Viamedia, Incorporation v. Comcast Corporation ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2852
VIAMEDIA, INC.,
Plaintiff-Appellant,
v.
COMCAST CORPORATION and COMCAST CABLE
COMMUNICATIONS MANAGEMENT, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-05486 — Amy J. St. Eve, Judge.
____________________
ARGUED FEBRUARY 7, 2019 — DECIDED FEBRUARY 24, 2020
____________________
Before BAUER, HAMILTON, and BRENNAN, Circuit Judges.
Table of Contents
I. The Markets and the Competitors ........................................7
A. Cable Television: History, Revenue Sources, and
Competition .......................................................................8
1. Television Programming and Advertising ..............8
2 No. 18-2852
2. Revenue Sources: Competition and Cooperation 10
a. Competition for Advertising Dollars and
Cooperation Through Interconnects ................10
b. Competition for Subscribers ..............................15
i. Growing MVPD Competition .....................16
ii. Incumbent Cable Companies’ Efforts to
Stymie Competition for Subscribers ..........18
B. The Ad Rep Services Market .........................................20
1. The Role of Viamedia ...............................................20
2. Vertically Integrated MVPDs ..................................22
3. Back to the Interconnects .........................................23
C. Comcast Refuses Interconnect Access to Viamedia ...24
II. District Court Proceedings ..................................................35
III. Legal Standards and Analysis .............................................37
A. Sherman Act Section 2—Illegal Monopolization........38
B. Claims of Anticompetitive Conduct: Refusals
to Deal and Tying ............................................................41
1. Refusals to Deal .........................................................44
a. Monopolists and Refusals to Deal ....................44
b. Aspen Skiing and Comcast ..................................46
c. Refusals to Deal and Motions to Dismiss ........54
i. Comcast’s Proposed Legal Standard..........57
ii. Inapposite Vertical Integration Cases ........63
No. 18-2852 3
2. Tying ...........................................................................67
a. Summary Judgment Standard ..........................69
b. Tying and Comcast’s Conduct ..........................70
i. Definition........................................................71
ii. Separate Products or Services .....................73
iii. Forced Purchase ............................................75
C. Section 2 Monopolization: Harms, Efficiencies,
& Remedies ......................................................................84
1. Harm to Competition ...............................................84
a. Ad Rep Services...................................................85
b. The MVPD Market: MVPDs, Advertisers,
Cable Subscribers ................................................85
c. Back to the Interconnects ...................................88
2. Procompetitive Justifications? ................................91
a. The Interconnects ................................................92
b. The Ad Rep Services Market .............................93
3. Remedies ....................................................................95
D. Antitrust Injury ...............................................................98
E. Role of Expert Witnesses ..............................................102
1. Standard ...................................................................103
2. Economic Expert Witness ......................................103
3. Lack of Expert Witness on Causation ..................104
Conclusion .................................................................................105
4 No. 18-2852
HAMILTON, Circuit Judge. Plaintiff Viamedia, Inc. has sued
defendant Comcast Corporation for violating Section 2 of the
Sherman Act, 15 U.S.C. § 2. Viamedia accuses Comcast of us-
ing its monopoly power in one service market to exclude com-
petition and gain monopoly power in another service market.
The district court dismissed Viamedia’s case, in part on the
pleadings and in part on summary judgment. We reverse. Vi-
amedia’s allegations and evidence are sufficient to state and
support claims that should be presented to a jury.
Because the district court dismissed part of the case on the
pleadings and the rest on summary judgment, we must treat
as true Viamedia’s factual allegations and give it the benefit
of factual disputes and favorable inferences from the evi-
dence. To make sense of this case, we explain some basic busi-
ness arrangements in the markets that put television pro-
gramming in American homes, as well as market definitions
necessary in evaluating the antitrust claims.
The parties agree on the definitions of the relevant geo-
graphic and service markets. Viamedia asserts claims against
Comcast for monopolization in three geographic markets: the
Chicago, Detroit, and Hartford metropolitan areas. In each of
those three geographic markets Comcast now has monopoly
power over two separate service markets: Interconnect ser-
vices and advertising representation services. Interconnect
services are cooperative selling arrangements for advertising
through an “Interconnect” that enables providers of retail ca-
ble television services to sell advertising targeted efficiently at
regional audiences. Advertising representation services for
retail cable television providers assist those providers with
the sale and delivery of national, regional, and local advertis-
ing slots. This market in advertising representation services is
No. 18-2852 5
the one in which Viamedia competed with Comcast. In each
geographic market, according to Viamedia’s evidence, Com-
cast used its monopoly power over the cooperative Intercon-
nects to force its smaller retail cable television competitors to
stop doing business with Viamedia, thereby gaining monop-
oly power over the market for advertising representation ser-
vices.
Viamedia has presented evidence that Comcast’s elimina-
tion of its only competitor in the advertising representation
services market has harmed competition in violation of Sec-
tion 2. According to Viamedia’s evidence, its customers for
advertising representation services (i.e., Comcast’s retail cable
competitors) did not switch to Comcast because it offered a
better-quality or lower-priced service. They switched because
Comcast used its monopoly power over the Interconnects to
present its cable competitors with a Hobson’s choice: either
start buying advertising representation services from us and
regain access to the Interconnects, or keep buying those ser-
vices from Viamedia and stay cut off from the Interconnects
they needed to compete effectively. According to Viamedia’s
evidence, Comcast deliberately adopted a strategy it knew
would cost Comcast itself millions of dollars in the short run,
but the strategy eventually gave it monopoly power in these
local markets for advertising representation services. Giving
Viamedia the benefit of its allegations and evidence, this is not
a case in which Section 2 is being misused to protect weaker
competitors rather than competition more generally. See Lee-
gin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 906
(2007), quoting Atlantic Richfield Co. v. USA Petroleum Co., 495
U.S. 328, 338 (1990) (purpose of the antitrust laws is to protect
“competition, not competitors”).
6 No. 18-2852
As now the sole provider of advertising representation
services to its cable competitors, Comcast can also damage
competition beyond the relatively narrow markets for adver-
tising representation services in Chicago, Detroit, and Hart-
ford. This control allows it to undercut competition in two
more markets: cable television services to retail customers,
and the sale of advertising spots to local retailers. By estab-
lishing itself as the gatekeeper for its cable competitors’ ad-
vertising, Comcast has gained access to their sensitive mar-
keting and promotional pricing information. And because
Comcast took control of its rival cable companies’ inventory
of local ads, local retailers no longer have a choice of cable
companies from whom they buy ad time.1
Viamedia has thus offered evidence to defeat summary
judgment on its claim that Comcast unlawfully used its mo-
nopoly power over the Interconnects to tie those services to
its advertising representation services. Viamedia has also ad-
equately stated a claim that Comcast has unlawfully refused
to deal with Viamedia and any cable competitor that bought
advertising representation services from Viamedia. On the
pleadings and the summary judgment record, Viamedia’s
prima facie claims of monopolization are similar to but
stronger than the successful plaintiff’s Section 2 claim in As-
pen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585
1 Comcast sells advertising representation services through an entity
called Comcast Cable Communications Management, LLC, which was
formerly called Comcast Spotlight. The district court and the parties have
referred to Comcast’s ad-related services division as both Comcast and
Comcast Spotlight. We use “Comcast” to refer to both together but make
clear when we refer to Comcast Spotlight in particular.
No. 18-2852 7
(1985). We remand this case for any further necessary discov-
ery and for trial.
In Part I, we lay out the key facts: in Part I-A, the structure
of the cable television markets; in Part I-B, the specifics of
Comcast’s and Viamedia’s businesses, including the advertis-
ing representation services they both offer and the critical role
that Interconnects play for providers of cable television pro-
gramming; and in Part I-C, Comcast’s refusal to continue
providing Interconnect access to Viamedia or any of its cus-
tomers in Chicago, Detroit, and Hartford. In Part II, we review
the district court proceedings. Then, in Part III-A, we lay out
the legal standards under Section 2 that apply to Viamedia’s
claims. In Part III-B-1, we apply that law to Comcast’s decision
to refuse to allow Viamedia or its customers access to the In-
terconnects. In Part III-B-2, we apply that law to Viamedia’s
claim that Comcast illegally tied Interconnect services to ad-
vertising representation services. In Part III-C, we evaluate in
greater detail the harm to competition alleged by Viamedia
and the procompetitive justifications offered by Comcast,
highlighting considerations that will be relevant on remand.
Finally, in Parts III-D and III-E, we address issues of antitrust
injury and the district court’s exclusion of expert witnesses.
I. The Markets and the Competitors
Because the district court dismissed one claim on the
pleadings and the other on summary judgment, we present
the relevant allegations and evidence in the light reasonably
most favorable to plaintiff Viamedia, the non-moving party.
The parties agree on the definition of the relevant geographic
markets, and the relevant service-product markets are not dis-
puted on appeal. The relevant geographic markets are the
Chicago, Detroit, and Hartford metropolitan areas, called
8 No. 18-2852
Direct Marketing Areas or DMAs. The monopolized service
market in each metropolitan area is that for the sale of adver-
tising representation services (“ad rep services” in industry
terms) related to so-called spot advertising on cable systems.
To assess the harm to competition that can result from mo-
nopolization of the market for ad rep services, we must ex-
plain the related markets for retail cable television services to
consumers, as well as access to the cable companies’ coopera-
tive advertising distribution platforms called Interconnects.
A. Cable Television: History, Revenue Sources, and Competi-
tion
Understanding these markets’ competitive dynamics re-
quires a bit of history about the evolution of television in the
United States, including the challenges that cable companies
have faced in competing with over-the-air broadcast pro-
gramming.
1. Television Programming and Advertising
An awkward acronym, MVPDs, stands for “multichannel
video programming distributors.” That umbrella term in-
cludes cable companies like Comcast and Cox, as well as
“overbuilders” like RCN and Wide Open West, known as
WOW!. Beyond cable companies, MVPDs also include direct-
broadcast satellite companies (AT&T’s DirecTV and Dish Net-
work), as well as companies formerly associated only with tel-
ephone service (e.g., Verizon’s FiOS and AT&T’s U-verse). The
No. 18-2852 9
two largest MVPDs are Comcast and AT&T-DirecTV, which
together have more than 20 million television subscribers.2
Focusing on the advertising-supported network program-
ming carried by these MVPDs, we explain the special obsta-
cles cable companies face in taking advantage of advertising
revenue. The cable companies’ solution—jointly developing
the Interconnects—created a later opening for a dominant ca-
ble company like Comcast to use its power over several Inter-
connects to gain a monopoly in a related market and to gain
some measure of oversight and control of its smaller cable
competitors.
For decades, television programming was dominated by
three broadcast networks and was funded largely by the ad-
vertisements that ran in the programming. To help advertis-
ers know how many and which viewers they were reaching,
the industry adopted various audience measurement metrics,
most importantly “Designated Market Areas” or “DMAs.”
DMAs are meant to capture regional audiences that are likely
to view the same programming. They often encompass more
than a single county and can also cross state lines.
As cable television companies got started, they typically
won exclusive franchise areas granted by local governments.
Their further expansion was then “subsidized by monopoly
profits” from these exclusive territories. U.S. Dep’t of Justice,
Voice, Video and Broadband: The Changing Competitive Landscape
and Its Impact on Consumers 71 (Nov. 2008) (DOJ Report). Ca-
ble companies then grew and consolidated by sewing
2 For statutory definitions of “multichannel video programming dis-
tributor” (MVPD), “cable service,” and “video programming,” see 47
U.S.C. § 522(13), (6), and (20).
10 No. 18-2852
together such local franchises. Critically for this case, the
patchwork combinations of local franchise areas did not align
with DMAs.
2. Revenue Sources: Competition and Cooperation
Most revenue for MVPDs comes from (1) the sale of adver-
tising and (2) customer subscription fees. In geographic areas
where MVPDs overlap, they compete on both fronts. The con-
duct at issue in this litigation affects both fronts and millions
of households in the key metropolitan areas, and it potentially
affects tens of millions more in other metropolitan areas.
a. Competition for Advertising Dollars and Coopera-
tion Through Interconnects
The mechanics of advertising are central to this lawsuit,
accounting for the existence of the market in which Comcast
and Viamedia competed. For every hour of programming,
networks allot a certain number of minutes for advertise-
ments. Contracts between an MVPD and a network (e.g.,
CNN or ESPN) typically make two or three of those minutes
per hour available for the MVPDs to sell themselves, with the
networks selling the remainder. MVPDs can sell these time
slots to advertisers in various increments of time, such as 15,
30, or 60 seconds. Each increment is typically referred to as a
“spot cable availability,” or “spot avail.” Approximately 75%
of the spot avails are sold to advertisers. The MVPDs use the
remaining 25% to advertise their own products and services.
This brings us to the source of the problem here. In the
early days of cable, advertisers who wanted to reach an entire
DMA such as Chicago faced an obstacle. Cable systems had
grown organically, with each cable service obtaining fran-
chises “through the simple addition of new systems as
No. 18-2852 11
opportunities arose,” leaving cable “company holdings …
typically scattered across the country.” Patrick R. Parsons,
Horizontal Integration in the Cable Television Industry: History
and Context, 16 The Journal of Media Economics, no. 1 (2003)
at 23, 37. Most important, the DMAs that helped broadcast
television advertising reach entire marketing areas did not
align with cable companies’ franchise areas. And yet, for a
substantial percentage of spot avails, it would be most profit-
able to sell them on a regional, DMA-wide level.
As a result, cable companies had a weaker competitive po-
sition for advertising dollars vis-à-vis the broadcast networks
and satellite providers, who could easily deliver advertising
to an entire DMA. Cable companies could not offer DMA-
wide coverage, so advertisers would pay less for spot avails.
To ensure DMA-wide coverage, an advertiser had to contract
separately with each cable provider whose footprint included
any part of that DMA. This was inefficient.
The cable companies came up with a solution. They
banded together to create a platform called an Interconnect
that could bring together all cable providers within a given
DMA. The cable companies could contribute their DMA-wide
spot avails to the Interconnect, which would provide a single
point of contact for advertisers. An advertiser could then pur-
chase a particular time slot and be assured that its advertise-
ment would appear in cable subscribers’ programming
throughout the DMA. Thus, Interconnect services are pro-
vided DMA by DMA. As described by Comcast, “intercon-
nects were formed voluntarily by MVPDs in markets to pool
their resources and offer DMA-wide selling of cable/MVPD
advertising inventory[.] … Otherwise, advertisers trying to
12 No. 18-2852
cobble together a wide-footprint, MVPD-based advertising
campaign would have to go MVPD-by-MVPD.”
To cable subscribers, the national, regional, and local ad-
vertisements appear seamlessly within television shows and
live sports events. But the hidden seam of the Interconnects—
and the ways its spot avails are paid for and delivered—is the
locus of Comcast’s allegedly anticompetitive conduct.
For purposes of this suit, the services provided by the In-
terconnects must be distinguished from advertising represen-
tation services. An Interconnect operator will:
 Pool inventory of spot avails from multiple MVPDs
on a DMA-wide basis;
 Employ sales personnel to sell and/or coordinate
sales of DMA-wide spot avails;
 Distribute schedules of participating MVPDs’ spot
avails to facilitate coordinated merging of local ad-
vertising schedules;
 Coordinate insertion of ads (although MVPDs
themselves generally provide the technical equip-
ment for ad insertion into programming); and
 Collect money from Interconnect advertisers and
coordinate payment to participating MVPDs or
their ad representatives.
Thus, the Interconnects allow the participating MVPDs to
sell their DMA-wide advertising in a way that mimics the
No. 18-2852 13
broadcast networks’ and satellite providers’ comprehensive
coverage of a DMA.3
All participating MVPDs were intended to benefit from
the Interconnects, and all were encouraged to participate to
maximize the value of the DMA-wide spot avails. To quote
Comcast again: “The value of an interconnect increases as
more MVPDs in an area participate, so our incentive is to have
as many MVPDs participate as possible.” First Am. Cplt. ¶ 39.
Because MVPDs will contribute only about one-third of their
spot avails to the Interconnects, and compete with one an-
other for local ad sales, Interconnect participants took steps to
avoid giving preferential treatment to any single MVPD par-
ticipant. To ensure fair administration of the Interconnects,
they were initially conceived as being operated by non-
MVPD, neutral third parties. At the time of their formation,
Interconnects were overseen by boards of directors elected by
all MVPD members.
Interconnects thus became valuable bridges to advertisers,
translating into millions of dollars of advertising revenue
each year in each market. Interconnects are especially valua-
ble to smaller MVPDs. Once an Interconnect gains a critical
mass of subscribers, regional or national advertisers are less
likely to bother dealing with standalone MVPDs, especially
those with small shares of DMA subscribers. And selling spot
avails only to local (as opposed to DMA-wide or national) ad-
vertisers will not compensate for the lost revenue if an MVPD
3 This type of cooperative arrangement is also available at the national
level, with National Cable Communications (NCC) able to place ads
across multiple DMAs or nationwide, replicating broadcast networks’ and
satellite providers’ nationwide coverage. As the country’s largest cable
provider, Comcast now controls 60% of the NCC.
14 No. 18-2852
is shut out of the Interconnect. Purely local spot avails are
sources of revenue and local business relationships, but they
have lower profit margins.
An Interconnect is what economists call a “two-sided plat-
form.” It serves as a clearinghouse, offering “different prod-
ucts or services to two different groups who both depend on
the platform to intermediate between them.” Ohio v. American
Express Co., 138 S. Ct. 2274, 2280 (2018). Such connectivity
gives an Interconnect its value but can also be misused to
harm competition.
On one side of the Interconnect are the advertisers, who
are interested in reaching the greatest number of viewers, es-
pecially within a targeted DMA. The more subscribers an
MVPD can bring to the table, the more advertisers will pay to
reach that expanded audience. On the other side of the Inter-
connect are the MVPDs and their retail customers. The more
advertisers that participate, the more valuable the Intercon-
nect is to the MVPDs and their customers. Cable customers
watching a ballgame or their favorite comedy may not think
about the value of the advertisements they see, but MVPDs
can use advertising revenue to keep monthly subscription
prices lower and to run promotional discounts to bring in
even more subscribers. Those new subscribers will in turn
make the MVPD a more valuable and attractive advertising
venue. The Interconnect can thus produce a competitively vir-
tuous feedback loop. “[T]he value of the services that [an In-
terconnect] provides increases as the number of participants
on both sides of the [Interconnect] increases.” See American
Express, 138 S. Ct. at 2280–81. Or, as Comcast puts it: “The
value of an interconnect increases as more MVPDs in an area
No. 18-2852 15
participate, so our incentive is to have as many MVPDs par-
ticipate as possible.”
An Interconnect is not necessarily, however, a one-way
ratchet to increased demand. Decreased participation on ei-
ther side of the Interconnect can also reduce its value. Thus,
adapting language from American Express, an Interconnect
“losing participation on [the cable provider side] decreases
the value” of the advertiser side, and if advertisers “leave due
to this loss in value, then the [Interconnect] has even less value
to [the cable providers]—risking a feedback loop of declining
demand.” 138 S. Ct. at 2281.
Whether the Interconnects are procompetitive or not de-
pends on the competitive dynamics among its participants. In
a competitive market, for example, the risk of negative feed-
back may serve as a check on the ability of any one participant
to raise prices or otherwise exert market power. See 138 S. Ct.
at 2281 n.1. Conversely, in a less competitive market, access to
the crucial Interconnects can be used to exclude competitors
and harm competition. The Interconnects are so important
that exclusionary conduct can become a weapon to injure
competitors.4
b. Competition for Subscribers
We have just outlined the ways in which MVPDs compete
and cooperate in the pursuit of advertising revenue, which is
4 There is no challenge here to the legality of the Interconnects them-
selves, at least as originally conceived, which seem to fit the model of cer-
tain procompetitive cooperative arrangements among competitors. See
generally Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441
U.S. 1 (1979). Whether that remains the case when one MVPD controls an
Interconnect is a question not presented here.
16 No. 18-2852
the focus of Viamedia’s claims. Yet to see the full potential
harm to competition caused by Comcast’s alleged conduct,
we must also describe the MVPDs’ competition for subscrib-
ers. Comcast’s alleged conduct is all the more dangerous to
competition because it was made possible by accelerating in-
dustry consolidation and has the potential to interfere with
MVPDs’ competition with one another. The industry dynam-
ics provide important context to understand the exclusion of
Viamedia from a handful of DMA Interconnects, at least ini-
tially, and the broader potential impact on MVPD markets in
general.
i. Growing MVPD Competition
Until the mid-1990s, cable companies typically operated as
monopolists with exclusive local cable franchises in their re-
spective areas. They showed little interest in building into one
another’s franchise areas and forcing competition. A combi-
nation of legal, regulatory, and practical barriers limited com-
petitive entry by new MVPDs, and those limits were often
supported by incumbent cable providers. DOJ Report at 32.
Thus, only satellite companies DirecTV and Dish Network,
with their nationwide coverage, could compete with cable
companies for subscribers. Satellite companies were able to
take some market share, particularly in rural areas, but their
competitive threat to cable companies proved to be limited.
DOJ Report at 5, 10, 22 & n.88, 59.
The 1990s saw major changes in the MVPD landscape. The
cable industry shifted “toward regional consolidation, with
specific companies carving out large parts of the country
within which to group their systems.” Patrick R. Parsons, Hor-
izontal Integration in the Cable Television Industry: History and
Context, 16 Journal of Media Economics, no. 1 (2003) at 23, 37.
No. 18-2852 17
The larger companies “bought and traded individual sys-
tems,” with “the various systems in a given city” increasingly
“fall[ing] into the hands of a single cable company.” Id.
With changes in technology and the regulatory environ-
ment, however, cable companies were about to face new com-
petitors. The Telecommunications Act of 1996 was intended to
break down barriers among cable, telephone, satellite, and in-
ternet businesses to galvanize competition—and it did. Larry
Satkowiak, The Cable Industry: A Short History Through Three
Generations 47–48 (The Cable Center 2015). The lines between
MVPDs, traditional telephone companies, and new broad-
band internet service providers became increasingly blurred
as these companies started offering multiple services to con-
sumers. DOJ Report at 1, 17, 19. Cable companies introduced
telephone voice services, which had previously been a legal
monopoly in many states, and started selling bundles of tele-
phone, video, and broadband Internet access. Id. at 9, 11.
Meanwhile, broadband internet service providers like RCN
and WOW!, known as “overbuilders,” built their own infra-
structure in areas already served by incumbent cable compa-
nies and rolled out multiple services. Id. at 8 & n.33, 21 & n.78,
47.5 And traditional telephone service providers responded in
5 “The term ‘overbuild’ describes the situation in which a second cable
operator enters a local market in direct competition with an incumbent
cable operator. In these markets, the second operator, or ‘overbuilder,’
lays wires in the same area as the incumbent, ‘overbuilding’ the incum-
bent’s plant, thereby giving consumers a choice between cable service pro-
viders.” Report and Order and Further Notice of Proposed Rulemaking at
15 n.97, In the Matter of Implementation of Section 621(a)(1) of the Cable Com-
munications Policy Act of 1984 as amended by the Cable Television Consumer
Protection and Competition Act of 1992, FCC MB Docket 05-311 (Mar. 5, 2007)
(FCC 2007 Report and Order).
18 No. 18-2852
kind. Verizon introduced its FiOS service in 2005, and AT&T
followed with its MVPD service dubbed “U-Verse.” Id. at 6–7.
Thus, cable providers—formerly the beneficiaries of cable
franchise monopolies—suddenly faced a new array of com-
petitors. Today, many DMAs are served by an incumbent ca-
ble provider (e.g., Comcast), one or more overbuilder cable
providers (e.g., RCN and WOW!), one or more telephone
companies offering video services (e.g., Verizon FIOS), and
two satellite dish providers (DISH and AT&T-DirecTV).
ii. Incumbent Cable Companies’ Efforts to Stymie
Competition for Subscribers
This new competition led to credible reports of lower
prices and falling cable subscription rates in areas with new
MVPD entrants—exactly what one would hope to see in com-
petitive markets. DOJ Report at 38–39 & nn.180–83. Incum-
bent cable companies were forced to “respond[] to new entry
by improving customer service, increasing bandwidth speeds
…, adding more programming channels and services, and
rolling out enhanced products (such as HD).” Id. at 48; see also
id. at 45–46. But new MVPD competitors continued to encoun-
ter obstacles, including some put in place by the incumbent
cable providers. The incumbents had strong incentives to try
to stymie these new competitors. As the FCC noted, competi-
tion from new cable companies reduces rates far more than
competition from satellite companies. FCC 2007 Report and
Order at 26 ¶ 50.
Among the obstacles for new competitors relevant to this
case, incumbent cable providers entered into exclusive con-
tracts with apartment buildings dense with potential sub-
scribers, which new entrants could not reach, and exclusive
No. 18-2852 19
and discriminatory contracts with programmers, whose con-
tent new entrants could not carry. FCC 2007 Report and Order
at 18 ¶ 35. Overbuilders and the FCC reported in 2008 that
“[e]xclusivity and discrimination in access to programming
are the most powerful tactics that incumbent operators use in
an effort to block or otherwise constrain [new] competition.”
DOJ Report at 74; see also id. at 73, 75, 89; Petition of RCN
Telecom Services, Inc., to Deny Applications or Condition
Consent at 24, 27, In the Matter of Applications for Consent to the
Transfer of Control of Licenses of Comcast Corporation and AT&T
Corporation to AT&T Comcast Corp., FCC MB Docket 02-70
(Apr. 29, 2002) (RCN 2002 FCC Petition) (RCN recounting
“the difficulties it has encountered in gaining, and keeping,
access to critical, non-substitutable local programming con-
trolled by Comcast” and the “numerous instances in which
the incumbents (Comcast and its predecessors) have received
exclusive building rights covering a period of years”).
Incumbent providers also created barriers to signing up
individual customers by locking existing subscribers into
long-term contracts. Because of these long-term contracts
“there is only a small window when a customer is able to
move.” DOJ Report at 52. “The incumbent [cable provider]
knows when that window is, but the new entrant does not.”
Id. “The new entrant must spend resources marketing to cus-
tomers during periods when they cannot switch or will have
disincentives to doing so,” while “an incumbent can target
discounts and other incentives to subscribers immediately
prior to the expiration of their contracts.” Id. at 52–53. This
competitive dynamic helps explain why smaller cable compa-
nies would hesitate to turn over their promotional advertising
plans to their dominant cable competitor in advance of the
20 No. 18-2852
actual promotions—which is the likely result of Comcast’s ac-
tions challenged in this case.
B. The Ad Rep Services Market
1. The Role of Viamedia
As MVPDs were trying to establish themselves in new
markets, the sale of spot avails provided a key source of rev-
enue that helped subsidize offers to attract subscribers. In-
cumbent cable companies had been selling their spot avails to
advertisers for decades, with the scale, internal structures,
and sales and operational personnel to support those activi-
ties. The new overbuilders and telephone service providers
had no such experience or infrastructure.
Enter Viamedia. The new MVPD competitors could have
all spent money to hire their own advertising sales staffs, to
buy and implement billing systems, to set up monitoring pro-
tocols, and to deal with the necessary equipment to insert
those ads seamlessly and accurately into programming.
Many, including MVPDs in Chicago, Detroit, and Hartford,
chose instead to contract for these spot advertising services
with Viamedia. RCN, for example, could focus on competing
with incumbent MVPDs through attracting subscribers and
building out its footprint, with an assured ad revenue stream
managed by Viamedia. With an Interconnect already in place,
the new MVPDs (or Viamedia on their behalf) could sign an
agreement with that Interconnect so that advertisers could
place DMA-wide ads that reached the new entrants’ subscrib-
ers along with the those of the incumbents.
