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 using its monopoly power in one service market to exclude competition 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. Viamedia’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 evidence. To make sense of this case, we explain some basic business arrangements in the markets that put television programming in American homes, as well as market definitions 

necessary in evaluating the antitrust claims. 

The parties agree on the definitions of the relevant geographic 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 services and advertising representation services. Interconnect 

services are cooperative selling arrangements for advertising 

through an “Interconnect” that enables providers of retail cable 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 advertising 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, Comcast used its monopoly power over the cooperative Interconnects to force its smaller retail cable television competitors to 

stop doing business with Viamedia, thereby gaining monopoly power over the market for advertising representation services. 

Viamedia has presented evidence that Comcast’s elimination of its only competitor in the advertising representation 

services market has harmed competition in violation of Section 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 services 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 Leegin 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 advertising representation services in Chicago, Detroit, and Hartford. 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 establishing itself as the gatekeeper for its cable competitors’ advertising, Comcast has gained access to their sensitive marketing 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 monopoly power over the Interconnects to tie those services to 

its advertising representation services. Viamedia has also adequately 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 Aspen 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 discovery 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 advertising representation services they both offer and the critical role 

that Interconnects play for providers of cable television programming; and in Part I-C, Comcast’s refusal to continue 

providing Interconnect access to Viamedia or any of its customers 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 Interconnects. In Part III-B-2, we apply that law to Viamedia’s 

claim that Comcast illegally tied Interconnect services to advertising 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 disputed 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 advertising 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 monopolization of the market for ad rep services, we must explain the related markets for retail cable television services to 

consumers, as well as access to the cable companies’ cooperative advertising distribution platforms called Interconnects. 

A. Cable Television: History, Revenue Sources, and Competition 

Understanding these markets’ competitive dynamics requires 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 programming. 

1. Television Programming and Advertising

An awkward acronym, MVPDs, stands for “multichannel 

video programming distributors.” That umbrella term includes 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 directbroadcast satellite companies (AT&T’s DirecTV and Dish Network), as well as companies formerly associated only with telephone 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 programming carried by these MVPDs, we explain the special obstacles cable companies face in taking advantage of advertising 

revenue. The cable companies’ solution—jointly developing 

the Interconnects—created a later opening for a dominant cable company like Comcast to use its power over several Interconnects 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 advertisements that ran in the programming. To help advertisers 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). Cable companies then grew and consolidated by sewing 

2 For statutory definitions of “multichannel video programming distributor” (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 advertising and (2) customer subscription fees. In geographic areas 

where MVPDs overlap, they compete on both fronts. The conduct 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 Cooperation 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 advertisements. 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 franchises “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 profitable to sell them on a regional, DMA-wide level. 

As a result, cable companies had a weaker competitive position 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 DMAwide 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 purchase a particular time slot and be assured that its advertisement would appear in cable subscribers’ programming 

throughout the DMA. Thus, Interconnect services are provided DMA by DMA. As described by Comcast, “interconnects 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 advertisements 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 Interconnects must be distinguished from advertising representation 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 advertising schedules; 

 Coordinate insertion of ads (although MVPDs 

themselves generally provide the technical equipment 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 another for local ad sales, Interconnect participants took steps to 

avoid giving preferential treatment to any single MVPD participant. To ensure fair administration of the Interconnects, 

they were initially conceived as being operated by nonMVPD, 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 valuable 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) advertisers 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 platform.” It serves as a clearinghouse, offering “different products 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, especially 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 Interconnect are the MVPDs and their retail customers. The more 

advertisers that participate, the more valuable the Interconnect 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 virtuous feedback loop. “[T]he value of the services that [an Interconnect] 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 participate as possible.” 

An Interconnect is not necessarily, however, a one-way 

ratchet to increased demand. Decreased participation on either 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 depends on the competitive dynamics among its participants. In 

a competitive market, for example, the risk of negative feedback 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 themselves, at least as originally conceived, which seem to fit the model of certain 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 subscribers. Comcast’s alleged conduct is all the more dangerous to 

competition because it was made possible by accelerating industry consolidation and has the potential to interfere with 

MVPDs’ competition with one another. The industry dynamics provide important context to understand the exclusion of 

Viamedia from a handful of DMA Interconnects, at least initially, 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 respective areas. They showed little interest in building into one 

another’s franchise areas and forcing competition. A combination of legal, regulatory, and practical barriers limited competitive 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, Horizontal 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 systems,” 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 environment, however, cable companies were about to face new competitors. The Telecommunications Act of 1996 was intended to 

break down barriers among cable, telephone, satellite, and internet 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 broadband internet service providers became increasingly blurred 

as these companies started offering multiple services to consumers. 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 telephone, video, and broadband Internet access. Id. at 9, 11. 

Meanwhile, broadband internet service providers like RCN 

and WOW!, known as “overbuilders,” built their own infrastructure in areas already served by incumbent cable companies 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 incumbent’s plant, thereby giving consumers a choice between cable service providers.” 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 Communications 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 competitors. Today, many DMAs are served by an incumbent cable 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 competitive markets. DOJ Report at 38–39 & nn.180–83. Incumbent 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 encounter 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, competition 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 contracts with apartment buildings dense with potential subscribers, which new entrants could not reach, and exclusive 
No. 18-2852 19 

and discriminatory contracts with programmers, whose content 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 controlled 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 customers 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 companies 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 actions 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 revenue that helped subsidize offers to attract subscribers. Incumbent 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 activities. 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 protocols, 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’ subscribers 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 include: 
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, including 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 software needed to run, insert, traffic, monitor, and archive ads; 

 Organizing the MVPD’s inventory of spot avails 

into schedules and ensuring that each ad runs correctly 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 services for all of its inventory of spot avails, including the competitive 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 provides ad rep services both in-house and to other competing 

MVPDs. In markets where Comcast does not operate the Interconnects, its in-house ad rep services arm secures Interconnect access for its own MVPD service and its customer/competitors’ MVPD services, just as Viamedia used to do in Chicago, Detroit, and Hartford. Several other MVPDs have similar 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 provide these services to other MVPDs. And just as MVPDs compete 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 arrangements 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 OnMedia.
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 services arms compete against Viamedia (and potentially against 

each other) for clients; and (3) MVPDs compete with one another 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 expanded from being one of several cable companies that participated in some DMA Interconnects to being the largest participant. 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 Report 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 “manager” of those DMAs’ Interconnects, including in Chicago, 

Detroit, and Hartford. 

Yet the Interconnects continued to function as they had before 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 agreements 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 basis 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 expired, 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 services, 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 “leverage.” 

