NCTA - The Internet & TV Ass'n v. Frey ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1431
NCTA -- THE INTERNET & TELEVISION ASSOCIATION,
Plaintiff, Appellant,
v.
AARON M. FREY, in his official capacity as
Attorney General of the State of Maine,
Defendant, Appellee,
TOWN OF FREEPORT, MAINE; TOWN OF NORTH YARMOUTH, MAINE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch and Barron, Circuit Judges,
and Burroughs, District Judge.*
Jessica Ring Amunson, with whom Howard J. Symons, Elizabeth
B. Deutsch, Joshua D. Dunlap, Jenner & Block LLP, and Pierce Atwood
LLP were on brief, for appellant.
Christopher C. Taub, Deputy Attorney General, with whom Aaron
M. Frey, Attorney General, was on brief, for appellee.
John Bergmayer and Sara Nolan Collins on brief for Public
* Of the District of Massachusetts, sitting by designation.
Knowledge, amicus curiae.
James N. Horwood, Tillman L. Lay, Jeffrey M. Bayne, and
Spiegel & McDiarmid LLP on brief for the Community Television
Association of Maine, Alliance for Community Media, and Alliance
for Communications Democracy, amici curiae.
August 3, 2021
BARRON, Circuit Judge. NCTA -- The Internet and
Television Association ("NCTA") appeals from the denial of its
request for declaratory and permanent injunctive relief from
certain provisions of a Maine state law, "An Act to Ensure
Nondiscriminatory Treatment of Public, Educational and
Governmental Access Channels by Cable System Operators" ("the
Maine Act"). The provisions in question concern both the way that
cable system operators must treat channels that qualify as local
public, educational, and governmental access channels, or, as they
are better known in the world of cable regulation, "PEG" channels,
and the obligations of such operators to make cable service
available in rural parts of the state. Before the District Court,
NCTA argued, among other things, that federal law facially preempts
the provisions of the Maine Act at issue. The District Court
rejected that contention 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 country,
including in Maine. Id. at 129 & n.1.
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In general, cable system operators must obtain
"permission" from local governments "to install cables under city
streets and to use public rights-of-way." Denver Area Educ.
Telecomms. Consortium v. FCC, 518 U.S. 727, 734 (1996) (plurality
opinion). To do so, a cable system operator usually must first
obtain a "franchise" from a "franchising authority" -- the state
or local governmental entity that authorizes the construction of
a new cable system or the operation of an existing one through a
franchise agreement. 47 U.S.C. §§ 541(b)(1), 522(9)-(10).
Under Maine law, municipalities in the state serve as
franchising authorities. See Me. Rev. Stat. Ann. tit. 30-A,
§ 3008. Accordingly, an individual municipality in the state may
enter into a franchise agreement with a cable system operator that
authorizes the franchisee to operate a cable system in that
locality. See id.
NCTA's members have 307 franchises in Maine, each with
its own franchise agreement. The terms of a franchise in Maine
are generally in place for between ten and fifteen years, at which
point the franchising authority and the franchisee may negotiate
a renewal of the franchise.
NCTA member Charter has negotiated more than eighty
franchise renewals in Maine in the past two years. At the time of
the filing of this suit, it was involved in renewal negotiations
with over fifty franchising authorities throughout the state.
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In addition to the terms of the franchise agreement, a
cable system operator in Maine may be subject to requirements that
the State has imposed by statute. See, e.g., Me. Rev. Stat. Ann.
tit. 30-A, § 3008(3), (5). For example, a Maine statute provides
that "a cable system operator may not abandon service or a portion
of that service without having given 6 months' prior written notice
to the franchising municipality." Id. § 3008(3)(B). The state
statutes may themselves establish the terms of the franchise
agreements, as a separate Maine statute does in requiring that all
franchise agreements in Maine must include "provision for access
to, and facilities to make use of, one or more" channels that
qualify as PEG channels. Id. § 3010(5).
There is a long history of states and local governments
protecting PEG channels. The first cable systems were established
in the United States in the 1940s and 1950s, see Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 627 (1994); United States v. Sw.
Cable Co., 392 U.S. 157, 162 & n.12 (1968), and by the 1970s, it
was common for local governments to require an operator to set
aside capacity for PEG channel use as one of the terms of a
franchise, Denver Area, 518 U.S. at 734 (plurality opinion);
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926
(2019).
In 1984, when Congress amended the Communications Act of
1934 in order to account for the development of the cable
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television industry, it codified local entities' ability to
require operators to provide PEG channel capacity in exchange for
granting a franchise. See 47 U.S.C. § 531(b); H.R. Rep. No. 98-
934, at 19, 30 (1984), as reprinted in 1984 U.S.C.C.A.N. 4655,
4656, 4667. The House Report that accompanied the bill described
these PEG channels as "the video equivalent of the speaker's soap
box or the electronic parallel to the printed leaflet" because
"they provide groups and individuals who generally have not had
access to the electronic media with the opportunity to become
sources of information." H.R. Rep. No. 98-934, at 30. The grant
of authority to localities to require PEG channels was a key part
of Congress's broader effort in the 1984 Act "to assure that cable
systems provide the widest possible diversity of information
services and sources to the public, consistent with the First
Amendment's goal of a robust marketplace of ideas." Id. at 19.
In 2019, the Maine Legislature enacted the Maine Act,
which amended the state statutes that regulate the provision of
cable service in the state. See An Act to Ensure Nondiscriminatory
Treatment of Public, Educational and Governmental Access Channels
by Cable System Operators, 2019 Me. Laws 469 (codified at Me. Rev.
Stat. Ann. tit. 30-A, §§ 3008(5), (7), 3010(5A), (5B), (5C)); see
also NCTA, 451 F. Supp. 3d at 129. A major focus of that
legislation -- as its name suggests -- was the treatment by cable
system operators of PEG channels in Maine, given concerns about
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certain practices by cable system operators regarding those
channels. NCTA, 451 F. Supp. 3d at 131.
Specifically, cable system operators had begun moving
PEG channels from low-numbered stations, where they had long been
located, to the 1300 channel block. Id. The operators also
transmitted PEG content in standard definition ("SD") only,
notwithstanding the fact that PEG stations produced content in
high definition ("HD"). Id. In addition, cable system operators
listed PEG channels only as "LOCAL" on their electronic program
guides. Id.
Four of the provisions of the Maine Act that took aim at
these practices are at issue in this appeal. These four measures
are:
"The Basic Tier Provision," which provides that:
A cable system operator shall carry public,
educational and governmental access channels
on the cable system operator's basic cable or
video service offerings or tiers.
Me. Rev. Stat. Ann. tit. 30-A, § 3010(5-A); "The Channel Placement
Provision," which provides that:
A cable system operator may not separate
public, educational and governmental access
channels numerically from other local
broadcast channels carried on the cable system
operator's basic cable or video service
offerings or tiers . . . . A cable system
operator shall restore a public, educational
or governmental access channel that has been
moved without the consent of the originator
within the 24 months preceding the effective
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date of this subsection to its original
location and channel number within 60 days
after the effective date of this subsection.
Id.; "The HD Provision," which provides that:
A cable system operator shall retransmit
public, educational and governmental access
channel signals in the format in which they
are received from the originator and at the
same signal quality as that provided to all
subscribers of the cable television service
for local broadcast channels. A cable system
operator may not diminish, down convert or
otherwise tamper with the signal quality or
format provided by the originator. A cable
system operator shall deliver a public,
educational or governmental access channel
signal to the subscriber in a quality and
format equivalent to the quality and format of
local broadcast channel signals carried on the
cable television service if provided as such
by the originator. A cable system operator
shall carry each public, educational or
governmental access channel in both a high
definition format and a standard digital
format in the same manner as that in which
local broadcast channels are provided, unless
prohibited by federal law.
