Full opinion text
CLARK, Circuit Judge. After sifting every bushel of speculative chaff suggested by the claimant, the court finds not a single grain of antitrust wheat to sustain the claims asserted. The thousands of pages of depositions and affidavits presented and the hundreds upon hundreds of pages of memoranda, motions, replies, and answers do not show any genuine issue of fact as to any claim which will support any antitrust violation. Summary judgment is clearly proper as to every possible antitrust issue. The massive proof adduced shows this television broadcaster’s failure was due to technological limitations and operational problems encountered in commencing its business life that were not the fault of any party sued. The station never had a viewing audience to sell that was worth more than the networks offered at various times to pay. The antitrust statutes do not require networks to subsidize the entry of a television station into the broadcast market. Similarly, no antitrust violation was committed by the carrier of the television signal nor by the existing local broadcaster either singularly or in combination with the networks. Enforcement of the carrier’s authorized tariffs was free from antitrust violation. The established broadcaster was not shown to have taken any action in furtherance of its local-area monopoly and the claims against it based on that status are unfounded. Alleged Communications Act violations are dismissed as matters within the primary jurisdiction of the regulatory agency. In the exercise of its discretion the court dismisses the pendent state antitrust claims. American Telephone & Telegraph Company (AT&T) originally brought this action against Delta Communications Corporation (Delta) to recover 19,524.31 dollars, an alleged indebtedness for television audio and visual local-channel communications service to Delta’s television station WHTV-TV in Meridian, Mississippi. Delta denied this liability asserting illegality of the tariffs covering these particular services. Delta also filed a counterclaim against AT&T; Columbia Broadcasting System, Inc., later changed to CBS, Inc. (CBS); American Broadcasting Company, Inc. (ABC); RCA Corporation, later changed to National Broadcasting Company, Inc. (NBC); and Southern Television Corporation, WTOK-TV (Southern), charging these counterdefendants with anticompetitive practices aimed at the destruction of Delta specifically and ultrahigh-frequency (UHF) television stations generally. This cause is now before this court on separate motions for summary judgment by the original plaintiff and each of the counterdefendants. To reduce the complex matrix of facts, inferences, and suspicions that complicate this proceeding, the court waived its local rule so as to allow extended discovery before requiring each of the parties to file a memorandum which specified the legal theories and the supporting facts upon which they would rely in this litigation. Delta’s initial and responsive memoranda have failed to delineate any precise theories supporting its counterclaim assertions. Instead, it presented numerous general accusations supported by legal citations which are not consistently apposite. To give the respondent the benefit of the doubt in ruling on the pending motions for summary judgment, this court has constructed the strongest tenable delineations of antitrust violations which can be combed from the documents presented. In addition to giving Delta the advantage of structuring for it the best possible legal theories, this court, as required in summary judgment actions, has resolved every issue of disputed material fact in favor of Delta and has drawn every reasonable inference from those facts in Delta’s favor on each of the theories constructed. Poller v. CBS, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The intricate development of this opinion is intended to provide a judicial blueprint which will detail the basis for the court’s decision on every portion of the extensive legal and factual development produced by industrious counsel on both sides of the multiplex issues in this difficult cause. The court has explicated the reasons for rejecting every contention advanced, both to fully inform the parties of the processes followed and thereby subject its reasons to their most intimate and arduous testing for error and to reassure itself of the independent soundness of each disposition individually. I. FACTS A. The History of Delta’s WHTV Television Station The television industry has a peculiar competitive history. Competition in the industry has been limited both by regulation of applicants and by the technology of television broadcasting. Not only must applicants be well financed, but only a few stations can be allowed to broadcast in each coverage area. Use of the VHF spectrum, which was initially the only band used, has always been restricted by the Fedéral Communications Commission (FCC) in every broadcast area. Often in small municipalities like Meridian only one VHF station will be allowed. In an effort to promote competition in the television industry, the FCC has been more liberal in licensing UHF television stations. For quite some time, however, these UHF stations suffered in their competitive efforts because then existing television receivers had to be supplementally equipped with a special channel receiver to enable the set to pick up signals in the UHF band. In addition, special antennae are often required for UHF reception. In 1964 Congress passed an act requiring that all new television receivers have the capability to pick up UHF signals. This legislation directly led to a flood of applications and to a great influx of new UHF stations. Thirty-seven of those new stations, including WHTV, however, “went dark” between 1966 and 1972. Among those who became excited by the increased development which liberal licensing of UHF television produced was Weyman Walker. Although he had extremely limited experience in television broadcasting, Walker was able to attract significant investors and decided to incorporate and operate a UHF station in one of three markets. He contracted with a television expert to survey and report on the Meridian television market. This report was prepared in the summer or fall of 1966. It ranked Meridian 159th in the national television market. The report estimated that any new television station going into this market would probably suffer losses for the first 2 years. It warned of the possibility of no immediate network affiliation and recommended that any entry be based on a limited operating day. In 1968, at the time Walker and his associates were considering the development of a UHF television station in Meridian, Mississippi, the Meridian television market was monopolized by Southern, a very profitable television station with the call letters of WTOK. Southern was then affiliated with CBS, and had been since 1954. Its rate of payment from the network at that time was 500 dollars per hour which provided it with income approximating 6,000 dollars per week. In addition, the CBS network was paying the substantial signal delivery charges of AT&T in connection with its programming. The physical monopoly which Southern enjoyed because of the inherent technical limitations of the television industry was electronically shared with at least two other VHF television stations — WDAM