PolyGram Holding, Inc. v. Federal Trade Commission

  United States Court of Appeals
           FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 16, 2004                 Decided July 22, 2005

                        No. 03-1293

                Polygram Holding, Inc., et al.,
                        Petitioners

                              v.

                 Federal Trade Commission,
                         Respondent


           On Petition for Review of an Order of the
                 Federal Trade Commission



    Bradley S. Phillips argued the cause for petitioners. With
him on the briefs were Glenn D. Pomerantz and Stephen E.
Morrissey.

    John F. Daly, Deputy Special Counsel for Litigation,
Federal Trade Commission, argued the cause for respondent.
With him on the brief were Michele Arington, Attorney, Susan
A. Creighton, Director, and Richard B. Dagen, Assistant
Director.

   Before: GINSBURG, Chief Judge, and EDWARDS and
ROGERS, Circuit Judges.

    Opinion for the Court filed by Chief Judge GINSBURG.
                               2

     Ginsburg, CHIEF JUDGE: PolyGram Holding, Inc. and
several of its affiliates petition for review of an order of the
Federal Trade Commission holding PolyGram violated § 5 of
the Federal Trade Commission Act, 15 U.S.C. § 45. As detailed
below, PolyGram entered into an agreement with Warner
Communications, Inc. to distribute the recording of a concert to
be given by “The Three Tenors” in 1998. The two companies
later entered into a separate agreement to suspend, for ten
weeks, advertising and discounting of two earlier Three Tenors
concert albums, one distributed by PolyGram and the other by
Warner. The Commission held the latter agreement unlawful
and prohibited PolyGram from entering into any similar
agreement in the future. We agree with the Commission that,
although not a per se violation of antitrust law, the agreement
was presumptively unlawful and PolyGram failed to rebut that
presumption.     We therefore deny PolyGram’s petition for
review.

                         I. Background

     Here are the facts as found by the Commission in its order
and opinion of July 28, 2003. See In re PolyGram Holding, Inc.,
Docket No. 9298 (FTC), 2003 WL 21770765, available at
http://www.ftc.gov/os/2003/07/polygramopinion.pdf
(hereinafter, FTC Op.). The Three Tenors — José Carreras,
Placido Domingo, and Luciano Pavarotti — put on spectacular
concerts coinciding with the World Cup soccer finals in 1990,
1994, and 1998. PolyGram distributed the recording of the 1990
concert, which became one of the best-selling classical albums
of all time. FTC Op. at 5–6. Warner distributed the 1994
concert album, which also met with great success. Both albums
remained on the top-ten classical list throughout 1994, 1995, and
1996. Id. at 6.
                               3

      In late 1997 PolyGram and Warner agreed jointly to
distribute the recording of The Three Tenors’ July 1998 concert.
Warner, which had the worldwide rights, retained the United
States rights but licensed to PolyGram the exclusive right to
distribute the 1998 album outside the United States, and the
companies agreed to share equally the worldwide profit or loss
on the project. FTC Op. at 8. The agreement also obligated
PolyGram and Warner to consult with one another on all
“marketing and promotional activities” for the 1998 concert
album, but each company was free ultimately to pursue its own
marketing strategy and to continue exploiting its earlier Three
Tenors concert album without limitation. The agreement also
provided that PolyGram and Warner would collaborate on the
distribution of any future Three Tenors album released through
August 2002. Id.

     Representatives of PolyGram and Warner first met in
January 1998 to discuss “marketing and operational issues.”
One of PolyGram’s representatives voiced concern about the
effect of marketing the earlier Three Tenors albums upon the
prospects for the 1998 concert album and suggested the two
companies impose an “advertising moratorium” surrounding the
1998 release, which was scheduled for August 1. According to
notes of their next meeting (in March) PolyGram and Warner
representatives agreed that “a big push” on the earlier albums
“shouldn’t take place before November 15.” After that meeting,
each company instructed its affiliates to cease all promotion of
the 1990 and 1994 Three Tenors albums for approximately six
weeks, beginning in late July or early August. FTC Op. at 8.

