NCTA - INTERNET & TELEVISION ASSOCIATION v. FREY

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

NCTA – INTERNET & TELEVISION )

ASSOCIATION, )

)

Plaintiff, )

)

v. ) Docket No. 2:19-cv-420-NT

)

AARON FREY, )

)

Defendant. )

ORDER ON PLAINTIFF’S CLAIMS FOR DECLARATORY AND

INJUNCTIVE RELIEF

Last year, Maine enacted L.D. 1371, “An Act To Ensure Nondiscriminatory

Treatment of Public, Educational and Governmental Access Channels by Cable

System Operators” (“LD 1371”), which contains a number of provisions dealing with

how cable operators provide and support public, educational, and government access

channels (“PEG channels”). Among other things, LD 1371 requires cable operators:

1) to place PEG channels in positions near local broadcasting stations on the basic

tier; 2) to retransmit PEG channel signals in the format in which they are received

from PEG channel originators and at the same signal quality as local broadcast

channels; and 3) to provide PEG channel originators with access to cable television

services’ electronic programming guides (the “PEG provisions”). 30-A M.R.S.

§§ 3008, 3010. In addition, the law requires cable operators to extend cable service to

areas that have a population density of at least 15 residences per linear strand mile

(the “line extension provision”). 30-A M.R.S. § 3008.

Plaintiff NCTA – The Internet & Television Association (“NCTA”), a national

trade association representing cable operators,1 challenges the above provisions of

LD 1371 as facially unconstitutional. NCTA claims that all four provisions are

preempted by federal law that governs cable communications, 47 U.S.C. §§ 521–5732

(“Federal Cable Law”), and claims that the PEG provisions also violate the First

Amendment rights of its cable operator members. For the reasons that follow, I

DENY the Plaintiff’s claims for declaratory and injunctive relief.3 (ECF No. 1.)

BACKGROUND

A. Federal Cable Law

“The earliest cable systems were built in the late 1940’s to bring clear

broadcast television signals to remote or mountainous communities.” Turner Broad.

Sys., Inc. v. FCC (“Turner I”), 512 U.S. 622, 627 (1994). Cable operators, in contrast

to broadcasters that send signals over the airwaves, rely on a “physical, point-to-point

connection between a transmission facility and the television sets of individual

subscribers.” Id. at 627–28. In order to lay the cables necessary for the development

1 Comcast and Charter are NCTA members that operate in Maine.

2 Federal law governing cable is codified at 47 U.S.C. §§ 521–573. First enacted in 1984, see

Cable Communications Policy Act of 1984, Pub. L. No. 98–549, 98 Stat. 2779 (the “1984 Cable Act”),

these provisions have been amended over time, most notably in 1992, see Cable Television Consumer

Protection and Competition Act, Pub. L. No. 102-385, 106 Stat. 1460 (the “1992 Cable Act”), and in

1996, see Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. (the “1996 Cable Act”).

I refer to the provisions currently codified at 47 U.S.C. §§ 521–573 as “Federal Cable Law.”

3 The Plaintiff originally filed a motion for a preliminary injunction. (ECF No. 3.) I ordered

expedited briefing and set a hearing on the Plaintiff’s motion. Both parties declined an invitation for

an evidentiary hearing and opted to proceed by submitting affidavits and presenting oral argument. I

decided to consolidate the motion for preliminary injunction with the trial on the merits of the

Plaintiff’s claims. Neither party objected. The Plaintiff’s motion for preliminary injunction is therefore

MOOT.

of cable systems, cable operators used public rights of way. As a result, the cable

medium has always depended “for its very existence upon express permission from

local governing authorities.” Id. at 628.

For many years, cable television was primarily regulated by local governments

through a franchise process. H.R. Rep. No. 98-934 at 4656–57, reprinted in 1984 U.S.

Code Cong. & Admin. News (“House Report 98-934”). A municipality would grant

a cable operator a franchise that contained specifics about the nature of the system

to be built, the services to be provided, and the rates to be charged. Id. at 4656. States

also got in on the act. Some states acted as the franchising authorities or had

processes for approving local franchise agreements; others regulated the terms of

what was to be included in municipal franchise agreements. Id. In addition, over time

the federal government, through the Federal Communications Commission (“FCC”),

began to play a regulatory role, mostly in the operational aspects of cable, especially

technical standards and signal quality. Nat’l Cable Television Ass’n v. FCC, 33 F.3d

66, 68–69 (D.C. Cir. 1994); House Report 98-934 at 4656–57.

With the 1984 Cable Act, Congress regulated cable television for the first time

by adding “provisions governing the operation of cable providers and franchises” to

the Communications Act of 1934. All. for Cmty. Media v. FCC, 529 F.3d 763, 767–68

(6th Cir. 2008). In the 1984 Cable Act, Congress continued to rely “on the local

franchising process as the primary means of cable television regulation, while

defining and limiting the authority that a franchising authority may exercise through

the franchise process.” House Report 98-934 at 4656. Wanting to encourage the

growth of the cable industry, Congress sought to “ ‘reliev[e] the cable industry from

unnecessary, burdensome regulation.’ ” Liberty Cablevision of P.R., Inc. v. Mun. of

Caguas, 417 F.3d 216, 219 (1st Cir. 2005) (quoting Am. Civil Liberties Union v. FCC,

823 F.2d 1554, 1559 (D.C. Cir. 1987)). At the same time, Congress sought to “ ‘ensur[e]

that cable systems remain responsive to the needs of the public.’ ” Id. As one

commentator noted:

Through the [1984] Cable Act, Congress recognized cable’s

multifunctional nature and took a position favoring a mixed scheme of

federal, state and local regulation of the medium. Congress prescribed

uniform rules for those aspects of cable television that it perceived to

require federal attention. It left the substantial remainder of cable

regulatory authority to state and local governments who, arguably, are

in a better position to ascertain local needs and to design rules that best

meet local conditions.

R. Copple, Cable Television and the Allocation of Regulatory Power: A Study of

Government Demarcation and Roles, 44 Fed. Comm. L.J. 1, 4 (1991).

To this day, local franchising authorities retain the right to award and renew

franchises, 47 U.S.C. §§ 541, 546, and “establish requirements for facilities and

equipment.” 47 U.S.C. § 544(b)(1). But states and franchising authorities are

generally not allowed to regulate rates charged by cable operators that are subject to

effective competition, 47 U.S.C. § 543(a)(1)–(2), and they cannot prohibit, condition,

or restrict a cable system’s use of subscriber equipment or transmission technology.

47 U.S.C. § 544(e).

Federal Cable Law provides cable operators with various protections, including

procedures and standards that govern the renewal of incumbent cable franchises. See

47 U.S.C. § 546. In contrast to the initial franchising provision, which contains little

detail, see 47 U.S.C. § 541, the renewal provision sets forth a process that requires

consideration of the cable operator’s track record, the quality of the cable operator’s

service, and whether the cable operator’s proposal “is reasonable to meet the future

cable-related community needs and interests, taking into account the cost of meeting

such needs and interests.” 47 U.S.C. § 546(c)(1)(A)–(D). If a franchising authority

decides not to renew a franchise agreement, a cable operator is entitled to an

administrative hearing with basic due process protections. 47 U.S.C. § 546(c)(2). A

franchising authority must support any adverse decision in writing, and a cable

operator can seek judicial review of any adverse decision. 47 U.S.C. § 546(c)–(e).

Federal Cable Law also contains provisions governing PEG channels. 47 U.S.C.

§§ 531, 541(a)(4)(B). Congress considered PEG channels to be the “video equivalent

of the speaker’s soap box or the electronic parallel to the printed leaflet” and

important to ensuring a diversity of voices and an informed citizenry. House Report

98-934 at 4667. Congress included provisions allowing franchising authorities to

require “adequate assurance that the cable operator will provide adequate public,

educational, and governmental access channel capacity.” 47 U.S.C. § 541(a)(4)(B).

Franchising authorities retained the rights to include requirements for the

designation and use of PEG channels in their requests for initial proposals and

renewals, 47 U.S.C. § 531(b), and to enforce any requirements within their franchise

agreements “regarding the providing or use of such channel capacity” including

the authority to enforce any provisions of the franchise for services,

facilities, or equipment proposed by the cable operator which relate to

public, educational, or governmental use of channel capacity, whether

or not required by the franchising authority.

