*1 BROADCASTING POLLER v. COLUMBIA SYSTEM, INC., et al. February 19, 1962. 13-14, 1961. Argued 45. November No. Decided *2 argued Morris for petitioner. the cause With Wolf Abraham, him on L. the briefs was Freedman. I. argued Samuel Bosenman for respondents. the cause him With on the briefs was Doskow. Leon Ambrose Brooks an entered appearance. the opinion delivered of the Court.

MR. Justice Clark The question involved here is whether treble damage action alleged based on of the violations restraint of trade and monopoly of Sherman Law1 sections rightly by a summary judgment terminated of dis- missal. The petitioner, Poller, assignee Lou is the Broadcasting Company, corporation. Midwest a dissolved In 1954 Midwest was the operator WCAN, owner and high frequency (UHF)2 ultra broadcasting station

1 provides “Every 1 of the contract, Section Sherman Act that: com conspiracy, bination in the otherwise, form of trust or or in restraint foreign among States, of trade or commerce the several or with nations, hereby illegal 209, be . declared to . . .” 26 Stat. as amended, 15 U. S. C. 1.§ “Every provides person

Section Sherman Act that: who monopolize, attempt monopolize, conspire shall or to or combine or person persons, monopolize any with other part or of the trade among States, foreign nations, or commerce the several or with shall guilty amended, deemed misdemeanor Stat. 15 U. S. C. 2.§ high frequency (TJHF) very high The terms ultra fre (VHF) quency lengths impulses refer to the wave of the electrical projected broadcasting carry programs which are stations to receiving only portion sets. Prior to 1952 spectrum VHF Generally was authorized. TV receivers are manufactured signals receive VHF and must be modified an owner to receive UHF. was affiliated The station

located in Milwaukee. System and was of Broadcasting network the Columbia that the charged Poller alleged 12,000,000. value of conspiracy an unlawful in 1954 entered into respondents field in Milwau- the broadcast from to eliminate WCAN Holt respondent part kee.3 was WOKY, option in his name an was to secure in Milwaukee. inferior broadcaster competing but Commission and if Federal Communications When con- ownership rules, then under multiple amended its permit CBS to own UHF stations sideration, so as option his assign Holt was to ones, addition to its YHF *3 agreed event, In that it was to if it so elected. CBS with agreement affiliation WCAN CBS would cancel its contract and due course pursuant option to its in that place This purchase consummate its of would WOKY. competing of precarious position in the WCAN two national with stations Milwaukee. major networks Being only such its course competition, unable survive liquidate prices at distressed its valuable would be to equipment only acquired. CBS recently and facilities price then in its might acquire them at its own use necessary operation new which was because of the inferior of then Mid- quality those of WOKY. CBS would superior equipment west’s facilities and which with the broadcasting it to start at WOKY license would enable delay. a minimum expense possible and the least Poller claimed that purpose further overall CBS was tó destroy only per- broadcasting, which been 1952, protect mitted to field in enter the order its throughout vast interest VHF stations the United Finally, alleged States. he was so suc- not only acquired cessful CBS WCAN at a loss 3 conspirators alleged Broadcasting Sys The were to be Columbia tem, Inc.; CBS-TV; Volkenburg, CBS-TV; J. L. Van President of CBS-TV; Akerberg, H. K. Broadcasters, Vice President Bartell WOKY; management Inc., Holt, and Thad owners consultant. $1,460,000 obliged to Midwest but that the latter was buy the facilities exorbitant equipment WOKY at prices agree broadcasting and to to continue from the lat- premises “in pretend ter’s was done order to —which there competi- was no restraint of trade or elimination of . . .” tion . However, continued business WCAN days only 10 after February CBS started its broadcasts on 17, 1955. broadcasting CBS discontinued UHF when became affiliated with Milwaukee VHF station. At the on the hearing summary motion for judgment judge injury held that the was damnum suffered injuria, stating that had a absque right WOKY, subject Federal Communications Commission approval, and to cancel its affiliation contract with F. The Supp. Appeals WCAN. 802. Court of Judge Washington affirmed with S. dissenting, 109 U. App. D. F. 2d 599, granted C. and we certiorari, 365 U. S. 840. genuine We now conclude there was a summary judgment issue as to material facts and that therefore in order. I.

