A federal judge has temporarily blocked a new state law in Maine that requires cable companies to provide TV programming on an à la carte basis.
U.S. District Court Judge Nancy Torresen ruled Friday that cable companies suing over the law are likely to prevail on their claim that the legislation harms their First Amendment rights and that the law should be blocked while legal proceedings over the measure continue. Cable companies and broadcasters filed a lawsuit in September over the law, which would be the first in the country to require cable TV providers to offer content on a channel-by-channel and even program-by-program basis.
Most cable operators offer TV programming on a tier basis, requiring consumers to buy a package of channels rather than choosing the individual programs or channels they want.
The legal challenge claims Maine’s law runs afoul of federal legislation governing cable companies, and that requiring the companies to offer channels individually violates the companies’ First Amendment right to editorial control over programming.
Torresen said she was won over by the latter argument, largely because the state hadn’t shown that requiring à la carte options would reduce prices and make cable TV more affordable. Cable companies claim that switching to an à la carte system would be complex and costly, and that the added costs would be passed on to consumers.
To issue the preliminary injunction, the judge had to find that the challenge to the law is likely to succeed and that the plaintiffs – the cable companies – would suffer irreparable harm if the law went into effect. She also had to weigh the hardships on both sides and determine that the public interest was in favor of an injunction.
Torresen found in favor of the cable companies on all four factors, noting that the likelihood of success is the most important factor in issuing an injunction and that the other factors are inconsequential if the challenge is unlikely to succeed.
On the other major legal challenge – that Maine’s law is contrary to federal laws – Torresen found that the cable TV providers are unlikely to prevail.
Christopher Taub, Maine’s deputy attorney general who is defending the law in court, said he was “extremely pleased” with that part of Torresen’s ruling, but said the rest of the decision left him disappointed.
“The court had before it a limited factual record,” he said. “We will now have opportunity to supplement that record.”
Taub said states have a vital role to play in protecting consumers from unfair businesses practices, and that while cable TV operators repeatedly insist federal law immunizes their practices from state oversight, the court’s decision “demonstrates that this is simply not so.”
He said the state is reviewing all of its options, including a possible appeal of Torresen’s decision to grant the preliminary injunction.
State Rep. Jeffrey Evangelos, an independent from Friendship, the chief sponsor of the à la carte measure, called the part of Torresen’s ruling that federal laws and the Maine law were not in conflict “a big victory.”
Cable companies have been “hiding behind” that argument for years as a way to resist providing television programming on a per-channel basis, he said.
However, Evangelos disagreed with the rest of Torresen’s decision, saying it put a company’s free speech ahead of an individual’s free choice.
“It’s absurd, just like Citizens United, once again conferring human rights onto corporations,” Evangelos said in an email. “Of course it’s going to save money to purchase just 10 channels; the kids are already doing it for peanuts with their gadgets. This law would save the cable industry from itself, but they refuse to see what the rest of us are witnessing – the young people are purchasing choice through their smart phones and TVs. (If) the industry keeps it up, and fails to adapt to consumer choice, 10 years from now, cable is dead.”
A spokeswoman for the Maine Association of Broadcasters said the organization was happy with Torresen’s ruling because it freezes implementation of the new law until a trial is held. Torresen set a preliminary trial date in early August.
The association has filed documents in court supporting the cable TV industry’s legal challenge, which was filed by the cable giant Comcast and other providers and broadcasters. Suzanne Goucher, the executive director of the organization, said the concern of local broadcasters is that à la carte channel ordering would weaken support for some local stations. Industry rules currently require cable TV companies to carry local channels on their basic, and least costly, tiers of service.
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