47 U.S.C. § 531(c).

B. Maine’s Regulatory Structure and LD 1371

Maine has expressly authorized municipalities to enter franchise agreements

with cable operators. 30-A M.R.S. § 3008. Maine law regulating the cable industry is

found at 30-A M.R.S. §§ 3008–3010. Section 3008(5) contains various requirements

that municipalities must include in franchise agreements. Section 3010, entitled

“Consumer rights and protection relating to cable television service,” sets forth

consumer protection and customer rights provisions that apply directly to cable

operators.

LD 1371 amends § 3008(5) and § 3010 to address concerns about PEG channel

access. Within the last several years, cable operators began taking steps that made

it more difficult to find and watch PEG channels. Decl. of Anthony Vigue ¶¶ 4–5, 9

(ECF No. 25). First, cable operators began moving PEG channels from their long-

standing channel positions in the single-digits to hard-to-find subchannels or channel

positions in the 1300 block of channels, a region dubbed “digital Siberia.” Id. Viewers

had difficulty finding their local PEG channels, and the problem was compounded by

the fact that the electronic programming guide identifies PEG channels only as

“LOCAL” and without a description of programming that is seen for other channels.

Id. ¶¶ 14–19. Second, although some PEG stations produce their content in high

definition (“HD”), cable operators refuse to retransmit that content in HD, instead

down converting it to standard definition (“SD”). Id. ¶¶ 21–22. As a result of cable

operators’ downgrading, consumers see a smaller, grainier picture on PEG channels

than on most other channels. Id. ¶ 21; see Rebuttal Decl. of Adam Falk ¶ 19 (ECF No.

52). The PEG provisions address these issues by requiring cable operators to move

PEG channels back near broadcast channels, to give PEG stations equal billing in the

electronic programming guide, and to retransmit PEG station signals in the format

in which they are received and at the same signal quality as local broadcast stations.

30-A M.R.S. §§ 3008(5)(D)(1), 3010(5-A), 3010(5-B).

LD 1371 also amends § 3008(5) to address the extension of cable services to

more rural areas of Maine. Franchise agreements must now contain a line extension

policy with “a minimum density requirement of no more than 15 residences per linear

strand mile of aerial cable for areas in which the cable system operator will make

cable television service available to every residence.” 30-A M.R.S. § 3008(5)(B).

DISCUSSION

The Plaintiff contends that the PEG provisions and the line extension provision

of LD 1371 are preempted by Federal Cable Law and that the PEG provisions violate

the First Amendment rights of its cable operator members. I address each argument

in turn.

I. Preemption

A. Legal Standards

1. Federal Preemption of State Law Generally

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. “[S]tate 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). Even

where state law is not inconsistent with federal law, “conflict pre-emption exists

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) (internal quotation marks omitted). The Supreme Court has

instructed that courts “should not find pre-emption too readily in the absence of clear

evidence of a conflict.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 885 (2000).

2. Preemption under Federal Cable Law

In the 1984 Cable Act, Congress exerted federal authority over cable where

there was a need for uniform, national standards, and it ratified local and state

control where those authorities were in a better position “to fine tune regulation in a

manner that best addresses unique local conditions and needs.” Copple, 44 Fed.

Comm. L.J. at 39–46. This statutory structure has aptly been described as a “selective

preemption” scheme. Id. at 48. The “appropriate size, capacity, and configuration of

a cable system,” consumer protection issues, and PEG access are matters largely left

within state and local control. Id. at 39, 41, 57. Even in areas where Congress saw a

need for national standards, the statute “preserves a realm of regulatory discretion

for state and local regulation of cable television to address local conditions, policies,

and needs.” Id. at 48. For example, the franchise renewal provisions set nation-wide

procedures to ensure that local authorities do not unfairly refuse to renew franchises,

but they also give local franchising authorities discretion to account for their

communities’ cable needs and interests. See 47 U.S.C. § 546(c)(1).

Federal Cable Law contains several provisions dealing specifically with the

division of regulatory authority and with preemption.

• Section 556, which is entitled “Coordination of Federal, State, and local

authority,” provides:

(a) Regulation by States, political subdivisions, State and local

agencies, and franchising authorities

Nothing in this subchapter shall be construed to affect any authority

of any State, political subdivision, or agency thereof, or franchising

authority, regarding matters of public health, safety, and welfare, to

the extent consistent with the express provisions of this subchapter.

(b) State jurisdiction with regard to cable services

Nothing in this subchapter shall be construed to restrict a State from

exercising jurisdiction with regard to cable services consistent with

this subchapter.

(c) Preemption

[A]ny provision of law of any State, political subdivision, or agency

thereof, or franchising authority, or any provision of any franchise

granted by such authority, which is inconsistent with this chapter

shall be deemed to be preempted and superseded.

47 U.S.C. § 556.

• Section 552(d) provides that “[n]othing in this subchapter shall 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).

• Section 544(a) provides that “any 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(f)(1), which is entitled “Limitation on regulatory powers of Federal

agencies, States, or franchising authorities” provides: “Any Federal agency,

State, or franchising authority may not impose requirements regarding the

provision or content of cable services, except as expressly provided in this

subchapter.” 47 U.S.C. § 544(f). I recently decided, in agreement with the

majority of courts that have addressed the issue, that § 544(f) was aimed

specifically at keeping governmental authorities from dictating the

programming to be provided over a cable system or otherwise imposing

content-based requirements. Comcast of Me./N.H., Inc., v. Mills, No. 1:19-CV-

410, 2019 WL 6999107 (D. Me. Dec. 20, 2019) (following United Video, Inc. v.

FCC, 890 F.2d 1173 (D.C. Cir. 1989)).

3. Facial Challenges

The Plaintiff seeks to have the four provisions of LD 1371 struck down as

facially unconstitutional. Facial challenges are generally disfavored because they are

often based on speculation, contrary to principles of judicial restraint, and subversive

of the democratic process. Wash. State Grange v. Wash. State Republican Party, 552

U.S. 442, 450–51 (2008) (citations omitted).

To succeed in a typical facial attack, [the moving party] would have to

establish “that no set of circumstances exists under which [the Act]

would be valid,” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.

2095, 95 L.Ed.2d 697 (1987), or that the statute lacks any “plainly

legitimate sweep,” Washington v. Glucksberg, 521 U.S. 702, 740, n. 7,

117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (STEVENS, J., concurring in

judgments) (internal quotation marks omitted).

United States v. Stevens, 559 U.S. 460, 472 (2010) (noting a dispute as to which

standard applies but sidestepping the issue). The First Circuit has applied the

Salerno standard to a facial preemption challenge. See Pharm. Research & Mfrs. of

Am. v. Concannon, 249 F.3d 66, 77–78 (1st Cir. 2001), aff’d sub nom. Pharm. Research

& Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003); Ouellette v. Mills, 91 F. Supp. 3d 1, 6

(D. Me. 2015). “The existence of a hypothetical or potential conflict is insufficient to

warrant the pre-emption of the state statute.” Rice v. Norman Williams Co., 458 U.S.

654, 659 (1982).

B. The Challenged Provisions

1. The Line Extension Provision

The Plaintiff argues that the line extension provision is preempted for two

reasons. First, the Plaintiff contends that the State’s role in dictating the line

extension terms of franchise agreements is inconsistent with the structure of Federal

Cable Law. Second, the Plaintiff argues that the line extension provision conflicts

with the franchise renewal procedures, specifically with 47 U.S.C. § 546(c)(1)(D),

which requires renewal requirements to be reasonable to meet community needs

given the cost of implementation. Pl.’s Mot. for Prel. Inj. (“Mot.”) 7–8 (ECF No. 3).

The State sees no conflict between LD 1371 and § 546(c)(1)(D), and it counters that

the line extension provision is expressly authorized by § 541(a)(4)(A), a provision that

discusses universal coverage. The State also notes that because the line extension

requirement is clearly reasonable in some applications, its constitutionality can only

be challenged on an as-applied basis, rather than a facial one.

a. State’s Power to Mandate Terms

I begin with the Plaintiff’s argument that the line extension provision conflicts

with the structure of Federal Cable Law, which envisions that decisions about line

extension will be made by franchising authorities and cable operators during the

franchise renewal process, not mandated by the State. Mot. 9. The Plaintiff is correct

that line extension requirements are within the purview of local franchising

authorities. 47 U.S.C. § 552(a)(2) (franchising authority may establish and enforce

“construction schedules and other construction-related requirements, including

construction-related performance requirements, of the cable operator”).4 The

4 See House Report 98-934 at 4696 (“extension of service” issues intended to be “subject to state

and local authority”); see also Union CATV, Inc. v. City of Sturgis, 107 F.3d 434, 442 (6th Cir. 1997)

(reviewing franchising authority’s decision not to renew franchise because cable operator would not

extend service); Housatonic Cable Vision Co. v. Dep’t of Public Util. Control, 622 F. Supp. 798, 807 (D.