As noted, Viamedia’s Interconnect access agreements with 

Comcast for the Chicago and Detroit DMAs were due to expire 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 Comcast 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 advantage of its control over the Interconnects. Comcast notified 

Viamedia in December 2011 that it would refuse to permit Viamedia 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 Interconnect 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 Interconnect.7 By contrast, in DMAs where the Interconnects 

7 On these points, the record contains more precise numbers in documents 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, however, 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 Interconnects 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 provided 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 writing, however, it discovered that Comcast had added a provision 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 proposals appeared to be below market rate for Interconnectonly 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 Interconnectunseals 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 Viamedia 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 position 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 choosing 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 competitors. By cutting Viamedia off from the Chicago and Detroit Interconnects in 2012, Comcast ensured that its competitor MVPDs’ spot avails could not be distributed through the 

Interconnects while they were represented by Viamedia under their existing contracts. 

This was an expensive decision for Comcast. As operator 

of the Interconnect, Comcast’s internal analysis of the “Revenue Impact” of its decision predicted that Comcast itself 

would lose $10.6 million in just the first six months after cutting off Viamedia’s (and thus RCN’s and WOW!’s) access, including $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 Interconnects (June 2012 through December 2015), they lost approximately $27 million in ad revenue. Comcast itself lost $7 

million in commissions. A248, A637, A648 (figs. 35, 46). Moreover, 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 dominant MVPD provider in markets across the country, this 

“temporary and localized lost revenue is small potatoes,” a 

mere “rounding error.” Brief for Washington Legal Foundation’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 foreclosure from Interconnect access and Comcast’s competitor 

MVPDs’ return to the market to seek bids for their ad rep services would be the time for Comcast “to overpower ViaMedia,” as a Comcast employee in the Detroit DMA explained. 

A217 (budget presentation). So the evidence supports an inference that Comcast willingly chose to inflict short-term financial losses on itself. Why? A reasonable explanation is that 

it did so because it could survive those losses (the “small potatoes” 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 Interconnect access to Viamedia’s offer without—“It was not in 

the end a very difficult decision to make.” DA688. But this answer 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 employee 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 Interconnect, 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 position 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 interconnect [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 revenues 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 experiences with Comcast, RCN (futilely) filed comments with the 

FCC, alerting regulators that “Comcast was not being truthful” 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 Spotlight instead of Viamedia.” A215 n.81, A886–87. 

Viamedia also was not going quietly. Even though Comcast had barred it from Interconnect access, Viamedia continued to compete for RCN’s and WOW!’s business. Without Interconnect 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, Viamedia’s bids caused consternation for Comcast. Internal Comcast emails reflect executives’ disbelief. They called it “absolutely unbelievable” that Viamedia could make a remotely 

competitive bid without Interconnect access. A232. In contrast 

to Viamedia’s bids, Comcast bids touted the “exclusive” benefit of Interconnect access that WOW! would receive if it selected Comcast for ad rep services. Comcast said that the 

“generous” financial terms it offered included the “sizable annual guarantee” that would be attributable to “the opportunity to add WOW! subscribers [back] to the important Detroit 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 Comcast. Their reluctance was not based on a short-sighted inability to see the procompetitive benefits of Comcast’s vertical integration or what Comcast touts as “one-stop shopping.” Rather, these MVPDs had economically rational reasons for 

seeking to avoid this entanglement with their dominant competitor, which would naturally have divided loyalties. In addition, 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 company associated with our competitor.” A236 n.150. 

Thus, as Comcast’s MVPD competitors assessed the situation, the possible outcomes all amounted to unfair wins for 

Comcast. Its actions could have resulted in three different outcomes, each of which would work to its benefit and harm its 

competitors. First, if Comcast succeeded in having its competitor MVPDs buy Comcast ad rep services, Comcast would 

gain the following benefits: 

 Comcast’s smaller MVPD rivals would now be contributing additional revenue toward their dominant competitor, Comcast; 

 The majority of spot avails that MVPDs had formerly 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 competitor Comcast—whose contracts required that Comcast 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 allocating 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 business 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 competitor MVPDs’ ad sales information, but the MVPDs 

would have to provide Comcast with all of their 

own promotional ad materials to current and potential subscribers that they are attempting to retain 

or win away from Comcast, giving Comcast a 

chance to undercut them. That would be in addition 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 Comcast controls the Interconnects, but the participating MVPDs 

do not have overlapping footprints with Comcast’s service areas. In those DMAs, Comcast still offers Interconnect-only 

agreements on terms similar to the terms of the former Comcast-Viamedia agreements for the Chicago and Detroit DMAs. 

Viamedia offered evidence on summary judgment (described 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 Interconnect fees and reduced advertising revenue within the 

DMA would continue to be a mere “rounding error.” 

In the third potential outcome—which only Comcast contends 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, technology, 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 subscriber 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 Interconnect.” A233. WOW! signed with Comcast for ad rep services in Chicago and Detroit in 2015. WOW! continued, however, 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 employee 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 antitrust law, so the federal antitrust analysis controls whether 

the state antitrust claims survive. Viamedia is no longer pressing 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 complaint as alleging that Comcast engaged in three types of monopolistic conduct recognized by the antitrust laws: (1) Comcast’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 respect to Viamedia’s refusal-to-deal claim, faulting Viamedia 

for failing to demonstrate through its allegations that Comcast’s conduct was “irrational but for its anticompetitive effects.” Viamedia, Inc. v. Comcast Corp., 218 F. Supp. 3d 674, 698 

(N.D. Ill. 2016). The court hypothesized that Comcast’s complete foreclosure of Viamedia from the market potentially 

serves a procompetitive purpose and “offers potentially improved efficiency.” 218 F. Supp. 3d at 699. And because “vertical 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 advertisements on a regional basis.” Id. at 698–99. Comcast’s “shortterm losses” in excluding Viamedia and Comcast’s competitor MVPDs from the Interconnects were not “necessarily indicative 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-CV5486, 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 summary judgment because Viamedia had failed to “present evidence 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 because 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 products 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 hypothesized, 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-todeal claim. 335 F. Supp. 3d at 1062, 1070, 1072. To support this 

conclusion, the district court noted that Viamedia sought injunctive relief that would restore its access to the Interconnects and give RCN and WOW! the option to decline purchase 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 understanding of the law—i.e., that Comcast had engaged in anticompetitive 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 testimony. 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 IIIB-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 anticompetitive harms, and would be subject to the same procompetitive justifications or defenses. The decision to dismiss one 

claim on the pleadings while allowing the other, closely related claim to go as far as summary judgment offered potential for confusion, but in the end, both claims need to be tried. 

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. In Part III-D, we explain that Viamedia has presented evidence of a cognizable antitrust injury 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 Viamedia’s refusal-to-deal and tying claims largely resolves its challenge to the testimony’s exclusion. The district court’s decision on this score was based almost entirely upon its erroneous 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 private 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 anything 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 acquisition or maintenance of that power as distinguished from 

growth or development as a consequence of a superior product, business acumen, or historic accident.” Verizon Communications, 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-contentious 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 difficult 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 geographic market is the area in which sellers operate and where 

purchasers can predictably turn for supplies). Comcast’s conduct in other DMAs may be relevant for comparison purposes. 

