United States Court of Appeals
`For the First Circuit
`
`
`
`No. 20-1104
`
`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.
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`[Hon. Nancy Torresen, U.S. District Judge]
`
`
`
`Before
`Lynch and Lipez, Circuit Judges.
`
`
` Judge Torruella heard oral argument in this matter and
`participated in the semble, but he did not participate in the
`issuance of the panel's opinion in this case. The remaining two
`panelists therefore issued the opinion pursuant to 28 U.S.C.
`§ 46(d).
`
`
`
`
`
`

`

`
`
`
`
`
`
`
`Christopher C. Taub, Deputy Attorney General of the State of
`Maine, with whom Aaron M. Frey, Attorney General of the State of
`Maine, was on brief, for appellants.
`Matthew A. Brill, with whom Melissa Arbus Sherry was on brief,
`for appellees.
`Kelly M. Klaus, Donald B. Verrilli, Jr., and Elaine J.
`Goldenberg on brief for WarnerMedia, LLC, amicus curiae.
`Corbin K. Barthold and Cory L. Andrews on brief for Washington
`Legal Foundation, amicus curiae.
`John Ulin, James S. Blackburn, and Oscar Ramallo on brief for
`Motion Picture Association, Inc., amicus curiae.
`
`
`
`
`
`
`
`February 24, 2021
`
`
`
`
`
`

`

`
`
`LIPEZ, Circuit Judge. Maine passed a law in 2019
`
`requiring cable operators to offer their subscribers the option of
`
`buying access to cable programs and channels individually, rather
`
`than bundled together in a channel or package of channels. A group
`
`of cable operators and programmers sued and sought a preliminary
`
`injunction against enforcement of the law, arguing that it violated
`
`the First Amendment and was preempted by provisions of the federal
`
`Communications Act. The district court granted the preliminary
`
`injunction on First Amendment grounds, and Maine appealed.
`
`For the reasons discussed below, we agree with the
`
`district court that the law implicates the First Amendment and
`
`therefore triggers some form of heightened -- either intermediate
`
`or strict -- judicial scrutiny. We also accept Maine's concession
`
`that, at this point in the litigation, it has not offered enough
`
`evidence in support of the law to survive such scrutiny. We
`
`therefore affirm.
`
`I.
`
`The law at issue is called "An Act to Expand Options for
`
`Consumers of Cable Television in Purchasing Individual Channels
`
`and Programs." 2019 Me. Laws 129th Leg., ch. 308 (codified at Me.
`
`Stat. tit. 30-A, § 3008(3)(F) (2019)) ("Chapter 308" or "the Act").
`
`The sole operative provision of the Act imposed an "à la carte"
`
`requirement on cable operators: "Notwithstanding any provision in
`
`a franchise, a cable system operator shall offer subscribers the
`
`- 3 -
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`

`

`
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`option of purchasing access to cable channels, or programs on cable
`
`channels, individually." Id. As far as the record on appeal
`
`indicates, the accompanying legislative record was sparse. The
`
`district court noted that the Maine Legislature did not hear from
`
`expert witnesses or commission a Maine-specific study to determine
`
`what impact the Act would have on access to cable services.
`
`However, one of the Act's sponsors testified before the
`
`Energy, Utilities, and Technology Committee that he had "submitted
`
`th[e] bill on behalf of Maine's hundreds of thousands of cable
`
`television subscribers," who "[f]or far too long . . . have been
`
`forced to purchase cable TV packages which include dozens of
`
`channels the consumer has no interest in watching." Citing a
`
`Federal Communications Commission ("FCC") survey, the sponsor
`
`reported that the price of an expanded basic cable package had
`
`risen faster than inflation, and, relying on a 2006 FCC report,
`
`suggested that the average cable bill would be thirteen percent
`
`lower if consumers could subscribe to only their preferred
`
`channels. Barry Hobbins, Maine's Public Advocate, also offered
`
`testimony, suggesting that many consumers were frustrated with
`
`their cable providers and would prefer a regime in which they only
`
`paid for the channels they actually watched. Although the Public
`
`Advocate did not formally endorse the Act, he opined that the law
`
`"would go a long way in an attempt to remedy the lack of consumer
`
`choice in the cable marketplace in Maine."
`
`- 4 -
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`

