Mediacom Communications Corp. v. Sinclair Broadcast Group, Inc.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

Plaintiff, Mediacom Communications Corporation (“Mediacom”), brings this action against Defendant, Sinclair Broadcast Group, Inc. (“Sinclair”), asserting violation of the Sherman Antitrust Act (15 U.S.C. § 1), tortious interference with contracts *1015 and business expectations, and unfair competition. Clerk’s No. 1. The Court has before it Plaintiffs Motion for Preliminary Injunction and Request for Expedited Relief, filed on October 11, 2006 (Clerk’s No. 4) pursuant to Federal Rule of Civil Procedure 65(b), and Sinclair’s Motion to Strike or, in the Alternative, to Grant Leave to Respond to Mediacom’s Reply, filed on October 23, 2006 (Clerk’s No. 34). Media-com is seeking to enjoin Sinclair from terminating the existing retransmission agreement which allows Mediacom to carry Sinclair’s broadcast stations, and from initiating any active marketing campaign designed to induce Mediacom subscribers to discontinue services with Mediacom. Sinclair filed a Resistance on October 17, 2006. Clerk’s No. 18. Oral arguments on the Motion for Preliminary Injunction were heard on October 18, 2006. Clerk’s No. 27. Additional briefing followed the preliminary injunction hearing. See Clerk’s Nos. 28, 31-33. The matter is fully submitted. For the reasons discussed below, Mediacom’s Motion for Preliminary Injunction is DENIED. 1

I. FACTUAL BACKGROUND

Mediacom owns franchised cable television systems which provide multiple television services in a number of metropolitan areas. Pl.’s Mem. of Law Supp. Mot. for Prelim. Inj. (hereinafter “Pl.’s Mot.”) at 3; Compl. ¶ 1. Essentially, Mediacom provides cable television services to consumer viewers. Sinclair is a television broadcasting business which focuses on acquisition, development, and operation of television stations in small and medium sized markets in the U.S. Compl. ¶ 2. Sinclair owns major, and non-major, network affiliated television stations. Pl.’s Mot. at 2. Both companies operate in the following television Designated Market Areas (“DMAs”): St. Louis, Des Moines-Ames, Cedar Rapids, Lexington, Mobile-Pensacola, Cham-paign-Springfield-Decatur, Madison, Greenville-Spartanburg-Ashville, Peoria-Bloomington, Nashville, Tallahassee, Padu-cah-Cape Girardeau, Minneapolis, Milwaukee, Birmingham, and Norfolk. Id. at 3-4. Mediacom has approximately 625,000 households that receive Sinclair’s broadcast stations, of which 325,000 are households in Iowa. Supp. Decl. of John Pascar-elli (hereinafter “Pascarelli Supp.”) ¶ 5.

Under Section 325(b) of the Communications Act of 1934, as amended, Sinclair, as a broadcast station, must elect a “retransmission consent” or a “must-carry” status with cable operators. Pl.’s Mot. at 2 n. 1. Once Sinclair makes an election, it is effective for three years and cannot be changed until the following three year cycle. Id. “Retransmission consent” is a federally created statutory right in a television station’s broadcast signal, as opposed to the contents of the signal (which are protected by copyright) that broadcasters may attempt to sell in that station’s local market. Id. If Sinclair elects “retransmission consent” status with a cable operator, the parties will negotiate in good faith for the retransmission rights. Pl.’s Mot. Ex. C (Decl. of James A. Levinsohn, hereinafter “Levinsohn”) at 10. If Sinclair elects “must-carry” status with a cable operator, the cable operator is required to carry the television station’s broadcast signal, without any compensation to either Sinclair or the cable operator. See Pl.’s Mot. at 2 n. 1; Levinsohn at 11. Thus, popular stations generally elect “retransmission consent,” and less popular stations elect “must-carry,” since cable operators would not otherwise choose to carry the less pop *1016 ular stations without compensation. Lev-insohn at 11.

