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`
`
`
`
`No. 20-1104
`
`
`UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
`
`
`Comcast of Maine/New Hampshire, Inc.; A&E Television Networks LLC; C-Span;
`CBS Corp.; Discovery, Inc.; Disney Enterprises, Inc.; Fox Cable Network
`Services, LLC; NBCUniversal Media, LLC; New England Sports Network, LP;
`Viacom Inc.,
`Plaintiffs-Appellees,
`-v.-
`Janet Mills, in her official capacity as the Governor of Maine; Aaron Frey, in his
`official capacity as the Attorney General of Maine,
`Defendants-Appellants,
`City of Bath, Maine; Town of Berwick, Maine; Town of Bowdoin, Maine; Town
`of Bowdoinham, Maine; Town of Brunswick, Maine; Town of Durham, Maine;
`Town of Eliot, Maine; Town of Freeport, Maine; Town of Harpswell, Maine;
`Town of Kittery, Maine; Town of Phippsburg, Maine; Town of South Berwick,
`Maine; Town of Topsham, Maine; Town of West Bath, Maine; Town of
`Woolwich, Maine,
`Defendants.
`
`On Appeal From the District of Maine (Case No. 1:19-cv-410-NT)
`
`
`BRIEF OF AMICUS CURIAE WARNERMEDIA, LLC IN SUPPORT
`OF PLAINTIFFS-APPELLEES
`
`
`
`Kelly M. Klaus
`MUNGER, TOLLES & OLSON LLP
`560 Mission St., 27th floor
`San Francisco, CA 94105
`(415) 512-4017
`kelly.klaus@mto.com
`
`
`
`
`
`
`Donald B. Verrilli, Jr. (No. 50901)
`Elaine J. Goldenberg (No. 1193807)
`MUNGER, TOLLES & OLSON LLP
`1155 F Street, 7th Floor
`Washington, DC 20004
`(202) 220-1100
`donald.verrilli@mto.com
`elaine.goldenberg@mto.com
`
`
`
`

`

`
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`
`
`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Federal Rules of Appellate Procedure 26.1(a) and 29(a)(4),
`
`WarnerMedia, LLC states that its parent corporation is AT&T Inc., a publicly
`
`traded company. No other publicly traded entity owns 10% or more of
`
`
`
`WarnerMedia’s stock.
`
`
`
`
`
`i
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`

`

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`
`
`TABLE OF CONTENTS
`
`
`
`Page
`INTEREST OF AMICUS CURIAE .......................................................................... 1
`INTRODUCTION ..................................................................................................... 1
`ARGUMENT ............................................................................................................. 3
`I. Enjoining Enforcement Of Chapter 308 Is Strongly In The
`Public Interest ........................................................................................ 3
`A. Enforcement Of Chapter 308 Would Inflict Significant
`Harm On WarnerMedia And The General Public In
`Maine........................................................................................... 3
`B. Enforcement Of Chapter 308 Would Violate The
`Constitutional Rights Of WarnerMedia And Similarly
`Situated Entities ........................................................................16
`II. Plaintiffs Have Established A Likelihood Of Success On The
`Merits ...................................................................................................23
`CONCLUSION ........................................................................................................27
`CERTIFICATE OF SERVICE ................................................................................28
`CERTIFICATE OF COMPLIANCE .......................................................................29
`
`
`
`
`
`
`ii
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`

`

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`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`FEDERAL CASES
`Corporate Techs., Inc. v. Harnett,
`731 F.3d 6 (1st Cir. 2013) ..................................................................................... 3
`Edenfield v. Fane,
`507 U.S. 761 (1993) ............................................................................................ 22
`Greater New Orleans Broad. Ass’n, Inc. v. United States,
`527 U.S. 173 (1999) ............................................................................................ 23
`Leathers v. Medlock,
`499 U.S. 439 (1991) ............................................................................................ 20
`Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue,
`460 U.S. 575 (1983) ............................................................................................ 20
`NCTA v. Broadcast Music, Inc.,
`772 F. Supp. 614 (D.D.C. 1991) ........................................................................... 6
`Oneok, Inc. v. Learjet, Inc.,
`575 U.S. 373 (2015) ............................................................................................ 26
`Reed v. Town of Gilbert, Ariz.,
`135 S. Ct. 2218 (2015) ........................................................................................ 21
`Sindicato Puertorriqueño de Trabajadores v. Fortuño,
`699 F.3d 1 (1st Cir. 2012) ................................................................................... 16
`Sorrell v. IMS Health Inc.,
`564 U.S. 552 (2011) ............................................................................................ 19
`Turner Broad. Sys., Inc. v. FCC,
`512 U.S. 622 (1994) .....................................................................................passim
`Turner Broad. Sys., Inc. v. FCC,
`520 U.S. 180 (1997) ...................................................................................... 17, 26
`United States v. O’Brien,
`391 U.S. 367 (1968) ............................................................................................ 21
`
`
`
`iii
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`

