author: CONTI, District Judge.

text:
    RALPH C. WILSON INDUSTRIES, INC., v. AMERICAN BROADCASTING COMPANIES, INC., Field Communications Corporation; Miami Valley Broadcasting Corporation; Chronicle Broadcasting Company; Viacom International, Inc.; Tandem Productions, Inc.; Twentieth Century-Fox Film Corporation, et al., Paramount Pictures Corporation; Warner Bros., Inc.; MCA Inc.; Metro-Goldwyn-Mayer, Inc.; United Artists Corporation.
    No. C-80-4614 SC.
    United States District Court, N.D. California.
    Nov. 28, 1984.

      Craig Corbitt, Furth, Fahrner, Bluemle, Mason & Wong, San Francisco, Cal., for plaintiff..
    Cooper, White & Cooper, San Francisco, Cal., for Chronicle Broadcasting Co.
    Morrison & Foerster, San Francisco, Cal., for Field Communications.
    Sidley & Austin, Washington, D.C., for Field Communications.
    Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for supplier defendants, Viacom, 20th Century, Paramount, Warner Bros., M.C.A. Television, Metro-Goldwyn-Mayer, United Artists.
    Farella, Braun & Martel, San Francisco, Cal., Dow, Lohnes & Albertson, Washington, D.C., for Miami Valley Broadcasting.
   AMENDED ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT CORRECTING TYPOGRAPHICAL ERRORS AT PAGE 29 LINES 10-11

CONTI, District Judge.

This matter is before the court on defendants’ motion for summary judgment. The background is as follows.

Plaintiff is the owner of a television station, KICU Channel 36 (jointly referred to as “plaintiff” herein). Defendants Chronicle Broadcasting Co. (KRON Channel 4), Miami Valley Broadcasting Co. (KTVU Channel 2) and Field Communications Corp. (KBHK Channel 44) are television stations located in the San Francisco Bay Area. These three defendants will be referred to as the “station defendants.” Defendants Viacom International, Inc., P.I.T.S. Films, Twentieth Century-Fox Film Corp., Paramount Television Domestic Distribution Inc., Warner Bros. Television Distribution, Inc., M.C.A. Television Ltd., Metro-Goldwyn-Mayer, Inc., and United Artists Television, Inc., are suppliers or distributors of television programs. These defendants will be referred to as the “supplier defendants.”

Plaintiff filed this action on December 29, 1980. Plaintiff’s complaint alleges that defendants have violated the antitrust laws because of various practices they follow concerning the licensing of programs and conspiracies to boycott plaintiff. Plaintiff is pursuing three claims against defendants based upon these alleged practices. First, plaintiff claims that all defendants have violated the Sherman Act by unreasonably restraining trade. Plaintiff contends that defendants unreasonably restrain trade by licensing programs on an exclusive basis as against plaintiff, by making the licenses unreasonably long and by incorporating, implicitly or explicitly, rights of first refusal into those licenses. Secondly, plaintiff claims that the station defendants have committed a per se violation of the Sherman Act by a horizontal conspiracy to boycott plaintiff. Plaintiff alleges that these three defendants have conspired, through direct communication, to exercise exclusivity of programming against plaintiff. Thirdly, plaintiff claims that defendant Miami Valley Broadcasting Co. has committed a per se violation of the Sherman Act by conspiring with the Independent Television News Association (ITNA) to exclude plaintiff from membership in that organization. These three claims will be developed in more detail below.

This case has been ongoing for almost four years. In 1982, the defendants filed a motion seeking summary judgment. On the state of the record at that time, the court denied that motion. On August 9, 1984, the court held a status conference in order to clarify the issues and facts for trial. At that conference, the court and parties explored whether it would be appropriate to reconsider defendants’ motion for summary judgment given the extensive record now before the court. As a consequence of that conference, the station defendants moved to renew their motion for summary judgment, in which they were joined by the supplier defendants. The court granted that motion and set a briefing schedule to permit all parties ample opportunity to brief the legal and factual issues in this case. The court specifically directed plaintiff to present a complete brief of its factual arguments which might preclude summary judgment against it, together with a detailed summary of the specific evidence plaintiff intends to present at trial to support those arguments. After this thorough and voluminous supplemental briefing, defendants’ renewed motion for summary judgment is now before the court.

The considerations the court must address in deciding whether summary judgment is appropriate in this case are as follow. Generally, summary judgment is appropriate only when the moving party meets his burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Bank of California, N.A. v. Opie, 663 F.2d 977, 979 (9th Cir.1981); State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 (9th Cir.1980).

Plaintiff contends that this rule should be applied particularly strictly in antitrust cases, making summary judgment less available in such cases than in civil actions generally. Although there is some support for this contention, the better position, advanced by respected antitrust writers and recognized by the courts, is that summary judgment is equally available in antitrust eases. See, e.g., Lupia v. Stella D’Oro Biscuit Co., 586 F.2d 1163, 1167 (7th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979); Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); II P. Areeda & D. Turner, Antitrust Law ¶¶ 316-17 (1978); Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465 (1984).

The argument that summary judgment should be hesitantly granted in antitrust cases is generally founded upon language used by the Supreme Court in Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In Poller, the Court stated:

summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.

Poller, 368 U.S. at 473, 82 S.Ct. at 491. As antitrust writers point out, however, this language must be read in the context of Poller’s genuinely disputed factual issues concerning motive and intent and the discovery problems therein, and not as a rule that summary judgment should rarely be granted in antitrust cases. See, e.g., II P. Areeda & D. Turner, Antitrust Law ¶ 316.

In fact, some writers believe that summary judgment is often particularly appropriate in antitrust cases because of the “fearful dimensions” of such cases, and the fact that many suits are motivated by “commercial disappointment” rather than genuine antitrust problems. II P. Areeda & D. Turner, Antitrust Law ¶ 316 at 57-58 (1978); see also J. von Kalinowski, Antitrust Laws & Trade Regulation § 113.02 at 113-5 to 113-7 (1984); c.f., Lupia v. Stella D’Oro, 586 F.2d 1163; Zweig v. Hearst, 521 F.2d 1129. Given the enormous expenditure of time and other resources commonly necessary in antitrust cases, the complexity of the issues and general inexperience of jurors in this area, as well as the need for uniformity and foreseeability in interpretations of the antitrust laws, the court should, rather, be particularly alert to granting summary judgment in appropriate cases. See, e.g., Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 622 (9th Cir.1977); II P. Areeda & D. Turner, Antitrust Law ¶ 316 at 69-70.

The posture of this case is particularly appropriate for a consideration of summary judgment. This case was filed in 1980. Since that time, the parties have conducted extensive discovery and do not contemplate further discovery. Plaintiff has not indicated that it needs further discovery to adequately defend against defendants’ motion for summary judgment. As noted above, the court has directed plaintiff to submit detailed briefs setting forth the specific evidence it intends to use to support its claims at trial. In the context of this fully developed record, if the court finds that a directed verdict for defendants would be required even if all plaintiff’s proffered evidence were admitted at trial, then the court should not be hesitant to grant summary judgment for defendants at this stage of the proceeding. See, First National Bank v. Cities Service Co., 391 U.S. 253, 274-90, 88 S.Ct. 1575, 1585-1593, 20 L.Ed.2d 569 (1968) [holding that, even though plaintiff’s evidence showing conspiracy might present a jury question, defendants’ evidence to the contrary was so overwhelming that summary judgment was appropriate]; see also, II P. Areeda & D. Turner, Antitrust Law ¶ 316 at 61; Schwarzer, Summary Judgment, etc., 99 F.R.D. at 468-70. Applying this standard to the facts and arguments set forth below, the court finds that summary judgment in favor of defendants is appropriate in this case.

A. Rule of Reason Claim

Plaintiff’s primary claim against the defendants is that they have unreasonably restrained trade through a vertical contract by their combined practices of licensing television programs on an exclusive basis, making the licenses unreasonably long, and by implicitly or explicitly incorporating rights of first refusal into those 'licenses. The factual basis for these contentions, referred to herein as plaintiff’s “rule of reason” claim, is set forth below. First, however, is a brief summary of the statutory basis of plaintiff’s claim.

