Perspective: The Constitution, a la carte

Federal Communications Commission Chairman Kevin Martin wants to force a so-called a la carte regime on cable television operators.

Under "a la carte," cable subscribers would be allowed to pick and choose the individual channels to which they wish to subscribe. So if you think you want to watch only a classic movie channel, C-Span's BookTV, the Weather Channel and ESPN, the theory goes, you should be able to select and pay for only those channels.

The problem with Martin's renewed push for a la carte--apart from serious matters of public policy raised by such direct government interference in a competitive marketplace--is that the government may not take an a la carte approach as to which constitutional provisions it chooses to follow. By interfering with the discretion of cable operators to present their programming as they prefer, mandatory "a la carte" very likely violates the First Amendment's free speech guarantee.

What rationale is offered for government-mandated a la carte? In late April, when the FCC released its highly publicized report on television violence, Martin repeated his oft-stated view that a la carte would be a tool "to give parents more direct control over the television content that comes into their homes." He says he is concerned about the amount of indecent and violent programming aired and its potential harmful effect on children.

Mandatory a la carte almost certainly will diminish the amount and diversity of programming available to cable subscribers, a result at odds with First Amendment values.

Martin acknowledged the constitutional difficulties whenever the government attempts to regulate program content. But he suggested that requiring cable (and satellite) television operators to adopt a la carte "would be a more content neutral means for Congress to regulate violent programming and therefore would raise fewer constitutional issues."

Mandating a la carte may pose less of a slam-dunk constitutional objection than, say, an outright government edict banning HBO's The Sopranos because it is "violent" or Sex and the City because it is "indecent." But the constitutional objection nevertheless is strong.

Imagine if the government required The Washington Post to be offered a la carte on the basis that readers should not be required to pay for the news section, which, with a war on, contains some "violent" content, or the style section, which contains some content that may be considered "indecent." Many readers surely would prefer to pay only for the sports section. Now imagine the same thought experiment with respect to Time. The magazine contains sections readers might prefer to do without if only the government required it to be sold on an unbundled basis.

No one suggests a government-mandated a la carte regime for newspapers or magazines would pass First Amendment muster.

Under the Supreme Court's current jurisprudence, it is true that laws that impose special restrictions on cable operators are not subject to precisely the same level of strict scrutiny under the First Amendment as laws that restrict the print media. But in the leading case of Turner Broadcasting System v. FCC, the Supreme Court nevertheless made clear that special restrictions on cable operators still call for "heightened First Amendment scrutiny." The government generally must show that the speech-restrictive law serves an important government interest that cannot be satisfied in a less restrictive manner.

Assuming there is an important government interest in protecting children from viewing indecent and violent programming, there are certainly less restrictive means to accomplish this objective. Even putting aside the notion that it might be enough that parents may choose not to subscribe to cable television at all or, if they do, restrict what their children watch, the government might require that cable operators allow blocking of channels parents find objectionable.

But Martin has acknowledged "cable operators already block any channel that a consumer requests to be blocked." Channel-blocking is a less restrictive alternative than negating cable operators' editorial discretion to decide how they wish to package program content.

An a la carte regime almost certainly would involve the government setting the prices for the unbundled channels. Otherwise cable operators could set the price for individual channels in a way that, in effect, establishes incentives not much different than those that exist in a current regime that allows blocking, but without any billing credit. This is why Martin has suggested an a la carte regime "could simply require the cable operator to reimburse consumers for the channels they request to have blocked." One way or another, the government surely will get involved in setting the reimbursement rate.

This doesn't trouble Martin. He says: "While the Constitution protects the right to speak, it certainly doesn't protect a right to get paid for that speech." But this formulation misses the mark. One of the landmark free speech cases of the 20th century, New York Times v. Sullivan, involved a paid ad in the Times. What the Constitution protects against are government restrictions, in the face of less restrictive alternatives, that affect the amount of speech a speaker wishes to convey, or the format in which the speaker chooses to convey the speech to those willing to pay to obtain it.

Mandatory a la carte almost certainly will diminish the amount and diversity of programming available to cable subscribers, a result at odds with First Amendment values. This is because the current system of packaging programming in tiers that subscribers, on the whole, find attractive allows cable operators to subsidize new program networks while they try to gain a foothold and maintain existing networks that have a narrow appeal, such as to minority interests. This is why so many civil rights groups oppose mandatory a la carte. If the government dictates a la carte, the economics of the cable business will force operators to drop some less popular individual channels.

