C-SPAN: Sky Angel Suit Has No 'Plausible' Sherman Act ElementsHad made the case for dismissal of Sky Angel's antitrust complaint 2/22/2013 04:18:38 PM Eastern
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.
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
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
The court has not yet scheduled oral arguments.