On remand from the Supreme Court of the United States
Before Lumbard,*fn* Moore and Gurfein, Circuit Judges.
MOTION FOR SUMMARY JUDGMENT
Following remand from the Supreme Court, 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 to this court upon review on certiorari of our opinion filed August 8, 1977, 562 F.2d 130, BMI and ASCAP move for summary judgment on the ground that CBS failed to raise in this court "the legality of defendants' licensing practices under the rule of reason." Four considerations, among others, impel us to a broad construction of the CBS position in this court.
First, the majority opinion by Mr. Justice White "remand(s) the cause for further appropriate proceedings" (99 S. Ct. at 1556) and states that the blanket license "should be subjected to a more discriminatory examination under the rule of reason. It may not ultimately survive the attack, but that is not the issue before us today." 99 S. Ct. at 1565.
Second, the dissenting justice, Mr. Justice Stevens, the only justice to address the merits under the rule of reason standard, actually found the blanket license to be an unreasonable restraint of trade.
Third, the United States in its amicus brief in the Supreme Court took "no position, however, on whether the practice is an unreasonable restraint of trade in the context of the network television industry." 99 S. Ct. at 1560.
Fourth, this court found a lack of market necessity for the blanket license in dealing with the network.
After noting that (w)e have never examined a practice like this one before" (99 S. Ct. at 1557), the Supreme Court did not rule that price-fixing was not involved, which would have been the end of the matter.
Accordingly, we think that, in the interests of an ultimate solution of the question, we must scrutinize CBS' arguments in terms of whether it intended to waive a claim under the rule of reason standard, considering the breadth of its arguments. We find no such intent. The emphasis was simply on the harder point, Per se unlawfulness, but CBS did argue the practical effects of the blanket license, and did not exclude an application of the rule of reason standard thereto.
We will not, at this time, expand on the relationship between the standard which we set that market necessity (limited to television networks) might justify the price-fixing aspect of the exclusive blanket license and a rule of reason standard, since we do not wish to foreclose unrestricted arguments on the issue.
We are convinced, moreover, that in the state of the law on price-fixing Per se in 1977 and in the light of the CBS economic impact arguments relating to the alleged unreasonable restraint of the exclusive blanket license, both in terms of tie-in and price effect, the issue was presented clearly enough to this court for us to have passed on the question under the rule of reason.
We conclude, in the circumstances, that it would be inequitable to hold, on narrow, technical or semantic grounds that appellant did not raise the question adequately.
We, accordingly, deny the motion for summary judgment, and issue a ...