GARZA, Circuit Judge:
In Affiliated Capital Corp. v. City of Houston, 519 F.Supp. 991 (S.D.Tex.1981), the district court granted the defendant’s judgment n.o.v. motion in an antitrust action because 5t believed there was insuffi“ent evidence f0n,necting Plaintiffs ^ ^ conspiracy to llmlt competition and its failure í a cable television franchise. A divided panel of this court re- . in , _ . . r ™vsed *hat decisi0n holdmg am°ng things that the conspiracy complained of was a per se antitrust violation. Affiliated Capital Corp. v. City of Houston, 700 F.2d 226 (5th Cir.1983). We vacated that decision and decided to hear this case en banc, 714 F.2d 25 (5th Cir.1983). Because the [1557] district court’s j.n.o.v. ruling can be reversed without reaching the issue of a per se violation, we again reverse the court below, and reinstate the jury verdict. The City of Houston is not a party to this appeal, having been voluntarily dismissed by the plaintiff on June 23, 1982.
I.
FACTS
The events leading to the litigation at bar commenced in 1972, when several firms sought cable television franchises from the city of Houston. After reviewing these applications the Houston Public Service and Legal Departments recommended two firms to the Mayor and City Council. The Mayor and City Council then awarded one corporation a franchise for the entire city. The unsuccessful franchise applicant, Gulf Coast Cable Television Co. [hereinafter Gulf Coast] then secured a petition of more than five hundred Houston voters calling for a referendum on the Council action.1 The voters soundly defeated the grant of a monopoly franchise.
In 1978 the city was again considering granting cable franchises. Mayor McConn; who had been a city councilman in 1973, wanted a plan that would not be overturned by the voters. The Mayor testified at the trial below that he, therefore, determined that several franchises would be granted. In addition, he decided that qualified, local applicants would be favored. Finally, he concluded that any plan should include minority participation. Defendant Gulf Coast was the first of many concerns to seek a cable television franchise in 1978.2 There is ample evidence that the city of Houston did not even initiate the franchise process; defendant Gulf Coast approached the city and made application for a franchise. The city of Houston is a highly desirable cable television market. The city, however, made no effort to take advantage of its position by publicizing its intention to award franchises. Instead of following this common practice, the city passively accepted applications as they arrived. From the many applications submitted to the Public Service Department, four emerged as strong contenders. Their strength was not based on the merits of their proposals, however, but on the political power of the men behind them. These four actors were Gulf Coast, Houston Cable Television Co., Houston Community Cable Television Co., and Meca. Mayor McConn had let it be known that he did not want to choose between competing applicants. He wanted the applicants to cooperate, resolve any overlaps in their territories and present him with a finished product. He abdicated his responsibility in the franchising process to a group of powerful Houston businessmen. In turn, these businessmen became friendly competitors in an effort to divide the city among themselves and prevent competition from any outsiders.
These businessmen and their attorneys met, and over a period of time mutually agreed on franchise areas. After this agreement, the Mayor informed Gulf Coast that another applicant, Westland Corporation, a group primarily controlled by the Mayor’s personal attorney, had to be added to the ranks. A portion of the area West-land desired was in the territory sought by Gulf Coast. Conscious of both the political realities of the situation and the need to avoid competition among potential franchises, Gulf Coast decided to redraw the franchise boundaries in order to comply with McConn’s wishes. After this arrangement was completed the .businessmen were ready to present proposed franchises to the May- or and City Council for approval.
While Gulf Coast and the above-mentioned applicants were cutting out competition by carving up the city amongst themselves, the plaintiff, Affiliated Capital Cor[1558] poration, [hereinafter Affiliated] entered the picture. Affiliated is a publicly-held corporation that owned a savings and loan association. A federal prohibition against owning both a savings and loan association and a cable television system prevented Affiliated from making application for a franchise until it sold the savings and loan association. After the mid-September sale, Affiliated hired a local attorney to investigate the state of the franchising process. When the attorney contacted counsel for Gulf Coast, he was informed that Affiliated was too late because the “pie had been cut.” Surprised by this news, Affiliated’s president, Billy Goldberg, went to visit the Mayor who assured him that there was still time for Affiliated to receive a fair hearing. Consequently, Affiliated made application for a cable television franchise on October 16th.
