Full opinion text
MEMORANDUM AND ORDER CARL O. BUE, Jr., District Judge. I. The Pending Motions and The Court’s Ruling Various post-trial motions are pending before the Court: (1) plaintiff’s Motion for Injunctive Relief and for Entry of Judgment in Accordance with the Verdict; (2) defendant McConn’s Motion for Judgment on the Verdict; (3) defendant Gulf Coast’s Alternative Motions for Judgment on the Verdict, Judgment Notwithstanding the Verdict or for New Trial; and (4) defendants City of Houston’s and McConn’s Motion for Judgment Notwithstanding the Verdict. Having considered the record of this case, the issues addressed in the memoranda, and the arguments of counsel, the Court rules as follows with regard to the motions: (1) plaintiff’s motion should be denied in its entirety; (2) defendants’ motions for judgment on the verdict or for new trial should be denied; and (3) defendants’ motions for judgment notwithstanding the verdict should be granted. In this complex and protracted anti-trust case which resulted in a jury verdict for the plaintiff, the instant rulings by the Court are necessarily expanded upon at length in light of the trial record to explain the reasoning utilized in reaching a decision adverse to plaintiff. The issues basically revolve around the meaning of two of the jury’s answers to interrogatories propounded at the close of the evidence and the Court’s obligation under the law at this stage of the trial to uphold the verdict if supported by the record. While persuaded that the plaintiff’s proof can be viewed as advancing a second theory of conspiracy to limit competition for cable franchises separate and apart from the boundary agreements, this Court finds no evidence apart from the boundary agreements of a conspiracy which caused harm to plaintiff. Since the jury found such boundary agreements were not part of a conspiracy in unreasonable restraint of trade, the necessary nexus between a conspiracy and plaintiff’s failure to receive a cable franchise is lacking. Accordingly, the defendants must prevail, and a judgment notwithstanding the jury verdict in their favor will be granted. II. The Contentions of the Parties The jury was instructed that in order to find that any of the defendants violated Section 1 of the Sherman Act, they had to find the following essential elements by a preponderance of the credible evidence: (1) that the particular defendant entered into a conspiracy or agreement with one or more other persons; and (2) that the object of this conspiracy or agreement was to divide and allocate territories and thereby eliminate plaintiff or others as competitors for cable television franchises in Houston; or that the object of this conspiracy was to limit competition to those persons who participated in the agreement. Instruction No. 12, Jury Charge. Further, they were instructed as follows: It is established that Gulf Coast agreed to divide or allocate the territories within which certain cable television companies would apply for a franchise, specifically with the Houston Cable and Westland groups. The question for you to determine is whether such agreements were made as part of a conspiracy which constituted an unreasonable restraint of trade which had a substantial adverse effect on competition. Also with regard to Gulf Coast, you must determine whether Gulf Coast engaged in a conspiracy with one or more other persons to limit competition for cable television franchises in Houston. If you determine that Gulf Coast entered such a conspiracy, you must determine whether that conspiracy constituted an unreasonable restraint of trade. With regard to the City of Houston and Mayor McConn, if you determine from a preponderance of the evidence that either of those defendants participated in or acted in furtherance of a conspiracy to divide or allocate the territories within which the cable television companies would apply for a franchise with the purpose of excluding plaintiff from a franchise, or of a conspiracy to limit competition for cable television franchises, you must next determine whether such alleged conspiracy constituted an unreasonable restraint of trade, which had a substantial adverse effect on competition. Instruction No. 17, Jury Charge. In conformity with the instructions, two interrogatories concerning liability on separate conspiracy theories, one specifically related to boundary agreements and one related to a conspiracy independent of those agreements, were submitted to the jury. The first interrogatory encompassed the issue of whether the established boundary agreements were part of an illegal conspiracy, and the jury responded with a negative answer. The third interrogatory encompassed the issue of whether any of the defendants participated in an illegal conspiracy to ensure that only co-conspirators would receive franchises, and the jury responded affirmatively, finding that defendants Gulf Coast, City of Houston and Jim McConn participated. The jury then found causation and damages in affirmative answers to Interrogatories Nos. 5 and 6. Defendant Gulf Coast contends that it is entitled to judgment based on the negative answer to Interrogatory No. 1, for the following reasons: (1) Given the finding that the boundary agreements were not part of an unlawful conspiracy, there is no evidence to support an affirmative answer to Special Interrogatory 3; (2) The finding that the boundary agreements were not part of an unlawful conspiracy precludes an affirmative answer to Special Interrogatory 5 — that an unlawful conspiracy proximately caused injury to plaintiffs’ business or property — since there is no evidence of any unlawful conspiracy contributing to plaintiffs’ failure to obtain a franchise other than testimony linking the boundary agreements with such failure; and (3) The finding that the boundary agreements were not part of an unlawful conspiracy resolves all arguments against the applicability of Noerr-Pennington to the facts of this case and renders that doctrine controlling as a matter of law. Defendants City of Houston and McConn contend that they are entitled to judgment on the following grounds, inter aiia : I. In light of the jury’s answer to Special Interrogatory No. 1, there is no evidence to support the jury’s answers to Special Interrogatories Nos. 3 and 5.... II. In light of the jury’s answer to Special Interrogatory No. 1, the evidence is conclusive that all other actions of the Mayor and the City of Houston were within the scope of the legislative process, and are exempted from antitrust liability— Plaintiff asserts that it has never taken the position that the boundary agreements simply were a more specific and all-inclusive description of the conspiracy to limit competition. Instead, plaintiff’s theory throughout the course of proceedings was that “the boundary agreements were illegal standing alone as well as being part of the conspiracy to limit competition”, and plaintiff asserts that the boundary agreements “were not the only acts that [it] put in evidence to establish the existence of a conspiracy to limit competition.” Plaintiff characterizes the conspiracy addressed in Interrogatory No. 3 as one in which the “co-conspirators agreed to limit