These ad rep services are at the core of this lawsuit. The ad
rep services that Viamedia provides its customer MVPDs in-
clude:
No. 18-2852 21
 Allocating the MVPD’s inventory of spot avails
among different sales channels—i.e., local ads, sold
in competition with other MVPDs; DMA-wide ads;
or multi-DMA/national ads;
 Researching, marketing, pricing, and selling an
MVPD’s inventory of spot avails to advertisers, in-
cluding the approximately one-third of spot avails
sold to local retailers in competition with other
MVPDs;
 Interfacing with the relevant Interconnect for spot
avails allocated to regional, DMA-wide ads;
 Providing technical services such as encoding
video files and operating and maintaining the soft-
ware needed to run, insert, traffic, monitor, and ar-
chive ads;
 Organizing the MVPD’s inventory of spot avails
into schedules and ensuring that each ad runs cor-
rectly during those schedules; and
 Performing financial services, such as accounting,
billing, and collection.
Viamedia employs the personnel needed for these functions,
spreading these costs among all of its MVPD customers. If an
MVPD retained Viamedia to provide this full range of ser-
vices for all of its inventory of spot avails, including the com-
petitive selling of local spot avails, it was said that the MVPD
had secured “full turnkey” representation. As overbuilders
and telephone companies continued their build out, Viamedia
was able to expand the areas and MVPD customers to which
it could supply services.
22 No. 18-2852
2. Vertically Integrated MVPDs
By contrast, Comcast does not need an independent ad rep
services provider like Viamedia. Instead, Comcast is vertically
integrated and has its own wholly-owned subsidiary that pro-
vides ad rep services both in-house and to other competing
MVPDs. In markets where Comcast does not operate the In-
terconnects, its in-house ad rep services arm secures Intercon-
nect access for its own MVPD service and its customer/com-
petitors’ MVPD services, just as Viamedia used to do in Chi-
cago, Detroit, and Hartford. Several other MVPDs have simi-
lar internal divisions that provide spot cable ad rep services.6
In fact, Viamedia is unique in that it is the only ad rep services
firm of any size that is independent—i.e., not owned by an
MVPD.
MVPDs that have their own ad rep services divisions or
subsidiaries, such as Comcast, compete with Viamedia to pro-
vide these services to other MVPDs. And just as MVPDs com-
pete for subscribers wherever their service footprints overlap,
the providers of ad rep services compete DMA by DMA. The
ad rep services providers organize their sales forces around
the boundaries of DMAs and provide services only to the
MVPDs who have subscribers within those DMAs. Hybrid ar-
rangements also exist. Some MVPDs do not contract for “full
turnkey services,” but instead seek ad rep services for only a
portion of their spot avails and sell the remaining spot avails
themselves.
6
These include Charter’s Spectrum Reach, Cox’s Cox Media, Altice’s
Suddenlink Media and Altice Media Solutions, and Mediacom’s OnMe-
dia.
No. 18-2852 23
This unusual market structure thus involves three levels
of competition: (1) MVPDs compete against one another for
subscribers; (2) some vertically integrated MVPDs’ ad rep ser-
vices arms compete against Viamedia (and potentially against
each other) for clients; and (3) MVPDs compete with one an-
other for some sales of their spot avails to advertisers. We
need to keep all three levels in mind.
3. Back to the Interconnects
As part of the continuing industry consolidation in the
2000s, Comcast moved into many new DMAs. It also ex-
panded from being one of several cable companies that par-
ticipated in some DMA Interconnects to being the largest par-
ticipant. For example, Comcast was able to acquire over 3,300
local cable franchising areas through its purchase of AT&T
Broadband’s and Adelphia’s cable properties. FCC 2007 Re-
port and Order at 15 & n.95. As Comcast repeatedly acquired
other cable systems, it grew to be the largest participant in
dozens of DMAs and became the sole “operator” or “man-
ager” of those DMAs’ Interconnects, including in Chicago,
Detroit, and Hartford.
Yet the Interconnects continued to function as they had be-
fore industry consolidation. They provided a single point of
contact for distributing DMA-wide ads, as well as access to
and collecting fees from all MVPDs (or their ad rep service
providers) that participated in the Interconnects. If an MVPD
did not participate in an Interconnect, an advertiser could not
reach its subscribers, making an ad buy within the DMA less
valuable for any remaining MVPD Interconnect participants.
During this period, in 2003, Viamedia entered into agree-
ments with Comcast for Interconnect access in the Chicago
24 No. 18-2852
and Detroit DMAs, which ran until May 2012. Viamedia
sought this access because it provided ad rep services to cable
overbuilders RCN (in Chicago) and WOW! (in Chicago and
Detroit) under contracts that ran until 2014. As noted above,
typical industry practice is for approximately one-third of an
MVPD’s spot avail inventory to be sold on a DMA-wide basis.
In line with that practice, Viamedia agreed to sell a portion of
RCN’s and WOW!’s spot avail inventory on a DMA-wide ba-
sis through the Comcast-controlled Interconnects. Viamedia
sold the remaining portion of RCN’s and WOW!’s spot avails
both nationally and—in competition with Comcast—locally.
Comcast also agreed not to solicit Viamedia’s MVPD clients
until four months before the Viamedia/MVPD contracts ex-
pired, although the MVPDs remained free to contact Comcast.
C. Comcast Refuses Interconnect Access to Viamedia
This was the competitive landscape for Comcast’s conduct
challenged in this lawsuit. Internal Comcast PowerPoint
presentations explained that Comcast viewed its “Next
phase” as “consolidat[ing the] core business” of ad rep ser-
vices, and then “look[ing] at other businesses we can leverage
(our technologies or platforms).” A212 n.68. There is evidence
that Comcast saw the Interconnects as one such point of “lev-
erage.”
As noted, Viamedia’s Interconnect access agreements with
Comcast for the Chicago and Detroit DMAs were due to ex-
pire in 2012. Viamedia’s contracts for ad rep services with
RCN and WOW! were extended until 2015 (RCN) and 2014
(WOW!). As 2012 neared, Comcast faced a choice. It could
compete for RCN’s and WOW!’s ad rep services business the
following year, as it already competed for RCN’s, WOW!’s,
and other MVPDs’ business in many other DMAs. Or it could
No. 18-2852 25
try to use its control over the Interconnects to shut out the
competition for ad rep services. At first, it appeared that Com-
cast would take the route of competition, contacting RCN and
WOW! to express interest in selling them ad rep services. But
Comcast then changed its strategy. It tried instead to take ad-
vantage of its control over the Interconnects. Comcast notified
Viamedia in December 2011 that it would refuse to permit Vi-
amedia any further access to the Interconnects. In June 2012
Comcast executed on that notice. For the first time in any
DMA since the Interconnects had been created, an Intercon-
nect operator—Comcast—had cut off Interconnect access to
an MVPD or an MVPD representative.
Comcast executed this strategy in other DMAs, as well,
similarly denying Viamedia access to Interconnects on behalf
of Viamedia’s customer MVPDs (Comcast’s competitor
MVPDs). For example, in the Hartford DMA, Comcast had
previously provided full-turnkey service to AT&T’s MVPD.
When Frontier acquired AT&T’s Hartford network in 2014, it
had the option of assuming the Comcast contract. Frontier,
however, had been unhappy with Comcast’s customer service
when it used Comcast in other DMAs, so it switched from
Comcast to Viamedia. Comcast then excluded Frontier’s spot
avails from the Hartford Interconnect, resulting in millions of
dollars in lost ad revenues for Frontier and Viamedia, as well
as Comcast itself, and degrading the value of the Hartford In-
terconnect.7 By contrast, in DMAs where the Interconnects
7 On these points, the record contains more precise numbers in docu-
ments that have been under seal. Here and elsewhere in this opinion, we
have used verbal descriptions rather than specific numbers for important
information that has been submitted under seal. We are skeptical, how-
ever, about the grounds for sealing much, if not all, of the evidence under
seal. Simultaneously with this decision, we are issuing an order that
26 No. 18-2852
were controlled not by Comcast but by other large, incumbent
cable companies such as TimeWarner Cable, access to the In-
terconnects had not yet been pulled.
Comcast then returned to Viamedia with a series of offers
that would have required Viamedia to “assign” 100% of its
customers’ spot avails to Comcast in exchange for a one-time
“finder’s fee.” That was essentially an offer to pay Viamedia
to exit the marketplace. At the end of July 2014, Comcast pro-
vided a more detailed offer. It would have had the same effect
as the first offer—a payment to Viamedia to stop providing
spot cable ad rep services. In August 2014, Viamedia received
the third iteration of Comcast’s offer, which at first appeared
promising. When Viamedia received a detailed offer in writ-
ing, however, it discovered that Comcast had added a provi-
sion that would permit Comcast unilaterally, and on just four
hours’ notice, to take any ad inventory from Viamedia and
contribute it to the Interconnect. That uncertainty would have
rendered those spot avails virtually worthless to advertisers.
Along with these onerous terms, the revenue-share pro-
posals appeared to be below market rate for Interconnect-
only access, compared to both Viamedia’s prior agreement
with Comcast and other Interconnect-only access agreements
in any other comparable DMAs. In short, the agreements did
not offer access to the Interconnect in a way that would allow
Viamedia to provide ad rep services to its MVPD customers.
Nor were these terms to be found in any other Interconnect-
unseals evidence we identified in an earlier order to show cause, and we
are ordering the parties to show cause why any of the remaining sealed
evidence, including that obtained from non-parties, should remain under
seal at this time.
No. 18-2852 27
only agreement employed by any Interconnect operator in
any DMA.
Moreover, during these “negotiations” in July 2014, the
head of Comcast’s cable spot ad rep services division and his
colleague, Hank Oster, expressed concern that Comcast COO
Dave Watson was “wavering on why we won’t let Viamedia
in the Interconnects.” Whatever second thoughts some within
Comcast might have had, however, Comcast’s approach did
not change. As Oster later candidly explained, by July 2014
Comcast already “had made the decision” to exclude Viame-
dia from the Interconnects. Comcast was also telling WOW!
that it would not allow it to return to the Interconnect with
Viamedia as its ad rep, and that Comcast was taking that po-
sition as part of its “strategic plan.” A230.
Comcast urges us to infer—as a matter of law—that it was
acting for procompetitive reasons. The evidence, though, can
easily support the inference that Comcast was instead choos-
ing to inflict financial pain on both its competitors and itself to
gain monopoly power in the ad rep services market, which
would also produce a new advantage over its retail cable com-
petitors. By cutting Viamedia off from the Chicago and De-
troit Interconnects in 2012, Comcast ensured that its competi-
tor MVPDs’ spot avails could not be distributed through the
Interconnects while they were represented by Viamedia un-
der their existing contracts.
This was an expensive decision for Comcast. As operator
of the Interconnect, Comcast’s internal analysis of the “Reve-
nue Impact” of its decision predicted that Comcast itself
would lose $10.6 million in just the first six months after cut-
ting off Viamedia’s (and thus RCN’s and WOW!’s) access, in-
cluding $2.3 million in lost cash flow. A838, A787–88. The
28 No. 18-2852
evidence of actual effects is consistent with that prediction. In
the years that RCN and WOW! were unable to access the In-
terconnects (June 2012 through December 2015), they lost ap-
proximately $27 million in ad revenue. Comcast itself lost $7
million in commissions. A248, A637, A648 (figs. 35, 46). More-
over, Comcast’s own spot avails would have decreased in
value because an advertiser could no longer reach all cable
subscribers within the DMA through the Interconnect.
But as an amicus supporting Comcast points out, Comcast
could easily afford to sacrifice millions in Interconnect fees
and lower ad revenue in order to inflict this harm on its
MVPD competitors, advertisers, and Viamedia. As the domi-
nant MVPD provider in markets across the country, this
“temporary and localized lost revenue is small potatoes,” a
mere “rounding error.” Brief for Washington Legal Founda-
tion’s as Amicus Curiae Supporting Appellees at 22. Just so.
With Comcast and Viamedia as the only two providers of
ad rep services in the Chicago and Detroit DMAs, Comcast’s
denial of Interconnect access to Viamedia left Comcast with
an effective monopoly over both Interconnect services and ad
rep services. The window of time between Viamedia’s fore-
closure from Interconnect access and Comcast’s competitor
MVPDs’ return to the market to seek bids for their ad rep ser-
vices would be the time for Comcast “to overpower ViaMe-
dia,” as a Comcast employee in the Detroit DMA explained.
A217 (budget presentation). So the evidence supports an in-
ference that Comcast willingly chose to inflict short-term fi-
nancial losses on itself. Why? A reasonable explanation is that
it did so because it could survive those losses (the “small po-
tatoes” and “rounding error”) to obtain and use monopoly
power in the ad rep services market.
No. 18-2852 29
In this lawsuit Comcast has argued that RCN and WOW!
chose it over Viamedia on the merits of its offered services.
Comcast highlights, for example, testimony from an RCN
representative that—after comparing Comcast’s offer with In-
terconnect access to Viamedia’s offer without—“It was not in
the end a very difficult decision to make.” DA688. But this an-
swer presupposes that Comcast shutting its competitors out
of the Interconnects could be a reasonable basis to treat RCN’s
decision as uncoerced. There is evidence that Comcast did just
that. Contrary to the assertions of the district court and our
colleague who dissents in part, for example, a Comcast em-
ployee working in the Chicago and Detroit DMAs explained
that Comcast had adopted “a business practice” that “if an
MVPD wants to get access to a Comcast controlled Intercon-
nect, it has to hire Comcast as its sale representative.” A215.
Viamedia’s evidence also supports a finding that WOW!
and RCN did not go willingly into Comcast’s arms. Both
pushed back against Comcast’s demands (or threats) that they
either use it for their advertising services or face exclusion
from the Interconnects if they stayed with Viamedia. A WOW!
employee communicating with Comcast reported back to
WOW! colleagues that Comcast was “maintaining their posi-
tion that [WOW!] can be in the IC [Interconnect] but only if
they [Comcast] rep us directly.” A215 n.81, A230 n.129. It is a
factual question whether it was reasonable at the time for the
smaller MVPDs to “understand [that] to be part of the inter-
connect [they] would need to be with Comcast Spotlight,”
Comcast’s ad rep services arm. DA687.
Comcast’s competitor MVPDs immediately began losing
money after Comcast excluded them from the Interconnects.
They lamented that their reductions in cash flow were
30 No. 18-2852
“primarily due to the loss of the Comcast Interconnect reve-
nues in Chicago and Detroit.” A233. Despite that pressure,
though, the MVPDs continued to resist Comcast’s demands.
As discussed above, at the time, Comcast was trying to buy
TimeWarner Cable, a proposed deal that was under review by
federal agencies. With a forum to share their ongoing experi-
ences with Comcast, RCN (futilely) filed comments with the
FCC, alerting regulators that “Comcast was not being truth-
ful” when it said “RCN is free to join the Comcast-managed
interconnects at any time,” because “Comcast will only allow
RCN to join the interconnects if RCN employs Comcast Spot-
light instead of Viamedia.” A215 n.81, A886–87.
Viamedia also was not going quietly. Even though Com-
cast had barred it from Interconnect access, Viamedia contin-
ued to compete for RCN’s and WOW!’s business. Without In-
terconnect access, their MVPD customers’ spot avails would
not bring in nearly as much revenue, which left Viamedia’s
bids’ proposed revenue shares at a substantial disadvantage
compared to Comcast’s bids. A231–32. Nonetheless, Viame-
dia’s bids caused consternation for Comcast. Internal Com-
cast emails reflect executives’ disbelief. They called it “abso-
lutely unbelievable” that Viamedia could make a remotely
competitive bid without Interconnect access. A232. In contrast
to Viamedia’s bids, Comcast bids touted the “exclusive” ben-
efit of Interconnect access that WOW! would receive if it se-
lected Comcast for ad rep services. Comcast said that the
“generous” financial terms it offered included the “sizable an-
nual guarantee” that would be attributable to “the oppor-
tunity to add WOW! subscribers [back] to the important De-
troit and Chicago Interconnects.” In other words, sign up with
Comcast for ad rep services, and we will stop your bleeding—
No. 18-2852 31
the bleeding that we have inflicted by barring you from the
DMA Interconnects.
Substantial evidence thus shows that Comcast’s MVPD
competitors did not want to buy ad rep services from Com-
cast. Their reluctance was not based on a short-sighted inabil-
ity to see the procompetitive benefits of Comcast’s vertical in-
tegration or what Comcast touts as “one-stop shopping.” Ra-
ther, these MVPDs had economically rational reasons for
seeking to avoid this entanglement with their dominant com-
petitor, which would naturally have divided loyalties. In ad-
dition, WOW! considered Viamedia to be “by far the best ad
partner from a technical team to work with.” A560, DA 685.
RCN testified that it would prefer to obtain ad rep services
from an independent company like Viamedia rather than
Comcast because, “all things being equal, even close to being
equal,” it “had concerns about being a partner with a com-
pany associated with our competitor.” A236 n.150.
Thus, as Comcast’s MVPD competitors assessed the situa-
tion, the possible outcomes all amounted to unfair wins for
Comcast. Its actions could have resulted in three different out-
comes, each of which would work to its benefit and harm its
competitors. First, if Comcast succeeded in having its compet-
itor MVPDs buy Comcast ad rep services, Comcast would
gain the following benefits:
 Comcast’s smaller MVPD rivals would now be con-
tributing additional revenue toward their domi-
nant competitor, Comcast;
 The majority of spot avails that MVPDs had for-
merly kept out of the Interconnects to allocate to,
among other outlets, local ads (for which the
32 No. 18-2852
MVPDs compete against each other for sales)
would now come under the control of their compet-
itor Comcast—whose contracts required that Com-
cast have “sole and exclusive control” over all spot
avails;
 Comcast’s competitor MVPDs would just have to
trust that Comcast would make the best business
decisions on behalf of its competitors when allocat-
ing adds to the national, regional, and local sales
markets. For example, the smaller MVPDs prefer to
weight some of their ad sales to non-Interconnect
local sales, which help the MVPDs with local busi-
ness relationships that can lead to additional sales
of services, such as providing business internet
connectivity (sales for which they compete against
Comcast); the Interconnect operator, on the other
hand, prefers DMA-wide Interconnect ad sales for
which it gets higher margins—an ad mix choice
that Comcast would be free to make for its smaller
MVPD competitors;
 Comcast would be a single seller of advertisements
in the local market, eliminating competition;
 Comcast would not only have access to its compet-
itor MVPDs’ ad sales information, but the MVPDs
would have to provide Comcast with all of their
own promotional ad materials to current and po-
tential subscribers that they are attempting to retain
or win away from Comcast, giving Comcast a
chance to undercut them. That would be in addi-
tion to other competitively sensitive information
No. 18-2852 33
(e.g., number and location of its subscribers) that
would need to be disclosed.
Viamedia has offered evidence that what drove Comcast’s
actions was this close relationship with competing MVPDs—
not hypothesized economic efficiencies from ordinary vertical
integration. For example, there are some DMAs where Com-
cast controls the Interconnects, but the participating MVPDs
do not have overlapping footprints with Comcast’s service ar-
eas. In those DMAs, Comcast still offers Interconnect-only
agreements on terms similar to the terms of the former Com-
cast-Viamedia agreements for the Chicago and Detroit DMAs.
Viamedia offered evidence on summary judgment (de-
scribed above) of a second outcome in which Comcast’s
MVPD competitors would forgo Interconnect access entirely
and renew with Viamedia rather than switch to Comcast. If
its MVPD competitors made that choice, those MVPDs would
be cut off from a large percentage of ad revenue, which in turn
would hinder them from funding promotional offers to their
subscribers, potentially leading their subscribers to switch to
Comcast. In the meantime, Comcast’s lost millions from Inter-
connect fees and reduced advertising revenue within the
DMA would continue to be a mere “rounding error.”
In the third potential outcome—which only Comcast con-
tends was actually a possibility—Comcast would not bar
competing MVPDs completely from Interconnect access but
instead would permit them to have Interconnect-only access
if they took care of their own ad services, without using either
Viamedia’s or Comcast’s ad rep services. In this scenario,
Comcast would lose the revenue it would have gained from
providing full-turnkey service to the MVPDs, but it would
still earn Interconnect access fees and the Interconnect’s value
34 No. 18-2852
would not be degraded. The result would also raise rivals’
costs by forcing them to provide internally the staff, technol-
ogy, and services that Viamedia had previously provided at
lower cost. Those fixed costs would be difficult for those
MVPDs to afford and would shift revenue away from sub-
scriber promotions and further infrastructure build-out. See
FCC 2007 Report and Order at 8 ¶ 13 (“Revenues from cable
services are, in fact, a driver for broadband deployment,” i.e.,
the build-out of additional cable infrastructure).8
Faced with this Hobson’s choice, Comcast’s competitor
MVPDs chose to sign with Comcast in 2015. WOW! noted that
“a key decision point” in this “choice” was its understanding
that “in order to remain competitive, we need to be in the In-
terconnect.” A233. WOW! signed with Comcast for ad rep ser-
vices in Chicago and Detroit in 2015. WOW! continued, how-
ever, to use Viamedia as its ad rep in some non-Comcast
DMAs. Similarly, although RCN had planned to renew its
contract with Viamedia, it too ultimately decided to sign with
Comcast for Chicago and Detroit. By 2016, a Comcast em-
ployee congratulated a colleague regarding its new monopoly
in ad rep services in the Chicago DMA: “THE WOW AND
RCN DEALS PROVIDE [COMCAST] WITH COMPLETE
8 Viamedia has presented evidence that RCN and WOW! did not view
bringing ad rep services in-house as a viable option. When confronted
with Comcast’s refusal to deal with Viamedia, both said they had no
choice but to enter into ad rep agreements with Comcast. A215, A887. The
in-house option was always available in theory. But RCN and WOW! are
presumed to be economically rational actors. They had always chosen to
buy these services from outside companies, suggesting that in-house was
not an economically viable option.
No. 18-2852 35
REPRESENTATION OF THE CHICAGO MARKET.” A214
n.77.
II. District Court Proceedings
In 2016, Viamedia sued Comcast for violating Section 2 of
the Sherman Antitrust Act, as well as various state antitrust
statutes, and for tortious interference. The parties agree that
analysis under the state antitrust statutes tracks federal anti-
trust law, so the federal antitrust analysis controls whether
the state antitrust claims survive. Viamedia is no longer press-
ing its tortious interference claim, so our only focus is Section
2 of the Sherman Act.
Comcast moved to dismiss the complaint for failing to
state a claim. The district court construed Viamedia’s com-
plaint as alleging that Comcast engaged in three types of mo-
nopolistic conduct recognized by the antitrust laws: (1) Com-
cast’s refusal to deal with Viamedia by cutting off access to
the Interconnects, (2) Comcast’s exclusive dealing, and (3)
Comcast’s tying of Interconnect access to the purchase of
Comcast’s ad rep services.
The district court granted the motion to dismiss with re-
spect to Viamedia’s refusal-to-deal claim, faulting Viamedia
for failing to demonstrate through its allegations that Com-
cast’s conduct was “irrational but for its anticompetitive ef-
fects.” Viamedia, Inc. v. Comcast Corp., 218 F. Supp. 3d 674, 698
(N.D. Ill. 2016). The court hypothesized that Comcast’s com-
plete foreclosure of Viamedia from the market potentially
serves a procompetitive purpose and “offers potentially im-
proved efficiency.” 218 F. Supp. 3d at 699. And because “ver-
tical integration is usually procompetitive,” Comcast likely
had “a rational procompetitive purpose: it has become ‘a one-
36 No. 18-2852
stop shop’ in certain DMAs for MVPDs wishing to sell adver-
tisements on a regional basis.” Id. at 698–99. Comcast’s “short-
term losses” in excluding Viamedia and Comcast’s competi-
tor MVPDs from the Interconnects were not “necessarily in-
dicative of anticompetitive conduct,” the court reasoned in
dismissing a later version of the complaint on identical
grounds, because a “monopolist might wish to withdraw
from a prior course of dealing … in order to pursue perfectly
competitive ends.” Viamedia, Inc. v. Comcast Corp., No. 16-CV-
5486, 2017 WL 698681, at *4 (N.D. Ill. Feb. 22, 2017), quoting
Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir.
2013).
After discovery on Viamedia’s exclusive dealing and tying
claims, the district court granted Comcast’s motion for sum-
mary judgment because Viamedia had failed to “present evi-
dence that tends to exclude the possibility that [defendant’s]
conduct was as consistent with competition as with illegal
conduct.” Viamedia, Inc. v. Comcast Corp., 335 F. Supp. 3d 1036,
1054 (N.D. Ill. 2018). In the district court’s view, there was no
evidence that Comcast conditioned its sale of Interconnect
services to MVPDs on their purchase of ad rep services be-
cause in DMAs outside the relevant geographic markets,
Comcast did offer Interconnect-only access to other MVPDs.
Id. at 1058–59. Further, because “both RCN and WOW! wanted
full-turnkey representation,” the purchase of the two prod-
ucts together could not be considered tying. Id. at 1059. In fact,
the district court concluded (in tension with the observation
that Comcast offered Interconnect-only access in other
DMAs), Comcast had “no reason to offer” Interconnect-only
access to RCN and WOW! because, the district court again hy-
pothesized, an Interconnect-only deal would be less
No. 18-2852 37
substantial, less profitable, and less efficient for Comcast than
a full-turnkey deal. Id. at 1059.
In any event, even if Comcast had refused to deal with its
competitor MVPDs unless they met Comcast’s condition of
purchasing ad rep services, the court viewed this as simply a
reformulation of Viamedia’s already-dismissed refusal-to-
deal claim. 335 F. Supp. 3d at 1062, 1070, 1072. To support this
conclusion, the district court noted that Viamedia sought in-
junctive relief that would restore its access to the Intercon-
nects and give RCN and WOW! the option to decline pur-
chase of Comcast’s ad rep services. Id. at 1074.
In addition, the district court found that Viamedia’s two
experts’ testimony was based upon an incorrect understand-
ing of the law—i.e., that Comcast had engaged in anticompet-
itive conduct for which it could be held responsible under the
antitrust laws. Id. at 1064–74. The district court concluded that
this justified excluding the damages expert’s testimony in its
entirety, as well as a portion of the economic expert’s testi-
mony. Viamedia has appealed the final judgment dismissing
its claims.
III. Legal Standards and Analysis
With the facts and competitive dynamics set out, we turn
to the legal standards and analysis. In Part III-A, we describe
the standards for an antitrust violation under Section 2, the
monopolization provision of the Sherman Act. Undisputed by
the parties, we explain that Comcast is a monopolist in the
relevant geographic markets (here: Chicago, Detroit, and
Hartford) for both Interconnect and ad rep services, and that
it is the dominant MVPD retail cable provider.
38 No. 18-2852
In Part III-B, we address Viamedia’s two claims. In Part III-
B-1, we set out the legal test for refusals to deal and assess
Comcast’s conduct, explaining why this claim should not
have been dismissed on the pleadings. In Part III-B-2, we turn
to Viamedia’s tying claim. These related claims are both based
on the same course of conduct, resulted in the same anticom-
petitive harms, and would be subject to the same procompet-
itive justifications or defenses. The decision to dismiss one
claim on the pleadings while allowing the other, closely re-
lated claim to go as far as summary judgment offered poten-
tial for confusion, but in the end, both claims need to be tried.
In Part III-C, we evaluate in greater detail the harm to com-
petition alleged by Viamedia and the procompetitive justifi-
cations offered by Comcast, highlighting considerations that
will be relevant on remand. In Part III-D, we explain that Vi-
amedia has presented evidence of a cognizable antitrust in-
jury as a rival driven from the market by a tying arrangement.
Finally, in Part III-E, we address the district court’s rulings
excluding expert witness evidence. Our resolution of Viame-
dia’s refusal-to-deal and tying claims largely resolves its chal-
lenge to the testimony’s exclusion. The district court’s deci-
sion on this score was based almost entirely upon its errone-
ous legal analysis. On remand, the district court will need to
take a fresh look at the expert reports in light of this opinion.
