Summary
following United Video, Inc. v. FCC , 890 F.2d 1173 (D.C. Cir. 1989)
Summary of this case from NCTA Internet & Television Ass'n v. FreyOpinion
Docket No. 1:19-cv-410-NT
2019-12-20
COMCAST OF MAINE /NEW HAMPSHIRE, INC., et al., Plaintiffs, v. Janet MILLS, et al., Defendants.
David P. Murray, Melanie A. Medina, Michael D. Hurwitz, Willkie Farr & Gallagher LLP, Jessica L. Saba, Matthew A. Brill, Matthew T. Murchison, Michael H. Herman, Richard H. Griffin, Latham & Watkins, LLP, Washington, DC, Joshua A. Tardy, Joshua A. Randlett, Rudman & Winchell, Bangor, ME, for Plaintiffs. Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendants.
David P. Murray, Melanie A. Medina, Michael D. Hurwitz, Willkie Farr & Gallagher LLP, Jessica L. Saba, Matthew A. Brill, Matthew T. Murchison, Michael H. Herman, Richard H. Griffin, Latham & Watkins, LLP, Washington, DC, Joshua A. Tardy, Joshua A. Randlett, Rudman & Winchell, Bangor, ME, for Plaintiffs.
Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendants.
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Nancy Torresen, United States District Judge
This year, Maine enacted LD 832, which requires cable operators to allow cable subscribers to purchase cable channels and programs individually. Maine is the first state in the nation to enact such an à la carte mandate. Plaintiff Comcast of Maine/New Hampshire ("Comcast ") currently bundles most of its channels, requiring subscribers who wish to view specific programming to receive more channels and programs than they may need or want. Comcast and a number of video programmers (collectively, the "Plaintiffs ") claim LD 832 is facially unconstitutional because it is preempted by federal law and because it violates the First Amendment. Before me is the Plaintiffs' motion for a preliminary injunction. For the reasons that follow, I GRANT the Plaintiffs' motion.
LEGAL STANDARD
In determining whether to grant a preliminary injunction, I must consider:
(i) the movant's likelihood of success on the merits of its claims; (ii) whether and to what extent the movant will suffer irreparable harm if the injunction is withheld; (iii) the balance of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the withholding of one) may have on the public interest.
Corp. Techs., Inc. v. Harnett , 731 F.3d 6, 9 (1st Cir. 2013).
The Plaintiffs bear the burden of establishing that these factors weigh in their favor. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas , 445 F.3d 13, 18 (1st Cir. 2006). "[T]he burdens at the preliminary injunction stage track the burdens at trial." Reilly v. City of Harrisburg , 858 F.3d 173, 180 (3d Cir. 2017), as amended (June 26, 2017) (internal quotation marks omitted). In the context of a First Amendment claim, the Plaintiffs have the burden to show that the state law infringes on their First Amendment rights. Id. at 180 n.5 (citing Goodman v. Ill. Dep't of Fin. & Prof'l Regulation , 430 F.3d 432, 438 (7th Cir. 2005) ). If the Plaintiffs make this showing, then the State must justify its restriction on speech under the appropriate constitutional standard. Id. (citing Thalheimer v. City of San Diego , 645 F.3d 1109, 1116 (9th Cir. 2011) ).
DISCUSSION
I. Likelihood of Success
A party seeking a preliminary injunction must establish that it is likely to succeed on the merits of its claims. The likelihood of success on the merits prong has been described as the sine qua non of the four factors for establishing a preliminary injunction. New Comm Wireless Servs., Inc. v. SprintCom, Inc. , 287 F.3d 1, 9 (1st Cir. 2002) ("[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.")
The Plaintiffs argue that the à la carte mandate is preempted by the federal Cable Act, 47 U.S.C. §§ 521 et seq. , and that the law violates their rights under the First Amendment. I discuss each argument in turn.
A. Preemption
Article VI of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art VI, cl. 2. It has long been recognized that "state law that conflicts with federal law is without effect." Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). The Supreme Court has made clear that:
because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-emption cases ... we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
Medtronic, Inc. v. Lohr , 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ).
Congress may preempt state law either directly—through an express preemption provision in a federal statute—or implicitly. Grant's Dairy—Me., LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res. , 232 F.3d 8, 15 (1st Cir. 2000). The Plaintiffs maintain that the federal Cable Act does both.
1. Express Preemption
"Congressional intent is the touchstone of any effort to map the boundaries of an express preemption provision." Tobin v. Fed. Express Corp. , 775 F.3d 448, 452 (1st Cir. 2014) (citations omitted). Because there exists a "presumption against the pre-emption of state police power regulations," the Supreme Court has instructed lower courts to narrowly interpret express preemption provisions. Medtronic , 518 U.S. at 485, 116 S.Ct. 2240 (quoting Cipollone , 505 U.S. at 518, 112 S.Ct. 2608 ).
