Puerto Rico Tel. Co. v. San Juan Cable LLC

874 F.3d 767

PUERTO RICO TELEPHONE COMPANY, INC., Plaintiff, Appellant,

v.SAN JUAN CABLE LLC, Defendant, Appellee.

No. 16-2132.

United States Court of Appeals, First Circuit.

October 31, 2017

Patrick J. Pascarella, Jr., with whom Benjamin C. Sassé and Tucker Ellis LLP, Cleveland, OH, were on brief, for appellant.

Jacob (Yaakov) M. Roth, with whom Brinton Lucas, Washington, DC, Thomas Demitrack, Brian K. Grube, Cleveland, OH, Jones Day, Orlando Fernandez, and Orlando Fernandez Law Offices were on brief, for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

Puerto Rico Telephone Company, Inc., (PRTC) sought permission from the Puerto Rico Telecommunications Regulatory Board (TRB) to offer internet protocol television service to the residents of Puerto Rico. At the time, San Juan Cable LLC, doing business as "OneLink," provided cable television service to residents of several municipalities in Puerto Rico, including San Juan. Not eager to face competition, OneLink petitioned the TRB and other government officials and tribunals, including Commonwealth and federal courts, to deny, slow down, or otherwise impede PRTC's efforts. After eventually obtaining the needed permission from the TRB, PRTC filed this antitrust action claiming that OneLink's interference with PRTC's permitting efforts constituted unlawful monopolization and attempted monopolization in violation of both the Sherman Act, 15 U.S.C. § 2, and the Puerto Rico Anti-Monopoly Act, P.R. Laws Ann. tit. 10, §§ 257 – 276. Granting summary judgment to OneLink, the district court concluded that OneLink's actions were immunized from suit under the Noerr- Pennington doctrine, which conditionally protects the right to petition the government. See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc. (Noerr ), 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) ; United Mine Workers of Am. v. Pennington (Pennington ), 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In so ruling, the district court rejected PRTC's argument that the facts could support a finding that OneLink abused its right to petition and could be found liable under the so-called "sham" exception to the Noerr- Pennington immunity. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 511–12, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (extending both Noerr- Pennington immunity and the sham exception to petitioning of courts and administrative agencies). For the following reasons, we agree with the district court that the facts in this case could not subject OneLink to liability under the sham exception.

I.

A.

The parties' disagreement on appeal begins with OneLink's win-loss record in its multi-tribunal petitioning activity aimed at impeding PRTC's efforts to secure permission to compete against OneLink. A detailed description of OneLink's filings with the TRB, the Puerto Rico courts, and the federal courts, its communications with Puerto Rico officials and federal officials, and the resolutions of those filings and communications can be found in the district court's two published opinions. See P.R. Tel. Co. v. San Juan Cable Co. (PRTC I ), 196 F.Supp.3d 207, 215–24 (D.P.R. 2016) ; P.R. Tel. Co. v. San Juan Cable Co. (PRTC II ), 196 F.Supp.3d 248, 253–98 (D.P.R. 2016). PRTC claims that those filings and communications collectively constituted twenty-four "petitions" in the form of requests that a court or other government tribunal, agency, or official take action adverse to PRTC's license application, and that OneLink failed to prevail on any of those petitions. OneLink avoids taking a firm position on its win-loss record apart from suggesting that the district court's count (four wins out of thirteen petitions) was closer to the mark.

The parties' divergent counts flow from disagreements about whether to treat motions filed in the course of a single proceeding as separate petitions, and whether to rank an interlocutory procedural win as a loss if the proceeding ultimately resulted in a decision against OneLink. Thus, for example, the district court counted OneLink's request to intervene in the second franchise proceeding before the TRB along with several other motions filed in connection with that request as a single petition, see PRTC II, 196 F.Supp.3d at 324, 337, while PRTC argues that each motion filed with the TRB constitutes a separate petition. Likewise, the district court counted as a win the issuance of an order to show cause why a temporary restraining order should not issue by a federal district court in a suit that was ultimately dismissed as moot, see id. at 279–80, 325, 338, while PRTC argues that merely securing a show cause order is not a win.