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 competition 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 Hartford 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 competition, no matter how great its desire to do so, even when engaging 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 infrequently, the initial question of market power proves decisive.”). 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 Section 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 procompetitive conduct the antitrust laws do not impede. The latter includes innovation resulting in superior products, the introduction 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 typically are used interchangeably” and simply mean that “a firm can influence 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 potential to harm competition. The types of conduct alleged in 

this case are “exclusionary” in nature, impairing rivals’ opportunity to compete in a way that is inconsistent with “competition 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 shortterm profits in order to drive out of the market or otherwise 

discipline a competitor”). 

In the present case, Viamedia alleges and has offered evidence 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 harmless 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. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (en banc). Although “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 dominant 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 Antitrust, Cornell L. Rev. (forthcoming 2020) (manuscript at 11), 

available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3420925. Similarly, “[m]any of the practices that 

have been characterized as exclusive dealing could also be described 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 conceptually 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 element 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, “constru[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. Blagojevich, 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-todeal claim and then explain how the leading case—Aspen Skiing—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 competing like everyone else is the ability to make decisions about 

with whom and on what terms one will deal.” Id.; see also Authenticom, 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, Antitrust 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 monopolist’s refusal to deal with another party will be illegal anticompetitive conduct. Id.; see also Areeda & Hovenkamp 

¶ 1800c5, at 21 (“Section 2 of the Sherman Act reaches unilateral refusals to deal when the refusals constitute monopolization ... .”). For example, in Lorain Journal Co. v. United States, 

342 U.S. 143 (1951), a monopolist newspaper was “an indispensable 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 eliminate” 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 refuse to accept advertisements from whomever it pleases.” Id.

at 155. 
46 No. 18-2852 

In a holding that resonates in this case, Lorain Journal explained: “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of 

trader or manufacturer engaged in an entirely private business, 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 circularity of Colgate test). With the newspaper’s clear expectation that it would “outlast” the new competition and regain 

its complete monopoly, and with “no apparent efficiency justification 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 liability was endorsed again in Aspen Skiing Co. v. Aspen Highlands 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 argument 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 refusal 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 Skiing, 472 U.S. at 608–11. 
No. 18-2852 47 

What do those limited circumstances look like? In addition to reiterating Aspen Skiing’s continued, albeit narrow, validity, the Court has also provided useful guidance on primary factors to consider when determining whether potentially 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 allowed 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 “interchangeable ticket” program continued to include the fourth mountain, which was independently owned by plaintiff Aspen 

Highlands Skiing Corporation (Highlands). Id. at 590–92. 

Revenues from this cooperative arrangement were distributed according to mountain usage. The joint ticket was a popular and profitable package for both parties. The four-mountain 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 fourmountain ticket were not available at all, customers would default 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 permit Highlands even to “pay full retail value for the daily lift 

tickets,” with a Ski Co. official explaining, “we will not support our competition.” Aspen Skiing, 472 U.S. at 593–94 n.14. 

Highlands filed suit. 

At trial, defendant Ski Co. primarily relied on the testimony 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 evidence that its own product was being devalued by being associated with “the inferior skiing services offered at Highlands.” 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 “administratively cumbersome.” Id. at 592. In short, defendant Ski Co. argued 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 

12 See George L. Priest & Jonathan Lewinsohn, Aspen Skiing: Product 

Differentiation and Thwarting Free Riding as Monopolization, in Antitrust Stories 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 violated 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 impairing competition.” Id. at 597. The jury “resolved all contested questions of fact in Highlands’ favor,” id. at 599, including a finding “that there were no valid business reasons for 

the refusal.” Id. at 605. 

The Supreme Court upheld the jury verdict for the plaintiff. The Court reiterated Lorain Journal’s rejection of the argument 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 acquisition of monopoly power.” Id. at 603. Such a pre-existing relationship supports a presumption that the joint arrangement 
50 No. 18-2852 

was efficient and profitable. Trinko, 540 U.S. at 408–09 (distinguishing 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 optimal patterns. By disturbing optimal distribution 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 Paradox 156 (1978). 

Second, the Court compared Ski Co.’s conduct in the Aspen market with Ski Co.’s arrangements in comparable markets 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 transactions by refusing to permit Highlands to purchase ski tickets 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 accepting 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 anticompetitive harm. But whether its conduct “may properly 

be characterized as exclusionary” also required consideration 

of possible procompetitive justifications, including any beneficial 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 factual issue properly resolved by the jury. The Court focused on 

“the evidence relating to Ski Co. itself, for Ski Co. did not persuade 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, competitive 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 quality”). Id. at 608–10. 

Highlands refuted Ski Co.’s procompetitive justifications 

with exactly the kind of evidence that is helpful to prove exclusionary 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 anticompetitive, even though no factor is always decisive by itself. For example, 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 pursue 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 sometimes reflect desirable, procompetitive behavior, such as efforts to offer “promotional discounts.” Id. And a defendant 

may have “procompetitive rationales for treating a rival differently,” 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 competition, 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 presented a case that is well within those bounds and appears 

stronger than Aspen Skiing. A comparison of Viamedia’s allegations to the facts found by the jury in Aspen Skiing (and 
No. 18-2852 53 

which the Supreme Court considered significant to its analysis) is instructive: 

ASPEN SKIING VIAMEDIA 

ALLEGATIONS 

Long-term business relationship that created joint 

offering 

Same 

Relationship existed absent 

any statutory obligation/duty (Trinko) 

Same 

Can presume prior relationship was thus mutually advantageous 

Same 

Sudden course reversal Same 

Course reversal came at a 

monetary loss for defendant 

Same 

Refused to sell service/product at retail price 

Same 

Sold product at retail price 

to others in the relevant 

market 

Same 

Unhappy customers Same 

Discouraged customers 

from doing business with 

its smaller rival 

Same 
54 No. 18-2852 

Defendant continued to 

deal with competitors in 

other competitive markets 

Same 

Procompetitive justifications are a question for the 

factfinder 

Same 

Exclusionary conduct aimed 

at the only other competitor 

in the market 

Same 

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 distinguish Viamedia’s case as a matter of law. Comcast’s alleged 

conduct, absent compelling evidence to the contrary, indicates its “calculation that its future monopoly retail price 

would be higher” by foreclosing its ad rep services competitor. Trinko, 540 U.S. at 409. In addition, unlike in Aspen Skiing, 

where the ultimate customers were skiers who did not compete against the defendant ski resort, Comcast’s refusal to 

deal with Viamedia has left its MVPD customers in these markets no practical choice but to turn over their ad sales business, 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 preexisting course of dealing was not ‘irrational but for its anticompetitive 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 potentially improved efficiency.” See 218 F. Supp. 3d at 698–99 

