Hey, I know this is probably the last thing a lot of you care about or want to read about right now. And yet, I also know a lot of you have interest in this topic overall and, let’s face it, have a lot more time on your hands with which to read this kind of stuff.
So, I am posting the entire 22-page legal brief filed by Altitude the other day, in its ongoing fight with Comcast about the whole regional sports television thing. Some, or a lot of it, might look a little jumbled because of formatting issues I had.
But if you can tolerate that, there is some interesting reading in here. The gist: Altitude truly thinks Comcast is trying to put it out of business, is acting unfairly in a “monopsonist” fashion and should be stopped even if it takes a judge to do it.
This is in response to Comcast’s motion to dismiss the entire case, which Altitude filed. Altitude has some pretty high-powered lawyers working on their behalf, by the way. One of the several law firms on its side is Boies Schiller Flexner LLP. David Boies is one of the more famous lawyers in the country. He was Al Gore’s lawyer in the 2000 election recount, for instance. I don’t think Boies himself is working this case, but his firm – which has many offices – is.
The Amended Complaint (“AC”) details a traditional violation of Section 2 of the Sherman Act. Comcast has acquired and maintains monopoly power because it is the “gatekeeper” to most Denver Designated Market Area (“DMA”) homes, making it a monopsonist (a buyer with market power) of Altitude programming. AC ¶¶ 8, 36-46, 241, 166, 137. Comcast is seeking to eliminate another competitor, Altitude, as part of its campaign of vertical integration. AC ¶¶ 11-13; 133-42. Comcast’s plan to increase its power in the Denver DMA is part of its plans throughout the country: Comcast will buy, run out of business, or take over regional sports networks (“RSNs”) to monopolize the market for regional sports programming. AC ¶¶ 4, 12, 108-115.
Just as Comcast has done throughout the country, Comcast is using its monopsony power to eliminate competition in the Denver regional sports programming market so that Comcast can control that market. AC ¶ 9, 17. In the Denver DMA, Comcast is using its dominant position to decrease Altitude’s viewership, increase the costs for Altitude customers, and block Altitude’s access to most Denver DMA households. AC ¶ 16. This anticompetitive conduct is already harming consumers, as well as Altitude, as Comcast charges consumers a fee only a monopolist could charge for regional sports programming from Altitude that Comcast is no longer providing.
AC ¶¶ 10, 19. Comcast’s conduct is irrational and different from every regional sports market
Comcast controls: Comcast’s conduct is explained only by the benefits it expects to reap from its antitrust violations. AC ¶¶ 8, 14.
Altitude has made specific factual allegations supporting monopolization and attempted monopolization claims under federal and Colorado law, as well as tortious interference claims. Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 6 of 22 2
Comcast’s motion to dismiss improperly argues factual issues, manufactures bright-line rules
that the Supreme Court has repeatedly rejected, and incorrectly isolates—or disregards—
Altitude’s allegations. For example, Comcast attempts to pigeon-hole Altitude’s antitrust claims
as depending on a unilateral refusal to deal, but ignores the complete theories Altitude alleges, as
well as that the Complaint meets all the requirements for a proper refusal to deal claim.
Altitude is a Denver-based RSN that produces and telecasts games of professional regional sports teams. AC ¶ 5. RSNs satisfy consumer demand for local professional sports programming and community-relevant programming. AC ¶¶ 6, 30, 119-120. Altitude is independent; it is not owned or controlled by a larger broadcast or distribution company. AC ¶ 7. To access consumers, Altitude must sell its programming to multichannel video programming distributors (MVPDs)—i.e., the cable and satellite TV companies that are the
“gatekeepers” of access to consumers. AC ¶¶ 36, 46. MVPDs wield more power than ordinary wholesalers because MVPDs control distribution from Altitude to viewers’ televisions (AC ¶¶ 36, 40), and are “vertically integrated” from purchase, through distribution, and to the consumer. AC ¶¶ 45-48, 71, 93. MVPDs are secure in their position because the market is not competitive—the industry is highly concentrated and no other distribution channel has the necessary scale to be viable. AC ¶¶ 21, 33-36, 63, 100, 179. Consumers are largely “locked in” to one MVPD due to high switching costs. AC ¶¶ 34, 166.
In the Denver DMA, most households have only one cable choice: Comcast. AC ¶¶ 166, 34, 41-43, 126. By analogy, most consumers shop at one store that is accessible by one road— and Comcast controls the store, the road, and the entire distribution chain from Altitude to the Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 7 of 22 3 shelf.