A. Sherman Act Section 2—Illegal Monopolization
Section 2 of the Sherman Antitrust Act imposes liability on
“Every person who shall monopolize … any part of the trade
or commerce among the several States.” 15 U.S.C. § 2. A pri-
vate plaintiff like Viamedia may bring a civil claim as a person
No. 18-2852 39
who was “injured in his business or property by reason of an-
ything forbidden in the antitrust laws.” 15 U.S.C. § 15(a).
Judicial decisions interpreting Section 2 have long held
that simple possession of monopoly power, or the pursuit of
it, is not in itself illegal. United States v. U.S. Steel Corp., 251
U.S. 417, 451 (1920) (“[T]he law does not make mere size an
offence, or the existence of unexerted power an offense. It …
requires overt acts.”); United States v. Aluminum Co. of America,
148 F.2d 416, 429–30 (2d Cir. 1945) (“size does not determine
guilt” as the monopolist may have gained market power “by
force of accident,” or “by virtue of his superior skill, foresight
and industry”; therefore, “there must be some ‘exclusion’ of
competitors”). Thus, a firm violates the monopoly provision
in Section 2 only when it both (1) possesses “monopoly power
in the relevant market” and (2) engages in “the willful acqui-
sition or maintenance of that power as distinguished from
growth or development as a consequence of a superior prod-
uct, business acumen, or historic accident.” Verizon Communi-
cations, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398,
407 (2004), quoting United States v. Grinnell Corp., 384 U.S. 563,
570–71 (1966); see also Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles
and Their Application ¶ 600a, at 3, ¶ 650a, at 91 (4th ed. 2015)
(Areeda & Hovenkamp).9
On appeal, the parties do not dispute several often-conten-
tious issues in antitrust cases: the relevant geographic and
product markets, and market power. See Goldwasser v.
Ameritech Corp., 222 F.3d 390, 397 (7th Cir. 2000) (“Few would
9 This appeal does not present any issues under the Section 2 language
barring attempts and conspiracies to monopolize.
40 No. 18-2852
say that the first element is easily proved: it is exceedingly dif-
ficult to prove market power, or monopoly power … .”). The
relevant geographic markets are the specific DMAs in which
Viamedia asserts Comcast’s conduct harmed competition:
Chicago, Detroit, and Hartford. See Tampa Elec. Co. v. Nashville
Coal Co., 365 U.S. 320, 332–33 (1961) (a relevant antitrust geo-
graphic market is the area in which sellers operate and where
purchasers can predictably turn for supplies). Comcast’s con-
duct in other DMAs may be relevant for comparison pur-
poses.
The relevant product market allegedly monopolized is ad
rep services for MVPDs. The immediate effect of Comcast’s
conduct was to force out its only competitor in that market to
gain monopoly power in the relevant geographic markets for
those services. This market is inextricably connected to access
to the cooperative mechanism of the Interconnects, as well as
to the related markets for MVPD retail cable services and the
sale of MVPD spot avails. Understanding the harm to compe-
tition in these related markets helps in assessing Comcast’s
alleged conduct. “Antitrust analysis must always be attuned
to the particular structure and circumstances of the industry
at issue.” Trinko, 540 U.S. at 411; see also Areeda &
Hovenkamp ¶ 1802d, at 79–80 (When assessing exclusionary
conduct, it is “necessary to examine market power or share at
both of the two market levels involved.”).
As for market power, in the Chicago, Detroit, and Hart-
ford markets, Comcast started with monopoly control over
Interconnect access and services. Comcast has acquired a pure
monopoly in the market for ad rep services in these
No. 18-2852 41
metropolitan areas, where it is also by far the dominant
MVPD retail cable provider.10
A firm’s market power is important because, without it, a
firm will have little to no ability to distort or harm competi-
tion, no matter how great its desire to do so, even when en-
gaging in conduct that in different circumstances might be
perceived as anticompetitive. See Novell, Inc. v. Microsoft Corp.,
731 F.3d 1064, 1071 (10th Cir. 2013) (Gorsuch, J.) (“Not infre-
quently, the initial question of market power proves deci-
sive.”). Even “[m]ildly reprehensible behavior might be
enough to challenge a firm whose power is significant.”
Areeda & Hovenkamp ¶ 600b, at 4.
B. Claims of Anticompetitive Conduct: Refusals to Deal and
Tying
The dispute here focuses on the second prong of the Sec-
tion 2 test: did Comcast “willfully acquire” or “maintain” its
new monopoly power in the ad rep services market, or is its
new market dominance “a consequence of a superior product
or business acumen” or the result of an “historic accident”?
Baked into this inquiry is an assessment of what types of
anticompetitive conduct are prohibited as illegally acquiring
or maintaining monopoly power, rather than the kind of pro-
competitive conduct the antitrust laws do not impede. The lat-
ter includes innovation resulting in superior products, the in-
troduction of efficiencies reflecting superior business acumen,
or even the luck of a firm that unwittingly stumbles into a
10 For antitrust purposes “monopoly power and market power typi-
cally are used interchangeably” and simply mean that “a firm can influ-
ence the price it receives for its product.” Dennis W. Carlton and Jeffery
M. Perloff, Modern Industrial Organization 137 (2d ed. 1994).
42 No. 18-2852
monopoly position. See Areeda & Hovenkamp ¶ 600a, at 3
(setting out first two prongs identified above and articulating
the two “subsidiary questions”: (3) “given that § 2 requires
some element of conduct in addition to substantial market
power, what kinds of conduct or intent transform power into
unlawful monopolization; and (4) what defenses, if any, save
monopoly power from condemnation?”).
The statutory text does not provide the answers, but case
law over more than a century provides extensive guidance.
Courts recognize various types of conduct that have the po-
tential to harm competition. The types of conduct alleged in
this case are “exclusionary” in nature, impairing rivals’ op-
portunity to compete in a way that is inconsistent with “com-
petition on the merits.” Areeda & Hovenkamp ¶ 650a, at 92;
see also id. ¶ 651b, at 99–100; Covad Communications Co. v. Bell
Atlantic Corp., 398 F.3d 666, 675–76 (D.C. Cir. 2005) (agreeing
with plaintiff’s description of defendant’s refusal to deal as
“‘predatory’ … because, in the vernacular of antitrust law, a
‘predatory’ practice is one in which a firm sacrifices short-
term profits in order to drive out of the market or otherwise
discipline a competitor”).
In the present case, Viamedia alleges and has offered evi-
dence that Comcast: (1) refused to deal with Viamedia by
denying it Interconnect access, and (2) engaged in tying by
denying MVPDs Interconnect access unless they purchased
Comcast’s ad rep services.11 We set out below the legal tests
for refusals to deal and tying, which help in assessing whether
11
To “simplify the issues” on appeal, Viamedia elected not to pursue
exclusive dealing as a distinct theory of liability.
No. 18-2852 43
such conduct is anticompetitive and illegal, or instead harm-
less or even procompetitive.
Conduct that can harm competition may fit into more than
one of these court-devised categories. After all, the “means of
illicit exclusion, like the means of legitimate competition, are
myriad.” Trinko, 540 U.S. at 398, quoting United States v. Mi-
crosoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (en banc). Al-
though “the standard for a § 2 violation is significantly stricter
in its power assessment [than for a § 1 claim], it is broader and
less categorical in its definition of proscribed conduct.”
Areeda & Hovenkamp ¶ 777a, at 324. This means that a dom-
inant firm’s conduct may be susceptible to more than one
court-defined category of anticompetitive conduct. A “simple
refusal to deal” is conduct where one firm “refuses to deal no
matter what,” whereas “[t]ying and exclusive dealing are two
common examples” of “conditional refusals to deal”—i.e.,
one firm will refuse to deal with another firm unless “some
condition is met.” Herbert Hovenkamp, FRAND and Anti-
trust, Cornell L. Rev. (forthcoming 2020) (manuscript at 11),
available at http://papers.ssrn.com/sol3/papers.cfm?ab-
stract_id=3420925. Similarly, “[m]any of the practices that
have been characterized as exclusive dealing could also be de-
scribed as tying” because “[t]he economic distinction between
the two is most often slight or nil.” Areeda & Hovenkamp
¶ 1800b, at 7–8, ¶ 1800a, at 4.
The fact that the categories of conduct here are conceptu-
ally related and may overlap should not cause confusion if we
stay focused on the underlying inquiry: the conduct “must
harm the competitive process and thereby harm consumers.”
Microsoft, 253 F.3d at 58; see also Nynex Corp. v. Discon, Inc.,
525 U.S. 128, 135 (1998) (plaintiffs “must allege and prove
44 No. 18-2852
harm, not just to a single competitor, but to the competitive
process, i.e., to competition itself”). At bottom, the purpose of
identifying these categories of conduct is to help determine
“the presence or absence of harmful effects, which are both
the reason for any antitrust concern and often the simplest el-
ement to disprove.” Areeda & Hovenkamp ¶ 1701d, at 33. We
therefore start by assessing how Comcast’s conduct fits into
these categories under Section 2, mindful that we should stay
focused on the effect Comcast’s conduct has on competition.
1. Refusals to Deal
The district court dismissed on the pleadings the portion
of Viamedia’s complaint focused on a refusal-to-deal theory.
We review de novo a grant of a motion to dismiss, “con-
stru[ing] the complaint in the light most favorable to the
plaintiff, accepting as true all well-pleaded facts alleged, and
drawing all possible inferences in [its] favor.” Tamayo v. Blago-
jevich, 526 F.3d 1074, 1081 (7th Cir. 2008); see also Goldberg v.
United States, 881 F.3d 529, 531 (7th Cir. 2018) (in reviewing
dismissal for failure to state a claim, we accept facts alleged
by plaintiff without vouching for their objective truth). We
next set out the general principles underlying a refusal-to-
deal claim and then explain how the leading case—Aspen Ski-
ing—maps onto Comcast’s conduct. We then reject Comcast’s
argument that Viamedia’s claim could properly be dismissed
on the pleadings.
a. Monopolists and Refusals to Deal
Monopolists are both expected and permitted to compete
like any other firm. Cargill, Inc. v. Monfort of Colorado, Inc., 479
U.S. 104, 116 (1986). A monopolist is not obliged to “watch[]
the quality of its products deteriorate and its customers
No. 18-2852 45
become disaffected” and “lie down and play dead” because
“even a monopolist is entitled to compete.” Goldwasser v.
Ameritech Corp., 222 F.3d 390, 397 (7th Cir. 2000). “Part of com-
peting like everyone else is the ability to make decisions about
with whom and on what terms one will deal.” Id.; see also Au-
thenticom, Inc. v. CDK Global, LLC, 874 F.3d 1019, 1025 (7th Cir.
2017). And just because “a firm has monopoly power doesn’t
mean that the law should prevent it from competing,” as “[i]t
would be absurd to require the [monopolist] to hold a price
umbrella over less efficient entrants.” Richard A. Posner, An-
titrust Law 196 (2d ed. 2001). Thus, the general rule is that even
monopolists “are free to choose the parties with whom they
will deal, as well as the prices, terms, and conditions of that
dealing.” Pacific Bell Telephone Co. v. Linkline Communications,
Inc., 555 U.S. 438, 448 (2009), citing United States v. Colgate &
Co., 250 U.S. 300, 307 (1919).
Yet there are “limited circumstances” under which a mo-
nopolist’s refusal to deal with another party will be illegal an-
ticompetitive conduct. Id.; see also Areeda & Hovenkamp
¶ 1800c5, at 21 (“Section 2 of the Sherman Act reaches unilat-
eral refusals to deal when the refusals constitute monopoliza-
tion … .”). For example, in Lorain Journal Co. v. United States,
342 U.S. 143 (1951), a monopolist newspaper was “an indis-
pensable medium of advertising for many” local businesses
but refused to deal with any advertiser who placed any ad
with a new radio competitor in an effort “to destroy and elim-
inate” the new competitor. Id. at 152, 150. The Court was not
persuaded by the newspaper’s argument that it had “a right
as a private business concern to select its customers and to re-
fuse to accept advertisements from whomever it pleases.” Id.
at 155.
46 No. 18-2852
In a holding that resonates in this case, Lorain Journal ex-
plained: “In the absence of any purpose to create or maintain a mo-
nopoly, the act does not restrict the long recognized right of
trader or manufacturer engaged in an entirely private busi-
ness, freely to exercise his own independent discretion as to
parties with whom he will deal.” Id., quoting Colgate, 250 U.S.
at 307; see also Goldwasser, 222 F.3d at 397 (acknowledging cir-
cularity of Colgate test). With the newspaper’s clear expecta-
tion that it would “outlast” the new competition and regain
its complete monopoly, and with “no apparent efficiency jus-
tification for its conduct,” Lorain Journal has been described as
“entirely correct.” Robert H. Bork, The Antitrust Paradox: A
Policy at War with Itself 344–45 (2d ed. 1993). This theory of li-
ability was endorsed again in Aspen Skiing Co. v. Aspen High-
lands Skiing Corp., 472 U.S. 585 (1985), the leading case on this
issue.
b. Aspen Skiing and Comcast
Comcast takes the position that after the Supreme Court’s
2003 Trinko decision, any “antitrust claims based on a duty to
deal with rivals ‘bit the dust.’” In the face of both Aspen Skiing
and the actual language of Trinko, we must reject that argu-
ment about what the law should be. Trinko itself said just the
opposite: “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 re-
fusal to cooperate with a rival … is Aspen Skiing.” 540 U.S. at
408; see also Linkline, 555 U.S. at 448 (“There are also limited
circumstances in which a firm’s unilateral refusal to deal with
its rivals can give rise to antitrust liability.”), citing Aspen Ski-
ing, 472 U.S. at 608–11.
No. 18-2852 47
What do those limited circumstances look like? In addi-
tion to reiterating Aspen Skiing’s continued, albeit narrow, va-
lidity, the Court has also provided useful guidance on pri-
mary factors to consider when determining whether poten-
tially anticompetitive conduct falls within Aspen Skiing’s
bounds. To provide background on what role those factors
play in a court’s analysis, we summarize the facts of Aspen
Skiing, focusing on the primary factors the Supreme Court has
continued to highlight.
The case involved four ski mountains that were initially
developed and operated under separate ownership. 472 U.S.
at 587. For over a decade, the four mountains offered a variety
of ski-lift tickets and packages, including a joint ticket that al-
lowed skiers to gain convenient access to all four mountains.
Id. at 588–89. Even as defendant Aspen Skiing Company (Ski
Co.) came to control three of the four mountains, thus gaining
market power over the Aspen ski area, the joint “interchange-
able ticket” program continued to include the fourth moun-
tain, which was independently owned by plaintiff Aspen
Highlands Skiing Corporation (Highlands). Id. at 590–92.
Revenues from this cooperative arrangement were distrib-
uted according to mountain usage. The joint ticket was a pop-
ular and profitable package for both parties. The four-moun-
tain package outsold by a two-to-one margin the Ski. Co.
packages that offered access to only its three mountains. Id. at
592.
Ski Co. management concluded, however, that if the four-
mountain ticket were not available at all, customers would de-
fault to buying just Ski Co.’s three-mountain pass. Ski Co.’s
president explained that “the 4-area ticket was siphoning off
revenues that could be recaptured by Ski Co. if the ticket was
48 No. 18-2852
discontinued.” Id. In the following year’s negotiations, Ski Co.
made a revenue share offer to Highlands on such unfavorable
terms that Ski Co. correctly expected Highlands “could not
accept” it. Id. The joint ticket was no longer offered. Id. In an
attempt to stanch the flow of lost business, Highlands “tried
a variety of increasingly desperate measures to re-create the
[four-mountain] joint ticket,” including “offering to buy the
defendant’s tickets at retail price.” Trinko, 540 U.S. at 408–09,
citing Aspen Skiing, 472 U.S. at 593–94. Ski Co. refused to per-
mit Highlands even to “pay full retail value for the daily lift
tickets,” with a Ski Co. official explaining, “we will not sup-
port our competition.” Aspen Skiing, 472 U.S. at 593–94 n.14.
Highlands filed suit.
At trial, defendant Ski Co. primarily relied on the testi-
mony of its economic expert, which included the theory that
Ski Co.’s conduct had such procompetitive justifications as
eliminating “free-riding by Highlands.”12 Ski Co. offered evi-
dence that its own product was being devalued by being as-
sociated with “the inferior skiing services offered at High-
lands.” Aspen Skiing, 472 U.S. at 609–10. Ski Co. also argued
that it could save administrative expenses and other costs by
eliminating the joint ticket, which Ski Co. found “administra-
tively cumbersome.” Id. at 592. In short, defendant Ski Co. ar-
gued that “the conduct at issue was pro-competitive conduct
that a monopolist could lawfully engage in.” Id. at 599.
Procompetitive justifications were also highlighted in the
jury instructions. The jury was instructed that a monopolist
12See George L. Priest & Jonathan Lewinsohn, Aspen Skiing: Product
Differentiation and Thwarting Free Riding as Monopolization, in Antitrust Sto-
ries 248 (Eleanor M. Fox and Daniel A. Crane, eds., 2007).
No. 18-2852 49
“is not barred from taking advantage of scale economies by
constructing a large and efficient factory,” nor is it “under a
duty to cooperate with its business rivals … if valid business
reasons exist for that refusal.” Id. at 597. Ski Co. could be
found liable only if it “gained, maintained, or used monopoly
power in a relevant market by arrangements and policies
which rather than being a consequence of a superior product,
superior business sense, or historic element, were designed
primarily to further any domination of the relevant market.”
Id. Therefore, “if there were legitimate business reasons for
the refusal [to deal], then the defendant, even if he is found to
possess monopoly power in a relevant market, has not vio-
lated the law,” because the law is not concerned with conduct
which may “benefit consumers by making a better product or
service available”—only conduct that “has the effect of im-
pairing competition.” Id. at 597. The jury “resolved all con-
tested questions of fact in Highlands’ favor,” id. at 599, includ-
ing a finding “that there were no valid business reasons for
the refusal.” Id. at 605.
The Supreme Court upheld the jury verdict for the plain-
tiff. The Court reiterated Lorain Journal’s rejection of the argu-
ment that “the right to refuse to deal with other firms … is
unqualified.” Id. at 601–02 & n.27, citing Lorain Journal, 342
U.S. at 155, and Colgate, 250 U.S. at 307. This conclusion was
supported by three key factors.
First, Ski Co. “elected to make an important change in a
pattern of distribution that had originated in a competitive
market and had persisted for several years,” including after
“the character of the market was changed by Ski Co.’s acqui-
sition of monopoly power.” Id. at 603. Such a pre-existing re-
lationship supports a presumption that the joint arrangement
50 No. 18-2852
was efficient and profitable. Trinko, 540 U.S. at 408–09 (distin-
guishing Aspen Skiing from situation where that presumption
would not apply—e.g., a defendant who would never have
“voluntarily engaged in a course of dealing with its rivals …
absent statutory compulsion”); see also Linkline, 555 U.S. at
450 (refusing to impose a duty to deal on a defendant when
“such duty arises only from FCC regulations, not from the
Sherman Act”). The Court explained in Aspen Skiing:
In any business, patterns of distribution develop
over time; these may reasonably be thought to
be more efficient than alternative patterns of
distribution that do not develop. The patterns
that do develop and persist we may call the op-
timal patterns. By disturbing optimal distribu-
tion patterns, one rival can impose costs upon
another, that is, force the other to accept higher
costs.
472 U.S. at 604 n.31, quoting Robert H. Bork, The Antitrust Par-
adox 156 (1978).
Second, the Court compared Ski Co.’s conduct in the As-
pen market with Ski Co.’s arrangements in comparable mar-
kets where it lacked such dominance, noting that cooperative
joint tickets were “used in other multimountain areas which
apparently are competitive.” Aspen Skiing, 472 U.S. at 603–04
& n.30. The Court could thus “infer that such tickets satisfy
consumer demand in free competitive markets.” Id.
Third, defendant Ski Co. decided to forgo profitable trans-
actions by refusing to permit Highlands to purchase ski tick-
ets at the retail price for the sake of harming Highlands. 472
U.S. at 608 (“The jury may well have concluded that Ski Co.
No. 18-2852 51
elected to forgo these short-run benefits because it was more
interested in reducing competition … over the long run by
harming its smaller competitor.”). Ski Co. made this “decision
to avoid providing any benefit to Highlands even though ac-
cepting the coupons would have entailed no cost to Ski Co.
itself, would have provided it with immediate benefits, and
would have satisfied its potential customers.” Id. at 610.
These factors all pointed to Ski Co.’s conduct causing an-
ticompetitive harm. But whether its conduct “may properly
be characterized as exclusionary” also required consideration
of possible procompetitive justifications, including any bene-
ficial or harmful impacts on consumers or competition itself.
Id. at 605, citing Bork, Antitrust Paradox at 138. Critical to this
case, the Court treated procompetitive justification as a fac-
tual issue properly resolved by the jury. The Court focused on
“the evidence relating to Ski Co. itself, for Ski Co. did not per-
suade the jury that its conduct was justified by any normal
business purpose.” Id. at 608 (emphasis added). Conflicting
evidence presented at trial undermined Ski Co.’s arguments
that the joint ticket was “administratively cumbersome” (no
more so than the joint tickets Ski Co. used in other, competi-
tive markets) and that Highlands’ “inferior skiing services”
were free-riding on Ski Co.’s services (a joint ticket “allowed
consumers to make their own choice on these matters of qual-
ity”). Id. at 608–10.
Highlands refuted Ski Co.’s procompetitive justifications
with exactly the kind of evidence that is helpful to prove ex-
clusionary conduct or “predation,” including “statements
made by the officers or agents of the company, evidence that
the conduct was used threateningly and did not continue
when a rival capitulated, or evidence that the conduct was not
52 No. 18-2852
related to any apparent efficiency.” Id. at 608–09 n.39, quoting
Bork, Antitrust Paradox at 157 (emphasis in Aspen Skiing). The
Court concluded that “the evidence supports an inference
that Ski Co. was not motivated by efficiency concerns and that
it was willing to sacrifice short-run benefits and consumer
goodwill in exchange for a perceived long-run impact on its
smaller rival.” Id. at 611.
The Aspen Skiing factors help case-by-case assessments of
whether a challenged refusal to deal is indeed anticompeti-
tive, even though no factor is always decisive by itself. For ex-
ample, even “a monopolist might wish to withdraw from a
prior course of dealing and suffer a short-term profit loss in
order to pursue perfectly procompetitive ends—say, to pur-
sue an innovative replacement product of its own.” Novell,
Inc. v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir. 2013)
(Gorsuch, J.). Similarly, forgoing short-run profits may some-
times reflect desirable, procompetitive behavior, such as ef-
forts to offer “promotional discounts.” Id. And a defendant
may have “procompetitive rationales for treating a rival dif-
ferently,” such as if “it’s more costly to deal with distant rivals
than other nearby customers.” Id. at 1078 n.4. But because the
factors as a whole provide a window into likely harm to com-
petition, a court should start with the Aspen Skiing factors in
determining whether a refusal to deal is unlawful.
The Supreme Court has described Aspen Skiing as “at or
near the outer boundary of § 2 liability.” Trinko, 540 U.S. at
409. Given the facts we must assume here, Viamedia has pre-
sented a case that is well within those bounds and appears
stronger than Aspen Skiing. A comparison of Viamedia’s alle-
gations to the facts found by the jury in Aspen Skiing (and
No. 18-2852 53
which the Supreme Court considered significant to its analy-
sis) is instructive:
ASPEN SKIING VIAMEDIA
ALLEGATIONS
Long-term business rela- Same
tionship that created joint
offering
Relationship existed absent Same
any statutory obliga-
tion/duty (Trinko)
Can presume prior relation- Same
ship was thus mutually ad-
vantageous
Sudden course reversal Same
Course reversal came at a Same
monetary loss for defendant
Refused to sell ser- Same
vice/product at retail price
Sold product at retail price Same
to others in the relevant
market
Unhappy customers Same
Discouraged customers Same
from doing business with
its smaller rival
54 No. 18-2852
Defendant continued to Same
deal with competitors in
other competitive markets
Procompetitive justifica- Same
tions are a question for the
factfinder
Exclusionary conduct aimed Same
at the only other competitor
in the market
Ski Mountain Passes Different: Ad Rep Services
In light of the similarities, unless the Court meant to limit
Aspen Skiing to ski resorts, we see no sound basis to distin-
guish Viamedia’s case as a matter of law. Comcast’s alleged
conduct, absent compelling evidence to the contrary, indi-
cates its “calculation that its future monopoly retail price
would be higher” by foreclosing its ad rep services competi-
tor. Trinko, 540 U.S. at 409. In addition, unlike in Aspen Skiing,
where the ultimate customers were skiers who did not com-
pete against the defendant ski resort, Comcast’s refusal to
deal with Viamedia has left its MVPD customers in these mar-
kets no practical choice but to turn over their ad sales busi-
ness, along with their sensitive business information and a
large percentage of their ad revenue, to their dominant MVPD
competitor.
c. Refusals to Deal and Motions to Dismiss
Comcast nonetheless contends this case can be decided on
the pleadings because “there is no liability under Aspen Skiing
where, as here, the defendant’s alleged termination of a pre-
existing course of dealing was not ‘irrational but for its anti-
competitive effect.’” Comcast relies on the district court’s
No. 18-2852 55
acceptance of Comcast’s thinly supported assertion that it had
a “valid business purpose” in refusing to deal with Viamedia
because Comcast’s replacement of Viamedia as WOW!’s and
RCN’s ad representative is a course of conduct that “offers po-
tentially improved efficiency.” See 218 F. Supp. 3d at 698–99
(emphasis added). Comcast contends this “valid business ob-
jective” is what “distinguishes this case from Aspen Skiing,
where the defendant ‘fail[ed] to offer any efficiency justifica-
tion whatever for its pattern of conduct.’” Appellees’ Br at 27,
quoting Aspen Skiing, 472 U.S. at 608.
Comcast’s argument has the facts wrong. Its reading fails
to comport with the actual language of the opinion, the jury
instructions, and the evidence presented by both parties. In
Aspen Skiing the Court was reviewing a jury verdict. Only af-
ter a month-long trial had the jury “resolved all contested
questions of fact in Highlands’ favor” and “concluded that
there were no valid business reasons for the refusal.” Aspen
Skiing, 472 U.S. at 599, 605. The Court concluded that “the ev-
idence supports an inference that Ski. Co. was not motivated by
efficiency concerns.” Id. at 610 (emphasis added).
Comcast next cites Novell in support of its argument that a
factual dispute regarding the existence of procompetitive jus-
tifications is appropriate for resolution on the pleadings. Yet
Novell was a decision based on an eight-week trial. 731 F.3d at
1066. And what about Olympia Equipment Leasing Co. v. West-
ern Union Telegraph Co., 797 F.2d 370 (7th Cir. 1986)? That de-
cision followed a “trial [that] lasted more than six weeks and
produced the usual mountain of testimony and exhibits.” Id.
at 372. Valid business justifications are relevant only to the re-
buttal of a prima facie case of monopolization.
56 No. 18-2852
Thus, balancing anticompetitive effects against hypothe-
sized justifications depends on evidence and is not amenable
to resolution on the pleadings, at least where the plaintiff has
alleged conduct similar to that in Aspen Skiing. See also, e.g.,
Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co., 935 F.2d
1469, 1482 (7th Cir. 1991) (“Whether valid business reasons
motivated a monopolist’s conduct is a question of fact.”).
Adapting language from our colleagues in the D.C. Circuit,
the correct approach in this situation requires a district court
to acknowledge that:
[Comcast’s] defense—that its refusal to deal was
economically justified—depends upon a ques-
tion of fact and therefore is not cognizable in
support of a motion to dismiss. It is, of course,
entirely possible [Comcast] will be able to prove
… [that] its refusal to deal was a reasonable
business decision. On the other hand, it is also
possible [Comcast’s] refusal to deal reflected its
willingness to sacrifice immediate profits from
the sale of [Interconnect access] in the hope of
driving [Viamedia] out of the market and recov-
ering monopoly profits in the long-run. … The
district court cannot choose between these com-
peting explanations without first resolving
questions of fact not before it upon a motion to
dismiss.
