C-SPAN: Sky Angel Suit Has No 'Plausible' Sherman Act Elements

Had made the case for dismissal of Sky Angel's antitrust complaint

By John Eggerton -- Broadcasting & Cable, 2/22/2013 4:18:38 PM

C-SPAN suggests that while Sky Angel's antitrust complaint against the cable industry-backed public affairs net "bristles with indignation," it has combed Sky Angel's complaint in vain for plausible Sherman Antitrust elements "sufficient to avoid dismissal."

C-SPAN made its case for dismissal of the complaint once again in reply comments to a D.C. District Court.

"Sky Angel's arguments with respect to C-SPAN and some unnamed number of cable companies whose employees sit on C-SPAN's board of directors, and their degree of control (or lack thereof) over C-SPAN, are inconsistent and contradictory," said C-SPAN, according to a copy of the filing. "And, inexplicably, Sky Angel's Opposition disclaims the core allegations of conspiracy and market power that are essential elements of the two Sherman Act counts in its Complaint. Such inconsistent and contradictory pleading is itself a basis for dismissal."

It was the latest legal move in the case, in which Sky Angel filed suit alleging that the cable industry had conspired to deny Sky Angel access to C-SPAN after the network chose not to continue to be carried after Sky Angel switched from satellite to over-the-top distribution.

C-SPAN filed a motion to dismiss the suit, saying there was case law that clearly prohibited Sky Angel from undertaking what C-SPAN said was "an end run around the FCC's exclusive jurisdiction on program access issues." Next it was Sky Angel's turn to respond in its opposition to the C-SPAN motion, maintaining that the court has jurisdiction, that cable operators have monopoly power over the relevant market and that an antitrust claim is warranted and antitrust injury demonstrable. Friday was C-SPAN's turn to respond to Sky Angel.

C-SPAN pointed to what it said were contradictory and inconsistent statements in its suit and opposition filing. For example, it pointed out that in the complaint, Sky Angel said it "centers on allegations of anticompetitive conduct and a conspiracy," while in its opposition, it said that "plaintiff's claims have little in common with a conspiracy claim."

The court has not yet scheduled oral arguments.