When Martin was asked earlier this month about the Don Imus imbroglio, he said it is preferable for the market, not government, to address offensive expression. The marketplace drove Imus from the air, and it is entirely possible, especially in today's increasingly competitive video marketplace, that one or more pay television providers will decide to offer programming on an a la carte basis.

A considerable amount of video programming already is moving to the Internet and even to cell phones, platforms well-suited to a la carte video consumption. Cable, satellite and the telephone companies offering pay-television services will be responsive to consumer preferences.

But in the meantime, our government cannot choose to ignore the First Amendment. A la carte constitutionalism simply won't do.

Biography
Randolph J. May is president of the Free State Foundation, a Maryland-based think tank. The views expressed here are his own.

More Perspectives

[RustedView]

Marketplace

To the best of my knowledge, a la carte programming has never
been offered by any distribution network. How can you claim
that the market will choose to offer it or not? There essentially
exist monopolies for transmission of content. To assert that an
invisible hand will take care of it is naive.

In fact, allowing consumers to CHOOSE which channels they wish
to get, you increase the ability of the marketplace to to its job
and self-regulate. Channels that are little subscribed to will
fade away and channels that have high subscriber rates will be
able to grow.

[Penguinisto]

Strangely enough...

While I do not support the right of any monopoly to simply plop down and dictate terms, there are a couple of things I'd like to address in your argument:

1) Little-viewed channels do eventually die. I'm having a devil of a time finding the Anime Network locally here, while I could find it at a previous region in which I lived... because it's apparently not popular enough (read: not enough regular viewers to make it worth charging advert rates for).

2) Just because its popular doesn't mean that some of us who prefer not to see it be forced to watch nothing but (see also "American Idol" - now multiply that fare by a zillion channels... yuck).

I dunno - I'm just a guy who likes all the weird little channels - Science Channel (and most of the Discovery - owned stuff), HGTV, History, the Indie films network, things of that nature).

Also, it's not as if there is a monopoly anymore for most folks - Cable has to compete with Satellite. Unless you live in a real oddball place or a totalitarian apartment complex, you can put a dish up. I for one cannot wait to get into my new house - there I can ditch Comcast television once and for all (I figure that $50 Cable Internet + $50 DirecTV + $25 Vonage will work just fine, since each is the best offering of what I look for in their related services - most "bundles" wind up lacking features, or jacking rates up to about the same costs anyway after the sweetheart period - this way I get to pick and choose, and let the critters compete for my dough if they want me to switch).

/P

[asdf]

corporations are not people, you special-interest lobbyist

Hey guess what- corporations, while they be the alter you worship at, while you may deify them as your one, true God, while you may be as dependent upon them for you multi-million dollar pay package as a fetus is on its mother's womb, corporations ARE NOT PEOPLE.. we HUMAN BEINGS don't run the risk of "infrininging on their First Amendment Rights. "

See, First Amendment Rights are something that People sacrificed and died for so that other PEOPLE might live in a free and free and open society. People don't fight wars so that corporations can keep giving you your paycheck, no matter WHAT they tell you in the boardroom.


Here's a small list of the deeply disturbing distortions that Randolf J May did proffer to the readers of CNET and indeed the world in his capacity as President of the Free State Foundation:

Randolf J May did say:
"By interfering with the discretion of cable operators to present their programming as they prefer, mandatory "a la carte" very likely violates the First Amendment's free speech guarantee."

Corporations don't GET First Amendment Rights. But see above.


Randolf J May did say:
"Martin acknowledged the constitutional difficulties whenever the government attempts to regulate program content."

Program CONTENT is not being regulated in any way whatsoever. The CONTENT of any program is up to the creators of that program-period. Full artistic and First Amendment rights prevail; the ideas, speech, action, theme, political content, story etc. are all the decisions of the program creators.

Randolf J May did say:
"Imagine if the government required The Washington Post to be offered a la carte..."

Holy cow! Imagine if the government tied to force novelists to offer their books chapter by chapter! Holy cow!

This is an argumentation technique called "slippery slope" whereby the person offering the argument attempts to equate what in reality two very distinct scenarios, one questionable, one CLEARLY objectionable and completely hypothetical. In this case, the real issue is the cable industry's ability to FORCE YOU to buy item A in order to get item B. On the other is the right of newspapers to print the news as they see it.

Is Randolf J May really confused as to the difference between a newspaper's or author's right to publish their cohesive world view and a cable company making you buy their Home Shopping Network and Gunsmoke re-runs and Square Pants Sponge Bob
and ex in The City all at the same time?

Could anyone really think those things are , in essence the same? What a joke.


