Full opinion text
OPINION AND ORDER LEISURE, District Judge: AD/SAT alleges that defendant Associated Press (“AP”) has violated Section 2 of the Sherman Act, see 15 U.S.C. § 2, by (1) attempting to monopolize the alleged market of electronic transmission of advertisements to newspapers; (2) engaging in monopoly leveraging; and (3) monopolizing the news and wire services markets. In addition, AD/SAT alleges that all defendants in this action have: (1) conspired to boycott plaintiff, in violation of Section 1 of the Sherman Act, see 15 U.S.C. § 1; and (2) conspired to monopolize the alleged market of electronic transmission of advertising to newspapers, in violation of section 2 of the Sherman Act. See 15 U.S.C. § 2. Pursuant to Fed.R.Civ.P. 56, AP moves for summary judgment as to AD/SAT’s Sherman Act § 2 claims against it. In addition, all defendants move for summary judgment as to AD/SAT’s Sherman Act §§ 1 and 2 conspiracy claims against them. Finally, AD/SAT moves for reconsideration of this Court’s April 24, 1995 decision granting defendant the Lexington HeraM-Leadñr’s motion for summary judgment. Based on the following reasons, the Court grants all defendants’ motions in their entirety, and denies AD/SAT’s motion for reconsideration. BACKGROUND This case is about the business of delivering advertisements from advertisers to newspapers. Traditionally, advertisements have been delivered from the advertiser, or advertising agency, to the newspaper by one of several means of physical delivery, including regular mail, messenger service, and overnight delivery service (such as Federal Express). By choosing to spend advertising dollars advertising in newspapers, as opposed to other alternatives such as television and radio, advertisers trigger the demand for delivery service, and they also typically select the means of delivery. In addition, advertisers normally bare the costs of delivery. At the current time, over 80% of all newspaper ads are delivered by overnight services such as Federal Express, with messenger service being the next most popular means of delivery. An alternative means of delivering newspaper advertisements is electronic transmission. Electronic delivery of advertising involves the transmission of copy from advertisers to newspapers via satellite or terrestrial (i.e. land-based) means. Two of the parties in this litigation, AD/SAT and AP, deliver advertisements to newspapers over satellite networks. AD/SAT has been engaged exclusively in this activity since 1986, and it delivers its ads over a satellite network owned and operated by AP. AP, a cooperative association whose members consist of over 1,500 United States newspapers, is primarily engaged in the collection, assembly and distribution to newspapers of news and photographs. Recently, however, AP also began to deliver ads to newspapers electronically, also using its satellite network. Unlike the physical carriers such as Federal Express, which engage in a wide variety of delivery services, AD/SAT’s and AP’s services currently focus exclusively on the delivery of ads to newspapers. AD/SAT argues that AP’s entrance into the business, which allegedly occurred with unlawful conspiratorial assistance from the remaining defendants in this litigation, violated the antitrust laws. Defendant Newspaper Association of America (“NAA”) is a non-profit trade association whose membership consists primarily of general circulation daily newspapers in the United States. NAA has 1,500 member newspapers in the United States and Canada. Its mission is to promote the interests of the newspaper industry, in part by encouraging the development of technological and marketing innovations that will enhance the efficiency and profitability of newspapers. Traditionally, one problem for advertisers advertising in newspapers has been the cumbersome billing process for placing a single ad in multiple newspapers. Formed in the spring of 1994, defendant Newspaper National Network (“NNN”) is a limited partnership among a wholly-owned subsidiary of NAA and 48 of the 50 largest newspapers in the United States by circulation. To help overcome the perception of newspaper advertising as inefficient and cumbersome relative to other multi-market media competitors such as television and radio, NNN has attempted to facilitate the simultaneous placement of advertising, at competitive prices, in all newspaper markets an advertiser wishes to reach. NNN has contracted with Publicitas Advertising Services, Inc. (“Publicitas”) to serve as its “one order/one bill” clearing house for processing multi-newspaper insertion orders. NNN’s goal is to attract new advertisers to newspapers, and it is therefore targeting five categories of national advertisers which typically spend less than five percent of their advertising budgets on newspapers ads. The remaining defendants are individual newspapers or groups of newspapers, and one individual. Defendant Advance Publications, Inc. is owned by the Newhouse family. Defendant Donald E. Newhouse, the president of Advance, was, during times relevant in this litigation, a member of the Board of Directors of AP, and the volunteer Chairman of NAA. Through wholly owned subsidiaries, Advance owns defendants Newark Morning Ledger Co., which publishes The Star-Ledger, and The Birmingham News Company, which publishes The Birmingham News. Cox Newspapers, Inc., a wholly-owned subsidiary of defendant Cox Enterprises, Inc. (“CEI”), publishes fourteen newspapers of general circulation. One of these newspapers is the Dayton Daily News, a Dayton, Ohio newspaper of general circulation, which is owned by defendant Dayton Newspaper, Inc. (“DNI”), a wholly-owned subsidiary of Cox Newspapers. David Easterly, the president of CEI, is a member of the AP Board of Directors, and was a member of an AP Board ad hoe committee which assisted AP’s management in investigating and planning AP’s entry into the electronic advertisement business. Defendant Oklahoma Publishing Company publishes an independent daily newspaper called the Daily Oklahoman in Oklahoma City, Oklahoma. Defendant the News & Observer Publishing Company publishes the News & Observer. Finally, defendant Oakland Press Company publishes The Oakland Press, a daily newspaper in Oakland County, Michigan. A. The AD/SAT System The AD/SAT system requires advertisers or advertising agencies to deliver a hard copy (or Velox) of an advertisement to one of two AD/SAT transmittal stations, which are located in Los Angeles and New York. The ad is then scanned into AD/SAT’s system, and transmitted to the designated newspapers via the AP owned and operated satellite network. Next, the ad is received at each newspaper by an AP satellite dish, and forwarded to an AD/SAT installed and owned recorder, which produces a hard copy of the ad. Each recorder, which is essentially a high speed facsimile machine, costs approximately $62,-000, with additional equipment, necessary to make the recorder operational, costing another $30,000. AD/SAT’s revenue is generated from service fees charged to both newspapers and advertisers. Advertisers are charged per ad transmission, and the amount per transmission decreases as the number of sites to which the ad