(emphasis added). Comcast contends this “valid business objective” is what “distinguishes this case from Aspen Skiing, 

where the defendant ‘fail[ed] to offer any efficiency justification 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 after 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 evidence 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 justifications 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. Western Union Telegraph Co., 797 F.2d 370 (7th Cir. 1986)? That decision 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 rebuttal of a prima facie case of monopolization. 
56 No. 18-2852 

Thus, balancing anticompetitive effects against hypothesized 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 question 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 recovering monopoly profits in the long-run. ... The 

district court cannot choose between these competing 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 below. 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 comprehensive rule of reason analysis. 

i. Comcast’s Proposed Legal Standard 

Comcast both misunderstands the law and relies on inapposite cases by conflating the vertical integration of its MVPD 

and ad rep services functions with its control over the cooperative Interconnects and alleged misuse of that power. Comcast proposes that if a defendant merely postulates “a valid 

business purpose”—apparently including any business purpose 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 offers 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 tendency 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 

13 Comcast’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 defendant very slightly while doing considerable harm to the rest of the economy, 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 conduct has a tendency to eliminate competition and would make no economic 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 prospective 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 disproportionate 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 Skiing factor of a defendant forsaking short-term profits. Id. As 

noted, this factor is relevant but should not always be dispositive 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 immediately”); Areeda & Honvenkamp ¶ 651b3, at 107 (“monopolizing conduct is not necessarily costly to the defendant”). 

Because the Aspen Skiing factors are helpful but not dispositive, this more nuanced approach considering both procompetitive benefits and anticompetitive harms is necessary 

to answer the ultimate question of whether competition was 

harmed. The plaintiff ultimately needs to prove “that the monopolist’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 competition 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 endorsing any particular catchy title for this analytical approach, the calculation of procompetitive benefits net of anticompetitive harms does not easily lend itself to a pleading

standard. Rule of reason cases “place[] a premium on objective tests based on evidence that is typically not in the defendant’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 refusal to deal has some of the key anticompetitive characteristics 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 defendant’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 refusal to sell at retail price—in distinguishing Aspen Skiing. The 

former factor was important, because it “suggested a willingness to forsake short-term profits to achieve an anticompetitive end.” Id., citing Aspen Skiing, 472 U.S. at 608, 610–611. In 

Covad, the D.C. Circuit adopted a similar, if slightly more explicit, 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 sufficient at the pleadings stage. 398 F.3d at 675–76. 
No. 18-2852 61 

Viamedia’s pleading adequately alleges an anticompetitive 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 cooperative network, refusal to sell at retail price, and discriminatory treatment of rivals—could plausibly support the inference 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 refusal-to-deal pleading. 

Even if an allegation that a defendant’s conduct was irrational but for its anticompetitive effect were necessary, Viamedia 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 Effects,” Viamedia walked through the long-term course of 

dealing prior to Comcast’s conduct; the subsequent degradation 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 Viamedia 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 sufficient 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 standard and presenting evidence of harm to competition, the remainder 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 anticompetitive effect, then [Comcast] may proffer a ‘procompetitive justification’ ... a nonpretextual claim that its conduct 

is indeed a form of competition on the merits because it involves, for example, greater efficiency or enhanced consumer 

appeal.” Microsoft, 253 F.3d at 59. If such a justification is offered, “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 demonstrate 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 categories of evidence and information, with any evidence of procompetitive 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 possession” of the firms seeking to justify a transaction).14

ii. Inapposite Vertical Integration Cases 

Comcast also relies on cases involving vertically integrated defendants with facts that, in crucial ways, do not map 

onto this case. In seeking to shoehorn this case into this category, Comcast caused confusion in the district court—and 

continues in this effort on appeal—by glossing over the unusual market structures in this case and portraying itself as just 

a “prototypical” vertically integrated firm. This misconception is accomplished by conflating (1) Comcast’s actual vertical integration of its MVPD cable services with its ad rep services functions with (2) its control over the cooperative Interconnects 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-shifting framework applies. Under this framework, the plaintiff has the initial 

burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. If the plaintiff 

carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. If the defendant makes this showing, then the burden shifts back to the plaintiff to demonstrate that the 

procompetitive efficiencies could be reasonably achieved through less anticompetitive 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, especially when integration creates no new monopoly in any second 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 complementary products would “earn[] margins over cost before 

their products reached consumers.” Id. at 1044. After integration, 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 consumers in order to attract additional” customers. Id. Thus, it 

would rarely be an antitrust violation for a firm to supply itself 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 distributors. The aggregate monopolist decided to vertically integrate by purchasing one of the distributors and bringing all 

of its distribution in-house. Id. at 119. The remaining distributor alleged a Section 2 violation, claiming that “its injury 
No. 18-2852 65 

resulted from [defendant’s] vertical integration into the distribution market.” Id. at 120. The facts of Port Dock do not map 

onto the conduct of Comcast, which was already vertically integrated and was instead exploiting its control over the cooperative Interconnects. 

Similarly, the defendant in Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188 (10th Cir. 2009), owned the mountain 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 enterprise, 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 independent software vendors. 731 F.3d at 1067. And again, the 

customers (computer users) did not compete against Microsoft. 

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,” unless there is an allegation of an “anticompetitive incentive to 

create a downstream monopoly,” or other “special circumstances 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 Microsoft, but at trial “presented no evidence from which a reasonable jury could infer that Microsoft’s discontinuation of 

this arrangement suggested a willingness to sacrifice shortterm 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 adequately 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 vertically integrated and has been at all relevant times. No one objects to a vertically integrated Comcast offering both Interconnect 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 distinguishes 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 customers. 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 systems 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 interconnects,” and after being denied access, Comcast says, Viamedia sought “readmission.” Id. Typical vertically integrated firms do not refer to themselves as the “operators” of 

their assets, and they do not describe their buyers as “participating” 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 cooperative mechanism is not vertical integration.15 

Accordingly, we reverse the Rule 12(b)(6) dismissal of Viamedia’s claim for monopolization through an unlawful refusal to deal. 

2. Tying

The “essential characteristic of an invalid tying arrangement lies in the seller’s exploitation of its control over the 

15 Viamedia disputes the accuracy of describing Comcast as an Interconnect “owner.” Deposition testimony characterizes an Interconnect 

simply as “an agreement between two or more MVPDs in a DMA to distribute 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.” Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984). 