What's being regulated is YOUR ability to choose what you wish to pay for, and it's being regulated by the cable industry. That's what in the computer industry is known as "bundling". You're being forced to BUY item A in order to purchase item B.

That's illegal in every other industry, it's called tithing- EXCEPT the cable industry. Now why might that be? Can you say.... special-interest lobbyists?


So when the Randolf J May's isn't trying to get Net Neutrality on it's knees so he pump a few .45s into the back of its head:

"Commentary: Net Neutrality Would Violate the First Amendment Rights of ISPs," Randolph J. May, THE NATIONAL LAW JOURNAL, August 16, 2006
<a class="jive-link-external" href="http://www.law.com/jsp/article.jsp?id=1155559192876" target="_newWindow">http://www.law.com/jsp/article.jsp?id=1155559192876</a>

using the same quality of argument he presents here, he's trying to make sure that the cable industry gets to keep its special exemption from bundling laws.

I laugh every time yet another industry insider creates some "think tank" to churn out position paper after position paper... as though there's anything like scholarly activity and research going on .

You want to know why things are so bad in this country, well, scroll up to the top of this page and take a long, hard gaze into the eyes of that picture. There's your answer.

[drewbyh]

Agreed

Enough said.

[247mark]

Wrong

Corporations are considered to be a legal person in the eyes of the law. They don't necessarily have the same rights that an actual human person has but a corporation is a legal person. The rest of your post just seems to be your angry opinion. Carry on.

[sumwatt]

Thanks asdf, for spreading the gospel of dumb.

You are right in your contention that corporations don't have explicit protections under the 1st Amendment of the US constitution. However, the rule of thumb is that corporations are treated as citizens of the state they are registered in and inherit certain rights that a human being has.

Free speech is a right that is generally considered available to the corporate citizen. Corporations can own property and other assets. Corporations can not vote or generally exercise rights that only a human could exercise. (hence, why there are lobbyists for both industry and special interests).

"Program CONTENT is not being regulated in any way whatsoever. The CONTENT of any program is up to the creators of that program-period."

It would probably help if you would READ what he said. He never said content is regulated (it is, on public airwaves which include many channels cable providers carry). Notice he uses the word "attempts". You're creating argument for the sake of argument. You later assert that

"In this case, the real issue is the cable industry's ability to FORCE YOU to buy item A in order to get item B."

oops. Mind restating this into some form of coherent argument. It would be a bit fallacious to say cable companies are FORCING you to do anything. You aren't offering all of the options which includes not entering into an agreement to subscribe to their services. Your agreement is at will, not by force.

His use of the slippery slope argument is not anything too difficult - his argument is correct: It would be as if they would force the Washington Post a la carte - not by individual articles but as pieces of the paper. To put it a way you may comprehend: imagine the government were to force the Washington Post to sell each section of their newspaper separately..... the finance or money section would have to be available in newspaper boxes separately from the local section of the paper. I'm forced to buy the bundled paper at the box but I only want the front section and the business section - oh those pesky newspapers and their "bundling".

Ironically, you go on to state that Newspapers, many of which are owned by corporations, appear to have rights; odd that cable companies mysteriously don't...

Now, if you weren't so jaded by your apparent anti-corporatism you may take heed and learn why cable operators bundle channels the way they do:

The cost of a cable channel to carry varies depending on a variety of factors including market size, active subscription base and other factors (either combined or apart). ESPN is one of the highest-cost channels for a cable company to carry because there is such a high demand for it. The bulk of cable channel costs are driven by a few channels.

Other channels cost very little to carry at all. By bundling, it evenly distributes costs across a wide base of channels. Bundling, in conjunction with the first item, helps to keep an active subscription base by attempting to cater to more people. This is partly a product of legacy analog technology and restraints of running a cable system that has relied on manual filtering of channel content and newer automated channel filtering technology and addressable taps sitting in the backyard on poles or in boxes on the side of apartment buildings.

Then you have to consider that cable companies have to lay out the bulk of their infrastructure. In many markets that are still growing, this means laying miles of cable that will sit dead for one or more years until houses and buildings are built that will take advantage of using the company's services.

On top of this you have to have a technical staff, support in place, overhead in terms of cable boxes, maintenance on existing infrastructure, and ensuring you, and millions like you, have a connection so you can make such blatant and ill-conceived posts on internet forums all over the world. All of this is capital intensive work just so you can get online and spew bile, watch TV, and cry about how you're "forced" to do subscribe.

If you don't like the way it is done, you are more than free to start your own private company, hash out all of the deals on your own, go through the regulatory process, build out a nationwide network, and serve up your customers the way you want it done.