Section 4 of the Clayton Act, 15 U.S.C. § 15, confers a private right of action for treble damages upon “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws.” “Antitrust laws” is defined to include the Sherman Act, 15 U.S.C. §§ 1-7. 15 U.S.C. § 12(a). Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States____” This blanket proscription, however, has been interpreted to prohibit only “unreasonable” restraints of trade. See, e.g., Standard Oil v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). These sections, therefore, form the statutory basis for plaintiff’s claim against defendants for their allegedly unreasonable restraint of trade.

The unreasonable restraint of trade complained of is as follows. The supplier defendants herein are in the business of licensing television programs to television stations. The undisputed practice of these suppliers is to license programs to the stations on an exclusive basis after a competitive bidding process among interested stations. Thus, for example, a supplier would sell an exclusive license for M*A*S*H to defendant KTVU, who would then be the only station in that area permitted to air M*A*S*H (or specified episodes of M*A*S*H) for the duration of the license.

It is undisputed that the station defendants herein enforce this exclusivity against all television stations, including plaintiff, which they consider to be located in the “San Francisco” market area. This area includes San Francisco, Oakland and San Jose, as well as most of the area around these cities. The area includes all station defendants and plaintiff, as well as several non-party stations. The scope of this exclusive licensing area is determined on the basis of the A.C. Nielson Co. and Arbitron Co. ratings services’ categorization of geographic area into market groups, both of which ratings services include San Francisco and San Jose in the same market group.

Plaintiff does not contend that the practice of licensing television programs on an exclusive basis automatically violates the Sherman Act’s prohibition of restraints of trade. In fact, plaintiff itself licenses programs on an exclusive basis. All parties agree that exclusive licenses, as such, may further competition by providing an incentive to the station to invest in promotion and development of the program product and do not constitute a per se violation of Section 1.

Rather than argue that exclusive licenses automatically violate Section 1 of the Sherman Act, plaintiff contends that they constitute an unreasonable restraint of trade when enforced by the station defendants against plaintiff. Plaintiff argues that the station defendants are entitled to license programs on an exclusive basis, but that that exclusivity should not apply to plaintiff because it is not in the same “relevant market” as the station defendants. Plaintiff submits that the station defendants are licensed to and operate in the San Francisco-Oakland Bay Area market. Plaintiff argues that it, on the other hand, is located in and operates in the “South Bay.” (Plaintiff does not define the area included within the “South Bay,” but it apparently covers San Jose and other areas in and around Santa Clara County.) Accordingly, plaintiff contends that it should be placed in a different geographic market than the station defendants for exclusivity purposes. To illustrate, plaintiffs argument is that defendant KTVU should be permitted to obtain a license for M*A*S*H which is exclusive against the other station defendants and other stations in the San Francisco area, but not those in the “South Bay” area, which includes plaintiff. Consequently, plaintiff could also bid for and obtain an exclusive license to show M*A*S*H, which would be exclusive only against other South Bay stations. Thus, plaintiff argues that the exclusive licenses violate the antitrust laws because they are overbroad in geographic scope, are unreasonably long in duration and incorporate unreasonable rights of first refusal.

The economic motivation for this suit is to enable plaintiff to license quality programming at a price below that paid by the station defendants, such as KTVU, for their exclusive licenses to such programs. It is uncontested that the level of prices for exclusive licenses for quality programming is primarily determined by the broadcast market of the prospective licensees. Presently, all the station defendants and plaintiff are placed in the same market for purposes of bidding for the supplier defendants’ quality ^programming. Thus, if defendant KTVU bids $150,000 for an exclusive license for M*A*S*H, plaintiff must better that bid to obtain the license. Plaintiff has made no argument and there is no evidence showing that plaintiff has been excluded from bidding for quality programming at these price levels. In fact, the evidence shows that if plaintiff wished to bid at this “San Francisco” market price, it could obtain quality programming.

Plaintiff contends that, as a small UHF station, it is not commercially feasible for it to bid at the same price levels as the station defendants to obtain quality programming. What plaintiff seeks is to be placed in some market other than that containing the station defendants for purposes of bidding for quality program licenses. If, for example, plaintiff were placed in the Salinas-Monterey market, in which non-party channel 11 is placed, it could bid for quality programming at a much lower price than that paid by the station defendants. The outcome would be, for example, that defendant KTVU would obtain a license for M*A*S*H, exclusive against the other San Francisco stations, but not plaintiff, for $100,000, while plaintiff could also license M*A*S*H, exclusive against other South Bay stations, for, say, $15,000. That is the result plaintiff seeks to achieve by means of this antitrust suit. This, then, is the factual basis for plaintiff’s rule of reason antitrust claim.

The court will briefly summarize the legal standards to be applied to plaintiffs rule of reason claim. First, plaintiff must show that the defendants’ challenged practices injure, or decrease, competition in the relevant market. If plaintiff fails to prove that competition has been injured, it cannot prevail. See, Standard Oil Co. v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949); Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291 (9th Cir.), cert. denied, 459 U.S. 1009, 103 S.Ct. 364, 74 L.Ed.2d 400 (1982); Gough v. Rossmoor Corp., 585 F.2d 381, 385 (9th Cir.), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979). Secondly, if plaintiff has shown an injury to competition, it must then show that the challenged restraint is “unreasonable.” See, e.g., Standard Oil v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). To show that the restraint is unreasonable, plaintiff must, in this case, prove one of two things. First, plaintiff may show that the restraint is unreasonable because it applies to television stations which are not in “substantial competition” with each other. United States v. Paramount Pictures, Inc., 334 U.S. 131, 146, 68 S.Ct. 915, 923, 92 L.Ed. 1260 (1948). If plaintiff cannot show that it is not in substantial competition with the station defendants, it may nevertheless prevail if it can show that the challenged practices of exclusivity, length of license and rights of first refusal, are “unreasonable” under the circumstances of this case. See, e.g., Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-59, 99 S.Ct. 2549, 2557-62, 53 L.Ed.2d 568, 53 L.Ed.2d 568 (1977); United States v. Paramount Pictures, file., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). For the reasons set forth below, the court holds that plaintiff has not, as a matter of law, met its burden of offering evidence sufficient to support a finding that defendants’ exclusivity practices unreasonably restrain trade.

1. Injury to Competition.

As noted above, the first inquiry must be whether plaintiff has presented genuine issues of material fact which would support a finding that defendants' exclusivity practices injure competition. In order to meet this first test, plaintiff may pursue one of three avenues. First, it may offer evidence to show that the defendants have conspired to restrain competition. Plaintiff does not make this argument and offers no evidence which could justify a finding that the defendants conspired. Secondly, plaintiff could offer evidence showing that the defendants’ exclusivity practices actually injure competition. This is the argument plaintiff primarily relies upon. As shown below, however, plaintiff fails to offer evidence of injury to competition which would withstand a directed verdict for defendants. Thirdly, plaintiff could, as an alternative, seek to show that a defendant has “market power,” tending to make any action of that defendant have a substantial effect on competition. Plaintiff offers some argument on this point but, as addressed below, it is unpersuasive. Accordingly, as set forth below, the court holds that plaintiff has failed to offer evidence which would support a finding that defendants’ exclusivity practices injure competition.

The first inquiry is whether plaintiff has offered evidence which could support a finding that the exclusive license contracts injure competition. In order to address this inquiry, the court must first determine what is the “relevant market” in which competition has allegedly been restrained. See, Gough v. Rossmoor, 585 F.2d at 385-89. This “relevant market” is generally determined by reference to both the relevant product market and the relevant geographic market. See, e.g., Harris & Jorde, Antitrust Market Definition: An Integrated Approach, 72 Cal.L.Rev. 1, 46-52 (1984). In this case, the parties agree, and the court accepts, that the relevant product market is quality television programming. The relevant geographic market, however, is more complex.

Plaintiff contends that the relevant geographic market is the “South Bay.” Although they contested this definition in their earlier motion for summary judgment, defendants now accept, for purposes of this motion, plaintiff’s definition. The court, however, is not persuaded by this definition.

