Viamedia, Inc. v. Comcast Corp. (335 F. Supp. 3d 1036, 2018)

AMY J. ST. EVE, United States Circuit Court Judge

This antitrust suit was born when a monopolist in one market decided not to do business with a competitor from a related market. The monopolist, Comcast Corporation, denied its competitor, Viamedia, Inc., access (or access on terms Viamedia considered reasonable) to much-needed sales platforms called interconnects. Hurting as it lost revenue and customers turned to Comcast, Viamedia sued under Section 2 of the Sherman Act and various state antitrust laws. See Compl., R. 1; Am. Compl., R. 40.

At the motion-to-dismiss stage, the Court ruled that Comcast had no antitrust duty to deal with Viamedia and thus its refusal to deal was not cognizably anticompetitive under Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP , 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004), and its progeny. Viamedia, Inc. v. Comcast Corp. , 218 F.Supp.3d 674, 698-99 (N.D. Ill. 2016) ; Viamedia, Inc. v. Comcast Corp. , No. 16-CV-5486, 2017 WL 698681, at *3-6 (N.D. Ill. Feb. 22, 2017). Now, at the summary-judgment stage, the question is whether Comcast's conduct can be characterized as something more-tying, exclusive dealing, or another form of anticompetitive conduct. It cannot. Undisputed facts reveal that Viamedia's alternative theories are lacking as a matter of law. Undisputed facts demonstrate that Comcast's refusal to deal with Viamedia-not coercive conduct directed at their mutual customers-is what caused Viamedia's injuries and damages.

Before the Court are Comcast's motion for summary judgment (R. 264), motion to exclude opinions proffered by Viamedia, Inc.'s damages expert, Thomas Lys, Ph.D. (R. 212), and motion to exclude certain opinions proffered by Viamedia's liability expert, Harold Furchtgott-Roth (R. 208). For the reasons explained below, the Court grants Comcast's motion for summary judgment, grants in part Comcast's motion to exclude Dr. Furchtgott-Roth's opinions and denies the remainder as moot, grants Comcast's motion to exclude Dr. Lys's opinions, and enters judgment in Comcast's favor.

BACKGROUND

I. Factual Background

Northern District of Illinois Local Rule 56.1 frames how district courts receive facts at the summary-judgment stage. See Delapaz v. Richardson , 634 F.3d 895, 899 (7th Cir. 2011). Local Rule 56.1(a)(3) requires the movant to provide "a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law." L.R. 56.1(a)(3) ; Curtis v. Costco Wholesale Corp. , 807 F.3d 215, 219 (7th Cir. 2015). The nonmovant must then file "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B) ; Petty v. Chicago , 754 F.3d 416, 420 (7th Cir. 2014). The nonmovant may also submit a separate statement of additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other materials relied upon to support those facts. L.R. 56.1(b)(3)(C) ; see also Ciomber v. Coop. Plus, Inc. , 527 F.3d 635, 643-44 (7th Cir. 2008).

The purpose of Local Rule 56.1 statements and responses is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. Cady v. Sheahan , 467 F.3d 1057, 1060 (7th Cir. 2006) ; see also United States v. 5443 Suffield Terrace, Skokie, Ill. , 607 F.3d 504, 510 (7th Cir. 2010) ("[S]ummary judgment may only be defeated by pointing to admissible evidence in the summary judgment record that creates a genuine issue of material fact, and it was not the district court's job to sift through the record and make [a claimant's] case for him"). Unresponsive, argumentative, evasive, and unsupported denials are improper, e.g. , Morrill v. Nielsen , Phillips v. Quality Terminal Servs., LLC , 855 F.Supp.2d 764, 771 (N.D. Ill. 2012), and district courts may disregard improper denials and deem the opponent's facts admitted, e.g. , Aberman v. Bd. of Educ. of Chi. , 242 F.Supp.3d 672, 677 (N.D. Ill. 2017). See also Boss v. Castro , 816 F.3d 910, 914 (7th Cir. 2016) ("The district court's discretion to require strict compliance with Local Rule 56.1 has been upheld time and again."). Moreover, "[w]hen reviewing a summary judgment motion, courts may only consider admissible evidence." FED. R. CIV. P. 56(c) ; McGreal v. Vill. of Orland Park , 850 F.3d 308, 312-14 (7th Cir. 2017). "To be considered on summary judgment, evidence must be admissible at trial, though 'the form produced at summary judgment need not be admissible.' " Cairel v. Alderden , 821 F.3d 823, 830 (7th Cir. 2016) (quoting Wragg v. Village of Thornton , 604 F.3d 464, 466 (7th Cir. 2010) ). With those principles and the Rule 56 standard in mind, the parties' respective Local Rule 56.1 statements and responses describe the following backdrop to this lawsuit.

A. The Spot Cable Business and Interconnects

Cable networks, like ESPN or CNN, typically allocate small windows of air time-two to three minutes per hour-to the multichannel video programming distributors ("MVPDs") that show their programming. CSF ¶ 7. These windows, according to industry parlance, are called "availabilities," "avails," or "spot cable ads." Id. ¶¶ 7, 9. About a quarter of the time, MVPDs retain those avails to advertise their or their affiliates' services. VSF ¶ 5. MVPDs sell the remainder to outside advertisers-and how they choose to do so is the focus of this case. See CSF ¶ 9.

There are many MVPDs nationwide, including Comcast, RCN Corporation, Wide Open West ("WOW!"), Charter Communications, Inc., Atlantic Broadband, and Verizon Communications. MVPDs come in different forms-cable operators, like Comcast or Charter; telecom providers, like Verizon and AT & T; overbuilders, like WOW! and RCN; and satellite providers, like DISH or DirectTV. Id. ¶ 8. Most MVPDs offer their services in one or more metropolitan regions, called designated market areas ("DMAs"). Id. ¶ 5. There are typically four or more MVPDs in a DMA. Comcast Ex. 2, Furchtgott-Roth Report ¶ 17 (R. 273-5).

In any given DMA, there are different ways in which MVPDs sell avails to advertisers. Some MVPDs sell directly through their own sales force. CSF ¶ 10. Others hire advertising-representation firms that specialize in spot cable advertising ("Ad Reps"). Id. ¶ 11. Viamedia is such an Ad Rep, and it has no corporate affiliation with any MVPD. Id. ¶ 13. Viamedia, in fact, is the only independent Ad Rep with significant market presence. VSF ¶ 9. Comcast, under the trade name Comcast Spotlight, also does business as an Ad Rep, both on its own behalf and on behalf of other MVPDs. CSF ¶ 5.