in Hattiesburg, Mississippi and WLBT in Jackson, Mississippi, both NBC affiliates — which encroached upon the Meridian market. These stations overlapped 24% of the projected Delta market. August 28, 1967, Walker, as station manager of the newly-founded corporation, Delta, visited with officials of ABC to inquire about affiliation with his new television station. On that occasion Walker was told “Build it and we will look at it.” Then too he became aware of ABC’s policy not to affiliate a television station which has an average prime-time audience of less than 5,000 viewing households. ABC did not pay a station rate to stations having an average prime-time audience less than 7,000 nor did they pay program delivery charges for stations having an average prime-time viewing audience less than 10,000. The minimum station rate which would be paid if this level of viewership could be attained was 100 dollars per hour. In July of 1967 Delta obtained a construction permit from the FCC to build television station WHTY in Meridian. Sometime between August and December of 1967 Delta’s Walker made an offer to ABC to build a translator facility in Laurel which would increase circulation and also to build a microwave delivery system which would decrease the cost of transporting ABC’s television signal. In connection with these promised improvements, Walker requested a 100 dollar per-hour station rate. Sometime late in 1967 Delta purchased the site for its Meridian television station and began making substantial plans for going on the air. On December 6, 1967 ABC granted Delta the right to televise all ABC programs which were not being shown by Southern. This offer included neither an agreement to pay a network rate nor an agreement to pay AT&T delivery charges. AT&T charges for the delivery of a television signal comprise a substantial part of the operating expenses for new television stations. In Delta’s case these charges amounted to approximately 7,000 dollars per month. Once a certain average prime-time viewership has been established an affiliated network will usually absorb these expenses as part of the compensation to the station for the service of delivering the network’s programs. In December of 1967 Delta contacted NBC seeking to broadcast its programs. No affiliation request was made at this time as Delta was still attempting to obtain an ABC affiliation. In fact, all correspondence with NBC by Delta during this period was on stationery which indicated by a printed logo that the station had an ABC affiliation. In May of 1968 CBS agreed to allow Delta to use certain programs which were not “cleared,” i. e., requested for showing by Southern, its Meridian affiliate. Under this agreement, these CBS programs carried no payment of a network rate and CBS paid no part of AT&T charges for delivery of the signal. In June of 1968 Delta’s WHTV station finally went on the air. The only network programs it was able to present were the ABC and CBS programs which Southern did not wish to show. In August of 1968 several Delta officials visited the FCC to discuss the problems they were having affiliating with one of the national networks. They were told by Commission personnel that it had no authority to regulate networks concerning the arrangements they made with various stations. In September of 1968, coinciding with the beginning of the new television season, NBC gave Delta the right to broadcast seven programs. In May of 1969 Delta was given a first-call affiliation by NBC. This meant that Delta was given the opportunity to broadcast any NBC programming it desired. However, this affiliation agreement did not provide for the payment of a network rate and Delta was required to pay all AT&T charges incurred for delivery of the programs. As soon as it was granted the first-call NBC affiliation, Delta cancelled all of its ABC programming. On July 1, 1969 the NBC affiliation became effective. CBS was the first network to offer Delta a fee for broadcasting its programs. In September of 1969 it offered Delta a 35 dollar per-hour program rate. In April of 1970 NBC gave Delta a 50 dollar per-hour program rate. In August of 1970, Delta’s WHTV-TV station went dark. In January of 1971, a petition in bankruptcy was filed by Delta. Its facilities and equipment were subsequently sold to a Tupelo television station. Simultaneous with negotiations for network affiliation and for fees, Delta was also involved in dealings with AT&T concerning the various signal delivery charges which television stations or the networks must pay. On September 20, 1967, AT&T advised Delta that its long-line charges from Jackson to Meridian (8 hours per-day minimum) would amount to approximately 4,744.25 dollars per month. On June 4, just prior to Delta’s WHTV television station going on the air, AT&T revised its quoted price to 5,524 dollars per month. Delta was billed 6,839.25 dollars for its first month of 16 consecutive hours of service per day. During the time it was broadcasting with full AT&T services, Delta incurred monthly AT&T tariff charges of approximately 7,000 dollars. In an effort to minimize its AT&T signal delivery expense Delta, in April of 1969, constructed a microwave transmitter to transfer television signals from Jackson to Meridian. This reduced the AT&T services required and cut Delta’s cost to approximately 1,800 dollars per month. At this time Delta was in debt to AT&T for unpaid signal delivery charges of approximately 67,000 dollars. This included charges for long-lines, local-channel and station-connection services performed prior to the use of the private microwave. On October 2, 1969 AT&T filed new tariffs which increased the station-connection and local-channel service charges still required to supplement the microwave service, to approximately 4,000 dollars per month. On February 28, 1970, Delta again changed its operating format to use a precontrol-room feed of its signal from WLBT-TV, an NBC affiliate, in Jackson. This service cost Delta 400 dollars per month but avoided all AT&T charges. The drawback to this arrangement was that Delta was limited to airing programs carried simultaneously by WLBT. Delta ceased broadcasting in August of 1970. AT&T’s original complaint in this cause sought recovery for the cumulative charges incurred between October 1969 and April 1970 for station-connection and local-channel services used subsequent to Delta’s April 1969 employment of the microwave transmitter. B. Television Industry Economic Organization Prerequisite to any analysis of antitrust violations in this industry is an understanding of how this economic milieu operates. The television networks essentially serve the industry as intermediaries that collect, produce, and distribute. To generate income, networks sell broadcast time to national advertisers. This time is packaged around programs produced by the networks which are designed to attract viewers. To distribute the packaged product to the consumer of the advertising the networks purchase from local television stations the service of broadcasting both the programs and advertisements to persons living within the station’s range. The price a network pays a local station for the service of broadcasting the package of programs and advertisements is tailored to the size of the audience which polling estimates that station attracts. In turn, the network’s sales price