competition from non-conspirators, including plaintiff. .., [and agreed] to limit competition with each other.” III. The Test for Sufficiency of the Evidence and The Relevant Proof On motions for ... judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, .... The motions for ... judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc); accord, Bazile v. Bisso Marine Company, 606 F.2d 101, 104 (5th Cir. 1979), cert. denied, - U.S. -, 101 S.Ct. 94, 66 L.Ed.2d 33 (1981). Pursuant to the Court’s obligation to implement that standard, the Court carefully has reviewed documentary evidence and testimony in the light most favorable to plaintiff, and has analyzed comprehensively the plaintiff’s assertions regarding the inferences to be drawn therefrom. The Court concludes that with regard to liability of defendants for a conspiracy to limit competition of non-conspirators and to limit competition among co-conspirators, that is, whether such a conspiracy existed independent of the boundary agreements and whether defendants Gulf Coast, City of Houston and McConn participated in it, substantial evidence exists in the record to create a likelihood that reasonable persons could reach different conclusions. With regard to evidence of a causal relationship between that conspiracy and plaintiff’s failure to be awarded the franchise for which it applied, however, the record presents insufficient evidence, and the Court concludes that reasonable persons could not decide otherwise. Accordingly, the Court finds that the absence of evidence of causation cannot support a verdict in plaintiff’s favor based on an affirmative answer to Interrogatory No. 5. A. The Issue of Liability The Court agrees with plaintiff that the jury’s affirmative answer to Interrogatory No. 3 reflects its “apparent conclusion that the conspiracy to limit competition was an agreement or understanding that franchises would be awarded only to those applicants that were approved by Gulf Coast and other nondefendant participants”, and with defendant Gulf Coast that “apparently [the jurors believed that] there was some conduct wholly unrelated to the boundary agreements which was legally cognizable as a conspiracy in unreasonable restraint of trade to limit competition for cable franchises.” As defendants have contended, plaintiff focused throughout the case on the boundary agreements and the negotiations surrounding them, as is apparent from plaintiff’s pleadings and proof. The jury’s rejection of plaintiff’s predominant theory, however, will not suffice to resolve the question of whether proof exists in the record to support a theory which plaintiff espoused but did not emphasize. In Plaintiff’s Brief Demonstrating Inferences from the Evidence, plaintiff identifies many excerpts from the testimony as well as related documentary evidence from which inferences can be drawn to support the existence of a separate theory of conspiracy to limit competition that is not contingent upon evidence concerning boundary agreements. Plaintiff has reached the correct result in its analysis of the evidence. The Court has determined, however, that some of the proof identified by plaintiff is inappropriate for consideration because that evidence relates solely to boundary agreements encompassed in Interrogatory No. 1. In order to demonstrate clearly the evidence apart from that of boundary agreements which tends to show the existence of, and acts done in furtherance of, a conspiracy to exclude non-conspirators and to limit competition among co-conspirators, the Court feels obligated to set forth a summary of the history of the franchise process followed in Houston and a detailed recitation of the evidence which demonstrates that the conspiracy encompassed in Interrogatory No. 3 existed. 1. History of Franchising Process Between July 1978 and August 1978 several applications for cable television franchises were filed with the City: Gulf Coast, the first; Houston Cable; Meca; Houston Community Cable; and G. B. Communications. In September 1978, Westland also made application, and plaintiff, Affiliated Capital, having divested itself of ownership of a savings and loan association and thereby becoming eligible to apply for a franchise, hired an attorney to assist it in obtaining a franchise. In October 1978, the City hired a consultant, Robert Sadowski, to evaluate-the applications; the consultant’s employment was terminated in November, 1978. Also in October, plaintiff announced by letter to City Council its intention to apply for a franchise, and in November, City Council sent to plaintiff an application form. Plaintiff filed its application on November 16, 1978, and filed a supplemental application on November 28,1978. The November 29, 1978 City Council agenda contained six cable television ordinances: Gulf Coast; Houston Cable; Meca; Houston Community; Westland; and G. B. Communications. At the November 29 meeting, the ordinances were tabled until December 13, 1978, and plaintiff was granted a hearing on its application on December 12,1978. After plaintiff’s presentation on December 12, plaintiff’s application was referred to the Public Service Department for evaluation, and all of the ordinances were tabled again so that the franchises could be referred to the public service and legal departments for their recommendations. On December 20, 1978, written recommendations from those departments for the following applicants were made to City Council: Houston Community; Meca; Houston Cable; Westland; Gulf Coast; and Affiliated Capital. On the same date, the following ordinances were passed upon first reading: Gulf Coast; Houston Cable; West-land; and Houston Community. The franchise ordinance applications of Meca and plaintiff were tabled for one (1) week. On January 10, 1979, the franchise ordinances of Gulf Coast, Houston Cable and Westland were passed on the third and final reading. Inasmuch as Gulf Coast’s franchise contained within it all of the area plaintiff had applied for, the approval of Gulf Coast effectively preempted plaintiff’s application. 2. Evidence of Conspiracy Within that framework plaintiff asserts that many of defendants’ acts demonstrate the existence of agreements that “were designed to ensure that only those companies participating in the understandings would receive cable television franchises, to ensure that participating companies would not be in the position of having to compete with each other with regard to the terms of the contractual commitments each would offer the City in order to obtain a franchise, and to ensure that competitors who did not participate would be prevented from obtaining franchises.” With regard to that assertion, the Court’s task is to ascertain what evidence in the record tends to prove plaintiff’s contentions apart from the evidence which relates solely to the boundary agreements found by the jury not to be part of the conspiracy. The Court acknowledges that even though the jury responded negatively with regard to the boundary agreements, evidence pertaining to those agreements could demonstrate the parties’ intent to conspire, when considered cumulatively with independent evidence of the conspiracy. See, e. g., United Mine Workers