Id. § 3010(5-B); and "The Electronic Program Guide Provision,"
which provides that:
A cable system operator, when requested, shall
assist in providing the originator with access
to the entity that controls the cable
television service's electronic program guide
so that subscribers may view, select and
record public, educational and governmental
access channels in the same manner as that in
which they view, select and record local
broadcast channels. In addition, a cable
system operator shall identify public,
educational and governmental access channels
on the electronic program guide in the same
manner as that in which local broadcast
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channels are identified. This subsection does
not obligate a cable system operator to list
public, educational and governmental access
channel content on channel cards and channel
listings. If channels are selected by a
viewer through a menu system, the cable system
operator shall display the public, educational
and governmental access channels'
designations in a similar manner as that in
which local broadcast channel designations are
displayed.
Id.
A fifth provision of the Maine Act is also at issue in
this appeal, although it does not concern PEG channels. It instead
addresses the provision of cable services in rural areas in the
state. We will refer to it as "The Line Extension Provision." It
requires each franchising authority in Maine to include in any
franchise agreement "[a] line extension policy, which must specify
a minimum density requirement of no more than 15 residences per
linear strand mile of aerial cable for areas in which the cable
system operator will make cable television service available to
every residence." Id. § 3008(5)(B).
B.
On September 12, 2019, NCTA filed a complaint in the
U.S. District Court for the District of Maine against Maine
Attorney General Aaron Frey.1 The complaint alleges that the five
1The towns of Freeport, Maine, and North Yarmouth, Maine,
were also named as defendants below, but NCTA voluntarily dismissed
those claims and the towns are not parties to this appeal.
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provisions of the Maine Act just described violate federal law.
As relevant here,2 NCTA contends in the complaint that those five
provisions are facially unconstitutional under the Supremacy
Clause of the U.S. Constitution because they are facially preempted
by provisions of federal law that govern cable communications, 47
U.S.C. §§ 521-573 ("the Cable Act").3 See NCTA, 451 F. Supp. 3d
at 129.
NCTA moved for a preliminary injunction, but the
District Court consolidated the motion with the trial on the
merits. See id. at 129 n.3. The District Court then concluded
that NCTA had failed to show that any of the five challenged
provisions was facially preempted. Id. at 129.
The District Court began by upholding the Line Extension
Provision against NCTA's contention that it was facially preempted
by the interaction of two provisions of the Cable Act. Id. at
134-37. The first concerns the Cable Act's preemptive effect and
2 NCTA has not appealed the District Court's denial of its
claim that the PEG provisions violate the First Amendment rights
of its member cable operators. See NCTA, 451 F. Supp. 3d at 146-
50.
3 The provisions codified at 47 U.S.C. §§ 521-573 were first
enacted in the Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, 98 Stat. 2779. They have since undergone significant
amendment in 1992, see Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, and
in 1996, see Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56. Throughout this opinion, we refer to the provisions
of federal cable law by referencing their section numbers in the
U.S. Code.
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is set forth in 47 U.S.C. § 556(c). It states that "any provision
of law of any State . . . which is inconsistent with this chapter
shall be deemed to be preempted and superseded." 47 U.S.C.
§ 556(c). The second concerns the franchise renewal process and
is set forth in § 546 of the Cable Act. It permits a franchising
authority to reject a cable system operator's proposal for
franchise renewal based only on one or more of four expressly
enumerated considerations, which include whether "the 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." Id. § 546(c)(1)(D).
NCTA argued before the District Court that the Line
Extension Provision is "inconsistent with," id. § 556(c), the
portion of § 546 that directs a franchising authority to "tak[e]
into account . . . cost[s]" in connection with the franchise
renewal process. In rejecting that contention, the District Court
explained that "[t]he problem with [NCTA's] argument is that it
assumes that the State is making the final line extension decision
for franchising authorities." NCTA, 451 F. Supp. 3d at 136. The
District Court further explained that "the Maine Legislature" in
passing the Maine Act was "not renewing franchise agreements" and
"not acting as the franchising authority." Id. Accordingly, the
District Court reasoned, the Maine Legislature was not required to
comply with the "factfinding" requirements of § 546, which the
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District Court concluded apply only to franchising authorities in
administrative renewal proceedings. Id.
The District Court separately explained that a plaintiff
bringing a facial challenge based on preemption to a provision
must show that "no set of circumstances exists under which" the
challenged provision would be constitutionally valid. Id. at 134
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). The
District Court then concluded that "[i]t makes more sense to allow
cable operators to challenge the [Line Extension Provision] on a
case by case basis, where a factual record can be developed to
show whether a line extension term required by a particular
franchising authority is reasonable to meet the community's needs
in light of the costs." Id. at 137. The District Court
acknowledged that NCTA had submitted some evidence that the costs
of complying with the Line Extension Provision would be significant
for individual franchisees operating in some municipalities. Id.
at 136. But, it noted, other evidence in the record suggested
that franchisees in other municipalities "might not be affected at
all." Id. The District Court explained, for example, that Maine
had "proffered at oral argument that there are already communities
that use the 15 homes per linear mile standard" that the Line
Extension Provision imposes. Id. at 136 n.7.
Having rejected NCTA's preemption claim as to the Line
Extension Provision on the grounds just described, see id. at 137,- 12 -
the District Court then addressed NCTA's preemption claims
regarding the four challenged provisions in the Maine Act that
concern PEG channels, see id. at 137-46. The District Court began
its assessment of each of the four PEG provisions by addressing
whether it is a "consumer protection law" within the meaning of
§ 552(d)(1) of the Cable Act. See id. at 140, 142, 145.
That determination is potentially important to the
preemption analysis. Section 552(d)(1) states that "[n]othing in
this subchapter shall be construed to prohibit any State . . .
from enacting or enforcing any consumer protection law, to the
extent not specifically preempted by this subchapter." 47 U.S.C.
§ 552(d)(1). Thus, if any of the four PEG provisions is a
"consumer protection law" under § 552(d)(1), it is preempted only
if a provision of the "subchapter" at issue "specifically
preempt[s]" it, id., and not merely if it is "inconsistent with"
a provision in the larger chapter, id. § 556(c).
The District Court held that each of the four PEG
provisions at issue is a "consumer protection law" within the
meaning of § 552(d)(1) of the Cable Act. NCTA, 451 F. Supp. 3d at
140, 142, 145. It then held that none of the provisions is
"specifically preempted" by the subchapter referenced in
§ 552(d)(1), which consists of the provisions that we refer to as
the Cable Act, for reasons that we will address in the course of
the analysis that follows. See id. at 142, 145-46.
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The District Court accordingly denied NCTA's claims for
declaratory and permanent injunctive relief for the four PEG
provisions too. Id. at 146. The District Court's order entered
on March 11, 2020. Id. at 123. NCTA filed a timely notice of
appeal on April 10, 2020. See Fed. R. App. P. 4(a)(1)(A). We
have jurisdiction under 28 U.S.C. § 1291.
II.
We begin with NCTA's challenge to the District Court's
rejection of its claim of facial preemption against the Line
Extension Provision. NCTA bases this claim, as it did below, on
the contention that, under § 556(c) of the Cable Act, this state-
law measure is "inconsistent with" § 546 of that same federal
statute. See 47 U.S.C. § 556(c). Our review is de novo. See
Bower v. Egyptair Airlines Co., 731 F.3d 85, 92 (1st Cir. 2013).
