*3 radio and television stations. There are O’SULLIVAN, Before PHILLIPS and types regular membership, two and EDWARDS, Judges. Circuit operations associate. The costs prorated among the under a members adopted by formula of assessments Judge. PHILLIPS, Circuit Directors, acting Board of the au- under principal daily newspapers Three were thority By-laws. of its published Ohio, Cincinnati, prior in incorporation (1) newspaper At the time of of AP 1958: An afternoon own- representative by appellant, in ed known Cincinnati of Times-Star as The applied Times-Star, (2) Post, for and was AP admitted to mem- The Cincinnati bership. paper, pai't Times-Star to and also an afternoon which was a subscribed regular Scripps-Howard system; (3) AP used wire services mem- as and continuously morning Enquirer, The ber from until Cincinnati time publication years paper. July 19, 1958, publication discontinuance of As of later. of The and Times-Star was discontinued paper sold was to the owner of its 1) The Contract Between Parties The Seripps competitor, afternoon Company, the E. W. afternoon and combined controversy This arose out a con- newspaper published thereafter has been parties, tract between the entered into under the name Post of The Cincinnati August 4, 1948, provided that: and * * * Times-Star. shall continue until ter- “[I]t Appellee, Press, years’ the Associated upon filed minated the Member two against appel- notice, writing, registered breach contract action mail ” * * * lant ; for failure to assessments for provided further that: and years “Upon AP’s two news services for the sale or transfer of busi- following publication. agree- discontinuance of ness of the Member which this diversity relates, Jurisdiction is based of ment the Member shall cause sitting citizenship. judge, writing agree district Member’s successor to judgment jury, without a rendered to fulfill the terms conditions Contemporaneously 1. with the sale Cincinnati Post “Post and Times-Star as newspaper, appellant, Seripps Times-Star,” an the name of the E. W. Corporation, changed Company “Seripps,” Press as “UP,” Company Cincinnati Taft Times-Star the International Serv- News Ingalls Corporation. Appellee “INS,” sometimes ice as Inter- and United Press opinion will he referred to in this as “The national as “UPI.” UP and INS “AP,” merged Associated Press” the Cin into UPI “Times-Star,” cinnati Times-Star damages during agreement thereof week the term $1540.81 this membership apply in The 103 weeks. same class as in the Associated Press 2) The Wire Services the Member.” alleges Appellant appellee admits stopped publication of When practice established July 19, 1958, in- AP was requiring newspaper a member in the Scripps telegram of the sale formed metropolitan geographical cities given: following directions were area of the United States to receive n “Accordingly please all services cancel pay for all three of its basic news wire -x * * immediately pur con- under and, city, addition, services to such *4 you.” assessments tract No back Cincinnati, required appellant to receive publica- owing by appellant when were pay Kentucky part and for the wire as a weekly The tion of Times-Star ceased. practice, appel- of the basic service. This n assessmentof through paid appellant was contends, lant constitutes an unlawful publication one after June week tying arrangement in violation of Section had been discontinued.

of Times-Star 3Act,2 1 of the Sherman and renders the no services were furnished Thereafter contract void and unenforceable. payments appellant AP and no further “tying” policy practice AP and This only at is- were The assessments made. together single four services in a two-year sue in case are those for the this appellant “package” requiring and publication period termination of after four take and for wire services delivery AP news wire and after of the any one them is the order to receive appellant services to had discon- been principal appeal. issue on this tinued. provided AP The wire4 services appellant judge district held that The appellant under contract with its weekly assessments to AP for was liable in a from AP’s Chief of described letter news for the two suc for its wire service Columbus, Ohio, Bureau to the editor ceeding years appellant had because August 1, dated Post Times-Star years AP two in advance notified 1958, as follows: services,2 and of the news termination telephone our “Pursuant conversa- Scripps a member since did not become n ofAP and did not subscribe listing tion I am below the basic service that was delivered to news previously ap furnished to wire services and is the Cincinnati Times-Star pellant. judgment is based proposed the Post to be delivered to per week which assessment of $1583.81 Times-Star; in effect on the date of termination was “ saving publication, gen- AP of less a ‘A’ circuit. This is a trunk per representing carrying the cost of the week $43 eral news wire stories facilities, or net top general wire and mechanical interest. 1954, appellant “Every contract, 2. own- In June transferred com 1.§ 15 U.S.C. ersbip publication in tbe form of trust or other bination wholly-owned subsidiary, wise, conspiracy, The Cin- in restraint of trade Publishing Company, among which in cinnati or commerce the several newspaper Scripps foreign nations, four turn sold years or with illegal declared to be is * S! Appellant’s contract with later. assigned subsidiary. never was to its grows no had cause to deal with the sub- 4. The use of the word “wire” out of sidiary appellant transmitting because continued to the earlier method of telegraph act as a member. The District Court Morse Code. explained held that there was no novation with- term the record as fol- requirements physical wire; in the of Ohio law. This lows: “It is not a intervening period ownership op- many an electronic channel. cases by appellant’s subsidiary eration is not there is no is a wireless beam significance telephone company considered to have used or West- purposes appeal. of this ern Union.” “ stringent program This ‘D’ trunk circuit. circuit cost reduction in an commodity stories, possible effort to make it carries financial for Times-Star survey AP, quotations news. A and other business to survive. made was UP and INS wire costs. A substantial Big Circuit. This “Ohio Cities expenditure item of was the AP assess- regional Ohio, circuit carries ment, which at that time was $1452.25 general copy. Appellant week. determined that it regional. “Kentucky circuits, Two did not need all of AP’s serv- basic news n one style, operating in TTS one August 14, 1957, appellant On ices. Kentucky all-caps, state deliver AP, wrote a letter to the text of which news. printed meeting margin.5 in the A “Wirephotos. Full service on this repre- held in Cincinnati between facility delivery consists appellant Sep- sentatives of AP and day night glossyprints op- 10, 1957, purpose tember for the of dis- eration. cussing a reduction in the basic news “The assessment the basic meeting During services. requested minimum news service outlined AP to to it furnish weekly. $1,558.05 above is circuit, con- which was *5 necessary” appel- sidered the “most Wirephoto “The assessment for lant the AP news services. This re- weekly. service is $279.80 quest “A,” would have eliminated the addition, “In the Times-Star re- Kentucky wires, granted, and, “D” and if optional ceived various services would have effected a ” substantial reduc- * * (cid:127)* appellant’s operating tion in AP costs. stipulation A of facts entered into be- request, stating declined this that it was parties tween the describes AP the basic practice require of AP all members wire services furnished to Times-Star points pay at Ohio trunk to receive and as follows: “A,” Big for the “D” and the Ohio Cities wires, “The appellant leased wire news service re- news and that con- must in pay ferred to the above be- contract price tinue to the unit for all these tween the AP and the Times-Star wires order receive of them. general consisted of news and stories Previously appellant requested had in- general interest carried and trans- of AP formation how much was be- circuit; mitted the “A” trunk ing paid Kentucky for the wire. State stories, commodity quo- the financial replied AP that: tations and business news carried service, Kentucky “The state sub- “D” transmitted over the trunk ject your inquiry, is October 25 circuit; regional and the Ohio part of the basic Press Associated general copy carried and Cincinnati, provision service in Big transmitted over Ohio integral part of this an service is circuit.” your the basic service covered Agreement. 3) Times-Star’s Re Efforts duce Costs payment “There is a of $10.00 weekly operating deficit, appel- Faced with an of The toward maintenance Lexing- undertook, beginning lant Associated Press bureau undergoing stringent day many edition, 5. no “We are re- are of cost features program duction use to us. the TIMES-STAR surveying analysis costs, our that a wire service “An our rates shows figure neighborhood we feel News Basic weekly Service somewhere charge $1,452.25 $700 much closer excessive. week would come great- “Our files will show that we have to our use of the service. ly copy anticipate reduced the amount of AP “We will discussion carrying subject taking any we are and as we have no Sun- before other action.” charge judge ton, no there is The district ruled that: but Kentucky state for the interpreta- “The Act’s Sherman in the included contract than that considerably tion broadened .has figure. not one of the This iswire early since the tie sales cases which- optional not cov- services various products patent- involved tied to figure.” ered the contract products. entirely possible It is dispensing- the Plaintiff’s method of down, having request been turned Its its news is in violation of the Sher- appellant to receive and continued Act.” man But that: “Defendant provide until continued of said basic services all has failed to this Court with compelled operating losses Times-Star sufficient facts which it be- July publication discontinuance concludedthat there a natural di- gathering vision in the cost of news- Scripps pro- Immediately thereafter A, D, transmitted over the and State- posed AP “A” wire subscribe to the complete trunks. Without such a di- become trunk circuit service and to vision, unnecessary it is to- and futile purpose. member of associate explore the other elements of the.- provide “A” wire service declined to agreement.” alleged tying Scripps Scripps also would unless The district court ruled that on the- agree wire and to subscribe “D” “paucity facts,” pre- cannot (also known the Ohio Cities wire asserting either in vail violation of the treating wire). policy of This “S” Sherman Act as a defense or under its- insepa- three wire as one these services counterclaim. ap- package” “economic has been rable *6 by metropolitan plied consistently 4) Application AP to Sherman Act to AP newspapers area in this United consisting generally States, the area clear is the Associated' line east the Mason-Dixon north of subject provisions is the- Press City, Kansas Missouri.6 by Supreme Act. As Sherman said Court States, in Associated Press v. United “ty- asserting this In addition 1, 7, 1416, 1418, 326 65 S.Ct. ing arrangement” a was violation 2013: 89 L.Ed. against defense Act and a valid Sherman action, appellant publishers AP’s breach of contract “Member gaged AP are en- seeking exactly $157,366.92 profit a filed counterclaim in business for damages against AP under the in treble sell' as are other business men who food, aluminum, anything- steel, Act. Sherman markets, 250,000 major approximately up newspaper 6. AP miles make connecting most of leased news wire of the United States. originating This network is. cities of the United States. in the States News United by single point, leased AP from of wires is not sent to a but is trans- Telegraph Telephone directly Com- American to AP members from the- mitted pany Telegraph and the Western Union bureau in area in which the- AP news Company. originates. AP and in the each office is news News abroad York, AP member office of each where there AP from- sent offices New employees, throughout is one trans- are the- which it is transmitted receiving mitting machine ma- and one services United States. Leased wire newspapers chine attached to each circuit furnished smaller cities receiving purpose transmitting single circuit, are transmitted a and: large multiple- on the circuit. Each member to members in cities over equipment uses this kind of leases circuits. As held the District Court:- called, pays multiple circuits, commonly from AP and are for it. There “These trunks, approximately metropolitan 43 areas have into existence be- come throughout country including cause, present technology, Cincin- under national; nati, impossible state, AP to which considered all transmit point be “trunk cities.” These cities and international news on one circuit.”

