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The cable television industry has again fended off the prospect of being forced into offering programming on an à la carte basis. On Wednesday, the 1st Circuit Court of Appeals refused to disrupt a district judge’s injunction on Maine’s unique unbundling law.
In 2019, Maine’s lawmakers passed its law — LD 832 — requiring cable operators to provide subscribers with the option to purchase every cable channel and television program individually. So instead of only having the option of a cable package that included ESPN, ESPN2, ESPN News, FS1…. a subscriber could elect to subscribe to just one of those channels or indeed just Boston Red Sox games.
But the law was full of holes. For instance, it didn’t require a cable operator to charge any particular price for an individual channel or program. During legal arguments in the case, the state of Maine acknowledged as such. As a result, a district judge concluded that Maine hadn’t shown that LD 832 was likely to achieve its primary goal: reducing prices and increasing affordable access to cable. Without such justification, the law was unlikely to muster constitutional scrutiny and so it couldn’t be enforced.
The 1st Circuit reviews the district court’s injunction, mainly whether this was the sort of situation that mustered heightened First Amendment scrutiny. Writing for the majority, 1st Circuit Kermit Lipez agrees that’s so.
“There is no question that the á la carte requirement ‘singles out’ in some sense,” writes Lipez, pointing to how the requirement “applies only to ‘cable system operator[s],’ and says nothing about direct competitors like satellite-based operators (e.g., DirectTV and DISH Network) and internet-based operators (e.g., YouTube TV and Hulu+ Live TV).”
Lipez then rejects Maine’s arguments for why consumer protection measures shouldn’t trigger First Amendment scrutiny simply because they “single out” cable operators. He points to case precedent here and adds a note on why it doesn’t necessarily mean Maine can’t regulate these cable operators. In particular, he writes that the state’s concerns “can be addressed through the appropriate application of the heightened standard of review. Heightened scrutiny will not prevent Maine from enforcing cable-specific laws that serve important state interests. Indeed, if intermediate scrutiny applies, Maine will still enjoy ‘latitude in designing a regulatory solution.'”
Here’s the full opinion:
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