Jennifer R. Scullion
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Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even though it only wanted a subset of the bundle. Is that a defense? … Continue Reading
Expanded Basic. Choice. Choice Plus. Cable and satellite TV customers pay monthly fees for bundled channel packages of different sizes. The packages are becoming “skinnier,” allowing you to customize your service from a set of modules (i.e., the Family package, the Sports package, various language packages, etc.). But each module is still a pre-set bundle … Continue Reading
Since 2008, cable customers have been suing cable operators across the country claiming operators violate the antitrust laws by forcing customers to lease set-top boxes from the operator to access “premium” cable services. Plaintiffs claim that the operators have “tied” one product (the service) to another product (the box) and that the arrangement is a … Continue Reading
In late August 2016, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that a core source of FTC authority (Section 5 of the FTC Act) does not apply to any “common … Continue Reading
Negotiations between television channels/networks and pay TV operators are a breed apart. The stakes are high and the consequence of failure – a “dark” screen – is all too public. But the critical factor that sets these negotiations apart is the actual regulation of the negotiations under three main categories of rules. Broadcasters may invoke “Must … Continue Reading
2015 and 2016 saw a wave of transactions among cable, satellite, and other linear programming distributors: AT&T & DirecTV, Altice and Suddenlink, etc. That transactional wave is beginning to spawn a litigation wave, principally over interpretation and application of the pre-existing licenses and contracts between networks and distributors. A recent ruling in one California case … Continue Reading
More than fifty years ago, the Supreme Court formalized the “state-action antitrust immunity” doctrine ─ a judge-made rule that certain state governmental conduct is immune from challenge under the federal antitrust laws. Since then, the courts have had a love-hate relationship with “Parker” immunity. The difficulties of that relationship are particularly important to public colleges and … Continue Reading
Despite the numerous Supreme Court decisions limiting class arbitrations, one central issue remains undecided: who decides whether an arbitration agreement permits class arbitration, the courts or the arbitrators? Entities that want to avoid class arbitration want the question to be decided by the courts, where the appeal process ensures at least one level of review. … Continue Reading
A recent federal court order highlights the scope, and the limitations, of a U.S. court’s authority to order domestic discovery for use in a foreign proceeding under 28 U.S.C. § 1782. The court in In re Ex Parte Application of Qualcomm Incorporated rejected Qualcomm’s Section 1782 applications to subpoena a host of U.S. technology giants for … Continue Reading
New York Rejects Antitrust Defense To Breach Of Distribution Contract
By Jennifer R. Scullion on Posted in Antitrust, Media and Technology, Telecommunications
It’s Not an Illusion! DISH Not Required to Give Credit When Channels Go Dark
By Jennifer R. Scullion on Posted in Antitrust, Appellate, Media and Technology, Telecommunications
Second Circuit Blazes New Trail in Set-Top Box Cases: Cable Service and Boxes are Not Separate Products
By Jennifer R. Scullion on Posted in Antitrust, Media and Technology, Telecommunications
Of “Lunch Stands and Merry-Go-Rounds”: Ninth Circuit Rejects FTC Authority Over Broadband Providers
By Jennifer R. Scullion on Posted in Appellate, Media and Technology, Telecommunications
FCC Media Bureau Clarifies Broadcasters’ Negotiation Remedies
By Jennifer R. Scullion on Posted in Media and Technology, Telecommunications
“Red Herring” or “Alternate [U-verse]”? Court Allows Cable Network to Go Beyond Written Contract in Claims Against Distributor
By Jennifer R. Scullion on Posted in Commercial Litigation
When are Universities and Executive Agencies “State Actors” for Antitrust Immunity?
By Jennifer R. Scullion on Posted in Antitrust
Express Yourself! Ongoing Split Over Class Arbitration Points to Importance of Clear Provisions
By Jennifer R. Scullion on Posted in Arbitration, Commercial Litigation
Not So Fast! Qualcomm Cannot Use “Curious Quirk” of U.S. Discovery Law In Korean Antitrust Proceeding
By Jennifer R. Scullion and Michael R. Hackett on Posted in Extraterritorial Discovery