Although the city never advertised its intention to award cable television franchises, it did undertake other measures calculated to give the appearance that the citizens of Houston would receive quality cable television service. The Public Service Department prepared a questionnaire, which was distributed to all franchise applicants. The city hired a consultant, Dr. Robert Sadowski, to evaluate the applicants based on their responses to this questionnaire. By the middle of November, Dr. Sadowski had completed a report that was highly critical of the franchising/selection process. He warned that it was irrational to allow the applicants themselves to divide the city into franchise territories. He concluded that such a procedure did not give the citizens of Houston the best possible cable television service.
In addition to this general indictment of the process, Dr. Sadowski recommended that only two of the applicants, Meca and Cable-Conn, be awarded the franchise areas they sought.3 He urged that three applicants, Houston Cable, Westland, and Houston Community Cable, be rejected and that the size of defendant Gulf Coast’s service area be reduced substantially. He apparently had doubts about the ability of Gulf Coast to service even this smaller territory so personally inspected its facility. Shortly after this visit, Sadowski was fired. His conclusions were altered before the report was publicized. The five ultimately successful applicants were pronounced qualified.4
The City Council then began taking final action on the franchise applications. The president of Affiliated appeared before City Council and requested that his application be given due consideration. Instead of due consideration, the City Council (through Councilman Johnny Goyen) admonished Affiliated to go and work out an agreement with the defendant and the other above-mentioned applicants. Goyen said:
Mr. Goldberg, let me address Council’s wisdom. As these applications came in, they were sent to the Legal. Department. Obviously, a number of lawyers got together and did whatever they did. I was not privy to it nor did I want to sit in on any meeting.
Apparently, they came up with the formula that those applicants agreed upon. I was hoping that your situation might end up in the same pot as the others, whereby there would be some kind of recommendation coming before this Council, and this Council would not have to carve from one to give to another which we have not had to do in the past and which I do not want to do now nor do I intend to.
I do not want to taketh away and giveth to somebody else, because I [1559] haven’t had to do that in the past. You have a very competent attorney, and the other people have very competent attorneys. What I would like to see done, and it might take a.motion to get this done, is to send this to the Legal Department and try to work something out.
Plaintiff’s Exhibit 150, at 27-28.
The message to Goldberg was clear: it was not the Council, but rather private businessmen who would decide the future of cable television in Houston. When Mr. Goldberg did not make an agreement with those businessmen, the City Council and Mayor voted for the convenient franchise package presented by Gulf Coast and the other conspirators.
Affiliated then filed this suit alleging that defendants had engaged in a conspiracy to prohibit its entry into the Houston cable television market, thereby violating section 1 of the Sherman Act. Specifically, the plaintiff claimed that certain applicants for cable television franchises agreed to define the territories in which they would apply for franchises, so that no two members of the conspiracy would compete for the same territory. In addition, plaintiff charged defendants with participation in a more general conspiracy to limit competition for cable television franchises by excluding non-conspirator competitors.
II.
. DISTRICT COURT JUDGMENT
At the close of evidence in the trial of the instant case, the jury was presented with a series of interrogatories. The relevant interrogatories and jury responses are reproduced below.
INTERROGATORY NO. 1
It is established that two or more franchise applicants, including defendant Gulf Coast, participated in agreements on boundary lines so as to divide the geographic areas for which these applicants would seek cable television franchises. Do you find from a preponderance of the credible evidence that these arrangements were part of a conspiracy in unreasonable restraint of trade, in violation of Section 1 of the Sherman Act. Answer “yes” or “no.”
ANSWER: No.