Section 546 of the Cable Act provides that where a
franchising authority determines preliminarily that a cable system
operator's franchise should not be renewed, it "shall . . . , at
the request of the operator or on its own initiative, commence an
administrative proceeding" to consider whether:
(A) the cable operator has substantially
complied with the material terms of the
existing franchise and with applicable law;
(B) the quality of the operator's service,
including signal quality, response to consumer
complaints, and billing practices, but without
regard to the mix or quality of cable services
or other services provided over the system,
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has been reasonable in light of community
needs;
(C) the operator has the financial, legal, and
technical ability to provide the services,
facilities, and equipment as set forth in the
operator's proposal; and
(D) the 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).
Section 546 further states that a franchising authority
may deny a cable system operator's proposal for renewal of the
franchise only "based on one or more adverse findings made with
respect to the factors" just described. Id. § 546(d). It also
permits a cable system operator to obtain judicial review of the
denial of a proposal for renewal by the franchising authority or
of a failure by the franchising authority to comply with the
procedural requirements set forth in that section by filing an
action in "the district court of the United States for any judicial
district in which the cable system is located." Id. § 555(a)(1);
see also id. § 546(e)(1).
NCTA contends that § 546 facially preempts the Line
Extension Provision because the latter measure imposes a "one-
size-fits-all" requirement to build out cable systems and thus
fails to account for whether the costs of compliance with that
requirement for any cable system operator would be reasonable
within the meaning of § 546(c)(1)(D) of the Cable Act. In
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consequence, NCTA argues, the Line Extension Provision is
"inconsistent with," id. § 556(c), at least that portion of § 546
of the Cable Act.
We are not persuaded. Section 546 does not purport,
either in whole or in part, to limit the types of requirements
(insofar as they do not concern the franchise renewal process
itself) that may be demanded of cable system operators in the first
instance, whether by franchising authorities setting the terms of
franchise agreements or by states acting legislatively. Section
546 governs only the process by which a cable system operator's
proposal for the renewal of its franchise may be denied.
Indeed, § 546 explicitly contemplates that denials of
proposals for franchise renewals are distinct from efforts to
impose and enforce substantive requirements on cable system
operators. It provides that a franchising authority may deny a
renewal proposal if it finds that the operator has not
"substantially complied with the material terms of the existing
franchise and with applicable law." See id. § 546(c)(1)(A)
(emphases added); see also id. § 546(d).
We recognize that a franchising authority's decision to
deny a cable system operator's proposal for renewal based on the
operator's failure to comply with a specific state-law
requirement, such as the one imposed by the Line Extension
Provision, could run afoul of § 546(d) in a particular case. For
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example, the franchising authority in deciding to deny the renewal
proposal might not properly account for the costs of compliance
with a state statutory requirement like the one imposed by the
Line Extension Provision.
But, in imposing that state-law requirement, the state
would have merely established the "law" that would be "applicable"
in the renewal process that § 546 sets forth. See id.
§ 546(c)(1)(A). It would not have altered or even attempted to
alter the process set forth in § 546 for evaluating franchise
renewal proposals in light of "applicable law." In that respect,
the state in imposing the state-law requirement would no more be
acting "inconsistent with" § 546 than the franchising authority
itself would be in imposing a term of that agreement in the first
instance.
We thus agree with the District Court that § 546 governs
only the "negotiati[on] [of] the renewal of . . . franchise
agreements" and that Maine by enacting the Line Extension Provision
is "not denying the renewal of a franchise." NCTA, 451 F. Supp.
3d at 136. And, because we do, we also agree with the District
Court that NCTA's claim that the Line Extension Provision is
facially preempted by § 546 of the Cable Act is without merit.4
We note that NCTA's challenge to the Line Extension
4
Provision is ripe, even though the parties agree that it applies
only to future franchises or upon franchise renewal. At least
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III.
We now turn to NCTA's claims of facial preemption
regarding the four PEG provisions mentioned above. We start by
focusing on the subset of those claims of preemption in which NCTA
contends that a particular one of the four PEG provisions at issue
here -- and only that PEG provision -- is preempted by a certain
provision of the Cable Act, or by certain discrete provisions of
the Cable Act operating together. Our review in each instance is
de novo. See Bower, 731 F.3d at 92.5
some of NCTA's members' franchises are up for renewal now, which
means that, under the terms of the Maine Act, the franchising
authorities at the other side of the bargaining table from those
members are required to demand that any renewed franchise include
a compliant line-extension policy. Thus, even though the Line
Extension Provision does not by its own force require the denial
of any renewal proposal, that newly introduced background
requirement does influence the balance of power between the parties
in that respect. Cf. Clinton v. City of New York, 524 U.S. 417,
432-33 (1998) ("By depriving them of their statutory bargaining
chip, the cancellation inflicted a sufficient likelihood of
economic injury to establish standing under our precedents. . . .
'The Court routinely recognizes probable economic injury resulting
from [governmental actions] that alter competitive conditions as
sufficient to satisfy the [Article III "injury-in-fact"
requirement] . . . . It follows logically that any . . .
petitioner who is likely to suffer economic injury as a result of
[governmental action] that changes market conditions satisfies
this part of the standing test.'" (second, third, fourth, fifth,
and sixth alterations in original) (quoting 3 K. Davis & R. Pierce,
Administrative Law Treatise 13-14 (3d ed. 1994))).
5 NCTA's challenge to the PEG provisions is likewise ripe.
Unlike the Line Extension Provision, which applies to future
franchises and franchise renewals only, the PEG provisions apply
even to operators that have agreements in place. See Me. Rev.
Stat. Ann. tit. 30-A, § 3010(5-A), (5-B). And, the existing
franchise agreements between NCTA members and franchising
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A.
First up is NCTA's claim of preemption concerning the
Basic Tier Provision. NCTA contends that the two provisions of
the Cable Act that facially preempt this PEG provision in the Maine
Act are § 543(a)(2) and § 543(b)(7). We do not agree.
NCTA's argument is somewhat involved. It depends in
part on § 543(a)(2) of the Cable Act, which provides that, as to
cable systems that are "subject to effective competition," the
"rates for the provision of cable service by such system shall not
be subject to regulation" by the Federal Communications Commission
("FCC") or a state or franchising authority, save for an exception
that is set forth in § 532. See 47 U.S.C. §§ 543(a)(1)-(2), 532.
It depends as well on the portion of that subsection of § 543 that
further provides that, as to cable systems that are "not subject
to effective competition," the "regulation" of "the rates for the
provision of cable service" is permitted only as provided for
elsewhere in § 543 itself. Id. § 543(a)(2). In addition, NCTA's
authorities do not currently impose the PEG provisions that NCTA
challenges on operators. As a result, operators today are at risk
of civil enforcement actions for failure to comply with the PEG
provisions, see id. § 3010(7); Me. Rev. Stat. Ann. tit. 5, § 209,
and the record "ma[kes] clear that [the Attorney General] would
seek to enforce the challenged portions of the" Maine Act,
Morales v. Trans World Airlines, Inc., 504 U.S. 375, 381 (1992);
see also Roman Cath. Bishop of Springfield v. City of Springfield,
724 F.3d 78, 90 (1st Cir. 2013) ("There is no doubt that the
[defendant] intends to enforce the Ordinance against [the
plaintiff] . . . ."). We thus conclude these portions of NCTA's
challenge, too, are ripe.
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argument depends on both § 543(b)(1), which provides that the FCC
"shall, by regulation, ensure that the rates for the basic service
tier are reasonable" in such cable systems; and § 543(b)(7), which
states in part that the "basic service tier shall, at a minimum,
consist of the following" and lists as one of the components of
that tier "[a]ny [PEG] access programming required by the franchise
of the cable system to be provided to subscribers," id.