Summary judgment should entered when the *4 pleadings, affidavits, and depositions, admissions filed the [except damages] case “show that the amount of genuine any is there no issue as to material fact that moving party the is entitled to a judgment as a matter of (c), law.” Rule 56 Fed. Rules Civ. Proc. This rule summary judgment “only authorizes moving where the party as a judgment is entitled to matter of it law, where quite is, is what . . gen- clear the truth . no [and where] uine issue remains for trial . . . purpose the [for] rule is cut off litigants right by not to from their of trial really jury they to try.” issues Sartor v. Arkansas Natural Gas Corp., (1944). U. S. We now examine the of the parties contentions to determine under whether the rule summary judgment proper. was

H. summary judgment for in their motion respondents The The first persons. of four upon the affidavits depended Jay CBS; another, President Salant, Richard Vice third, a Division; Research its Eliasberg, Director aat to CBS who made the sale WOKY Bartell, Lee Holt, who Thad codefendant $50,000 finally, profit; sup- These were transaction. $10,000 from the received depositions petitioner’s taken from plemented by material readily It of Salant and CBS President Stanton. interested persons was an each of these apparent party. reliance

Respondents appear place most on the Salant up in some testimony, shall, therefore, and we take being It the projects defenses, detail. three first following for reasons: CBS- conspiracy there was no only a separate entity CBS, was not a but division of TV and therefore there could be no between the two; securing Holt, option pur- man cover given by of WOKY, particular job” chase “had been conspirator; CBS and therefore and Bartell illegal never shared in him purpose bring would conspiracy. into Secondly, event, legality issue the case is the of the cancellation of the affiliation agreement by merely which legal CBS exercise CBS of right “the normal producer product.” select outlet its And, finally, charges monopoly are entirely “frivolous.” The trial judge accepted the second defense.

III. may independent action could have granted right exercised its to cancel WCAN’s affilia- upon tion six months’ notice and independently pur- *5 chased its own outlet Milwaukee. However, such a cancellation and part were parcel and of unlaw- agreement or with others or were conceived ful conduct trade, market, control a unreasonably restrain purpose might run well afoul monopolize, or then such conduct Times-Picayune Pub. Co. v. Law. Sherman See States, (1953); Eastman United 594, 345 U. S. 624-625 Co., Co. Materials Kodak v. Southern S. U.

(1927). alleges affidavits, depositions, Poller and the more the exhibits indicate much than free exercise A granted right the of cancellation. is CBS of to restrain trade the Milwaukee television mar- alleged ket; market; to eliminate from that secure its WCAN at depressed prices; occupy facilities and to the band UHF in that market exclusively. right The cancellation was merely one of the means conspiracy. used effectuate this Moreover, “in its wider sense” Poller claims that a part of their conspiracy wipe outstanding was “to out most the country operator by wiping UHF the [WCAN] him they destroyed out industry, which was to them, despite threat their protestations, because of enormous they economic investment had VHF.” argued conspire cannot CBS with itself. However, begs question allegation e., independent parties, i. Holt and Bartell, conspired with

CBS and its respondents’ officers.4 While affidavits assert in good special Holt acted faith agent or employee for completely CBS and that Bartell was free of any evil motives directed WCAN, toward judge indicated a belief that Holt was “an independent actor” and would have submitted question of his status jury he not disposed of the case on other grounds. Furthermore, deposition Poller submitted a Holt, an exhibit to which showed CBS had furnished Holt pass upon point urged by We do not Poller that under corporate arrangement divisions, separate officers and autonomy each, corporate the divisions came within the rule as to subsidiaries. *6 market complete analysis writing

a of the Milwaukee there, and stations ownership and the affiliation of the TV Holt had including deposition WCAN. The revealed that necessary and knowledge purpose the obvious effect plan independent of the to eliminate would be in its personal and that he had a stake success. Milwaukee alia, met included, This inter Holt’s he statements his top briefing CBS officials in New York a on for role, that a officials, he was close friend of these for if unused option he would retained the himself admissions, The latter when with the coupled CBS. uncertainty at that of time a Federal Communications purchase Commission permitting WCAN, rule CBS to suggest plan the alternative was to let Holt option exercise and take affiliation CBS could Likewise, barely page not. Bartell’s a and a affidavit, record, negative allegations half in the of does conspiracy. Unquestionably, knowing after that Holt acting truth been CBS and that the sale would prove WCAN, papers disastrous to he did certain file with the Federal requesting Communications Commission approval oppor- sale of Poller had WOKY. no tunity to him a although key cross-examine he wit- respondents’ theory ness to of the case. And is noted though that even the transfer was uncontested before the Federal approval Communications Commission it received a vote three Commissioners with remaining strongly dissenting.5 might two be that on Poller his claims substantiate even could against Bartell, although necessary this would not be his case.