INTERROGATORY NO. 3
Do you find from a preponderance of the credible evidence that one or more of the defendants participated in a conspiracy in unreasonable restraint of trade to limit competition for cable television franchises, in violation of Section 1 of the Sherman Act? Answer “yes” or “no.”
ANSWER: Yes.
INTERROGATORY NO. 4
Do you find from a preponderance of the credible evidence that any of the following persons participated in that conspiracy? Answer “yes” or “no.”
a. City of Houston Yes
b. Mayor Jim McConn Yes
c. Gulf Coast Cable Television Yes
INTERROGATORY NO. 5
Do you find from a preponderance of the credible evidence that either of the conspiracies, if you have so found in answer to Interrogatories 1 or 3, proximately caused injury to the plaintiff’s business or property? Answer “yes” or “no.”
ANSWER: Yes.
INTERROGATORY NO. 6
What sum of money, if paid now in cash, do you find from a preponderance of the credible evidence would fairly and reasonably compensate plaintiff for the damages, if any, you find plaintiff has incurred? Answer in dollars and cents, if any.
ANSWER: $2,100,000.00.
In a post-trial motion, defendants argued for judgment notwithstanding the verdict on three grounds. First, the defendants asserted that all of plaintiff’s evidence had related to boundary agreements, found legal by the jury’s answer to Interrogatory No. 1, so that there was no evidence to support the jury’s finding of an independent conspiracy under Interrogatory No. 3. Second, they claimed that there was no evidence exclusive of boundary agreements [1560] to support the proximate cause finding in Interrogatory No. 5. Finally, defendants contended that the Noerr-Pennington doctrine mandated judgment notwithstanding the verdict.
In a thorough and carefully researched opinion, Affiliated Capital Corp. v. City of Houston, 519 F.Supp. 991 (S.D.Tex.1981), the district court granted the relief requested by the defendants. Although the trial judge found substantial evidence independent of the boundary agreements to support the answer to Interrogatory No. 3,5 he concluded that plaintiff had failed to [1562] demonstrate that its injury was caused by anything other than defendants’ boundary agreements. Thus, he reasoned that there was no evidence to support Interrogatory No. 5:
[T]he agreements to allocate and divide territory cannot be considered as evidence proving causation of plaintiff’s injury, and no other evidence in the record, either direct or inferential, provides the necessary connection between the second theory of conspiracy to exclude non-eon-spirators and the plaintiff’s failure to receive a franchise.
The testimony elicited by plaintiff from its expert witness further demonstrates that what plaintiff established was a causal relationship between the applicants’ agreements to eliminate overlaps in territory and the plaintiff’s failure to be awarded a franchise, rather than a relationship between the agreement to exclude non-conspirators and plaintiff’s injury.
519 F.Supp. at 1006.
III.
IMPACT ON COMPETITION
It is abundantly clear from the record of this case that a group of Houston businessmen decided to ensure the receipt of cable television franchises by agreeing to divide the city among themselves and exclude anyone who wanted to compete for a franchise on the merits. They did so not simply with the blessing of the Mayor, but at his behest. Record on Appeal, vol. 12, at 450. The devastating competitive impact of this gentlemen’s agreement to exclude anyone who wished to compete for a franchise, is evident against the backdrop of the inherent structure of the cable television industry.
[1563] Cable television, like electric utilities, is generally considered a natural monopoly. According to conventional wisdom, the extremely high fixed costs incurred in preparing a cable television company for operation prevent the survival of competition in the marketplace. Plaintiffs expert witness on the cable television industry admitted that it did not make economic sense to grant franchises with overlapping boundaries. Record on Appeal, vol. 35, at 28. The economies of scale do not approach those of electric utilities but the theory for both industries holds that the long-run average costs tend to fall as output increases. We assume for purposes of this discussion that cable television is indeed a natural monopoly and proceed to discuss the pernicious effects of the conspiracy given this assumption.