of America v. Pennington, 381 U.S. 657, 670 n.3, 85 S.Ct. 1585, 1593 n.3, 14 L.Ed.2d 626 (1965); United States v. Southern Motor Carriers Rate Conference, 439 F.Supp. 29, 47 (N.D.Ga.1977). In light of the jury’s finding, however, evidence pertaining to those agreements, or inferences to be derived therefrom, cannot be considered as evidence sufficient to prove the existence of the conspiracy; evidence of other conduct, wholly unrelated to the boundary agreements, and independently demonstrating, directly or circumstantially, that a conspiracy existed, must be present in the record to sustain the jury’s affirmative answer to Interrogatory No. 3. For purposes of identifying such evidence, the Court recounts below all of the proof plaintiff has designated which the Court agrees independently will support the existence of the second theory of a conspiracy. Where other portions of the evidence cited by plaintiff in its brief as supporting the second conspiracy are omitted, it is because this Court views such evidence as related solely to boundary agreements. By omitting those portions, the Court rules that, when stripped of their boundary content, the acts identified by plaintiff are no evidence of, and can evoke no inferences of, the existence of a conspiracy to limit competition. By late August 1978, Clive Runnells, on behalf of Gulf Coast, had agreed with Meca that they would be friendly competitors. Testimony of Clive Runnells. Al Levin, Affiliated Capital’s lawyer during the franchising process, testified that by September 20, 1978, he contacted Bill Chamberlain, an agent of Gulf Coast. Chamberlain told him that Gulf Coast’s attorney Bill Olson “was a pushing force of the cable TV situation at that point.” Levin further testified that he then contacted Olson and Olson told him, “as far as I am concerned, Al, it’s too late; the pie has already been cut.” Olson added: “Al, tell Billy [Goldberg] he is too late on this one.” “[Olson’s] words were, ‘the City is locked up by five franchises.’ ” On the day before this telephone conversation between Levin and Olson, Olson had told Jonathan Day, an attorney for Houston Cable, that Olson was “trying to put map together” and that “most of areas are defined on eastern side.” Plaintiff’s Exhibit 63. On September 28, 1978 a lawyer for Houston Cable wrote to the lawyer for Gulf Coast regarding the franchise ordinance: Enclosed is a copy of the proposed cable television ordinance marked to show deletions and additions, including some recommended by our FCC counsel. Also enclosed is an unmarked copy for your convenience. The enclosed form of the proposed ordinance has been placed in our word processing equipment. Consequently, any changes or additions you wish to make can be easily accommodated. As we discussed, the enclosed form should be considered as an internal working draft so that we can reach an agreed proposal to present to the city. Plaintiff’s Exhibit 14. A week later he wrote another letter recounting that they had met on this franchise ordinance, and noting their discussions of various provisions of this proposed ordinance, including the provision with respect to the percentage of the City’s interest in the gross ■ revenues from the ordinances: Enclosed is a revised form of CATV ordinance with the changes we discussed at our last meeting in Section 8.G; Section 10.B; Section ll.D; Section 12.H, J, and M; and Section 23.A. Also enclosed is a suggested revision to Section 20.A regarding the three percent of gross revenue issue in the event we are unsuccessful in limiting the franchise fee to regular subscriber service. If you have further comments or suggestions regarding this proposed form of ordinance, please let me know. Plaintiff’s Exhibit 15. None of the referenced sections of the proposed ordinance relates to boundaries. In October 1978, Runnells and others met with Mayor McConn. At that meeting, Runnells was informed that McConn wanted Westland to have a franchise. Westland had applied for a portion of the area sought by Gulf Coast, and the Mayor indicated to Gulf Coast that a general area, Westbury-Meyerland, was what he wanted Westland to have. Testimony of Clive Runnells; Testimony of James McConn. On November 22, 1978, notice of the November 29th City Council agenda indicated that six (6) ordinances, five of which ultimately were approved, would be considered. On November 27, 1978, the attorney for Houston Cable, one of the applicants scheduled on the upcoming agenda, sent a final proposed cable television ordinance to the City Attorney: Enclosed is a revised form of the proposed cable t.v. ordinance which includes the modifications made this week-end. In order to meet the proposed time schedule, any further revisions must be agreed by 12 noon on Tuesday, November 28. Final proofing of the enclosure will be completed by that time. Plaintiff’s Exhibit 29. He also sent a copy of the ordinance to Gulf Coast’s attorney, who had discussed it with the lead counsel for Houston Cable earlier that morning: Enclosed is the proposed cable t.v. ordinance which Jonathan Day discussed with you this morning. Also enclosed is a copy of the transmittal letter to the City attorney. I have marked significant changes in red in order to facilitate your review. If you have any questions or comments, please let me know. Plaintiff’s Exhibit 30. The next day Houston Cable’s attorney sent copies of the ordinances to the ultimately successful applicants. The proposed ordinances were complete except for the names of the applicants and their proposed service area. Plaintiff’s Exhibits 32 & 189. The successful applicants then filled in the blanks with their names and service areas, and forwarded the ordinances to the City Attorney. Some applicants sent their proposed ordinances back to the Houston Cable Attorney who then forwarded them to the City. Plaintiff’s Exhibit 35. The agenda for the City Council meeting of November 29, 1978 contained six (6) cable television franchises, not including plaintiff’s, Plaintiffs Exhibit 33; those ordinances had been placed on the agenda on or before November 22, 1978, Plaintiff’s Exhibit 174. When Affiliated attorney Levin heard of this, he contacted Assistant City Attorney Adrian Baer. Baer relayed the following information to Levin: [T]he Mayor and City Council had made their decision, and [Baer] said, ‘I learned this directly from the Mayor, the franchises are non-exclusive, he does not know about the areas, it’s still being worked out by Williams and Baer ... so the net result will be a de facto exclusive.” He [, Baer,] explained to me that there were — the decisions as to who was going to get what areas, specifically in terms of the actual boundaries, were still under negotiations, but the decision as to who was fait accompli. Testimony of A1 Levin; Plaintiff’s Exhibit 106. After an on-site inspection of Gulf Coast’s Bellaire facilities, Sadowski, the consultant hired by the City of Houston, told Earle, Director of Public Service, and Baer, Assistant City Attorney, that he would reject Gulf Coast’s application. The next morning, Sadowski was fired. One day later a messenger from Earle retrieved the notes Sadowski had made concerning the applications. In