On September 29, 2005, Sinclair informed Mediacom that it had elected “retransmission consent” status for all twenty-two Sinclair stations currently carried by Mediacom. Pl.’s Mot. at 4. Mediacom initially carried Sinclair’s stations pursuant to a retransmission agreement signed on December 23, 2002. Id. at n. 2. The 2002 retransmission agreement, which remains in effect, contains an extension clause that allows Mediacom to carry Sinclair’s stations on a month-to-month basis. Id. The extension clause automatically renews on a monthly basis, and is subject to termination with respect to one or more stations by either party, with 45 days advance written notice. Id.; Pl.’s Mot. Ex. A (Decl. of John Pascarelli, hereinafter “Pascarelli”), Exs. 2, 3.

In October of 2005, Mediacom contacted Sinclair to initiate negotiations for the retransmission rights for the January 1, 2006 to December 31, 2008 cycle. Pascarelli ¶ 4. During negotiations, Sinclair stated that it expected to be paid cash for retransmission rights for each of its twenty-two stations. PL’s Mot. at 4. Traditionally, Sinclair allowed cable companies, including Mediacom, to carry analog signals for free, and generally sought compensation only for new digital signals. Decl. of Barry Faber (hereinafter “Faber”) ¶ 7. However, Sinclair realized that satellite companies, who competed with cable companies, were willing to pay for the same analog signals. Id. ¶ 9. Sinclair also became increasingly aware of the amount cable companies routinely paid for other non-broadcast stations, e.g., TNT, HGTV, and Animal Planet. Id. ¶ 10. Thus, for the first time in 2005, Sinclair began actively seeking compensation for analog signals from cable companies. Id. ¶ 11.

Mediacom responded by stating that it would only consider purchasing the retransmission rights for the thirteen Sinclair stations which were affiliated with major networks. PL’s Mot. at 4. These thirteen stations consisted of: KB SI, KDNL, KDSM, KGAN, WDKY, WEAR, WICD, WICS, WLOS, WMSN, WYZZ, WZTV, and WTWC (collectively referred to as “the Tying Stations”). Mediacom informed Sinclair that it was not interested in negotiating retransmission rights for the other nine stations: WUCW, WMYA, WCGV, WVTV, WDBB, WDKA, WNAB, WUXP, and WTVZ (collectively referred to as “the Tied Stations”). 2 Id. at 4-5. Mediacom explained that carrying the Tied Stations was of little value due to low subscriber demand, and believed that freeing up the channels currently occupied by the Tied Stations would benefit Mediacom. Id. at 5, Ex. B (Decl. of Jane Bedford, hereinafter “Bedford”) ¶ 3. Throughout negotiations, Sinclair continued to refuse any offers made by Mediacom that were anything less than a “global agreement” for all twenty-two stations. See Pascarelli ¶ 12.

After almost eight months of unsuccessful negotiations, in June of 2006, Sinclair threatened to terminate the existing retransmission agreement. Id. ¶ 13. On June 14, 2006, Sinclair allegedly informed Mediacom that Sinclair had entered into an agreement with a Direct Broadcast Satellite (“DBS”) company, either DirecTV or The Dish Network, both are direct competitors of Mediacom. Id. ¶ 18. Under the terms of Sinclair’s agreement with the

*1017 DBS company, Sinclair allegedly would be reimbursed for any lost advertising revenue due to any interruption or termination of its relationship with Mediacom, and Sinclair would receive consideration, monetary or otherwise, for each Mediacom subscriber that switched to the DBS company as a result of the same (the “Bounty Payment Agreement”). Id. Sinclair claims that the “agreement” between itself and the DBS company is mischaracterized. See Faber ¶¶ 59-61. Sinclair states that in late August or early September of 2006, unrelated to its negotiations ■ with Media-com, the Chairman of the FOX Affiliate Board completed a customer referral agreement with DirecTV, which allowed FOX affiliated stations to be compensated for new customers that were referred to DirecTV as a result of commercials DirecTV aired on the participating FOX stations. 3 Id. ¶ 61.

