RFD Publications, Inc. v. Oregonian Pub. Co.

• Decision Date: 20 December 1984
• Docket Number: No. 84-3694,84-3694
• Citation: 749 F.2d 1327
• Parties: 1985-1 Trade Cases 66,326 RFD PUBLICATIONS, INC., Plaintiff-Petitioner/Appellant, v. OREGONIAN PUBLISHING CO., and Newhouse Newspapers, Defendants-Respondents/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1327

749 F.2d 1327

1985-1 Trade Cases 66,326

RFD PUBLICATIONS, INC., Plaintiff-Petitioner/Appellant, v. OREGONIAN PUBLISHING CO., and Newhouse Newspapers Defendants-Respondents/Appellees.

No. 84-3694.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 9, 1984.

Decided Dec. 20, 1984.

Albert R. Malanca, Tacoma, Wash., Doug Ragen, Portland, Or., for plaintiff-petitioner/appellant.

John Hanson, Los Angeles, Cal., Wayne Hilliard, Portland, Or., for defendants-respondents/appellees.

Appeal from the United States District Court for the District of Oregon.

Before SKOPIL, FARRIS, and BEEZER, Circuit Judges.

FARRIS, Circuit Judge:

BACKGROUND

This case is before us on interlocutory appeal from the grant of partial summary judgment in favor of Oregonian Publishing Co. and the denial of RFD Publications' cross motion for summary judgment. The only issue on appeal is whether Oregonian's sale of advertising space in a section of its newspaper that is mailed to nonsubscribers constitutes the sale of a single service or two distinct services for the purposes of predatory pricing analysis. The district court held that only one service is present. We have jurisdiction pursuant to 28 U.S.C. Sec. 1292(b).

RFD publishes This Week, a weekly magazine carrying large amounts of advertising that is mailed free of charge to substantially all households in the metropolitan Portland area. Oregonian publishes The Oregonian, a major daily newspaper in the metropolitan Portland area. The Wednesday edition of The Oregonian includes a section entitled "FOODday," which, in a slightly altered format, is mailed to nonsubscribers together with a supplement called "Update." Oregonian charges advertisers who purchase space in FOODday a single price that is slightly higher than that charged for space in the other sections of The Oregonian, which are not mailed to nonsubscribers. Oregonian does not sell advertising space only in the version of FOODday that is mailed to nonsubscribers, and advertisers have not indicated any interest in placing advertisements only in the mailed version of FOODday.

RFD brought this antitrust action, alleging that Oregonian violated Section 2 of the Sherman Act, 15 U.S.C. Sec. 2, by predatorily pricing advertising space in FOODday. RFD asserts that advertising in the mailed and delivered versions of FOODday are two separate services for the purposes of antitrust analysis and that Oregonian's rates for advertising in the mailed version are below its costs of providing that service.

STANDARD OF REVIEW

In reviewing a grant of summary judgment, our task is identical to that of the district court. The district court's grant of summary judgment will be affirmed if, viewing the evidence and the inferences therefrom in the light most favorable to the party opposing the motion for summary judgment, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Jewel Companies v. Pay Less Drug Stores Northwest, Inc., 741 F.2d 1555, 1559 (9th Cir.1984); Prestin v. Mobil Oil Corp., 741 F.2d 268, 269-70 (9th Cir.1984).

DISCUSSION

RFD concedes that "advertisers were not interested in purchasing the service of delivering ads [in FOODday] to nonsubscribers if they could not at the same time purchase the complementary service of delivering ads to subscribers" to The Oregonian, but argues that this fact is "totally irrelevant." In fact,...