his notes, Sadowski had not recommended that Gulf Coast’s application be rejected, in spite of his oral suggestion to that effect to Earle and Baer, and he testified that he would have made no substantive changes in his report after the visit to Gulf Coast’s facilities. He had recommended in his report, however, that Gulf Coast be given a smaller franchise area than that for which it had applied. When Sadowski’s notes were typed by someone in the City, that recommendation was deleted. Moreover, other significant changes were reflected in the typed version of the notes Sadowski had turned over to Earle’s messenger: his recommendations that Houston Community Cable, Houston Cable, and Columbia (Westland) be rejected were changed to recommendations that they should continue to be considered; and his statement that Cablecom had presented the only satisfactory application was omitted. Testimony of Robert Sadowski. Prior to the plaintiff’s hearing before City Council on December 12,1978, MeConn suggested to Goldberg that Affiliated seek a franchise in another area of the City rather than in the area sought by Gulf Coast. MeConn testified as to his motivation for the suggestion: “I thought that, in trying to really help Mr. Goldberg, it was pretty obvious to me that Gulf Coast had the muscle and that Mr. Goldberg did not.” At the City Council hearing on plaintiff’s application which was conducted on December 12, 1978, the following comments were made by Councilman Goyen: Mr. Goldberg, let me address Council’s wisdom. As these applications came in, they were sent to the Legal Department. Obviously, a number of lawyers got together and did whatever they did. I was not privy to it nor did I want to sit in on any meeting. Apparently, they came up with the formula that those applicants agreed upon. I was hoping that your situation might end up in the same pot as the others, whereby there would be some kind of recommendation coming before this Council, and this Council would not have to carve from one to give to another, which we have not had to do in the past and which I do not want to do now nor do I intend to. I do not want to taketh away and giveth to somebody else, because I haven’t had to do that in the past. You have a very competent attorney, and the other people have very competent attorneys. What I would like to see done, and it might take a motion to get this done, is to send this to the Legal Department and try to work something out. Plaintiff’s Exhibit 150 at 27-28. Subsequently, the Council discussed how to proceed with plaintiff’s application, and Councilman Mann made the following suggestions: I want to make a substitute motion that the [plaintiff’s] application be referred to the Legal Department, and they in turn can contact these other applicants who have come forward and see if they can work out something. If you take this, fine, then see how much Gulf Coast is going to knock off this other group on farther down and then around and around. Substitute motion that this application be referred to the Legal Department and Public Service, and they are to contact the other people that have ordinances and guarantee that these boundaries are being adjusted between them, and they report back to Council. Plaintiff’s Exhibit 150 at 37, 39, 40. Also at that hearing, Mann indicated his knowledge of a house-count survey that had been conducted by Gulf Coast. Plaintiff’s Exhibit 150 at 25. The survey resulted in a comparison between the area plaintiff was applying for and an area that was within Houston Cable’s application, Plaintiff’s Exhibit 84, and was conducted in conjunction with a proposal by Gulf Coast that if Houston Cable would give the identified area to Gulf Coast, then Gulf Coast would be willing to give plaintiff its area. Testimony of A1 Levin. A document, prepared sometime between November 28, 1978, and December 20, 1978, by Assistant City Attorney Baer bears an alternative boundary description for the Gulf Coast franchise including the Houston Cable area, with Baer’s notation: “1-10 line shifted to Hwy. 290 without Goldberg’s tract — contingency.” Plaintiff’s Exhibit 56. City Council favored Gulf Coast’s franchise, which subsumed the area plaintiff had applied for, and at trial several councilmen and Mayor McConn testified as to their reasons therefor. McConn’s concern was to keep politically influential groups content: Q You didn’t want to step on anybody’s political toes, did you? A Not if I could avoid it. Q You didn’t want to make any type of political decision where some powerful person like Walter Mischer would be unhappy, did you? A Not if I could avoid it. Q And if all of the parties could work things out, then you wouldn’t have to make any type of decision, other than approving their agreements, isn’t that correct? A Yes, generally that is correct, yes, sir. Q And isn’t that what you wanted to happen? A That would have been beautiful, if it could have happened that way. Q But when it didn’t happen and you had to make the choice between Southwest Houston and Gulf Coast, you stated that the other — you thought the other people were more politically powerful than Southwest, isn’t that correct? A Yes, sir. I don’t know if I said that, but I’ll say it now. Testimony of James McConn. Councilman Goyen testified by deposition that he would have voted for Affiliated Capital’s application if “on the 20th, Mr. Goldberg had come in and Mr. Runnells had come in, Mr. Mischer had come in, and all the principals had come in, and a piece of Houston had been carved out for Mr. Goldberg with no objection by anybody.” Councilman Robinson testified that he would have supported Affiliated Capital’s application if plaintiff had been able to work something out with Gulf Coast to give him what he wanted. Councilman Westmoreland testified that he did not disagree with his prior deposition testimony that Affiliated had been unable to work out any type of arrangement with Gulf Coast, and for that reason Westmoreland voted in favor of Gulf Coast. Finally, plaintiff’s expert witness, Martin Malarkey, testified at length about the detrimental results of the noncompetitive franchising process in Houston, and about the benefits to residents of other cities where the process has involved competition on the merits of the applications. According to his testimony, the benefits include lower rates, provisions for sanctions in the event of noncompliance by the franchisee, provisions for performance bonds, and provisions requiring city approval prior to changes in ownership or control of the franchises. Further, he testified that normally the city itself prepares the franchise ordinance, rather than allowing applicants to do so. Having reviewed the entire record and excised the portions of the evidence which relate solely to boundary agreements, the Court is persuaded that sufficient evidence was presented for the jury to infer that each of the defendants had participated in a conspiracy to limit competition from non-conspirators and to limit competition among co-conspirators. Defendant McConn has asserted that none of the evidence apart from that related to boundary agreements tends to demonstrate his involvement in any conspiracy