Defendant Gulf Coast argues that since cable television is a natural monopoly and competition within franchise areas is impractical, the division of territories is a practical characteristic of this industry and was riot harmful to consumers. Given this characteristic, competition is possible only before a franchise is granted. Unfortunately for both Affiliated and the citizens of Houston, there was no competition among the corporations that received franchises. The result was lower quality, higher priced cable television for Houston. Record on Appeal, vol. 34, at 23-27.
IV.
THE J.N.O.V. RULING
In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc), this court established the standard of review of a judgment n.o.v. or directed verdict by a trial court. We stated that:
On motions for ... judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied.
Id. at 374-75; accord Bazile v. Bisso Marine Co., 606 F.2d 101, 104 (5th Cir.1979), cert. denied, 449 U.S. 829, 101 S.Ct. 94, 66 L.Ed.2d 33 (1980).
In weighing the evidence the jury had at its disposal we find that it amply supports the jury’s findings in interrogatories Nos. 3 and 5. In no event is the evidence in favor of the defendant so overwhelming that reasonable men could not arrive at the verdict reached by the jury. Thus, the trial court was incorrect in overturning the jury verdict.
In addressing the harm plaintiff suffered as a result of the conspiracy recognized in Interrogatory No. 3, it is important to understand that the agreement to exclude those who wanted to compete constitutes a separate conspiracy and a valid independent ground for imposing liability. While at first glance the answers to Interrogatories Nos. 1 and 3 appear irreconcilable, the explanation is simple. The manner in which Interrogatory No. 1 was posed to the'jury caused them to believe that they were passing on the question of whether or not it was better to have one franchise for the city or multiple franchises. All of the parties to the suit agreed that dividing the city into several franchises was preferable and would not unreasonably restrain trade. Indeed, the jury sent a note to the trial judge asking whether or not they needed to answer both questions. They asked: assuming we want to vote “yes on #3 is there any point in voting on # 1?” Jury Note No. 4, Record on Appeal, vol., 1, at 1482.
As noted, the trial court believed that the conspiracy found by the jury (Interrogatory No. 3), was not the proximate cause of plaintiff’s failure to receive a fran[1564] chise. The court thus overturned the jury’s answer to Interrogatory No. 5. Before addressing this argument directly, we pause to point out that proof of causation in this case is necessarily hypothetical (what would have occurred in the absence of the conspiracy). As the Supreme Court has noted, “[t]he vagaries of the market place usually deny us sure knowledge of what plaintiff's situation would have been in the absence of defendant’s antitrust violation.” J. Truett Payne Co. v. Chrysler Motor Corp., 451 U.S. 557, 567, 101 S.Ct. 1923, 1930, 68 L.Ed.2d 442 (1981). We also note that a plaintiff seeking damages for an antitrust injury need only prove with a fair degree of certainty that the defendant’s illegal conduct materially contributed to his injury. Hayes v. Solomon, 597 F.2d 958, 978 (5th Cir.1979) cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 20 (5th Cir.), cert. dismissed, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260 (1974); Gainsville Utilities Department v. Florida Power & Light Co., 573 F.2d 292, 304 (5th Cir.) (noting that a jury charge asking whether or not the violation was a “substantial factor” in plaintiff’s loss is a model of perfection), cert. denied, 439 U.S. 966, 99 S.Ct. 454, 58 L.Ed.2d 424 (1978). See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n. 9, 89 S.Ct. 1562, 1571 n. 9, 23 L.Ed.2d 129 (1969) (in proving fáct of damage under § 4 of the Clayton Act it is enough that the violation is shown to be a “material cause” of injury).
When the jury considered Interrogatory No. 3., (which asked whether the defendants conspired to limit competition for cable television franchises), they found that the agreement did constitute an unreasonable restraint of trade. The trial court mistakenly assumed that in determining proximate cause the jury improperly considered evidence pertaining to the boundary agreements submitted in Interrogatory No. 1 and that the evidence plaintiff cites in support of Interrogatory No. 5 is inappropriate because it concerns evidence relating solely to Interrogatory No. 1.
