WarnerMedia filed an amicus curiae brief before the First Circuit Tuesday in support of plaintiff-appellees Comcast et al., asserting an interest in the suit because it claimed it will be negatively impacted if the Maine cable law in question is upheld.
The cable company is “a programmer that licenses video networks and services for distribution to consumers by cable operators in Maine,” thus, it “would be directly and negatively affected if the Maine statute at issue, Chapter 308, were enforced.” Chapter 308 states that “[n]otwithstanding any provision in a franchise, a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually.” The law is designed to allow consumers to purchase channels or programs à la carte.
WarnerMedia stated that the district court’s order enjoining Maine from enforcing Chapter 308 “is in the public interest and essential for the protection of First Amendment rights.” Specifically, “communication through the exercise of editorial discretion to carefully shape disparate content into networks and services.” WarnerMedia equates the proposed enforcement to cutting up a newspaper to sell by the article. WarnerMedia also claimed that for programmers “Chapter 308 would throw their business relationships into disarray, deprive them of revenue, damage their goodwill, and likely expose them to litigation” and it would decrease choices and increase costs for the general public. WarnerMedia states that the plaintiffs have shown a strong likelihood of success, claiming the district court correctly agreed with the plaintiff’s argument that they were singled out, but incorrectly rejected the editorial-discretion arguments and arguments that Chapter 308 is preempted by the federal Cable Act.
Furthermore, WarnerMedia argued that enjoining enforcement of Chapter 308 is in the public interest because Chapter 308 enforcement would “impose significant harm on WarnerMedia and similarly situated programmers.” Its networks and services are licensed for distribution by cable operators and other multi-channel video programming distributors (MVPDs) in Maine and across the country. Some of these channels include CNN, HLN, TBS, TNT, Cartoon Network/Adult Swim, Boomerang, HBO, among others.
WarnerMedia added that it carefully selects programs that are on a network. Some of this content is original to WarnerMedia and other comes from third parties, which it licenses; according to these agreements, it is not allowed to sell the individual programs to consumers or sublicense cable providers to do the same. Thus, an à la carte option could, according to WarnerMedia, lead to a cessation or decrease offering of channels and shows to consumers, which would reduce the “amount and quality of programming.”
WarnerMedia asserts that Chapter 308 enforcement violates its and other similarly situated entities’ constitutional rights “by interfering with the messages they send when the place content into networks and services by singling programmers out from other speakers for specially onerous burdens.” Further, the Supreme Court states that WarnerMedia “engage[s] in and transmit[s] speech,” as a result, it is “entitled to the protection of the speech and press provisions of the First Amendment.” WarnerMedia states that this violation will consequently harm consumers. WarnerMedia claims that this restricts its protected speech because it interferes with its “right to exercise editorial discretion in licensing content” and because it “singles out for a special burden speakers who license content to cable operators, as opposed to speakers who license content to other media.”
WarnerMedia concludes that the district court’s preliminary injunction should be affirmed.
Comcast was granted the preliminary injunction in January by the Maine District Court.
WarnerMedia is represented by Munger, Tolles & Olson LLP.