Monday, June 11, 2007
Court: Cable Company Need Not Offer Separate Music Service
Third District Panel Rejects Antitrust Claim by Customers Who Said They Did Not Want Television Service
By KENNETH OFGANG, Staff Writer
A cable company that offers a music or FM radio service may require customers to purchase basic television service in order to receive it, the First District Court of Appeal ruled Friday.
Div. One rejected claims by some Comcast subscribers in Sonoma County that the requirement is an illegal tying arrangement or an unfair business practice and that it discriminates against blind customers who have to pay for the television service even though it is valueless to them.
Justice William Stein, writing for the Court of Appeal, said the defendants were properly granted summary judgment on all of the plaintiffs’ claims, including those alleging that the company misrepresented that it was unable to separate music or FM services from basic cable.
In moving for summary judgment, the defendants cited testimony that the plaintiffs were informed that the price of their service included both cable and music services, that their system was not configured to provide a “trap” that would allow it to send a radio signal to select customers without also giving them cable television service, that separating the services was economically infeasible, and that all customers who wanted the music services were required to purchase basic cable in order to get them.
The also cited the plaintiffs’ admission that they could listen to FM music over the Internet or on their home radios.
Sonoma Superior Court Judge Elaine Rushing ruled in favor of the cable company, and Stein said she was correct.
The arrangement does not violate the Sherman and Cartwright antitrust acts, the justice said, because an illegal tying arrangement requires an effort to foreclose competition in the tied market—in this case the market for cable television service. The plaintiffs cannot claim that, Stein explained, because they admittedly would not purchase cable television service, regardless of price, if they could get music or FM services “a la carte.”
Nor, the justice wrote, is the cable company subjecting the plaintiffs to “negative option billing”—the practice, proscribed by federal law, of billing a customer for services they haven’t ordered, so that it becomes the customer’s burden to take the step of canceling the service.
Tiering of services, Stein said, is not illegal. Since the plaintiffs ordered cable television service in order to get the music channels, and were billed only for the services they ordered, there was no negative option billing, the justice explained.
Nor was the blind plaintiff, Larry Hall, discriminated against in violation of the Unruh Civil Rights Act, as he claimed, Stein went on to say, because the requirement of bundling the services applied to sighted and blind customers alike, and the Unruh Act—unlike employment discrimination laws—does not recognize disparate impact claims.
The justice went on to reject the plaintiffs’ misrepresentation arguments, agreeing with the trial judge that the cable company’s undisputed evidence established that at the time it offered service to the plaintiffs, its system could not accommodate their desire to purchase music services without basic cable.
Stein rejected the argument that the plaintiffs’ expert established a triable issue of fact by declaring that a device had been developed that could trap the signal in order to permit the plaintiffs to receive music services separately. That evidence did not contradict Comcast’s representation that its system was not configured in a manner that would permit such a trap to be deployed., the jurist said.
The case is Belton v. Comcast Cable Holdings, LLC, 07 S.O.S. 3065.
Copyright 2007, Metropolitan News Company