Respondents’ charge answer to the that one of the purposes alleged conspiracy was to exert restrain- ing upon development effect of UHF is that this is a Reg.

5 11 Pike Fischer Radio 914. assumption “fantastic which there is not shred —for analysis evidence.” An of the record seems to indicate that in were prior WOKY there *7 assigned three channels to Milwaukee the Fed- UHF (WCAN eral Communications two of which Commission, WOKY) and operating; were that since December studying CBS had been markets to preparatory UHF an in expected change Commission rules that would allow

it to in purchase two UHF stations addition to its five ones; Louis, VHF that its staff rated St. New Pittsburgh, Haven-Hartford, and in Milwaukee, order, that as the most attractive; that CBS to enter the latter market chose buy rather than in operate WOKY to Milwaukee on third channel; profitable available that WCAN’s operation in competition even with lower rates and “immediately from a WOKY, losing” converted to although one, in 1955 WOKY was out of business; reported $130,000 loss of about under CBS operation sharply contrasted 66% increase in profits nationally. its reports Furthermore, always the record from CBS itself show that it recognized “a VHF station . . . would preferable to a .” . . but UHF the latter had “specially good short-term prospects” (emphasis supplied) in Milwaukee because it had “the being characteristic of at present” (1954) “single a station” market. CBS further recog- its programing “already working nized that since build . up population set . . [through UHF WCAN] would be no short-term loss to the [t]here network continuing give the support of CBS programing buildup population of UHF ... at until more least VHF stations come in.” (Emphasis supplied.)

The record indicates that Poller had up profit- built operation, recognized able which was as “the most in the successful” United States. Even CBS officials it an pointed example how “a vigorously and in that managed station com- aggressively new UHF year its munity period can do the short well.” great so public acceptance Milwaukee was 90% area at modified, TV sets had been 260,000 able $20 to each so as to be expense owner, some enlarge CBS had refused to signals. receive UHF While at no to the clause, prior cancellation time the six-month alleged did indicate an intention to cancel conspiracy claims, only pur- affiliation.6 It Poller was, WCAN that CBS came into the Milwaukee suant to market and eliminated both WCAN and Since WOKY. time total number of commercial UHF stations steadily States has declined from 121 at the the United midyear end 1953 to 94 1956. At the close of 1957 *8 only number In 1958 CBS itself was 88. abandoned and in Hartford, very station 1959 the station controversy abandoned, leaving here likewise Milwau- Instead, no commercial UHF service. CBS has kee with affiliating YHF, Broadcasting with Storer switched station which was authorized same Company there the year. It be remembered that Mr. is same will Storer he prospect who, claims, pay Poller indicated would $2,000,000 multiple for when the rule adopted WCAN warning. may after a CBS All this not but who cooled finding sufficient to warrant that Poller contends be charge, for on this but it does indicate more than fantasy, particularly light testimony CBS Vice deposition President in his Salant “it would be the kiss of death UHF either NBC or CBS abandoned a UHF station.” may upon all of the jury be evidence a would respondents. say

be with the But we cannot on this quite record that “it is clear what the truth is.” Cer- 6 Indeed, light such action would be unreasonable of the success operation highly prospects of Midwest’s and its initial favorable expanded equipment. facilities and new tainly supporting there is no conclusive evidence theory. respondents' summary look at the record on We light in the judgment Poller, party most favorable to here opposing motion, conclude should granted. summary procedures have been We believe that sparingly complex litigation should be used antitrust play motive leading roles, proof where and intent largely in the hands the alleged and hostile conspirators, plot.7 witnesses thicken the It is when the witnesses present are subject cross-examination that their credibility weight given testimony and the to be their can Trial appraised. is no affidavit substitute for by jury long which so has been the hallmark of “even justice.” handed