Viamedia contends that Comcast conditioned the sale of Interconnect 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 Interconnects, and (2) then using its control over the Interconnects to demand that its smaller MVPD competitors turn over 

to Comcast 100% of their spot avails, including the sale of local spots, an area in which Comcast and the MVPDs had formerly competed. Viamedia has offered evidence that this twofront strategy was successful. Comcast excluded its only competitor in the ad rep services market—gaining a pure monopoly. 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 disputed questions of material fact and the moving party is entitled to judgment as a matter of law,” so we “examine the record 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 summary judgment standard that requires plaintiffs in Section 2 

monopolization cases to present evidence that “tends to exclude 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 question on summary judgment is whether Viamedia has presented evidence to establish a genuine dispute of material fact 

as to whether Comcast engaged in exclusionary conduct forbidden 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 requirement in Matsushita that the plaintiffs’ claims make economic 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 concluded 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 evidence 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 services. Second, there is substantial evidence that the cooperative 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 Interconnects. 
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 because 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. Showing 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 anticompetitive 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 maintenance 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 restraints 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] arrangements are still unlawful, such as those that are the product 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 requirement); 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 offered 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 unnecessary, 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 without 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 underlying market structure make monopolization or attempt plausible, then a tie that contributes significantly to the maintenance 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 conduct 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 monopolist’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 Parish, 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 Railway, 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. Rather, 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 services bundles and re-sells ads from multiple MVPDs in a regional 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 Interconnect. The “character of the demand” for the two services also differs, as demonstrated by how the market participants have sold and purchased the services. See Jefferson Parish, 466 U.S. at 19–21. Viamedia has offered only ad rep services for almost two decades. Comcast formerly offered the 

two services separately in the relevant DMA geographic markets. 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 victims of Comcast’s tying conduct—its smaller MVPD competitors—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 arguments 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 market,” 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 Chicago and Detroit markets testified to the Department of Justice that Comcast had a business practice that “if an MVPD 

wants to get access to a Comcast [Spotlight] controlled Interconnect, it has to hire Comcast [Spotlight] as its ad sales representative.” 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 relationship, 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 judgment, of course, Viamedia is entitled to the benefit of reasonable inferences and interpretations in its favor. The opposing 
76 No. 18-2852 

arguments are suitable for a trial but are not grounds for affirmance. 

A jury could easily find that Comcast improperly forced 

the smaller MVPDs to buy its ad rep services using its monopoly 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-turnkey clients for ad rep services. A789. Every party involved understood that this was the practical effect of banning from the 

Interconnects MVPDs that received ad rep services from Viamedia. 

The fact that the arrangements were structured so that 

ownership of the slot avails passed from the MVPDs to Viamedia 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-provide ad rep services and must work with an ad rep to interface 

with the Interconnects. Given these dynamics, Viamedia offered sufficient evidence that Comcast explicitly used its control over the Interconnects to deny access to its competitor 

MVPDs or their agent to force RCN and WOW! to use Comcast’s ad rep services for all spot avails, including the twothirds 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 competitors.”); Microsoft, 253 F.3d at 64 (liability appropriate where 

monopolist bars rival from “cost-efficient” means of distribution 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 products. 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 Comcast 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 contains evidence of the opposite: RCN and WOW! needed to employ an ad 

rep services provider, and once Comcast refused to deal through their chosen 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 transactions 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 obtain Interconnect access. 

There are other fundamental differences between the 

product offered in Aerotec and the one offered here. Honeywell sold airplane parts and repair services. Comcast, by contrast, 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 selfproviding 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. Viamedia has presented evidence that the MVPDs were reluctant to be forced into their more powerful rivals’ arms. A886–

87. There was no evidence in Aerotec that the airlines felt similarly threatened, that providing repairs in-house was economically 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 promotion and venues, free to purchase those products separately, free to turn down both, and where they in fact exercised 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 rather than as the MVPD’s agent for Interconnect access; and 

third, that RCN and WOW! could have purchased Interconnect-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 evidence that Interconnect access was conditioned on the purchase 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 tying.” 335 F. Supp. 3d at 1061. This analysis fails on its own 

terms. As described above, Viamedia alleged a prima facie refusal-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 cooperative 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 Comcast 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 beyond reasonable factual dispute. Even Comcast characterized 

Viamedia not as a reseller of Interconnect services but as a reseller of MVPD spot avails to the Interconnect operator. 

DA638. Comcast’s characterization of ad rep services—including its own ad rep services provided to customer/competitor 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 district court acknowledged as much elsewhere in its opinion, 

explaining that MVPDs view “themselves as receiving Interconnect Services from interconnect operators (like Comcast) 

even when they have hired an unaffiliated Ad Rep (like Viamedia) 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 concluding 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 services. The court (1) read Comcast’s statements as more ambiguous 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 Comcast 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 implied condition that the buyer purchase the tied goods from 

the seller ordinarily satisfies the tying-agreement requirement. 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 factual 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 financial pain, to sign with Comcast for ad rep services do not disprove 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 cannot 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 Interconnect-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 actually supports Viamedia’s case, not Comcast’s defense. It is undisputed that competition takes place within metropolitan 

(DMA) markets. If an advertiser wishes to purchase advertising time in the Chicago DMA, buying a spot avail in New Orleans 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 substitute. 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 products. They need not be sold together. At the same time, Comcast’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 contrast, 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 (explaining that bundling in non-competitive markets does not necessarily provide insight into whether a tie is efficient rather than 

reflective of increased market power exploitation, while unbundling 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 toward 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 abandoned 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 regulators, 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 geographic markets to draw conclusions about forcing in the relevant markets. Post at 132–33. The ad rep services and Interconnect markets are distinct for each DMA. Viamedia’s tying allegations and evidence focused on 

Comcast’s conduct in Chicago, Detroit, and Hartford. The fact that Comcast 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 reverse 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 actions 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 conduct. 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 Viamedia and Comcast in ad rep services; and (3) between Comcast 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 competition 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 providers to a single, monopolist provider. With no other ad rep services 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 Viamedia 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 conditioned 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 entailed 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 arrangement has resulted in: 

 Comcast’s smaller MVPD rivals contributing additional 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 Interconnects, 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 loyalties—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, promotional ad materials to current and potential subscribers (including promotions trying to get customers 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 Interconnect access fees and from its own spot avails being less valuable 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 dramatically 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 theory, 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 continue working with Viamedia for ad rep services, but Comcast 

would continue barring them from the cooperative Interconnects. 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 Comcast). 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 anticompetitive harm. 

c. Back to the Interconnects

Comcast’s conduct also turned a previously procompetitive platform into a weapon to decrease competition in related 

markets. As originally conceived and implemented, the Interconnects appear to have been comfortably on the “reasonable” side of a rule of reason analysis for such cooperative ventures among competitors. See generally Broadcast Music, Inc. 

v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). Comcast 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 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. 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-exclusionary 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 companies’ “pipes” into the home (e.g., Netflix, YouTube). One Representative, 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 competitors 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 Viamedia’s evidence, however, Comcast was in the midst of doing 

just what Cohen was denying.19 

19 Comcast abandoned the Time/Warner transaction after investigations 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 Internetbased 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. Antitrust law is rightly skeptical of mechanisms that permit competitors jointly to set prices and other terms of dealing. Collaboration 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 government 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 incentive 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.justice.gov/opa/pr/comcast-corporation-abandons-proposed-acquisitiontime-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-collaboration 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 Competitors § 2.2, at 6, § 3.31, at 12 (April 2000) (Collaboration Guidelines). 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 mechanism as a source of its competitive advantage over rivals, distorting competition in related markets. The use of the Interconnects to take control of and set prices for competitors’ local 

ads does not appear related to accomplishing the Interconnects’ procompetitive goals. These facts weigh against Comcast, 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 conduct 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 antitrust law include evidence of “higher output, improved 
92 No. 18-2852 

product quality, energetic market penetration, successful research 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 Interconnects 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 demonstrated 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 government antitrust enforcers. Comcast’s acquisitions are not in 

and of themselves evidence of superior skills, services, or accident. 

