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No Right to Bundle ‘Big Brother,’ Maine Says in Fight Over Pick-and-Choose Cable Law

Defending a first-in-the-nation law that would force cable operators to go à la carte, a lawyer for the state of Maine assured the First Circuit on Wednesday that bundled channels is not a free-speech issue.

BOSTON (CN) — Defending a first-in-the-nation law that would force cable operators to go à la carte, a lawyer for the state of Maine assured the First Circuit on Wednesday that bundled channels is not a free-speech issue.

“They claim that they have a First Amendment right to force customers to buy HGTV and Animal Planet to get Discovery Channel, and to force customers to buy ‘NCIS’ and ‘Big Brother’ to watch ‘60 Minutes,’” the state said in its brief ahead of the 11 a.m. hearing in Boston. “There is no First Amendment right to engage in such bundling.”

Comcast, Fox, Disney and other cable operators sued the state last September, just before the law was to take effect. Crediting the companies’ claims that the new law was unconstitutional, particularly because the law does not affect internet-based providers similarly, a federal judge granted an injunction in December.

But the state told the First Circuit on Wednesday that nothing about the law stops operators from sell cable bundles. 

“You can provide whatever packages you want, but you have to give customers the right to individualize it,” said Christopher Taub, attorney for the state.

Taub assured the three-judge panel that the requirements were simple, customers would still subscribe to a package and would be able to purchase any additional channels they may want on an individual basis.

U.S. Circuit Judge Sandra Lynch wondered how bundles would sell under such a law.

“Why would people get a package when they could get them on a ‘when-i-want,’ à la carte basis,” asked Lynch, a Clinton nominee. 

Taub suggested that strategy would not be the most cost-effective approach for consumers, even though bundles are not always the best way for customers to get their favorite channels.

“You’re forcing consumers to buy a lot of what they don’t want just to get what they do want,” said Taub.

Discussing the case in an email, Michael Salinger, a business professor at Boston University, called it poor economic policy to mandate this kind of option.

“Many people think that they will necessarily get a better deal if they just buy what they want and don’t have to buy what they don’t want, but that all depends on the details of the pricing,” said Salinger in an email. “Forcing newspapers to sell their sections individually would not make it cheaper for you to buy just the sections you want.”

Matthew Brill, representing the operators, called the law a clear violation of his clients’ editorial discretion. 

He also noted that most major sports channels maximize exposure by barring operators from distributing their content expect as is in a bundle.

Judge Lynch mentioned that The New York Times sells recipes and crosswords individually, and questioned why cable could not do the same.

Brill, with the firm Latham & Watkins attorney, stressed he understood the concept of à la carte options but did not think it was up to the government to make such calls.

“We sell a lot of movies à la carte, and provide sports events on pay-per-view,” said Brill. “The point simply is that we get to make those choices.”

On rebuttal, Taub wanted to make it clear that the state's interest is in the consumers and to provide broader access to cable. 

Maine Representative Jeffrey Evangelos, a registered Independent who sponsored the à la carte bill, said in an email that a victory for the state in the case will be a victory for residents.

“I certainly hope the state prevails today, people should not be forced to buy something they don't want or watch,” said Evangelos in an email. “Senior citizens on fixed incomes cannot afford cable TV. It costs $100 to be able to watch the Red Sox. So let me get this straight, you fought in World War II, but you can't afford to watch baseball anymore? That's why I sponsored the bill.

“This about equity and free choice, the people's free speech, not the corporation's. The cable industry is already using à la carte and pay-per-view when it suits them, now it's time they use it when it suits the paying customer as well. Works that way with everything else we buy, we get to choose.”

U.S. Circuit Judges Kermit Lipez and Juan Torruella, appointed by Clinton and Reagan, respectively, round out the panel.

Brill declined to comment, and Taub did not immediately respond to an email seeking comment.

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