir., 94 F. 2d 75, 77 (1938). Malice, under the pre- ... mind should generally be a jury issue orginated in Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 ... ...
  • Poller v. Columbia Broadcasting System, Inc.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • November 10, 1960

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