COMCAST OF MAINE/NEW HAMPSHIRE INC v. MILLS

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

COMCAST OF MAINE/NEW )

HAMPSHIRE, INC., et al. )

)

Plaintiffs, )

)

v. ) Docket No. 1:19-cv-410-NT

)

JANET MILLS, et al., )

)

Defendants. )

ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

This year, Maine enacted LD 832, which requires cable operators to allow cable

subscribers to purchase cable channels and programs individually. Maine is the first

state in the nation to enact such an à la carte mandate. Plaintiff Comcast of

Maine/New Hampshire (“Comcast”) currently bundles most of its channels,

requiring subscribers who wish to view specific programming to receive more

channels and programs than they may need or want. Comcast and a number of video

programmers (collectively, the “Plaintiffs”) claim LD 832 is facially unconstitutional

because it is preempted by federal law and because it violates the First Amendment.

Before me is the Plaintiffs’ motion for a preliminary injunction. For the reasons that

follow, I GRANT the Plaintiffs’ motion.

LEGAL STANDARD

In determining whether to grant a preliminary injunction, I must consider:

(i) the movant’s likelihood of success on the merits of its claims; (ii)

whether and to what extent the movant will suffer irreparable harm if

the injunction is withheld; (iii) the balance of hardships as between the

parties; and (iv) the effect, if any, that an injunction (or the withholding

of one) may have on the public interest.

Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013).

The Plaintiffs bear the burden of establishing that these factors weigh in their

favor. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).

“[T]he burdens at the preliminary injunction stage track the burdens at trial.” Reilly

v. City of Harrisburg, 858 F.3d 173, 180 (3d Cir. 2017), as amended (June 26, 2017)

(internal quotation marks omitted). In the context of a First Amendment claim, the

Plaintiffs have the burden to show that the state law infringes on their First

Amendment rights. Id. at 180 n.5 (citing Goodman v. Ill. Dep’t of Fin. & Prof’l

Regulation, 430 F.3d 432, 438 (7th Cir. 2005)). If the Plaintiffs make this showing,

then the State must justify its restriction on speech under the appropriate

constitutional standard. Id. (citing Thalheimer v. City of San Diego, 645 F.3d 1109,

1116 (9th Cir. 2011)).

DISCUSSION

I. Likelihood of Success

A party seeking a preliminary injunction must establish that it is likely to

succeed on the merits of its claims. The likelihood of success on the merits prong has

been described as the sine qua non of the four factors for establishing a preliminary

injunction. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.

2002) (“[I]f the moving party cannot demonstrate that he is likely to succeed in his

quest, the remaining factors become matters of idle curiosity.”)

The Plaintiffs argue that the à la carte mandate is preempted by the federal

Cable Act, 47 U.S.C. §§ 521 et seq.,1 and that the law violates their rights under the

First Amendment. I discuss each argument in turn.

A. Preemption

Article VI of the Constitution provides that the laws of the United States “shall

be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” U.S. Const. art VI, cl. 2. It has long been

recognized that “state law that conflicts with federal law is without effect.” Cipollone

v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation marks omitted). The

Supreme Court has made clear that:

because the States are independent sovereigns in our federal system, we

have long presumed that Congress does not cavalierly pre-empt state-

law causes of action. In all pre-emption cases . . . we “start with the

assumption that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and manifest

purpose of Congress.”

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)).

Congress may preempt state law either directly—through an express

preemption provision in a federal statute—or implicitly. Grant’s Dairy—Me., LLC v.

Comm’r of Me. Dep’t of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir. 2000). The

Plaintiffs maintain that the federal Cable Act does both.

1 Congress enacted the Cable Act in 1984. Cable Communications Policy Act of 1984, Pub. L. 98-

549, 98 Stat. 2779 (“1984 Cable Act”), codified at 47 U.S.C. §§ 521 et seq. Congress amended the law

in 1992, Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106

Stat. 1460 (“1992 Cable Act”), and in 1996, Telecommunications Act of 1996, Pub. L. 104-104, 110

Stat 56 (“1996 Cable Act”).

1. Express Preemption

“Congressional intent is the touchstone of any effort to map the boundaries of

an express preemption provision.” Tobin v. Fed. Express Corp., 775 F.3d 448, 452 (1st

Cir. 2014) (citations omitted). Because there exists a “presumption against the pre-

emption of state police power regulations,” the Supreme Court has instructed lower

courts to narrowly interpret express preemption provisions. Medtronic, 518 U.S. at

485 (quoting Cipollone, 505 U.S. at 518).

The Plaintiffs contend that provisions of the Cable Act—47 U.S.C. § 544(f) and

47 U.S.C. § 544(a) and (b)—expressly preempt LD 832. Accordingly, I consider

whether Congress intended to expressly preempt states from imposing à la carte

mandates on cable operators under those sections.

a. Section 544(f)

Section 544(f) prohibits states from imposing “requirements regarding the

provision or content of cable services,” unless expressly allowed by the Cable Act. 47

U.S.C. § 544(f)(1). The Plaintiffs argue that the à la carte mandate is a “requirement[]

regarding the provision or content of cable services,” preempted by the plain meaning

of § 544(f). Pls.’ Mot. for Preliminary Injunction (“Mot.”) 7 (ECF No. 14). The State

urges me to adopt a narrower definition of the term “provision” in § 544(f), relying on

the structure of the Cable Act, its legislative history, and cases that have interpreted

the provision. State’s Opp’n to Mot. (“Opp’n”) 6–13 (ECF No. 69).

i. Interpreting § 544(f)

(I). The Plain Meaning of § 544(f)

Section 544(f) provides:

[a]ny Federal agency, State, or franchising authority may not impose

requirements regarding the provision or content of cable services, except

as expressly provided in [the Cable Act].

47 U.S.C. § 544(f)(1). In enacting LD 832, the State has attempted to impose

requirements regarding how cable operators must provide programming. If § 544(f)

is considered in isolation, then by its plain meaning, LD 832 would be preempted.

The Supreme Court has recently explained the relevant rules of statutory

construction:

If the statutory language is plain, we must enforce it according to its

terms. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251

(2010). But oftentimes the “meaning—or ambiguity—of certain words or

phrases may only become evident when placed in context.” [FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).] So when

deciding whether the language is plain, we must read the words “in their

context and with a view to their place in the overall statutory scheme.”

Id. at 133 (internal quotation marks omitted). Our duty, after all, is “to

construe statutes, not isolated provisions.” Graham County Soil and

Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280,

290 (2010) (internal quotation marks omitted).

King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (parallel citations omitted).

