Aspen Skiing Co clamping down on underground instructors

[BLiP]

There’s a powerful ethical, business and legal case against the anticompetitive forces at work here, with multiple violations of the law nationwide (and on many dimensions).

Then why are you making your arguments to a bunch of strangers on the internet rather than a judge? If it was an easy case to make, you or some other lawyer would have made it already.

 

[markojp]

For the present I'll simply add: I haven't judged anyone here personally, rather just sharply criticized the lack of autonomy and PSIA's role in holding ski teaching back.

Odd thing is, PSIA has never dictated to me what and how to teach. That's generally reserved for individual SSD and TD's. Even then, I look at it as providing additional tools to succeed and make an instructor's day easier with better outcomes for guests. Most Ed Staff training the past couple seasons has revolved around alignment of exam standards, which is fine, as every national organization everywhere has them.

 

[James]

To boil this down to its most reductive, it’s like bringing “ contraband “snacks into a movie theater- movie theaters want you to buy their popcorn. The power of the captive audience.

To be less reductive, Federal lands that have long term leases have certain requirements to protect the land while the lessee profits from its use . Anything that changes the nature of or endangers the land itself beyond what was prescribed /permitted ( Lifts , access roads , etc.) is quite naturally prohibited. You don’t own it , you are only “ renting” so this makes sense.

As for the argument that the lessor paid for the infrastructure, so they can completely control activities on that property- yes but does that give them the right to what is essentially a monopoly on services for the entirety of their lease? Perhaps long after that infrastructure has been amortized/ written off/ down within its lifecycle ? Didn’t the consumer pay for access to this infrastructure and to what degree do they have the right , if any , to express their choices or discretion as a consumer?

I don’t know the answer to any of these questions and while some legal precedent seems to be black letter boilerplate, things are constantly in flux. In the end it seems to be “ He ( or she ) who owns the theatre gets to sell the popcorn.

What’s your take on a case to open up the Federal Lands exclusive concessions for teaching given to ski areas?

 

[Dave Marshak]

What’s your take on a case to open up the Federal Lands exclusive concessions for teaching given to ski areas?

That's a red herring. USFS doesn't own the lifts or buildings, and what "independent" instructors are really asking for is the free use of those facilities, without the permission of the owner. There are over 100 land grant colleges on land donated by the federal government, and no one believes they should allow independent instructors to teach anything there. Why is that different?

There is a real monopoly issue in the ski industry and more importantly in the entire economy as well, but expecting the USFS to require permit holders to change business practices that are followed almost universally in North America on both private and USFS lands is a waste of energy.

dm

 

[James]

That's a red herring. USFS doesn't own the lifts or buildings, and what "independent" instructors are really asking for is the free use of those facilities, without the permission of the owner. There are over 100 land grant colleges on land donated by the federal government, and no one believes they should allow independent instructors to teach anything there. Why is that different?

There is a real monopoly issue in the ski industry and more importantly in the entire economy as well, but expecting the USFS to require permit holders to change business practices that are followed almost universally in North America on both private and USFS lands is a waste of energy.

dm

Meh, maybe. We’ve got local retailers holding demo days basically on trail or right near the lift. Because Vail doesn’t own the land, the condo owners do.

 

[Dave Marshak]

Meh, maybe. We’ve got local retailers holding demo days basically on trail or right near the lift. Because Vail doesn’t own the land, the condo owners do.

And they do that with the property owner's permission. That has nothing to do with USFS policy.

dm

 

[James]

And they do that with the property owner's permission. That has nothing to do with USFS policy.

dm

Sure it does. They teach on the trails, not in front of the condo.
But I’ll wait for the lawyer.

 

[BLiP]

Are there any other examples of a private business being forced to open its resources and infrastructure to a competitor? Without any renumeration?

I can see an avenue for independent instructors, but it would include the payment of some usage fee to the resort. Not really any different than the specialized clinics and camps that operate now.

 

[James]

but it would include the payment of some usage fee to the resort.

Other than the lift ticket??
We’re right back to the monopoly issue.

 

[dan ross]

What’s your take on a case to open up the Federal Lands exclusive concessions for teaching given to ski areas?

I’m not sure but I am glad I don’t have to decide it. I do think it should be addressed on a case by case basis. But it won’t. The basic structure of these 99 year leases which are common in the west , has mining rights as its antecedent. There, monopoly is the point , after all there was no guarantee of how rich a particular mine might be given the capital and time invested. Ski areas, while a gamble ( weather/climate) and with not insubstantial investment in infrastructure, are completely different businesses with completely different end uses.

In a perfect world , private instruction might be treated like Fish and Game licenses on federal lands are. Available , but regulated. These leases are so long it seems unfair that an entire generation or more would be prevented from exercising regulated free enterprise on public land that has been set aside for the pursuit of that enterprise.
Again, Im not sure what the answers are but the questions are interesting, another can of worms opened.

 

[Dave Marshak]

Are there any other examples of a private business being forced to open its resources and infrastructure to a competitor? Without any renumeration?

I can see an avenue for independent instructors, but it would include the payment of some usage fee to the resort. Not really any different than the specialized clinics and camps that operate now.

ABasin and other resorts already allow independent instructors, but those programs are all (much) more expensive than regular ski school. It's probably not that hard for a qualified person to get permission, it's just that there's no money left after you pay the resort's usage fee.

dm

 

[Dave Marshak]

In a perfect world , private instruction might be treated like Fish and Game licenses on federal lands are. Available , but regulated. These leases are so long it seems unfair that an entire generation or more would be prevented from exercising regulated free enterprise on public land that has been set aside for the pursuit of that enterprise.