The Plaintiffs contend that provisions of the Cable Act— 47 U.S.C. § 544(f) and 47 U.S.C. § 544(a) and (b) —expressly preempt LD 832. Accordingly, I consider whether Congress intended to expressly preempt states from imposing à la carte mandates on cable operators under those sections.
a. Section 544(f)
Section 544(f) prohibits states from imposing "requirements regarding the provision or content of cable services," unless expressly allowed by the Cable Act. 47 U.S.C. § 544(f)(1). The Plaintiffs argue that the à la carte mandate is a "requirement[ ] regarding the provision or content of cable services," preempted by the plain meaning of § 544(f). Pls.' Mot. for Preliminary Injunction ("Mot. ") 7 (ECF No. 14). The State urges me to adopt a narrower definition of the term "provision" in § 544(f), relying on the structure of the Cable Act, its legislative history, and cases that have interpreted the provision. State's Opp'n to Mot. ("Opp'n ") 6–13 (ECF No. 69).
i. Interpreting § 544(f)
(I). The Plain Meaning of § 544(f)
Section 544(f) provides:
[a]ny Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as expressly provided in [the Cable Act].
47 U.S.C. § 544(f)(1). In enacting LD 832, the State has attempted to impose requirements regarding how cable operators must provide programming. If § 544(f) is considered in isolation, then by its plain meaning, LD 832 would be preempted.
The Supreme Court has recently explained the relevant rules of statutory construction:
If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). But oftentimes the "meaning—or ambiguity—of certain words or phrases may only become evident when placed in context." [FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).] So when deciding
whether the language is plain, we must read the words "in their context and with a view to their place in the overall statutory scheme." Id. at 133, 120 S.Ct. 1291 (internal quotation marks omitted). Our duty, after all, is "to construe statutes, not isolated provisions." Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson , 559 U.S. 280, 290, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (internal quotation marks omitted).
King v. Burwell , ––– U.S. ––––, 135 S. Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (parallel citations omitted).
(II). Section 544(f) in Context
"Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis." Dolan v. U.S. Postal Serv. , 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). Taking into account the context of § 544(f), at least one other section of the Cable Act suggests that Congress did not intend the phrase "provision ... of cable services" to be read broadly. Section 544(e), which was also enacted as part of the 1984 Cable Act, provides 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). A restriction on transmission technology or subscriber equipment would fall within the plain meaning of a "requirement[ ] regarding the provision ... of cable services," rendering § 544(e) unnecessary if "provision" is read broadly. See McDonnell v. United States , ––– U.S. ––––, 136 S. Ct. 2355, 2369, 195 L.Ed.2d 639 (2016) (rejecting interpretation that would render other parts of the statute unnecessary).
Additionally, as the State points out, § 552(d) provides that the Cable Act should not "be construed to prohibit any State or any franchising authority from enacting or enforcing any consumer protection law, to the extent not specifically preempted by this subchapter." 47 U.S.C. § 552(d). If "provision" is interpreted broadly, it would appear to specifically preempt the State from enacting any consumer protection law involving the cable industry, since such laws would all be "requirements regarding the provision ... of cable services." 47 U.S.C. § 544(f). If all consumer protections laws were preempted by § 544(f), there would be no point to having § 552(d). In sum, § 544(e) and § 552(d) strongly suggest that Congress did not intend "provision" in 544(f) to have a broad meaning.
(III). Legislative History
Plain meaning " ‘sometimes must yield if its application would bring about results that are antithetical to Congress's discernible intent.’ " United States v. Gordon , 875 F.3d 26, 34 (1st Cir. 2017) (quoting In re Hill , 562 F.3d 29, 32 (1st Cir. 2009) ). Because the term "provision or content of cable services," considered in the broader context of the Cable Act, is ambiguous, it is appropriate to look to the legislative history to attempt to understand Congress's intent. Milner v. Dep't. of Navy , 562 U.S. 562, 572, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) ("[C]lear evidence of congressional intent may illuminate ambiguous text.").
In the 1984 Cable Act, Congress sought to establish a national policy that clarified the then-existing system of local, state, and federal regulation of cable television. H.R. Rep. No. 98-934, reprinted in 1984 U.S. Code Cong. & Admin. News ("House Report " or "H. Rep. ") 4655, 4656. Congress recognized the fundamental importance of developing a "robust marketplace of ideas" containing a "wide variety of perspectives from many different types of program providers." Id. To accomplish these goals, it required cable companies to make space for public access channels and third-party commercial access. See 47 U.S.C. §§ 531 – 532.
