Cable operators' program bundling does not constitute
antitrust injury, according to the Ninth Circuit Court of Appeals, which
affirmed a 2009 decision to the same effect.
In
Brantley v. NBCU et. al., a group of cable subs had attempted to have the court
mandate cable a la carte, but a district court judge had essentially ruled no
harm, no foul,
and the federal appeals court agreed.
The
Ninth Circuit agreed with the lower court that "allegations that an
agreement has the effect of reducing consumers' choices or increasing prices to
consumers does not sufficiently allege an injury to competition. Both effects
are fully consistent with a free, competitive market."
The
suit had been flied against a laundry list of programmers and distributors including
NBCU and Comcast separately, Disney, Viacom, Fox, Time Warner, Time Warner
Cable, DirecTV, EchoStar and others.
The
suit was originally filed in December of 2007.
The suit had gotten some fresh legs last fall, when the Ninth Circuit withdrew a June three-judge panel decision also affirming the lower court's ruling that a group of cable and satellite subs did not have a case when they alleged that bundled cable programming was an antitrust violation.
The subscribers had claimed that bundling of high-value channels with lower-valued ones reduces consumer choice and raises prices, precluding distributors from offering a la carte and constituting a restraint of trade in violation of the Sherman Antitrust Act.
In that June decision, the three-judge panel had said it was "a consumer protection class action masquerading as an antitrust suit.... In the absence of any allegation of injury to competition as opposed to injuries to consumers."
