Local Choice Proposal for Partial Á La Carte Is Irreconcilable with the Ideals of Constitutional Government

I’m starting to get worried that the partial à la carte mandate in the decidedly Orwellian “Local Choice” proposal wasn’t merely an August reverie. The leaders of the Senate Commerce Committee, which floated the proposal to the press, have neither disavowed it nor introduced an alternative. Could the Committee actually be serious about a proposal that is so flatly irreconcilable with the ideals of constitutional government?

I hope not. The proposal is a blatant case of the government concealing an effort to pick winners and losers in the marketplace behind a masque of consumer protection. Its approach to problem solving goes like this:

  • Disputes between video programmers and video distributors sometimes result in blackouts that prevent consumers from watching certain channels.
  • The government should protect consumers from blackouts by mandating that programmers sell their channels on an à la carte basis.
  • Both cable and broadcast channels have been blacked out during disputes.
  • The Local Choice proposal would nevertheless apply the à la carte mandate only to broadcast channels.
  • Consumers would receive no protection from blackouts involving cable channels.

The proposal doesn’t explain why consumers don’t need to be protected from cable channel blackouts — like the one involving Dodgers baseball games in Los Angeles — because Senate Committees aren’t in the habit of admitting to industry favoritism.

In the first volume in his master work, Law, Legislation and Liberty, F.A. Hayek succinctly explained why the governing beliefs of our time have proven irreconcilable with the ideals of constitutionalism on which the United States was founded:

[1] the loss of the belief in a justice independent of personal interest; [2] a consequent use of legislation to authorize coercion, not merely to prevent unjust action but to achieve particular results for specific persons or groups; and [3] the fusion in the same representative assemblies of the task of articulating the rules of just conduct with that of directing government.

Hayek’s thesis was that the third irreconcilable belief, which has become the dominant model of liberal democratic institutions, “necessarily leads to a gradual transformation of the spontaneous order of a free society into a totalitarian system conducted in the service of some coalition of organized interests.”

All three of these irreconcilable beliefs are at work in the Local Choice proposal.

Loss of belief in justice independent of personal interest. When former FCC Chairman Kevin Martin proposed to apply an à la carte mandate to cable channels, the American Cable Association (ACA) opposed it, because its members reported that most consumers prefer a basic or expanded package of channels at a single price and the costs of implementing à la carte were a “financial impossibility” for its member cable systems. With respect to the implementation of à la carte pricing for broadcast channels, however, the ACA has flip-flopped its position. Today, ACA argues that most consumers would prefer to purchase such channels on an à la carte basis and supports the Local Choice proposal, presumably due to the benefits of lowering its members’ programming costs. ACA’s shifting stance indicates that it views à la carte as just only when it is implemented in a way that benefits the personal interests of ACA members.

Use of legislation to achieve particular results for specific groups. If blackouts are unjust, all blackouts should be prohibited. The Local Choice proposal instead prohibits blackouts of broadcast channels only. The result is a special favor for cable channels and pay-TV distributors.

Fusion of the task of articulating the rules of just conduct with that of directing government. Congressional legislation typically does not distinguish between what Hayek would call “law in the sense of rules of just conduct and law in the sense of the expression of the majority’s will on some particular matter” that involves competing interests. Without such a distinction, laws that are enacted democratically “will be about whose interests are to prevail over those of others” rather than “universally applicable rules of just conduct.” The Local Choice proposal to apply à la carte to channels distributed by broadcasters but not to channels distributed by cable programmers is a textbook example of the problem Hayek described.

If à la carte were a generally applicable rule of just conduct, the Local Choice proposal would apply it to all video programmers. The proposal doesn’t do that, because the proposal isn’t trying to do justice — it’s trying to pick winners and losers.

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