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.
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.
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.
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