`

`
`
`Before the Act went into effect, a cable operator
`
`(Comcast of Maine/New Hampshire, Inc.) and various cable
`
`programmers (together, "plaintiffs" or "the cable companies")1 sued
`
`the Governor and the Attorney General of Maine ("the state
`
`defendants" or simply "Maine" or "the state")2 in federal district
`
`court, claiming that Chapter 308 violated the First Amendment and
`
`was preempted by various provisions of the federal Communications
`
`Act of 1934, as amended. A few days later, the plaintiffs moved
`
`for a preliminary injunction against enforcement of the Act. The
`
`district court consolidated the trial on the merits with a hearing
`
`on the preliminary injunction motion. See Fed. R. Civ. P.
`
`65(a)(2).
`
`During the district court proceedings, the state
`
`explained in more detail how the Act would be interpreted and
`
`enforced. See Sorrell v. IMS Health Inc., 564 U.S. 552, 563 (2011)
`
`
`1 In general, cable operators own the physical cable
`infrastructure that delivers a signal to viewers; cable
`programmers produce television content and sell or license it to
`cable operators. See Turner Broadcasting System, Inc. v. FCC
`("Turner I"), 512 U.S. 622, 628 (1994). The programmers
`challenging the law here are: 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; and Viacom, Inc. When the distinction between
`the programmers and operators is unimportant, we occasionally
`refer to the combined plaintiffs as just "the cable companies."
`
`2 The plaintiffs also named various Maine municipalities as
`defendants. They were dismissed by a joint stipulation below and
`are not parties to the present appeal.
`
`- 5 -
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`

`

`
`
`(noting that lower courts are "entitled to rely on the [s]tate's
`
`plausible interpretation of the law it is charged with enforcing").
`
`The state pointed out that there is a familiar model for
`
`subscribing to cable TV. Cable programmers (like Disney) compile
`
`individual television programs into linear streams3 of content
`
`called channels (like ESPN). Cable operators (like Comcast) bundle
`
`those channels into various tiers (like Comcast's "Sports &
`
`Entertainment" or "Kids & Family" packages), which customers can
`
`purchase. As written, the Act requires cable operators to provide
`
`subscribers with the option to purchase every cable channel and
`
`television program individually (or "à la carte").4 Hence, a
`
`
`3 A "linear stream," in this context, signifies a continuous
`series of prescheduled programs; it differs from an "on demand"
`arrangement, which allows viewers to watch a program whenever they
`choose.
`See
`Implementation of Section 304 of the
`Telecommunications Act of 1996, Fourth Further Notice of Proposed
`Rulemaking, 25 FCC Rcd. 4303, 4308, ¶ 14 n.43 (Apr. 21, 2010) ("The
`term 'linear programming' is generally understood to refer to video
`programming that is prescheduled by the programming provider. Cf.
`47 U.S.C. § 522(12) (defining 'interactive on-demand services' to
`exclude 'services providing video programming prescheduled by the
`programming provider').").
`
`4 In fact, the Act is written in the disjunctive, requiring
`"the option of purchasing access to cable channels, or programs on
`cable channels." Me. Stat. tit. 30-A, § 3008(3)(F) (emphasis
`added)). But the parties and the district court treated the Act
`as requiring both options. See, e.g., Appellants' Br. at 10
`(explaining that Chapter 308 "requires the unbundling of channels
`and programs" (emphasis added)); Comcast of Me./N.H., Inc. v.
`Mills, 435 F. Supp. 3d 228, 249 n.13 (D. Me. 2019) (explaining
`that Chapter 308 "requires that cable operators offer consumers
`the ability to purchase both individual channels, such as ESPN or
`the Food Network, and individual programs, such as one Monday Night
`Football game or one episode of Chopped" (emphasis added)). We
`
`- 6 -
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`

`

`
`
`customer, instead of having to buy the full "Sports &
`
`Entertainment" package, could pay only for the ESPN channel.
`
`Further, under the law, instead of paying for the entire EPSN
`
`channel, a customer could pay to view a single Red Sox game.
`
`The state also clarified in its briefing that the "à la
`
`carte" option would only be available to customers who already
`
`subscribe to (at least) a basic cable tier or package, in order to
`
`avoid any potential conflict with federal law regulating the basic
`
`tier. See 47 U.S.C. § 543(b)(7). Separately, the state also
`
`acknowledged to the court at the hearing that nothing in the Act
`
`requires a cable operator to charge any particular price for an
`
`individual channel or program. As a result, cable operators could
`
`continue to steer subscribers to bundled tiers by offering
`
`attractive discounts (or, equivalently, by charging high prices
`
`for à la carte options).
`
`After considering the parties' arguments, the district
`
`court granted the motion for a preliminary injunction. See Comcast
`
`of Me./N.H., Inc. v. Mills, 435 F. Supp. 3d 228, 233 (D. Me. 2019).
`
`The court first determined that the Act was not expressly or
`
`impliedly preempted by federal law. Id. at 244. However, the
`
`court found that the Act likely burdened the plaintiffs' First
`
`
`simply follow suit, as neither party has raised this issue on
`appeal.
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`- 7 -
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`