Regardless, after further negotiations between Mediacom and Sinclair failed, on September 28, 2006, Mediacom received written notice from Sinclair terminating the 2002 retransmission agreement. Pas-carelli ¶ 25. The notice required Media-com to terminate carriage of all twenty-two Sinclair stations by midnight, November 30, 2006. Id. Pursuant to Federal Communications Commission (“FCC”) regulations, Mediacom, in turn, must provide subscribers with thirty days advance notice of changes in its programming services. Id. ¶ 26 Accordingly, if Mediacom’s requested injunction is not granted, Medi-acom must provide notice to its subscribers regarding the termination of carriage of the Sinclair stations no later than November 1, 2006. Id.

II. LAW AND ANALYSIS 4

The purpose of issuing a preliminary injunction in a lawsuit is to preserve the status quo and to prevent irreparable harm until the parties have a chance to conduct discovery and the court has an opportunity to hold more extensive hearings on the lawsuit’s merits. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.1994). Federal Rule of Civil Procedure 65 authorizes the court to enter a preliminary injunction where appropriate. See Fed.R.Civ.P. 65(a). It is well established that a party is entitled to equitable relief only if there is no adequate remedy at law. Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir.2005).

The burden of establishing the propriety of a preliminary injunction is on the movant. See Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994) (citing Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989) (en banc)). A preliminary injunction is an extraordinary form of relief and must be carefully considered. See Calvin Klein Cosmetics, Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 667 (8th Cir.1987). This Court believes that the power to grant a preliminary injunction is an awesome power invested in the district court, as it expedites the trial process and necessarily requires the Court to analyze the record carefully to determine whether Plaintiff has shown it will be irreparably harmed absent the issuance of the requested relief.

*1018 In this Circuit, the four-part test enunciated in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) (en banc) is applied to determine if preliminary injunctive relief is appropriate. The test set forth in Dataphase involves examining four factors: (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties and litigants; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Id. at 113. The Eighth Circuit has determined that no single factor is dispositive; all factors must be considered and balanced to determine whether to grant a preliminary injunction. See Int’l Ass’n of Machinists and Aerospace Workers v. Schimmel, 128 F.3d 689, 692 (8th Cir.1997). Accordingly, this Court will consider each of the four factors in turn.

A. Irreparable Harm

The first factor that the Court must consider in its determination of whether or not to issue a preliminary injunction is the irreparable harm to Media-com if the injunction is not granted. “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). Absence of irreparable injury is sufficient grounds to deny a preliminary injunction. See Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989).

In support of this factor, Mediacom states that if Sinclair is allowed to terminate the retransmission contract, it would irreparably harm Mediacom’s reputation, goodwill, and business. Specifically, Medi-acorn argues that once it gives notice to its subscribers of the termination in carriage of the Sinclair stations, those subscribers who viewed Mediacom as the “ubiquitous source” for all major broadcast stations will become confused as to whether Media-com can be trusted to deliver all of the local television stations important to them. PL’s Mot. at 15. Customers will lose confidence in Mediacom and switch to DBS companies, regardless of whether carriage of the Sinclair stations is eventually terminated. Once customers switch to DBS companies, such as DirecTV and/or The Dish Network, it would be difficult to “win back” the customers because DBS companies require twelve to twenty-four month subscription contracts. 5 Id. at 14-15. This would prevent former Mediacom subscribers from switching back in the short term.

Mediacom contends that Sinclair’s advertising campaign would also cause irreparable harm. Sinclair’s advertising campaign threatens to inform Mediacom subscribers that Mediacom is “refusing to carry” the stations, and would encourage Mediacom subscribers to switch to DBS companies. Id. at 15. This, Mediacom argues, would mislead subscribers to blame Mediacom for the loss of stations, and lead the subscribers to believe that Mediacom may never carry the affected stations ever again. Id. This would have the effect of encouraging subscribers to call local officials to pressure Mediacom to “agree to carry” the stations, which in turn would damage Mediacom’s reputation among local government officials, who are responsible for granting Mediacom the right to do business. See Pascarelli ¶ 28. Additionally, Mediacom would lose revenue from local advertisers because they may cease to buy advertisement from Mediacom out of fear of the diminished subscriber base. Id.

