throbber
Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 1 of 35 PageID #: 896
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
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` Plaintiffs,
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`COMCAST OF MAINE/NEW
`HAMPSHIRE, INC., et al.
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`v.
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`JANET MILLS, et al.,
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`Docket No. 1:19-cv-410-NT
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` Defendants.
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`ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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`This year, Maine enacted LD 832, which requires cable operators to allow cable
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`subscribers to purchase cable channels and programs individually. Maine is the first
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`state in the nation to enact such an à la carte mandate. Plaintiff Comcast of
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`Maine/New Hampshire (“Comcast”) currently bundles most of its channels,
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`requiring subscribers who wish to view specific programming to receive more
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`channels and programs than they may need or want. Comcast and a number of video
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`programmers (collectively, the “Plaintiffs”) claim LD 832 is facially unconstitutional
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`because it is preempted by federal law and because it violates the First Amendment.
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`Before me is the Plaintiffs’ motion for a preliminary injunction. For the reasons that
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`follow, I GRANT the Plaintiffs’ motion.
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`LEGAL STANDARD
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`In determining whether to grant a preliminary injunction, I must consider:
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`(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
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`parties; and (iv) the effect, if any, that an injunction (or the withholding
`of one) may have on the public interest.
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`Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013).
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`The Plaintiffs bear the burden of establishing that these factors weigh in their
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`favor. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
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`“[T]he burdens at the preliminary injunction stage track the burdens at trial.” Reilly
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`v. City of Harrisburg, 858 F.3d 173, 180 (3d Cir. 2017), as amended (June 26, 2017)
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`(internal quotation marks omitted). In the context of a First Amendment claim, the
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`Plaintiffs have the burden to show that the state law infringes on their First
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`Amendment rights. Id. at 180 n.5 (citing Goodman v. Ill. Dep’t of Fin. & Prof’l
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`Regulation, 430 F.3d 432, 438 (7th Cir. 2005)). If the Plaintiffs make this showing,
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`then the State must justify its restriction on speech under the appropriate
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`constitutional standard. Id. (citing Thalheimer v. City of San Diego, 645 F.3d 1109,
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`1116 (9th Cir. 2011)).
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`DISCUSSION
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`Likelihood of Success
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`A party seeking a preliminary injunction must establish that it is likely to
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`I.
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`succeed on the merits of its claims. The likelihood of success on the merits prong has
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`been described as the sine qua non of the four factors for establishing a preliminary
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`injunction. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.
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`2002) (“[I]f the moving party cannot demonstrate that he is likely to succeed in his
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`quest, the remaining factors become matters of idle curiosity.”)
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`The Plaintiffs argue that the à la carte mandate is preempted by the federal
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`Cable Act, 47 U.S.C. §§ 521 et seq.,1 and that the law violates their rights under the
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`First Amendment. I discuss each argument in turn.
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`A.
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`Preemption
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`Article VI of the Constitution provides that the laws of the United States “shall
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`be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any
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`State to the Contrary notwithstanding.” U.S. Const. art VI, cl. 2. It has long been
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`recognized that “state law that conflicts with federal law is without effect.” Cipollone
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`v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation marks omitted). The
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`Supreme Court has made clear that:
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`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.”
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`Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator
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`Corp., 331 U.S. 218, 230 (1947)).
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`Congress may preempt state law either directly—through an express
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`preemption provision in a federal statute—or implicitly. Grant’s Dairy—Me., LLC v.
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`Comm’r of Me. Dep’t of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st Cir. 2000). The
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`Plaintiffs maintain that the federal Cable Act does both.
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`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”).
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`3
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`1.
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`Express Preemption
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`“Congressional intent is the touchstone of any effort to map the boundaries of
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`an express preemption provision.” Tobin v. Fed. Express Corp., 775 F.3d 448, 452 (1st
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`Cir. 2014) (citations omitted). Because there exists a “presumption against the pre-
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`emption of state police power regulations,” the Supreme Court has instructed lower
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`courts to narrowly interpret express preemption provisions. Medtronic, 518 U.S. at
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`485 (quoting Cipollone, 505 U.S. at 518).
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`The Plaintiffs contend that provisions of the Cable Act—47 U.S.C. § 544(f) and
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`47 U.S.C. § 544(a) and (b)—expressly preempt LD 832. Accordingly, I consider
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`whether Congress intended to expressly preempt states from imposing à la carte
