Comcast of Maine/New Hampshire v. Mills ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1104
COMCAST OF MAINE/NEW HAMPSHIRE, INC.; A&E TELEVISION NETWORKS,
LLC; C-SPAN; CBS CORP.; DISCOVERY, INC.; DISNEY ENTERPRISES,
INC.; FOX CABLE NETWORK SERVICES, LLC; NBCUNIVERSAL MEDIA, LLC;
NEW ENGLAND SPORTS NETWORK, LP; VIACOM, INC.,
Plaintiffs, Appellees,
v.
JANET MILLS, in her official capacity as the Governor of Maine;
AARON FREY, in his official capacity as the Attorney General of
Maine,
Defendants, Appellants,
CITY OF BATH, MAINE; TOWN OF BERWICK, MAINE; TOWN OF BOWDOIN,
MAINE; TOWN OF BOWDOINHAM, MAINE; TOWN OF BRUNSWICK, MAINE; TOWN
OF DURHAM, MAINE; TOWN OF ELIOT, MAINE; TOWN OF FREEPORT, MAINE;
TOWN OF HARPSWELL, MAINE; TOWN OF KITTERY, MAINE; TOWN OF
PHIPPSBURG, MAINE; TOWN OF SOUTH BERWICK, MAINE; TOWN OF
TOPSHAM, MAINE; TOWN OF WEST BATH, MAINE; TOWN OF WOOLWICH,
MAINE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch and Lipez, Circuit Judges.
 Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
Christopher C. Taub, Deputy Attorney General of the State of
Maine, with whom Aaron M. Frey, Attorney General of the State of
Maine, was on brief, for appellants.
Matthew A. Brill, with whom Melissa Arbus Sherry was on brief,
for appellees.
Kelly M. Klaus, Donald B. Verrilli, Jr., and Elaine J.
Goldenberg on brief for WarnerMedia, LLC, amicus curiae.
Corbin K. Barthold and Cory L. Andrews on brief for Washington
Legal Foundation, amicus curiae.
John Ulin, James S. Blackburn, and Oscar Ramallo on brief for
Motion Picture Association, Inc., amicus curiae.
February 24, 2021
LIPEZ, Circuit Judge. Maine passed a law in 2019
requiring cable operators to offer their subscribers the option of
buying access to cable programs and channels individually, rather
than bundled together in a channel or package of channels. A group
of cable operators and programmers sued and sought a preliminary
injunction against enforcement of the law, arguing that it violated
the First Amendment and was preempted by provisions of the federal
Communications Act. The district court granted the preliminary
injunction on First Amendment grounds, and Maine appealed.
For the reasons discussed below, we agree with the
district court that the law implicates the First Amendment and
therefore triggers some form of heightened -- either intermediate
or strict -- judicial scrutiny. We also accept Maine's concession
that, at this point in the litigation, it has not offered enough
evidence in support of the law to survive such scrutiny. We
therefore affirm.
I.
The law at issue is called "An Act to Expand Options for
Consumers of Cable Television in Purchasing Individual Channels
and Programs." 2019 Me. Laws 129th Leg., ch. 308 (codified at Me.
Stat. tit. 30-A, § 3008(3)(F) (2019)) ("Chapter 308" or "the Act").
The sole operative provision of the Act imposed an "à la carte"
requirement on cable operators: "Notwithstanding any provision in
a franchise, a cable system operator shall offer subscribers the
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option of purchasing access to cable channels, or programs on cable
channels, individually." Id. As far as the record on appeal
indicates, the accompanying legislative record was sparse. The
district court noted that the Maine Legislature did not hear from
expert witnesses or commission a Maine-specific study to determine
what impact the Act would have on access to cable services.
However, one of the Act's sponsors testified before the
Energy, Utilities, and Technology Committee that he had "submitted
th[e] bill on behalf of Maine's hundreds of thousands of cable
television subscribers," who "[f]or far too long . . . have been
forced to purchase cable TV packages which include dozens of
channels the consumer has no interest in watching." Citing a
Federal Communications Commission ("FCC") survey, the sponsor
reported that the price of an expanded basic cable package had
risen faster than inflation, and, relying on a 2006 FCC report,
suggested that the average cable bill would be thirteen percent
lower if consumers could subscribe to only their preferred
channels. Barry Hobbins, Maine's Public Advocate, also offered
testimony, suggesting that many consumers were frustrated with
their cable providers and would prefer a regime in which they only
paid for the channels they actually watched. Although the Public
Advocate did not formally endorse the Act, he opined that the law
"would go a long way in an attempt to remedy the lack of consumer
choice in the cable marketplace in Maine."