(II). Section 544(f) in Context

“Interpretation of a word or phrase depends upon reading the whole statutory

text, considering the purpose and context of the statute, and consulting any

precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546

U.S. 481, 486 (2006). Taking into account the context of § 544(f), at least one other

section of the Cable Act suggests that Congress did not intend the phrase “provision

. . . of cable services” to be read broadly. Section 544(e), which was also enacted as

part of the 1984 Cable Act, provides that “[n]o State or franchising authority may

prohibit, condition, or restrict a cable system’s use of any type of subscriber

equipment or any transmission technology.” 47 U.S.C. § 544(e). A restriction on

transmission technology or subscriber equipment would fall within the plain meaning

of a “requirement[] regarding the provision . . . of cable services,” rendering § 544(e)

unnecessary if “provision” is read broadly. See McDonnell v. United States, 136 S. Ct.

2355, 2369 (2016) (rejecting interpretation that would render other parts of the

statute unnecessary).

Additionally, as the State points out, § 552(d) provides that the Cable Act

should not “be construed to prohibit any State or any franchising authority from

enacting or enforcing any consumer protection law, to the extent not specifically

preempted by this subchapter.” 47 U.S.C. § 552(d). If “provision” is interpreted

broadly, it would appear to specifically preempt the State from enacting any

consumer protection law involving the cable industry,2 since such laws would all be

“requirements regarding the provision . . . of cable services.” 47 U.S.C. § 544(f). If all

consumer protections laws were preempted by § 544(f), there would be no point to

having § 552(d).3 In sum, § 544(e) and § 552(d) strongly suggest that Congress did not

intend “provision” in 544(f) to have a broad meaning.

2 The State of Maine, for example, has a number of consumer protection laws that set forth

various requirements for cable operators. See, e.g., 30-A M.R.S. § 3010(1) (requiring cable operators to

provide “[c]redits and refunds for interruption of cable television service”); 30-A M.R.S. § 3010(6-A)

(prohibiting cable operators from “using any equipment . . . to monitor the viewing habits of the

subscriber without express, prior written consent of the subscriber”); 30-A M.R.S. § 3010(6-B) (“A cable

system operator may not charge a late fee . . . that exceeds 1.5% per month of the amount due in the

bill.”).

3 Plaintiffs attempt to limit the scope of § 552(d) by saying that it applies only to “improper

billing requirements or failure to disclose issues” and not to “programming-related measures.” Tr. Oral

Argument 9–10 (ECF No. 87). But by its terms, § 552(d) is not limited to laws involving customer

service protections.

(III). Legislative History

Plain meaning “ ‘sometimes must yield if its application would bring about

results that are antithetical to Congress’s discernible intent.’ ” United States v.

Gordon, 875 F.3d 26, 34 (1st Cir. 2017) (quoting In re Hill, 562 F.3d 29, 32 (1st Cir.

2009)). Because the term “provision or content of cable services,” considered in the

broader context of the Cable Act, is ambiguous, it is appropriate to look to the

legislative history to attempt to understand Congress’s intent. Miner v. Dep’t. of

Navy, 562 U.S. 562, 572 (2011) (“[C]lear evidence of congressional intent may

illuminate ambiguous text.”).

In the 1984 Cable Act, Congress sought to establish a national policy that

clarified the then-existing system of local, state, and federal regulation of cable

television. H.R. Rep. No. 98-934, reprinted in 1984 U.S. Code Cong. & Admin. News

(“House Report” or “H. Rep.”) 4655, 4656. Congress recognized the fundamental

importance of developing a “robust marketplace of ideas” containing a “wide variety

of perspectives from many different types of program providers.” Id. To accomplish

these goals, it required cable companies to make space for public access channels and

third-party commercial access. See 47 U.S.C. §§ 531–532.

The House Report shows that Congress was concerned about the First

Amendment rights of cable operators to control the content of their programming.

The House Report repeatedly emphasizes the need to ensure that government

officials not be able to “dictate the specific programming to be provided over a cable

system.” H. Rep. at 4663, 4695; see also id. at 4656, 4668–69, 4671, 4673–74, 4706,

4716 (discussing impact of Cable Act on various First Amendment interests). To that

end, Congress set limits on the regulatory powers of the Federal Communications

Commission (“FCC”), franchising authorities, and states. 47 U.S.C. § 544. It allowed

franchising authorities to set requirements for facilities and equipment but limited

their rights to “establish requirements for video programming or other information

services.” 47 U.S.C. § 544(b). Similarly, in § 544(f), it prohibited federal agencies,

states, and franchising authorities from imposing “requirements regarding the

provision or content of cable services.” 47 U.S.C. § 544(f). The legislative history

suggests that the Cable Act as a whole—and § 544(f) specifically—was concerned with

preventing government officials from controlling the content of cable programming.

(IV). Cases Interpreting § 544(f)

The cases that have addressed the meaning of § 544(f) have nearly

unanimously adopted a limited interpretation of the section. In 1989, the Court of

Appeals for the District of Columbia Circuit addressed a challenge by cable operators

to the FCC’s “syndicated exclusivity” or “syndex” rules. United Video, Inc. v. FCC, 890

F.2d 1173 (D.C. Cir. 1989). The rules permitted local broadcast stations to enforce

their exclusive licenses with syndicated television program providers against cable

operators that received the programs from an out-of-market signal and transmitted

the programs back into the local broadcast station’s market. Id. at 377. The D.C.

Circuit determined that the syndex rules did not run afoul of § 544(f), because that

provision only prohibited requirements that were content-based. Id. at 1189. In

reaching this conclusion, the D.C. Circuit considered the plain meaning of § 544(f) to

be ambiguous and looked to the legislative history. It wrote:

This historical context supports the Commission’s belief that when

Congress forbade “requirements regarding the provision or content of

cable services,” its concern was with rules requiring cable companies to

carry particular programming.

Id. at 1188. The examples provided in the House Report “suggest that the key is

whether a regulation is content-based or content-neutral.” Id. at 1189.

The House report suggests that Congress thought a cable company’s

owners, not government officials, should decide what sorts of

programming the company would provide. But it does not suggest a

concern with regulations of cable that are not based on the content of

cable programming, and do not require that particular programs or

types of programs be provided. Such regulations are not requirements

“regarding the provision or content” of cable services.

Syndex is clearly different from a requirement or prohibition of the

carriage of a particular program or channel. Although it will certainly

affect the content of cable programming, it is content-neutral. The basis

on which syndex forbids carriage of certain programs is not their

content, but ownership of the right to present them. Syndex itself does

not require carriage of any particular program or type of program, nor

does it prevent a cable company from acquiring the right to present, and

presenting, any program.

Id.