For 15 years Altitude had a stable, mutually beneficial relationship with Comcast. AC ¶¶
8-9, 136. Altitude and Comcast’s products and services combine to create a joint package—
MVPD service with a high-quality RSN—satisfying a specific consumer demand. AC ¶ 2.
But over the same years, Comcast gained more monopoly power, which Comcast has
exercised by increasing consumer prices. AC ¶¶ 50, 63. Comcast has executed a strategy of
further vertical integration by taking over RSNs throughout the country (id. ¶¶ 4, 12, 108-115),
saving Comcast money because it can produce cheaper, lower quality programming. Id. ¶ 221.
Because Comcast has market power, it does not pass its savings on to consumers. AC ¶¶ 20, 50.
Now Comcast is trying to eliminate Altitude so that Comcast can take over the regional
sports programming market. AC ¶ 49. Comcast is making demands of Altitude that Comcast
knows are impossible and that Comcast does not demand of its own RSNs. Id. ¶¶ 13-14, 152-
160. Comcast is attempting to target and penalize Altitude viewers with even higher prices,
whether directly or indirectly, by forcing Altitude viewers to purchase a more expensive “tier” or
bundle of service. Id. ¶¶ 107, 158. Comcast has misled consumers and advertisers (id. ¶¶ 123,
191, 199, 210), and charged RSN fees that are not commensurate with what it pays Altitude. Id.
¶¶ 191-99. The terms Comcast demands make economic sense only because over the long term
this anticompetitive conduct will be profitable by eliminating Altitude. Id. ¶¶ 13-14, 190, 196.
Monopolization (or monopsonization) has three elements: “(1) monopoly power in the relevant market; (2) willful acquisition or maintenance of this power through exclusionary conduct; and (3) harm to competition.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 8 of 22 4
762 F.3d 1114, 1119 (10th Cir. 2014). Attempted monopolization claims also require exclusionary conduct, as well as (1) a “specific intent to monopolize” the relevant market and (2) “a dangerous probability” of success. Id. at 1129.
I. COMCAST HAS MONOPSONY POWER IN THE DENVER DMA SPORTS
PROGRAMMING MARKET AND A REASONABLE PROBABILITY OF
OBTAINING MONOPOLY POWER.
Comcast challenges the scope of the alleged market in the Complaint, but it is “well settled that defining the relevant market is an issue of fact.” Telecor Commc’ns, Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1131 (10th Cir. 2008). Altitude properly alleged a monopsony market comprised of MVPD providers in the Denver DMA. Campfield v. State Farm Mut. Auto. Inc. Co., 532 F.3d 1111, 1118 (10th Cir. 2008) (monopsony market “is comprised of buyers who are seen by sellers as being reasonably good substitutes”). There are no good substitutes to MVPDs for the distribution of regional sports programming. AC ¶¶ 40, 42, 177-81. And in the Denver DMA, Comcast is the dominant MVPD provider with 57% market share, making it more than twice the size of its next competitor, DIRECTV. AC ¶¶ 41-44, 164, 181. E.g., Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 969-72 (10th Cir. 1990) (47% to 62% market share sufficient); N.M Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., 54 F. Supp. 3d 1189, 1207-11 (D.N.M. 2014) (42% to above 50% market share sufficient).1
1 Citing “dicta” in Colorado Interstate Gas Co. v. Nat. Gas Pipeline Co. of Am., 885 F.2d 683,
694 n.18 (10th Cir. 1989), Comcast argues that at least “between 70% and 80%” share is
required (Mot. 11), but the Tenth Circuit has never set “a firm market share percentage”
requirement (Reazin, 899 F.2d at 967-68) (holding shares well below 70% sufficient). Other
market characteristics, including “the number and strength of defendant’s competitors” and “the
difficulty or ease of entry into the market by new competitor” are likewise relevant to market
power (id.), and those factors all reinforce Comcast’s market power.
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Because Comcast has the means to switch production rapidly to launch an RSN without
incurring significant sunk costs (AC ¶¶ 77-80, 91-98, 101), it is also considered a market
participant (and therefore, a market competitor) in the Regional Sports Programming Market.
