The state of Maine has conceded that the law mandating cable a la carte violated the First Amendment, so it will not be enforced.

According to the Portland [Maine] Press Herald, the Maine Attorney General is no longer defending the law, and in fact has conceded that it ran afoul of speech protections.

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.

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 various cities and towns.

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.

A district court enjoined enforcement of the law while the legal battle was waged. The U.S. Court of Appeals upheld the injunction, but according to the paper both parties asked the court to rule in favor of the cable challenge and the district court agreed, closing the case and meaning the law can't be enforced.

The Parents Television and Media Council, long a backer of a la carte as a way to give parents more control over the cable programming that comes into their homes, was not pleased.

“Yet again, the cable industry was able to wield its massive financial resources to thwart commonsense efforts by legislative, judicial and regulatory agencies attempting to give Americans greater control over the TV content they want coming into their homes," said PTC President Tim Winter. "This time it was a slick legal argument suggesting that the cable industry had been ‘singled out’ by the legislature. But the reality is that cable was only ‘singled-out’ because it is the only industry that forces a product bundle onto all consumers."

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. 

The U.S. Court of Appeals for the First Circuit has upheld a district court's injunction against Maine's cable a la carte law, concluding that the lower court did not abuse its discretion in granting the preliminary injunction.

Also Read: Judge Blocks Maine A La Carte Law

In 2019, Maine passed a law requiring cable operators, but not other video distributors, to offer every channel and program à la carte, rather than bundled in a channel or tier of channels. They would have to buy the basic package before having the à la carte option for other channels and programs.

Comcast, A&E, C-SPAN, Discovery, Disney, Fox Cable, NBCU, Viacom and New England Sports Network sued Maine's governor, attorney general and and various cities and towns in district court arguing the law was unconstitutional since it singled out cable speech for regulation, but not satellite or online video distributors, and was preempted by the Communications Act. They then sought a preliminary injunction to block the bill's implementation while the legal challenge was heard.

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. 

The district court concluded that it was 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.

Also Read: Court Blocks A La Carte Law

The appeals court agreed that the law implicated speech and, given Maine's concession, it affirmed the district court injunction.

The appeals court said the district court can now decode which level of heightened constitutional scrutiny applies, whether the state can offer "post-enactment" evidence to support the law, and "even whether, on a more fulsome record, the state law is preempted." On the current record the district court concluded it was not preempted.

The appeals court also said it was leaving open the question of whether the law would trigger "singling out" concerns if it applied to satellite and internet-based distributors, saying a fair reading of the law is that the broader the scope of a regulation, the less likely it will raise First Amendment concerns.

The state of Maine is appealing a District Court judge's decision earlier this month blocking the imposition of a first-of-its-kind state law that would have required Comcast and any other cable operator that wanted to operate there to provide video channels a la carte. 

The judge granted a temporary injunction, saying Comcast et al. had made a good case that the law violates the First Amendment’s prohibition on speaker-based regulations, since the law did not apply to satellite or other MVPDs, but also suggested that cable pricing could be a reason for treating cable differently when it comes to unbundling. 

Marc Maron, a spokesperson for Maine Attorney General Aaron Frey, confirmed that the state had filed a notice of appeal, which will go to the U.S. Court of Appeals for the First Circuit. 

“While we certainly respect the lower court’s thoughtful decision," said Attorney General Frey, "this issue merits appellate review. We continue to contend that the First Amendment does not give cable companies the right, as a business decision, to force customers to buy dozens of channels they don’t want just to get the two or three they actually watch. The First Amendment is about protecting freedom of expression, not protecting business strategies that harm consumers.”

A federal judge in Maine has stopped, for now, the imposition of a first-of-its-kind state law that would have required Comcast and any other cable operator that wanted to operate there to provide video channels a la carte.

But the decision, which came in the form of a temporary injunction, was something of a mixed bag.

Comcast and a laundry list of other content distributors and suppliers filed suit against the law, which, if it catches on in other states, would force them to offer channels and even programs individually on a nationwide basis.

Here is a look at the pros and cons of the decision from the cable industry’s perspective:

Pro: The decision means the judge thinks cable ops and programmers have a good chance of winning at trial.

Con: There will still be a trial on the merits of the law.

Pro: The nation’s largest cable operator won’t have to start the new year by unbundling its service and programming on a per-channel and even per-program basis.

Con: The judge dismissed cable’s argument that the law was pre-empted by the federal Cable Act, leaving open the question of whether the state could craft an a la carte law that did not run afoul of the First Amendment.

Pro: The judge granted the injunction because she said Comcast et al. had made a good case that the law violates the First Amendment’s prohibition on speaker-based regulations, since the law did not apply to satellite or other MVPDs.

Con: The judge said cable operators and programmers had not made the case, again at the preliminary stage, that the law violated an MSO’s right to make its own editorial decisions, an argument they have long made against the mustcarry/retrans regime.

