The opinion of the court was delivered by: Leisure, District Judge:
This is an action by Fort Wayne Telsat ("Telsat") against
ESPN, Inc. ("ESPN"),*fn1 for violations of the federal
antitrust laws, and for pendent state law claims of unfair
competition and interference with prospective business
relations. ESPN has now moved to dismiss the complaint in this
action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state
a claim upon which relief can be granted.
This case involves the distribution of programming for
"subscription television." Subscription television, unlike
broadcast television, requires individual viewers to pay a fee
to receive programming. Cable television, which is distributed
to individual viewers by means of a cable or wire, is a common
form of subscription television. Another method of subscription
television is known as "multichannel multipoint distribution
service" ("MMDS"), which employs microwave transmission to
distribute programming to viewers.
In general, there are three links in the chain of
distribution of subscription television. At the beginning of
the chain are "programmers," who assemble programming by
creating their own television programs or by purchasing the
rights to motion pictures, other television programs, or other
events, such as sporting events. Programmers are, in effect,
the manufacturers and wholesale distributors of subscription
programming. The second link is constituted by the "operators,"
local companies that receive subscription programming from the
programmers and, then, much like retailers, distribute the
programming of various programmers to the viewers.*fn2 With
respect to operators using cable technology, in most instances
a single operator serves an area under an exclusive franchise
granted by the local municipal or county authority. The final
link of the chain is made up of "subscribers," i.e., industry
parlance for viewers, who pay the operator a monthly
subscription fee to receive the programming.
"The court's function on a Rule 12(b)(6) motion is not to
weigh the evidence that might be presented at a trial but
merely to determine whether the complaint itself is legally
sufficient." Festa v. Local 3 International Brotherhood of
Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990); see also
Ryder Energy Distribution Corp. v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984) ("The function of a
motion to dismiss `is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.'" (quoting Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980))).
Thus, a motion to dismiss must be denied "unless it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40
L.Ed.2d 90 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also Morales v.
New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.
1988). In deciding a motion to dismiss, the Court must accept
the plaintiff's allegations of fact as true, together with such
reasonable inferences as may be drawn in his favor. Papasan v.
Allain, 478 U.S. 265, 283, 106 S.Ct. 2932, 2943, 92 L.Ed.2d 209
(1986); Murray v. Milford, 380 F.2d 468, 470 (2d Cir. 1967);
Hill v. Sullivan, 125 F.R.D. 86, 90 (S.D.N.Y. 1989) ("all
allegations in plaintiffs' amended complaint must be accepted
as true and liberally construed."); see also Scheuer, supra,
416 U.S. at 236, 94 S.Ct. at 1686. Federal Rule of Civil
Procedure 8(a) requires only a "`short and plain statement of
the claim' that will give the defendant fair notice of what
plaintiff's claim is and the ground upon which it rests."
Conley, supra, 355 U.S. at 47, 78 S.Ct. at 102 (quoting
Nevertheless, the complaint must set forth enough information
to suggest that relief would be based on some recognized legal
theory. Telectronics Proprietary, Ltd. v. Medtronic, Inc.,
687 F. Supp. 832, 836 (S.D.N.Y. 1988) (Leisure, J.). "The District
Court has no obligation to create, unaided by plaintiff, new
legal theories to support a complaint." District of Columbia v.
Air Florida, Inc., 750 F.2d 1077, 1081-82 (D.C. Cir. 1984). "In
practice `a complaint . . . must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.'" Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,
1106 (7th Cir. 1984) (quoting Sutliff, Inc. v. Donovan Cos.,
727 F.2d 648, 654 (7th Cir. 1984) (Posner, J.) (emphasis in
original) (quoting French Quarter Apartments Ltd. v.
Georgia-Pacific Corp., 655 F.2d 627, 641 (5th Cir. 1981), cert.
dism'd, 462 U.S. 1125, 103 S.Ct. 3100, 77 L.Ed.2d 1358
(1983))), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84
L.Ed.2d 821 (1985).
Having set forth the standards for evaluating motions under
Rule 12(b)(6), the Court now addresses the sufficiency of
First Claim: Monopolization of Market for Subscription
Telsat's first claim is brought under § 2 of the Sherman Act,
15 U.S.C. § 2,*fn3 alleging monopolization by ESPN of the
"market for subscription television programming services for
quality sports programming in the United States." Complaint
¶ 43. "The offense of monopolization under § 2 of the Sherman
Act consists of two elements: (1) the possession of monopoly
power in the relevant market; and (2) 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." Volvo North America Corp. v.
Men's International Professional Tennis Council, 857 F.2d 55,
73 (2d Cir. 1988) (citing Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585, 596 n. 19, 105 S.Ct. 2847, 2854 n.
19, 86 L.Ed.2d 467 (1985) (quoting United States v. Grinnell
Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d
778 (1966)); National Association of Pharmaceutical
Manufacturers v. Ayerst Laboratories, 850 F.2d 904, 915 (2d
Cir. 1988)); see also Delaware & Hudson Railway Co. v.
Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990).
Section 2 of the Sherman Act is "aimed . . . at the
acquisition or retention of effective market control."
United States v. Griffith, 334 U.S. 100, 107, 68 S.Ct. 941,
945, 92 L.Ed. 1236 (1948). It is designed to prevent "a
pernicious market structure in which the concentration of power
saps the salubrious influence of competition." Berkey Photo,
Inc. v. Eastman Kodak Co., 603 F.2d 263, 272 (2d Cir. 1979),
cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783
(1980). Ordinarily, the Court may infer the existence of
monopoly power from a predominant share of the relevant market.
United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct.
1698, 1704, 16 L.Ed.2d 778 (1966). Here, Telsat has alleged in
its complaint that "ESPN, by far the largest sports programming
service abusively dominates the market." Complaint ¶ 13.
Although inartfully punctuated, this allegation, immediately
following an allegation that the relevant market "is the market
for subscription television programming services for ...