June 28, 2005
LAW: Why I Love Justice Scalia
Yet another example, from the broadband case; in dissent, Justice Scalia explains why cable modem dealers are obviously selling telecom services:
I agree (to adapt the Court's example . . . ) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a "'stand-alone'" basis.
If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common "usage," would prevent them from answering: "No, we do not offer delivery - but if you order a pizza from us, we'll bake it for you and then bring it to your house." The logical response to this would be something on the order of, "so, you do offer delivery." But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: "No, even though we bring the pizza to your house, we are not actually 'offering' you delivery, because the delivery that we provide to our end users is 'part and parcel' of our pizzeria-pizza-at-home service and is 'integral to its other capabilities.'" [The myth that the pizzeria does not offer delivery becomes even more difficult to maintain when the pizzeria advertises quick delivery as one of its advantages over competitors. That, of course, is the case with cable broadband.] Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.
(Emphasis in original; citations omitted, footnote in brackets).
I have no idea if I even agree with Justice Scalia's preferred resolution of the case, but you have to love the way he frames an argument.
I disagree with the court's decision on this case, but Scalia's reasoning seems too clever by half itself. Opposing the court's decision with this pizza delivery metaphor seems to imply that pizza joints ought to deliver *other people's pizzas* as well. Right? Basically, the cable companies are arguing that they *are* like pizza joints: they're not in the business of delivering pizzas, they're in the business of delivering *their own pizzas.* Whereas the other side said that, due to their position as state-granted monopolies, the cable companies are "common carriers" and have to deliver anybody's pizza that the customer asks for, since they (the cable company) are the only people allowed to deliver pizza in a particular region.
Or am I missing the point? Mmmm, pizza.
The problem is that the cable companies got all these sweetheart deals from municipalities in the 80's & 90's, making them in effect public monopolies. That ended when alternatives became available, e.g. Dish network et al. The cable company is no longer a monopoly, since it has competition. It is therefore noy a common carrier and cannot be forced to carry other companies content over it's (largely publicly funded) infrastructure.
Who's on first?
Comcast is essentially a monopoly here. Granted, satellite is an option, but the municipality inked a deal with Comcast for 15 years as the only cable provider. On top of all that, there is a 2% tax on subscribers that is kicked back to the city.
Why shouldn't Comcast be forced to carry a competitor's product when I am forced to pay extra not to choose?