IV. Other respondents ready contentions of are subject disposition. They say no restraint of resulted trade from CBS' termination of its affiliation with WCAN this enabled it to support WOKY, the other UHF station in the area, Milwaukee which upon based Poller's own allegations was doomed without an affiliation. To the extent that argument suggests this that there no viola- tion of the antitrust will public laws because the still same receive the has been service, it foreclosed Broadway-Hale Stores, Court’s decision Klor’s v. *9 (1959). say S. 207 And if it is U. meant there canceling was no restraint because CBS in its affiliation merely right with WCAN was what it had a doing resulting do and the demise of followed from WCAN it conditions, erroneously normal market assumes right despite had an CBS absolute violations of anti- its privilege. trust laws to exercise contractual Part See A III, supra. respondents’ further answer to the conten- 7 Kennedy Co., Mason v. Silas Compare 249, 334 U. S. 256-257 States, Arenas v. United (1948); (1944). 419, U. S. claim has an additional regard is that Poller

tion the destruction of UHF part CBS that is The sole answer of broadcasting entirely. charge. such a support of evidence” to is not a shred “there and the issue yet, trial as there has been no However, pleadings disputed one under factual remains still undetermined. charges friv- monopolization are contends that the claims. unclear on these find the record

olous. We forego any merits, for a trial on the we of our remand view complaint allege thereon. The does comment argued In the trial court it was market involved. relevant market, but broadcasting Milwaukee was the that UHF are unable to determine that issue. the record here we on allegations on may appropriate be that a trial well gen- of 2. proof showing § can be adduced violations See States, erally Boxing Club v. United International 249-252 E. I. Pont 242, (1959); S. United States v. du U. (dis- Co., (1957) & 353 U. S. 648-654 de Nemours senting good judicial opinion). believe We administration to withhold on these issues. decision and remanded.

Reversed Mr. Justice with whom Mr. Justice Frank- Harlan, furter, Mr. and Mr. Justice Justice Whittaker dissenting. Stewart join, cases,

As I this is one of those not unfamiliar it, see treble-damage litigation, injury resulting where from nor- sought mal hazards is to be made business redressable casting the affair in antitrust I terms. think that fit this case, antitrust laws do not and that the courts quite holding respondents below were correct in that the were entitled to judgment as matter of law. litigation

The out of arises CBS’ cancellation of arrangement affiliation WCAN, television broadcasting Milwaukee, station in owned Midwest

475 property of whose Poller Company Broadcasting that such cancellation was but maintains assignee. CBS right. says exercise of a contractual Poller legitimate monopolize a to restrain and it of part that was of broadcasting business, in the violative trade television of Suing § 2 Act. under 4 1 and of the Sherman §§ damages the Poller seeks to recover as Clayton Act,1 equipment, of fair the WCAN station trebled value he price at a distress claims was forced whose sale to CBS him upon consequence CBS’ cancellation of the contract. WCAN affiliation CBS, conspira- joined

Poller asserts that others as him put step wanted to out of business as the first tors, grand design destroy broadcasting UHF Milwau- if throughout not indeed States. It is kee, United growth upon said that CBS looked with disfavor broadcasting, being already heavily itself com- subsidiary steps As mitted to YHF. towards the effec- charged plan, pro- tuation of this that CBS chilled spective purchasers WCAN; acquired then competing Milwaukee, WOKY; UHF station and later closed that station down.2 co-conspirators CBS’ are said CBS-Television, unincorporated been division CBS; certain officers of CBS; Bartell, the then owner WOKY; management Holt, consultant, who at behest an option CBS’ obtained from Bartell WOKY.