as described by plaintiff. The Court concludes that a review of the above-recited evidence belies McConn’s contention. Defendant Gulf Coast asserts that inasmuch as its general partner, Clive Runnells, was the sole decision-maker on behalf of Gulf Coast and was exonerated by the jury, Gulf Coast cannot be liable even if a conspiracy is supported by the evidence. Preliminarily, the Court observes that Chamberlain and Olson were agents of Gulf Coast and acted on behalf of Gulf Coast in many of the contacts with the City. Secondarily, even though the jury found that plaintiff failed by a preponderance of the evidence to prove that Runnells participated in the conspiracy, the jury could have considered evidence of the acts of Runnells, in combination with those of other agents of defendant, in deciding that the corporate defendant participated in the conspiracy. B. The Issue of Causation Plaintiff asserts that evidence of causation necessarily is inferential and that, having considered all of the evidence which supports the existence of the second theory of conspiracy, “the jury could have concluded that when Affiliated was directed to negotiate with its competitors for a place in the franchise package, it was not the boundary agreements that injured plaintiff, but the unwillingness of the private participants in the conspiracy to divide up the pie any further.” With regard to that assertion, defendant Gulf Coast counters that, “In other words, causation lay in the unwillingness of the private parties further to amend their boundary agreements on a voluntary basis. In the absence of them, the issue would not have arisen. This hardly can be said to represent evidence apart from the boundary agreements of a conspiracy which caused harm to plaintiffs.” The Court is constrained to agree with defendant. The five franchises which ultimately were awarded and which were represented among the ordinances considered by City Council on December 20, 1978, covered the entire city. Accordingly, even though one could infer from the evidence that the successful applicants’ refusal to accommodate plaintiff resulted in plaintiff’s not having its franchise application approved, the sole reason that plaintiff failed to receive a franchise was that Gulf Coast refused to readjust boundary agreements previously made. Had the boundary agreements not been made, the city well might not have been covered by the successful applicants’ franchises. The boundaries, however, were established before the ordinances were considered by Council. The applicants thereby had eliminated the primary, and perhaps only, concern of the Council, and the applicants declined to accommodate plaintiff by renegotiating or readjusting those boundaries previously agreed upon. The jury clearly found that those boundary agreements were not part of a conspiracy in unreasonable restraint of trade in their answer to Interrogatory No. 1. Thus, the agreements to allocate and divide territory cannot be considered as evidence proving causation of plaintiff’s injury, and no other evidence in the record, either direct or inferential, provides the necessary connection between the second theory of conspiracy to exclude non-conspirators and the plaintiff’s failure to receive a franchise. The testimony elicited by plaintiff from its expert witness further demonstrates that what plaintiff established was a causal relationship between the applicants’ agreements to eliminate overlaps in territory and the plaintiff’s failure to be awarded a franchise, rather than a relationship between the agreement to exclude non-conspirators and plaintiff’s injury. The sum of plaintiff’s direct evidence of causation is revealed in the following excerpts from the testimony of Martin Malarkey. Preliminarily, plaintiff asked its expert to opine whether overlapping franchises should have been awarded. Q Does it make any sense to you, Mr. Malarkey, from your experience, if you are granting franchises, to grant overlapping areas? Does it make economic sense to do that, sir? A Two franchises for the same area? Q Yes, sir. A No, sir, it does not. Q Sir, if a franchise that a city does award does not overlap, then where is there any competition in the cable industry? A Competition takes place when the city advertises for bids, for applicants to come in and offer to provide service to an entire community or given parts of the community. Q So the competition takes place in the franchising process— A Absolutely. Q —itself? A Yes, sir. Testimony of Martin Malarkey, February 4, 1981. Plaintiff then asked about the correlation between overlapping franchise areas and competition on the merits of the applications: Q Sir, if applications were filed by several companies for the same areas, and if overlaps between these applicants were not resolved by agreement or any way else, based upon your experience in other cities would there have been competition on the merits of these applicants? A Absolutely. Q By the way, sir, other than what you have heard about Houston, in ’78, are you aware of any market where the applicants, either before or after they were selected by City, got together, themselves, and eliminated boundary overlaps between them? A No, sir. I have never — I have not heard of that. Testimony of Martin Malarkey, February 4, 1981. As indicated by the excerpts of testimony recounted below, all of plaintiff’s causation questions which were related to plaintiff’s failure to receive a franchise sought to establish a connection between that failure and the boundary agreements. Plaintiff did ask its expert witness many questions related to the causal connection between the non-competitive nature of the Houston franchising process and the detrimental effects on consumers in Houston; however, any injury inflicted on the public cannot be substituted for the direct injury of which plaintiff complained and for which plaintiff sought damages. The following questions were posed by plaintiff to its expert: Q Based on those three assumptions, sir, that I gave you, do you have an opinion as to whether the elimination of all other boundary disputes prior to December 20 contributed to Affiliated’s failure to obtain a franchise? A Yes, it certainly did. Q Could you explain that opinion, sir, to the ladies and gentlemen of the jury? A Yes, sir, I will try to. If we assume that Westland and Houston Cable were not as well qualified as Gulf Coast and Affiliated Capital — first of all, the die was cast at this point in time, and when you have large companies that have already agreed on the boundaries Affiliated Capital wouldn’t have had a chance, regardless of how qualified it was. But given the fact that there were overlaps and that Affiliated Capital and Houston — I beg your pardon and Gulf Coast were equally qualified, then council could have given this portion that was under contention back to Gulf Coast and given what Affiliated Capital requested to Affiliated Capital. Gulf Coast would have ended up with an even larger section than they have today. And if you wanted to assume that Westland was equally as well qualified, and that had been granted to Westland and this portion had been granted to Gulf Coast and Affiliated Capital would