Conn. 1985) (“Congress did not take away the power of the state as franchising authority to require

that a cable operator construct a given portion of its franchise area on a specified schedule.”).

Plaintiff’s argument focuses on the State’s authority—or lack thereof—to impose a

blanket requirement for all municipal franchising authorities.

Federal Cable Law does not restrict state authority to dictate terms in

municipal franchise agreements. Section 556, which is entitled “Coordination of

Federal, State, and local authority,” provides: “Nothing in this subchapter shall be

construed to affect any authority of any state, political subdivision, or agency thereof,

or franchising authority, regarding matters of public health, safety, and welfare, to

the extent consistent with the express provisions of this subchapter.” 47 U.S.C.

§ 556(a). It is unclear whether § 556(a) is intended to address the relationship

between states and local authorities, and therefore it is appropriate to review the

legislative history. See Milner v. Dep’t. of Navy, 562 U.S. 562, 572 (2011) (“[C]lear

evidence of congressional intent may illuminate ambiguous text.”). The

comprehensive House Report for the 1984 Cable Act clarifies that § 556 was not

intended:

to upset the traditional relationship between state and local

governments, under which a local government is a political subdivision

of the state and derives its authority from the state. . . . [T]he state may

exercise its authority over cable either by establishing a state

franchising authority or by placing conditions on a local government’s

grant of a cable franchise. A state may not, with regard to such a

requirement, enact a statute which requires compliance prior to the

expiration of the current franchise.

House Report 98-934 at 4731 (emphasis added).

Because Maine’s municipal franchising authorities derive their power from the

State, the Maine Legislature has the right to dictate the terms of municipal franchise

agreements, including line extension requirements, so long as it does not require

compliance prior to the expiration of a current franchise. The State has acknowledged

that the line extension requirement does not apply to existing franchises.5

Accordingly, the Plaintiff has not established that the line extension requirement is

inconsistent with the structure of Federal Cable Law just because the State, rather

than the franchising authority, has established the line extension requirement.

b. Reasonable to Meet Community Needs

The Plaintiff also argues that the line extension provision is inconsistent with

Federal Cable Law’s renewal provision, which requires franchising authorities to

consider the “cable-related community needs and interests, taking into account the

cost of meeting such needs and interests.” 47 U.S.C. § 546(c)(1)(D). The Plaintiff

contends that the line extension provision conflicts with the renewal provision

because the State did not make factual findings that the line extension provision was

“reasonable or in communities’ best interests.” Mot. 9.

The problem with this argument is that it assumes that the State is making

the final line extension decision for franchising authorities. However, the Maine

Legislature, in enacting LD 1371, is not renewing franchise agreements. Rather it is

making a state-wide policy decision that cable services should be extended to all areas

where there are 15 residences per linear strand mile. The franchising authorities

5 At oral argument, the State indicated that it considers the line extension requirement to have

prospective application only. In other words, a franchising authority must add the standard to a

franchise agreement when the franchise is up for renewal. See 30-A M.R.S. § 3008; Tr. of Oral Arg.

14–15 (ECF No. 56) (Attorney General conceding that the line extension requirement is prospective).

I accept the State’s limiting construction offered at oral argument. 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.”).

must still negotiate the renewal of their franchise agreements, including line

extension provisions.6 Because the State is not acting as the franchising authority, it

is not required to conduct the factfinding necessary for an administrative hearing

under § 546(c)(1).

c. Plaintiff’s Facial Challenge

In order to prevail on its facial challenge, the Plaintiff must show that no set

of circumstances exists in which the line extension requirement would be valid or

that the State provision lacks a plainly legitimate sweep. The Plaintiff argues that

the line extension provision “is unlawful in every case” because it circumvents the

requirement that renewal provisions be reasonable to meet community needs in light

of the implementation costs. Reply 3 (ECF No. 51); see 47 U.S.C. § 546(c)(1)(D). But,

as just discussed, the State is not denying the renewal of a franchise, and Federal

Cable Law does not prohibit States from imposing requirements on franchise

agreements negotiated by municipalities.

While it is possible that the line extension requirement could be unreasonable

given the costs of implementation in some municipalities, the Plaintiff has not met

its burden of showing that the law will be unconstitutional in every application or

that it lacks a plainly legitimate sweep. NCTA submitted an affidavit by Charter

Communications that indicates that “some” of Charter’s 292 “Maine franchise

agreements include specific line-extension requirements of up to 43 homes-per-mile”

6 Notably, LD 1371 does not stop a franchising authority from requiring a cable operator to

extend services to areas with less than 15 residences per linear strand mile.

and that the line extension provision “would alter a significant number of the

franchise agreements Charter operates under in Maine, the broad majority of which

do not require Charter to expand lines to the density level specified in the Maine Act.”

Decl. of Adam Falk ¶¶ 15, 17 (emphasis added) (ECF No. 3-1). Charter declares that

the cost of the line extension will run into the “tens of thousands of dollars per mile.”

Id. ¶ 18. Similarly, an affidavit submitted by Comcast avers that all fifteen of

Comcast’s “Maine franchise agreements contain line-extension policies that range

from 17 to 30 homes-per-mile for aerial lines, with alternative density requirements

for underground lines.” Decl. of Mark Reilly ¶ 13 (ECF No. 3-2). Comcast estimates

that the cost per mile to expand service to meet the State’s line extension requirement

could exceed $100,000 per mile. Id. ¶ 15. The Plaintiff fails to demonstrate how many

municipalities will be affected or how many miles will require extension, and it

appears from these affidavits that at least some municipalities might not be affected

at all.7 Cf. Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987) (state

commission’s identification of a possible set of permit conditions not preempted by

federal law sufficient to rebuff company’s facial challenge to state law requiring

permit).

It is impossible to state on the record before me that there exists no set of

circumstances under which the line extension provision would be valid. It makes

more sense to allow cable operators to challenge the provision on a case by case basis,

7 The State proffered at oral argument that there are already communities that use the 15

homes per linear mile standard. Tr. of Oral Arg. 17–18.

where a factual record can be developed to show whether a line extension term

required by a particular franchising authority is reasonable to meet the community’s

needs in light of the costs. 47 U.S.C. § 546(c)(1).

Similarly, the Plaintiff has failed to show that the line extension requirement

lacks a plainly legitimate sweep. As the State points out, the only provision in Federal

Cable Law that expressly addresses line extension provides that a franchising

authority “shall allow the applicant’s cable system a reasonable period of time to

become capable of providing cable service to all households in the franchise area.” 47

U.S.C. § 541(a)(4)(A) (emphasis added). This provision, first enacted in 1984, suggests

that franchising authorities can require universal buildout, provided they give cable

operators enough time to do so.8 The House Report from the 1984 Cable Act also

discusses the goal of “providing all Americans with access to a technology that will

become an increasingly important part of our national communications network.”

House Report 98-934 at 4657. Given this language, it would be difficult to show that

Maine’s 15-residence line extension requirement lacked a plainly legitimate sweep.

On the record before me, I conclude that the Plaintiff’s facial challenge to the

line extension provision fails.

8 The State contends that § 541(a)(4)(A) is express authorization for the State’s line extension

policy. Opp’n 12 (ECF No. 24). The Plaintiff argues that § 541(a)(4)(A) only limits a franchising

authority’s rights. Reply 1 (ECF No. 51) (citing All. for Cmty. Media v. FCC, 529 F.3d 763 (6th Cir.

2008) (deferring to FCC ruling that franchising authority’s refusal to grant franchise because of

applicant’s unwillingness to meet universal build-out mandates was unreasonable refusal to award

competitive franchise under 47 U.S.C. § 541(a)(1))). Because I cite § 541(a)(4)(A) only as support for

the line extension’s plainly legitimate sweep, I need not decide this issue.

