Wow, I am really blown away by CancelCable.com. Earlier today, I mentioned how I discovered it thanks to Mike Musgrove’s Washington Post story about how more and more people are canceling their cable and satellite subscriptions altogether and using alternative video platforms — Hulu, iTunes, Netflix, XBox, etc. — to watch their favorite shows. Anyway, if you go to CancelCable.com’s “Show Finder” site, you will find a complete inventory of all the major television programs you can find online right now. Go to the site to see the complete list, but down below I cut just the first 15 shows listed to give you a feel for how it works. And that list just continues to grow and grow in both directions — in terms of the number of shows and the number of platforms where you can get them.

OK, so why again do we need to mandate a la carte regulation for cable and satellite?

I’m pleased to announce the publication of A Manifesto for Media Freedom, which I co-authored with Brian C. Anderson of the Manhattan Institute. Brian serves as editor of Manhattan Institute’s excellent City Journal and he is the author of best-selling books like South Park Conservatives and Democratic Capitalism and Its Discontents.

In this little manifesto, we highlight one of the central ironies of the Information Age.  Namely, that despite “the breathtaking abundance of new and old media outlets for obtaining news, information, and entertainment…”

many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn’t represent true diversity, or isn’t fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so… would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.

In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the “Fairness Doctrine”, media ownership regulations, “localism” requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.

In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the “media freedom” that we advocate as the alternative to these new regulatory crusades? Here’s how we put it in the book:

For media consumers, it’s the freedom to consume whatever information or entertainment we want from whatever sources we choose, without government restricting our choices. For media creators and distributors, it’s the freedom to structure their business affairs as they wish in seeking to offer the public an expanding array of media options, for both news and entertainment. And for both consumers and creators,media freedom is being able to speak one’s mind without restraint and without the threat of FCC or FEC bureaucrats telling us what is “fair.”

It doesn’t seem like much to ask until you realize how many people in Washington and academia today are calling for these various flavors of media regulation.  Of course, it doesn’t help that media-bashing has always been a bipartisan sport.  Indeed, depsite the fact that most of these efforts are lead by the Left, our book highlights how some folks on the Right are still guilty of joining some of these misguided regulatory crusades.

Republican presidential candidate John McCain, for example, has sponsored “a la carte” mandates for cable and satellite operators and sponsored the draconian campaign finance law that will forever bear his name, McCain-Feingold. He has also proposed a follow-up law: McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections — without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

Others on the Right have favored the Fairness Doctrine in the past, and more recently, some have joined the Net neutrality effort. And many conservatives have long been in favor of various forms of media censorship.

That being said, the most serious threats to media freedom today arise from the Left and our book serves primarily as a response to the many Leftist efforts to regulate media today. As we argue in the introduction:

The left seems certain that a media problem ails our society; it just can’t decide what that problem is. Some contend that real media choices are as limited or biased as ever, while others argue that our democracy is imperiled by too many media choices, making it hard to share common thoughts or feelings. What unites these two types of critics is their elitist presumption that they know what’s best for the rest of us. They would love to rewrite regulations to tilt the media in the direction they prefer; and if they are allowed to do so, what is shaping up to be America’s Golden Age of media could come to a sudden end.

The Left’s obsession with reinstating the Fairness Doctrine is particularly telling in this regard. [You can read our history of the Fairness Doctrine here] But, as we go on to note:

Some liberals suggest that even a new Fairness Doctrine wouldn’t be enough to correct a “structural imbalance” in the media marketplace. They want tightened ownership regulations, mandates ensuring “greater local accountability” over radio and TV broadcasters, and a significant ramping up of subsidies for public radio and TV stations. One leading leftist proposal would even force private broadcasters to fund public broadcasters! These proposals expose the left’s true goal: to regulate private media outlets comprehensively and drive out those owners who dare to offer right-leaning alternatives.