When an MVPD hires an Ad Rep, the two typically enter into an "advertising purchase and sale" agreement. Id. ¶ 11. Under these agreements, an Ad Rep is responsible for managing and selling an MVPDs' avail inventory (or some portion of it) to advertisers. Id. ¶¶ 11-12; VSF ¶ 1. Ad Reps can represent their MVPD customers: (1) locally, selling only a part of an MVPD's avails in a DMA to local advertisers; (2) regionally, selling all of the MVPD's avails in a DMA; or (3) nationally. Furchtgott-Roth Report ¶ 21. In any event, Ad Reps' sales responsibilities entail ancillary responsibilities, too, including: marketing and pricing the avails; maintaining the software and hardware needed to run, insert, traffic, monitor and advertise spot cable ads; organizing inventory into schedules and ensuring each ad runs correctly during those schedules; and performing financial services, like accounting, billing, and collection. VSF ¶ 1. Ad Reps are also responsible for working with interconnects to sell avails. Id. These services make up "Ad Rep Services," according to Viamedia. Id. ; see also Furchtgott-Roth Report ¶¶ 22-29.

An interconnect is a "one stop shop" where advertisers can purchase spot cable ads on a DMA-wide basis. CSF ¶ 16. Developed by MVPDs in the 1990s, interconnects solve a market inefficiency. Before interconnects, an advertiser wanting to reach television audiences with commercials running at the same time on the same channel across the DMA had to either rely on over-the-air broadcast stations exclusively or negotiate separately with each MVPD. CSF ¶¶ 14-15, Resp. to ¶ 14. An interconnect-of which there is one per DMA-fixes that problem by pooling together avails among the DMAs' MVPDs, scheduling allocations, selling and coordinating the sale of those avails, and billing the parties. Id. ¶ 17, Resp. to ¶ 17. These collective services make up "Interconnect Services," according to Viamedia. Id. ; see also Furchtgott-Roth Report ¶¶ 30-42.

Over the last decade or so, the largest MVPD in a DMA has come to operate that DMA's interconnect. Id. ¶ 18; see also Am. Compl. ¶¶ 13, 44. In operating the interconnect, the controlling MVPD makes investments to support and maintain the platform. The degree and nature of those investments are disputed, but, at a minimum, MVPDs invest in and maintain a sales infrastructure for the interconnects. CSF ¶ 20, Resp. to ¶ 20; see also Comcast Ex. 14 at 147:11-14 ("David Solomon, Viamedia's Chief Revenue Officer, testifying that, "I'm sure [Comcast] ha[s] over the past 18 years ... spent significant [sic] to establish support, build and maintain their infrastructure" over the interconnects").

Ad Reps, pursuant to the purchase and sale agreements, profit from the sale of MVPDs' avails based on an agreed revenue share, or split, with the MVPD. CSF ¶ 38. The split is the percentage division of the revenue generated from the avails' sales, with a share going to the Ad Rep and the remainder to the MVPD. Id. A higher split share for the Ad Rep means a worse price for the Ad Rep's services to the MVPD, and vice versa. Id. ¶ 39. Also important, of course, is the amount of revenue generated-an MVPD could concede a less favorable split if it thought that the Ad Rep would be able to generate more revenue. Id. , Resp. to ¶¶ 38, 39. Ad Reps also sometimes provide MVPDs with minimum-revenue guarantees. Id. ¶ 40. Revenue splits and guarantees are "critical points of competition" between Ad Rep firms vying for MVPD business. Id. ¶ 41.

As to other terms of Ad Rep-MVPD agreements, the industry standard is exclusive, region-wide, full-turnkey representation. CSF ¶¶ 25-27. In a full-turnkey representation, the MVPD sells all of its avails in one or more DMA (absent the portion it wants to retain for self-advertising) to a single Ad Rep. Id. The Ad Rep then enjoys the "exclusive right to manage and sell" the avails. Id. ¶ 27; VSF ¶ 2. This arrangement offers "one stop shopping" for both MVDPs and Ad Reps. CSF ¶ 28. Full-turnkey representation comes with other services, too; Viamedia, for example, assists MVPDs with their branding efforts, product promotions, and technical problems. VSF ¶ 6.

Though the most prominent, full-turnkey is not the only form of Ad Rep Services. Some MVPD customers hire Ad Reps to represent them locally, and sign over only a portion of their avails in a DMA. E.g. , Furchtgott-Roth Report ¶¶ 24-25; see also id. ¶ 53 ("Spot Cable Ad Rep Services and Interconnect Services are separate products regardless of whether Spot Cable Ad Rep Services are provided on a full turnkey basis"). Other MVPDs may self-provide Ad Rep Services. Furchtgott-Roth Report ¶¶ 24-25.

Interconnect operators can also work directly with an MVPD customer to sell a portion of the MVPD's avails without a third-party Ad Rep. See id. ¶ 53; CSF ¶ 29. This arrangement is called an "interconnect-only" agreement. CSF ¶ 30. In such an agreement, the MVPD sells a portion of its avails to the interconnect operator for sale on a DMA-wide basis. Id. ¶ 29. Interconnect-only agreements allow interconnect operators to provide Interconnect Services directly to MVPDs. VSF ¶ 67. To sell the remaining avails on a local (i.e. , not regional or DMA-wide) basis, MVPDs with an interconnect-only agreement may sell their own avails or hire an Ad Rep for "local-only" agreements. CSF ¶¶ 29, 31, 33, 126; see also VSF ¶ 67. Verizon and Frontier, Verizon's successor in certain DMAs, have previously opted for this arrangement in some DMAs. CSF ¶¶ 32-37. For its part, Comcast has been willing to enter into interconnect-only agreements; since December 2011, 14 percent of Comcast's agreements with MVPDs have been interconnect-only. Id. ¶ 129. Comcast entered into its most recent interconnect-only deal in September 2016. Id. ¶ 125; Comcast Ex. 58.

B. Comcast's Competition with Viamedia and Control of the Interconnects

Viamedia and Comcast compete as Ad Reps for business from MVPD clients in many DMAs. VSF ¶ 9. The record reflects that both have respective advantages. Comcast, as a large MVPD, and in some DMAs the largest (and therefore the operator of the interconnect), requires less incremental operation expenses to represent fellow MVPDs. CSF ¶ 115; Comcast Ex. 96 at 16 (internal Viamedia presentation stating "Viamedia can not [sic] compete economically within the footprint of a major cable company"); see also Comcast Ex. 18 at 93:5-19. Particularly relevant here, Comcast operates the interconnects in Chicago, Detroit, and Hartford, Connecticut. Id. ¶ 10. At the same time, some MVPDs have expressed that "all things being equal" they would prefer that a competitor, like Comcast, not represent them. VSF ¶ 7; Viamedia Ex. 69 at 8 ("RCN is not comfortable having its largest and most formidable rival as its representative in the spot cable market"). This benefits an unaffiliated Ad Rep, like Viamedia. Id. Viamedia's former Chief Financial Officer, Christopher Black, has also testified that Viamedia had "[l]ong term relationships with ... certain MVPDs" and provided strong customer service. Id. ¶¶ 6, 8; Viamedia Ex. 8. Both Viamedia and Comcast pursue full-turnkey relationships with their MVPD clients, Id. ¶ 55; VSF ¶ 7, although, as noted, Comcast has entered into interconnect-only agreements with some frequency.