`

`
`
`Amendment rights because, even though it did not impinge on the
`
`plaintiffs' editorial discretion, it nonetheless singled them out
`
`for disfavored treatment. Id. at 245-46. Additionally, the court
`
`concluded that the state had not shown -- at least "[a]t this
`
`initial stage" -- that the Act was likely to achieve its primary
`
`goal: reducing prices and increasing affordable access to cable.
`
`Id. at 249. The court then concluded that the remaining
`
`requirements for a preliminary injunction were satisfied. Id. at
`
`249-50. As part of its determination, the court also reconsidered
`
`the desirability of combining the preliminary injunction hearing
`
`with the merits trial. Because the court was now convinced that
`
`the evidentiary record was not "sufficiently developed" for "a
`
`final determination" on the underlying claims for declaratory and
`
`permanent injunctive relief, it declined to enter final judgment.
`
`Id. at 250. The defendants timely appealed the entry of the
`
`preliminary injunction, and the parties agreed to stay further
`
`proceedings in the district court pending the outcome of the
`
`appeal.
`
`II.
`
`We will uphold a decision to grant a preliminary
`
`injunction unless it constitutes an abuse of discretion. Doe v.
`
`Trs. of Bos. Coll., 942 F.3d 527, 532 (1st Cir. 2019). We review
`
`the district court's findings of fact for clear error and its
`
`conclusions of law de novo. Id.
`
`- 8 -
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`

`

`
`
`In assessing the plaintiffs' request for a preliminary
`
`injunction, the district court found that all four of the relevant
`
`factors (that is, "(1) the movant's likelihood of success on the
`
`merits; (2) the likelihood of the movant suffering irreparable
`
`harm; (3) the balance of equities; and (4) whether granting the
`
`injunction is in the public interest") weighed in favor of granting
`
`the request. Shurtleff v. City of Bos., 928 F.3d 166, 171 (1st
`
`Cir. 2019). On appeal, the state has not challenged the district
`
`court's assessment of the latter three factors or suggested that
`
`any of the district court's factual findings amounted to clear
`
`error. Instead, it takes issue with the district court's
`
`conclusion that the plaintiffs were likely to succeed on the merits
`
`of their First Amendment claim. The state argues that the First
`
`Amendment is not implicated at all. Hence, the standard of review
`
`is mere rational basis, and not some heightened standard of review.
`
`As appellees, the cable companies defend the entry of
`
`the preliminary injunction on both First Amendment and federal
`
`preemption grounds. We can affirm the entry of the preliminary
`
`injunction on any ground supported by the record. See Jennings v.
`
`Stephens, 574 U.S. 271, 276 (2015) (noting that an appellee,
`
`without taking a cross-appeal, can argue for affirmance on any
`
`ground supported by the record, even if it involves an attack on
`
`the reasoning of the lower court). We choose to address the more
`
`thoroughly briefed First Amendment issue, reviewing de novo the
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`- 9 -
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`

`
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`legal conclusions underpinning the district court's analysis. We
`
`do not reach any preemption issues.
`
`Thus framed, our task is narrow. The state candidly
`
`conceded at oral argument that, if the Act triggers the First
`
`Amendment at all, the existing record is insufficient to justify
`
`the law and the state cannot prevail on this appeal. The central
`
`question, then, is whether Chapter 308 likely implicates the First
`
`Amendment rights of cable operators or programmers. If we find
`
`that it does, the action will return to the district court for
`
`consideration of which level of constitutional scrutiny applies,
`
`whether additional, post-enactment evidence can be offered in
`
`support of the law, and potentially even whether, on a more fulsome
`
`record, the state law is preempted.5
`
`Because this is an appeal of a preliminary injunction,
`
`we assess only whether the district court abused its discretion in
`
`finding a likelihood of success on the First Amendment argument.
`
`At the same time, given the fullness of the record on the First
`
`
`5 The district court explicitly reserved the first two of
`these questions. See Comcast of Me./N.H., Inc., 435 F. Supp. 3d
`at 249 n.14 ("Because I reach the conclusion I do, I sidestep the
`question of whether the legislature itself must create a record
`showing that a problem actually exists and that the law is likely
`to solve that problem."); id. at 248 ("Because I ultimately
`conclude that the State has not met its burden of showing that it
`is likely to succeed under intermediate scrutiny, I do not need to
`decide this issue [i.e., whether strict scrutiny applies] at this
`time.").
`
`- 10 -
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`