2. PEG Provisions

The Plaintiff argues that the PEG provisions in LD 1371 also are preempted

because they conflict with Federal Cable Law. Specifically, the Plaintiff contends that

the PEG provisions exceed the limited authority that Federal Cable Law bestows on

franchising authorities in the PEG channel realm. Mot. 9–10 (citing 47 U.S.C.

§§ 531(a), 541(a)(4)). The State counters that franchising authorities are given broad

authority to make and enforce requirements related to PEG channels and that the

State can enact the PEG provisions, effective immediately, as consumer protection

laws. Opp’n 14–15 (ECF No. 24) (citing 47 U.S.C. §§ 531(c), 552(d)(1)).

a. Federal Law Governing PEG Channels

Federal Cable Law does not define the term “public, educational, or

governmental use.” The Supreme Court has said that PEG channels “are channels

that, over the years, local governments have required cable system operators to set

aside for public, educational, or governmental purposes as part of the consideration

an operator gives in return for permission to install cables under city streets and to

use public rights-of-way.” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,

518 U.S. 727, 734 (1996) (plurality).

Federal Cable Law also does not dictate how PEG channels are to operate,

instead giving franchising authorities the right to set requirements for PEG channels

as part of their initial franchise agreements and renewals. 47 U.S.C. §§ 531(b), 541;

Copple, 44 Fed. Comm. L.J. at 148 (Federal Cable Law leaves “the majority of

questions regarding the designation and administration of PEG channels to state and

local authorities.”).

The parties point to two provisions in Federal Cable Law that deal specifically

with PEG channels. The first, found in the general franchise provision, states: “In

awarding a franchise, a franchising authority . . . may require adequate assurance

that the cable operator will provide adequate public, educational, and governmental

access channel capacity, facilities, or financial support.” 47 U.S.C. § 541(a)(4).

The second provision, found at 47 U.S.C. § 531, is devoted entirely to PEG

channels.9 Section 531(a) allows franchising authorities to require that a cable

operator designate space for PEG channels. 47 U.S.C. § 531(a). Section 531(b) gives

franchising authorities the right to “require rules and procedures for the use of the

[PEG] channel capacity designated pursuant to this section.” 47 U.S.C. § 531(b)

(emphasis added). Section 531(c) gives a franchising authority the right to enforce

any requirements contained within its franchise agreement, including any provisions

for “services, facilities, or equipment” that relate to PEG channel capacity.10

9 For this case, the relevant provisions of § 531 are as follows:

(a) A franchising authority may establish requirements in a franchise with respect to the designation

or use of channel capacity for public, educational, or governmental use only to the extent provided in

this section.

(b) A franchising authority may in its request for proposals require as part of a franchise, and may

require as part of a cable operator’s proposal for a franchise renewal, subject to section 546 of this title,

that channel capacity be designated for public, educational, or governmental use . . . and may require

rules and procedures for the use of the channel capacity designated pursuant to this section.

(c) A franchising authority may enforce any requirement in any franchise regarding the providing or

use of such channel capacity. Such enforcement authority includes the authority to enforce any

provisions of the franchise for services, facilities, or equipment proposed by the cable operator which

relate to public, educational, or governmental use of channel capacity, whether or not required by the

franchising authority pursuant to subsection (b).

47 U.S.C. § 531(a)–(c).

10 Based on the language of § 531(a) that franchising authorities may include PEG requirements

“only to the extent provided in this section,” and the language in § 541(a)(4)(B) that franchising

authorities can establish requirements for “adequate” PEG service, the Plaintiff argues that

A third provision of Federal Cable Law is also relevant. Section 552 provides

that “[n]othing in this subchapter shall 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). All three

PEG provisions were added to the State law governing “Consumer rights and

protection relating to cable television service,” 30-A M.R.S. § 3010. In enacting the

PEG provisions, the State has relied on its consumer protection authority, rather

than its authority to place conditions on a local government’s grant of a cable

franchise as it did with the line extension provision.11 Because the State is not acting

franchising authorities may only impose PEG requirements that are expressly authorized by Federal

Cable Law and that they may not impose requirements that go beyond “adequate.” See Reply 3–4.

Because Federal Cable Law says nothing about PEG channel placement, programming guides, or

channel resolution, the Plaintiff contends that these PEG requirements are preempted. The Plaintiff’s

cramped reading is a riff on its more general claim that Federal Cable Law preempts states and

franchising authorities from acting without specific federal authorization to do so. I reject this

interpretation as it is contrary to the clear intent of Congress to rely “on the local franchising process

as the primary means of cable television regulation, while defining and limiting the authority that a

franchising authority may exercise through the franchise process.” House Report 98-934 at 4656. If

states and franchising authorities could not act unless they found express authorization in Federal

Cable Law, they would be unable to serve as the primary means of cable television regulation. As one

commentator pointed out shortly after the 1984 Act went into effect:

The regulation of cable television . . . involves innumerable issues ranging from

burning questions of content control to the most benign ministerial matters. The Cable

Act only definitively addresses a handful of these issues. Under the total preemption

theory, state and local governments would be without any authority to address the

matters ignored by the Act.

R. Copple, Cable Television and the Allocation of Regulatory Power: A Study of Government

Demarcation and Roles, 44 Fed. Comm. L.J. 1, 45–46 (1991) (concluding that 1984 Cable Act only

selectively preempts state and local franchising authorities). Particularly in the context of PEG

channels, where local interests predominate, it makes little sense to require local authorities to find

explicit federal authority to act. Cf. Dearborn v. Comcast of Mich. III, Inc., No. 08-10156, 2008 WL

4534167, at *5 (E.D. Mich. Oct. 3, 2008), as amended (Nov. 25, 2008) (rejecting Comcast’s “narrow

reading” that § 531 does not allow for PEG channel placement provision).

11 For the channel placement provision, the State used both its consumer protection power and

its power to mandate terms of municipal franchise agreements. See 30-A M.R.S. §§ 3008(5); 3010.

Because the franchising authorities have the right to impose requirements regarding the use of PEG

as the franchising authority or dictating the terms of the franchise agreement, 47

U.S.C. §§ 531 and 541, which address only what a franchising authority may or may

not do,12 are not applicable here.

Further, as I discussed in the line extension provision section, when a state is

dictating the terms of municipal franchise agreements, it cannot require that a

particular provision be included before the expiration of the current franchise. House

Report 98-934 at 4731. However nothing in Federal Cable Law indicates that a state

cannot impose a consumer protection requirement on an existing franchise.13 I am

bound by the plain language of § 552(d) not to “construe[]” Federal Cable Law to

prohibit the State from enacting or enforcing any consumer protection law unless it

channels, I see no conflict between the channel placement provision and 47 U.S.C. § 531, at least as it

pertains to franchise renewals going forward.

12 Congress knew how to delineate between franchising authorities and states, and it did so

throughout Federal Cable Law. Compare 47 U.S.C. § 544(b) (“the franchising authority”), with § 544(e)

(“No State or franchising authority”), and § 544(f) (“Any Federal agency, State, or franchising

authority”), and § 552(d)(1) (“any State, or any franchising authority”).

13 The Plaintiff cites the 1984 House Report discussing § 556 as authority for its claim that the

State may not impose any of the PEG provisions on existing franchises. Reply 10. That report states:

If, under . . . any state law, a requirement imposed upon a cable operator must be

reflected in a franchise, the state may exercise its authority over cable . . . by placing

conditions on a local government’s grant of a cable franchise. A state may not, with

regard to such a requirement, enact a statute which requires compliance prior to the

expiration of the current franchise. For example, [if] . . . a state enacts a statute

requiring a new PEG channel, that provision may only be phased in as each franchise

comes up for renewal.