2010 U.S.D.O.J. & F.T.C. Horizontal Merger Guidelines §5.1.
Whether a firm is a rapid entrant is a fact-intensive inquiry. E.g., United States v. Bazaarvoice, Inc., 2014 WL 203966 (N.D. Cal. Jan. 8, 2014) (deciding rapid entry based on evidentiary record); FTC v. Tronox Ltd.,
322 F. Supp. 3d 187 (D.D.C. 2018) (same). Comcast’s rapid entrant status, along with other characteristics of the market, gives it a dangerous probability of monopolizing the Denver DMA Sports Programming Market. AC ¶¶ 90-101; Reazin, 899 F.2d at 967-68.
Alternatively, Comcast has a dangerous probability of monopolizing a Denver DMA Hockey Programming Submarket. In the Denver DMA, consumers have a unique demand for Avalanche hockey games and view the Altitude and Comcast networks as interchangeable suppliers of such programming. AC ¶¶ 84-89. Professional Hockey Programming is therefore a submarket within the Regional Sports Programming Market. Id. ¶¶ 38, 84-89. 3 Comcast has a dangerous probability of obtaining a monopoly in the Professional Hockey Programming
Submarket, with 40.5% to 74% market share. AC ¶ 89. Should Comcast acquire Altitude it will have a 66.5% to 100% share of the Professional Hockey Submarket. Id.
2 Courts use the Guidelines’ standards in addressing market definition outside of the merger
context. E.g., Horst v. Laidlaw Waste Sys., Inc., 917 F. Supp. 739, 744 (D. Colo. 1996); United
States v. Visa U.S.A., Inc., 163 F. Supp. 2d 322, 335–342 (S.D.N.Y. 2001).
3 Comcast argues that RSN and national telecasts of games are not interchangeable because a
hockey viewer cannot switch from Altitude to NBC to watch the same game (Mot. n.9), but
defining a market game by game runs against courts’ strong preference not to limit a market to
one brand. See Glob. Disc. Travel Servs., LLC v. Trans World Airlines, Inc., 960 F. Supp. 701,
705 (S.D.N.Y. 1997) (NBC is not its own market because, “at base . . . NBC is just another
television network”) (Sotomayor, J.).
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II. COMCAST HAS ENGAGED IN EXCLUSIONARY CONDUCT TO ACQUIRE
AND MAINTAIN ITS MARKET POWER.
Sherman Act, Section 2 reaches a range of anticompetitive conduct by an actual or attempted monopolist/monopsonist. “It’s been said that anticompetitive conduct comes in too many forms and shapes to permit a comprehensive taxonomy.” Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1072 (10th Cir. 2013); United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C.
Cir. 2001) (en banc) (under Section 2, “the means of illicit exclusion . . . are myriad”). For
example, a Section 2 claim can be based on exclusionary conduct that limits rivals’ ability to
compete (Novell, 731 F.3d at 1072),4 or conduct that “has little or no value beyond the capacity
to protect the monopolist’s market power.” Novell, 731 F.3d at 1072. The general principle is
that “the monopolist’s conduct must be irrational but for its anticompetitive effect.” Id. at 1075.
Comcast nonetheless argues that this case must be analyzed exclusively as a refusal-todeal. Mot. 3, 7-9. The Complaint expressly states that it is not so limited. AC ¶ 16. Consistent
with this, an antitrust complaint’s allegations should be analyzed “without tightly
compartmentalizing the various factual components and wiping the slate clean after scrutiny of
each.” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962); see
also Caldera, Inc. v. Microsoft Corp., 72 F. Supp. 2d 1295, 1309 (D. Utah 1999) (rejecting
defendant’s attempt to “carve up” exclusionary conduct into discrete claims).
See Multistate Legal Studies v. Harcourt Brace Jovanivich Legal & Professional Publications,
63 F.3d 1540, 1553 & n.12 (10th Cir. 1995) (“PMBR alleges that the Defendants deliberately
created schedule conflicts to avoid helping PMBR and, in fact, to harm PMBR”); Baker,
Exclusion as a Core Competition Concern, 78 Antitrust L.J. 527, 539 (2013) (the “most obvious
anticompetitive exclusionary strategies directly constrain rivals by imposing costs or reducing
rivals’ access to customers”).
Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 11 of 22
A. Comcast Has Abused Its Position as the Dominant Purchaser and Distributor of
Regional Sports Programming.