`

`
`
`Amendment issue, our legal conclusion -- whether the First
`
`Amendment is implicated at all -- will be binding, barring any
`
`unforeseen developments in the factual record below. Under the
`
`law of the case doctrine, a panel decision on a preliminary
`
`injunction motion constitutes binding precedent, at least when the
`
`record before the panel was "sufficiently developed and the facts
`
`necessary to shape the proper legal matrix we[re] sufficiently
`
`clear." Naser Jewelers, Inc. v. City of Concord, 538 F.3d 17, 20
`
`(1st Cir. 2008) (quoting Cohen v. Brown Univ., 101 F.3d 155, 169
`
`(1st Cir. 1996)); see also 18B Charles Alan Wright & Arthur R.
`
`Miller, Federal Practice and Procedure § 4478.5 (2d ed. 2020) ("A
`
`fully considered appellate ruling on an issue of law made on a
`
`preliminary injunction appeal . . . does become the law of the
`
`case for further proceedings in the trial court on remand and in
`
`any subsequent appeal."). For that reason, and for brevity, we
`
`will not refer to "likelihoods" and "probabilities" on the First
`
`Amendment issue.
`
`III.
`
`
`
`
`
`In Turner Broadcasting System, Inc. v. FCC ("Turner I"),
`
`512 U.S. 622 (1994), the Supreme Court explained the applicability
`
`of the First Amendment to the commercial medium of cable
`
`television: "Cable programmers and cable operators engage in and
`
`transmit speech, and they are entitled to the protection of the
`
`speech and press provisions of the First Amendment." Id. at 636
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`- 11 -
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`