House Report 98-934 at 4731 (emphasis added). This statement from the legislative history seems to

apply only to the channel placement provision, which is located both in § 3010’s consumer protection

provision and in § 3008’s subsection governing requirements for franchise agreements. It is not clear

that Congress intended it to apply to a state’s consumer protections laws. Because the language cited

by the Plaintiff from the House Report did not make it into § 556, there is nothing in Federal Cable

Law that “specifically” prevents the State from imposing a consumer protection law on cable operators

during existing franchises.

is specifically preempted by Federal Cable Law. Because § 552(d) would inform the

State’s authority to implement consumer protection measures, I must consider: (1)

whether each PEG provision is a consumer protection law; and, if so, (2) whether

there is anything within Federal Cable Law that specifically preempts it.

b. The Individual PEG Provisions

i. Channel Placement and Basic Tier

Requirements

LD 1371 adds a new subsection to the State’s consumer protection law for

cable, requiring cable operators to carry PEG channels on the basic tier and

prohibiting cable operators from separating PEG channels numerically from other

local broadcast channels or changing the numbers assigned to PEG channels unless

agreed to by the originator. 30-A M.R.S. § 3010(5-A). Section 3010(5-A) also requires

cable operators to restore PEG channels that have been moved from their previous

channel numbers without the consent of the originator.14

I agree with the State that the channel placement requirements are consumer

protection laws.15 In enacting the channel placement provisions, the Maine

14 As discussed above, LD 1371 also amends 30-A M.R.S. § 3008 to require franchising authorities

to include in their franchise agreements a requirement that PEG channels “be carried in the same

manner and numerical location sequence as are the local broadcast channels originating from the State

and carried on the cable television system pursuant to [30-A M.R.S. § 3010(5-A)].” 2019 Me. Laws, c.

245, § 3.

15 Because Federal Cable Law does not define “consumer protection,” I consider how that term is

commonly understood. See FCC v. AT&T Inc., 562 U.S. 397, 403 (2011) (“When a statute does not

define a term, we typically give the phrase its ordinary meaning.”) (internal quotation marks omitted);

Marrero-Garcia v. Irizarry, 33 F.3d 117, 123 (1st Cir. 1994) (applying “common understanding” of the

term “consumer,” because the term was not defined by law). Consumer protection is “the protection of

buyers of goods and services against low quality or dangerous products and advertisements that

deceive people.” Consumer Protection, Cambridge Dictionary, https://dictionary.cambridge.org/

us/dictionary/english/consumer-protection (last visited Mar. 11, 2020).

Legislature was responding to consumer complaints that they could not locate PEG

channels after cable operators removed them from the low number stations that they

had long occupied and relocated them to digital Siberia. Decl. of Anthony Vigue ¶¶ 4–

5, 9. Public participation in and engagement with local government declined when

the PEG channels were relocated. Decl. of Christopher Hall ¶¶ 11–12 (ECF No. 28).

The State, by requiring that PEG channels be placed near the local broadcast

channels and on the basic tier, is exercising its police power to ensure that the PEG

channels—considered vital to an informed citizenry—are widely and easily

accessible. Anyone who has missed the first ten minutes of a television program

because she was scrolling through the channels in search of it knows that the process

can diminish the quality of the viewing experience. As such, the channel placement

requirements qualify as consumer protection laws.

Having found that the PEG channel placement requirements are consumer

protection measures, I must now decide whether the requirements are “specifically

preempted” by any provision of Federal Cable Law. See 47 U.S.C. § 552(d). The

Plaintiff argues that the State’s requirement that PEG channels be carried on the

basic tier conflicts with a federal cable rate regulation found at 47 U.S.C. § 543(b)(7),

and with provisions that specify channel placement requirements for local

commercial television stations and noncommercial educational television stations

found at 47 U.S.C. §§ 534(b)(6), 535(g)(5). Mot. 10. I address each argument in turn.

The Plaintiff argues that “under federal law, the only cable systems that may

be required to carry PEG channels on their ‘basic service tier’ are those that are not

subject to ‘effective competition.’ ” Mot. 10. Section 543 authorizes states to regulate

rates charged by cable operators not subject to effective competition. Section 543(b)(7)

provides that cable systems that lack effective competition must provide a “separately

available basic service tier” with certain minimum components, including PEG

programming. 47 U.S.C. § 543(b)(7). The Plaintiff asserts that, because Maine is

subject to effective competition, § 543(b)(7) is inapplicable and conflicts with the

requirement that PEG channels be carried on the basic tier. Mot. 10. But, the federal

requirement that cable systems not subject to effective competition must include PEG

channels on the basic tier, says nothing about whether states may require cable

operators subject to effective competition to carry PEG channels on the basic tier.16

Section 543(b)(7) therefore does not “specifically preempt[]” the State from requiring

PEG channels to be carried on the basic tier.

Similarly, the Plaintiff argues that the channel placement provisions are

preempted because Congress enacted channel placement requirements for local

commercial television stations and noncommercial educational television stations in

16 To the extent there is any ambiguity, it is appropriate to look to the legislative history. The

House Report on § 543(b)(7) states:

With respect to PEG access channels, it is not the Committee’s intent to modify the

terms of any franchise provision either requiring or permitting the carriage of such

programming on a tier of service other than the basic service tier.

H.R. Rep. 102-628 at 85 (1992). While this legislative history does not definitively provide that states

can require cable operators subject to effective competition to put PEG channels on the basic tier, it

does reflect an understanding that franchising authorities could and did in some instances require

PEG programming to be on a specific tier, and it shows that Congress did not wish to interfere with

those requirements. See In Re Implementation of Section of the Cable Television Consumer Protection

and Competition Act of 1992 Rate Regulation, 8 FCC Rcd 5631, 5738 (1993) (notwithstanding

§ 543(b)(7), “franchising authorities may require carriage of PEG channels on a non-basic tier”).

§§ 534(b)(6) and 535(g)(5), respectively, but did not do so for PEG channels in § 531.

Mot. 10 (citing Russello v. United States, 464 U.S. 16, 23 (1983) (Where Congress

“includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”) (internal quotation marks

omitted)). Again, Congress’s decision to require specific channel placement for certain

classes of stations says nothing about a state or franchising authority’s right to

require specific channel placement for PEG stations.17 Because the Plaintiff has

shown me no provision of Federal Cable Law that specifically prohibits the State from

enacting the channel placement requirements as a consumer protection measure, I

conclude that they are not preempted.

ii. HD/SD Requirements

LD 1371 amends Maine’s cable consumer protection statute to require cable

operators to carry PEG channels in both HD format and SD format in the same

manner that local broadcast channels are provided. 30-A M.R.S. § 3010(5-B).

As to the question of whether the HD/SD requirements are consumer

protection laws, I consider the evidence that cable operators are down-converting

PEG channels’ programming transmitted in HD format to SD format, resulting in a

smaller, grainier picture than other channels. Decl. of Anthony Vigue ¶ 21. The effect

17 Congress treated PEG channels (where operational details were left to local authorities)

differently from local commercial and noncommercial television stations (where Congress imposed

detailed operational requirements on cable operators). Congress perceived a need to protect the latter

class of stations by applying national standards, and it required their carriage on cable system

according to strict rules. But Congress left PEG channels in the hands of local authorities who could

best set requirements for their use.

is that viewers “skip over” PEG channels. Id. ¶ 23. Better picture quality will improve

not only the visibility but the credibility of PEG channels with subscribers. See Decl.

of Patrick Bonsant ¶ 10 (ECF No. 27); Decl. of Andrew Collar ¶ 6 (ECF No. 29); Decl.

of William Bridoeo ¶ 6 (ECF No. 35). Ensuring that PEG channel signals are not

downgraded and that PEG channels have picture quality comparable to almost all of

the other channels directly relates to the quality of PEG programming. As such, I

conclude that the HD/SD requirements are appropriately considered consumer

protection laws.

The Plaintiff contends that 47 U.S.C. § 544(e), which deals with technical

standards, specifically preempts the HD/SD requirements. Section 544(e) provides in

full:

Within one year after October 5, 1992, the Commission shall prescribe

regulations which establish minimum technical standards relating to

cable systems’ technical operation and signal quality. The Commission

shall update such standards periodically to reflect improvements in

technology. No 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). The Plaintiff argues that requiring cable operators to retransmit

PEG channels in HD either imposes a “condition . . . [on] a cable system’s use of . . .

transmission technology” or is a “signal quality” issue within the realm of the FCC.

