8:08am PT by Eriq Gardner
Comcast Seeks Dismissal of Stan Kroenke's Antitrust Suit
Comcast customers in Denver can't watch their local NBA and NHL teams play, but according to the cable giant, that doesn't convert a "garden variety commercial disagreement into an antitrust suit."
Stan Kroenke brought claims back in November upon a negotiating impasse that took his Altitude Sports off of Comcast's system. According to the complaint, Comcast is looking to drive Altitude Sports out of business by making demands not imposed on Comcast's affiliated regional sports networks.
On Friday, Comcast moved for dismissal.
"This case arises from a routine commercial disagreement between a regional sports network (Altitude) and a cable company (Comcast)," opens Comcast's memorandum. "Altitude wants Comcast to distribute its network widely — to most Comcast customers in Denver — whereas Comcast wants to provide it to those customers who actually want to watch costly sports content. Altitude and Comcast also disagree on price."
Comcast argues that the antitrust claims fail because they rest on allegations of a lawful unilateral failure to deal. That's notable given that just a week ago, the Seventh Circuit Court of Appeals revived Viamedia's suit against Comcast alleging monopolization of local ad markets. In that dispute, the appellate court also heard — and rejected — Comcast's theories on what was needed to carry a refusal-to-deal claim.
In the newer case over a sports network with exclusive rights to Denver Nuggets and Colorado Avalanche games, Comcast again attacks the idea of coerced contracting.
"Altitude concedes that Comcast was willing to continue to distribute its programming, just not on Altitude’s terms," states Comcast. "Altitude concedes that Comcast was willing to continue to distribute its programming, just not on Altitude’s terms. But a failure to agree on commercial terms is not an unlawful refusal to deal. Altitude’s argument illustrates precisely why unilateral refusals to deal are presumed to be lawful: Courts are 'ill-suited' to assess the reasonableness of offered terms, such as a 'proper price.'”
Comcast disputes the notion that it is a "monopsonist" given it has just a 57 percent market share as a buyer of sports programming, and also rejects the notion that it is somehow Altitude's rival.
As to an assertion that Comcast has forsaken short-term profits by its refusal to license Altitude, Comcast points to the allegation that programming costs "dropped dramatically" because it was no longer carrying the expensive sports channel. Comcast adds, "Altitude pleads no facts showing that any nebulous losses from 'cord cutting' offset these 'dramatic' cost savings."
Elsewhere in the brief (read here), Comcast responds to the "baseless" claim it is attempting to leverage its buying power into "monopoly power as a seller of RSN programming" or seeking to launch its own RSN to replace Altitude.