framework for cable regulation that defines and limits and the rule of states and localities the cable act provides the permissible needs and downs for regulation of both pay channels and build out requirements and congress w unmistakably clear that it intended to preempt any state or local regulation inconsistent with those limits manes act to ensure not discriminatory treatment of pay channels ignores those limits and attempts to please pay on equal footing with broadcast channels under the guise of consumer protection means act likewise ignores the buildout requirements cannot be imposed outside of the franchise and process with no consideration of whether the reasonable to me community needs in light of  may i ask a question please i understand i'd like to draw distinction between the law an extension and the three peg requirements three categories peg requirements i understand the parties have stipulated that the extension of only apply upon the renewal of  requirements they are not dependent on their being a new franchise agreement they are and tended to be affected immediately under ok so the district court and its opinion cites to a house report but that basically said as states are not free to impose new conditions on existing franchise agreements unless there are unless  consumer regulations ok so the district court said these are all consumer regulations if they are not consumer regulations does that mean that while the state might or may not be able to do this prospectively as two new renewal agreements it cannot do that as to the existing agreements from looking at the record it appears to me that the existing franchise  contain any of these three categories that the state now wishes to impose on local franchise zakk rect and that is all correct your  ok so hypothetically if we were to decide these were not consumers regulations then  perspective and its application are we left then with a ripe dispute as to pro application the way i read the record the st renewal that is to come up is two thousand and twenty two is that correct no your honor that's not correct there are there are franchises that are subject to renewal right now right now ok so you would say as to there is a ri controversy which would force us even as to prospect of regulation to decide the type of preemption arguments and i understand those to fall into is sort of two categories i'll get back to that in a minute and that we must go ahead and resolve that yes i believe so your honor that because there are renewals pending now and because what i mean has done is attempt to essentially impose the grammarians on existing franchises that franchises and whether it applies to future franchises ok so pardon my simple minded approach to this but as to the peg regulations i don't want to get into the line extension there seem to be sorted two buckets arguments about preemption st is the bucket of arguments that says  e state can't if the local franchise owners are preempted from doing certain things then the state cannot the district court disagreed with that but let's assume hypothetically that's true as i understand your argument you are saying then it becomes a question on the term adequa if the local franchisors are being afforded adequate peg's services then and neither the state nor the local franchisors and pose additional requirements both because of specific provision and because of the structure of the act the district court rejected the notion that adequacy was the proper preemption standard then there is the nd category of preemption claims that  are as separately as state each of the three to specific federal statutes about allocation of power between the f local regulation whether it be by state or individual franchises is is this basic structural understanding correct so your honor i think you you did sort of separate out the two flavors but i do want to take your honor back to where you started which was the district st decision that states are not bound by the acts limits on franchising authorities and i think that the preemption standard that set forth in five hundred and fifty six sees four minutes remaining so that that can be the case that that what congress intended was that no state law that is inconsistent with the federal framework but with deference can we move beyond that if we assume that if a local franchise or cannot do something then the state can't do it either just make that operative assumption ok so now we're getting in too well what can the locals do yes your honor i agree completely with that it's that the district court read it exactly the opposite and said that the state was not even if the franchising a party wasn't allowed to do something that the state was allowed to do something but ok i appreciate that that is a key decision that has to be made but now wait get to the arguments the other arguments about yes your honor and so did you want me to address the specific provisions of preemption well chris let's let's talk about adequacy ok they just stripped court rejected that as a sta set the permissible limits of regulation and so what the f c c has senate is that what adequacy means in this in this context is satisfactory or sufficient the district court held that five section section five  if you're saying that the adequacy provision is a specific provision that leads to an inconsistency that results in preemption we have to look at the text of that adequacy provision and it says what has to be adequate is the sill of these capacity or financial support which of those were is implicated by the main pay requirement so your honor what i'm saying is that the main page requirements are wholly outside of what can actually be demanded so he has neither capacity that still is or support that is that mean the adequacy provision is irrelevant to your preemption argument and that you of your preemption argument is elsewhere no your honor i mean what we're saying is that the statute limits what franchising authorities and by sentient states are permitted to do it can require and thirty one days that they can regulate with respect to chair designation of channel capacity and use of channel capacity only to the extent provided in this provision it does not say they can only regulate the with respect to the designation or use to the extent that this provides i don't see why that tells you that that's all you can do well you're right i think if we just step back and see that what congress was doing here is setting up  federal scheme and it established on the one hand pay channels it has a separate rigid provision section five hundred and thirty four dollars