is sent increases. Because the costs of sending an ad to a single location over the AD/SAT system is much higher than physical delivery of a single ad, the system favors advertisers who send an identical ad to many different locations. Indeed, from its beginnings AD/SAT targeted national advertisers. Al newspapers which joined the AD/SAT network before 1989 pay an annual affiliation fee of $7,500, while newspapers which affiliated with AD/SAT after that date pay an annual fee between $4,500 and $12,500, depending upon the size of the paper’s circulation. In addition, newspapers pay reception fees for each ad received. Depending upon the affiliation agreement, which may have a duration of between three to five years, papers are charged either a flat rate of $28 per ad, or $25 for national ads and $20 for retail ads. Certain newspaper affiliates do not pay a reception fee for retail ads. Of the 50 largest papers in the United States, 48 are AD/SAT affiliates, and of the next 100 largest, 60 are AD/SAT affiliates. While AD/SAT, at least through the date of the filing of this motion, continues to move more ads electronically than any other supplier, it still only delivers a small percentage of all ads placed in newspapers. In addition, AD/SAT has been unable to expand its network of newspaper affiliates. Because of the high fixed costs associated with the recorders, AD/SAT could not afford to waive the high reception and affiliation fees it demanded from newspapers. Therefore, expansion of the newspaper network to additional newspapers could not occur because the limited number of ads received would not justify the high costs. And, because of the limited size of the network, sending ads over the network remained very expensive to advertisers, who would often be compelled to pay quite a high per ad transmission fee. This lack of volume of ads sent over the network continued the necessity of retaining the high affiliation and reception fees to cover the fixed costs. As early as 1990, AD/SAT recognized that the high costs associated with its system would preclude growth. At that time, the then-president of the company, Richard Atkins, made a conscious decision to stop acquiring recorders, and pursue converting the AD/SAT system to a digital one where much less expensive computers could be used as receivers. However, as a result of financial difficulties experienced by its former owner, AD/SAT’s movement into the newly developing digital market was extremely slow. Indeed, for the next several years AD/SAT’s business stagnated. On March 8,1994, Skylight, Inc. purchased AD/SAT for roughly $4.1 million, including the assumption of certain liabilities. The new management, recognizing the existing problems, had plans to “revitalize and expand” the business, which, they assert, would have occurred but for the actions of AP and the other defendants. B. The Development of AdSEND AP began to contemplate entering the business of electronic delivery of advertising in 1991. AP had recently introduced Photo-Stream, a high speed, satellite-based digital delivery system for the transmission of news photographs to newspapers, and saw the electronic delivery of advertising as a natural extension. AP’s approach to the business has been quite different from AD/SAT’s. The approach is premised on the belief that unless AP’s service could compete, both in price and service, with Federal Express and the other overnight delivery services which currently dominate the market, it could not build the network necessary to succeed. Therefore, AP installs reception equipment at the newspapers for free and does not charge the newspapers anything to receive an ad. Like the traditional approach to the business taken by Federal Express and others, all costs associated with the delivery of ads to newspapers are borne by the advertisers. AP’s business plan was approved by its Board in early April 1994, and the project, AP AdSEND, was announced to the public shortly thereafter, on April 25, 1994. The AdSEND system enables advertisers to transmit ads from the computers upon which they were created to the newspaper computers in digital form. Thus, no hard copy of the ad is created until outputted on the newspaper’s imaging equipment, meaning that the ad arrives at the newspaper as a first-generation image, as though it had been printed by the advertiser and physically delivered. While confident with its technical ability to deliver advertisements, AP, as a newcomer, knew very little about its advertising clients or the business of advertising in general. Therefore, along with conducting its own research, AP sought regular advice and assistance from NAA. The primary contact with the NAA was Newhouse, who, as mentioned above, was also an AP Board member, and the president of Advance. Before AdSEND was publicly announced, New-house helped arrange meetings between AP and NAA officials. After learning about Ad-SEND through these meetings, NAA began to encourage and support AP’s efforts to enter the advertisement delivery business. After public announcement of the project, AP requested and received approval from NAA to participate in several NAA-sponsored conferences which focused on NAA’s “one order/one bill” project. As discussed more fully below, this relationship between AP, Newhouse, and the NAA is at the heart of AD/SAT’s conspiracy claim. AD/SAT and AP are not the only companies which deliver ads electronically. Companies such as DigiFlex, Ad eXpress, AdStar, AdLink and Business Link are already in the market, advertisers are beginning to develop their own systems, and there is evidence that the regional Bell companies may soon enter the market. C. Prior Proceedings Plaintiff appeared before this Court on September 14, 1994 seeking a temporary restraining order preventing AP from initiating its AdSEND program. The Court declined to issue the TRO, but ordered the parties to appear before the Court on September 23, 1994, at which time plaintiff’s application for a preliminary injunction barring AP and those in active concert with it from initiating, providing, supplying, engaging in, contributing to or participating in the AdSEND program was denied. On April 24, 1995, this Court issued an Opinion and Order, granting the summary judgment motion of defendant the Lexington Herald-Leader. DISCUSSION I. Summary Judgment in General Fed.R.Civ.P. 56(e) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), and this burden will be satisfied if the movant can point to an absence of evidence to support an essential element of the nonmoving party’s claim. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); Celotex, 477 U.S. at 317, 106 S.Ct. at 2549 (failure of proof concerning essential element of nonmovant’s claim renders all other facts immaterial). If the movant satisfies its burden under Rule 56(c), the nonmoving party must then “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.P. 56(e); see Celotex, 477 U.S. at 317 & n. 3, 106 S.Ct. at 2549 & n. 3. In assessing the record to determine whether there is a genuine issue as to any material fact, the evidence of the nonmovant is to be believed, and all reasonable inferences are to be drawn in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). However, to survive a motion for summary judgment in an antitrust litigation, the non-moving party must set forth facts that tend to preclude an inference of permissible conduct. See Capital Imaging v. Mohawk Valley Medical Assoc., 996 F.2d 537, 542 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 388, 126 L.Ed.2d 337 (1993) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986)). II. AD/SAT’s Sherman Act § 2 Attempted, Monopolization Claim Section 2 of the Sherman Act makes it unlawful for any person to attempt to monopolize any part of interstate trade or commerce. See 15 U.S.C. § 2. To succeed on its § 2 attempted monopolization claim, AD/SAT must establish (1) that AP has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 890-91, 122 L.Ed.2d 247 (1993). A. Dangerous Probability of Achieving Monopoly Power AP argues that AD/SAT’s § 2 attempted monopolization claim cannot succeed because there is not a dangerous probability that it will achieve monopoly power. “A party has monopoly power if it has ‘a power of controlling prices or unreasonably restricting competition.’ ” Hayden Pub. Co., Inc. v. Cox Broadcasting Corp., 730 F.2d 64, 68 (2d Cir.1984) (quoting United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 389, 76 S.Ct. 994, 1003-04, 100 L.Ed. 1264 (1956)). The primary indicator of monopoly power is market share. See Twin Lab., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir.1990). Other factors to consider include the strength of competition in the market, barriers to entry into the market, and the probable development of the industry. See International Distrib. Ctrs., Inc. v. Walsh Trucking Co., Inc., 812 F.2d 786, 792 (2d Cir.) (citing Hayden Pub., 730 F.2d at 68-69), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Before considering the factors necessary to determining whether a defendant has monopoly power in a relevant market, the Court must define the market. See Walker Process Equipment, Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 350, 15 L.Ed.2d 247 (1965) (in a § 2 attempted monopolization claim, definition of relevant market necessary to determine defendant’s ability to lessen or destroy competition). The relevant market may be either a geographic market, or a product or service market. In this case the parties concede that the geographic market is the United States, but contest the definition of the relevant service market. In its First Amended Complaint, AD/SAT states that the relevant market in this action is the electronic transmission of newspaper advertising. See Plaintiffs First Amended Complaint ¶22. While some of the language is ambiguous, in its opposition papers to defendants’ motions, AD/SAT appears to alter its definition of the relevant market in this action. Relying on the affidavit of its expert witness, Dr. William S. Comanor, AD/ SAT limits its definition to a “rush” market for advertisement delivery, where only providers which can deliver ads in less than three hours compete. See Affidavit of William S. Comanor in Opposition to Summary Judgment Motion (“Comanor Aff.”) ¶¶ 8, 10. Regardless, neither relevant market offered by AD/SAT is persuasive. Rather, consistent with the conclusion offered by this Court in denying AD/SAT’s motion for a preliminary injunction, the Court finds that the relevant market in this action is the delivery of advertisements by any means. The Supreme Court, in duPont, 351 U.S. at 404, 76 S.Ct. at 1012, defined the relevant market as consisting of “products that have reasonable interchangeability for the purposes for which they are produced— price, use and qualities considered.” Id.; see also Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327-28, 81 S.Ct. 623, 627-28, 5 L.Ed.2d 580 (1961) (relevant market defined as the “areas of effective competition” within which defendant operates); Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90 Colum.L.Rev. 1805, 1806 (1990) (“ ‘definition of relevant market’ is an attempt to describe the array of firms that currently produces or potentially will produce products that are sufficiently close substitutes to take business away from any firm or group of firms that attempts to exercise market power.”). Products or services need not be identical to be considered reasonably interchangeable. See duPont, 351 U.S. at 394, 76 S.Ct. at 1006-07 (“where there are market alternatives that buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others.”). Rather, determination of whether a product or service is reasonably interchangeable requires consideration of the cross-elasticity of both demand and supply. If customers would respond to a small price change in a product by changing to another product, then there is a high cross-elasticity of demand between the products. In such a case, the products are reasonably interchangeable, and therefore compete in the same market. See United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966); Brown Shoe, 370 U.S. at 325, 82 S.Ct. at 1524; duPont, 351 U.S. at 400, 76 S.Ct. at 1009-10. Cross-elasticity of supply refers to “the extent to which producers will be willing to shift their resources from supplying a product or service in one market to supplying a product or service in a different market in response to price changes in the second market.” Associated Press’ Memorandum of Law in Support of Summary Judgment at 23 (citing Telerate Sys., Inc. v. Caro, 689 F.Supp. 221, 237-38 (S.D.N.Y.1988)). Determining the cross-elasticity of supply also requires consideration of new, start-up entities which may enter a market. The evidence supports the conclusion that the relevant market in this case is the delivery of advertisements by any means. First, it is undisputed by both AD/SAT and AP that currently the predominant method of advertisement delivery is provided by overnight services such as Federal Express. AD/ SAT’s President David Hilton so stated in his deposition. See Deposition of David A Hilton at 822. Indeed, a business plan prepared by AD/SAT’s own consultants, Bain & Company, found that over 80% of all ad delivery services is provided by overnight carriers. See DX 2 at 750; Deposition of Sam Rovit at 315. Considering the extensive financial resources and existing capital, both human and physical, possessed by overnight carriers as Federal Express and the United States Postal Service, it is not surprising that they deliver such a large percentage of the ads sent to newspapers. Whatever their limitations, these services have developed and earned reputations for dependability and timeliness. Since its inception, as revealed by the deposition testimony of its founder and first president, Neil Hayden, AD/SAT understood that it is in competition with Federal Express and other overnight couriers. See Deposition of Neil S. Hayden at 178. While it is true that AD/SAT viewed AP and other electronic delivery providers as its primary competition, because it viewed electronic delivery as the wave of the future, the Bain Report reveals that AD/SAT knew that capture of some of the customers of the overnight couriers was necessary to the expansion of AD/ SAT’s network, which was essential to AD/ SAT’s survival. AD/SAT, however, has