Court Permanently Enjoins Enforcement of Maine's Cable-Only A La Carte Law

Pursuant to a court-approved agreement by the parties to a pending legal challenge, a Maine law that would have forced cable operators to unbundle the programming they offer to customers, but not rival distributors of multichannel programming, will not go into effect.

LD 832 states in its entirety that "[n]otwithstanding any provision in a franchise, a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually."

In the summer of 2019, Comcast of New Hampshire/Maine joined a group of cable programmers (Plaintiffs) to sue the Governor of Maine, the Attorney General, and a number of municipalities (Defendants) in the U.S. District Court of Maine.

Plaintiffs put forth three arguments in support of their request for declaratory and injunctive relief: (1) that LD 832 violates the First Amendment by singling out cable operators for disfavored treatment, (2) that it infringes upon Plaintiffs' constitutionally protected editorial discretion regarding how they choose to package programming, and (3) that it is preempted by Sections 544 and 556 of the Communications Act.

The District Court agreed with the first of these arguments and in December 2019 granted a preliminary injunction.

In "Maine's Cable Unbundling Law Violates the First Amendment," a July 2020 Perspectives from FSF Scholars, Free State Foundation President Randolph J. May and I took issue with the District Court's errant conclusion that cable operators' First Amendment protections, recognized by the Supreme Court in its 1994 Turner I decision, do not extend to the editorial decision to make (1) individual channels available to customers exclusively through tiers, and (2) individual programs available solely as part of channels.

In February 2021, the U.S. Court of Appeals for the First Circuit denied Defendants' appeal of the District Court's decision to grant a preliminary injunction, a development I described in a contemporaneous post to the FSF Blog.

In response, the parties agreed to put an end to their legal dispute, filing with the District Court a Joint Motion for Entry of Stipulated Final Judgment and Order for Declaratory and Permanent Injunctive Relief.

On April 23, the District Court issued an Order (1) declaring that LD 832 violates the First Amendment, and (2) permanently enjoining the Defendants from giving it effect.

Regrettably, the District Court's entry of this Order means that it will not have the opportunity to revisit its incorrect conclusion that the Maine law does not infringe cable operators' constitutionally protected editorial discretion with respect to the packaging of programming. Nor, for that matter, will Plaintiffs have the chance to develop the record more fully on the question of federal preemption.

Nevertheless, it certainly is welcome news that the saga of LD 832 has come to end.

First Circuit Affirms Preliminary Injunction Against Maine's Cable Unbundling Law

On Wednesday, the U.S. Court of Appeals for the First Circuit affirmed a lower court decision barring from going into effect video programming unbundling legislation in Maine that exclusively targets cable operators.

The Maine law (LD 832) requires cable operators to offer individual channels and programs on an a la carte basis. Satellite, Internet-based, and other competing providers of multichannel video programming services remain free to package content, and market it to consumers, however they choose.

Shortly after LD 832 became law in June 2019, Comcast of New Hampshire/Maine and a group of cable programmers sought declaratory and injunctive relief from the U.S. District Court in Maine.

The plaintiffs argued that the Maine law is preempted by federal law and runs afoul of the First Amendment in two ways. First, it singles out cable operators. Second, it infringes upon cable operators' protected editorial discretion regarding how they package programming.

In December 2019, the District Court in Maine granted a preliminary injunction solely on the basis that LD 832 improperly singles out cable operators. It rejected the preemption and editorial-discretion arguments. With respect to the latter, the court's decision hinged upon an inappropriately narrow interpretation of the U.S. Supreme Court's 1994 Turner I decision recognizing that First Amendment protections apply to cable operators' programming decisions.

As Free State Foundation President Randolph J. May and I explained in a July 2020 Perspectives from FSF Scholars, numerous Supreme Court decisions, including Turner II, make plain that cable operators' First Amendment protections do extend to decisions as to how content is packaged. We therefore expressed hope that the appellate court would take up this issue.

The First Circuit affirmed the District Court in Maine's grant of a preliminary injunction, but did so solely on the basis that LD 832 "constitutes a speaker-based regulation that 'singles out' cable operators' speech for special, disfavored treatment." Regrettably, it declined to consider whether the law also infringes cable operators' protected editorial discretion.

Maine must now decide if it wants to pursue the case further. If it does, one threshold issue that the District Court must decide is "whether additional, post-enactment evidence can be offered in support of the law." For as the First Circuit noted, "[t]he state candidly conceded at oral argument that, if the Act triggers the First Amendment at all, the existing record is insufficient to justify the law …."

A copy of the First Circuit decision is available here.