§ 543(b)(7)(A)(ii).
According to NCTA, when these provisions are considered
in combination, it is clear that they together provide that "where
a cable system is subject to effective competition, neither the
FCC, nor a state, nor a franchising authority may demand basic-
tier PEG carriage because such mandated carriage is part of rate
regulation." The assertion appears to depend on the following
chain of logic: (1) § 543(a)(2) prohibits the "regulation" of
"the rates for the provision of cable service" in systems that,
like those in Maine, are subject to effective competition (subject
to exceptions not relevant here); (2) Congress plainly considers,
given § 543(b)(1) and § 543's general structure, the mandate to
carry PEG channels on the basic tier described in
§ 543(b)(7)(A)(ii) to be a "regulation" of "the rate[] for the
provision of cable service" within the meaning of § 543(a)(2);
(3) the mandate to carry PEG channels on the basic tier described
in § 543(b)(7)(A)(ii) is essentially identical to the mandate to
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carry such channels that the Basic Tier Provision imposes;
(4) hence, the application of the Basic Tier Provision's mandate
to cable systems in Maine is barred by § 543(a)(2), because such
cable systems are subject to effective competition and so, per
that provision of § 543, are not subject to rate regulation.
In rejecting this argument, the District Court held that
the Basic Tier Provision is a "consumer protection law" and so
could be preempted only under the heightened "specifically
preempted" standard. NCTA, 451 F. Supp. 3d at 140-41. The
District Court then held that § 543 does not "'specifically
preempt[]' the State from requiring PEG channels to be carried on
the basic tier," id. at 141 (alteration in original) (quoting 47
U.S.C. § 552(d)(1)), because, although § 543 "require[s] that
cable systems not subject to effective competition must include
PEG channels on the basic tier," the existence of that requirement
"says nothing about whether states may require cable operators
subject to effective competition [like those in Maine] to carry
PEG channels on the basic tier," id.
NCTA contends that the District Court was wrong to so
conclude, even if the Basic Tier Provision is a "consumer
protection law" and so is prohibited only if it is "specifically
preempted" by, and not merely "inconsistent with," any provision
of the Cable Act. NCTA argues that the District Court erred
because it failed to grasp the ways in which the Cable Act makes
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clear that a requirement like that imposed by the Basic Tier
Provision is necessarily a "regulation" of "the rates for the
provision of cable service" within the meaning of § 543(a)(2) of
the Cable Act and so cannot be applied to cable systems subject to
effective competition.
NCTA relies heavily in advancing its position on the
reasoning in the D.C. Circuit's decision in Time Warner
Entertainment Co. v. FCC, 56 F.3d 151 (D.C. Cir. 1995). There,
the D.C. Circuit addressed § 543(b)(8)(A),6 a distinct provision
of the Cable Act, which likewise imposes requirements on cable
system operators in connection with the basic tier. Id. at 192.
In doing so, the court noted the "close relationship"
between § 543(b)(8)(A) and § 543(b)(7), which lays out the
"[c]omponents of [the] basic tier subject to rate regulation" and
in which one can find § 543(b)(7)(A)(ii), the mandate to carry PEG
channels on the basic tier. Id. Then, based on a separate
subsection of § 543(b)(7) that "clearly states an intention
directly to regulate rates," the D.C. Circuit concluded that
Congress intended for § 543(b)(7) (and § 543(b)(8)(A) along with
6 Section 543(b)(8)(A) provides in part that: "A cable
operator may not require the subscription to any tier other than
the basic service tier required by [§ 543(b)(7)] as a condition of
access to video programming offered on a per channel or per program
basis. . . ."
- 22 -
it) to apply to only systems not subject to effective competition.
Id.
We do not see how Time Warner's discussion of § 543(b)(7)
helps NCTA's preemption claim regarding the Basic Tier Provision.
Time Warner's reasoning confirms that § 543(b)(7)(A)(ii) does not
itself impose requirements with respect to the components of the
basic tier on cable system operators in systems subject to
effective competition, but it does not address whether states or
franchising authorities have independent authority to impose
identical requirements on such systems. It thus does not hold --
or even suggest -- that those entities are specifically preempted
from doing so by either § 543(a)(2) or § 543(b)(7), or the two
together.
That said, we do not dispute a necessary premise of
NCTA's argument -- that the mandate to carry PEG channels on the
basic tier set forth in § 543(b)(7)(A)(ii) constitutes the
"regulation" of "rates" within the meaning of § 543(a)(2). Section
543(b)(7)(A)(ii) is contained in a section of the Cable Act
entitled "[r]egulation of rates" and a subsection entitled
"[c]omponents of [the] basic tier subject to rate regulation." 47
U.S.C. § 543. The Cable Act also makes clear that "the basic
service tier" referenced in § 543 plays an integral role in the
statute's rate regulation scheme -- as does Time Warner, for that
matter. See id. § 543(b)(1); Time Warner, 56 F.3d at 192.
- 23 -
But, even with that premise in place, the mandate imposed
by the Basic Tier Provision differs in a key respect from the one
set forth in § 543(b)(7)(A)(ii): It applies only to cable systems
that are not rate regulated, as it applies only to cable systems
in Maine, all of which are subject to effective competition. The
Basic Tier Provision thus no more "regulat[es]" the "rate[] for
the provision of cable service" within the meaning of the Cable
Act than any requirement that might be imposed on the operator of
a cable system that is not rate regulated. Indeed, the provision
is entirely unrelated to rates, and the operators subject to it
are free to account for the requirement it imposes by setting the
price for the cable service that they provide on their systems as
they see fit.
Accordingly, at least in the absence of a contrary
interpretation from the FCC,7 we reject NCTA's argument that the
Basic Tier Provision is "specifically preempted" by § 543 of the
Cable Act, because we reject its assertion that it is of no
significance that the mandate to carry PEG channels that the Basic
Tier Provision includes applies only to cable systems for which
the rates are not regulated. And, given our reasons for rejecting
that argument, we must also reject the contention -- insofar as
7 On January 15, 2021, the panel sent a letter to the FCC
soliciting the agency's views on questions raised in this case.
On March 16, 2021, the FCC declined to file an amicus brief.
- 24 -
NCTA means to make it -- that the Basic Tier Provision is facially
preempted by the Cable Act provisions at issue, even if the Basic
Tier Provision is not a "consumer protection law," 47 U.S.C.
§ 552(d)(1), and so need only be "inconsistent with" those
provisions, id. § 556(c), to be preempted.
B.
We next consider NCTA's claim of facial preemption
regarding the HD Provision. NCTA identifies the preemptive
provision here as § 544(e) of the Cable Act, which provides that
the FCC "shall prescribe regulations which establish minimum
technical standards relating to cable systems' technical operation
and signal quality." Id. § 544(e). We once again reject NCTA's
contention.
NCTA first argues that § 544(e), by directing the FCC to
promulgate regulations establishing "minimum technical standards
relating to . . . signal quality," must be understood to prohibit
states and franchising authorities from imposing such standards if
they are more onerous for operators to comply with than those that
the FCC itself requires. Thus, NCTA contends, because the HD
Provision imposes just such a standard, § 544(e) facially preempts
it.
The District Court rejected that contention on the
ground that the HD Provision was, like the Basic Tier Provision,
a "consumer protection law" under § 552(d)(1), and so could be
- 25 -
preempted only under the heightened "specifically preempted"
standard. NCTA, 451 F. Supp. 3d at 142, 145. It then held that
the heightened standard was not met because, even "[a]ssuming HD
technology is a 'signal quality' issue," nothing in § 544(e)
purports to restrict what states may do when it comes to setting
the relevant types of "minimum technical standards," as it merely
provides the authority that the FCC itself possesses to establish
them. Id. at 144.