The relevant market is not defined by the parties. See, e.g., Gough v. Rossmoor Corp., 585 F.2d at 389. Rather, the court must consider the commercial realities of the situation to arrive at the definition of the relevant market. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 336-37, 82 S.Ct. 1502, 1529-30, 8 L.Ed.2d 510 (1962); Harris & Jorde, Antitrust Market Definition, 72 Cal.L.Rev. at 47-52, 65-66. In this case, the commercial realities are so clear that the court holds that the relevant geographic market is the entire San Francisco-Oakland-San Jose Bay Area, as currently defined.

These commercial realities are as follow. First, the Federal Communications Commission (FCC) considers San Jose and San Francisco to be in the same market. See, 47 C.F.R. § 76.51; Memorandum Opinion, 37 R.R.2d 695, 698 (1976); 40 R.R.2d 473, 477-78 (1977). Secondly, the two recognized national ratings services, A.C. Nielson Co. and Arbitron Co., consider San Jose and San Francisco to be in the same market. See, McClure Affidavit ¶¶ 16-17 (Exhibit CC to Levy Declaration); Broadcasting/Cablecasting Yearbook 1982 at B-1 (Exhibit A to Thurston Declaration); c.f., 47 C.F.R. § 73.658(1)(1)(vii); WIXT Television, Inc. v. Meredith Corp., 506 F.Supp. 1003 (N.D.N.Y.1980); Davison Deposition 615:24-617:3; 992:23-993:20; 1100:22-1101:23; Heath Deposition 290:14-20; Romanelli Deposition 975:3-12; Snyder Deposition 5:13-19; Wischmeyer Deposition 208:4-8; Bell Deposition 48:16-49:12; Heath Deposition 28:6-30:14; Dean Deposition 26:2-12; Welch Deposition 39:17-23. Thirdly, there is a large overlap in the signal coverage of plaintiff’s and the station defendants’ signals. See, e.g., Exhibit DD to Levy Declaration; Bell Deposition 59:1-5; Wischmeyer Deposition 232:23-28; Maguire Exhibits 32-33; Heath Exhibit 4; Romanelli Exhibit 72; Welch Deposition 18:22-20:23, 34:3-5, 36:4-38:4, 37:7-38:4, 48:24-49:12, Exhibits 3, 7. Finally, plaintiff and the station defendants share a substantial overlap of viewers. See, Arbitron Ratings (1984); Welch Deposition Exhibit 5; Maguire Deposition 1047; Hirshey Deposition 951; Schemer Deposition 93-94; Ball Deposition 242-43, 511-12; Frischer Deposition 84-85; Plaintiff’s Contentions ¶¶ 81, 202-04; Park Declaration ¶¶ 21-25.

These facts are so clear that a reasonable jury would have to find that the relevant geographic market is the entire San Francisco Bay Area, including San Jose. Accordingly, the court holds that the relevant market in this case is the San Francisco Bay Area quality television programming market. Even were the court to accept the parties’ definition of the relevant market as the “South Bay” quality programming market, however, the outcome would be the same. For the reasons set forth below, it is clear that plaintiff cannot prove that defendants’ exclusivity practices unreasonably restrain trade in either market.

As noted above, the court must determine whether plaintiff has produced evidence, sufficient to avoid a directed verdict, showing injury to competition in the relevant market. The court finds that plaintiff has not met that burden. As argued more fully in the defendants’ Memoranda of Points and Authorities, it is not sufficient for plaintiff to establish an injury to itself or its own competitive position. See, e.g., Cascade Cabinet Co. v. Western Cabinet & Millwork, Inc., 710 F.2d 1366, 1373 (9th Cir.1983); Klamath-Lake Pharmaceutical Association v. Klamath Medical Service Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert, denied, — U.S. —, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983); Kaplan v. Burroughs Corp., 611 F.2d 286, 291 (9th Cir.1979), cert. denied, 447 U.S. 924, 100 S.Ct. 3016, 65 L.Ed.2d 1116 (1980); Gough v. Rossmoor Corp., 585 F.2d at 385-89. This is all plaintiff has done. Plaintiff offers no evidence tending to show that it cannot obtain quality programming, that prices are fixed, that program offerings are detrimentally affected, or that program output has in any way been restricted. Some showing of this type is necessary to establish injury to competition. See, e.g., National Collegiate Athletic Association v. Board of Regents, — U.S. —, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984); Mid-West Underground Storage, Inc. v. Porter, 717 F.2d 493 (10th Cir.1983); Zoslaw v. MCA Distributing Corp., 693 F.2d 870 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983); Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376 (9th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981).

Despite the fact that plaintiff has produced no evidence to show that defendants’ exclusivity practices actually injured competition, a jury might find injury to competition if plaintiff proved that any one defendant has market power. If a defendant has market power, it is much more likely that its actions can injure competition. Thus, if plaintiff submitted evidence tending to show that a defendant has market power, the court might permit the issue to go to the jury. The court finds, however, that plaintiff has not offered evidence from which a jury could find that any defendant has market power.

Plaintiff has offered no evidence showing that any one defendant has market power. The evidence shows that the ten or more Bay Area stations all compete vigorously in both the South Bay and the Bay Area as a whole. The evidence also shows that the supplier defendants actively compete in both areas. See, Park Deposition 45-47; Fisher Declaration 1152. There is no evidence showing that any one defendant has the power to significantly affect prices, available programming, or any other important market component. Consequently, plaintiff has not offered evidence sufficient to go to the jury on the issue whether a defendant has market power.

To summarize the above, the court holds that the plaintiff has not met its burden of producing evidence which would support a finding that the challenged practices restrain competition. Plaintiff has not shown that the exclusivity practices actually injure competition or that any defendant has market power. Accordingly, the court holds that plaintiff cannot prevail on its rule of reason claim. Defendants are consequently entitled to summary judgment.

The court might end its inquiry at this point. In deference to the enormous record before the court and in the interests of caution, however, the court will proceed to address the parties’ other arguments.

Assuming, contrary to this court’s ruling, that plaintiff had offered sufficient evidence of an injury to competition, plaintiff must then show that the exclusivity practices are “unreasonable.” The first way plaintiff may establish this is by offering sufficient evidence to show that plaintiff and defendants are not in “substantial competition.” If plaintiff is not in substantial competition with defendants, the exclusivity practices are presumptively unreasonable. See, United States v. Paramount Pictures, Inc., 334 U.S. at 144-48, 68 S.Ct. at 922-24. If the parties are in substantial competition, plaintiff must then offer evidence showing that the challenged exclusivity practices are unreasonable given the particular circumstances of this case. See, e.g., Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-54, 97 S.Ct. 2549, 2557-59 (1977); United States v. Paramount Pictures, Inc., 334 U.S. at 144-48, 68 S.Ct. at 922-24; see also, P. Areeda, The “Rule of Reason” in Antitrust Analysis: General Issues (Federal Judicial Center 1981).

The court will first determine whether there is sufficient evidence in the record to support a finding that plaintiff is not in “substantial competition” with the station defendants. As noted, if the parties are not in substantial competition, then the exclusivity practices are “unreasonable” restraints of trade. United States v. Paramount, 334 U.S. at 144-48, 68 S.Ct. at 922-24. The court finds that the evidence that the parties are in substantial competition is so overwhelming that the court may make such a ruling in this summary proceeding. As set forth above, the relevant market herein is the San Francisco Bay Area quality programming market. Even if the court accepted the parties’ definition of the relevant market as the South Bay, however, the court would nevertheless find that plaintiff and defendants are in substantial competition in that market.

As noted above, plaintiff argues that it is not in substantial competition with the station defendants because it is a “local” station attracting “local” advertisers. The evidence shows, however, that the station defendants actively compete with plaintiff for viewers, quality programming and advertising in both the San Francisco Bay Area and the South Bay markets. See, Fisher Decl. ¶ 4; Davison Decl. ¶¶ 11-13, 38, 39; Plaintiff’s Contentions ¶¶ 14, 81, 168 n. 17, 202-04; Park Decl. ¶¶ 21-25, 89, 94; Arbitron Ratings Data (1984) (Ross Declaration); Welch Deposition Exhibit 5; Scheiner Deck ¶9. This evidence, including evidence from plaintiff’s own experts, shows clearly that plaintiff and the station defendants are in “substantial competition.”

