We represent Comcast in antitrust litigation brought by Altitude Sports & Entertainment, a Denver regional sports network (RSN) with rights to the NBA’s Denver Nuggets and NHL’s Colorado Avalanche. When Altitude’s carriage agreement with Comcast expired in August 2019, the parties did not reach agreement concerning a renewal agreement, which resulted in Altitude no longer being distributed to Comcast Cable subscribers. In November 2019, Altitude sued Comcast in the District of Colorado under Section 2 of the Sherman Act and state antitrust and tort law, alleging that Comcast’s proposed terms were economically irrational and intended to drive Altitude out of business. Altitude also alleged that Comcast intended to start its own Denver RSN to replace Altitude. In its amended complaint, Altitude alleged that Comcast’s conduct constituted monopsonization of the “buy side” of the Denver-area market for regional sports programming and attempted monopolization of the “sell side” of that market.

On November 25, 2020, the district court granted in part Comcast’s motion to dismiss Altitude’s amended complaint. The Court dismissed Altitude’s monopsonization claim, agreeing with Comcast that Altitude failed to plead any injury to competition because Altitude’s allegations showed that Altitude’s loss of carriage on Comcast caused Comcast to lose, rather than increase, its purported market power as a buyer of sports programming. The Court also dismissed Altitude’s tort claims, agreeing with Comcast that Altitude failed to plead them with sufficient particularity. Although the Court held that the attempted monopolization claim could survive a motion to dismiss – describing the standard for pleadings to survive such a motion as “exceedingly low” – the Court observed that Comcast made “numerous, persuasive arguments.” Based on those arguments, the Court stated that the attempted monopolization claim will have “a significantly difficult road ahead should the case proceed to summary judgment.”

The Davis Polk team included partners Arthur J. Burke and Sheila R. Adams.

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