A La Carte, Agian

Suppose I wish to purchase only the Sports page of the Washington Post on an a la carte basis on the theory that it ought to be priced less than the whole newspaper? 

Or suppose that I wish to purchase only the interview in Playboy (or centerfold if you prefer) on the theory that it ought to be priced less than the whole magazine. 

No one thinks the government should – or could – mandate that newspapers or magazines be made available on an a la carte basis just because some politician or policymaker thinks that some consumers might prefer to "pick-and-choose" only their favorite sections. 

Yet, in the past, politicians and policymakers have suggested the government should require cable operators to make available the channels on their systems on an a la carte, pick-and-choose basis. 

This was a bad idea when Senator John McCain and others offered it previously over a decade ago. 

It is a worse one now. But Sen. McCain is back at it again, with his newly introduced "Television Consumer Freedom Act" (S. 912). In his May 9^th floor remarks introducing his bill, Sen. McCain said it "is about giving consumers more choices when watching television." 

My gosh! In the history of humankind, consumers never have had so many choices for watching so much diverse video programming offered by so many video providers. 

Whatever the situation over a decade ago when Sen. McCain first urged adoption of an a la carte requirement, it is indisputable that the video programming and distribution marketplace is now competitive. Curiously, despite what should be its obvious relevance to consideration of new regulatory requirements, Sen. McCain does not discuss the current competitive marketplace environment in his floor remarks. 

In the context of this blog, it is impossible and unnecessary to chronicle the remarkable increase in consumer choice in the video marketplace that has occurred over the past decade. For a general picture with lots of data points, I refer the reader to the FCC's Video Programming Competition Report (Fourteenth Report), released in July 2012, even though this report covers marketplace developments only through 2010.

In the Fourteenth Report's very first paragraph, the FCC states that "the most significant trends since the last report relate to the increased deployment of digital technology, consumers’ rising demands for access to video programming anywhere and anytime, and the evolution of online video from a niche service into a thriving industry." Remember, this is as of the end of 2010.     

Today's cable systems typically offer subscribers approximately 900 unique channels, and the two competing satellite operators (Dish Network and DIRECTV) offer nearly the same number of channels. And now, of course, the "telephone companies" compete in the multichannel video market with similar video offerings. Presently, the cable companies have approximately 58% of the multichannel video programming distributor (MVPD) market, the satellite providers 33%, and the telephone companies 9%. 

But as the FCC observed, even as of 2010, the emergence of "over-the-top" online video as a "thriving industry" further altered the marketplace environment in the direction of more consumer choice. Today, Netflix, with 29 million subscribers, is the nation's largest subscription video service, with more subscribers than Comcast (22 million). In addition to the dominant provider Netflix, other major online video programming purveyors include Hulu, Amazon, iTunes, HBOGo, and Apple TV. Not to mention YouTube, which recently announced initiation of a subscription video service. And, of course, in addition to the traditional "television" screen, you can watch all this various video programming on laptops, notebooks, and smartphones. 

We truly do live in the age of "TV Anytime, Everywhere." 

While Sen. McCain did not focus on these competitive developments, it would be difficult to conclude a marketplace failure exists warranting further government regulation of video program providers. In his May 14^th statement at the Senate Subcommittee on Communications, Technology, and the Internet hearing, Sen. McCain summed up this way: "Consumers should not have to pay for television channels they do not watch and have no interest in watching." It is true that the cable and satellite operators do not presently allow consumers to purchase channels on an individual basis, but there are an increasing number of online providers that already offer just such "on demand" business models. 

And the most fundamental point is this: In light of the existing competition among video programming purveyors, it is much more likely that the marketplace will satisfy consumer demand in the most efficient, least costly manner than some government-directed offering. While the idea that all consumers should be able to purchase only the channels they choose to watch from all MVPDs may have superficial appeal, the notion that such a universal a la carte regime really would benefit consumers is highly suspect. 

Numerous previous studies have shown that a government-mandated a la carte regime would not necessarily lower prices for consumers and might well diminish, even substantially, the number of channels available, especially those appealing to minority or specialized tastes. This is only logical. With the unbundling of all channels, the costs for making available certain individual channels would rise as the audience size for particular channels is reduced. Some channels almost certainly never would get off the ground because, absent the opportunity to bundle them with already-popular channels, MVPDs would not risk incurring the costs of carrying a channel with little initial expected audience demand. 

In a 2003 study, "Issues Related to Competition and Subscriber Rates in the Cable Television Industry," the GAO concluded that, under an a la carte regime, cable networks could lose advertising revenue, and, as a result, "some subscribers' bills might decline but others might increase." 