`
`
`(citing Leathers v. Medlock, 499 U.S. 439, 444 (1991)). This is
`
`so, the Court reasoned, because whether "[t]hrough 'original
`
`programming or by exercising editorial discretion over which
`
`stations or programs to include in its repertoire,' cable
`
`programmers and operators 'see[k] to communicate messages on a
`
`wide variety of topics and in a wide variety of formats.'" Id.
`
`(quoting City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S.
`
`488, 494 (1986)).
`
`
`
`
`
`However, this observation -- that a cable operator or
`
`programmer can, just like any private citizen or member of the
`
`press, invoke the speech protections of the First Amendment -- is
`
`just an "initial premise." Id. As other circuits have
`
`subsequently observed, a cable company alleging a violation of its
`
`First Amendment rights must still "show that the challenged
`
`government action actually regulates protected speech,"
`
`Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 96 (2d Cir. 2009), or
`
`"interferes with [its] speech rights," Time Warner Entm't Co. v.
`
`FCC, 240 F.3d 1126, 1129 (D.C. Cir. 2001). After all, "without a
`
`plausible allegation that the offensive conduct interferes with
`
`First Amendment rights," a reviewing court "has neither a reason
`
`nor the ability to subject the conduct of the governmental actor
`
`to heightened scrutiny." Cablevision Sys. Corp., 570 F.3d at 96.
`
`Even then, incidental burdens imposed by a law on a
`
`speaker's First Amendment activities are not necessarily enough to
`
`- 12 -
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`
`
`trigger heightened scrutiny under the First Amendment. See Turner
`
`I, 512 U.S. at 640 (noting that "the enforcement of a generally
`
`applicable law may or may not be subject to heightened scrutiny
`
`under the First Amendment"). It is "beyond dispute," for example,
`
`that the government "can subject newspapers to generally
`
`applicable economic regulations without creating constitutional
`
`problems," Minneapolis Star & Trib. Co. v. Minn. Comm'r of Revenue,
`
`460 U.S. 575, 581 (1983), even if their "enforcement against the
`
`press has incidental effects on its ability to gather and report
`
`the news," Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).
`
`Indeed, whole categories of law -- copyright, tax, antitrust, and
`
`labor, just as examples -- impose burdens on the press without
`
`necessarily raising First Amendment hackles. See id. at 669-70;
`
`see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986)
`
`("One liable for a civil damages award has less money to spend on
`
`paid political announcements or to contribute to political causes,
`
`yet no one would suggest that such liability gives rise to a valid
`
`First Amendment claim.").
`
`Turner I and its follow-on case, Turner Broadcasting
`
`System, Inc. v. FCC ("Turner II"), 520 U.S. 180 (1997), illustrate
`
`how these principles apply. At issue in both cases were the "must-
`
`carry" provisions of the Cable Television Consumer Protection and
`
`Competition Act of 1992 ("1992 Cable Act" or "Cable Act"), which
`
`requires cable operators to dedicate some of their channel capacity
`
`- 13 -
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`
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`to carrying local broadcast stations. Turner I, 512 U.S. at 630.
`
`Each case developed a different part of the analysis. Turner I
`
`analyzed which level of heightened First Amendment scrutiny (if
`
`any) applied and concluded that intermediate scrutiny governed.
`
`512 U.S. at 636-62. Turner II, on a more factually developed
`
`record, evaluated the burdens and benefits of the provisions under
`
`intermediate scrutiny. 520 U.S. at 185.
`
`Across the two cases, the Court explained that the "must-
`
`carry" requirements interfered with protected speech because:
`
`cable
`restrain
`provisions
`the
`First,
`operators' editorial discretion in creating
`programming packages by "reduc[ing] the number
`of channels over which [they] exercise
`unfettered control." Second, the rules
`"render it more difficult for cable
`programmers to compete for carriage on the
`limited channels remaining."
`
`
`Turner II, 520 U.S. at 214 (quoting Turner I, 512 U.S. at 637).
`
`The Court also rejected the argument that the "must-carry"
`
`provisions were "nothing more than industry-specific antitrust
`
`legislation" that would only "warrant rational-basis scrutiny."
`
`Turner I, 512 U.S. at 640. That was because "laws that single out
`
`the press, or certain elements thereof, for special treatment 'pose
`
`a particular danger of abuse by the State,' and so are always
`
`subject to at least some degree of heightened First Amendment
`
`scrutiny." Id. at 640-41 (quoting Ark. Writers' Project, Inc. v.
`
`Ragland, 481 U.S. 221, 228 (1987)) (citing City of Los Angeles,
`
`- 14 -
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`

`

`
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`476 U.S. at 496). Given that "the must-carry provisions impose
`
`special obligations upon cable operators and special burdens upon
`
`cable programmers," the Court concluded that "some measure of
`
`heightened First Amendment scrutiny is demanded." Id. at 641
`
`(citing Minneapolis Star & Trib. Co., 460 U.S. at 583).
`
`IV.
`
`Building on Turner I and II, the cable companies identify
`
`two ways in which Chapter 308 allegedly burdens their First
`
`Amendment rights. First, they argue that it constitutes a speaker-
`
`based regulation that "singles out" cable operators' speech for
`
`special, disfavored treatment. Second, they claim it infringes on
`
`cable operators' and programmers' "editorial discretion." Because
`
`we find merit in the "singling out" argument, we need not, and
`
`therefore do not, reach the district court's determination that
`
`the cable companies failed to provide adequate support for their
`
`contention that Chapter 308 also triggers heightened scrutiny
`
`because it impinges on their "editorial discretion."
`
`There is no question that the á la carte requirement
`
`"singles out" in some sense. Chapter 308 applies only to "cable
`
`system operator[s]," and says nothing about direct competitors
`
`like satellite-based operators (e.g., DirectTV and DISH Network)
`
`and internet-based operators (e.g., YouTube TV and Hulu+ Live TV).
`
`Me. Stat. tit. 30-A, § 3008(3)(F). The question is whether Chapter
`
`308's targeted obligation triggers heightened First Amendment
`
`- 15 -
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`
`
`scrutiny under Turner I. The cable companies argue that the
`
`obligation is significant. They point to various kinds of costs
`
`that would be imposed by the law. Some costs would be technical
`
`in nature. Comcast suggests it would need to overhaul its
`
`ordering, distribution, and billing systems. In addition, some
`
`customers have older set-top boxes that cannot deliver á la carte
`
`content. These would have to be replaced with newer digital
`
`equipment. Other potential burdens are legal in nature. Comcast
`
`maintains that many of its existing agreements with programmers
`
`(so-called "affiliation agreements") prohibit á la carte
`
`transmission and would therefore have to be renegotiated.
`
`Against this background, we begin with Turner I's
`
`explanation of when heightened scrutiny applies. The Court's
`
`language is broad and unqualified: "[L]aws that single out the
`
`press, or certain elements thereof, for special treatment . . .
`
`are always subject to at least some degree of heightened First
`
`Amendment scrutiny." 512 U.S. at 640-41 (emphasis added) (citing
`
`City of Los Angeles, 476 U.S. at 496). Later in the opinion, when
`
`deciding whether strict scrutiny (rather than intermediate
`
`scrutiny) applied under a "singling out" theory, the Court also
`
`explained that "the fact that a law singles out a certain medium,
`
`or even the press as a whole, 'is insufficient by itself to raise
`
`First Amendment concerns.'" Turner I, 512 U.S. at 660 (quoting
`
`Leathers, 499 U.S. at 452). This later statement, however, must
`
`- 16 -
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`