The House Report shows that Congress was concerned about the First Amendment rights of cable operators to control the content of their programming. The House Report repeatedly emphasizes the need to ensure that government officials not be able to "dictate the specific programming to be provided over a cable system." H. Rep. at 4663, 4695; see also id. at 4656, 4668–69, 4671, 4673–74, 4706, 4716 (discussing impact of Cable Act on various First Amendment interests). To that end, Congress set limits on the regulatory powers of the Federal Communications Commission ("FCC "), franchising authorities, and states. 47 U.S.C. § 544. It allowed franchising authorities to set requirements for facilities and equipment but limited their rights to "establish requirements for video programming or other information services." 47 U.S.C. § 544(b). Similarly, in § 544(f), it prohibited federal agencies, states, and franchising authorities from imposing "requirements regarding the provision or content of cable services." 47 U.S.C. § 544(f). The legislative history suggests that the Cable Act as a whole—and § 544(f) specifically—was concerned with preventing government officials from controlling the content of cable programming.
(IV). Cases Interpreting § 544(f)
The cases that have addressed the meaning of § 544(f) have nearly unanimously adopted a limited interpretation of the section. In 1989, the Court of Appeals for the District of Columbia Circuit addressed a challenge by cable operators to the FCC's "syndicated exclusivity" or "syndex" rules. United Video, Inc. v. FCC , 890 F.2d 1173 (D.C. Cir. 1989). The rules permitted local broadcast stations to enforce their exclusive licenses with syndicated television program providers against cable operators that received the programs from an out-of-market signal and transmitted the programs back into the local broadcast station's market. Id. at 1182. The D.C. Circuit determined that the syndex rules did not run afoul of § 544(f), because that provision only prohibited requirements that were content-based. Id. at 1189. In reaching this conclusion, the D.C. Circuit considered the plain meaning of § 544(f) to be ambiguous and looked to the legislative history. It wrote:
This historical context supports the Commission's belief that when Congress forbade "requirements regarding the provision or content of cable services," its concern was with rules requiring cable companies to carry particular programming.
Id. at 1188. The examples provided in the House Report "suggest that the key is whether a regulation is content-based or content-neutral." Id. at 1189.
The House report suggests that Congress thought a cable company's owners, not government officials, should decide what sorts of programming the company would provide. But it does not suggest a concern with regulations of cable that are not based on the content of cable programming, and do not require that particular programs or types of programs be provided. Such regulations are not requirements "regarding the provision or content" of cable services.
Syndex is clearly different from a requirement or prohibition of the carriage of a particular program or channel. Although it will certainly affect the content of cable programming, it is content-neutral. The basis on which syndex forbids carriage of certain programs is not their content, but ownership of the right to present them. Syndex itself does not require carriage of any particular program or type of program, nor does it prevent a cable company from acquiring the right to present, and presenting, any program.
Id.
The Plaintiffs argue that United Video is distinguishable and urge me to reject it. They contend that United Video involved the reasonableness of an agency's action and not a state preemption claim. It is true that the syndex rules were a requirement imposed by the FCC and that the D.C. Circuit was required to uphold the rules unless they were arbitrary or capricious. The Plaintiffs write: "Applying Chevron , and relying almost exclusively on a single piece of legislative history, the court upheld as reasonable the FCC's determination that [ 47 U.S.C. 544(f) ] was inapplicable." Reply 4 (ECF No. 85). But the D.C. Circuit in United Video went beyond a holding that the FCC's interpretation was reasonable. Because the FCC had reached its conclusion that § 544(f) did not prohibit syndex rules for a different reason than the court, the D.C. Circuit was required to determine whether "the agency has come to a conclusion to which it was bound to come as a matter of law, albeit for the wrong reason." United Video , 890 F.2d at 1190 (discussing SEC v. Chenery Corp. , 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ). Thus, the D.C. Circuit held as a matter of law that the FCC was "bound to say that syndex rules are sufficiently different from the sorts of rules with which Congress was concerned that the statutory phrase ‘requirements regarding the provision or content of cable services’ does not embrace them." Id. at 1189 (emphasis added).
The Plaintiffs also claim that the D.C. Circuit, in dealing with the syndex rules, did not "directly address the manner in which cable services are provided." Reply 4. Although the syndex rules involved the relationship between the supplier of a syndicated program and a broadcast television station, the rules permitted broadcast stations with exclusive rights to a syndicated program to "forbid any cable television station from importing the program into its local broadcast area from a distant station." United Video , 890 F.2d at 1176. In other words, the rules had a very direct effect on the provision of cable programming, specifically prohibiting cable operators from transmitting an exclusively syndicated program from a distant signal.
