RSA Media Inc v. AK Media Group

• Decision Date: 08 June 2001
• Docket Number: No. 00-2508,00-2508
• Citation: 260 F.3d 10
• Parties: (1st Cir. 2001) RSA MEDIA, INC., Plaintiff, Appellant, v. AK MEDIA GROUP, INC., Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 10

260 F.3d 10 (1st Cir. 2001)

RSA MEDIA, INC., Plaintiff, Appellant, v. AK MEDIA GROUP, INC., Defendant, Appellee.

No. 00-2508

United States Court of Appeals For the First Circuit

Heard June 8, 2001

Decided August 6, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge] James Coyne King, with whom David C. Kravitz, Katherine L. Kenney, and Hanify & King, were on brief, for appellant.

Mark I. Levy, with whom James G. Kress, Amy Fitzpatrick, Elizabeth J. Chandler, Howrey Simon Arnold & White, L.L.P., George A. Berman, Posternak, Blankstein & Lund, L.L.P., Marguerite S. Willis, Nexsen Pruet Jacobs & Pollard, were on brief, for appellee.

Before Torruella and Lipez, Circuit Judges, and Tauro,^* District Judge.

TORRUELLA, Circuit Judge.

AK Media Group, Inc. ("AK") controls approximately 2200 of the 2400 billboards in the Greater Boston area. RSA Media, Inc. ("RSA"), a more recent entrant in the outdoor advertising market, sued AK, claiming that AK's policies violated §§ 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1-2, and constituted unfair trade practices prohibited by Mass. Gen. Laws ch. 93A.¹ The district court granted AK summary judgment on the § 2 monopolization claim, holding that the policies in question were not sufficiently related to RSA's injuries to support a finding of antitrust standing. RSA Media, Inc. v. AK Media Group, Inc., No. 97-11250-RWZ, at 6 (D. Mass. Oct. 3, 2000). The court also dismissed the 93A claims based on the lack of causation. Id. at 7. On appeal, we affirm.

BACKGROUND

Our review of the district court's grant of summary judgment is de novo, with the facts taken in the light most favorable to the non-moving party, here, RSA. Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).

A. The Outdoor Advertising Market

The highly regulated nature of the billboard market in the Greater Boston area makes it impossible, or at least nearly impossible, to obtain a permit to build a new billboard. RSA Media, No. 97-11250-RWZ, at 3. Federal, state, and local law all play a significant role in this regulatory regime. The Highway Beautification Act of 1965 regulates billboards on or near interstate highways. 23 U.S.C. § 131 et seq. The Massachusetts Outdoor Advertising Board ("OAB") controls the state licensing and permitting process, pursuant to an extensive set of state-promulgated regulations.² Mass. Gen. Laws ch. 93 §§ 29-32; Mass. Regs. Code tit. 711, § 3.00 et seq. To participate in the outdoor advertising market, a prospective billboard owner must obtain a license from the OAB. Mass. Regs. Code tit. 711, § 3.02(1). Furthermore, a billboard operator must obtain a permit for each billboard that he operates. Id. § 3.02(2). A billboard operator must also negotiate a lease with the owner of the property on which the billboard sits.³

Many of the existing billboards in Boston are "grand fathered," meaning that they are in locations in which a new billboard would be prohibited by either federal or state law or by local zoning ordinances. RSA Media, No. 97-11250-RWZ, at 2. If a grand fathered billboard is torn down, no new billboard can be built in that location. Id. Although there are currently non-grand fathered billboards in locations which would theoretically allow the construction of a replacement billboard, as a practical matter it is extremely difficult, if not impossible, to obtain approval for a replacement billboard from both the OAB and local zoning authorities.⁴ Id.; see also Mass. Regs. Code tit. 711, § 3.07 (requirements for new permits). The effect of these regulations is to make the number of billboards in Greater Boston either static or diminishing. RSA Media, No. 97-11250-RWZ, at 2.

B. AK's Position in the Market and Relevant Conduct

For purposes of this action, AK does not dispute that, as it controls nearly 92% of the billboards in Greater Boston, it possesses monopoly power in the Greater Boston billboard advertising market. Id. at 3. Although it must contract with landlords to operate billboards on particular pieces of property, AK owns nearly all of the billboard structures which it operates. Moreover, for each billboard that it operates, AK holds the necessary permits and annual licenses issued by the OAB. As a matter of policy, AK "actively seeks to maintain its position in the market through a policy that centers on preserving [its leases with property owners] and on maintaining control of [its licenses and permits]." Id. As part of this policy, AK refuses to sell or transfer billboards or permits, even when it no longer holds tenancy rights to the underlying property. In fact, AK promises that it will destroy its billboards rather than sell them, and hold and renew its permits indefinitely, rather than abandon them.

