Tribal Company

A few weeks ago, shortly after the FCC released its most recent report on TV violence, I wrote an essay arguing that any government-mandated a la carte regime imposed on cable and satellite operators as a means of addressing the violence issue almost certainly would violate the First Amendment. The piece, "The Constitution, A La Carte," was published on CNET on May 22.



On June 26 Harvard Law School professor Laurence Tribe testified at the Senate Commerce Committee's hearing on TV violence. Tribe, one of the country's foremost constitutional law scholars, retained in connection with his testimony by various media entities, concluded that all the proposals put forward by the FCC as a means of protecting children from exposure to violent programming --time channeling, a government-mandated ratings system, and mandatory a la carte unbundling--would contravene the First Amendment. You can find Professor Tribe's complete testimony here.



Having just written on the a la carte issue in my CNET essay, and given Professor Tribe's reputation, I was especially interested in his First Amendment analysis. Albeit at much greater length, and in more scholarly fashion, Professor's Tribe's constitutional analysis of the mandatory unbundling issue is fully consistent with my CNET piece. You can find the section on mandatory unbundling at pages 58-68. I was pleased --maybe, even relieved-- to find myself in good company.



Anyone interested in First Amendment jurisprudence, and especially its relationship to the TV violence issue, should read Tribe's entire paper. But here are a couple of salient quotes concerning the unconstitutionality of mandatory unbundling that mirror the views I expressed earlier:

• "It is tempting to think of any unbundling requirement as a purely economic restriction not based on speech, but that view is flatly incorrect. Any unbundling requirement would be a speech-based and even a content-based regulation subject to strict scrutiny. The Supreme Court has recognized that “[c]able programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994)."

• "[C]able/satellite providers are no different from other speakers. A decision to combine or package expressive materials is a speech act distinct from the decisions to distribute its individual components, separately considered."

• "Mandatory unbundling, however, raises distinct concerns because it directly intrudes on a cable operator's speech by precluding speech achievable only by combining channels. For example, a cable operator may wish to provide a public service by bundling C-SPAN or local public access channels with more popular fare such as ESPN. Similarly, a cable operator's decision to include adult channels--as much as another operator's decision to exclude those channels--is an exercise of core editorial discretion."

• "Proponents of mandatory unbundling have at times suggested that unbundling can avoid strict scrutiny so long as it is only focused on the compensation that cable/satellite operators hope to receive, rather than the content that they are empowered to convey....Such a proposal cannot escape strict scrutiny. The freedom to speak is inseparable from the freedom to decide what to charge for that speech, or, instead, to distribute it without financial remuneration."

Upholding the First Amendment's free speech principles does not, and need not, imply endorsement of "violent" --or for that matter, "indecent" or any other-- programming that appears on television. In my view, there is much programming aired that is inappropriate for viewing by children. But government-imposed mandates that do violence to free speech principles are not the answer. Much more parental responsibility is.

As I wrote here last week, and as Professor Tribe too emphasizes, easy-to-use filtering tools are now available that allow parents to take control of what their children watch. To be sure, these tools may not be absolutely perfect or fail-safe in every situation, even as they are constantly being improved. But in First Amendment parlance, there surely are a "less restrictive means" of achieving whatever legitimate interest the government has in protecting children than those means inconsistent with free speech values.

Parental Controls: Tools and Methods

With ever-present concerns about the exposure of children to indecent and violent television programming and online material, I have used this space before to tout the tools available to parents to filter material that they deem inappropriate for their children's consumption. Due to technological advances and industry efforts, these filtering and screening tools are getting easier and easier for parents to access and use, if only parents will spend a bit of time familiarizing themselves with them.

In that vein, I recently called attention to the cable industry's new "Point Smart. Click Safe" campaign. This is an effort by cable operators to further educate parents concerning the tools available to keep their children safe online. You can access information about the safety tools available directly from the National Cable & Telecommunications Association's special "Point Smart" website.