In either case, according to the Plaintiff, § 544(e) specifically preempts the HD/SD

requirements. Mot 11–12. The State counters that HD/SD are not “transmission

technologies” at all.18 Even if they are, the State contends that the requirement that

18 The Plaintiff’s Reply claims that “Maine says that HD is not a ‘technology.’ ” Reply. 6–7 (citing

Opp’n 16). This grossly misstates the State’s argument. See Opp’n 16 (“First, plaintiff cites no support

cable operators retransmit PEG channels in HD and SD does not “ ‘prohibit,

condition, or restrict’ a cable operator’s use of [a transmission] technology” because

cable operators are already using HD technology to deliver virtually all channels to

subscribers. Opp’n 17. In response to the Plaintiff’s argument that HD/SD is a signal

quality issue, the State argues that § 544(e) only mandates that the FCC set

minimum technical standards with regard to signal quality, language that does not

vest the FCC with exclusive authority over signal quality. Opp’n 17.19

To begin, the Plaintiff offers little evidentiary support and no expert guidance

for its contention that HD/SD is a “transmission technology.” The affidavits that the

Plaintiff submitted describe SD as a “transmission format” or a “technical format”

and do not assert that HD/SD is a transmission technology. Decl. of Adam Falk

¶¶ 24–25, 38; Decl. of Mark Reilly ¶¶ 20, 22–23; Rebuttal Decl. of Mark Reilly ¶ 8

(ECF No. 51-1). In contrast, the State’s affiant claims:

for the proposition that requiring PEG channels to be provided in HD format is the regulation of a

‘transmission technology.’ In fact, HD is not a ‘transmission technology.’ ”); id. (“HD and SD simply

refer to the resolution of the video, and HD programs can be transmitted by different technologies,

including, for example, by fiber optic lines and coaxial cables and by both analog and digital signals.

[Decl. of Anthony Vigue] ¶ 26. HD is not a ‘transmission technology.’ ”).

19 The State also contends that § 544(e) does not apply to requirements imposed on PEG

channels, as provided for in § 531. The State cites City of Dearborn v. Comcast of Michigan III, Inc.,

No. 08-10156, 2008 WL 5084197, at *2 (E.D. Mich. Nov. 24, 2008), where the court addressed whether

a local franchising authority could require Comcast to retransmit PEG channels in digital or analog

format. The Court concluded that § 544(e)’s specific limitation on state and local franchising

authorities’ requirements on “subscriber equipment or transmission technology” did not trump

§ 531(c)’s language allowing franchising authorities to enforce any requirement contained in a

franchise agreement. Id. (“Because 47 U.S.C. § 544(e) does not affect section 531, it does not preempt

Plaintiffs’ ability to enforce PEG channel requirements in their franchise agreements.”). Dearborn is

distinguishable. The present case involves whether a state can unilaterally enact a consumer

protection law applicable to all existing franchises under § 552. Dearborn involved a franchising

authority’s right to enforce terms in a negotiated franchise agreement. Because I conclude that the

Plaintiff has not established that LD 1371 regulates transmission technology, I need not decide

whether Dearborn is correct that § 544(e) does not apply to any requirements on PEG channels.

HD is a broadcast standard for the resolution of the picture that the

viewer sees . . . . HD is not a “transmission technology.” Transmission

technology refers to the method by which the signal travels from the

source to the viewer, for example, by a fiber optic line or a coaxial cable

or by an analog or digital signal. HD programs can be transmitted by

different technologies, including, for example, fiber optic lines and

coaxial cables and by both analog and digital signals.

Decl. of Anthony Vigue ¶ 26.

The FCC has acknowledged that the line between impermissible regulations

of “transmission technology,” as prohibited by 47 U.S.C. § 544(e), and permissible

regulations of “facilities and equipment,” as provided for in 47 U.S.C. § 544(b), is a

difficult one to draw. In Re Implementation of Cable Act Reform Provisions of the

Telecommunications Act of 1996, Report and Order, 14 FCC Rcd 5296, 5356–57 ¶ 141.

The FCC has stated:

“Transmission technology” is not a defined term in the Communications

Act nor does the legislative history help to define its breadth. Rather,

Congress appears to have used the phrase in the everyday sense in

which it has been used in discussions of communications policy issues.

A review of the usage of the phrase indicates that it has been frequently

used to include both the transmission medium, i.e. microwave, satellite,

coaxial cable, twisted pair copper telephone lines, and fiber optic

systems, and the specific modulation or communications format, i.e.

analog or digital communications. Based on the foregoing, we believe,

for example, that local authorities may not control whether a cable

operator uses digital or analog transmissions nor determine whether its

transmission plant is composed of coaxial cable, fiber optic cable, or

microwave radio facilities.

Id. at 5356–57 ¶ 141; see also In Re Implementation of Cable Act Reform Provisions

of Telecommunications Act of 1996, 17 FCC Rcd 7609, 7610 ¶ 4 (2002). While the FCC

seems to believe that “transmission technology” is broader than Mr. Vigue

represented, the FCC does not say anything about whether HD/SD is a transmission

technology.20 Based on the evidence before me, I can only conclude that HD/SD is not

a “transmission technology” as that term is used in § 544(e).

Perhaps the Plaintiff did not attempt to introduce evidence on transmission

technology because, as it concedes in its briefing, “Congress has made clear that the

carriage of programming in HD is a ‘[s]ignal quality’ issue.” Mot. 11.21 The Plaintiff

argues that § 544(e) gives the FCC the exclusive right to set both the ceiling and floor

for signal quality, leaving no room for state regulations.

Assuming HD technology is a “signal quality” issue, § 544(e) does not

“specifically preempt[]” Maine’s consumer protection law. Congress demonstrated

that it knows how to restrict state authority in § 544(e), and it did so with regard to

“subscriber equipment” and “transmission technology.” It also demonstrated that it

considered the issue of “signal quality.” See 47 U.S.C. § 544(e). The fact that “signal

quality” is not included with “subscriber equipment or any transmission technology”

in the list of things a state cannot “prohibit, condition, or restrict,” leads me to

20 The Plaintiff claims that the FCC has held that § 544(e) “prohibits a franchising authority

from requiring a cable operator to transmit programming in a particular ‘format’ and from ‘controlling

whether a cable operator uses’ a particular format for ‘transmissions.’ ” Mot. 11 (ECF No. 3). However,

the FCC reports cited by the Plaintiff say nothing about whether HD/SD is a transmission technology.

21 To support this claim, the Plaintiff cites 47 U.S.C. § 534(b)(4)(B), a subsection of the provision

on carriage of local commercial television signals dealing with “signal quality,” which contains a

provision that states: “At such time as the Commission prescribes modifications of the standards for

television broadcast signals, the Commission shall initiate a proceeding to establish any changes in

the signal carriage requirements of cable television systems necessary to ensure cable carriage of such

broadcast signals of local commercial television stations which have been changed to conform with

such modified standards.” 47 U.S.C. § 534(b)(4)(B). The Plaintiff also cites a House Report that states

“ ‘advanced television’ includes ‘the authorization of broadcast high definition television (HDTV).’ ”

Mot. 12.

conclude that § 544(e) does not specifically preempt the HD/SD requirements if they

do regulate signal quality.22

The Plaintiff bears the burden of establishing specific preemption, and it has

failed to show that the HD/SD requirements are regulations of transmission

technology or that the requirements are impermissible regulations of signal quality.

As such they are not specifically preempted by 47 U.S.C. § 544(e).

iii. Programming Guide Requirements

LD 1371 amends the State’s cable consumer protection statute to require that

cable operators assist PEG channel originators with using the electronic

22 Although I specifically asked at oral argument what the FCC’s minimum technical standards

were, the Plaintiff failed to demonstrate that the HD/SD requirements exceed the standards set by the

FCC.

THE COURT: So what has the FCC adopted as far as signal quality for cable providers?

MR. SYMONS: They—they adopt—signal quality includes things like the—the—

making sure you’re transmitting all the bits in a bit stream in a particular way, not—

all this is all digital now so—.

THE COURT: But it is not like, okay, you have to be at 1000 by 700 pixels or—.

MR. SYMONS: No.

THE COURT: -- it doesn't go to that level?

MR. SYMONS: No. . . . [W]hat counts as signal quality from the FCC’s standpoint is

the beginning and end of signal quality regulation. So, you know, to the extent the FCC

says you’ve got to transmit in, you know, 19.2 kilobits per second standard in order to

provide a signal, that’s—you know, they— the cities couldn’t come in and say, no, it

should be 25 kilobits per second, that’s better.

Tr. of Oral Arg. 71:22–72:14. The technical standards on signal quality seem to be set forth in 47 C.F.R.