RSA sought to increase the number of billboards that it operated by negotiating leases with landlords who currently rented space to AK. It claims that it was unable to do so because of AK's so-called "drill"; i.e., AK's explanation to landlords of why it would be foolish on their part to end their tenancy relationship with AK and negotiate a new lease with RSA. According to RSA, AK told landlords that: (i) if a landlord chose to negotiate a lease with RSA, AK would tear the billboard down rather than transfer it to either the landlord or RSA; (ii) AK would not abandon its permits even if it no longer had tenancy rights to the property on which the billboard sat; (iii) if AK destroyed the billboard, it would be impossible for RSA to get a permit to construct a new billboard on that spot; and (iv) as a result of RSA's prospective inability to get a permit, the landlord would receive no rent if it chose not to negotiate a lease with AK. RSA claims that this "drill" was exclusionary conduct of a monopolist actionable under § 2 of the Sherman Act.

C. The District Court Decision

For purposes of its decision, the district court assumed that AK routinely made the alleged representations to its landlords and that such conduct was "exclusionary" under antitrust law. However, it found that RSA lacked standing to challenge such exclusionary conduct because "as a matter of law [the conduct was] not sufficiently related to [RSA's] business difficulties to support a finding of antitrust injury or antitrust standing." Id. at 6. "[RSA] would have encountered the same difficulties [in entering the market] had [AK] said nothing at all to landowners concerning the regulatory environment, and in any case several landowners obtained independent legal advice which confirmed the hostility of the regulatory environment to billboards." Id. In other words, the district court held that RSA's inability to enter the market for outside advertising -- its claimed injury -- was a byproduct of the regulatory scheme rather than a result of AK's conversations with landlords. Id.

DISCUSSION

A. The Sherman Act Claim

Section 4 of the Clayton Act, 15 U.S.C. § 15, provides a private cause of action for antitrust violations. Although the statute is written broadly,⁵ the Supreme Court's doctrine of antitrust standing has significantly narrowed the number of persons entitled to bring suit. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 529-35 (1983); Blue Shield of Va. v. McCready, 457 U.S. 465, 477 (1982); Serpa Corp. v. McWane, Inc., 199 F.3d 6, 9-10 (1st Cir. 1999). Standing in an antitrust case is "not simply a search for an injury in fact; it involves an analysis of prudential considerations aimed at preserving the effective enforcement of the antitrust laws." Serpa, 199 F.3d at 10 (quoting Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1449 (11th Cir. 1991)).

The Supreme Court has set forth a six-factor test to determine whether a plaintiff has standing to bring an antitrust action. These factors are:

(1) the causal connection between the alleged antitrust violation and harm to the plaintiff; (2) an improper motive; (3) the nature of the plaintiff's alleged injury and whether the injury was of a type that Congress sought to redress with the antitrust laws ("antitrust injury"); (4) the directness with which the alleged market restraint caused the asserted injury; (5) the speculative nature of the damages; and (6) the risk of duplicative recovery or complex apportionment of damages.

Serpa, 199 F.3d at 10.

Although we technically balance the six factors to determine if standing is appropriate, Sullivan v. Tagliabue, 25 F.3d 43, 46 (1st Cir. 1994), this Court has emphasized the causation requirements of that test. See Serpa, 199 F.3d at 10-12; Sullivan, 25 F.3d at 47 & n.9. Both the first and fourth factors expressly require causation between the alleged violation and the alleged harm. And although the third factor does not explicitly raise the issue of causation, the Court has defined "antitrust injury" as "injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (emphasis added). In other words, the third factor of the standing test requires a proper plaintiff "to prove more than injury causally linked to an illegal presence in the market." Id. The plaintiff must prove that the injury is "the type of loss that the claimed violations . . . would be likely to cause." Id. (quoting Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 125 (1969)). Even when a causal link has been established between the alleged violation and the injury, the absence of "antitrust injury" will generally defeat standing. Serpa, 199 F.3d at 10-11 (distributor lacks antitrust standing because it cannot have suffered antitrust injury); Sullivan, 25 F.3d at 47 (absence of antitrust injury, plus indirectness of causal link, outweighs positive proof on remaining factors).

RSA does not really dispute this analysis.⁶ Instead, it...