759 ages people Restatement, Inter- need or See else want. breach thereof.” 598; Contracts, 514, special Associated national News Service v. also § note. § Press, Supreme 230 S. As said [39 248 U.S. Court in United Inc., 38, 51, 293]. Ct. L.Ed. A.L.R. States v. Loew’s 97, 105, are alike the Sherman All covered 9 L.Ed.2d 11: “[T]he publisher Act. The fact that thrust of the antitrust laws cannot claiming merely by while handle handles news others avoided that other- illegal not, point compelled by as we shall later food does wise conduct is con- out, publisher peculiar obligations. otherwise, afford the tractual itWere sanctuary he constitutional in which the antitrust laws could be nullified. regu- impunity obligations laws can with lating violate Contractual cannot thus su- practices.” persede statutory imperatives.” his business tying arrangement A has been illegal tying It follows that if an defined as follows: agreement by the is established evidence case, escape AP cannot the conse purposes “For our ar- quences theory rangement may that it is a mutual be defined as an association, cooperative agreement distributes party to sell one only among members, pays product its own but the condition defrays expenses dividends, buyer no purchase that the also dif- * * through assessments, “sell” and does not (or tied) product ferent “price.” news for a Railway Northern Pacific Co. v. 1, 5, S. 5) Arrangement “Tying” 514, 518, Ct. 2 L.Ed.2d 545. arrangements upon Such are frowned proving burden some situations are declared un- illegal party as contract is serting because, Supreme lawful se as the appellant. it, this case pointed “[T]ying Court has out: ar- Chamberlin, Palmer 191 F.2d rangements hardly any purpose serve be- Surety (C.A.5); A.L.R.2d Illinois yond suppression competition.” (C.C.A.6). O’Brien, Co. v. 223 F. 933 Northern Pacific Railroad Co. v. United undisputed It is re States, 518; 1, 6, fused to furnish the Ohio Cities news *7 Magnolia Liquor Co., Black v. separately appellant circuit and re 24, 25, 5; 106, 78 S.Ct. 2 L.Ed.2d Stand- quired against appellant, that its own States, ard Oil Co. of California v. United judgment, will and business continue 293, 305, L.Ed. subscribe and for three services 1371. want, “A,” which it did not “D” and 6) Separability Kentucky wires, in order to receive appellant regional engaged Ohio wire which con AP insists that it is operations. distributing only product, sidered to be essential to its one news from concerning practice, parts Do the facts all international, of the na world— consistently which has been adhered to tional and local—and that the news trans by AP ever intermingled since establishment the mitted it is so that it “D” coupled wire in although inseparable; with evidence is news is n concerningother metropolitan essential elements newspapers transmitted to antitrust violation as hereinafter dis circuits, over several these circuits are cussed, interdependent integrated constitute a violation of Section and form an 1 of the delivery Sheman Act under the record whole in the of the leased wire so, in this service; case? If it is axiomatic that that the means which the contract between news is transmitted not does determine “illegal” express under news; terms of the character of the and that the party statute. 15 single U.S.C. 1. A to leased AP § wire news service is a illegal bargain .an product cannot dam- separate “recover and not several and dis- though of them involves distin- prop- each upon the relies products. tinct guishable facts. of an element the essential osition obligation agreement illegal tying is an Publishing Times-Picayune v.Co. In upon party another imposed one product purchase unwanted Supreme or take held Court 97 L.Ed. obtaining a desired publishing company as a condition Orleans that New agreement tying can-

product, and that a in re the antitrust laws did not violate meaning the anti- advertising space pur not exist within quiring be product one unless the sale morning trust laws afternoon- chased in both purchase of an- upon the is conditioned newspapers. reasons of the One product. distinct difficulty holding de was its Court’s products. lineating The- distinct separability first two is the question of appeal. said: Court on this be determined issue to however, issue, disposing of this adjudicated “The common core sep- necessary pass arrangements it not is the unlawful arability services four of the wire of all purchase of second distinct forced appellant. areWe AP to furnished purchase- commoditywith the desired the “A” required to decide whether ‘tying’ product, re- of a dominant sulting wire, separable the “D” from wire competi- economicharm did concluded Here, since market. tion in the ‘tied’ services. either of these or need not want newspapers however, under- two required wheth- to decide Neither we single ownership place,, same at the separable Kentucky wire indistinguish- er the State time, sell and terms only issue the other services. advertisers; from products no> able Big Ohio separability is whether (in ‘tying’ product exists dominant fact, product separable was a Cities wire distinguished space the- in neither since wires; three from the other Times-Picayune can- nor the States Big viewed, is, was the Ohio that “tying” bought alone, one “A,” separable product, ; other) ‘tying’ no lever- as age as the prod- wires, Kentucky the “tied” “D” and in- excludes sellers in one market uct. present pur- second, because poses products are identical and that the Even if it be concluded at principally market the same.” 345 U.S. was used Cities wire regional and local to transmit news services that the other wire interest and Times-Picayune- heavily upon AP relies principally to transmit used support of the district of the decision classifications, faced we are different however, noted, It should be court. problem the Ohio of whether Times-Picayune to- rationale separate product, represents dominance” was weakened “market *8 three services the other whether it and subsequent Pa in Northern decision is, product, news. one that involve but States, supra, Railroad v. United cific Co. Though separability products is an ele Furthermore,, 1, 514. 356 78 U.S. S.Ct. rarely tying case, every has ment posed ty Times-Picayune on the in contrast to ing issue, problematical before the issue a “tying”' a dominant there was v. Jerrold courts. United States See applied to- product in the instant case 559, 545, F.Supp. Corp., Electronics 187 wit, appellant, Cities-. the Ohio curiam, aff’d, (E.D.Pa.), U. 365 n. 25 “tying” prod This was the news service. 806, 755, re 567, 5 L.Ed.2d 81 S.Ct. S. essential considered uct which 890, hearing denied, 81 365 S.Ct. U.S. desiring operations, to- not while to its 1026, 200. 6 L.Ed.2d subscription to the “tied”' continue its Kentucky “A,” products, “D” and question adjudicating here in- In that, as- begin looking added It should be those few wires. volved, State we Times-Picayune a> separability, to the force of al- bear on cases which

761 precedent, recently per curiam, one 567, court said: “Fur aff’d 81 S.Ct. thermore, Times-Picayune 755, rehearing denied, 890, case 365 81 1026, involving been limited to the exact set facts be S.Ct. master television * * systems fore the court dealers, apartment American antenna normally Manufacturers Mutual Insurance Co. v. houses and communities unable Broadcasting-Paramount signals. American The to receive television Jerrold atres, Inc., F.Supp. 848, (S.D. equipment 221 850 would not sell its unless N.Y.). purchase customer would also a service contract which assure would Jerrold su- Inc., supra, In United States v. Loew’s pervision over the installation and main- the defendants ; tenance and also would not sell its vari- picture distributed motion films to tele- designed equipment ous items of community vision stations the method known as systems separately, antenna booking; is, block that TV stations were only components but would sell them as required purchase package a films complete system. holding aof In get any way pro- at all. In this film practice Act, this violated the Sherman ducers were able to tie bad films to the passed upon question the court first argued, alia, desirable ones. It was inter separability. This issue was stated single product that “movies” as follows: separability there was no of two products. question distinct “The difficult Court answered raised by saying: contention “The dis- defendants is whether .this judge copyrighted trict should be found that each treated as a case of by appellants product film block booked sale of one to the sale for tele- product merely unique prod- vision use ‘was in itself a of another or as the ; single theme, product. ap- uct’ sale feature films ‘varied in It is parent that, general rule, performance, stars, in artistic in audi- as a a man- fungible. appeal, etc.,’ ence and were ufacturer to deal in cannot be forced * *” * product the minimum could be 371 U.S. at 83 at usually 104. sold or sold. On hand, equally it is clear that one can- A decision in which facts have not circumvent the anti-trust laws analogy some to the instant case selling simply claiming that he is American Manufacturers Mutual Insur- single product.” F.Supp. at 187 Broadcasting-Para- ance Co.v. American Theatres, Inc., supra, F.Supp. mount 221 (S.D.N.Y.). Kemper proceeded four The court then to state There Insur- separability sponsor ance criteria of are dis- desired to an ABC tele- program page vision cussed hereinafter at of this on 95 affiliated stations. opinion. geographically 'These stations were sit- Kemper’s advertising uated where Dehydrating Process Co. A. O. be most effective. ABC refused the offer (C.A.1), Corp., F.2d cert. Smith denied, Kemper sponsor unless would also program on 35 additional stations. ABC L.Ed.2d the district relied

