United States District Court, D. Maine
COMCAST OF MAINE/NEW HAMPSHIRE, INC., et al. Plaintiffs,
JANET MILLS, et al., Defendants.
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY
TORRESEN UNITED STATES DISTRICT JUDGE
year, Maine enacted LD 832, which requires cable operators to
allow cable subscribers to purchase cable channels and
programs individually. Maine is the first state in the nation
to enact such an à la carte mandate. Plaintiff Comcast
of Maine/New Hampshire
(“Comcast”) currently bundles
most of its channels, requiring subscribers who wish to view
specific programming to receive more channels and programs
than they may need or want. Comcast and a number of video
programmers (collectively, the
“Plaintiffs”) claim LD 832 is
facially unconstitutional because it is preempted by federal
law and because it violates the First Amendment. Before me is
the Plaintiffs' motion for a preliminary injunction. For
the reasons that follow, I GRANT the
determining whether to grant a preliminary injunction, I must
(i) the movant's likelihood of success on the merits of
its claims; (ii) whether and to what extent the movant will
suffer irreparable harm if the injunction is withheld; (iii)
the balance of hardships as between the parties; and (iv) the
effect, if any, that an injunction (or the withholding of
one) may have on the public interest.
Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st
Plaintiffs bear the burden of establishing that these factors
weigh in their favor. Esso Standard Oil Co. (P.R.) v.
Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
“[T]he burdens at the preliminary injunction stage
track the burdens at trial.” Reilly v. City of
Harrisburg, 858 F.3d 173, 180 (3d Cir. 2017), as
amended (June 26, 2017) (internal quotation marks
omitted). In the context of a First Amendment claim, the
Plaintiffs have the burden to show that the state law
infringes on their First Amendment rights. Id. at
180 n.5 (citing Goodman v. Ill. Dep't of Fin. &
Prof'l Regulation, 430 F.3d 432, 438 (7th Cir.
2005)). If the Plaintiffs make this showing, then the State
must justify its restriction on speech under the appropriate
constitutional standard. Id. (citing Thalheimer
v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir.
Likelihood of Success
seeking a preliminary injunction must establish that it is
likely to succeed on the merits of its claims. The likelihood
of success on the merits prong has been described as the
sine qua non of the four factors for establishing a
preliminary injunction. New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)
(“[I]f the moving party cannot demonstrate that he is
likely to succeed in his quest, the remaining factors become
matters of idle curiosity.”)
Plaintiffs argue that the à la carte mandate is
preempted by the federal Cable Act, 47 U.S.C. §§
521 et seq.,  and that the law violates their rights
under the First Amendment. I discuss each argument in turn.
VI of the Constitution provides that the laws of the United
States “shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art VI, cl. 2.
It has long been recognized that “state law that
conflicts with federal law is without effect.”
Cipollone v. Liggett Grp., Inc., 505 U.S.
504, 516 (1992) (internal quotation marks omitted). The
Supreme Court has made clear that:
because the States are independent sovereigns in our federal
system, we have long presumed that Congress does not
cavalierly pre-empt state-law causes of action. In all
pre-emption cases . . . we “start with the assumption
that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.”
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)).
may preempt state law either directly-through an express
preemption provision in a federal statute-or implicitly.
Grant's Dairy-Me., LLC v. Comm'r of Me. Dep't
of Agric., Food & Rural Res., 232 F.3d 8, 15 (1st
Cir. 2000). The Plaintiffs maintain that the federal Cable
Act does both.
intent is the touchstone of any effort to map the boundaries
of an express preemption provision.” Tobin v. Fed.
Express Corp., 775 F.3d 448, 452 (1st Cir. 2014)
(citations omitted). Because there exists a
“presumption against the preemption of state police
power regulations, ” the Supreme Court has instructed
lower courts to narrowly interpret express preemption
provisions. Medtronic, 518 U.S. at 485 (quoting
Cipollone, 505 U.S. at 518).
Plaintiffs contend that provisions of the Cable Act-47 U.S.C.
§ 544(f) and 47 U.S.C. § 544(a) and (b)-expressly
preempt LD 832. Accordingly, I consider whether Congress
intended to expressly preempt states from imposing à
la carte mandates on cable operators under those sections.
544(f) prohibits states from imposing “requirements
regarding the provision or content of cable services, ”
unless expressly allowed by the Cable Act. 47 U.S.C. §
544(f)(1). The Plaintiffs argue that the à la carte
mandate is a “requirement regarding the provision or
content of cable services, ” preempted by the plain
meaning of § 544(f). Pls.' Mot. for Preliminary
Injunction (“Mot.”) 7 (ECF No.
14). The State urges me to adopt a narrower definition of the
term “provision” in § 544(f), relying on the
structure of the Cable Act, its legislative history, and
cases that have interpreted the provision. State's
Opp'n to Mot. (“Opp'n”)
6-13 (ECF No. 69).