Subsequent cases have followed United Video. In Storer Cable Communications v. City of Montgomery , a district court found that § 544(f) did not preempt a municipal ordinance aimed at increasing competition in cable services supply. 806 F. Supp. 1518, 1546 (M.D. Ala. 1992). The court agreed with United Video 's conclusion that § 544(f) was concerned with content-based requirements. Because the district court found that the Montgomery ordinance did not intrude into the area of content, the court found that the ordinance did not run afoul of § 544(f). Id.
(V). Is "Provision" Superfluous?
The Plaintiffs argue that the word "provision" becomes superfluous if § 544(f) is interpreted to prohibit only requirements regarding the content of cable services. The Plaintiffs suggest that provision must at least cover "programming-related" decisions of cable operators, and they argue that à la carte availability is a "programming-related" decision. Tr. Oral Argument 8–9, 13, 17 (ECF No. 87). I agree that "provision" could extend to programming-related decisions, but, given my analysis of the Cable Act, I would extend § 544(f) to cover requirements regarding programming-related decisions only if they had the effect of either prohibiting a cable operator from providing particular programming or requiring a cable operator to provide particular programming. The release requirement in Lafortune provides an example. See 2002 WL 823678, at *8. On its face the requirement was content-neutral, and the city justified it as a way to limit liability for any slanderous statements made by talk show hosts. But as the court recognized, the release requirement was more than that. It was actually a programming-related requirement that targeted a particular talk show.
ii. Analysis
Having determined that § 544(f) prohibits government officials from imposing content-based requirements or mandates that have the effect of restricting or requiring particular content, I consider whether it preempts LD 832. The Plaintiffs argue that LD 832 is content-based because it would affect video programming content and because it singles out cable providers over other types of video programming providers, such as satellite or on-line television. The State contends that the à la carte mandate is a content-neutral requirement that cable operators must offer access to cable channels and programs individually. I address each of these arguments.
I agree with the State that LD 832 is content-neutral. LD 832 requires cable operators to offer access to cable channels and programs individually. It does not require or prohibit cable operators from carrying any particular channel or program. Nor does anything in the limited legislative history behind LD 832 suggest that the Maine legislature was at all concerned with the content of particular programming. The sponsor of LD 832 was focused on rising prices for cable services and on the fact that consumers were "forced to purchase cable TV packages which include dozens of channels the consumer has no interest in watching." Testimony in support of LD 832 (ECF No. 69-1). In that respect, LD 832 is similar to California's anti-tying requirement upheld in Morrison. See 52 Cal. App. 4th at 1532, 61 Cal.Rptr.2d 544. Neither LD 832 nor the anti-tying provision dictates the content that cable operators or programmers must carry. See id. Additionally, LD 832 does not prohibit cable operators from continuing to offer bundles in any combination they choose. It simply provides that, in addition to the bundles, there must be an à la carte option.
b. Sections 544(a) and (b)
The Plaintiffs contend that LD 832 is preempted by § 544(a) and (b). Section 544(a) provides that "[a]ny franchising authority may not regulate the services, facilities, and equipment provided by a cable operator except to the extent consistent with this subchapter." 47 U.S.C. § 544(a). Section 544(b)(1) provides that, for franchises granted after the effective date of the Cable Act, the franchising authorities "may establish requirements for facilities and equipment, but may not ... establish requirements for video programming or other information services." 47 U.S.C. § 544(b). Section 544(b)(2) allows a franchising authority to enforce requirements contained in the franchise—"(A) for facilities and equipment; and (B) for broad categories of video programming or other services." 47 U.S.C. § 544(b)(2).
The Plaintiffs do not develop their argument that § 544(a) and (b) preempt LD 832, perhaps because these provisions apply only to franchising authorities and not to states. Congress clearly knew how to restrict the regulatory authority of states, as it did so in § 544(f). Even if I found that the Plaintiffs had not waived this argument as undeveloped, I would likely not find that these provisions restrain state regulatory authority. I also would likely interpret § 544(a) and (b) as provisions designed to keep franchising authorities from requiring specific programming. H. Rep. 4705–06 ( § 544(a) and (b) ensure that franchising authorities can enforce commitments made in franchise agreements, "yet also protect[ ] the cable operator from being forced to provide specific programming"). I have already found that LD 832 does not prohibit cable operators from carrying or require them to carry any particular programming. LD 832 is not preempted under § 544(a) and (b).