.argued product one case, court the instant the defendant involved, wit, pro- sponsorship of TV and an unloader manufactured silos grams, separability and that there was no base of which could be installed products. of two more distinct years defendant made it silo. For six *9 disagreed, saying court that 35 undesir- practice from to sell its unloader able as stations are not the same 95 de- com number customers its silo. A of F.Supp. sirable stations. 221 at 850. op plained would not that the unloader successfully another leading area, A erate silos in this for dis- case its problem, separability products, To meet defendant make. cussion of selling adopted policy unloaders not v. Jerrold Electronics United States pres (E.D.Pa.), in F.Supp. they Corp., supra, were to be installed unless already-owned publisher ently-purehased or silos The former assistant to question good testified its was Times-Star that “we own manufacture. had arrangement coverage Kentucky” was a Northern whether this that, quite there,” laws. “had staff over which anti-trust violated Kentucky longer the AP was no wire light held of the cus- The court that He needed. further said that if the jus- complaints tomer the defendant was dropped requested, “D” had wire been adopting policy; tified in its and that new he would have subscribed to the UPI requirement in- that the unloaders be financial wire. On the hand he de- only in stalled defendant’s silos was rea- Big the AP scribed Ohio Cities wire sonable under the circumstances. publication to “essential” of Times- the court’s de- Thus it will be seen that telegraph Star. The former Times-Star really question cision not does turn Big editor testified that the AP Ohio by basing fact, inseparability. superior Cities wire “was far to the Unit- reasons,” decision on “sound business pub- ed Press state service.” The former presuppose court seem to lisher of Times-Star described the Ohio separate products. there are two Big major Cities wire as “the service Dehydrating case ob- Process Co. The Associated Press” Times-Star viously nearly analogous would be more purposes, and said “we needed on its to the case if the facts instant very badly.” service required purchase manufacturer had situation, ap- In this better who than prerequisite of an unloader as a to the pellant position in a was choose which purchase of a silo. wire services needed and wanted and that, independent judgment inherent in One evils to exercise tying arrangement is that forces the end? buyer give up independent judg his clearly Yet the record establishes that where, whether, purchase ment as to required appellant to continue to sub- product. the tied Loew’s United States ap- scribe and for three wires which 97; Inc., supra, 45, pellant need, did want and order Railway Northern Pacific Co. v. United receive fourth wire which it con- supra, 514. thereby essential, sidered to be Turning again case, give up appellant independ- instant forced arrange- judgment there can be no doubt that ent as to to subscribe whether publishers ment here involved forced to the three unwanted and unneeded serv- give independ- up their Times-Star ices. This one of the situations judgment object ent as to which of the is “an wire concern.”' of anti-trust required operations. Inc., supra, services was for its v. Loew’s States appel- 38, 44-45, At the time refused to furnish Big lant the Ohio wire to the ex- Lending support to the view that Kentucky “A,” clusion “D” separable Cities wire is wires, Times-Star was a subscriber to its other wires is AP’s treatment of began various other wire services. give Kentucky wire. AP had refused to using July certain UP services separate quotation for this already and at time an AP and was wire, taking position that it was receiving INS subscriber. It was the UP part of the basic service Cincinnati. sports national state wire and wire. opinion quoted’ Earlier in this we have duplica- Certain these services were AP’s statement in a letter Appellant’s Kentucky executives, “part tions. in an ef- deficit, operating fort to an combat con- basic Associated Press Service in Cin- “A,” cinnati, provision cluded that the AP “D” Ken- for this service tucky longer integral required. part services no service cov- the basic agreement.” published by your copy Scripps The amount of AP ered When greatly bought paper proposed. *10 had been reduced. the and agreed wire, business, “A” AP tion to and to the financial market to subscribe news, Kentucky particularly its from “A” wire if the wire at eliminate the to reducing news; thereby service, as- moment cannot accommodate such basic general had that It news of all kinds in week. addition sessment $240.60 regional separate to quote news is assessment transmitted over the refused to wire, Big Big wire; appellant Ohio Cities Cities that news from for the Ohio to charge separate .yet abroad on occasion quote a carried on it able to been was Kentucky question; Scripps all of wire. Thus the wires if and that for the major Kentucky sepa- there were four or wire was five stories the cost of the might coming time, Scripps. parallel in at one The conclu- be im- rated possible put wire, separability one of the Ohio them all on and as to the sion “spilled Big over” obvious to us. excess be Cities wire seems oth- Although may “spilled er wires. be news By demonstrated, con- AP this action over” from the other wires Ohio court, trary findings of the district Big Cities wire when the circuits sepa- wire can be the cost of a state that overloaded, this fact well known was rated the cost of its other wire serv- appellant. prerogative It was the separability question On the ices. to decide whether chose to charges difference we see no between Big only to subscribe the Ohio Cities Kentucky Ohio wire and the State service, thereby take the chance regional Big Cities wire. receiving incomplete “spilled over” news Further, sports wire, the AP international, national and financial n formerly part was of the basic wire regional events in addition to the .service, separated specific was Big local news carried Ohio (cid:127)charge per- made therefor. AP was Cities wire. separate cancel this mitted Times-Star to practice With reference to the services, service 1956. Other such “spilling news, over” the record shows wirephoto service, provided from the “A” wire sometimes optional basis, specific on an and for “spilled over” wire or on “D” charges. separate Big wire, the Ohio Cities and that “A” evidence further establishes “spilled and “D” wire news over” be Big operated Ohio Cities wire was Big on the Ohio Cities but we find different hours from the other services. regional no evidence that the Ohio Co- 'The Ohio wire was controlled from which Times-Star considered so essential lumbus, Ohio, while the other wires were operation “spilled to its over” on was was controlled elsewhere. Ohio wire Quite “A,” Kentucky “D” wires. ob- separable physically in that it connected viously it would rare indeed for news n differentcities and could be added to or regional of local and interest carried over provided taken from the service wire to ten Ohio cities Ohio newspaper. The “A” wire connected Virginia “spilled over” on West larger cities; the “D” wire connected connecting cities, “A” the “D” wire cities; Big con- wire connecting cities, or wire the Ken- nected ten in Ohio and cities West Vir- tucky carrying pri- news of state wire ginia, two of which did not receive Kentucky mary interest readers in “D” wire and one which did re- not area. either ceive the “A” wire or “D” wire. is clear that Times-Star found it (cid:127)Separate receiving equipment re- subscription necessary to continue its quired for each wire. the Ohio Cities wire because this was support providing contention wire satis- service regional coverage factory news services are dis- of news of products, tinct AP introduced evidence local interest. contends regional “D” wire used and local news sometimes is transmission general separable, the transmission news in addi- did not make the Ohio *11 equipment duplications for each item lump and of news not a there because system. sum for total Fi- the this and other wires. carried nally, however, shows, that when while Jerrold had cable and evidence duplication, to sell which manu- it is because antennas were is a by concerns, duplicated is a matter factured required item news equip- newspaper in the readers electronic interest system bought example, in if Presi- ment be For Ohio area. spoke F.Supp. it.” at at 559. United States dent of the story Columbus, Ohio, the or Cleveland Transposing sepa- four these criteria of wire “A” transmitted over would be rability case, to the facts of the instant Big Cities wire. the Ohio also over we find: story interest of nationwide

A financial competitor, UPI, 1. AP’s offered ev- might originating be carried over in Ohio erything necessary complete for a news Big and the Ohio “D” wire both the service, charge but did not for its basic major accident occurred If Cities wire. single package AP; wires in a as did resulting Ohio, in a num- substantial in dispatches 2. The number of deaths, it be carried over ber of vary AP and other news services con- wire, perhaps also over the “A” siderably by newspapers and are used as Big A minor acci- circuit. Ohio space any Hardly and interest warrant. resulting in one death ordi- dent in Ohio same; two versions are the reported only narily would be charges separately 3. UPI Big Cities circuit. wires, as does AP for the Ken- Electronics v. Jerrold United States tucky (at proposal least in its Corporation, supra, the laid down court Scripps), sports wire, and various separability as follows: four criteria supplemental wires; presented “There are several facts Finally, AP offered certain wires in record which to show this tend optional basis, required appel- on an but community that system television antenna lant to subscribe for the “A” “D” properly cannot be char- Kentucky “package” wire and wire on single product. as a acterized Oth- basis order to receive the Ohio community entered an- ers who Cities wire. equip- all tenna field offered of the necessary complete sys- arrangement ment tem, for a It is true that no gear spelled expressly but none of them soldtheir out in the contract be- single exclusively package parties upon as a as tween the based action, By-Laws. did Jerrold. The record also estab- or in the AP pieces accomplished By-Law lishes that the number of result system considerably provision varied so each that the nature extent of any hardly two versions of the news service to be furnished a mem- alleged product the same. Fur- ber shall be determined the Board charged thermore, the customer was Directors.7 VII, any except 7. Article 2 of news service Section member provided By-Laws, News,” pro- By-Laws. cause as entitled “Use of these 2. Each member take the vides as follows: “Sec. shall speci- Corporation news service of “Sec. 1. Tlie nature and extent of the fied Section 1 of this article and use news service to be furnished to a mem- part provided it in or in in his whole be Board of ber shall determined Corporation contract and' with the admission, Directors, the member’s conformity By-Laws with the thereof.”' initial be fixed and the assessment shall Paragraph of6 the contract between the the same time and the same au- parties provides: thority. Both nature extent “In terms the event of such news service and the assessment agreement conditions of this shall changed from time to time contrary or become to or inconsistent Directors, provided By-Laws the Board of with the the Associated Press, By-Laws the Board of not omit shall control.” Directors shall

765 tying arrangement A 911, or condi 568, 1337; 70 94 S.Ct. L.Ed. expressly tion “need not be embodied in 6 Laws, Toulmin’s Anti-Trust 21.24 § arrangements written (1951). contracts. Such As said in United States U. v. may Gypsum be deduced a from course Co., con 364, S. 395, 333 U.S. S. 68 Co., duct.” Refining 525, Osborn v. Sinclair Ct. finding 92 L.Ed. 746: “A is 832, 286 (C.A.4), denied, ‘clearly F.2d 837 although cert. erroneous’ when there- 963, 1924, 366 81 S.Ct. reviewing L.Ed.2d 6 support it, evidence arrangements tying 1255. The found un court the entire evidence is left with Inc., lawful in United States v. Loew’s the definite and firm conviction a supra, and United States v. Paramount mistake has been committed.” Pictures, Inc., 68 agree with the district court that .We spelled L.Ed. were not in out such indispensable evidence would be McElhenney contracts. As said in Co. v. support by appel- counterclaim filed Co., Supply Western Auto 269 F.2d only lant. The evidence in the record on (C.A.4): question by this was offered an account- “Admittedly, agree- employed by the written appellant ant purpose for the parties ment between the allocating contains basic assessment provision requiring among no the fran- the “A” “D” wire and goods supplied Big chisees deal in agree the Ohio Cities wire. We by This, course, Western Auto. the district court that this evidence was. merely speculative means the contract is not support too the counter- writing unlawful on its face. The appellant recovery claim filed for the supplemented by damages against could be an extrin- of treble AP. The rec- sic course of from which conduct ord shows keep that AP did not its rec-

