first full year of its operation, and for each year thereafter, occupied 77% of the relevant market. Garden State, for the years 1971-1973, ranged between 17% in 1972 and approximately 18.5% in 1971, 1973 and 1974, the last year for which this information was furnished.
While these figures demonstrate that New Jersey Clipping for the years mentioned had an overwhelming percentage of the relevant market, a further word of explanation is required to cast them in the proper perspective. As has already been noted herein, n. 5, supra, the court has not been furnished any data as to the percentage of relevant market held by Burrelle's for the years prior to 1971.
However, it is clear to this court from all of the evidence that Burrelle's played a very substantial role in the New Jersey press clipping market in that earlier period, notwithstanding that it quoted only national rates. Moreover, while the court has been furnished with data representing revenue derived from the relevant market by Garden State for the earlier period mentioned, again percentage of market has not been furnished.
Since the plaintiff bears the burden of proof on all of the essential elements, he cannot be heard to say that the advent of New Jersey Clipping on the scene in October 1970, accompanied by the utilization of alleged predatory pricing, resulted in a substantial reduction in the percentage of the market held by plaintiff or in a substantial increase in the percentage of the market held by the defendants. Instead, for all that appears in this record, Burrelle's has maintained either in its own name, or in the name of New Jersey Clipping Service, approximately the same percentage of the New Jersey market during the years preceding and after October 1970. A valid inference can also be drawn that in the years preceding October 1970 Garden State's share of the relevant market, notwithstanding the increased revenue figures furnished, remained relatively stable, as, indeed, it did from 1971-1974. It is in this light that I turn to an examination of the question thus presented: whether the percentage of the relevant market occupied by New Jersey Clipping demonstrates either that monopoly has already been achieved, or represents "sufficient market power" so that New Jersey Clipping, given the requisite intent, can come dangerously close to monopolizing the relevant market.
To determine whether a defendant actually possesses monopoly power, it must be determined whether it has the "power of controlling prices or unreasonably restricting competition." United States v. DuPont de Nemours & Co., 351 U.S. 377, 389, 76 S. Ct. 994, 100 L. Ed. 1264 (1956). Proof of such matters may be direct or indirect. An overwhelming share of the relevant market is an indication, albeit indirect, of a defendant's market power to control prices or unreasonably restrict competition. Indeed, such an "overwhelming percentage" may establish a rebuttable presumption of monopoly. United States v. Grinnell Corp., 236 F. Supp. 244, 257 (D.R.I. 1964), modified, 384 U.S. 563, 86 S. Ct. 1698, 16 L. Ed. 2d 778 (1966).
To have "control" of the relevant market, it is not required that a party actually exclude competitors from it; there may be a violation of Section 2 if he has the power to exclude actual or potential competitors from the field, and the intent to do so. American Tobacco Co. v. United States, 328 U.S. 781, 809, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946). Control of prices is one manner by which such actual or potential competitors may be driven out of the market. Keco Indus. Inc. v. Borg-Warner Corp., 334 F. Supp. 1240, 1245-46 (M.D. Pa. 1971).
Notwithstanding the presumption of monopoly power derived from the percentage of the relevant market occupied by New Jersey Clipping, I find that the presumption has been rebutted and overcome by the evidence tendered by the defendants to show that their market share which, as I have already indicated, has remained relatively stable for many years, was attributable to their "skill, efficiency, foresight, or like affirmatively laudable business conduct." United States v. Grinnell Corp., supra, 236 F. Supp. at 257.
I find that Burrelle's up to 1970 and New Jersey Clipping thereafter offered a service that was superior to that rendered by Garden State. Thus, even on a limited regional basis upon which New Jersey Clipping operated, it read more publications than did Garden State. Additionally, to the extent a New Jersey customer wanted to move to expanded coverage, Burrelle's national service was instantly available. New Jersey Clipping's service was also rendered more quickly in that clippings from daily newspapers could be and often were mailed out the same day as the article appeared in the publication. There is evidence as well to strongly suggest that Weber lost business from time to time because of inefficiency in his operation.