Covad Communications Co. v. Bell Atlantic Corp., 398 F.3d 666,
676 (D.C. Cir. 2005) (reversing dismissal of refusal-to-deal
claim on pleadings). This analysis must also include the harm
from Comcast’s alleged tying conduct, which we turn to be-
low. Viamedia has alleged—and offered evidence of—
No. 18-2852 57
enough harm to competition from Comcast’s refusal-to-deal
and tying conduct for its claim to go forward. Consideration
of procompetitive justifications must wait for a comprehen-
sive rule of reason analysis.
i. Comcast’s Proposed Legal Standard
Comcast both misunderstands the law and relies on inap-
posite cases by conflating the vertical integration of its MVPD
and ad rep services functions with its control over the coop-
erative Interconnects and alleged misuse of that power. Com-
cast proposes that if a defendant merely postulates “a valid
business purpose”—apparently including any business pur-
pose a defendant could dream up, regardless of feasibility or
value—that “ends the inquiry.” “[T]here is no ‘balancing’ of
benefits and harms,” Comcast declares. In support of that
proposition, Comcast points to the United States’ Amicus
Brief (in support of neither party) filed in this case, which of-
fers a test dubbed the “no economic sense test.” Appellee Br
at 27–28; see also United States Brief at 11–12 (relying on the
formulation articulated in the United States’ amicus brief in
Trinko, available at 2003 WL 21269559, and elaborated upon
in Gregory J. Werden, Identifying Exclusionary Conduct Under
Section 2: The “No Economic Sense” Test, 73 Antitrust L.J. 413,
422–25 (2006)).
The proposed “no economic sense” test would condemn
conduct as “exclusionary or predatory” only if it “would
make no economic sense for the defendant but for its ten-
dency to eliminate or lessen competition.” United States Brief
at 11. A “gross benefit [or gain] for the defendant” is not
enough, however: “Conduct fails the no economic sense test
if it is expected to yield a negative payoff, net of the costs of
undertaking the conduct, and not including any payoff from
58 No. 18-2852
eliminating competition.” Werden at 416 (emphasis added).
Or—as explained by the government at oral argument here—
it is an objective “balancing” test that requires more than just
“a slight procompetitive benefit or efficiency gain.”13
This test is essentially the same one employed by the Tenth
Circuit in Novell, which noted that “the monopolist’s conduct
must be irrational but for its anticompetitive effect.” 731 F.3d
13Comcast’s confusion may stem from the terse proposed name of
“no economic sense,” which does not appear to invite balancing. The test
is actually more nuanced than the name suggests, and it is not meant to
resolve every Section 2 challenge. As Werden sensibly notes, its “utility …
ultimately is apt to vary,” and we “should not presume that a single test
must resolve every exclusionary conduct case.” Werden at 421 & n.31.
Furthermore, it has been observed that although the “no economic
sense” test “offers good insights into when aggressive actions by a single
firm go too far,” it “can lead to erroneous results unless” one also “seek[s]
to ‘balance’ gains to the monopolist against losses to consumers, rivals, or
others.” Areeda & Hovenkamp ¶ 651b3, at 106–07. Otherwise we could
arrive at absurd outcomes: “Theoretically, an act might benefit the defend-
ant very slightly while doing considerable harm to the rest of the econ-
omy, and it would be lawful.” Id. It is possible the test could be adapted
to meet these criticisms, given that a court should not consider any gain
from eliminating competition, but—in any event—the “no economic sense
test” was not intended to displace all other approaches. Rather, it “is likely
to be most useful as one part of a sufficient condition: If challenged con-
duct has a tendency to eliminate competition and would make no eco-
nomic sense but for that tendency, the conduct is exclusionary.” Werden
at 418. Areeda and Hovenkamp also suggest a broader approach, in which
harm “wholly disproportionate” to the valid business justification can also
support a refusal-to-deal-claim. ¶ 772c2, at 223 (“Condemnation would be
appropriate only for conduct that (1) clearly injures an actual or prospec-
tive rival either (2a) with no good business justification at all, or (2b) with
a business justification that is poorly fitted to the result or wholly dispro-
portionate to the harm that is inflicted.”).
No. 18-2852 59
at 1075, citing Aspen Skiing, 472 U.S. at 597, Trinko, 540 U.S. at
407, and Werden at 422–25. However formulated, this test is
aimed in part at the potential overweighting of the Aspen Ski-
ing factor of a defendant forsaking short-term profits. Id. As
noted, this factor is relevant but should not always be dispos-
itive because “a short-term profit sacrifice is neither necessary
nor sufficient for conduct to be exclusionary.” Werden at 424;
see also id. (“short-run profit sacrifice also is not necessary for
conduct to be exclusionary because the anticompetitive gains
from exclusionary conduct sometimes can be reaped immedi-
ately”); Areeda & Honvenkamp ¶ 651b3, at 107 (“monopoliz-
ing conduct is not necessarily costly to the defendant”).
Because the Aspen Skiing factors are helpful but not dis-
positive, this more nuanced approach considering both pro-
competitive benefits and anticompetitive harms is necessary
to answer the ultimate question of whether competition was
harmed. The plaintiff ultimately needs to prove “that the mo-
nopolist’s refusal to deal was part of a larger anticompetitive
enterprise, such as (again) seeking to drive a rival from the
market or discipline it for daring to compete on price.” Novell,
731 F.3d at 1075. The result of such conduct is to harm com-
petition by “entrench[ing] a dominant firm and enabl[ing] it
to extract monopoly rents once the competitor is killed off or
beaten down.” Id.
As the above paragraphs suggest, and without our en-
dorsing any particular catchy title for this analytical ap-
proach, the calculation of procompetitive benefits net of anti-
competitive harms does not easily lend itself to a pleading
standard. Rule of reason cases “place[] a premium on objec-
tive tests based on evidence that is typically not in the defend-
ant’s exclusive control”—for example, Comcast’s cost savings
60 No. 18-2852
and other efficiencies it may have obtained due to its conduct.
See Herbert Hovenkamp, The Rule of Reason, 70 Fla. L. Rev. 81,
86 (2018). This is why it is typically considered an “adequate
pleading in a rule of reason antitrust case” for a plaintiff to
allege (1) “evidence of market structure” (i.e., market power
and relevant markets, which are not in dispute in this case)
and (2) “exclusionary effect” (i.e., foreclosure of a competitor
from a market, which is also not in dispute in this case)—
“both of which can ordinarily be obtained without access to
the defendant’s own records—[and] indicate that an antitrust
violation is plausible.” Id at 90.
To the extent that refusal-to-deal claims require more at
the pleading stage, it is enough to allege plausibly that the re-
fusal to deal has some of the key anticompetitive characteris-
tics identified in Aspen Skiing. The Supreme Court said as
much in Trinko, in which it affirmed dismissal of a complaint,
distinguished Aspen Skiing, and emphasized that “the defend-
ant’s prior conduct sheds no light upon the motivation of its
refusal to deal—upon whether its regulatory lapses were
prompted not by competitive zeal but competitive malice.”
540 U.S. at 409. Trinko specifically identified the absence of
two factors—a prior and voluntary course of dealing, and re-
fusal to sell at retail price—in distinguishing Aspen Skiing. The
former factor was important, because it “suggested a willing-
ness to forsake short-term profits to achieve an anticompeti-
tive end.” Id., citing Aspen Skiing, 472 U.S. at 608, 610–611. In
Covad, the D.C. Circuit adopted a similar, if slightly more ex-
plicit, holding that a plaintiff must eventually show a sacrifice
of short-term profits to prevail on a refusal-to-deal claim and
that alleging that a refusal to deal was “predatory” was suffi-
cient at the pleadings stage. 398 F.3d at 675–76.
No. 18-2852 61
Viamedia’s pleading adequately alleges an anticompeti-
tive refusal to deal. As described above, Viamedia’s claim
closely tracks Aspen Skiing and contains the key elements that
were missing in Trinko: a prior course of voluntary conduct,
sacrifice of short-term profits, and refusal to sell to rivals on
the same terms as other potential buyers. Certainly, no more
is required. We leave open the question whether allegations
of short-term losses are necessary to state a refusal-to-deal
claim. A case might present itself in which other factors—such
as a prior course of conduct, exploitation of power over a co-
operative network, refusal to sell at retail price, and discrimi-
natory treatment of rivals—could plausibly support the infer-
ence that a refusal to deal is “prompted … by anticompetitive
malice.” Trinko, 540 U.S. at 880. But this case is easier and does
not require precise delineation of the requirements of a re-
fusal-to-deal pleading.
Even if an allegation that a defendant’s conduct was irra-
tional but for its anticompetitive effect were necessary, Vi-
amedia has plausibly alleged just that. In a section of the First
Amended Complaint entitled “Comcast’s Refusal to Deal
with Viamedia is Irrational But for its Anticompetitive Ef-
fects,” Viamedia walked through the long-term course of
dealing prior to Comcast’s conduct; the subsequent degrada-
tion of the value of the cooperative Interconnects; the financial
losses suffered by Comcast itself, as well as by Viamedia and
Comcast’s competitor MVPDs; Comcast’s willingness to offer
Interconnect-only access in other markets where it did face
competition; and the fact that “[t]here are no procompetitive
justifications” to be achieved by the conduct given that there
were “no material administrability problems in allowing Vi-
amedia to participate in Interconnects” on behalf of its MVPD
customers. First Am. Cplt. ¶¶ 154–68. Viamedia’s allega-
62 No. 18-2852
tions—regardless of the standard applied—are more than suf-
ficient to pass muster under Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
With Viamedia meeting the appropriate pleading stand-
ard and presenting evidence of harm to competition, the re-
mainder of the case should settle into the traditional analysis
followed in rule of reason cases, with the burden shifting to
Comcast, which “may, of course, introduce its own proof of
inevitability, superior skill, or business justification.” Areeda
& Hovenkamp ¶ 650c, at 94. To be more specific, under this
burden-shifting framework, once Viamedia has “successfully
establish[ed] a prima facie case under § 2 by demonstrating an-
ticompetitive effect, then [Comcast] may proffer a ‘procom-
petitive justification’ … a nonpretextual claim that its conduct
is indeed a form of competition on the merits because it in-
volves, for example, greater efficiency or enhanced consumer
appeal.” Microsoft, 253 F.3d at 59. If such a justification is of-
fered, “the burden shifts back to [Viamedia] to rebut that
claim.” Id. If Viamedia cannot rebut the evidence of Comcast’s
procompetitive justifications, “then [Viamedia] must demon-
strate that the anticompetitive harm of the conduct outweighs
the procompetitive benefit.” Id. This burden-shifting has
evolved based on which party has access to the various cate-
gories of evidence and information, with any evidence of pro-
competitive justifications likely to be under the defendant’s
control. Cf. United States Department of Justice and Federal
Trade Commission, Horizontal Merger Guidelines § 10, at 30
(Aug. 19, 2010) (Merger Guidelines) (“much of the
No. 18-2852 63
information relating to efficiencies is uniquely in the posses-
sion” of the firms seeking to justify a transaction).14
ii. Inapposite Vertical Integration Cases
Comcast also relies on cases involving vertically inte-
grated defendants with facts that, in crucial ways, do not map
onto this case. In seeking to shoehorn this case into this cate-
gory, Comcast caused confusion in the district court—and
continues in this effort on appeal—by glossing over the unu-
sual market structures in this case and portraying itself as just
a “prototypical” vertically integrated firm. This misconcep-
tion is accomplished by conflating (1) Comcast’s actual verti-
cal integration of its MVPD cable services with its ad rep ser-
vices functions with (2) its control over the cooperative Inter-
connects in the relevant geographic markets. Comcast’s
14 Courts apply a “similar balancing approach” in rule of reason cases,
whether alleged under § 1 or § 2. Microsoft, 253 F.3d at 59, citing Standard
Oil Co. v. United States, 221 U.S. 1 (1911). The Supreme Court has recently
reiterated this balancing test for a rule of reason § 1 case: “To determine
whether a restraint violates the rule of reason … a three-step, burden-shift-
ing framework applies. Under this framework, the plaintiff has the initial
burden to prove that the challenged restraint has a substantial anticom-
petitive effect that harms consumers in the relevant market. If the plaintiff
carries its burden, then the burden shifts to the defendant to show a pro-
competitive rationale for the restraint. If the defendant makes this show-
ing, then the burden shifts back to the plaintiff to demonstrate that the
procompetitive efficiencies could be reasonably achieved through less an-
ticompetitive means.” Ohio v. American Express Co., 138 S. Ct. 2274, 2284
(2018) (omitting internal citations); see also Areeda & Hovenkamp
¶ 1820a, at 188, ¶ 1821, at 207 (observing that courts require “stronger
proof of offsetting efficiencies” when defendants possess greater ability to
foreclose rivals from the market).
64 No. 18-2852
argument for dismissal on the pleadings depends upon this
confusion.
To start, “[e]ven a monopolist … is free to integrate, espe-
cially when integration creates no new monopoly in any sec-
ond area.” Areeda & Hovenkamp ¶ 1700j1, at 14–15. Such an
integration allows the defendant to achieve cost-savings by
“elimination of double marginalization.” United States v.
AT&T, Inc., 916 F.3d 1029, 1036 (D.C. Cir. 2019). In other
words, prior to vertical integration, the firms providing com-
plementary products would “earn[] margins over cost before
their products reached consumers.” Id. at 1044. After integra-
tion, goes the theory, there is no need for two entities to earn
margins over cost, and “the merged entity would eliminate
that cost and … pass on some of those cost savings to consum-
ers in order to attract additional” customers. Id. Thus, it
would rarely be an antitrust violation for a firm to supply it-
self through vertical integration, and a plaintiff would not
generally have a right under antitrust law to demand that a
defendant forgo supplying itself from an in-house source.
Areeda & Hovenkamp ¶ 1700j1, at 14–16 & n.35.
This principle has been illustrated in some Section 2 cases,
in which a company claimed antitrust injury when a larger
company vertically integrated and provided in-house what it
formerly purchased from the smaller company. For example,
in Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d
117 (2d Cir. 2007), a company with a local monopoly in
crushed stone (aggregate) sold the aggregate through two dis-
tributors. The aggregate monopolist decided to vertically in-
tegrate by purchasing one of the distributors and bringing all
of its distribution in-house. Id. at 119. The remaining distrib-
utor alleged a Section 2 violation, claiming that “its injury
No. 18-2852 65
resulted from [defendant’s] vertical integration into the distri-
bution market.” Id. at 120. The facts of Port Dock do not map
onto the conduct of Comcast, which was already vertically in-
tegrated and was instead exploiting its control over the coop-
erative Interconnects.
Similarly, the defendant in Christy Sports, LLC v. Deer Val-
ley Resort Co., 555 F.3d 1188 (10th Cir. 2009), owned the moun-
tain on which it leased property to plaintiff, and “the creator
of a resort has no obligation under the antitrust laws to allow
competitive suppliers of ancillary services on its property.” Id.
at 1193. Notably, the mountain was not a cooperative enter-
prise, and the customers (skiers) did not compete against the
defendant mountain resort. And in Novell (which, recall, was
a case that went to trial), defendant Microsoft was the sole
owner of the intellectual property it had made available to in-
dependent software vendors. 731 F.3d at 1067. And again, the
customers (computer users) did not compete against Mi-
crosoft.
These opinions about “prototypical” vertically integrated
firms recognize, nevertheless, that different circumstances
could support a cognizable antitrust claim in cases like this
one. See Port Dock, 507 F.3d at 124–25 (“Vertical expansion by
a monopolist, without more, does not violate section 2,” un-
less there is an allegation of an “anticompetitive incentive to
create a downstream monopoly,” or other “special circum-
stances in which a monopolist’s vertical expansion could be
anticompetitive.”); Christy Sports, 555 F.3d at 1196 (“We
would not even preclude the theoretical possibility that such
a change [by refusing to deal] could give rise to an antitrust
claim, for example, if by first inviting an investment and then
disallowing the use of the investment the [defendant]
66 No. 18-2852
imposed costs on a competitor that had the effect of injuring
competition in a relevant market.”); Novell, 731 F.3d at 1076
(plaintiff could have proven refusal-to-deal case against Mi-
crosoft, but at trial “presented no evidence from which a rea-
sonable jury could infer that Microsoft’s discontinuation of
this arrangement suggested a willingness to sacrifice short-
term profits, let alone in a manner that was irrational but for
its tendency to harm competition”).
Even if this were a vertical integration case, Viamedia ad-
equately alleged that Comcast presented just such a “special
circumstance.” Its conduct eliminated its only competitor in
the ad rep services market and increased control over its
MVPD competitors in the retail cable market. But again, this
is not a case of simple vertical integration. Comcast is verti-
cally integrated and has been at all relevant times. No one ob-
jects to a vertically integrated Comcast offering both Intercon-
nect services and ad rep services. Viamedia does not seek to
force Comcast to buy ad rep services from Viamedia; nor does
Viamedia seek to force Comcast to allow Viamedia to re-sell
or distribute Comcast’s ad rep services. Viamedia simply
wants to ensure that MVPDs can freely choose Viamedia as
their supplier of ad rep services if that is their preferred
choice.
Another distinguishing fact is that the Interconnects are
joint, cooperative efforts among competing MVPDs. That dis-
tinguishes this case from cases involving vertically integrated
defendants, as in Port Dock. Viamedia seeks to regain access
to the Interconnects to operate on behalf of its MVPD custom-
ers. It is true that by virtue of acquiring numerous other cable
companies, Comcast now controls the Interconnects at issue.
But they are cooperative ventures that jointly set prices for
No. 18-2852 67
competitor MVPDs’ spot avails. Comcast itself has described
the Interconnects as a “collection of two or more cable TV sys-
tems that work together to distribute commercials to a wider
geographic area than a single system would otherwise reach,
giving advertisers the option to reach all cable households
within a market with one buy.” First Am. Cplt. ¶ 156.
The Interconnects’ cooperative structure explains why
Comcast describes itself not as an Interconnect “owner” but
as an Interconnect “operator” and describes its function as a
firm that “operates interconnects in DMAs including Chicago
and Detroit.” See, e.g., Appellees’ Br. at 7. It also explains why
Comcast describes Viamedia as having “participated in inter-
connects,” and after being denied access, Comcast says, Vi-
amedia sought “readmission.” Id. Typical vertically inte-
grated firms do not refer to themselves as the “operators” of
their assets, and they do not describe their buyers as “partici-
pating” in the vertically integrated firms’ services, let alone
say that buyers might seek “readmission” to those services.
Taking control of and exploiting control of a previously coop-
erative mechanism is not vertical integration.15
Accordingly, we reverse the Rule 12(b)(6) dismissal of Vi-
amedia’s claim for monopolization through an unlawful re-
fusal to deal.
2. Tying
The “essential characteristic of an invalid tying arrange-
ment lies in the seller’s exploitation of its control over the
15 Viamedia disputes the accuracy of describing Comcast as an Inter-
connect “owner.” Deposition testimony characterizes an Interconnect
simply as “an agreement between two or more MVPDs in a DMA to dis-
tribute commercials … across all partners in the interconnect.”
68 No. 18-2852
tying product to force the buyer into the purchase of a tied
product that the buyer either did not want at all, or might
have preferred to purchase elsewhere on different terms.” Jef-
ferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984).
Viamedia contends that Comcast conditioned the sale of In-
terconnect services (the tying product) on the purchase of ad
rep services (the tied product). Viamedia alleges that Comcast
engaged in anticompetitive conduct on two fronts. Comcast
inserted itself between Viamedia and its competitor MVPDs
by: (1) denying Viamedia access to the Comcast-controlled In-
terconnects, and (2) then using its control over the Intercon-
nects to demand that its smaller MVPD competitors turn over
to Comcast 100% of their spot avails, including the sale of lo-
cal spots, an area in which Comcast and the MVPDs had for-
merly competed. Viamedia has offered evidence that this two-
front strategy was successful. Comcast excluded its only com-
petitor in the ad rep services market—gaining a pure monop-
oly. It also gained new control over and insight into its MVPD
competitors that it could not have achieved otherwise.
The district court, however, granted summary judgment
on Viamedia’s tying claim, a decision we also review de novo.
Schlaf v. Safeguard Prop., LLC, 899 F.3d 459, 465 (7th Cir. 2018).
“Summary judgment is appropriate only if there are no dis-
puted questions of material fact and the moving party is enti-
tled to judgment as a matter of law,” so we “examine the rec-
ord in the light most favorable to the [non-movant], granting
[it] the benefit of all reasonable inferences that may be drawn
from the evidence and reversing if we find a genuine issue
concerning any fact that might affect the outcome of the case.”
Id. (citations omitted); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (on summary judgment, courts must
No. 18-2852 69
refrain from making credibility determinations or weighing
evidence).
a. Summary Judgment Standard
The district court applied, and Comcast argues for, a sum-
mary judgment standard that requires plaintiffs in Section 2
monopolization cases to present evidence that “tends to ex-
clude the possibility” that a monopolist’s conduct is just “as
consistent with competition as with illegal conduct.” 335 F.
Supp. 3d at 1061, quoting Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 588 (1986). The proper ques-
tion on summary judgment is whether Viamedia has pre-
sented evidence to establish a genuine dispute of material fact
as to whether Comcast engaged in exclusionary conduct for-
bidden by Section 2. See Matsushita, 475 U.S. at 585; Eastman
Kodak Co. v. Image Technical Services, 504 U.S. 451, 483 (1992);
see also, generally, In re Text Messaging Antitrust Litig., 782
F.3d 867 (7th Cir. 2015). When determining whether there is a
“genuine issue of material fact … the substantive law will
identify which facts are material. Anderson v. Liberty Lobby,
Inc., 477 U.S. at 247–48 (emphasis omitted). “The Court’s re-
quirement in Matsushita that the plaintiffs’ claims make eco-
nomic sense did not introduce a special burden on plaintiffs
facing summary judgment in antitrust cases.” Eastman Kodak,
504 U.S. at 467–68.
Viamedia’s tying theory is not economically implausible,
unlike the alleged twenty-year-long conspiracy to charge
predatorily low prices in Matsushita itself. A competitor’s
claim that a rival used monopoly power in a tying product
market to gain a monopoly in a tied product market is
“facially anticompetitive and exactly the harm that antitrust
laws aim to prevent.” Eastman Kodak, 504 U.S. at 479. The
70 No. 18-2852
sufficiency of the tying claim depends on whether Comcast
forced RCN and WOW! to buy its ad rep services. Our
summary judgment inquiry can be framed in the language of
Matsushita—are the facts “as consistent with” forcing as with
noncoerced action?—but this formulation does not get us
anywhere beyond the general summary judgment standard.
In the following analysis, we ask whether Viamedia has
presented evidence of forcing sufficient to create a genuine
dispute for trial.
b. Tying and Comcast’s Conduct
In granting summary judgment, the district court con-
cluded that no reasonable jury could find as a matter of fact
that Comcast tied Interconnect services to the purchase of its
ad rep services. We respectfully disagree. Viewing the evi-
dence in the light most favorable to Viamedia, and without
making credibility determinations or weighing the parties’
competing evidence, we conclude that Viamedia has offered
sufficient evidence that Comcast illegally tied purchase of its
ad rep services to the Interconnect access it already controlled.
First, it is undisputed that Comcast (a) has market power
in the tying market for Interconnect services and (b) has now
foreclosed all competition in the tied market for ad rep ser-
vices. Second, there is substantial evidence that the coopera-
tive Interconnects are a separate service from Comcast’s ad
rep services. Third, Viamedia offered evidence that Comcast
forced its competitor MVPDs to become its customers for ad
rep services if they also wanted to keep their access to the In-
terconnects.
No. 18-2852 71
i. Definition
Tying is conduct in which a firm will “sell one product [the
tying product] but only on the condition that the buyer also
purchases a different (or tied) product.” Northern Pacific Ry.
Co. v. United States, 356 U.S. 1, 5–6 (1958); see also Sheridan v.
Marathon Petroleum Co., 530 F.3d 590, 592 (7th Cir. 2008);
Areeda & Hovenkamp ¶ 1700a, at 4. The seller will purchase
the tied product “not because the party imposing the tying
requirement has a better product or a lower price” but be-
cause the seller has “power or leverage” in the market for the
tying product. Northern Pacific Railway, 356 U.S. at 6.
Tying is still nominally subject to a per se rule of illegality,
but it is “a most peculiar per se rule.” Areeda & Hovenkamp
¶ 1701c, at 31; see Jefferson Parish Hospital Dist. No. 2 v. Hyde,
466 U.S. at 26–29; Eastman Kodak, 504 U.S. at 462. 16 The factual
elements that must be proven for a tying claim capture much
of what must be demonstrated in a rule of reason case. Show-
ing that the purchase of the tied product was forced uses
many of the same concepts used to analyze refusals to deal:
some assessment of market power, rough predictions of anti-
competitive harm, and consideration of procompetitive
16 We stay “still” because in recent years the Supreme Court has held
that some categories of conduct that were formerly treated as per se illegal
are now subject to a rule of reason analysis. See Leegin Creative Leather
Products, Inc. v. PSKS, Inc., 551 U.S. 877, 907 (2007) (resale price mainte-
nance no longer per se illegal, overruling Dr. Miles Medical Co. v. John D.
Park & Sons, 220 U.S. 373 (1911)); Continental T.V., Inc. v. GTE Sylvania, Inc.,
433 U.S. 36, 57 (1977) (non-price vertical restraints no longer per se illegal,
overruling United States v. Arnold, Schwinn, & Co., 388 U.S. 365 (1967));
State Oil Co. v. Khan, 522 U.S. 3, 22 (1997) (vertical maximum price re-
straints no longer per se illegal, overruling Albrecht v. Herald Co., 390 U.S.
145 (1968)).
72 No. 18-2852
justifications. See, e.g., Illinois Tool Works Inc. v. Independent
Ink, Inc., 547 U.S. 28, 44 (2006) (“While some such [tying] ar-
rangements are still unlawful, such as those that are the prod-
uct of a true monopoly … that conclusion must be supported
by proof of power in the relevant market.”) (citation omitted);
Sheridan v. Marathon Petroleum Co., 530 F.3d 590, 593–94 (7th
Cir. 2008) (describing the tying rule and its market-power re-
quirement); Areeda & Hovenkamp ¶ 1760(b), at 379 (noting
that, even when treated as per se illegal, “the Supreme Court
has almost always been willing to consider a defendant’s of-
fered justifications”).
“When the defendant is a dominant firm” and meets “a
much stricter power requirement,” however, the “special
screening function” of the tying factors is “largely unneces-
sary, and the more general standards of § 2 become relevant”
because “the technical requirements … attach only to per se
ties.” Areeda & Hovenkamp ¶ 777, at 324. Thus, “when the
defendant is a monopolist in the ‘tying product,’” it may be
superfluous to go through a detailed inquiry into whether
there are “separate products.” Id. ¶ 617b2, at 52–53; see also
id. ¶ 777, at 324–25 & n.9 (noting that in Eastman Kodak, the
Supreme Court treated a conditional refusal to sell parts with-
out service as a tying arrangement, although on remand the
tying claim was dropped and a Section 2 violation was found
without any “separate products” requirement); United States
v. Microsoft Corp., 253 F.3d 34, 96–97 (D.C. Cir. 2001) (en banc).
Similarly, “[w]hen a defendant’s market share and the under-
lying market structure make monopolization or attempt plau-
sible, then a tie that contributes significantly to the mainte-
nance or creation of monopoly power violates § 2 even though
it is unilaterally imposed.” Areeda & Hovenkamp ¶ 777, at
325.
