Federal Appeals Court Backs Brantley v. NBCU Decision


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 and EchoStar, among others.

The suit was originally filed in December of 2007.

The suit received refreshed 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."