illegal understanding condition or ords in a such manner as to establish an- might be found.” accurate division of costs between its three wire basic services. We are of the- district court laid opinion, however, that the determination strong emphasis finding upon its that the tying arrangement of the existence of a record in this case contains insufficient illegal Act, which is under the Sherman evidence establish a natural division constituting complete thus a defense to- gathering in the costs of news trans contract, AP’s action for breach of “A,” Big “D” mitted Ohio way kept not controlled AP has its- Cities wires amounts the costs cost records. respective providing to AP of these serv specific AP was able to arrive a expressly ices. It held that charge per week for its Ken- $240.60 provide “has failed to this court with tucky wire when it decided to offer this- sufficient facts con wirephoto Scripps. concession to cluded in that there is a natural division priced separately service was at $278.80- gathering the costs of news transmitted Separate charges week. also were es- A, over the D trunks.” A find and state sports tablished for the and other- ing of court is fact the district bind formerly optional services, some of which ing upon “clearly unless er court part a basic service. We have- 52(a), roneous.” Fed.R.Civ.P. Rule no doubt that division could be made obligation appellate our as an court charge Big- Ohio “clearly findings erroneous” overrule Cities wire. Once it is determined that case, in an anti-trust district court separability exists, important is not tried as in other civil actions district might experience that AP inconvenience judge jury. v. Osborn Sinclair without making charges. a breakdown Refining Co., supra; A. C. Becken Co. Corp., (C.A.7), F.2d 1 cert. error Gemex The basic of the district court holding denied, that, L. order to establish 876; Pictures, defense, Ed.2d Ball v. Paramount affirmative anti-trust it was- denied, obligatory (C.A.3), upon appellant prove 169 F.2d 317 cert. arrangement does costs constituted was a natural division necessarily mean, however, that the ar- gathering transmitted over rangement automatically will be declared the other wires wire and essential elements question. unlawful. do not construe Other We *13 upon be estab- impose anti-trust violation also must a burden such decisions asserting Railway Co. de- lished. In Northern Pacific an anti-trust a defendant States, 1, 6, supra, 78 v. United 356 U.S. elements of the other fense. Once 514, tying 518, established, ap- the court said that S.Ct. have been unlawful tie-in arrangements in and “are unreasonable pellant’s be nullified should not defense party keeps a has suf- AP themselves whenever in which manner respect unavailability power ficient economic with records or the of cost books tying product appreciably sep- free computation restrain precise which a competition for the tied in the market arate costs could made. product and ‘not amount a insubstantial’ finding hold fact We In- of interstate commerce is affected. upon an incor- based district court was States, 332 v. United ternational Co. Salt “clearly premise erroneous” and was rect L.Ed. Cf. [68 92 20]. U.S. S.Ct. Big applied Cities wire. as to the Ohio Pictures, 334 United v. Paramount States Big holding applies only Ohio to the This 156-159, 915, 92 L. [68 S.Ct. AP hold that the wire. We do not Cities 1260]; v. Ed. United States Griffith sepa- products “A” “D” are and distinct Co., 100, [68 Amusement 334 S.Ct other, we nor do rable one from the 941, 92 L.Ed. wire, 1236].” in AP “B” that the which hold in areas than Cincin- use certain other 7) Economic Power product. nati, Sufficient a and distinct separability holding on the issue Our questions come now to We Big solely Cities limited is wire; Ohio AP had “sufficient economic of whether power” regional is, that the Ohio respect to its wire services with separable and distinct from the other competition in the market to restrain free wires the contract be- three involved in in a “not for such services whether appellant. AP tween com amount interstate substantial” merce is affected. opinion that the facts is our set forth establish hereinabove possessed of whether AP On issue sepa Big product a Cities wire was power” respect with “sufficient economic other AP wire rate and from the distinct con- to its templation news services within the basic just services, picture as were motion decisions, we anti-trust Inc., Loew’s su films United v. States emphasize position of dominance first program pra, in American the television field news. In 1958 was in the Manufacturers Mutual Insurance Co. largest single in the United news service Broadcasting-Paramount The American States, approximately bu- 150 news community atres, Inc., supra, offices, approxi- and staff of reaus and equipment in United television antenna mately employees members and 3500 staff Corporation, Electronic v. Jerrold States foreign country and countries. in this supra. estab We hold that the further Eng- approximately the total of 1750 Of requiring appel practice of AP in lished language daily newspapers lish “A” and for the lant to receive and States, per mem- 69 cent are AP wire, Kentucky wires, plus the state “D” membership bers. In and 1958 1957 receiving prerequisite the Ohio as Big regular approximately consisted ar constituted news- were owners of members which rangement susceptible of Sec to violation morning papers, news- 275 which were tion 1 of the Act. Sherman papers were afternoon newspapers, approximately holding Cities wire A that the Ohio offering stations. separable it with radio and television and that owners approximately “package” asso- twelve in a There were services three pub- dispatches comparable- ciate members which owned which are copyright. newspapers. AP members lo- lished International News every newspaper Press, market in the cated at Service v. Associated newspapers Supreme- 63 L.Ed. United States. quasi-property of Court held members at least cent has a cover right gathers population the nation’s area. news it and distrib utes, against rival the same busi Supreme was described compared The Court ness. this interest Press v. United Court Associated copyright literary a common law in a 1, 18, supra, “ composition and held that it was not vast, 1416, 1424, follows: ‘AP is a *14 publication. abandoned first organization, intricately reticulated largest gathering prior kind, required from of its Since to 1929 AP has single world, newspaper using each dispatches- all the chief source its news print press, following to uni- for the American of news notice: great versally agreed conse- to be exclusively “The entitled to ” quence.’ reproduction for use of all news dispatches to credited it or not oth- a) Uniqueness newspaper erwise credited in this majority Supreme opinion published also local news there- Court in Northern Pacific is to effect in.” uniqueness “suf- alone establish An AP purpose- official testified that the Loew’s, power.” In ficient economic protect this notice is to both AP and opinion Court held in a unanimous that: members, warning its “anyone who power “Market to dominance —some gets copy a newspaper of a is not entitled’ price competi- control and to exclude to lift and sell the news” or reuse it in- only tion —is no test means the any way. requi- of whether has the the seller We, therefore, conclude that AP news power. site economic Even absent dispatches only unique, they not but showing dominance, of market possess uniqueness suggest “to com power may crucial economic be in- parison monopoly by patent.” with a product’s tying de- ferred from Railway Northern Pacific Co. v. United sirability to or consumers States, supra, 1, 19, uniqueness in its attributes.” 371 514, (dissenting opinion). 525 (Emphasis U.S. at 83 S.Ct. at 102 supplied). b) Desirability Tied Product Loew’s, supra, American Manufacturers Mutual As stated one test Broadcasting- power” Insurance Co. v. American of “sufficient economic is the de- Theatres, Inc., supra, sirability Paramount product purchas- 221 F. of the tied to Supp. (S.D.N.Y.), 848 the Court held er. can no There be doubt of desira- program bility newspapers. the television in of AP’s news wires to unique volved “is of a nature sufficient “Inability buy news from the give leverage gain aABC economic largest agency, or one of ” power tying product. over the 221 F. members, its multitude of can have- Supp. at 850. publica- most serious effects patent copyright competitive newspapers, While a or tion of is no both longer prerequi- presently published held to an those essential and those- illegal tying arrangements, restrictions, site to which but these monopoly might published patent copy- created or the future.”' right emphasized strongly has been Associated Press United v. many supra, opinions, including 65 States S.Ct. Inc., supra. 1421. v. Loew’s Appellant The evidence in this case demonstrates found property rights that AP indispensable- asserts its wire be so desirable 768 (C.A. 4), supra, de that, 286 F.2d 832 AP re- cert. requirements when nied, 1924. except to” S.Ct. “tied when furnish it