Despite the learned trial court’s opinion we find that the judgment n.o.v. was improper because there is substantial evidence and inferences to support the jury’s finding that the conspiracy found pursuant to Interrogatory No. 3 was the proximate cause of harm to the plaintiff. We reach this conclusion because three categories of evidence indicate that the conspiracy to limit competition prevented Affiliated from obtaining a franchise: (1) circumstantial evidence flowing from the nature of the conspiracy; (2) evidence that Gulf Coast in conjunction with the City Council vetoed approval of Affiliated's application; and (3) evidence that the plaintiff would have been awarded a franchise on the merits in the absence of a conspiracy limiting competition on the merits.
First, Affiliated was the leading rival of Gulf Coast and the other conspirators. The exclusive nature of the conspiracy itself and Affiliated’s failure to obtain a franchise is circumstantial evidence from which the jury could infer that the conspiracy operated to exclude Affiliated, a non-conspirator who was very likely to have received a franchise through competition on the merits. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969), the Supreme Court held in a trial before the court that it is proper for the trial judge to infer damages from circumstantial evidence. The court noted that “the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause. The trial court was entitled to infer from this circumstantial evidence that the necessary causal relation between the pool’s conduct and the claimed damage existed.” Id. at 125, 89 S.Ct. at 1577 (citing Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696-701, 82 S.Ct. 1404, 1409-1412, 8 L.Ed.2d 777 (1962)). Failure of a noncon-spirator to obtain a franchise is exactly the type of loss that a conspiracy to preclude competition for franchises is likely to cause when the entity awarding franchises participates in the conspiracy.
Moreover, even though the jury found the boundary agreements legal, it could [1565] properly consider evidence concerning those agreements as demonstrating the defendant’s intent to conspire. See, e.g., United Mine Workers of America v. Pennington, 381 U.S. 657, 670 n. 3, 85 S.Ct. 1585, 1593 n. 3, 14 L.Ed.2d 626 (1965); United States v. Southern Motor Carriers Rate Conference, 439 F.Supp. 29, 47 (N.D.Ga.1977). This evidence when considered cumulatively with other independent evidence of a conspiracy to exclude anyone who did not join the conspiracy also supports the jury finding of proximate cause. Consequently, the jury’s ruling on Interrogatory No. 5 is supported by circumstantial evidence that the conspiracy itself caused Affiliated’s injury.
When direct evidence points to a conspiracy to injure the plaintiff, as in the case at bar, a court can find causation on the basis of circumstantial evidence and inference. As this court has noted: “[i]n eases where the defendants’ acts are motivated by intent to injure the plaintiff, the inferential leap to the finding of fact of damage is not great. Indeed, one court has found it virtually nonexistent: ‘Such damage need not be made patent item by item as on a balance sheet. The mere unlawful combination over a period of time to eliminate competition is proof of damage.’ ” Malcolm v. Marathon Oil Co., 642 F.2d 845, 855 (5th Cir.1981) (quoting Fox West Thea-tres Corp. v. Paradise Theatre Building Corp., 264 F.2d 602, 608 (9th Cir.1958)).
Second, the record contains sufficient evidence supporting the inference that co-conspirators prevented Affiliated from obtaining a franchise. The trial court agreed with plaintiff’s assessment that Interrogatory No. 3 reflects the jury’s “apparent conclusion that the conspiracy to limit competition was an agreement or understanding that franchises would be awarded only to those applicants that were approved by Gulf Coast and other nondefendant participants.” 519 F.Supp. at 998. The trial court held, however, that there is no evidence in the record “either direct or inferential, [that] provides the necessary connection between the second theory of conspiracy to exclude non-conspirators and the plaintiff’s failure to receive a franchise.” 519 F.Supp. at 1006.
