186 F. Supp. 3d 107
D. Mass.2016Background
- WHDH, a Boston NBC affiliate, alleges Comcast (which acquired NBC) refused to renew WHDH’s affiliation and engaged in deceptive and anticompetitive conduct after announcing it would replace WHDH with a Comcast-owned station (WNEU). WHDH sued in March 2016 seeking contract, state consumer-protection, and federal/state antitrust relief; Comcast moved to dismiss.
- Before the merger Comcast/NBC made public commitments and entered an Agreement with the NBC Television Affiliates Association (NBCTAA) promising to support free over-the-air broadcasting; the NBCTAA Agreement was incorporated in the FCC merger approval in part.
- The NBCTAA Agreement expressly made local affiliates third-party beneficiaries of only certain sections (Sections 3, 7(A), 7(C)); WHDH claims broader rights under Sections 1–3 and alleges Comcast breached a duty to negotiate and separated retransmission and affiliation negotiations.
- Comcast announced in Sept. 2015 it would not renew WHDH’s 2017-expiring affiliation and later offered to buy WHDH at a reduced price; Comcast also transferred and upgraded NECN and later proposed using WNEU to carry NBC programming in Boston.
- WHDH alleged breach of the NBCTAA Agreement and implied covenant, Chapter 93A deceptive/unfair practices, monopolization and attempted monopolization under Sherman Act §2 and the Massachusetts Antitrust Act; it sought injunctive relief to preserve the affiliation or compel negotiations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Third-party beneficiary/standing to enforce Sections 1–2 of NBCTAA Agreement | WHDH says it is an intended beneficiary entitled to enforce Comcast’s promises to sustain free over‑the‑air service | Comcast/Agreement disclaims affiliate rights except for Sections 3, 7(A), 7(C); affiliates not intended beneficiaries of Sections 1–2 | Court: WHDH lacks standing to enforce Sections 1–2; only Sections 3, 7(A), 7(C) confer affiliate rights |
| Breach of Section 3 (separation of affiliation and retransmission negotiations) | WHDH alleges Comcast tied or delayed affiliation negotiations due to retransmission concerns | Comcast never engaged in retransmission or affiliation negotiations with WHDH to create an unlawful tie; Section 3 does not impose affirmative duty to negotiate | Court: No plausible breach — Comcast’s refusal to negotiate is not a Section 3 violation when no linking/negotiations occurred |
| Sherman Act §2: monopolization/attempted monopolization based on refusal to deal | WHDH contends Comcast’s vertical integration and replacement of WHDH with an owned‑station is exclusionary and harms competition and viewers | Comcast argues unilateral refusal to deal and vertical integration are lawful; replacing an affiliate is ordinary supplier conduct, not anticompetitive exclusion | Court: Dismissed antitrust claims — refusal to renew is not exclusionary conduct; vertical integration/replace‑affiliate conduct lawful absent special circumstances like Aspen Skiing facts |
| Chapter 93A (fraud, sham negotiations, deceptive merger commitments) | WHDH alleges fraudulent misrepresentations to FCC/public, sham negotiations, and a plot to devalue and acquire WHDH cheaply | Comcast argues no actionable misrepresentation caused WHDH independent injury; gave advance notice and had no duty to renew; merger commitments not individually enforceable by WHDH | Court: 93A claims insufficiently pleaded — no causal, independent injury from Comcast’s statements; fraud/sham negotiation allegations lack specificity and required causal showing |
| Equitable relief / compelled duty to deal | WHDH seeks injunctive relief compelling negotiations or renewal to preserve public access | Comcast warns courts cannot impose or supervise a compulsory duty to negotiate where no framework exists; Trinko warns against forced sharing | Court: Refused to impose a duty to deal — courts should not create supervised, ongoing bargaining obligations absent clear legal basis |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (labels/conclusions insufficient; factual plausibility required)
- Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) (reluctance to impose antitrust duty to deal; Aspen at outer boundary)
- Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) (exceptional refusal-to-deal facts may support §2 liability)
- Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147 (1st Cir. 1994) (definition of exclusionary conduct)
- United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (possession of market power alone not sufficient for liability)
- Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112 (1st Cir. 2011) (vertical integration and distributor termination generally not antitrust injury)