fused to wires, continued three appellant has When established wires, all four subscribe arrangement exists, coupled regional although the Ohio it desired power to im with “sufficient economic pose recurring experiencing a service appreciable restraint on com free operating deficit. affecting product” petition in the tied desirability “not amount insubstantial” of interstate hav- uniqueness and Both commerce, defense under established, “suf- the Sherman follows ing been require Act does affirmative evidence power” inferred. will be ficient economic competition supra, of actual harm to Inc., the ex Loew’s United States of such harm. tent Northern Pacific 97. S.Ct. U.S. at Railway States, supra, Co. v. United 1, 12, 514; Commerce 8) Oil Standard Interstate Effect States, supra, of California Co. 337 U.S. v. United question of wheth- We comenext 293, 305, “ of inter- amount a ‘not insubstantial' er arrangement *15 tying impact of the Northern is affected.” commerce state by upon competition is illustrated States, su- Railway v. United Co. Pacific permit- fact that if had been 514, 1, 6, 518. pra, 78 S.Ct. 356 U.S. drop (financial) to “D” wire ted interstate AP are The activities requested, to it would have subscribed L. R. Press v. N. Associated commerce. adhering By UPI financial wire. 650, 103, L.Ed. B., 81 57 S.Ct. U.S. 301 tying arrangement, precluded appellant was AP’s contract selling competitor, UPI, from its financial required contract, which a standard Times-Star, prevented Times- by members. The all its be executed subscribing competing Star from to a tying to- practice wire services financial to be wire which considered by gether AP contin- has followed been purposes. for its more desirable uously 1935, “D” when the since Salt, said: In the Court International tying This first established. wire was unreasonable, per se, to foreclose “[I]t requirement practice that has has been any competitors mar- from substantial n continuedwith no variation. The news- arrangements. by means of ket” paper of AP at circulation members 396, 68 at 15. 332 U.S. at S.Ct. metropolitan principal trunk the 43 Loew's, the Court said: comprises points 94 United States ques- “Moreover, can be no there per of all cent of the total circulation tion in ef- this case the adverse subscribing newspapers in these areas resulting competition on fects free agencies. They comprise news service illegal appellants’ book- from block subscribing newspapers :87 cent of all ing contracts. stations Television daily newspapers areas. More these by appellants forced unwant- take throughout the nation subscribe to AP films ed films access to were denied than In short other news service. who, marketed other distributors is the chief source turn, in ing were foreclosed sell- press. American 48, to the stations.” 371 U.S. at proof is no in this case 49, While there 83 at 104. S.Ct. precise percentages, no can be under the It is a conclusion reasonable n doubtthat the af amount of commerce ‘not that “a insub- in this case evidence tying practice fected or restrained commerce amount of interstate stantial’ of Cali Co. is substantial. Standard Oil affected.” States, supra, fornia v. Illegality 9) Contract as Defense 293, 1051; Co. 69 International Salt S.Ct. ancillary Finally, States, supra, there is an 68 v. United proposition Refining Co., should discussed. 12; Osborn v. Sinclair S.Ct. question Here raises the defense to the action.” 6 Toulmin’s by way Laws, unlawfulness the contract (1951). Anti-Trust 18.3 § Supreme defense. The Court has said: Having found a violation Section of “As a defense to an action based con- Act, the Sherman this court will not en- tract, plea illegality based on vio- by requiring appellant force the contract lation of the Sherman Act has not met years to received, for two of service it never “ with much favor in this * Court. This * * thereby enforce notably has plea been the case where the precise conduct made unlawful ” purchaser has been made * * * in an the Act 358 U.S. at action to agreed recover from him the at 432. price goods Kelly Kosuga, sold.” v. 516, 518, 10) The Counterclaim holding L.Ed.2d 475. This rooted affirm action of the We principle party illegal that a to an dismissing appellant’s district court in subsequently contract cannot use this ille- counterclaim, of dam since the evidence gality obliga- to avoid his contractual ages speculative support is too note, tions. The Court on to went how- Judgments in counterclaim. anti-trust “ * * ever, apply that this view will not speculation cannot cases be rendered on judgment where the of the Court would against guesswork, party even who enforcing precise itself be conduct by wrong precluded his own a more ” ** * unlawful made the Act. 358 precise computation damages. Big atU.S. 79 S.Ct. at 432. Pictures, elow v. Radio RKO 251, 264, 652; Kelly Kosuga, 90 L.Ed. doWe not construe *16 Lloyd Fry supra, preclude Volasco appellant Products Co. A. to from assert- Roofing Co., (C.A. 6), ing F.2d 308 1 of 392 Section the Sherman Act aas denied, cert. defense to instant action for the breach 9 L.Ed.2d 717. Appellant paid of contract. has for all AP services ever received it. The judgment of Court The the District interposed defense, Sherman Act is as a awarding damages against appellant is obligation not to defeat an for services and is remanded with reversed the case received, paying weekly but to avoid as- complaint. to instructions dismiss the years sessments for two after publication had ceased of and Judge O’SULLIVAN, (dis- Circuit newspaper. Although plea had sold its a senting) . illegality of based Act Sherman agree regret inability my I to is not favored in actions on con- based opin- learned, painstaking and exhaustive tracts, express the statute its terms holding my critical ion of brothers. to declares contracts in thereof violation opinion that, as a matter of such of illegal. Illegality be of U.S.C. § variety fact, of news furnished over under the is a contract Sherman Act commodity a AP’s Ohio wire constitutes valid defense. Bement & Sons v. Na- fur- news distinct and Co., 70, 87, tional Harrow services and nished over its other wire L.Ed. 1058. must, separate price for a that AP early recog- services, sup- purchase “At an date it was of without that, despite ply any of nized provision the absence a to of the Ohio wire member requests in the Sherman Act au- who it. This the Associated thorizing illegality majority’s a defense of in a do hold- Press must under the private contract, ing violating suit on a such a it stand of lest convicted might Act, used; defense be one Section the Sherman provides “every up sued a contract con- set as C.A. § tract, a defense that it combination in form of trust violation of laws, otherwise, conspiracy, anti-trust if or or found to restraint be so, among good that fact will trade commerce the several constitute vantage foreign nations, legitimate States, of an or with de- otherwise mar- * * illegal power. E.g., Ry. ket Northern Pac. to Co. clared be 1, 6, v. United 514, 78 my Taft-Ingalls Defendant-appellant, Cor- (1958). 2 L.Ed.2d 545 own publisher poration,1 of the Cincin- as mind, inquiry product separa- into had been a member nati Times-Star bility present is in the case awkward Press since latter the Associated approach question whether was 1900. Under contract formed guilty tying arrange- been of wide-scale AP at times here in force with the ments. A broad view the record re- agreed involved, it had as member by newspapers, veals that AP created single receive, AP to for at a use purpose as a mutual association for the brought price, news the three gathering disseminating to mem- employed wires AP to then distribute rapidly as bers much news as and as metropolitan city members news accurately possible. As as it has devel- gathered by people “of all AP’s kinds” oped, enterprise the costs domestically seems worldwide. against assessed members on the basis fair to metropolitan daily assume from evidence delivering the actual cost of news operate with- couldnot them; rather, a for- each is assessed receiving from some all of out source mula which seeks to determine these three news that furnished over derives amount of benefit each member wires. The Times-Star also Cincinnati position from may AP’s the service rendered. the services subscribed some fundamentally posi- seen International, ma- United Press jor the other tion that it should allowed admit publisher gatherer, as did the willing par- who are members Post Cincinnati and Times-Star ticipate in, their fair share bear after the consolidation. editor undertaking provide of, the cost comprehensive the Cincinnati Post and Times-Star testi- coverage. I if could fied even he have obtained squarely, prefer position with this deal general alone, AP’s news A wire applying rule of reason to the situ- receiving quit would not he the news forcing stands, ation instead of provided by United Press and that a met- *17 analysis “tying” into mould illegal the artificial ropolitan daily operate could not with arrangement per in which se is AP’s A wire alone. party a has “whenever sufficienteconomic Preliminarily, ac- I observe power respect tying product Press, of tivities the Associated notwith- appreciably competition to restrain free standing membership that it ais mutual product in the for market the tied organization, subject to and can be ‘not a of inter- insubstantial’ amount found to As- violate Act. the Sherman state commerce is affected.” Northern States, sociated v. Press United Ry. States, supra, Co. Pac. v. United (1945). 65 S.Ct. 89 L.Ed. 2013 518. 78 S.Ct. pose Yet I would like to at the outset query present setup prop- Approaching is from whether case AP’s overall analysis, general erly am susceptible of of in terms rule reason I to decision “tying” analysis. persuaded it is There The Su- reasonable. the classic preme no that members that the is evidence whatever Court has made it clear arrangements inveigled tying into com- been undesired have inherent vice they one form into an allow a mitments extension seller extend power sphere power developed an is no one in another into area where there a thereby Instead, present competition power. sphere, suppressing shows record taking only a a and fair unfair ad- situation where rational merits Compa- Taft-Ingalls Corporation same was The Cincinnati Times-Star ny. corporation published I refer as Times- The Cincinnati shall to it herein through newspaper a sub Star. Times-Star sidiary, corporate previous name and its system apportioning separately a the costs of mu- Cincinnati be assessed for a undertaking part jeopardized, day tual would be Cairo’s for costs rare on entirely defeated, by requiring Egypt spe- if not in event has some admission of cial members who do not wish interest Cincinnati ? enterprise. share As- entire Reference been made the claimed sume for a moment that the Times-Star fact that Press one United furnishes solely purpose were admitted for the separate prices. for more wires The evi- receiving news of Ohio events under quite dence this unclear. Unit- The compulsion majority’s reasoning. Press, AP, corporation ed unlike ais any system to allo- Can fair be devised profit, not a mutual association. a fair total share AP’s costs to cate exhibiting arrange- evidence a definite choosy possible and other newspaper ment a between and United members? Should AP be into a coerced was Press its 1955 contract with Times- arbitrary undertaking by difficult and in- quite Star. This similar to the AP terpreting the Act to find Sherman two delivery contract and called of UP’s products or more are here in a involved “regular Day Trunk, Ohio State and arrangement? Times-Star’s own Sports Report” unsegregated for an expert accountant, Batzer,2 readily one charge during week per “$600 the first admitted that he was unable to find $1,000 years; during four week intelligently way allocate to the year, $1,300 per fifth week there- alone, proper if taken after.” portion of the AP basic total cost My arrange- conclusionthat AP’s basic view, This, my supports news service. ment is reasonable can basic nature finding inseparability. trial court’s supported by attempting be further illustrate, may hypothesize single I To present fit the case into the terms of con- newsworthy Cairo, man event. AP’s tying analysis, ventional task which gets promi- Egypt information I now turn. Cairo, Cincinnatian is killed in to- nent gether with