The Plaintiffs argue that United Video is distinguishable and urge me to reject

it. They contend that United Video involved the reasonableness of an agency’s action

and not a state preemption claim. It is true that the syndex rules were a requirement

imposed by the FCC and that the D.C. Circuit was required to uphold the rules unless

they were arbitrary or capricious. The Plaintiffs write: “Applying Chevron, and

relying almost exclusively on a single piece of legislative history, the court upheld as

reasonable the FCC’s determination that [47 U.S.C. 544(f)] was inapplicable.”4 Reply

4 The Plaintiffs criticize United Video for resting its conclusions on a single piece of legislative

history, but they offer no additional material from the legislative record that would suggest that the

4 (ECF No. 85). But the D.C. Circuit in United Video went beyond a holding that the

FCC’s interpretation was reasonable. Because the FCC had reached its conclusion

that § 544(f) did not prohibit syndex rules for a different reason than the court, the

D.C. Circuit was required to determine whether “the agency has come to a conclusion

to which it was bound to come as a matter of law, albeit for the wrong reason.” United

Video, 890 F.2d at 1190 (discussing SEC v. Chenery Corp., 318 U.S. 80 (1943)). Thus,

the D.C. Circuit held as a matter of law that the FCC was “bound to say that syndex

rules are sufficiently different from the sorts of rules with which Congress was

concerned that the statutory phrase ‘requirements regarding the provision or content

of cable services’ does not embrace them.” Id. at 1189 (emphasis added).

The Plaintiffs also claim that the D.C. Circuit, in dealing with the syndex rules,

did not “directly address the manner in which cable services are provided.” Reply 4.

Although the syndex rules involved the relationship between the supplier of a

syndicated program and a broadcast television station, the rules permitted broadcast

stations with exclusive rights to a syndicated program to “forbid any cable television

station from importing the program into its local broadcast area from a distant

station.” United Video, 890 F.2d at 1176. In other words, the rules had a very direct

legislative history is ambiguous or that the House Report is not indicative of Congress’s intent.

Further, Congress amended the Cable Act twice since United Video was decided—through the 1992

Cable Act and the 1996 Cable Act. Congress is presumed to act with awareness of a judicial

interpretation of a statute. Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217, 224 (4th Cir. 2014).

If Congress believed that the D.C. Circuit’s interpretation of § 544(f) was erroneous, it could have

amended the statute.

effect on the provision of cable programming, specifically prohibiting cable operators

from transmitting an exclusively syndicated program from a distant signal.

Subsequent cases have followed United Video. In Storer Cable

Communications v. City of Montgomery, a district court found that § 544(f) did not

preempt a municipal ordinance aimed at increasing competition in cable services

supply. 806 F. Supp. 1518, 1546 (M.D. Ala. 1992).5 The court agreed with United

Video’s conclusion that § 544(f) was concerned with content-based requirements.

Because the district court found that the Montgomery ordinance did not intrude into

the area of content, the court found that the ordinance did not run afoul of § 544(f).

Id.

In Morrison v. Viacom, Inc., the California Court of Appeal agreed with both

United Video and Storer that § 544(f) prohibits only content-based requirements. 52

Cal. App. 4th 1514 (1997), as modified on denial of reh’g (Mar. 21, 1997). In Morrison,

plaintiffs alleged that a cable operator illegally restrained trade “by making the

purchase of broadcast channels a prerequisite for the purchase of satellite cable

channels and by making the purchase of both broadcast channels and satellite cable

channels a prerequisite for the purchase of premium channels.” Id. at 1518. The state

law at issue in Morrison, the Cartwright Act, includes a provision that “expressly

prohibits illegal tying arrangements.” Id. at 1524 (citing Cal. Bus. & Prof. Code

§ 16727). “Tying arrangements” are defined by case law as “an agreement by a party

5 In relevant part, the Montgomery statute had the effect of preventing cable operators and

programmers from entering into various exclusive distribution agreements. See Storer Cable

Commc’ns v. City of Montgomery, Ala., 806 F. Supp. 1518, 1526–27, 1546 (M.D. Ala. 1992).

to sell one product but only on the condition that the buyer also purchases a different

(or tied) product.” Id. at 1524 (quoting Corwin v. L.A. Newspaper Serv. Bureau, Inc.,

4 Cal. 3d 842, 856 (1971)). The court held that § 544(f) did not preempt the Cartwright

Act because the state law did not regulate the content of cable services.6 Id. at 1532.

The authorities cited by the Plaintiffs do not convince me that I should reject

United Video or adopt a broader interpretation of § 544(f). In Cablevision Systems

Corp. v. Town of East Hampton, a local franchising authority claimed that a cable

operator violated the terms of its franchise agreement by eliminating a “tier” of

service that it had previously offered to consumers. 862 F. Supp. 875, 878–79

(E.D.N.Y. 1994). The court found that requiring a cable operator to provide a

particular tier of programming was preempted by § 544(a) and (b), which provides

that franchising authorities may only enforce “requirements contained within the

franchise . . . for broad categories of video programming.” § 544(b)(2)(B). The court

found that requiring a specific tier was not a requirement for a broad category of cable

services but rather an effort to regulate the particular programming offered by the

cable operator. East Hampton, 862 F. Supp. at 886. The East Hampton court never

addressed preemption under § 544(f). But even if it had, the franchising authority’s

requirement in East Hampton would likely have been considered content-based since

6 The California Court of Appeal found that the anti-tying provisions of the Cartwright Act were

partially preempted by 47 U.S.C. § 543(b)(7)(A), which provides “[e]ach cable operator of a cable system

shall provide its subscribers a separately available basic service tier to which subscription is required

for access to any other tier of service.” Morrison v. Viacom, Inc., 52 Cal. App. 4th 1514, 1520–22 (1997).

the franchising authority was attempting to dictate the provision of particular

programming.

Two other cases cited by the Plaintiffs also involved requirements regarding

the content—rather than the provision—of cable services. The district court in Time

Warner Cable of New York City v. City of New York, held that New York City’s effort

to place Fox News on one of its public access channels violated § 544(f). 943 F. Supp.

1357, 1391 (S.D.N.Y. 1996), aff’d, 118 F.3d 917 (2d Cir. 1997). The City attempted to

require Time Warner Cable to carry Fox News even though Time Warner Cable had

decided not to carry the channel. Id. The court found that the City’s action amounted

to a content-based regulation. Id. at 1400.