to the national advertisers for airing their advertisements is based upon the total audience which that network’s affiliated stations and the independent stations with which it has made agreements to broadcast the particular package are predicted to attract. The relevant consideration in fixing both the price to be charged the advertiser and paid to the local broadcaster is the size of the audience delivered. The networks usually compensate local television stations through a complicated combination of payments. If the television station’s audience is substantial, the network will agree to pay a network rate. This network rate is computed on what is called a per-hour prime-time basis. For example, during most of the time relevant to this litigation, Southern was being paid a 500 dollar per-hour prime-time network rate. That rate meant the network paid the television station a percentage of that 500 dollars for every prime-time hour of that network’s shows run by the station. In addition, the station was compensated a decreasing percentage of that rate for every television show run during less favorable hour categories. As an additional element of compensation, the television networks usually absorb the AT&T delivery charges necessary to bring the network signal to the local television station. The most expensive of these categories of charges are those for long-line or IXC services. That the total of these charges could be substantial, is shown by Delta’s 7,000 dollar per-month bill from AT&T for its first months of operation. Network compensation to a successful television station, then, involves a combination of payments to the station of the network rate and absorption of the AT&T delivery charges. Subtracted from these benefits is an “affiliation fee” or a “waived hours” provision. This is charged to the affiliate by the network to partially reimburse the network for the expenses incurred in delivering these programs to the local television stations. During most of the time relevant to this litigation, the monthly CBS “affiliation fee” or “waived hours” provision was calculated at 205% of its per-hour station rate, or 1,025 dollars. The sum of these three factors make up the net compensation paid to television stations. An overview of the network’s income and payments to local stations makes it obvious that the amount of the station network rate paid to and AT&T delivery charges absorbed for a television station are a function of the amount of money that a national advertiser would be willing to pay to the network for the addition to that network’s total audience of the number of people the local television station’s broadcast service would add. ABC’s policy was that unless a television station could deliver 5,000 average prime-time viewing households, it would not affiliate. ABC required 7,000 average prime-time homes before it paid a station rate and 10,000 before it would pay AT&T delivery charges. The policy of NBC prohibited compensation below the level of 6,000 prime-time homes. These policies evinced an economic judgment that unless the network’s respective 6,000 or 7,000 household figure was met, national advertisers would not be willing to increase their overall compensation to the networks for the addition of the television stations. Since the price paid for the service rendered is determined by the size of the audience, it is apparent that estimations of the size of that audience are extremely relevant to any litigation which questions the legality of the functioning of the industry. ABC’s research to determine whether it would affiliate with Delta predicted 2,476 homes could be added to the network’s total viewer audience by Delta’s broadcast signal. October 25, 1967 NBC research showed Delta would only add 500 unduplicated homes. In November 1968 the American Research Bureau (ARB), an independent audience polling organization which makes its results known to all subscribers (who may be advertisers, networks, or broadcasters), estimated that Delta’s WHTV-TV station reached 2,200 average prime-time viewing households; in February of 1969 it showed 2,700; in November of 1969 ARB showed less than 1,000; and in February of 1970 it showed 4,000. In April of 1970 Nielsen’s survey, another similarly operated independent group which predicts television audiences, showed 3,400 average prime-time viewing households for Delta. The regular ARB and Nielsen surveys were conducted by the use of statistical sampling techniques in which a random sample of the audience accounted for each program it viewed in a diary. The telephone coincidental surveys were conducted by telephone inquiry asking each person called which program he or she was watching at the time. The industry regarded the telephone coincidental surveys as the less reliable of the two measures of station audiences. In addition to the above, two surveys were taken by ARB at the behest of Delta. These were done by the telephone coincidental survey method. The first showed that Delta had a 68 percent share of the viewing audience in Meridian compared with Southern’s 16 percent. After a complaint by Southern, this survey was rescinded as having been computed incorrectly and corrected results were published which showed Southern with 62 percent of the viewing audience and Delta with only 18 percent. Since a mistake had been made on this survey, an additional telephone coincidental survey was taken by ARB which showed that Delta had a 23 percent share of the audience and Southern with 64 percent. Both of these telephone coincidental surveys were done between the February 1969 and November 1969 regular ARB surveys. During this same period, surveys of the Southern audience indicated an average of from 29,000 to 35,000 viewing households. Both the use and the validity of these surveys are particularly relevant to most of the antitrust violations herein asserted. In First National Bank v. Cities Service Co., 391 U.S. 253, 279, 88 S.Ct. 1575, 1588, 20 L.Ed.2d 569 (1968) the Court in the course of discussing the appropriateness of summary judgment in an antitrust action (a matter discussed in detail in part II, infra), stated: Obviously it would not have been evidence of conspiracy if Cities refused to deal with Waldren because the price at which he proposed to sell oil was in excess of that at which oil could be obtained from others. Therefore, it is only the attractiveness of petitioner’s offer that makes failure to take it up suggestive of improper motives. (emphasis added). In Cities Service the Court held that even the defendants’ failure to conclude the attractive bargain was insufficient, standing alone, to withstand a summary judgment motion. In the instant case the bargain is demonstrably unattractive. The service of delivering a network’s signal to Delta’s predicted audience was not worth purchasing. The quoted passage from Cities Service clearly indicates that no inference of anticompetitive conspiracy would be reasonable from the facts here which show no more than the failure to conclude an unattractive bargain. In the absence of any purpose to create or maintain a monopoly, the [Sherman] act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1918); accord, e. g., Weather Wise Co. v. Aeroquip Corp., 468 F.2d 716 (5th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1505, 36 L.Ed.2d 188 (1973); Bushie v. Stenocord Corp., 