I assume that Poller would proceed be entitled to the record before the District open Court had left “Any person injured Under U. S. C. who shall be his § property by anything business or reason of forbidden in the antitrust given private right laws is of action.” allegations complaint The last of these was not included in the acquired by operations since the station CBS did not cease until after brought. alleged, however, petitioner’s sup this suit was It was plemental response summary judgment. affidavit in to the motion for

476 alleged con- as to whether of fact question a genuine sta- of all UHF the elimination object as its spiracy had if it that appeared area, or even in Milwaukee tions upon respondents entered might prove petitioner stations number UHF to reduce the this course order owned one, which to be from two was in Milwaukee I think But, given below, for reasons outright CBS.3 and before affidavits which were depositions that the certainty that such practical disclosed to a District Court not be made. proof could arrange- open proof alleged remain

What did division, its and its officers among CBS, television ment with one agents whereby and canceled an affiliation purchased competing of a UHF station the facilities among sought if somewhere those to be station. Even drawn into net can two petitioner's there be found inde- pendent meeting actors whose of minds satisfy would conspiracy requirement of “plurality parties,” usual agreement carry their design my out that would not, open If prove such issues of fact were could at the respondents’ unlawful, motives were I think it would still upon prove be incumbent him to the disaffiliation of WCAN part illegal record, scheme. There is evidence in the contradicted, tending to show that CBS would have canceled regard purchase affiliation without to its of the Bartell If station. so, much, all, petitioner’s alleged if not loss would have been “by incurred act, any because of this unilateral and not reason of thing forbidden in the antitrust laws.” respondents’ While I do not reach contention that no consensual arrangement shown, say kind was I must that the Court has very suggesting may stretched far in that Holt been a “con spirator.” beyond shows, The possibility record real of contra diction, simply engaged by that Holt was it, CBS to act for as principal, procuring option undisclosed from Bartell an concerned, WOKY. So far Bartell is it stands uncontroverted in he option record that never knew of CBS’ interest in Holt’s until it was exercised CBS. 1 or 2 of proscribed by §§ of itself offend view, anything Act. Sherman I. passing summary judgment, on the motion

District it more than the four affidavits Court before *12 of Court’s parties opinion interested which the seems (ante, pp. 468, especially 473). In the refer record was testimony key the of taken pretrial four witnesses depositions. counsel had examined Frank Petitioner’s Salant, President of a Vice- Stanton, CBS; Richard President of and Thad who acted for in CBS; Holt, on procuring option the the Bartell station.5 Petitioner’s in testimony deposition was also in the record the form of a by respondents’ counsel, taken and two affidavits sub- opposition in summary judgment. mitted to the motion for addition, respondents’ In the record contained the answers interrogatories put by petitioner. the It is written light meager discovery of this far from pretrial summary must appropriateness judgment be evaluated. 56(c) authorizes Federal Rule Civil Procedure summary District to enter judgment Court file, “if pleadings, depositions, and admissions on together affidavits, any, with the if show that there genuine any is no issue as to material fact and that moving party is to a judgment entitled as a mat- ter of law.”

In so did providing, the draftsmen the Rule of course off a litigant’s right intend cut to a trial before the appropriate fact-finder triable issues remained unre- solved after the dis- pleadings pretrial were closed and employment The record shows that the undisclosed of Holt was keep due competitors, particularly to CBS’ desire to its the National Broadcasting Company, knowledge respecting from of its intentions course, phenomenon. is, perfectly WOKY. This normal business Corp., Gas v. Arkansas Natural covery had. Sartor Filson, On S. 681. v. 336 U. 620, 627; Fountain S.U. purpose that their clear hand, equally it is the other purpose. no useful which would serve trials to obviate dis pretrial availability Rule, administering is a factor to actually discovered, covery, as well as matter issue as “genuine whether determining be considered McKes g.,E. v. open. fact” is Schneider material Robbins, Inc., Further, 254 F. 2d 831. son & more is to used indicate that Rule does not 473) than (ante, p. “sparingly” litigation antitrust in anti litigation, employment or that its kinds of other stringent criteria to more than subject trust cases is any way reflecting without contrary, others. On the particular lawsuit, having upon good faith of this statutory pri regard special temptations for the remedy institution of vex vate antitrust affords *13 time atious inordinate amount of that litigation, the courts, such sometimes demand of the trial there is cases good giving summary judgment reason for its full the rule legitimate in this field. sweep petitioner, motion,

