Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn’t gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.
With the federal government effectively in the cable, telecom, and broadcast sector’s back pocket at the moment (aka regulatory capture), the lobbying focus has shifted toward the states, where the industry has similarly tried to claim that holding them accountable for decades of bad service violates their First Amendment rights. For example when it was found that Charter lied about meeting its recent merger conditions and New York tried to hold it accountable, Charter claimed doing so would violate its 1A rights.
The argument popped up again this week in a Comcast lawsuit against the state of Maine, filed because the state passed a law that would force companies like Comcast to sell cable TV channels à la carte:
The companies claim the Maine law—titled “An Act To Expand Options for Consumers of Cable Television in Purchasing Individual Channels and Programs”—is preempted by the First Amendment and federal law. The Maine law is scheduled to take effect on September 19 and says that “a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually.” The lawsuit seeks an injunction to prevent the law from being enforced.
Granted, “You can’t do that because it violates our First Amendment rights,” is literally the first argument telecom lawyers try whenever anybody tries to hold them accountable for terrible service, unfair bundling, predatory behavior, or anything else. Just like the fifty times before this, the argument is nonsensical, and really just a knee jerk effort to fling some ideas at a wall and see what sticks in a bid to protect the shitty status quo.
Consumers have been begging for the ability to buy individual channels for decades now, and it used to be a pet project of former Senator John McCain. For the entirety of that duration, the cable industry has tried to claim that à la carte television would do two things: raise rates for all consumers, and kill off niche channels, which the industry argued simply couldn’t survive outside of the bundle. You’re to ignore that these niche channels are being killed off anyway and cable TV prices continue to skyrocket despite the rise of streaming competition.
Undaunted, Comcast continues to claim that bringing flexibility to the cable bundle would raise TV rates (something Comcast is super, authentically worried about, to be sure):
In a statement provided to Ars, Comcast and the TV networks said that “Maine’s à la carte mandate is prohibited under federal law and is unconstitutional… the law is not only unnecessary, but also likely to suppress competition and result in higher consumer prices and less program diversity.”
On the plus side it’s not like any of this is going to matter longer term, and both Comcast and state regulators really are just swimming upstream here. The rise of streaming competition will, sooner or later, force these companies to finally listen to consumers, stop mindlessly raising TV rates, and kill off traditional bundles. Cable TV providers that are tired of the increasingly tight margins in the pay TV sector will simply exit and focus on broadband instead. The rest, like AT&T and Comcast, will spend a few years swimming upstream by suing people, trying to tilt the regulatory playing field, and crying a lot until they realize the shift toward cheaper, more flexible TV bundles is a trend they can no longer ignore.
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