SKY ANGEL U.S., LLC, Plaintiff, v. NATIONAL CABLE SATELLITE CORPORATION d/b/a C-SPAN, Defendant.
Civil Action No. 12-1834 (RC).
United States District Court, District of Columbia.
June 3, 2013.
941 F. Supp. 2d 88
RUDOLPH CONTRERAS, District Judge.
Because “§ 2244(d) is subject to equitable tolling in appropriate cases,” Holland v. Florida, 560 U.S. 631, —, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (citations omitted), petitioner may be able to proceed, but “only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2562 (citation and internal quotation marks omitted). Petitioner does not articulate, and the Court on its review of petitioner‘s submissions cannot identify, any extraordinary circumstance that would have prevented petitioner from pursuing habeas relief in federal court within the applicable time limit.
III. CONCLUSION
The Court concludes that the habeas petition is untimely. Accordingly, the Court will deny the petition and dismiss this action. An Order accompanies this Memorandum Opinion.
Bruce Douglas Sokler, Robert G. Kidwell, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Washington, DC, for Defendant.
MEMORANDUM OPINION
GRANTING DEFENDANT‘S MOTION TO DISMISS
RUDOLPH CONTRERAS, District Judge.
I. INTRODUCTION
This litigation arises out of the defendant‘s termination of a contract in which it granted the plaintiff a right to distribute reception of the C-SPAN television networks in real-time by means of a secure internet-based protocol stream. The plaintiff now brings claims under Sections 1 and 2 of the Sherman Act, alleging that the members of the defendant‘s board of directors partook in a group boycott and sought to maintain a monopoly over the market for real-time, multichannel video programming distribution services. The defendant moves to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. The Court finds that it has subject matter jurisdiction over the plaintiff‘s claims, but will dismiss the complaint without prejudice based on the plaintiff‘s failure to state a claim. The plaintiff will be given leave to amend its complaint.
II. BACKGROUND
A. The Parties
The plaintiff, Sky Angel U.S., LLC (“Sky Angel“), is a Florida-based company that operates FAVE-TV—a subscription service that distributes the content of television networks in real time, with a focus on “faith-based” and “family oriented” video programming. See Compl. (Dkt. No. 1) ¶¶ 7-8. FAVE-TV‘s programming lineup includes some mainstream networks, such as Fox News Channel and the Hallmark Movie Channel, as well as some lesser-known religious programming as part of its faith-based repertoire. See Compl. Exs. A & B (Dkt. Nos. 1-2 & 1-3). Sky Angel‘s system uses a closed and encrypted fiber-optic transmission path to carry the video programs to central locations, then distributes the programming from those central locations to television-connected set-top boxes via high-speed internet connections. See Compl. (Dkt. No. 1) ¶ 9.
The defendant, National Cable Satellite Corp., doing business as C-SPAN (“C-SPAN“), is a D.C.-based non-profit corporation that was created by the cable television industry and distributes video of legislative proceedings and other programming via three networks—C-SPAN, C-SPAN2, and C-SPAN3. See id. ¶ 13. C-SPAN‘s board of directors consists of many high-ranking executives and board members from some of the nation‘s largest telecommunications companies, including representatives from some of the largest multichannel video programming distributors (“MVPDs“). See id. ¶ 36. Sky Angel alleges that C-SPAN is controlled by cable
B. The Parties’ 2009 Contract
On May 28, 2009, Sky Angel and C-SPAN entered into an affiliation agreement (the “IPTV Agreement“), under which C-SPAN granted to Sky Angel a non-exclusive right to carry the C-SPAN networks “by means of an internet-protocol based stream which shall be secure and capable of being accessed only in a manner which would not allow any form of subsequent distribution ..., including without limitation, distribution over public Internet.” See Compl. Ex. E (Dkt. No. 1-6) § 1(a). The IPTV Agreement had a term of two years and was subject to renewal. See id. § 2.