Comcast has illegally foreclosed Altitude from accessing consumers, raising its costs and
costs of Altitude customers, in at least three ways: First, Comcast is singling out Altitude as an
independent RSN, agreeing to offer Altitude programming only in a sports tier with 15-20%
market penetration compared to 70-85% penetration in an expanded basic package, requiring
consumers to pay a fee or penalty on top of subscription and regional sports fees. AC ¶¶ 65, 155,
158. Comcast’s own sports programming in the Denver DMA or other geographic markets
remains penalty-free. Id. ¶¶ 151-160. Antitrust law steps in when a monopolist harms
consumers using, or wanting to use, a rival’s product. E.g., Lorain Journal Co. v. United States,
342 U.S. 143, 152-53 (1951) (enjoining local newspaper from refusing to sell advertising space
to advertisers who also run ads on competing radio station); United Shoe Machinery Corp. v.
United States, 258 U.S. 451, 456-58 (1922) (condemning practice of punishing buyers who
produce shoes using competitors’ machines); Caldera, Inc. v. Microsoft Corp., 87 F. Supp. 2d
1244, 1249-51 (D. Utah 1999) (Microsoft’s practice of financially punishing licensees for
dealing with rivals was exclusionary and unlawful). This combination of a penalty to consumers
for dealing with a rival, together with a foreclosure of access to consumers and resulting
decreased output, is anticompetitive. Multistate Legal Studies, 63 F.3d at 1553 n.12; Sprint
Nextel Corp. v. AT&T Inc., 821 F. Supp. 2d 308, 320-21 & n.21 (D.D.C. 2011) (restricting or
foreclosing a competitor access to a “necessary input” is antitrust injury).
Second, Comcast’s blackout of Altitude was only one step in its larger anticompetitive
scheme to build its position in the Regional Sports Programming Market, creating an
opportunity to vertically integrate Altitude’s programming into Comcast’s other video and
Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 12 of 22
NBC-branded sports programming. Conduct “may cross the line from permissible to predatory
. . . if its purpose is vertically to integrate into the supplier’s market.” N.M. Oncology, 54 F.
Supp. 3d 1189 (denying motion to dismiss Section 2 claim). The same reasoning applies to
Comcast’s conduct; Comcast’s formalistic objections that it does not presently compete directly
with Altitude in the relevant geographic market ignore economic reality. Mot. 2, 12, 14.
These features—the power Comcast wields as gatekeeper to consumers and its incentives
and plan to integrate vertically—are similar to those analyzed in Steward Health Care Sys., LLC
v. Blue Cross & Blue Shield of Rhode Island, 997 F. Supp. 2d 142 (D.R.I. 2014). In Steward, as
here, the defendant tried to reduce a complaint to an impermissible “refusal to deal,” focusing on
the parties’ buyer-seller relation in one market, and disregarding the parties’ competition in the
downstream market. Id. at 155-57. The Steward plaintiffs ran hospitals and insurance
companies. In their hospital roles, the plaintiffs were defendant’s customers, but in the
downstream insurance market plaintiffs were defendant’s competitors. Id. The plaintiffs alleged
the defendant refused to do business with them on terms similar to those between the defendant
and non-integrated hospitals. Id. The defendant’s conduct was not merely an insurer’s “refusal
to deal” with certain hospitals. Id. The plaintiffs stated a claim because the insurer’s refusal was
designed to impair the plaintiffs’ ability to compete in the insurance market. Id.
Third, Comcast made misrepresentations concerning Altitude to harm its reputation and
relationships with customers, blaming Altitude for the Regional Sports Fee and rising prices (AC
¶¶ 123, 191), but that is untrue because the fee Comcast charges allows it to pass on to
consumers the cost of carrying Altitude. Id. ¶ 193-94. Where, as here, misrepresentations are
part of an exclusionary scheme, that constitutes an antitrust violation. E.g., Lenox, 762 F.3d at
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1117 (antitrust violation based on baseless recall of plaintiff’s products to eliminate competition
from plaintiff); Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 783-84 (6th Cir. 2002)
(series of exclusionary and tortious acts taken together constituted an antitrust violation).
B. Altitude Has Properly Alleged an Aspen Skiing Refusal to Deal Claim Based on
the Three Part Test in Novell.