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`mandates on cable operators under those sections.
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`a.
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`Section 544(f)
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`Section 544(f) prohibits states from imposing “requirements regarding the
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`provision or content of cable services,” unless expressly allowed by the Cable Act. 47
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`U.S.C. § 544(f)(1). The Plaintiffs argue that the à la carte mandate is a “requirement[]
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`regarding the provision or content of cable services,” preempted by the plain meaning
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`of § 544(f). Pls.’ Mot. for Preliminary Injunction (“Mot.”) 7 (ECF No. 14). The State
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`urges me to adopt a narrower definition of the term “provision” in § 544(f), relying on
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`the structure of the Cable Act, its legislative history, and cases that have interpreted
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`the provision. State’s Opp’n to Mot. (“Opp’n”) 6–13 (ECF No. 69).
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`i.
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`Interpreting § 544(f)
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`(I). The Plain Meaning of § 544(f)
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`Section 544(f) provides:
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`4
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 5 of 35 PageID #: 900
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`[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].
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`47 U.S.C. § 544(f)(1). In enacting LD 832, the State has attempted to impose
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`requirements regarding how cable operators must provide programming. If § 544(f)
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`is considered in isolation, then by its plain meaning, LD 832 would be preempted.
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`
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`The Supreme Court has recently explained the relevant rules of statutory
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`construction:
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`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).
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`King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (parallel citations omitted).
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`(II). Section 544(f) in Context
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`“Interpretation of a word or phrase depends upon reading the whole statutory
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`text, considering the purpose and context of the statute, and consulting any
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`precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546
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`U.S. 481, 486 (2006). Taking into account the context of § 544(f), at least one other
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`section of the Cable Act suggests that Congress did not intend the phrase “provision
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`. . . of cable services” to be read broadly. Section 544(e), which was also enacted as
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`part of the 1984 Cable Act, provides that “[n]o State or franchising authority may
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`prohibit, condition, or restrict a cable system’s use of any type of subscriber
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`equipment or any transmission technology.” 47 U.S.C. § 544(e). A restriction on
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`transmission technology or subscriber equipment would fall within the plain meaning
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`of a “requirement[] regarding the provision . . . of cable services,” rendering § 544(e)
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`unnecessary if “provision” is read broadly. See McDonnell v. United States, 136 S. Ct.
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`2355, 2369 (2016) (rejecting interpretation that would render other parts of the
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`statute unnecessary).
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`Additionally, as the State points out, § 552(d) provides that the Cable Act
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`should not “be construed to prohibit any State or any franchising authority from
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`enacting or enforcing any consumer protection law, to the extent not specifically
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`preempted by this subchapter.” 47 U.S.C. § 552(d). If “provision” is interpreted
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`broadly, it would appear to specifically preempt the State from enacting any
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`consumer protection law involving the cable industry,2 since such laws would all be
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`“requirements regarding the provision . . . of cable services.” 47 U.S.C. § 544(f). If all
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`consumer protections laws were preempted by § 544(f), there would be no point to
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`having § 552(d).3 In sum, § 544(e) and § 552(d) strongly suggest that Congress did not
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`intend “provision” in 544(f) to have a broad meaning.
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`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.”).
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`Plaintiffs attempt to limit the scope of § 552(d) by saying that it applies only to “improper
`3
`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.
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 7 of 35 PageID #: 902
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`(III). Legislative History
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`Plain meaning “ ‘sometimes must yield if its application would bring about
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`results that are antithetical to Congress’s discernible intent.’ ” United States v.
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`Gordon, 875 F.3d 26, 34 (1st Cir. 2017) (quoting In re Hill, 562 F.3d 29, 32 (1st Cir.
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`2009)). Because the term “provision or content of cable services,” considered in the
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`broader context of the Cable Act, is ambiguous, it is appropriate to look to the
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`legislative history to attempt to understand Congress’s intent. Miner v. Dep’t. of
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`Navy, 562 U.S. 562, 572 (2011) (“[C]lear evidence of congressional intent may
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`illuminate ambiguous text.”).
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`In the 1984 Cable Act, Congress sought to establish a national policy that
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`clarified the then-existing system of local, state, and federal regulation of cable
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`television. H.R. Rep. No. 98-934, reprinted in 1984 U.S. Code Cong. & Admin. News
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`(“House Report” or “H. Rep.”) 4655, 4656. Congress recognized the fundamental
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`importance of developing a “robust marketplace of ideas” containing a “wide variety
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`of perspectives from many different types of program providers.” Id. To accomplish
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`these goals, it required cable companies to make space for public access channels and
