435 F.Supp.3d 228
D. Me.2019Background
- In 2019 Maine enacted LD 832, the first state law requiring cable operators to offer subscribers the ability to purchase cable channels and individual programs à la carte (in addition to any bundles).
- Plaintiffs (Comcast and several video programmers) challenged LD 832 as: (1) preempted by the federal Cable Act (47 U.S.C. §§ 521 et seq.) and (2) violative of the First Amendment, and moved for a preliminary injunction.
- Plaintiffs relied principally on express preemption in § 544(f) and on §§ 544(a)/(b), plus conflict preemption (impossibility and obstacle). They also invoked Turner (editorial-discretion) and speaker-based First Amendment doctrines.
- The State defended LD 832 as a content-neutral consumer-protection measure to expand choice and lower prices, and offered a narrowing construction addressing must-carry/basic-tier concerns.
- The court denied the preliminary injunction on preemption claims but granted preliminary injunctive relief on the First Amendment claim, finding the State unlikely to show LD 832 will materially remedy the asserted consumer harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Express preemption under 47 U.S.C. § 544(f) | § 544(f) bars state requirements about the provision or content of cable services; LD 832 is a programming/provisional regulation and thus preempted | § 544(f) should be read narrowly to reach only content-based dictates (requirements forcing or forbidding specific programming); LD 832 is content-neutral consumer protection | Court: § 544(f) read to prohibit content-based requirements or mandates that force/forbid particular programming; LD 832 is content-neutral and not preempted under § 544(f) |
| Preemption under §§ 544(a)/(b) (franchising provisions) | LD 832 interferes with franchise/regulatory regime over video programming (franchising authorities' domain) | § 544(a)/(b) target franchising authorities, not states generally; LD 832 does not require specific programming | Court: Plaintiffs’ §§ 544(a)/(b) arguments underdeveloped and inapplicable; LD 832 not preempted under these provisions |
| Conflict preemption (impossibility / obstacle) | LD 832 may make compliance with federal must-carry/basic-tier rules impossible or frustrate Cable Act objectives (minimize regulation, national policy) | State offers limiting construction (subscriber = after basic-tier subscription), and Cable Act contains competing objectives (consumer protection/local responsiveness) | Court: No impossibility given State’s narrowing construction; no clear obstacle because Cable Act contains competing aims—no conflict preemption shown |
| First Amendment — editorial-discretion (Turner) | Plaintiffs claim a First Amendment right to bundle and sell programming as they choose as an aspect of editorial discretion | State: LD 832 does not force or forbid content; it only requires offering an additional sales option; Turner does not protect bundling methods | Court: Plaintiffs failed to show likely success on an editorial-discretion theory — LD 832 does not commandeer programming choices |
| First Amendment — speaker-based / level of scrutiny | Plaintiffs contend LD 832 singles out cable as speakers and demands strict scrutiny | State argues differential treatment is justified by medium characteristics or consumer-protection aims and that, at most, intermediate scrutiny applies | Court: LD 832 implicates speaker-based interests (heightened scrutiny). Applying intermediate scrutiny, State failed to show the record likely demonstrates LD 832 will materially remedy the asserted harms. Plaintiffs likely to succeed on First Amendment claim; preliminary injunction granted on that claim |
Key Cases Cited
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (presumption against preemption of state police powers; interpret express preemption narrowly)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (state law conflicting with federal law is without effect)
- United Video, Inc. v. FCC, 890 F.2d 1173 (D.C. Cir. 1989) (§ 544(f) addressed to content-based requirements; content-neutral regulations that merely affect programming not necessarily preempted)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (Turner I) (cable operators/programmers have First Amendment interests; speaker-based regulation analysis)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (application of intermediate scrutiny to must-carry rules)
- Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) (conflict preemption standard: impossibility or obstacle to congressional purpose)
- Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (preemption analysis and caution against implying preemption absent clear conflict)
- Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (speaker-based laws that single out the press trigger heightened First Amendment scrutiny)
- Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987) (similar speaker-based First Amendment protection)