*1019 Moreover, Mediacom contends that if the preliminary injunction is not granted, consumers will be harmed. That is, those subscribers serviced with the Tied Stations will be forced to pay higher prices for stations that they do not value, and the ■ channel lineup would not reflect subscriber preferences, but rather would reflect the preferences of Sinclair. This, in turn, would cause subscribers who prefer cable service to change services to DBS companies. See Levinsohn at 34-36. Mediacom reiterates that it would suffer a variety of harms which are impossible to measure if the preliminary injunction is not granted.

In opposition, Sinclair states that Media-com’s alleged injuries are not antitrust injuries. 6 Sinclair contends that under Section 26 of the Clayton Act, Mediacom must show that it has or will suffer an antitrust injury. 15 U.S.C. § 26 (stating injunctive relief for violation of the antitrust laws); see also Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344-45, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990) (concluding “antitrust injury” required for relief under Section 1 of the Sherman Act). Mediacom “must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent.... ” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). Sinclair points out that the potential injuries raised by Mediacom flow from the termination of the retransmission agreement, not the tying arrangement, and thus are unconnected to the alleged antitrust violation. See id. (finding injury must flow from that which makes the acts unlawful). Furthermore, Sinclair claims that when consumers decide to switch to DirecTV or The Dish Network because they offer more attractive programming, such choices among competing products are precisely what the antitrust laws were designed to foster. The Court agrees with Sinclair.

Here, Mediacom alleges potential injuries to its goodwill, reputation, and business relationship with local government officials. The alleged harm Mediacom asserts seems unlikely. For example, Medi-acom submitted letters from local government officials who expressed concern over Mediacom’s dispute with Sinclair, specifically in the way Sinclair was “forcing” Mediacom to purchase certain stations. See Pascarelli Supp. Exs. 1-10. The letters do not, in any way, indicate that the local government officials would blame Mediacom for the loss of stations or view Mediacom negatively because subscribers may call to complain about Mediacom’s loss of stations. In fact, the letters tend to be sympathetic to Mediacom’s situation and seem to blame Sinclair for the possible loss of stations.

Moreover, Mediacom’s claim that the denial of the preliminary injunction would harm consumers is also misplaced. The “irreparable harm” to its subscribers that *1020 Mediacom alleges (higher prices for stations that subscribers do not value, or being forced to switch to the more expensive DBS companies) are not irreparable. Any harm that Mediacom subscribers may suffer is tangible. Mediacom subscribers who switch to DBS companies or invest in an antenna to view Sinclair stations can easily quantify the costs incurred as a result of the termination of programming. See Curtis 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1272 (N.D.Iowa 1995) (concluding irreparable harm cannot be established if money damages would adequately compensate the asserted harm).

As a general rule, antitrust laws were passed for the protection of competition, not competitors. Thus, inflicting painful losses on competitors “is of no moment to the antitrust laws if competition is not injured.” Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d 340, 344 (8th Cir.1995) (quoting Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 224, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993)). In this instance, although Media-com’s alleged “injury-to-goodwill [and reputation within the community may] constitute the sort of intangible injuries which may be found to be irreparable harm,” Mediacom has not demonstrated that it has, or will, suffer an antitrust injury if the preliminary injunction is not granted. Moore Bus. Forms, Inc., v. Wilson, 953 F.Supp. 1056, 1062 (N.D.Iowa 1996); see Mid-Am. Real Estate Co. v. Iowa Realty Co., Inc., 406 F.3d 969, 977 (8th Cir.2005) (noting an injury is legally irrelevant if the conduct from which it stems is legal). In particular, Mediacom has failed to show how Sinclair’s alleged illegal tying arrangement would result in harm to competition. As Sinclair points out, the injuries alleged by Mediacom flow from the termination of the current retransmission agreement, not from the alleged illegal tying arrangement. While it is true that subscribers may decide to switch to DBS companies or invest in an antenna to view Sinclair stations, 7 this does not amount to a showing of harm to competition. Indeed, Mediacom states that there will be a “decidedly harmful effect on ... competition,” but fails to explain how competition will be harmed, except to point to the possible harm to Mediacom’s business, reputation, goodwill, and higher prices for subscribers. Pl.’s Mot. at 17; Levinsohn at 34-37. Surely Mediacom would be “in a worse position” if the transmission agreement is terminated than it would have been had Sinclair acquiesced to Mediacom’s price proposals during negotiations, but that is insufficient to show antitrust injury. See Brunswick, 429 U.S. at 486, 97 S.Ct. 690 (concluding actions are condemned only when they may produce anticompetitive effects). Mediacom has not illustrated how the tying arrangement would harm competition, and thus, has not met its burden of demonstrating that it will suffer irreparable harm in the form of an antitrust injury. Accordingly, the Court finds that the irreparable harm factor weighs against granting the preliminary injunction. 8

