Court Focuses on 1st Amendment on Maine Cable a la Carte Injunction
Maine faced questions about constitutionality of its cable a la carte programming law during a 1st Circuit Court of Appeals oral argument Wednesday, as the state challenged a lower court's preliminary injunction stopping it from enforcing that law (see 2004300011). A lawyer involved in the proceeding told us odds are good of seeing a decision this year, early Q1 at latest.
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Arguments by plaintiff-appellees Comcast and programmers that bundling channels makes small programmers more commercially viable seem to implicate First Amendment and editorial discretion issues, Judge Sandra Lynch said. Bundling is "a choice the cable operators are now making, which this statute would essentially prevent," she said. Lynch saw the Supreme Court's 2011 Sorrell v. IMS Health decision, which struck down a commercial speech regulation for the pharmaceutical industry, as relevant because the high court said some forms of consumer protection don't justify discrimination of commercial speech rights.
The injunction was granted on free speech grounds, after the lower court rejected cable arguments that federal law preempted the state law. Judge Juan Torruella said the court doesn't have briefing that would let it tackle the complexity of the preemption issue. Lynch said if the case is decided on First Amendment grounds, there also would be a finality that no future FCC administration could challenge.
Christopher Taub, an attorney with the Maine Attorney General's Office, told the court that if it found a First Amendment implication, the state would lose the appeal and have to try to create a record back in District Court to support the law. Pressed whether the law would end consumers' desire to buy cable packages, Taub said nothing there governs a la carte pricing, so distributors could encourage packages by making single channels more expensive. He said the record doesn’t support the cable argument programmers will withdraw content. Lynch interrupted that cablers also argue the law would lead to litigation by programmers due to violating contracts.
Much of questioning by Lynch, Torruella and Judge Kermit Lipez involved what level of judicial scrutiny to apply. Taub said the law doesn't implicate the First Amendment, but if it did, it should receive intermediate scrutiny. Plaintiff-appellee lawyer Matthew Brill of Latham and Watkins said the District Court wrongly adopted intermediate scrutiny, and cablers aren't asking the appellate court to weigh in there.
Lynch asked a couple of times whether the law would require cable operators to provide subscribers with content not just on a per-channel but on a per-episode basis, for example individual Red Sox games. Taub said the statute hasn't been implemented, but the law seems to indicate operators would have to provide even individual games.
Taub said the law, contrary to plaintiff arguments, could lead to broader distribution of channels, with people subscribing to ones they currently don't because it comes only as part of a large, expensive tier. That doesn't explain why cable companies and programmers don't offer content a la carte on their own now, Lynch said. Replied Taub, "This was done for economic and business interests, forcing consumers to buy a lot of what they don't want to get what they do want."