    Apparently Warner’s overseas division did not get the
message because in May it announced an aggressive marketing
campaign, scheduled to run through December, to discount and
to promote the 1994 album throughout Europe.           When
                                4

PolyGram learned of this, it threatened to “retaliate” by cutting
the price of its 1990 album. Accusations then flew between the
two companies about which had started the imminent price war.
Meanwhile, in June the promoter of The Three Tenors concert
informed PolyGram and Warner that the repertoire for the 1998
concert would substantially overlap those of the 1990 and 1994
concerts, which in the view of both PolyGram and Warner
executives jeopardized the commercial viability of the
forthcoming concert album. FTC Op. at 8–9.

      By the time The Three Tenors performed in Paris on July
10, PolyGram and Warner had exchanged letters reaffirming
their commitment to suspend advertising and discounting the
1990 and 1994 concert albums and agreeing the moratorium
would run from August 1 through October 15. About a week
later, however, PolyGram’s Senior Marketing Director, who had
passed on the details of the agreement to PolyGram’s General
Counsel, sent a memorandum around the company stating,
“Contrary to any previous suggestion, there has been no
agreement with [Warner] in relation to the pricing and
marketing of the previous Three Tenors albums.” Warner
followed suit on August 10, sending a letter to PolyGram
repudiating any pricing or advertising restrictions relative to its
1994 album. At the same time, however, PolyGram and Warner
executives privately assured one another their respective
companies intended to honor the agreement, and in fact the
companies did substantially comply with the agreement through
October 15, 1998. FTC Op. at 9.

    In 2001 the Commission issued complaints against
PolyGram and Warner charging that, by entering into the
moratorium agreement, the companies had engaged in an unfair
method of competition in violation of § 5 of the FTC Act.
Warner soon consented to an order barring it from making any
                               5

similar agreement in the future. FTC Op. at 3 n.3. PolyGram
contested the charge and, after a trial, an Administrative Law
Judge ruled that PolyGram had violated § 5 and ordered
PolyGram, like Warner, to refrain from making any similar
agreement in the future.

      The Commission affirmed the order of the ALJ. After first
observing (correctly) that the analysis under § 5 of the FTC Act
is the same in this case as it would be under § 1 of the Sherman
Act, 15 U.S.C. § 1, FTC Op. at 13 n.11, the Commission revived
the analytic framework it had first announced In re
Massachusetts Board of Optometry, 110 F.T.C. 549 (1988),
which begins with the proposition that conduct “inherently
suspect” as a restraint of competition — that is, conduct that
“appears likely, absent an efficiency justification, to restrict
competition and decrease output” — is to be presumed
unreasonable. FTC Op. at 22–24. Only if the competitive harm
wrought by the restraint is not readily apparent from the nature
of the restraint itself, or the charged party offers a plausible
competitive justification for the restraint, must the Commission,
under this approach, engage in a more searching analysis of the
market circumstances surrounding the restraint. Id. at 29.

     Here the Commission determined the agreement between
PolyGram and Warner to prohibit discounts and advertising for
a time was indeed “inherently suspect” because such restraints
by their nature tend to raise prices and to reduce output. FTC
Op. at 35–40. The Commission then looked to PolyGram to
identify some competitive justification for the restraint. Id. at
40. PolyGram objected that the Commission must first offer
some evidence the agreement actually harmed competition. In
any event, PolyGram argued, the agreement was justified
because it prevented PolyGram and Warner, as distributors of
the 1990 and 1994 albums, respectively, from free-riding upon
                                6

— and thereby diminishing — each other’s efforts to promote
the 1998 album; hence the restraints created an incentive for
each company vigorously to promote the 1998 album and
thereby increased output. The Commission rejected that
purported efficiency justification as legally insufficient. In the
Commission’s view, the moratorium agreement could not have
had any such procompetitive effect but instead simply shielded
the 1998 concert album from the competition of the two earlier
albums. Id. at 41–48.

     Observing that under the analytic framework of Mass.
Board it could have stopped there, the Commission nonetheless
went on to rule that, even if PolyGram’s efficiency justification
were cognizable, the facts simply did not support it, FTC Op. at
50; indeed, the Commission found the moratorium had no effect
upon the degree to which the companies promoted the 1998
album and did not make the joint venturers any more likely to
release a future Three Tenors album. Id. at 56–57. Thus, upon
closer inspection, the Commission confirmed its initial
conclusion that the moratorium agreement was an unreasonable
restraint of trade in violation of § 1 of the Sherman Act and,
hence, an unfair method of competition in violation of § 5 of the
FTC Act. Id. at 58.