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Before the Act went into effect, a cable operator
(Comcast of Maine/New Hampshire, Inc.) and various cable
programmers (together, "plaintiffs" or "the cable companies")1 sued
the Governor and the Attorney General of Maine ("the state
defendants" or simply "Maine" or "the state")2 in federal district
court, claiming that Chapter 308 violated the First Amendment and
was preempted by various provisions of the federal Communications
Act of 1934, as amended. A few days later, the plaintiffs moved
for a preliminary injunction against enforcement of the Act. The
district court consolidated the trial on the merits with a hearing
on the preliminary injunction motion. See Fed. R. Civ. P.
65(a)(2).
During the district court proceedings, the state
explained in more detail how the Act would be interpreted and
enforced. See Sorrell v. IMS Health Inc., 564 U.S. 552, 563 (2011)
1In general, cable operators own the physical cable
infrastructure that delivers a signal to viewers; cable
programmers produce television content and sell or license it to
cable operators. See Turner Broadcasting System, Inc. v. FCC
("Turner I"), 512 U.S. 622, 628 (1994). The programmers
challenging the law here are: A&E Television Networks, LLC; C-
SPAN; CBS Corp.; Discovery, Inc.; Disney Enterprises, Inc.; Fox
Cable Network Services, LLC; NBCUniversal Media, LLC; New England
Sports Network, LP; and Viacom, Inc. When the distinction between
the programmers and operators is unimportant, we occasionally
refer to the combined plaintiffs as just "the cable companies."
The plaintiffs also named various Maine municipalities as
2
defendants. They were dismissed by a joint stipulation below and
are not parties to the present appeal.
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(noting that lower courts are "entitled to rely on the [s]tate's
plausible interpretation of the law it is charged with enforcing").
The state pointed out that there is a familiar model for
subscribing to cable TV. Cable programmers (like Disney) compile
individual television programs into linear streams3 of content
called channels (like ESPN). Cable operators (like Comcast) bundle
those channels into various tiers (like Comcast's "Sports &
Entertainment" or "Kids & Family" packages), which customers can
purchase. As written, the Act requires cable operators to provide
subscribers with the option to purchase every cable channel and
television program individually (or "à la carte").4 Hence, a
3A "linear stream," in this context, signifies a continuous
series of prescheduled programs; it differs from an "on demand"
arrangement, which allows viewers to watch a program whenever they
choose. See Implementation of Section 304 of the
Telecommunications Act of 1996, Fourth Further Notice of Proposed
Rulemaking, 25 FCC Rcd. 4303, 4308, ¶ 14 n.43 (Apr. 21, 2010) ("The
term 'linear programming' is generally understood to refer to video
programming that is prescheduled by the programming provider. Cf.
47 U.S.C. § 522(12) (defining 'interactive on-demand services' to
exclude 'services providing video programming prescheduled by the
programming provider').").
4In fact, the Act is written in the disjunctive, requiring
"the option of purchasing access to cable channels, or programs on
cable channels." Me. Stat. tit. 30-A, § 3008(3)(F) (emphasis
added)). But the parties and the district court treated the Act
as requiring both options. See, e.g., Appellants' Br. at 10
(explaining that Chapter 308 "requires the unbundling of channels
and programs" (emphasis added)); Comcast of Me./N.H., Inc. v.
Mills, 435 F. Supp. 3d 228, 249 n.13 (D. Me. 2019) (explaining
that Chapter 308 "requires that cable operators offer consumers
the ability to purchase both individual channels, such as ESPN or
the Food Network, and individual programs, such as one Monday Night
Football game or one episode of Chopped" (emphasis added)). We
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customer, instead of having to buy the full "Sports &
Entertainment" package, could pay only for the ESPN channel.
Further, under the law, instead of paying for the entire EPSN
channel, a customer could pay to view a single Red Sox game.
