A federal appeals court upheld a ruling that bars, for now, Maine’s law requiring cable companies to give subscribers the option of purchasing access to individual cable channels rather than bundled packages.
In late 2019, U.S. District Judge Nancy Torresen issued an injunction to keep the law from taking effect, an initial victory for the cable companies that were challenging the state law. Earlier that year, state lawmakers had passed the measure, which would have been the first in the country to make cable companies offer customers individual channels and even specific programs on an a la carte basis rather than in packaged “bundles.”
The state challenged Torresen’s injunction, but this week a federal appeals court in Boston upheld her ruling. However, the appeals court limited its ruling to the injunction only and is sending the rest of the case back to Torresen to decide on the cable companies’ challenge to the law.
The 1st U.S. Circuit Court of Appeals said it agreed with Torresen that the case raised questions about the companies’ First Amendment rights. The companies claim that the law mandating how they offer channels to customers infringes on their “editorial judgment” in providing packages of content to cable customers.
The appeals court went on to say it would not decide “what level of constitutional scrutiny is appropriate,” and would leave that to Torresen to decide.
The cable company Comcast is leading the challenge to the law and has been joined by companies that provide programming, including Disney, Fox Cable, NBC/Universal and others. The initial lawsuit also named a handful of Maine towns and cities as defendants because cable companies operate under contracts with municipalities, but they were dropped under an agreement by the state and the cable operators.
The Maine Attorney General’s Office declined to comment on the appeals court ruling and an email to the lead lawyer representing Comcast was not returned Thursday.
State Rep. Jeffrey Evangelos, I-Friendship, said the court ruling is an example of rights that should apply only to individuals, such as free speech, being extended to cover companies.
“This is a big loss for consumers,” Evangelos said. Cable companies charge more for packages of channels, he said, even though subscribers may only regularly watch a handful of them.
Providing a la carte selections, he said, would allow consumers to save money by only subscribing to those channels they really want to watch.
But cable companies have fought efforts to force them to sell individual channels to customers, saying it would result in some channels going out of business, and actually end up limiting consumers’ choices. They also say setting up a system that would allow customers to pick individual channels to watch would be technologically challenging and expensive, and those costs would have to be passed on to consumers.
Evangelos, however, said companies are able to provide individual packages of channels and seem to have the technology to offer some channels to one customer and other channels to another customer.
“They already offer a la carte when it suits their needs,” he said.
Evangelos said he’s heard plenty from voters about high cable costs during his campaigns for the Legislature. He said they are frustrated about high cable costs and elderly residents are particularly upset about having to pay for bundles of channels when they only want one or two.
There’s no timetable for how the case will proceed. Appeals court rulings are typically officially transmitted to lower courts within a week or two and once Torresen receives it, she will likely contact the lawyers for both sides to determine what’s next.
In light of the appeals court ruling, the state is now expected to argue that the law is a permissible infringement on the cable companies’ First Amendment rights while the companies will say it goes too far.
In an earlier ruling, Torresen indicated the cable companies are likely to lose on their other primary argument, that Maine’s law is counter to federal laws on cable operations.
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