A newly-filed suit in Michigan, accusing Comcast of tying premium cable TV with the rental of a set-top box, presumably will add to the cases before the Multidistrict Judicial Panel, 626 F.Supp.2d 1353 (MDL 2009). In Rogers v. Comcast, 2:10-CV-10547 (E.D. Mich.), the class pleads a Sherman §1 claim along with Michigan Consumer Protection Act claim.
The class alleges upon information and belief, the set-top box is required for the class to view the premium and/or digital channels provided by Comcast. ¶23. It alleges that the market for cable boxes ..is separate and apart from the market for cable [TV] services. ¶52. Although set-top boxes can be bought elsewhere, class members allegedly are forced to rent a set-top box from Comcast to fully view premium content from the cable TV provider. Early on, Comcast is accused of conspiring with its officers and owners to violate the Sherman Anti-Trust Act by purposefully creating an unlawful tying arrangement between premium cable and set-top boxes.
The Rogers complaint tracks what is alleged in the cases collected under the MDL order. Still, one wonders (what is latin for I wonder, ergo I blawg).
Pleading a Sherman Act tying claim leads to a rule of reason analysis. That pretty much opens the season for hunting down every economic species known to experts in the field. There too are limits in the law on whether tied items are separate or integral, e.g., Virtual Maint., 11 F.3d 660 (6th Cir. 1993), and whether cable TV is a good or a service, Morrison v. Viacom, Inc., 66 Cal.App.4th 534 (Cal.App. 1st Dist. 1998). Conspiracy with corporate “officers and owners” is less favored in the law than a concert with those outside one’s company.
The MDL order conditionally consolidated the Sherman Act, i.e., the rule of reason cases. Consider though that §3 of the Clayton Act, which may provoke a rule of per se illegality, makes it unlawful to lease commodities ..on the condition that the lessee ..shall not use or deal in the goods of others.
We will watch the wire for continuing developments. Recalled however is that cartoon, with two neighbors talking over the fence, and one observes: I’ve got 387 channels now, and theres not a darn thing on any of them.