*1021 B. Balance of Harms

The second factor the Court must consider in deciding whether to issue a preliminary injunction is the state of the balance between Mediacom’s alleged harm and the injury that granting the injunction will inflict on other parties or litigants. The analysis of this factor is different from the “irreparable harm” analysis. In contrast to the irreparable harm factor, the balance of harms analysis examines the harm of granting or denying the injunction upon both parties to the dispute, as well as to other interested parties. Dataphase, 640 F.2d at 114. The balance of harms must tip decidedly toward the plaintiffs to justify issuing a preliminary injunction. See Lynch Corp. v. Omaha Nat’l Bank, 666 F.2d 1208, 1212 (8th Cir.1981). In analyzing the balance of harms, the district court may look to, amongst other things, the threat to the rights of the parties and the threat to the financial stability of the parties. See Moore Bus. Forms, 953 F.Supp. at 1067 (balancing the financial impact on the parties).

Here, although Mediacom may suffer loss in goodwill and reputation, there is no indication that denying the preliminary injunction would result in Mediacom’s bankruptcy, reduction in its work force, or any other such drastic harm. Mediacom insists that the granting or denying of the preliminary injunction in this case directly effects other interested parties, i.e., its subscribers. That is, Mediacom subscribers would suffer irreparable harm, in that they would be forced to seek out DBS companies at higher prices, or be forced to stay with Mediacom with less programming options. Pl.’s Mot. at 14-15. The Court disagrees. As previously discussed, any harm that Mediacom subscribers may suffer are tangible and quantifiable, and there is more than an adequate remedy at law in the form of compensatory damages.

Sinclair, on the other hand, has a right to enforce a contract provision entered into by two informed, sophisticated businesses. Certainly, granting the injunction would not critically injure Sinclair’s overall business, as any negotiations that may be reached in the future could provide for a retroactive compensation date that would make Sinclair whole. However, the Court is reluctant to force Sinclair to maintain a business relationship with Mediacom when both parties clearly contemplated, and agreed to, a termination provision. In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, the Supreme Court explained that the Sherman Act “does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business ... to exercise his own independent discretion as to parties with whom he will deal.” 540 U.S. 398, 408, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) (citation omitted). Accordingly, the balance does not tip decidedly toward Me-diacom and weighs against granting the preliminary injunction.

C. Probability of Success on the Merits

The third factor the Court must consider in deciding whether to issue a preliminary injunction is the likelihood that Mediacom will succeed on the merits. Mediacom argues that there is a substantial likelihood that it will prevail on the merits of the antitrust claim because Sinclair’s actions constitute an illegal per se tying arrangement. A tying arrangement occurs when a party uses its market power in the tying product to force customers to buy the tied product, thereby harming competition. See Jefferson Parish Hosp. v. Hyde, 466 U.S. 2, 14, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984) (finding tying arrangements are unlawful when forcing occurs). Typically, most antitrust claims are analyzed under the “rule of reason,” which *1022 questions whether the practice at issue imposes an unreasonable restraint on competition. Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 558 (8th Cir.1998). But certain types of restraints, including tying arrangements, have, in the past, been deemed so inherently anticom-petitive that they were considered illegal per se. 9 See id. Thus, the Court must first determine if there was an illegal tying arrangement, and whether that tying arrangement, if any, was per se illegal.

1. Illegal tying: did Sinclair coerce Mediacom?

As an initial matter, “there is nothing inherently anticompetitive about packaged sales.” Jefferson Parish, 466 U.S. at 25, 104 S.Ct. 1551. Packaged sales, or tying arrangements, are violations of antitrust law only if “the defendant has coerced buyers into purchasing a product which such buyers otherwise would not have purchased or would have purchased from a different source other than the defendant.” Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1499 (8th Cir.1992) (emphasis added). To determine whether Sinclair’s packaged offer constituted illegal tying, the threshold inquiry becomes whether Sinclair coerced Mediacom. See Jefferson Parish, 466 U.S. at 12, 104 S.Ct. 1551 (concluding when “forcing” is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated).