And in their 2008 Perspectives from FSF Scholars, "Bundles of Joy: The Efficiency and Ubiquity of Bundles in New Technology Markets," Stan Liebowitz and Stephen Margolis explained at length why product bundling generally is efficient and ubiquitous throughout the economy. With respect to cable operators, at the time subject to pressure by then-FCC Chairman Kevin Martin to adopt an a la carte model, Professors Liebowitz and Margolis had this to say: "Customers may naïvely believe that the single channel price will be their bundle price divided by the number of channels in the bundle. Regulators may cynically give them pay-by-stations options. But since customers will be unhappy with the likely result, some regulatory alternative will be found, but no alternative is likely to enhance efficiency." 

Again, today's video distribution and programming marketplace is more competitive than ever and, thus, almost certainly responsive to evolving consumer demands. It is foolish to think the government can do a better job of deciding how video programming should be offered than the marketplace. 

I should say that I understand that, strictly speaking, Sen. McCain's bill does not impose a government mandate requiring MVPDs to adopt an a la carte model. Rather, the bill would withhold from MVPDs and broadcasters certain regulatory "benefits" absent adoption of an a la carte model. It is in this sense that Sen. McCain says that his bill is "voluntary." 

Without engaging in a linguistic debate concerning the definition of "voluntary" in the context of a regime in which the government confers and then threatens to withhold certain benefits absent agreement to adopt a government-preferred course of action, I will grant Sen. McCain this: Due to the remarkable changes in the video marketplace that I have already discussed, it is time to begin examining, on a comprehensive basis, jettisoning many of the outdated legacy regulatory requirements he has identified, such as the network non-duplication, syndicated exclusivity, must-carry and retransmission consent, compulsory copyright, and so forth. 

But the existence of such a tangle of legacy requirements in a fast-changing, competitive marketplace should not be a justification for adopting still more government intervention. Rather, I would respectfully urge Sen. McCain to consider it a reason for reducing and eliminating outdated regulations so the free marketplace can be allowed to work. 

One final note: Recall my (hypothetical) desire to purchase only the Washington Post Sports page or the Playboy interview (or centerfold). I said at the outset that no one believes the government should – or could – mandate that the Post or Playboy be required to satisfy my desire. Apart from any others, a reason for this is that the First Amendment would prevent such government intervention with respect to the exercise of the publishers' editorial discretion regarding the way they wish to assemble their content into a package. I argued way back in May 2007 in "The Constitution, A La Carte" that any government requirement that has the effect of imposing an a la carte regime on cable operators and other MVPDs likewise should be found to violate their First Amendment rights because it would infringe upon their editorial discretion to package their program content as they wish. 

I said then that "a la carte constitutionalism simply won't do." I still believe that to be true, of course, and I hope you do as well.

Cable a La Carte Class Action Dies Another Death in Court

In October I blogged about the U.S. Court of Appeals for the 9th Circuit's ruling in Brantley v. NBC Universal, upholding the case's dismissal. The 9th Circuit panel later withdrew its opinion. But on March 30, the 9th Circuit issued a new opinion in Brantley, again affirming dismissal of the class action's Sherman Act antitrust claims.

My October blog post gives further background on the case. Here are a few relevant excerpts from the 9th Circuit's opinion on reconsideration:

First, it is clear that the complaint does not allege the types of injuries to competition that are typically alleged to flow from tying arrangements. The complaint does not allege that Programmers' practice of selling "must-have" and low-demand channels in packages excludes other sellers of low-demand channels from the market, or that this practice raises barriers to entry into the programming market. Nor do the plaintiffs allege that the tying arrangement here causes consumers to forego the purchase of substitutes for the tied product…Nothing in the complaint indicates that the arrangement between the Programmers and Distributors forces Distributors or consumers to forego the purchase of alternative low-demand channels…Indeed, Plaintiffs disavow any intent to allege that the practices engaged in by Programmers and Distributors foreclosed rivals from entering or participating in the upstream or downstream markets…Nor does the complaint allege that the tying arrangements pose a threat to competition because they facilitate horizontal collusion...

Businesses may choose the manner in which they do business absent an injury to competition…Therefore, the mere allegations that Programmers have chosen to limit the ability of Distributors to offer Programmers' channels for sale individually does not state a cognizable injury to competition...

Here, Plaintiffs have not alleged that the contracts between Programmers and Distributors forced either Distributors or consumers to forego the purchase of other low-demand channels (a result analogous to the competitive injury in Loew's), but only that consumers could not purchase programs a la carte and they did not want all of the channels they were required to buy from Distributors. "[C]ompelling the purchase of unwanted products" is not itself an injury to competition...

