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

7 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: August 3, 2021
• Docket: 20-1431P
• Status: Published

Opinion

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.

- 3 - 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.

- 4 - 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

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 - 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.

- 10 - 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

- 11 - 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.

- 13 - 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,

- 14 - 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

- 15 - 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

- 16 - 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

- 17 - 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

- 18 - 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.

- 19 - 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

- 20 - 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

- 21 - 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.

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.

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

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

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.

- 42 - 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.

- 43 - 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.").

- 44 - 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

- 45 - in question. See Zannino, 895 F.2d at 17. Accordingly, we must

reject this claimed basis for finding facial preemption.

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,

- 47 - 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.

For the foregoing reasons, we affirm the decision of the

District Court. The parties shall bear their own costs.

- 49 -