The state also clarified in its briefing that the "à la
carte" option would only be available to customers who already
subscribe to (at least) a basic cable tier or package, in order to
avoid any potential conflict with federal law regulating the basic
tier. See 47 U.S.C. § 543(b)(7). Separately, the state also
acknowledged to the court at the hearing that nothing in the Act
requires a cable operator to charge any particular price for an
individual channel or program. As a result, cable operators could
continue to steer subscribers to bundled tiers by offering
attractive discounts (or, equivalently, by charging high prices
for à la carte options).
After considering the parties' arguments, the district
court granted the motion for a preliminary injunction. See Comcast
of Me./N.H., Inc. v. Mills, 435 F. Supp. 3d 228, 233 (D. Me. 2019).
The court first determined that the Act was not expressly or
impliedly preempted by federal law. Id. at 244. However, the
court found that the Act likely burdened the plaintiffs' First
simply follow suit, as neither party has raised this issue on
appeal.
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Amendment rights because, even though it did not impinge on the
plaintiffs' editorial discretion, it nonetheless singled them out
for disfavored treatment. Id. at 245-46. Additionally, the court
concluded that the state had not shown -- at least "[a]t this
initial stage" -- that the Act was likely to achieve its primary
goal: reducing prices and increasing affordable access to cable.
Id. at 249. The court then concluded that the remaining
requirements for a preliminary injunction were satisfied. Id. at
249-50. As part of its determination, the court also reconsidered
the desirability of combining the preliminary injunction hearing
with the merits trial. Because the court was now convinced that
the evidentiary record was not "sufficiently developed" for "a
final determination" on the underlying claims for declaratory and
permanent injunctive relief, it declined to enter final judgment.
Id. at 250. The defendants timely appealed the entry of the
preliminary injunction, and the parties agreed to stay further
proceedings in the district court pending the outcome of the
appeal.
II.
We will uphold a decision to grant a preliminary
injunction unless it constitutes an abuse of discretion. Doe v.
Trs. of Bos. Coll., 942 F.3d 527, 532 (1st Cir. 2019). We review
the district court's findings of fact for clear error and its
conclusions of law de novo. Id.- 8 -
In assessing the plaintiffs' request for a preliminary
injunction, the district court found that all four of the relevant
factors (that is, "(1) the movant's likelihood of success on the
merits; (2) the likelihood of the movant suffering irreparable
harm; (3) the balance of equities; and (4) whether granting the
injunction is in the public interest") weighed in favor of granting
the request. Shurtleff v. City of Bos., 928 F.3d 166, 171 (1st
Cir. 2019). On appeal, the state has not challenged the district
court's assessment of the latter three factors or suggested that
any of the district court's factual findings amounted to clear
error. Instead, it takes issue with the district court's
conclusion that the plaintiffs were likely to succeed on the merits
of their First Amendment claim. The state argues that the First
Amendment is not implicated at all. Hence, the standard of review
is mere rational basis, and not some heightened standard of review.
As appellees, the cable companies defend the entry of
the preliminary injunction on both First Amendment and federal
preemption grounds. We can affirm the entry of the preliminary
injunction on any ground supported by the record. See Jennings v.
Stephens, 574 U.S. 271, 276 (2015) (noting that an appellee,
without taking a cross-appeal, can argue for affirmance on any
ground supported by the record, even if it involves an attack on
the reasoning of the lower court). We choose to address the more
thoroughly briefed First Amendment issue, reviewing de novo the
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legal conclusions underpinning the district court's analysis. We
do not reach any preemption issues.
Thus framed, our task is narrow. The state candidly
conceded at oral argument that, if the Act triggers the First
Amendment at all, the existing record is insufficient to justify
the law and the state cannot prevail on this appeal. The central
question, then, is whether Chapter 308 likely implicates the First
Amendment rights of cable operators or programmers. If we find
that it does, the action will return to the district court for
consideration of which level of constitutional scrutiny applies,
whether additional, post-enactment evidence can be offered in
support of the law, and potentially even whether, on a more fulsome
record, the state law is preempted.5
Because this is an appeal of a preliminary injunction,
we assess only whether the district court abused its discretion in
finding a likelihood of success on the First Amendment argument.
