Ncta Internet & Television Ass'n v. Frey, Docket No. 2:19-cv-420-NT

Decision Date11 March 2020
Docket NumberDocket No. 2:19-cv-420-NT
Parties NCTA – INTERNET & TELEVISION ASSOCIATION, Plaintiff, v. Aaron FREY, Defendant.
CourtU.S. District Court — District of Maine

Howard J. Symons, Pro Hac Vice, Jessica Ring Amunson, Pro Hac Vice, Zachary C. Schauf, Pro Hac Vice, Jenner & Block LLP, Washington, DC, Joshua D. Dunlap, Catherine R. Connors, Pierce Atwood LLP, Portland, ME, for Plaintiff.

Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendant.

ORDER ON PLAINTIFF'S CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF

Nancy Torresen, United States District Judge Last year, Maine enacted L.D. 1371, "An Act To Ensure Nondiscriminatory Treatment of Public, Educational and Governmental Access Channels by Cable System Operators" ("LD 1371 "), which contains a number of provisions dealing with how cable operators provide and support public, educational, and government access channels ("PEG channels "). Among other things, LD 1371 requires cable operators: 1) to place PEG channels in positions near local broadcasting stations on the basic tier; 2) to retransmit PEG channel signals in the format in which they are received from PEG channel originators and at the same signal quality as local broadcast channels; and 3) to provide PEG channel originators with access to cable television services' electronic programming guides (the "PEG provisions "). 30-A M.R.S. §§ 3008, 3010. In addition, the law requires cable operators to extend cable service to areas that have a population density of at least 15 residences per linear strand mile (the "line extension provision "). 30-A M.R.S. § 3008.

Plaintiff NCTA – The Internet & Television Association ("NCTA "), a national trade association representing cable operators,1 challenges the above provisions of LD 1371 as facially unconstitutional. NCTA claims that all four provisions are preempted by federal law that governs cable communications, 47 U.S.C. §§ 521 – 5732 ("Federal Cable Law "), and claims that the PEG provisions also violate the First Amendment rights of its cable operator members. For the reasons that follow, I DENY the Plaintiff's claims for declaratory and injunctive relief.3 (ECF No. 1.)

BACKGROUND
A. Federal Cable Law

"The earliest cable systems were built in the late 1940's to bring clear broadcast television signals to remote or mountainous communities." Turner Broad. Sys., Inc. v. FCC ("Turner I "), 512 U.S. 622, 627, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Cable operators, in contrast to broadcasters that send signals over the airwaves, rely on a "physical, point-to-point connection between a transmission facility and the television sets of individual subscribers." Id. at 627–28, 114 S.Ct. 2445. In order to lay the cables necessary for the development of cable systems, cable operators used public rights of way. As a result, the cable medium has always depended "for its very existence upon express permission from local governing authorities." Id. at 628, 114 S.Ct. 2445.

For many years, cable television was primarily regulated by local governments through a franchise process. H.R. Rep. No. 98-934 at 4656–57, reprinted in 1984 U.S. Code Cong. & Admin. News (" House Report 98-934 "). A municipality would grant a cable operator a franchise that contained specifics about the nature of the system to be built, the services to be provided, and the rates to be charged. Id. at 4656. States also got in on the act. Some states acted as the franchising authorities or had processes for approving local franchise agreements; others regulated the terms of what was to be included in municipal franchise agreements. Id. In addition, over time the federal government, through the Federal Communications Commission ("FCC "), began to play a regulatory role, mostly in the operational aspects of cable, especially technical standards and signal quality. Nat'l Cable Television Ass'n v. FCC , 33 F.3d 66, 68–69 (D.C. Cir. 1994) ; House Report 98-934 at 4656–57.

With the 1984 Cable Act, Congress regulated cable television for the first time by adding "provisions governing the operation of cable providers and franchises" to the Communications Act of 1934. All. for Cmty. Media v. FCC , 529 F.3d 763, 767–68 (6th Cir. 2008). In the 1984 Cable Act, Congress continued to rely "on the local franchising process as the primary means of cable television regulation, while defining and limiting the authority that a franchising authority may exercise through the franchise process." House Report 98-934 at 4656. Wanting to encourage the growth of the cable industry, Congress sought to " ‘reliev[e] the cable industry from unnecessary, burdensome regulation.’ " Liberty Cablevision of P.R., Inc. v. Mun. of Caguas , 417 F.3d 216, 219 (1st Cir. 2005) (quoting Am. Civil Liberties Union v. FCC , 823 F.2d 1554, 1559 (D.C. Cir. 1987) ). At the same time, Congress sought to " ‘ensur[e] that cable systems remain responsive to the needs of the public.’ " Id. As one commentator noted:

Through the [1984] Cable Act, Congress recognized cable's multifunctional nature and took a position favoring a mixed scheme of federal, state and local regulation of the medium. Congress prescribed uniform rules for those aspects of cable television that it perceived to require federal attention. It left the substantial remainder of cable regulatory authority to state and local governments who, arguably, are in a better position to ascertain local needs and to design rules that best meet local conditions.