No. 18-2852 73
Here, Comcast’s monopoly power in the tying market of
Interconnect services in the three metropolitan areas and its
successful capture of a monopoly position in the tied market
of ad rep services in the same areas are undisputed. And yet
great effort has been made to parse whether Comcast’s con-
duct satisfies some platonic ideal of tying conduct. We, too,
walk through the tying factors at issue (separate product and
forced purchase) and determine, taking the record as a whole,
that Viamedia has provided sufficient evidence to create a
question of fact as to each factor. Ultimately, the focus in this
Section 2 case must remain on “whether, viewing the monop-
olist’s conduct as a whole, it has unreasonably maintained or
enhanced its monopoly position.” Id. ¶ 777, at 324.
ii. Separate Products or Services
“[W]hether one or two products are involved turns … on
the character of the demand for the two items.” Jefferson Par-
ish, 466 U.S. at 19; see also Eastman Kodak, 504 U.S. at 462 (“For
service and parts to be considered two distinct products, there
must be sufficient demand so that it is efficient for a firm to
provide service separately from parts.”); Northern Pacific Rail-
way, 356 U.S. at 5–6. Comcast disputes whether Interconnect
access and ad rep services are separate services. The district
court assumed they are. On this record, that was correct.
The fact that buyers may wish to purchase and use two
complementary products together does not, in and of itself,
convert the two separate products into a single product. Ra-
ther, the market must “be assessed at the pre-contract rather
than post-contract stage.” Areeda & Hovenkamp ¶ 1802d6, at
89, citing Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320
(1961); see also id. ¶ 1802d6, at 88 (noting that a “grouping of
sales covered by [a single] contract does not become a relevant
74 No. 18-2852
market for that reason”). In this case, RCN and WOW! viewed
the services as separate prior to entering into their present
contracts with Comcast.
Interconnect services and ad rep services are different
functionally, as already described at length. See above at
pages 10–24. To summarize, a provider of Interconnect ser-
vices bundles and re-sells ads from multiple MVPDs in a re-
gional market. An ad rep has a more direct relationship with
an MVPD, directly representing it in regional and/or local ad
sales, and potentially acting as its representative with an In-
terconnect. The “character of the demand” for the two ser-
vices also differs, as demonstrated by how the market partic-
ipants have sold and purchased the services. See Jefferson Par-
ish, 466 U.S. at 19–21. Viamedia has offered only ad rep ser-
vices for almost two decades. Comcast formerly offered the
two services separately in the relevant DMA geographic mar-
kets. It continues to offer them separately in other DMAs.
MVPDs like Comcast that also operate Interconnects “often
have separate salespeople selling local advertising and selling
Interconnect advertising.” DA650. And the other alleged vic-
tims of Comcast’s tying conduct—its smaller MVPD compet-
itors—previously purchased these services separately and, as
shown above, expressed strong interest in continuing to do so
when Comcast was forcing them to buy the two together in
Chicago, Detroit, and Hartford.
Comcast’s claim that the two services are not distinct is
also flatly inconsistent with one of Comcast’s primary argu-
ments on the next factor. In arguing that it did not force the
MVPDs to buy its ad rep services, Comcast points to other
DMAs where it sells Interconnect services separately. Even if
there might be a viable factual dispute on whether it is
No. 18-2852 75
possible to consider these two services a single “unified mar-
ket,” which we doubt, that would be at minimum a question
to “be resolved by the trier of fact.” Eastman Kodak, 504 U.S. at
463. Comcast is not entitled to summary judgment on this
ground.
iii. Forced Purchase
Ample evidence shows that Comcast conditioned
MVPDs’ access to the Interconnects on hiring Comcast as
their ad rep. Internal Comcast documents indicate that it
ended its relationship with Viamedia specifically to obtain
full-turnkey deals with the MVPDs. A216 n.84. Internal
WOW! emails show that its executives understood that
WOW! would have to hire Comcast for ad rep services if it
wanted to regain access to the Interconnects. A215 n.81. RCN
testified to the FCC that “Comcast will only allow RCN to join
the interconnects if RCN employs Comcast spotlight instead
of Viamedia.” Id. A Comcast employee working in the Chi-
cago and Detroit markets testified to the Department of Jus-
tice that Comcast had a business practice that “if an MVPD
wants to get access to a Comcast [Spotlight] controlled Inter-
connect, it has to hire Comcast [Spotlight] as its ad sales rep-
resentative.” Id., A835. And a Comcast employee responded
to the question “were you also clear … that Comcast Spotlight
was interested only in a turnkey deal?” with “Direct relation-
ship, full turnkey, yes, we made that clear to [WOW!].” A811.
Both Comcast and the partial dissent offer explanations and
rationales to try to defang these unusually explicit pieces of
evidence. See Post at 136–37. On review of summary judg-
ment, of course, Viamedia is entitled to the benefit of reason-
able inferences and interpretations in its favor. The opposing
76 No. 18-2852
arguments are suitable for a trial but are not grounds for af-
firmance.
A jury could easily find that Comcast improperly forced
the smaller MVPDs to buy its ad rep services using its monop-
oly in the Interconnect services market. The entire purpose of
its refusal to deal with Viamedia—conceded repeatedly by
Comcast—was to force RCN and WOW! to become full-turn-
key clients for ad rep services. A789. Every party involved un-
derstood that this was the practical effect of banning from the
Interconnects MVPDs that received ad rep services from Vi-
amedia.
The fact that the arrangements were structured so that
ownership of the slot avails passed from the MVPDs to Vi-
amedia does not affect this analysis. In applying the antitrust
laws, we care more about economic substance than about
form. See Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752, 760 (1984). Smaller MVPDs do not have their own ad rep
services divisions. As a practical matter, they cannot self-pro-
vide ad rep services and must work with an ad rep to interface
with the Interconnects. Given these dynamics, Viamedia of-
fered sufficient evidence that Comcast explicitly used its con-
trol over the Interconnects to deny access to its competitor
MVPDs or their agent to force RCN and WOW! to use Com-
cast’s ad rep services for all spot avails, including the two-
thirds of spot avails sold outside of the Interconnects, many
of which used to be sold locally in competition with Comcast.
See Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264, 272
(6th Cir. 2015) (“When a defendant adopts a policy that makes
it unreasonably difficult or costly to buy the tying product
(over which the defendant has market power) without buying
the tied product from the defendant, it ‘forces’ buyers to buy
No. 18-2852 77
the tied product from the defendant and not from competi-
tors.”); Microsoft, 253 F.3d at 64 (liability appropriate where
monopolist bars rival from “cost-efficient” means of distribu-
tion even if some means of distribution remain open).17
Because this is not a typical bundling case, Comcast’s and
the partial dissent’s reliance on Aerotec Int’l, Inc. v. Honeywell
Int’l, Inc., 836 F.3d 1171 (9th Cir. 2016), is misplaced. In that
case, the plaintiff purchased Honeywell’s replacement parts
and then “bundle[d] parts and repairs in an effort to woo” the
ultimate airline customers, in part reselling defendant’s prod-
ucts. Id. at 1176. Moreover, Aerotec presented no evidence
that Honeywell “explicitly or implicitly” tied or conditioned
the sale of the tying product of parts to the ultimate airline
customers’ purchase of the tied product of maintenance. Id. at
1179. The court found compelling that “Honeywell allows
17 The partial dissent insists that that there was no conditioning and
that “RCN and WOW! maintained the ability to deal directly with Com-
cast and access the Interconnect without any ad representative should
they choose not to employ Comcast.” Post at 118–19 This is wrong as a
matter of fact. As described above, every party involved—Comcast, RCN,
and WOW!—understood that RCN and WOW! would be unable to access
the Interconnects unless they hired Comcast to provide ad rep services.
Even though its reasoning relies on the possibility that RCN and WOW!
could access the Interconnects without Viamedia or Comcast, the partial
dissent points to no evidence supporting that possibility. The record con-
tains evidence of the opposite: RCN and WOW! needed to employ an ad
rep services provider, and once Comcast refused to deal through their cho-
sen intermediary, they had no practical choice but to obtain ad rep services
from Comcast. As described above, substantial evidence shows that both
RCN and WOW! understood themselves to be forced by Comcast into
purchasing its ad rep services. A215 n.81. We cannot affirm summary
judgment by overlooking that evidence about the realities of the parties’
dealings and the economic realities of the market.
78 No. 18-2852
airlines to purchase parts and services in separate transac-
tions from whichever supplier they please.” Id. But Viamedia
is not a bundler. It has presented substantial evidence of an
explicit tie, and its former customers could not separately ob-
tain Interconnect access.
There are other fundamental differences between the
product offered in Aerotec and the one offered here. Honey-
well sold airplane parts and repair services. Comcast, by con-
trast, operates a platform that is necessarily cooperative. RCN
and WOW! are not just potential customers of Comcast as the
airlines were potential customers of Honeywell. They are also
Comcast’s rivals in the retail cable market. Because self-
providing ad rep services was not a viable option for RCN
and WOW!, refusing to deal with their chosen intermediary
had the effect of forcing them into much less desirable direct
relationships with Comcast, their monopolist-competitor. Vi-
amedia has presented evidence that the MVPDs were reluc-
tant to be forced into their more powerful rivals’ arms. A886–
87. There was no evidence in Aerotec that the airlines felt sim-
ilarly threatened, that providing repairs in-house was eco-
nomically infeasible, or that the airlines viewed Honeywell as
a necessary intermediary.
Comcast’s reliance on It’s My Party, Inc. v. Live Nation, Inc.,
811 F.3d 676 (4th Cir. 2016), is even further off-base. That case
involved “a world of robust market competition where [the
ultimate customers] were free to take a package deal of pro-
motion and venues, free to purchase those products sepa-
rately, free to turn down both, and where they in fact exer-
cised all those options to their advantage.” Id. at 687. That
does not bear even a passing resemblance to the markets here.
No. 18-2852 79
The district court’s holding that Viamedia failed to offer
evidence of forcing was premised on three assumptions: first,
that the refusal-to-deal claim was correctly dismissed; second,
that Viamedia acted as a reseller of Interconnect services ra-
ther than as the MVPD’s agent for Interconnect access; and
third, that RCN and WOW! could have purchased Intercon-
nect-only access separately. Viewing the record as a whole, as
we must, we disagree. We address each assumption in turn.
First, the district court acknowledged Viamedia’s evi-
dence that Interconnect access was conditioned on the pur-
chase of Comcast’s ad rep services. Yet the court discounted
this evidence because such a condition could be explained by
Comcast’s “legal refusal to deal” rather than “an illegal ty-
ing.” 335 F. Supp. 3d at 1061. This analysis fails on its own
terms. As described above, Viamedia alleged a prima facie re-
fusal-to-deal claim. Such potentially illegal conduct cannot
justify Comcast’s related tying of Interconnect services to ad
rep services, and more fundamentally, a tying claim does not
fail as a matter of law simply because it was implemented by
refusing to deal with an intermediary.
Second, the district court conflated access to the coopera-
tive Interconnects, formerly granted uniformly to competing
MVPDs or their ad rep services agents, with the Interconnect
services themselves. The district court’s conclusion that the
MVPDs wanted a single entity to “make available to them
both Interconnect Services and Ad Rep Services” is simply
wrong as a matter of fact. Before Comcast excluded Viamedia,
RCN and WOW! received Interconnect services from Com-
cast and ad rep services separately from Viamedia. The district
court misunderstood Viamedia to be a reseller of Interconnect
services as part of a bundle that included ad rep services, and
80 No. 18-2852
concluded there was no impermissible tying simply because
Viamedia “could not offer that bundle” any longer due to
Comcast’s (supposedly) legal refusal to deal with Viamedia.
335 F. Supp. 3d at 1058 n.12. That characterization does not
have a factual basis in the record, and it is certainly not be-
yond reasonable factual dispute. Even Comcast characterized
Viamedia not as a reseller of Interconnect services but as a re-
seller of MVPD spot avails to the Interconnect operator.
DA638. Comcast’s characterization of ad rep services—in-
cluding its own ad rep services provided to customer/com-
petitor MVPDs—as reselling spot avails and disconnected
from its MVPDs customers’ best interests is troubling in its
own right, but we return to that below. Neither the district
court’s nor Comcast’s characterization of Viamedia’s role was
accurate.
As an ad rep services provider, Viamedia acted in the best
interests of its MVPD customers and served as their agent or
interface with the Comcast-controlled Interconnects for the
one-third of MVPD spot avails that they sold cooperatively—
not competitively—on a regional, DMA-wide basis. The dis-
trict court acknowledged as much elsewhere in its opinion,
explaining that MVPDs view “themselves as receiving Inter-
connect Services from interconnect operators (like Comcast)
even when they have hired an unaffiliated Ad Rep (like Vi-
amedia) on a full-turnkey basis.” 335 F. Supp. 3d at 1058 n.10.
We agree with the district court’s latter characterization.
Third, in considering the summary judgment evidence,
the district court drew inferences in favor of Comcast in con-
cluding that RCN’s and WOW!’s purchases of Interconnect
services and ad rep services from Comcast were not forced. It
did not credit RCN’s and WOW!’s reasonable understanding
No. 18-2852 81
that Comcast was tying Interconnect services to ad rep ser-
vices. The court (1) read Comcast’s statements as more ambig-
uous than they actually were; (2) concluded that, because the
MVPDs ultimately purchased Comcast’s ad rep services, they
must have wanted both services to be provided by Comcast;
and (3) pointed to out-of-market evidence to infer that Com-
cast would have offered an Interconnect-only deal if only
RCN and WOW! had asked for one. This analysis departed
from summary judgment standards in several respects.
Even if Comcast’s statements had been ambiguous, a
plaintiff does not need an express, written declaration of a
proposed tying arrangement. A sale on the announced or im-
plied condition that the buyer purchase the tied goods from
the seller ordinarily satisfies the tying-agreement require-
ment. Areeda & Hovenkamp ¶ 1754b–c, at 315–20. Although
it is not enough for the services to be merely complementary,
a seller is not immunized from a tying claim if there is a fac-
tual dispute as to whether the buyer wished to purchase the
tied service (here ad rep services) from the defendant with
market power in the tying service market (here Interconnect
services). The MVPDs’ ultimate decisions, after much finan-
cial pain, to sign with Comcast for ad rep services do not dis-
prove an illegal tie. (And notably, in Hartford, Frontier has
continued to resist signing with Comcast for ad rep services
and remains cut off from the Interconnects.) After all, “the
great majority of tying and exclusive-dealing provisions that
exclude rivals are engaged in by one market-dominating
party and one party that is ‘innocent’ in the sense that it can-
not profit from monopoly in the market, but is agreeing to the
exclusivity only at the behest of the other party.” Areeda &
Hovenkamp ¶ 1803a, at 107 n.5.
82 No. 18-2852
Finally, the district court incorrectly inferred from the fact
that Comcast offers Interconnect-only access in other local
markets that RCN and WOW! could have obtained Intercon-
nect-only access if only they had asked. That reasoning denies
the non-moving party the benefit of reasonable inferences
from the evidence. It also overlooks the evidence showing
that in-house provision of ad rep services simply was not a
practical option for RCN or WOW! in these markets.
More specifically, the evidence from other markets actu-
ally supports Viamedia’s case, not Comcast’s defense. It is un-
disputed that competition takes place within metropolitan
(DMA) markets. If an advertiser wishes to purchase advertis-
ing time in the Chicago DMA, buying a spot avail in New Or-
leans is not an adequate substitute. Similarly, if Comcast was
not permitting RCN an Interconnect-only deal in Chicago, an
Interconnect-only deal in Denver was not an adequate substi-
tute. And we summarized above at pages 24–35 the evidence
indicating that RCN and WOW! did not willingly agree to
Comcast’s terms.
The Interconnect-only arrangements that Comcast offered
in other DMAs, where it did not have (or exercise) so much
market power, help Viamedia. Those arrangements show that
Interconnect and ad rep services are indeed separate prod-
ucts. They need not be sold together. At the same time, Com-
cast’s willingness to offer Interconnect-only access in other
DMAs may reflect that Comcast does not have an overlapping
footprint—i.e., does not compete—in those markets. In con-
trast, the evidence could support a finding that in Chicago,
Detroit, and Hartford, Comcast tied Interconnect services to
ad rep services to exclude its competitor in ad rep services and
thereby force its MVPD competitors into its not-so-tender
No. 18-2852 83
arms. See Areeda & Hovenkamp ¶ 1744g, at 198–99 (explain-
ing that bundling in non-competitive markets does not neces-
sarily provide insight into whether a tie is efficient rather than
reflective of increased market power exploitation, while un-
bundling in competitive markets likely reflects efficiencies). In
drawing inferences in favor of the non-moving party, we
must also recognize the possibility that Comcast was testing
the waters in Chicago, Detroit, and Hartford with an eye to-
ward expanding its tying demands to other markets if it is not
held accountable.18
Outside of the district court’s inconclusive comparison of
other, more competitive markets, there was no basis in the
record to support Comcast’s speculation that if RCN and
WOW! had just asked once more, Comcast would have aban-
doned its strategic plan and agreed to standalone Chicago
and Detroit Interconnect access. To make such an inference,
we would have to assume that the MVPDs went several years
without access to the Interconnects, lost millions of dollars in
advertising revenue, complained to Comcast and federal reg-
ulators, and then chose the ad rep services provider that they
least preferred, all because of a mere misunderstanding.
18 The partial dissent incorrectly looks to arrangements in other geo-
graphic markets to draw conclusions about forcing in the relevant mar-
kets. Post at 132–33. The ad rep services and Interconnect markets are dis-
tinct for each DMA. Viamedia’s tying allegations and evidence focused on
Comcast’s conduct in Chicago, Detroit, and Hartford. The fact that Com-
cast did not simultaneously monopolize or attempt to monopolize ad rep
services in other geographic markets is not a defense to its monopolization
of Chicago, Detroit, and Hartford. The dissent’s only support for its novel
market-aggregating approach comes from a calculation of profit sacrifice
in Novell, 731 F.3d at 1077, which has nothing to do with market definition
or tying. See post at 133.
84 No. 18-2852
Comcast is free to offer this misunderstanding theory at trial,
but the theory cannot support summary judgment. We re-
verse summary judgment for Comcast on Viamedia’s tying
claim.
C. Section 2 Monopolization: Harms, Efficiencies, & Remedies
Undisputed geographic markets, service markets, and
market power make this case unusual. In addition, Viamedia
has offered sufficient evidence to demonstrate prima facie
claims for monopolization of the ad rep service markets in
three DMAs through refusal to deal and tying. Comcast’s ac-
tions also forced a new, intimate, and unwelcome relationship
upon its smaller MVPD competitors. If credited, that evidence
will shift to Comcast the burden to prove what would need to
be some dazzling procompetitive benefits to justify its con-
duct. We set out below considerations for the district court to
consider in the rule of reason analysis it will have to conduct
on remand.
1. Harm to Competition
The potential harm in this case from Comcast’s refusal to
deal and tying ripples outward. Prior to Comcast’s conduct,
there was competition in three related markets: (1) between
Comcast and other MVPDs for subscribers; (2) between Vi-
amedia and Comcast in ad rep services; and (3) between Com-
cast and other MVPDs for the sale of spot avails in the local
DMA market. By forcing out its only competitor in the market
for ad rep services and forcing its MVPD competitors to turn
over 100% of their spot avails, Comcast eliminated competi-
tion in the market for ad rep services and the market for the
sale of local spot avails. At the same time, it gained the ability
No. 18-2852 85
to impair competition in the market for MVPD subscribers.
These harms to competition are prototypical antitrust harms.
a. Ad Rep Services
The ad rep services market went from two service provid-
ers to a single, monopolist provider. With no other ad rep ser-
vices providers, the elimination of Viamedia unquestionably
harmed competition. The harms that typically flow from a
competitive market shifting to total control by a monopolist
include potentially higher prices, lower output, and reduced
innovation. The market at issue here may not have had time
to show ultimate effects from total foreclosure. But Comcast
is forthright about the fact that it has refused to allow Viame-
dia entry into other DMAs. Appellees’ Br. at 35–36. The DMAs
that have never had a competitive ad rep services market may
provide useful comparison points to the relevant DMAs here,
which are still governed by contracts that were signed while
Viamedia was still trying to compete with Comcast.
b. The MVPD Market: MVPDs, Advertisers, Cable
Subscribers
Recall that the MVPDs faced three possible scenarios
when Comcast refused to deal with Viamedia and then con-
ditioned the MVPDs’ access to the Interconnects on the
MVPDs turning over all of their spot avails to Comcast’s ad
rep services arm. Above at pages 31–35. Each scenario en-
tailed its own potential harm to competition.
The MVPDs elected the first scenario, giving in to Comcast
and signing up for its ad rep services. To summarize, this ar-
rangement has resulted in:
 Comcast’s smaller MVPD rivals contributing addi-
tional revenue toward their dominant competitor;
86 No. 18-2852
 MVPDs turning over to Comcast the majority of
spot avails they had formerly kept out of the Inter-
connects, a large portion of which are allocated to
local ads (for which the MVPDs formerly competed
against each other);
 RCN and WOW! being forced to trust that their
dominant, incumbent cable rival Comcast will
make ad sales decisions in the smaller competitors’
best interests, despite Comcast’s divided loyal-
ties—as it is more profitable for Comcast to place
ads in ways that are different from how RCN and
WOW! might allocate them;
 Comcast gaining access to its competitor MVPDs’
competitively sensitive information, including
number and location of subscribers, ad sales, pro-
motional ad materials to current and potential sub-
scribers (including promotions trying to get cus-
tomers to switch away from Comcast);
 And it is not just the MVPDs that have been
harmed. Comcast is now the only seller of spot
avails in the local market. As Viamedia’s counsel
noted at oral argument, local advertisers used to
have several outlets to choose among at various
price points when buying spot avails. Comcast is
now their only-stop-shop, as well.
And recall that this was the MVPDs’ least-bad choice—the
one they chose when Comcast denied them their best option.
Comcast and the district court hypothesized that Comcast
was not actually barring competing MVPDs completely from
Interconnect access. The hypothesis was instead that Comcast
No. 18-2852 87
would have permitted the MVPDs to have Interconnect-only
access without using either Viamedia’s or Comcast’s ad rep
services. In this scenario, Comcast would lose ad rep services
revenue, but would not lose millions from forgoing Intercon-
nect access fees and from its own spot avails being less valua-
ble when placed through a degraded Interconnect.
But contrary to what the district court seemed to assume,
this result still would have been harmful. Forcing RCN and
WOW! to forsake the benefits they had gained by outsourcing
ad sales to an independent Viamedia would have dramati-
cally raised their costs. RCN and WOW! would have needed
to hire staff, purchase technology, and pay for services that
Viamedia had previously provided at lower cost. Those fixed
costs would have been difficult for those MVPDs to afford, as
shown by the fact that the option was always available in the-
ory, and they never took it, and as shown by RCN’s filing with
the FCC and WOW!’s internal emails. A215 n.81.
In the other possible scenario, RCN and WOW! could con-
tinue working with Viamedia for ad rep services, but Comcast
would continue barring them from the cooperative Intercon-
nects. If the MVPD competitors had made that choice, they
would have remained cut off from a large percentage of their
advertising revenue.
Any loss of revenue or higher costs from these scenarios is
not just a loss for competitors. It leads to a negative feedback
loop in the market in which the MVPDs compete for cable
subscribers, further harming competition. Higher costs and
less advertising revenue lead to fewer promotional offers to
subscribers and reduced expansion. See FCC 2007 Report and
Order at 8 ¶ 13 (“Revenues from cable services are, in fact, a
driver for broadband deployment,” i.e., the build-out of
88 No. 18-2852
additional cable infrastructure). This in turn hampers RCN
and WOW! from obtaining new cable subscribers or retaining
the subscribers they already have (who may switch to Com-
cast). With a weakened RCN and WOW!, Comcast benefits
further by not needing to offer the promotions it otherwise
would have if it faced a more vibrant RCN or WOW!
To the extent that cable subscribers are left with higher
priced and lower quality services and competition has been
eliminated in the market for the sale of local spot avails, a trier
of fact would have to account for that additional anticompet-
itive harm.
c. Back to the Interconnects
Comcast’s conduct also turned a previously procompeti-
tive platform into a weapon to decrease competition in related
markets. As originally conceived and implemented, the Inter-
connects appear to have been comfortably on the “reasona-
ble” side of a rule of reason analysis for such cooperative ven-
tures among competitors. See generally Broadcast Music, Inc.
v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). Com-
cast has described the Interconnects in these procompetitive
terms, as a “collection of two or more cable TV systems that
work together to distribute commercials to a wider geo-
graphic area than a single system would otherwise reach, giv-
ing advertisers the option to reach all cable households within
a market with one buy.” First Am. Cplt. ¶ 156. Consistent
with that description, Comcast itself has told the FCC that
“the revenue share in an interconnect is often the same for all
participants, and fairly standardized across interconnects.”
Opposition to Petitions to Deny and Response to Comments
at 279 n.883, In the Matter of Applications of Comcast Corp., Time
Warner Cable Inc., et al. for Consent to Assign or Transfer Control
No. 18-2852 89
of Licenses and Authorizations, FCC MB Docket 14-57 (Sept. 23,
2014) (Comcast 2014 FCC Response). Which is as it should be
if this cooperative mechanism is procompetitive rather than a
weapon to inflict anticompetitive harm.
In congressional hearings on its proposed merger with
TimeWarner Cable, Comcast highlighted the non-exclusion-
ary nature of the Interconnects. A Comcast executive was sent
to testify to a congressional committee about the proposed
purchase. Much of the concern focused on the potential
power of a combined Comcast/TimeWarner Cable to harm
other content providers who relied on access to cable compa-
nies’ “pipes” into the home (e.g., Netflix, YouTube). One Rep-
resentative, however, asked about Comcast’s actions with the
Interconnects it controlled.
Comcast executive vice president David Cohen was asked
to “provide assurances that Comcast will not exclude compet-
itors or advertising firms from the advertising interconnects
that Comcast operates.” Cohen replied, “We are not in the
business of excluding businesses who want to buy advertising
from us.” Cohen was again pressed: “So your short answer is
that you are not going to exclude competitors or advertising
… [f]rom the interconnects.” “Correct.” According to Viame-
dia’s evidence, however, Comcast was in the midst of doing
just what Cohen was denying.19
19 Comcast abandoned the Time/Warner transaction after investiga-
tions by federal enforcement and regulatory agencies. The government’s
“significant concerns” about the merger were focused on the likelihood
that it “would make Comcast an unavoidable gatekeeper for Internet-
based services that rely on a broadband connection to reach consumers.”
DOJ Press Release, Comcast Corporation Abandons Proposed Acquisition of
Time Warner Cable After Justice Department and Federal Communications
90 No. 18-2852
In this lawsuit, moreover, Comcast now argues that its
control over the cooperative Interconnects is the source of its
competitive advantage. If that were correct, it would call into
question the legality of the Interconnects themselves. Anti-
trust law is rightly skeptical of mechanisms that permit com-
petitors jointly to set prices and other terms of dealing. Col-
laboration between actual or potential competitors “can be
rife with opportunities for anticompetitive activity.” American
Society of Mech. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556,
571 (1982).
Based on Comcast’s portrayal and use of the Interconnects
in this suit, such skepticism is now warranted. The govern-
ment antitrust enforcement agencies provide guidance on
competitor collaborations. A number of the factors that show
anticompetitive effect appear to be met by the Interconnects
as now portrayed by Comcast. The factors include whether the
collaboration may:
 “[L]imit independent decision making or combine
the control of or financial interests in production,
key assets, or decisions regarding price, output, or
other competitively sensitive variables;”
 “[O]therwise reduce the participants’ ability or in-
centive to compete independently;”
 Potentially “facilitate[] explicit or tacit collusion
through facilitating practices such as the exchange
Commission Informed Parties of Concerns (Apr. 24, 2015), at http://www.jus-
tice.gov/opa/pr/comcast-corporation-abandons-proposed-acquisition-
time-warner-cable-after-justice-department (last visited on Feb. 21, 2020).