Interpreting § 544(f)
The Plain Meaning of § 544(f)
[a]ny Federal agency, State, or franchising authority may not
impose requirements regarding the provision or content of
cable services, except as expressly provided in [the Cable
47 U.S.C. § 544(f)(1). In enacting LD 832, the State has
attempted to impose requirements regarding how cable
operators must provide programming. If § 544(f) is
considered in isolation, then by its plain meaning, LD 832
would be preempted.
Supreme Court has recently explained the relevant rules of
If the statutory language is plain, we must enforce it
according to its terms. Hardt v. Reliance Standard Life
Ins. Co., 560 U.S. 242, 251 (2010). But oftentimes the
“meaning-or ambiguity-of certain words or phrases may
only become evident when placed in context.” [FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000).] So when deciding whether the language is plain,
we must read the words “in their context and with a
view to their place in the overall statutory scheme.”
Id. at 133 (internal quotation marks omitted). Our
duty, after all, is “to construe statutes, not isolated
provisions.” Graham County Soil and Water
Conservation Dist. v. United States ex rel. Wilson, 559
U.S. 280, 290 (2010) (internal quotation marks omitted).
King v. Burwell, 135 S.Ct. 2480, 2489 (2015)
(parallel citations omitted).
Section 544(f) in Context
of a word or phrase depends upon reading the whole statutory
text, considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the
analysis.” Dolan v. U.S. Postal Serv., 546
U.S. 481, 486 (2006). Taking into account the context of
§ 544(f), at least one other section of the Cable Act
suggests that Congress did not intend the phrase
“provision . . . of cable services” to be read
broadly. Section 544(e), which was also enacted as part of
the 1984 Cable Act, provides that “[n]o State or
franchising authority may prohibit, condition, or restrict a
cable system's use of any type of subscriber equipment or
any transmission technology.” 47 U.S.C. § 544(e).
A restriction on transmission technology or subscriber
equipment would fall within the plain meaning of a
“requirement regarding the provision . . . of cable
services, ” rendering § 544(e) unnecessary if
“provision” is read broadly. See McDonnell v.
United States, 136 S.Ct. 2355, 2369 (2016) (rejecting
interpretation that would render other parts of the statute
as the State points out, § 552(d) provides that the
Cable Act should not “be construed to prohibit any
State or any franchising authority from enacting or enforcing
any consumer protection law, to the extent not specifically
preempted by this subchapter.” 47 U.S.C. § 552(d).
If “provision” is interpreted broadly, it would
appear to specifically preempt the State from enacting
any consumer protection law involving the cable
industry,  since such laws would all be
“requirements regarding the provision . . . of cable
services.” 47 U.S.C. § 544(f). If all consumer
protections laws were preempted by § 544(f), there would
be no point to having § 552(d). In sum, § 544(e) and
§ 552(d) strongly suggest that Congress did not intend
“provision” in 544(f) to have a broad meaning.
meaning “ ‘sometimes must yield if its
application would bring about results that are antithetical
to Congress's discernible intent.' ” United
States v. Gordon, 875 F.3d 26, 34 (1st Cir. 2017)
(quoting In re Hill, 562 F.3d 29, 32 (1st Cir.
2009)). Because the term “provision or content of cable
services, ” considered in the broader context of the
Cable Act, is ambiguous, it is appropriate to look to the
legislative history to attempt to understand Congress's
intent. Miner v. Dep't. of Navy, 562 U.S. 562,
572 (2011) (“[C]lear evidence of congressional intent
may illuminate ambiguous text.”).
1984 Cable Act, Congress sought to establish a national
policy that clarified the then-existing system of local,
state, and federal regulation of cable television. H.R. Rep.
No. 98-934, reprinted in 1984 U.S. Code Cong. &
Admin. News (“House Report” or
“H. Rep.”) 4655, 4656. Congress
recognized the fundamental importance of developing a
“robust marketplace of ideas” containing a
“wide variety of perspectives from many different types
of program providers.” Id. To accomplish these
goals, it required cable companies to make space for public
access channels and third-party commercial access.
See 47 U.S.C. §§ 531-532.
House Report shows that Congress was concerned about the
First Amendment rights of cable operators to control the
content of their programming. The House Report repeatedly
emphasizes the need to ensure that government officials not
be able to “dictate the specific programming to be
provided over a cable system.” H. Rep. at 4663, 4695;
see also Id. at 4656, 4668-69, 4671, 4673-74, 4706,
4716 (discussing impact of Cable Act on various First
Amendment interests). To that end, Congress set limits on the
regulatory powers of the Federal Communications Commission
authorities, and states. 47 U.S.C. § 544. It allowed
franchising authorities to set requirements for facilities
and equipment but limited their rights to “establish
requirements for video programming or other information
services.” 47 U.S.C. § 544(b). Similarly, in
§ 544(f), it prohibited federal agencies, states, and
franchising authorities from imposing “requirements
regarding the provision or content of cable services.”
47 U.S.C. § 544(f). The legislative history suggests
that the Cable Act as a whole-and § 544(f)
specifically-was concerned with preventing government
officials from controlling the content of cable programming.