`

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`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`FEDERAL STATUTES
`47 U.S.C. § 544(f) .............................................................................................. 24, 25
`FEDERAL RULES
`Federal Rule of Civil Procedure 65(a)(2) ................................................................ 24
`Federal Rule of Appellate Procedure 26.1(a) ............................................................. i
`Federal Rule of Appellate Procedure 29 ................................................................. i, 1
`OTHER AUTHORITIES
`Kenneth Basin, The Business of Television (2019) ........................................... 4, 6, 7
`Booz Allen Hamilton, The à la Carte Paradox: Higher Consumer
`Costs and Reduced Programming Diversity (Jul. 2004) .............................. 13, 14
`Gregory Crawford & Ali Yurukoglu, The Welfare Effects of Bundling
`in Multichannel Television Markets, 102(2) American Economic
`Review 643 (Apr. 2012) ..................................................................................... 15
`FCC, Report on the Packaging and Sale of Video Programming
`Services to the Public (Nov. 18, 2004) ......................................................... 14, 15
`The FCC’s Further Report on À La Carte Pricing of Cable Television
`(Mar. 7, 2006) ..................................................................................................... 15
`Gen. Accounting Office, Issues Related to Competition and
`Subscriber Rates in the Cable Television Industry (Oct. 2003),
`available at https://www.gao.gov/new.items/d048.pdf ...................................... 15
`Kagan Insights, À la Carte Pricing Makes Great Theory, But TV Ch.
`Bundling Tough to Beat (Dec. 15, 2005) ............................................................ 15
`Raymond Lee Katz et al., À la Smart?, Bear Stearns (Mar. 29, 2004) ................... 15
`Jon Nathanson, The Economics of a Hit TV Show, Priceonomics (Oct.
`17, 2013) ............................................................................................................. 12
`
`
`
`iv
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`

`

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`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Bruce M. Owen & John M. Gale, Cable Networks: Bundling,
`Unbundling, and the Costs of Intervention (Jul. 2004) ...................................... 13
`Mark Sweeney, Will the New TV Golden Age Produce the First $20m
`per Show Series?, The Guardian (Feb. 11, 2018) ............................................... 13
`Harold Vogel, Entertainment Industry Economics (9th ed. 2015) .......................... 12
`
`
`
`
`
`
`v
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`

`

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`INTEREST OF AMICUS CURIAE
`Amicus WarnerMedia, LLC is a leading media and entertainment company
`
`that creates and distributes an array of premium and popular news, sports, and
`
`entertainment content to audiences across the United States and the world.
`
`As a programmer that licenses video networks and services for distribution
`
`to consumers by cable operators in Maine, WarnerMedia would be directly and
`
`negatively affected if the Maine statute at issue, Chapter 308, were enforced.
`
`Chapter 308 provides that, “[n]otwithstanding any provision in a franchise, a cable
`
`system operator shall offer subscribers the option of purchasing access to cable
`
`channels, or programs on cable channels, individually.” P.L. 2019, ch. 308.
`
`WarnerMedia respectfully submits this brief to inform the Court of the significant
`
`harm that Chapter 308 would visit on the company, similarly situated
`
`programmers, and the viewing public in Maine, as well as to discuss various bases
`
`on which plaintiffs are likely to succeed in challenging the statute.1
`
`INTRODUCTION
`
`
`
`The district court’s order enjoining Maine from enforcing Chapter 308 is in
`
`the public interest and essential for the protection of First Amendment rights.
`
`
`1 Pursuant to Rule 29, amicus states that no counsel for a party authored this brief in
`whole or in part, and that no person other than amicus or its counsel made a monetary
`contribution intended to fund its preparation or submission. All parties consented to
`the filing of this brief.
`
`
`
`1
`
`