No. 18-2852 91
or disclosure of competitively sensitive information
or through increased market concentration;”
 “Successfully eliminate[] procompetitive pre-col-
laboration conduct, such as withholding services
that were desired by consumers when offered in a
competitive market.”
Federal Trade Commission and United States Department of
Justice, Antitrust Guidelines for Collaborations Among Competi-
tors § 2.2, at 6, § 3.31, at 12 (April 2000) (Collaboration Guide-
lines). Check, check, check, and check.
These red flags were not raised by the truly cooperative
original concept of the Interconnects. Having taken control of
at least some Interconnects, though, Comcast now has the
ability—and now even claims the right—to use the mecha-
nism as a source of its competitive advantage over rivals, dis-
torting competition in related markets. The use of the Inter-
connects to take control of and set prices for competitors’ local
ads does not appear related to accomplishing the Intercon-
nects’ procompetitive goals. These facts weigh against Com-
cast, not for it.
2. Procompetitive Justifications?
The potential harms stemming from Comcast’s conduct
will not lead to Section 2 liability if Comcast proves that its
monopoly in ad rep services “is a consequence of a superior
product, business acumen, or historic accident,” or if its con-
duct was the result of, or necessary to achieve, much greater
procompetitive benefits. United States v. Grinnell Corp., 384
U.S. 563, 571 (1966); see also Areeda & Hovenkamp ¶ 650c, at
94–95. The procompetitive benefits typically recognized in an-
titrust law include evidence of “higher output, improved
92 No. 18-2852
product quality, energetic market penetration, successful re-
search and development, cost-reducing innovations, and the
like.” Areeda & Hovenkamp ¶ 651d, at 119.20 As this issue
must also be decided by a trier of fact on remand, we offer
some observations.
a. The Interconnects
We start with Comcast’s monopoly control over the Inter-
connects in Chicago, Detroit, and Hartford, which Comcast
has identified as the source of its competitive advantage that
permitted it, in turn, to gain monopoly control over ad rep
services. It appears that the only skill and foresight demon-
strated by Comcast in obtaining monopoly control over the
Interconnects was its ability to acquire a multitude of other
cable MVPD providers without facing a challenge from gov-
ernment antitrust enforcers. Comcast’s acquisitions are not in
and of themselves evidence of superior skills, services, or ac-
cident.
What Comcast now identifies as a source of competitive
advantage was produced by the kind of mergers that the
agency Merger Guidelines describe as anticompetitive. The
Guidelines identify as their “unifying theme” the proposition
that “mergers should not be permitted to create, enhance, or
20“As a general matter, the evidence supporting a prima facie case
need not be as specific as the evidence supporting a procompetitive justi-
fication” because “[i]f the defendants have a procompetitive justification,
it must have been a motivating factor for the restraint, and the defendants
should be able to establish it rather easily.” Herbert J. Hovenkamp, The
Rule of Reason, 70 Fla. L. Rev. 81, 107 (2018); see also id. at 110 (“To the
extent that the defendants’ expectation of profit came from something
other than a restriction of competition, they should have evidence and are
in the best position to provide it.”).
No. 18-2852 93
entrench market power or facilitate its exercise” by “enhanc-
ing [a firm’s] market power.” § 1, at 2. One example of an an-
ticompetitive merger is directly on point:
Merging Firms A and B operate in a market in
which network effects are significant, implying
that any firm’s product is significantly more val-
uable if it commands a large market share or if
it is interconnected with others that in aggregate
command such a share. Prior to the merger,
they and their rivals voluntarily interconnect
with one another. The merger would create an
entity with a large enough share that a strategy
of ending voluntary interconnection would have a
dangerous probability of creating monopoly power in
this market. The interests of rivals and consum-
ers would be broadly aligned in preventing
such a merger.
Merger Guidelines § 2, at 6 (emphasis added). Comcast can-
not now justify exclusionary conduct by pointing to control
over the Interconnects, which was acquired through mergers
that themselves may have been anticompetitive precisely be-
cause of the risk that they could enable Comcast’s exclusionary con-
duct.
b. The Ad Rep Services Market
Comcast’s new monopoly position in the ad rep services
markets in Chicago, Detroit, and Hartford, if we draw reason-
able inferences in favor of Viamedia, is a result not of its su-
perior services but of its exclusionary conduct. Any claimed
benefits from that conduct must be procompetitive and not
simply the result of eliminating competition. For example, if
94 No. 18-2852
Comcast has reduced advertising, promotions, or other incen-
tives that it previously offered to customers or local retailers
when competing with Viamedia, those savings would repre-
sent harm to competition. See Covad Communications Co. v. Bell
Atlantic Corp., 398 F.3d 666, 674 (D.C. Cir. 2005), citing Bork,
Antitrust Paradox at 314. Similarly, any savings gained by for-
going investments in research and development, infrastruc-
ture, or sales personnel, that otherwise would have been
made under competitive conditions are properly categorized
as harm to competition, not benefits. Finally, any defense
premised upon the proposition that competition itself is inef-
ficient, unreasonable, or confusing is not cognizable. See Na-
tional Society of Professional of Engineers v. United States, 435
U.S. 679, 696 (1978).
Viewing the facts in the light most reasonably favorable to
Viamedia, Comcast’s procompetitive justifications seem to
fall into this latter category. If Comcast could offer improved
efficiencies by offering ad rep services and Interconnect ser-
vices together to MVPDs, it was always free to do so. If this
were the case, it could have passed on some of those savings
to MVPD customers and possibly outcompeted Viamedia. Re-
fusing to deal with the MVPD’s representative of choice ap-
pears to be an attempt to avoid competition on the merits in
the markets for ad rep services.
On the procompetitive side of the ledger, evidence of re-
duced pricing could offset harm—although current contracts
may not yet reflect ultimate post-competition pricing. They
were signed when Comcast was still bidding against Viame-
dia. And while protection against free-riding is generally rec-
ognized as a procompetitive goal, “[w]hen payment is possi-
ble, free-riding is not a problem because the ‘ride’ is not free.”
No. 18-2852 95
Chicago Prof’l Sports Ltd. Partnership v. NBA, 961 F.2d 667, 675
(7th Cir. 1992); see also Hovenkamp, The Rule of Reason, 70 Fla.
L. Rev. at 111, 113 (“Often instances of claimed free riding are
really complaints about competition, particularly when there
are joint costs,” and “complete market exclusion is a suspi-
ciously excessive remedy for claimed free riding, even where
a certain amount of free riding actually occurs.”). If Comcast
has evidence of truly procompetitive benefits, it should sub-
mit that evidence to the trier of fact. But the hypotheses it has
offered thus far do not entitle it to summary judgment.
3. Remedies
Comcast’s final defense focuses on the challenge of reme-
dying its conduct. After all, Comcast points out, “Courts are
ill suited ‘to act as central planners, identifying the proper
price, quantity, and other terms of dealing.’” Pacific Bell Tele-
phone Co. v. Linkline Communications, Inc., 555 U.S. 438, 452
(2009), quoting Verizon Communications Inc. v. Law Offices of
Curtis V. Trinko, 540 U.S. 398, 408 (2004). Call this the “So
what?” defense.
We agree that a court should not “impose a duty to deal
that it cannot explain or adequately and reasonably super-
vise.” Linkline, 555 U.S. at 452–53, quoting Trinko, 540 U.S. at
415. Yet courts are often called upon to undertake compli-
cated, long-term supervision of complex cases and remedies.
The judiciary need not and should not adopt a posture of
learned helplessness in the face of proven antitrust violations.
For example, courts regularly preside over dozens, if not hun-
dreds or even thousands, of related cases in multidistrict liti-
gation that present complicated questions of liability, not to
mention supervising and implementing remedies over years
if not decades. See, e.g., MDL 875 In re: Asbestos Products
96 No. 18-2852
Liability Litigation (No. VI) (overseeing thousands of asbestos
cases, including class actions, since 1991). Courts oversee the
bankruptcy process for companies with complicated corpo-
rate structures and far-flung assets, supervising sales of those
assets worth hundreds of billions of dollars. See, e.g., In re Leh-
man Brothers Holdings, Inc., Case No. 08-13555 (Bankr.
S.D.N.Y.). And of course federal courts currently supervise at
least 115,000 individuals on supervised release, implementing
difficult-to-monitor and intrusive conditions limiting those
individuals’ jobs, the family and friends they can see, their
drug and alcohol consumption, and locations to which they
can travel, among others—all enforced through routine inter-
views of family and associates, electronic monitoring, drug
tests, and random searches. Administrative Office of the
United States Courts, Overview of Probation and Supervised Re-
lease Conditions 42–93 (Nov. 2016). In this antitrust case, we are
not yet ready to cry “uncle” by affirming dismissal based on
the unsubstantiated claim that this case poses “insoluble ad-
ministrability problems.”
In any event, this defense puts the cart before the horse.
The trier of fact must first evaluate the evidence and deter-
mine whether Comcast’s procompetitive justifications out-
weigh the anticompetitive harms from its conduct. If Comcast
is found liable, the district court will then face a decision
about appropriate remedies. That will be the time to face the
practical problems Comcast hypothesizes.
The record thus far offers reasons to think the problems
would be manageable. Comcast and Viamedia did business
voluntarily, presumably on profitable terms for both. That
history may well simplify the problems. As then-Judge Gor-
such wrote for the Tenth Circuit in Novell, evidence of that
No. 18-2852 97
earlier course of dealing “helps address, at least to some de-
gree, administrability concerns—presumably profitable
terms already agreed to by the parties may suggest terms a
court can use to fashion a remedial order without having to
cook them up on its own.” 731 F.3d at 1075.
Moreover, Comcast itself told the FCC that this should not
be an insoluble problem. It told the FCC that “the revenue
share in an interconnect is often the same for all participants,
and fairly standardized across interconnects.” Comcast 2014
FCC Response at 279 n.883. Such comparison points (both
within a given Interconnect and against other Interconnects in
which Comcast sells or buys Interconnect-only access) may be
used to establish a remedy that addresses pricing.
That being said, “Antitrust courts normally avoid direct
price administration, relying on rules and remedies … that
are easier to administer.” Linkline, 555 U.S. at 453, quoting
Concord v. Boston Edison Co., 915 F.2d 17, 25 (1st Cir. 1990)
(Breyer, C.J.). If a pricing remedy proves too complicated,
then structural remedies may be preferable. See, e.g., Areeda
& Hovenkamp ¶ 600b, at 4 (even “[m]ildly reprehensible be-
havior might be enough to challenge a firm whose power is
significant” and could justify imposing a more substantial
remedy (e.g., “divestiture or dissolution” versus “an injunc-
tion”)).
Comcast knows that courts are capable of overseeing
structural and behavioral remedies (including ones that gov-
ern pricing disputes) that ameliorate competitive concerns. It
agreed to such an arrangement as a condition for court ap-
proval of its challenged 2009 merger with NBC Universal.
United States v. Comcast Corp., 808 F. Supp. 2d 145, 147–48
(D.D.C. 2011) (Comcast agreeing to certain remedies to
98 No. 18-2852
prevent anticompetitive conduct post-merger). Such court-
imposed and court-supervised remedies can also be imposed
without a defendant’s consent after a finding of liability. One
obvious possibility would be to prohibit Comcast’s control
over Interconnects, which, in light of the evidence of misuse
of that power to harm competition, raises serious problems
under Section 1 of the Sherman Act.21
D. Antitrust Injury
A private civil plaintiff in an antitrust case must also es-
tablish “antitrust injury,” which requires proof that its
“claimed injuries are of the type the antitrust laws were in-
tended to prevent and reflect the anticompetitive effect of ei-
ther the violation or of anticompetitive acts made possible by
the violation.” Kochert v. Greater Lafayette Health Servs., Inc.,
463 F.3d 710, 716 (7th Cir. 2006) (internal quotation marks and
citations omitted). Viamedia has offered evidence of antitrust
injury.
When a monopolist creates a monopoly in the tied market,
rivals are often excluded from the market, thereby losing mar-
ket share or sales. “In such cases courts ordinarily grant stand-
ing to the excluded or impeded rival.” Areeda & Hovenkamp
¶ 1767a, at 449; see also Brunswick Corp. v. Pueblo Bowl-O-Mat,
Inc., 429 U.S. 477, 490 n.14 (1977) (“[C]ompetitors may be able
to prove injury before they actually are driven from the
21An amicus brief filed in support of Comcast argued that any “relief
for arbitrary refusals to deal should be left to the legislature.” Brief for the
Chamber of Commerce of the United States of America as Amicus Curiae
in Support of Appellees at 25 (internal quotation marks omitted). The
Chamber’s argument that courts should not enforce Section 2 in refusal-
to-deal claims is a policy position—and not one with which we are free to
agree.
No. 18-2852 99
market and competition is thereby lessened. Of course, the
case for relief will be strongest where competition has been
diminished.”). We have also often recognized that competi-
tors suffer antitrust injury when they are forced from the mar-
ket by exclusionary conduct. See, e.g., Tri-Gen Inc. v. Intʹl Un-
ion of Operating Engineers, Local 150, AFL-CIO, 433 F.3d 1024,
1032 (7th Cir. 2006) (“[T]his Court has recognized that com-
petitors can bring an antitrust claim when they are excluded
from the market and injured by defendants’ actions.”); Serfecz
v. Jewel Food Stores, 67 F.3d 591, 597 (7th Cir. 1995) (“When the
plaintiff’s injury is linked to the injury inflicted upon the mar-
ket, such as when consumers pay higher prices because of a
market monopoly or when a competitor is forced out of the market,
the compensation of the injured party promotes the desig-
nated purpose of the antitrust law—the preservation of com-
petition.”) (emphasis added). This rule is integral to an effec-
tive antitrust regime because “the foreclosed rival’s injury is
entirely independent of the amount or existence of any injury
to buyers.” Areeda & Hovenkamp ¶ 1767a, at 449.
The general rule is that customers and competitors in the
affected market have antitrust standing. See Associated General
Contractors, 459 U.S. at 539; McGarry & McGarry, LLC v. Bank-
ruptcy Mgmt. Solutions, Inc., 937 F.3d 1056, 1065–66 (7th Cir.
2019), citing In re Aluminum Warehousing Antitrust Litig., 833
F.3d 151, 158 (2d Cir. 2016), citing in turn Serpa Corp. v.
McWane, Inc., 199 F.3d 6, 10 (1st Cir. 1999) (“Competitors and
consumers in the market where trade is allegedly restrained
are presumptively the proper plaintiffs to allege antitrust in-
jury.”), and SAS of P.R., Inc., v. P.R. Tel. Co., 48 F.3d 39, 45 (1st
Cir. 1995) (“competitors and consumers are favored plaintiffs
in antitrust cases”). Viamedia is not seeking relief based on a
theory that competition should have been reduced. Cf.
100 No. 18-2852
Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. at 488 (rejecting
claim for loss of income that would have been earned if other
competitors had been forced out of the market and competi-
tion had thus been reduced). Instead, Viamedia seeks only an
opportunity for fair competition in the ad rep services mar-
kets, based on the quality and prices of its services. It is an
appropriate plaintiff to seek damages based on exclusionary
conduct that forced it out of that market.
Viamedia claims that Comcast’s exclusionary conduct
drove it from the ad rep services markets in Chicago, Detroit,
and Hartford, thus reducing competition. Viamedia has pre-
sented evidence indicating that if Comcast not tied its sale of
Interconnect services to ad rep services, RCN and WOW!
likely would have continued to obtain ad rep services from
Viamedia. The harm to competition is particularly pro-
nounced since Viamedia was Comcast’s only competitor in in
the relevant markets. To the extent that Comcast engaged in
exclusionary conduct, the evidence indicates that the exclu-
sionary conduct caused Viamedia’s injuries by forcing it from
the ad rep services markets.
The partial dissent expresses great skepticism toward ri-
vals’ antitrust suits and argues that Viamedia cannot show an-
titrust injury on its tying claim. As a general matter, caution is
appropriate. The partial dissent goes astray, however, by con-
tending it is “uncommon” for a “single foreclosed rival” to
have standing in a tying case. Post at 122–23. The leading ty-
ing cases and the leading treatise’s specific, on-point discus-
sion of antitrust standing in tying cases teach otherwise.
The foundational tying cases of the past 40 years were
brought by tied-market rivals. Eastman Kodak, 504 U.S. 451; Jef-
ferson Parish, 466 U.S. 2. The partial dissent cites no case law
No. 18-2852 101
for its assertion that such cases are “uncommon.” It also does
not cite any case in which an excluded rival in the tied market
was found to lack antitrust injury. In the single tying case
cited in the partial dissent’s discussion of antitrust injury, the
plaintiff lacked antitrust injury precisely because she was not
participating in the tied market when the tie was allegedly
implemented. See Kochert, 463 F.3d at 716.
And where Areeda and Hovencamp address antitrust
standing in tying cases, they recognize that standing is appro-
priate in cases like this. Viamedia was competing with Com-
cast in the tied market for ad rep services. It was forced out of
that market in Chicago, Detroit, and Hartford. Areeda and
Hovencamp explain:
Rivals in that market [the tied market] may be
“foreclosed” when their entry or expansion is
impeded or they lose existing market share or
sales. Consumers lose the benefits of any entry,
expansion, competition, or innovation that in-
dependent rivals might have injected into the
tied market. In such cases courts ordinarily grant
standing to the excluded or impeded rival.
¶1767a, at 449–50 (emphasis added); accord, Eastman Kodak,
504 U.S. at 479 (reversing summary judgment for defendant:
market foreclosure in tied market resulting from illegal tying
“is facially anticompetitive and exactly the harm that antitrust
laws aim to prevent”). To the extent that the partial dissent
suggests that the tying conduct at issue is not illegal or exclu-
sionary, that goes to the merits, not to antitrust injury.
The partial dissent also suggests that Viamedia’s injuries
cannot establish antitrust injury because they are the same as
102 No. 18-2852
those alleged from the refusal to deal. Post at 125. This point
also reflects only disagreement on the merits of the tying
claim and the confusion that has stemmed from the different
treatment of the two claims in the district court. Because the
same general course of conduct supports both the refusal-to-
deal and tying claims, the two theories necessarily allege sim-
ilar injuries and damages.
E. Role of Expert Witnesses
The final issue is the admissibility of expert testimony. We
review the district court’s exclusion for an abuse of discretion.
Salgado v. General Motors Corp., 150 F.3d 735, 739 (7th Cir.
1998). If a discretionary ruling is based on an error of law,
though, it can often be deemed an abuse of discretion. E.g.,
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) (Rule
11 sanctions); Ervin v. OS Restaurant Services, Inc., 632 F.3d
971, 976 (7th Cir. 2011) (class certification).
The district court struck Viamedia’s expert testimony
largely based on the view that Viamedia’s claims should fail
as a matter of law. We disagree with the district court’s view
of the law, so we reverse the court’s rulings regarding Viame-
dia’s expert witnesses.22 We address separately the district
court’s ruling regarding a portion of Viamedia’s expert eco-
nomic witness, whom the court perceived as merely offering
“lay” testimony, as well as an objection Comcast has raised on
22 Viamedia offered Dr. Lys as an expert on damages issues. The only
basis for excluding his opinion was that he assumed that Comcast’s con-
duct had violated the antitrust laws and thus caused Viamedia cognizable
harm, and the court had concluded that Viamedia could not legally pre-
vail on its antitrust claims. As we are reversing the district court’s legal
rulings, the court’s exclusion of Dr. Lys’ expert opinion must also be re-
versed.
No. 18-2852 103
appeal that Viamedia failed to offer a causation expert, which
Comcast believes should be fatal.
1. Standard
Expert opinion testimony is admissible if “(a) the expert’s
scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles
and methods to the facts of the case.” Fed. R. Evid. 702. An
expert’s opinion may “overlap[] with the jurors’ own experi-
ences” or “cover matters that are within the average juror’s
comprehension,” so long as the expert uses some kind of
“specialized knowledge” to place the litigated events “into
context.” Lawson v. Trowbridge, 153 F.3d 368, 376 (7th Cir.
1998) (citations omitted); see also United States v. Williams, 81
F.3d 1434, 1441 (7th Cir. 1996) (“All you need to be an expert
witness is a body of specialized knowledge that can be helpful
to the jury.”).
2. Economic Expert Witness
Viamedia offered Dr. Furchtgott-Roth as an expert witness
on the economic rationales of Comcast’s conduct and the
competitive ramifications from such conduct. Setting aside
the district court’s ruling regarding Dr. Furchtgott-Roth’s re-
port based on the court’s legal holdings, the court also ex-
cluded a portion of his testimony as offering only a lay im-
pression of the market and Comcast’s conduct.
Viamedia argues that Dr. Furchtgott-Roth’s undisputed
“specialized knowledge” would be helpful to a jury to place
Comcast’s conduct into context, and that there are some
104 No. 18-2852
complex facts in this case, “including the economic incentives
faced by a set of interrelated firms in the two-sided market for
spot cable advertising,” which are not “obvious to the layper-
son.”
Dr. Furchtgott-Roth clearly drew conclusions through “ex-
pert assessment,” not merely a lay interpretation of the evi-
dence. While he did summarize and repeat some relevant
facts, he drew significantly on expertise to “add something”—
context and supporting information—to the record. Viamedia
contends that its exclusion from the Interconnects furthered
Comcast’s tying policy. Dr Furchtgott-Roth’s opinion that
self-provision is not a viable business option for smaller
MVPDs is an expert interpretation of evidence on a highly rel-
evant factual point. So too is his opinion that Viamedia cannot
make a competitive offer for ad rep services if Comcast con-
ditions its competitor MVPDs’ Interconnect access on forgo-
ing Viamedia’s services. He drew on his expertise to make
these two determinations, both of which required analysis of
market conditions. These opinions informed his broader
opinion that Comcast’s exclusion of Viamedia from the Inter-
connects was integral to its tying conduct. The district court
therefore abused its discretion in concluding that Dr. Furcht-
gott-Roth’s testimony was not significantly informed by his
expertise. It was, and it therefore meets the requirement of
Federal Rule of Evidence 702(a).
3. Lack of Expert Witness on Causation
Comcast also argues that Viamedia’s case must fail be-
cause it has not offered an expert on causation. Hiring another
expert on causation is not a legal requirement for successfully
bringing an antitrust case. Rather than requiring Ҥ 2 liability
[to] turn on a plaintiff’s ability or inability to reconstruct the
No. 18-2852 105
hypothetical marketplace absent a defendant’s anticompeti-
tive conduct,” which “would only encourage monopolists to
take more and earlier competitive action,” courts have in-
ferred causation when a defendant’s conduct “reasonably ap-
pear[s] capable of making a significant contribution to …
maintaining monopoly power.” United States v. Microsoft
Corp., 253 F.3d 34, 78–79 (D.C. Cir. 2001) (en banc) (citation
omitted). To the extent there may be an underlying problem
of proof, “the defendant is made to suffer the uncertain con-
sequences of its own undesirable conduct,” and causation
“queries go to questions of remedy, not liability.” Id. at 79–80
(citation omitted).
Conclusion
Viamedia alleged sufficiently, and at summary judgment
offered sufficient evidence, that Comcast violated Section 2 of
the Sherman Act. Viewing the allegations and evidence in the
light most favorable to Viamedia, Comcast abruptly termi-
nated decade-long, profitable agreements and sacrificed
short-term profits to obtain and entrench long-term market
power, and used its monopoly power in Interconnect services
market to force its MVPD competitors into a relationship that
makes Comcast a gatekeeper of its competitors’ advertising
revenue. This conduct “reveal[s] a distinctly anticompetitive
bent.” Trinko, 540 U.S. at 409, discussing Aspen Skiing, 472 U.S.
585. Comcast is free to contest these issues at trial, as well as
to try to prove and quantify any procompetitive justifications.
The factual disputes in this case are numerous, genuine, and
material. The judgment of the district court is REVERSED and
the case is REMANDED for further proceedings consistent
with this opinion.
No. 18-2852 107
BRENNAN, Circuit Judge, concurring in part and dissenting
in part. The majority opinion is synoptic in its coverage,
deeply researched, and meticulous in its consideration of the
antitrust issues this case presents. It deserves much respect.
While I agree Viamedia has plausibly alleged an antitrust vi-
olation and is entitled to reversal and remand on its refusal-
to-deal claim, I would affirm summary judgment on its tying
claim because the undisputed facts do not present evidence of
an illegal tie. I also respectfully part company with my col-
leagues on some other issues the majority opinion tackles.
The last several decades have brought a new regime to an-
titrust law in the world of exclusionary conduct. Outdated
monopolization doctrines have given way to a sharper and
narrower understanding of what constitutes exclusionary be-
havior under § 2 of the Sherman Act, 15 U.S.C. § 2. See Novell,
Inc. v. Microsoft Corp., 731 F.3d 1064, 1072 (10th Cir. 2013);
United States v. Microsoft Corp., 253 F.3d 34, 49 (D.C. Cir. 2001).
History teaches this new regime promotes competition and
innovation in the marketplace, and it informs the resolution
of the claims and defenses before us now.
I. Refusal to Deal
A 2003 agreement between Viamedia and Comcast
granted Comcast the exclusive right to sell on its Chicago, De-
troit, and Hartford Interconnects advertising availabilities
that Viamedia purchased from multichannel video program-
ming distributors (“MVPD”) WOW! and RCN. Viamedia un-
derstood that, upon the agreement’s expiration, Comcast had
the right to solicit RCN’s and WOW!’s advertising business
directly. The agreement between Viamedia and Comcast ex-
108 No. 18-2852
pired May 31, 2012. The next day Comcast informed Viame-
dia of its intent not to renew their agreement and to seek
RCN’s and WOW!’s business directly.
Comcast “prefers to deal directly with MVPDs, rather
than with intermediaries such as Viamedia, and has found
substantial benefits from direct dealings.” Appellee’s Br. 11.
When their contracts with Viamedia expired in 2015, RCN
and WOW! contracted with Comcast to be their ad repre-
sentative in Chicago and Detroit and sell their availabilities on
its Interconnects. Up to that point, Viamedia’s agreements
with RCN and WOW! prevented them from dealing directly
with Comcast.
Cut out of the deal, Viamedia sued Comcast for allegedly
violating § 2 of the Sherman Act, claiming Comcast’s decision
to end Viamedia’s access to the Interconnects lacked a valid
business reason under Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585 (1985). Specifically, Viamedia al-
leged Comcast’s decision caused Comcast to forfeit fees up-
front and reduced the economic value of the Interconnects.
The allegations do not claim that Comcast’s sacrificed profits
later led to monopoly recoupment.
The district court dismissed Viamedia’s refusal-to-deal
claim. Viamedia, Inc. v. Comcast Corp., 218 F. Supp. 3d 674 (N.D.
Ill. 2016). The court found that Viamedia’s own allegations ad-
mitted a valid business purpose for Comcast’s refusal: remov-
ing an intermediary, Viamedia, to deal directly with MVPD
customers.1 Id. at 698. The court further found that Viamedia
1 This court has characterized this common business practice of verti-
cal integration or disintermediation as pro-competitive and efficient. See
No. 18-2852 109
failed to allege or explain how Comcast’s refusal to deal with
it had “no rational procompetitive purpose.” Id.
A. The Refusal-to-Deal Claim Survives a Motion
to Dismiss.
We review the grant of a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss de novo and ask whether there is
“plausibility in the complaint.” Christy Sports, LLC v. Deer
Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007)) (inter-
nal citations omitted); see also Deppe v. NCAA, 893 F.3d 498,
500 (7th Cir. 2018). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility does not ask whether the allegations are likely
true; the court must assume they are. Instead, the inquiry is
“whether, if the allegations are true, it is plausible and not
merely possible that the plaintiff is entitled to relief.” Christy
Sports, 555 F.3d at 1191–92. The plaintiff must plausibly allege
more than “wholly conclusory statements” that a defendant
violated § 2 of the Sherman Act to advance past the pleadings
stage. Id.