But the plaintiffs here have not alleged in their complaint how competition (rather than consumers) is injured by the widespread practice of packaging low- and high-demand channels. The complaint did not allege that Programmers' sale of cable channels in packages has any effect on other programmers' efforts to produce competitive programming channels or on Distributors' competition as to cost and quality of service. Nor is there any allegation that any programmer's decision to offer its channels only in packages constrained other programmers from offering their channels individually if that practice was competitively advantageous. In sum, the complaint does not include any allegation of injury to competition, as opposed to injuries to the plaintiffs...

Indeed, because Plaintiffs' complaint alleges that the restraints at issue in this case were imposed by Programmers, not Distributors, Leegin suggests that any competitive threat is diminished...

If my earlier blog post spoke to soon about the demise of cable a la carte regulation-by-litigation, the chances of Brantley being resuscitated through a contrary ruling by the 9th Circuit en banc or by the U.S. Supreme Court are extremely remote.

In Case You Missed It: The Quiet Demise of Cable A La Carte

With the flurry of FCC activities taking place since May—including ongoing USF reform efforts, the AT&T/T-Mobile merger review, the 706 Report, and the Fifteenth Wireless Competition Report—one might easily have missed the quiet and anticlimactic demise of the cable a la carte regulation-through-litigation in Brantley v. NBC Universal (2011). In June, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a nationwide class action antitrust lawsuit that sought to override marketplace business practices regarding video programming distribution by obtaining a judicial order imposing a la carte mandates. The Court dismissed the lawsuit for failure to state a valid antitrust claim.

Some background on Brantley v. NBC Universal can be found in a 2007 blog post, "Classless Class Action Against Cable." In short, the litigation sought to prohibit video programmers and video programming distributors such as cable and DBS providers from only offering multi-channel bundles and instead require separate channels be offered for purchase on a stand-alone basis. Soon after it was filed, the lawsuit picked up an effective endorsement of the then-Chairman of the FCC. But the litigation ran into trouble in the district court, where the trial lawyers were unsuccessful in making their Sherman Act claims through three complaint filings. So they appealed to the Ninth Circuit, and lost again.

The Ninth Circuit's opinion in Brantley observed that "[a]lthough plaintiffs may be required to purchase bundles that include unwanted channels in lieu of purchasing individual cable channels, antitrust law recognizes the ability of businesses to choose the manner in which they do business absent an injury to competition." For this proposition the Ninth Circuit relied on AT&T v. linkLine (2009) – a case I blogged about at the end of the Supreme Court's 2008-09 term.

The bundling of service offerings is a common feature of competitive markets, as discussed in an FSF Perspectives paper by Stan J. Leibowitz titled "Bundles of Joy: The Ubiquity and Efficiency of Bundles in New Technology Markets." Not to mention the First Amendment problems that plague cable a la carte regulatory schemes that FSF President Randolph J. May pointed out in "The Constitution, A La Carte."

Thankfully, the Ninth Circuit's ruling in Brantley put a baseless regulation-through-litigation claim to rest. But since the lawsuit commenced, a la carte mandates have been superseded by other regulatory threats to video marketplace freedom. The FCC's "AllVid" proposal and Comcast-NBCU merger order conditions regarding video navigation devices and online video content, for instance, foreshadow future regulatory actions regarding video services. So when it comes to the video market, proponents of pro-market policies still have their work cut out for them.

Burying an FCC Proceeding Seven Years Later

In early 2001, the FCC initiated a proceeding to examine whether it should adopt new regulations to govern the developing technology of what it called “interactive television” or “ITV”. The notice asked hundreds of questions, including many variations of: what is interactive TV; who should be allowed to provide it; and how should it be regulated? The concern prompting the initiation of the Commission’s “interactive television” proceeding, in large part, was the recently consummated AOL/Time Warner merger. The Commission worried that a cable company, like Time Warner, that vertically integrated with an Internet services provider, like AOL, might discriminate against rival ITV providers. It worried about the potential market dominance of a new service launched by the newly-integrated Time Warner and AOL called “AOLTV” that combined video streams with data services including web content.

Put in the best light, the agency’s notice raised questions concerning the regulatory implications, in the then-emerging digital broadband environment, of the marrying of “video” and “data,” of the “television” and the “computer” screen.

With Jeff Eisenach, I filed comments in response to the FCC notice. Remember this was March 2001. In those comments, we said something worth keeping in mind today:

“In today’s rapidly changing technological marketplace environment, however, even the
launching of regulatory inquiries can do more harm than good. Initiating such inquiries may well affect – even if inadvertently – business and technology decisions as current and potential market participants assume full-battle mode in an effort to “shape the process” early on. The likelihood of the harm outweighing the benefit is more acute when the “constant” and continuous” changes to which the Commission refers make it difficult even to specify a “definition” for the potential object of the Commission’s regulatory concern.”