This movement is being driven by a wide variety of Left-leaning think tanks and advocacy groups, especially Free Press, Media Access Project, and the New America Foundation. These organizations will likely have a strong voice in an Obama administration regarding media law and Internet policy issues. And we fear that means that new regulatory shackles will be placed on the media and free speech as a result. That’s why we penned this manifesto at this time. As we conclude in our book:

Motivated by the naked desire for political control, a reactionary fear of the new, or genuine if misguided views on equality and fairness in the media, [these liberal media activists] threaten to enact regulations that will strangle or at least cripple this social development before it can begin to reach its potential. Those on the right are not free from these impulses, either. But they, as the prime beneficiaries of media abundance — of all the conservative and libertarian talk shows and websites that would suffer in a media landscape remade by the Democratic Party and liberal activists — should embrace, defend, and expand the freedom that made it possible.

Anyway, if you care about free speech and media freedom, I do you hope you will consider giving the book a look. The main page for our book is here. And you can find it on Amazon here.

Jeff Eisenach, Chairman of Criterion Economics, and I have just released a new article about the perils of a la carte regulation in the Federalist Society’s journal Engage. In “A La Carte Regulation of Pay TV: Good Intentions vs. Good Economics,” we argue that: “From a policy perspective, a la carte regulation is worse than a solution in search of a problem; it is a problem waiting to happen.” We show that the pay TV marketplace is functioning quite efficiently and that consumers have more choices and content diversity at their disposal than ever. A la carte mandates, we argue, would destroy that diversity and likely put pressure on prices to go up, contrary to the goals of the backers of a la carte.

We also discuss how a la carte is being proposed a tool of social regulation / speech control, with backers labeling it a way of “cleaning up cable.” We explain why that is not going to work and why, even if it did, it would be a betrayal of the First Amendment.

This new article can be found online here.

Bruce Owen, America’s preeminent media economist–with apologies to Harold Vogel, who at least deserves an honorable mention–has written another splendid piece for Cato’s Regulation magazine, this one entitled, “The Temptation of Media Regulation.”

This latest essay deals primarily with the many fallacies surrounding so-called “a la carte” regulation of the video marketplace, and I encourage you to read it to see Owen’s powerful refutation of the twisted logic behind that regulatory crusade. But I wanted to highlight a different point that Bruce makes right up front in his essay because it is something I am always stressing in my work too.

In some of my past work on free speech and media marketplace regulation, I have argued that there is very little difference between Republicans and Democrats when it comes to these issues. They are birds of feather who often work closely together to regulate speech and media. Whether it is broadcast ‘indecency’ controls; proposals to extend those controls to cable & satellite TV; campaign finance laws; efforts to limit or rollback ownership regulations; or even must carry and a la carte, the story is always the same: It’s one big bipartisan regulatory love fest. [And the same goes for regulation of the Internet, social networking sites, and video games.]

Owen explains why that is the case:

Regarding mass media policy, the bookends of the political spectrum often find common ground. Left and right agree that mass media content is not satisfactory and that more or better federal regulation is the solution. The right seeks to reduce the availability, both to themselves and others, of objectionable media content that threatens family values. The left sees powerful “media barons” dominating an increasingly concentrated industry and distorting media content to serve their own corporate or political interests. Both perspectives find traction with the public, in part because mass media content is, by its nature, highly “available” to public awareness and often intended to trigger strong emotional responses. Also, while many people can be persuaded that the price of wheat is determined by supply and demand, it is much more difficult to think of television programs or movies in terms of market forces. Objectionable outcomes are easier to ascribe to conspiracy or malign intent when instinctive moral standards seem threatened. All this makes fertile ground for bloggers, radio talk shows, and opportunistic politicians. Rational regulatory policy often seems an impossible goal.