been unable to compete in that market because its high capital costs have precluded it from pricing its service at rates comparable to Federal Express and other physical delivery sources. While overnight carriers such as Federal Express charge advertisers $7 to $15 per ad, see Affidavit of Patrick T. O’Brien in Support of Summary Judgment (“O’Brien Aff.”) Ex. D at 7, 8, AD/SAT charges advertisers between $20 and $80 for each non-express ad delivered. Once the affiliation and reception fees charged to newspapers are added to the total cost, it is obvious that AD/SAT’s prices are not competitive with overnight carriers. The fact that, nearly a decade after AD/SAT began delivering ads electronically, over 80% of ads are still delivered by physical means, with messenger service being the next most popular means of delivery, indicates that AD/ SAT’s inability to price competitively with physical carriers precluded it from succeeding in its goal to expand the size of its network, and the volume of ads it delivered. While it is true that electronic delivery of ads provides benefits which physical delivery cannot provide — such as greater speed and reliability in all weather conditions — the continued dependance upon physical means of delivery is evidence that, unless priced competitively, electronic services will not be accepted by the market. In contrast to AD/SAT, AP entered the market knowing that a pricing scheme which was competitive with the overnight carriers is essential to success. See Affidavit of Terry M. Walcott, Esq., in Opposition to Summary Judgment (“Walcott Aff.”) Ex. 123 at 3, 6; O’Brien Aff. ¶ 8. As noted above, newspapers pay nothing to receive ads over the AdSEND system. In addition, advertisers, depending upon the number of ads sent in a given year, pay between $4 and $8 for ads delivered within a 12-hour period, and $6 and $12 for ads delivered within a 4-hour period. See AP’s Reply Memorandum in Support of Summary Judgment at 11 n. 11. AP realized the key to success would be quickly to establish a large network of advertisers and papers using AdSEND. The only way to achieve this goal was to provide a more effective service at competitive prices. AD/SAT’s primary objection to AP’s argument that AdSEND’s pricing structure reveals a high cross-elasticity of demand in the delivery of advertisements by any means market centers around the fees charged by AP for ads delivered within one hour. AD/ SAT concludes that because AP charges $40 per ad for ads delivered within one hour, regardless of the volume of ads sent, “AP effectively acknowledges that there is a distinct class of buyers who cannot use overnight delivery methods and is willing to pay substantially more for rush delivery.” AD/ SAT supplements this conclusion by noting that, according to its rate cards, it charges a premium price of $58 for ads delivered within three hours. In essence, as stated above, AD/SAT appears to be arguing that these “rush” services, for which all parties admit there is no non-electronic substitute deliverer, constitutes a separate market. For several reasons, the Court is not persuaded by this argument. First, despite the statements made by Dr. Comanor, see Coma-nor Aff. ¶ 33, the Court finds that AD/SAT has not identified a class of advertisers for which this service is a regular necessity. Indeed, AD/SAT has supplied no evidence that even one advertiser requires rush delivery on a regular basis. Certainly it is true that there will be a certain class of situations where express service is needed — namely, when advertisers, by some happenstance, fail to get an ad prepared in a timely fashion. But this is insufficient to create a market for the service. Considering that for years AD/ SAT was the exclusive provider of this rush service, if it were anything but an emergency remedy used occasionally by a wide range of advertisers, one would think that AD/SAT would have prospered. However, the opposite happened. AD/SAT’s own acknowledgment of the need to increase the volume of its deliveries by reducing its fees in order to survive indicates that there is not a steady class of advertisers who need regular express service. It is true that AP projects that 30% of its ads will be delivered on a rush schedule, and a premium price of $40 per ad will be charged for such service. Again, however, there is no evidence that any advertisers will use the rush service on a regular basis. Indeed, AP’s strategy is to price its four-hour and overnight service at levels comparable to the dominant overnight carriers. The availability of a rush service, without evidence that there is a class of advertisers who will regularly use it, is simply a supplemental feature of AP’s service which is intended to convince advertisers to use AP’s service, as opposed to Federal Express or another deliverer. This does not create a separate market for antitrust purposes because products or services need not be fungible to compete in the same market. See United States v. Continental Can Co., 378 U.S. 441, 449, 84 S.Ct. 1738, 1743, 12 L.Ed.2d 953 (1964) (relevant market defined not by product fimgibility, but by meaningful competition). AD/SAT’s current contracts with some of its larger advertiser clients reveals that its rush service is simply an additional aspect of a larger package to attract advertiser customers. In many of these contracts the advertiser does not pay any additional fee for rush delivery, up to a certain number of advertisements. See Hilton Aff.Ex. E. (reproducing six AD/SAT contracts which support stated proposition). For example, AD/ SAT’s current contract with Lord & Taylor, one of its major clients, provides that Lord & Taylor will pay an annual fee of $184,000, which entitles Lord & Taylor to send up to 8,250 ads. Of those 8,250 ads, 800 may be sent priority service at no extra charge, with a $20 premium per ad beginning thereafter. From this it seems evident that AD/SAT’s rush service is simply one aspect of a larger package of services which AD/SAT offers in an attempt to succeed in the competition for advertiser dollars. In sum, both AD/SAT and AP admit that they are in competition with non-electronic ad delivery providers. Furthermore, AP, after studying the ad delivery business before entering the market, has priced its service to compete with Federal Express and other physical deliverers. Therefore, the Court finds high cross-elasticity of demand in the market of the delivery of advertisements by any means. Because AD/SAT cannot identify any class of advertisers which consistently depend upon the availability of rush services which only electronic deliverers can provide, the premium charged for such services does not create a separate market. Rather, the ability to provide rush delivery is simply an additional feature of the overall service for an advertiser to consider in choosing which ad deliverer to use. The Court also finds high cross-elasticity of supply in this market. As mentioned above, the current dominant deliverers of newspaper ads, the overnight carriers, are large companies with great financial strength and businesses which extend well beyond this market. It is simply implausible to think that the development and