Schizophrenic SCOTUS

by on June 27, 2005 · 2 comments

So, let me get this straight, if I own a broadband cable network, I don’t have to allow competitor’s access to my network, but, on the other hand if I own a home on a desirable plot, I not only have to allow those competing for the use of that resource (my home and land) onto my land, but have to essentially give it to them. Don’t get me wrong, I’m glad the Court upheld property rights in Brand X, But I’m curious why they didn’t apply the same rationale as they did in Kelo. As Adam notes below, the rationale in Kelo could have easily been applied to other property, such as cable networks. Open access advocates have made that very case for years.

Indeed, the “common carrier” doctrine holds that offering a service to the public constitutes a standing offer that anyone, including a competitor, can accept, so that a common carrier like a railroad or a hotel must offer service to everyone at the same rates. This doctrine has had disastrous economic consequences for many network industries (though many of them received subsidies or protection in return), but I can’t see why the Court would choose not to extend common carriage requirements to cable, when a reasonable case (at least under existing jurisprudence) could be made that such a regulation was reasonable, while a few days earlier the justices chose the much more radical path of stripping the “for public use” clause of the 5th Amendment of any meaning.

Does this make any sense to anyone else?

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