Ad Reps require interconnect "access" to compete effectively for MVPDs' business because of the substantial amount of advertising revenue interconnects generate. Am. Compl. ¶ 73; CSF ¶ 111; VSF ¶ 20. The parties engage in a semantic debate about whether Ad Reps access interconnects "on behalf" of their MVPD clients, and whether the MVPD clients "feel" as though they participate in the interconnects, but the economic facts of the transaction are straightforward. For an Ad Rep to obtain access, the interconnect operator contracts with the Ad Rep to acquire a portion of ad inventory from the Ad Rep, which the Ad Rep has already acquired responsibility for selling from its MVPD-client. See CSF ¶ 42; Comcast Ex. 34. The interconnect operator then arranges for the sale of those avails on the interconnect, and distributes proceeds to the Ad Rep accordingly. Id.

This was the agreement Comcast and Viamedia entered into in 2003. Id. ¶¶ 42-43.

Pursuant to that agreement, Comcast had the exclusive right to sell through its Chicago and Detroit interconnects a portion of an ad inventory for which Viamedia had acquired responsibility from two of its clients, RCN and WOW!. Id. ¶ 43. Viamedia's representations of RCN and WOW! were, as is typical, exclusive and full-turnkey, meaning that RCN and WOW! could not resell their avails through another third party in the Chicago and Detroit DMAs. Id. ¶¶ 44, 49. Viamedia's exclusive relationship with RCN was to expire at the end of 2015, and its exclusive relationship with WOW! was to expire at the end of 2014. CSF ¶¶ 88, 96; VSF ¶¶ 26, 32. Further, the 2003 agreement contained a non-solicitation clause, which prohibited Comcast from contacting RCN or WOW! for certain periods. CSF ¶ 45. The 2003 agreement between Comcast and Viamedia contemplated an expiration date of May 31, 2012. Id. ¶ 46.

Months before that expiration date, in December 2011, Comcast notified Viamedia that it would not be renewing the agreement. VSF ¶ 15; CSF ¶ 47. As a result, from June 2012 until the expiration of Viamedia's exclusive contracts with RCN and WOW!, Viamedia, RCN, and WOW! lost out on revenue they may have made if Viamedia could have continued to use Comcast's interconnects. See VSF ¶ 17.

Comcast did not renew its contract with Viamedia so that it could pursue full-turnkey relationships with RCN and WOW!. Id. ¶ 15. According to Comcast, it "prefers to do direct deals with MVPDs rather than intermediaries like Viamedia." CSF ¶ 48. Put another way, Comcast's strategy, starting in 2011, was "to get" MVPDs to employ Comcast on a full-turnkey basis. VSF ¶ 15; Viamedia Ex. 57; see also, e.g. , Viamedia Ex. 53 (citing Comcast's "[r]ealigned business strategy for 2012 and beyond with non-renewal of Viamedia contract for allowing for full turnkey opportunities into the future."). To that end, Comcast stopped contracting "with 'middlemen' media firms, such a Viamedia." Viamedia Ex. 69 at 9. One Comcast executive explained: "Working through a middleman, intermediary, like Viamedia really brought no value to the table other than their contract with their respective MVPDs," and so the company looked to deal directly with the MVPDs. Viamedia Ex. 21 at 167.

Whatever Comcast's motivations, its strategy and Viamedia's resultant inability to access the interconnects in Chicago and Detroit cost Viamedia, RCN, and WOW! "millions of dollars in revenue" between June 2012 and 2015. VSF ¶ 23. This came as no surprise to Comcast. In 2011, it knew that Viamedia had the exclusive right to sell all of WOW! and RCN's avails in Chicago and Detroit "for several years into the future," VSF ¶ 14, and it conducted an internal analysis that projected that its decision to not renew with Viamedia would negatively impact Comcast Spotlight, Viamedia, RCN, and WOW! in 2012, id. ¶ 16. In addition to Chicago and Detroit, Comcast has denied Viamedia's request to enter into an interconnect agreement with it in the Hartford DMA, where Viamedia represents Frontier. Id. ¶ 18.

In 2014, however, Comcast and Viamedia began negotiating a contract to permit Viamedia access to the Chicago, Detroit, and Hartford interconnects. Id. , Resp. to ¶ 18. WOW! even got involved, and directly requested that Comcast allow its avails (still contracted to Viamedia) to be sold on the interconnects "immediately." See VSF ¶ 19. Yet Comcast and Viamedia failed to reach terms. Viamedia's Chief Executive Officer, Mark Lieberman, called Comcast's offer "neither fair nor reasonable." Comcast Ex. 116.

C. Viamedia's Subsequent Lost Business

From 2011, when Comcast notified Viamedia that it would not renew their interconnect agreement in Chicago and Detroit, until 2016, when Viamedia filed this lawsuit, Viamedia operated in 90 DMAs representing at least nine MVPDs. CSF ¶¶ 54, 57. In that period, Viamedia bid for and lost several MVPD clients-and it attributes many of those losses, and others, to Comcast's conduct in Chicago, Detroit, and Hartford.

1. RCN

Up until 2015, Viamedia was RCN's only Ad Rep nationwide. VSF ¶ 32. In 2014, RCN and Viamedia began to negotiate renewing their full-turnkey agreements. CSF ¶ 96. During negotiations, Viamedia "stepped back its guarantees" and gave a "less favorable" offer in November of that year, which caused RCN to react negatively. CSF ¶ 97. RCN then, and for apparently the first time in its relationship with Viamedia, requested Viamedia's financials, which showed that the company was suffering. VSF ¶ 33. According to Viamedia, without interconnect access in Chicago and Detroit, it was "unable to make a competitive financial offer." Id. ¶ 33. RCN requested a bid for exclusive, full-turnkey services from Comcast in 2015. CSF ¶ 99. It never sought from Comcast an interconnect-only agreement. See id. Comcast ultimately offered superior terms, which, as a former RCN executive testified, made the offers "nowhere near equal" and a "not [ ] very difficult decision" for RCN to make. Id. ¶ 100. It selected Comcast as its full-turnkey Ad Rep, knowing that its decision could result in Viamedia exiting the Chicago DMA market. Id. ¶ 103.

RCN understood that it could not have its avails sold on Comcast-operated interconnects if it sought to do so through a third-party Ad Rep, like Viamedia. Id. , Resp. to ¶ 104; see also VSF ¶ 19. RCN wrote to the Federal Communications Commission during Comcast's proposed merger with Times Warner Cable ("TWC"), and explained that Comcast "limit[s] access to the interconnects to those firms [i.e. , MVPDs] that eschew the use of Viamedia and other third party representatives." Viamedia Ex. 69. It cited Comcast's policy, that it "does not typically contract with 'middlemen' media firms, such as Viamedia." Id.