At the same time, given the fullness of the record on the First
5 The district court explicitly reserved the first two of
these questions. See Comcast of Me./N.H., Inc., 435 F. Supp. 3d
at 249 n.14 ("Because I reach the conclusion I do, I sidestep the
question of whether the legislature itself must create a record
showing that a problem actually exists and that the law is likely
to solve that problem."); id. at 248 ("Because I ultimately
conclude that the State has not met its burden of showing that it
is likely to succeed under intermediate scrutiny, I do not need to
decide this issue [i.e., whether strict scrutiny applies] at this
time.").
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Amendment issue, our legal conclusion -- whether the First
Amendment is implicated at all -- will be binding, barring any
unforeseen developments in the factual record below. Under the
law of the case doctrine, a panel decision on a preliminary
injunction motion constitutes binding precedent, at least when the
record before the panel was "sufficiently developed and the facts
necessary to shape the proper legal matrix we[re] sufficiently
clear." Naser Jewelers, Inc. v. City of Concord, 538 F.3d 17, 20
(1st Cir. 2008) (quoting Cohen v. Brown Univ., 101 F.3d 155, 169
(1st Cir. 1996)); see also 18B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 4478.5 (2d ed. 2020) ("A
fully considered appellate ruling on an issue of law made on a
preliminary injunction appeal . . . does become the law of the
case for further proceedings in the trial court on remand and in
any subsequent appeal."). For that reason, and for brevity, we
will not refer to "likelihoods" and "probabilities" on the First
Amendment issue.
III.
In Turner Broadcasting System, Inc. v. FCC ("Turner I"),
512 U.S. 622 (1994), the Supreme Court explained the applicability
of the First Amendment to the commercial medium of cable
television: "Cable programmers and cable operators engage in and
transmit speech, and they are entitled to the protection of the
speech and press provisions of the First Amendment." Id. at 636
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(citing Leathers v. Medlock, 499 U.S. 439, 444 (1991)). This is
so, the Court reasoned, because whether "[t]hrough 'original
programming or by exercising editorial discretion over which
stations or programs to include in its repertoire,' cable
programmers and operators 'see[k] to communicate messages on a
wide variety of topics and in a wide variety of formats.'" Id.(quoting City of Los Angeles v. Preferred Commc'ns, Inc., 476 U.S.
488, 494 (1986)).
However, this observation -- that a cable operator or
programmer can, just like any private citizen or member of the
press, invoke the speech protections of the First Amendment -- is
just an "initial premise." Id. As other circuits have
subsequently observed, a cable company alleging a violation of its
First Amendment rights must still "show that the challenged
government action actually regulates protected speech,"
Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 96 (2d Cir. 2009), or
"interferes with [its] speech rights," Time Warner Entm't Co. v.
FCC, 240 F.3d 1126, 1129 (D.C. Cir. 2001). After all, "without a
plausible allegation that the offensive conduct interferes with
First Amendment rights," a reviewing court "has neither a reason
nor the ability to subject the conduct of the governmental actor
to heightened scrutiny." Cablevision Sys. Corp., 570 F.3d at 96.
Even then, incidental burdens imposed by a law on a
speaker's First Amendment activities are not necessarily enough to
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trigger heightened scrutiny under the First Amendment. See Turner
I, 512 U.S. at 640 (noting that "the enforcement of a generally
applicable law may or may not be subject to heightened scrutiny
under the First Amendment"). It is "beyond dispute," for example,
that the government "can subject newspapers to generally
applicable economic regulations without creating constitutional
problems," Minneapolis Star & Trib. Co. v. Minn. Comm'r of Revenue,
460 U.S. 575, 581 (1983), even if their "enforcement against the
press has incidental effects on its ability to gather and report
the news," Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).
Indeed, whole categories of law -- copyright, tax, antitrust, and
labor, just as examples -- impose burdens on the press without
necessarily raising First Amendment hackles. See id. at 669-70;
see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986)
("One liable for a civil damages award has less money to spend on
paid political announcements or to contribute to political causes,
yet no one would suggest that such liability gives rise to a valid
First Amendment claim.").
