Comcast of Maine/New Hampshire v. Mills, 988 F.3d 607

Maine enacted Chapter 308 (2019), requiring cable system operators to offer subscribers the option to purchase individual cable channels or individual programs (an "à la carte" requirement); the law applies only to cable operators, not satellite or internet-based providers.
Legislative record was sparse; sponsors and the Public Advocate cited FCC materials and consumer frustration as rationale; the state said à la carte would be offered only to existing basic-tier subscribers and does not prescribe pricing.
Comcast and multiple programmers sued Maine claiming the law violated the First Amendment and was preempted by the federal Communications Act; they sought a preliminary injunction and the district court consolidated the PI hearing with the merits.
The district court denied preemption but found the law likely violated the First Amendment because it "singled out" cable operators; it entered a preliminary injunction and declined to enter final judgment due to an underdeveloped record.
On appeal, the First Circuit held that Chapter 308 implicates the First Amendment under Turner I's "singling out" principle, the state conceded the record cannot satisfy heightened scrutiny, and the court affirmed the preliminary injunction without deciding the precise level of scrutiny or preemption.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Chapter 308 implicate the First Amendment?	Chapter 308 burdens speech by singling out cable operators and by burdening editorial discretion.	The law is a consumer-protection/economic regulation; it does not implicate First Amendment and should receive rational-basis review.	Yes: law singles out cable operators versus similarly situated rivals, triggering heightened First Amendment scrutiny.
Is the law preempted by the federal Communications Act?	Plaintiffs argued preemption alternative.	State argued no preemption.	Not decided on appeal (district court previously found no preemption; this panel affirmed on First Amendment grounds and left preemption for a fuller record).
What level of scrutiny applies (rational, intermediate, strict)?	Plaintiffs: heightened scrutiny (intermediate or strict) applies.	State: rational basis applies because this is economic/consumer regulation.	Court: heightened scrutiny is triggered by "singling out," but it declined to decide which level (intermediate vs. strict); left that to the district court.
Can the state justify the law on the current record?	Plaintiffs: state has not provided evidence to meet heightened scrutiny.	State: (conceded on appeal) it has not met heightened scrutiny on current record.	State conceded insufficiency; preliminary injunction affirmed and state may attempt to develop a fuller record below.

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (establishes that cable operators/programmers are speakers and that laws singling out the press/media for special treatment trigger heightened scrutiny)
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (applies intermediate scrutiny to must-carry rules on a developed record)
Leathers v. Medlock, 499 U.S. 439 (1991) (press and media are protected by the First Amendment)
City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986) (media-related regulatory measures and editorial discretion considerations)
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) (press may be subject to general economic regulations without triggering strict First Amendment protection)
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (laws aimed at nonexpressive activity can nonetheless impose disproportionate burdens on protected speakers)
DISH Network Corp. v. FCC, 653 F.3d 771 (9th Cir. 2011) (applies Turner I "singling out" rationale to operator-specific regulation)
Time Warner Entertainment Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995) (reasoning that cable-specific rate regulations are subject to more than rational-basis review)