implementation of AP AdSEND could drive these competitors out of the ad delivery business. It certainly could not drive them completely out of business. Therefore, even if driven out of the ad delivery business, if AP attempted to exercise market power by raising prices to supra-competitive levels, the overnight carriers could easily and quickly reenter the market. In addition, the barriers to entry into this market, as AD/SAT conceded in its First Amended Complaint, are low. As noted supra p. 1295, not only are electronic deliverers such as DigiFlex, Ad eXpress, AdStar, AdLink and Business Link already in the market, but advertisers are beginning to develop their own systems, and there is evidence that the regional Bell companies may soon enter the market. In short, there is high cross-elasticity of supply in the market defined by the Court. Having determined that the relevant market in this case is the delivery of advertisements by any means, it is evident that AP lacks sufficient monopoly power to allow AD/ SAT’s § 2 attempted monopolization claim to survive the instant motion. Reviewing the factors to consider in determining market power which were set forth supra p. 1296, the Court first notes that AP, a new entrant into a market where over 80% of all ads are delivered by overnight carriers, obviously possesses an insignificant market share. While the Court of Appeals for the Second Circuit is unwilling to base market power determinations solely on market share data, see Broadway Delivery Corp. v. United Parcel Service of America, Inc., 651 F.2d 122, 128 (2d Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981), such data is treated as strong evidence of the absence or presence of market power. See id. Many courts in the Second Circuit have found market shares of less than 50% or even 60% insufficient to support an attempted monopolization claim. See id. (citing cases). In Twin Lab., 900 F.2d at 569, the Second Circuit stated that “[w]e have held that a 33% market share does not even approach the level required for dangerous probability of success.” (citing Nifty Foods Corp. v. Great Atl. & Pac. Tea Co., 614 F.2d 832, 841 (2d Cir.1980)). Another factor to consider in determining monopoly power, competition in the market, also weighs heavily against AD/SAT’s attempted monopolization claim when one considers the strength of competitors such as the overnight carriers. In addition, as mentioned above, the barriers to entry into the market are low. See United States v. Waste Management, Inc., 743 F.2d 976, 983-84 (2d Cir.1984) (in market where barriers to entry were insubstantial, projected 48.8% market share of company after merger insufficient to support a finding of monopoly power). Finally, while predictions about developments in this industry would be speculative at this time, assuming, as AD/SAT and AP do, that electronic transmission is the wave of the future, the low barriers to entry for providers using this method of delivery does not create any inference that AdSEND will establish market power. AD/SAT cannot show that there is a dangerous probability of AP achieving monopoly power in the delivery of newspaper advertising market. Therefore, an essential element of its § 2 attempted monopolization claim fails and, accordingly, summary judgment is appropriate. B. Predatory or Anticompetitive Conduct In order to prove an attempted monopolization claim, a plaintiff must show that a defendant engaged in predatory conduct. In this ease, AD/SAT asserts that AP engaged in such conduct by (1) prematurely announcing and implementing the AdSEND program; (2) engaging in predatory pricing; (3) leveraging its news and photo monopolies; and (4) participating in a concerted refusal to deal with other defendants. The leveraging and refusal to deal claims are discussed in sections III and V, respectively, of this Opinion and Order. The Court will now address, separately, the premature announcement, essential facilities, and predatory pricing claims. 1. Premature Announcement of AdSEND AD/SAT asserts that AP engaged in anticompetitive conduct in furtherance of its attempt to monopolize the market by prematurely announcing and implementing Ad-SEND, “at a time when AP knew that Ad-SEND was not and would not be functional,” Pl’s.Opp. at 82-83, with the “express purpose of foreclosing competition from AD/SAT and other electronic delivery services.” Id. at 83. The facts of this case do not support such a claim. When publicly announcing AdSEND on April 25, 1994, AP stated that the program would be tested over the summer and launched in September. Testing was done in the summer, and while glitches remained in the system throughout the fall of 1994, see PX 775, 778, 786, the system was operating successfully shortly after the time AP projected. See Affidavit of Thomas Brettingten in Support of Summary Judgment ¶¶4-8. Regardless, as conceded by AD/SAT, preannouncement of a product or service constitutes predatory conduct only when the announcement is knowingly false. See MCI Communications v. American Tel. & Tel. Co., 708 F.2d 1081, 1128-30 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); see also Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 287-88 & n. 41 (2d Cir.1979) (unless it amounts to deception, advertising by competitor with significant market share showing product in best light cannot be anticompetitive conduct), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). There is no evidence in this ease to support the claim that AP knowingly made false statements in announcing AdSEND, and there is some evidence to contradict it. See PX 775 (document indicates that AP officer involved with AdSEND unaware of production problems). 2. Predatory Pricing A predatory pricing scheme is “ ‘the deliberate sacrifice of present revenues for the purpose of driving rivals out of the market and then recouping the losses through higher profits earned in the absence of competition.’” Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76, 86 (2d Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 654 (1982) (quoting 3 P. Areeda & D. Turner, Antitrust Law ¶ 711b, at 151). The Supreme Court recently held that, in attempting to establish a predatory pricing scheme, a plaintiff must first show that the prices charged by a defendant are “below an appropriate measure of its [ ] costs.