We disagree; substantial inferential evidence exists. For example, Affiliated’s attorney, Al Levin, testified that when he talked to Assistant City Attorney Adrian Baer in November he was told that “the decision as to who was going to get what areas, specifically in terms of the actual boundaries, were still under negotiations, but the decision as to who was fait accom-pli.” Plaintiff’s exhibit No. 151, at 84. When Levin then contacted Gulf Coast’s attorney he was told “as far as I am concerned, Al, it’s too late; the pie has already been cut.” We note that the trial court itself recognized that “[a]n inference can be derived from th[e] testimony [of Al Le-vin] that the defendants had decided who would get franchises regardless of what geographic areas the franchises would cover.” 519 F.Supp. at 1000 n. 11. In other words, the decision of whom to exclude from the award of franchises did not hinge on the boundary agreements. Under the terms of the conspiracy, applicants who joined the plan obtained a franchise and those who wished to compete for a franchise received nothing.
Direct evidence exists that under the conspiracy, Gulf Coast and the other conspirators, in conjunction with the Mayor and City Council had the power to approve or veto plaintiff’s attempt to obtain a franchise. Mayor McConn stated that his vote was subject to the wishes of the conspirators because of their political clout. 519 F.Supp. at 1016. Councilmen Goyen, Robinson, and Westmoreland testified that they would have voted to grant Affiliated a franchise if Gulf Coast and the other applicants had given their blessing. 519 F.Supp. at 1004. After hearing Affiliated’s presentation at a City Council meeting on December 12, 1978, two Councilmen encouraged the City Legal Department and the applicants to “see if [you] can work out something.” A document prepared by the City between November 28, 1978, and December 20, 1978, provided for changed boundaries, noting that “1-10 line shifted to Hwy. 290 without Goldberg’s tract — contingency.” Plaintiff’s exhibit 56. The [1566] record evidence reveals that this alternative was contingent upon the approval of Gulf Coast and the other conspirators. Reasonable men could certainly have drawn the inference that Affiliated’s application was denied because Gulf Coast and the other participants in the conspiracy vetoed its application.
Third, the record contains evidence that absent a conspiracy, Affiliated would have obtained a franchise on the merits of its application. Citing Malarkey’s testimony, the trial court held that all of the applications, including plaintiffs, were “well below standard and not at all informative as to many important aspects of the franchise application.” 519 F.Supp. at 1009. Although this conclusion is debatable, there can be little doubt that Affiliated was more qualified to receive a franchise than the five successful applicants. Moreover, the evidence demonstrates, so the jury could infer, that Affiliated would have received a franchise if the conspiracy had not prevented a consideration of its application on the merits. Malarkey testified that the most important part of a franchise application concerns a firm’s financial qualifications. He testified that Affiliated’s application was the only one that contained enough financial information to have permitted the City Council to make a preliminary decision as to its ability to construct a cable system. He stated that Affiliated was financially qualified and that Gulf Coast was not. The last audited financial statements contained in Affiliated’s application reveal that it had assets of $25,294,266 and equity of $18,-622,383. Plaintiff’s exhibit 83. Gulf Coast, on the other hand, had assets of $366,259 and equity of $327,259. Plaintiff’s exhibit 10. Moreover, by 1980 many of the conspirators had been bought out by out of town corporations and Gulf Coast had borrowed half of its debt from another company. Plaintiff’s exhibit 55, at part II, § 1. Affiliated, on the other hand, had the qualifications of close ties to the community it sought to serve and the capacity to provide immediate service. We find that the jury could properly infer from the preceding evidence that Affiliated would have obtained a franchise if the conspiracy to exclude nonconspirators had not eclipsed competition on the merits.
V.
NOERR-PENNINGTON DOCTRINE
The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). When such petitioning is a mere sham or the public officials are participants in the conspiracy, however, there is no exception to antitrust liability. The trial court instructed the jury fully and correctly with regard to the Noerr-Pennington doctrine,6 the State Action Exemption, and Legislative Process Immunity.
