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ANSWER
Defendant Cox Communications, Inc. (Cox), by and through undersigned
counsel, hereby answers Plaintiffs Class Action Complaint (Complaint) and states as
follows. Any allegation not expressly admitted by Cox in this Answer is hereby denied.
INTRODUCTION
1.
Cox states that Paragraph 3 states a legal conclusion that Cox has tied the
THE PARTIES
4.
Cox denies that at all material times Richard Healy subscribed to Premium
required. Notwithstanding, Cox denies that Plaintiffs' claims properly arise under an act
of Congress sufficient to confer jurisdiction under 28 U.S.C. 1331 or 1337.
8.
Cox denies that MVPD providers do not compete with one another or face
competition from MVPD providers who use other formats than cable. The remainder of
Paragraph 10 states legal conclusions regarding "economic power" and tying violations
to which no response is required. Notwithstanding, Cox denies each and every
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Cox denies that it compels consumers to rent or pay for set-top boxes.
Cox denies that a set-top box is a "separate product that it distributes." Cox denies that
a set-top box is essentially an extension of a television set, which consumers must use
to access the full range of "Premium Cable" services that they have purchased. Cox
admits that it, in some instances, charges a monthly rental fee for set-top boxes when
consumers choose to rent them. Cox admits that it purchases set-top boxes from
manufacturers. Cox denies that it forces consumers to pay a monthly rental fee for settop boxes, or that the fee it charges for set-top boxes "quickly adds up" to more than
the cost Cox pays to purchase the set-top-boxes from manufacturers. The remainder of
Paragraph 11 states legal conclusions regarding what constitutes a "separate product" to
which no response is required. Notwithstanding, Cox denies each and every remaining
allegation in Paragraph 11, including Plaintiffs' characterization of the terms "classic
tying violation," "separate product," and "Premium Cable services."
The Tying Product: Premium Cable
12.
Cox denies that it offers two cable products, "Basic Cable" and
"Premium Cable." Cox is without sufficient information to admit or deny the truth of
the allegations in Paragraph 12 that pertain to third parties. Cox denies each and every
remaining allegation in Paragraph 12, including Plaintiffs' characterization of "Basic
Cable" and "Premium Cable."
13.
Cox denies each and every allegation in Paragraph 13, including Plaintiffs'
Cox denies each and every allegation in Paragraph 14, including Plaintiffs'
customers subscribe to "Premium Cable." Cox denies each and every remaining
allegation in Paragraph 15, including Plaintiffs' characterization of "Premium Cable."
16.
Cox admits that subscribers may in some (but not all) circumstances be
charged a fee for utilizing a pay-per-view service. Cox denies each and every remaining
allegation in Paragraph 16, including Plaintiffs' characterization of "Premium Cable" and
"Basic Cable."
17.
document and respectfully directs the Court to the full report for the complete and
accurate statistics, language, and context. Cox denies each and every remaining allegation
in Paragraph 17, including Plaintiffs' characterization of "Premium Cable" and any
suggestion that the FCC has recognized or adopted Plaintiffs' definition of "Premium
Cable."
18.
document and respectfully directs the Court to the full report for the complete and
accurate statistics, language, and context. Cox denies each and every remaining allegation
in Paragraph 18, including Plaintiffs' characterization of "Premium Cable" and any
suggestion that the FCC has recognized or adopted Plaintiffs' definition of "Premium
Cable."
19.
Cox denies each and every allegation in Paragraph 19, including Plaintiffs'
Cox denies each and every allegation in Paragraph 20, including Plaintiffs'
Cox denies each and every allegation in Paragraph 21, including Plaintiffs'
Cox states that Paragraph 22 states a legal conclusion that "Premium Cable"
is the tying product, to which no response is required. Notwithstanding, Cox denies each
and every allegation made in Paragraph 22, including Plaintiffs' characterization of
"Premium Cable" as a tying product.
The Tied Product: Set-Top Boxes
23.