Relying on Novell— a decision based on an eight-week trial record—Comcast argues that
the antitrust laws “strongly disfavor” refusal to deal claims. Mot. 4. Novell stated that the
absence of a duty to deal is a “presumption” that can be overcome based on the factors identified
in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985). As the Supreme
Court has stated, and more recently the Seventh Circuit has reaffirmed in reversing dismissal of a
refusal to deal claim against Comcast (following “essentially the same [test] employed by the
Tenth Circuit in Novell,” Viamedia, Inc. v. Comcast Corp., 951 F.3d 429, 461 (7th Cir. 2020):
“‘Under certain circumstances, a refusal to cooperate with rivals can constitute anticompetitive
conduct and violate Section 2,’ and the ‘leading case for § 2 liability based on a refusal to
cooperate with a rival . . . is Aspen Skiing.’” Viamedia, 951 F.3d at 455 (quoting Verizon
Commc’ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004)).
Aspen Skiing liability requires: (1) “a preexisting voluntary and presumably profitable
course of dealing between the monopolist and the rival,” Novell, 731 F.3d at 1074; (2) “the
monopolist’s discontinuation of the preexisting course of dealing must suggest a willingness to
forsake short-term profits to achieve an anti-competitive end,” id. at 1075; and (3) “a showing
that the monopolist’s refusal to deal was part of a larger anticompetitive enterprise.” Id. At the
pleading stage, separate from this three part test, “it is enough to allege plausibly that the refusal
to deal has some of the key anticompetitive characteristics identified in Aspen Skiing.”
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Viamedia, 951 F.3d at 462. Altitude has met all of these tests.
Comcast argues that Viamedia is “outside the mainstream of antitrust jurisprudence”
(Mot. 7 n.3), but Viamedia stated that the test it applied “is essentially the same one employed by
the Tenth Circuit in Novell.” Viamedia, 951 F.3d at 462. Comcast also ignores the fact that
Viamedia addresses what a plaintiff must plausibly allege to state a claim; as in Viamedia,
Comcast improperly argues that it is entitled to dismissal based on its motivations and
justifications—factual issues that cannot be resolved on a motion to dismiss.
1. Comcast and Altitude Had a Profitable Prior Course of Dealing.
Comcast does not dispute that the Amended Complaint alleges Comcast had a “profitable
prior course of dealing with Altitude” over fifteen years. AC ¶¶ 8, 117–18, 131–32; Mot. 3.
“Such a pre-existing relationship supports a presumption that the joint arrangement was efficient
and profitable.” Viamedia, 951 F.3d at 456 (citing Trinko, LLP, 540 U.S. at 408-09). These
allegations distinguish Altitude’s claims from those of the plaintiff in Christy Sports, LLC v.
Deer Valley Resort Co., Ltd., 555 F.3d 1188 (10th Cir. 2009) where there was “no indication that
[the defendant] is terminating a profitable business relationship.” Id. at 1197. These allegations
also distinguish this case from Trinko where there was no “unilateral termination of a voluntary
(and thus presumably profitable) course of dealing” (540 U.S. at 409-10) (emphasis in original).
In arguing that “[c]oerced contracting requires courts to act as ‘central planners’” Mot. 4
(quoting Trinko, 540 U.S. at 408), Comcast “puts the cart before the horse. The trier of fact must
first determine whether Comcast’s procompetitive justifications outweigh the anticompetitive
harms from its conduct.” Viamedia, 951 F.3d at 480. If they do not, the “presumably profitable
terms already agreed to by the parties may suggest terms a court can use to fashion a remedial
Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 15 of 22
order without having to cook them up on its own.’” Novell, 731 F.3d at 1075.
Comcast contends that “Altitude’s allegations establish that Comcast is neither a
monopolist (or monopsonist) nor a rival of Altitude.” Mot. 6. By this argument, Comcast is not
denying whether a duty to deal has been pled, but has shifted its arguments to those discussed in
Section I above as well as a standing argument. Mot. 6. Just as consumers have standing to sue
monopolists, sellers have standing to sue monopsonists. For example, in Reazin and Steward
Health, hospitals (as sellers) sued insurers (as buyers) that refused to deal with them. Accord
Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 250, at 367 ( “suppliers,” “defined
broadly,” have standing against businesses with which they do not directly compete).5
2. Comcast Has Suffered Short-Term Losses.
Altitude alleges that Comcast has suffered short-term losses because “many Comcast
subscribers have cancelled, or expressed an intent to cancel, their service,” in response to a lack
of Altitude programming, reducing Comcast’s subscription and advertising revenue. AC ¶¶
188–90, 194–96. Further, the loss of profits is shown by allegations that Comcast does not
impose the economics it demands from Altitude on its own RSNs: Comcast knows the business
model it seeks to impose makes no business sense. Id. ¶¶ 151-160.