460 F.2d 116 (9th Cir. 1972); Anaya v. Las Cruces Sun News, 455 F.2d 670 (10th Cir. 1972); Daily Press, Inc. v. United Press Int’l, 412 F.2d 126 (6th Cir.), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969). II. IS SUMMARY JUDGMENT PROPER IN THIS TYPE OF ACTION? Delta places a doctrinaire sort of reliance on Poller v. CBS, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) to support its repeated assertions that summary judgment may not be granted in any phase of a complicated antitrust case. Poller will not support such broad assertions. It decided no more than that summary judgment is improper where substantial factual evidence “tended to show the existence of a conspiracy” against an eliminated competitor notwithstanding the fact that substantial evidence also tended to show the nonexistence of conspiratorial behavior. Clearly, summary judgment has not been discarded as wholly inappropriate in the field of antitrust law. Although summary judgment is an available judicial tool in the antitrust area, Poller does warn that it should be cautiously used. Poller, however, is inapplicable to the instant situation because Delta has failed to respond to motions for summary judgment against it by supplying “substantial factual evidence tending to show the existence of a conspiracy.” The standard to be used in determining the appropriateness of summary judgment in complicated antitrust cases is defined in First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In that case the plaintiff alleged that Cities Service Company was involved in a conspiracy to boycott the purchase of his oil. The only fact the plaintiff was able to show in support of his allegation was the abrupt decision by Cities Service Company to halt negotiations with him for the purchase of Iranian oil. The court concluded that this one fact, if not met by any contrary evidence, might well be sufficient to require that the case be presented to the jury to determine the motives of Cities Service Company for not dealing with the plaintiff. But most important to today’s decision, the court went on to state that the record in the case before it contained such an overwhelming amount of contrary evidence as to Cities Service Company motives that summary judgment was proper. Not only is the inference that Cities’ failure to deal was the product of factors other than conspiracy at least equal to the inference that it was due to conspiracy, thus negating the probative force of the evidence showing such a failure, but the former inference is more probable. Id. at 280, 88 S.Ct. at 1588. In an apparent response to Poller dicta which required cautious use of summary judgments in complicated antitrust litigation, the Supreme Court in Cities Service stated: While we recognize the importance of preserving litigants’ rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint. Id. at 291, 88 S.Ct. at 1593. Delta alleges almost the same conspiratorial web as did the plaintiff in Cities Service. The only factual underpinning to Delta’s major antitrust claim is that the three major networks refused to deal with it on terms it considered fair. Absent “substantial factual evidence tending to show the existence of a conspiracy” Cities Service teaches that summary judgment is proper when an inference of nonconspiracy is more probable than the plaintiff’s asserted inference of conspiracy. Delta shows a variety of dealings with the networks which it alleges are tantamount to a refusal to deal. It requests we make a quantum leap from these “refusals” to the inference of a network conspiracy to restrain the development of UHF television stations. Delta’s claim fails to meet the Cities Service summary judgment test in that the mass of discovery developed in this case clearly points to the much more plausible inference that the network dealings with Delta grew not from any conspiratorial plan but from independent business decisions which concurred in no more than the separate conclusions that Delta was unable to deliver a sufficient television audience to make more favorable dealing with Delta economically sound. “The Sherman Act is . no[t] a panacea for all business affronts which seem to fit no where else.” Scranton Construction v. Litton Industries Leasing Corp., 494 F.2d 778, 783 (5th Cir. 1974), cert. denied, 419 U.S. 870, 95 S.Ct. 774, 42 L.Ed.2d 800 (1975). In this case, Delta, the opponent to motions for summary judgment which were soundly supported by massive factual development, failed to adduce any substantial facts showing conspiracy and failed to develop facts from which the most probable inference to be drawn was conspiracy. Under Cities Service, summary judgment should be granted. III. FEDERAL ANTITRUST CLAIMS Delta’s antitrust assertions cover a broad spectrum of separate antitrust allegations. Often various claims are lumped together accompanied by the assertion that a particular antitrust “label” is not significant. But it is. The antitrust laws are designed to prevent specific types of actions which Congress and the courts have found to be anticompetitive. Notwithstanding this defect in presentation, we have examined the general claims as though they were particularized. Delta has failed to show any material facts which will support a specific antitrust violation. Delta’s claims, read in the light most favorable to it, assert the following antitrust violations: (A) conspiracies in restraint of trade in violation of the Sherman Act § 1; (B) actions which are per se violations of § 1; (C) acts of monopolization or attempts to monopolize in violation of the Sherman Act § 2; and (D) violations of the Clayton Act and Robinson-Patman Act. A. Claims of Conspiracy Under Sherman Act § 1 Delta alleges two major conspiracies which unreasonably restrained its entrance into the television market: (1) NBC, CBS, ABC, AT&T, and Southern all conspired to prevent it and other UHF stations from receiving fair remuneration from the television networks for its service of delivering their signal, and (2) NBC, CBS, ABC and AT&T conspired to establish, maintain and apply AT&T tariffs for the delivery of network signals which discriminated against Delta and other UHF stations. 1. Market Entry Conspiracy Delta claims that ABC, CBS, and NBC, along with AT&T and Southern’s television station WTOK in Meridian, conspired to restrict the entry of Delta into the Meridian market and to restrict the entry of UHF stations generally into the television market throughout the nation in violation of § 1 of the Sherman Act. Delta claims the major networks' motivation for this conspiracy is twofold: first, should UHF stations be allowed to develop, the end result would be the creation of an independent television network which would be in direct competition with the existing major networks; second, the development of such stations would eventuate in UHF stations which would compete with the five broadcasting stations each major network is allowed to own by FCC regulations. The motive claimed for AT&T’s participation is the ease of dealing with only three major networks as compared to more networks or additional numbers of independent television stations. The motive assigned for Southern is that the failure of Delta would preserve its monopoly in the Meridian market. Delta asserts that the following conclusory facts show the existence of a conspiracy by the three major