The Antitrust Attorney Blog
Author: Aaron Gott
There are a number of exemptions to and immunities from the federal antitrust laws. Some are well known, and we have written about many of them before. Jarod Bona catalogued the big ones—state-action immunity, the filed-rate doctrine, the insurance exemption under the McCarran-Ferguson Act, the baseball exemption, the Capper-Volstead Act for agricultural cooperatives, Noerr-Pennington, the statutory and non-statutory labor exemptions, implied immunity, export trade exemptions, foreign sovereign doctrines, the FTAIA, and primary jurisdiction.
Maybe you knew about the baseball exemption. But did you know about the Coca-Cola exemption? How about the Sports Broadcasting exemption? As you might expect, Congress has carved out various immunities and exemptions—often to serve a particularly powerful constituency—and Coca-Cola (and its bottlers) and the National Football League top the list for firms that hold enough cultural sway and political capital to obtain an antitrust golden ticket.
I’m an antitrust lawyer, and even I didn’t know about the Coca-Cola exemption—until I listened to the Coca-Cola episode of Acquired. And that wasn’t even the first time Acquired had taught me about antitrust: it also taught me about the Sports Broadcasting exemption. I decided enough was enough and catalogued some more of these lesser-known antitrust exemptions so that this doesn’t happen to you, too. Some of these exemptions are narrow, some are surprisingly broad. All of them are at least interesting.
The Fishermen’s Collective Marketing Act
Passed in 1934, the Fishermen’s Collective Marketing Act is essentially a Capper-Volstead Act for the fishing industry. It permits associations of fishermen to collectively catch, prepare, handle, and market fish and fish products without triggering antitrust liability. Like the Capper-Valstead Act, the fishermen’s exemption covers the cooperative’s core marketing activities but does not immunize predatory conduct—using the cooperative as a vehicle to harm processors, distributors, or other non-member competitors falls outside its protection. The Act is rarely litigated, which is part of why it flies under the radar, but for commercial fishing operations structured as cooperatives, it is the primary statutory basis for coordinating output and pricing that would otherwise look like textbook horizontal price-fixing. If you advise fishing cooperatives or process antitrust complaints in that industry, it’s worth understanding the ins and outs of this exemption. If don’t deal in the fish industry, you are now well on your way to crushing your next trivia question about obscure antitrust exemptions.
The Soft Drink Interbrand Competition Act
Did you know that Coca-Cola doesn’t actually make the product you know and love? Instead, it makes syrup, and it sells that syrup to independent bottlers through a licensing agreement. The bottlers mix that syrup with carbonated water and put it in a can or bottle, and then deliver it to the store where you buy it. Make no mistake, Coca-Cola tightly controls the process and this distribution model benefits Coca-Cola in myriad ways. But to make it work, Coca-Cola had to give these independents exclusive territories. And even though Coca-Cola’s distribution model had existed for decades, the FTC decided in the 1970s that it did not like it. (The agency also targeted Pepsi and its bottler network.) The FTC argued that the exclusive territorial arrangements that soft drink manufacturers used for bottler distribution violated Section 1 of the Sherman Act because they were unlawful market allocation agreements between competitors.
Congress passed the Soft Drink Interbrand Competition Act in 1980 to preempt that debate by statute, expressly authorizing exclusive territorial grants in carbonated soft drink distribution—so long as the manufacturer faces substantial and effective interbrand competition from other brands. That “interbrand competition” requirement is the meaningful limitation on the exemption: if a brand faces robust competition from other soft drink brands, its exclusive territories are immunized. If the market has become so concentrated that a brand faces no real interbrand pressure, the immunity is more fragile. The Act is a notable example of Congress legislating a specific safe harbor for a single industry’s distribution structure—conduct that, in most other contexts, could be unlawful depending on the specifics of the distribution structure.
The Newspaper Preservation Act
The Newspaper Preservation Act of 1970 authorizes joint operating agreements—JOAs—between competing newspapers in markets where one paper is at serious risk of financial failure. Under a JOA, two separately owned papers can merge their printing, distribution, advertising, and business operations while maintaining separate and independent editorial staffs. In antitrust terms, this is an explicit congressional authorization for competing publishers to share costs, coordinate pricing, and allocate markets in their commercial operations—conduct that would otherwise be per se illegal under the Sherman Act—so long as they seek preclearance to do so. The rationale is that two editorially independent papers sharing a back office serve the public better than one monopoly survivor. The Act requires the Attorney General to approve new JOAs, and the “probable danger of financial failure” standard is supposed to function as a real gatekeeping requirement—not a rubber stamp. The number of newspapers operating under JOAs has declined sharply as the industry has contracted, but as Pat Pascarella and I once argued, the JOA framework could still be relevant. And local news markets continue to consolidate as more and more papers go under.