have been given the area that they had applied for, Gulf Coast today would have had still a larger area than it has. Testimony of Martin Malarkey, February 5, 1981. The expert witness also discussed the reasons he believed that an applicant would have incentive not to engage in competition with another applicant for the same area: Q Based upon your experience in cable television was it in the economic interest of each applicant in this market to avoid competing with the other applicants for the same territory? A It certainly was. Q Sir, have you prepared a list of the reasons you believe an applicant has an incentive not to engage in competition with another for the same area? Q Mr. Malarkey, this chart, which reads, “Incentive for Applicants to Agree on Areas That They Will Seek,” will you describe for us, sir, what the first incentive is? A Well, the first one, in effect, says let’s avoid having any losers altogether, in effect. Let’s just have winners in this process; avoid one of the applicants being denied a franchise or getting less than the desired area. Q Could you explain to us, sir, what the second incentive to avoid competition would be? A Well, that is fairly self-explanatory. I said here avoid the need to compete on the merits, as to the ability and services and the rates offered. In a highly competitive procedure there would have been very substantial competition with regard to the — not only the financial aspect, but the services, the programming to be offered and the charges that they were going to ask for those services. That was completely out, here in Houston. Q And the third factor, sir? A Well, as I understand it, a referendum in the State of Texas only requires a rather limited number of signatures, and the applicants here in Houston have been pretty well divided up, and the last thing in the world they wanted to face is a referendum, which would upset these procedures and perhaps force the City to go into a competitive franchising process. Testimony of Martin Malarkey, February 4, 1981. A review of that testimony indicates that the expert believed that one reason applicants might wish to agree on territories is that they thereby would ensure their own success and a second reason is that they would not have to compete on other franchise terms. Thus, plaintiff elicited testimony from its expert which demonstrates that the boundary agreements were the foundation of and incentive for not only the objective of the conspiracy but also the other agreements among applicants which prove the existence of the conspiracy. The Court perceives that evidence as being in direct contradiction to plaintiffs assertion that, “The jury could have concluded that the boundary agreements were not ‘part of’ the conspiracy because all competition between the applicants had already been eliminated by agreement not to compete on franchise terms. Once the successful applicants agreed not to compete against each other on the merits and to limit competition from outsiders, boundary agreements were simply incidental to and not ‘part of’ the conspiracy.” Although plaintiff appropriately can argue that the jury is free to consider any reasonable inference from the evidence, including that above, what plaintiff’s expert described to the jury was a reverse situation from what plaintiff now argues was inferred by the jury: the applicants agreed on boundaries for the reason that they thereafter, and consequently, would ensure their success and would not have to compete on other terms. The jury’s finding that the boundary agreements, which plaintiff’s evidence demonstrated were the essential factor in plaintiff’s failure to get its franchise approved, leaves plaintiff in the dilemma of having proved that a second theory of conspiracy existed to exclude non-conspirators and to limit competition among co-conspirators, but of having presented no proof other than that of boundary agreements which connects that conspiracy to plaintiff’s failure to obtain its franchise. Plaintiff’s expert then proceeded to explain what he ascertained were the results of Houston’s non-competitive franchising process, which he previously had characterized as non-competitive on the ground that territorial overlaps had been eliminated. None of those results tended to show a connection between the conspiracy the jury found and plaintiff’s injury. The only result articulated by Malarkey which might relate to plaintiff’s injury is the first: “Applicants were not considered on the merits.” Malarkey explained that result as meaning that “there was absolutely no consideration given to the merits of each of the applicants with regard to programming, prices to be charged, technical aspects. Of course, the financial aspect.” Testimony of Martin Malarkey, February 4, 1981. That result, however, cannot be relied upon to establish the necessary connection, because Malarkey also testified that all applications, including plaintiff’s, were well below standard and not at all informative as to many important aspects of a franchise application. The only factor on which Malarkey concluded that plaintiff was better qualified than any of the five ultimately successful applicants was plaintiff’s financial capability to build the cable system that it had applied for. Thus, the only conclusion that reasonably can be inferred from the expert’s testimony is that none of the applications was considered on the merits because the five successful applicants had eliminated that necessity by entering into boundary agreements and thereby presenting a ready-made package to City Council. The evidence recited herein constitutes all of the evidence which plaintiff presented on causation. The Court concludes that none of the evidence tends to demonstrate any cause for plaintiff’s failure to be awarded a franchise other than the fact that the successful applicants made agreements with regard to what territories they would seek. Accordingly, the jury’s affirmative answer to Interrogatory No. 5 on causation is totally unsupported by probative evidence in the record of this trial, and cannot be upheld. IV. The Propriety of Injunctive Relief Plaintiff has requested two forms of injunctive relief: (1) prohibition against further agreements in restraint of trade; and (2) voiding of the franchise granted to Gulf Coast. Plaintiff asserts that it has standing to obtain both types of injunctive relief, and that with regard to the voiding of Gulf Coast’s franchise, plaintiff has standing both as a competing applicant and as a potential consumer of cable television services in the area awarded to Gulf Coast. Having been denied its motion for entry of judgment, plaintiff is not entitled to any form of injunctive relief; however, the Court engages in the following analysis to demonstrate that, even had plaintiff prevailed, it would not have been awarded injunctive relief in any form for the reason that plaintiff lacks standing to seek such relief. Injunctive relief pursuant to the antitrust laws is “available even though the plaintiff has not yet suffered actual injury...; he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969) (cita tions omitted). “[A] private plaintiff may obtain injunctive relief against