2. WOW!

WOW! and Viamedia's relationship began in 2001. VSF ¶ 26. As of 2015, and after several contract renewals, Viamedia represented WOW! in 12 DMAs. Id. Expecting its contract with WOW! to expire at the end of 2014, WOW! solicited bids from Viamedia and Comcast in October 2013. CSF ¶ 88. WOW! selected Viamedia, but only for a year-to the end of 2015. Id. ¶ 89. In 2015, WOW! issued another bid to Comcast and Viamedia seeking proposals for exclusive, full-turnkey representation in eight DMAs, including Chicago and Detroit. Id. ¶ 90. WOW!, like RCN, never requested an interconnect-only deal from Comcast. See id. By the 2015 request for bids, WOW! was "very unhappy" that Viamedia had not been able to sell its avails on the Chicago and Detroit interconnects. VSF ¶ 27. Comcast again offered better financial terms to represent WOW! in the Chicago and Detroit DMAs, and WOW! selected Comcast in those regions. CSF ¶¶ 91, 92. In so doing, WOW! recognized that its decision could force Viamedia out of the Chicago and Detroit regions. Id. ¶ 94. WOW!, however, selected Viamedia to represent it in other DMAs, like Columbus, Cleveland, and Tampa. VSF ¶ 29.

WOW! valued having its avails sold on the interconnects and the resulting substantial revenue. Id. ¶ 28. WOW!, like RCN, understood that if it wanted its avails sold on the Comcast-operated interconnects in Chicago and Detroit, it would need to directly contract with Comcast-it could not do so through Viamedia. Id. In weighing Viamedia and Comcast, for example, WOW! listed Comcast's interconnect access as a "pro" and Viamedia's lack thereof as a "con." Viamedia Ex. 68. Internal WOW! emails similarly reflect that the company believed it needed to have a "rep agreement" with Comcast to have its avails sold on the interconnects. CSF ¶ 95, Resp. to ¶ 95.

3. Verizon

In 2006, Viamedia and Verizon entered into a full-turnkey representation agreement for nine DMAs. CSF ¶ 58. In 2009, the parties extended the agreement through December 2013, but contracted to allow for Verizon to "negotiate for the sale of regional and/or national Commercial Advertising in any Other Market by means of an 'interconnect' in such DMA," including Dallas, Los Angeles, and New York. Id. ¶ 59. In May 2010, Verizon and TWC entered into an agreement, pursuant to which TWC purchased 40 percent of Verizon's avails in Dallas, Los Angeles, and New York-where TWC operated the interconnects-for sale on TWC's interconnects. Id. ¶ 60. That agreement contained a "Local Business Option." If TWC met certain performance metrics in 2011 and 2012, it could "elect to present Verizon's local advertising sales business" beginning in 2014. Id. ¶ 61.

In January 2013, pursuant to the Verizon-TWC contract, TWC notified Verizon that it was contemplating exercising the Local Business Option and attached its performance-metric calculations. Id. ¶ 62. Verizon responded on February 15, 2015, with a metrics report. Under the original TWC-Verizon contract, TWC had until March 15, 2013, or 30 days after receipt of the metrics report to exercise its Local Business Option. VSF ¶ 50. On March 15, 2013, however, the parties amended the agreement and extended the date by which TWC could exercise the Local Business Option to April 5, 2013. VSF ¶ 50, Resp. to ¶ 50. TWC exercised the Local Business Option on that day. Id. ¶ 50. Verizon then replaced Viamedia with TWC in those DMAs. See CSF ¶ 65. Further, and also in 2013, Verizon informed Viamedia that it had selected other Ad Reps-including Bright House, Cox, and Comcast-to represent it in several respective DMAs. VSF ¶ 47, Resp. to ¶ 47.

Before then, Verizon and Viamedia had started to negotiate for Viamedia's continued representation after 2013. Id. ¶ 50. During those negotiations, Verizon expressed concerns about Viamedia's fiscal health. Id. ¶ 50. In each DMA that Viamedia lost Verizon's business, it failed to match the terms offered by the competing Ad Reps. CSF ¶ 69.

4. Frontier

Viamedia has been an Ad Rep for Frontier since 2010. VSF ¶ 37. In 2014, Frontier acquired AT & T's MVPD system in Hartford. CSF ¶ 71. Comcast, which operates the Hartford interconnect, had previously represented AT & T on a full-turnkey basis, and, under that agreement, any successor (like Frontier) had the right to assume Comcast's Ad Rep agreement. Id. ¶ 72. Frontier instead entered into an exclusive, full-turnkey agreement with Viamedia for the Hartford DMA, set to expire at the end of 2018. Id. ¶ 73; VSF ¶ 37. Comcast, however, has refused to enter into an agreement with Viamedia to allow for the sale of Frontier's avails on the Hartford interconnect. Id. ¶ 39. As a result, Viamedia and Frontier have not benefited from those potential sales, and Frontier's revenues fell below the baselines guaranteed by Viamedia in 2015 and 2016. Id. ¶ 41.

Outside of Hartford, Viamedia bid for Frontier's business in Los Angeles and Dallas (where Comcast does not run the interconnects). CSF ¶ 77. Frontier rejected Viamedia's offer because it fell "significantly below market value." Id. ¶ 78. Viamedia also lost Frontier's business in Tampa (where Comcast also does not control the interconnects) to Bright House. Id. ¶ 79.

5. Atlantic Broadband

In 2014, Atlantic Broadband sought bids from Comcast and Viamedia for exclusive, full-turnkey representation in seven DMAs (none of which was Chicago, Detroit, or Hartford). Id. ¶ 82. At the time, Comcast already represented Atlantic Broadband in each DMA; Viamedia had never represented Broadband. Id. ¶¶ 84-85. Comcast offered Atlantic Broadband terms "superior" to Viamedia. Id. ¶ 86. Atlantic Broadband chose Comcast. Id. ¶ 87. Viamedia, however, believes that it was "well positioned" to compete for Atlantic Broadband's business, and could have offered better terms and a more substantial guarantee if it had been allowed access to Comcast-controlled interconnects. VSF ¶¶ 51, 53.

6. Other Claimed Losses

Viamedia also claims that Comcast's refusal to allow its acquired avails to be sold on the Chicago, Detroit, and Hartford interconnects has harmed it in a bevy of ways. The refusal, according to Viamedia, has forced it to negotiate debt amendments, and incur bank and legal fees. Id. ¶ 54. In addition, it has had to pay certain personnel expenses, like "retention bonuses and severance payments," as well as wasteful fixed expenses, like "rent on unused office space in Chicago." Id. In 2012, Viamedia generated $212 million in revenue and had $23.5 million in EBITA annually, plus 460 employees who worked for 32 MVPD partners covering 4.7 million subscribers in 57 DMAs. Id. ¶ 56. Since 2012, however, Viamedia claims to have lost millions of investment dollars, its good reputation, talented employees, and the ability to renew or obtain new contracts with MVPD partners. Id. ¶ 57.

