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Covering the Front and Back Pages of the Newspaper
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. (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. Comments
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. jf Posted by: Josh at June 28, 2005 2:11 PMThe 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? Posted by: mojo at June 28, 2005 4:44 PMComcast 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? Posted by: Bob at June 29, 2005 2:33 PM![]() |