Washington — The Senate's most vocal critic of television mayhem is just a few weeks away from unveiling a new bill designed to cut back on the all the primetime stabbings and shootings seen each week by millions of children.
But the bill sponsored by Sen. John D. “Jay” Rockefeller (D-W.Va.) will be much more than a cold slap in the face of big media. It will also represent a body blow to Federal Communications Commission Kevin Martin, because the measure won't include language that would force cable companies to sell programming on a channel-by-channel basis.
“The senator is opposed to the a la carte concept,” Rockefeller press secretary Steven Broderick said.
For the past two years, Martin has been saying that mandating the a la carte sale of channels would not only allow consumers to lower their monthly cable bills, but also permit parents to avoid paying for cable networks they think are indecent, violent, or otherwise inappropriate for their children.
In fact, the FCC late in April released a short TV violence study for Congress that trumpeted an a la carte regime as a step Congress could take against unsavory programming. Martin insisted that the content-neutral character of mandating that channels be sold one at a time “would raise fewer constitutional issues” in court.
“The new legislation will have some of the recommendations of the FCC in it, but not all of the recommendations,” said Broderick. “It will not contain the a la carte recommendation that the FCC put out.”
Broderick, who couldn't explain the source of Rockefeller's a la carte opposition, pointed out that the lawmaker helped defeat an a la carte amendment last summer in the Senate Commerce Committee.
The amendment, sponsored by Sen. John McCain (R-Ariz.), called for easing cable-franchising requirements if providers offered channels a la carte. But that 20-2 vote was difficult to interpret, because many lawmakers may have thought it was more important to preserve the franchising status quo than to give a la carte a shot in the arm.
The new bill will closely track the one Rockefeller introduced in March 2005 (S. 616) with Sen. Kay Bailey Hutchison (R-Texas), Broderick said.
Convinced that blocking technologies such as the V-chip and cable set-top boxes fail to shield children from sexually suggestive and excessively violent content, the two lawmakers would put the FCC in position to require TV stations and cable operators to restrict such programming to late-night hours, most likely between 10 p.m. and 6 a.m.
These hours represent the so-called safe harbor period, when it's permissible for TV stations to air indecent content without fear of FCC punishment or fines. Because singer Janet Jackson's fleeting breast exposure during the 2004 Super Bowl halftime show occurred in early evening in most of the country, the FCC required CBS to pay $550,000 in fines.
Rockefeller's decision to broaden the safe harbor to include indecent and excessively violent programming on both broadcasting and cable was probably the more conservative approach from his perspective. Courts have upheld time-channeling, though only with respect to broadcast indecency.
Nevertheless, his bill is risky: Cable has never been regulated for indecency or violence.
Meanwhile, CBS is appealing the Jackson fine, and NBC and Fox are fighting other FCC indecency actions before a second federal court, in cases that could lead to the judicial demise of safe-harbor rules. At least one of the rulings could come in the middle of Rockefeller's effort to build majority support for his bill.
Rockefeller's new safe-harbor bill will likely provoke a fight with broadcasters and cable. Harvard Law School professor Laurence Tribe, a constitutional law expert, has been retained by the National Cable & Telecommunications Association, the National Association of Broadcasters, the Motion Picture Association of America, the four major broadcast networks, and several cable networks in their effort to defeat the Rockefeller bill.
Tim Winter, president of the Parents Television Council, a group that strongly backs Martin on a la carte, said he was disappointed that Rockefeller opposed a la carte mandates. But he said the fight is not over.
“We'll keep up our efforts to get more support on cable choice. Perhaps, it will be offered as an amendment at some point,” Winter said.
If a la carte pricing became law, the cable industry will sprint to court to debunk the notion that it's just run-of-the-mill economic regulation. Operators would stress that their long practice of offering dozens of channels in a package has editorial protections safeguarded by the First Amendment.
“Any attempt by government to dictate how cable operators must make their programming available to consumers would face significant First Amendment issues,” said Robert Corn-Revere, an attorney at Davis Wright Tremaine in Washington, D.C.
In 2000, Corn-Revere won a major Supreme Court case for cable when his client, Playboy Entertainment Group, got the court to overturn a 1996 federal law that attempted to apply the safe-harbor regime to pornographic cable channels that hadn't been fully scrambled by the cable system.
The National Religious Broadcasters, a PTC ally on the a la carte issue, won't support mandated unbundling of cable programming tiers unless local TV stations are exempt. That would mean cable subscribers would still have to buy the basic tier containing local broadcasters before they could buy other channels sold separately or in packages.
Corn-Revere said that an a la carte carve-out for local TV stations would further handicap legislation that came under judicial review.
“Those First Amendment problems would be magnified if any mandate included exemptions for specific types of programming,” he said.
Rockefeller's refusal to authorize the FCC to adopt a la carte rules might not preclude agency action in this area. Cable attorneys and policy analysts have noted that language in Rockefeller's bill in 2005 was quite broad, and, if left unchanged, could hand Martin the legal power to impose a la carte on cable.
In the old bill, Rockefeller proposed different regulatory structures for broadcasting and cable. With regard to broadcasting, the FCC was ordered to ban excessively violent content from 6 a.m. to 10 p.m. With regard to cable, the FCC was required to “adopt measures to protect children.” The bill was silent on the scope of that authority, except for saying that the FCC couldn't regulate premium channels such as HBO or pay-per-view fare.
For decades, federal courts have deferred to the FCC when the agency attempted to interpret vague instructions from Congress, provided the results weren't arbitrary and capricious. The phrase “adopt measures” in any new TV violence law could give Martin his opening to impose a la carte rules on cable.
Which means that Martin could get very active. “It is a very broad mandate. It's a completely open-ended mandate to let Kevin Martin, presumably, engage in his regulatory wish list,” said media analyst Adam Thierer, a senior fellow at the Progress & Freedom Foundation in Washington, D.C.