Proposed Settlement Reached in Maine Cable Law Case

On Friday, Comcast and various channel providers, as well as the Governor of Maine, the Attorney General of Maine and several Maine cities and towns, moved for an entry of stipulated final judgment and order for declaratory and permanent injunctive relief in the District of Maine in the lawsuit spurring from Maine’s à la carte cable law.

Specifically, the plaintiffs moved for the court to approve and enter the proposed Stipulated Final Judgment and Order, which will provide declaratory and permanent injunctive relief in a proposed settlement between the parties.

Previously, in 2019 Maine enacted “An Act to Expand Options for Consumers of Cable Television in Purchasing Individual Channels and Programs,” which created an à la carte cable requirement by mandating that cable companies allow consumers to pick cable channels or programs individually instead of bundled in a package of channels. In their complaint, the plaintiffs alleged that the law is: “(1) preempted by the Communications Act of 1934 (the ‘Communications Act’), as amended, and (2) violates the First Amendment to the U.S. Constitution” and requested declaratory and injunctive relief. The District of Maine previously granted Comcast’s preliminary injunction against the law, stating that the law was not preempted by federal law, but violated the plaintiffs’ First Amendment rights. Maine appealed the decision in February 2020 and in June 2020 WarnerMedia filed an amicus curiae with the First Circuit. In February 2021, the First Circuit affirmed the district court’s decision to grant a preliminary injunction to cable providers on First Amendment grounds against the à la carte cable law.

In particular, 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 found that the lower court was correct in granting the preliminary injunction, thus delaying the enforcement of Maine’s cable law. However, the First Circuit noted that the lower court should decide the level of constitutional scrutiny and the parties and district court can visit the issue of preemption.

According to the proposed stipulated order, the defendants neither admit nor deny the allegations, except as stated in the order. The proposed order stated that “(i)n light of the Parties’ agreement … (the) Plaintiffs agree to the dismissal without prejudice of their claim that Chapter 308 is preempted by federal law (Count I).” Thus, the parties seek for Count I – the preemption claim – to be dismissed without prejudice. Additionally, for declaratory judgment, the parties seek for the court to order that Chapter 308 violates the First Amendment, thus granting declaratory judgment for Count II in the plaintiffs’ favor. Accordingly, the defendants are “permanently enjoined from enforcing or giving effect to Chapter 308.” The plaintiffs and defendants also waive their right to appeal or challenge the validity of this order and they will bear their own costs and attorneys’ fees.

The plaintiffs are represented by Rudman Winchell; Latham & Watkins LLP; and some of the plaintiffs by Willkie Farr & Gallagher LLP. The Maine defendants are represented by its Office of Attorney General.