Comments by Robert Peters, President of Morality in Media
From a Constitutional perspective, it would appear that Congress could require cable operators to offer cable TV channels on an a la carte basis. I say this for several reasons.
First, a law requiring cable operators to provide channels on an a la carte basis would apply to all channels, irrespective of content; and, generally speaking, government’s power to regulate speech is greater when the regulation is content neutral.
Second, a law requiring cable operators to provide channels on an a la carte basis would not prevent operators from offering a package of channels for a reduced fee. Subscribers who didn’t want the entire package, however, could subscribe to individual channels for a reasonable price.
Third, if Congress can empower the FCC to ensure that rates for the basic service tier are reasonable, it should also be able to empower the FCC to ensure that fees for individual channels chosen on an a la carte basis are reasonable.
Fourth, if Congress can prevent motion picture film studios from saying to theaters, “If you want to exhibit Lord of the Rings andHarry Potter, you must also exhibit Natural Born Killers and Lolita,” Congress should also be able to prevent cable operators from saying to subscribers, “If you want EWTN and the Family Channel, you must also take Comedy Central and MTV.”
Fifth, if Congress can require cable operators to provide channels for commercial use by content providers unaffiliated with the operators (47 U.S.C. 532) and for public, educational and governmental use (47 U.S.C. 531), Congress should also be able to require operators to provide channels on an a la carte basis.