Cairo news of world- 1) Separability. interest; wide he sends bundle of tying arrangements first consid York, to AP bureau in New ered violate the Sherman Act goes to the AP bureau sought patentee to extend those where wire; Columbus on Bthe the chief there by refusing patent monopoly his sell picks off the item of the death the Cin- product patent un his without an cinnatian and sends it to Cincinnati on patented Co. International Salt item. question, pose the Ohio wire. I when does this (1947). news become a 92 L.Ed. 20 As law has de *18 commodity? Cairo, Egypt? distinct veloped, however, product At the need singularity Or was it to patent monopoly converted at Co- not condemn its have to lumbus, so, charge ?Ohio If products. should a for to use control tied other portion the service limited to some of Northern Pac. v. United R. Co. salary the of (1958). the AP man at Columbus 356 U.S. 78 S.Ct. 514 But and the cost of illegality, the electronic channel be- to establish such it is essential tying products tween Columbus But and Cincinnati? that separable and the tied the pay pur who then is to for the services of and “For our different. gathered people poses tying arrangement may the out the who and sent a be de Cairo, agreement by party news and who is to as an fined a to sell handling product only and New York how will one but on condition that the apportioned? buyer purchases (or these costs be How will also a different Lybrand, firm, attempted hope, 2. study This witness’ Broth- Ross of cost Montgomery, engaged by assume, significant ers and Times- X be of counsel, support Star’s ten or more their sent of to Times-Star’s case. people part of AP into the home office ”*** necessarily physical nel, not a product. Pac. wire. tied) Northern States, supra, use so- clear that the several Ry. Co. v. of sup (Emphasis called “wires” did not at all come about at 518. rely defendant-appellant, anas several plied.) The effort manufacturer of products charge illegality ing to control to avoid increase a market of on a of lying product contract, liability one to another. To the of had for breach illegality. contrary, proving use several channels such the burden (CA Chamberlin, about came as the volume of news F.2d 532 Palmer 5, 1951); v. O’Brien, Surety increased and it was found inefficient Illinois Co. carry 6, 1915). all (CA on news one With F. Whether channel. available, several all that were channels was de- news kinds each items primarily general type especial voted were to one to Ohio readers interest general top news products national than the international different news— A, in also of on on which were news financial business news of all kinds items D, (Ohio Cincinnati and local df the interest news on S readers terest to the question case, although present Cities in was fact. may Judge found that defendant- we assume that a similar wire was District S provided regions well). Not- its burden other had failed meet separa general classification, withstanding proving as a matter of fact bility necessary with to taint contract the evidence showed that news items out- ruling Recognizing were, illegality. respective side of the that such my classification brothers, fact, finding varying problems, consistent with was load Judge, reversing concludeas carried each of the reason District wires. The starting 52(a) required F.R.C.Proc. that for this is illustrated Rule Up finding clearly to then the D about I such was erroneous. financial and business news was sent cannot that appellant avoid the conclusion B, parallel the A wire and wire called Judge’s holding District it was but found that these facilities prove fact had such essential failed expeditiously adequate not de- were clearly erroneous, but was not not liver the financial business news my clearly inwas correct. view general request the and at the my support view, what recite I members, with the consent the AP summary fair of the evi- I is a believe pick up D wire was established facts had dence from which the essential separately financial 10:00 between was be found. It from the awareness get A.M. and P.M. and out 6:00 acquisition of its charter members that promptly During to the members. publication of news could better be prior however, involved, to the times here through accomplished mutual efforts distributing finan- was no D wire beginnings the Associated Press had its cial and west business news members clearly in 1900. The record dis- does City. was, ap- just of Kansas Such news close what and instruments methods initially employed reciprocally parently be, continues to carried exchange publication. A news for wire and B a so-called neither early carry separately. we was used and financialnews morse code telegraph custom- It was shown also that the of three assume that ary use *19 developments metropolitan wires was With the to the means. limited telegraph, telephone and wire- of all followed and that a condensation dailies B,A, D into use. information and wires less came The of the news on the S city actually conveyed making up single news is on a circuit to smaller went by by provided papers that not volume instrumentalities did need the same Telephone Telegraph papers. metropolitan and & function American as the The entirely Western The B from Union. word “wire” came of the wire is clear identify although evidence, to it used what referred to have seems testimony parallel to in as an chan- and electronic been wire A wire also have by been used for direct ex- service furnished The Associated change of news newspapers between mem- metropolitan Press in bers. There was evidence that out cities is multiple transmitted over general coming news into AP multiple bureau circuits. commonly circuits, These at Columbus on B trunks, the chief of called have come bureau, evaluation, on his because, present into existence under dispatches special take out technology, impossible news inter- is national, to trans- papers est to state, the Ohio and run mit all them on and interna- Big the S or Ohio tional Cities news on pre- wire. There one circuit. As viously overlapping mentioned, was much evidence of on the leased wire times, according all wires each news service furnished Asso- The general newspapers load ciated carried news Press to unre- in metro- general politan lated to its Mississippi cities classification or news east of the partook of several River and classifications.3 north of the Mason-Dixon following The line is pers newspa- in footnote recitation transmitted to such Judge’s opinion partially designated District A, circuits covers D, and S op- evidence. trunks. The A circuit day erates 24 hours a and carries term ‘trunk’ in this “The as used top news national and interna- opinion, designates mechanical re- importance. tional The D circuit production print. The news actu- operates p. m., from 10 a. tom. al transmission be carried Monday time, through York New gath- wire or The wireless. news Saturday, and carries financial and Associated is ered Press news, quotations business market all transmitted to members means general news which cannot be wire circuits and electron- leased accommodatedon the A circuit. The ic facilities. method The technical regional S circuit is a circuit. by which news is transmitted Ohio, the S circuit is known as the bearing legal no conclusion Big Ohio wire carries herein. regional news of general in interest Ohio and originating “News originating news elsewhere single States is not to a transmitted that cannot be on accommodated point transmission, control but parallels A circuit. BThe circuit transmitted the members the A from circuit New York to directly The Associated Press from City supplements Kansas the A

the news of The bureau Associated circuit. General news of interest in Press in the area in which the news Ohio is taken from the B circuit at originates. originating News abroad relayed newspapers Columbus and The transmitted the offices circuit, the S or Ohio York from Associated Press New Cincinnati, Cities wire. At points to all transmitted exclusively B circuit is used for the Newspapers in the United States. transmission out Cincin- metropolitan require cities nati. greater volume of than news- years papers in “In the the vol- small cities. The leased by The ume of to after- furnished news transmitted news service newspapers metropolitan newspapers in noon Associated Press to great, B so small cities is over a cities became the A transmitted single inadequate. As- circuits circuit. leased wire news The majority quotes stip- opinion about dence about these circuits and describing to its AP’s leased wire news service ulation the news classifications *20 presented respective trial.” Im- be the over wires. members will carried the following quoted portion, Judge mediately District made his decision the stipulation provides, the entire record. “Additional evi- the separability.” sought I of of the sufficient evidence Press views sociated opinion finding his as a that as to whether read whole affected the members facility appellant’s proofs not a did as establish a should be established. new af- of fact that AP’s of all matter several With the assent members facility sep- fected, D wire was es- services—electronic channels —were the Commencing products. and the arate distinct tablished. trans- news which was theretofore require it me that would It seems to mitted to the Cincinnati Times-Star subtlety subjective and evalua- excessive B circuit was transmitted the into various com- tion to break down sup- (Emphasis circuit.” over the D tangled ponents of skein human the plied.) say, as to able to events called news so be help in offered small The evidence fact, to as a that information as certain separating measuring identi- into and separated by physical dis- events or time func- compartments AP’s vast total fiable degree of it ex- tance or interest the place gathering and another, of world-wide news tions or not in cites one and impresses that the persons me distribution. conduct the different whose may newsworthy events, up complexities involved the can be and make intricacies any impossible evidence divided so to as distinct it to offer identified make be dividing separate separate knowledge reliably products. and into Is for incorpo- myriad products make or articles of of events that distinct each thing up separate product, no ev- There news. real called the news a easy separa- permit separate products idence would be identified which to gathering of the Much tion into neat means transmission? divisions chosen variety speculation indulged coming of infinite of information of the can be go question up I the news. a factual that to make answer the involved events agree my myself separability. fact that of I with brothers cannot convince not, governor and in did of that news of the death Associated Press that the likely not, product my to each of allocate is a than news different view could Illinois, governor share a defined death of of its wire facilities one any resignation of itself fore^ more than of the does not news its costs total Mayor illegal finding How- conduct. of Cincinnati different close resignation perhaps product difficulty ever, than news of the obvious