Likewise, in Lafortune v. City of Biddeford, the plaintiff challenged a

requirement that producers of programs shown on a public access station had to

obtain a written release from any person mentioned in a program who was not a

public official. No. 01-250-P-H, 2002 WL 823678, at *8 (D. Me. Apr. 30, 2002), report

and recommendation adopted, 222 F.R.D. 218 (D. Me. 2004), aff’d, 142 F. App’x 471

(1st Cir. 2005). The ordinance would have effectively shut down a local, live call-in

program.7 The court stated:

A franchising authority which endows [individuals mentioned on the

show] with such a veto power has “impose[d] requirements regarding

the . . . content of cable services” in violation of 47 U.S.C. § 544(f)(1). It

has also imposed an unconstitutional prior restraint on the plaintiff’s

7 Although, on its face, the release requirement appeared content-neutral, it was clear that

officials of the Town of Biddeford were hoping to suppress a particular program that had transmitted

views critical of certain elected officials. Lafortune v. City of Biddeford, No. 01-250-P-H, 2002 WL

823678, at *8 (D. Me. Apr. 30, 2002), report and recommendation adopted, 222 F.R.D. 218 (D. Me.

2004), aff’d, 142 F. App’x 471 (1st Cir. 2005). Against this factual backdrop, the ordinance was viewed

as an attempt to censor speech. Id.

freedom of speech, by giving private individuals the effective power of

censorship.

Id. at *8 (ellipsis in original). Biddeford’s ordinance ran afoul of § 544(f) because it

targeted the content of specific programming. See id.

The only case cited by the Plaintiffs that found a regulation to be preempted

as a “requirement[] regarding the provision . . . of cable services” is MediaOne Group,

Inc. v. County of Henrico, 97 F. Supp. 2d 712, 716 (E.D. Va. 2000). There, a county

ordinance conditioned approval of a merger between MediaOne and AT&T on a

requirement that MediaOne provide access to its cable modem platform, at favorable

rates, to any internet service provider that requested it. The MediaOne merger in

1999 was part of AT&T’s “major effort to establish a foothold in broadband markets

around the country” when internet access through cable modems was emerging as a

faster alternative than dial-up modems. See MediaOne Grp., Inc. v. Cty. of Henrico,

257 F.3d 356, 359 (4th Cir. 2001). MediaOne provided both traditional cable television

services and a cable modem platform through a company called “Road Runner.” Id.

The district court in MediaOne concluded that § 544(f) applied to the county

ordinance because the cable modem platform was a “cable service” under the Cable

Act. MediaOne, 97 F. Supp. 2d at 716.8 The district court struck down the ordinance

for various reasons, one of which was that it was preempted by § 544(f). The district

8 The Court of Appeals for the Fourth Circuit did not affirm the District Court on this basis,

noting that the proper regulatory classification of cable modem services was under review by the FCC.

MediaOne, 257 F.3d at 365. The FCC later reached the conclusion “that cable modem service . . . is an

interstate information service, not a cable service.” In Re Inquiry Concerning High-Speed Access to

Internet over Cable & Other Facilities, 17 FCC Rcd. 4798, 4819 (2002).

court determined that the ordinance was a requirement regarding the content of cable

services, but it went on to state, without analysis, that the ordinance was also a

requirement regarding the provision of cable services because MediaOne’s “‘provision’

of the MediaOne Road Runner cable service is what triggers the Ordinance’s forced

access requirements.” Id. This reading of “provision” would seem to prohibit any

regulation of cable services “providers” by the FCC, franchising authorities, and

states. As discussed above, this extremely broad interpretation is unsupported by the

Cable Act’s content, structure, and legislative history.

(V). Is “Provision” Superfluous?

The Plaintiffs argue that the word “provision” becomes superfluous if § 544(f)

is interpreted to prohibit only requirements regarding the content of cable services.

The Plaintiffs suggest that provision must at least cover “programming-related”

decisions of cable operators, and they argue that à la carte availability is a

“programming-related” decision. Tr. Oral Argument 8–9, 13, 17 (ECF No. 87). I agree

that “provision” could extend to programming-related decisions, but, given my

analysis of the Cable Act, I would extend § 544(f) to cover requirements regarding

programming-related decisions only if they had the effect of either prohibiting a cable

operator from providing particular programming or requiring a cable operator to

provide particular programming. The release requirement in Lafortune provides an

example. See 2002 WL 823678, at *8. On its face the requirement was content-

neutral, and the city justified it as a way to limit liability for any slanderous

statements made by talk show hosts. But as the court recognized, the release

requirement was more than that. It was actually a programming-related requirement

that targeted a particular talk show.

ii. Analysis

Having determined that § 544(f) prohibits government officials from imposing

content-based requirements or mandates that have the effect of restricting or

requiring particular content, I consider whether it preempts LD 832. The Plaintiffs

argue that LD 832 is content-based because it would affect video programming

content and because it singles out cable providers over other types of video

programming providers, such as satellite or on-line television. The State contends

that the à la carte mandate is a content-neutral requirement that cable operators

must offer access to cable channels and programs individually. I address each of these

arguments.

I agree with the State 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.

Nor does anything in the limited legislative history behind LD 832 suggest that the

Maine legislature was at all concerned with the content of particular programming.

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.” Testimony in support of LD 832

(ECF No. 69-1). In that respect, LD 832 is similar to California’s anti-tying

requirement upheld in Morrison. See 52 Cal. App. 4th at 1532. Neither LD 832 nor

the anti-tying provision dictates the content that cable operators or programmers

must carry. See id. Additionally, 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.

The Plaintiffs contend that the practical effect of LD 832 will be a reduction in

the content available to consumers, because cable programmers will prevent cable

operators from acquiring the right to present certain programming. At the outset, I

note that the D.C. Circuit rejected the argument that an effect on content necessarily

makes a provision content-based and subject to preemption under § 544(f). United

Video, 890 F.2d at 1189 (acknowledging that the syndex rules “will certainly affect

the content of cable programming” but are content-neutral and not preempted under

§ 544(f)). But, I can envision a content-neutral regulation, perhaps like the release

requirement in Lafortune, that has such a profound effect on the availability of video

programming that it would be preempted by § 544(f). See Lafortune, 2002 WL 823678,

at *8. The Plaintiffs have not presented evidence to allow me to conclude that the

impact of the à la carte mandate will have a major impact on content. They offer two

affidavits that suggest that current contracts may prevent them from offering

programming on an à la carte basis. See Declaration of Rick Rioboli (ECF No. 14-1);

Declaration of Peter Plaehn (ECF No. 14-2). But the Plaintiffs have not offered the

actual contracts into evidence, claiming that they are highly confidential.9 Because I

do not have the contracts in evidence, I cannot tell whether there are severability

9 The Plaintiffs did not attempt to obtain an order allowing these contracts to be admitted under

seal, as is allowed under Local Rule 7A.

clauses. Nor is there any evidence before me that establishes the procedures

regarding renegotiation of agreements that violate state law.

Moreover, there are two contradictory reports from the FCC on the topic of à

la carte mandates, and they reach different conclusions about the impact on content.