Now comes PFF's Adam Thierer's just-released new special report entitled "Parental Controls & Online Child Protection: A Survey of Tools and Methods." This report is a very broad--and parent-friendly--guide to all of the tools available today that can help parents manage media content in all its manifestations in today's multi-media environment. Adam covers broadcast television, cable and satellite TV, music devices, mobile phones, the Internet, video game consoles, and more. (Hmmmm....just reciting the list of the various types of media has to make you wonder about those who still chomp at the bit for more restrictive ownership regulations....another subject I have discussed many times that will have to await another day.)

In recommending Adam's new report, I readily acknowledge Adam is a friend of mine. More significantly, with the release of his new "Tools and Methods" report, Adam is a friend to all parents who are willing to invest a little time in protecting their children from exposure to material to which they would rather not have their children exposed. It's up to parents to take responsibility to use the tools.

Point Smart. Click Safe.

I have written a lot in this space, and others as well, about why it would be wrong as a matter of policy for the government to mandate an a la carte regime for cable operators as a means of protecting children from indecent or violent content, and why, if the government did so, a mandatory regime almost certainly would violate the First Amendment. I addressed the First Amendment argument most recently in "The Constitution, A La Carte."

The policy and constitutional arguments against a la carte have much to do with the fact that, for some time, parents have been able to block any channel that they wish to block. Cable operators already have spent much time and money educating parents concerning the blocking and other screening tools that are available on their cable systems.

Now, to its credit, the cable industry has just embarked on a new campaign to educate parents about online safety for children. A new website sponsored by the National Cable & Telecommunications called "Point Smart. Click Safe." contains much useful information regarding tips and tools for promoting safe Intenret usage for children. Check it out.

It is far better for the government to rely on ongoing voluntary educational efforts such as the new cable intitiative than to adopt new, constitutionally dubious regulations that infringe free speech rights.

Maine Resolves to Monitor

Earlier I had heard some reports that the Maine legislature was considering passing a state net neutrality law containing a nondiscrimination mandate. So I was pleased to learn--maybe relieved to learn puts it more accurately--that what ultimately was adopted yesterday by the legislature was a resolution directing the Public Advocate to monitor state and federal actions, including the FCC's notice of inquiry, regarding Internet regulatory developments. Presumably the Public Advocate would have undertaken such monitoring without the legislature having to resolve that he or she do so.

The truth is the pro-regulatory net neutrality crowd was pushing to have a bill adopted that would have established a strict net neutrality regulatory regime in Maine. A bill to this effect was introduced by Sen. Ethan Strimling and went nowhere. And the further truth is there was nowhere for the bill to go. Because any state law purporting to mandate net neutrality almost certainly will be preempted by federal law. Why this is so was explained in Jim Speta's Free State Foundation paper entitled "Net Neutrality Is A Federal Issue."

So, now, the legislature has resolved that Internet access regulatory developments should be monitored. While there seems to be little harm in this, who would have thought a resolution to this effect even would have been necessary. Happy monitoring, Maine!

Spending Transparency and Accountability

It's no secret that Maryland faces a looming $1.5 billion structural deficit that will require some tough decisions from Governor Martin O'Malley and our legislature. What is too often secretive, or at least not easily obtainable in a timely fashion, is basic information about how our tax dollars are being spent. That's why during the past legislative session the Free State Foundation championed the adoption by Maryland of a single Google-like Internet search engine that would enable citizens at no cost easily to track state spending.

You can find op-eds published in the Baltimore Sun and the Washington Examiner by Free State Foundation President Randolph May and Research Associate Trevor Bothwell here and here urging the legislature to enact a bill to establish such a single searchable spending website. To their credit, Delegate Warren Miller and Senator Alex Mooney introduced the "Maryland Funding Accountability and Transparency Act" to do just that. Unfortunately, the bill had no support from General Assembly Democrats, and it did not go anywhere in the past session.