[Catmoves]

Thank you

An excellent article. I wonder how much Randolph J has invested in cable and/or satellite TV suppliers? It seems he (and maybe some of his clients) might have a vested interest here.
We need to point out, again and again, to the FCC and our reps in Washington, that corporations are most definitely NOT human beings and are guaranteed absolutely nothing under our Constitution.

[bjwhaw]

Umm.. Parental Controls anyone?

Parental controls already exists in our TV, DVD Players and Cable/satellite boxes. If people would just take a little time to hit the MENU button on thier TV remote, or other like button on the cable/satellite remote, they can easily acces parental controls, with out requiring further Government action that would cost the people more in the long run.

[Travis Ernst]

Then Dad forgets

I agree to "keep it simple stupid" policy.

But if the house starts to block out "offending" rated programs
then Dad needs to remember the password to watch his Football
channels... Not to mention that it doesn't take kids long to hack
the 4 digit code. House #, Phone #, Cell#, years born, y/m/d
birthdays... Within a handfull of atempts they will get it and the
"protection" is now invalid.

There is a series of issues with the "blocking". If you can buy a
blocking box that has a set rate (dip switch) for G/PG/PG14 or
whatever the TV rates are THAT may be a better route. No
passes for the TV's in the kids rooms. Use security screws.
After the Tuner to the TV so it catches it on the Coax.

[sullivanjc]

Parental Controls lacking

I do use parental controls and find them lacking. I want the ability to block shows *regardless* of rating. Every device I've ever had with parental controls does not allow this. You can block by rating or you can block channels but you can't block based on the program and typically can't block based on times. I also find the ratings tend to be too generic and not always properly applied, assuming the program in question is rated at all (which some are not).

Finally, in many localities, we have been limited in our choices for cable operators due to prior government intervention. If the government will not remove such restrictions and open the market completely, then they should impose regulation on those they do allow that will give the consumer more freedom of choice in what programming they choose to pay for.

[Fritzr_gc]

V-Chip

I assume you're thinking of V-Chip and similar products. All you need to cancel V-Chip filtering is a device that does not have it. Also it can ONLY filter material that has been rated by the company that sells the V-Chip. All other content is un-rated and is take it all or block it all.

ala carte doesn't allow this particular form of circumvention and since it does not require a ratings tag it will work on any content from any source that is supplied on a channel purchased from your video supplier.

[TxTodd]

Sign me up

I have cancelled my cable, and this is why. If I could only pay for the few channels I watch, then we'd probably still have it. I can't justify the cost for just a handful of channels.

That being said, I don't want the Government involved in forcing that decision on the cable companies. This would just futher inflate the rediculous cost of cable.

Sooner or later, the technology will be cheap enough, and hopefully the cable companies will see the light. But let the marketplace figure it out of themselves. Maybe some VC's will get together and start a company offering exclusive "a la carte" programming, but the government shouldn't be part of that business model.

[asdf]

Bundling

Why does the cable industry get to tithe the purchase of its products together in a way NO OTHER industry is permitted to? Can you answer me that?

Do you not want the government to enforce anti-trust laws too? I don't get that the government MUST ALWAYS and NECESSARILY be bad in EVERYTHING it does... that sounds like so much jingoistic non-think to me. I don't get it and I don't see it. I am damn glad that they break up monopolies... the belief that we don't need government to in any way step into markets is not reality based.. that's my problem with it, and my only problem. People like the author of this article have been available for a fee to Big Special Interests from time immemorial; his opinions are facile, superficial, obviously geared to serve the needs of the industry and of no real import. But the IDEA that government is ALWAYS bad in the marketplace is genuinely dangerous and completely unsupported by historical evidence. Believe me, I want the government shutting down the exchange if people start to panic. But of course, that's US shutting it down because WE have learned a thing or two over time. The same is true here. It does NOT serve the free market to permit tying the purchase of one product to another. We know this empirically; it's not a philosophical argument. Yes, the industry wants to be a monopoly and will pull out all the stops to achieve that, because it makes the people who control and speak for the industry rich! That's all. So what? So what if they want this or that? Who CARES? We already KNOW what they want- they want to monopolize the market they exist in (or duopolize it in te case of the cable industry). That's a given. It's a given that Mr. Worm Tongue Rot Mouth will say anything and invoke any argument, even one involving the First Amendment that people fought and died for, in order that the industry he represents can be a monopoly, bundle their products together etc etc. Corporations have no conscience, are not human and do not care about humans. Their weirdo flying-monkey henchmen are more of the same, quite frankly.. I mean,, nature has continued to produce the same genes that put people in the gulags and rationalized it to themselves, right? So there's no mystery who and what is at work here. But there is a mystery as to why a small group of Americans see the government as purely evil. I want the government to say no to monopolies because the formation of a monopoly is a just a ***** or error or bug in the great system of capitalism that could, if left unchecked, destroy its host. That's just the way things turned out.

