On Wednesday, the First Circuit issued an opinion affirming the District of Maine’s decision to grant a preliminary injunction to cable providers on First Amendment grounds against Maine regarding its à la carte cable law, ruling that cable providers should not be required to allow consumers to pick individual channels.
In 2019 Maine enacted a law (H.P. 606 – L.D. 832), entitled, “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, instead of bundled in a channel or package of channels; thus, imposing an à la carte requirement for cable providers. Previously, the District of Maine granted Comcast’s preliminary injunction against the law, finding that the law was not preempted by federal law and violated Comcast’s and other cable providers’ First Amendment rights. In February 2020, Maine appealed the district court’s preliminary injunction. In June, WarnerMedia filed an amicus curiae in the First Circuit lawsuit.
The First Circuit noted that the district court found all four factors to grant a preliminary injunction weighed in favor of granting the plaintiffs’ request. However, on appeal, Maine took issue “with the district court’s conclusion that the plaintiffs were likely to succeed on the merits of their First Amendment claim.” Instead, the state argued that the First Amendment “is not implicated at all”; therefore, “the standard of review is mere rational basis and not some heightened standard of review.”
Subsequently, the First Circuit stated that the question is “whether Chapter 308 likely implicates the First Amendment rights of cable operators or programmers.” In particular, the First Circuit asserts that it “will uphold a decision to grant a preliminary injunction unless it constitutes an abuse of discretion.”
The appellate panel noted that “In Turner Broadcasting System, Inc. v. FCC (“Turner I”), the Supreme Court explained the applicability of the First Amendment to the commercial medium of cable television: ‘Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.’ In Turner I and II, at issue was the “must – carry” provision, according to the appellate panel. The First Circuit added that “building on Turner I and II, the cable companies identify two ways in which Chapter 308 allegedly burdens their First Amendment rights… (namely that it) ‘singles out’ cable operators’ speech for special, disfavored treatment… (and) it infringes on cable operators’ and programmers’ ‘editorial discretion.’”
Pursuant to the Turner cases and unconvinced of Maine’s arguments, the First Circuit found that heightened scrutiny applies. Specifically, the court noted that “the First Amendment is triggered by Chapter 308’s targeting of cable companies aligns with the views of other circuits that have similarly applied Turner I’s ‘singling out’ rationale to cable- or satellite- specific regulations based solely on the laws’ narrow focus.” The appellate panel reiterated that it will not depart from the Supreme Court’s statements in the Turner cases relating to “singling out” requiring heightened scrutiny.
Specifically, the First Circuit claimed that “Chapter 308 expressly treats cable operators differently from some of their direct competitors (like satellite-based Dish TV and DirectTV). Cable operators alone must adopt an á la carte system, while their competitors remain free to offer content in traditional tiers and packages. That unique treatment amounts to singling out under Turner I and triggers heightened scrutiny under the First Amendment.” The appellate panel noted “we leave open the question of whether Chapter 308 would trigger ‘singling out’ concerns if it applied across the board to all pay TV systems, including satellite- and internet- based ones.”
The First Circuit concluded that the District of Maine “correctly determined that Chapter 308 triggers heightened First Amendment scrutiny because it ‘singles out’ cable operators.’” As a result, the appellate panel also agreed that the district court was correct in granting the preliminary injunction, which delayed enforcement of Maine’s cable law. The First Circuit noted that that the lower court should decide the level of constitutional scrutiny and that the parties and court are free to visit the issue of preemption.
Maine is represented by the Office of the Maine Attorney General. The cable companies are represented by Latham & Watkins.