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.