In December, the Second Circuit handed down an interesting decision on antitrust standing at the pleading stage in DirecTV v. Nexstar. The headline is the court’s framing: lost profits due to a reduction in output from an alleged price-fixing conspiracy can support antitrust standing even if the plaintiff never actually pays the supracompetitive price.
A multichannel video programming distributor, or MVPD, can experience significant subscriber losses when retransmission consent negotiations fail and stations are blacked out (especially if they’re “Big-4” stations, i.e., ABC, CBS, NBC or Fox). The Second Circuit affirmed that the station blackouts by Nexstar’s “sidecars”, or shell station groups, were an output reduction and DirecTV’s resulting subscriber losses a direct harm, emphasizing that those losses were a first‑order consequence of the alleged price-fixing conspiracy during the failed retrans negotiations.
This decision lands amid industry conditions that point toward more blackouts, not fewer. MVPDs continue to lose subscribers while broadcasters rely more than ever on retrans fees as a core revenue stream. These dynamics make standoffs during negotiations more likely. Against this backdrop, the Second Circuit’s willingness to treat blackout‑driven losses as a direct antitrust harm at the pleading stage will impact litigation risk and likely influence how future retrans standoffs unfold.
Coherent Economics Director Eugene Kiselev is an expert in regulatory economics, antitrust analysis, and econometric modeling, and has over a decade of experience analyzing complex issues at the intersection of the telecommunications, media, consumer electronics, and information technology industries.