`

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`Enforcement of that statute would inflict significant harm on WarnerMedia and
`
`other non-party programmers, as well as on the general public in Maine. As to the
`
`programmers, Chapter 308 would throw their business relationships into disarray,
`
`deprive them of revenue, damage their goodwill, and likely expose them to
`
`litigation. And as to the general public, Chapter 308 would decrease their choices
`
`and increase their costs.
`
`
`
`Chapter 308 also violates the First Amendment rights of WarnerMedia and
`
`similarly situated non-parties, and that constitutional violation likewise inflicts
`
`irreparable harm on the public. Chapter 308 interferes with WarnerMedia’s
`
`protected speech—communication through the exercise of editorial discretion to
`
`carefully shape disparate content into networks and services. By requiring cable
`
`operators to snip particular content out of the coherent whole in which a
`
`programmer has placed it, Chapter 308 infringes the programmer’s First
`
`Amendment rights just as a law requiring a newsstand to sell single articles by
`
`cutting up a newspaper would infringe the newspaper’s rights. Chapter 308 also
`
`impermissibly singles out for special burdens programmers like WarnerMedia that
`
`license content to cable operators.
`
`
`
`In addition, plaintiffs have shown a strong likelihood of success on the
`
`merits. Although the district court correctly recognized that plaintiffs are likely to
`
`succeed on the singling-out aspect of their First Amendment claim, the court
`
`
`
`2
`
`

`

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`mistakenly rejected plaintiffs’ editorial-discretion First Amendment theory. The
`
`court also mistakenly rejected plaintiffs’ argument that Chapter 308 is preempted
`
`by the federal Cable Act, which includes an express-preemption provision that
`
`Congress enacted precisely to prevent the kind of disruption that laws like Chapter
`
`308 would wreak on the complex and federally regulated television industry.
`
`ARGUMENT
`Enjoining Enforcement Of Chapter 308 Is Strongly In The Public
`Interest
`
`I.
`
`
`
`
`
`Enforcement Of Chapter 308 Would Inflict Significant Harm On
`WarnerMedia And The General Public In Maine
`
`A.
`
`
`
`1. Harm to WarnerMedia and similarly situated programmers.
`
`If enforced, Chapter 308 would impose significant harm on WarnerMedia
`
`and similarly situated programmers. The harm to WarnerMedia and others that are
`
`not parties is properly taken account of in assessing the effect “that an injunction
`
`(or the withholding of one) may have on the public interest.” Corporate Techs.,
`
`Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013).
`
`
`
`a. WarnerMedia’s business. Among other entertainment offerings,
`
`WarnerMedia operates branded video programming networks and services that
`
`consist of carefully curated content. Those networks and services are in turn
`
`licensed for distribution by cable operators and other multi-channel video
`
`programming distributors (“MVPDs”) in Maine and nationwide. WarnerMedia’s
`
`
`
`3
`
`

`

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`branded channels distributed via cable operators in Maine include CNN, HLN,
`
`TBS, TNT, TruTV, TCM, Cartoon Network/Adult Swim, Boomerang, HBO, and
`
`Cinemax.
`
`
`
`Each of those brands has a distinct identity that is directly associated with
`
`the substance, selection, and arrangement of its content. Depending on the brand
`
`in question, that content ranges from sports and news to scripted and unscripted
`
`television series. For example, CNN is globally recognized as a source of news
`
`and related programming. As a result, Comcast’s cable subscribers generally know
`
`what to expect when they decide to watch CNN—and the same is true with respect
`
`to WarnerMedia’s other networks and services. See Kenneth Basin, The Business
`
`of Television 9 (2019) (“Business of Television”).
`
`
`
`WarnerMedia invests substantial resources and efforts to create original
`
`content, but the programming on WarnerMedia’s networks and services also
`
`includes content that is created and owned by third parties. In order to obtain the
`
`right to include that third-party content in WarnerMedia’s video offerings, the
`
`company enters into highly detailed, heavily negotiated licensing and production
`
`agreements with the content owners. Those agreements include specific terms
`
`governing compensation, program presentation, advertising, and other matters.
`
`
`
`The agreements also specifically delineate how WarnerMedia can distribute
`
`the relevant content. When WarnerMedia obtains a license to distribute a program
`
`
`
`4
`
`