Here, Mediacom asserts that Sinclair’s conduct is illegal tying because even though Mediacom did not want to purchase the Tied Stations, given Sinclair’s take-it-or-leave-it packaged offer, it must purchase the retransmission rights of the Tied Stations to purchase the retransmission rights of the Tying Stations. Mediacom explains that throughout the negotiations, Sinclair attempted to force Mediacom to enter into an agreement that included both the Tying and the Tied Stations. Pascarelli ¶ 10. Sinclair maintained its position even after Media-com explained it was only interested in negotiating for the Tying Stations. Id. ¶ 8. Mediacom informed Sinclair that there was little value assigned to carrying the Tied Stations due to low consumer demand, and due to that fact Media-com felt that it could make higher value use of the channels that the Tied Stations currently occupied with Mediacom. Bedford ¶ 3. Sinclair, nonetheless, forced Mediacom to buy the Tied Stations by only offering a bundled package. Levin-sohn at 30-32. Mediacom claims that “Sinclair will not allow Mediacom to purchase retransmission rights for any one station, or any group of stations, except as part of a single package that includes payment for Mediacom’s retransmission of all of the Sinclair stations.” Pl.’s Mot. at 8-9. Mediacom further contends that Sinclair’s October 10, 2006 letter, which offered a station-by-station proposal, should not dispel the existence of a tying arrangement. Mediacom states that the October 10 offer is a sham because, based on the proposed prices of the individual station’s retransmission rights, purchasing the packaged offer is the “only viable economic option” for Mediacom. Pl.’s Supp. Auths. in Supp. of Pl.’s Mot. for Prelim. Inj. (hereinafter “Pl.’s Supp.”) at 1-2 (citing Amerinet, 972 F.2d at 1498).

*1023 In response, Sinclair contends that its actions did not amount to unlawful tying because it did not force or coerce Mediacom to carry the Tied Stations. Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (hereinafter “Def.’s Opp’n”) at 8. Specifically, on October 10, 2006, just a day prior to Mediacom filing the instant motion for preliminary injunction, Sinclair offered to negotiate on a station-by-station basis. See Faber Ex. 1. Generally, the conditions at the time of the hearing, rather the commencement of the suit, will be the basis for any injunctive relief. Because “equity interposes by injunction to prevent only future acts, conduct that [has] been discontinued before or after a suit is brought to restrain such conduct is generally an insufficient basis for injunctive relief.” 42 Am.Jur.2d Inj. § 3 (2006). However, the discontinuance of wrongful or illegal conduct does not alone warrant the denial of injunctive relief. To determine whether the discontinued course of conduct should be enjoined, courts consider the genuineness of an expressed intent to not repeat the conduct, the effectiveness of the discontinuance, and the character of past violations. Id. Although Mediacom asserts that Sinclair’s October 10 letter was a sham, it appears that Sinclair effectively discontinued any alleged tying arrangement by offering Mediacom the option to purchase the retransmission rights on a station-by-station basis. Faber Ex. 2. Moreover, any alleged tying arrangement that Sinclair may have previously offered Mediacom expired on October 5, 2006. Supp. Decl. of Barry Faber (hereinafter “Faber Supp.”) ¶ 7. Thus, but for the offer outlined in Sinclair’s October 10 letter, there is currently no other offer, legal or illegal, that Mediacom can accept or reject.