Turner I and its follow-on case, Turner Broadcasting
System, Inc. v. FCC ("Turner II"), 520 U.S. 180 (1997), illustrate
how these principles apply. At issue in both cases were the "must-
carry" provisions of the Cable Television Consumer Protection and
Competition Act of 1992 ("1992 Cable Act" or "Cable Act"), which
requires cable operators to dedicate some of their channel capacity
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to carrying local broadcast stations. Turner I, 512 U.S. at 630.
Each case developed a different part of the analysis. Turner I
analyzed which level of heightened First Amendment scrutiny (if
any) applied and concluded that intermediate scrutiny governed.
512 U.S. at 636-62. Turner II, on a more factually developed
record, evaluated the burdens and benefits of the provisions under
intermediate scrutiny. 520 U.S. at 185.
Across the two cases, the Court explained that the "must-
carry" requirements interfered with protected speech because:
First, the provisions restrain cable
operators' editorial discretion in creating
programming packages by "reduc[ing] the number
of channels over which [they] exercise
unfettered control." Second, the rules
"render it more difficult for cable
programmers to compete for carriage on the
limited channels remaining."
Turner II, 520 U.S. at 214 (quoting Turner I, 512 U.S. at 637).
The Court also rejected the argument that the "must-carry"
provisions were "nothing more than industry-specific antitrust
legislation" that would only "warrant rational-basis scrutiny."
Turner I, 512 U.S. at 640. That was because "laws that single out
the press, or certain elements thereof, for special treatment 'pose
a particular danger of abuse by the State,' and so are always
subject to at least some degree of heightened First Amendment
scrutiny." Id. at 640-41 (quoting Ark. Writers' Project, Inc. v.
Ragland, 481 U.S. 221, 228 (1987)) (citing City of Los Angeles,
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476 U.S. at 496). Given that "the must-carry provisions impose
special obligations upon cable operators and special burdens upon
cable programmers," the Court concluded that "some measure of
heightened First Amendment scrutiny is demanded." Id. at 641
(citing Minneapolis Star & Trib. Co., 460 U.S. at 583).
IV.
Building on Turner I and II, the cable companies identify
two ways in which Chapter 308 allegedly burdens their First
Amendment rights. First, they argue that it constitutes a speaker-
based regulation that "singles out" cable operators' speech for
special, disfavored treatment. Second, they claim it infringes on
cable operators' and programmers' "editorial discretion." Because
we find merit in the "singling out" argument, we need not, and
therefore do not, reach the district court's determination that
the cable companies failed to provide adequate support for their
contention that Chapter 308 also triggers heightened scrutiny
because it impinges on their "editorial discretion."
There is no question that the á la carte requirement
"singles out" in some sense. Chapter 308 applies only to "cable
system operator[s]," and says nothing about direct competitors
like satellite-based operators (e.g., DirectTV and DISH Network)
and internet-based operators (e.g., YouTube TV and Hulu+ Live TV).
Me. Stat. tit. 30-A, § 3008(3)(F). The question is whether Chapter
308's targeted obligation triggers heightened First Amendment
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scrutiny under Turner I. The cable companies argue that the
obligation is significant. They point to various kinds of costs
that would be imposed by the law. Some costs would be technical
in nature. Comcast suggests it would need to overhaul its
ordering, distribution, and billing systems. In addition, some
customers have older set-top boxes that cannot deliver á la carte
content. These would have to be replaced with newer digital
equipment. Other potential burdens are legal in nature. Comcast
maintains that many of its existing agreements with programmers
(so-called "affiliation agreements") prohibit á la carte
transmission and would therefore have to be renegotiated.
Against this background, we begin with Turner I's
explanation of when heightened scrutiny applies. The Court's
language is broad and unqualified: "[L]aws that single out the
press, or certain elements thereof, for special treatment . . .
are always subject to at least some degree of heightened First
Amendment scrutiny." 512 U.S. at 640-41 (emphasis added) (citing
City of Los Angeles, 476 U.S. at 496). Later in the opinion, when
deciding whether strict scrutiny (rather than intermediate
scrutiny) applied under a "singling out" theory, the Court also
explained that "the fact that a law singles out a certain medium,
or even the press as a whole, 'is insufficient by itself to raise
First Amendment concerns.'" Turner I, 512 U.S. at 660 (quoting
Leathers, 499 U.S. at 452). This later statement, however, must
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be read in context. By this point in the opinion, the Court had
already determined that heightened scrutiny applied; it was now
considering whether "singling out" mandated strict scrutiny.