In this case party opposing the complete had by pretrial discovery access means of to all the evidence he at a could marshal trial on the merits.6 Neither his cross-examination of hostile witnesses nor his testimony by own direct way deposition and affidavit produced any which would evidence indicate that respondents sought accomplish anything more than to purchase for CBS a UHF station in As the Milwaukee. opinion Court's seems to recognize, such a purchase (accompanied by a petitioner’s cancellation of station affiliation) only would be unlawful in pur- “conceived pose unreasonably restrain trade, control market, or suggestion There is petitioner no oppor not afforded tunity to examine witness he wanted, either before or after respondents summary made their motion judgment. for (Ante, monopolize.” p. 469.) (Emphasis added.) affilia- words, purpose petitioner's other unless to cancel would, by itself, purchase tion the Bartell station petitioner only could in this suit if he unlawful, prevail intended to stifle proved respondents competi- in, monopolize, tion or television either broadcasting, closing down his station or, broadly, destroying more part.7 the UHF business in whole or in This crucial issue, therefore, proof turns on of the respondents’ proceeded motives. Had and introduced no more of motive than was evidence respondents sought destroy The assertion that “the UHF industry they . .. because of the enormous economic investment VHF,” upon (ante, p. 469), which the Court relies was not made papers filed with the District Court. It was first raised during argument summary judgment. oral on the motion for There nothing support charge except hindsight in the record to arising years operating inference from the fact after four Milwaukee, it, claiming UHF station in CBS discontinued that the competition powerful. VHF was too opinion The Court’s takes out of in a context certain statements report intending and infers from them that CBS was to make only purchase. a short-term venture out of its UHF But a full reading report appended petitioner’s question, which opposition summary judgment, affidavit to the motion for reveals rejected suggestion that CBS it a UHF station in very primarily VHF, a market that was reason that would advantages. Moreover, short-term the Court’s construc- passage hardly meaning. tion on which it relies reflects its real question report degree The central on which the focused was “the *14 undergone short-term cost and inconvenience be to order gain” purchase to obtain the eventual in the of a UHF station. report context, programs, noted that CBS television broad- by (i. WCAN), already e., cast a CBS affiliate in the area had built up viewing might market, expected a UHF so that the losses that be at outset such venture would be The minimized. inference capitalize is that it would be wise for CBS to on this headstart before by into VHF stations, purchase it was cut more not that CBS should the station and abandon it as soon as other VHF stations entered the market. affidavits, case, depositions pretrial

revealed go permitted well have been could not my opinion, of an being no extrinsic evidence There jury. to the having unequiv executives CBS’ purpose, unlawful as a petitioner any purpose to eliminate ocally denied no affirmative would be left with competitor, jury possibility intent to restrain trade. The evidence respondents’ assertions might disbelieve jury that the entry of sum enough to forestall the of innocence is not Dyer mary MacDougall, favor. v. judgment their F. 2d 265. him by afforded

Despite ample opportunity discovery pretrial procedures, petitioner, availability produce support will no evidence to shown, was able to charges conspiracy, far-reaching, that a narrow or his proceed permitted been hatched. He should not be trial on formal just hope atmosphere the more testimony of the courtroom witnesses will their or revise that a produce helpful clever tactic will evidence. Courts do not exist to opportunities litigat afford for such gambles. ing City See Music Radio Hall Corp. v. United States, 135 F. 2d 715; Robbins, Schneider v. McKesson & Inc., Brickman, cf. v. supra; Orvis D. App. 266, U. S. C. F. 270, 762, 765-766; 2d Lavine v. Shapiro, 257 F. 2d 20-21.

II. I nothing find in this record to support a claim that CBS, proceeding did, as it actuated desire to monopolize restrain or trade. from appears questions asked of Stanton and Salant,- officers,

two sought imply destroy unlawful motive to competition from CBS’ failure him negotiate in the first instance the of WCAN. itWere shown that respondents refused to purchasing consider petitioner’s instead Bartell’s sta- tion, although the former was available on satisfactory *15 terms, showing might such an intent some evidence of to eliminate petitioner as a of the other competitor sta- bought by tion respond- CBS. But the record shows throughout ents insisted that their refusal to deal with petitioner was the result placed of information that he had price on exorbitant his station. That which insistence, Poller did not or impugn, controvert himself is confirmed by computation his own damages of this as case, well deposition testimony as his which that he reveals valued the WCAN at property $2,000,000 and demanded all price purchasers. interested bought CBS station, although Bartell substantially be sure it had facilities, inferior $335,000.