The comments also urged caution by the Commission in light of the First Amendment implications raised by any regime that regulates content or creates mandatory access rights. The Commission’s notice inquired about both.

Of course, we now know the FCC’s concerns that AOL/Time Warner integration might be anti-competitive were, as they say, grossly exaggerated. Anyone following Time Warner and AOL knows the marketplace, in recent years, has dictated more un-integration than integration of those companies. And, of course, in a broader sense, the market for broadband video, data, and voice services and products, sometimes integrated, sometimes not, becomes ever more competitive.

Now comes word that the FCC yesterday issued an order closing the ITV proceeding. The Commission says, wisely: “In the absence of any clear direction or consensus as to how this market may develop, it would be inappropriate to commence further regulatory action.”

Good for the FCC – even though, as I said seven years ago, the Commission should not have initiated this particular proceeding at a time when even a casual reading of the notice indicated the agency really couldn’t define the object of its concern.

And this caveat as well: The closure of the ITV proceeding is just the termination of one seven-year old docket with a particular docket number. The Commission continues to consider, in one proceeding or another with other docket numbers, imposing various regulatory mandates applicable to broadband providers, including broadband video providers, sometimes under the rubric of “net neutrality,” sometimes “a la carte,” sometimes “open access,” and whatever else have you. Even in terminating the ITV proceeding, the Commission takes pains to remind it is “without prejudice” to further market intervention if conditions warrant. The Commission should cut this sentence from its ITV termination order and post it, in large caps, above the entrance to the Portals through which all FCC regualtors must pass: “In the absence of any clear direction or consensus as to how this market may develop, it would be inappropriate to commence further regulatory action.”

And, finally, this reminder too: This Friday, September 26, FSF is sponsoring a lunch seminar entitled, “Delivering Content in a New Technological Environment: An Exploration of Policy Implications.” The seminar, which will especially focus on the policy implications of the movement to server-based technologies and away from traditional channels, for delivering video content, features Professor Steven Wildman and FCC Commissioner Robert McDowell. Who knows? They may even take a stab at defining interactive television, or explaining the difference in today’s environment between a “television” or “computer” screen. The seminar, including lunch, is free. The details are here.

Classless Class Action Against Cable

Broadcasting & Cable reports today that, in a wanna-be class action lawsuit, 14 cable subscribers have sued major cable operators and programmers seeking millions of dollars. The alleged offense: "unlawful unbundling" that has injured consumers. According to the lawsuit, subscribers have been "deprived of choice, have been required to purchase product they do not want and have paid inflated prices for cable television programming."

This almost certainly frivolous class-action would do Class Action King Bill Lerach proud but for the fact that he has just pleaded guilty to federal conspiracy charges in connection with his extortionist class action antics. And just yesterday, Melvyn Weiss, Lerach’s former partner, was indicted on federal charges of conspiracy, racketeering, obstruction of justice and making false statements to a grand jury for activities relating to his years of filing class actions suits.

The lawsuit against the cable industry makes no sense because there is no law—of any sort—that requires cable operators to offer programming on an a la carte basis and the broadband marketplace is sufficiently competitive that consumers will be able to get programming in the form they want it from one of the video providers or another, not to mention the Internet.. And apart from the reasons why such a law would constitute poor policy in today’s competitive broadband environment, as I have argued on CNET and elsewhere, government-mandated a la carte would violate the First Amendment rights of cable operators.

The lawsuit claims subscribers are deprived of “choice” to purchase product they don’t want. Funny thing. When I signed up for cable, not only did I understand what programming I was getting for what price, I don’t remember a gun being held to my head. I understood the First Amendment, but I didn’t imagine anyone would assert on my behalf that I had a fundamental right to dictate how the cable operators conduct their business.

The aim of class actions of this sort, which have no basis in law, is to extort quick settlements which mostly enrich the lawyers. Reading about this one, Bill Lerach must be lamenting that his own game could not have continued on a bit longer.

As the Broadcasting & Cable article notes, cable operators have been under pressure from FCC Chairman Kevin Martin and some members of Congress such as Senator John McCain to “voluntarily” offer a la carte programming—under the veil of threats for a government-imposed mandate if they don’t. This unwarranted pressure from public policymakers, unfortunately, provides a backdrop which makes it easier to file a frivolous lawsuit like this one. The pressure should cease.

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.

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.

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.