networks. Each is said to have denied Delta a) the right to broadcast their programs and b) a true affiliation agreement; and, each network refused c) to pay AT&T delivery charges and d) to pay Delta an adequate rate for the services rendered. The prerequisites for a violation of § 1 of the Sherman Antitrust Act are twofold. First, there must be a conspiracy, i. e., an agreement between at least two parties. Second, the conspiracy must unreasonably restrain trade. Delta has failed to prove both prerequisites. It does not point to a single fact to show the existence of a conspiracy between the networks. In effect, the numerous pleadings presented by Delta admit there is no direct evidence of conspiracy. Lacking direct evidence, Delta must rely on circumstantial proof of the existence of such a conspiracy. For this proof to be sufficient it must show that the activities of the networks were consciously parallel. Conscious parallelism, however, has not read conspiracy out of the Sherman Act. Therefore, Delta not only must show that the networks’ actions were consciously parallel, but also that they were contrary to the economic self-interest of the networks. Since each of the major networks dealt differently with Delta, no direct or circumstantial evidence is shown from which parallel actions can be inferred. The first approach NBC received from Delta was as a station, indicating affiliation with ABC, seeking programs that might be used to fill in or round out its schedule. The station went on the air in July of 1968 and in September of 1968 when the new fall season began NBC offered seven programs to Delta. In December of 1968 Delta initiated an active quest for an NBC first-call affiliation. In May of 1969 that affiliation was awarded effective in July of 1969. The delay was due to the giving of a required 28-day notice to Southern. In March of 1970 NBC helped arrange a precontrol-room feed from an NBC affiliate in Jackson which saved Delta approximately 3,500 dollars a month in AT&T tariffs. In April of 1970 NBC paid Delta a 50-dollar-per-hour program rate even though Delta was unable to meet NBC’s policy of not offering any station rate until the station could produce 6,000 average prime-time homes (the normal rate for 6,000 homes was 100 dollars). In addition, there was no “waived hours” deduction provision in the 50-dollar fee paid by NBC. ABC on December 6, 1967, made available to Delta all of the ABC programs which were not being used by Southern. This policy was continued on a no-pay no-delivery-charge basis throughout Delta’s career. CBS’s first-call contract with Southern had been in existence since 1954. Late in 1967 Delta requested CBS to allow the telecast of all CBS programs which were not being used by Southern. This request was promptly granted and CBS offered to allow Delta to pick up the signal from the Meridian AT&T switchboard which would have saved Delta the AT&T long-lines delivery charges. The reason why Delta chose not to accept this offer does not appear in the proof developed. Early in 1969 CBS offered a 35-dollar-per-week network rate to Delta. From these recitals of uncontroverted fact it can be seen that the networks did not treat Delta in any fashion even remotely resembling conscious parallelism. Delta claims, however, that since none of the networks ever paid delivery charges for the delivery of the programs and since none of the networks ever offered an “adequate” network rate, there was to that extent parallel action. In addition, Delta claims that these same parallel acts were endured by all UHF stations and that they resulted in the failure of Delta and the 36 other UHF stations which have gone dark between the years of 1966 through 1972. This assertion by Delta, however, completely misconceives the point of thé conscious parallelism test in a circumstantial evidence case. It is not enough for a plaintiff to show conclusory parallelisms which are indicative of the harm suffered, it is necessary to allege specific parallelism probative of conspiracy or joint action. The record developed here after voluminous discovery belies conspiratorial or joint activity. Each of the networks contracted with Delta for different amounts of programs at different times. Although only two were willing to pay a network fee, each of them reached their decisions at different times and paid different amounts. Only one network ever awarded a first-call affiliation. Judged by the standard applicable to summary judgments, it is clear that Delta has failed to show any material facts from which a jury could conclude that there was conscious parallelism in the activities of the major networks, and therefore could infer there was a network conspiracy. The court’s conclusion does not fail to consider Delta’s questions, such as: Why was NBC’s original program grant limited to only seven programs? Why did NBC wait until September of 1968 to allow NBC programs to be broadcast by Delta? These questions are typical and are expressed only to demonstrate that they are irrelevant. The facts suggest a host of different justifications. Indeed, the detailed proof of independent and normal operating policies, which indicate completely innocent and nonconspiratorial activity, obliterates the inference of unlawful action Delta suggests. In the face of this sort of factual record, these tenuous insinuations will not substitute for proof that a conspiracy existed between the networks to hinder Delta in particular or UHF stations in general. Even if some genuine issue of fact existed as to parallel activity, the record is insufficient to resist a motion for summary judgment on the claim of a § 1 Sherman Act violation. The uncontradicted proof shows that the actions of the major networks at all times were taken in response to sound economic considerations. To show conspiracy in a circumstantial evidence case, Delta must demonstrate not only parallel activity, but that the actions were in apparent contradiction to the networks’ economic self-interest. To prevail on its claim of a § 1 Sherman Act violation, Delta must additionally show that these actions, in furtherance of the conspiracy, were an unreasonable restraint on trade. In the case sub judice, these showings include the weighing of the same considerations and, therefore, will be discussed together. The relevant “actions” are the networks’ decisions to deny an “adequate” network rate and to refuse to absorb the cost for the delivery of the television signals to the stations or, in other words, the networks’ decisions not to pay or not to pay enough for the service which they were purchasing from Delta. Any network decision not to pay what Delta’s services were worth would have been contrary to the networks’ self-interest. The uncontradicted proof is that the service was not worth buying for a price higher than that paid. As discussed above, the worth of a television stations’ service to a network is determined by the size of the audience which the station is able to deliver. The nature of the industry is such that the measurement of this audience is never capable of exactness. It is always estimated on the basis of surveys and predictions. At no time did any of the research which regularly formed the basis for network action show that the Delta audience met, or might in the near future reasonably meet, the minimum network requirements for affiliation. The