In considering the alleged violation at the root of Viame-
dia’s refusal-to-deal claim, we must be cognizant that “the an-
titrust laws rarely impose on firms—even dominant firms—a
duty to deal with rivals.” Novell, 731 F.3d at 1066; see also
Verizon Commc’ns v. Law Offices of Curtis V. Trinko, 540 U.S. 398,
Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 710 (7th Cir.
1984) (holding “vertical integration usually is procompetitive”).
110 No. 18-2852
411 (2004) (holding even a monopolist has no duty to cooper-
ate with rivals). “As a general rule purely unilateral conduct
does not run afoul of section 2—businesses are free to choose
whether or not to do business with others and free to assign
what prices they hope to secure for their own products.” 731
F.3d at 1072. In the past, “some courts suggested that a mo-
nopolist must lend smaller rivals a helping hand,” but today
it is understood that forcing rivals to cooperate “usually
leaves consumers paying more for less.” Id.; see also Frank H.
Easterbrook, The Chicago School & Exclusionary Conduct, 31
HARV. J.L. & PUB. POL’Y 439, 441–42 (2008) (antitrust themes
incentivizing cooperation among firms largely “bit the dust in
Verizon v. Trinko” and now “the main goal of antitrust is to
compel firms to be rivals”); Olympia Equip. Leasing v. Western
Union Telegraph, 797 F.2d 370, 375 (7th Cir. 1986) (“Today it is
clear that a firm with lawful monopoly power has no general
duty to help its competitors, whether by holding a price um-
brella over their heads or by otherwise pulling its competitive
punches.”).
Despite this hesitancy to condemn refusals to deal, a mo-
nopolist’s behavior violates § 2 if it is “irrational but for its
anticompetitive effect.” Novell, 731 F.3d at 1075; see also 3
Phillip E. Areeda & Herbert Hovenkamp, ANTITRUST LAW: AN
ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION
¶ 651b3, p. 107 (4th ed. 2015) (monopolizing conduct is “irra-
tional” if “only explanation that makes it seem profitable is
destruction or discipline of rivals”) (hereinafter Areeda &
Hovenkamp, ANTITRUST LAW); Trinko, 540 U.S. at 407 (defend-
ant must be seeking “an anticompetitive end”); Aspen Skiing,
472 U.S. at 605 (“If a firm has been attempting to exclude rivals
on some basis other than efficiency, it is fair to characterize its
behavior as predatory.”) (internal citations omitted); Christy
No. 18-2852 111
Sports, 555 F.3d at 1194 (“in rare circumstances a refusal to co-
operate with competitors might constitute a § 2 violation”).
It is unclear—particularly on a motion to dismiss when a
plausibly alleged violation is all that is required—whether
conduct “irrational but for its anticompetitive effect” is to be
treated the same as conduct with “no rational procompetitive
purpose.” See 218 F. Supp. 3d at 698. Although slight, there is
a difference: the former provides an antitrust plaintiff the op-
portunity to argue that, despite some efficiency justification
proffered by an antitrust defendant, the rational or intended
goal of the conduct was its anticompetitive impact. The latter,
in contrast, requires the antitrust defendant to put forward
any evidence of some business reason for its conduct, regard-
less of potential anticompetitive effect. The district court ap-
plied the latter and found there was a rational procompetitive
purpose because Comcast offered evidence of vertical integra-
tion and disintermediation—motives that I agree reflect law-
ful and procompetitive marketplace conduct.2 But it did so by
disregarding the plausibility of Viamedia’s allegations of
anticompetitive conduct and weighing the evidence in Com-
cast’s favor. This is not the court’s role on a Rule 12(b)(6) mo-
tion.
Any confusion here may stem from a misunderstanding
of how to handle conflicting evidence of conduct in the alle-
gations. If only one party advances evidence showing pro-
competitive or anticompetitive conduct, the court may find
2 The majority opinion reviews vertical integration and disintermedi-
ation cases cited by Comcast and concludes they are inapposite here on
the question of procompetitive conduct. See Majority op. at pp. 63–67.
While it does not change my agreement with the majority to remand the
refusal-to-deal claim, I do not reach this same conclusion.
112 No. 18-2852
the lack of any opposing evidence shows either rationality or
irrationality for § 2 purposes. See Novell, 731 F.3d at 1076 (on
review of judgment as a matter of law, finding no evidence
from which a reasonable jury could conclude monopolist’s
conduct was irrational); see also Aspen Skiing, 472 U.S. at 610
(on review of summary judgment, finding no evidence of ef-
ficiency justification for the refusal to deal). But even these in-
stances are post-pleading. What of the parties who, at the
pleading stage, proffer allegations of competing economic
justifications for behavior? Are we to accept the defendant’s
proffered justification as conclusive of procompetitive ration-
ality without considering the plaintiff’s allegations of
anticompetitive conduct? If so, can an antitrust plaintiff ever
advance past the pleadings stage when a defendant asserts a
procompetitive justification? The district court effectively
held the plaintiff cannot, 218 F. Supp. 3d at 698, but this is up
for debate. See 3 Areeda & Hovenkamp, ANTITRUST LAW
¶ 651b3, pp. 106–07 (criticizing approach that relies on facts
which “benefit the defendant very slightly while doing
considerable harm to the rest of the economy;” “[n]ot all mo-
nopolizing conduct that we might wish to condemn is ‘irra-
tional’”); Microsoft Corp., 253 F.3d at 59 (defendant bears the
burden of presenting a “nonpretextual claim” and proving
procompetitive justification on the facts); Illinois ex rel. Burris
v. Panhandle Eastern Pipe Line Co., 935 F.2d 1469, 1481–82 (7th
Cir. 1991) (finding “the presence of a legitimate business jus-
tification reduces the likelihood that the conduct will produce
undesirable effects on the competitive process”; “[w]hether
valid business reasons motivated a monopolist’s conduct is a
question of fact” for a fact-finder); Olympia, 797 F.2d at 378
(reasoning the lack of “a clear business justification” among
conflicting evidence “may indicate probable anticompetitive
No. 18-2852 113
effect” but is not conclusive). We need not settle this debate,
though, as it does not impact the decision to remand.
As the majority opinion recognizes, “the calculation of
procompetitive benefits net of anticompetitive harms does not
easily lend itself to a pleading standard.” Majority op. at p. 59.
Viamedia alleged Comcast’s conduct could achieve “no pro-
competitive justifications” because there were no “problems
in allowing Viamedia to participate in Interconnects” on be-
half of its MVPD customers. Viamedia’s allegations show
more than market power; they allege Comcast’s exclusionary
conduct was anticompetitive and harmful to the economic
purpose of the Interconnects, see Christy Sports, 555 F.3d at
1192 (anticompetitive allegation must appear in the
pleadings), specifically by denying Viamedia access to the In-
terconnects. Giving Viamedia the benefit of its allegations, its
refusal-to-deal claim clears the Rule 12(b)(6) pleading bar be-
cause it plausibly alleges it was “excluded from the market
and injured by defendant[‘s] actions,” Tri-Gen Inc. v. Int’l Un.
of Op. Eng’s Local 150, 433 F.3d 1024, 1032 (7th Cir. 2006)―an
alleged injury that “harms both competitors and competi-
tion,” Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 118
(1986). Down the road, the facts Viamedia has pleaded or
other facts discovered may render its refusal-to-deal claim a
candidate for summary disposition. See Collins v. Associated
Pathologists, Ltd., 844 F.2d 473, 475 (7th Cir. 1988) (considering
various antitrust claims: “the very nature of antitrust litiga-
tion encourages summary disposition of such cases when per-
missible”). But viewing the facts in a light favorable to
Viamedia, its refusal-to-deal claim has not reached that point.
114 No. 18-2852
On a motion to dismiss, an antitrust plaintiff seeking § 2
damages must point to plausible allegations showing its ri-
val’s refusal to deal was irrational but for its anticompetitive
effect. Regardless of how this court in the future resolves
competing justifications at the dismissal stage, Viamedia has
plausibly alleged refusal to deal in violation of § 2 and was
entitled to advance that claim beyond the pleadings.
B. The Refusal-to-Deal Claim Is Different than
the Claim in Aspen Skiing.
The majority opinion concludes this case is indistinguish-
able from Aspen Skiing, 472 U.S. 585. Majority op. at p. 54. I
respectfully do not join the majority’s conclusion that Aspen
Skiing “maps onto Comcast’s conduct,” id. at 44, or that on a
refusal to deal theory this case “appears stronger than Aspen
Skiing.” Id. at 52.
The familiar holding of Aspen Skiing is that the defendant’s
“failure to offer any efficiency justification whatever for its
pattern of conduct” resulted in a § 2 violation. 472 U.S. at 608;
see also Christy Sports, 555 F.3d at 1197 (finding the “critical
fact in Aspen Skiing was that there were no valid business rea-
sons for the refusal” to deal). Its holding is specific: the de-
fendant could not justify either its insistence on breaking up
the joint lift pass or its refusal to sell the other owner its passes
for the same value just to keep the pass together. 472 U.S. at
603. There was no efficiency reason offered for the defend-
ant’s conduct; the only apparent purpose was to eliminate
competition. Id. at 608. The Supreme Court later explained
that this conduct constituted a violation because the “unilat-
eral termination of a voluntary (and thus presumably profit-
able) course of dealing suggested a willingness to forsake
short-term profits to achieve an anticompetitive end.” Trinko,
No. 18-2852 115
540 U.S. at 409. The defendant’s “unwillingness to renew the
ticket even if compensated at retail price revealed a distinctly
anticompetitive bent.” Id; see also Goldwasser v. Ameritech
Corp., 222 F.3d 390, 398 (7th Cir. 2000) (explaining the decision
“to forgo cash revenues and efficient methods of doing busi-
ness for the sole purpose of driving its rival out of the market”
is a § 2 violation).
The application of Aspen Skiing’s holding has been the sub-
ject of substantial debate. Albeit a seminal antitrust opinion,
Aspen Skiing is recognized as a factual and legal exception un-
der current antitrust law. See Trinko, 540 U.S. at 409 (“Aspen
Skiing is at or near the outer boundary of § 2 liability.”). To-
day, it fits within the “narrow world of refusal to deal cases.”3
Novell, 731 F.3d at 1079; see Easterbrook, The Chicago School &
Exclusionary Conduct, at 441–42 (describing the Court’s hold-
ing in Aspen Skiing as “the last gasp of the old school of anti-
trust”).
Not all refusal-to-deal challenges fall within the “limited
exception” of Aspen Skiing. Novell, 731 F.3d at 1074–75. To in-
voke that exception, there must be a preexisting, voluntary,
and presumably profitable course of dealing between a mo-
nopolist and a rival, and the discontinuation of that dealing
must reveal irrational willingness to forsake short-term
3 See Gov’t’s Br. in Supp. of Neither Party at 6, 8–11, ECF No. 33
(arguing only limited circumstances have been recognized in which a mo-
nopolist violates § 2 by refusing to deal with a rival, and those circum-
stances are tightly circumscribed due to the negatives of coerced dealing;
recommending this court follow Novell and its test that a refusal to deal
does not violate § 2 “unless it would make no economic sense for the de-
fendant but for its tendency to eliminate or lessen competition”).
116 No. 18-2852
profits to achieve an anti-competitive end. Id. Evidence of for-
saking short-term profits may “isolate conduct that has no
possible efficiency justification.” Id. at 1077. When consider-
ing sacrificed profits, though, courts should not “disaggregate
profits from different lines of business” as “[p]arsing profits”
would defeat the purpose of “holding firms liable for making
moves that enhance their overall efficiency.” Id. (disaggregat-
ing profits would make it difficult to assess firm’s goal of
“maximizing overall profits” and is inconsistent with the
Court’s reasoning in Aspen Skiing and Trinko); see also Christy
Sports, 555 F.3d at 1194 (businesses have ability “to recoup
[their] investment[s]” in any number of ways). In finding the
Aspen Skiing exception applies here, the majority opinion
points to three key factors underlying the Supreme Court’s
decision in that case: (1) an important change in a pattern of
distribution that had persisted for years; (2) conduct in the
market with arrangements in comparable markets; and (3)
forgoing profitable transactions. Majority op. at pp. 49–51. On
these factors, I see Aspen Skiing and this case as different.
First, in Aspen Skiing there was more than an “important
change” in the distribution pattern, as in that case the joint
pass was terminated altogether. 472 U.S. at 603. Here, no
termination of the Interconnect occurred; instead, Comcast
encouraged additional MVPD participation and sought to se-
cure their access to the Interconnects by contracting with
them directly. Second, in Aspen Skiing, the monopolist’s con-
duct in comparable markets where it lacked dominance in-
cluded the use of cooperative tickets in areas that apparently
were competitive. Id. at 603–04. But Comcast participates in
Interconnects across other DMAs, and, where it is the largest
MVPD in a market, it operates the Interconnect there, too. 335
No. 18-2852 117
F. Supp. 3d at 1046. Third, in Aspen Skiing the forgoing of prof-
itable transactions was not alone, but “in exchange for per-
ceived long-run impact on its smaller rival,” and referenced
in Aspen Skiing only in the context of finding no efficiency jus-
tification for the refusal to deal. 472 U.S. at 608, 610. That is
not the case here, as Comcast was able to proffer an efficiency
justification (disintermediation and vertical integration) for
its conduct. See Appellee’s Br. 3.
Aspen Skiing would be more analogous to this case if a
third-party vendor had managed the sales and advertising of
the joint pass directly to skiers, and then Aspen Skiing
Company (the monopolist) took over that role for vertical in-
tegration or other efficiency reasons. Instead, Aspen Skiing
Company terminated the joint pass altogether; that would be
like Comcast terminating the Interconnects to create a sub-op-
timal new platform to sell advertising, which of course did
not happen here. Rather than terminate the Interconnects,
Comcast encouraged MVPD participation and sought to se-
cure MVPDs’ access to the Interconnects by contracting di-
rectly with them. The record also contains evidence that Com-
cast acted pursuant to a rational business purpose: Comcast
claimed it sought vertical integration and disintermediation,
and Viamedia admitted such an efficiency justification in its
allegations. See id. at 3.
Still, the reinstatement of Viamedia’s refusal-to-deal claim
does not depend on Aspen Skiing. Because that claim survives
the plausibility requirement we apply under Rule 12(b)(6),
that portion of the judgment should be reversed and re-
manded.
118 No. 18-2852
C. Opinion Testimony on the Refusal-to-Deal
Claim May Be Allowed.
Lastly on the refusal-to-deal claim, the district court’s or-
der regarding expert witnesses, which we review for abuse of
discretion, is properly vacated. See Salgado ex rel. Salgado v.
Gen. Motors Corp., 150 F.3d 735, 739 (7th Cir. 1998). On re-
mand, the landscape of this case will have sufficiently
changed to allow for this method of proof on the refusal-to-
deal claim. This reversal allows for Viamedia to name expert
witnesses on this claim, subject to the usual later motion prac-
tice to exclude or limit their testimony on this cause of action.
II. Tying
After their agreements with Viamedia expired, RCN and
WOW! sought exclusive, full-turnkey relationships with
Comcast. Neither RCN nor WOW! ever sought Interconnect-
only services. The record contains no evidence that Comcast
has ever declined an MVPD’s request for Interconnect-only
services; in fact, 14 percent of Comcast’s agreements with
MVPDs across all DMAs since December 2011 were
Interconnect-only agreements. Viamedia, Inc. v. Comcast Corp.,
335 F. Supp. 3d 1036, 1058 (N.D. Ill. 2018). None of those
Interconnect-only agreements prevent an MVPD from hiring
another ad representative for local sales or conducting their
own ad representation.
Under its tying theory, Viamedia claimed Comcast condi-
tioned access to the Interconnect (the “tying” product) on the
purchase of Comcast’s ad representation services (the “tied”
product). But for whom? Viamedia conceded that both RCN
and WOW! maintained the ability to deal directly with Com-
No. 18-2852 119
cast and access the Interconnect without any ad representa-
tive should they choose not to employ Comcast at the termi-
nation of their agreements with Viamedia.
The district court granted summary judgment on Viame-
dia’s tying claim. 335 F. Supp. 3d at 1074. In so doing the court
found there was no evidence that Comcast conditioned access
to the Interconnect on the purchase of ad representation ser-
vices. Id. at 1058 (finding the fact that RCN and WOW! both
requested full-turnkey representation and that 14 percent of
Comcast’s agreements with MVPDs are Interconnect-only
“belies any inference that Comcast tied its services.”). The
court further found there was no triable issue as to antitrust
injury or damages, both necessary elements of an actionable
claim. Notably, Viamedia admitted its injuries were “fully
attributable to Comcast’s decision to deny Viamedia Intercon-
nect access,” id. at 1070, thereby failing to establish a cogniza-
ble antitrust injury separate from the refusal to deal. Viamedia
likewise failed to separately prove damages caused by the al-
leged tying conduct, again collapsing that showing into the
refusal-to-deal claim. Id. at 1072–73.
To the district court, the crux of Viamedia’s tying claim
was that Comcast withheld the alleged tying product from its
rival, Viamedia, not from its customers, WOW! and RCN. As
the court found, Viamedia aimed to sell MVPDs a bundle of
Comcast’s Interconnect services with Viamedia’s ad represen-
tation services, but “Viamedia has no antitrust right to force
Comcast to help it sell such a bundle to their mutual custom-
ers.” Id. at 1064. Finding the undisputed evidence did not
show tying conduct, the district court granted summary judg-
ment. Id. at 1074.
120 No. 18-2852
A. Antitrust Injury and Standing are Lacking on
the Tying Claim.
As a threshold matter, a plaintiff must have antitrust
standing to bring an antitrust claim. See McGarry & McGarry
v. Bankr. Man. Solut., 937 F.3d 1056, 1063 (7th Cir. 2019) (anti-
trust standing required to identify “which plaintiffs may
bring the cause of action”); see also Novell, 731 F.3d at 1080
(“[A] private party must establish some link between the de-
fendant’s alleged anticompetitive conduct, on the one hand,
and its injuries and the consumer’s, on the other.”). A show-
ing of antitrust standing requires more than the standing in-
quiry under Article III. See McGarry, 937 F.3d at 1063 (“[T]he
Sherman Act has additional rules for determining whether
the plaintiff is the proper party to bring a private antitrust ac-
tion.”) (citing Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983)); see
also Kochert v. Greater Lafayette Health Servs., Inc., 463 F.3d 710,
716 (7th Cir. 2006) (“Antitrust standing requires more than the
‘injury in fact’ and the ‘case or controversy’ required by Arti-
cle III of the Constitution.”).
To establish antitrust standing, a plaintiff must first show
it was injured by anticompetitive conduct. See McGarry, 937
F.3d at 1063–64. Antitrust standing is limited to “(1) those
who have suffered the type of injury that the antitrust laws
were intended to prevent and (2) those whose injuries are a
result of the defendant’s unlawful conduct.” Id. (quoting
Serfecz v. Jewel Food Stores, 67 F.3d 591, 595 (7th Cir. 1995)); see
also Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477,
No. 18-2852 121
489 (1977) (antitrust plaintiff must be able to show that its in-
jury is “of the type the antitrust laws were intended to pre-
vent”).
Even if a plaintiff can show its injuries are the result of un-
lawful anticompetitive conduct, it must be able to “efficiently
vindicate the purposes of the antitrust laws” to gain antitrust
standing. Kochert, 463 F.3d at 716; see also Associated Gen.
Contractors, 459 U.S. at 537–44 (plaintiff’s ability to efficiently
vindicate the law’s purpose confers antitrust standing if
shown antitrust injury); In re Industrial Gas Antitrust Litig., 681
F.2d 514, 526 (7th Cir. 1982) (“not all persons who have suf-
fered an injury flowing from [an] antitrust violation have
standing to sue”). Simply, the successful antitrust plaintiff
must prove both antitrust injury and antitrust standing. See
Kochert, 463 F.3d at 716.
“We usually presume that competitors and consumers in
the relevant market are the only parties who suffer antitrust
injuries and are in a position to efficiently vindicate the anti-
trust laws.” McGarry, 937 F.3d at 1065 (citing Associated Gen.
Contractors, 459 U.S. at 538; In re Aluminum Warehousing Anti-
trust Litig., 833 F.3d 151, 158 (2d Cir. 2016)). “But ‘presump-
tively’ does not mean always,” SAS of Puerto Rico v. Puerto Rico
Telephone Co., 48 F.3d 39, 45 (1st Cir. 1995) (finding third-party
suppliers are not “automatically improper antitrust
plaintiffs”), and often consumers or competitors are denied
antitrust standing.
The majority opinion proffers a bright-line rule “that cus-
tomers and competitors in the affected market have antitrust
standing,” Majority op. at p. 99. But in each case cited in the
majority opinion the court denied antitrust standing, includ-
ing to competitors. See Kochert, 463 F.3d at 718; Tri-Gen Inc. v.
122 No. 18-2852
Int’l Union of Operating Engineers, Local 150, AFL-CIO, 433 F.3d
1024, 1031–32 (7th Cir. 2006); Brunswick, 429 U.S. at 477–78,
484, 488 (collectively, competitors); see also McGarry, 937 F.3d
at 1063–66; In re Aluminum, 833 F.3d at 158; Serfecz, 67 F.3d at
597–98; Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10 (1st Cir.
1999); SAS of P.R., Inc., 48 F.3d at 44; Associated Gen. Contrac-
tors, 459 U.S. at 540 (collectively, neither consumers nor com-
petitors).
Instead, on this prerequisite the relevant case law priori-
tizes the type, directness, and cause of an antitrust injury, ra-
ther than applying a bright-line rule for antitrust standing
based on the plaintiff’s status. See McGarry, 937 F.3d at 1064–
65 (examining the “type of injury” alleged, the “remote[ness]”
or “direct link” between the alleged antitrust violation and the
claimed antitrust injury, and the “causal connection”) (citing
Associated Gen. Contractors, 459 U.S. at 537–40 (explaining
these factors)); see, e.g., Blue Shield of Va. v. McCready, 457 U.S.
465, 476–77 (1982) (plaintiff’s status was neither consumer nor
competitor, but granted antitrust standing based on type, di-
rectness, and cause of antitrust injury suffered).
Even with the presumption favoring consumers and com-
petitors, standing is granted to rivals only when it “serves an-
titrust policy.” 2A Areeda & Hovenkamp, ANTITRUST LAW
¶ 348a, p. 232 (4th ed. 2014) (examples include when a rival is
in a position to detect a violation earlier than consumers, or
the rival’s injury is large while consumers’ injuries are small
or their suits less likely). “[T]he elimination of a single com-
petitor, standing alone, does not prove anticompetitive ef-
fect.” Austin v. McNamara, 979 F.2d 728, 739 (9th Cir. 1992)
(quoting Kaplan v. Buroughs Corp., 611 F.2d 286, 291 (9th Cir.
1979)). Thus, it is uncommon that a suit by a single foreclosed
No. 18-2852 123
rival disputing a tying arrangement will have antitrust stand-
ing.4 See 2A Areeda & Hovenkamp, ANTITRUST LAW ¶ 348a, p.
232 (“courts are properly skeptical of many rivals’ suits, par-
ticularly when the practices are not obviously ‘exclusion-
ary’”). First, the rival must show it suffered the type of injury
the antitrust laws intend to prevent. This is consistent with
antitrust jurisprudence that looks to market injury, like raised
prices and decreased output or quality, to determine a com-
petitor’s antitrust injury. See Tri-Gen, 433 F.3d at 1031 (“To
have standing as a competitor, [plaintiff] needed to show that
‘its loss comes from acts that reduce output or raise prices to
consumers.’”) (quoting Stamatakis Industries, Inc. v. King, 965
F.2d 469, 471 (7th Cir. 1992)); see also Serfecz, 67 F.3d at 597
(plaintiff’s injury was “linked to the injury inflicted upon the
market,” including consumers paying higher prices); Associ-
ated Gen. Contractors, 459 U.S. at 539 n.40 (finding no antitrust
injury from alleged predatory behavior because competitor
failed to show “that output has been curtailed or prices en-
hanced throughout an entire competitive market”).
Next, the rival must show it is the party “who can most
efficiently vindicate the purposes of the antitrust laws”
4 The leading treatise acknowledges the possibility that a rival could
have standing if an illegal tying arrangement creates, enlarges, or perpet-
uates a monopoly for a tied product, and that rival may be foreclosed if it
loses existing market share or sales. But “[i]njury to the foreclosed rival
occurs, of course, only because a tie has forced buyers to purchase the de-
fendant’s tied product rather than the rival’s.” 10 Areeda & Hovenkamp,
ANTITRUST LAW ¶ 1767a, p. 449. This is a high bar: the rival must show (a)
a monopoly in the tied-market, (b) the loss of its existing market share or
sales (not limited to certain customers), and (c) an injury based only on
buyers being forced to purchase defendant’s product over their own.
124 No. 18-2852
against unlawful ties. Kochert, 463 F.3d at 718 (quoting Serfecz,
67 F.3d at 598). But, having been forced to purchase a product
it did not want, the tied consumer is almost always in the su-
perior position to sue the violator. McGarry, 937 F.3d at 1066
(concluding “[t]here is, after all, a more appropriate person to
pursue [a] claim” when that person’s “self-interest would
normally motivate them to vindicate the public interest in an-
titrust enforcement”); see also Kochert, 463 F.3d at 718; 2A
Areeda & Hovenkamp, ANTITRUST LAW ¶ 348a, p. 232 (recog-
nizing that “consumers almost always have the correct incen-
tives for suit, [but] rivals do not”). The presence of a more
appropriate person to bring a claim “diminishes the justifica-
tion for allowing a more remote party” to step in. McGarry,
937 F.3d at 1066 (quoting Associated Gen. Contractors, 459 U.S.
at 542). Whether or not there is a more appropriate plaintiff, a
rival may not pursue an antitrust injury that is “entirely de-
rivative” of other injuries. Id. And even when standing is rec-
ognized, a foreclosed rival cannot oppose efficient, legitimate,
or even aggressive lawful competition by its rivals. 2A Areeda
& Hovenkamp, ANTITRUST LAW ¶ 348a, p. at 231 (“[A] rival
may allege an antitrust violation by its rivals not to protect
competition but to protect itself from competition. … Such
losses are not antitrust injury, so the rival is [] denied stand-
ing.”).
Here, Viamedia claims it is a foreclosed rival harmed by
Comcast’s alleged tying conduct. First, Viamedia must show
it suffered an injury the antitrust laws intend to prevent that
is directly linked to or caused by Comcast’s alleged tying con-
duct. But Viamedia relies on the injuries and damages it
claims from Comcast’s refusal to deal rather than any distinct
tying injury. See 335 F. Supp. 3d at 1069–73 (Viamedia’s expert
testified that foreclosure from the market and resulting injury
No. 18-2852 125
or damages “flows directly from Viamedia’s inability to ac-
cess” the Interconnects, not tying); see also Novell, 731 F.3d at
1080 (declining to recognize separate, cognizable antitrust in-
jury for other exclusionary conduct that relied on alleged re-
fusal-to-deal injury). Viamedia has conceded that any injury
it suffered is derivative of Comcast’s refusal to deal, not the
alleged tie. So Viamedia lacks an independent basis for ad-
vancing a tying claim, and recognizing it as a foreclosed rival
with standing to sue under the narrow exception described
above would not “serve[] antitrust policy.” 2A Areeda &
Hovenkamp, ANTITRUST LAW ¶ 348a, p. 232. While Comcast
offered its customers, RCN and WOW!, access to the Intercon-
nect and exclusive ad representation services, it was not re-
quired to make such an offer to its rival, Viamedia. This re-
veals the fatal flaw in Viamedia’s tying theory: even if Com-
cast acted precisely as Viamedia claims by tying Interconnect
access and ad representation services, Viamedia would suffer
no separate, cognizable antitrust injury. 335 F. Supp. 3d at
1071; see Novell, 731 F.3d at 1080 (“Even if Microsoft had be-
haved just as Novell says it should have, it would have helped
Novell not at all.”).