Dayton, Mayor making cost or of impossibility such Cleveland is, products I be- be Ohio. do not think that like reliable I division that lieve, supportive of the unlike chosen can be vehicles made relevant ap- delivery Judge’s finding fact of fact that for their to the user. The District separa- pellant prove made broad classifica- case of that the AP some failed to sure, bility so To tions of its total deliver news and distinctness. efficiently speedily Judge not emphasized it does more District immediately my view convert these provide this court had “failed separate into and distinct classifications facts sufficient products. newspapers Small received natural division is a that there concluded of all kinds wire. Could gathering news over one transmitted news in the cost having newspapers, trunks,” a con- one A, these D. and State over the given complete di- such tract receive “without such further said period, price unnecessary demand vision, to ex- and for fixed and futile society alleged separate price for the AP fix a plore other elements denied, perform- being said, refuse agreement.” also how- He “Recognition It seems me ever, contract? be made ance must question involved joining material the factual compulsory of two pre- all of the members things is a fundamental and distinct by way agreed illegal at all times to share have requisite of an tie sale situation. * * * getting the the cost of presented assessments Defendant *21 Kentucky the of The Associ- service should be in- “leased wire service subject cluded in mat- its assessment for Press.” That the whatever ated was appellant’s AP and reasons made fair to ter of contract with assess Times-Star newspaper but not a New York such contract no of such made breakdown only costs. this Thus incident into different kinds news. illustrates service application showing one of AP’s There is no record the assessment for- mula, geared any prior appellant’s request 1957, to estimated to needs and benefits, publisher any newspaper metropolitan entirely the leaves record any anyone delivery attempt requested prove slight- devoid else ever the anything proposed est connection “wire between the less than what was the re- providing duction and the cost of news service the Associated Press” the Kentucky developed, though, system wire. even as the separate em- electronic channels were Times-Picayune Publishing In Co. v. ployed out two classifications deliver States, 614, 594, 345 U.S. 73 S.Ct. speedy for more and efficient the whole (1953), 97 L.Ed. delivery. metropolitan paper Each used Supreme Court said: all of this news and was testified adjudicated “The common core of the publishing all of it was essential tying arrangements unlawful is the paper. such These circumstances purchase forced of a second distinct recognition sepa- bespeak a of the lack of commodity purchase desired rability provided by AP and the news ‘tying’ product, a dominant re- weighed upon should be issue factual sulting compe- in economic harm to separability. (Em- tition in the ‘tied’ market.” phasis supplied.)

I am not convinced that the fact that Scripps Company Ry. E. W. States, offered In Pac. Northern v. United Kentucky 5,1, 514, 518, eliminate wire the so-called the Court said: reduce the total assessment some proves A, separability purposes tying arrange- $240.00 “For our may agreement ment D and as an S wires. The record is defined clear party product always but sell one latter were as to- considered buyer gether the condition making that the up the AP’s basic service. purchases tied) (or also Kentucky appears the so-called different ”* * * product. (Emphasis sup- separate wire was con- furnished under plied.) day made on the con- same as the (tract suit, August 4, 1948, tract developed and it In which have the cases declaring illegal tying arrangements between and the Cincinnati Times- rule Company Covington, Kentucky. Star Clayton Act, under the Sherman of suit was physical contract in tying products usually AP and between had have Company Cincinnati corporeal and dif- existence distinct Cincinnati, products. Ohio. The record is unclear tied ferent from so-called any E.g., as to the reason for this and in event Co. v. United International Salt give permit significance States, does not us to 92 L.Ed. Scripps people (1947); Ry. the offer made to the Pac. v. United Northern booking supra. furnish the basic service for Cincinnati block Kentucky cases, products without assessment for a proposal drop moving pictures, products, wire. The service distinct paper itself, proves complete the combined no more each “in itself a each unique having being present product,” physical context than undoubted newspapers supple- metropolitan fact that aid or usable alone without moving by any picture Kentucky do not receive the mentation country. compari- films, products. found all No the tied United States Inc., 38, 47-48, opera- Loew’s, son was offered to show that (1962). paper tions L.Ed.2d 11 of the combined were such

776 emphasize represented appropriate I whether each news “wire” a1 think “separate liberty product.” not that this Court is distinct here findings in- of fact or to draw final make 2) Illegality as breach defense upon simply its own of fact ferences contract. of of evaluation the evidence. Commission- Duberstein, 80 363 er v. kept It should be in mind that con Conceding (1959). 1190, 4 L.Ed.2d 1218 upon tract sued did not its terms or separability one of of negotiation that the issue fact, any compulsion. involve restriction, being of this aware Except possible for inferences to be clearly my find erroneous brothers drawn from the recitals in the Minutes factfinding. 52(a). Judge’s Rule District single meeting,4 AP Board no there is showing prior that ef Times-Star upon relied none of the cases any fort in 1957 either or appellate set aside majority court an has actually requested other AP member that clearly Court’s a District erroneous provide anything less than its “leased Loew’s, finding v. of fact. United States wire service” which Times-Star contract (1962); Inc., 83 S.Ct. 97 ed to take in its contract of 1948. On the Pac. v. United Northern R.R. Co. contrary, explanation impractica of the (1958); 514 356 bility separation any inquiry satisfied Corp., 187 Electronics States v. Jerrold subject.5 Apparently, on the no member (E.D.Pa.1960), F.Supp. cur aff’d get of AP considered that what it was L.Ed. iam, ting through its contract and member (1961). cases 2d In each these ship up products was made of distinct Judge who made was the District finding might separately or desired appellate sus court of fact—the enterprise used. whole awas mutu finding. And American such tained reading plan. al of the No standard American Broad Ins. Co. Mfrs. Mut. v. by-laws will an contract and exhibit Theatres, Inc., casting-Paramount exposed plan any separa or hidden (S.D.N.Y.1963), F.Supp. also relied part provided ble its service was to be majority, upon no eviden involves part on the condition that some whatever, tiary findings for the of fact accepted paid no for. hint There a motion court concerned purchase of a second “a forced distinct complaint. I am unaware dismiss commodity,” Times-Picayune Publishing any appellate an court where case States, supra, Co. United sale finding clearly has found erroneous “Only product of one condition meaning involving fact such nuances buj^er purchases also a different * * * appraisal and Ry. and such balanc delicate product,” Pac. Northern determining ing States, supra. con were involved Co. v. United report, Cooper tegral part that four “Mr. advised the Board tke basic permitted served on the Pacific Northwest which should not be integrate to dis- members re- circuit to discontinue and inasmuch as assessment trunk desired given tabular local ele- the financial had been for the wire facilities ductions opposed requested discontinuance, three members service and ment where present arrangements un- be continued such discontinuance. unanimously til the members concerned Spokes- “W. H. Cowles stated that agreed (Apparently about otherwise.” Spokane Daily Chronicle man-Review 1943.) of the consent to discontinuance “ * * * all members concerned tabular if 5. An AP executive testified agreement to substitute an came years it has been discussed report market therefor a reduced stock impractica- explanation an after regular Associated be carried bility attempting to deliver a news re- wire. Press news port wires, on one of several trunk been, my knowledge, a as the re- inasmuch “The Board voted quest always in- for one.” had been service tabular negotiation price Kelly fix and and its control tract sued onions. entirely compuls accepted delivery element of free of 13 cars but refused *23 nothing ion,6 to in the entire and there is take the balance. The seller sued for damages suggest accruing Kelly’s nonper record of this case to that from multiplication promises. of of AP’s channels formance his unfulfilled significant distributing Kelly reflects “the use that had not received power of in one market to re used economic the onions which were the sub ject competition Supreme merits in an the suit. strict The Court af ” * * * by the firmed the condemned Seventh Circuit decision which had vice Court in Northern Pacific as “the sustained the action of the District 11, tying arrangements.” striking pleaded Court in 356 U.S. defense (Emphasis supplied.) illegality. Kosuga Kelly, 78 514 S.Ct. v. 257 F.2d 48 1957, (CA 7, 1958). September Supreme Even in Times-Star’s The Court said: request get Ohio first was not illegality “If the defense is to be separate price, for a but Cities wire allowed as a collateral method of en- merely get a reduction its assess laws, forcement of the antitrust receiving ment for total service.7 petitioner’s argu- the breadth of the only course, accomplish This, could suggests, ment it must be said that discriminating against by all mem ed theory very strange his creates a having part them assume bers of AP private attorneys general.” class of Only when Times-Star’s assessment. 