Given that plaintiff and the station defendants are in substantial competition with each other, plaintiff must now offer evidence sufficient to find the exclusivity practices “unreasonable” under the particular circumstances of this case. If plaintiff cannot submit evidence sufficient to support a finding that the exclusivity practices are unreasonable, it cannot prevail on its rule of reason claim. After careful review of the evidence in the record, the court finds that plaintiff has failed to offer evidence to support a finding that the exclusivity practices herein, consisting of the geographic breadth of the exclusivity, the length of the licenses and the alleged rights of first refusal, are unreasonable under the circumstances of this ease.

The court holds that no reasonable jury could find that the practices complained of herein are unreasonable. The parties agree that exclusivity, in itself, is a reasonable practice in the television programming industry. Such exclusivity gives the licensee the incentive to promote and develop the licensed program. Without exclusivity, it is likely that no one licensee would expend the resources necessary to fully develop the program. See, Bell Deposition 36:6-24, 59:20-60:23; c.f., Sandura Co. v. FTC, 339 F.2d 847, 852-53 (6th Cir.1964). Plaintiff itself utilizes exclusive licenses similar to those attacked herein. The exclusive licenses used herein promote competition by maximizing the number of available programs and preventing audience fragmentation for a program. See, Thurston Deposition 230:19-20; Maguire Deposition 369:20-370:19, 375:21-376:1; c.f., Cascade Broadcasting Corp. v. KPDQ, Inc., 1976-1 Trade Cases (CCH) ¶ 60,617 (D.Ore.1976); FCC, First Report on Microwave Relays, 4 R.R.2d 1725, 1748 (1965). This exclusivity also promotes competition by maximizing the program’s value and avoiding overexposure, which can shorten the program’s useful life. See, Davison Deposition 155:12-156:13; Snyder Deposition 3:4-11, 4:3-1; Thurston Deposition 231:1-2; Park Deposition 23:20-22. Exclusivity also adds to the uniqueness of each station’s viewer identity. See, Welch Deposition 80:19-23; Bell Deposition 58:8-11, 68:10-16; Boyer Deposition 111:3-6; Thurston Deposition 230:14-16. Exclusivity permits each station to plan programming to compete with another station’s programming, with the knowledge that no other station will dilute the value of this competitive programming by airing the same program at the same time. See, Hirshey Deposition 276:7-277:8 and Exhibit 14; Wischmeyer Deposition 129:23-130:28; Breen Deposition 476:9-477:13. Exclusive licenses promote competition among suppliers by providing an incentive to maximize the number of programs offered and by maximizing the supplier’s revenues from the licenses. See, Grayson Deposition 235:13-236:26; Snyder Deposition 17:10-24; Thurston Deposition 230:19-21, 692:24-28, 743:18-22; c.f., Naumkeag Theatres Co., Inc. v. New England Theatres Inc., 345 F.2d 910, 912 (1st Cir.), cert. denied, 382 U.S. 906, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965); Posner, The Next Step in the Antitrust Treatment of Restricted Distribution: Per Se Legality, 48 U.Chi.L.Rev. 6, 15 (1981).

In contrast to this overwhelming evidence of the reasonableness and procompetitive aspects of the defendants’ exclusivity practices, plaintiff offers very scanty evidence of the practices’ unreasonableness. Plaintiff suggests that defendants’ exclusivity practices decrease the number of time slots in which viewers can tune in to a specific program. See, Park Declaration at ¶¶ 91-96. This argument, however, does not support a finding that the particular exclusivity practiced here is unreasonable, just that exclusivity generally is unreasonable, which is not plaintiffs claim.

Plaintiff also argues that the exclusivity practices here are unreasonable because not enforced against plaintiff’s alleged competitor, non-party KNTV Channel 11. It is undisputed that exclusivity is not enforced against KNTV. The evidence shows overwhelmingly, however, that KNTV is not in the same competitive position as is plaintiff. KNTV’s signal coverage begins in San Jose, but extends only south, into the Salinas-Monterey area. The ratings services assign KNTV to that Salinas-Monterey market, from which it draws a majority of its viewers. See, Ross Declaration ii 11, Exhibit C, Tables 1-3; Fisher Declaration ¶¶ 37-38; Park Declaration ¶¶ 22, 50, 51, 71. Thus, there is a strong factual argument that KNTV 11 is not a “competitor” of the station defendants and, therefore, that defendants’ exclusivity practices should not extend to KNTV. Even were KNTV in the same position as plaintiff, however, such disparate treatment would not support a finding of unreasonableness. See, e.g., Zoslaw v. MCA Distributing Corp., 693 F.2d 870 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983); c.f., Ron Tonkin v. Fiat Distrib., 637 F.2d at 1387.

Plaintiff also has offered no evidence showing that the length of the licenses and rights of first refusal, if they exist, are unreasonable under the circumstances of this case. It is interesting to note that plaintiff itself obtains licenses with similar terms. See, Crocker Declaration. This scanty evidence is entirely unpersuasive, and cannot overcome the overwhelming evidence submitted by defendants that their exclusivity practices, including the length of the licenses and any rights of first refusal, are reasonable. Accordingly, it is appropriate to summarily hold that defendants’ challenged exclusivity practices are reasonable.

In summary, the court holds that defendants are entitled to summary judgment on plaintiff’s rule of reason claim. Plaintiff has offered no evidence which would withstand a directed verdict for defendants on the issue whether defendants’ challenged practices have injured competition. Because plaintiff cannot show that defendants’ practices have injured competition, it cannot prevail on its rule of reason claim. Even if plaintiff could show an injury to competition, however, plaintiff cannot prevail because it cannot show that it is not in substantial competition with the station defendants or that the combined exclusivity practices are otherwise unreasonable under the circumstances of this case. Accordingly, the court hereby grants summary judgment for the defendants on plaintiff’s rule of reason claim.

B. Conspiracy Claim Against Station Defendants.

Plaintiff’s second antitrust claim is directed against the station defendants. Plaintiff contends that the station defendants have violated Section 1 of the Sherman Act by a per se horizontal conspiracy to enforce exclusivity against plaintiff.

Summary judgment should, as the Supreme Court has held, be “sparingly” granted where “motive and intent” play important roles in plaintiff’s conspiracy claim and complete discovery may have been obstructed. Poller v. Columbia Broadcasting, 368 U.S. at 473, 82 S.Ct. at 491. That is not the situation here. The record here has been fully developed and plaintiff has been given the opportunity to offer evidence to the court supporting its conspiracy claim. No issues of motive or intent have been raised. If, under these circumstances, plaintiff fails to present evidence to support its claim that defendants conspired to enforce exclusivity against it, then summary judgment is appropriate. See, e.g., First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 539-44, 74 S.Ct. 257, 258-61, 98 L.Ed. 273 (1954); Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir.1977).

The court will now address the evidence plaintiff offers to determine whether such evidence can withstand summary judgment on this conspiracy claim. For the reasons given below, the court finds that it cannot.

Plaintiffs first argument is that the defendants’ parallel conduct permits an inference of conspiracy. Even if plaintiff could show that the defendants’ conduct with respect to exclusivity is parallel, which defendants dispute, such evidence could not, by itself, support plaintiff's conspiracy claim. See, Theatre Enterprises v. Paramount, 346 U.S. at 541, 74 S.Ct. at 259; Workman v. State Farm Mutual Automobile Insurance Co., 520 F.Supp. 610, 620 (N.D.Cal.1981).

Similarly, plaintiff’s offered proof of an opportunity to conspire, even if accepted by a fact finder, cannot, even when combined with proof of parallel conduct, support a finding of conspiracy. See, Kreuzer v. American Academy of Periodontology, 735 F.2d 1479, 1488 (D.C.Cir.1984); Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir.1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977).