Nor there evidence in the record to indicate the respondents anticipated petitioner’s offer sell his facilities to It is from CBS. clear the affidavits depositions, fact, and and is, petitioner’s conceded Court, brief before this was who ini the negotiations “importuned tiated to take his off his equipment hands.” Petitioner contends that respondents knew he would no recently use for the enlarged plant canceled, once his CBS affiliation was so that his of sale a necessary offer consequence disaffiliation. But proves only that petitioner’s injury may readily have been the result of CBS’ lawful program of expansion as an invidious scheme to restrain competition. It buttresses the conclusion reached Appeals (109 Court of 170, S. D. App. 173, U. C.

F. 2d 599, 602, 605) that diminution the value petitioner’s property petitioner’s attributable imprudent investment8 rather than to antitrust con-

8The record beginning shows that Poller from the had unsuccess fully persuade enlarge tried to CBS to the term his affiliation con years, tract that, cancellation clause from six months to two eyes open, proceeded thus he equip nonetheless with his substantial ment investment. *16 petitioner’s addition, the

spiracy respondents. that the known have must respondents that the surmise offer- his would result Poller’s affiliation cancellation with hardly consistent equipment to CBS ing his that CBS traversed, and by Salant never sworn to fact, plans up complete draw department engineering had its make expanded the Bartell facilities could as how CBS’ intended use. them suitable for peti- that from the record entirely it is clear Finally, respondents’ motive prove that the tioner was unable to undisputed that at his to eliminate station. was station both on Bartell option Holt obtained the time DuMont networks Broadcasting the American and There is the Milwaukee market. no affiliates in primary antici- should nothing respondents to indicate that that such alleged conspiracy their pated at the birth of the CBS petitioner affiliations would be unavailable it is from the terms Moreover, patent tie broken. were purchased petitioner’s contract under which CBS petitioner represented respondents that to the equipment broadcasting that he as operations would continue independent formerly occupied by from the Bar- studio only representation made, after tell.9 It was per albeit, claims, now with “about a 5 introductory provided One of the clauses of the contract : [petitioner] “WHEREAS, represented Midwest has to CBS that operation Midwest intends to continue of WCAN all business purpose proposes thereto, incidental for that to make the forth; sale and transfers . .” hereinafter set . persuasive petitioner’s

I no find basis in the record for assertion that designed self-serving alleged this was as a declaration to cloak CBS’ By antitrust malefactions. that same contract CBS sold to Poller equipment, part the WOKY his consideration for the evidently equipment, thought quite being equipment such operations, his superior would suffice for continued while the WCAN equipment necessity completely would relieve CBS from the re-equipping WOKY. continue, that he hope”

cent would be able exchange of facilities was consummated. The transac- ways tion was in all written parties’ consistent Mil- operating intention to maintain two stations in surely likely peti- waukee. For it much more independent tioner could as an by using survive plant by remaining enlarged smaller Bartell than in his which had studio, large capital absorbed a amount *17 not, immediately, put could at least to fruitful use. sum, the District had before it on this Court motion summary a on judgment apparent record which it was only could prove that CBS had undertaken to cancel its affiliation with petitioner’s and, station Holt’s assistance, purchase competing UHF station. Only if a “conspiracy” such is prohibited 1 or 2 of § § the Sherman Act should the petitioner per- have been proceed mitted to trial.

III. Respondents freely purchase admit that the of the Bar- tell station and the petitioner’s cancellation of affiliation parts were They one course of action. maintain, how- ever, that their intention was to a UHF station Milwaukee the first in an step incipient program expansion into the market, possible by UHF made Federal Communications recently Commission’s then adopted “5-and-2” amendment multiple-ownership to its By rule. of this reason amendment, single licensee was permitted to own two UHF stations in addition to the maximum five VHF stations I theretofore allowed. arrangement would that an hold to attain this objective did not, itself, § violate 1 of the Sherman Act.