Big Con: The judge suggested that cable pricing could be a reason for treating cable differently when it comes to unbundling: “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.”

The Maine legislature has voted to approve an online privacy bill, which now goes to governor Janet Mills for her signature. 

The bill, "An Act to Protect the Privacy of Online Customer Information," which passed unanimously, applies only to ISPs. Such provider may not use, disclose, sell or allow access to customer personal information without the consent of the customer--opt in--and may not refuse service to those who don't consent to such sharing or charge more for customers who don't allow that use.

ISPs can do all that with non-personal information unless the customer disallows it (opt out).

There are plenty of exceptions, for: provision of access service, to market service to that customer, to prevent fraud and abuse, or to provide geolocation info for emergency services, for relatives in the case of risk of death or serious harm to the customer, to provide emergency services.

The bill includes requirements for clear notice of terms of service and reasonable measures to protect personal info from unauthorized use. 

Its provisions stop at state lines, which is one of the reasons ISPs are pushing for national privacy legislation that would preempt what they call a "patchwork" of different state regs. 

The bill's provisions apply to ISPs "operating within the state when providing broadband internet access service to customers that are billed for service received in the state and are physically located in the state."

Mills ran on a platform that included expanding broadband access and last year praised Spectrum for its investment in the state.

Various states have been adopting privacy bills since congress invalidated a former FCC's broadband privacy rules and the FCC under new management ceded primary regulatory oversight of broadband access to the Federal Trade Commission.

It happens every Thursday in the Northeast: To the glee of many, fresh new copies of weekly magazine Uncle Henry’s Guide come to convenience stores, markets, even auto-part stores, across several states.

Each thick, digest-size issue is a classified ad fan’s dream, with pages of relevant listings for everything from all-terrain vehicles to horses, and from farm equipment and firearms to snowmobiles.

And sure, if you put an ad in, someone may just pay you a few hundred bucks for a rusted but working wood-burning stove, but in a few select neighborhoods way up north, the guide is the central tool for the good old-fashioned art of bartering, and you’d just as soon find someone offering to buff your boat if you agree to part with that stove.

That exercise in bartering, it turns out, makes for some fascinating television. Granted, most of us associate the name Uncle Henry with Auntie Em, but on the History series Down East Dickering — for which the weekly classified guide is the starting point for some remarkably spirited, warm and humorous wheeling and dealing — it’s easy to imagine The Wizard of Oz’s Dorothy declaring, “I don’t think we’re in Kansas anymore.”

In fact, we are not; all that “dickering” takes place in the great state of Maine, a location at once remote and stunning. It’s the undisputed lobster capital of the USA, a vacationer’s dreamland with, conversely, gorgeous beaches and wondrous skiing on snow-capped mountains. It is the first place in the U.S. that the sunrise hits every morning, and it can be brutally harsh during relentless winters.

And all of that is relevant information because Maine is now, quite suddenly, the undisputed reality-television capital, with several series on the air and many more in the development pipeline. Remember when every reality show seemed to be set in the swamps of Louisiana? That place was so 2010. C’mon, people: Wake up and smell the salvage “yahd.”

If 2013 estimates from the U.S. Census bureau put the population of Maine at 1,328,501, rest assured the number is now probably higher by a few hundred producers, casting company executives and camera folks working on several series, not to mention others hoping to do so.

Aside from Down East Dickering, which premiered April 2, and another Maine series History is exploring, Animal Planet presently airs North Woods Law and Cold River Cash, with several more shows and Maine episodes of existing series slated to come. National Geographic Channel just greenlit a second season of Building Wild, in which two “cabin kings” try to construct the perfect Maine getaway, and the folks at Al Roker Entertainment have put out a casting call for lobstermen. And all this activity comes a few years after Discovery aired American Loggers, featuring the Pelletier family toiling in the Great North Woods.

“I think people looked on a map and said, ‘Wow, we haven’t seen this yet before,’ ” Elaine Frontain Bryant, senior vice president of programming and development for History, said. “We have lots of shows set in the South or in the logging country, the mountain areas, beautiful areas where people are working with nature, sometimes against nature but on their own terms. We didn’t have anything in this area, and that’s an appeal too; there’s a real freshness to it. And we’re clearly not the only network that said, ‘Well, we’ve got the swamp, we’ve got Texas, we’ve got these places; where else is it that has a fl avor?’ ”

NORTHERN EXPOSURE

For years, Maine’s TV “flavor” has helped make it the capital of the odd and offbeat. “To a degree, there’s a certain mythology that makes it mysterious, and I think that adds to the mystique of the place,” Bill Carroll, vice president and director of programming at Katz Television Group, said.