Indeed, the Court began the paragraph in which this statement
appears by explaining that "[i]t would be error to conclude
. . . that the First Amendment mandates strict scrutiny for any
speech regulation that applies to one medium (or a subset thereof)
but not others." Id. (emphasis added). We thus read this latter
reference to "rais[ing] First Amendment concerns" consistently
with the opinion's earlier discussion, as addressing the
applicable level of heightened scrutiny and not whether heightened
scrutiny applies at all.
Even if Turner I's very broad statement (i.e., that laws
that single out the media are always subject to heightened
scrutiny) is not true in all instances, the state's reasons for
withholding heightened scrutiny in this case are unpersuasive,
given that Chapter 308 targets cable operators but leaves similarly
situated internet- and satellite-based operators untouched. Maine
first argues that Turner I's "singling out" holding is inapplicable
to consumer protection laws like the one at issue here. It points
out that many consumer protection laws apply only to cable
operators. For example, Maine requires that cable operators issue
credits for service interruptions, provide toll-free telephone
numbers for receiving customer complaints, and refrain from
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charging excessive late payment fees. See Me. Stat. tit. 30-A, §
3010(1), (6-B). The state rejects the suggestion that such
consumer protection measures will trigger First Amendment scrutiny
simply because they "single out" cable operators. Turner I makes
clear, however, that state consumer protection laws may still be
subject to heightened scrutiny on the basis that they "single out."
Indeed, the "must-carry" provisions at issue in the Turner cases
could themselves be fairly characterized as consumer protection
measures, insofar as they were intended to ensure the "continued
availability of free local broadcast television" to viewers unable
to afford paid options. Turner I, 512 U.S. at 646. Hence, Turner
I itself suggests that a beneficent consumer protection purpose
does not insulate a law from the possible application of the First
Amendment.
In rejecting the state's argument, we do not dismiss its
concerns about applying the heightened scrutiny required under the
First Amendment to laws that arguably may impose no more than de
minimis costs on a segment of the media. Those concerns, however,
can be addressed through the appropriate application of the
heightened standard of review. Heightened scrutiny will not
prevent Maine from enforcing cable-specific laws that serve
important state interests. Indeed, if intermediate scrutiny
applies, Maine will still enjoy "latitude in designing a regulatory
solution." Turner II, 520 U.S. at 213.
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Trying another tack, the state suggests that "singling
out" concerns are generally restricted to laws that impose special
taxes on the press. To be sure, Turner I's discussion did rely
heavily on cases involving selective and discriminatory taxes.
The opinion itself, however, applied the "singling out" analysis
to a non-tax law, i.e., the "must-carry" provisions. See 512 U.S.
at 641. Moreover, the Supreme Court has recognized that different
"forms of financial burden" can "operate as disincentives to
speak." Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 108 (1991). Taxing the media may be
the most obvious way to impose a burden, but it is not the only
way. See id. at 108-09 (discussing a "Son of Sam" law that escrowed
the speaker's speech-derived income for at least five years); see
also Pitt News v. Pappert, 379 F.3d 96, 110, 111-12 (3d Cir. 2004)
(reasoning that the "[g]overnment can . . . seek to control,
weaken, or destroy a disfavored segment of the media by targeting
that segment" and that "whether those burdens take the form of
taxes or some other form is unimportant").
In a third attempt to insulate Chapter 308 from
heightened scrutiny despite its targeting of cable operators, the
state contends that a law singling out part of the media for
disfavored treatment raises First Amendment concerns only if the
law "directly" or "independently" implicates the First Amendment's
free speech protections. We are again unconvinced. If a law
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implicates the First Amendment for some other, independent reason,
it is hard to see what additional force a "singling out" analysis
brings to the table. Contrary to the state's suggestion, First
Amendment law is often concerned with laws that do not "directly"
implicate the First Amendment. As the Court has explained,
heightened First Amendment scrutiny can apply, for example, to
"statutes which, although directed at activity with no expressive
component, impose a disproportionate burden upon those engaged in
protected First Amendment activities" or have "the inevitable
effect of singling out those engaged in expressive activity."
Arcara, 478 U.S. at 704, 707.
