A la Carte Class Action Suit Gets Fresh Legs

The class action suit attempting to force cable a la carte just got some fresh legs.

The Ninth Circuit Court of Appeals has withdrawn a three-judge panel decision last June affirming a lower court's ruling that a group of cable and satellite subs did not have a case when they alleged that bundled cable programming was an antitrust violation.

The class action suit had been filed against NBCU, Viacom, Disney, Fox, Time Warner, Time Warner Cable, Comacst, DirecTV, Echostar and Cablevision, among others.

The subscribers claimed that bundling of high-value channels with lower-valued ones reduces consumer choice and raises prices, precluding distributors from offering a la carte and constituting a restraint of trade in violation of the Sherman Antitrust Act.

In June, the three-judge panel had upheld a district court ruling throwing out the antitrust suit, saying that it was "a consumer protection class action masquerading as an antitrust suit.... In the absence of any allegation of injury to competition as opposed to injuries to consumers," wrote Judge Sandra Ikuta, "we conclude that plaintiffs have failed to state a claim for an antitrust violation."

But in a one-paragraph order Oct. 31, the court withdrew the decision and said it was going to reconstitute a panel, making moot requests to rehear the case. No explanation was given for the about-face.

A new third judge will be selected following the death last month of Judge Pamela Ann Rymer, 70, who was one of the three on the June panel affirming the lower court's decision.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.