                          II. Analysis

      PolyGram raises four objections to the decision of the
Commission: First, the Commission should not have rejected
the free-rider justification as legally insufficient because the
moratorium agreement had a legitimate, procompetitive purpose
reasonably related to the joint venture. Second, the Commission
was required to show the restraints actually harmed competition
before it could require PolyGram to proffer a competitive
justification. Third, the Commission’s findings concerning the
                               7

competitive impact of the restraint were not supported by
substantial evidence. Finally, there is no danger the same
conduct will recur, so the Commission’s prohibitory remedy is
unreasonable.

     The Commission’s findings of fact are conclusive if
supported by substantial evidence. See 15 U.S.C. § 45(c). The
legal issues are “for the courts to resolve, although even in
considering such issues the courts are to give some deference to
the Commission’s informed judgment that a particular
commercial practice is to be condemned as ‘unfair.’” FTC v.
Ind. Fed’n of Dentists, 476 U.S. 447, 454 (1987) (IFD).

     The Supreme Court’s approach to evaluating a § 1 claim has
gone through a transition over the last twenty-five years, from
a dichotomous categorical approach to a more nuanced and
case-specific inquiry. In 1978, just before the transition began,
the Court summarized its doctrine as follows:

    There are ... two complimentary categories of antitrust
    analysis. In the first category are agreements whose nature
    and necessary effect are so plainly anticompetitive that no
    elaborate study of the industry is needed to establish their
    illegality — they are “illegal per se.” In the second
    category are agreements whose competitive effect can only
    be evaluated by analyzing the facts particular to the
    business, the history of the restraint, and the reasons why it
    was imposed.

Nat’l Soc’y of Prof’l Eng’rs v. FTC, 435 U.S. 679, 692 (1978).

     Courts and commentators have recognized the trade-offs
inherent in each category. Per se analysis, which requires courts
to generalize about the utility of a challenged practice, reduces
                                 8

the cost of decision-making but correspondingly raises the total
cost of error by making it more likely some practices will be
held unlawful in circumstances where they are harmless or even
procompetitive. See, e.g., Arizona v. Maricopa County Med.
Soc., 457 U.S. 332, 344 (1982) (“For the sake of business
certainty and litigation efficiency, we have tolerated the
invalidation of some agreements that a fullblown inquiry might
have proved to be reasonable”); Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law, ¶ 1509c (2d ed. 2003) (observing
that per se analysis “dispenses with costly proof requirements,
such as proof of market power,” but consequently “produces a
certain number of false positives”). The converse — increased
litigation cost but reduced cost of error — obtains under the rule
of reason, which requires an exhaustive inquiry into all the
myriad factors “bearing on whether the conduct is on balance
anticompetitive or procompetitive.” Donald F. Turner, The
Durability, Relevance, and Future of American Antitrust Policy,
75 CAL. L. REV. 797, 800 (1987); see Frank H. Easterbrook, The
Limits of Antitrust, 63 Tex. L. Rev. 1, 12–13 (1984) (“When
everything is relevant, nothing is dispositive .... Litigation costs
are the product of vague rules combined with high stakes, and
nowhere is that combination more deadly than in antitrust
litigation under the Rule of Reason”).

     Since Professional Engineers the Supreme Court has
steadily moved away from the dichotomous approach — under
which every restraint of trade is either unlawful per se, and
hence not susceptible to a procompetitive justification, or
subject to full-blown rule-of-reason analysis — toward one in
which the extent of the inquiry is tailored to the suspect conduct
in each particular case. For instance, the Court did not hold
unlawful per se an agreement limiting the number of football
games each participating college could sell to television, which
agreement was challenged in NCAA v. Board of Regents, 468
                               9

U.S. 85, 100 (1984) (recognizing but declining to apply doctrine
that “[h]orizontal price-fixing and output limitation are
ordinarily condemned as a matter of law under an ‘illegal per se’
approach”); or the refusal of an organization of dentists to
provide x-rays to dental insurers, which was at issue in IFD, 476
U.S. at 458 (“Although this Court has in the past stated that
group boycotts are unlawful per se, we decline to resolve this
case by forcing the Federation’s policy into the ‘boycott’
pigeonhole and invoking the per se rule”) (citations omitted).
Compare, e.g., United States v. Socony-Vacuum Oil Co., 310
U.S. 150 (1940) (price-fixing per se unlawful); and Klor’s, Inc.
v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959) (group
boycott per se unlawful).