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222, 113 S.Ct. 2578, 2587, 125 L.Ed.2d 168 (1993). However, in Brooke Group, the Court, as it had before, declined to resolve the lower courts’ conflict over the appropriate measure of costs. See id. at 223 n. 1, 113 S.Ct. at 2587 n. 1; see also Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 117, 107 S.Ct. 484, 493, 93 L.Ed.2d 427 (1986); Matsushita, 475 U.S. at 585 n. 8, 106 S.Ct. at 1355 n. 8. The total cost of production may be divided into two rough categories — fixed costs, which are borne by the firm whatever level of output it produces, and variable costs, which vary with the level of output. See Northeastern Tel., 651 F.2d at 88. Fixed costs typically include some management expenses, interest on bonded debt, depreciation occasioned by obsolescence, property taxes, insurance and other irreducible overhead. Variable costs typically include such items as materials, fuel, labor, use-depreciation, royalties and license fees, and repair and maintenance. Average variable cost is the sum of all variable costs divided by the level of output. Marginal cost is the increase in variable cost that results from an extra unit of output. Fixed and variable costs are considered backward-looking “accounting costs,” because they are “determined using data generated by conventional accounting methods.” See id. at 87. In other words, they can be determined by looking at financial reports, such as a balance sheet. On the other hand, marginal cost “cannot be determined using data generated by conventional accounting methods.” Id. Rather, marginal cost is determined by taking a forward-looking view of the firm, and has therefore been described as an “economist’s construction.” Id. Another cost which cannot be determined by traditional accounting methods, but which is normally considered by a firm in making decisions regarding future activity, is the cost of capital. “The term “cost of capital” is widely used in the literature of investment decision-making and generally refers to the minimum rate of return which a firm requires as a condition for undertaking an investment.” Victor Brudney & William W. Bratton, Brudney and Chirelstein’s Corporate Finance 449 (4th Ed.1993). If the rate of return on a proposed investment exceeds this rate of return, then the investment should be accepted by the firm, and if the investment is accepted, the value of the firm increases. See id. Because determination of the rate of return of a proposed investment requires assessing the risk of the proposed investment, see Comanor Aff. ¶ 21, determining the cost of capital requires assessing the risk of the proposed investment. Thus, while cost of capital is a tool with which a manager can measure the wisdom of a proposed investment, the tool, and the projected possible outcomes of the proposed investment, are all matters of art, not science. The Second Circuit has held, following the test set forth by Philip Areeda & Donald F. Turner, see Phillip Areeda & Donald F. Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697, 716-18 & 733 (1975), that the appropriate measure of cost in a predatory pricing case is average variable cost. See Northeastern Tel., 651 F.2d at 88 (2d Cir.1981). Thus, when a seller prices below reasonably anticipated average variable cost predatory pricing is presumed, see Irvin Indus., Inc. v. Goodyear Aerospace Corp., 974 F.2d 241, 245 (2d Cir.1992) (citing Areeda & Turner), and prices above average variable cost are presumed non-predatory. See Northeastern Tel., 651 F.2d at 88. Application of the Northeastern Telephone rule is fairly straightforward in a typical predatory pricing case. However, the facts of this case alow AD/SAT to make an argument which purports to follow the rule, yet circumvents it. AP is a new entrant into the newspaper advertising delivery business. Both AD/SAT and AP agree that the appropriate time from which to calculate the costs of the AdSEND program is when it was presented to the AP Board for approval. Because variable costs, by definition, are those avoidable costs incurred as a result of an increase in output, where a new business is being considered all costs are avoidable and therefore variable. Thus, all costs associated with AdSEND are variable because the AP Board could have decided not to pursue the program at all and thereby avoided all of AdSEND’s costs. See Deposition of Almarin Phillips at 80, 81, 83, 89-91, 184-86, 190. From the universal premise that “all costs are variable,” AD/SAT argues that AP’s cost of capital with respect to AdSEND is a variable cost, and therefore, following Northeastern Telephone, should be considered in determining whether or not the program is predatorily priced. From this, AD/SAT concludes that the AdSEND program is predatorily priced if AP’s projected internal rate of return for the investment is lower than its projected cost of capital. AD/SAT’s conclusion is inconsistent with the reasoning offered by the Northeastern Telephone Court to support its conclusion that the appropriate measure of cost in a predatory pricing case is average variable cost. In reaching this conclusion, the Northeastern Telephone Court acknowledged, following Areeda & Turner, that “the relationship between a firm’s prices and its marginal costs provides the best single determinant of predatory pricing.” Northeastern Tel., 651 F.2d at 88. The Court, however, refused to apply marginal cost. Again following Areeda & Turner, the Court reasoned that because it cannot be determined from conventional accounting methods, see id., application of marginal cost to predatory pricing claims would produce administrative difficulties for courts. By refusing to apply the best determinant of predatory pricing due to its difficulty of application, the Northeastern Telephone Court took a cautious approach to predatory pricing schemes which is consistent with the Supreme Court’s approach. It must be remembered that the antitrust laws are designed to protect competition, not competitors. See Brown Shoe, 370 U.S. at 320, 82 S.Ct. at 1521. Under normal circumstances, the lowering of prices stimulates competition. Because ‘“the mechanism by which a firm engages in predatory pricing,’ ” is also lowering prices, a mistaken inference of predatory pricing is extremely costly because it “ ‘ “chill[s] the very conduct the antitrust laws are designed to protect.” ’ ” Brooke Group, 509 U.S. at 226, 113 S.Ct. at 2590 (quoting Cargill, 479 U.S. at 122 n. 17, 107 S.Ct. at 495 n. 17 (quoting Matsushita, 475 U.S. at 594, 106 S.Ct. at 1359-60)). Taking a cautious approach is an especially appropriate response to the instant theory of predatory pricing offered by AD/SAT. By asking the Court to consider cost of capital in determining predatory pricing, AD/SAT is asking the Court to evaluate the risks associated with, and the value of, AP’s AdSEND venture. Because determining the risk of an investment requires sophisticated business judgment, the exercise of which still cannot afford a certain answer, such activity by this Court could indeed “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Id. In short, a firm’s use of cost of capital is a means of measuring the wisdom of an investment, and the Court declines the invitation to review the wisdom of AP’s decision to launch AdSEND. Even if the Court were to agree with AD/SAT that cost of capital should be considered in determining whether AdSEND is predatorily priced, a reasonable jury still could not find AP liable for predatory pricing. A successful predatory pricing claim requires a plaintiff to demonstrate that a defendant “had a dangerous probability of recouping its investment in below-cost pricing.” Brooke Group, 509 U.S. at 224, 113 S.Ct. at 2588. For recoupment to occur, the below cost pricing must be able to drive competitors from the market, see id. at 225, 113 S.Ct. at 2589, allowing the offender to obtain enough market power to sustain “[monopoly] prices long enough to earn in excess profits what they earlier gave up in below-cost prices.” Matsushita, 475 