most telling fact is found in the total lack of contradiction to statements by two network officers who swore that no surveys, either independent or network-conducted, ever showed Delta broadcast to an average prime-time audience large enough to attract any additional revenue from national advertisers for the addition of Delta to a network. Since the research showed that the service Delta was attempting to sell was not worth buying, the only possible way to make out a § 1 violation would be a) to show that the measurements used were invalid, or b) to show that the standards used by the networks for determining compensation were unreasonable. Delta repeatedly asserts that if ABC or NBC had used a more reasonable assumption to calculate the number of viewer television sets capable of receiving a UHF signal (a percentage designated as the UHF conversion figure) and had accounted for the cable television audience, the 6 or 7 thousand figure required would have been reached as early as June of 1968 when the station first signed on. The mass of discovery evidence presented, however, fails to suggest that any facts exist to support these assertions. To receive a UHF signal, a television must have the appropriate tuning apparatus and often must have a special antenna. Delta claims that the conversion factor used in the research to determine its audience was too low; however, the census reports for 1970 and the expert report prepared by the station prior to its operation show that the figures used were reasonable. This summary judgment decision does not rest in anywise upon resolution of this apparent factual issue. Rather, Delta has presented no facts which show the UHF conversion figure used was incorrect. More importantly, Delta has failed to show any facts which would raise an inference, if the UHF conversion figures were incorrect, that the error resulted from any network’s conspiratorial act to purposefully restrain trade. The record does not disclose any facts which would prove that the networks acted wrongly in refusing to include cable television audience statistics in determining Delta’s potential audience. A network’s direct interest in a broadcast station’s capability is in increasing the total of homes which can view that network’s program and advertising package if the station broadcasts its signal. Adding the cable homes which would receive Delta’s signal, if those homes were already receiving the relevant network’s signal via another station through the cable, would not add viewers to the overall audience of the network. For this reason it was reasonable or at least not unreasonable to refuse to include them in the computations. The final and telling consideration is that Delta has failed to point to a single fact which would allow a reasonable inference that the networks have purposefully misdirected their research so as to restrain trade by unreasonably barring the entry of Delta or UHF stations into the television industry. There was a reasonable correlation between the private network research and the independent survey research which, absent any indication of conspiracy between the networks and the ARB and Nielsen survey organizations, buttresses the conclusion the networks did not conspire in relying on the research of these independents as well as on their own private surveys in predicting Delta’s capability. Delta claims that the 6 or 7 thousand household-viewers figure used by the networks was an improper standard upon which to base payment to television stations. The station claims that the use of this standard restrains trade by preventing Delta and ether UHF stations from receiving network revenue. Delta points to the statements of two network personnel as supporting the conclusion that the networks acted in apparent contradiction to their self-interest and unreasonably by not paying more for Delta’s service regardless of the circulation figure. Delta’s assertions, however, completely misconstrue the import of each of these individual statements. Both men clearly indicate that they consider it not to be economically profitable to pay for Delta’s service, but that the station’s future potential is such that it might develop a profitable audience. The statements indicate no more than that it might be advantageous to the network in the future to subsidize the station at the present time. In fact, one even said that if it were up to him, he would make the decision in favor of subsidy. It would be unfair to leave this issue without noting the network spokesmen’s statements that Delta’s circulation was so poor that its addition to any network system would not produce a single additional dollar in income to the network from national advertisers is undisputed. Clearly, any station rate or payment of delivery fees by a network to Delta, based on the then known survey figures, would have been a gift. The Sherman Act does not command gratuitous compensation. Even though CBS and NBC both later made independent business decisions to award a station rate to Delta before the available research indicated that it would be profitable, a decision to make such a contribution in hopes of long term profitable return is a speculative risk within the business judgment of the individual networks and not one compelled by the antitrust laws. Any support for Delta from this action would have to be culled from a sort of they-should-have-speculated-sooner approach which will not suffice to prevent summary disposition. Delta is unable to show that it could present any material fact which would allow an inference that the networks purposefully mismeasured Delta’s audience or that the networks improperly set their compensation standards. To the contrary, the proof is clear that Delta was unable to reach present, broadly applied standards. The hard but unequivocal facts reveal their service was not worth buying and this was the reason that the networks did not buy it. That action is not in apparent contradiction of economic self-interest nor is it an unreasonable restraint of trade. Delta has failed to show it could produce any facts probative of conspiracy; it has been unable to make a circumstantial showing of conspiracy in that it can neither show conscious parallelism nor actions in apparent contradiction of economic self-interest. It has also not been able to show an unreasonable restraint of trade. Summary judgment is proper in favor of the defendant networks as to the § 1 Sherman Act claim alleged. CBS is able to take advantage of an additional defense relative to this antitrust allegation. When Delta came on the scene in June of 1968, CBS was affiliated with Southern and had been so associated continuously since 1954. When requested by Delta to allow it to broadcast programs not being broadcast by Southern, CBS immediately complied with the request. CBS was also the first network to pay Delta a station rate for the broadcast of its programs. It is altogether unreasonable to assert that the actions of CBS toward Delta were unfair. The legal first-call affiliation agreement between CBS and Southern fully justifies the extent of its activity. In Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (5th Cir. 1954), the court ordered a party dismissed from an antitrust action when that party was prevented from dealing more fully with the plaintiff because of a pre-existing valid affiliation