In a mixed decision for cable operators but an initial victory, U.S. District Court Judge Nancy Torresen has granted a preliminary injunction blocking the implementation of Maine's first-in-the-nation a la carte law.
Comcast and a laundry list of other content distributors* and suppliers filed suit against the law, which if it caught on with other states, would force them to offer channels and even program individually nationwide. They said it violated the First Amendment in two ways. They said it 1) violated their editorial decisionmaking right to require consumers to take bundles of programming (like a newspaper's right to bundle sports and business and entertainment sections) and 2) violates the First Amendment's prohibition on speaker-based regulations since it applies to cable but not other MVPDs.
The judge said that, at least at the preliminary injunction stage, Comcast et al. had not convinced her they would win on the "right to bundle" argument. But on their argument that the law unfairly targeted cable, including by using a lower speech bar ("intermediate" rather than "strict" scrutiny)' to justify the a la carte mandate, she said they were likely to prevail.
But that meant she did not have to decide on a related issue, which was the state's argument that the a la carte law served the public interest by holding down cable prices. It might not have gone so well for cable ops had she done so.
"At this initial stage, I cannot conclude that the State has carried its burden of showing that [the law] will, in fact, be likely to reduce prices and increase affordable access to cable," she said. But she also said: "The evidentiary record is weak at this point, but the record does contain evidence that cable pricing has greatly exceeded the pace of inflation over many years. This may provide a separate special characteristic that would support differential treatment of cable operators. Because I ultimately conclude that the State has not met its burden of showing that it is likely to succeed under intermediate scrutiny, I do not need to decide this issue at this time."
The bar for an injunction is high--four different factors must be met: 1) probability of success, 2) irreparable harm to the plaintiff if the injunction is not granted, 3) the balance of harms if the injunction is not granted tilts toward the plaintiff, and 4) it serves the public interest.
So the judge's decision means she has found that plaintiffs have met that four-pronged test and will likely win the case on the merits of its argument, which is that the law unduly impinges on their First Amendment speech rights. The law will not go into effect until and unless the law is ultimately upheld by the district court.
Comcast had also argued that the law was out of bounds because it preempted federal law, but the judge denied that ground, spending most of the opinion explaining why she did not feel that the law was preempted by the Cable Act and why the plaintiffs had not established "conflict" preemption.
The judge said there was not enough of an evidentiary record to grant Comcast a permanent injunction at this stage.
*Joining as plaintiffs in the suit: A&E TELEVISION NETWORKS LLC; C-SPAN, CBS CORP.; COMCAST CABLE COMMUNICATIONS LLC; COMCAST CORP.; COMCAST HOLDINGS CORP.; COMCAST OF MAINE/NEW HAMPSHIRE INC.; DEERIDGE FARMS HOCKEY ASSOCIATION, DISCOVERY INC.; DISNEY ENTERPRISES INC.; DISNEY/ABC INTERNATIONAL TELEVISION; FOX CABLE NETWORK SERVICES LLC; FOX CORP.; FOXCORP HOLDINGS LLC; HEARST COMMUNICATIONS INC.; HEARST HOLDINGS INC.; NATIONAL AMUSEMENTS INC.; NATIONAL CABLE SATELLITE CORP.; NBCUNIVERSAL MEDIA LLC; NEW ENGLAND SPORTS NETWORK INC; NEW ENGLAND SPORTS NETWORK LP; VIACOM INC.; WALT DISNEY COMPANY.