Indeed, § 544(e) itself specifies 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),8 which the District
Court concluded shows that "Congress . . . knows how to restrict
state authority" when it wishes to do so, NCTA, 451 F. Supp. 3d at
144. Thus, the District Court concluded that, because § 544(e)
does not identify "signal quality" "in the list of things a state
cannot 'prohibit, condition, or restrict,'" it does not
"specifically preempt" the HD Provision, even assuming that the HD
Provision sets a minimum technical standard for signal quality.
Id. (quoting 47 U.S.C. § 544(e)).
8Below, NCTA also argued that the HD Provision is a
"prohibit[ion], condition, or restrict[ion] [on] a cable system's
use of . . . any transmission technology," 47 U.S.C. § 544(e), but
has abandoned that argument on appeal.
- 26 -
We agree. Section 544(e) speaks expressly in the
relevant respect only to the authority that the FCC does have. It
says not a word about any authority that any other actor is barred
from exercising. The express prohibition against other types of
state regulation in § 544(e) reinforces the conclusion that this
provision of the Cable Act does not "specifically preempt[]" the
HD Provision.
There is also another reason, however, that we must
reject NCTA's claim of specific preemption. The District Court
expressly pointed out that the FCC's "technical standards on signal
quality seem to be set forth in 47 C.F.R. § 76.605" but that the
"highly technical standards contained therein are not
understandable without expert assistance." NCTA, 451 F. Supp. 3d
at 144 n.22. That is significant because NCTA has made no argument
to us regarding what those regulations might indicate in the
relevant respect. Nor, we add, has NCTA pointed us on appeal to
an FCC interpretation of what constitutes a "technical standard"
under § 544(e).
NCTA does cite to an FCC order, Technical and Operational
Requirements of Part 76 Cable Television, 50 Fed. Reg. 52,462-02
(Dec. 24, 1985), which it asserts describes "'signal quality'
standards . . . [as] including 'high definition or quasi-high
definition techniques.'" But, that passing reference does not
constitute a developed argument as to what a "minimum technical
- 27 -
standard[] relating to . . . signal quality" is under the relevant
provision of the Cable Act that is said to be preemptive of the HD
Provision, let alone why, given that understanding of "minimum
technical standards," the HD Provision must be understood to impose
one.
It is true that the order that NCTA cites evinces the
FCC's concern that variable "technical standards" might frustrate
innovation, including by undermining "efforts [that were being]
made to improve the quality and fidelity of television through
high definition or quasi-high definition techniques." Technical
and Operational Requirements of Part 76 Cable Television, 50 Fed.
Reg. at 52,465. But, NCTA does not argue that the HD Provision
does more than require operators to deliver to subscribers PEG
content "in a quality and format equivalent to the quality and
format of local broadcast channel signals . . . if provided as
such by the originator." Me. Rev. Stat. Ann. tit. 30-A, § 3010(5-
B). And NCTA does not explain how -- and instead merely asserts
that -- such a contingent requirement sets a "minimum technical
standard[] relating to . . . signal quality" within the meaning of
§ 544(e). 47 U.S.C. § 544(e) (emphasis added).
NCTA also points in its opening brief to us to a House
Conference Report describing § 534(b)(4)(B) of the Cable Act. NCTA
argues that the report "makes clear that high definition is a
'standard[] for . . . television signals.'" (alterations in
- 28 -
original). That report describes "the authorization of broadcast
high definition television" as a "standard[] for broadcast
television signals." H.R. Rep. No. 102-862, at 67 (1992) (Conf.
Rep.), as reprinted in 1992 U.S.C.C.A.N. 1231, 1249. But, this
generic reference to a "standard" does not suffice to show that
the HD Provision sets a "minimum technical standard[]" within the
meaning of § 544(e), such that the HD Provision could be said to
be preempted on that basis.
NCTA separately contends in its reply brief (and noted
at oral argument) that in order to comply with the HD Provision in
some cases, a cable operator might be required to upgrade the
equipment used to transmit PEG content from a PEG facility to the
operator's headend. But, the HD Provision does not on its face
require operators to provide equipment of any particular quality
to PEG stations -- any obligation on that score appears to derive
from individual franchise agreements rather than from the HD
Provision. The fact that the HD Provision may, because of its
interaction with the terms of an individual franchise agreement,
indirectly create new technological obligations for a cable system
operator does not mean that the provision itself sets a "minimum
technical standard[]" for purposes of § 544(e).
Thus, NCTA's failure to explain how the HD Provision,
even if it imposes a requirement "relating to . . . signal
quality," establishes a "minimum technical standard[] relating
- 29 -
to . . . signal quality," 47 U.S.C. § 544(e) (emphasis added),
provides an additional reason why we cannot say, at least on this
record and based on the arguments made to us, that NCTA has met
its burden to show that the HD Provision is specifically preempted
by § 544(e). Moreover, this same failure necessarily precludes us
from concluding that the HD Provision is preempted by § 544(e)
under the less demanding "inconsistent with" standard, insofar as
NCTA means to be making that alternative argument. And, that being
so, NCTA's claim of facial preemption fails even if the HD
Provision does not qualify as a "consumer protection law" and thus
may be preempted even if the heightened "specifically preempted"
standard is not met.9
C.
We turn next to NCTA's facial preemption claim regarding
the Electronic Program Guide Provision. NCTA contends that this
provision is preempted even if it is a "consumer protection law"
9Insofar as NCTA means to argue that any state-law measure
regulating signal quality in any way is "inconsistent with"
§ 544(e), notwithstanding that this provision of the Cable Act
speaks only to "minimum technical standards relating to . . .
signal quality," 47 U.S.C. § 544(e) (emphasis added), we reject
it, because NCTA develops no argument for ignoring the words
"minimum technical standards." We note further that because NCTA
fails to meet its burden to show that the HD Provision sets forth
a minimum technical standard for signal quality, we need not
address the parties' dispute over whether the District Court should
have accepted additional evidence regarding whether the minimum
technical standard purportedly set forth in the HD Provision
actually conflicts with those set by the FCC.
- 30 -
under § 552(d)(1), as the District Court held it was, see NCTA,
451 F. Supp. 3d at 145, because it, too, is "specifically
preempted," 47 U.S.C. § 552(d)(1). The alleged culprits in the
Cable Act this time are § 544(b)(1), which addresses "requirements
for . . . information services"; and § 544(f)(1), which addresses
"requirements regarding the . . . content of cable services." We
address each argument in turn but find neither persuasive.
1.
Section 544(b)(1) specifies that a "franchising
authority . . . may establish requirements for facilities and
equipment, but may not . . . establish requirements for video
programming or other information services."10 Id. § 544(b)(1).
The phrase "'information service' means the offering of a
capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information
via telecommunications, and includes electronic publishing, but
does not include any use of any such capability for the management,
control, or operation of a telecommunications system or the
management of a telecommunications service." Id. § 153(24); see
Implementation of Section 621(a)(1) of the Cable Commc'ns Pol'y
10 Section 544(b)(1) allows for exceptions to this
prohibition, not relevant here, for certain requirements involving
the notices cable operators may be required to provide to
subscribers. See 47 U.S.C. § 544(b)(1), (h).
- 31 -
Act of 1984 (Third Report and Order), 34 FCC Rcd. 6844, 6884
(2019).
NCTA argues that the electronic program guide "fits this
definition" of information service "hand in glove" because "[i]t
does all of the above: 'mak[es] available information' about
programming by 'generating, acquiring, [and] storing' data about
past, current, and upcoming programming, and 'transform[s],
process[es], retriev[es], [and] utilize[es]' that data by
converting and displaying it in a customer-usable format that
enables navigation between channels, as well as program
recording." (first alteration added). NCTA then reads § 544(b)(1)
of the Cable Act, by clear implication, to oust the State from
imposing such a requirement.