Indeed it does. In fact, because this bipartisan regulatory dynamic seems to now govern all media policy debates, I have become increasingly pessimistic about the chances of government ever voluntarily getting its tentacles off of speech and media markets. Rather, it will be (a) the courts that sometimes push back or impose the “rational regulatory policy” limits which Owen hopes for; or (b) the gradual erosion of the relevance of law by technological innovation, sectoral convergence, and the growing volume of activity to be regulated. [I made this point more eloquently in my unfinished book, “The End of Censorship: The Future of Content Controls in a World of Media Convergence.“]

As I mentioned yesterday, James Gattuso and I penned an editorial for National Review this week about the growth of FCC regulation and spending in recent years. In the op-ed, we also noted that, “For whatever reason, a disproportionate number of these [new regulatory proposals] have been aimed at cable television, so much so that press and industry analysts now speak of Chairman Martin’s ongoing ‘war on cable.'”

Today, the editors at National Review have chimed in with an editorial of their own on the issue entitled, “Pulling the Cable on Martin’s Crusade.” Specifically, the editors address what most pundits believe really motivates the Chairman’s crusade against cable: His desire to force cable companies to offer consumers channels on “a la carte” basis in an effort to “clean up” cable TV. “Martin should abandon this particular crusade,” the NR editors argue. “While we are sympathetic to parents’ desire to get the channels they want without having to buy access to racier fare, using economic regulation to restructure an industry is the wrong approach.” They continue:

For TV programmers, the practice of bundling channels together works well. Religious and minority-oriented channels can piggyback on the popularity of the sports and news channels. This is why the Faith and Family Broadcasting Coalition, a group of the nation’s leading religious broadcasters, opposes efforts to impose à la carte programming. Not enough consumers who currently subscribe to the basic-cable bundle would buy religious programming under an à la carte model. All channels thus benefit from the bundling model, which allows them to access households that might not otherwise be interested in their programming. For this reason, TV programmers have signed contracts with cable companies that prohibit à la carte sales. Forcing the cable companies to ignore these agreements would amount to a wholesale overwriting of private contractual arrangements. Supporters of à la carte have failed to demonstrate a need for such dirigisme. If consumer demand for à la carte options is sufficiently strong, there is no structural impediment to the market’s satisfaction of it. Some social conservatives argue that parents should be able to buy the Disney Channel without having to let MTV’s 24-hour sleaze-a-thon into their homes. But parents who wish to shield their children from immoral influences are not without options. They can monitor their children’s viewing, block channels, or forgo cable (or television) altogether. We realize that the existence of these options falls short of a comprehensive solution to the difficulties of raising children in a culture that sometimes seems hostile to the enterprise. But the answer is not a mandate that would trample private contract rights and drive religious programming off the air. Nevertheless, Kevin Martin has pressed forward in his attempts either to force the cable companies to adopt an à la carte model or to scare them into doing so. At Tuesday’s meeting he tried to use an arcane provision of federal communications law to declare the cable market uncompetitive and subject to more FCC regulation. This would arguably give the FCC power to impose à la carte pricing, though it would be challenged in court. But even without that authority, the FCC would still have more power to make the cable companies miserable until they acceded to Martin’s demands. Fortunately, a majority of his fellow commissioners saw things differently and scuttled the plan. But Martin has signaled that he intends to persist. He does not seem to grasp that the government cannot just pick and choose, à la carte, which private contracts it intends to honor.

This gets it exactly right, and it closely tracks the argument I set forth originally in my PFF paper, “Moral and Philosophical Aspects of the Debate over A La Carte Regulation.”

With the release last month of its report on Violent Television Programming and Its Impact on Children, the FCC teed up the issue of regulating televised violence and tossed it over to Congress with a recommendation that lawmakers go ahead and swing for the fences. And Congress appears ready to oblige, although not necessarily in the way some at the FCC had originally envisioned.

You will recall that FCC Chairman Kevin Martin used the FCC’s violence report as another opportunity to engage in his monomaniacal, Moby Dick-like quest to impose a la carte regulation on cable and satellite operators. Martin argued that “Requiring cable and satellite television providers to offer programming in a more a la carte manner would be a more content neutral means for Congress to regulate violent programming and therefore would raise fewer constitutional issues.” But it doesn’t appear that the chairman is going to get his whale this time around.