520, 358 U.S. 79 S.Ct. 431. this was did Times-Star seek to refused I would like further to cite here what coming the news have deliver Kelly Kosuga Supreme Court in v. I find it difficult wire alone. quoted approval with from McMullen v. to understand how a contract without Hoffman, 639, 669, 839, 174 19 can made be converted taint when 851, 1117, (1899). L.Ed. 43 1129 during illegality complete term “It has been often stated in similar partial request for total or release very that cases the defense is dis- obligations. respectfully I as its valid one, and it ill honest lies facts involved were that while the sert allege it, mouth of the defendant to in the case at not identical those public and it allowed for Kelly Supreme decision in bar Court’s considerations, order the bet- Kosuga, 358 U.S. 79 S.Ct. against public ter to dis- secure the my (1959), supports L.Ed.2d view 475 honest transactions.” regard. preliminary in this With its against Kelly not for that “As a to an action observation defense contract, plea price action on of ille of onions which had received based he gality damages used, for failure was for based violation the Sherman but portion of the Act has not met with much favor in this the undelivered take Court,” agreed purchased. In the case total had, purchaser its contract had at bar under that a who been Court held August 4, 1948, receiving all of the received fruits a contract could up to the contract to fulfill it. services covered July not thereafter refuse agreed agreed purchase Kelly of 1958. It had to continue had case pay to receive these services onions a contract which cars of under illegal purpose it its contract a two- until terminated claimed to have he that, regard position Counsel: “We don’t have to show 6. Times-Star’s understood, following colloquy emphasized is basic.” X want Judge and Times- the District between discloses, con- far this record As counsel: Star’s “ * * * plan operation was that AP’s tention there was absolute- Court: there was' — n illegal arrangement ly first made its an appearance whatever no evidence pleadings in Times-Star’s entered into [the contract] was complaint.” sued for breach of contract after it was under a year The action notice. here is to re- fused to consent its breach —no rea- resulting cover the loss to AP appears from son why in the record Times- Times-Star’s refusal to receive and given Star could not then have re- during for their news service quired years’ two two notice. years following notice termination. majority places reliance on United against To enforce such a contract a will- Loew’s, Inc., States v. ing buyer freely who entered into May point (1962). I out that questioning without whether a lesser con- Loew’s as well as Northern Pacific Rail- here, tract could be made seems even way v. United Co. *24 Kelly Kosuga, than more v. to be but to and United States v. Jerrold “a enforce lawful sale for a fair consider- Corp., F.Supp. (E.D. 187 Electronics 545 intelligible ation constitutes an [which] Pa.1960), aff’d curiam 365 U.S. ’ * * * economic transaction in itself. (1961), on, also S.Ct. 755 relied 358 U.S. 79 S.Ct. 432. involving government cases action respect, my With enjoin I practices requiring state that belief or contracts majority commodity” the have that a misconstrued basic “distinct be taken as obtaining they issue when condition to the more desired AP characterize the “tying” practice product. Indeed, policy in United practice AP as “this Pictures, Inc., ‘tying’ States v. Paramount together four wire services in a 131, 159, 915, 930, L. single ‘package’ requiring ap- that (1948), Supreme Ed. the pellant pay take and for four wire servic- said, Court es order to receive one of them. ”** suggest do not “We that films There no evidence that groups, not or be sold in blocks when suggested, Times-Star even let alone re- requirement, express is no or there quested, permitted that be to take implied, purchase more anything than, from, different or less than All hold to one film. we be during AP’s entire basic news all service illegal is a refusal license one years it continued as a member of copyrights copy- more unless another AP, much less in 1948 when it entered right accepted.” upon. into the sued contract Even when by difficulties, beset financial the record involved breach of None of these cases makes it thought that clear first Times-Star’s I think that Mr. contract actions and get was to a reduced assess- opinion Kelly Justice Brennan’s service, ment for the AP entire basic Kosuga, supra, makes clear the distinc- sought and that reduction service was My tion that should made here. broth- be only after it was made clear no lower ers, asserting though that even volun- assessment could be had. In several tarily made, the AP-Times-Star places my AP’s characterize plaintiff’s judg- brothers contract will not save requiring “to here, activities as Times-Star quote ment from Loew’s that “the for three continue subscribe laws cannot thrust the antitrust appellant by claiming did not merely wires which want oth- avoided (Emphasis supplied.) illegal by compelled On the need.” erwise conduct is * * * merely contrary, obligations. AP insisted that Times- contractual Con- perform obligations super- its contract made at tractual cannot Star thus statutory imperatives.” time in 1948 when Times-Star obvious- sede ly (Emphasis supplied.) need AP did want and basic news at 105. not, 1957, require quoted language misapplied. service. did obligations” being “continue to subscribe” “contractual there dis- it then decided it would cussed did not all to a contract the wires relate prefer supplier purchaser, to take. Times-Star had between a Times-Star, already AP and but for this service and involved instead subscribed supplier’s had all of the consideration claim its “contractual received . obligations” party merely required a third due under contract. re- its.

77Q the free where purchaser? would better itself. tected chase Associated Press method of it then not, which, trict ment purchaser, to enter into the of the arrangements Department question its assembled automobiles present practices were indeed majority news, manufacturer counterclaim for ity in al action or the the contract trust had a obligations only, or sociated Press can steering separate price so as to gations voluntarily cannot employ ing difficult to understand der attack demand that henceforth it I The added costs will be pose European schemes, and in distributing such a impresses month for a laws by demanding contract or Judge’s contract majority opinion when the contract before us none desired join mechanism is facility foreign the the opinion whether competition sought because practices the separately, anti-trust by could the rearrangement into of Justice. I doubt made, by'a question anti-trust chaos Common Market. can making steering British Commonwealth term it me dismissal of for itself. resolved necessary. permitting the damages sell ten news, the news and any government. be relied Chevrolet automobiles frontal attack expressed assumed illegal tying arrange- legally stated that for the balance become a easily present it, laws member a transition my whether purchaser manufactured proofs be allowed laws, why with the Associated or if mechanism use arrangement designed by even I affirms the Dis- under view find no political being deliverable its Chevrolets of the entire upon. repudiate period the latter Congression- in a contract there should But I escape be contractual though appellant’s to be of the As- illegal ty- gathering danger under assessing and thus they the anti- is now a damages question supplied bargain If AP’s refused convert society illegal- period find it If news, Press for a to a pur- obli- pro- in a un- were the its or I tion papers were continued as a combined : ^[1] the two ment between the by-laws bars nor was there ing *25 conduct. no recoverable contract by-law provided, ed the contract or excused contract also opinion did not deal with other defenses claims that asserted lant’s of the Member’s election to do There was a further force “until me in registered mail to the longer publisher of. Times-Star. transferred sociated Press constitute the whole sions hereof and the er the Cincinnati Times-Star assets were Star daily called the Cincinnati Post owners of the Cincinnati business of tion shall member shall The ular regular membership associate “Upon Because of its of the or “Sec. 13. or a) disposition of this an “associate My provided its contract with the too Discontinuance 3) plaintiff’s (b) two liability agreement quoted automatically, publication, above views Other speculative by appellant. newspaper year years’ notice, membership.” newspaper to E. W. under terminated In case The AP provided sale Corporation, any by-law plaintiff the Member ceased Associated damages by appellant’s contract cease notice of recovery, membership” holding evidence, or it would continue in parties for an award By-laws quite described in issue. transfer of the does not Scripps Company, Cincinnati Times- shall cease contract contract (a) provision when it was no that “The represented Associated publication. Post, by These be the owner in defenses. Corporation, membership without obviously become an Press had suffered termination. majority the Member hereto.” A that becom- writing, to which of The As- both news- regular terminat- giving so.” illegality majority included in and the provide, reg- agree- appel- there- provi- Press his ac- ques- Aft- The put withstanding agreement relates, from the Member revenue new members operating ap- it had a cause Member’s successor net deficit shall writing proximate agree $600,000. Distriqt to fulfill the sum of The agree- Judge spoke subject and conditions of this on this terms as follows: during and to ment term hereof by-laws Plaintiff, “Under membership apply Associ- recoup can losses of revenue from in the class as the ated Press same other by members The Association Member.” use its assessment formula. First, an actual loss is sustained The did of the acts neither newspaper Plaintiff when a discon- terminated its liabil- have pay- tinues its having ity giving services without a successor notice — ing obligations. clearly contractual liability assume its breached —and corporation, being evidence, objec- Plaintiff a non- its contract. It offered profit corporation, sustained, then finds it nec- tion some of which essary expenses through to meet its various where the As- show instances an increased assessment of the mem- sociated Press had enforced the two bership. against year provision Whatever losses cor- members notice poration any gone incurs for reasons who had out The cir- must business. membership. assessed to the shown cumstances these cases were not members, through increased, have been the same the transaction as- sessment, whereby do not paper loss, the Times-Star was sold eliminate the n they only corporation. Scripps $3,710,000. subsidize But in enforcing Thus Plaintiff sustained a real event forbearance loss *26 when Defendant cancelled contract with others did not foreclose the con- tract.” rights AP’s on its insistence contract against appellant. I consider Associated Press’ obtaining method needed revenue damages. Appellant b) Recoverable assessing a formula for its members is prove urged its dam- failed to utility’s recovery unlike of its costs disputed ages. is not when by spreading among rates the users of payment of its discontinued Times-Star weekly power. City Memphis for and was lost such assessments revenue Memphis Light, on Behalf of Gas and Appellant to AP. offered evidence Water Co., Division v. Ford Motor during period year involved two (CA 6, 1962) F.2d 845 we held that the in excess of the obtained new revenue monthly minimum rate that Ford Motor payable total assessments agreed had period for a fixed during by increasing period such recoverable in full Ford’s breach of membership through of ra- additions contract, though Memphis even util- addi- dio stations and other media. Such ity required gener- was not thereafter revenue, however, tional did not take power ate deliver the contracted for place accruing ap- the loss by Ford. pellant’s pay. refusal The evidence during period judgment also I affirm showed that the entire involved AP deficit had a and that not- District Court.