In order to go to the jury on its conspiracy claim, plaintiff must submit some sort of proof that the defendants actually conspired — some “conscious commitment to a common scheme” — or other special facts permitting a finding of conspiracy. Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, -, -, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775, 785-86 (1984); see, e.g., First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569; Independent Iron Works, Inc. v. U.S. Steel Corp., 322 F.2d 656, 661 (9th Cir.), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 165 (1963).

Despite extensive discovery, plaintiff offers only one item of evidence to substantiate its claim that the station defendants conspired to enforce exclusivity against it. This one item is telephone calls by KTVU’s Mr. Breen to other stations in the area, in which they discussed exclusivity practices. Defendants do not dispute that these telephone calls occurred. Rather, defendants present convincing and undisputed evidence showing that these calls were made after the alleged conspiracy began, on advice of counsel after plaintiff threatened litigation concerning exclusivity, and were undertaken to discover the exclusivity practices of other stations in the area. See Breen Deposition 221:22-222:2; Lutzker Affidavit of June 11, 1982, TI IT 4-5. Such overwhelming and uncontested evidence shows that plaintiff’s only item of evidence cannot, as a matter of law, substantiate its conspiracy claim. C.f., Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1280 (8th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984).

In addition to their evidence rebutting plaintiff’s meager evidence of conspiracy, the defendants have submitted overwhelming evidence that their exclusivity practices were undertaken in the exercise of their independent and sound business judgment. See, Fisher Declaration iff 16, et seq.; evidence of proeompetitive and legitimate purposes set out above, at 18 — 19; and evidence that the FCC sanctions defendants’ exclusivity practices, which is an indicator of an independent proeompetitive practice, see 47 C.F.R. § 73.658(m); Broadcast Music, Inc. v. CBS, 441 U.S. 1, 13, 99 S.Ct. 1551, 1559, 60 L.Ed.2d 1 (1979); c.f., Foster v. Maryland State Savings & Loan Association, 590 F.2d 928 (D.C.Cir.1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979). This showing, which makes it more likely than not that defendants’ exclusivity practices were the result of independent business judgment, is sufficient to compel summary judgment on plaintiff’s conspiracy claim. See, e.g., Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 884 (8th Cir.1978).

The court is confronted with a situation where the plaintiff has offered no evidence from which a jury could find that the station defendants conspired to practice exclusivity against plaintiff. Despite extensive discovery, plaintiff has found no probative evidence showing a conspiracy. On the other hand, the defendants have submitted extensive, convincing evidence that they did not conspire but, rather, made independent decisions concerning exclusivity in the exercise of sound business judgment. Under the circumstances of this case, the court holds that summary judgment for the station defendants is appropriate on plaintiff’s conspiracy claim. C.f., First National Bank v. Cities Service Co., 391 U.S. at 274-90, 88 S.Ct. at 1585-93. Accordingly, the court hereby grants defendants’ motion for summary judgment on plaintiff’s second claim of a horizontal conspiracy.

C. Conspiracy by Miami Valley and ITNA.

Plaintiff’s third and last antitrust claim is that defendant Miami Valley illegally conspired with the Independent Television News Association (ITNA) to exclude plaintiff from membership in that organization. The facts underlying this claim are as follow.

The ITNA is a cooperative association which provides non-exclusive news feeds to its members. See, Bell Deposition at 129. The price charged for membership in the association is based upon the broadcasting market of the prospective station member. It is undisputed that, in 1980, plaintiff applied for membership in ITNA. Mr. Novitz, managing director of ITNA, originally indicated that ITNA would charge plaintiff a membership price based upon the size of the San Jose market. Plaintiff’s Exhibit 544; Plaintiff’s Contentions ¶¶ 214-18; Defendants’ Response to ¶¶ 214-18. Shortly thereafter, however, Novitz told plaintiff that its membership rate would be set at the San Francisco price, approximately four times the price originally discussed.

Plaintiff claims that Novitz’ action in refusing to give plaintiff membership at a San Jose price was the result of a conspiracy with defendant Miami Valley (KTVU) to exclude plaintiff from the organization. Plaintiff’s claim is thus not that it was excluded from membership in ITNA completely, but that it was excluded at anything but the San Francisco membership price.

Plaintiff offers no evidence from which a jury could find that KTVU conspired with ITNA to exclude plaintiff from membership. Plaintiff’s only allegation is that KTVU, a board member of ITNA, voted to refuse to permit plaintiff membership at less than the San Francisco market rate. The board, however, consists of seven directors who jointly voted to extend plaintiff membership only at the established San Francisco market rate. See, Bell Deposition at 128-148; Davison Deposition at 609-610; Plaintiff’s Exhibit 670. This evidence, without more, is legally insufficient to support a finding of conspiracy where, as here, plaintiff offers no proof of improper motive or any illegal concerted action. See, e.g., Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 n. 9 (9th Cir. 1969); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952), cert. denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953).

Defendants, on the other hand, offer convincing evidence that there was no conspiracy and that ITNA’s decision to permit plaintiff membership only at the “San Francisco” price was an independent business decision based upon its established practices. First, ITNA’s membership rates are determined by the prospective member’s market as defined by Arbitron’s ADI book. PX 578. As noted above, that ratings book puts plaintiff in the same San Francisco market as all the station defendants. Evidence from plaintiff’s own employee, Buckmaster, who negotiated with ITNA’s Novitz, shows that Novitz did not, at the time of the original negotiations, know that plaintiff was listed in the San Francisco Arbitron market. Buckmaster Deposition 102-04, 120. In addition, KTVU’s director Alan Bell’s uncontradicted testimony is that KTVU did not conspire to exclude plaintiff from membership, but was perfectly willing to permit plaintiff to join ITNA at the same San Francisco price which KTVU paid for membership. Bell Deposition 133, 141.

The court finds that plaintiff cannot, as a matter of law, prevail on its ITNA conspiracy claim. First, plaintiff offers no proof of conspiracy. Secondly, ITNA’s decision to abide by its normal pricing structure rather than give plaintiff preferential treatment cannot support such a claim. See, United States v. Colgate & Co., 250 U.S. 300, 306, 39 S.Ct. 465, 467, 63 L.Ed. 992 (1919); Hatley v. American Quarter Horse Association, 552 F.2d 646, 652 (5th Cir.1977); Ricchetti v. Meister Brau, Inc., 431 F.2d 1211, 1214 (9th Cir.1970), cert. denied, 401 U.S. 939, 91 S.Ct. 934, 28 L.Ed.2d 219 (1971); Bridge Corp. of America v. American Contract Bridge League, 428 F.2d 1365, 1370 (9th Cir.1970), cert. denied, 401 U.S. 940, 91 S.Ct. 940, 28 L.Ed.2d 220 (1971). In addition, plaintiff has offered no evidence whatsoever to prove an injury to competition, as opposed to injury to itself as a competitor, or proof that ITNA has market power, to support its conspiracy claim. See, e.g., Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Association, Inc., 672 F.2d 1280, 1287 (7th Cir.1982). For these reasons, plaintiff cannot prevail on its ITNA conspiracy claim and defendant Miami Valley is entitled to summary judgment on that claim.

In summary, the court holds that plaintiff cannot prevail on any of its three antitrust claims. There is no evidence in the record to show that the defendants conspired to exclude plaintiff from quality programming or to enforce exclusivity against plaintiff. Nothing in the record shows that defendants acted anything but reasonably in obtaining and enforcing exclusive licenses, or in any other challenged practice. Rather, the record shows that plaintiff is unwilling to pay the going market price for programs or news feeds, and is seeking redress from this grievance by means of an antitrust suit. This is not the purpose of antitrust laws. Antitrust laws were designed to protect free market competition, not the financial success of any particular competitor. Nothing in the record shows that defendants’ challenged actions in any way have decreased or injured competition.

In accordance with the foregoing, the court hereby grants defendants’ motion for summary judgment on the entire action.

      . Defendant American Broadcasting Co. (KGO-TV Channel 7) was dismissed pursuant to stipulation on June 7, 1982.

      . Substituted as a defendant in place of Tandem Productions, Inc.

      . Plaintiffs Supplemental Complaint was filed on March 29, 1982.