II. Procedural Background

Out of that factual backdrop, Viamedia filed this lawsuit on May 23, 2016. Viamedia brings claims of monopolization and attempted monopolization by Comcast in markets where it operates the interconnects in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. Viamedia additionally raises state-law antitrust claims under the Illinois Antitrust Act, 740 ILCS 10/3, Michigan Antitrust Reform Act, Mich. Comp. Laws § 445.771, and Connecticut Antitrust Act, Title 35, § 35-27. (Viamedia also brought a claim for tortious interference with business expectancy, which it has since abandoned. See R. 326 at 14 n.2.) For Comcast's supposed antitrust wrongs, Viamedia seeks damages and asks the Court to "[e]njoin[ ] Comcast from engaging in the anticompetitive ... conduct alleged, including any effort to exclude Viamedia or its MVPD clients from participating on a fair and open basis in the Interconnects." Compl. at 46; Am Compl. at 50.

A. The Motion-to-Dismiss Decisions

Comcast moved to dismiss the first complaint. R. 22, 23. As every claim of monopolization or attempted monopolization requires anticompetitive conduct, Viamedia proffered three in response to Comcast's motion to dismiss: tying, of Comcast's Interconnect Services to its Ad Rep Services; exclusive dealing, in that Comcast's contracts with MVPDs were exclusive; and a refusal to deal, by denying interconnect agreements with Viamedia or offering commercially unacceptable terms. Viamedia, via a surreply, made clear that it was pursuing only "straightforward tying and exclusive dealing theories," plus refusal to deal or essential facilities claims; it was not pursuing a "free-standing" monopolization claim. R. 32. The Court held that Viamedia sufficiently pled tying and exclusive dealing so as to permit discovery on those claims, but dismissed the refusal to deal claim without prejudice because it did not meet the high bar set by Aspen Skiing Co. v. Aspen Highlands Skiing Corp. , 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985), and Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP , 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004). Namely, Viamedia did not plead that Comcast's exclusion of it from the interconnects was irrational but for an anticompetitive purpose. See Viamedia, Inc. v. Comcast Corp. , 218 F.Supp.3d 674, 698-99 (N.D. Ill. 2016) ( Viamedia I ).

Viamedia amended its complaint, realleging its refusal to deal claim. Comcast moved to dismiss this part of the amended complaint, R. 45, 46, which the Court granted. Again, the Court ruled, Viamedia did not plead that Comcast's decision to exclude it from the interconnects was an independently anticompetitive act. Viamedia, Inc. v. Comcast Corp. , No. 16-CV-5486, 2017 WL 698681, at *4-6 (N.D. Ill. Feb. 22, 2017) ( Viamedia II ). As such, this case proceeded to discovery on Viamedia's tying and exclusive dealing claims.

B. Comcast's Liability and Damages Experts

During discovery, and in support of its case, Viamedia identified and proffered two expert witnesses: Dr. Furchtgott-Roth, to opine on Comcast's liability; and Dr. Lys, to opine on damages.

1. Dr. Furchtgott-Roth's Opinions

Dr. Furchtgott-Roth's opinions touch on "the nature and extent of Comcast's monopoly power," the distinction between Ad Rep Services and Interconnect Services, and the "exclusionary nature" of Comcast's actions and their impact on the Ad Rep Services market. According to Dr. Furchtgott-Roth, Ad Rep Services and Interconnect Services are "separate products" because there is a "sufficient demand to purchase" those services separately. Furchtgott-Roth Report ¶ 47. He cites "substantial evidence" in support, including Viamedia's own "business model" and the MVPDs that receive "unbundled" Ad Rep and Interconnect Services. By a "conservative" estimate, he submits, 21.5% of cable subscribers use an MVPD that relies on unbundled services, once subscribers to MVPDs that self-provide Ad Rep Services are removed from the mix. Id. ¶ 50. He includes in that group MVPDs that enter into full-turnkey agreements with third-party Ad Reps, which in turn contract with the interconnect operator to have a portion of the avails sold on the interconnects. Id. Dr. Furchtgott-Roth further notes that, although Interconnect Services also entail the selling of avails to advertisers, Ad Rep Services include additional "back office" services, unlike Interconnect Services, which entail "creating and maintaining schedules of advertising, inserting advertising, negotiating with and monitoring Interconnect operators, and allocating advertising inventory among multiple sales channels." Id. ¶ 51. In further support of his separate-products opinion, Dr. Furchtgott-Roth states that "some MVPDs unbundle" services by entering into interconnect-only agreements and "self-providing" Ad Rep Services. Id. ¶ 53.

Having defined separate products, Dr. Furchtgott-Roth explains his tying opinion. Interconnect Services are the tying product, and Ad Rep Services are the tied product. Id. ¶ 63. Evidence of Comcast's tying policy, according to Dr. Furchtgott-Roth, is found in testimony in which a Comcast executive-who worked in the Chicago and Detroit DMAs-agreed with the proposition that "if an MVPD wants to get access to Comcast [Spotlight] controlled Interconnect, it has to hire Comcast [Spotlight] as its ad sales representative." Id. ¶ 64. Dr. Furchtgott-Roth also cites testimony and documents suggesting that WOW! and RCN "understood" that they had to purchase Ad Rep Services from Comcast Spotlight to obtain access to the interconnects in 2014 and 2015. Id. Dr. Furchtgott-Roth reasons further that Comcast had to "exclude" Viamedia from Comcast-controlled interconnects as a "necessary" part of this tying policy, as it ostensibly made clear in 2011 when it "announced" that it was not going to renew its Interconnect agreement with Viamedia as a "continuation of a strategy to have full turnkey direct relationships with the MVPDs." Id. ¶ 65. Similarly, Comcast Spotlight's chief operating officer testified that non-renewal with Viamedia "freed [Comcast Spotlight] up" to "have the opportunity to present and have a direct relationship with WOW and RCN." Id. That tying practice has "manifested" in at least ten other DMAs as well, according to Dr. Furchtgott-Roth, as Comcast has also declined Viamedia interconnect access in those DMAs. Id. ¶ 69. Dr. Furchtgott-Roth opines further that the same conduct "that amounts to tying also amounts to exclusive dealing." Id. ¶ 72.

These practices lead Dr. Furchtgott-Roth to conclude that Comcast has foreclosed competition in the market for Ad Rep Services. Id. ¶ 90. That is, "by tying Spot Cable Ad Rep Services to Interconnect Services and entering into multi-year, exclusive contracts to provide both services as a bundle, Comcast Spotlight has created a formidable competitive advantage for itself over Viamedia." Id. ¶ 87. There is additional market foreclosure, Dr. Furchtgott-Roth opines, because MVPDs recognize that interconnect access is necessary to maximize their profits on avails, and Comcast has cut off Viamedia's access to Comcast-controlled interconnects. Id. ¶ 89-90.