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 justification” 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 “enhancing [a firm’s] market power.” § 1, at 2. One example of an anticompetitive 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 valuable 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 consumers would be broadly aligned in preventing 

such a merger. 

Merger Guidelines § 2, at 6 (emphasis added). Comcast cannot now justify exclusionary conduct by pointing to control 

over the Interconnects, which was acquired through mergers 

that themselves may have been anticompetitive precisely because of the risk that they could enable Comcast’s exclusionary conduct. 

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 reasonable inferences in favor of Viamedia, is a result not of its superior 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 incentives that it previously offered to customers or local retailers 

when competing with Viamedia, those savings would represent 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 forgoing investments in research and development, infrastructure, 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 inefficient, unreasonable, or confusing is not cognizable. See National 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 services 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. Refusing to deal with the MVPD’s representative of choice appears 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 reduced pricing could offset harm—although current contracts 

may not yet reflect ultimate post-competition pricing. They 

were signed when Comcast was still bidding against Viamedia. And while protection against free-riding is generally recognized as a procompetitive goal, “[w]hen payment is possible, 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 suspiciously 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 submit 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 remedying 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 Telephone 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 supervise.” Linkline, 555 U.S. at 452–53, quoting Trinko, 540 U.S. at 

415. Yet courts are often called upon to undertake complicated, 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 hundreds or even thousands, of related cases in multidistrict litigation 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 corporate structures and far-flung assets, supervising sales of those 

assets worth hundreds of billions of dollars. See, e.g., In re Lehman 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 interviews of family and associates, electronic monitoring, drug 

tests, and random searches. Administrative Office of the 

United States Courts, Overview of Probation and Supervised Release 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 administrability problems.” 

In any event, this defense puts the cart before the horse. 

The trier of fact must first evaluate the evidence and determine whether Comcast’s procompetitive justifications outweigh 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 Gorsuch wrote for the Tenth Circuit in Novell, evidence of that 
No. 18-2852 97 

earlier course of dealing “helps address, at least to some degree, 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 behavior 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 injunction”)). 

Comcast knows that courts are capable of overseeing 

structural and behavioral remedies (including ones that govern pricing disputes) that ameliorate competitive concerns. It 

agreed to such an arrangement as a condition for court approval 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 courtimposed 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 establish “antitrust injury,” which requires proof that its 

“claimed injuries are of the type the antitrust laws were intended to prevent and reflect the anticompetitive effect of either 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 market share or sales. “In such cases courts ordinarily grant standing 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 

21 An 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 refusalto-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 competitors suffer antitrust injury when they are forced from the market by exclusionary conduct. See, e.g., Tri-Gen Inc. v. Intʹl Union of Operating Engineers, Local 150, AFL-CIO, 433 F.3d 1024, 

1032 (7th Cir. 2006) (“[T]his Court has recognized that competitors 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 market, 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 designated purpose of the antitrust law—the preservation of competition.”) (emphasis added). This rule is integral to an effective 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. Bankruptcy 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 injury.”), 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 competition had thus been reduced). Instead, Viamedia seeks only an 

opportunity for fair competition in the ad rep services markets, 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 presented 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 pronounced 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 exclusionary conduct caused Viamedia’s injuries by forcing it from 

the ad rep services markets. 

The partial dissent expresses great skepticism toward rivals’ antitrust suits and argues that Viamedia cannot show antitrust injury on its tying claim. As a general matter, caution is 

appropriate. The partial dissent goes astray, however, by contending it is “uncommon” for a “single foreclosed rival” to 

have standing in a tying case. Post at 122–23. The leading tying cases and the leading treatise’s specific, on-point discussion 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; Jefferson 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 appropriate in cases like this. Viamedia was competing with Comcast 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 independent 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 exclusionary, 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-todeal and tying claims, the two theories necessarily allege similar 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 Viamedia’s expert witnesses.22 We address separately the district 

court’s ruling regarding a portion of Viamedia’s expert economic 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 conduct had violated the antitrust laws and thus caused Viamedia cognizable 

harm, and the court had concluded that Viamedia could not legally prevail 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 reversed. 
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 experiences” 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 report based on the court’s legal holdings, the court also excluded a portion of his testimony as offering only a lay impression 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 layperson.”

Dr. Furchtgott-Roth clearly drew conclusions through “expert assessment,” not merely a lay interpretation of the evidence. 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 relevant factual point. So too is his opinion that Viamedia cannot 

make a competitive offer for ad rep services if Comcast conditions its competitor MVPDs’ Interconnect access on forgoing 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 Interconnects was integral to its tying conduct. The district court 

therefore abused its discretion in concluding that Dr. Furchtgott-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 because 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 “§ 2 liability 

[to] turn on a plaintiff’s ability or inability to reconstruct the 
No. 18-2852 105 

hypothetical marketplace absent a defendant’s anticompetitive conduct,” which “would only encourage monopolists to 

take more and earlier competitive action,” courts have inferred causation when a defendant’s conduct “reasonably appear[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 consequences 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 terminated 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. 
106 No. 18-2852 

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 violation and is entitled to reversal and remand on its refusalto-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 colleagues on some other issues the majority opinion tackles. 

The last several decades have brought a new regime to antitrust law in the world of exclusionary conduct. Outdated 

monopolization doctrines have given way to a sharper and 

narrower understanding of what constitutes exclusionary behavior 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, Detroit, and Hartford Interconnects advertising availabilities 

that Viamedia purchased from multichannel video programming distributors (“MVPD”) WOW! and RCN. Viamedia understood 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-
No. 18-2852 107 

pired May 31, 2012. The next day Comcast informed Viamedia 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 representative 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 alleged Comcast’s decision caused Comcast to forfeit fees upfront 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 admitted a valid business purpose for Comcast’s refusal: removing 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 vertical integration or disintermediation as pro-competitive and efficient. See 
108 No. 18-2852 

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)) (internal 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 Viamedia’s refusal-to-deal claim, we must be cognizant that “the antitrust 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”). 
No. 18-2852 109 

411 (2004) (holding even a monopolist has no duty to cooperate 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 monopolist 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 umbrella over their heads or by otherwise pulling its competitive 

punches.”). 