agreement with another company. CBS’ situation in this case is identical to the dismissed party’s in Applebaum ; therefore, for this additional reason, summary judgment is proper as to CBS. In addition, because of the existing agreement with Southern, Delta never requested affiliation with CBS. Delta claims the network’s motive for this conspiracy was to forestall the development of UHF stations in general so a) they could not become viable competitors to the five stations directly owned by each of the three major networks, and b) they could not form a fourth major network which would be in direct competition with the current networks. These alleged motives are completely unreasonable. The only plausible inference to be drawn from the undisputed facts is that the networks were motivated in their dealings with Delta solely by their interest in purchasing a distribution service for their programs and advertisements. In Delta’s case the offered audience was so small that the networks concluded no national advertiser would pay them for its addition to the system. In the first place, only two of the 37 UHF stations which went dark were in any markets which were in competition with the directly owned stations of the networks, and those two were successor stations in the same city. Success by Delta or the other UHF stations would not have provided any competition to these stations. Additionally, many of the unsuccessful UHF stations were in communities which previously had only one or two television outlets. While a second or a third station in such markets would provide an outlet for one or both of the existing networks not then being shown, it is altogether implausible that this situation could precipitate the formation of a fourth major network. Both asserted motives for the alleged refusal by the networks to deal fairly with Delta and other UHF stations are less believable than is the motivating factor of sound business judgment which resulted in each network offering no more to Delta for its service of distributing programs than that service was worth. Clearly, § 1 of the Sherman Act has not been shown to have been breached. Delta claims that Southern was an actor in the alleged conspiracy in that: 1) it influenced the ARB surveys to show a lower than accurate reflection of Delta’s viewing audience; 2) it conspired with WDAM in Hattiesburg and WLBT in Jackson to keep NBC from affiliating with Delta; 3) it increased its scheduled ABC programs to prevent Delta’s access to those programs; ,and 4) it had knowledge of, and acquiesced in, the conspiracy above. Each of the first three substantive assertions is further discussed in Section 111(C)(3) of this opinion. However, in addition to Delta’s failure to allege material facts to support any of them, summary judgment is proper here because none of these asserted elements in any way supports a conspiracy between the networks and Southern to harm either Delta or UHF stations generally. Each assertion constitutes no more than an independent action or act in concert with other stations. No allegation of concerted action involving the defendant networks is presented. There is no need to examine claim (4) — that WTOK acquiesced in this conspiracy — in light of the conclusion that Delta is unable to show that there exists an illegal conspiracy in which to acquiesce. Delta claims that AT&T took part in this conspiracy by: 1) giving automated answers to inquiries regarding tariffs; 2) misquoting tariff amounts prior to the operation of the station; 3) refusing to intercede with the networks to arrange network payments of tariffs or with the FCC to provide some relief from the tariffs; and 4) by refusing ETV service when it was requested. AT&T is bound by law to charge and collect the fee fixed by the tariffs for its services, so to the extent that its responses to tariff inquiries are properly classed as wooden, they had to be. No facts are claimed to exist which would support any claim of intentional misdirection regarding the misquoted tariffs. As a regulated carrier in interstate commerce, AT&T had to negotiate neither with.the networks nor with the FCC because Delta was unhappy with the tariff which the law required AT&T to charge. There appears to be a factual dispute regarding the refusal of the ETV service. If it was material, it would prevent summary judgment. Delta claims it was denied ETV service; AT&T claims that no request for it was made. However, as with the other three claims asserted against AT&T, whether ETV service was denied is immaterial. Each of these claims alleges only independent wrongdoing on the part of AT&T toward Delta. These wrongs do not tend to establish a conspiracy with the networks to hinder market entry by Delta or UHF stations in general. AT&T’s asserted motive for involvement in this conspiracy is to preserve the ease of dealing with only three network customers and to avoid the “burden” of dealing with numerous independent stations. This inferred motive would be logically inconsistent with the motive Delta assigns to the networks’ “conspiracy” — to prevent the development of a fourth major network. Preventing the development of a viable fourth network would cost AT&T substantial income from additional traffic. Any conceivable greater ease in dealing with only three as opposed to four networks would be an insubstantial deterrent to receipt of such a benefit. Even if Delta should not be held to consistency in the various motives it implies, and assuming successful UHF stations would be absorbed by the existing networks, no motive either reasonable or unreasonable to suppress UHF development would exist because increased UHF broadcasting would simply increase AT&T income. If the assumption is made that new stations would remain independent, there would then be an additional burden on AT&T in dealing with such independent stations. However, the inference that this burden, offset by its accompanying increase in income, would motivate involvement in a conspiracy to restrain the entry of Delta and UHF stations into the television market approaches being ridiculous. After all, AT&T exists to do business, not to avoid doing it. In sum, Delta has not asserted a single reasonable motive for AT&T’s involvement in its suggested conspiracy. Delta also asserts that AT&T had knowledge of the networks’ conspiracy and acquiesced in it. This claim must also fail. There are no facts to support the existence of an illegal conspiracy nor facts to support any motive for AT&T’s acquiescence in such a conspiracy. 