U.S. Court of Appeals Rejects Antitrust Challenge to Tiered Bundling of Cable Networks

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It has long been the subject of fierce debate whether cable television and DBS distributors should be forced to unbundle their program tiers and sell channels to subscribers on an "a la carte" basis, and in turn whether major programmers should be forbidden from conditioning the licensing of their most popular, "must-have" networks on cable and DBS operators' carriage of their less popular ones. While most often fought on a policy basis before the Federal Communications Commission, the issue also has played out in the courts.

On June 3, 2011, in Brantley et al. v. NBC Universal, Inc. et al., a three judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, issued a unanimous opinion holding that consumer plaintiffs who brought a class action to force the unbundling of cable and DBS operators' program tiers had failed to adequately plead an antitrust claim against either the operators or programmers named as defendants in the suit. The plaintiffs have vowed to seek rehearing of the panel's decision by the full Court of Appeals, en banc, and if necessary to seek certiorari review by the U.S. Supreme Court.

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