Quite aside from how New Jersey Clipping was able to maintain after October 1970 what I have found to be essentially the same percentage of the relevant market occupied by Burrelle's before that time, the factor of the ability to control prices is, to a substantial degree, a function of the nature of the relevant market in terms of the ease of entry. Thus, there is obviously a limit to which prices can be raised in a market into which competitors can, with a minimum of expense and capital outlay, enter. The relevant market in this case is a peculiar one in that little, if any, capital is required to commence business as a press clipping service, particularly on a local level such as is here involved.
Finally, with respect to the aspect of monopoly power, notwithstanding the charges hurled at the defendants by the plaintiff in this case, there has been no appreciable upward movement of percentage of market occupied as far as defendants are concerned and, conversely, the plaintiff's share of the market has, with the exception of a slight dip in 1972, remained at the same level.
Not only do I find that defendants presently do not monopolize the relevant market; I also find that they do not have "sufficient market power to come dangerously close" to monopolizing said market. What has been said with respect to the matter of actual monopoly is equally applicable in connection with the "dangerously close" issue. For the same reasons that defendants could not presently possess monopoly power, they do not possess "sufficient market power" to achieve a monopoly of the relevant market.
I now turn to the first of the factors which must be examined in an "attempt" case under Section 2, that is, has the plaintiff proved that the defendants had "a specific intent to monopolize the relevant market." It was to this issue that the plaintiff addressed most of his proof. In specific terms, plaintiff urges that the predatory pricing practices of the defendants, exercised through New Jersey Clipping, are sufficient to establish such specific intent as the law requires.
As has been noted, "a specific intent to destroy competition or build monopoly is essential to guilt for the mere attempt.". . . Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626, 97 L. Ed. 1277, 73 S. Ct. 872 (1953). This specific intent may be demonstrated by showing predatory acts of an alleged monopolizer in furtherance of that attempt. Id. at 627.
Plaintiff rests his claim of predation upon two factors allegedly reflected in defendants' pricing policies, varied and discriminatory prices and prices below cost. An assessment of the pricing policies of both New Jersey Clipping and Garden State is thus indicated.
While the parties speak of "standard" rates, even in their stipulations, the price "mess," as Weber described the industry's pricing to be in 1965 in New Jersey, Trial Tr. of September 1, 1976, at 31, even up to trial had not stabilized in the relevant market.
In 1969, Garden State charged for its New Jersey coverage a "standard" rate for old customers of $20 a month and $.15 a clip and a "standard" rate for new customers of $23 a month and $.18 a clip. As of January 1970 it charged three accounts a flat rate of $.10 per clip plus postage, with no reading charge. Within six months it increased one of these three accounts to $.13 per clip while keeping the others the same; and there was no difference in the service provided the three accounts. Special per clip rates are still maintained for these accounts, one paying $.15 per clip, another $.17 per clip.
Moreover, plaintiff stipulated that during the period January 1970 to May 1974, Garden State charged 17 different rates, with customers in roughly the same category apparently paying different rates at the same time. Stipulation of Facts at 84. An exhibit annexed to the stipulation shows the wide variety of prices charged various customers. While some effort was made to justify the differences upon the basis of class of customer, or quantity of clippings furnished, it cannot be denied that Weber's whim or "judgment" accounted for whatever he decided he would charge a customer. See Def. Ex. 76-120. See also, Stipulation of Facts at 85 and attachment thereto. Trial Trans. of Dec. 1, 1976, at 8.
In 1969, Burrelle's national rate was $45 a month and $.20 a clip. As of November 1976 the price for the national coverage was $65 per month and $.32 a clip. Between 1970 and 1974 Burrelle's prices for national service steadily increased as follows:
January 1970 $45 and $.20
January 1971 $48 and $.20
May 1971 $48 and $.25
January 1972 $50 and $.25
August 1973 $55 and $.25
March 1974 $60 and $.25
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