A U.S. appeals court has given cable operators hope that they won’t have to start offering channels and even individual programs a la carte in Maine. But the fight may not be over, and over-the-top platforms and satellite providers could conceivably be brought into the discussion.
In 2019, Maine passed a law requiring cable operators, but not other video distributors, to offer every channel and program a la carte, rather than bundled in a channel or tier of channels. Customers would have to buy the basic package before having the a la carte option for other channels and programs.
Reports that the court had thrown out the law were premature. Instead, it upheld an injunction against enforcement as currently written, but suggested the law could be rewritten to pass constitutional muster.
There is definitely a high bar for granting the injunction, as a Maine district court did, and for upholding it, as the 1st U.S. Circuit Court of Appeals has done — including likelihood that the cable operators and programmers challenging it would win at trial. So there was definitely cause for some celebration.
Comcast, A&E, C-SPAN, Discovery, The Walt Disney Co., Fox Corp., NBCUniversal, ViacomCBS and New England Sports Network (NESN) sued Maine Gov. Janet Mills, state Attorney General Aaron Frey and and various cities and towns in federal court. They argued the law was unconstitutional because it singled out cable speech for regulation, but excluded satellite or online video distributors, and said the law was pre-empted by the federal Communications Act. They then sought a preliminary injunction to block the bill’s implementation while the legal challenge was heard.
The 1st District concluded that a la carte is a speech regulation that requires heightened scrutiny, another high bar and one that Maine conceded its evidence did not clear. The district court granted the injunction, saying that while the law did not impinge on cable operators’ editorial discretion it did single them out for disparate treatment.
The appeals court agreed that the law implicated speech and, given Maine’s concession, affirmed the district court injunction. But the 1st District ruled the law was not pre-empted by the cable act, leaving open the possibility a different a la carte law might pass muster.
The appeals court made it clear it was simply affirming that the lower court was reasonable in granting the preliminary injunction against enforcement based on the law as written and the evidence presented by the state, not whether or not an a la carte video law could be constitutional if crafted differently.
The appeals court agreed with the lower court that the Maine law, which required cable operators to offer individual channels and programs, implied speech and thus required a higher level of legal scrutiny.
Maine conceded its case can’t meet that heightened scrutiny. But the legislature could always rewrite the law along lines the court suggested. “We leave open the question of whether [the law] would trigger ‘singling out’ concerns if it applied across the board to all pay TV systems, including satellite- and internet-based ones,” the court said.