2. Tariff Conspiracy Delta makes an additional broad conspiratorial allegation. It claims that the networks and AT&T in furtherance of an illegal conspiracy, established and/or applied a tariff structure which operated to restrain the entry of Delta and other UHF television stations into the television market. Delta points to two aspects of the tariff structure which operated unfairly against it and other UHF stations. First, Delta objects to the way in which AT&T applies the requirement of the tariff that charges be based upon the lowest possible combination of air mileage between all points to which a customer orders service. The tariff characterizes the difference in charges to networks and individual stations as multipoint vs. dual-point charges. The operation of this system is most easily understood through the use of the following illustration: A network purchaser from AT&T would normally order the same signal delivered to many different points. If it should order service from Point A to Point B, a distance of 100 miles, the applicable increment of its overall charge will be based upon the tariff’s per-mile rate times 100. If the network were to add the same service to Point C which falls exactly on this line of shortest air mileage between Point A and Point B, there would be no additional long-line service cost to the network because the total mileage ordered by the same customer would remain at 100 miles. If the network were to add to its order service at Point D instead of Point C the shortest air line service distance between Points A, B and D will be 120 miles. The incremental increase, therefore, for ordering the service extended to Point D will be calculated on only the 20 mile difference. On the other hand, if an independent station located at Point D should place an order for delivery of the same network’s signal from Point A to Point D, it would be billed for the tariff rate times 60 miles, even though the network might still be paying AT&T for delivery of service between Points A and B. Under this application of the tariff AT&T calculates the tariff charge - for taking the signal from the point ordered to the point of delivery on a customer by customer basis. This is a wholly reasonable, if not the only practicable, method of application. The fact that Delta and other single service customers could achieve a savings if calculations of their costs could include the service rendered to another customer fails to demonstrate conspiratorial activity. Delta’s second tariff allegation charges discrimination in the creation, continuation, and application of occasional-use vs. regular-use tariff rates. The FCC has previously determined that this portion of the tariff structure which authorizes charges at one rate per hour, per mile for monthly service (8 or more consecutive hours per day, per month) and a much higher rate per mile, per hour for occasional service (anything less than 8 consecutive hours per day) can operate in a discriminatory manner. Hughes’ Sports Network, Inc. v. AT&T, 25 FCC 2d 550 (1970). Delta asserts that AT&T’s rate structure forced it to pay for regular-use monthly service (which would entitle it to use 15-16 hours per day), which it could not fully use, because the fee for that service was less than occasional-use service for the 7 nonconsecutive hours per day it actually needed. The result was, Delta asserts, that it had to pay for 2 hours of AT&T service for every one which it actually used. In addition, Delta contends that it would not have used as many hours of long-lines service if it had not been forced by the rate structure to pay for the service on the monthly service basis. Although this tariff structure has been held illegal as applied to a part-time network user, the Commission has never declared the. tariff unfair as it affected an individual broadcaster such as Delta. Nevertheless, for purposes of assessing this antitrust allegation the court assumes the tariff structures discriminate against Delta in the manner alleged. Delta’s antitrust claim here, as elsewhere, is not specific. In an effort to construct the case most strongly in Delta’s favor, we construe it to have alleged four tariff-related activities in furtherance of an overall conspiracy to restrain the development of UHF television. i. Conspiracy to establish tariffs. Delta contends that the three major networks and AT&T conspired to establish these tariff structures to prevent the development of UHF television stations. The motives alleged for this conspiratorial behavior are those discussed and discounted above. A meticulous review of the entire bulk of discovery reveals not a single fact which directly supports an inference of such a conspiracy. Instead, Delta is forced once again to rely on no more than its assertion of conscious parallelism between the networks and AT&T and on actions in apparent contradiction of the economic self-interest of all conspirators. Three things show this reliance is misplaced. First, the mere existence of the tariff cannot be said to indicate parallelism. The applicable TV tariff structure, which included both of these alleged discriminatory items, was established in 1948 before UHF television was a practical reality and long before Delta was conceived. Moreover, both of these structural elements were present in other AT&T communications tariffs created before 1948. Chronologically, the tariff could not have been established as part of a conspiracy to restrain the development of an industry which did not exist at the time the tariff was created. Delta is unable to point to any fact indicating parallel activity in the tariff’s establishment. Second, Delta has been unable to show any facts which would indicate these tariffs were established contrary to the economic self-interest of the networks. In fact, Delta’s claim is just the opposite— it asserts that the established tariffs operate disproportionately to the benefit of the economic interests of the networks. Third, Delta is unable to show any direct facts pointing to conspiracy. This circumstantial evidence attempt fails because Delta is unable to show either conscious parallelism or actions contrary to economic self-interest. Such lack of proof to oppose the well-supported motions for summary judgment leaves Delta’s attempt to support its assertions of conspiracy far short of the mark. ii. Conspiracy to maintain tariffs. Delta also contends that AT&T’s failure to change the tariff once UHF tele- vision became a viable industry was an action, or more appropriately an inaction, in furtherance of its conspiracy with the networks to restrain the development of UHF television. Once again Delta completely failed to show a single fact indicative of conspiracy. In addition, the only parallel activity demonstrated is that neither the networks nor AT&T sought to change the tariff structure. The conclusion that this inaction alone will not support an inference that a conspiracy existed between AT&T and the networks is bolstered by the lack of any showing that Delta or any other broadcaster instituted proceedings to have the FCC relieve them from the tariff structure. Finally, we note that Delta does not even assert that such inaction contradicted any economic self-interest of any alleged conspirator. The asserted motives for this conspiracy have been completely discussed and discounted above. iii. Noer-Pennington Delta claims the networks actively supported the existence of this tariff structure during various proceedings before the FCC. Delta asserts that this activity was in furtherance of the conspiracy to restrain the development of UHF television. Insofar as Delta’s allegations seek to base recovery on the networks’ efforts to continue the existing tariff structure or even to gain from the FCC a structure they considered more beneficial, they are not well taken. The right to petition administrative agencies for favorable action is outside the perimeter of activity proscribed by antitrust laws. United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad Presidents Conference v. Noer Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1965). Reading this claim most favorably to Delta, it apparently asserts that the networks appeared