2. Dr. Lys's Opinions

Dr. Lys's Amended Report calculates the damages Viamedia has purportedly suffered as a result of Comcast's conduct. He opines, ultimately, that Comcast has caused Viamedia $158 million in damages. Comcast Ex. 6, Lys Am. Report ¶ 37 (R. 273-9). Dr. Lys's opinions assume Comcast's liability for committing anticompetitive conduct. Id. ¶ 16. His opinions make the additional assumptions-albeit phrased as "understanding[s]" in his Amended Report-that Comcast's anticompetitive behavior resulted in the loss of several MVPD contracts. Id. ¶¶ 57-59. Specifically, Dr. Lys predicates his opinions on the "understanding" that "Comcast's anticompetitive conduct" caused Viamedia to lose the RCN and WOW! agreements in 2015, had a "material adverse effect on" Viamedia's retention of an agreement with Verizon in 2013, and caused Viamedia to fail to obtain an agreement with Atlantic Broadband in 2014. Id. His opinions also assume that Comcast's exclusion of Viamedia from the interconnects in Chicago, Detroit, and Hartford caused Viamedia to lose interconnect-related revenues, id. ¶ 56, and that Viamedia lost "out of pocket expenses" from Comcast's conduct. Id. ¶ 60. Dr. Lys divides his damages opinions into seven categories. His ultimate conclusion analyzes Viamedia's damages relating to: (1) interconnect-revenue losses in Chicago and Detroit; (2) interconnect-revenue losses in Hartford; (3) lost future agreements with WOW! for two DMAs; (4) lost agreements with RCN for five DMAs; (5) lost agreements with Verizon for nine DMAs; (6) lost agreements with Atlantic Broadband for six DMAs; and (7) out-of-pocket expenses.

On April 4, 2018, the Court held an evidentiary hearing regarding Dr. Lys's opinions pursuant to Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Federal Rule of Evidence 702. At the hearing, Dr. Lys explained his Amended Report in greater detail. In addition, he confirmed that his Amended Report assumed causation. The facts supporting his causation assumptions had been provided by Viamedia's management, although Dr. Lys noted that he "poked" their assertions to ensure that they had some sound basis. Dr. Lys elaborated that he did not think causation in this case could be demonstrated with economic analysis, because the market is one for services, not commodities. At the hearing, Viamedia's counsel, too, confirmed that Dr. Lys was not offered as an expert on causation.

LEGAL STANDARDS

I. Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding summary-judgment motions, "facts must be viewed in the light most favorable to the nonmoving party"-but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact.

See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.' " Anderson , 477 U.S. at 255, 106 S.Ct. 2505 (quotations omitted). That is, the nonmovant "must point to specific facts showing that there is a genuine issue for trial, and inferences relying on mere speculation or conjecture will not suffice." DiPerna v. Chicago Sch. of Prof'l Psychology , 893 F.3d 1001, 1006 (7th Cir. 2018) (citation omitted); see also Bunch v. United States , 880 F.3d 938, 941 (7th Cir. 2018) ("The party that bears the burden of proof for an issue at trial must 'cite the facts which it believes [would] satisf[y]' that burden and 'demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant.' ") (quoting Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund , 778 F.3d 593, 601 (7th Cir. 2015) ). If the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, summary judgment must be granted." Blow v. Bijora, Inc. , 855 F.3d 793, 797-98 (7th Cir. 2017) (citation and quotations omitted). "When ruling on a motion for summary judgment, '[t]he court should neither look the other way to ignore genuine issues of material fact, nor strain to find material fact issues where there are none.' " Simpkins v. DuPage Hous. Auth. , 893 F.3d 962, 964 (7th Cir. 2018) (quoting Sec'y of Labor, U.S. Dep't of Labor v. Lauritzen , 835 F.2d 1529, 1534 (7th Cir. 1987) ).

"In the field of antitrust law, summary judgment serves a vital function-it avoids wasteful trials and prevents lengthy litigation that may have a chilling effect on pro-competitive market forces." Anderson News, L.L.C. v. Am. Media, Inc. , 899 F.3d. 87, 98 (2d Cir. 2018) (citation, modifications, and quotations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 594, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, "the very nature of antitrust litigation encourages summary disposition of such cases when permissible." Collins v. Associated Pathologists, Ltd. , 844 F.2d 473, 476 (7th Cir. 1988). That is not to say that there is heightened summary-judgment standard in antitrust cases-there is not. Nevertheless, at summary judgment, an antitrust claimant must "present evidence that tends to exclude the possibility that the [defendant's] conduct was as consistent with competition as with illegal conduct." Mercatus Grp., LLC v. Lake Forest Hosp. , 641 F.3d 834, 856 (7th Cir. 2011) (quoting Nelson v. Monroe Reg'l Med. Center, 925 F.2d 1555, 1578 (7th Cir. 1991) ); see also Matsushita , 475 U.S. at 594, 106 S.Ct. 1348 ; It's My Party, Inc. v. Live Nation, Inc. , 811 F.3d 676, 685 (4th Cir. 2016) ; Indiana Grocery, Inc. v. Super Valu Stores, Inc. , 864 F.2d 1409, 1412 (7th Cir. 1989).

II. Rule 702 and Daubert Standard

Courts may decide the admissibility of an expert witness's testimony in the context of a summary-judgment motion and when deciding whether the case presents a genuine issue of material fact warranting trial. See, e.g. , Manpower, Inc. v. Ins. Co. of Pa. , 732 F.3d 796, 806 (7th Cir. 2013) ; Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 704 (7th Cir. 2009) ; see also Porter v. Whitehall Labs., Inc. , 9 F.3d 607, 612 (7th Cir. 1993) (expert testimony must be admissible to be considered in a motion for summary judgment). "Any assessment of the admissibility of expert witness testimony begins with Federal Rule of Evidence 702 and the Supreme Court's opinion in Daubert , as together they govern the admissibility of expert witness testimony." Krik v. Exxon Mobil Corp. , 870 F.3d 669, 673 (7th Cir. 2017) ; see also Owens v. Auxilium Pharm., Inc. , 895 F.3d 971, 972 (7th Cir. 2018). Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

FED. R. EVID. 702. In Daubert v. Merrell Dow Pharm. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), "the Supreme Court interpreted Rule 702 to require the district court to act as an evidentiary gatekeeper, ensuring that an expert's testimony rests on a reliable foundation and is relevant to the task at hand." Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 778 (7th Cir. 2017).

In deciding whether to admit expert testimony under Rule 702 and Daubert , "the district court must evaluate: (1) the proffered expert's qualifications ; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's testimony." Gopalratnam , 877 F.3d at 779 (emphases in original). A district court's evaluation of expert testimony under Daubert does not "take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc. , 689 F.3d 802, 805 (7th Cir. 2012) ; see also Ortiz v. City of Chicago , 656 F.3d 523, 536 (7th Cir. 2011) ("The admissibility determination is not intended to supplant the adversarial process, and so even 'shaky' testimony may be admissible."). Once a court determines that "the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' " Lapsley , 689 F.3d at 805 (quoting Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ); see also Manpower , 732 F.3d at 806. The "proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard" by a preponderance of the evidence. Lewis , 561 F.3d at 705 ; see also United States v. Saunders , 826 F.3d 363, 368 (7th Cir. 2016) ("[F]or expert testimony to be admissible, the proponent of the evidence must establish that the expert's testimony is reliable (and relevant) by a preponderance of the evidence").