C-SPAN and C-SPAN2 went “live” on FAVE-TV on or about July 10, 2009. See Compl. (Dkt. No. 1) ¶ 33. But on July 13, 2009, Peter Kiley sent an email on behalf of C-SPAN to Sky Angel‘s Executive Vice President that, on its face, confirms Sky Angel‘s earlier “agree[ment] to take C-SPAN and C-SPAN2 off [FAVE-TV] pending [C-SPAN‘s] review of [Sky Angel‘s] distribution technology and a precise legal framework.” Id. Mr. Kiley‘s email also expresses C-SPAN‘s belief that the “IPTV [A]greement does not allow for the type of delivery” implemented by Sky Angel. Id. Sky Angel alleges that, following this review, C-SPAN never provided a “valid explanation” for its termination of the IPTV Agreement. See id. ¶ 35. C-SPAN, in its filings, has asserted that Sky Angel‘s distribution technology includes use of public internet and thus breaches the IPTV Agreement, see Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 29, but Sky Angel claims that it was not informed of the basis for C-SPAN‘s breach of contract theory until C-SPAN made the assertion before the Court, see Pl.‘s Mem. P. & A. Opp‘n Mot. Dismiss (Dkt. No. 7) at 34. To date, C-SPAN‘s networks have not been reintroduced into FAVE-TV‘s lineup.
C. Procedural Background
Before bringing suit in this Court, Sky Angel filed a complaint with the Federal Communications Commission (“FCC“) against Discovery Communications, LLC (“Discovery“) arising out of a separate, but similar, contract dispute. As it did with C-SPAN, Sky Angel had entered into an affiliate agreement with Discovery (the “Discovery Agreement“) allowing Sky Angel to distribute Discovery‘s programming networks—including Discovery Channel and Animal Planet—on FAVE-TV. See Compl. (Dkt. No. 1) ¶ 58. After deciding that Sky Angel‘s distribution method was “not satisfactory,” Discovery notified Sky Angel of its intention to terminate the Discovery Agreement. See Sky Angel U.S., LLC, 25 FCC Rcd. 3879, 3880 (Apr. 21, 2010). In March 2010, before the termination took effect, Sky Angel filed a program access complaint against Discovery with the FCC pursuant to
Shortly after filing its petition, Sky Angel also moved the agency for a temporary standstill to keep the Discovery Agreement in effect while the administrative proceeding was pending. See id. at 3879-80. Applying a four-factor test similar to that used by the courts in a preliminary injunction analysis, the FCC denied Sky Angel‘s emergency petition for a temporary standstill and found that Sky Angel “has not carried its burden of demonstrating that it is likely to succeed in showing
In November 2012, Sky Angel filed a complaint against C-SPAN in this Court asserting two claims under the Sherman Antitrust Act of 1890 (the “Sherman Act“). See id. ¶¶ 60-67. Count I of the complaint alleges that C-SPAN‘s termination of the IPTV Agreement constitutes an agreement among C-SPAN‘s cable MVPD board members unreasonably restraining trade with Sky Angel—a group boycott and per se violation of Section 1 of the Sherman Act. See id. ¶ 44. Under Count II, Sky Angel alleges that C-SPAN‘s cable MVPD board members possess monopoly power in the market for real-time multichannel video distribution services, and that C-SPAN‘s termination of the IPTV Agreement was an unlawful maintenance of that monopoly in violation of Section 2 of the Sherman Act. See id. ¶¶ 64-67. Among other relief, Sky Angel seeks an order requiring that C-SPAN license its programming to Sky Angel under the terms of the IPTV Agreement “as if it had been perpetually renewed through the date of the order and thereafter for a period of no less than ten (10) years....” See id. ¶ VIII.B.
III. ANALYSIS
C-SPAN moves to dismiss Sky Angel‘s entire complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to
A. Subject Matter Jurisdiction
1. Legal Standard
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction....” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.“). It is the plaintiff‘s burden to establish by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Because subject matter jurisdiction focuses on the Court‘s power to hear a claim, the Court must give the plaintiff‘s factual allegations closer scrutiny than would be required for a
2. FCC Exclusive Jurisdiction
C-SPAN‘s motion to dismiss begins with the curious assertion that the
C-SPAN does not directly challenge this basic rule of jurisdiction, but attempts to cast doubt upon it by suggesting—without arguing explicitly—that Section 628 of the Communications Act supersedes the Sherman Act insofar as it relates to program access disputes and vests exclusive jurisdiction over such claims to the FCC. See, e.g., Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 9 (“Sky Angel may not circumvent the exclusive jurisdiction of the FCC and the courts of appeal by reframing its program access claim as an antitrust count rather than a Section 628 count.“). But C-SPAN does not provide any on-point legal support for its assertion. “Provisions for agency review do not restrict judicial review unless the ‘statutory scheme’ displays a ‘fairly discernible’ intent to limit jurisdiction, and the claims at issue ‘are of the type Congress intended to be reviewed within th[e] statutory structure.‘” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., — U.S. —, —, 130 S.Ct. 3138, 3150, 177 L.Ed.2d 706 (2010) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994)). “Whether a statute is intended to preclude initial judicial review is determined from the statute‘s language, structure, and purpose, its legislative history, and whether the claims
National Cable Television Co-op., Inc. v. Lafayette City-Parish, No. 10–2554-KHV-DJW, 2010 WL 4868158 (D.Kan. Nov. 23, 2010), which C-SPAN relies upon, is inapposite. That case involved a claim in which the plaintiff sought declaratory judgment as to the applicability of Section 628 itself. See id. at *1. Because the Declaratory Judgment Act does not itself create a case or controversy within the jurisdiction of the Article III courts, the justiciability of the plaintiff‘s claim thus relied directly on Section 628.