The District Court rejected that argument without
reaching the question of whether an "electronic program guide"
within the meaning of the provision of the Maine Act at issue is
an "information service." See NCTA, 451 F. Supp. 3d at 145-46.
It held that the Electronic Program Guide Provision is a "consumer
protection law" under § 552(d)(1) of the Cable Act, and that, even
assuming that the electronic program guides to which that PEG
provision applies qualify as "information services" within the
meaning of § 544(b)(1), Maine "is imposing the electronic
programming guide requirement directly on cable operators and is
not acting as a franchising authority." Id. at 146. Thus, the
- 32 -
District Court held that the Electronic Program Guide Provision
was not "specifically preempted" by § 544(b)(1), because that
provision of the Cable Act "applies only to franchising
authorities, not states." Id.
But, even if we were to reject the District Court's
reasoning, there is an independent basis manifest in the record
for affirming the District Court's ruling. See O'Brien v. Town of
Agawam, 350 F.3d 279, 292 (1st Cir. 2003) ("[T]his [C]ourt may
affirm on any alternative basis that is manifest in the record.").
That reason has to do with whether the Electronic Program Guide
Provision takes aim at an "information service."
The FCC has explained that the definition of an
"information service" under the Cable Act "rests on the function
that is made available . . . to its end users." Inquiry Concerning
High-Speed Access to Internet Over Cable and Other Facilities, 17
FCC Rcd. 4798, 4821 (2002), aff'd in part, Brand X Internet
Servs. v. FCC, 435 F.3d 1053, 1053 (9th Cir. 2006) (affirming
declaratory ruling in accordance with Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005)). The
statute itself provides that an "information service" is not merely
something that "generat[es], acquir[es], stor[es], transform[s],
process[es], retriev[es], utiliz[es], or mak[es] available
information via telecommunications" in its own right but something
that "offer[s] . . . a capability for" doing those things. 47
- 33 -
U.S.C. § 153(24); see also Fed.-State Joint Bd. on Universal Serv.,
13 FCC Rcd. 11,830, 1998 WL 166178, at *25 (Apr. 10, 1998)
(explaining that whether a service "should be classed as providing
information services rather than telecommunications services"
turns on whether it "merely offer[s] transmission . . . or whether
[it] go[es] beyond the provision of a transparent transmission
path to offer end users the 'capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or
making available information'" (emphasis added) (quoting 47 U.S.C.
§ 153(24))).11
NCTA has argued to us, however, only that an "electronic
programming guide fits [the] definition [of an information
service] hand in glove" because such a guide itself generates,
acquires, stores, transforms, processes, retrieves, utilizes, and
makes available information. It is unclear from that assertion
whether any electronic program guide covered by this PEG provision
For example, when the FCC evaluated whether two forms of
11
texting are information services or telecommunications services,
it found that they were information services since they "involve
the capability for 'acquiring' and 'utilizing' information."
Petitions for Declaratory Ruling on Regul. Status of Wireless
Messaging Serv., 33 FCC Rcd. 12,075, 12,084 (2018). It did not
reach that conclusion on the ground that the messaging services
themselves acquire or utilize information but rather because,
using those services, "a wireless subscriber can 'ask for and
receive content, such as weather, sports, or stock information,
from a third party that has stored that information on its
servers.'" Id.
- 34 -
-- let alone all of them -- allows users to "stor[e] . . .
information" by providing recording capabilities or to
"acquir[e] . . . information," and therefore is an information
service. 47 U.S.C. § 153(24). Yet, NCTA has not argued at any
point to us that electronic program guides -- at least insofar as
they are ones within the scope of the PEG provision at issue --
offer cable subscribers the capability of doing those things, nor
does the record establish as much.12
NCTA bears the burden to establish on this facial
preemption challenge that "no set of circumstances exists under
which the [statute] would be valid." Pharm. Rsch. & Mfrs. of
Am. v. Concannon, 249 F.3d 66, 77 (1st Cir. 2001) (quoting Salerno,
481 U.S. at 745); see also Thayer v. City of Worcester, 755 F.3d
60, 71 n.3 (1st Cir. 2014) (explaining that outside of First
Amendment overbreadth challenges, a plaintiff bringing a facial
challenge "in other, non-speech-related contexts" must meet the
12In affidavits NCTA submitted in support of its motion for
a preliminary injunction, cable executives merely describe
electronic program guides as "digital displays that identify what
channel is at a particular location and what programming is or
will be shown on that channel," even though an electronic program
guide that simply displays the details of what is currently playing
and what is upcoming on the various available channels would seem
to do nothing "more than merely transmit 'information of the user's
choosing, without change in the form or content of the
information'" and thus be better classified as a
telecommunications service. See Petitions for Declaratory Ruling,
33 FCC Rcd. at 12,088; see also id. at 12,076 (explaining that
"telecommunications services" and "information services" are
"mutually exclusive" under the Cable Act).
- 35 -
Salerno standard (citing 481 U.S. at 745)), vacated on other
grounds, 576 U.S. 1048 (2015); MetroPCS Cal., LLC v. Picker, 970
F.3d 1106, 1122 (9th Cir. 2020). Its failure to show that the PEG
provision at issue encompasses only those electronic program
guides that qualify as "information services" under § 544(b)(1)
requires that we reject its contention that § 544(b)(1) facially
preempts this PEG provision.
2.
We turn, then, to NCTA's claim that the Electronic
Program Guide Provision is facially preempted by § 544(f)(1),
which provides that "[a]ny Federal agency, State, or franchising
authority may not impose requirements regarding the provision or
content of cable services, except as expressly provided" by the
Act. 47 U.S.C. § 544(f)(1). The Act elsewhere defines "cable
service" to include "the one-way transmission to subscribers" of
"information that a cable operator makes available to all
subscribers generally." Id. § 522(6), (14). NCTA contends that,
given that definition, the Electronic Program Guide Provision
represents an effort by Maine to "impose [a] requirement[]
regarding the . . . content of cable services" within the meaning
of § 544(f)(1), and that this PEG provision is therefore
"specifically preempted," id. § 552(d)(1).
The District Court recognized that the Cable Act bars
"government regulation of content," but it rejected NCTA's
- 36 -
contention on this score because it held that "PEG channels are an
exception" to that "general concern." NCTA, 451 F. Supp. 3d at
145. The District Court explained that when it comes to PEG
channels, "cable operators have no editorial control . . . and it
is the franchising authority that has editorial control over
content." Id. Accordingly, the District Court concluded that
"requiring cable operators to allow PEG channels access to the
programming guide does not specifically conflict with § 544(f)."
Id. at 146.
In arguing for preemption nonetheless, NCTA contends
that the Electronic Program Guide Provision is a "requirement[]
regarding the . . . content of cable services" under § 544(f)(1)
because it "directs the content of PEG listings in electronic
programming guides." To make that case, NCTA points out that,
prior to the Maine Act's passage, "NCTA members already list[ed]
PEG channels in their electronic program guides, and customers
already ha[d] the ability to navigate to those channels via the
guides," and that its "members have not typically included for
each locality detailed PEG programming information, such as the
content and duration of a municipality meeting or a town's high-
school football game." The Maine Act, NCTA argues, "directs the[]
content" of electronic program guides because it "requires cable
operators to replace existing content in the electronic program
guides that reads 'LOCAL' . . . with more detailed content
- 37 -
labeling and describing the event, for example 'high school
football game,' that is being transmitted to a particular
locality."