`

`
`
`be read in context. By this point in the opinion, the Court had
`
`already determined that heightened scrutiny applied; it was now
`
`considering whether "singling out" mandated strict scrutiny.
`
`Indeed, the Court began the paragraph in which this statement
`
`appears by explaining that "[i]t would be error to conclude
`
`. . . that the First Amendment mandates strict scrutiny for any
`
`speech regulation that applies to one medium (or a subset thereof)
`
`but not others." Id. (emphasis added). We thus read this latter
`
`reference to "rais[ing] First Amendment concerns" consistently
`
`with the opinion's earlier discussion, as addressing the
`
`applicable level of heightened scrutiny and not whether heightened
`
`scrutiny applies at all.
`
`Even if Turner I's very broad statement (i.e., that laws
`
`that single out the media are always subject to heightened
`
`scrutiny) is not true in all instances, the state's reasons for
`
`withholding heightened scrutiny in this case are unpersuasive,
`
`given that Chapter 308 targets cable operators but leaves similarly
`
`situated internet- and satellite-based operators untouched. Maine
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`first argues that Turner I's "singling out" holding is inapplicable
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`to consumer protection laws like the one at issue here. It points
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`out that many consumer protection laws apply only to cable
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`operators. For example, Maine requires that cable operators issue
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`credits for service interruptions, provide toll-free telephone
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`numbers for receiving customer complaints, and refrain from
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`charging excessive late payment fees. See Me. Stat. tit. 30-A, §
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`3010(1), (6-B). The state rejects the suggestion that such
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`consumer protection measures will trigger First Amendment scrutiny
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`simply because they "single out" cable operators. Turner I makes
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`clear, however, that state consumer protection laws may still be
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`subject to heightened scrutiny on the basis that they "single out."
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`Indeed, the "must-carry" provisions at issue in the Turner cases
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`could themselves be fairly characterized as consumer protection
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`measures, insofar as they were intended to ensure the "continued
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`availability of free local broadcast television" to viewers unable
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`to afford paid options. Turner I, 512 U.S. at 646. Hence, Turner
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`I itself suggests that a beneficent consumer protection purpose
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`does not insulate a law from the possible application of the First
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`Amendment.
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`In rejecting the state's argument, we do not dismiss its
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`concerns about applying the heightened scrutiny required under the
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`First Amendment to laws that arguably may impose no more than de
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`minimis costs on a segment of the media. Those concerns, however,
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`can be addressed through the appropriate application of the
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`heightened standard of review. Heightened scrutiny will not
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`prevent Maine from enforcing cable-specific laws that serve
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`important state interests. Indeed, if intermediate scrutiny
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`applies, Maine will still enjoy "latitude in designing a regulatory
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`solution." Turner II, 520 U.S. at 213.
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`Trying another tack, the state suggests that "singling
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`out" concerns are generally restricted to laws that impose special
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`taxes on the press. To be sure, Turner I's discussion did rely
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`heavily on cases involving selective and discriminatory taxes.
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`The opinion itself, however, applied the "singling out" analysis
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`to a non-tax law, i.e., the "must-carry" provisions. See 512 U.S.
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`at 641. Moreover, the Supreme Court has recognized that different
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`"forms of financial burden" can "operate as disincentives to
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`speak." Simon & Schuster, Inc. v. Members of N.Y. State Crime
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`Victims Bd., 502 U.S. 105, 108 (1991). Taxing the media may be
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`the most obvious way to impose a burden, but it is not the only
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`way. See id. at 108-09 (discussing a "Son of Sam" law that escrowed
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`the speaker's speech-derived income for at least five years); see
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`also Pitt News v. Pappert, 379 F.3d 96, 110, 111-12 (3d Cir. 2004)
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`(reasoning that the "[g]overnment can . . . seek to control,
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`weaken, or destroy a disfavored segment of the media by targeting
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`that segment" and that "whether those burdens take the form of
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`taxes or some other form is unimportant").
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`In a third attempt to insulate Chapter 308 from
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`heightened scrutiny despite its targeting of cable operators, the
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`state contends that a law singling out part of the media for