I really have a hard time understanding anti-empirical , purely ideologically based responses from people. I get it from corporations and their b*tch-boys, but people who have to live with the results and aren't being turned into multi-billionaires through the distortions of issues and lawmaking... no I don't get them.

[Rswain136]

Get Real

Newspapers are a poor analogy. I can buy papers according to content. I have one choice in a cable provider and since satellite plays by the same rules, a choice that is no choice is still no choice. I watch about 25% of the channels I get on my cable I would love a la carte. The only problem is that at the end of the day, there will not be a real cost savings as the cable distributors will find a way to gouge their customers.

[asdf]

Do books stores force me to buy books together?

A cable company assembles programming which itself is created by free agents. This is analogous to a bookstore selling different authors on different subjects.

Do book stores FORCE ME to buy their children's books to get my programming books? Do bookstores FORCE ME to buy one programming book to get another?
Would we let them?

I am having a real problem with Randolf J May's invocation of the First Amendment to try to defend the cable industries anti-competitive, Soviet-style forced-purchase, bundling techniques.

I think instead of reaching for something as sacred as the First Amendment to disguise something as crass as wanting to be even richer yet, Randolf J May needs to get down on his knees and kiss the hand of the first America vet he sees and thank him or her for risking their lives so he and his cable industry buddies can go on living in the lap of luxury- with their First Amendment rights in tact. .. that's Randolf J May's and the Free State Foundation proper relationship to the First Amendment.

See Randolf, other people died for a reason and that reason wasn't so you can sully their sacrifice to enhance your and your buddy's market position. This guy's willingness to invoke he First Amendment to defend billionaires' greed makes me physically ill.

[protagonistic]

RE: Do books stores force me to buy books together?

First, let me say I am not a fan of the big cable companies. That
being said, I want to say that as a Veteran and a Veteran who
was involved in one war, I resent your invoking my presence
into this.

My military service was to protect the rights of everyone, not just
those I happen to agree with. Would I like to see a la carte
programming? Yes. Do I think the government should regulate
it? No. I can recall very few issues where government regulation
actually solved the problem. It is much more typical that it
makes the problem worse.

As for the cable companies, I feel they are greedy, money
grubbing corporations. But no one is sticking a gun to my head
and forcing me to buy there product. There are very few areas in
the USA where you don not have a choice. You don't like cable,
then get Dish or Direct TV. And in many areas you can still put
up an antenna and watch broadcast TV.

In parting, our Constitution not only grants you the many
freedoms you enjoy, but it also allows those that you disagree
with the right to do the same thing.

[StoshNick]

competitive marketplace?!?

Cable providers have never been a competitive "marketplace". The only competition between these companies happened years ago (circ 1970's). It was a competition to determine who could openly lavish bribes and kickbacks on local politicians to determine who would get what amounts to a GOVERNMENT PROTECTED MONOPOLY in any given local market.

Perhaps you also didn't know that a government protected monopoly (such as those used for: patents, phone companies, and cable companies) is NOT a free market. In fact, government-protected monopolies are use to SHEILD an industry (or an idea in the case of patents) from normal free market forces. These monopolies are afforded this protection by the application of resources, money, and power, paid for by the government.

One other thing you apparently aren't aware of: "the government" is the same thing as "we the people" in OUR constitution. To forward the idea that somehow the people have no right to make market rules for a monopoly that they are paying to protect from free-market forces is absurd.


-cvst

[asdf]

Well said!

Exactly WHO is it that wants to get us to think of the government as anything other than the expression of a people's will, that is, t the extent that will isn't TWISTED and WARPED by special-interest lobbyists and Big Money industries that want protection from market forces?

WE the people want a free market. THEY the special interest want a closed market with special laws, in this case, bundling laws, that fatten their CEO's paychecks.

Who sucks harder on this nation's teat than Halliburton and all the "free market" contractors?, it COULD BE the cable industry.

Who's been given more protection from market forces ?

How many choices do YOU have in YOUR town for cable?

You think THAT"S a FREE market???

Does it FEEL like a free market?

Is it PRICED like a free market?

Are you given the CHOICE you have in a free market?


What a joke.