`

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`owned by a third party, it is often the case that the license covers only distribution
`
`in connection with a particular network or service. Accordingly, when
`
`WarnerMedia is licensed to exhibit a program on HBO, the company is not
`
`necessarily free to exhibit the program on TBS instead. Nor is the company free to
`
`distribute every program and title appearing on its networks and services as an
`
`individual unit, untethered from a subscription to a network or service, much less
`
`to sublicense to others the right to engage in such stand-alone distribution.2 Those
`
`limitations apply equally to the sale of the individual program to consumers;
`
`WarnerMedia generally cannot sublicense to a cable operator the right to distribute
`
`for sale to the public on an à la carte basis an individual program that has been
`
`developed or acquired for a particular network. See MPA Amicus Br. 7-8.
`
`
`
`WarnerMedia meticulously selects and arranges its original content and the
`
`content it licenses from others in order to define and populate its branded video
`
`offerings. As to each piece of content, WarnerMedia makes carefully
`
`conceptualized editorial judgments about whether to include that content on a
`
`particular network and how the content best fits in with the other programming on
`
`that network. Accordingly, when viewers watch the network on a “linear” feed—
`
`
`2 Under some circumstances, WarnerMedia makes third-party programming
`available on an “on demand” basis that is tethered to a subscription (such as to
`HBO). See p. 7, infra.
`
`
`
`5
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`

`

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`that is, with programs appearing in a particular order and at particular times—they
`
`are seeing programs that have been expertly shaped into an aesthetically coherent
`
`whole. That process is critical to the reputation among viewers that the
`
`WarnerMedia networks and services have painstakingly cultivated over many
`
`years.
`
`
`
`WarnerMedia earns returns on its considerable investments in content by
`
`distributing its video networks and services in a variety of ways, including via
`
`cable operators and other MVPDs. See Business of Television 13. That necessarily
`
`requires exercising, and licensing to others the right to exercise, the rights that
`
`WarnerMedia itself invests in and pays to acquire.
`
`WarnerMedia’s networks and services accordingly enter into license
`
`agreements, known as “affiliation agreements,” with MVPDs. See generally
`
`NCTA v. Broadcast Music, Inc., 772 F. Supp. 614, 621 (D.D.C. 1991). Those
`
`complex, detailed agreements, which are intensively negotiated, define the
`
`MVPDs’ rights to offer WarnerMedia’s networks and services to the MVPDs’ own
`
`subscribers. In granting those rights, the networks and services necessarily abide
`
`by the license terms they have obtained from third parties.
`
`
`
`In particular, the affiliation agreements have provisions setting clear and
`
`specific parameters on the manner in which MVPDs are authorized to distribute
`
`WarnerMedia’s networks and services. Typically, such an agreement grants an
`
`
`
`6
`
`

`

`
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`MVPD such as a cable operator the right to disseminate the programmer’s linear
`
`networks as a whole. Sometimes, the agreement specifies the “tier” of
`
`programming—that is, a group of channels offered together to cable subscribers—
`
`that will include a particular channel.
`
`
`
`In addition, an affiliation agreement may provide an MVPD with the right to
`
`offer some individual content from a WarnerMedia network or service to
`
`customers “on demand,” so that the content is available at a time of the customer’s
`
`own choosing and not merely as part of the linear telecast. Those “on demand”
`
`rights can be highly specific and subject to a variety of restrictions. See Business
`
`of Television 199. In general, the MVPD is not permitted to offer “on demand”
`
`programming for sale on an individual basis. Rather, the MVPD may selectively
`
`offer that programming only in conjunction with a customer’s existing
`
`subscription—for example, to HBO or to a cable package including TBS. And
`
`even beyond that condition, a number of other limits on an MVPD’s right to
`
`provide “on demand” programming to customers are standard in some agreements,
`
`including an availability window that defines the period during which the MVPD
`
`may provide access to many “on demand” programming offerings; advertising
`
`requirements and restrictions; and user restrictions.
`
`
`
`b. Harm to WarnerMedia. Enforcement of Chapter 308 would materially
`
`interfere with a large number of licensing and affiliation agreements across the
`
`
`
`7
`
`