B. Failure to State a Claim
Having determined that it has jurisdiction over Sky Angel‘s Sherman Act claims, the Court now turns to C-SPAN‘s arguments that the complaint fails to state a claim under
1. Legal Standard
Under the
Nonetheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). The factual matter “must be enough to raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under this “plausibility” standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court considering a motion to dismiss need not accept a plaintiff‘s legal conclusions as true, id., nor must a court presume the accuracy of legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
2. Per Se Group Boycott (Count I)
Sky Angel alleges that C-SPAN‘s board of directors made a horizontal agreement to boycott Sky Angel—a per se illegal restraint of trade under the Sherman Act. A party seeking redress under Section 1 of the Sherman Act must allege “(1) that defendants entered into some agreement for concerted activity (2) that either did or was intended to unreasonably restrict trade in the relevant market,
a. Agreement Within a Single Entity
C-SPAN argues that Sky Angel‘s complaint against C-SPAN alone cannot stand because “[t]he sine qua non of a Section 1 violation is the involvement of multiple parties.” Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 16. While C-SPAN is correct that Section 1 “does not reach conduct that is ‘wholly unilateral[,]‘” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) (quoting Albrecht v. Herald Co., 390 U.S. 145, 149, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968)), the concerted action analysis “does not turn simply on whether the parties involved are legally distinct entities.” Am. Needle, Inc. v. Nat‘l Football League, 560 U.S. 183, 130 S.Ct. 2201, 2209, 176 L.Ed.2d 947 (2010). Because the Sherman Act “is aimed at substance rather than form[,]” United States v. Yellow Cab Co., 332 U.S. 218, 227, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), the Supreme Court has “eschewed such formalistic distinctions in favor of a functional consideration of how the parties involved in the alleged anticompetitive conduct actually operate.” Am. Needle, 130 S.Ct. at 2209.
When determining whether a single entity is capable of engaging in concerted action for purposes of Section 1, “[t]he relevant inquiry ... is whether there is a contract, combination[,] or conspiracy amongst separate economic actors pursuing separate economic interests such that the agreement deprives the market place of independent centers of decisionmaking, and therefore of diversity of entrepreneurial interests.” Id. at 2212 (citations and internal quotation marks omitted). And although there is a presumption that agreements within a single firm constitute independent action, “[a]greements made within a firm can constitute concerted action ... when the parties to the agreement act on interests separate from those of the firm itself....” Id. at 2215.