Despite this hesitancy to condemn refusals to deal, a monopolist’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 “irrational” 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 (defendant 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 
110 No. 18-2852 

Sports, 555 F.3d at 1194 (“in rare circumstances a refusal to cooperate 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 opportunity 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, regardless of potential anticompetitive effect. The district court applied the latter and found there was a rational procompetitive 

purpose because Comcast offered evidence of vertical integration and disintermediation—motives that I agree reflect lawful 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 Comcast’s favor. This is not the court’s role on a Rule 12(b)(6) motion. 

Any confusion here may stem from a misunderstanding 

of how to handle conflicting evidence of conduct in the allegations. If only one party advances evidence showing procompetitive or anticompetitive conduct, the court may find 

2 The majority opinion reviews vertical integration and disintermediation 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. 
No. 18-2852 111 

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 efficiency justification for the refusal to deal). But even these instances 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 rationality 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 monopolizing conduct that we might wish to condemn is ‘irrational’”); 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 justification 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 
112 No. 18-2852 

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 procompetitive justifications” because there were no “problems 

in allowing Viamedia to participate in Interconnects” on behalf 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 Interconnects. Giving Viamedia the benefit of its allegations, its 

refusal-to-deal claim clears the Rule 12(b)(6) pleading bar because 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 competition,” 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 litigation encourages summary disposition of such cases when permissible”). But viewing the facts in a light favorable to 

Viamedia, its refusal-to-deal claim has not reached that point. 
No. 18-2852 113 

On a motion to dismiss, an antitrust plaintiff seeking § 2 

damages must point to plausible allegations showing its rival’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 indistinguishable 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 reasons for the refusal” to deal). Its holding is specific: the defendant 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 defendant’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 “unilateral termination of a voluntary (and thus presumably profitable) course of dealing suggested a willingness to forsake 

short-term profits to achieve an anticompetitive end.” Trinko, 
114 No. 18-2852 

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 business 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 subject of substantial debate. Albeit a seminal antitrust opinion, 

Aspen Skiing is recognized as a factual and legal exception under current antitrust law. See Trinko, 540 U.S. at 409 (“Aspen 

Skiing is at or near the outer boundary of § 2 liability.”). Today, 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 holding in Aspen Skiing as “the last gasp of the old school of antitrust”). 

Not all refusal-to-deal challenges fall within the “limited 

exception” of Aspen Skiing. Novell, 731 F.3d at 1074–75. To invoke that exception, there must be a preexisting, voluntary, 

and presumably profitable course of dealing between a monopolist 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 monopolist violates § 2 by refusing to deal with a rival, and those circumstances 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 defendant but for its tendency to eliminate or lessen competition”). 
No. 18-2852 115 

profits to achieve an anti-competitive end. Id. Evidence of forsaking short-term profits may “isolate conduct that has no

possible efficiency justification.” Id. at 1077. When considering 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. (disaggregating 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 secure their access to the Interconnects by contracting with 

them directly. Second, in Aspen Skiing, the monopolist’s conduct in comparable markets where it lacked dominance included 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 
116 No. 18-2852 

F. Supp. 3d at 1046. Third, in Aspen Skiing the forgoing of profitable transactions was not alone, but “in exchange for perceived long-run impact on its smaller rival,” and referenced 

in Aspen Skiing only in the context of finding no efficiency justification 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 integration 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-optimal new platform to sell advertising, which of course did 

not happen here. Rather than terminate the Interconnects, 

Comcast encouraged MVPD participation and sought to secure MVPDs’ access to the Interconnects by contracting directly with them. The record also contains evidence that Comcast 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 remanded. 
No. 18-2852 117 

C. Opinion Testimony on the Refusal-to-Deal 

Claim May Be Allowed. 

Lastly on the refusal-to-deal claim, the district court’s order 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 remand, the landscape of this case will have sufficiently 

changed to allow for this method of proof on the refusal-todeal claim. This reversal allows for Viamedia to name expert 

witnesses on this claim, subject to the usual later motion practice 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 Interconnectonly 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 conditioned 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-
118 No. 18-2852 

cast and access the Interconnect without any ad representative should they choose not to employ Comcast at the termination of their agreements with Viamedia. 

The district court granted summary judgment on Viamedia’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 services. 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 Interconnect access,” id. at 1070, thereby failing to establish a cognizable antitrust injury separate from the refusal to deal. Viamedia 

likewise failed to separately prove damages caused by the alleged 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 representation services, but “Viamedia has no antitrust right to force 

Comcast to help it sell such a bundle to their mutual customers.” Id. at 1064. Finding the undisputed evidence did not 

show tying conduct, the district court granted summary judgment. Id. at 1074. 
No. 18-2852 119 

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) (antitrust 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 defendant’s alleged anticompetitive conduct, on the one hand, 

and its injuries and the consumer’s, on the other.”). A showing of antitrust standing requires more than the standing inquiry 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 action.”) (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 Article 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, 
120 No. 18-2852 

489 (1977) (antitrust plaintiff must be able to show that its injury is “of the type the antitrust laws were intended to prevent”). 

Even if a plaintiff can show its injuries are the result of unlawful 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 suffered 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 antitrust laws.” McGarry, 937 F.3d at 1065 (citing Associated Gen. 

Contractors, 459 U.S. at 538; In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 158 (2d Cir. 2016)). “But ‘presumptively’ 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 customers 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, including to competitors. See Kochert, 463 F.3d at 718; Tri-Gen Inc. v. 
No. 18-2852 121 

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. Contractors, 459 U.S. at 540 (collectively, neither consumers nor competitors). 

Instead, on this prerequisite the relevant case law prioritizes the type, directness, and cause of an antitrust injury, rather 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, directness, and cause of antitrust injury suffered). 

Even with the presumption favoring consumers and competitors, standing is granted to rivals only when it “serves antitrust 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 competitor, standing alone, does not prove anticompetitive effect.” 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 
122 No. 18-2852 

rival disputing a tying arrangement will have antitrust standing.4 See 2A Areeda & Hovenkamp, ANTITRUST LAW ¶ 348a, p. 

232 (“courts are properly skeptical of many rivals’ suits, particularly when the practices are not obviously ‘exclusionary’”). 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 competitor’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); Associated 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 enhanced 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 perpetuates 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 defendant’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. 
No. 18-2852 123 

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 superior 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 antitrust enforcement”); see also Kochert, 463 F.3d at 718; 2A 

Areeda & Hovenkamp, ANTITRUST LAW ¶ 348a, p. 232 (recognizing that “consumers almost always have the correct incentives for suit, [but] rivals do not”). The presence of a more 

appropriate person to bring a claim “diminishes the justification 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 derivative” of other injuries. Id. And even when standing is recognized, 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 standing.”).