§ 76.605. That provision does not mention the term “high definition television” or “HDTV,” and the

highly technical standards contained therein are not understandable without expert assistance. As

such, even were I to take Mr. Symon’s representations as a proffer of evidence, I still cannot tell

whether the State’s HD requirement exceeds the current minimum standard for signal quality set by

the FCC.

programming guide to identify, view, select, and record PEG channels in the same

manner as local broadcast channels. 30-A M.R.S. § 3010(5-B).

As to whether the programming guide requirements fall within the category of

consumer protection legislation, the evidence shows that, unlike other channels

provided by the cable operators, PEG channels and their programming are not

adequately identified in the electronic programming guide. Decl. of Anthony Vigue

¶¶ 11–16; Decl. of William Giroux ¶ 5 (ECF No. 26); Decl. of Steve Eldridge ¶ 6 (ECF

No. 30). “In this age of hundreds of available channels, an electronic program guide

is, effectively, the only way that subscribers can figure out what is available to watch.”

Decl. of Anthony Vigue ¶ 11. As with the channel placement requirements, a

consumer’s ability to locate programming easily relates to the quality of the viewing

experience. Ensuring that consumers can access PEG channels is an appropriate

subject for consumer protection legislation.

The Plaintiff posits that the programming guide provision is preempted

because it is either a “cable service” as defined by 47 U.S.C. § 522(6)23 or an

“information service” as defined by 47 U.S.C. § 153(24).24 If a programming guide

constitutes a cable service, then the Plaintiff contends the programing guide

23 Under Federal Cable Law, “cable service” includes “subscriber interaction, if any, which is

required for the selection or use of such video programming or other programming service.” 47 U.S.C.

§ 522(6)(B).

24 “The term ‘information service’ means the offering of a capability for generating, acquiring,

storing, transforming, processing, retrieving, utilizing, or making available information via

telecommunications, and includes electronic publishing, but does not include any use of any such

capability for the management, control, or operation of a telecommunications system or the

management of a telecommunications service.” 47 U.S.C. § 153(24).

requirements are preempted by § 544(f), which prohibits states from imposing

“requirements regarding the provision or content of cable services, except as

expressly provided in this subchapter.” 47 U.S.C. § 544(f)(1). As I have already

discussed, § 544(f)(1) is aimed at ensuring that government officials do not dictate the

specific programming that cable operators must provide. See supra Section I.A.2;

House Report 98-934 at 4663. But PEG channels are an exception to Federal Cable

Law’s general concern with government regulation of content. In the PEG domain,

cable operators have no editorial control “over any public, educational, or

governmental use of channel capacity,” see 47 U.S.C. § 531(e), and it is the franchising

authority that has editorial control over content.25 Because cable operators lack

editorial control over the use of PEG channels, requiring cable operators to allow PEG

channels access to the programming guide does not specifically conflict with § 544(f)

as understood in the overall context of Federal Cable Law.

If a programming guide is an information service, the Plaintiff contends that

the programming guide requirement is preempted by § 544(b)(1)’s requirement that

franchising authorities may not “establish requirements for video programming or

other information services.” Mot. 13 (citing 47 U.S.C. § 544(b)(1)). As discussed above,

25 Franchising authorities are generally allowed to regulate in the area of facilities and

equipment but not in the area of content. 47 U.S.C. § 544(b)(1) (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(f) (franchising authorities “may not

impose requirements regarding the provision or content of cable services”). The term “services” in

Federal Cable Law has been persuasively interpreted to refer to content or subject matter. RCN Corp

v. Newtown Twp., No. 02-CV-9361, 2004 WL 315175 (E.D. PA. Feb. 11, 2004). Thus the use of the term

“services” in § 531(c) is a strong indication that Congress intended franchising authorities to have

editorial control over their own PEG channels. This interpretation squares with § 531(e)’s removal of

editorial control from cable operators.

§ 544(b)(1) applies only to franchising authorities, not states. Congress knows how to

distinguish between states and franchising authorities, and it does so frequently in

other sections of the Federal Cable Act. See supra n.12. The State is imposing the

electronic programming guide requirement directly on cable operators and is not

acting as a franchising authority. Therefore, I conclude that § 544(b)(1) does not

“specifically preempt[]” the electronic programming guide provision. See 47 U.S.C.

§ 552(d).

C. Preemption Conclusion

Because I find that the Plaintiff has not established that any of the contested

provisions in LD 1371 are preempted by Federal Cable Law, I go on to address the

Plaintiff’s argument that the PEG provisions violate the First Amendment.

II. First Amendment

The Plaintiff argues that the PEG provisions violate the First Amendment

rights of cable operators because the law limits cable operators’ editorial discretion

over how to retransmit PEG channels and should be subject to strict scrutiny. Mot.

15–17. The State disagrees.26 Opp’n 21–23.

The threshold question in a First Amendment challenge is whether

government action infringes on a plaintiff’s First Amendment rights. See Turner I,

512 U.S. at 636. The First Amendment, applied to the State through the Fourteenth

26 The State understandably misreads the Plaintiff’s Motion as challenging the constitutionality

of PEG channels in general. Opp’n 21–22. The Plaintiff did state that the federal PEG requirements

are constitutionally suspect, see Mot. 15, but the Plaintiff later clarified that it is not challenging the

constitutionality of the federal PEG requirements. Reply 9 n.13. I note that the Court of Appeals for

the District of Columbia Circuit has upheld the federal PEG provisions against a facial First

Amendment challenge. Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 973 (D.C. Cir. 1996).

Amendment, provides that the State “shall make no law . . . abridging the freedom of

speech.” U.S. Const. amend. I.

A. Cable Operators’ General First Amendment Rights

Generally, cable operators have editorial discretion, protected by the First

Amendment, to decide what channels and programming to provide to subscribers and

how to do so. Turner I, 512 U.S. at 636. In Turner I, the Supreme Court wrote that

“[t]here 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 press27

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. (quotation marks, citations, and alternations omitted). Turner I addressed

whether Federal Cable Law provisions that require cable operators to carry the

signals of certain local broadcast television stations (“must-carry provisions”)

violated the First Amendment rights of cable operators and programmers. Id. at 636–

37. 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 concluded that intermediate scrutiny was the appropriate level of review

27 The Plaintiff does not mount a First Amendment challenge based on the freedom of the press.

and that the must-carry provisions survived intermediate scrutiny. Turner Broad.

Sys., Inc. v. FCC (“Turner II”), 520 U.S. 180, 185 (1997).

B. Cable Operators’ Editorial Discretion as Applied to PEG

Channels

Notwithstanding the recognition of cable operators’ First Amendment editorial

discretion in Turner I, Federal Cable Law expressly prohibits cable operators from

“exercis[ing] any editorial control over any public, educational, or governmental use

of channel capacity . . . .” 47 U.S.C. § 531(e). For PEG channels, Congress secured the

reins of editorial control in the hands of local franchising authorities. 47 U.S.C.

§ 531(c), (e).28

In Denver Area Education Telecommunications Consortium, Inc. v. FCC, the

Supreme Court addressed the constitutionality of the 1992 amendments to Federal

Cable Law that gave cable operators the right to prohibit obscene programming on

leased channels29 and on PEG channels. Denver Area Educ. Telecomms. Consortium,

Inc. v. FCC, 518 U.S. 727 (1996). A plurality of the Court upheld the provision as it

applied to leased channels but struck down the provision as it applied to PEG

channels. One “significant[]” difference between leased and PEG channels was that

“cable operators have not historically exercised editorial control” over PEG channels.

28 Congress considered the “narrowly designed access requirements” for public, educational,

governmental, and limited third parties necessary to protect “the First Amendment right of the

viewers and listeners to a diversity of information sources,” while leaving “cable operator’s editorial

discretion” intact over the remaining channels, which constituted the “vast majority” of cable’s

bandwidth. House Report 98-934 at 4671–73.

29 Federal Cable Law creates leased access channels, a limited number of channels set aside for

lease by persons unaffiliated with the cable operators and who are not subject to cable operators’

editorial control. 47 U.S.C. § 532; House Report 98-934 at 4687.

Id. at 761 (plurality). In contrast, by allowing cable operators to prohibit offensive

content on leased channels, Congress was “restoring to cable operators a degree of

the editorial control” that they traditionally held over leased-access channels. Id. at

747 (plurality).