In their Complaint, the Plaintiffs cite the 2004 Report, which concluded that an à la

carte mandate would lead to the failure of many programming networks, thus

diminishing program diversity. FCC, REPORT ON THE PACKAGING AND SALE OF VIDEO

PROGRAMMING SERVICES TO THE PUBLIC (“2004 Report”) (Nov. 18, 2004) (available at

https://docs.fcc.gov/public/attachments/DOC-254432A1.pdf) (last visited Dec. 20,

2019). But a report released in 2006 criticized the 2004 Report, questioned the data

upon which it was based, and suggested that programming diversity would improve

under an à la carte scheme. FCC, FURTHER REPORT ON THE PACKAGING AND SALE OF

VIDEO PROGRAMMING SERVICES TO THE PUBLIC 4–5 (“Further Report”) (Feb. 9, 2006)

(available at https://docs.fcc.gov/public/attachments/DOC-263740A1.pdf) (last visited

Dec. 20, 2019).10

While the cable operators have established that they are not interested in the

à la carte model and compliance with it will be costly, they have not convinced me

that implementation of LD 832 will likely result in a reduction in content. A

speculative, indirect effect on content is an insufficient reason to conclude that LD

832 is preempted. See United Video, 890 F.2d at 1189; see also English v. Gen. Elec.

10 At oral argument, counsel for the Plaintiffs indicated that a United States House of

Representative investigation subsequently discredited the Further Report. Tr. Oral Argument 39.

Plaintiffs’ counsel offered to provide a cite but failed to do so.

Co., 496 U.S. 72, 90 (1990) (rejecting a “speculative . . . basis on which to rest a finding

of pre-emption,” because “pre-emption is ordinarily not to be implied absent an ‘actual

conflict’ ”).

Finally, the Plaintiffs contend that LD 832 imposes requirements regarding

the content of cable services because the law imposes a burden on cable operators but

not other multichannel video programming distributors (“MVPDs”), such as satellite

operators and online television streaming providers (e.g., SlingTV). But a law that

singles out cable operators, though speaker-based, is not necessarily based on

content. Turner Broad. Sys., Inc. v. FCC (“Turner I”), 512 U.S. 622, 658–59 (1994)

(finding no evidence that Congress preferred broadcasters over cable programmers

based on content of their programming and applying intermediate scrutiny). The

Plaintiffs have made no showing that LD 832 applies only to cable operators based

on the content of their programming. See id.

I recognize that LD 832 is a first-in-the-nation law that would significantly

change how cable operators do business in Maine. But just because the law is novel

does not mean it is preempted. See Whalen v. Roe, 429 U.S. 589, 597 n.20 (1977)

(“Denial of the right to experiment may be fraught with serious consequences to the

Nation. It is one of the happy incidents of the federal system that a single courageous

state may, if its citizens choose, serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the country.”) (quoting New State

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).

I must presume that the State acted within its authority when it enacted LD

832, unless it was the “clear and manifest purpose of Congress” in enacting § 544(f),

to prevent states from enacting such a provision. Medtronic, 518 U.S. at 485. Further,

I am required to interpret § 544(f) narrowly. Id. (presumption against the pre-

emption supports interpreting express preemption clause narrowly). I decline to

upset the consensus that has emerged among the courts that § 544(f) is appropriately

limited to content-based requirements. I conclude that § 544(f) was not intended to

prohibit states from enacting content-neutral laws designed to lower prices and allow

consumers to purchase only the programming they wish to view. Accordingly, I find

that LD 832 is likely not preempted by § 544(f) of the Cable Act.

b. Sections 544(a) and (b)

The Plaintiffs contend that LD 832 is preempted by § 544(a) and (b). Section

544(a) provides that “[a]ny franchising authority may not regulate the services,

facilities, and equipment provided by a cable operator except to the extent consistent

with this subchapter.” 47 U.S.C. § 544(a). Section 544(b)(1) provides that, for

franchises granted after the effective date of the Cable Act, the franchising

authorities “may establish requirements for facilities and equipment, but may not . . .

establish requirements for video programming or other information services.” 47

U.S.C. § 544(b). Section 544(b)(2) allows a franchising authority to enforce

requirements contained in the franchise—“(A) for facilities and equipment; and (B)

for broad categories of video programming or other services.” 47 U.S.C. § 544(b)(2).

The Plaintiffs do not develop their argument that § 544(a) and (b) preempt LD

832, perhaps because these provisions apply only to franchising authorities and not

to states. Congress clearly knew how to restrict the regulatory authority of states, as

it did so in § 544(f). Even if I found that the Plaintiffs had not waived this argument

as undeveloped, I would likely not find that these provisions restrain state regulatory

authority. I also would likely interpret § 544(a) and (b) as provisions designed to keep

franchising authorities from requiring specific programming. H. Rep. 4705–06

(§ 544(a) and (b) ensure that franchising authorities can enforce commitments made

in franchise agreements, “yet also protect[] the cable operator from being forced to

provide specific programming”). I have already found that LD 832 does not prohibit

cable operators from carrying or require them to carry any particular programming.

LD 832 is not preempted under § 544(a) and (b).

2. Conflict Preemption

“[C]onflict pre-emption exists where compliance with both state and federal

law is impossible, or where the state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.” Oneok, Inc. v. Learjet,

Inc., 575 U.S. 373, 377 (2015) (quotation marks omitted). “[A] court should not find

pre-emption too readily in the absence of clear evidence of a conflict.” See Geier v. Am.

Honda Motor Co., 529 U.S. 861, 885 (2000). The Plaintiffs argue that both types of

conflict preemption—impossibility and obstacle—are present.

a. Impossibility

The Plaintiffs argued in their opening brief that they would be unable to

comply with the à la carte mandate and comply with the federal requirement that

cable operators include all stations that elect must-carry status on the basic tier. Mot.

9–10. In response, the State indicated that it does not interpret LD 832 “as allowing

consumers to purchase à la carte channels and programs without first subscribing to

the mandatory basic tier.” Opp’n 14. The State bases its interpretation on the use of

the term “subscribers” in LD 832, and it argues that one must first become a

“subscriber” by purchasing the basic tier in order to then be able to purchase

additional programming on an à la carte basis. Opp’n 15. I am required to consider

the narrowing construction offered by the State. Nat’l Org. for Marriage v. McKee,

649 F.3d 34, 66 (1st Cir. 2011) (citing Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494 n.5 (1982)) (“In evaluating a facial challenge to a state

law, a federal court must . . . consider any limiting construction that a state court or

enforcement agency has proffered.”). Under the State’s limiting construction, I find

that LD 832 does not make compliance with the Cable Act’s must-carry and basic tier

requirements impossible.

b. Obstacle

The Plaintiffs also argue that LD 832 stands as an obstacle to the

accomplishment of the Cable Act’s purposes and objectives and frustrates the

effectiveness of federal law. Mot. 10–11. The Plaintiffs posit that “Congress made

clear that its goals for regulating cable service were to establish and maintain ‘a

national policy concerning cable communications’ that ‘minimize[s] unnecessary

regulation that would impose an undue economic burden on cable systems.’ ” Mot. 10

(quoting 47 U.S.C. § 521(1), 521(6)). I agree that these were among Congress’s goals.