      . Plaintiff originally pursued five antitrust claims against defendants. See Transcript of August 9, 1984, hearing; Plaintiff's March 8, 1983, Pretrial Statement. Plaintiff has now abandoned its horizontal conspiracy claim against the supplier defendants and all the monopoly claims and is pursuing only these three claims. See Plaintiff’s September 4, 1984, Statement of Contentions and Proof.

      . See, e.g., Robert’s Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403 (9th Cir.1984); Fine v. Barry and Enright Productions, 731 F.2d 1394 (9th Cir.), cert. denied, — U.S. —, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Aydin Corp. v. Loral Corp., 718 F.2d 897 (9th Cir.1983); Cascade Cabinet Co. v. Western Cabinet & Millwork, Inc., 710 F.2d 1366 (9th Cir.1983); Klamath-Lake Pharmaceutical Association v. Klamath Medical Service Bureau, 701 F.2d 1276 (9th Cir.), cert, denied, — U.S. —, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983); JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc., 698 F.2d 1011 (9th Cir.), cert. denied, — U.S. —, 104 S.Ct. 106, 78 L.Ed.2d 109 (1983); General Business Systems v. North American Phillips Corp., 699 F.2d 965 (9th Cir.1983); Continental T.V., Inc. v. G.T.E. Sylvania Inc., 694 F.2d 1132 (9th Cir.1982).

      . Defined, generally, as programming which is high in the viewer ratings. See, e.g., Davison Declaration ¶¶ 11-13; Plaintiff’s August 2, 1982, Memorandum of Points & Authorities at 29:1-6.

      . A UHF (ultra high frequency) station's signal is generally much less powerful than that of a VHF (very high frequency) station. A UHF station generally sells for much less than a VHF station. See, e.g., Park Declaration ¶¶ 45-61.

      . The court need not decide, for purposes of this motion, whether plaintiff must prove that a defendant has market power in order to support a rule of reason antitrust claim. Plaintiff, relying upon N.C.A.A. v. Board of Regents, -U.S.-, 104 S.Ct. 2948, 2965, 82 L.Ed.2d 70 (1984), contends that market power need not be proved. Defendants, relying upon General Leaseways v. National Truck Leasing, 744 F.2d 588, 1984-2 Trade Cases ¶ 66,205 (7th Cir.1984) and the proposed Department of Justice guidelines concerning vertical restraints (see Mr. Popofsky’s November 1, 1984, letter to this court), argue that plaintiff cannot avoid summary judgment because it offers no proof that any defendant has market power. This court need not decide that issue. In this case plaintiff has not shown a conspiracy, actual injury to competition or market power.

      . As one antitrust writer has stated:
      In some cases, the evidence adduced may not permit the court confidently to decide the question of market definition. For example, the plaintiffs prima facie definition and defendant's rebuttal definition might both be plausible. In that situation, the parties would do well to present — and the trier of fact to consider — other evidence of market power that might assist the court in deciding which market definition is the more appropriate.
      Harris & Jorde, Antitrust Market Definition: An Integrated Approach, 72 Cal.L.Rev. 1, 66 (1984). This court adds that it may in fact find, after considering the commercial realities of the situation, that some market definition other than that advanced by the parties is the most appropriate. It is the facts and realities of the situation that establish the actual market — not the desires or wishes of the parties. Unlike most controversies where the parties might stipulate as to the facts surrounding the lawsuit, in antitrust cases it is market competition that the court is concerned with, not competitors.

      . Plaintiff contended, in oral argument on this motion, that it may aggregate defendants’ market shares to establish market power. It is not clear whether plaintiff contends that it may aggregate one defendant’s share of several markets or that it may aggregate all the station defendants’ market shares to establish market power. If plaintiff seeks to aggregate one defendant’s share of more than one market, it has offered no factual evidence or legal argument which would permit such aggregation in this case. If plaintiff seeks to aggregate all the station defendants’ market shares to establish market power, it may not do so. As noted above, plaintiff does not claim, and the evidence does not show, that the defendants conspired. Absent a conspiracy among defendants, plaintiff may not aggregate the respective market shares of individual defendants to establish market power. If a plaintiff could do so, it could merely sue all its competitors in a given market, aggregate their shares, and thus unfailingly establish market power.

      . See note 8 supra.

      . This, of course, again assumes that plaintiff has produced evidence of injury to competition.

      . Contrary to plaintiff’s argument, there is no evidence showing that a supplier’s revenues would be increased by licensing a program, for example M*A*S*H, to both a station defendant and plaintiff. Plaintiff’s argument seems to be based upon the faulty assumption that the station defendant would pay the same price as it currently pays for a program which is not exclusive against plaintiff. The evidence shows, however, that a station defendant would not pay the same price, but a substantially lower one. There is no evidence showing that the combined prices paid by a station defendant and plaintiff for the same show would exceed the price currently paid by the station defendant for a license which is exclusive against plaintiff. The evidence, in fact, indicates the contrary. See, e.g., argument of Jessica Pers, supplier defendants’ attorney, at August 9, 1984, hearing, and deposition evidence cited immediately after note 13 in the text, supra.

      . Even if plaintiff offered stronger evidence to prove unreasonableness, the court might still find the practices reasonable as a matter of law where, as here, the facts are undisputed and the court is only required to apply the proper legal standard of "reasonableness” to those undisputed facts. See, Continental T.V., Inc. v. GTE Sylvania Inc., 694 F.2d 1132, 1135 (9th Cir. 1982); c.f., II P. Areeda & D. Turner, Antitrust Law ¶ 315 (1978); Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 469-76 (1984).

        . See, Efigenio Declaration; Bell Deposition Exhibit 6; Thurston Deposition Exhibit 41; Wischmeyer Deposition Exhibit 17. This evidence shows that the defendants’ exclusivity practices are different, not identical. Such evidence supports a finding that the defendants’ conduct was not "parallel.” See, e.g., Du Pont Glore Porgan, Inc. v. American Telephone & Telegraph Co., 437 F.Supp. 1104, 1125 (S.D.N.Y.1977), aff’d mem., 578 F.2d 1366 (2d Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 465, 58 L.Ed.2d 431 (1978).

      . Given the court’s disposition of this case, it need not address defendants' argument that the new Copyright Act exempts these exclusive licenses from coverage under the antitrust laws.


source: Caselaw Access Project

author: ELMO B. HUNTER, Senior District Judge.

license: Public Domain

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 41, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Defendant.
    No. 82-0632-CV-W-3.
    United States District Court, W.D. Missouri, W.D.
    Nov. 28, 1984.

      A. Mary Sterling, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.
    Michael Gordon, Kansas City, Mo., for defendant.
   OPINION AND ORDER

ELMO B. HUNTER, Senior District Judge.

This matter comes before the Court for disposition following a full trial to the Court. The Secretary of labor challenges a 1981 election run by defendant, Local 41, claiming that a determinative number of members were denied a reasonable opportunity to vote. The basis of the Secretary’s challenge is that the only polling place used in the election was in Kansas City, Missouri, while the union’s membership covers a broad geographic area. No mailed ballots were made available for use by the membership.

This action began when Dale Holland and Paul Spicer, members in good standing of Local 41 and unsuccessful candidates in the 1981 election, protested the election because there were “some members that could not vote because of the distance in which they live — some in Springfield, Missouri, Sedalia, Missouri, Iola, Kansas, and Wichita, Kansas — plus the Schneider people.”

Local 41 is a labor organization with its principal office located in Kansas City, Missouri. From December 9 to 13, 1981, Local 41 held an election of officers for the positions of president, vice president, secretary-treasurer, recording secretary and three trustees. The margin of votes for the various officers was such that the Secretary of the Department of Labor chose to challenge the election of the president (decided by a 157 vote margin) and the third trustee (decided by an 83 vote margin). 3,972 out of approximately 8,200 members voted in the election.