2. Conflict Preemption
"[C]onflict pre-emption exists where compliance with both state and federal law is impossible, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Oneok, Inc. v. Learjet, Inc. , 575 U.S. 373, 377, 135 S.Ct. 1591, 191 L.Ed.2d 511 (2015) (quotation marks omitted). "[A] court should not find pre-emption too readily in the absence of clear evidence of a conflict." See Geier v. Am. Honda Motor Co. , 529 U.S. 861, 885, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). The Plaintiffs argue that both types of conflict preemption—impossibility and obstacle—are present.
a. Impossibility
The Plaintiffs argued in their opening brief that they would be unable to comply with the à la carte mandate and comply with the federal requirement that cable operators include all stations that elect must-carry status on the basic tier. Mot. 9–10. In response, the State indicated that it does not interpret LD 832 "as allowing consumers to purchase à la carte channels and programs without first subscribing to the mandatory basic tier." Opp'n 14. The State bases its interpretation on the use of the term "subscribers" in LD 832, and it argues that one must first become a "subscriber" by purchasing the basic tier in order to then be able to purchase additional programming on an à la carte basis. Opp'n 15. I am required to consider the narrowing construction offered by the State. Nat'l Org. for Marriage v. McKee , 649 F.3d 34, 66 (1st Cir. 2011) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494 n.5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ) ("In evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered."). Under the State's limiting construction, I find that LD 832 does not make compliance with the Cable Act's must-carry and basic tier requirements impossible.
b. Obstacle
The Plaintiffs also argue that LD 832 stands as an obstacle to the accomplishment of the Cable Act's purposes and objectives and frustrates the effectiveness of federal law. Mot. 10–11. The Plaintiffs posit that "Congress made clear that its goals for regulating cable service were to establish and maintain ‘a national policy concerning cable communications’ that ‘minimize[s] unnecessary regulation that would impose an undue economic burden on cable systems.’ " Mot. 10 (quoting 47 U.S.C. § 521(1), 521(6) ). I agree that these were among Congress's goals. But so too were "assur[ing] that cable systems are responsive to the needs and interests of the local community" and allowing states to "enact[ ] or enforce[e] any consumer protection law" unless specifically preempted. 47 U.S.C. §§ 521(2), 552(d). Because there are competing federal purposes and objectives in the Cable Act, and because LD 832 embodies one of those objectives, I do not find "clear evidence" of a conflict. See Geier , 529 U.S. at 885, 120 S.Ct. 1913.
Because I find that no provision of the Cable Act expressly preempts LD 832 and because the Plaintiffs have not established conflict preemption, I go on to address the Plaintiffs' First Amendment claims.
B. First Amendment
The Plaintiffs argue that LD 832 violates their First Amendment rights and should be subject to strict scrutiny. They contend that the State has failed to meet its burden of showing that LD 832 can withstand either strict or intermediate scrutiny because the State has not provided evidence that LD 832 will further an important State interest. Mot. 11–15. The State responds that the Plaintiffs do not have a First Amendment right to bundle content in the first place. Alternatively, the State argues that if First Amendment interests are at stake, then intermediate rather than strict scrutiny would apply and LD 832 would survive intermediate scrutiny. Opp'n 16, 21.
1. Plaintiffs' Constitutional Rights
As a threshold matter, the Plaintiffs are required to demonstrate that LD 832 infringes on their First Amendment rights. They make arguments that touch upon two different doctrines of First Amendment law. First, citing Turner I , 512 U.S. at 636, 114 S.Ct. 2445, they contend that a decision "exercising editorial discretion" over how to provide programming is protected speech. Mot. 11. Second, they contend that because LD 832 singles out cable operators for disfavored treatment but leaves other multichannel video programming distributors unregulated, it violates the First Amendment's prohibition on speaker-based regulations as discussed in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue , 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983), and Arkansas Writers' Project, Inc. v. Ragland , 481 U.S. 221, 227, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). Reply 7–8. I address each argument in turn.
a. Editorial Discretion under Turner I
In Turner I , the Supreme Court addressed whether the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460, which required cable operators to carry the signals of certain local broadcast television stations, violated the First Amendment rights of cable operators and programmers. 512 U.S. at 636–37, 114 S.Ct. 2445. The Supreme Court wrote that "there can be no disagreement" that:
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. Through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire, cable programmers and operators seek to communicate messages on a wide variety of topics and in a wide variety of formats.
Id. at 636, 114 S.Ct. 2445 (quotation marks, citations, and alterations omitted). The Court determined that the must-carry provisions "regulate cable speech in two respects: The rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for