Now comes word that Minnesota has just enacted a law like the one embodied in the Miller-Mooney proposal establishing a public website to track state spending. This follows on the heels of similar action earlier this year by Kansas. You can read about the Minnesota and Kansas laws at a special "Show Me the Spending" site dedicated to fostering transparency in state spending. In addition to containing much useful information, such as model legislation, the site tracks information concerning the status of efforts in the states to implement searchable spending websites.

This brings me back to Maryland's projected $1.5 billion deficit. While citizens should be able to easily track state spending in good times and bad--after all, that is simple matter of fostering good government through accountability--the need to be able to do so arguably is even greater in an environment in which there already are calls to raise taxes substantially to cover state spending.

There is some talk that the legislature will meet this fall to begin to deal with the deficit. If it does, one of the first orders of business ought to be adopting the "Maryland Funding Accountability and Transparency Act" introduced by Delegate Miller and Senator Mooney in the last session. The rallying cry should be: "Accountability and Transparency First!"

The Realities of Cable A La Carte

Forrester Research has released a new report entitled, "Cable A La Carte Pricing Creates More Problems Than It Solves." The entire report may be purchased here --on an a la carte basis--for a price of $279.

An excerpt from the report posted on NCTA's website, consistent with all the trade press reports I have read, is to the following effect:

In our research, we simply asked cable viewers to consider how much they would pay, if anything, to subscribe to any of 46 top cable channels, up to $10 a channel per month. Viewers chose a simulated bundle with an average of 26 channels, but were only willing to spend $24.08 a month, less than $1 a channel, half of what they pay now. Given the 8 hours of TV that US households watch daily, that’s about $0.10 per hour, compared with the $2.00 per hour we pay to rent a new release on DVD. In contrast, an hour of prime time costs advertisers $0.60 per head. At $0.10 per hour, à la carte pricing would never work: Producers and cable companies wouldn’t get paid enough to survive, and consumers would lose desired content.

I have not reviewed the entire Forrester report. But the research does seem to confirm what to me has seemed intuitive: Under an a la carte regime, subscriber's expectations about what they think they "ought" to pay or would "like" to pay for only their individual selections would not cover the costs of the programs and cable service. Thus, the significance of the last sentence above.

I do not know whether the producers and cable companies would, in fact, "survive" in the sense of not shuttering the windows ands closing the doors. Many surely would survive in one form or another. But there is little doubt that those cable companies that do survive under government-mandated a la carte will eliminate some networks or alter other programming within networks. This is the key to the argument I made in my recent piece, "The Constitution, A La Carte". Absent a compelling justification that cannot be met with less restrictive speech restrictions, a government mandate that causes a cable operator to eliminate or alter the programming almost certainly constitutes an infringement of the operators' free speech rights under the First Amendment.

Indeed, the likely constitutional infirmity of a la carte became even clearer only yesterday when a federal appeals court issued a decision vacating FCC orders imposing fines on Fox for allegedly indecent broadcast programming. Although the court did not base its decision on First Amendment grounds, it did say in a pointed aside: “Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children.” Of course, it is even more difficult to describe cable service as "uniquely pervasive" and "uniquely accessible to children." Not only do parents have to make an affirmative decision to subscribe to the service, they have to decide they don't want to use the readily available tools that allow blocking of any individual channel. It is not very likely that an a la carte mandate would find much in the way of support from the "uniquely pervasive rationale" in the 1970s Pacifica case involving an over-the-air radio broadcast.

The Executive Summary of the Forrester report concludes: "To satisfy the FCC and avoid legislation that would disorient consumers, cable operators should offer the benefits of a la carte pricing through smarter bundling of family, sports, or news programming in addition to the traditional tiered packages." I am not smart enough to know what, if any, degree of smarter bundling would satisfy the FCC and avoid legislation. But I do know that the video marketplace is sufficiently competitive that cable executives, who get paid big bucks to do their jobs, will do better at figuring out which business models meet consumers' needs than the folks at the FCC or on the Hill. And speaking of disorientation, I get disoriented just thinking about why the government would want to tread on such constitutionally suspect ground.