Defendant challenges the authority of the Secretary to bring this suit on the grounds that the complaining union members failed to exhaust internal union remedies before complaining to the Department of Labor. Exhaustion of union remedies is a prerequisite to filing a complaint with the Secretary against the Union. 29 U.S.C. § 482(a)(1). Defendant asserts that the complaining members in this case failed to comply with union rules requiring a member who is aware of a problem concerning an election prior to the election to submit a written protest or charge to the local union secretary-treasurer within forty-eight hours of his knowledge of the event or problem of which he complains. Defendant contends that the complaining members’ knowledge, prior to the election, that no mailed ballots would be used, combined with their knowledge that some members had residences substantial distances from the polling place required them to complain before the election that some members would be denied a reasonable opportunity to vote.

The record is clear that both Holland and Spicer were aware that the Local 41 membership included drivers who resided hundreds of miles from the polling place. The record is also clear, however, that before the election Holland and Spicer were not aware that there were members who lived substantial distances from Kansas City who did not work out of terminals or “barns” located in the Kansas City area. Holland and Spicer were not concerned about the distance and inconvenience incurred by over-the-road drivers who worked out of Kansas City. The underlying protest was based on the fact that there were members who lived and worked far enough away from Kansas City to deprive those members of a reasonable opportunity to vote in an election held in Kansas City. There is no claim that, once Holland and Spicer became aware of the extent and nature of the membership, they failed to comply with Union protest procedures. Had Holland and Spicer been provided with an adequate list of employees or employers, it is possible that they would have learned of the extent of the membership before the election, and this case could have been avoided. There was no failure to exhaust union remedies with regard to the complaint pertaining to members who lived and worked out of terminals substantial distances from Kansas City.

The Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq., provides that members of labor organizations shall have the right to vote for or otherwise support the candidates of their choice. 29 U.S.C. § 481(e). This statutory protection of the right to vote implies that a member must have a reasonable opportunity to vote. The statute does not purport to set up exact and rigorous requirements to be followed, but allows the unions a degree of discretion in the way their elections are to be run. The reviewing court must examine the voting arrangements actually employed in light of the particular circumstances of the local union and its membership to determine whether members have been given reasonable access to the exercise of their franchise. The question is not whether better procedures could have been employed or whether the union could have made voting more convenient for some persons, but whether the arrangements made by the union are so lacking in democratic principles and are so unfair to the members affected, that the effect is to deny those persons a reasonable opportunity to vote. Hodgson v. Local Union 582, 350 F.Supp. 16, 19 (C.D.Cal.1972).

The evidence showed that the 1981 election was run in the same basic manner as Local 41’s elections have been run for at least twenty-seven years. There was a single polling place at the union hall which was open for voting for five consecutive days, including a weekend, from 8:00 a.m. to 8:00 p.m. Having such a long open voting period was an attempt to give everyone an opportunity to vote.

The subject of mailed ballots was discussed by the incumbent administration. After conferring with counsel, it was decided to run the election as it had always been run to avoid the possibility of a challenge, and to avoid unnecessary expense. When this procedure was proposed at a meeting of the candidates, no objection was made. At no time before or during the election did any member or candidate request that mailed ballots be used. There was no evidence of bad faith in the administrative decision not to propose the use of mailed ballots. The lack of bad faith, however, is not determinative of whether the members were afforded a reasonable opportunity to vote.

Whether particular members were given a reasonable opportunity to vote must be determined in light of the circumstances of the local union and its membership prevailing at the time of the challenged election. A union cannot presume that voting procedures used without challenge in the past will be immune to attack. The procedures may have been deficient all along without complaint, or the circumstances of the membership may have changed. The LMRDA imposes an affirmative duty on the union to insure that its membership is afforded a reasonable opportunity to vote.

At the time of the election, Local 41 had members working out of terminals in Jefferson City, Joplin, Miller, and Springfield, Missouri, and Sedgwick and Phillipsburg, Kansas. The distances from these places to Kansas City surprisingly has been the subject of some controversy in this case. Because plaintiff used a cut-off point of 148 miles in calculating the number of persons who allegedly were denied a reasonable opportunity to vote, defendant has complained that precise measurements may not have been made. Any difference between actual highway miles and miles calculated by using an official highway map will not be determinative. There is no magic to the Government’s choice of 148 miles as a cut-off for purposes of presentation of its case. The question is whether, under all of the circumstances, members were given a reasonable opportunity to vote.

At the time of the election, 115 members of Local 41 were employed at the United Parcel Service terminals in Joplin and Springfield. All of these workers fell under a union security agreement that required them either to pay fees equal to membership dues or to become and remain members in good standing with Local 41. None of these employees ever came to Kansas City as part of a regular job assignment. While not all of these employees lived within the city limits of Joplin or Springfield, a review of the list of employee addresses indicates that none of these employees lived within a 110 mile radius of Kansas City.

United Parcel Service is a package delivery business, with the busiest time of the year for its employees being the period just before Christmas, December 25. During the pre-Christmas season UPS employees work many overtime hours and would find it nearly impossible to get permission from UPS management to take a day off with or without pay to vote. In order to have voted in this election, these employees, on their own, limited free time, would have had to make a 5-7 hour trip to Kansas City at their own expense. While there was no evidence of the actual weather and driving conditions prevailing at the time of the election, there was evidence that travel conditions are generally more likely to be more hazardous and less predictable during December in Kansas City than at other times of the year. Not one of the 115 Joplin or Springfield members voted in the election.

At the time of the election, KAW Transport had terminals in Jefferson City, Belle and Miller, Missouri, and Sedgwick and Phillipsburg, Kansas. The drivers working out of Jefferson City hauled bulk asphalt and petroleum products mostly around the Jefferson City area and the resort area around the Lake of the Ozarks. The Belle drivers hauled southeast of Jefferson City, and occasionally into St. Louis. The Miller drivers hauled within the southern portion of Missouri. Drivers out of the Sedgwick terminal delivered to 48 states. Phillips-burg drivers’ runs included the northwest part of Kansas with an occasional run to the Kansas City area. None of these drivers were dispatched out of Kansas City. Other employees at these terminals were shop employees who didn’t ordinarily travel at all. The drivers who on occasion came to the Kansas City area did so to load petroleum products and return to their destination. While here they had no authority to use company trucks for personal business or to vote in a union election, and the union does not claim that any particular employee should have done so. Their work day was assigned so they had enough time to perform their work and get back to their base terminal, but no more than that. There is no claim that the company should have provided transportation to the voting site for any drivers whose trucks were being loaded or unloaded.

Eight employees worked out of or at the Jefferson City terminal more than 146 miles from Kansas City. None of the Jefferson City employees lived less than 115 miles from Kansas City. Three employees worked out of and lived in Belle, more than 165 miles from Kansas City. The Miller terminal, over 150 miles from Kansas City, was base for 13 employees, none of whom lived any closer to Kansas City than 150 miles. Sedgwick, Kansas, is more than 170 miles from Kansas City. The twenty-five Sedgwick members lived no closer to Kansas City than 140 miles. Finally, Phillips-burg, Kansas, is over 250 miles from Kansas City. Four employees worked out of this location, none of whom lived closer to Kansas City than 250 miles.

The considerations for these employees are slightly different from those for the UPS employees. There was no evidence that their work picked up during the Christmas season. Also, although some Kaw employees ordinarily never left the shop, most were truck drivers who were accustomed to driving relatively long distances. Defendant argues that because driving great distances is not unusual in the trucking industry, the 300 or so mile journey to vote should not be viewed as a substantial hinderance. While it is true that a trucker who drives thousands of miles weekly may in the abstract be less likely to be inhibited by a 300 mile trip than a truck loader who never leaves the terminal, the Court does not equate driving as part of one’s job on company time and expense to driving on one’s own limited free time during the holiday season and paying for the expenses. There was no evidence that any of the drivers thought 300 miles round trip was not a long way to drive solely in order to vote. Not one of these fifty-three members voted in the election.