Thus, NCTA premises this preemption claim on the
understanding that the Electronic Program Guide Provision requires
the inclusion of detailed programming data -- and not just the
"listing" of PEG channels -- on electronic program guides. But,
given that NCTA's preemption claim relies on that broader
understanding of the scope of the Electronic Program Guide
Provision, we do not find it to be persuasive, albeit for reasons
that are different from those relied upon by the District Court.
Our concern stems in part from the language of the
Electronic Program Guide Provision, which specifies that:
A cable system operator, when requested, shall
assist in providing the originator with access
to the entity that controls the cable
television service's electronic program guide
so that subscribers may view, select and
record [PEG] access channels in the same
manner as that in which they view, select and
record local broadcast channels. In addition,
a cable system operator shall identify [PEG]
access channels on the electronic program
guide in the same manner as that in which local
broadcast channels are identified. This
subsection does not obligate a cable system
operator to list [PEG] access channel content
on channel cards and channel listings. If
channels are selected by a viewer through a
menu system, the cable system operator shall
display the [PEG] access channels'
designations in a similar manner as that in
which local broadcast channel designations are
displayed.
- 38 -
Me. Rev. Stat. Ann. tit. 30-A, § 3010(5-B). It is not at all
evident from that text that it is necessary to provide the
programming details that NCTA objects to providing to ensure that
a cable system operator "identif[ies] [PEG] access channels . . .
in the same manner as that in which local broadcast channels are
identified."
We find it significant, too, that even though NCTA
asserts that its members cannot comply with the Electronic Program
Guide Provision because "PEG programmers generally do not provide
the information needed to populate the program guides," Maine
contends that the provision requires cable system operators to
"include[]" "program details" only "provided that PEG operators
supply the necessary information." And, while NCTA has asserted
that its members would "incur hundreds of thousands of dollars in
engineering costs to ensure" that their electronic program guides
are compliant with the Maine Act, NCTA's only response to Maine's
assertion that it has "offer[red] no good explanation for why at
least the names of PEG channels cannot be listed on electronic
programming guides" is to insist that this "is emphatically not
what the Maine Act requires."
Thus, from all that we can tell, NCTA is asking us to
address a concern arising from § 544(f)(1) of the Cable Act that
would appear to exist only if we were to adopt the broader
construction of the Electronic Program Guide Provision that we are
- 39 -
not persuaded its text compels, that NCTA has not attempted to
show must be adopted even though the text does not compel it, and
that raises issues of construction and evidence over which there
appears to be much uncertainty. Moreover, the state-law provision
at issue is one which the Maine Law Court has not construed, and
NCTA has not sought to certify the question concerning the scope
of that provision to the Maine Law Court. In such circumstances,
we decline to interpret this state-law measure to give rise to the
specific preemption concern about having to provide programming
details that NCTA identifies, given that the concern may well be
a hypothetical one. See also Wawenock, LLC v. Dep't of Transp.,
187 A.3d 609, 612 (Me. 2018) (explaining that, under Maine law,
courts interpret statutes "according to [their] unambiguous
language, 'unless the result is illogical or absurd'" (quoting
MaineToday Media, Inc. v. State, 82 A.3d 104, 108 (Me. 2013))).13
13 The Attorney General's brief on behalf of Maine does state
at one point that the Electronic Program Guide Provision
"requir[es] that PEG stations be identified by name and that
programming information be included." (emphasis added). But,
Supreme Court "precedent warns against accepting as
'authoritative' an Attorney General's interpretation of state law
when 'the Attorney General does not bind the state courts or local
law enforcement authorities,'" Stenberg v. Carhart, 530 U.S. 914,
940 (2000) (quoting Virginia v. Am. Booksellers Ass'n, Inc., 484
U.S. 383, 395 (1988)), as is the case in Maine, see Auburn Sav.
Bank v. Campbell, 273 A.2d 846, 847 (Me. 1971). And we are
particularly disinclined to defer here, as the Attorney General's
construction enlarges, rather than diminishes, the scope of
private parties' liability, see Stenberg, 530 U.S. at 1005 n.17(Thomas, J., dissenting), and because the Attorney General has no
particular regulatory expertise over cable companies.
- 40 -
Moreover, NCTA develops no fallback argument that,
absent the broader construction of the Electronic Program Guide
Provision just addressed, that provision still imposes a
"requirement[] regarding . . . content" within the meaning of
§ 544(f)(1). We thus have before us no "developed argumentation"
for finding the provision preempted even on that narrower
understanding of its scope, and so we do not address whether it
would be. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
Accordingly, we cannot conclude that NCTA has met its
burden of establishing that the Electronic Program Guide Provision
is a "specifically preempted," 47 U.S.C. § 552(d)(1),
"requirement[] regarding the . . . content of cable services," id.
§ 544(f)(1). And the same reasoning that supports that conclusion
also requires that we reject any argument that NCTA means to make
that the Electronic Program Guide Provision is "inconsistent with"
§ 544(f)(1) within the meaning of § 556(c).
IV.
There remains NCTA's contentions that the Basic Tier,
HD, and Electronic Program Guide Provisions are facially preempted
because all three are "inconsistent with" § 541(a)(4)(B) and § 531
and so are preempted by the Cable Act on that basis. NCTA also
makes this same argument about the preemptive effect of those
provisions of the Cable Act as to the remaining challenged PEG
- 41 -
provision in the Maine Act that we have not yet addressed -- the
Channel Placement Provision. But, reviewing de novo, see Bower,
731 F.3d at 92, we are not persuaded that any of these PEG
provisions is facially preempted by either of these Cable Act
provisions.14
A.
Section 541(a)(4)(B) of the Cable Act authorizes a
franchising authority to "require adequate assurance that the
cable operator will provide adequate [PEG] access channel
capacity, facilities, or financial support." 47 U.S.C.
§ 541(a)(4)(B). NCTA contends that this provision bars states and
franchising authorities from imposing requirements that exceed
what is "adequate," which it notes the FCC has defined as
"satisfactory or sufficient." See Third Report and Order, 34 FCC
Rcd. at 6869. NCTA then contends that the four PEG provisions
before us are "inconsistent with" § 541 because they require more
than what is "adequate" and that they are therefore facially
preempted. That is so, according to NCTA, because they,
respectively, "mandate[] placement in particular channel positions
next to broadcast channels on the basic tier, signal quality in
both HD and SD, with channels dedicated to each, and display in
Insofar as NCTA argues in its reply brief that the PEG
14
provisions are not only "inconsistent with" § 531 and
§ 541(a)(4)(B) but also "specifically preempted" by the same, our
resolution of the former claim also disposes of the latter.
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the same manner as broadcast channels in electronic program
guides," and so require "more than" "what is 'satisfactory' or
'sufficient' for cable subscribers to access and receive PEG
channels." Or, as NCTA puts it in its reply brief, the
requirements that the PEG provisions impose "by definition
exceed[] what is meant by 'adequate,'" as the Maine Act seeks "to
put PEG channels on equal footing with broadcast stations."15
The District Court rejected NCTA's argument on grounds
that by now should be familiar. It concluded that each of the PEG
provisions is a "consumer protection law" and that "[i]n enacting"
them, "the State [was] not acting as the franchising authority or
dictating the terms of the franchise agreement." NCTA, 451 F.
Supp. 3d at 139. Thus, the District Court held that § 541 is "not
applicable here," because § 541 "address[es] only what a
franchising authority may or may not do," and so there is no basis
for concluding that any of these PEG provisions is "specifically
preempted" by § 541, given § 541's focus on what franchising
authorities may do through the franchising process rather than on
what states may do through legislation. Id.
