Maine's Challenged a la Carte Cable Law Not Seen Spawning Replicas
A Maine law requiring cable operators provide video service a la carte and facing cable industry legal challenge isn't likely to be replicated elsewhere soon, experts told us. A cable lawyer said more cable suits challenging this law seem unlikely because the Comcast/programmers litigation (see 1909100041) is likely sufficient. Charter Communications, whose service footprint covers much of Maine, and America's Communications Association didn't comment Monday.
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A separate Maine cable regulation, on public, educational and governmental channels and the required extension of networks into more-rural areas, also is being challenged in federal court. NCTA last week sued state Attorney General Aaron Frey (D) and Freeport and North Yarmouth.
Maine Rep. Jeff Evangelos (I), who sponsored the a la carte law, L.D. 832, said he had discussions with lawmakers in other states about the idea, but everyone was operating under the presumption federal law pre-empted such an approach until hearing from the FCC such might not be true. In a letter May 7 to Maine's Office of the Public Advocate, FCC Consumer and Governmental Affairs Bureau Chief Patrick Webre said the issue of pre-emption was "a question of first impression" and no FCC ruling addresses the exact issue. So the agency couldn't answer.
Comcast and the programmers argued the a la carte law violates their First Amendment rights. Evangelos said cable is violating the 14th. "You should be able to watch a baseball game without forking over $100" for a fat cable bundle subscription, he said. "It passed for a reason; the public needs relief."
Localities lawyer Tillman Lay of Spiegel and McDiarmid said even if such legislation came up in other states, the cable industry often has substantial sway, and passage would be difficult. He said the Maine law is the "decided underdog" before the federal court due to the Cable Act. The federal law bars control of programming, and lacks a provision that lets state or local franchising authorities get involved in content, he said. Maine's prevailing in court may be a long shot, but if it did, other states might then follow with their own a la carte laws, he said.
The Maine PEG law -- signed June 7 and effective Sept. 19 -- requiring cable systems to extend their footprints to low-density areas -- conflicts with the Cable Act's limiting of franchising authority only to reasonable requirements, NCTA complained last week in U.S. District Court in Bangor (docket 19-cv-00420, in Pacer). It said the law's requirement PEG channels be carried in HD and on the basic tier and not moved without consent also is pre-empted by federal law and violates members' First Amendment editorial rights on how to display and promote channels. The suit asks the court to declare the PEG and line-extension requirements void and for an injunction preventing enforcement of those provisions. The association also asked (in Pacer) for a preliminary injunction to the PEG and buildout requirements.
Comcast operates in Freeport, Charter in North Yarmouth. Frey's office didn't comment.