ANALYSIS

Comcast argues that summary judgment is appropriate for numerous reasons: Viamedia cannot establish anticompetitive conduct; Viamedia cannot establish causation, in the antitrust sense or for damages purposes; and Viamedia cannot otherwise establish harm to competition. The first two matters are dispositive, and so the Court will address only them. Along the way, the Court will address Comcast's motions to exclude Viamedia's expert opinions where relevant to the analysis.

I. Viamedia Cannot Establish Anticompetitive Conduct

Under Section 2 of the Sherman Act, "[e]very person who shall monopolize, or attempt to monopolize" is subject to antitrust liability. 15 U.S.C. § 2 ;

see also 15 U.S.C. § 15 (providing individual right of action). But like its fraternal twin, Section 1, Section 2 bans less than its literal reading suggests. "Simply possessing monopoly power and charging monopoly prices does not violate" Section 2. Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc. , 555 U.S. 438, 447-48, 129 S.Ct. 1109, 172 L.Ed.2d 836 (2009) (citing United States v. Grinnell Corp. , 384 U.S. 563, 570-571, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) ). Instead, liability under Section 2, whether for monopolization or the attempt at it, requires "anticompetitive conduct." Mercatus Grp. , 641 F.3d at 854 ; Endsley v. City of Chicago , 230 F.3d 276, 282 (7th Cir. 2000) ("The offense of monopoly under § 2" requires "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"); American Acad. Suppliers, Inc. v. Beckley-Cardy, Inc. , 922 F.2d 1317, 1320 (7th Cir. 1991) ("The offense of monopolization is the acquisition of monopoly by improper methods or, more commonly ... the abuse of monopoly"); State of Ill. ex rel. Burris v. Panhandle E. Pipe Line Co. , 935 F.2d 1469, 1481 (7th Cir. 1991) (" Section 2 forbids not the intentional pursuit of monopoly power but the employment of unjustifiable means to gain that power."). Such conduct, or "exclusionary practices," comes in many forms-"tie-in sales ..., group boycotts, exclusive dealing ..., or predatory pricing." Schor , 457 F.3d at 610.

Not usually counted among the traditional anticompetitive practices is a refusal to deal. Under well-rooted antitrust principles, firms generally have the right to determine with whom they will do business. United States v. Colgate & Co. , 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919). That right extends to monopolists, as "antitrust law does not require monopolists to cooperate with rivals by selling them products that would help the rivals to compete." Schor , 457 F.3d at 610 ; see also Authenticom, Inc. v. CDK Glob., LLC , 874 F.3d 1019, 1025 (7th Cir. 2017) ("Even monopolists are almost never required to assist their competitors"); Goldwasser v. Ameritech Corp. , 222 F.3d 390, 400 (7th Cir. 2000) ; Olympia Equip. Leasing Co. v. W. Union Tel. Co. , 797 F.2d 370, 375 (7th Cir. 1986).

In the flagship case of Trinko , the Supreme Court held that a telecommunications monopolist had no antitrust duty to deal with a rival, let alone a duty to deal on favorable terms. 540 U.S. at 409-10, 124 S.Ct. 872. Trinko teaches:

Firms may acquire monopoly power by establishing an infrastructure that renders them uniquely suited to serve their customers. Compelling such firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities. Enforced sharing also requires antitrust courts to act as central planners, identifying the proper price, quantity, and other terms of dealing-a role for which they are ill suited. Moreover, compelling negotiation between competitors may facilitate the supreme evil of antitrust: collusion.

Id. at 407-08, 124 S.Ct. 872. A few years later, the Supreme Court echoed these principles. In Linkline , it held that another telecommunications monopolist had no duty to deal, let alone a duty to deal on favorable terms, in selling services to its competitors in the retail market. 555 U.S. at 450, 129 S.Ct. 1109. Linkline confirmed that a monopolist can generally wield its "upstream" power "to prevent rival firms from competing effectively" in a downstream market. Id. ; see also Novell, Inc. v. Microsoft Corp. , 731 F.3d 1064, 1074 (10th Cir. 2013) ("Even a monopolist generally has no duty to share (or continue to share) its intellectual or physical property with a rival.").

Indisputably, Comcast refused to deal with Viamedia by disallowing it access (or refusing it "reasonable" access) to the Chicago, Detroit, and Hartford interconnects. See, e.g. , CSF ¶ 48, VSF ¶ 15. That was its right under Trinko and the law of this case. See Viamedia I , 218 F.Supp.3d at 697-99 ; Viamedia II , 2017 WL 698681 at *4-6. As Linkline explains, the fact that Comcast may have refused to deal (or refused to deal on certain terms) to "prevent" Viamedia from "competing effectively" is largely irrelevant in the absence of a duty to deal. 555 U.S. at 450, 129 S.Ct. 1109 ; cf. Furchtgott-Roth Report ¶¶ 97-120 (opining on whether Comcast's "proposed justifications" for "excluding Viamedia from the Chicago and Detroit Interconnects" are "persuasive"); Comcast Ex. 1.1, Report of Dennis W. Carlton (R. 273-2) (opining of the economic efficiencies of Comcast's conduct).

Viamedia, however, submits that Comcast's conduct constitutes more than a "mere" refusal to deal. R. 326 at 26. It argues that Comcast, in excluding Viamedia (and by extension, Viamedia's customers) from the interconnects and later taking RCN's and WOW!'s business, has engaged in the "distinct" practices of tying, exclusive dealing, or general exclusionary conduct. See Viamedia I , 218 F.Supp.3d at 699. Yet discovery has demonstrated otherwise. The record leaves no genuine issue of material fact regarding the viability of Viamedia's alternative theories.

A. There Is Insufficient Evidence that Comcast Engaged in Anticompetitive Tying

Viamedia claims that Comcast tied access to the interconnects, or Interconnect Services (the tying product), to Comcast's Ad Rep Services (the tied product). "A tying arrangement is 'an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.' " Eastman Kodak Co. v. Image Tech. Servs., Inc. , 504 U.S. 451, 461-62, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quoting N. Pac. Ry. Co. v. United States , 356 U.S. 1, 5-6, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958) ). The Supreme Court has emphasized that the "essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms." Jefferson Par. Hosp. Dist. No. 2 v. Hyde , 466 U.S. 2, 12, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984) ; see also Sheridan v. Marathon Petroleum Co. LLC , 530 F.3d 590, 592 (7th Cir. 2008) ("The traditional antitrust concern with such an agreement is that if the seller of the tying product is a monopolist, the tie-in will force anyone who wants the monopolized product to buy the tied product from him as well, and the result will be a second monopoly."). Accordingly, a tie, whether expressly instituted or effectively applied, exists only where "the defendant improperly imposes conditions that explicitly or practically require buyers to take the second product if they want the first one." Phillip E. Areeda and Herbert Hovenkamp, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES AND THEIR APPLICATION ¶ 1752b (3d ed. 2018).

