U.S. Court of Appeals for the First Circuit hands a victory to PEG community television advocates in Maine
August 4, 2021 - The U.S. Court of Appeals for the First Circuit has handed a victory to PEG community television advocates in Maine, turning away a challenge from the cable industry to a 2019 state law. Attorney Jim Horwood, Spiegel & McDiarmid, one of the authors of an amicus curie brief on behalf of the Alliance for Community Media, The Alliance for Communications Democracy and Community Television Association of Maine said, "It's one of the sweetest decisions I've ever been involved in."
The Maine law requires cable operators to place PEG channels adjacent to local broadcast channels, carry local HD PEG programming in the HD format (as well as the SD format), and identify PEG channels on the Electronic Program Guide (EPG) with their branded name as well as allow PEG channels to work directly with the vendor providing the Electronic Program Guide (EPG) on listing program information. The decision also found the state was within its rights when it provided for local franchising authorities to negotiate build out provisions that require companies to serve neighborhoods that have a minimum density of 15 residences per mile.
Mike Wassenaar, President and CEO of the Alliance for Community Media said, "The decision affirms the State of Maine’s law protecting consumers and PEG channels from discrimination." ACM is encouraging other states look at the ruling and the law as a way to better serve consumers who pay for local content and are actively discouraged from watching it.
The decision by a three-judge panel of the First Circuit Court of Appeals was unanimous. The court dismissed the arguments of the cable industry's trade organization, NCTA, in more than one way, finding that the Maine law was not "facially preempted by provisions of federal law," distinguishing what a state law is able to do versus what a franchising authority may do through the franchise renewal fact finding and negotiation process, and repeatedly finding that the Maine law was on solid ground as consumer protection provisions permitted by the Cable Act.
The Maine Attorney General Aaron Frey said his office was pleased that all of the cable industry arguments were completely rejected and the law was upheld in its entirety. He said “Community-run television stations are a priceless public resource, and the court’s ruling will go far in ensuring their continuing vitality by protecting against marginalization by cable television operators.”
In Wisconsin, the verdict was welcomed as a sign of hope. "Wisconsin has one of the worst laws in the nation for PEG channels," said Mary Cardona, Executive Director, Wisconsin Community Media. "The law here should be changed. It is not OK to merely require a video service provider [as cable operators are called in Wisconsin law] to transmit PEG channels in any manner or quality it wants to. Most cable TV customers in Wisconsin are saddled with a cable provider that refuses to show PEG programming in HD, bans PEG channels from appearing on the Electronic Program Guide, and buries local channels in digital Siberia - the 900s -- all in an effort to make these channels go away, to hide them from customers so that viewership and consequently support for these channels is low."
Cable television operators have been required to carry PEG access television channels under federal law since 1984. The purpose of the law is just as relevant today as it was nearly forty years ago -- 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."
The NCTA has the option to appeal the decision to the Supreme Court, but the high court only takes a few cases every term to review.
This decision is binding in Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico and, while it "doesn't necessarily apply elsewhere" according to Atty. Horwood, "it is entitled to deference elsewhere since there is no contrary decision by any other circuit court of appeals and because it is well-reasoned."
PEG media groups file brief in NCTA v. Frey in the U.S. Court of Appeals
September 22, 2020 - The State of Maine continues its fight to protect state legislation it passed requiring cable operators to treat PEG channels fairly on their systems and serve areas meeting certain density requirements. Having lost in the District Court for the District of Maine, the NCTA, a cable company association, appealed the decision to the U.S. Court of Appeals for the First Circuit. On September 22, the Community Television Association of Maine, the Alliance for Community Media and the Alliance for Communications Democracy filed an amici curiae brief in support of the State of Maine and its statute.
The arguments spelled out in the brief are as follows (this is an excerpt from pages 3 -5 of the Amicus Curiae Brief):
The Cable Communications Policy Act of 1984, as amended, 47 U.S.C. §§ 521-573 (“Cable Act”), recognizes the vital importance of PEG channels, which are essential for fulfilling Congress’s goals of ensuring that cable systems are responsive to the needs and interests of local communities and provide the widest possible diversity of information sources. Cable operators in Maine have attempted to undermine PEG channels by making it harder for viewers to find and access PEG programming and by refusing to carry PEG channels in the manner that they carry virtually all other channels. These discriminatory practices threaten the continued viability of PEG channels. Maine’s efforts to curb this discriminatory treatment of PEG channels through the Maine Act further the federal Cable Act’s goals.