Ted Hearn of Multichannel News reported yesterday that the bill that Sen. Jay Rockefeller (D-WV) is ready to introduce in the Senate on this front will not include language imposing a la carte regulatory regime on cable and satellite operators. For reasons that remain unclear, Sen. Rockefeller is opposed to the concept.

But that doesn’t mean that cable and satellite operators are off the hook. Overall, the new bill is expected to look a lot like a similar measure that Rockefeller floated along with Sen. Kay Bailey Hutchison (R-Texas) in the last Congress. That bill, S. 616, the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” proposed a significant expansion of the FCC’s powers in terms of regulating both “indecent” and “violent” programming. So much so that when I wrote about the proposal in this 2005 PFF white paper, I concluded that it represented “the most significant congressional effort to regulate speech since the Communications Decency Act (CDA) of 1996.”

It appears that the new Senate measure will likely propose imposing a time-channeling mandate on cable and satellite operators similar to what broadcasters already face for indecent material. Under existing regulations, broadcasters have to channel such programming to the “safe harbor” hours of 10:00 p.m. and 6:00 a.m. Apparently, the new Senate bill will broaden that time-channeling mandate to include “excessively violent” programming and then extend the requirement to multichannel video distributors.

Ironically, Chairman Martin could actually be correct in assuming that a la carte regulation “would raise fewer constitutional issues” than the sort of time-channeling approach that Rockefeller and other Senators appear ready to endorse. Some scholars have noted that Congress and the FCC could try to sell the courts the notion that a la carte mandates represented pure economic regulation and, therefore, it would not raise serious constitutional / First Amendment scrutiny. That’s utter rubbish, of course, as Chairman Martin’s repeated comments about the issue have made clear. He and others argue that a la carte is the ideal regulatory instrument to “clean up” cable and satellite TV. So there are clearly some First Amendment issues at stake. (I wrote about all this in another white paper: “Moral and Philosophical Aspects of the Debate over A La Carte Regulation,”)

We may never know which argument the courts would accept about a la carte regulation if Congress doesn’t mandate it, and frankly I’m happy about that since a la carte represents one the most potentially destructive industrial policy schemes imaginable. While the courts were trying to determine its constitutionality, the wonderful diversity of programming on television could be decimated if the rules remained in effect while legal challenges were pending.

Regardless, with time channeling / safe harbor regs there’s just no way that Congress or the FCC can sell them to the courts as anything other than a direct effort to control content on television. Needless to say, proponents would have a huge constitutional challenge on their hands minutes after the bill was signed. I’d bet my house that the affected industries would seek an immediate injunction and get it. And then another long legal battle would ensue. If you want to see how that would play out, read this white paper I asked First Amendment expert Robert Corn-Revere to write for PFF two years ago: “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?”

Bob knows a thing or two about this issue since he successfully litigated the case of United States v. Playboy Entertainment Group (2000). In that case, the Supreme Court struck down a law that required cable companies to “fully scramble” video signals transmitted over their networks if those signals included any sexually explicit content. Echoing its earlier holding in Reno v. ACLU, the Court found that less restrictive means were available to parents looking to block those signals in the home. Specifically, the Court argued that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners—listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.

More importantly, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

This is an extraordinarily high bar the Supreme Court has set for policymakers wishing to regulate modern media content. Not only is it clear that the Court is increasingly unlikely to allow the extension of broadcast-era content regulations to new media outlets and technologies, but it appears certain that judges will apply much stricter constitutional scrutiny to all efforts to regulate speech and media providers in the future, including broadcasting.

In sum, regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves. That means that any legislative effort imposing time-channeling regulations on multichannel video providers is likely to be struck down as an unconstitutional violation of the First Amendment. Unfortunately, we’re probably going to be forced to endure a protracted, expensive, multi-year legal battle to get to that inevitable conclusion.

Meanwhile, back in the real world, our kids are watching video on the Internet, iPods, PlayStation Portables, DVD players, and cell phones. One wonders what Congress and the FCC think they are accomplishing when they propose “Leave It to Beaver”-era regulations like this.