C-SPAN attempts to distinguish American Needle by arguing that the coverage provided on the C-SPAN networks is unique and would not be separately provided by the cable MVPDs if the C-SPAN entity did not exist. See Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 17 n. 6. The football teams who formed a joint venture to administer their intellectual property in American Needle, by contrast, had individually licensed their intellectual property before forming the joint venture. See id. While that was a factor in the Supreme Court‘s application of its “functionality” test, the Court did not frame it as a bright-line rule. See Am. Needle, 130 S.Ct. at 2214-15. Moreover, although the production of C-SPAN programming is uniquely in C-SPAN‘s hands, the MVPDs each distribute the C-SPAN networks on individually-priced cable or satellite plans. See Compl. (Dkt. No. 1) ¶ 50. Indeed, Sky Angel alleges that the termination of the IPTV Agreement resulted in a sacrifice of C-SPAN‘s revenue for no legitimate purpose other than to create barriers for those who compete with the cable MVPDs and who would exert downward pressure on the prices of their
b. Agency
Separate from whether C-SPAN board members are capable of concerted activity under Section 1, the parties also dispute whether Sky Angel has pleaded a factual context sufficient to support a plausible inference that an agreement among C-SPAN‘s cable MVPD board members did, in fact, exist. “Because [Section 1] does not prohibit all unreasonable restraints of trade but only restraints effected by a contract, combination, or conspiracy, the crucial question is whether the challenged anticompetitive conduct stems from independent decision or from an agreement, tacit or express.” Twombly, 550 U.S. at 553, 127 S.Ct. 1955 (citations and internal quotation marks omitted). At the
Sky Angel relies on an agency theory to support its allegation that the cable MVPDs on C-SPAN‘s board were behind the decision to terminate the IPTV Agreement. Specifically, without alleging any direct involvement by the board of directors—such as a formal vote to terminate the contract or an off-the-record direction given to C-SPAN‘s management—Sky Angel simply alleges that “[t]he acts charged in [its] complaint as having been done by defendant or its co-conspirators were authorized, ordered, or done by its officers, agents, employees, or representatives while actively engaged in the management of defendant‘s business or affairs....” Compl. (Dkt. No. 1) ¶ 12; see also, e.g., id. ¶ 34 (alleging that Peter Kiley‘s communication seeking removal of C-SPAN networks from FAVE-TV “was performed in his official capacity as an authorized agent of C-SPAN and reflected the corporate act of C-SPAN‘s management and its Board of Directors“). The complaint identifies only a single agent on behalf of C-SPAN, and Sky Angel argues that it “is entitled to presume that C-SPAN‘s actions are the product of an authorized majority of its governing body.” Pl.‘s Mem. P. & A. Opp‘n Mot. Dismiss (Dkt. No. 7) at 33 (emphasis added). But liability under Section 1 of the Sherman Act requires a “plurality of actors[,]” Copperweld, 467 U.S. at 769, 104 S.Ct. 2731, and Sky Angel has not demonstrated that agency principles can be used to impute the actions of one individual to multiple superiors. “Concerted action” between multiple persons remains a fact that must be pleaded.
Once the conclusory inference of agreement—through use of agency law—is stripped away from the complaint, Sky Angel‘s Section 1 claim rests solely on the fact that the top cable MVPDs have representatives on C-SPAN‘s board of directors. But merely pleading that multiple entities hold positions on a board of directors does not establish a horizontal agreement for purposes of Section 1. See Nat‘l ATM Council, Inc. v. Visa Inc., 922 F.Supp.2d 73, 93-94 (D.D.C.2013) (citing Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir.2008)). Because Sky Angel does not provide any factual context for the cable MVPD board members’ alleged agreement, the Court will dismiss Count I without prejudice.
3. Monopoly Maintenance (Count II)
For its second claim, Sky Angel alleges that C-SPAN terminated the IPTV Agreement in order to maintain monopoly power over the real-time, multichannel video programming distribution services market in violation of
a. Product Market
According to the complaint, the relevant market here is “[r]eal-time, multichannel video programming distribution services delivered by MVPDs....” Compl. (Dkt. No. 1) ¶ 22. C-SPAN argues that Sky Angel does not state a claim under Section 2 because this product mar
C-SPAN argues that “[i]t is impossible to know” whether the market includes broadcast television stations, distributors of recorded video programming, and online video distributors (“OVDs“)—all of which are mentioned in the complaint as participants in the video program industry. See Compl. (Dkt. No. 1) ¶ 15; Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 22. The Court finds this argument to be disingenuous. The complaint clearly states that such participants “are not distributors of real-time, multichannel programming“—the relevant product market at issue here. See Compl. (Dkt. No. 1) ¶ 22. C-SPAN‘s additional argument that it is unclear whether Netflix and Hulu Plus play any role in the relevant product market is similarly flawed, as both services appear to be OVDs and neither offers “real-time, multichannel” programming.