[sumwatt]

what is....

big, round, about 18" in size and can be mounted to your house or semi-permanent fixture, pointed to the southern sky (for the US) and receives a lot of digital content and is available in places where cable is not?

Hint: Starts with an 'S' and ends with 'atellite'.

While you're presumption that cable is somehow a 'monopoly' is a bit short at best, there is some merit in the underlying argument. In the 80's, a lot of cable and phone companies did get special privileges in terms of running cables through public right-of-ways and easement rights. This is because they were not directly competing with each other and many municipalities did not want to see the a huge number of lines being dug through back yards for each independent provider to lay their network. But since the average satellite has been reduced in size from 8'-10' to 18", that really changed perspective. Now that cable companies are competing with phone companies on both the Internet and Phone markets, phone companies, and rightfully should, are calling for the end of these types of contracts so they can deliver TV over their newer networks.

You are right - cable companies fighting the entrance of telephone companies into the local marketplace is absurd and protectionist at the very least. The problem is that these companies have now expanded to the point where their markets are in direct competition so they are trying to shore up all of their defenses. This is really nothing more than a general stalling tactic because the market pressures have shifted enough that they want to slow the process down.

[Save_Me_from_my_Govt]

Unbundling

I have no particular sympathy for those who complain about the content coming into their homes; even less when it's about "protecting their kids." You don't like it? Use the parental controls or have the cable-company block it for you at their end.

However, I LOVE the idea of unbundling the programming. I'm so tired of paying the outrageous cable fees based on the fact that I'm forced to subsidize everyone else's need to have 24/7 sports programming. I would LOVE to be able to opt-out of all of the sports and shopping networks, and take only the news &#38; movie channels that *I* want.

[TravisOwens]

"protecting their kids" is a code word

for controlling the masses

[paulsecic]

Dish Network

has 60 channels for $29. 255 chanels cost $54.

[jamesmedina]

A La Carte Should Lead to Zero Savings

Why does anyone believe that per channel pricing would lead to savings. No one watches all the channels. It doesn't cost the cable company any extra to make more channels available to me. What do the care if I'm on one data stream or another. Either way commercials are sold on the basis of any channels viewership. I don't get reimbursed for not watching the lifetime network now, because it doesn't cost the cable company any extra to make it available to me.
Also, paying per channel would further entrench people in their particular interests. I didn't watch the discovery channel till Planet Earth came on, and I might not have signed up for it had I not been able to see it for free. Who wants to go to the extra hassle of signing up for another channel whenever they see a show that they might like. A la carte pricing would kill television as we know it and vastly decrease choice.
The best avenue for television in the future would be for us to be able to watch anything we want when we want with a commercials inserted into the programming aimed at each particular viewer, based on a ream of marketing data on you, the television viewer.

[ddesy]

Um... wrong.

Actually, it does cost more for the cable company to make more channels available. It has nothing to do with the bandwidth but rather payment for the content itself.

My cable company includes the Disney Channel, Toon Disney, etc... It has to pay to provide those. I don't watch them, so why should I have to put any money towards them?

[disco-legend-zeke]

minor correction, some channels DO cost the cable company

some channels charge the cable companies for access.

others are provided free.

some pay the cable company to put them in.

soon all that TV (as well as every other kind of content) will be on the Internet anyhow, and you won't need cable at all, unless you choose cable as your internet provider.

[jaco72]

Free Speech Problem...Not

It is ludicrous to consider the ala carte proposal as having any "free speech" element to it. People and businesses still have the right to "say" what ever they want. The public now has the ability to more finely control what they listen to...

[TravisOwens]

A Le Carte = no more censorship?

Technically, if all of the US pays per channel, wouldn't that technically mean that the channel is now "pay per view" (by the month) and therefore the FCC can no longer censor the content?

Yes I'm being a little hopeful and a satirists, but it's worthy of a discussion.

[RustedView]

FCC Regulation

Currently decency standards apply only to over the air broadcasts. That is why during the night you will often see channels such as comedy central playing uncensored video. It has been self-censorship on the part of cable channels to avoid possible regulation.

[phuocle]

Zero savings for who?

Certainly it's not zero savings for the consumers. Maybe the cable operators won't realize any savings but I could give a rat's ass about them.

You appear to be a tool for the cable companies, knowingly or not. Your argument re: your experience with the Discovery Channel does not hold in regards to the issue at hand.

The future of television is DVR with commercial skipping abilities. The television programmers will have to find alternatives to their entrenched ways.

A la carte cable is GOOD for consumers. Local monopolies by cable companies are not.

[bob donut]

It's not a first amendment issue

Regulating an industry or protecting consumers is not a free speech issue.