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 conduct. 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 
124 No. 18-2852 

or damages “flows directly from Viamedia’s inability to access” the Interconnects, not tying); see also Novell, 731 F.3d at 

1080 (declining to recognize separate, cognizable antitrust injury for other exclusionary conduct that relied on alleged refusal-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 advancing 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 Interconnect and exclusive ad representation services, it was not required to make such an offer to its rival, Viamedia. This reveals the fatal flaw in Viamedia’s tying theory: even if Comcast 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 behaved 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 standing 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 Comcast’s alleged tying conduct and would be in the superior position to pursue a claim against Comcast. Viamedia could not 

participate directly in this alleged tying arrangement, and it 
No. 18-2852 125 

now seems motivated to protect itself from competition rather 

than enforce the antitrust laws. See Majority op. at p. 66 (“Viamedia 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 Viamedia’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 evidence. 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 possibility of injunctive relief—which the district court correctly concluded was 

misplaced on these facts, 335 F. Supp. 3d at 1074—and that treatise observes 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.
126 No. 18-2852 

weighing of evidence as a “trap” to avoid). But the nonmoving party must “go beyond the pleadings” at summary judgment. 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 procompetitive 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 conspiracy”); 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 cooperate 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. 
No. 18-2852 127 

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 “alternative 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 condemnation 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 arrangement 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 
128 No. 18-2852 

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 indispensable 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,” Majority op. at 77, so Aerotec should not control. But Aerotec provides an instructive framework for determining whether a tie has occurred and illustrates the important role that conditioning plays in an unlawful tying arrangement, 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 economically feasible for RCN and WOW! to internalize ad representation, 

either regionally or locally. This is not supported by the record, which contains 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 Interconnect-only services from Comcast, and both sought full-turnkey relationships 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. 
No. 18-2852 129 

the Ninth Circuit concluded there was no evidence that Honeywell, 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 service provider—for repairs, Aerotec sued Honeywell for alleged 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 “decline[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 hindered 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 Interconnect 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. 
130 No. 18-2852 

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, regionwide, 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 direct relationship with the Interconnect operator. Id. 

at 1063–64. 

 Interconnect operators may pursue a direct relationship 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 local advertising and hire an ad representative to represent them locally. Id. at 1045. 
No. 18-2852 131 

 Some MVPDs choose to conduct their own ad representation—regionally, locally, or both. Id.

 RCN and WOW! are MVPD customers of Comcast 

and Viamedia, which compete for MVPDs’ business on the relevant Interconnects. Id. at 1046. 

 Comcast refused to deal with Viamedia by disallowing 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 condition that they also purchase ad representative services. Id. at 1058. 

 Fourteen percent of Comcast’s agreements with 

MVPDs across all DMAs are Interconnect-only. Id. 

 RCN and WOW! never requested Interconnectonly services from Comcast, and both pursued fullturnkey 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 access 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. Majority op. at p. 76. It is undisputed that Comcast refused to deal with 

Viamedia; the question on remand is whether that refusal was anticompetitive, which Viamedia will have to prove. As discussed, refusals to deal 

are now not disfavored, and in fact the opposite—cooperation among rivals—is a red flag under antitrust law. See Easterbrook, The Chicago School 

& Exclusionary Conduct, at 442 (“cooperation is to be feared rather than 

welcomed”). 
132 No. 18-2852 

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 [] sufficiently” 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 efficiency” and not singling out smaller market or product line). 

And there is no evidence Comcast withheld Interconnect access from MVPDs unless they also purchased ad representative 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 representation 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 representation 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 representation 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 
No. 18-2852 133 

WOW! sought Interconnect access and ad representation services 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 purchase of two products together” is “not a tie at all”). The district 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 services. 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 thirdparty] ad rep services provider”); id. at 78 (deciding “selfproviding 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. 
134 No. 18-2852 

and WOW!”); id. at 82 (finding evidence “showing that inhouse 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 representation 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 economically 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 cannot accurately predict. These assumptions are not supported 

by the record, which instead contains evidence of various economically feasible options MVPDs choose in structuring their 

advertising sales, including internalizing part of or all ad representation 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 services” 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 before the Federal Communications Commission and the 

Department of Justice. But the relevant evidence shows Comcast’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 understanding that “[WOW!] can be in the [Interconnect] but 

only if [Comcast] rep[s] us directly.” See Majority op. at p. 75. 
No. 18-2852 135 

The majority opinion reads this as revealing Comcast’s “demands” 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 accommodate 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 internalizing services—and does not constitute tying as defined. 

Some other examples: in a different email, a Comcast employee 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 directly with WOW,” reiterating the “tremendous value and 

benefits [Comcast] can deliver for WOW” in a direct relationship. 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 relationship 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 acknowledged it was Comcast’s “business practice” to inform MVPDs 
136 No. 18-2852 

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 suggest “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 illegal 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 Interconnects. 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 relationships. 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 
No. 18-2852 137 

antitrust regime, “[w]hat distinguishes exclusion from efficiency is what happens in the future,” Easterbrook, The Chicago School & Exclusionary Conduct, at 443, not what the parties 

want to happen. 

None of this evidence measures whether Comcast’s conduct 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 Viamedia’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 requires 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 customers 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 input”). 
138 No. 18-2852 

Finally, even if Viamedia’s refusal-to-deal claim had survived a motion to dismiss, summary judgment was appropriate 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 acknowledging 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 justifications or defenses,” Majority op. at p. 38, the majority 

opinion does not explain how Viamedia has established a distinct 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 Comcast’s conduct as a whole, “[Comcast] has unreasonably maintained 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 instruct 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 tying claim, I am not convinced of that connection. In comparison 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 different than a tying claim); accord Novell, 731 F.3d at 1072 (distinguishing unilateral refusals to deal from other recognized 

forms of anticompetitive conduct like tying). Viamedia, seeking 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’ 
No. 18-2852 139 

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 conditioning. 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 recovery 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 monopolization 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 anticompetitive practices.”). We are no more skilled at predicting market shifts than anyone else, and courts are very rarely the best 

forum for discerning between exclusionary and efficient conduct. See id. at 442–45. 

The district court hewed to the particular types of exclusionary 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 
140 No. 18-2852 

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 preserve 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 Easterbrook, 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 positives, unpredictability, and past court confusion, and it seeks 

to protect consumers and promote competition in a technologically advancing marketplace. Many cases and authorities 

point in this direction. An alternative § 2 monopolization 

theory is not consistent with how courts now consider potentially 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 complicated 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 
No. 18-2852 141 

allegation. For the reasons above, I respectfully concur in part 

and dissent in part.