Cable Lawyer: A la Carte Would Face Court Buzz Saw

New Orleans -- Comcast Corp.'s top lawyer said a la carte legislation will be tough for Congress to pass because many lawmakers know the courts would probably strike it down under the First Amendment.

"Lawmakers who have talked about and offered to introduce legislation acknowledge that there are serious constitutional infirmities in going this route," said Terry Bienstock, executive vice president and general counsel of Comcast Cable Communications Inc.

"So, ultimately, I don't think it will get done, but we're taking it seriously … and doing what we can to make sure it doesn't get any legs," he added.

Bienstock addressed the a la carte issue Sunday during a National Show panel here moderated by Daniel Brenner, senior VP of law and regulatory policy at the National Cable & Telecommunications Association.

The a la carte issue flared on Capitol Hill last week when Rep. Nathan Deal (R-Ga.) floated an amendment that would require networks to allow all pay TV distributors to sell channels a la carte. However, the proposal would not require cable to sell the channels a la carte.

Charter Communications Inc. executive VP and general counsel Curtis Shaw said his company has been focusing on the a la carte issue. He added that such a mandate would impose a lot of hidden costs, such as development of a "specialty billing" system.

A la carte, he said, would cost networks ad revenue, which would be made up through higher retail rates, “which is obviously exactly the opposite of what people who are proposing a la carte want."

Bienstock said niche networks would suffer the most because they would not survive outside of expanded basic.

"The bottom line is that by giving people more choice, you're going to eliminate most of the choice. Only the ESPNs of the world will survive," he said.