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`disfavored treatment raises First Amendment concerns only if the
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`law "directly" or "independently" implicates the First Amendment's
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`free speech protections. We are again unconvinced. If a law
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`implicates the First Amendment for some other, independent reason,
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`it is hard to see what additional force a "singling out" analysis
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`brings to the table. Contrary to the state's suggestion, First
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`Amendment law is often concerned with laws that do not "directly"
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`implicate the First Amendment. As the Court has explained,
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`heightened First Amendment scrutiny can apply, for example, to
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`"statutes which, although directed at activity with no expressive
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`component, impose a disproportionate burden upon those engaged in
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`protected First Amendment activities" or have "the inevitable
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`effect of singling out those engaged in expressive activity."
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`Arcara, 478 U.S. at 704, 707.
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`Our conclusion that the First Amendment is triggered by
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`Chapter 308's targeting of cable companies aligns with the views
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`of other circuits that have similarly applied Turner I's "singling
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`out" rationale to cable- or satellite-specific regulations based
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`solely on the laws' narrow focus. For example, in DISH Network
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`Corp. v. FCC, the Ninth Circuit considered a preliminary injunction
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`against a law requiring that satellite operators begin carrying
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`certain channels in high definition by a specific date. 653 F.3d
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`771, 777 (9th Cir. 2011). As the court explained, the law did not
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`affect an operator's "ability to offer programs." Id. But it
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`required the satellite provider to change the order in which it
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`converted channels to HD, both prioritizing certain channels and
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`preventing the satellite provider from offering other programs in
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`HD. Id. On that basis, the court concluded that the law implicated
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`the First Amendment, reasoning that, under Turner I, "any law that
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`singles out an element of the press is subject to some form of
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`heightened First Amendment scrutiny." Id. Hence, even though the
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`requirement imposed only "minimal and nuanced" obligations on
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`satellite carriers, it nonetheless "likely implicated" the First
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`Amendment. Id.6
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`Similarly, in Time Warner Entertainment Co. v. FCC, the
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`D.C. Circuit evaluated the constitutionality of cable rate
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`regulations issued by the FCC under the authority of the 1992 Cable
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`Act. 56 F.3d 151, 179 (D.C. Cir. 1995). That court also viewed
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`Turner I as holding that "laws of less than general application
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`aimed at the press or elements of it" trigger First Amendment
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`scrutiny. Id. at 181 (citing Turner I, 512 U.S. at 640).
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`Accordingly, the court concluded, "we know from [Turner I] that
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`rational basis cannot be the test" for evaluating the cable-
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`specific rate regulations at issue. Id.
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`Finally, in Time Warner Cable, Inc. v. Hudson, the Fifth
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`Circuit reviewed a law that allowed some cable operators to opt
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`out of their existing municipal franchise agreements (and obtain
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`a new, more convenient state-wide franchise), but denied the same
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`privilege to larger, established operators. 667 F.3d 630, 634
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`6 DISH Network Corp. also concluded that the provision was
`likely to survive intermediate scrutiny. See 653 F.3d at 782.
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`(5th Cir. 2012). The court concluded that the law was "not a law
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`of general applicability as it excludes statewide franchises from
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`certain incumbents and singles out elements of the press for
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`special treatment." Id. at 638. As a result, the First Amendment
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`was implicated; it remained only to "determine which form of
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`heightened scrutiny to apply." Id. (citing Turner I, 512 U.S. at
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`641).
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`Overall, we detect no basis here for departing from the
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`Supreme Court's explicit statement in Turner I that laws singling
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`out one segment of the press for "special treatment . . . are
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`always subject to at le