Comcast of Maine/New Hampshire v. Mills

988 F.3d 607

• Court: Court of Appeals for the First Circuit
• Decided: February 24, 2021
• Docket: 20-1104P
• Status: Published

Opinion

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

- 3 - 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."

- 4 - 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.

- 5 - (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

- 6 - 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.

- 7 - 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

- 9 - 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.").

- 10 - 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

- 11 - (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

- 12 - 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

- 13 - 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,

- 14 - 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

- 15 - 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

- 16 - 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

- 17 - 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.

- 18 - 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

- 19 - 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

- 20 - 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

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

- 22 - 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.

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.

- 23 -