Cox denies each and every allegation in Paragraph 23, including Plaintiffs'
Cox denies each and every allegation in Paragraph 25, including Plaintiffs'
26.
Cox denies each and every allegation in Paragraph 26, including Plaintiffs'
allegations in Paragraph 27 that pertain to third parties. Notwithstanding, Cox admits that
Motorola and Scientific Atlantic manufacture set-top boxes.
28.
Cox denies that consumers have demonstrated a demand for acquiring set-
top boxes apart from Premium Cable, including Plaintiffs characterization of the term
Premium Cable. Cox is without sufficient information to admit or deny the truth of the
allegations in Paragraph 28 that pertain to third parties.
29.
Cox denies each and every allegation in Paragraph 29, including Plaintiffs'
Cox denies that it has engaged in a practice that forecloses competition. Cox
Cox states that Paragraph 31 states a legal conclusion that set-top boxes are
the tied product, to which no response is required. Notwithstanding, Cox denies each and
every allegation in Paragraph 31.
Consumers Who Purchase Premium Cable From Cox Are Also Forced to Rent
Set-Top Boxes from Cox
32.
Cox denies each and every allegation made in Paragraph 32, including
Cox states that Paragraph 33 states a legal conclusion regarding "the tying
Cox denies each and every allegation in Paragraph 34, including Plaintiffs'
Cox states that Paragraph 35 states a legal conclusion "[t]hat set-top boxes
obtained from a source other than Cox will not function on Cox's cable MVPD system
is another means of requiring consumers to submit to its illegal tie," to which no
response is required. Notwithstanding, Cox denies that it has engaged in an illegal tie.
Cox denies each and every remaining allegation in Paragraph 35.
36.
Cox denies that any fee it may charge for set-top-boxes "quickly adds up"
to more than the cost Cox pays to purchase the set-top-boxes. Cox denies each and every
remaining allegation in Paragraph 36.
37.
directs the Court to the full text of the statute for the complete and accurate language and
context. Cox denies Plaintiffs' characterizations of the expectations, indications, or
interpretations of Congress and the FCC.
38.
data as a security measure to prevent signal theft. Cox denies each and every remaining
allegation as they pertain to Cox, including Plaintiffs' characterization of "cable-ready,"
"Premium Cable services," and "Basic Cable." Cox is without sufficient information to
admit or deny the truth of those allegations in Paragraph 38 that pertain to the actions of
third parties.
39.
Cox denies that there is a product called "Premium Cable" the descrambling
Cox denies each and every allegation as they pertain to Cox. Cox is without
sufficient information to admit or deny the truth of those allegations in Paragraph 40 that
pertain to the actions of third parties.
41.
Cox states that the FCC's rules and its actions in its publicly reported
decisions speak for themselves. Cox otherwise denies each and every allegation in
Paragraph 41 in its entirety.
42.
Cox admits that it offers consumers a CableCARD. Cox denies each and
43.
available website, and respectfully directs the Court to the full quoted website for the
complete and accurate language and context. Cox denies each and every remaining
allegation in Paragraph 43, including Plaintiffs' characterization of the terms "Premium
Cable subscribers" and "Premium cable services."
44.
Cox denies that it has taken measures to limit the availability and
"attractiveness" of CableCARDS. Cox states that the FCC's rules and its actions in its
publicly reported decisions speak for themselves. Cox denies each and every remaining
allegation in Paragraph 44.
45.
Cab1eCARDS that it distributes and charges them an installation fee. Cox denies that it
charges any "particularly egregious" fee. Cox denies each and every remaining allegation
in Paragraph 45, including Plaintiffs' characterization of the term "Premium Cable
subscribers" and "cable-ready."
46.
Cox denies each and every allegation to the extent they pertain to Cox. Cox
is without sufficient information to admit or deny the truth of the remaining allegations in
Paragraph 47 that pertain to the actions and motivations of third parties.
48.