Defendant requests that this Court find the use of absentee ballots creates special expense and administrative burdens to the extent that such ballots should be disfavored and to show that failure to provide mailed ballots was reasonable. The issue in this case, however, is whether members had a reasonable opportunity to vote, not whether the union was reasonable in setting the election procedures and not providing for mailed ballots. Although there may be some overlap of these issues, the questions are not necessarily identical. Availability of a reasonable alternative means of voting is certainly relevant to the question of whether members had a reasonable opportunity to vote, but a mailed ballot is not the only way to allow outlying members to vote. The evidence indicated that at least on one occasion (not involving an election of officers), Local 41 used multiple polling places. The use of multiple polling places is also referred to in 29 C.F.R. § 452.94. In any event, the evidence showed that while mailed balloting requires arrangements different from manual balloting, the procedure does not cause administrative problems particularly greater than a manual ballot. More than 50% of the unions in this region use some form of mailed ballots with no more problems (and perhaps significantly fewer problems) than with manual ballots.

In Donovan v. Plumbers Local 725, 112 LRRM 3357 (S.D.Fla.1982), the district court found that a line drawn at 110 miles was unrealistic in the building trades, and that the union’s choice to refuse a mailed ballot when only 11 percent of the union membership were outside the union’s geographic jurisdiction did not deprive the members of a reasonable opportunity to vote. That case involved workers who were on “travel cards” and working outside of the normal jurisdiction of the local. The policy of the union was to deny a mailed ballot unless more than 25% of its membership was working outside of the normal boundaries. The court specifically distinguished the case in which the union’s jurisdiction covered a membership that was “widely dispersed.” Id. at 3373. The court found that the union’s jurisdiction, covering a three county area was not “widely dispersed.” The members who were working outside of the jurisdiction on travel card status were found to be doing so voluntarily.

In the case at bar the members in question were not on travel card status, or working outside of the normal area covered by Local 41’s jurisdiction. The members were not outside the union’s jurisdiction temporarily or under special circumstances. The question is not how the union should treat special unusual circumstances, but what opportunity to vote must be afforded to members living and working in their normal working area. The number of members claimed by the Secretary to have been living more than 148 miles from Kansas City is less than 5% of the total membership. The number of members considered above is less than 2.5%. Nonetheless, a union cannot disenfranchise an isolated group of members merely because their votes do not constitute a significant percentage of the membership.

The case at bar is also distinguishable from Hodgson v. Local 582, 350 F.Supp. 16 (D.C.Cal.1972). In that case the challenge arose in an election decided by very small margins (2-249 votes). Once again the election was challenged on the basis of members voluntarily on travel card status or members who had retired and voluntarily moved away. In that context the court found refusal to provide a mailed ballot not to deny the members a reasonable opportunity to vote. The court concluded that within

the membership of any sizeable local union, or any given date, there will be many persons who cannot “conveniently” come in person to vote. Some will be on vacation, some will be ill, some will be out of the jurisdiction on necessary family and personal business, some will be at work at sites far away from the polling place. For the Court to accede to the Secretary’s argument and require absentee voting arrangements for all union elections where the electorate is sizeable in number, would be judicial legislation and outside the proper scope of review

350 F.Supp. at 19-20. The Court found that a travel card or retired member choosing to live at a distance from the union local, assumes the risk of finding it expensive or inconvenient to come back home to vote at a union election. Here the members in question had no special circumstances making it more difficult for them to vote than for the other members. Their work places were not special circumstances, but constant factors to be taken into consideration in setting the election procedures. The members cannot be said to have assumed the risk of having a distant local. Under the Union’s security agreement, payment of dues to Local 41 was a condition of continued employment.

Defendant urges the Court to find that the members’ failure to vote was not due primarily to the distance required to be driven to work. Evidence was presented that some of the members didn’t vote because they didn’t care about the election, or because they didn’t know who was running. The Court is unwilling to discount the effect of distance on these members’ reasons for not voting. The fact that some members no longer care about elections does not diminish the fact that they may have been deprived of a reasonable opportunity to vote. These members’ votes were not actively solicited either because of the candidate’s lack of information concerning these members or because the candidates knew that few, if any, would make the trip to vote. With little or no campaign information being distributed to the outlying areas it is not surprising to find widespread apathy with regard to a particular election. The Court will not discount disenfranchisement merely because it has progressed to the point that the party disenfranchised no longer cares.

After considering all of the evidence and exhibits concerning the circumstances surrounding the election, the Court finds as a matter of fact, that the 168 members of Local 41 considered above did not have a reasonable opportunity to vote in Local 41’s December, 1981, election in violation of 29 U.S.C. § 481, and that such violation may have affected the outcome of the election. Evidence was presented by the Secretary concerning other employers located substantial distances from Kansas City. In light of the challenge and the margin of votes in the election, the Court finds it unnecessary to determine whether all employees of such employers were deprived of a reasonable opportunity to vote. The Court makes no “bright line finding” concerning a minimum or maximum distance to the polls that might constitute an unreasonable obstacle. The Court’s finding, rather than being based on a strict mileage limitation, is based on a consideration of all of the circumstances of the union and its membership at the time of the election. The arrangements made by the union for those members to vote, although made in good faith, were so unfair and lacking in democratic principles that the effect was to deny 168 members a reasonable opportunity to vote.

In Wirtz v. Local Union 169, 246 F.Supp. 741 (D.Nev.1965), the district court found that where only eleven and one-half percent of the members of the local had mailing addresses more than eighty miles from the polling place, a reasonable opportunity to vote was given. This case is distinguishable in several respects. Of course, the minimum distance considered was less than this opinion contemplates, but more importantly, the judge noted that the members in Nevada could choose to join or not to join the Union under the state’s “Right to work” statute. Id. at 753. In the case at bar all of the members considered fell under a union security agreement. Furthermore, the judge found there to be sound reasons why personal appearance at the polls may be preferred to a mail ballot in the protection of the secrecy of the ballot and that the expense and complications of multiple polls might offset benefits. In the case at bar, the evidence showed that in a properly-run mailed ballot secrecy is no more of a problem than in a manual ballot. There was no evidence in the case at bar that complications involved in multiple polling places would render such a procedure prohibitive.

Today’s decision is not in conflict with Secretary of Labor v. Local 576, 701 F.2d 180 (6th Cir.1982), wherein the circuit court affirmed the district court’s grant of summary judgment in favor of the union where all facts were stipulated. In that case the Secretary’s argument was essentially that as a matter of law, a polling place more than 100 miles away from some members deprives those members of a reasonable opportunity to vote. Today’s decision does not rest merely on the distance factor alone, although it is a strong factor. The nature of the work, the nature and extent of the union, the voting methods available to be used by the union, the method actually used, the time of year of the election, and all circumstances surrounding the election were considered in reaching the Court’s conclusion. In fact, this Court tacitly agreed with the Sixth Circuit’s opinion that the distance alone did not, ipso facto, require an alternative method of voting when it denied the Secretary’s motion for summary judgment.

A regular election is due to be held next month. The Secretary has indicated that he does not wish to put the Union to the expense of a separate election if this can be avoided. It may not be possible to include the supervised race in the upcoming regularly scheduled election. This opinion and order contemplates that the consolidation will be possible. The parties will have three days from the date of this order to inform the Court that such a course is impossible and seek amendment of this order.

Accordingly:

1. The 1981 elections of the President and Third Trustee are hereby declared to be void. It is hereby ordered that a new election for these offices be conducted under the supervision of the Secretary, and so far as lawful and practicable, in conformity with the constitution and Bylaws of defendant. The supervised election shall take place concurrently with the upcoming regularly scheduled election.

2. The persons elected shall take the oath of office and be installed in office as soon as practicable after results of the election have been certified by the Judges of Election. Such officers shall serve until the installation of new officers pursuant to the next regularly scheduled election to be held by defendant.

3. All decisions as to the interpretation or application of Title IV of the Act, and the Constitution and Bylaws of defendant and the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, relating to the supervised election are to be determined by the plaintiff, and his decisions shall be final.

4. This action will be maintained on the docket of the Court pending completion of the election, after which plaintiff shall certify to the Court the names of the persons elected and that such election was conducted in accordance with Title IV of the Act, and, insofar as lawful and practicable, in accordance with the provisions of the Constitution and Bylaws of defendant and the Constitution of the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. Upon approval of such certification, the Court will enter an order declaring that such persons have been elected as shown by such certification, and dismissing the action.

      . The Court was unable to determine from the exhibits the distance to the residence of the employee who lived in Brookline, Missouri.