     At the same time, however, in NCAA and IFD the Court did
not insist upon the elaborate market analysis ordinarily required
under the rule of reason to prove the defendant had market
power and the restraint it imposed had an anticompetitive effect.
See NCAA, 468 U.S. at 109–10 (rule of reason analysis
unnecessary in light of district court’s finding price and output
not responsive to demand); IFD, 476 U.S. at 459 (“While this is
not price fixing as such, no elaborate industry analysis is
required to demonstrate the anticompetitive character of such an
agreement”). The Court instead adopted an intermediate
inquiry, since dubbed the “quick look,” to evaluate horizontal
restraints of trade. See, e.g., Areeda & Hovenkamp, Antitrust
Law, ¶ 1911a.

     It would be somewhat misleading, however, to say the
“quick look” is just a new category of analysis intermediate in
complexity between “per se” condemnation and full-blown “rule
of reason” treatment, for that would suggest the Court has
moved from a dichotomy to a trichotomy, when in fact it has
backed away from any reliance upon fixed categories and
                               10

toward a continuum. The Court said as much in California
Dental Association v. FTC:

    The truth is that our categories of analysis of
    anticompetitive effect are less fixed than terms like “per
    se,” “quick look,” and “rule of reason” tend to make them
    appear. We have recognized, for example, that there is
    often no bright line separating per se from Rule of Reason
    analysis, since considerable inquiry into market conditions
    may be required before the application of any so-called
    “per-se” condemnation is justified.

526 U.S. 756, 779 (1999).

      Rather than focusing upon the category to which a
particular restraint should be assigned, therefore, the Court
emphasized the basic point that under § 1 the essential inquiry
is “whether ... the challenged restraint enhances competition.”
Id. at 779–80 (quoting NCAA, 468 U.S. at 104). In order to
make that determination, a court must make “an enquiry meet
for the case, looking to the circumstances, details, and logic of
a restraint,” id. at 781, which in some cases may not require a
full-blown market analysis. The Court continued:

    The object is to see whether the experience of the market
    has been so clear, or necessarily will be, that a confident
    conclusion about the principle tendency of a restriction will
    follow from a quick (or at least quicker) look, in place of a
    more sedulous one. And of course what we see may vary
    over time, if rule-of-reason analyses in case after case reach
    identical conclusions.

Id.; cf. United States v. Microsoft, 253 F.3d 34, 84 (D.C. Cir.
2001) (declining to condemn per se tying arrangements
                                11

involving platform software products because there was “no
close parallel in prior antitrust cases” and “simplistic application
of per se tying rules carries a serious risk of harm”).

     In this case, as we have said, the Commission analyzed
PolyGram’s conduct under the legal framework it had devised
in Mass. Board (1988), which it maintains is consistent with the
Supreme Court’s teaching of more than a decade later in
California Dental (1999). FTC Op. at 28–29. The Mass. Board
analysis proceeds in several distinct steps:           First, the
Commission must determine whether it is obvious from the
nature of the challenged conduct that it will likely harm
consumers. If so, then the restraint is deemed “inherently
suspect” and, unless the defendant comes forward with some
plausible (and legally cognizable) competitive justification for
the restraint, summarily condemned. “Such justifications,” the
Commission explained, “may consist of plausible reasons why
practices that are competitively suspect as a general matter may
not be expected to have adverse consequences in the context of
the particular market in question, or they may consist of reasons
why the practices are likely to have beneficial effects for
consumers.” Id. at 29.

      If the defendant does offer such an explanation, then the
Commission “must address the justification” in one of two ways.
First, the Commission may explain why it can confidently
conclude, without adducing evidence, that the restraint very
likely harmed consumers. Id. at 33–34. Alternatively, the
Commission may provide the tribunal with sufficient evidence
to show that anticompetitive effects are in fact likely. Id. at 33.
If the Commission succeeds in either way, then the evidentiary
burden shifts to the defendant to show the restraint in fact does
not harm consumers or has “procompetitive virtues” that
outweigh its burden upon consumers. Id. at 34 n.45.
                                12

     PolyGram argues the Commission’s framework conflicts
with Supreme Court precedent by condemning a restraint that is
not per se illegal without the Commission having to prove the
restraint actually harms competition. According to PolyGram,
“proof of actual anticompetitive effect (or market power as its
surrogate) is required in any Rule of Reason case.”