Cox states that Paragraph 48 states legal conclusions that Cox has engaged
economic power" and "illegal tying practice" which do not require a response.
Notwithstanding, Cox denies each and every allegation in Paragraph 49, including that it
has economic power or that it has forced consumers to submit to an illegal tying practice.
50.
Cox denies that it has consistently raised prices for "Premium Cable." Cox
states that Paragraph 50 contains legal conclusions regarding "substantial market share"
which do not require a response. Notwithstanding, Cox denies each and every
remaining allegation in Paragraph 50, including that it has a substantial market share or
has forced consumers to submit to an illegal tying practice.
Cox Regularly Increases The Price of Premium Cable Without Losing Customers
51.
Cox denies that it has repeatedly raised the price of "Premium Cable" over
the last ten years. Cox denies each and every remaining allegation in Paragraph 51.
52.
Cox denies each and every allegation in Paragraph 52, including Plaintiffs'
economic power to unlawfully tie set-top boxes to Premium Cable," which do not
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require a response. Cox denies each and every remaining allegation in Paragraph 53,
including Plaintiffs' characterization of the term "Premium Cable."
Cox Has A Substantial Share of the Relevant Market
54.
Cox states that Paragraph 54 states a legal conclusion that the relevant
government document and respectfully directs the Court to the full report for the
complete and accurate language and context. Cox denies the Plaintiffs' characterization of
"Premium Cable" in the context of the government document referred to in Paragraph 55.
56.
Cox denies each and every remaining allegation in Paragraph 56, including
Cox denies each and every allegation in Paragraph 57, including Plaintiffs'
Cox denies that "cable MVPD" consists of "Premium Cable" and "Basic
Cable." Cox is without sufficient information to admit or deny the truth of the allegations
of Paragraph 58, which Plaintiffs base on an unidentified "2007 Congressional research
report." Cox denies each and every remaining allegation in Paragraph 58, including
Plaintiffs' characterization of "Premium Cable" and "Basic Cable."
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59.
allegations of Paragraph 59, which are based on an unidentified "studies." Cox denies
each and every remaining allegation in Paragraph 59.
60.
Denied.
61.
Denied.
62.
costs," which do not require a response. Cox denies each and every remaining allegation
in Paragraph 62.
63.
interchangeability which do not require a response. Cox states that Paragraph 63 refers to
a publicly available website and respectfully directs the Court to the cited website for the
complete and accurate language and context. Cox denies each and every remaining
allegation in Paragraph 63.
64.
government document and respectfully directs the Court to the full report for the
complete and accurate language and context. Cox is without sufficient information to
admit or deny the truth of the remaining allegations in Paragraph 64 that pertain to third
parties. Cox denies each and every remaining allegation in Paragraph 64.
65.
document and respectfully directs the Court to the full report for the complete and
accurate language and context. Cox denies each and every remaining allegation in
Paragraph 65.
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66.
document and respectfully directs the Court to the full report for the complete and
accurate language and context. Cox denies each and every remaining allegation in
Paragraph 66.
67.
barriers to entry which do not require a response. Notwithstanding, Cox denies that cable
MVPDs or other MVPDs face "significant barriers to entry." Cox states that Paragraph 68
purports to refer to a publicly available government document and respectfully directs the
Court to the full report for the complete and accurate language and context. Cox denies
each and every remaining allegation in Paragraph 68.
69.
barriers to entry which do not require a response. Cox states that Paragraph 69 purports to
refer to a publicly available government document and respectfully directs the Court to
the full report for the complete and accurate language and context. Cox denies each and
every remaining allegation in Paragraph 69, including Plaintiffs' characterization of
"Premium Cable."
70.
Denied.
71.
Denied.
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72.
Cox. Cox is without sufficient information to admit or deny the truth of the remaining
allegations in Paragraph 72 that pertain to third parties.
73.
