Judge Nancy Torresen of the Maine District Court has granted plaintiffs Comcast, et al, an injunction in their case against Maine Governor Janet Mills, Attorney General Aaron Frey, as well as Maine cities and towns in relation to a Maine law (Comcast of Maine/New Hampshire, Inc. et al. v. Janet Mills, et al. 1:19-cv-00410-NT). Plaintiffs are represented by Willkie Farr & Gallagher, Latham & Watkins, and Rudman & Winchell.
Comcast is the leading plaintiff in a suit involving many cable companies against Maine law H.P. 606 – L.D. 832, “An Act to Expand Options for Consumers of Cable Television in Purchasing Individual Channels and Programs,” which requires cable companies to allow consumers to pick cable channels or programs individually for purchase. It was argued that the law was null and void for two reasons; “first, because it pre-empts federal communications law, and second, because it violates companies’ First Amendment rights.” Cable companies currently provide cable packages that bundle channels. The plaintiff’s injunction was denied in part and granted in part in response to the suit.
In the injunction ruling, the preemption argument was rejected. The court stated that “LD 832 is content-neutral. LD 832 requires cable operators to offer access to cable channels and programs individually. It does not require or prohibit cable operators from carrying any particular channel or program…The sponsor of LD 832 was focused on rising prices for cable services and on the fact that consumers were ‘forced to purchase cable TV packages which include dozens of channels the consumer has no interest in watching.’” Thus, the law “is similar to California’s anti-tying requirement.” The court concludes that “LD 832 does not prohibit cable operators from continuing to offer bundles in any combination they choose. It simply provides that, in addition to the bundles, there must be an à la carte option.”
Comcast argued that the law violated also their First Amendment rights. The court accepted and rejected parts of the argument. The court rejected the argument that a cable operator has a right to bundle and that bundling packages are “editorial discretion,” stating that while cable operators have a right to choose what channels or programs to offer or bundle, the way channels or programs are sold is not protected. The law does not prohibit bundling, rather it adds an à la carte option to how channels or programs are sold.
However, the court agreed that the new law “imposes a burden on cable operators but not other multichannel video programming distributors (“MVPDs”), such as satellite operators and online television streaming providers… But a law that singles out cable operators, though speaker-based, is not necessarily based on content.” Further, the court stated that the law applies to subscribers, thus a customer must first purchase the basic tier before being allowed to purchase à la carte. Thus, the court did find that the law violated the First Amendment rights of cable operators.
The court points out that that the state’s main argument is that the added option will help reduce cost, but it did not include anything in the law to prevent cable operators from charging the same price for a channel as a tier. Thus, it may not reduce costs for consumers. Comcast noted that, “it will take significant resources for Comcast to implement an à la carte ordering system and that implementation costs will be passed on to consumers.” Thus, it is not guaranteed that the change will benefit consumers.