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`third-party commercial access. See 47 U.S.C. §§ 531–532.
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`The House Report shows that Congress was concerned about the First
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`Amendment rights of cable operators to control the content of their programming.
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`The House Report repeatedly emphasizes the need to ensure that government
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`officials not be able to “dictate the specific programming to be provided over a cable
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`system.” H. Rep. at 4663, 4695; see also id. at 4656, 4668–69, 4671, 4673–74, 4706,
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`4716 (discussing impact of Cable Act on various First Amendment interests). To that
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 8 of 35 PageID #: 903
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`end, Congress set limits on the regulatory powers of the Federal Communications
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`Commission (“FCC”), franchising authorities, and states. 47 U.S.C. § 544. It allowed
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`franchising authorities to set requirements for facilities and equipment but limited
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`their rights to “establish requirements for video programming or other information
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`services.” 47 U.S.C. § 544(b). Similarly, in § 544(f), it prohibited federal agencies,
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`states, and franchising authorities from imposing “requirements regarding the
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`provision or content of cable services.” 47 U.S.C. § 544(f). The legislative history
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`suggests that the Cable Act as a whole—and § 544(f) specifically—was concerned with
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`preventing government officials from controlling the content of cable programming.
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`(IV). Cases Interpreting § 544(f)
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`The cases that have addressed the meaning of § 544(f) have nearly
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`unanimously adopted a limited interpretation of the section. In 1989, the Court of
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`Appeals for the District of Columbia Circuit addressed a challenge by cable operators
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`to the FCC’s “syndicated exclusivity” or “syndex” rules. United Video, Inc. v. FCC, 890
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`F.2d 1173 (D.C. Cir. 1989). The rules permitted local broadcast stations to enforce
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`their exclusive licenses with syndicated television program providers against cable
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`operators that received the programs from an out-of-market signal and transmitted
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`the programs back into the local broadcast station’s market. Id. at 377. The D.C.
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`Circuit determined that the syndex rules did not run afoul of § 544(f), because that
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`provision only prohibited requirements that were content-based. Id. at 1189. In
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`reaching this conclusion, the D.C. Circuit considered the plain meaning of § 544(f) to
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`be ambiguous and looked to the legislative history. It wrote:
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`8
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 9 of 35 PageID #: 904
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`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.
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`Id. at 1188. The examples provided in the House Report “suggest that the key is
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`whether a regulation is content-based or content-neutral.” Id. at 1189.
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`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.
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`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.
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`Id.
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`The Plaintiffs argue that United Video is distinguishable and urge me to reject
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`it. They contend that United Video involved the reasonableness of an agency’s action
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`and not a state preemption claim. It is true that the syndex rules were a requirement
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`imposed by the FCC and that the D.C. Circuit was required to uphold the rules unless
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`they were arbitrary or capricious. The Plaintiffs write: “Applying Chevron, and
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`relying almost exclusively on a single piece of legislative history, the court upheld as
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`reasonable the FCC’s determination that [47 U.S.C. 544(f)] was inapplicable.”4 Reply
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`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
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`9
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 10 of 35 PageID #: 905
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`4 (ECF No. 85). But the D.C. Circuit in United Video went beyond a holding that the
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`FCC’s interpretation was reasonable. Because the FCC had reached its conclusion
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`that § 544(f) did not prohibit syndex rules for a different reason than the court, the
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`D.C. Circuit was required to determine whether “the agency has come to a conclusion
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`to which it was bound to come as a matter of law, albeit for the wrong reason.” United
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`Video, 890 F.2d at 1190 (discussing SEC v. Chenery Corp., 318 U.S. 80 (1943)). Thus,
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`the D.C. Circuit held as a matter of law that the FCC was “bound to say that syndex
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`rules are sufficiently different from the sorts of rules with which Congress was
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`concerned that the statutory phrase ‘requirements regarding the provision or content
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`of cable services’ does not embrace them.” Id. at 1189 (emphasis added).
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`The Plaintiffs also claim that the D.C. Circuit, in dealing with the syndex rules,
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`did not “directly address the manner in which cable services are provided.” Reply 4.
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`Although the syndex rules involved the relationship between the supplier of a
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`syndicated program and a broadcast television station, the rules permitted broadcast
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`stations with exclusive rights to a syndicated program to “forbid any cable television
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`station from importing the program into its local broadcast area from a distant
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`station.” United Video, 890 F.2d at 1176. In other words, the rules had a very direct
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`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.
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`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 11 of 35 PageID #: 906