U.S. at 590-91, 106 S.Ct. at 1358. Determining the likelihood of recoupment of predatory losses requires, among other considerations, “a close analysis of ... the structure and conditions of the relevant market.” See Brooke Group, 509 U.S. at 225, 113 S.Ct. at 2589. If such analysis reveals a market which is “highly diffuse and competitive, or where new entry is easy,” see id., then a reasonable jury could not conclude that the alleged scheme would maintain monopoly pricing for a sustained period of time because monopoly pricing is only possible with monopoly power. See id. Indeed, if competitors of the business pricing below cost are not driven out of the market, then the “predatory pricing produces lower aggregate prices in the market”, and “the unsuccessful predation is in general a boon to consumers.” Id. at 224, 113 S.Ct. at 2588. Because the relevant market in this case is the delivery of advertising to newspapers by any means, the Court finds that even if the AdSEND program is predatorily priced, AP would be unable to recoup its losses. The market in this case is highly competitive. It is extremely unlikely that AP could predatorily price AdSEND and drive competitors out of the market, thus allowing AP to price AdSEND at monopoly prices. Even if that occurred, no reasonable juror could find that AP could sustain monopoly power long enough to recoup its losses. As noted above, the business of the overnight carriers is not limited to the delivery newspaper advertisements. Thus, an AP predatory pricing scheme would not drive them entirely out of business, meaning that reentry by the overnight carriers would be easy and quick if AP began to charge monopoly prices. Again to repeat, the barriers of entry into this market are low, which provides further evidence that AP’s predatory pricing scheme could not succeed, as monopoly prices would result in new competitors entering the market. In short, considerations of the relevant market in this case mandate summary disposition of AD/ SAT’s predatory pricing claim. See Brooke Group, 509 U.S. at 225, 113 S.Ct. at 2589. In summary, because cost of capital should not be considered in determining whether AP has priced below average variable cost, AD/ SAT cannot show that the AdSEND program was predatorily priced. In addition, even if predatorily priced, because the relevant market is the delivery of advertisements by any means, AD/SAT cannot show a dangerous probability of recoupment. III. AD/SAT’s Section 2 Monopoly Leveraging Claim In its First Amended Complaint, AD/SAT alleges that AP leveraged its monopoly power in the wire services news transmission market and the wire services photo transmission market to unlawfully gain a competitive advantage in the electronic delivery of newspaper advertising submarket. See First Amended Complaint ¶ 32. AP assumed for the purposes of this motion that it has monopolies in the wire services news and photo markets. The Second Circuit first recognized a separate § 2 claim for monopoly leveraging in Berkey Photo, 603 F.2d at 274. “Monopoly leveraging is where a party uses its monopoly power in one market to distort or affect competition in another market.” Ortho Diagnostic Sys., Inc. v. Abbott Lab., Inc., 822 F.Supp. 145, 153 (S.D.N.Y.1993); see Twin Lab., 900 F.2d at 571. A defendant need not monopolize or even attempt to monopolize the second market to be liable for monopoly leveraging. See Virgin Atl. Airways, Ltd. v. British Airways, PLC, 872 F.Supp. 52, 65 (S.D.N.Y.1994). However, there must be a “tangible harm to competition” in the second market. Twin Lab., 900 F.2d at 571; see Berkey Photo, 603 F.2d at 276 (citing Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 608-09, 73 S.Ct. 872, 880-81, 97 L.Ed. 1277 (1953)) (substantial amount of competition in second market must be foreclosed). Dicta in the Twin Lab. case called into question the applicability of a Berkey Photo monopoly leveraging claim in a case which does not involve a tying allegation. See also Soap Opera Now, Inc. v. Network Pub. Corp., 737 F.Supp. 1338 ,1344 (S.D.N.Y.1990) (citing Twin Lab. for the stated proposition). In antitrust law, a “tying” claim involves the tying of the sale of one product or service to the sale of another product or service for which the seller has a monopoly. For example, in International Salt Co., Inc. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947), the seller had patents on two machines for utilization of salt products. Because these patents created a limited monopoly, leases which required purchasers to buy the seller’s salt as well as his machines were declared an unlawful restraint of trade in violation of § 1 of the Sherman Act because competition in the relevant salt market was foreclosed. See id. at 395-96, 68 S.Ct. at 14-15. The instant case does not involve “tying” because there is no evidence that AP is conditioning any of its other services on the use of AdSEND. Following the suggestion by the Second Circuit in Twin Lab., the Court views with skepticism AD/SAT’s monopoly leveraging claim. The evidence supplied by AD/SAT to support its claim does not convince the Court that its skepticism is unwarranted. The Berkey Photo Court emphasized that a firm “does not violate § 2 simply by reaping the competitive rewards attributable to its efficient size, nor does an integrated business offend the Sherman Act whenever one of its departments benefits from association with a division possessing a monopoly in its own market.” Berkey Photo, 603 F.2d at 276. AD/SAT’s purported evidence of monopoly leveraging indicates that any benefits AP may have in the advertising delivery business are lawful. Of the seven examples of leveraging listed by AD/SAT on page 61 of its memorandum in opposition to summary judgment, numbers one, three, four, and five will be discussed here. AD/SAT’s first example of leveraging is that AP subsidized the cost of advertisement reception equipment, for which it does not charge newspapers, through member-owner assessments. There is simply no proof that this happened. Moreover, AP asserts that it keeps title to the equipment, and merely allows papers to use it in order to join the AdSEND network. Therefore, this assertion cannot support a monopoly leveraging claim. As a third example, AD/SAT states that AP leveraged off its preexisting satellite network to convince advertisers that it could offer access to all United States newspapers. As a fourth example, AD/SAT states that AP used its bureau chiefs and news and photo personnel to solicit advertisers and newspapers for Ad-SEND. None of these examples can sustain a monopoly leveraging claim because they do not turn on AP’s being a monopoly in the original markets. Indeed, this is simply normal business development which is to be expected by any competitor entering a new business. AP may be taking advantage of its resources and its good will, but doing so does not violate the antitrust laws. AD/SAT also alleges that AP unlawfully leveraged off its monopolies by reminding its members that using AdSEND would be good for them because they are member owners. First, the Court notes that AD/SAT offers no support to defend this claim. To the extent that this claim