Further, Altitude only needs to allege plausibly that Comcast was willing to forego a
loss in short-term profits. In Entrata, Inc. v. Yardi Sys., Inc., 2019 WL 4597519, at *6 (D. Utah
Aug. 14, 2019), applying Novell, the Court denied a summary judgment motion because the
5 Comcast relies on Glen Eden Hosp., Inc. v. Blue Cross and Blue Shield of Mich., Inc., 740 F.2d
423 (6th Cir. 1984), decided before Aspen Skiing and turning on the fact that “Glen Eden
produced no evidence of illegal monopoly or attempt to monopolize” at summary judgment. Id.
at 430 (emphasis added).
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plaintiff presented evidence that the defendant was “willing to lose 100 customers”—not that it
in fact lost 100 customers (id.), and losses from discounts. Id.
3. Comcast’s Refusal to Deal Is Part of a Larger Anticompetitive Enterprise.
As explained above in Section II.A, the conduct at issue was part of a larger
anticompetitive campaign that involved more than merely “refusing to deal” with Altitude.6
C. Altitude Has Properly Alleged an Aspen Skiing Refusal to Deal Claim Because
Comcast’s Conduct Was Irrational but for its Anticompetitive Effect.
Comcast treats as an additional requirement under Aspen Skiing that Comcast’s conduct
must be “irrational” but for its anticompetitive effect. Irrationality is an independent standard
under Aspen Skiing of which the three part test from Aspen Skiing is illustrative; irrationality but
for an anticompetitive effect stands alone under Aspen Skiing and is not a separate test. Novell,
731 F.3d at 1074. “The plaintiff ultimately needs to prove ‘that the monopolist’s refusal to deal
was part of a larger anticompetitive enterprise, such as (again) seeking to drive a rival from the
market.’” Viamedia, 951 F.3d at 462 (quoting Novell, 731 F.3d at 1075).
In Viamedia, in applying the same “no economic sense” analysis as “employed by the
Tenth Circuit in Novell” (id.), the Seventh Circuit balanced the Aspen Skiing factors and other
allegations about Comcast’s conduct, concluding that Comcast’s refusal to deal was “wholly
disproportionate” to any valid business justification. Viamedia, 951 F.3d at 461 & n.13. The
balancing test leads to the same conclusion here. Altitude’s unique sports programming
encourages subscribers to stay with Comcast. AC ¶¶ 184–89. Comcast has not imposed on its
6 Citing Four Corners Nephology Assocs., P.C. v. Mercy Med. Ctr., 582 F.3d 1216 (10th Cir.
2009), Comcast argues that Altitude cannot state a claim based on monopoly leveraging (Mot.
9), but the Tenth Circuit only held that monopoly leveraging, as any Section 2 theory, requires
anticompetitive conduct, which Altitude has alleged. 582 F.3d at 1222.
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own RSNs the impossible terms it demands from Altitude. Id. ¶ 160. Altitude’s performance
supports continuing, not ending, the prior course of dealing. Id. ¶¶ 182–83.
Comcast points to its claimed “cost savings” from “reduced programming expenses”
(Mot. 6), but that “presupposes” the reason’s validity (Entrata, 2019 WL 4597519, at * 7);
“balancing anticompetitive effects against hypothesized justifications depends on evidence and
is not amenable to resolution on the pleadings . . . .” Viamedia, 951 F.3d at 460; see Aspen
Skiing, 472 U.S. at 608 (treating procompetitive justification as for the jury).
III. COMCAST’S ARGUMENTS CONCERNING TRINKO AND PREEMPTION
DO NOT SUPPORT DISMISSAL.
Comcast’s argument that the FCC’s purported oversight governs this dispute (Mot. 10
n.5) conflicts with the plain text of the statutes governing the FCC. 47 U.S.C. § 414 (“Nothing
contained in this chapter [5 of Title 47, §§ 151-624] shall in any way abridge or alter the
remedies now existing at common law or by statute, but the provisions of this chapter are in
addition to such remedies”). Comcast’s argument has also been rejected by the Supreme Court:
Repeals of the antitrust laws by implication from a regulatory statute are strongly
disfavored, and have only been found in cases of plain repugnancy between the antitrust
and regulatory provisions.’ [citations] Activities which come under the jurisdiction of a
regulatory agency nevertheless may be subject to scrutiny under the antitrust laws.
Otter Tail Power Co. v. United States, 410 U.S. 366, 372 (1973).
