Split 10th Circuit Affirms Overturning Jury Verdict in Cox Set-Top Tying Case

A U.S. District judge in Oklahoma City was right to overturn a jury's decision that Cox Communications illegally tied cable services to set-top box rentals (see 1511130005), since plaintiffs didn't show the tying foreclosed sizable amounts of rival set-top business, the 10th U.S. Circuit Court of Appeals said Tuesday, with a dissent. The 35-page docket 15-6218 opinion (in Pacer) by Judges David Ebel and Greg Phillips and penned by Phillips said the case involves "what it means to foreclose a 'not insubstantial' volume of commerce," and Cox didn't foreclose any commerce or discourage competitors from entering the market. That all cable companies, like Cox, tie premium cable to set-top rentals points to net efficiencies and technology constraints rather than a push for monopoly power, it said. The court said FCC regulation of the set-top market "diminishes the possibility" Cox's tying could hurt competition. Judge Mary Briscoe's dissent said she would reinstate the jury's $6.3 million verdict against Cox. She said there was sufficient evidence sellers can sell set-tops and cable service separately. She also said the 10th Circuit's role is only to determine if there was enough evidence in the record to support a jury's decision, and that in this case there was. Plaintiff's counsel Todd Schneider of Schneider Wallace said Wednesday they were "disappointed" by the decision and "evaluating our options for the Oklahoma case going forward.”