collapses with AD/SAT’s conspiracy allegations, it will be discussed below. See infra part V.A. Again, however, it should be clear that this conduct is not an exertion of monopoly influence because it does not turn on AP having a monopoly in either the news or photo markets. In addition, it does not affect competition in the electronic delivery of advertisement market. Therefore, the Court grants AP’s motion for summary judgment as to AD/SAT’s monopoly leveraging claim. IV. Unlawful Monopolization of the News and Photo Markets AD/SAT also asserts a § 2 unlawful monopolization claim. A claim for unlawful monopolization has two elements: “‘(1) the possession of monopoly power in the relevant market and (2) the wilful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’ ” Ortho Diagnostic, 822 F.Supp. at 153 (quoting Grinnell, 384 U.S. at 570-71, 86 S.Ct. at 1703-04). In this case, AD/SAT argues that AP’s entry into the advertising delivery market was a “defensive strategy” employed to prevent others, including AD/SAT, from entering the news and photo markets, thereby protecting AP’s existing monopolies in those markets. AD/SAT finds justification for its argument from internal AP documents, which include statements like the following: “Once someone else has built a network for digital delivery of advertising, they will have in place the infrastructure to deliver anything else.” PX 36 (internal memorandum from AP vice president John Reid to AP president Lou Boceardi). The Court first notes that this claim was not pleaded in AD/SAT’s First Amended Complaint. AP only conceded that it had monopoly power in the news and photo markets for the purposes of this motion. It is improper for AD/SAT to attempt to prove an essential element of a claim not in its complaint by way of this concession. Regardless, the monopolization claim must fail because AD/SAT lacks standing to assert it. The right of private parties to file claims under the federal antitrust laws derives from two sections of the Clayton Act. 15 U.S.C. § 12 et seq. Section 4 of the Clayton Act provides in relevant part that “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court in the United States ... and shall recover threefold the damages by him sustained.” 15 U.S.C. § 15. In relevant part, section 16 of the Clayton Act states that “[a]ny person ... shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C. § 26. A literal reading of these sections would provide a remedy to “any person” who has suffered an injury-in-fact from an antitrust violation. However, one step courts have taken to narrow the class of plaintiffs who may bring private antitrust actions is to require a showing of antitrust injury as a necessary, but not sufficient, condition of antitrust standing. See Cargill, 479 U.S. at 111, 107 S.Ct. at 489-90. Because an antitrust injury must be of the type which the antitrust laws were intended to prevent, see id. at 109, 107 S.Ct. at 488-89; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697-98, 50 L.Ed.2d 701 (1977), an injury to competition is required. See id. at 488, 97 S.Ct. at 697. Once an injury to competition is established, the Supreme Court has limited who may sue to remedy that injury. According to the Court in Associated Gen. Contractors of Calif., Inc. v. California State Council of Carpenters, et al., 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), the “Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of [competitors] in the relevant market.” Id. at 538, 103 S.Ct. at 908. Under the Associated General rule, AP can only cause antitrust injury to AD/SAT through activity in a market in which AD/ SAT is either a customer or a competitor. Therefore, because AD/SAT is admittedly neither a customer nor a competitor in either the news or photo markets, it lacks standing to sue AP for monopolization of the news and photo markets. Hence, its monopolization claim must fail. AD/SAT attempts to avoid this conclusion by theorizing that AP is protecting its monopolies in those markets through its anticompetitive activities in a market in which AD/SAT does compete, the ad delivery market. However, if anticompetitive activity by AP, and antitrust injury to AD/SAT, is occurring in the ad delivery market, then the appropriate response by AD/ SAT are claims against AP for monopoly and attempted monopoly of this market. In fact, AD/SAT has made the latter claim and cannot make the former. AD/SAT lacks standing to bring this monopolization claim, and therefore summary judgment is granted to AP. V. The Sherman Act Conspiracy Claims Before addressing whether or not the defendants entered any unlawful agreements to refuse to deal or boycott AD/SAT under § 1 of the Sherman Act, or to monopolize the relevant market under § 2 of the Sherman Act, the Court will address two related, threshold arguments advanced by AD/SAT to support its claim of conspiracy. The two threshold arguments center around the claim that simply by developing and implementing the AdSEND program, AP is necessarily engaging in concerted action within the meaning of the Sherman Act. First, AD/SAT’s asserts that the Supreme Court’s decision in Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), has collateral estoppel effect on any arguments defendants may make to establish that AD/SAT has not proven a conspiracy in this case. In Associated Press, the Supreme Court found that two AP bylaws, which had the effect of preventing all newspapers who were not AP members from buying news from AP or any of its members, and therefore restrained competition in the newspaper publishing field, violated §§ 1 and 2 of the Sherman Act. The Court held that “arrangements or combinations designed to stifle competition cannot be immunized by adopting a membership device accomplishing that purpose.” Id. at 19, 65 S.Ct. at 1424. Under the doctrine of collateral estoppel, which is also known as issue preclusion, “ ‘ “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” ’ ” Remington Rand Corp. v. Amsterdam-Rotterdam Bank, 68 F.3d 1478, 1485 (2d Cir.1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980))). In this ease, an AP by-law is not at issue. Moreover, this case involves an alleged conspiracy surrounding the electronic transmission of advertising. The 1945 Associated Press case does not preclude litigation of whether such a conspiracy exists. Therefore, collateral estoppel does not serve as a bar to defendants in this case. As a second argument, AD/SAT asserts that, even if the Associated Press decision does not preclude litigation of the conspiracy issue in this case, decisions holding that “conduct of an association adversely affecting competitors is joint action by the association’s members,” see Pl’s.Opp. at 46-47, compel this Court, without reviewing the evidence, to find a conspiracy in this case. The argument does not persuade. While it is true that AD/SAT cites several cases contain dicta which states that associations are inherently conspiratorial, careful review of these cases reveals that they are distinguishable from the instant situation. All of the cases AD/SAT relies upon involve situations where an association is regulating the conduct of its members, through an explicit agreem