Cox denies that the franchising process is a barrier to entry. Cox is without
sufficient information to admit or deny the truth of the allegations of Paragraph 73 that
are based on unspecified FCC findings.
74.
"entry barriers" that do not require a response. Cox denies each and every allegation in
Paragraph 74 to the extent they pertain to Cox. Cox is without sufficient information to
admit or deny the truth of the allegations in Paragraph 74 that pertain to third parties.
75.
"entry barriers" that do not require a response. Cox denies each and every allegation in
Paragraph 75 to the extent they pertain to Cox. Cox is without sufficient information to
admit or deny the truth of the remaining allegations in Paragraph 75 that pertain to third
parties.
76.
regarding "substantial entry barriers," "substitutes," and "market shares" that do not
require a response. Cox denies each and every allegation in Paragraph 76 to the extent
they pertain to Cox. Cox is without sufficient information to admit or deny the truth of
the remaining allegations in Paragraph 76 that pertain to third parties.
77.
government document and respectfully directs the Court to the full report for the
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complete and accurate language and context. Cox denies each and every remaining
allegation in Paragraph 77.
78.
government document and respectfully directs the Court to the full report for the
complete and accurate language and context. Cox denies each and every remaining
allegation in Paragraph 78.
79.
filing and respectfully directs the Court to the full cited filing for the complete and
accurate language and context. Cox denies each and every remaining allegation in
Paragraph 79.
80.
filing and respectfully directs the Court to the full cited filing for the complete and
accurate language and context. Cox denies each and every remaining allegation in
Paragraph 80.
81.
interchangeability, market share, and economic power that do not require a response.
Notwithstanding, Cox denies each and every allegation in Paragraph 81.
82.
available filings, and respectfully directs the Court to the cited filings for the complete
and accurate facts, language, and context. Cox denies each and every remaining
allegation in Paragraph 82.
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83.
economic power" and "illegal" tying which do not require a response. Notwithstanding,
Cox denies that it has "sufficient economic power" in all of the areas in which it
operates. Cox denies that it has engaged in actions that constitutes an "illegal tie." Cox
denies each and every remaining allegation in Paragraph 83.
84.
markets, "sufficient economic power," and "illegal" tying which do not require a
response. Notwithstanding, Cox denies that it has a "staggering share" of the potential
subscribers in the areas in which it operates even if satellite MVPD was considered part
of the "relevant market." Cox denies that it has engaged in activity that constitutes an
illegal tie. Cox denies each and every remaining allegation in Paragraph 84.
85.
power" which do not require a response. Notwithstanding, Cox denies that it has
"economic power" over the provision of "cable MVPD." Cox denies that it has power
over both "Basic Cable" and "Premium Cable." Cox denies each and every remaining
allegation in Paragraph 85, including Plaintiffs' characterization of "Basic Cable" and
"Premium Cable."
86.
Cox states that Paragraph 86 states a legal conclusion that the relevant
geographic market is the areas in which Cox provides "Premium Cable" in its Oklahoma
City Market which does not require a response. Notwithstanding, Cox denies each and
every allegation in Paragraph 86, including Plaintiffs' characterization of "Premium
Cable."
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87.
market power to impose an unlawful tie that does not require a response.
Notwithstanding, Cox denies each and every allegation in Paragraph 87.
88.
filing and respectfully directs the Court to the full cited filing for the complete and
accurate language and context. Cox denies each and every remaining allegation in
Paragraph 88.
89.
power to impose a tie" and geographic market that do not require a response.
Notwithstanding, Cox denies that it has economic power. Cox denies that it has engaged
in activity that constitutes a tie. Cox denies that "all of the areas in which it operates" is a
relevant geographic market. Cox denies each and every remaining allegation in Paragraph
89.
Coxs Illegal Tie Affects a Not Insubstantial Amount of Commerce In The Market
For Set-Top Boxes
90.
Cox denies each and every allegation in Paragraph 90, including Plaintiffs'
Denied.
92.