But so too were “assur[ing] that cable systems are responsive to the needs and

interests of the local community” and allowing states to “enact[] or enforce[e] any

consumer protection law” unless specifically preempted. 47 U.S.C. §§ 521(2), 552(d).

Because there are competing federal purposes and objectives in the Cable Act, and

because LD 832 embodies one of those objectives, I do not find “clear evidence” of a

conflict. See Geier, 529 U.S. at 885.

Because I find that no provision of the Cable Act expressly preempts LD 832

and because the Plaintiffs have not established conflict preemption, I go on to address

the Plaintiffs’ First Amendment claims.

B. First Amendment

The Plaintiffs argue that LD 832 violates their First Amendment rights and

should be subject to strict scrutiny. They contend that the State has failed to meet its

burden of showing that LD 832 can withstand either strict or intermediate scrutiny

because the State has not provided evidence that LD 832 will further an important

State interest. Mot. 11–15. The State responds that the Plaintiffs do not have a First

Amendment right to bundle content in the first place. Alternatively, the State argues

that if First Amendment interests are at stake, then intermediate rather than strict

scrutiny would apply and LD 832 would survive intermediate scrutiny. Opp’n 16, 21.

1. Plaintiffs’ Constitutional Rights

As a threshold matter, the Plaintiffs are required to demonstrate that LD 832

infringes on their First Amendment rights. They make arguments that touch upon

two different doctrines of First Amendment law. First, citing Turner I, 512 U.S. at

636, they contend that a decision “exercising editorial discretion” over how to provide

programming is protected speech. Mot. 11. Second, they contend that because LD 832

singles out cable operators for disfavored treatment but leaves other multichannel

video programming distributors unregulated, it violates the First Amendment’s

prohibition on speaker-based regulations as discussed in Minneapolis Star and

Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), and

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227 (1987). Reply 7–8. I

address each argument in turn.

a. Editorial Discretion under Turner I

In Turner I, the Supreme Court addressed whether the must-carry provisions

of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L.

102-385, 106 Stat. 1460, which required cable operators to carry the signals of certain

local broadcast television stations, violated the First Amendment rights of cable

operators and programmers. 512 U.S. at 636–37. The Supreme Court wrote that

“there can be no disagreement” that:

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. Through original programming or by

exercising editorial discretion over which stations or programs to

include in its repertoire, cable programmers and operators seek to

communicate messages on a wide variety of topics and in a wide variety

of formats.

Id. at 636 (quotation marks, citations, and alterations omitted). The Court

determined that the must-carry provisions “regulate cable speech in two respects:

The rules reduce the number of channels over which cable operators exercise

unfettered control, and they render it more difficult for cable programmers to compete

for carriage on the limited channels remaining.” Id. at 637. Ultimately, the Court

applied intermediate scrutiny to the must-carry provisions, and after remand for

further development of the factual record, the Court upheld the must-carry

requirements. Turner Broad. Sys., Inc. v. FCC (“Turner II”), 520 U.S. 180 (1997).

The Plaintiffs argue that, like the cable operators and programmers in

Turner I, they enjoy First Amendment protection for their decisions regarding how to

package and sell their video programming. They consider their bundling decisions to

fall within their “editorial discretion.” The State counters that, unlike the must-carry

provisions at issue in Turner I, LD 832 does not infringe on the cable operators’ rights

to decide what programs and channels to show. The cable operators and programmers

are free, according to the State, to choose whatever content they wish to provide and

bundle it in whatever packages they see fit. They simply must, in addition, offer that

same programming to consumers on an à la carte basis. The State points out that the

Plaintiffs cite no case supporting the notion that they have a First Amendment right

to bundle channels and programs. Opp’n 2. The State contends that Turner I does not

control if there is no impingement on the right to choose programming, and it argues

that the Plaintiffs have failed to meet their initial burden of demonstrating that LD

832 infringes on their First Amendment rights.

There is no question that Turner I is distinguishable from the instant case. In

Turner I, the Government’s must-carry provisions forced cable operators to carry

particular channels and impinged on programmers by increasing the competition for

the remaining channels. Here, LD 832 requires no such addition of content, and it

does not shrink the space remaining for programmers. Nor does LD 832 prohibit the

Plaintiffs from packaging programming in bundles; it merely requires them to also

provide channels and programming individually.

The Plaintiffs simply do not address these distinctions. They rely exclusively

on the broad language in Turner I, and they do not explain why cable operators’

editorial discretion to choose what channels or programs to offer, which is protected

by the First Amendment, should extend to cable operators’ discretion in how to sell

that programming.11 Nor do the Plaintiffs make any attempt to distinguish the cable

operators’ rights from the video programmers’ rights under the First Amendment. I

find that the Plaintiffs have failed to carry their burden at the preliminary junction

stage that they are likely to succeed on the merits of their claim that they have First

Amendment rights to require consumers to purchase bundles of programming.

b. Speaker-based Laws

In addition to concluding that cable operators had First Amendment rights in

exercising editorial discretion when choosing particular programming, the Court in

Turner I considered whether the must-carry provisions transgressed cable operators’

First Amendment rights because they placed special burdens on members of the

press. See Turner I, 512 U.S. at 640–41. Application of the First Amendment

protections of the press to cable operators is not, by any stretch, a new concept. In

City of Los Angeles v. Preferred Communications, Inc., the Supreme Court held that

a cable operator seeking to open a second franchise in Los Angeles had First

Amendment rights akin to the press. 476 U.S. 488, 494–95 (1986). The Court wrote:

11 The Plaintiffs are not alone in reading Turner I broadly. See U.S. Telecom Ass’n v. FCC, 855

F.3d 381, 430 (D.C. Cir. 2017) (Kavanaugh J., dissenting from denial of rehearing en banc) (“[T]he

Supreme Court’s Turner Broadcasting decisions mean that Internet service providers possess a First

Amendment right to exercise their editorial discretion over what content to carry and how to carry

it.”). But cf. Susan Crawford, First Amendment Common Sense, 127 HARV. L. REV. 2343 (2014)

(warning against extending Turner’s editorial discretion to internet service providers).

