The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This suit asserting violations of the federal antitrust laws by the defendants in connection with their chain of local newspapers in the northern counties of the Southern District of New York contains numerous highly generalized allegations but fails to set forth in an adequate way the elements required to state a claim upon which relief can be granted under any of those statutes.
By Report and Recommendation dated January 14, 1994, United States Magistrate Judge Mark D. Fox has recommended granting defendants' motion under Fed.R.Civ.P. 12(b) to dismiss the complaint for failure to state a claim upon which relief can be granted. The complaint is dismissed as recommended in the Report and Recommendation, which is approved and adopted.
The bulk of the complaint in the present case consists of criticisms of defendants' conduct of their newspaper business which may be proper topics for robust public debate,
but do not suggest viable legal claims. For example, the complaint indicates that defendants' publications do not publish material which plaintiff believes deserves such publication. But the First Amendment has long been recognized as promoting diversity in expression of differing views by allowing numerous means of expression to flourish, not by allowing suits because a given publication or even chain declines to broadcast or publish any particular view. See Miami Herald v. Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974).
The complaint also attempts to allege illegal monopolization based upon defendants' publications assertedly having a fifty-percent (50%) share of a localized market. Such a market share is not exclusionary to the extent of depriving customers of other options; moreover, a high market share is not considered monopolistic under the federal antitrust laws unless obtained through anticompetitive behavior established by credible facts. See Spectrum Sports v. McQuillan, 113 S. Ct. 884, 122 L. Ed. 2d 247 (1993). Obtaining a substantial market position through purely "honestly industrial" means is conducive to efficiency beneficial to the public. See Berkey Photo v. Eastman Kodak, 603 F.2d 263 (2d Cir 1979), cert. denied 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061 (1980), modifying the view expressed in United States v. Aluminum Co of America, 148 F.2d 416 (2d Cir 1945).
Two aspects of the complaint contained factual claims which although not viable as pleaded, if supported by more detailed information, might allege possible violations of the federal antitrust laws. As explained in part IV, however, such claims cannot be pursued by plaintiff.
1. The complaint alleges that defendants, utilizing the leverage of an approximately 50% share of the market for local newspaper service in the upstate counties in the Southern District of New York, require advertisers in newspapers to purchase space in a significant number of local papers in order to advertise in any. The federal antitrust laws seek to maximize consumer choice in the marketplace. See generally Reiter v. Sonotone Corp, 442 U.S. 330, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979). For this purpose they inhibit use of market power in one field to increase power in another market, or for the purpose of compelling potential customers to purchase unwanted goods or services in order to obtain those they wish to obtain.
Restrictive tying arrangements based on use of the leverage of market power to compel unwanted purchases in order to secure other goods or services, which affects individual natural persons and affects interstate commerce in the aggregate may be subject to antitrust challenge. Gonzalez v. St. Margaret's House, 880 F.2d 1514 (2d Cir 1989); Hill v. A-T-O, 535 F.2d 1349 (2d Cir 1976); see Summit Health Ltd v. Pinhas, 500 U.S. 322, 111 S. Ct. 1842, 114 L. Ed. 2d 366 (1991). But the present complaint provides no details concerning the scope, rigidity, method of communication, or practical consequences to plaintiff or to commerce, of the alleged advertising restrictions.
2. The complaint alleges that defendants obtained a dominant share in the local newspaper field in the counties involved through acquisitions of competitors. This might raise questions under Section 7 of the Clayton Act (15 USC 18) if the aggregate effect of such acquisitions "may be to substantially lessen competition" in interstate commerce. At present no dates, financial amounts, or other information about the claimed acquisitions, whether or not they were of otherwise failing companies, or ...