Would A La Carte Fly in Court?

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A la carte legislation might pass the Congress, but could it get past the courts?

Assuming the cable industry suffered a major defeat on Capitol Hill, the courts would undoubtedly decide whether a mandate that cable operators sell networks on an a la carte basis was consistent with First Amendment free-speech protections.

Many cable lawyers are adamant that a la carte mandates would not be sustained because the courts would recognize that Congress had intruded upon cable’s editorial discretion in deciding how to acquire and market programming services.

But others are quick to point out that a decade ago, Congress set the retail price of cable programming, placed limits on system ownership and ordered carriage of local TV stations.

The courts sustained all of those actions, contained in the 1992 Cable Act.

“It is not hard to devise an a la carte system which will withstand any possible First Amendment challenge,” said Andrew Jay Schwartzman, president of the Media Access Project, a public-interest law firm.

What precisely the courts would have to decide is speculative without knowing the details of the final legislation.

PLANS FLOATED

A few a la carte proposals have surfaced in Congress.

Senate Commerce Committee chairman John McCain (R-Ariz.) has one idea: Make cable operators offer every channel a la carte while not prohibiting cable from continuing to offer competing tiers.

Rep. Nathan Deal (R-Ga.) has another approach, which he has dubbed voluntary a la carte.

Deal would bar cable program suppliers from demanding tier placement for their channels. But he would not require cable companies to retail the channels a la carte.

A related proposal, favored by the Parents Television Council and Federal Communications Commission member Kevin Martin, would call on cable to sequester “family friendly” programming on a separate tier, in order to ensure some division between Dora the Explorer and Celebrities Uncensored.

A la carte proponents argue that breaking up cable tiers would give consumers greater choice, lower their bills, and exclude indecent programming without having first to pay for it.

COSTS AND CONTENT

On behalf of cable programmers and large operators, the National Cable & Telecommunications Association addressed a la carte in a May policy paper.

It stated that none of the claims about choice and lower bills was true.

The NCTA paper, relying in part on General Accounting Office findings in an October 2003 study, said consumers in an a la carte system would end up paying more for less and new networks would find it next to impossible to succeed in the marketplace.

Both McCain and Deal have pulled back, as both have asked the FCC to thoroughly analyze the a la carte issue.

The agency is required to file a report with the House Energy and Commerce Committee by Nov. 18.

One mission given the FCC is to examine forced a la carte in light of the First Amendment.

Most lawyers agree that a la carte would have a harder time in court if it was viewed as a content-based law designed to punish ideas and opinions.

“If the justification is content-based, it places higher burdens on the government to justify the regulation. That doesn’t necessarily mean the law would be unconstitutional,” said Rodney Smolla, a First Amendment scholar and dean of the University of Richmond School of Law.

Because he was unfamiliar with the details of the a la carte issue, Smolla declined to speculate about a First Amendment challenge to an a la carte law.

Proponents of a la carte have uniformly associated it with content-based purposes: Giving parents greater control over the flow of indecency programming coming into their homes.

WITHSTANDING SCRUTINY

As Smolla indicated, an a la carte law could withstand tough scrutiny. But the federal government would have to demonstrate the law served an important governmental interest unrelated to the suppression of free speech and wasn’t anymore burdensome than necessary.

A cable attorney, who asked not to be identified, noted that courts would also demand that an a la carte law alleviate a posited harm — for example, rising cable rates — in a direct and material way.

The attorney noted that McCain himself has said he wasn’t sure whether a la carte would actually lower cable bills.

McCain has said he favors a la carte because it provides choice and if consumers don’t see any value in that selection and they continue to buy programming in large tiers, so be it.

“I think that you really can’t demonstrate that the government can prove that [a la carte is] going to serve its interests,” the cable attorney said. “You don’t know whether that’s going to solve people’s rate problems or you don’t know whether it’s going to devastate the industry.”

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