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.”
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.