The U.S. First Circuit Court of Appeals on Tuesday rejected an appeal by cable companies and upheld a Maine law requiring cable TV providers to restore public access programming to low channel numbers that are easier for viewers to find instead of exiling them to what some critics have called “digital Siberia.” 

The law, passed in 2019 and upheld by federal judge Nancy Torresen in March 2020, also requires the cable companies to extend service to lower-density parts of the state, broadcast locally produced content in the same format it is provided – such as high definition – and provide public access program information on channel guides.

The Internet and Television Association, which filed the lawsuit, argued the law conflicts with federal rules on cable regulations and violates the cable company’s First Amendment rights. The cable companies also argued that high-definition broadcasts use up to four times the cable bandwidth that standard definition broadcasts do. 

The District Court, and now the First Circuit, rejected the cable industry arguments. 

Maine Attorney General Aaron Frey, whose office defended the law, called community-run television stations a “priceless resource,” and said in a statement Tuesday evening that the court’s ruling “will go far in ensuring their continuing vitality by protecting against marginalization by cable television operators.” 

State Rep. Seth Berry, D-Bowdoinham, also applauded the decision to defend the “landmark legislation.”  

“It is well past time to rein in the abuses of our two big cable monopolies, and this bill was an important step in that direction,” he said in a statement Wednesday, referring to cable providers Charter Communications, which operates as Spectrum, and Comcast Corp., which uses the brand Xfinity.

For decades, Mainers could find local access cable channels – usually airing government meetings, locally produced television shows and sports – among the lower-numbered stations, usually alongside the cable broadcasts of local television stations. But in 2017, some cable companies, including Spectrum in southern Maine, moved those channels to what some have nicknamed “digital Siberia” – stations in the 1300s or higher, where channel-flippers do not often venture. 

The change made the “vital public, education and governmental programming … nearly impossible to find and watch,” Frey said in the statement. 

The move prompted legislative action in 2019, requiring that the public access channels be treated like any other station. The law moved the channels back to their original spot in the cable lineup, ensured they could be shown in high definition and required that they be included in programming guides. 

In the lawsuit, the Internet and Cable Association argued that the cable companies were trying to create “a neighborhood” of public access channels that would be easier for the companies to manage.

The initial ruling by Torreson, which was affirmed by the court of appeals Tuesday, said federal laws do restrict many regulations of cable companies to the federal government’s authority, but that they also give states control over some aspects of cable television. That includes consumer protection rules and public, education and government (PEG access), she said, which is usually addressed in local contracts for cable operations between municipalities and cable companies. And she ruled that decisions over which channels are assigned to local access programming are a matter of consumer protection, as is the requirement to carry programs in high-definition formats if it’s recorded that way.

Torresen also rejected the cable association’s argument that Maine’s law violates the First Amendment rights of cable companies by limiting their editorial discretion over how, and on which channels, to transmit local access programming. Torreson said other court rulings allow for some control over cable companies’ decisions about which channels to carry, and she turned the argument around, saying that exercising controls on public access broadcasts violated those channels’ First Amendment rights.

The Maine law on public access channels also requires cable companies to offer to provide cable service to parts of towns with a density of at least 15 homes per cable mile, compared with some service agreements for areas with 17 to 43 homes per mile, depending on the carrier. The ruling said the density rules were left to local communities and states to decide under federal cable regulations.


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