“[c]able television partakes of some of the aspects of speech and the communication

of ideas as do the traditional enterprises of newspaper and book publishers, public

speakers, and pamphleteers. [The cable operator’s] proposed activities would seem to

implicate First Amendment interests.” Id. at 494. In Leathers v. Medlock, the

Supreme Court reiterated the idea that “[c]able television provides to its subscribers

news, information, and entertainment. It is engaged in ‘speech’ under the First

Amendment, and is, in much of its operation, part of the ‘press.’ ” 499 U.S. 439, 444

(1991) (citing Preferred Commc’ns., 476 U.S. at 494).

In addressing the cable operators’ speaker-based argument in Turner I, the

Court cited Minneapolis Star and Arkansas Writers’ Project, two cases relied on by

the Plaintiffs. In Minneapolis Star, the Supreme Court considered the

constitutionality of a Minnesota law aimed at publishers that imposed a use tax on

paper and ink. 460 U.S. at 578. In Arkansas Writers’ Project, the Supreme Court

considered a general interest magazine’s challenge to Arkansas’s sales tax, which

exempted religious, professional, trade, and sports magazines. 481 U.S. at 224–25,

227. In both of those cases, the Court found that because the laws singled out the

press, or a component of the press, they were unconstitutional under the First

Amendment. Id. at 229.

The fact that the Supreme Court has historically viewed cable operators as

part of the press and that it found in Turner I that cable operators’ rights fall within

the ambit of cases like Minneapolis Star and Arkansas Writers’ Project, suggests to

me that the Plaintiffs do have First Amendment interests at stake. LD 832 clearly

singles out cable operators for differential treatment. Under Turner I, this means

some level of heightened scrutiny applies. 512 U.S. at 640–41. Because I find that the

Plaintiffs have met their burden of establishing that the law implicates their First

Amendment rights, I address which level of scrutiny applies, and whether it is likely

that the State can meet its burden of showing that LD 832 withstands that scrutiny.

2. Level of Scrutiny

a. Strict Scrutiny

The Plaintiffs contend that strict scrutiny should apply citing Reed v. Town of

Gilbert, 135 S. Ct. 2218, 2226, 2230–31 (2015) and Rosenberger v. Rector & Visitors

of the University of Virginia, 515 U.S. 819, 828 (1995). Mot. 12. In Reed, the Court

struck down a municipality’s signage regulations because they were content-based

and failed to withstand strict scrutiny. 135 S. Ct. at 2231–32. In Rosenberger, the

Court held that a University of Virginia regulation restricting student activity funds

from being used to support a student group endeavoring to publish a Christian

magazine violated the group’s free speech rights. 515 U.S. at 837. The Plaintiffs offer

no analysis of how LD 832 bears any resemblance to either the ordinance in Reed or

the regulation in Rosenberger. The State rejoins that if intermediate scrutiny

applied to the must-carry provisions in Turner I, “it is impossible to see” how LD 832

would be subject to strict scrutiny. Opp’n at 18–20.

“Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional” and are subject to strict scrutiny. Reed,

135 S. Ct. at 2226 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992)).

“Government regulation of speech is content based if a law applies to particular

speech because of the topic discussed or the idea or message expressed.” Id. at 2227.

Because I have concluded that LD 832’s à la carte mandate is not content-based, strict

scrutiny does not apply on this basis.

“[S]peaker-based laws demand strict scrutiny when they reflect the

Government’s preference for the substance of what the favored speakers have to say

(or aversion to what the disfavored speakers have to say).” Turner I, 512 U.S. at 658

(citations omitted). As the Court in Turner I framed it: “The question here is whether

Congress preferred broadcasters over cable programmers based on the content of

programming each group offers. The answer . . . is no.” Id. 658–59. The Plaintiffs

make no attempt to explain how the Maine legislature is singling out cable operators

as opposed to other MVPDs based on the content of the programming.

Strict scrutiny “is unwarranted when the differential treatment is ‘justified by

some special characteristic of’ the particular medium being regulated.” Id. at 660–61

(quoting Minn. Star, 460 U.S. at 585). In Turner I, the Court found that the “special

characteristics of the cable medium: the bottleneck monopoly power exercised by

cable operators and the dangers this power poses to the viability of broadcast

television” justified the must-carry provisions and made strict scrutiny unwarranted.

Id. at 661. The Plaintiffs contend in their reply brief that the finding of a “bottleneck

monopoly” that justified singling out the cable operators in Turner I no longer exists

and cannot be used to justify treating cable operators differently from other

multichannel video programming distributors. Reply 8. The Plaintiffs cite an FCC

report that suggests cable subscribers only totaled 55.2% of subscriptions to MVPDS

in 2017. See In re Commc’ns Marketplace Report, FCC 18-181, 2018 WL 6839365 (Dec.

26, 2018) (“Communications Marketplace Report”). Because the special

circumstances that justified the must-carry provisions are absent here, the Plaintiffs

contend that strict scrutiny should apply.

It is true, as the Plaintiffs point out, that much has changed since the Turner

cases were decided and that the justifications for the must-carry provisions do not

necessarily apply to the à la carte mandate. But the Plaintiffs only develop this

argument in their reply brief. Neither party has addressed whether the cable

industry’s market share of multichannel video programming in Maine is different

from that of the nation as a whole. Further, the sponsor of LD 832 was concerned

about cable pricing and ensuring that Maine citizens have access to affordable cable

programming. The evidentiary record is weak at this point, but the record does

contain evidence that cable pricing has greatly exceeded the pace of inflation over

many years.12 This may provide a separate special characteristic that would support

differential treatment of cable operators. Because I ultimately conclude that the State

12 See In re Commc’ns Marketplace Report, FCC 18-181, 2018 WL 6839365 (Dec. 26, 2018)

(“Communications Marketplace Report”) ¶ 71 (“Over the five years ending January 1, 2017 the

price of expanded basic service rose, on average, by 4.1% annually. . . . For comparison, the rate of

general inflation measured by the Consumer Price Index (all items) rose . . . at an average annual rate

of 1.4% over the last five years.”); 2004 Report at 20 (“[C]able prices have increased by an average of

4.6% per year . . . [and] in excess of 7%, for the expanded basic program tier over the past five years.”);

id. at 5 (“Some commenters allege that as cable rates have increased at nearly three times the rate of

inflation, the industry’s practice of making most networks available as part of a bundle or tier has

contributed to the rise in retail rates.”).

has not met its burden of showing that it is likely to succeed under intermediate

scrutiny, I do not need to decide this issue at this time.

b. Intermediate Scrutiny

Under intermediate scrutiny, LD 832 “will be sustained if ‘it furthers an

important or substantial governmental interest; if the governmental interest is

unrelated to the suppression of free expression; and if the incidental restriction on

alleged First Amendment freedoms is no greater than is essential to the furtherance

of that interest.’ ” Turner I, 512 U.S. at 662 (citing United States v. O’Brien, 391 U.S.