The National Cooperative Research and Production Act
The National Cooperative Research and Production Act—the NCRPA—was originally enacted in 1984 as the National Cooperative Research Act and expanded in 1993 to cover production joint ventures. It does two distinct things. First, it requires that R&D and production joint ventures that file notification with the DOJ and FTC be evaluated under the rule of reason rather than the per se standard—a significant benefit given that horizontal coordination between competitors can attract fights over the application of the ancillary-restraints doctrine and possibly per se treatment. Second, and perhaps more importantly, it limits antitrust damages for qualifying ventures to actual damages rather than treble damages, even if the venture is ultimately found to have violated the antitrust laws. The notification process is not burdensome: the parties file with both agencies describing the venture’s scope and membership, and publish a summary in the Federal Register. The liability exposure drops substantially as soon as notification is filed. For technology consortia, standard-setting bodies, and any group of competitors considering pooled R&D or joint manufacturing, the NCRPA is a meaningful but often overlooked risk-reduction tool.
The Local Government Antitrust Act
The Local Government Antitrust Act of 1984—the LGAA—is distinct from, and more narrow than, state-action immunity under Parker v. Brown. State-action immunity is a complete defense: qualifying governmental conduct is simply not subject to antitrust liability. The LGAA operates differently. It does not immunize the underlying conduct; it eliminates only damages, and only for local governments and their officials. Under the LGAA, local governments and their officials acting in official capacities cannot be held liable for damages under the federal antitrust laws, even if their conduct is ultimately found to be anticompetitive. Injunctive and declaratory relief remain fully available. The practical consequence for plaintiffs is significant: before investing in antitrust litigation against a municipality or local agency, you need to assess whether injunctive relief alone justifies the cost, because treble damages—the usual engine driving private antitrust enforcement—are off the table. The LGAA damages bar can apply even when Parker immunity fails, so you want to consider both defenses in the case from the beginning.
The Shipping Act
The Shipping Act of 1984—updated by the Ocean Shipping Reform Act of 1998 and amended again by OSRA 2022—creates a regime of supervised antitrust immunity for ocean carrier agreements. Under the Act, common carriers can enter into agreements fixing rates, pooling revenues, allocating cargo, and coordinating vessel capacity, provided they file those agreements with the Federal Maritime Commission. Once filed, the agreements receive antitrust immunity unless the FMC acts to reject or modify them. The immunity is not unconditional: the FMC retains authority to prohibit agreement terms that are unjustly discriminatory or unreasonably harmful to shippers, and OSRA 2022 added new requirements around transparency and service contract compliance. But the core structure—FMC-supervised horizontal coordination among ocean carriers—remains intact and immunizes conduct that would be per se illegal under the Sherman Act in virtually any other context. For shippers challenging rate coordination or capacity management practices by ocean carriers, this means the FMC regulatory process, not an antitrust lawsuit, is generally the primary available remedy.
The Sports Broadcasting Act
The baseball exemption gets most of the attention in sports-and-antitrust discussions. Baseball’s exemption is judge-made, rooted in a 1922 Supreme Court decision holding that baseball was not interstate commerce—a conclusion the Court has since acknowledged was likely wrong but kept alive on stare decisis grounds. But there is another sports exemption that applies beyond baseball: the Sports Broadcasting Act.
Congress passed the Sports Broadcasting Act of 1961 (15 U.S.C. §§ 1291–1295) in direct response to antitrust litigation: a federal district court had held in United States v. National Football League that certain NFL restrictions on television broadcasting violated the Sherman Act. The Sports Broadcasting Act is a targeted statutory exemption limited to one specific type of transaction. The Act authorizes professional football, baseball, basketball, and hockey leagues to pool their member clubs’ broadcast rights and sell them to television networks as a single package, free from antitrust liability. Without the Sports Broadcasting Act, that arrangement—competing clubs agreeing to fix the price and terms at which they collectively sell their product—would invite serious antitrust scrutiny.
But the exemption is also narrower than it might appear. It covers “sponsored telecasting” of league games, not every broadcasting arrangement a league might devise. And courts have held the Act does not extend to cable television—the Seventh Circuit held in Chicago Professional Sports Ltd. Partnership v. NBA that cable deals fell outside the Act’s coverage, which is why the NBA faced a different antitrust analysis for its cable arrangements than for its network broadcast package.
Ever wonder why you can’t watch your home team’s home games on ESPN? The Sports Broadcasting Act is responsible for that. It has an explicit carve-out for home-market blackouts: the immunity does not apply when a game would be broadcast into the home territory of a member club on a day that club is playing at home, a provision designed to protect live gate attendance.
We’ve covered the major exemptions and immunities, and now I’ve covered a few lesser-known exemptions and immunities; but these aren’t the only antitrust exemptions and immunities in U.S. law. The landscape is patchwork, built up over more than a century of industry-specific legislation by a Congress that has periodically decided particular sectors warrant shelter from the Sherman Act. And there are more general, judge-made doctrines as well.
As with all antitrust exemptions and immunities, courts read these exemptions narrowly—the U.S. Supreme Court consistently starts its analysis in exemption cases with this proviso. So if you are trying to fit a client’s situation into one of these categories, the details matter.
Image by Kaden Rushton from Pixabay