There's no USFS process for getting a permit for ski instruction on federal land because there's no demand for that unless you also include access to privately owned lifts and buildings. All you need for independent instruction is the lift owner's permission, which is possible but costly. A USFS permit requirement would actually make the whole deal more difficult.

dm

 

[BLiP]

Other than the lift ticket??

Absolutely. Lift ticket allows non-commercial access for personal use. Want to engage in commercial activity, you need to pay more. If you're going to make money off of the efforts and investment of someone else, you should compensate them in some way.

But as you say - we're back to the question of "monopoly." Some people think that this would constitute a monopoly, some do not. It doesn't seem like there is going to be any consensus on that issue.

 

[mdf]

Are there any other examples of a private business being forced to open its resources and infrastructure to a competitor?

Electrical power companies.

Without any renumeration?

Don't know how that part works, but I'm guessing without.

 

[Dave Marshak]

Electrical power companies.

Regulated utilities are a possible different business model for lift operators. You could make lift service public transportation and let the DOT or someone regulate prices and service conditions like they do for airlines. That might include different rates for personal and commercial use, the way you do with electric companies. Who wants that?

FWIW electric companies' CAPEX and operating budgets are set by state regulators, and their revenues are mostly guaranteed by the same regulators. Electric companies are much more like government agencies than they are like businesses.

dm

 

[James]

Want to engage in commercial activity, you need to pay more.

That seems like popular opinion, not legal opinion.
The ski area wouldn’t exist without the land lease.

What if private land owners stopped leasing or put a condition in forcing them to allow other ski schools? Canyons was apparently paying $3million/year in leases before Vail, Park City $155,000 before the infamous failure to renew.

 

[Dave Marshak]

That seems like popular opinion, not legal opinion.
The ski area wouldn’t exist without the land lease.

What if private land owners stopped leasing or put a condition in forcing them to allow other ski schools? Canyons was apparently paying $3million/year in leases before Vail, Park City $155,000 before the infamous failure to renew.

If I leased land, why would I add conditions that caused lost revenue to the lessee? Wouldn't that just decrease the value of the lease, and ultimately reduce the lease payments I could expect? Even if it didn't cause lost revenue, do I think I know enough to interfere with the lessee's business?

You seem to think that you have some right to use others' property. I can walk around the mall anytime, but if I set up a table to sell watches I'd expect to either pay rent or be evicted. So called "independent " ski instruction is no different.

dm

 

[BLiP]

That seems like popular opinion, not legal opinion.
The ski area wouldn’t exist without the land lease.

What if private land owners stopped leasing or put a condition in forcing them to allow other ski schools?

I'm not giving a legal opinion. You're not paying me enough for that.

Sure the ski area wouldn't exist without the land lease, but similarly the ski area would not exist without the capital improvements made by the leaseholder.

I looked at one of the land leases a while back (post #276). The revenue paid to the government each year is tied, at least in small part, to ski school revenue. It would seem that the landowner has an incentive to ensure that the leaseholder is maximizing revenue from the ski school.

 

[snowtravel]

Odd thing is, PSIA has never dictated to me what and how to teach. That's generally reserved for individual SSD and TD's. Even then, I look at it as providing additional tools to succeed and make an instructor's day easier with better outcomes for guests. Most Ed Staff training the past couple seasons has revolved around alignment of exam standards, which is fine, as every national organization everywhere has them.

I take it you have some independence. I wonder if most instructors—especially at larger resorts like Vail, where I worked before the bankruptcy—would be free to experiment or teach alternative methodologies like PMTS or to question PSIA training without pushback. Is it not true that practically all resorts closely align with PSIA (and NSAA)?

PSIA has historically purchased its teaching systems directly from Vail, rather than developing them organically. Vail's 1996 10K filing states this explicitly, and it suggests a conflict of interest raising questions about whose priorities PSIA really serves. When I earned my L3 in the mid-1990s, some of the changes forced on candidates—such as the "customer service model" as it was then called—in fact fostered questions that were mostly ignored. We learned what we were told to learn, or we didn't pass.

So I guess it's fair to say that for me, like you, PSIA has never dictated what to teach. It didn't have to.

Among other things, over my lifetime I've worked in education, food, aviation, music and law. None of these endeavors exclude free agency. Quite the contrary: competition is the rule. Furthermore, each has one or more independent organizations that support their respective employees and professionals. They collectively advocate for their members through union representation, advertising, and published materials that are freely available to a wide constituency...and much more. Buyers and sellers alike draw upon the widest possible range of creativity and innovation in the marketplace of ideas, and are correspondingly rewarded.

(Sounds corny I know, but that's what America is all about.)

 

[snowtravel]

Are there any other examples of a private business being forced to open its resources and infrastructure to a competitor?

Telecommunications, energy, cable, railroads, airports.... Easements are another common example. So is patent misuse. In the ski industry, Aspen Skiing Co. v. Aspen Highlands Skiing Corp. isn't directly on point but highlights how far the courts will go to foster competition and to enjoin unlawful refusals to deal.

Then there's Hecht v. Pro-Football, Inc. (stadium lease). More recently, Microsoft had to share its APIs against its will.

In fact, it's pretty difficult to find instances where businesses with market power have been able to monopolize that market for very long.

(No one argues against reasonable compensation in such circumstances.)