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According to Comcast, the Biden-era Department of Justice lacks candor, feigns ignorance, obfuscates, and really needs to stand by the courage of its convictions. What provokes such harsh sentiment? After all, given that the DOJ is turning heads by doing things like continuing to defend Donald Trump in a civil suit alleging rape, the new administration is hardly renowned as cowards.
The answer comes at the Supreme Court, where Comcast is looking to avoid trial for monopolizing local TV ad sales. The cable giant is pushing the high court to reverse the 7th Circuit, which ruled in Feb. 2020 that Comcast should face trial for taking actions that allegedly harmed Viamedia, which competes in the ad services business.
The key legal issue in this antitrust case has become when exactly it’s actionable when an entity refuses to deal with a rival. (Viamedia has been kept out of an interconnect that serves ad clients.) Comcast insists that the proper test under precedent is when the refusal makes “no economic sense,” and at the lower courts, the Trump era DOJ backed up that assessment.
In December, the justices asked the Acting Solicitor General for the government’s views. In response, the Biden Administration last month dodged a firm endorsement of the “no economic sense” test and basically told the Supreme Court to pass on a review of the case.
That’s caused Comcast to go ballistic.
In a supplemental brief filed on Monday, Comcast tells the justices, “With a modicum of the candor this Court should expect from the United States, the government should have frankly avowed that it is explicitly repudiating the no-economic-sense test, and citing and embracing the Seventh Circuit’s balancing approach in its own § 2 refusal-to-deal claims in lower courts.”
Interestingly, that’s a reference to the Federal Trade Commission’s ongoing attempt to break up Facebook. In that antitrust case, the government alleges that Facebook is punishing apps that attempt to compete with the social media giant by terminating their access to Find Friends and other APIs. Thus, the legal standards on a refusal to deal have come up in that case too — and now, Comcast is not only suggesting that the government is backing a balancing test without fessing up to it but also implying that the Supreme Court’s review could impact Facebook’s legal future.
“Thus, while the government as amicus pretends here that the panel’s balancing approach is dicta, the government as enforcer is actively endorsing and relying on the panel decision,” write Comcast’s lawyers. “If the United States really believes that is the right approach, it should have the courage of its convictions and ask this Court to grant review — because the balancing approach would require overruling or modifying Trinko. The government is obviously unwilling to acknowledge that reality, and thus its ‘deny’ recommendation here is nothing other than a tactic to increase its leverage in other litigation.”
Here’s the full brief…
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