IV. ALTITUDE ALLEGES HARM TO COMPETITION.
By eliminating Altitude, the only independent RSN in the Denver DMA, Comcast is
ensuring that all remaining RSNs will be vertically integrated MVPD-affiliated RSNs.
7 Comcast cites dicta from Trinko, where the Supreme Court refused to turn a
Telecommunications Act violation into an act of monopolization (540 U.S. at 407); Altitude, in
contrast, relies solely on antitrust standards.
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Currently, the only other RSN in the market is AT&T SportsNet Rocky Mountain, which is
vertically integrated and affiliated with AT&T, owner of DIRECTV. AC ¶ 219. By filling the
void in the market left by Altitude and creating another Comcast-affiliated RSN, Comcast will
become a second MVPD-affiliated RSN in the Denver DMA (id. ¶ 220), increasing barriers to
entry and ensuring that only RSNs with vertically integrated distribution in the Denver DMA
will be able to compete in the Regional Sports Programming Market. Id. ¶ 218.
MVPD-affiliated RSNs have less incentives to compete with each other and to create a
quality product; their vertical integration guarantees them carriage, allowing them to survive
regardless of how vigorously they compete. Id. ¶ 221. A market occupied by only MVPDaffiliated entities reduces quality and choice of regional sports programming and decreases the
incentive to innovate, causing harm to consumers above the harm they have already suffered by
losing access to Altitude and being charged a fee for missing content, id. ¶¶ 213-15.
Even if Comcast does not take Altitude’s place, when a market already has few
competitors, the elimination of one harms competition. E.g., Full Draw Prod. v. Easton Sports,
Inc., 182 F.3d 745, 750-51 (10th Cir. 1999) (elimination of plaintiff from trade show business
satisfied antitrust injury requirement); Total Renal Care, Inc. v. W. Nephrology & Metabolic
Bone Disease, P.C., 2009 WL 2596493, at *5 (D. Colo. Aug. 21, 2009) (“attempts to eliminate a
competitor and thus lessen competition” were sufficient at the pleading stage).8
See Viamedia, 951 F.3d at 482 (“competitors suffer antitrust injury when they are forced from
the market by exclusionary conduct”); United States v. Visa U.S.A., Inc., 344 F.3d 229, 240 (2d
Cir. 2003) “the total exclusion of [plaintiffs] from a segment of the market” is harm to
competition); Suture Exp., Inc. v. Cardinal Health 200, LLC, 963 F. Supp. 2d 1212, 1220 (D.
Kan. 2013) (damage to a critical competitor is injury to competition).
Case 1:19-cv-03253-WJM-MEH Document 53 Filed 03/27/20 USDC Colorado Page 19 of 22
V. ALTITUDE ALLEGES CLAIMS OF TORTIOUS INTERFERENCE.
In response to Altitude’s tortious interference claims, Comcast invokes the competitor
privilege, Mot. 14, but it does not apply because Comcast employed wrongful means to interfere.
ClearCapital.com, Inc. v. Computershare, Inc., 2019 WL 1573300, at *4 (D. Colo. Apr. 11,
2019). Wrongful means include the anticompetitive abuse of market power (Campfield, 532
F.3d at 1123–24) and misrepresentations (Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1198
(Colo. App. 2009)). Altitude alleges both.
Comcast argues that Altitude has not alleged misrepresentations with sufficient
specificity, but Altitude must only allege, and did allege, that Comcast knowingly made a false
statement, intended to cause others to rely on that statement, and harmed Altitude. AC ¶¶ 123-
24, 191, 210-11. Comcast recites these allegations (Mot. 15 n.11), demonstrating that it had
sufficient notice of the misrepresentations. Owens v. Nationstar Mortg. LLC, 2015 WL
1345536, at *3 (D. Colo. Mar. 23, 2015). Comcast is incorrect that Altitude must allege why
“the statements were false”; no Tenth Circuit case “imposes such a requirement” (id.).
Comcast argues that Altitude did not identify a business relationship; “it is ‘not necessary
that the plaintiff identify a specific customer relationship or a specific customer’ with whom he
or she had a prospective relationship” (MSC Safety Sols., LLC v. Trivent Safety Consulting, LLC,
2019 WL 5189004, at *12 (D. Colo. Oct. 15, 2019)); Altitude in any event did. AC ¶ 207-09.
For the foregoing reasons, Comcast’s motion to dismiss should be denied.