[1567] In its answer to Interrogatory No. 3 the jury found a conspiracy and implicitly found that the defendants were not entitled to immunity. In analyzing the jury’s ruling the trial court produced an exhaustive study of why the public co-conspirator exception to the Noerr-Pennington doctrine was applicable to the instant case. The district court’s analysis of this issue and the record evidence is thorough and correct. 519 F.Supp. at 1016-23. Therefore, we need not recount his analysis and reasoning. Numerous examples of official involvement in the conspiracy abound, which indicate that the trial court did not err in finding that the co-conspirator exception applied. For example, the City fired its own expert when he wrote a report unfavorable to Gulf Coast, and then it doctored his report. We agree with the trial court’s assessment that the actions of the Mayor and City Council indicate a “vigorous involvement in orchestrating certain aspects of the conspiracy.” Thus, its application of the co-conspirator exception was correct.
Since the trial court found the co-conspirator exception applicable it did not discuss the sham exception. We note that a defendant cannot rely on Noerr-Pennington immunity when the activity to influence government action is a mere sham to hide what is essentially an attempt to interfere with a competitor’s business. Eastern R.R. President’s Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 533, 5 L.Ed.2d 464 (1961). Petitioning calculated to deny a competitor meaningful access to a governmental entity is within the sham exception to Noerr-Pennington immunity. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 512, 92 S.Ct. 609, 612, 30 L.Ed.2d 642 (1972); Mason City Center Ass’n v. City of Mason City, 468 F.Supp. 737, 745 (N.D.Iowa 1979). Whether or not such conduct is within the sham exception is a fact issue for the jury. Feminist Women’s Health Center v. Mohammad, 586 F.2d 530, 543 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979).
Appellee argues that Affiliated was not denied access to the City Council but had an opportunity to present its application formally and informally. Appellee ques[1568] tions the applicability of California Motor Transport, supra (where the defendant used frivolous lawsuits to deny a competitor access to a court or agency), in the legislative context of a city council awarding franchises. See 1 P. Areeda & D. Turner, Antitrust Law U 203 (1978). We need not reach this disputed issue because the defendants’ activities were clearly within the co-conspirator exception as the jury implicitly found in its answer to Interrogatory No. 3. We note in passing, however, that the record may indeed contain enough evidence to justify application of the sham doctrine. While in the process of trying to obtain a franchise, Affiliated’s attorney was told by Gulf Coast’s attorney that the political realities were that “(t)he city is locked up by five franchises.” Record on Appeal, vol. 22, at 34. This and similar evidence of the activities of McConn, the City Council and the other co-conspirators may have effectively blocked meaningful access to a fair and impartial consideration of Affiliated’s application by the city such that the sham exception applies.
VI.
THE MAYOR’S IMMUNITY
Appellee McConn argues that he is entitled to absolute, or in the alternative, qualified immunity. This circuit and others have recognized that a municipal official acting in his legislative capacity is entitled to absolute immunity from civil suits. E.g., Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981), cert. denied, 455 U.S. 901, 102 S.Ct. 1242, 71 L.Ed.2d 440 (1982); Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980).
In Hernandez, we held that local legislators are entitled to absolute immunity for conduct in furtherance of their duties. We also recognized that although a Mayor is the Chief Executive Officer of a city, “he is entitled to absolute immunity from suit for acts taken in a legislative capacity.” 643 F.2d at 1193 (citing Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 731-34, 100 S.Ct. 1967, 1974-76, 64 L.Ed.2d 641 (1980)).
