has failed to capitulate before the taking of testimony. However, in this case it is not at all clear that the decree was "to the effect" that the defendants violated one of the antitrust laws, i.e., Section 7 of the Clayton Act, rather than Section 5 of the FTC Act, which is not such a law.
To be sure, the hearing examiner found a violation of Section 7. But his decision was never adopted by the Commission. In fact, the order which the FTC issued departed substantially from the examiner's suggested decree in that it encompassed several of the additional abuses enumerated in Count II of the complaint, which dealt with FTC Act violations. It will be recalled that Count II began by incorporating the same factual charge of unlawful acquisitions as that contained in Count I. Therefore, it is conceivable that the FTC might have ultimately determined that the defendants' conduct throughout constituted only "unfair methods of competition" not rising to the level of an "antitrust law" violation.
Section 5(a) is undoubtedly a powerful deterrent to antitrust violators and an enviable weapon in the armory of the treble damage suitor. It is also an undeniable aid to the government in correcting antitrust abuses without the necessity of protracted litigation. But it is precisely because the effect of the invocation of Section 5(a) is so potently prejudicial and its "emotive impact" (especially in a jury case) so great, Monticello Tobacco Co. v. American Tobacco Co., 197 F.2d 629, 631 (C.A. 2, 1952), cert. denied, 344 U.S. 875, 97 L. Ed. 678, 73 S. Ct. 168 (1952), that we must restrict the application of the statutory mandate to its logically compelling consequences. Here, we are drawn to no ineluctable inference that the Commission's order was "to the effect" that a Section 7 violation had occurred. Rather, we are confronted with an ambivalence which neither intensive interpretation nor reasoned reflection can resolve.
Furthermore, even if this decree were to the effect that defendants violated the antitrust laws, it would, at best, only show prohibited conduct in a market composed of the combined New York and Philadelphia Film Exchange Areas.
The relevant market for the purposes of the present suit is the Philadelphia area. Of course, it cannot be said that illegal behavior in a defined market area necessarily assumes anticompetitive conduct in any included portion of that area. Since we cannot say that the FTC order was "to the effect" that defendants violated Section 7, we need not reach the question of whether the decree would have any probative value at all as to the merits of this case.
Our decision also renders unnecessary any attempt to delineate those matters of which the FTC order "would be an estoppel" and hence prima facie evidence in the present action.
The Federal Trade Commission consent order will not be admissible in evidence nor may any reference be made to its existence or terms at trial.
It is so ordered.