`

`
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`industry, including WarnerMedia’s, and would undermine WarnerMedia’s ability
`
`to continue to invest in and distribute content.
`
`Chapter 308 provides that “a cable system operator shall offer subscribers
`
`the option of purchasing access to cable channels, or programs on cable channels,
`
`individually.” P.L. 2019, ch. 308 (emphasis added). Thus, if a cable operator
`
`offers any cable channel, the operator must offer that channel, and the individual
`
`programs carried on it, à la carte. That requirement still exists under the district
`
`court’s limiting interpretation of Chapter 308, pursuant to which customers must
`
`subscribe to a basic tier (consisting primarily of local broadcast stations) to be
`
`eligible for à la carte access. See Add. 21-22.
`
`
`
`Chapter 308 therefore conflicts with the many existing and complex
`
`licensing agreements through which WarnerMedia acquires the rights to
`
`disseminate content owned by others. The law would require cable operators to
`
`offer programs in a manner that WarnerMedia did not and could not necessarily
`
`authorize under its agreements with third-party licensors. Those licensors do not
`
`permit WarnerMedia to sell their content on an individual basis or to allow cable
`
`operators to do so; rather, many such licensors retain rights to their content for
`
`themselves (or for sale to others), as the copyright law entitles them to do. See
`
`MPA Amicus Br. 10-13.
`
`
`
`8
`
`

`

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`
`
`The Maine statute also conflicts with the affiliation agreements that remain
`
`binding on cable operators in Maine. First, when an affiliation agreement permits
`
`a cable operator to offer “on demand” viewing of a particular program in
`
`conjunction with an existing subscription to a network or service, the agreement
`
`often allows such viewing to occur only after or simultaneous with the program’s
`
`premiere on the complementary linear network. The economic underpinning of
`
`such a contractual provision is that the monetary value of an individual program
`
`(or episode of a program)—and thus the potential return to the parties that create
`
`and distribute that content—is generally highest during the program’s first public
`
`dissemination. That economic reality is particularly true with respect to an
`
`advertising-supported network or service. Yet Chapter 308 discards that common
`
`contractual limitation entirely, because the statute essentially requires cable
`
`operators to offer to basic-tier subscribers “on demand” viewing of any program
`
`contemporaneously with its appearance on the linear feed.
`
`
`
`Second, particularly for ad-supported networks, it is often the case that an
`
`affiliation agreement permits a cable operator to offer on-demand access only with
`
`respect to a selection of episodes from a television series, not to the entire series—
`
`a so-called “windowing” restriction. That type of restriction encourages viewers to
`
`watch other episodes from that series on the linear feed, which maximizes
`
`advertising revenue. But Chapter 308 takes no account of windowing restrictions;
`
`
`
`9
`
`

`

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`its mandatory language could be understood to instruct cable operators simply to
`
`set such restrictions aside.
`
`
`
`Third, an affiliation agreement often places restrictions on the mode of
`
`presentation of “on demand” programming. WarnerMedia’s networks and services
`
`carefully select and curate every piece of content they include to create an offering
`
`that reflects their branding and aesthetic vision, so as to draw subscribers and other
`
`viewers to the networks and services themselves (and their “on demand”
`
`complements) rather than to particular programs. Mode-of-presentation
`
`restrictions are intended to preserve consumer goodwill and the value of the
`
`networks and services that fund the creation and licensing of the underlying
`
`content. Again, Chapter 308’s mandate for à la carte distribution takes no account
`
`of such restrictions.
`
`
`
`Finally, there is a substantial percentage of video programming on
`
`WarnerMedia’s networks and services that affiliation agreements bar from ever
`
`being offered “on demand” by cable operators. That reflects, in part, limitations
`
`put in place by content owners (for example, sports leagues); WarnerMedia simply
`
`cannot give cable operators rights that WarnerMedia itself does not possess.
`
`
`
`In light of the many conflicts between Chapter 308 and the contractual
`
`obligations that bind cable operators, if Chapter 308 were enforceable then those
`
`operators would face a difficult choice: complying with the statute and violating
`
`
`
`10
`
`