such violations only on a showing of ‘threatened loss or damage’; and this must be of a sort personal to the plaintiff.” United States v. Borden Company, 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954) (citation omitted). A private plaintiff “must not only show the violation of the antitrust laws, but show also the impact of the violations upon him, /. e., some injury (or threatened injury where injunctive relief only is sought) proximately resulting from the antitrust violation.” Credit Bureau Reports, Inc. v. Retail Credit Company, 476 F.2d 989, 992 (5th Cir. 1973) (citations omitted). With regard to the first requested form of injunctive relief, plaintiff makes the following contention: The franchise ordinances are, by their terms, nonexclusive. Accordingly, even in the absence of an order voiding Gulf Coast’s franchise, subsequent applicants — including plaintiff, whose application is still pending — are not precluded from receiving a franchise to serve part of the City of Houston. The jury determined that defendants Mayor McConn, the City of Houston, and Gulf Coast participated in a conspiracy to limit competition for cable television franchises. The City may be called upon to act on an application for a cable television franchise between now and the time the franchises expire by their terms. Moreover, at the expiration of the franchise term, the City will certainly have to act on applications for franchises. Accordingly, it is appropriate that the defendants be enjoined from participating in the future in a conspiracy to limit competition for cable television franchises. With regard to plaintiff’s assertion involving nonexclusive franchises and its still-pending application, the Court observes that plaintiff’s expert witness testified at trial that awarding two (2) franchises for the same area would not be economically feasible. Accordingly, plaintiff’s threatened injury comprised of having its pending application disapproved even if Gulf Coast’s franchise is not voided is extremely remote at best. If Gulf Coast’s franchise is not voided, and plaintiff accepts an award of a franchise within Gulf Coast’s territory, plaintiff would be making a decision contrary to its economic interest. Accordingly, the Court concludes that the likelihood that plaintiff would suffer injury from having its current application turned down cannot constitute the “significant threat of injury” required by the Zenith holding. With regard to plaintiff’s threatened injury at the expiration of the current franchise period, the Court is compelled to point out that Mr. Goldberg testified at trial that he had given up on getting a franchise and wanted only to be compensated for his loss. Further, at the hearing on the post-trial motions plaintiff’s counsel assured the Court that plaintiff would not seek a cable television franchise in Houston, even if Gulf Coast’s franchise were voided and the area for which plaintiff originally had applied became available. In light of that assertion, the Court has difficulty identifying any significant threat of injury to the plaintiff when the current franchises expire. Thus, the Court concludes the plaintiff has failed to identify any threatened injury “of a sort personal to the plaintiff”, as required by the United States Supreme Court in Borden, and plaintiff’s entitlement to seek an injunction prohibiting defendants from participating in agreements in restraint of trade must fail. For the same reasons, plaintiff also is not entitled to seek injunctive relief in the form of voiding Gulf Coast’s franchise. Plaintiff admonishes the Court that it must consider the public interest as well as the private interest in its resolution of the injunction issue. The Court acknowledges that the citizens of Houston likely were injured in the form of receiving inferior cable television services as a consequence of the non-competitive franchise process which is reflected in the record of this cause. The Court’s concern for the public interest, however, is limited by the perimeters of the case before it and cannot obviate in this instance the necessity for plaintiff to have standing to seek injunctive relief. Plaintiff asks, “If this plaintiff does not have standing, what plaintiff would?” This inquiry is rhetorical at best in light of the allegations of plaintiff’s first amended complaint which represent plaintiff only as a competing applicant, and in light of plaintiff’s untimely attempt to amend its complaint further to reflect the status of potential consumer. The latter status, as plaintiff apparently belatedly recognized, provides the answer to plaintiff’s question. As defendant Gulf Coast points out, the relevant antitrust statute “does not dispense with the requirement of standing for a private plaintiff nor does it create attorneys general with authority to vindicate public interests out of private plaintiffs who have no private interests to be served.” In determining that the private injunction action under the antitrust laws supplements and does not supplant Government enforcement of the antitrust laws, the Borden Court observed that “it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. ... the private plaintiff may be expected to exercise [his injunctive remedy] only when his personal interest will be served.” United States v. Borden Company, supra, 347 U.S. at 518, 74 S.Ct. at 706. Having brought suit as a competing applicant to serve its personal interest of recouping money damages for loss of its franchise, plaintiff may not now persuade the Court to grant an injunction either on the basis that the Court has an obligation to act as guardian of the public interest, or on the ground that plaintiff must be permitted belatedly to change its status as well as the complexion of the case so that plaintiff can be characterized as a member of the cable-consuming public. In the current posture of the case plaintiff clearly has no standing to seek injunctive relief. Finally, the Court must agree with defendants that voiding Gulf Coast’s franchise would afford plaintiff an opportunity to seek a double recovery, regardless of whether plaintiff would avail itself of such opportunity. Had the record supported the jury’s verdict, plaintiff would have received actual damages which were calculated on the basis of the fair market value of the franchise plaintiff did not receive. For the Court then to void Gulf Coast’s franchise and thereby enable plaintiff to compete again, and possibly be awarded the opportunity to earn that amount a second time, would provide to plaintiff a double recovery. As a competing applicant, plaintiff elected to pursue a full damage remedy for its injury; injunctive relief is available only when no adequate remedy at law can be obtained. Plaintiff may not have both a remedy at law and one in equity. V. The Immunity/Exemption Doctrines Defendant Gulf Coast contends that even if the acts relied upon by plaintiff to prove the existence of a conspiracy to exclude non-conspirators would support the jury’s finding that such a conspiracy existed, those acts fall within the scope of the Noerr-Pennington doctrine which would render Gulf Coast immune from antitrust liability. See