The federal Cable Act does not, as NCTA—The Internet & Television Association (“NCTA”) suggests, restrict State regulation of cable television to the terms of individual local franchises. The Cable Act specifically provides that States may act outside the context of individual franchises, including by “enacting or enforcing any consumer protection law, to the extent not specifically preempted by [the Cable Act].” 47 U.S.C. § 552(d)(1) (emphasis added). There is nothing improper with Maine passing consumer protection laws consistent with the Cable Act that prevent cable operators from degrading the PEG viewing experience for consumers. Indeed, many states have passed laws imposing requirements on cable operators similar to the Maine Act’s PEG-related requirements.
None of the three PEG-related requirements of the Maine Act is preempted by the federal Cable Act. These requirements fall comfortably within the broad scope of franchising authority preserved in 47 U.S.C § 531 to “require rules and procedures for the use of the channel capacity designated [for PEG purposes].” 47 U.S.C. § 531(b). By designating where PEG channel capacity is to be located on a cable operator’s system and that the capacity be carried in the same format (high definition (“HD”)) as other channels carried on the system, the Maine Act is consistent with the federal Cable Act. Moreover, the Cable Act permits various PEG-related requirements not expressly listed in 47 U.S.C. § 531, which disproves NCTA’s argument that States are forbidden from imposing any requirements (like the Maine Act’s three PEG-related requirements) not expressly stated in that section.
The Maine Act is also fully consistent with the Cable Act’s language permitting franchising authorities to require “adequate” PEG support. 47 U.S.C. § 541(a)(4)(B). As the district court found based on evidence in the record, the Maine Act’s PEG requirements prevent cable operators from treating PEG channels in a manner that is inadequate. The Court should reject NCTA’s argument that it is “adequate” for a cable operator to treat PEG channels in a manner inferior to virtually all other channels on its system.
Finally, each of the PEG-related provisions of the Maine Act falls well within the scope of consumer protection laws, which States have wide latitude to enact so long as they are not “specifically preempted” by the Cable Act. 47 U.S.C. § 552(d)(1) (emphasis added). The electronic programming guide provision ensures that viewers are able to find and access critical local PEG programming in the same manner as they do for other channels, preventing cable operators from artificially steering consumers away from PEG programming. The same is true of the Maine Act’s provision regarding the numerical location of PEG channels, which responds to consumers’ complaints that they were unable to locate PEG channels after cable operators moved them from their historic numbers to remote, high numbers. The HD provision protects consumers by preventing cable operators from down-converting HD PEG programming to Standard Definition (“SD”), which singles out PEG channels for substandard treatment vis-à-vis other programming that the operator carries in an HD format. Nothing in the Cable Act specifically preempts these requirements.
Public Knowledge files brief in NCTA v. Frey
by Public Knowledge
September 23, 2020 - Today, Public Knowledge filed an amicus brief at the 1st U.S. Circuit Court of Appeals in the case of The Internet and Television Association (NCTA) v. Frey. Maine law requires cable operators to place public educational and government channels (PEG) in their basic cable tier and on lower channels in the vicinity of broadcast stations. The law also requires cable operators to include channels in program guides and retransmit any HD channels in HD for the public. Maine also required operators to “extend cable service to areas that have a population density of at least 15 residences per linear strand mile.” NCTA attempted to have the law overturned in the District Court. When the District Court rejected their arguments, NCTA appealed.
In its brief, Public Knowledge argues that Maine’s law is not preempted by any federal law, statute, or policy. Furthermore, Maine has an interest in ensuring that its residents have access to quality news and information, which include both PEG channels and cable service more generally.
See the entire article here: Public Knowledge Files Brief Supporting Consumer Access to PEG Channels in Maine
District Court of Maine Upholds State PEG Law
by Atty. Jim Horwood
March 11, 2020 - The decision in the Maine case rules against NCTA’s claims that the State law was preempted by federal law and denies a facial challenge to a requirement that renewed franchise agreements must contain a minimum density requirement of 15 residents per linear strand or aerial cable. The court found that any particular challenge to a density requirement can be dealt with during an individual franchise agreement renewal (“because the line extension requirement is clearly reasonable in some applications, its constitutionality can only be challenged on an as-applied basis, rather than a facial one”).
As to the PEG provisions of the State law, the Court upheld (1) the requirement that PEG channels be carried on the basic tier and the prohibition on cable operators from separating PEG channels numerically from other local broadcast channels or changing numbers assigned to PEG channels without the consent of the originator, (2) the requirement that cable operators carry PEG channels in both HD format and SD format in the same manner as local broadcast channels, and (3) the requirement that cable operators assist PEG channel originators with using the electronic programming guide. In reaching her decision on these issues, Judge Torresen relied extensively on the declarations of CTAM members, in particular Tony Vigue, that the State submitted in its opposition to NCTA.
Judge Torresen dealt quite nicely and effectively with the First Amendment arguments raised by NCTA. I expect that NCTA will appeal the decision to the 1st Circuit, but am confident in the ability of the State to defend Judge Torresen’s thorough and well-reasoned order.