`

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`their affiliation agreements, or ceasing to offer channels and shows to customers in
`
`Maine altogether (because Chapter 308 does not require à la carte offerings of
`
`content that is not otherwise being offered). In either event, WarnerMedia would
`
`suffer serious harm.
`
`
`
`If cable operators were to choose to violate their affiliation agreements with
`
`WarnerMedia, then WarnerMedia’s business relationships would be thrown into
`
`disarray—likely irreparably so. WarnerMedia would suffer damage to its goodwill
`
`with third-party licensors who never authorized “on demand” viewing of their
`
`content in the way that Chapter 308 contemplates (or at all). Going forward,
`
`WarnerMedia likely would have to try to renegotiate any license for content that
`
`will be exhibited in Maine, including the license rates. WarnerMedia would not
`
`get the full benefit of the bargain from its existing affiliation agreements.
`
`WarnerMedia would be deprived of some portion of the existing audience in
`
`Maine for its networks and services, thus depriving it of revenues and otherwise
`
`reducing the value of its brands. And given all of those disruptions, WarnerMedia
`
`could well find itself embroiled in expensive and time-consuming litigation with
`
`cable operators, third-party licensors, or others. Similarly situated programmers
`
`would almost certainly suffer the same types of harms.
`
`
`
`If cable operators were to choose instead to drastically reduce their offerings
`
`to Maine consumers so as to evade the mandate of Chapter 308, WarnerMedia
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`
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`11
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`would likewise suffer significant harm for which it could not later be compensated.
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`In that scenario, viewership of the company’s networks and services in Maine, and
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`the associated revenue, would likely plunge. That level of interference with the
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`revenue from existing programming would create uncertainty about future
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`revenues, and could undermine the company’s willingness to take the risks
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`necessary to invest in the creation and distribution of new content, see Harold
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`Vogel, Entertainment Industry Economics 35 (9th ed. 2015); Jon Nathanson, The
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`Economics of a Hit TV Show, Priceonomics (Oct. 17, 2013), thus creating a vicious
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`cycle for WarnerMedia’s businesses.
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`2. Harm to the general public.
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`Enforcement of Chapter 308 would also harm the general public by reducing
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`the amount and quality of programming, while increasing consumers’ costs. For
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`that reason, too, the district court’s preliminary injunction is strongly in the public
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`interest.
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`As an initial matter, one possible response of cable operators in Maine to
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`enforcement of Chapter 308 could be to stop offering certain content altogether.
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`See pp. 10-12, supra. That approach would directly decrease the programming
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`available to Maine cable consumers.
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`But the negative effects of enforcement of Chapter 308 on the availability of
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`content for consumers would not depend on whether cable operators took that step.
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`12
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`WarnerMedia and its licensors depend on the revenue received from their licensing
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`agreements to fund the creation, production, and dissemination of content, and
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`Chapter 308 would disrupt those arrangements in a variety of ways. That
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`disruption would in turn give rise to confusion and (most likely) litigation. See p.
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`11, supra. As a result, the revenues available to continue to undertake those
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`activities would decrease. Accordingly, as one expert analysis of an à la carte
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`system concluded, “even the most established networks would likely have to
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`reduce expenditures on programming.” Booz Allen Hamilton, The à la Carte
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`Paradox: Higher Consumer Costs and Reduced Programming Diversity 2 (July
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`2004) (“The à la Carte Paradox”); see, e.g., Bruce M. Owen & John M. Gale,
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`Cable Networks: Bundling, Unbundling, and the Costs of Intervention 8-9 (July
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`2004).
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`That decrease in revenues and expenditures would make it more difficult to
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`fund the creation of the kind of high-quality, high-budget programming that is
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`popular with a wide audience or draws significant critical attention and acclaim.
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`See, e.g., Mark Sweeney, Will the New TV Golden Age Produce the First $20m per
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`Show Series?, The Guardian (Feb. 11, 2018). Notably, if the creation of that
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`content is economically unsound in the first instance, the content is not lost solely
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`to cable customers; it is lost to every member of the public.
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`13
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`Enforcement of Chapter 308 would also have a deleterious effect on less
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`popular or niche programming, the loss of which would be keenly felt by certain
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`viewers. Combining content by licensing it in channels or tiers facilitates the
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`production and distribution of diverse programming, because consumers ultimately
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`support collectively the costs of all of the programming in a channel or tier. See
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`MPA Amicus Br. 24-25. If programs and channels must be offered à la carte
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`instead, then niche programming—which is unlikely to be successfully marketed
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`on its own—will lose viewership and advertising revenue. As a result, investment
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`in niche programs and channels may decrease, and some or all of that content may
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`cease to exist. See, e.g., FCC, Report on the Packaging and Sale of Video
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`Programming Services to the Public 118 (Nov. 18, 2004) (“2004 FCC Report”) (à
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`la carte requirement would likely doom significant number of networks), available
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`at https://docs.fcc.gov/public/attachments/DOC-254432A1.pdf; id. at 6, 45-46, 56;
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`The à la Carte Paradox 2 (“[a]s many as half to three