Albrecht v. Herald Company/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, there is a word I would add. This is a 'rule of reason' case stemming from Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 62, 31 S.Ct. 502, 516, 55 L.Ed. 619. Whether an exclusive territorial franchise in a vertical arrangement is per se unreasonable under the antitrust laws is a much mooted question. A fixing of prices for resale is conspicuously unreasonable because of the great leverage that price has over the market. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221, 60 S.Ct. 811, 843, 84 L.Ed. 1129. The Court quite properly refuses to say whether in the newspaper distribution business an exclusive territorial franchise is illegal.

The traditional distributing agency is the neighborhood newspaper boy. Whether he would have the time, acumen, experience, or financial resources to wage competitive warfare without the protection of a territorial franchise is at least doubtful. Here, however, we have a distribution system which has the characteristics of a large retail enterprise. Petitioner's business requires practically full time. He purchased his route for $11,000, receiving a list of subscribers, a used truck, and a newspapertying machine. At the time his dispute with respondent arose, there were 1,200 subscribers on the route, and that route covered 'the whole northeast section' of a 'big city.' Deliveries had to be made by motor vehicle and although they were usually completed by 6 o'clock in the morning, the rest of the workday was spent in billing, receiving phone calls, arranging for new service, or in placing 'stop' or 'start' orders on existing service. Petitioner at times hired a staff to tie and to wrap newspapers.

Under our decisions the legality of exclusive territorial franchises in the newspaper distribution business would have to be tried as a factual issue; and that was not done here.

The case is therefore close to White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738, where before ruling on the legality of a territorial restriction in a vertical arrangement, we remanded for findings on 'the actual impact of these arrangements on competition.' Id., at 263, 83 S.Ct., at 702.

Mr. Justice HARLAN, dissenting.