Let's state the obvious: This guy is a lobbyist who's mad because if the cable companies give viewers choice over their channel selection, the sorry channels won't be carried by the other more popular channels, and cable broadcasters will have to scramble harder to make it.

Guess what? even if they succeed in killing the bill, the market is moving that way anyway, as online video direct from the internet is starting to take root.

[Stan_Timek]

Video delivery options

This story has generated a ton of activity that has been extremely interesting to read.

I too would like to have the option of a-la cart programming and we may get it - but from the Internet rather than the cable industry.

With devices like the Apple TV we can download and/or stream video programming directly to our television sets and watch exactly what we want, when we want it.

The cable industry is facing the future just like the recording (music) industry. It will be interesting to see if they answer the challenge correctly.


Stan Timek
www.pollywogtheater.com
www.HD4AppleTV.com

[MikeeeC]

A true First Amendment issue

Actually, it is a First Amendment issue, but the author clearly does not understand the situation. He uses examples of individuals being able to pay for specific sections of The Washington Post or Time, but these are specious analogies. A better analogy would be someone purchasing The Washington Post, and being forced to pay for The Washington Times as well. With the current cable situation, if I want the History Channel and the Weather Channel, I am forced to subsidize the offensive drivel on MTV, as well as a dozen stations in four different languages. At the same time, the Learning Channel is deprived of their First Amendment rights, because they cannot deliver their content to people who want it without those people also paying for Spike and Cartoon Network. Fox News is deprived of their rights, because their viewers have no choice but to pay for CNN as well.

In the (admittedly questionable) decision regarding Microsoft, the courts determined that bundling additional, and potentially undesirable, products and services as a condition of buying a product was illegal, and yet cable operators do this on a daily basis. Offering a la carte cable programming should not be an issue; both the legal precedent and the Constitutional mandate exist to make it so. As far as less popular cable channels going off the air ? too bad. If the channel does not generate sufficient interest to create a workable fiscal model, then either they need to change their programming, or they should not exist to begin with.

[Fritzr_gc]

The article has the problem backwards

I agree with Mike here. Saying "I do not want to read 'x'" is not an infringement of the First Amendment. However making it a requirement that the reader buy the right to read 'x' before they are allowed to read 'y' could trigger a First Amendment question.

Ala carte programming allows viewers to censor based on their personal private standards. With this choice available there will no longer be any need for government censorship. Either a channel has paying viewers or else someone is paying a lot of money to produce content that no-one wishes to watch.

A Christian family can select all the channels that do not offend their beliefs, a Moslem family can do the same...I can almost guarantee that the selection will be different for these two families and both will disagree with a non-religious viewer's selection.

Forcing a Moslem to subscribe to Christian Church programming or Christians to subscribe to Moslem channels and both needing MTV to get the channels they will actually allow their kids to view unattended is a true violation of rights.

Oddly enough the industry proposed solution is the V-Chip and similar setbased censorship, that allows parents to prevent selected programs &#38; channels from being viewed on a V-Chip enabled set. Of course when the kids hook up a non V-Chip monitor, the advantage of ala carte immediately become obvious to the scandalized parents :)

As for the author's Washington Post etc. examples. If I had the option of paying reduced rates &#38; eliminating sections I had no use for, I'd gladly pay the reduced rates for content I DO want to see :D

[NoVista]

Free market?

I don't know the current state of the American market. What I do know is: the government in Australia in its wisdom had a 25 year moratorium on cable (a.k.a. protect the commercial "free to air" networks) 'so we could get it right.' Yeah.

Back in 1970, when I was briefly in U.K., I saw their approach to commercial television, ITV. Which worked then, and maybe still does, on the basis of 'sure, you can have commercials but do not interrupt program content.

In 1972, I left the states again, but heard my uncle expound on the advantage of cable TV, his basic package was $11/month "and no comemrcials". And wasn't this the original idea of cable (or now satellite) to begin with?

But now, no ... and here in country Queensland, what competitive market? Sure, no one forced me to opt in to the one provider. But this old geezer here with no children nor grandchildren has little use for 3 or 4 kids channels, eh?

Last December, a great hurrah for the new SciFi channel ("seven years in the making" -- glad they weren't running World War 2, we'd still be fighting it). A few weeks of free sample, then sign up for this channel if you want to continue.

Website. Click. One channel? Oh no, they add that singular channel to another existing package I did not have anyway. This cynic reckons they cherry-picked the least opted extra package. So now I have another hanlf a dozen channels I won't watch. Some choice.