However, while the boundaries of the alleged product market can be ascertained from the complaint, its “rational relation to the methodology courts prescribe to define a market” is thin. Todd, 275 F.3d at 200. The complaint specifically alleges that the services of OVDs are not a substitute for those of real-time MVPDs, see Compl. (Dkt. No. 1) ¶ 22, but it does not provide a similar “lack of interchangeability” allegation supporting the exclusion of other video program industry participants whose programming is not “real-time” and “multichannel.” “If it is not clear whether a product is interchangeable with others, then some detail about lack of interchangeability should be given” in the complaint. 2B Phillip E. Areeda et al., Antitrust Law ¶ 531f (3d ed. 2007); see also, e.g., Queen City Pizza, Inc. v. Domino‘s Pizza, Inc., 124 F.3d 430, 436-37 (3d Cir.1997) (stating that failure to define the market by reference to the reasonable interchangeability—or lack thereof—of services is valid ground for dismissal at the
b. Geographic Market
C-SPAN also argues that Count II must fail for the independent
c. Market Power
Even assuming that the product and geographic boundaries of the relevant market were adequately pleaded, C-SPAN argues that the complaint does not allege that C-SPAN holds monopoly power over the relevant market. “Monopoly power is the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). “The existence of such power ordinarily may be inferred from the predominant share of the market.” Grinnell, 384 U.S. at 571, 86 S.Ct. 1698.
C-SPAN, of course, is a programming network and not a direct competitor in the market for real-time, multichannel video programming distribution services. See Compl. (Dkt. No. 1) ¶ 11; Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 25. Sky Angel argues that the market power lies not in the C-SPAN entity itself, but in “the authorized majority of the Board of Directors of C-SPAN.” Pl.‘s Mem. P. & A. Opp‘n Mot. Dismiss (Dkt. No. 7) at 37. The complaint alleges that cable MVPDs “dominate” the real-time, multichannel video programming distribution services market with a collective sixty percent market share. See Compl. (Dkt. No. 1) ¶ 37.4 But as C-SPAN points out, “Sky Angel may not aggregate the shares of multiple other entities” to arrive at a monopoly. See Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 26 (collecting cases). “[W]hen a small number of large sellers dominates a market, this is described as an oligopoly.” Oxbow Carbon & Minerals LLC v. Union Pac. R. Co., 926 F.Supp.2d 36, 46 (D.D.C.2013). “A monopoly arises when a single firm ‘controls all or the bulk of a product‘s output, and no other firm can enter the
Although there is no D.C. Circuit case law on point, several other courts and at least one other judge in this district have held that a “shared monopoly” theory cannot support a Section 2 claim. See id. at *6 (collecting cases). The Court agrees. Where the alleged monopoly is held by multiple separate companies within a market, there is no “monopoly” at all. Section 1—not Section 2—serves the purpose of prohibiting agreements unreasonably restraining trade in a shared market. See Sun Dun, Inc. of Wash. v. Coca-Cola Co., 740 F.Supp. 381, 390 (D.Md.1990) (“Oligopoly can, in some cases, violate Sections 1 and/or 3 of the Sherman Act, but competitors, by conspiring to maintain or create an oligopoly, do not run afoul of the Section 2 prohibitions against monopoly.“). The Court sees no plausible inference from the pleaded facts that a single entity wields or threatens to attain monopoly power over the alleged relevant market (both components of which are inadequately pleaded). Indeed, the complaint is premised on the alleged collective action of several cable MVPDs within a single, national market. For these reasons, the Court will dismiss Count II.
4. Injury
C-SPAN also argues that both claims are inadequately pleaded because the complaint does not sufficiently allege injury. While Sections 1 and 2 of the Sherman Act illegalize concerted activity restraining trade and monopoly maintenance, respectively, see
The Clayton Act, however, does not “allow suit by every party affected by an antitrust violator‘s ‘ripples of harm.‘” Andrx Pharms., Inc. v. Biovail Corp. Int‘l, 256 F.3d 799, 806 (D.C.Cir.2001) (quoting Blue Shield of Va. v. McCready, 457 U.S. 465, 476–77, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982)). To establish the “irreducible constitutional minimum” of injury to present a case or controversy under Article III, the plaintiff must show (1) that it suffered “injury in fact“—that is, “an invasion of a legally protected interest” that is “concrete and particularized”
a. Injury in Fact
Sky Angel alleges that C-SPAN‘s termination of the IPTV Agreement resulted in “lost profits, lost [sic] of business opportunity, loss of the ability to effectively compete, and injury to Sky Angel‘s prestige and reputation.” Compl. (Dkt. No. 1) ¶ 53. These harms are plausibly tied to FAVE-TV‘s loss of C-SPAN programming, as Sky Angel alleges that customers “wrote to inquire, complain, or request that C-SPAN‘s programming be restored.” Id. ¶ 54. C-SPAN argues that, given FAVE-TV‘s “extremely limited” lineup, “the loss of C-SPAN ... is highly unlikely to have had any competitive effect at all on Sky Angel.” Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 31 n. 10. But it stands to reason that, to the contrary, the loss of one of Sky Angel‘s few mainstream offerings may more likely prevent it from effectively competing with the major cable MVPDs, all of whom carry C-SPAN. See Compl. (Dkt. No. 1) ¶ 50. At this stage, the Court cannot make that determination. C-SPAN also points out that Sky Angel‘s complaint does not quantify its lost profits or number of subscribers, but that is not required in order to establish injury in fact at the pleading stage. See Zenith Radio Corp. v. Hazeltine Res., Inc., 395 U.S. 100, 114 n. 9, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (noting that a plaintiff‘s “burden of proving the fact of damage under ... the Clayton Act is satisfied by its proof of some damage flowing from the unlawful conspiracy; inquiry beyond this minimum point goes only to the amount and not the fact of damage“).