367, 377 (1968)).

The Plaintiffs do not dispute that Maine has an important interest in making

sure that its citizens have access to cable television services at affordable rates.

Rather, they contend that the State has shown no evidence that there is an absence

of consumer choice, excessive pricing, or a lack of à la carte options in the

marketplace. They also argue that the State has failed to establish that the à la carte

mandate will solve any of the problems that the State recites because it has not shown

that LD 832 will actually lead to lower costs or greater consumer choice. The Plaintiffs

are correct that the State bears the burden of showing that the problems LD 832

seeks to remedy “are real, not merely conjectural, and that [LD 832] will in fact

alleviate these harms in a direct and material way.” Asociación de Educación Privada

de P.R., Inc. v. García-Padilla, 490 F.3d 1, 18 (1st Cir. 2007).

To establish that there is an absence of consumer choice and excessive pricing

caused by bundled programming, the State points to a comment made by the Office

of the Public Advocate that cable consumers have expressed frustration with bundled

channels. Tr. Oral Argument at 56; see Testimony of the Office of the Public Advocate

(ECF No. 69-3) (“[A] great deal of consumers experience a high level of frustration

with their cable providers. They feel that they lack choices and being able to select

the channels they want and not have to pay for channels they do not watch and do

not want would be highly favorable.”). This evidence of consumer complaints in Maine

is buttressed by the 2004 Report, which stated it is “undeniable that many Americans

are frustrated with year over year increases in their pay-television bills.” 2004 Report

at 3. The record also demonstrates that increases in rates for cable television services,

which have significantly out-paced inflation, continued from 2013 through 2017. See

Communications Marketplace Report ¶ 71. This may be sufficient to conclude that

the State is likely to be able to show that containing cable costs in Maine is a real

concern, but the State stumbles when it comes to demonstrating a likelihood of

success on whether LD 832 will solve the problem of rising cable prices.

The State references the Further Report, which concluded “that à la carte could

be in consumers’ best interests.” Further Report 3. But the Further Report’s purpose

is really to tear down the conclusions of the 2004 Report by pointing out what it claims

is flawed analysis and industry bias. The Further Report speaks in terms of what

“could” happen, not what will happen, if à la carte programming is mandated, and it

recommends further consideration of à la carte and other alternatives to bundling.

The report even acknowledges that prices for some consumers could rise by up to 4%

under an à la carte scheme. Id. at 4. Further, the report seems to focus on an à la

carte channel scheme and does not address the à la carte programming scheme that

LD 832 mandates.13 The Legislature did not undertake any further investigation,

hear from expert witnesses, or commission a Maine-specific study to determine what

impact LD 832 would actually have on access to cable services. The State has not

accounted for the significant transactional costs resulting from upending the cable

market in Maine or the likelihood that these costs will be passed onto consumers.

Decl. of Rick Rioboli 4–5. Finally, there is no mechanism in the law that would stop

cable operators from pricing individual channels at the same price as an entire tier.

The only constraint on cable operators’ pricing would be market forces and consumer

good will.

At this initial stage, I cannot conclude that the State has carried its burden of

showing that LD 832 will, in fact, be likely to reduce prices and increase affordable

access to cable. The State candidly conceded at oral argument that “there may well

not be enough in the . . . factual record at this point for us to have met our burden.”14

Tr. Oral Argument at 56. Because I agree that there is not sufficient evidence to show

that the State will likely be able to demonstrate that LD 832 will remedy the problems

13 LD 832 requires that cable operators offer consumers the ability to purchase both individual

channels, such as ESPN or the Food Network, and individual programs, such as one Monday Night

Football game or one episode of Chopped. The Further Report appears to only forecast the possible

effects of an à la carte channel scheme.

14 Because I reach the conclusion I do, I sidestep the question of whether the legislature itself

must create a record showing that a problem actually exists and that the law is likely to solve that

problem. Reply 8 (ECF No. 85). The issue of how well-developed the legislative record needs to be and

how much deference should be accorded to the legislature if a law infringes on First Amendment

freedoms is complex. See Michael J. Burstein, Note, Towards A New Standard for First Amendment

Review of Structural Media Regulation, 79 N.Y.U. L. REV. 1030 (2004); Note, Deference to Legislative

Fact Determinations in First Amendment Cases After Turner Broadcasting, 111 HARV. L. REV. 2312

(1998). This is an issue that will need to be decided, but it makes little sense to offer a prediction on

this issue without comprehensive briefing.

associated with rising cable prices, I conclude that the Plaintiffs are likely to succeed

on their First Amendment claim. I note that a likelihood of success determination on

a motion for preliminary injunction should “be understood only as [a] probable

outcome” based on “the present state of the record.” Maine Educ. Ass’n Benefits Trust

v. Cioppa, 695 F.3d 145, 158 (1st Cir. 2012).

II. Remaining Factors

“Likelihood of success is the main bearing wall of the four-factor framework”

for preliminary injunctions. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d

12, 16 (1st Cir. 1996). Nonetheless, the remaining factors for a preliminary

injunction—whether the Plaintiffs will suffer irreparable harm, the balance of

hardships, and the public interest—also weigh in the Plaintiffs’ favor. See Harnett,

731 F.3d at 9. A plaintiff who has shown a likelihood of success on the merits of a

First Amendment claim has satisfied the irreparable injury component of the

preliminary injunction analysis as well, given the loss of First Amendment freedoms.

Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 15 (1st Cir. 2012)

(citing Elrod v. Burns, 427 U.S. 347, 373 (1976)).

The balance of hardships and public interest also weigh in favor of the

Plaintiffs. The affidavit of Comcast Chief Information Officer Rick Rioboli suggest

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. Decl. or Rick

Rioboli 4–5. Because the State has not established that LD 832 is likely to improve

access to cable services or lower costs, I cannot conclude that granting the preliminary

injunction will create a countervailing hardship on the State. The public interest is

served by protecting First Amendment rights from likely unconstitutional

infringement. See Yes for Life Political Action Comm. v. Webster, 74 F. Supp. 2d 37,

43 (D. Me. 1999).

CONCLUSION

For the reasons stated above, I DENY the Plaintiffs’ motion for preliminary

injunction (ECF No. 14) on their preemption claim (Count I). I GRANT Plaintiffs’

motion for a preliminary injunction on their First Amendment claim (Count II).

Although I had anticipated consolidating the preliminary injunction hearing with the

trial on the merits, pursuant to Fed. R. Civ. P. 65, the evidentiary record is not

sufficiently developed to allow me to make a final determination on the Plaintiffs’

claims for declaratory and permanent injunctive relief. I direct the Clerk of Court to

enter a scheduling order.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 20th day of December, 2019.