Next, Viamedia must show it is the party “who can most
efficiently vindicate the antitrust laws” regarding tying.
Kochert, 463 F.3d at 718 (quoting Serfecz, 67 F.3d at 598). While
Viamedia enjoys the general presumption of antitrust stand-
ing as a competitor, this presumption is limited by the court’s
determination of whether an antitrust injury occurred. See 2A
Areeda & Hovenkamp, ANTITRUST LAW ¶ 348a, p. 232. Here,
RCN and WOW! would have been directly impacted by Com-
cast’s alleged tying conduct and would be in the superior po-
sition to pursue a claim against Comcast. Viamedia could not
participate directly in this alleged tying arrangement, and it
126 No. 18-2852
now seems motivated to protect itself from competition rather
than enforce the antitrust laws. See Majority op. at p. 66 (“Vi-
amedia simply wants to ensure that MVPDs can freely choose
Viamedia as their supplier of ad rep services if that is their
preferred choice.”).5
Because Viamedia has not shown a cognizable injury that
the antitrust laws intend to prevent or that was directly linked
to an antitrust violation caused by Comcast’s conduct, it has
no antitrust injury. Without an antitrust injury, and not able
to efficiently enforce the law against illegal tying, Viamedia
lacks antitrust standing to bring this claim.
B. Summary Judgment Was Properly Granted on
the Tying Claim.
The district court’s grant of summary judgment on Viame-
dia’s tying claim, which we review de novo, was proper. We
construe all facts and reasonable inferences in favor of the
nonmoving party, and we refrain from weighing any evi-
dence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); see also In re High Fructose Corn Syrup Antitrust
Litigation, 295 F.3d 651, 655 (7th Cir. 2002) (describing the
5 Even if somehow Viamedia could be considered a foreclosed rival
with antitrust injury and standing, the leading treatise notes the possibil-
ity of injunctive relief—which the district court correctly concluded was
misplaced on these facts, 335 F. Supp. 3d at 1074—and that treatise ob-
serves how difficult it is in such a circumstance to prove damages without
speculation. 10 Areeda & Hovenkamp, ANTITRUST LAW ¶ 1767a, p. 450
(“Even for those established in the market, estimating the number of sales
lost as a result of the tying arrangement is elusive at best.”).
Viamedia’s status as a foreclosed rival, though, would depend on the
existence of a tie. I conclude below the undisputed facts show no evidence
of tying conduct because there was no conditioned sale of services.
No. 18-2852 127
weighing of evidence as a “trap” to avoid). But the nonmov-
ing party must “go beyond the pleadings” at summary judg-
ment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It must
affirmatively demonstrate through evidence that there is a
genuine issue for trial. Anderson, 477 U.S. at 249.
Liability under § 2 requires anticompetitive conduct.
Mercatus Grp., 641 F.3d at 854; Endsley v. City of Chicago, 230
F.3d 276, 282 (7th Cir. 2000). On summary judgment, the § 2
plaintiff must present evidence tending to exclude the
possibility that the monopolist’s conduct is as likely to be pro-
competitive as anticompetitive. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 588 (1986) (“conduct as consistent
with permissible competition as with illegal conspiracy does
not, standing alone, support an inference of antitrust conspir-
acy”); Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752,
768 (1984) (“[T]here must be evidence that tends to exclude
the possibility of independent [pro-competitive] action by the
manufacturer and distributor.”).
As noted previously, firms—even monopolies—generally
have the right to decide with whom they will do business. In
this vein, “antitrust law does not require monopolists to co-
operate with rivals by selling them products that would help
the rivals to compete.” Schor v. Abbott Labs., 457 F.3d 608, 610
(7th Cir. 2006); see Pac. Bell Tel. Co. v. Linkline Commc’ns, 555
U.S. 438, 450 (2009) (monopolist may wield “upstream”
power “to prevent rival firms from competing effectively” in
a downstream market); see also Trinko, 540 U.S. at 409–10 (a
monopolist has no duty to deal with a rival, let alone a duty
to deal on favorable terms). In presenting its tying claim,
though, Viamedia argued that Comcast’s conduct constituted
more than a “mere” refusal to deal. 335 F. Supp. 3d at 1057.
128 No. 18-2852
Viamedia claimed that when Comcast excluded Viamedia
from the Interconnects, Comcast engaged in the “distinct”
practice of tying, pressing forward with this claim as an “al-
ternative theor[y]” of relief. Id. After discovery on Viamedia’s
tying theory, the district court ruled that “the record leaves no
genuine issue of material fact.” Id. The district court correctly
evaluated Viamedia’s tying claim and rightly concluded that
Viamedia’s proffered evidence did not tend to exclude the
possibility that Comcast’s alleged tying conduct was as likely
procompetitive as anticompetitive. Id. at 1055–64.
Under the new antitrust regime, “[o]utright condemna-
tion of product tying has been reversed.” Hon. Richard D.
Cudahy & Alan Devlin, Anticompetitive Effect, 95 MINN. L. REV.
59, 76 (2010); see Microsoft Corp., 253 F.3d at 49 (“[N]ot all ties
are bad.”). The “essential characteristic of an invalid tying ar-
rangement lies in the seller’s exploitation of its control over
the tying product to force the buyer into the purchase of a tied
product that the buyer either did not want at all, or might
have preferred to purchase elsewhere on different terms.”
Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984). An
illegal tie, whether express or as applied, exists only when
“the defendant improperly imposes conditions that explicitly
or practically require buyers to take the second product if they
want the first one.” 10 Areeda & Hovenkamp, ANTITRUST LAW
¶ 1752b, p. 291 (4th ed. 2018). The fundamental feature of a
tying claim is the conditioned sale, including by force. See
Sheridan v. Marathon Petrol. Co. LLC, 530 F.3d 590, 592 (7th Cir.
2008). No conditioning occurs if a buyer wants to purchase a
bundle of the tied and tying products from the same seller.
See Will v. Comprehensive Acct. Corp., 776 F.2d 665, 669 (7th Cir.
1985) (“A tie within the meaning of antitrust depends on
showing that the buyer did not want to take both products
No. 18-2852 129
from the same vendor.”). Without the actual, conditioned sale
of the tied product, there is no tie. See It’s My Party, Inc. v. Live
Nation, Inc., 811 F.3d 676, 684 (4th Cir. 2016) (“If ... the buyer
is free to decline the tied product ..., then by definition there
is no unlawful tying.”).
Other circuits have acknowledged the essential and indis-
pensable role conditioning plays in a tying claim. In Aerotec
Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171 (9th Cir. 2016),6
6 The majority opinion relies on certain factual assumptions to attempt
to distinguish Aerotec.
First, the majority assumes “this is not a typical bundling case,” Ma-
jority op. at 77, so Aerotec should not control. But Aerotec provides an in-
structive framework for determining whether a tie has occurred and illus-
trates the important role that conditioning plays in an unlawful tying ar-
rangement, see 836 F.3d at 1179.
Second, the majority assumes “self-providing ad rep services was not
a viable option for RCN and WOW!,” Majority op. at 78, and so they
“needed to employ [a third-party] ad rep services provider.” Id. at 77 n.17.
As discussed elsewhere in this opinion, infra at 28–29, this assumption
relies on the majority opinion’s conclusion that it must not have been eco-
nomically feasible for RCN and WOW! to internalize ad representation,
either regionally or locally. This is not supported by the record, which con-
tains undisputed evidence of various economically feasible options
MVPDs choose in structuring their advertising sales. See infra at 25–26.
Regardless, this assumption does not prevent Aerotec’s application here.
Third, the majority assumes RCN and WOW! had “no choice but to
obtain ad rep services from Comcast,” Majority op. at 34 n.8, and were
“forced by Comcast” to do so. Id. at 77 n.17. This in turn assumes that RCN
and WOW! did not want ad representation services from Comcast. But the
evidence shows the opposite: neither RCN nor WOW! ever requested In-
terconnect-only services from Comcast, and both sought full-turnkey re-
lationships with Comcast to receive ad representation and Interconnect
services together. Ultimately, Comcast’s and Viamedia’s offers to solicit
RCN’s and WOW!’s business were “nowhere near equal,” and it was “not
a very difficult decision” for the MVPDs to make. 335 F. Supp. 3d at 1048.
130 No. 18-2852
the Ninth Circuit concluded there was no evidence that Hon-
eywell, a monopolist manufacturer of replacement airplane
parts, “explicitly or implicitly tie[d] or condition[ed] the sale”
of replacement parts on a requirement that its customers use
its in-house repair services. Id. at 1179. When Honeywell
ceased supplying parts to Aerotec—a third-party repair ser-
vice provider—for repairs, Aerotec sued Honeywell for al-
leged unlawful tying. Id. at 1177. Honeywell explained it had
long preferred the benefits it achieved from internalizing its
repair services and working with its affiliated servicers, rather
than with independent ones like Aerotec. Id. at 1176–77. The
court found it did not matter whether Honeywell had refused
to deal with Aerotec, even if that made it more difficult for
Aerotec to compete. Id. at 1179–80. The Ninth Circuit “de-
cline[d] to stretch the tying construct to accommodate the
claim that … conduct toward third party servicers … acts as
an effective, or ‘de facto,’” tying condition. Id. at 1178.
In Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680 (4th
Cir. 1992), the Fourth Circuit reached the same conclusion,
finding there was no conditioned sale of a licensed product
when customers demanded access to it, even though this hin-
dered the ability of third-party servicers to compete with the
company. Id. at 687–88. The same is true with the D.C. Circuit,
see Microsoft Corp., 253 F.3d at 85 (tying requires consumer to
have “no choice but to purchase the tied product”), and this
court, see Reifert v. South Cent. Wisconsin MLS Corp., 450 F.3d
Comcast was able to offer superior terms and better prices with full Inter-
connect access and ad representation services. The assumption that any
MVPD was forced or threatened to purchase ad representation services to
gain access to the Interconnects does not follow from the evidence and is
not a distinguishing factor from Aerotec.
No. 18-2852 131
312, 318 (7th Cir. 2006) (“conditioning access” to a service
based on the forced purchase of a membership was essential
element of tying).
Like these other third-party rivals, Viamedia has offered
no evidence of conditioning. Such evidence is simply absent
from the undisputed facts on which Viamedia attempted to
build its tying claim:
 An ad representative is responsible for managing
and selling an MVPD’s avails to advertisers and can
represent their MVPD customers: (1) locally, selling
only a part of an MVPD’s avails in a DMA to local
advertisers; (2) regionally, selling all of the MVPD’s
avails in a DMA; or (3) nationally. Id. at 1044.
 The industry standard relationship between an ad
representative and an MVPD is exclusive, region-
wide, full-turnkey representation. Id. at 1045.
 MVPDs in a full-turnkey relationship with an ad
representative have an exclusive agreement with
that ad representative, which makes Interconnect
services available to them without requiring a di-
rect relationship with the Interconnect operator. Id.
at 1063–64.
 Interconnect operators may pursue a direct rela-
tionship with MVPDs to sell a portion of their avails
regionally without a third-party ad representative.
Id. at 1046. This is called an “Interconnect-only”
agreement. Id.
 Some MVPDs retain a portion of their avails for lo-
cal advertising and hire an ad representative to rep-
resent them locally. Id. at 1045.
132 No. 18-2852
 Some MVPDs choose to conduct their own ad rep-
resentation—regionally, locally, or both. Id.
 RCN and WOW! are MVPD customers of Comcast
and Viamedia, which compete for MVPDs’ busi-
ness on the relevant Interconnects. Id. at 1046.
 Comcast refused to deal with Viamedia by disal-
lowing it access to the relevant Interconnects. Id. at
1057.7
 No evidence shows that Comcast told MVPDs
across all DMAs, expressly or impliedly, that they
could only access the Interconnects on the condi-
tion that they also purchase ad representative ser-
vices. Id. at 1058.
 Fourteen percent of Comcast’s agreements with
MVPDs across all DMAs are Interconnect-only. Id.
 RCN and WOW! never requested Interconnect-
only services from Comcast, and both pursued full-
turnkey relationships with Comcast. Id. at 1059.
These facts do not show illegal tying conduct. Both parties
stipulate that Comcast never denied an MVPD’s request to ac-
cess the Interconnect on a standalone basis. In fact, 14 percent
7 The majority opinion casts Comcast’s refusal to deal as a negative
fact, noting that Comcast “conceded repeatedly” that it had done so. Ma-
jority op. at p. 76. It is undisputed that Comcast refused to deal with
Viamedia; the question on remand is whether that refusal was anticom-
petitive, which Viamedia will have to prove. As discussed, refusals to deal
are now not disfavored, and in fact the opposite—cooperation among ri-
vals—is a red flag under antitrust law. See Easterbrook, The Chicago School
& Exclusionary Conduct, at 442 (“cooperation is to be feared rather than
welcomed”).
No. 18-2852 133
of Comcast’s agreements with MVPDs across all DMAs are
Interconnect-only. Id. at 1058; see, e.g., It’s My Party, 811 F.3d
at 685 (14 percent of standalone, non-tied sales “exceed [] suf-
ficiently” the minimum threshold required “to cast doubt on
any allegation of tying”); see also 10 Areeda & Hovenkamp,
ANTITRUST LAW ¶ 1756b2, p. 334 (“10 percent unbundle[ed]”
sales rebuts any “established or presumed inference of a tying
condition”); see also Novell, 731 F.3d at 1077 (aggregating sales
and profits across entire market to assess firm’s “overall effi-
ciency” and not singling out smaller market or product line).
And there is no evidence Comcast withheld Interconnect ac-
cess from MVPDs unless they also purchased ad representa-
tive services from Comcast. Instead, the evidence shows that
RCN and WOW! sought a full-turnkey relationship with
Comcast to receive access to the Interconnects and ad repre-
sentation services as a bundle. They were neither forced to
purchase ad representation services from Comcast nor denied
access to the Interconnects unless they purchased ad repre-
sentation from Comcast. Further, if they wished, they were
free to contract with a third-party ad representative for local
sales. Even while under exclusive contract with Viamedia,
RCN and WOW! were not forced to purchase ad representa-
tion services from Comcast. Comcast never poached RCN or
WOW! during that time to capture their business in the ad
market, and RCN and WOW! could have chosen to forgo ad
representation altogether at the conclusion of those exclusive
contracts.
That Comcast did not affirmatively offer RCN or WOW!
Interconnect-only access does not alter these facts. Courts
need not assume antitrust laws require a business to offer its
customer a less profitable or less efficient option than the one
the customer seeks. Here, it is undisputed that RCN and
134 No. 18-2852
WOW! sought Interconnect access and ad representation ser-
vices as a bundle in a full-turnkey relationship with Comcast.
See 9 Areeda & Hovenkamp, ANTITRUST LAW ¶ 1700i, p. 12
(4th ed. 2018) (“[F]inding two products does not mean that
they are tied together. The franchisee may have preferred a
‘turnkey’ franchise and never asked for the” tying product
“separately”); see also Will, 776 F.2d at 670 (the “voluntary pur-
chase of two products together” is “not a tie at all”). The dis-
trict court recognized, and correctly rejected, how broad a
view of tying Viamedia attempts to advance. 335 F. Supp. 3d
at 1059 (“the constraining of consumer choice is of course a
feature of a tying arrangement … but there must still be an
actual ‘tie’ of products or services”).8 Viewing the record in
the light most favorable to Viamedia, the evidence reflects
that WOW! and RCN wanted full-turnkey representation,
and they were prepared to hire the company with the ability
to deliver both Interconnect access and ad representation ser-
vices. Here, that company was Comcast.
My colleagues in the majority conclude, at various points,
that it was not economically feasible for RCN or WOW! to
conduct their own ad representation. See Majority op. at p. 34
n.8 (finding RCN and WOW! “had always chosen to buy [ad
representation] services from outside companies, suggesting
that in-house was not an economically viable option”); id. at
77 n.17 (concluding sufficient evidence existed of a “forced”
sale because “RCN and WOW! needed to employ [a third-
party] ad rep services provider”); id. at 78 (deciding “self-
providing ad rep services was not a viable option for RCN
8 Further,if tying occurred, one would expect to see higher prices or
lower output. See Washington Legal Foundation’s Br. in Supp. of Def. at
12, ECF No. 45. There is no such evidence here.
No. 18-2852 135
and WOW!”); id. at 82 (finding evidence “showing that in-
house provision of ad rep services simply was not a practical
option for RCN or WOW! in these markets”). This conclusion
assumes that if RCN and WOW! chose to outsource ad repre-
sentation to a third-party, either locally or regionally, then it
must have been economically feasible to do so. It also assumes
the inverse: that internalizing these services must be econom-
ically infeasible. Such assumptions go beyond the court’s role
and presume underlying facts about the parties’ business
practices and strategies that we simply do not know and can-
not accurately predict. These assumptions are not supported
by the record, which instead contains evidence of various eco-
nomically feasible options MVPDs choose in structuring their
advertising sales, including internalizing part of or all ad rep-
resentation services. 335 F. Supp. 3d at 1044. I respectfully do
not share this economic feasibility conclusion and rely only
on the evidence presented.
The majority opinion also references “[a]mple evidence”
the jury could have relied upon to “easily find that Comcast
improperly forced the smaller MVPDs to buy its ad rep ser-
vices” through a tying arrangement. Majority op. at pp. 75–
76. In particular, the majority points to internal Comcast and
WOW! documents, deposition responses, and testimonies be-
fore the Federal Communications Commission and the
Department of Justice. But the relevant evidence shows Com-
cast’s desire to solicit RCN’s and WOW!’s business directly,
not the forced purchase of a service that neither RCN nor
WOW! wanted. For example, the majority references an email
from a WOW! employee to his colleagues explaining his un-
derstanding that “[WOW!] can be in the [Interconnect] but
only if [Comcast] rep[s] us directly.” See Majority op. at p. 75.
136 No. 18-2852
The majority opinion reads this as revealing Comcast’s “de-
mands” and “threats” with which RCN and WOW! did not
“willingly” comply. Id. But in context, the email reflects only
ongoing business negotiations between WOW! and Comcast,
in which Comcast expressed its desire to no longer accommo-
date third-party ad representatives (its competitors) on the
Interconnects it operates. This is consistent with Comcast’s
position all along—that it wishes to increase efficiency by in-
ternalizing services—and does not constitute tying as de-
fined.
Some other examples: in a different email, a Comcast em-
ployee expressed to a WOW! employee Comcast’s “desire to
have a direct relationship” with MVPDs on the Interconnects
and noted that “Comcast would be thrilled to do business di-
rectly with WOW,” reiterating the “tremendous value and
benefits [Comcast] can deliver for WOW” in a direct relation-
ship. Another Comcast employee noted in a deposition that
working “through a middleman” like Viamedia “really
brought no value to the table” and the decision not to renew
its contract with Viamedia was primarily to “have a direct re-
lationship with WOW and RCN.” Explaining RCN’s decision
to contract directly with Comcast, an RCN executive testified
to the superior terms Comcast could provide, noting that
Comcast’s and Viamedia’s offers were “nowhere near equal”
and that it was “not a very difficult decision” for RCN to
make. 335 F. Supp. 3d at 1048. WOW!, too, selected Comcast’s
direct representation based on “better financial terms.” Id.
These statements are consistent with Comcast’s position
to directly solicit the business of MVPDs. When questioned
by the Department of Justice, a Comcast executive acknowl-
edged it was Comcast’s “business practice” to inform MVPDs
No. 18-2852 137
that want “to get access to a Comcast controlled Interconnect,
it has to hire Comcast as its ad sales representative” instead
of a third-party rival. Id. at 1061. This does not reveal a forced
purchase that neither RCN nor WOW! wanted. If anything,
such evidence depicts “hard-nosed” business practices like
those the Tenth Circuit noted but did not find anticompetitive
in Novell, 731 F.3d at 1078 (finding email evidence may sug-
gest “an uncharitable intent toward rivals” or even an “intent
to undo a competitor,” but did not show that conduct was
“irrational but for its exclusionary tendencies”). None of this
evidence “tends to exclude the possibility” that Comcast’s
conduct “was as consistent” with lawful conduct as with ille-
gal tying conduct. Mercatus Grp., 641 F.3d at 856.
Importantly, the internal documents the majority opinion
references are dated 2014, when WOW! and RCN were still
under exclusive contract with Viamedia but soliciting bids
from other representatives to sell advertising avails on the In-
terconnects. While soliciting bids, RCN and WOW! engaged
in back-and-forth negotiations with Comcast and Viamedia,
leading ultimately to new contracts with Comcast. The timing
of these discussions, as preserved in the record, is key. When
reviewing the evidence here, this court is limited by the
prospective nature of these then-ongoing negotiations. Our
perspective is necessarily predictive not retrospective. These
internal documents do not contain evidence of the economic
impact after the negotiated deals were made, but only before
when offers were being made, accepted, and rejected. They do
not describe the economic results of these then-prospective re-
lationships. Because of their prospective nature, they are not
a reliable metric for understanding what has transpired since,
but merely what the parties had hoped to achieve. Under our
138 No. 18-2852
antitrust regime, “[w]hat distinguishes exclusion from effi-
ciency is what happens in the future,” Easterbrook, The Chi-
cago School & Exclusionary Conduct, at 443, not what the parties
want to happen.
None of this evidence measures whether Comcast’s con-
duct has resulted in a market injury, such as raised prices or
decreased output. It does not show that RCN or WOW!
understand their contracts with Comcast to be coercive or
conditioned, and there is no evidence indicating RCN and
WOW! are unhappy with their current relationship with
Comcast. While viewing this evidence in Viamedia’s favor, it
is crucial to acknowledge its limitations in this case.
As the district court noted, the real “gravamen of Viame-
dia’s tying claim [is] that Comcast’s refusal to provide
[Viamedia] Interconnect access prevents [Viamedia] from
selling the kind of full-turnkey Ad Rep Services that WOW!
and RCN desire.” Id. at 1063 (internal quotations omitted).
That differs from the paradigmatic tying claim, which re-
quires conditioning and a forced sale to a customer rather than
a withheld advantage from a rival. See 9 Areeda &
Hovenkamp, ANTITRUST LAW ¶ 1700a, p. 4. Antitrust law does
not require Comcast to help Viamedia sell the same bundle it
offers to their mutual customers. See 10 Areeda &
Hovenkamp, ANTITRUST LAW ¶ 1748b, pp. 251–53 (no tied
product “when the plaintiff’s theory of injury is not that cus-
tomers of the defendant’s [tied] bundle would buy the items
unbundled if they could, but rather that a rival could sell the
same bundle if only the defendant would sell it a particular in-
put”).
No. 18-2852 139
Finally, even if Viamedia’s refusal-to-deal claim had sur-
vived a motion to dismiss, summary judgment was appropri-
ate on the tying claim because the undisputed facts do not
show Comcast conditioned access to the Interconnects on the
purchase of ad representation services. Although acknowl-
edging that “[t]hese related claims are both based on the same
course of conduct, resulted in the same anticompetitive
harms, and would be subject to the same procompetitive jus-
tifications or defenses,” Majority op. at p. 38, the majority
opinion does not explain how Viamedia has established a dis-
tinct tying claim that should have advanced beyond summary
judgment on its own merits. In framing its tying analysis, the
majority opinion focuses on whether, when viewing Com-
cast’s conduct as a whole, “[Comcast] has unreasonably main-
tained or enhanced its monopoly position.” Id. at 73. While
this framework would not necessarily reveal anticompetitive
conduct in violation of § 2, I hesitate to apply it here for the
simpler reason that our antitrust jurisprudence does not in-
struct us to do so. Instead, looking to the undisputed facts,
Viamedia has failed to prove the elements of a tying claim.
To the extent the majority opinion also concludes that the
existence of a viable refusal-to-deal claim saves Viamedia’s ty-
ing claim, I am not convinced of that connection. In compari-
son to refusal to deal, tying is a form of exclusionary conduct
with more specific requirements, which the district court
noted. 218 F. Supp. 3d at 698 (a refusal-to-deal claim is differ-
ent than a tying claim); accord Novell, 731 F.3d at 1072 (distin-
guishing unilateral refusals to deal from other recognized
forms of anticompetitive conduct like tying). Viamedia, seek-
ing an “escape route” and “trying to recast” Comcast’s refusal
to deal as unlawful tying conduct, see Novell, 731 F.3 at 1078,
has treated these two claims interchangeably. But parties’
140 No. 18-2852
claims stand and fall on their own merits, so the district court
was correct to consider them separately.
Conditioning, an essential element of tying, requires the
forced sale of a product the buyer did not want. Based on the
record before us, to which we are limited, there was no con-
ditioning. Because the undisputed facts show no evidence of
tying conduct separate from Viamedia’s refusal-to-deal claim,
I would affirm that portion of the district court’s judgment.
III. Section 2 Monopolization Analysis
The majority opinion acknowledges Viamedia raised only
two claims on appeal: refusal-to-deal and tying. Majority op.
at p. 42 n.11. It also suggests an alternative means of § 2 re-
covery should Viamedia fail on either of its alleged claims. Per
the majority opinion, Viamedia has sufficiently pleaded and
presented evidence for the court to find an alternative § 2 mo-
nopolization claim. Such an open-ended approach may place
courts in the role of the decision-maker on dense and complex
economic issues better left to the free market. See Easterbrook,
The Chicago School & Exclusionary Conduct, at 442 (“Markets
are much better than judges at sifting efficient from anticom-
petitive practices.”). We are no more skilled at predicting mar-
ket shifts than anyone else, and courts are very rarely the best
forum for discerning between exclusionary and efficient con-
duct. See id. at 442–45.
The district court hewed to the particular types of exclu-
sionary conduct Viamedia alleged (tying and refusal to deal;
its exclusive dealing claim was abandoned on appeal). The
court found Viamedia had “affirmatively disavowed” any
“free-standing” § 2 monopolization claim. 335 F. Supp. 3d at
1068. Having failed to plead or preserve an alternative claim
No. 18-2852 141
before the district court, Viamedia should not be entitled to
pursue a vague § 2 monopolization theory on appeal. King v.
Kramer, 763 F.3d 635, 641 (7th Cir. 2014) (this court not in a
position to advance claims that party abandons or fails to pre-
serve below); Geva v. Leo Burnett Co., 931 F.2d 1220, 1225 (7th
Cir. 1991) (an issue not “properly preserved below” in the
district court is generally waived). Nor should the court be
required to consider the restraint on trade or the impact on
monopoly powers generally that may arise from Viamedia’s
allegations.
This rule is particularly relevant in antitrust law, which is
susceptible to high rates of “false positives” that occur when
the court confuses real competition with exclusion. See Easter-
brook, The Chicago School & Exclusionary Conduct, at 445; see
also Microsoft Corp., 253 F.3d at 87 (discussing false positives).
The new antitrust regime identifies problems like false posi-
tives, unpredictability, and past court confusion, and it seeks
to protect consumers and promote competition in a techno-
logically advancing marketplace. Many cases and authorities
point in this direction. An alternative § 2 monopolization
theory is not consistent with how courts now consider poten-
tially exclusionary conduct. Accordingly, I am unable to join
this portion of the majority opinion.
IV. Conclusion
The majority opinion dives deep into this case’s compli-
cated facts and thoroughly covers swaths of antitrust law in
an insightful manner. As Viamedia has plausibly alleged an
anticompetitive refusal to deal, I join the majority in reversing
and remanding on that claim. But the undisputed facts do not
show an illegal tie, so summary judgment was proper on that
142 No. 18-2852
allegation. For the reasons above, I respectfully concur in part
and dissent in part.