b. Antitrust Injury
C-SPAN also argues that Sky Angel has not sufficiently alleged its injury was caused by C-SPAN‘s supposed violation of antitrust laws—in other words, that Sky Angel‘s alleged harms do not “flow[] from that which makes defendants’ acts unlawful.”6 Brunswick, 429 U.S. at 489, 97 S.Ct. 690. “The antitrust injury re
Sky Angel alleges that it lost profits and business opportunities due to C-SPAN‘s termination of the IPTV Agreement. See Compl. (Dkt. No. 1) ¶¶ 53-57. The complaint also alleges that this same termination served to boycott Sky Angel and maintain the cable MVPDs’ monopoly, thereby reducing competition and allowing the cable MVPDs to maintain artificially high prices. See id. ¶ 51. From the face of the complaint, it therefore appears plausible that the same alleged violation both reduced competition and injured Sky Angel—that Sky Angel‘s injury “flows from that which makes [C-SPAN‘s] acts unlawful.” Brunswick, 429 U.S. at 489, 97 S.Ct. 690. This is sufficient to allege antitrust injury at the pleading stage. See also Andrx Pharms., 256 F.3d at 813 (holding that an agreement preserving a monopoly, constituting an illegal restraint of trade, caused both antitrust injury and injury in fact to a rival whose exclusion was effected by the agreement).7
C-SPAN would have the Court dismiss Sky Angel‘s complaint on the basis that its termination of the IPTV Agreement was caused by Sky Angel‘s supposed breach of contract, rather than any antitrust violation by C-SPAN. See Def.‘s Mot. Dismiss & Mem. Supp. (Dkt. No. 5) at 29-30. Specifically, C-SPAN argues that Sky Angel‘s distribution method uses public internet—a distribution method not permitted by the contract. See Compl. Ex. E (Dkt. No. 1-6) § 1(a). Although contract interpretation is a matter of law, see Adkins Ltd. P‘ship v. O St. Mgmt., LLC, 56 A.3d 1159, 1167 (D.C.2012); see also Compl. Ex. E (Dkt. No. 1-6) § 11(e) (selecting District of Columbia law to govern the contract), the Court declines to undertake a breach of contract analysis at the pleading stage, where the contract interpretation issue is not fully briefed and the only facts describing Sky Angel‘s distribution method are those set forth briefly in the complaint. In any event, Sky Angel‘s complaint alleges that C-SPAN‘s termination of the IPTV Agreement was motivated by anticompetitive animus, see Compl. (Dkt. No. 1) ¶¶ 38-40, and the Court will accept the truth of that allegation for purposes of the pleading stage. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
Although Sky Angel‘s two Sherman Act claims are inadequately pleaded, the Court finds that, if such violations did occur, the complaint sufficiently alleges injury in fact and antitrust injury at this stage.
IV. CONCLUSION
For the foregoing reasons, the Court grants C-SPAN‘s motion to dismiss (Dkt.
RUDOLPH CONTRERAS
United States District Judge
Notes
It seems appropriate for the Court to consider the doctrine of primary jurisdiction, under which it may postpone this case and direct Sky Angel to pursue this matter as a Section 628 claim before the FCC in the first instance. See, e.g., United States v. W. Pac. R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956) (“Primary jurisdiction ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” (internal quotation marks omitted)). C-SPAN, however, has expressly disavowed any desire to pursue this option, see Def.‘s Reply Supp. Mot. Dismiss (Dkt. No. 8) at 4 n. 1, and the Court will not invoke the primary jurisdiction doctrine sua sponte at this juncture.