     For reasons we have already explained, we reject
PolyGram’s attempt to locate the appropriate analysis, and the
concomitant burden of proof, by reference to the vestigial line
separating per se analysis from the rule of reason. See Areeda
& Hovenkamp, Antitrust Law, ¶ 1511a (“judges and litigants too
often assume erroneously that the classification, per se or rule of
reason, necessarily determines what must or may be alleged and
proved, made the subject of detailed findings, or submitted to
the jury”). At bottom, the Sherman Act requires the court to
ascertain whether the challenged restraint hinders competition;
the Commission’s framework, at least as the Commission
applied it in this case, does just that.

      We therefore accept the Commission’s analytical
framework.       If, based upon economic learning and the
experience of the market, it is obvious that a restraint of trade
likely impairs competition, then the restraint is presumed
unlawful and, in order to avoid liability, the defendant must
either identify some reason the restraint is unlikely to harm
consumers or identify some competitive benefit that plausibly
offsets the apparent or anticipated harm. That much follows
from the caselaw; for instance, in NCAA the Court held that a
“naked restraint on price and output requires some competitive
justification even in the absence of a detailed market analysis.”
468 U.S. at 110. Similarly, in IFD, the Supreme Court ruled a
horizontal agreement to withhold services could not be sustained
because the dentists failed to advance any “credible argument”
                               13

that “some countervailing procompetitive virtue ... [redeemed]
an agreement limiting consumer choice by impeding the
‘ordinary give and take of the market place.’” 476 U.S. at 459;
see also California Dental, 526 U.S. at 771 (remanding for
closer look at challenged advertising restrictions after
concluding they “might plausibly be thought to have a net
procompetitive effect, or possibly no effect at all on
competition”).

     Although the Commission uses the term “inherently
suspect” to describe those restraints that judicial experience and
economic learning have shown to be likely to harm consumers,
see FTC Op. at 29, we note that, under the Commission’s own
framework, the rebuttable presumption of illegality arises not
necessarily from anything “inherent” in a business practice but
from the close family resemblance between the suspect practice
and another practice that already stands convicted in the court of
consumer welfare. The Commission appears to acknowledge,
as it must, that as economic learning and market experience
evolve, so too will the class of restraints subject to summary
adjudication. See California Dental, 526 U.S. at 781 (the ability
of a court to draw “a confident conclusion about the principal
tendency of a restraint ... may vary over time, if rule-of-reason
analyses in case after case reach identical conclusions); see also
Broad. Music, Inc. v. CBS, 441 U.S. 1, 9 (1979) (“it is only after
considerable experience with certain business relationships that
courts classify them as per se violations”). See generally
INDUSTRIAL CONCENTRATION: THE NEW LEARNING (Harvey J.
Goldschmid, H. Michael Mann, J. Fred Weston, eds., 1974).

      That said, we have no difficulty with the Commission’s
conclusion that PolyGram’s agreement with Warner in all
likelihood had a deleterious effect upon consumers — unless,
that is, PolyGram comes forward with some plausible
                                14

explanation to the contrary. An agreement between joint
venturers to restrain price cutting and advertising with respect to
products not part of the joint venture looks suspiciously like a
naked price fixing agreement between competitors, which would
ordinarily be condemned as per se unlawful. The Supreme
Court has recognized time and again that agreements restraining
autonomy in pricing and advertising impede the “ordinary give
and take of the market place.” IFD, 476 U.S. at 459; see also
NCAA, 468 U.S. at 107 (“[r]estrictions on price and output are
the paradigmatic examples of restraints of trade that the
Sherman Act was intended to prohibit”); Bates v. State Bar of
Ariz., 433 U.S. 350, 364 (1977) (advertising “serves to inform
the public of the availability, nature, and prices of products and
services, and thus performs an indispensable role in the
allocation of resources in a free enterprise system”).