Mediacom’s only effort to show that the October 10 proposal was not effective in discontinuing Sinclair’s alleged tying arrangement is to argue that the October 10 offer amounted to an “economic tie.” That is, although it appears on its face that Mediacom had a choice between the packaged offer and the station-by-station offer, 10 taking the packaged offer was the “only viable economic option” because under the October 10 proposal, Mediacom would be paying one million dollars more to purchase only the retransmission rights for the Tying Stations, on a station-by-station basis, as opposed to purchasing the retransmission rights for both the Tying and the Tied Stations under the packaged offer. Pl.’s Supp. at 1. It is true that the Eighth Circuit has noted that a tying arrangement may be shown if the defendant’s policy makes purchasing of the tying and the tied products together the only viable economic option, however, in this instance, Mediacom has not demonstrated that the October 10 offer was the only viable economic option. Specifically, Mediacom has not shown that the offer would be “prohibitedly more” than the packaged offer. See Amerinet, 972 F.2d at 1500-01. One million dollars is a substantial amount in the abstract, however, for Mediacom, a multi-million dollar company, one million dollars may not have such a significant impact as Mediacom suggests. For Mediacom, there may be business considerations that make the station-by-station offer more attractive, despite the higher cost. Mediacom has previously pointed out that it could make “higher value use” of the channels that are currently being occupied by the Tied Stations. It is unclear to the Court whether Media-com’s intended “higher value use” of the channels would justify the additional one million dollars, but it is likewise unclear to the Court that the additional one million *1024 dollars to purchase only the retransmission rights of the Tying Stations would be “pro-hibitedly more,” as to make the packaged offer the “only viable economic option.” This is particularly true in light of the fact that, in Mediacom’s Form 8-K, 11 Media-com stated: “Sinclair is seeking compensation that we believe to be in excess of what is appropriate, although that amount is not material to our results of operations or financial condition.” Faber Ex. 36 (Media-com’s Form 8-K filed September 28, 2006) (emphasis added). Therefore, based on the speculative evidence before it, the Court cannot conclude that Sinclair’s packaged offer was the only viable economic option for Mediacom.

Even assuming the October 10 letter did not discontinue the alleged tying arrangement, after a thorough review of the record, it does not appear that Mediacom was coerced to carry the Tied Stations. To wit, Mediacom carries the Tied Stations today, and Mediacom has been, and is still willing to carry the Tied Stations in the future. See Faber ¶¶ 16, 19, 20 and corresponding exhibits (e-mail from Mediacom to Sinclair stating, “we prefer to have these stations included in our discussions with you”; letter from Mediacom to Sinclair “we will continue analog carriage of the stations that are presently affiliated with UPN or WBN [the Tied Stations]”). Under the current retransmission agreement, Media-com has the absolute right to terminate the carriage of any one of Sinclair’s twenty-two stations, provided Mediacom gives 45 days advance written notice. See Pas-carelli Exs. 2, 3. Up until Sinclair gave its own notice of termination to Mediacom on September 28, 2006, Mediacom had the right to terminate the carriage of any, or all, of the Tied Stations. Mediacom, however, never previously exercised its right to terminate the carriage of the Tied Stations. Despite this fact, Mediacom argues that, at this juncture it is being forced to carry the Tied Stations. The Court disagrees. During negotiations, Mediacom was informed by Sinclair that Mediacom could carry only the Tying Stations, but would have to pay a higher price. Faber Ex. 20. It is true that Sinclair may have been offering both the Tying and Tied Stations together for a lower net price, but that itself does not constitute an illegal tying arrangement. This is especially true given that Mediacom has not provided any evidence that the prices Sinclair sought for the Tying or the Tied Stations were above fair market value. That is, “[w]here the buyer is free to take either product by itself there is no tying problem even though the seller may also offer the two items as a unit single price.” Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996) (quoting N. Pac. Ry. Co. v. U.S., 356 U.S. 1, 6 n. 4, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958)). This philosophy of buy more, save more, is encountered by consumers in everyday life, where consumers are given the choice to realize higher savings by buying in bulk, e.g., buy two get one free.

Moreover, the Nielsen viewer ratings data does not weigh in favor of the notion that Mediacom was being forced to carry the Tied Stations. See Faber Ex. 3. Based on the number of viewers tuned in to the Tied Stations, it seems unlikely that Medi-acom was being forced to carry the Tied Stations at the peril of other non-Sinclair stations it would have preferred to carry. The Court’s reading of the May 2006 Nielsen Media Research data on prime-time share of viewing households shows that the Tied Stations have ratings as high as, or often times higher than, other cable channels carried by Mediacom.