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Sky Angel U.S., LLC v. National Cable Satellite Corp.

United States District Court, D. Columbia.

March 28, 2014

SKY ANGEL U.S., LLC, Plaintiff,
NATIONAL CABLE SATELLITE CORPORATION, doing business as C-SPAN, et al., Defendants

Re Document Nos. 19, 20.

Page 15

For Sky Angel U.S. Llc, Plaintiff: Jonathan Laurence Rubin, RUBIN PLLC, Washington , DC.

For National Cable Satellite Corporation, agent of C-SPAN, Defendant: Bruce Douglas Sokler, Robert G. Kidwell, LEAD ATTORNEYS, MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C., Washington , DC.

Page 16


RUDOLPH CONTRERAS, United States District Judge.

Granting Defendant's Motion to Dismiss the Amended Complaint; and Denying Plaintiff's Second Motion for Leave to Conduct Discovery


This antitrust conspiracy case comes before the Court once again on two pending motions. The plaintiff alleges that the defendants, a non-profit corporation and ten of its board members, conspired to boycott the plaintiff in violation of federal antitrust laws by terminating an affiliation agreement between the corporation and the plaintiff. The defendants move to dismiss the amended complaint for failure to state a claim, and the plaintiff moves for leave to conduct early discovery to ascertain the identities of the board member defendants, currently joined to the case as Does. Both motions present issues familiar to the Court, as the Court in this case has already granted a motion to dismiss the plaintiff's initial antitrust complaint and denied a motion to allow the plaintiff to conduct discovery to " identify" board members and their activities. Because the amended complaint fails to rectify the deficiencies identified in the Court's earlier opinion, the Court will grant the motion to dismiss the amended complaint. Because identification of the Does would be futile, as the amended complaint does not sufficiently state a claim against them, the Court will deny the discovery motion.

Page 17


The facts alleged in this case are set forth in more detail in an earlier opinion. See generally Sky Angel U.S., LLC v. Nat'l Cable Satellite Corp. ( Sky Angel I ), 947 F.Supp.2d 88, 94-96 (D.D.C. 2013) (ECF No. 10). Plaintiff Sky Angel ___U.S.___, LLC (" Sky Angel" ) is the operator of FAVE-TV--a subscription service that distributes the content of television networks in real time. See Am. Compl. ¶ 6, ECF No. 18. FAVE-TV carries the video content over a closed and encrypted fiber-optic transmission path to a central location, then distributes the programming from the central location to television-connected set-top boxes over high-speed internet connections. See id. ¶ 7. Defendant National Cable Satellite Corporation, doing business as C-SPAN (" C-SPAN" ), is a non-profit corporation that distributes video of legislative proceedings and related programming via its three networks--C-SPAN, C-SPAN2, and C-SPAN3. See id. ¶ ¶ 8-9. C-SPAN was created by the cable television industry, and its board of directors is comprised of high-ranking executives from some of the nation's largest multichannel video programming distributors (" MVPDs" ). See id. ¶ ¶ 10-11.

In 2009, Sky Angel and C-SPAN executed an affiliation agreement (the " IPTV Agreement" ), under which C-SPAN granted to Sky Angel a non-exclusive right to carry the C-SPAN and C-SPAN2 networks " by means of an internet-protocol based stream which shall be secure and capable of being accessed only in a manner which would not allow any form of subsequent distribution . . . , including without limitation, distribution over public Internet." IPTV Agreement § 1(a), ECF No. 18-2. The networks began airing on FAVE-TV on or about July 10, 2009. See Am. Compl. ¶ 24. But only days later, Peter Kiley of C-SPAN pulled the plug on FAVE-TV, asking Sky Angel to remove the C-SPAN networks from its lineup " pending [C-SPAN's] review of [Sky Angel's] distribution technology and a precise legal framework." See id. The networks have not been reintroduced to the FAVE-TV lineup.

On November 13, 2012, Sky Angel filed a complaint against C-SPAN asserting two claims under the Sherman Antitrust Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. § § 1-7 (2012)) (the " Sherman Act" ). See generally Compl., ECF No. 1. C-SPAN promptly moved to dismiss the complaint for lack of subject matter jurisdiction, lack of standing, and failure to state a claim. See generally Mot. Dismiss, ECF No. 5. The Court granted C-SPAN's motion on the latter ground, finding that (1) Sky Angel's section 1 conspiracy claim failed to plead facts indicating that C-SPAN's MVPD board members acted in concert to boycott Sky Angel; and (2) Sky Angel's section 2 monopoly claim failed to plead either a relevant market or C-SPAN's market power. See Sky Angel I, 947 F.Supp.2d at 99-105.[1] Before filing its amended complaint, Sky Angel requested leave to take early discovery in order to " identify" the actors involved in the alleged section 1 conspiracy. See generally Pl.'s 1st Mot. Disc., ECF No. 11. The Court denied the request, finding that Sky Angel was not seeking discovery on just ...

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