      PolyGram’s fate in this case therefore rests upon the
plausibility of the sole competitive justification it proffered for
the moratorium agreement, namely, that the restrictions on
discounting and advertising enhanced the long-term profitability
of all three concert albums and promoted the “Three Tenors”
brand. According to PolyGram, each company was concerned
the other would “free ride” on the promotional activities of the
joint venture by promoting its own earlier concert album; as a
result fewer Three Tenors albums would be sold overall and the
joint venture would be less likely to create future products, such
as a “greatest hits” album or a boxed set. Thus, PolyGram
likens the moratorium agreement here to the restraint at issue in
Polk Brothers, Inc. v. Forest City Enterprises, 776 F.2d 185 (7th
Cir. 1985), where two potential retail competitors collaborated
to build a store offering some of each company’s products but
agreed not to sell competing products at the new store. Because
the restraint arguably promoted productivity and output by
controlling each participant’s ability to free-ride on the other’s
                                 15

promotional efforts, the court, rather than condemning the
restraint summarily, went on to evaluate it under the rule of
reason. Id. at 190.

      At first glance PolyGram’s contention has some force; the
moratorium appears likely to have mitigated the “spillover”
effects that could be expected to follow an aggressive launch of
the 1998 album. Absent the moratorium, that is, a consumer,
after learning of the new album through the joint venture’s
advertising, might decide that he would be just as happy with an
older concert album, especially if the older album were then
available at a discount. The “free-riding” to be eliminated by
the moratorium agreement, however, was nothing more than the
competition of products that were not part of the joint
undertaking. Why not an agreement by which PolyGram and
Warner would eliminate advertising and price competition on all
their records for a time while they focused exclusively upon
promoting the new Three Tenors album? The “procompetitive”
justification PolyGram offers is “nothing less than a frontal
assault on the basic policy of the Sherman Act.” Nat’l Soc’y of
Prof’l Engineers, 435 U.S. at 695.

      To take the Commission’s example, if General Motors were
vigorously to advertise the release of a new model SUV, other
SUV manufacturers would no doubt reap some of the benefit of
GM’s efforts. FTC Op. at 43. But that would not mean General
Motors and its competitors could lawfully agree to restrict prices
and advertising on existing SUV models in return for General
Motors giving its rivals a share of its profit on the new model.
Nor would an agreement to restrain prices and advertising on
existing SUVs be lawful if General Motors were to release the
new model SUV as a joint venture with one of its competitors.
Id. at 45. A restraint cannot be justified solely on the ground
that it increases the profitability of the enterprise that introduces
the new product, regardless whether that enterprise is a joint
                               16

venture or a solo undertaking. And it simply does not matter
whether the new SUV would have been profitable absent the
restraint; if the only way a new product can profitably be
introduced is to restrain the legitimate competition of older
products, then one must seriously wonder whether consumers
are genuinely benefitted by the new product. As the Supreme
Court said in Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643,
649 (1980),

    in any case in which competitors are able to increase the
    price level or to curtail production by agreement, it could be
    argued that the agreement has the effect of making the
    market more attractive to potential new entrants. If that
    potential justifies horizontal agreements among competitors
    imposing one kind of voluntary restraint or another on their
    competitive freedom, it would seem to follow that the more
    successful an agreement is in raising the price level, the
    safer it is from antitrust attack. Nothing could be more
    inconsistent with our cases.

See also Law v. NCAA, 134 F.3d 1010, 1023 (10th Cir. 1998)
(“While increasing output, creating operating efficiencies,
making a new product available, enhancing service or quality,
and widening consumer choice have been accepted by courts as
justifications for otherwise anticompetitive agreements, mere
profitability or cost savings have not qualified as a defense
under the antitrust laws”).

      In sum, because PolyGram has failed to identify any
competitive justification for its agreement with Warner to
refrain from advertising or discounting their competitive Three
Tenors products, we hold it violated § 5 of the FTC Act. Hence,
we need not go on to determine whether the Commission’s
findings of fact concerning actual competitive harm are
supported by substantial evidence.
                               17

     Finally, we hold the remedy ordered by the Commission
was reasonable. The Commission found there was a significant
risk that, if not prohibited from doing so, PolyGram would enter
into similar arrangements in the future. That determination is
supported by substantial evidence. The record shows the
condition that gave rise to the moratorium agreement — namely,
the company “fear[ed] that a new release by one of [its]
recording artists may lose sales to the artist’s older albums
owned by a competitor,” FTC Op. at 59 — is a recurrent one in
the record industry; therefore, PolyGram would have the same
incentive in the future to enter into other agreements to restrain
advertising and price discounting.

                         III. Conclusion

     For the foregoing reasons, PolyGram’s petition for
review is

                                                          Denied.