As for programming, they're working on the American commercial system -- and yes, we do get a number of commercials. And if slots are not sold, they are filled with generic promos for various programs. When you've seen the 500th repetition of a Thunderbirds promo (in a R-rated time slot?!) it gets tiresome.

Then there's the premium packages, like Showtime, which I will not opt for. "Late release movies." Sure. Sometimes. Other times, looking at the free TV guide you have to pay for ... there could be some 30-year-old turkey that was on another channel last week. 'The technology needs to be cheaper' someone said. What a laugh, or crodile tears to the monopolists.

Were the infrastructure costs to go down by half -- or an order of magnitude -- the subscriber would see no savings. Technology isn't the problem -- the business model is.

Maybe the answer should be: cost-per-hour viewing and access to most channels. I'm generous, let them have their super-premium pay-per-view options.

Already the SciFi channel has arbitrarily dropped some of the premiere programs and into repeat re-runs of various shows from the past four months.

More and more, it looks like I get better value from DVDs bought online. And if I am thinking who needs satellite, there must be many more. Maybe if enough money walks, they might change their game plan. We'll see.

[b8375629]

Garbage

The only mandate here is that government forces cable complanies to *offer* a-la-carte as an OPTION. Nobody HAS to take advantage of it if they don't want to. Everybody can go on same as before.

I personally, am tired of paying for channels I don't watch, or foreign language channels I could care less about.

Free speech for cable companies, my ass...

[Catmoves]

Agreed

I too, am fed up with having to pay outrageous charges and get channels I will never, ever watch. Why should I pay for "networks" and/or channels I do not use?
Don't talk about infringing on cable suppliers rights. They are infringing on all our rights. There are far more people paying through the nose for crap than there are cable companies charging horrendous prices for junk that is of no interest to the vast majority of viewers

[disco-legend-zeke]

what "competetive marketplace?"

in every city i know of, the cable television marketplace has exactly ONE entrant.

these companies are not only ripping off their customers, at least one of them (COX) is also stealing from their stockholders in order to enrich management.

public channels? thats a laugh! here in las vegas no one at COX even knows what you are talking about should you be willing to risk asking.

[rrmunson]

Choice

Hello,
I'm all for being able to choose what comes into my home. I'm tired of having sexually explicit camera shots, homosexual lifestyles shoved down my throat only to desensitize the issue. Perversion is perversion. If it's not the junkie shows, then it's the commercials. I want to be able to just watch disney or the family station. PS...I currently have network tv.

[zclayton2]

paper analogy

The cable companies already allowus to "buy the paper" without the news section. Its called the - basic, premium, sports, family, specialty dujour - pack instead of section but its the same as getting local, national, lifestyle, sports, business sections of the paper as you wish.

So your analogy breaks down and is kind of pointless don't you think?

[raypaul6]

If this proposal ever becomes a requirement by law, what happens if the amount of information that is available to the public actually increases?

If that turns out to be the case, then there has been no restriction on free speech by the imposition of this regulation. Of course, in this article, the opposite affect is claimed.

Either way, to base an argument in court in opposition or in support of a law / regulation of this nature would require a prediction of the future that neither the plaintive or defendant is capable of doing with any guarantee of success.

If this law / regulation is enacted however, I'm sure that the defendant will attempt a defense that is based upon Article One of the Constitution. That's because most of us (including our lawyers) have become unable to understand and act upon good legal principles.

Once again, Article Four will be ignored, and everyone's right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures will have been violated.

What is being seized here is the right of an owner to dispose of his property in a moral and lawful way.

For instance, if I want to sell my car, there is nothing wrong with that. Furthermore, there is no good principle of law that should allow any government to force me into breaking my car down into it's component parts because it is also forcing me to sell it in parts.

The same would hold for a house. If the above cable company regulation is enforced and then supported in court, then some government bureaucrat has the right (by precedent) to prevent the sale of whole houses, unless the potential buyers are also given the option to buy only those parts of the house that they like.

Naturally, there is nothing wrong with selling property in parts, but once again, there is no good principle of law that should allow our government to make this property division a requirement before any sale.

When we give up the right to dispose of our property in any way that both parties of the transaction agree upon, we are losing our freedom to act on our own behalf with others who wish to do the same.

The fact that some transactions can be less equitable than others does not change our right to act in this manner. The simple fact of the matter is that most transactions are win-win situations.

If this government law / regulation is put in place and enforced we are looking at the equivalent to a lose-lose transaction. We lose rights that sustain our vibrant economic health, and the government gains nothing but the expense of enforcing an immoral and unnecessary law / regulation that hurts everyone.