It must be obvious that the cancellation of an affiliation agreement by network, acting one not concert with alone other, give does not to a cause of rise action under Broadcasting Inc., the antitrust law's. System, Federal Co., 349. A network Broadcasting 167 F. 2d v. American affiliate with to one station and surely free to cut its ties is analogous in the same market. Such an act another distributor transfer of an exclusive a manufacturer’s This in the market to another. ship from one dealer preserved under choose with whom one deals freedom to it is a unilateral deci because the antitrust laws an unreasonable but because it does not amount sion, term, cf. any meaningful of trade sense restraint Co., 100 Motor v. Motor Car Packard Car Co. Webster Fargo 243 F. 2d Glass Paint App. 418; D. C. & U. S. 201 F. 2d 534. Corp., v. American Co. Globe holding apparent these barriers To overcome violated, petitioner Act here § Sherman respondents’ theories under which conduct suggests two (1) restraint of trade: That might constitute forbidden “leverage power” of its network CBS was by reason among independently trade owned able to restrain in the area; (2) stations Milwaukee that CBS’ *18 amounted, se, a an per of television station to of trade. either of these unreasonable restraint How restraints, assuming they unlawful, are alleged caused alleged mystery. Regardless loss left a petitioner’s is of any causation, petitioner prevail can question however, of theory. on neither “leverage” complained charges

To the that the extent market, petitioner’s a falls monopolizing CBS with claim I in a matter to which will revert a 2,§ under moment. from Infra, Apart monopoly power, 485-486. pp. only by could have violated the antitrust laws respondents “leverage” in manner to conspiring some use CBS’ Clearly, trade. the disaffiliation alone restrain was not power. use of network’s Having up unlawful built substantially of his station value because of its CBS hardly position in a affiliation, petitioner is to claim that exercise of a by depriving him, right, contract unreasonably the benefit of such an affiliation CBS was superior its exercising power to restrain trade. And there is no indication in “leverage” the record that this way purchase price affected the petitioner’s equipment, even were it to be assumed' that the respondents foresaw petitioner willing would be The here charges to sell. are Corporation unlike those United States v. Radio America, 158 F. Supp. 333, reversed, 358 U. S. sought which the enjoin, violating 1,§ Government a attempt network’s an independent coerce owner into selling his station to the network under of can- threat celing the network’s affiliation with other stations under the same ownership. In this there is made case no claim that CBS conditioned continuation of some network upon petitioner’s service equipment, consent to sell his or willingness price. on his to reduce his I agree

Nor can that the contract became whereby CBS station owner inwas, Milwaukee market and of itself, contract restraint of trade. Petitioner point convincing unable to differences between the integration vertical that is accomplished when a network purchases station and that which results from an affilia- very tion contract. Moreover, contention being now repeatedly made here has been presented to the Federal Communications and that Commission, agency consistently has adhered to the view that network ownership of stations, course, to the maximum- subject, ownership limitation, contrary public interest. g., Merger, E. ABC-Paramount 8 Pike and Fischer Radio *19 Telecast, Reg. 541; Inc., St. Louis 12 Pike and Fischer 1372; National Reg. 1289, Broadcasting Co., Radio Reg. 411, Pike and Fischer Radio 419. has been

This Court also reluctant to hold that vertical alone can to an expansion amount unreasonable restraint Sherman prohibited § of the Act. United States v. Inc., Pictures, 131, Paramount U. S. 173-174; United Co., Without 495, 525. S. Steel 334 U. v. Columbia States the Federal Communications suggesting of course for a applicant authority has to alleviate Commission antitrust requirements the license from station America, 358 Corporation v. Radio laws, United States by the course of decisions light in of the uniform S.U. any in and the absence field, with the agency familiar in restrained particular purchase indication that fact even if it injury, think that petitioner’s I it is clear trade, may partially purchase, attributable to CBS’ be assumed treble-damage of a action. not be made the basis if anything 2 claim more insub- Petitioner’s even § respondents conspired He stantial. contends monopolize Milwaukee, perhaps the market in and UHF they in their country, across the and that succeeded attempt, undisputed at in But least Milwaukee. Mil- being produced and sold the television sets alleged conspiracy were waukee area at the time of all YHF and could be equipped to receive broadcasts adapted signals Thus, to receive as well. UHF UHF necessarily competition all sta- station was with VHF viewing tions in market both respect uncontro- advertising public. Indeed, record vertedly shows, ultimately the CBS station succumbed competition strong. because the VHF was too Since CBS patently monopolist not a the Milwaukee market both and since there (which VHF), included allegation approached monopoly power was no that it competitor, other market which entry summary judgment respond- favor of ents on this claim was eminently too correct. gone length

I have this matter at some because in into my opinion encouragement of this sort of Court’s healthy antitrust “enforcement” does disservice to the I affirm. observance of these laws. would