Rfd Publications, Inc., Plaintiff-Petitioner/appellant v. Oregonian Publishing Co., and Newhouse Newspapers, Defendants-Respondents/appellees

BACKGROUND

This case is before us on interlocutory appeal from the grant of partial summary judgment in favor of Oregonian Publishing Co. and the denial of RFD Publications’, cross motion for summary judgment. The only issue on appeal is whether Oregonian’s sale of advertising space in a section of its newspaper that is mailed to nonsub-scribers constitutes the sale of a single service or two distinct services for the purposes of predatory pricing analysis. The district court held that only one service is present. We have jurisdiction pursuant to 28 U.S.C. § 1292 (b).

RFD publishes This Week, a weekly magazine carrying large amounts of advertising that is mailed free of charge to substantially all households in the metropolitan Portland area. Oregonian publishes The Oregonian, a major daily newspaper in the metropolitan Portland area. The Wednesday edition of The Oregonian includes a section entitled “FOODday,” which, in a slightly altered format, is mailed to nonsubscribers together with a supplement called “Update.” Oregonian charges advertisers who purchase space in FOODday a single price that is slightly higher than that charged for space in the other sections of The…