In Denver, three members of the Supreme Court stated that cable operators’

First Amendment rights were “nonexistent, or at least much diminished” in the PEG

realm because of the historical practice. 518 U.S. at 761 (plurality). Justices Kennedy

and Ginsburg, who did not join the plurality opinion, went further. They explained

that cable operators’ editorial discretion over PEG channels “never existed.” Id. at

792–93 (Kennedy, J., concurring). The First Amendment

editorial discretion of a cable operator is a function of the cable franchise

it receives from local government. . . . [I]t is the franchise—the

agreement between the cable operator and the local government—that

allocates some channels to the full discretion of the cable operator while

reserving others for public access.

In providing public access channels under their franchise agreements,

cable operators therefore are not exercising their own First Amendment

rights.

Id. (Kennedy, J., concurring).

Section 531(e) provides that “a cable operator shall not exercise any editorial

control over any public, educational, or governmental use of channel capacity

provided pursuant to this section.” 47 U.S.C. § 531(e) (emphasis added). Congress

“believe[d] that it [was] integral to the concept of the use of PEG channels that such

use be free from any editorial control or supervision by the cable operator.” House

Report 98-934 at 4684. In the leased channel context, Congress enacted a narrower

provision: “A cable operator shall not exercise any editorial control over any video

programming provided pursuant to this section, or in any other way consider the

content of such programming.” 47 U.S.C. § 532(c)(2). These distinctions are important

for evaluating the Plaintiff’s claim that cable operators have at least some First

Amendment interests in the PEG channel realm.

C. Analysis

The Plaintiff acknowledges that its members “may not exercise editorial

control over the content of PEG programming.” Mot. 16 (citing 47 U.S.C. § 531(e))

(emphasis added). But, as just discussed, § 531(e) is broader than the Plaintiff

asserts. As such, it comfortably covers matters relating to PEG channel placement,

format, and programming guides. These are matters dealing with the “use” of PEG

channel capacity, and thus they are outside of cable operators’ general editorial

control. See 47 U.S.C. § 531(e). The Plaintiff cites Riley v. National Federation of the

Blind of N.C., Inc., 487 U.S. 781, 790–91 (1998), for the proposition that “[t]he First

Amendment mandates that [courts] presume that speakers, not the government,

know best both what they want to say and how to say it.” Mot. 16. But here it is the

franchising authorities, not the cable operators, who are the speakers that get to

decide what they want to say and how they want to say it.30

30 To the extent that the State is infringing on editorial discretion, it would be that of local

franchising authorities. The Plaintiff initially brought this action against two franchising authorities

and the Attorney General, see Compl. ¶¶ 12–13, 26, 136, but dismissed the franchising authorities

after the Attorney General agreed that he was a proper defendant and the franchising authorities

agreed that they would not enforce LD 1371 while this litigation was pending. See Stipulation of

Dismissal (ECF No. 50).

The Plaintiff argues that cable operators still retain “editorial discretion in

deciding how to use scarce bandwidth.” Mot. 16.31 The Plaintiff’s reference to “scarce

bandwidth” is ironic. In Turner I, cable operators argued that regulations of cable

should be subjected to heightened scrutiny and not the rational basis review that

applied to regulations of broadcast television.32 Turner I, 512 U.S. at 637–39. The

Turner I Court, in deciding to subject the must-carry provisions to intermediate

scrutiny, “relied on the inapplicability of the spectrum scarcity problem to cable.”

Denver, 518 U.S. at 748 (plurality) (discussing Turner I).

While the Plaintiff asserts an interest in editorial control over “scarce

bandwidth,” it does not provide any actual evidence that bandwidth is scarce. Only

eleven municipalities served by Comcast have elected to designate PEG channels,

and only one-third of Charter’s 292 municipalities have designated PEG channels.

Decl. of Mark Reilly ¶ 18; Decl. of Adam Falk ¶ 21. In the Standish area, Spectrum

has assigned channel numbers ranging from 4 to 2,010, but only 439 channels appear

to be currently in use and only four are designated for PEG use. Def.’s Ex. A (ECF

31 Retransmitting a channel in HD requires four times the bandwidth of retransmitting it in SD.

Decl. of Adam Falk ¶ 26 (ECF No. 3-1); Decl. of Mark Reilly ¶ 24 (ECF No. 3-2).

32 The Court explained the rationale for “rational basis” review for laws affecting broadcast

stations as follows:

As a general matter, there are more would-be broadcasters than frequencies available

in the electromagnetic spectrum. And if two broadcasters were to attempt to transmit

over the same frequency in the same locale, they would interfere with one another’s

signals, so that neither could be heard at all. The scarcity of broadcast frequencies thus

required the establishment of some regulatory mechanism to divide the

electromagnetic spectrum and assign specific frequencies to particular broadcasters.

Turner Broad. Sys., Inc. v. FCC (“Turner I”), 512 U.S. 622, 637–38 (1994) (citations omitted).

No. 25-1) (listing of channels offered). Similarly, Spectrum offers roughly 378

channels in Augusta, only three of which are PEG channels. Def.’s Ex. B (ECF No.

25-2) (listing of channels offered).

The Plaintiff’s affiants make generic statements that increased bandwidth

required by HD for PEG channels will take away from the total bandwidth available.

Decl. of Adam Falk ¶ 40; Decl. of Mark Reilly ¶ 22. But there is no evidence that

complying with the PEG provisions will significantly impact total bandwidth or that

it will affect the cable operators’ ability to provide other services. Comcast’s Senior

Vice President Mark Reilly avers that:

Depending on franchising authorities’ demands to add additional PEG

channels, an option under many of their current franchise agreements,

transmitting PEG channels in HD and SD, as required by the Maine

Act, could require Comcast to take channel capacity away from other

programming networks, or from other services such as broadband

Internet service, and use it for PEG channels.

Decl. of Mark Reilly ¶ 30 (emphasis added). Mr. Reilly’s doomsday scenario is

unsubstantiated and speculative. From the Reilly affidavit, I infer that, at the

existing number of PEG channels, there will be no need for Comcast to take channel

capacity away from other services. Based on the record before me, there is no evidence

that franchising authorities will demand additional PEG channels. Nor is it evident

that more municipalities will demand PEG channels in the future. See Compl. ¶ 50

& n.8 (ECF No. 1) (discussing availability of PEG channel content on municipal

websites).

While there might be some circumstances in which PEG franchising

requirements could raise constitutional issues,33 the Plaintiff has not met its burden

of showing that the State’s PEG provisions infringe on cable operators’ First

Amendment rights. By enacting the PEG provisions, the State simply seeks to put

PEG channels on equal footing with the vast majority of other channels. It seeks to

have PEG channels returned to channel placements that they long held. It seeks

retransmission in HD, if programming is provided by the originator in HD. It seeks

inclusion in the electronic programming guide. These are rules governing the “use” of

PEG channels, and the Plaintiff has not shown that they infringe on any First

Amendment interest belonging to cable operators.34

33 Cf. Time Warner, 93 F.3d at 973 (“PEG franchise conditions . . . [could] raise serious

constitutional issues” if, for example, “a local authority . . . require[d] as a franchise condition that a

cable operator designate three-quarters of its channels for ‘educational’ programming, defined in detail

by the city council.”).

34 Even if the PEG provisions do spill over onto the cable operators’ editorial discretion to control

where things appear in their channel lineup or how things appear in the programming guide, I would

conclude that intermediate rather than strict scrutiny would apply. See Turner I, 512 U.S. at 662

(applying intermediate scrutiny to must-carry provisions and sustaining law 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.’ ”) (citing United States v. O’Brien,

391 U.S. 367, 377 (1968)); cf. Time Warner, 93 F.3d at 971. Under that standard, I would conclude that

the continued viability of PEG channels is an important State interest unrelated to the suppression of

free expression. I would also conclude that the PEG provisions serve those State interests and are

narrowly tailored to achieve those interests. See Decl. of Anthony Vigue ¶¶ 4–5, 9, 11–19, 21 (ECF No.

25); Decl. of William Giroux ¶ 5 (ECF No. 26); Decl. of Steve Eldridge ¶ 6 (ECF No. 30); Decl. of Patrick

Bonsant ¶ 10 (ECF No. 27); Decl. of Andrew Collar ¶ 6 (ECF No. 29); Decl. of William Bridoeo ¶ 6 (ECF

No. 35).

CONCLUSION

For the reasons stated above, I DENY the Plaintiff’s claims for declaratory

and injunctive relief (ECF No. 1). The Clerk shall enter judgment for the Defendant.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 11th day of March, 2020.