Cox Dismisses Set-top 'Tying' Argument in Appeal of Jury Verdict Reversal

Cox Communications never required anyone to rent a set-top box, and that no one else in Oklahoma City was offering set-tops isn't its fault, Cox said in brief and request for oral argument filed Monday in the 10th U.S. Circuit Court of Appeals. That is where class-action plaintiffs Richard Healy et al. are appealing (see 1603010016) a U.S. District judge's 2015 overturning of a $6.31 million jury verdict against Cox for its set-top rental policies (see 1511130005). "It is not 'tying' for Ford to offer both trucks and tow hitches for sale, separately -- even though there are some things that a truck can do only if it has a hitch and even if there happen to be no other sellers of hitches in a particular community, through no fault of Ford's," Cox said in its 71-page brief. While Cox has no specific "Premium Cable" product, it said, most of the content Healy et al. have described as premium in their complaint doesn't need a Cox-provided set-top and could be accessed through Cox-provided CableCARDs. Cox said that despite its efforts working with makers of consumer electronics, none opted to sell set-tops in the Oklahoma City market. The cable operator said the District Court ruling should be affirmed or, alternately, that Cox should get a new trial because of faulty jury instructions that didn't properly explain issues of foreclosure and coercion. Cox said that at minimum, it is entitled to binding judgment against class members whose damages came solely from DVR fees, since the original jury verdict indicated it rejected any claims based on DVR fees. Plaintiffs' counsel didn't comment Tuesday.