No. 20-1431

NCTA -- THE INTERNET & TELEVISION ASSOCIATION,

Plaintiff, Appellant,

v.

AARON M. FREY, in his official capacity as Attorney General of the State of Maine,

Defendant, Appellee,

TOWN OF FREEPORT, MAINE; TOWN OF NORTH YARMOUTH, MAINE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch and Barron, Circuit Judges, and Burroughs, District Judge.*

Jessica Ring Amunson, with whom Howard J. Symons, Elizabeth B. Deutsch, Joshua D. Dunlap, Jenner & Block LLP, and Pierce Atwood LLP were on brief, for appellant. Christopher C. Taub, Deputy Attorney General, with whom Aaron M. Frey, Attorney General, was on brief, for appellee. John Bergmayer and Sara Nolan Collins on brief for Public

* Of the District of Massachusetts, sitting by designation. Knowledge, amicus curiae. James N. Horwood, Tillman L. Lay, Jeffrey M. Bayne, and Spiegel & McDiarmid LLP on brief for the Community Television Association of Maine, Alliance for Community Media, and Alliance for Communications Democracy, amici curiae.

August 3, 2021 BARRON, Circuit Judge. NCTA -- The Internet and Television Association ("NCTA") appeals from the denial of its request for declaratory and permanent injunctive relief from certain provisions of a Maine state law, "An Act to Ensure Nondiscriminatory Treatment of Public, Educational and Governmental Access Channels by Cable System Operators" ("the Maine Act"). The provisions in question concern both the way that cable system operators must treat channels that qualify as local public, educational, and governmental access channels, or, as they are better known in the world of cable regulation, "PEG" channels, and the obligations of such operators to make cable service available in rural parts of the state. Before the District Court, NCTA argued, among other things, that federal law facially preempts the provisions of the Maine Act at issue. The District Court rejected that contention and denied any relief on that basis. We affirm.

I.

A.

NCTA is a trade association for the cable television industry in the United States. NCTA -- The Internet & Television Ass'n v. Frey, 451 F. Supp. 3d 123, 129 (D. Me. 2020). Its members include operators of cable systems throughout the country, including in Maine. Id. at 129 & n.1.

- 3 - In general, cable system operators must obtain "permission" from local governments "to install cables under city streets and to use public rights-of-way." Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 734 (1996) (plurality opinion). To do so, a cable system operator usually must first obtain a "franchise" from a "franchising authority" -- the state or local governmental entity that authorizes the construction of a new cable system or the operation of an existing one through a franchise agreement. 47 U.S.C. §§ 541(b)(1), 522(9)-(10).

Under Maine law, municipalities in the state serve as franchising authorities. See Me. Rev. Stat. Ann. tit. 30-A, § 3008. Accordingly, an individual municipality in the state may enter into a franchise agreement with a cable system operator that authorizes the franchisee to operate a cable system in that locality. See id.