Here is a snippet from the great Scalia dissent on the muddled CableCo Supreme Court ruling this morning. He is differing on the lawyering by the majority whereby they convince themselves that cable companies are not offering telecommunications services:
The Court concludes that the word “offer” is ambiguous in the sense that it has “alternative dictionary definitions” that might be relevant. It seems to me, however, that the analytic problem pertains not really to the meaning of “offer,” but to the identity of what is offered. The relevant question is whether the individual components in a package being offered still possess sufficient identity to be described as separate objects of the offer, or whether they have been so changed by their combination with the other components that it is no longer reasonable to describe them in that way.
Thus, I agree (to adapt the Court’s example) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a “stand-alone” basis.
If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” would prevent them from answering: “No, we do not offer delivery–but if you order a pizza from us,we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ youdelivery, because the delivery that we provide to our endusers is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.