Although the Mayor of Houston serves in the traditional executive role, he also presides over and has a vote in the City Council, which functions as a legislative body. McConn contends that his activities connected with the award of the cable franchises were “more closely akin to that of a legislator than an executive.” Since we find that McConn is entitled to qualified immunity we need not reach the question of his absolute immunity. We note in passing, however, that on the facts before us it is unlikely that he is entitled to absolute immunity.7
[1569] The trial court’s interpretation regarding qualified immunity is inapplicable now because the court did not have the benefit of the Supreme Court’s decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow the Court announced that the question of qualified or good faith immunity for public officials is to be determined under an objective standard. The court held that:
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
457 U.S. at 818, 102 S.Ct. at 2738. Assuming that the law in question was clearly established, an official can still prevail if he can show “extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard.” Id. at 819, 102 S.Ct. at 2739.
McConn contends that the state of the law regarding a municipal official’s liability for an antitrust violation was unsettled in 1978. Since he could not have known that he would be liable for violating the antitrust law, he argues that he is entitled to qualified immunity.
We take note of the fact that at the time the franchises were granted it was unclear whether or not an antitrust violation occurred under the rule of reason when a city let franchises in an uncompetitive manner. Second, it was uncertain whether or not home rule cities were entitled to Parker immunity. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). There were several recent cases indicating that a city or political subdivision of a state could not use Parker immunity to avoid the antitrust laws without a state mandate to displace competition. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (decided March 29); Whitworth v. Perkins, 559 F.2d 378, 381 (5th Cir.1977), judgment vacated, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), judgment reinstated, 576 F.2d 696 (1978) (decided July 17) (per curiam); Kurek v. Pleasure Driveway and Park District of Peoria, 557 F.2d 580 (7th Cir.1977), judgment vacated, 435 U.S. 992, 98 S.Ct. 1642, 56 L.Ed.2d 81 (1978), judgment reinstated, 574 F.2d 892 (7th Cir.1978) (decided Sept. 18) (per curiam), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979); Woolen v. Surtran Taxicabs, Inc., 461 F.Supp. 1025, 1029 (N.D.Tex.1978) (decided Nov. 29); United States v. Texas State Bd. of Public Accountancy, 464 F.Supp. 400, 403-04 (W.D.Tex.1978) (decided May 5), modified on other grounds, 592 F.2d 919, cert. denied, 444 U.S. 925, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979); Star Lines, Ltd. v. Puerto Rico Maritime Shipping Auth., 451 F.Supp. 157, 166 (S.D.N.Y.1978) (decided May 3). Contra Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220 (7th Cir.1975).
The cases indicating liability, decided as or shortly before the franchise process occurred,8 were breaking new ground and were not clearly established. Moreover, the guidance from the Supreme Court was limited because Lafayette was a plurality opinion. See Hybud Equip. v. City of Akron, 654 F.2d 1187, 1195 (6th Cir.1981), judgment vacated, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982). It was not until Community Communications Co. v. Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 [1570] L.Ed.2d 810 (1982), that it became clearly established that a home rule city was not entitled to blanket Parker immunity and could thus be liable for violating antitrust law. Consequently, the mayor could not, nor should not, have known that he was violating a clearly established law.
Although we find that the Mayor can avail himself of qualified immunity, we emphasize that this ruling does not effect his status as a conspirator. The jury found that the Mayor was a conspirator and we do not disturb this finding. The Mayor is absolved of liability only because applying the Harlow immunity standard he did not, as a matter of law, violate a clearly established law.
At oral argument McConn’s attorney opined that municipal politics are municipal politics and that the appropriate remedy for the Mayor’s acts was exercised by the voters of Houston when they booted McConn out of office. See Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed.2d 1019. Certainly currying political favor is the hallmark of a good politician and is neither illegal nor violative of the antitrust law. Nevertheless, in future cases involving franchise letting, when an elected official instigates, directs, or actively participates in an illegal conspiracy designed to circumvent competition on the merits — when the state has not provided the city with an anticompetitive mandate — a reasonable man should know that such actions violate clearly established antitrust law.
Judgment n.o.v. should not have been granted and the court below is hereby REVERSED with instructions to reinstate the jury verdict and grant the plaintiff judgment against Gulf Coast only.