United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (hereinafter Pennington); Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (hereinafter Noerr). Inasmuch as the Court has concluded that the jury verdict in favor of plaintiff cannot be sustained because of the deficiency of evidence of causation, defendant Gulf Coast need not rely on the Noerr-Pennington doctrine to avoid liability. For the same reason, defendants City of Houston and McConn need not rely on the immunity/exemption doctrines which they have asserted preclude their liability, refer to discussion at 1023-1029, infra. Nevertheless, the Court will analyze those doctrines in order to demonstrate that they would have been inapplicable on the current record, even if plaintiff had prevailed on the causation issue. A. Noerr-Pennington Immunity In Noerr, truckers sued their competitors, the railroads, for violations of the Sherman Act which were premised on the railroads’ having conducted a “publicity campaign against truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers.” Noerr, supra, 365 U.S. at 129, 81 S.Ct. at 525. In reversing the judgment holding that the railroads’ campaign had violated the antitrust laws, the Supreme Court held that “at least insofar as the railroads’ campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had.” Id. at 139-40, 81 S.Ct. at 531. Prior to so ruling, the Court had observed that “It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.” Id. at 139, 81 S.Ct. at 530. The Court further found that a contrary construction of the Sherman Act not only would deprive public officials of valuable sources of information on matters affecting their decision-making but also would deprive people of their right to petition with regard to issues significantly affecting their own interests. Id. The Pennington Court reaffirmed and expanded the Noerr doctrine by finding that, regardless of their intent or purpose, joint efforts to influence public officials do not constitute illegal conduct, “either standing alone or as part of a broader scheme itself violation of the Sherman Act.” Pennington, supra, 381 U.S. at 670, 85 S.Ct. at 1593. Pennington involved a counterclaim of a small mine operator which alleged, inter alia, that the labor union and large mine operators had approached the Secretary of Labor and the Tennessee Valley Authority with certain proposals intended to drive small mine operators out of business. The Court found that such acts were exempt from Sherman Act coverage pursuant to the doctrine of Noerr. In both Noerr and Pennington, the Supreme Court articulated circumstances wherein certain activities could be excepted from the protection accorded petitioning, and therefore justify applicability of the Sherman Act. The Noerr Court provided the following exception to the immunity doctrine: “There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Noerr, 365 U.S. at 144, 81 S.Ct. at 533. The Pennington Court noted certain errors which the lower courts had made regarding damages, and in the course of that discussion concluded that “The conduct of the [private parties] did not violate the Act, the action taken to set a minimum wage ... was the act of a public official who is not claimed to be a co-conspirator, and the jury should have been instructed, ... to exclude any damages ... suffered as a result of the [public official’s] ... determinations.” Pennington, 381 U.S. at 671, 85 S.Ct. at 1594 (footnote omitted) (emphasis added). Pursuant to this Court’s analysis of the law on Noerr-Pennington, the jury was instructed fully on the two exceptions to the doctrine. With regard to the co-conspirator exception derived from Pennington, they were charged, in substance, as follows: “Joint efforts truly intended to influence public officials to take official action do not violate the antitrust laws even though the efforts are intended to eliminate competition, unless one or more of the public officials involved was also a participant in an illegal arrangement or conspiracy.” Instruction No. 18. In the same Instruction the Noerr sham exception was explained: “The petitioning activity must be genuine. Protection does not extend to purported petitioning that is in fact a mere sham to cover what actually is nothing more than an attempt to interfere directly with the business of a competitor. That is, protection does not extend to activities that are merely a pretext for inflicting on plaintiff an injury not caused by any governmental action.” Thus, over the objection of Gulf Coast, the jury was permitted to consider two ways in which Gulf Coast would be prohibited from availing itself of Noerr-Pennington immunity, and in answer to Interrogatory No. 3., the jury found that Gulf Coast was not entitled to that immunity. Inasmuch as the Court concludes, for the reasons recited below, that the validity of the public official co-conspirator exception is well supported in the case law, and the justification for invoking the exception clearly is sustained by the record herein, the Court sees no need to analyze the facts of this case as they relate to the second exception, that involving sham activities, which first was espoused in Noerr. In order to relate to this case those decisions in which courts have recognized the co-conspirator exception, the Court will outline the evidence tending to demonstrate that McConn and certain public officials acting as agents for the City not only were involved actively in the conspiracy to exclude non-conspirators but also directed certain of the activities of co-conspirators. The Court concludes that these actions amply demonstrate that McConn did more than merely agree to support the efforts of private conspirators. Cf. Metro Cable Company v. CATV of Rockford, Inc., 516 F.2d 220, 230 (7th Cir. 1975) (Court found that inasmuch as Congress did not intend the Sherman Act to apply to “combined efforts to induce legislative action, [it could not have intended] the Act to apply if a member of the legislative body agreed to support those efforts.” Id. at 230). Preliminarily, the Court points out some of the background of the franchising process that was revealed during trial. The Court acknowledges that such facts are not evidence of the conspiracy; however, they should be brought out not only to demonstrate the elected representatives’ lack of concern for obtaining the best available cable television services for the citizens of Houston, but also to provide at least a partial explanation for the ease with which the conspiracy in restraint of trade was formulated and perpetrated. Plaintiff’s expert witness testified that the franchising process is important in assuring that consumers get the best possible cable television services at the lowest possible rates. He further said that the way for a city to ensure vigorous competition for areas designated for cable television services is to invite applications from everyone who would be interested, and that the customary way for the city’s interest to be exhibited is through advertisements in various trade journals. The expert opined that in 1978, Houston was a very attractive market for cable operators who vigorously would have competed for a franchise. The City, ho