A legislative committee is strongly endorsing a potentially groundbreaking move to require cable companies to provide "a-la-carte" subscriptions for individual cable channels. Cable operators say federal statute forbids it, but federal regulators say they have never ruled on the question.
Cable companies take many approaches to the kinds of subscription packages they offer consumers, sometimes allowing them to choose individual channels. More often they sell packages of channels, so that consumers who want a particular one are forced to sign up for a potentially expensive grab-bag of channels that they might not want.
"The senior citizens in my area want to watch the Boston Red Sox," says Rep. Jeffrey Evangelos, an independent from Friendship, Maine.
Evangelos has been trying for years to open up the menu of subscriptions that cable companies, including Maine's largest, Spectrum, offer when they seek a franchise license from local municipalities.
"The package that Spectrum is offering in Maine that includes the Red Sox costs about a hundred bucks,” he says. “These people are making 800 bucks a month on Social Security. They're bemoaning to me at the doors, you know, ‘I can't afford television anymore Jeff.’ And they grew up in an era when television was free."
Evangelos is proposing a one-sentence change in state law that when seeking local franchises, "a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually."
"I can confirm that no state today has enacted a law mandating cable pricing or a television lineup," says Spectrum lobbyist Melinda Kinney.
Kinney testified against the measure at an Energy, Utilities and Technology Committee hearing in March. She and other industry lobbyists argued that federal law preempts state action to regulate cable offerings and that it would be illegal for a state to try.
If such a measure happened to be enacted, she added, "I think if there were we would see a lot of lawsuits challenging the grounds, based on federal pre-emption."
Another lobbyist, Chris Hodgdon of Comcast, cited specific language in federal statute: "That no state shall regulate the products, rates, services of a cable provider."
The cable lobbyists also argue that the measure would create an administrative nightmare and put them at a competitive disadvantage with unregulated services, such as satellite or online streaming services.
Those have been effective arguments against similar bills offered in the Legislature — including those from Evangelos —that ultimately failed. But this time, the state's consumer advocate, Public Advocate Barry Hobbins, is introducing a new wrinkle to the debate. During a visit in March to the Federal Communications Commission in Washington on another matter, he asked the feds to weigh in on this one.
"I asked specifically the question, ‘how does the Maine Legislature reconcile the proposed state law for a-la-carte services under the Telecommunications Act of 1996'?" asked Hobbins.
After some back-and-forth calls and some prodding by the office of independent Sen. Angus King, Hobbins said, he got a reply last week, from Patrick Webre, chief of the FCC's Consumer and Governmental Affairs Bureau.
"I'm going to read it to you... 'In your letter you asked whether a state mandate that a cable operator provide a-la-carte services would be pre-empted by federal law.' Listen to this: ‘This poses a question of first impression, and we could not locate any specific Commission rules that addresses your exact issue. Thus we are not in a position to express an opinion on the question you raise.’"
In other words, the FCC has never formally weighed in on the legality of state mandates like what Evangelos proposes. Some lawmakers are raising concerns that the state, as the lobbyists suggested, would indeed invite costly litigation if it enacted the measure.
Hobbins, who is neither for nor against the bill, did note that the state Attorney General's office is "the biggest law firm in the state of Maine."
The Committee proceeded to recommend the Evangelos measure to the full Legislature on a tri-partisan vote of eight-to-two. It will be debated first in the House.
Originally published May 16, 2019 at 5:26 p.m. ET.