451 F.Supp.3d 123
D. Me.2020Background
- Maine enacted LD 1371, which (1) requires PEG channels to be placed near local broadcast channels on the basic tier, (2) requires retransmission of PEG signals in the format received and at the same signal quality as local broadcasts, (3) requires PEG originators access to electronic programming guides, and (4) imposes a line‑extension rule mandating service where there are at least 15 residences per linear strand mile.
- NCTA (representing cable operators) sued, asserting facial preemption under the Federal Cable Act (47 U.S.C. §§ 521–573) and First Amendment violations; it sought injunctive and declaratory relief; the court denied relief.
- Federal Cable Law preserves substantial local/franchise authority over PEG matters (47 U.S.C. §§ 531, 541) but contains coordination/preemption provisions (§§ 544, 552, 556); the Act reflects a selective preemption scheme.
- Record evidence showed operators had moved PEG channels to hard‑to‑find blocks and down‑converted HD PEG programming to SD, and PEG channels were poorly labeled in EPGs—motivating Maine’s consumer‑protection approach.
- Maine framed most provisions as consumer‑protection measures and treated the line‑extension rule as a prospective franchising term; the Attorney General defended the law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Line‑extension preemption | State mandate conflicts with Federal Cable Act structure and §546 renewal‑reasonableness requirement | State can set terms for municipal franchises (municipalities derive authority from state); provision is prospective and not an immediate franchise rewrite | Denied facial preemption; state may set prospective franchise terms; as‑applied challenges left open |
| PEG channel placement / basic‑tier requirement | Preempted by federal scheme and by specific federal provisions concerning tiering and carriage | State acted under consumer‑protection power and franchising authority powers to protect access | Not specifically preempted; PEG placement rules allowed as consumer protection/franchise terms |
| HD/SD retransmission requirement | Preempted by §544(e) (FCC control of transmission technology and signal quality) | HD/SD describe picture format, not a ‘‘transmission technology’’; requirement does not improperly regulate transmission tech or displace FCC standards | Not specifically preempted; court finds HD/SD are not regulated transmission technology and §544(e) does not bar Maine’s consumer‑protection rule |
| First Amendment challenge to PEG provisions | Law restricts cable operators’ editorial discretion; should trigger strict scrutiny | Cable operators have little or no editorial control over PEG use under federal law (47 U.S.C. §531); PEG editorial control rests with franchising authorities | Denied—operators’ First Amendment interests in PEG context are diminished; PEG rules do not violate the First Amendment (intermediate scrutiny would apply and be satisfied) |
Key Cases Cited
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (recognizes cable operators’ speech rights and discusses limits on editorial discretion)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (applies intermediate scrutiny to carriage regulation and upholds must‑carry rules)
- Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (plurality: historical absence or diminution of cable operators’ editorial control over PEG channels)
- Time Warner Entm’t Co. v. FCC, 93 F.3d 957 (D.C. Cir.) (upheld federal PEG provisions against a facial First Amendment attack)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (presumption against preemption of state police powers)
- Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (explains obstacle/conflict preemption standard)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (state law conflicting with federal law is without effect)
- United States v. Salerno, 481 U.S. 739 (standard for facial constitutional challenges)