Our conclusion that the First Amendment is triggered by
Chapter 308's targeting of cable companies aligns with the views
of other circuits that have similarly applied Turner I's "singling
out" rationale to cable- or satellite-specific regulations based
solely on the laws' narrow focus. For example, in DISH Network
Corp. v. FCC, the Ninth Circuit considered a preliminary injunction
against a law requiring that satellite operators begin carrying
certain channels in high definition by a specific date. 653 F.3d
771, 777 (9th Cir. 2011). As the court explained, the law did not
affect an operator's "ability to offer programs." Id. But it
required the satellite provider to change the order in which it
converted channels to HD, both prioritizing certain channels and
preventing the satellite provider from offering other programs in
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HD. Id. On that basis, the court concluded that the law implicated
the First Amendment, reasoning that, under Turner I, "any law that
singles out an element of the press is subject to some form of
heightened First Amendment scrutiny." Id. Hence, even though the
requirement imposed only "minimal and nuanced" obligations on
satellite carriers, it nonetheless "likely implicated" the First
Amendment. Id.6
Similarly, in Time Warner Entertainment Co. v. FCC, the
D.C. Circuit evaluated the constitutionality of cable rate
regulations issued by the FCC under the authority of the 1992 Cable
Act. 56 F.3d 151, 179 (D.C. Cir. 1995). That court also viewed
Turner I as holding that "laws of less than general application
aimed at the press or elements of it" trigger First Amendment
scrutiny. Id. at 181 (citing Turner I, 512 U.S. at 640).
Accordingly, the court concluded, "we know from [Turner I] that
rational basis cannot be the test" for evaluating the cable-
specific rate regulations at issue. Id.Finally, in Time Warner Cable, Inc. v. Hudson, the Fifth
Circuit reviewed a law that allowed some cable operators to opt
out of their existing municipal franchise agreements (and obtain
a new, more convenient state-wide franchise), but denied the same
privilege to larger, established operators. 667 F.3d 630, 634
DISH Network Corp. also concluded that the provision was
6
likely to survive intermediate scrutiny. See 653 F.3d at 782.
- 21 -
(5th Cir. 2012). The court concluded that the law was "not a law
of general applicability as it excludes statewide franchises from
certain incumbents and singles out elements of the press for
special treatment." Id. at 638. As a result, the First Amendment
was implicated; it remained only to "determine which form of
heightened scrutiny to apply." Id. (citing Turner I, 512 U.S. at
641).
Overall, we detect no basis here for departing from the
Supreme Court's explicit statement in Turner I that laws singling
out one segment of the press for "special treatment . . . are
always subject to at least some degree of heightened First
Amendment scrutiny." 512 U.S. at 640-41 (emphasis added). Chapter
308 expressly treats cable operators differently from some of their
direct competitors (like satellite-based Dish TV and DirectTV).
Cable operators alone must adopt an á la carte system, while their
competitors remain free to offer content in traditional tiers and
packages. That unique treatment amounts to singling out under
Turner I and triggers heightened scrutiny under the First
Amendment.
In so deciding, we leave open the question of whether
Chapter 308 would trigger "singling out" concerns if it applied
across the board to all pay TV systems, including satellite- and
internet-based ones. Turner I is fairly read to suggest that the
broader the scope of a regulation, the less likely it is to raise
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First Amendment concerns. See 512 U.S. at 661 (suggesting that
"more narrowly targeted regulations" pose greater "dangers of
suppression and manipulation"). But because Chapter 308 singles
out cable from similarly situated rivals in the pay TV market, we
need not address that question.
V.
In sum, we conclude that the district court correctly
determined that Chapter 308 triggers heightened First Amendment
scrutiny because it "singles out" cable operators. The state has
acknowledged that it cannot meet any heightened level of scrutiny
on this record. Accordingly, we agree that the district court
correctly entered a preliminary injunction delaying the
enforcement of Chapter 308. We do not decide, however, what level
of constitutional scrutiny is appropriate. The district court
should decide that issue in the first instance, as well as
determine whether the state is permitted to adduce post-enactment
evidence to satisfy that level of scrutiny. Additionally, the
parties and the court are free to revisit the question of
preemption on a more fully developed record, if they choose to do
so.
Affirmed.
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