After all, in the 1960s Maine was where “the Ghost” took up residence at Mrs. Muir’s house, and where vampire Barnabas Collins bared his fangs on Dark Shadows; in the 1980s and ‘90s, mystery writer/sleuth Jessica Fletcher helped solve all manner of murders in the seemingly sleepy coastal town of Cabot Cove on Murder She Wrote. Maine is also the stomping ground of Stephen King, and the setting for novels such as Carrie and Cujo, as well as the short story that was adapted into The Shawshank Redemption.

And most recently (and quite successfully), it is the setting for the popular CBS series Under the Dome, based on King’s novel of the same name about a massive dome that cuts a Maine town off from the rest of the world, the pilot for which scored an impressive 3.3 in the 18-49 demo. The summer series, which contributed to a shift in the way broadcasters are programming for the season, returns June 30 with an episode written by King.

“I think, to keep viewers engaged the people have to be a little different,” Brad Adgate, senior VP of research at Horizon Media, said. “And Maine has lots of characteristics that are different from other regions.”

Not only is Maine different, producers and networks have been discovering, but it has any number of individual worlds to discover, each with its own fascinations. The same state where Tony Bennett — nope, not that one, but a 48-year-old longhaired, bearded, softspoken gentleman — and fellow haggler Roland Raubeson — “Yummy” to everyone who knows him — do their dickering for peanuts is also where three groups of fishermen — known informally as The Eeliminators, The Grinders and the Maineiacs — earn hundreds of thousands of dollars in a remarkably short period, collecting pound after pound of tiny elver eels, an Asian delicacy, on Animal Planet’s Cold River Cash.

What these shows — and all successful, memorable reality fare, really — have in common is a sense of these being real people, living a life on their own terms that viewers safely pine after or somehow admire from the couch.

“It harkens back to a simpler way of life, and that’s part of the appeal of Maine,” Adgate said. “It’s not a get-it-done-yesterday world, it’s a place where you can kind of relax and let your mind wander.”

It’s also a place with an alluring habitat and a feel for the outdoors that invites adventure at seemingly every turn. “You don’t move to Maine to work in an air-conditioned office,” Rick Holzman, executive vice president of programming and strategy, Animal Planet, said. “You live there because you appreciate where you come into contact with the natural world. In an age of multidimensional characters really popping, we find Maine has provided us with plenty of compelling characters to root for.”

LOOKING FOR A FEW MAINE MEN

It has also provided some spirited competition, with producers flocking to the state in search of the best stories possessing that magic formula: the right mix of personalities and an easy fit for a network’s sensibility.

Animal Planet has made the largest inroads and, by its own account, the earliest foray into the area. “When everyone else was looking south to find unique subcultures, we decided that we should look north, so we went up and started North Woods Law,” Holzman said of the series that follows several game wardens of the Maine Warden Service who are on the hunt for wildlife and outlaws.

The wardens make their way through rough terrain, tracking poachers and facing various other animal-related dangers. “We started trying to make inroads in the North, and that’s what started with us looking to Maine in 2011,” Holzman said. “We’ve continued to be there, boots on the ground, with multiple production companies to try to find more and more interesting worlds.”

Maine will be making guest appearances on the network’s series Eric Young Off the Hook and, potentially, Finding Bigfoot — if the research reveals enough legitimate stories up there to do so. Holzman said the network also has a limited series in development that’s already in production, and several other stories that production companies are working through over this coming summer.

Will Maine continue to be the next great rugged TV backdrop? History’s Frontain Bryant, whose network has “one other thing set in Maine that we’re starting to explore,” said yes. “I really believe in the zeitgeist; it’s amazing that when we get one project, we’ll get three,” she said.

In Maine, she added, “there’s trust in a handshake, and a beauty and simplicity to that, and I don’t mean that in any condescending way. I think there’s an honest authenticity to the place.”

In reality TV that authenticity can spread like a virus. “We saw a million Duck Dynasty rip-off tapes,” Frontain Bryant said. “For us it’s not [all about] the region, but I think it’s fun; I don’t think it’s tired yet.”

Holzman is banking on that notion of the freshness of the place and, much like the game wardens on his network, he said he feels a certain protectiveness against the kind of new-series hunters that will no doubt keep descending on the state. “When it’s cold, you want to feel the frost on the windshields,” he said of his series’ desire to show why “there’s something magical to this place. Maine is like an onion; you peel off a layer and you find another.

“For us it’s not a fad,” he continued. “We’re flattered that other people are flocking to Maine but we hope it doesn’t become the new Alaska, where you’re out in the bush and camera crews are bumping into camera crews. We hope it remains special.”

Either way, there’s a good chance it’ll remain in-demand, thanks to the typical pattern of TV producers finding something that feels perfect and shaping it in an attempt to make it even more perfect.

“If these things click, we’ll see more and more of them,” Adgate said. “You know what [candidates] do in New Hampshire, where they keep canvasing the state? That’s what reality producers will be doing in Maine.”