15We note that it is not entirely clear that the PEG
provisions fall within the preemptive scope of § 541(a)(4)(B), as
that provision refers only to requirements regarding "channel
capacity, facilities, or financial support," and NCTA has not
explained why the PEG provisions are within that ambit.
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NCTA contends that this reasoning "misses the point" of
the Cable Act's preemption scheme and that the District Court
should have concluded that "Maine is not permitted to do what a
franchising authority is prohibited from doing." But, even if we
assume as much, we still must reject NCTA's claim of facial
preemption, due to the limited nature of its argument about what
is "adequate" within the meaning of § 541(a)(4)(B). See O'Brien,
350 F.3d at 292.
NCTA's sole contention on that score is that
requirements comparable to those imposed on broadcast channels
exceed what is adequate in every case.16 In connection with that
argument, as we have noted, NCTA observes that the FCC has defined
"adequate" according to its "ordinary meaning" of "satisfactory or
sufficient," and it then cites to an FCC order for the proposition
that "[t]he FCC has explained that the limits on 'adequate' PEG
facilities, equipment, and support are non-waivable federal
restrictions on what states and localities may demand." See Third
Report and Order, 34 FCC Rcd. at 6869-70.
16 Although NCTA does assert in its reply brief that "[h]igh
definition is not 'standard,' . . . standard definition is
standard, and it is adequate" and that "special accommodations to
generate hyper-local data for display on electronic programming
guides are not 'adequate'" because "that requires more than any
other content provider receives," it does not make these points in
its opening brief. See United States v. Mayendía-Blanco, 905 F.3d
26, 32 (1st Cir. 2018) ("[I]t is a well-settled principle that
arguments not raised by a party in its opening brief are waived.").
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But, NCTA does not address the fact that in that order
the FCC rejected an "invitation by cable operators to establish
fixed rules as to what constitutes 'adequate'" PEG resources and
explained that the proper inquiry looks to what is "necessary to
further the goals of the Cable Act." Id. at 6870. Nor does NCTA
address the fact that the FCC elaborated on that point in that
same order by explaining that "[i]n general," a number of "factors
[are] relevant" to the determination of "what constitutes
'adequate,'" which "might vary depending on, among other things,
the number of subscribers within a franchise, the area covered by
a franchise, the number of cable operators within a franchise, the
area's population and geography, the cable-related community needs
and interests, and whether PEG channel capacity is substantially
used." Id.That NCTA does not address those points presents a
problem for its facial preemption claim, because NCTA does not
either explain why those factors in that order are not relevant to
the "adequate" constraint or address how they bear on this case.
In addition, NCTA does not contend with the evidence in the record
about the experiences of communities in Maine and what the State's
residents need to be able to access PEG channels. We thus cannot
conclude that NCTA has carried its burden to show facial preemption
based on § 541 of the Cable Act as to any of the four PEG provisions
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in question. See Zannino, 895 F.2d at 17. Accordingly, we must
reject this claimed basis for finding facial preemption.
B.
We turn now to NCTA's argument that all four PEG
provisions are facially preempted because each is "inconsistent
with" § 531 of the Cable Act. The argument runs as follows.
Section 531(a) of the Cable Act provides that "[a]
franchising authority may establish requirements in a franchise
with respect to the designation or use of channel capacity for
[PEG] use only to the extent provided in this section." 47 U.S.C.
§ 531(a). NCTA reads this provision broadly, by paraphrasing it
to state that "PEG may only be regulated 'to the extent provided'
in [§] 531." NCTA then argues that § 531 does not affirmatively
authorize any of the four PEG provisions of the Maine Act, and
that, in consequence, each is "inconsistent with" § 531.
Maine's initial line of defense is that none of the PEG
provisions is "inconsistent with" § 531 precisely because each is
state imposed, while § 531 by its terms addresses only requirements
imposed by franchising authorities. The District Court relied on
similar reasoning in ruling for Maine, albeit while evaluating
only whether the PEG provisions are "specifically preempted" by
§ 531 and not merely whether they are "inconsistent with" the same,
see NCTA, 451 F. Supp. 3d at 139, given its conclusion that all
four PEG provisions are "consumer protection laws," id. at 140,
- 46 -
142, 145. But, once again, the District Court's non-preemption
ruling must be affirmed, even if we assume that its underlying
reasoning is mistaken, as NCTA contends. See O'Brien, 350 F.3d at
292.
As noted above, NCTA describes § 531(a) of the Cable Act
as providing that "PEG may only be regulated 'to the extent
provided' in [§] 531." But, that summary of the legislative text
is too summary. In full, § 531(a) specifies that "[a] franchising
authority may establish requirements in a franchise with respect
to the designation or use of channel capacity for [PEG] use only
to the extent provided in this section." 47 U.S.C. § 531(a)
(emphasis added). Absent some contrary interpretation by the FCC
or some argument for doing so, neither of which NCTA has supplied,
we see no reason to read "the designation or use of channel
capacity for" out of the statute. See Republic of Sudan v.
Harrison, 139 S. Ct. 1048, 1058 (2019).
We are thus left with two questions for each PEG
provision: (1) whether it is within the scope of § 531(a), defined
to limit at most the imposition of requirements on cable system
operators that are "with respect to the designation or use of
channel capacity for [PEG] use," 47 U.S.C. § 531(a); and (2) if
so, whether that PEG provision is indeed authorized somewhere in
§ 531. But, as to the first question, because NCTA assumes that
the subsection limits all requirements related to PEG channels,
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notwithstanding the superfluity problem that results from such a
reading, it offers no explanation of how at least three of the
four PEG provisions -- the Basic Tier Provision, the Channel
Placement Provision, and the Electronic Program Guide Provision -
- do relate to "the designation or use of channel capacity." See
Zannino, 895 F.2d at 17.
That said, it is possible to glean from NCTA's brief the
argument that at least the HD Provision may relate to "the
designation . . . of channel capacity." NCTA notes in its
statement of the case, for example, that delivering content in HD
"requires more than four times the cable-system bandwidth" than
delivering content in SD does, and it also cites to an affidavit
that further explains that under the HD Provision operators would
be required to "dedicat[e] more . . . channel capacity to transmit
PEG channels in both SD and HD."
But, even if we were to read NCTA to be making such an
argument about how the HD Provision is encompassed by § 531(a) of
the Cable Act, we would then confront the second question in the
§ 531 inquiry described above. And, if the HD Provision falls
within § 531(a) on the ground that it is a "requirement[] . . .
with respect to the designation . . . of channel capacity for [PEG]
use" because it requires the designation of incremental channel
capacity, it is hardly evident that the HD Provision would not
then be authorized affirmatively by § 531(b), which empowers a
- 48 -
franchising authority to "require . . . that channel capacity be
designated for [PEG] use." 47 U.S.C. § 531(b). True, not all
requirements "with respect to the designation . . . of channel
capacity" must themselves actually require the designation of
channel capacity, such that they fall within the scope of § 531(b).
But, NCTA's arguments as to why the HD Provision is encompassed
within § 531(a), to the extent that it has made them, also would
require the conclusion that the HD Provision is authorized by
§ 531(b) on the ground that it does not merely relate to such
"designation" but in fact requires a designation in its own right.
Nor does NCTA develop any argument to the contrary. Thus, given
that NCTA bears the burden to establish preemption, its claim of
facial preemption based on § 531 as to the four PEG Provisions
also fails, not only as to the Basic Tier, Channel Placement, and
Electronic Program Guide Provisions, but also as to the HD
Provision.
V.
For the foregoing reasons, we affirm the decision of the
District Court. The parties shall bear their own costs.
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