For our purposes, we need not resolve these disputes concerning OneLink's win-loss record. Rather, we can assume, as PRTC argues, that OneLink's various filings can be viewed as twenty-four separate petitions, and that none resulted in a meaningful victory. We must also assume, though, that all twenty-four filings were "objectively reasonable" in the sense that a "reasonable litigant could realistically expect success on the merits." Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc. (PREI ), 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). We make this latter assumption because the district court so found after examining each of OneLink's various filings, see PRTC II, 196 F.Supp.3d at 325-35, and PRTC has waived any challenge to those findings. PRTC did not make any such challenge in its main brief on appeal. See Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015) ("[W]e do not consider arguments for reversing a decision of a district court when the argument is not raised in a party's opening brief."); see also Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) ("We have repeatedly held that arguments raised only in a footnote or in a perfunctory manner are waived."). It also failed to make any case for excusing the waiver in its reply brief¹ or at oral argument. Indeed, the entire oral argument proceeded on the assumption that the district court's findings that all the petitions were objectively reasonable would stand. Although we can excuse waiver of this sort in certain cases, this is not such a case. Assessing the merits of OneLink's petitions requires detailed analyses of a large number of different filings. We decline to undertake those analyses without briefing.²

B.

PRTC's waiver of any argument that some of OneLink's numerous filings were baseless creates an immediate obstacle to PRTC's ability to maintain this lawsuit. The general rule is that a defendant cannot be held liable under the Sherman Act for petitioning the government, including by filing a lawsuit. See Cal. Motor Transp., 404 U.S. at 510–13, 92 S.Ct. 609. PRTC relies on an important exception to that rule, known as the "sham" exception. See id. (citing, inter alia, Noerr, 365 U.S. at 144, 81 S.Ct. 523 ). In PREI, however, the Supreme Court held that a lawsuit, even when employed as an anticompetitive weapon, could only fall within the sham exception if the suit was "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." 508 U.S. at 60–61, 113 S.Ct. 1920. We assume, as do the parties, that PREI also applies to a petition filed before an administrative agency or another executive official. See 508 U.S. at 59–60, 113 S.Ct. 1920 ("We dispelled [in Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) ] the notion that an antitrust plaintiff could prove a sham merely by showing that its competitor's purposes were to delay [the plaintiff's] entry into the market and even to deny it a meaningful access to the appropriate ... administrative and legislative fora.")(internal quotation marks omitted, brackets and ellipsis in original). Given PRTC's failure to argue that any one of OneLink's petitions was objectively baseless, it is clear that no single petition could support the imposition of antitrust liability on OneLink. Accordingly, PRTC must predicate its appeal on the contention that the serial nature of OneLink's petitioning materially distinguishes this case from PREI; that is to say, a jury could find OneLink liable for launching a fusillade of ultimately unsuccessful petitions even if no one petition was sufficiently baseless to fit within the "sham" exception under PREI. We therefore turn next to that contention.

C.

In pursuit of its effort to distinguish PREI, PRTC tries to find company in the decisions of several other circuits that have construed California Motor Transport and PREI as compatibly establishing different tests depending on whether more than one petition is challenged as abusive. In brief, this argument first restricts PREI's"objectively baseless" requirement to cases involving a single petition rather than a series of petitions. To assess a series of petitions, the argument relies instead on language in California Motor Transport describing as outside the scope of Noerr- Pennington immunity the "institut[ion of] proceedings and actions ... with or without probable cause, and regardless of the merits of the cases," 404 U.S. at 512, 92 S.Ct. 609. As construed by PRTC, this argument also reads "with or without probable cause" and "regardless of the merits," id., as including both petitions brought "with ... probable cause" and with "merit[ ]" where the defendant's decision to file the series of petitions paid no heed to whether they had merit. So framed, the argument views PREI very much through the lens of Justice Stevens's concurrence. See PREI, 508 U.S. at 73, 113 S.Ct. 1920 (Stevens, J., concurring in the judgment) ("Repetitive filings, some of which are successful and some unsuccessful, may support an inference that the process is being misused. In such a case, a rule that a single meritorious action can never constitute a sham...