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`effect on the provision of cable programming, specifically prohibiting cable operators
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`from transmitting an exclusively syndicated program from a distant signal.
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`Subsequent
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`cases have
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`followed United Video.
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`In Storer Cable
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`Communications v. City of Montgomery, a district court found that § 544(f) did not
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`preempt a municipal ordinance aimed at increasing competition in cable services
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`supply. 806 F. Supp. 1518, 1546 (M.D. Ala. 1992).5 The court agreed with United
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`Video’s conclusion that § 544(f) was concerned with content-based requirements.
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`Because the district court found that the Montgomery ordinance did not intrude into
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`the area of content, the court found that the ordinance did not run afoul of § 544(f).
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`Id.
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`In Morrison v. Viacom, Inc., the California Court of Appeal agreed with both
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`United Video and Storer that § 544(f) prohibits only content-based requirements. 52
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`Cal. App. 4th 1514 (1997), as modified on denial of reh’g (Mar. 21, 1997). In Morrison,
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`plaintiffs alleged that a cable operator illegally restrained trade “by making the
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`purchase of broadcast channels a prerequisite for the purchase of satellite cable
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`channels and by making the purchase of both broadcast channels and satellite cable
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`channels a prerequisite for the purchase of premium channels.” Id. at 1518. The state
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`law at issue in Morrison, the Cartwright Act, includes a provision that “expressly
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`prohibits illegal tying arrangements.” Id. at 1524 (citing Cal. Bus. & Prof. Code
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`§ 16727). “Tying arrangements” are defined by case law as “an agreement by a party
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`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).
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`to sell one product but only on the condition that the buyer also purchases a different
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`(or tied) product.” Id. at 1524 (quoting Corwin v. L.A. Newspaper Serv. Bureau, Inc.,
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`4 Cal. 3d 842, 856 (1971)). The court held that § 544(f) did not preempt the Cartwright
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`Act because the state law did not regulate the content of cable services.6 Id. at 1532.
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`The authorities cited by the Plaintiffs do not convince me that I should reject
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`United Video or adopt a broader interpretation of § 544(f). In Cablevision Systems
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`Corp. v. Town of East Hampton, a local franchising authority claimed that a cable
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`operator violated the terms of its franchise agreement by eliminating a “tier” of
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`service that it had previously offered to consumers. 862 F. Supp. 875, 878–79
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`(E.D.N.Y. 1994). The court found that requiring a cable operator to provide a
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`particular tier of programming was preempted by § 544(a) and (b), which provides
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`that franchising authorities may only enforce “requirements contained within the
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`franchise . . . for broad categories of video programming.” § 544(b)(2)(B). The court
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`found that requiring a specific tier was not a requirement for a broad category of cable
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`services but rather an effort to regulate the particular programming offered by the
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`cable operator. East Hampton, 862 F. Supp. at 886. The East Hampton court never
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`addressed preemption under § 544(f). But even if it had, the franchising authority’s
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`requirement in East Hampton would likely have been considered content-based since
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`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).
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`the franchising authority was attempting to dictate the provision of particular
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`programming.
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`Two other cases cited by the Plaintiffs also involved requirements regarding
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`the content—rather than the provision—of cable services. The district court in Time
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`Warner Cable of New York City v. City of New York, held that New York City’s effort
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`to place Fox News on one of its public access channels violated § 544(f). 943 F. Supp.
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`1357, 1391 (S.D.N.Y. 1996), aff’d, 118 F.3d 917 (2d Cir. 1997). The City attempted to
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`require Time Warner Cable to carry Fox News even though Time Warner Cable had
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`decided not to carry the channel. Id. The court found that the City’s action amounted
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`to a content-based regulation. Id. at 1400.
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`Likewise, in Lafortune v. City of Biddeford, the plaintiff challenged a
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`requirement that producers of programs shown on a public access station had to
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`obtain a written release from any person mentioned in a program who was not a
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`public official. No. 01-250-P-H, 2002 WL 823678, at *8 (D. Me. Apr. 30, 2002), report
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`and recommendation adopted, 222 F.R.D. 218 (D. Me. 2004), aff’d, 142 F. App’x 471
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`(1st Cir. 2005). The ordinance would have effectively shut down a local, live call-in
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`program.7 The court stated:
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`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.
`
`
`
`13
`
`

`

`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 14 of 35 PageID #: 909
`
`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).
`
`
`
`
`
`14
`
`

`

`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 15 of 35 PageID #: 910
`
`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
`
`
`
`15
`
`

`

`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 16 of 35 PageID #: 911
`
`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
`
`
`
`16
`
`

`

`Case 1:19-cv-00410-NT Document 91 Filed 12/20/19 Page 17 of 35 PageID #: 912
`
`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). Unit

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