Cox states that Paragraph 92 states a legal conclusion that Cox has
engaged in an illegal tie that does not require a response. Notwithstanding, Cox denies
that it has engaged in activity that constitutes an illegal tie, including taking efforts to
control the provision of set-top boxes. Cox denies each and every remaining allegation
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in Paragraph 92 to the extent that they pertain to Cox. Cox is without sufficient
information to admit or deny the truth of the remaining allegations in Paragraph 92 that
pertain to the actions and motivations of third parties.
93.
Denied.
94.
Denied.
95.
tying practices" that do not require a response. Notwithstanding, Cox denies that it has
engaged in activity that constitutes illegal tying. Cox denies each and every remaining
allegation to the extent they pertain to Cox. Cox is without sufficient information to
admit or deny the truth of the remaining allegations in Paragraph 95 that pertain to the
actions of third parties.
Coxs Illegal Tie Affects A Not Insubstantial Amount of Interstate Commerce
96.
Cox admits that it provides cable service to customers in the United States.
Cox denies each and every remaining allegation in Paragraph 97, including Plaintiffs'
characterization of "Premium Cable services."
98.
Denied.
CLASS ACTION ALLEGATIONS
99.
Denied.
100.
a class.
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101.
numerosity which does not require a response. Notwithstanding, Cox denies each and
every allegation in Paragraph 101.
102.
Cox states that Paragraph 103 states legal conclusions regarding typicality
that do not require a response. Notwithstanding, Cox denies each and every allegation in
Paragraph 103.
104.
Cox states that Paragraph 104 states legal conclusions regarding adequacy
that do not require a response. Notwithstanding, Cox denies each and every allegation in
Paragraph 104.
105.
Cox states that Paragraph 105 states legal conclusions regarding superiority
that do not require a response. Notwithstanding, Cox denies each and every allegation in
Paragraph 105.
106.
Cox admits that the Federal Courts have experience with class actions. Cox
through 106.
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108.
Cox states that Paragraph 108 purports to refer to Federal statutes and
respectfully directs the Court to the full text of the cited statutes for the complete and
accurate language and context.
109.
Cox states that the Plaintiffs' claims speak for themselves, but denies that
there is any basis for relief or that there is a class. Cox denies that it engaged in any
actions that violated the Sherman Act.
110.
Denied.
111.
Denied.
112.
Denied.
113.
Denied.
114.
Denied.
115.
Denied.
116.
Denied.
117.
Denied.
118.
Denied.
COUNT II
(Violation of Oklahoma Antitrust Reform Act)
119.
through 118.
120.
Denied.
121.
Denied.
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COUNT III
(Unjust Enrichment)
122.
through 121.
123.
Denied.
124.
Denied.
125.
Denied.
Affirmative Defenses
By asserting the defenses set forth below, Cox does not allege or admit that it has
the burden of proof and/or the burden of persuasion with respect to any of these matters
or that Plaintiffs are relieved of their burden to prove each and every element of its
claims and damages, if any, to which it is entitled. As and for its affirmative defenses,
Cox states as follows:
First Affirmative Defense
The Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense
Plaintiffs lack standing to bring claims for antitrust violations because, among
other reasons, they have failed to plead facts showing a direct causal connection between
the challenged conduct and their alleged injury, and because Plaintiffs have not suffered
antitrust injury.
Third Affirmative Defense
Plaintiffs lack standing to bring this case on behalf of persons other than
themselves.
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CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of January, 2013, I electronically transmitted
the attached document to the Court Clerk using the ECF System for filing. Based on the
records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to
the following ECF registrants:
Cynthia G. St. Amant
A. Daniel Woska
Allen Kanner
Jason H. Kim
Joe R. Whatley Jr.
Michael J. Blaschke
Rachel Lawrence Mor
S. Randall Sullivan
Todd M. Schneider
Joseph C. Peiffer
Garrett W. Wotkyns
s/ D. Kent Meyers________________________
D. Kent Meyers
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