Legal analysis: Altitude’s court case is a Hail Mary by Kroenke

So here I am on a Saturday night, minding my own business, watching boxing when I get a ding on my phone. It’s James Merilatt. He’s trolling me about Jamal Murray hitting a dagger to send a game into overtime. Wait, the Nuggets are playing?

I have no idea, because I can’t watch the Avalanche or Nuggets on television. Out of sight, out of mind. Turns out it was a double-OT thriller.

I just shook my head. Are we really doing this for another season? No Nuggets. No Avalanche.

The Comcast vs. Altitude dispute has been a frequent topic on “The Dan Jacobs Show.” Most often, I lament about how I can’t understand what Altitude is doing at this point.

It has become clear that Comcast is not going to move off their position, so Stan Kroenke has to decide whether to cut a deal for drastically less money with Comcast or simply sell the broadcasting rights to another station. It seems pretty cut and dry to me.

“What on earth are they waiting on?” I wonder to myself. Surely, they aren’t thinking their lawsuit will save them, are they?

As a trial attorney, I took a quick look when billionaire Stan Kroenke decided to sue the billionaires over at Comcast. My initial reading was that it was a simple negotiating ploy not likely to succeed on its merits. To be honest, I never put much stock in the lawsuit, because I always felt it was doomed to fail. But after that Saturday night, I decided to take a closer look at what was going on with the suit.

It turns out that the court issued a ruling on a Motion to Dismiss in November, which gives us some great insight into the judge’s thinking. Let’s discuss, shall we?

In a nutshell, Altitude filed six claims against Comcast, ranging from accusing Comcast of being a monopoly to arguing that Comcast interfered with Altitude’s business relationships. Right off the bat, the Court threw half of Altitude’s claims out of court.

That’s not good for Altitude, considering that at this stage of the lawsuit, the court has to view everything in a light most favorable to Altitude and the bar for keeping the lawsuit alive is “exceedingly low.” So to have half of your claims thrown out, even with the low bar, should at least be a little concerning to Altitude.

Essentially, we are left with one issue for the court to decide – Altitude is claiming that Comcast is simply refusing to negotiate so that Altitude will be forced to fold up shop and sell the rights to the Avs and Nuggets to a new channel that Comcast will create. Everything is now riding on this claim.

So, how is the court viewing the case? Well, in its 42-page opinion, the judge gave us a peak into his thinking. It didn’t appear to go well for Altitude, with the judge stating:

“The court has considered Comcast’s numerous, persuasive arguments. The allegation is thin, but plausible. Whether Altitude can support the allegation to with sufficient evidence to withstand summary judgement is a matter for another day.”

Having a judge, in writing, characterize your best argument as “thin” is never good.

“However, as explained below, Altitude has (barely) sufficiently alleged that Comcast (as
a rapid entrant) is a competitor in the Regional Sports Programming Market… Despite the arguable weakness and novelty of this argument (which will be carefully scrutinized on a future motion for summary judgment), Altitude has alleged numerous other factors supporting its position that the court finds persuasive at this juncture.”

Looking at those excerpts, you don’t have to be an attorney to see that the judge isn’t even really trying to hide his hand on this one. While he can’t dismiss their claims just yet, he’s having a hard time getting behind Altitude’s arguments.

It wasn’t all bad for Altitude, though. The judge did throw them a couple of bones, essentially saying, “Yeah, I can see why you think Comcast is trying to squeeze you guys out.”

“However, given the parties’ prior course of dealing for nearly 15 years, Comcast’s seemingly abrupt shift in requiring specific contractual terms like the sports tier and elimination of the minimum market penetration requirement, refusal to negotiate with Altitude, and the factual allegations regarding Comcast’s infrastructure and financial means giving it the ability to vertically integrate with relative ease, the court finds Altitude has plausibly alleged that Comcast intends to monopolize and replace Altitude.”

So, does Altitude have a chance? I mean, is the reason Stan Kroekne is intentionally depriving us of the Avs and Nuggets on TV for yet another season is because he actually thinks he can win this lawsuit? Well, this quote from the judge seems to make it pretty clear, Stan is going for a Hail Mary.

“As the court has noted elsewhere in this order, whether Altitude can prove Comcast’s specific intent to monopolize is an entirely different matter — one the court views with some skepticism, particularly in light of Comcast’s argument that replacing Altitude would not make Comcast a monopolist because of AT&T SportsNet Rocky Mountain’s presence in the market.”

I know, legal mumbo jumbo. What the judge is saying there is, “Yo, Altitude, your argument has a gaping hole in it, because even if Comcast drove you out of business, you could simply sell the rights to AT&T!” (Or channel 20 or channel 3 for that matter.)

The Court is going to require the parties to move forward with a bunch of legal briefs, but the judge has made his position quite clear – Altitude must start showing up with some actual evidence that proves Comcast intends to start its own regional network in town or the entire case will be thrown out before trial.

In the meantime, we suffer.

Nikola Jokic is having an MVP worthy season, but we don’t get to see it. The Avs are downright electrifying at times, but we don’t get to see it. Will MPJ break out and make the Nuggets a legitimate title contender? You get the picture.

We all get to sit out another season out while Stan chucks up a legal Hail Mary. Why? Because he’s rich and he can. Screw you. Screw me.

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