1. No Evidence Tends to Exclude the Likelihood That Comcast, Rather Than Tying Services, Simply Refused to Deal with Viamedia

Viamedia has not identified a genuine issue of fact as to whether Comcast tied the sale of Interconnect Services and Ad Rep services. A fundamental element of a tying claim-conditioning-is absent from Viamedia's construct. See Sheridan v. Marathon Petroleum Co. LLC , 530 F.3d 590, 592 (7th Cir. 2008) ; Carl Sandburg Vill. Condo. Ass'n No. 1 v. First Condo. Dev. Co. , 758 F.2d 203, 207 (7th Cir. 1985).

No evidence shows that Comcast told MVPDs, expressly or impliedly, that they could only purchase Interconnect Services on the condition that they also purchase Ad Rep Services. See Photovest Corp. v. Fotomat Corp. , 606 F.2d 704, 722 (7th Cir. 1979) ("we are reluctant to find a tying arrangement without some evidence that [the defendant]" created applied a "de facto tying clause"); Areeda & Hovenkamp, Antitrust Law ¶ 1700i ("products are not tied unless the supplier refuses to accommodate those who prefer one without the other"). To the contrary, it is undisputed that 14 percent of Comcast's agreements with MVPDs are interconnect-only. CSF ¶¶ 123-24. With an interconnect-only agreement, an MVPD is free to: forego employing any Ad Rep Services; hire another Ad Rep to sell a portion of their remaining avails on a non-full-turnkey basis ; and/or self-provide Ad Rep Services by selling its own avails. See CSF ¶¶ 29, 32-36, 126. In antitrust terms, the customer (an MVPD) can purchase the tying product (Interconnect Services) without purchasing the tied product (Ad Rep Services). Accord Datagate, Inc. v. Hewlett-Packard Co. , 60 F.3d 1421, 1427 (9th Cir. 1995) ("The harm from tying arrangements is the forced sale of the tied product, not the withholding of the tying product.") (emphasis in original). That Comcast has so often entered into such standalone sales of the tying product belies any inference that Comcast tied its services. See Live Nation , 811 F.3d at 685 (14 percent of non-tied sales "exceed [ ] sufficiently" whatever baseline is required "to cast doubt on any allegation of tying"); Areeda & Hovenkamp, ANTITRUST LAW ¶ 1756b2 (suggesting that "10 percent unbundling" rebuts "an otherwise established or presumed inference of a tying condition").

Viamedia tries to do away with this inconvenient fact in two ways. First, it argues that Comcast did not sell interconnect-only deals in Chicago, Detroit, and Hartford, where Comcast denied Viamedia use of the interconnects. This case, however, is not limited to those markets-Viamedia challenges Comcast's conduct in the markets in which it operates the interconnects generally. Am. Compl. ¶¶ 1, 180; see also Furchtgott-Roth Report ¶¶ 63-73. Second, Viamedia contends that substantial evidence of unbundled sales does little to defeat a tying claim in cases where there is an "announced condition," "rebuffed request for separate provision," or "publicized policy" of tying. See Areeda & Hovenkamp, ANTITRUST LAW ¶¶ 1756a, 1756b. True enough, but this is no such case. The record lacks evidence showing that Comcast told customers that they could not receive an interconnect-only deal-that is, Interconnect Services-standing alone.

Even focusing exclusively on Chicago, Detroit, and Hartford, there is insufficient evidence of conditioning. "A high percentage, even 100 percent, of unbundled sales does not itself indicate that two products may have been tied together" because "buyers may have all bought the products bundled because they preferred them together." Id. ¶ 1756b2. Viewing the record in the light most favorable to Viamedia, this is precisely what it reflects. It is undisputed that both RCN and WOW! wanted full-turnkey representation, and whichever company they hired had to have the ability to make available to them both Interconnect Services and Ad Rep Services. CSF ¶¶ 90, 99. When "a consumer wants to purchase a bundle of the alleged tying and tied products, the seller is simply satisfying consumer demand and monopolization concerns are irrelevant." Kaufman v. Time Warner , 836 F.3d 137, 142 (2d Cir. 2016).

Viamedia responds by pointing out that Comcast never offered RCN or WOW! an interconnect-only deal. VSF ¶ 19. But why would it? Firms soliciting business have no reason to offer potential customers a less substantial (and presumably less profitable and less efficient) deal than the one those customers seek. Areeda & Hovenkamp, ANTITRUST LAW ¶ 1700i ("[F]inding two products does not mean that they are tied together. The franchisee may have preferred a 'turnkey' franchise and never asked for the" tying product "separately"); see also Kaufman , 836 F.3d at 142. RCN and WOW! sought both Interconnect Services and Ad Rep Services made available through a single full-turnkey relationship, and the "voluntary purchase of two products together" is "not a tie at all." Will v. Comprehensive Accounting Corp. , 776 F.2d 665, 669 (7th Cir. 1985).

Viamedia thus cannot show that Comcast ever withheld the tying product from customers unless they also purchase the tied product. Live Nation , 811 F.3d at 684 (if "the buyer is free to decline the tied product or to purchase the two products separately, then by definition there is no unlawful tying"). The real rub of Viamedia's tying claim is, instead, that Comcast withheld the tying product from its rival Viamedia. The consequence: customers that contracted with Viamedia could not obtain Comcast's Interconnect Services through their Viamedia representation, and customers wanting a full-turnkey deal that made available to them both Interconnect Services and Ad Rep Services could not get such a deal through Viamedia. In Viamedia's words, Comcast withholds Interconnect Services from "Viamedia's MVPD partners "-not MVPDs, period-and therefore "constrains improperly [MVPDs'] choice" by "excluding Viamedia" as a competitor. R. 326 at 19.

Viamedia's theory extends tying beyond the law's recognition. The constraining of consumer choice is of course a feature of a tying arrangement, Areeda & Hovenkamp, ANTITRUST LAW ¶ 1756b2, but there must still be an actual "tie" of products or services, Reifert v. S. Cent. Wisconsin MLS Corp. , 450 F.3d 312, 317 (7th Cir. 2006) ; Photovest , 606 F.2d at 722. Viewing the record in Viamedia's favor, it shows none.

Aerotec Int'l, Inc. v. Honeywell Int'l, Inc. , 836 F.3d 1171 (9th Cir. 2016), illustrates the point. In Aerotec , a manufacturer, Honeywell, operated in two related markets. Id. at 1175. It was a monopolist in the replacement parts market, and a competitor in the repair services market. Id. at 1175-76. Honeywell had long dealt on prioritized and better terms with itself and its affiliated servicers than with independent ones, like Aerotec. Id. at 1176-77. But when a parts shortage hit, Honeywell's supply of parts to Aerotec came to a halt. This was ruinous for Aerotec; it could not live up to certain contracts and lost future work, including work that went to Honeywell. Id. at 1177. Aerotec sued alleging, among other things, anticompetitive tying of replacement parts to repair services (it called the parts shortage pretextual). The district court granted Honeywell summary judgment, and the Ninth Circuit affirmed. Regarding the tying claim, the Ninth Circuit reasoned that there wa