R. Copple, Cable Television and the Allocation of Regulatory Power: A Study of Government Demarcation and Roles , 44 Fed. Comm. L.J. 1, 4 (1991).

To this day, local franchising authorities retain the right to award and renew franchises, 47 U.S.C. §§ 541, 546, and "establish requirements for facilities and equipment." 47 U.S.C. § 544(b)(1). But states and franchising authorities are generally not allowed to regulate rates charged by cable operators that are subject to effective competition, 47 U.S.C. § 543(a)(1)(2), and they cannot prohibit, condition, or restrict a cable system's use of subscriber equipment or transmission technology. 47 U.S.C. § 544(e).

Federal Cable Law provides cable operators with various protections, including procedures and standards that govern the renewal of incumbent cable franchises. See 47 U.S.C. § 546. In contrast to the initial franchising provision, which contains little detail, see 47 U.S.C. § 541, the renewal provision sets forth a process that requires consideration of the cable operator's track record, the quality of the cable operator's service, and whether the cable operator's proposal "is reasonable to meet the future cable-related community needs and interests, taking into account the cost of meeting such needs and interests." 47 U.S.C. § 546(c)(1)(A)(D). If a franchising authority decides not to renew a franchise agreement, a cable operator is entitled to an administrative hearing with basic due process protections. 47 U.S.C. § 546(c)(2). A franchising authority must support any adverse decision in writing, and a cable operator can seek judicial review of any adverse decision. 47 U.S.C. § 546(c)(e).

Federal Cable Law also contains provisions governing PEG channels. 47 U.S.C. §§ 531, 541(a)(4)(B). Congress considered PEG channels to be the "video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet" and important to ensuring a diversity of voices and an informed citizenry. House Report 98-934 at 4667. Congress included provisions allowing franchising authorities to require "adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity." 47 U.S.C. § 541(a)(4)(B). Franchising authorities retained the rights to include requirements for the designation and use of PEG channels in their requests for initial proposals and renewals, 47 U.S.C. § 531(b), and to enforce any requirements within their franchise agreements "regarding the providing or use of such channel capacity" including

the authority to enforce any provisions of the franchise for services, facilities, or equipment proposed by the cable operator which relate to public, educational, or governmental use of channel capacity, whether or not required by the franchising authority.

47 U.S.C. § 531(c).

B. Maine's Regulatory Structure and LD 1371

Maine has expressly authorized municipalities to enter franchise agreements with cable operators. 30-A M.R.S. § 3008. Maine law regulating the cable industry is found at 30-A M.R.S. §§ 3008 – 3010. Section 3008(5) contains various requirements that municipalities must include in franchise agreements. Section 3010, entitled "Consumer rights and protection relating to cable television service," sets forth consumer protection and customer rights provisions that apply directly to cable operators.

LD 1371 amends § 3008(5) and § 3010 to address concerns about PEG channel access. Within the last several years, cable operators began taking steps that made it more difficult to find and watch PEG channels. Decl. of Anthony Vigue ¶¶ 4–5, 9 (ECF No. 25). First, cable operators began moving PEG channels from their long-standing channel positions in the single-digits to hard-to-find subchannels or channel positions in the 1300 block of channels, a region dubbed "digital Siberia." Id. Viewers had difficulty finding their local PEG channels, and the problem was compounded by the fact that the electronic programming guide identifies PEG channels only as "LOCAL" and without a description of programming that is seen for other channels. Id. ¶¶ 14–19. Second, although some PEG stations produce their content in high definition ("HD "), cable operators refuse to retransmit that content in HD, instead down converting it to standard definition ("SD "). Id. ¶¶ 21–22. As a result of cable operators' downgrading, consumers see a smaller, grainier picture on PEG channels than on most other channels. Id. ¶ 21; see Rebuttal...

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  • NCTA -- The Internet & Television Ass'n v. Frey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 3, 2021
    ...and denied any relief on that basis. We affirm.I.A.NCTA is a trade association for the cable television industry in the United States. NCTA -- The Internet & Television Ass'n v. Frey, 451 F. Supp. 3d 123, 129 (D. Me. 2020) . Its members include operators of cable systems throughout the cou......
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    • United States
    • U.S. District Court — District of Columbia
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  • NCTA -The Internet & Television Ass'n v. Frey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 3, 2021
    ...A. NCTA is a trade association for the cable television industry in the United States. NCTA -- The Internet &Television Ass'n v. Frey, 451 F.Supp.3d 123, 129 (D. Me. 2020). Its members include operators of cable systems throughout the country, including in Maine. Id. at 129 &n.1. In general......

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