about broadcast channels and the provision about broadcast channels includes some of the things that mean is looking for here so the provision about broadcast they that there is a prohibition against the exercise of authority which is a very different thing to read five hundred and thirty one to prohibit that and what i'm saying is just reading the text of by thirty one it's written as you are allowed to do these things only to the extent as set forth below not as you are only allowed to do these things just as a text well your honor with respect i think that all of the things that mean is trying to do flow from designating capacity there are trying to do things on top of what is required under the under them the act and if that if the court looks to the way this part applied the five hundred and fifty six dollars c preemption you don't agree with how i'm suggesting by thirty one to read that story fine and you played out really nicely in your why i'm wrong to read it that way assuming your wrong and that five hundred and thirty one itself is not textually providing the limitation i had thought you were making an argument that the adequacy provision independent reserve is a limitation and i'm just wondering if that's so that would make sense to me if the peg requirements implicated a regulation of the sil in these capacity or financial support and i'm asking is there one of those words you think it's implicating i'm hearing you say no but that doesn't matter because parents questions let me try to get you to focus what about the peg regulations go to financial support still it is or capacity they flow from the designation of capacity so once franchisee papers are allowed to require capacity there are now imposing extra requirements on how that capacity must be provided it must be provided in certain channels slots at a certain resolution and with certain sort of content in the electronic program guide  skeptic i had a little of although i must say a logic professor would have fun trying to figure out the decision trees and skinn view the guide as having a slightly different set of concerns then the other two which is as i understand this state is arguing independent even if it can't regulate the st two sets of peg concerns nonetheless it can regulate psni to deal with the a rd party and we're not stopping them from doing that but what's wrong that that strikes me as a bit of a mess match even if you were permitted to make these changes with out state regulation how is that people find the just channels when you don't you move them you don't provide any specific information about where they can be moved so could you address that yes i under just to clarify when they are moved consumers are notified that they are moved and where they can find them with mailings and notices on their subscriber bills your honor and that's true ok why isn't that in the guide many consumers would look to the guide for that information well they can find paid channels in the guy they simply cannot find in most few points and the argument you rely on f c c interpretation you rely on the state can't do this on an c interpretation i thought you were also relying on an f c c interpretation as to the scope of both already as to adequacy so could you tell us was so you know that this is not as you know in even see deferens case but nonetheless the agency is the is the authority to body charged with interpreting the provisions of the cable act and as an advanced television requirement that would fall within the signal quality prohibit and so the main act on its face regulate signal quality and that of course the federal cable access that the state may not do that so that's one of the provisions another provision where we're relying on the f c c is it is with respect to adequacy as i said where they define adequacy is satisfactory or sufficient and then we're also relying on the i know your honor wanted to set a line extension to the side for now but we're also relying on the f c c in saying that buildout requirements are subject to the standard under five hundred and forty six dollars that they must be justified as a reasonable to meet community the needs in light of costs and so those are some of the areas where we're lying on the f that we have to resolve in the case so on the electronic programming guide you say it's an information service and if i then you say that is something that the local franchise authority can't do which would then the question if we agreed with you as to whether the state nonetheless could do it we'd have to tackle that issue but there's another provision which is the prohibition against the regulation of cable service content or content of a cable service provision or content provision as i understand it bars the state as much as the franchise authority that's correct guide that way right yes your honor we have any authority to there's a d c circuit case which talks about programming of a very different kind that is the content of the cable service do we have that is analogous to this i mean it is one step removed from the typical type of programming that you would and i i you know obviously congress was interested in making sure these p channels were usable and there is something a little bit askew about the notion that the congress that was so intent on making sure the p g channels or you know the ball also wanted to preclude states and localities and franchise authorities from doing anything to make it know what was on the p g a channel to the viewer so that there's a little bit of a paradox so it's not obvious to me that we should read content of cable service as broadly as you want to but you know i think that would help me think through that so your honor that i can point the court to a case that says that regulation of content on electronic program guides is content for purposes of the provision five hundred and forty four dollars and the court is correct of course that in united video the programming issue was slightly different but i do want to sort of address kind of the premise of your honor's question which was that congress wouldn't have wanted cable operators to make these pictures annele sort of non final or not and non durable and and i wanted to just sort of get at a large part of the state's argument is that is that cable operators are sort of doing something very  so because we don't have much time i don't understand you said that in the brief but i know that so the the the other two issues on the peg channels that i want to work through before we switch over to the line  and the signal quality you resort to it as a provision that was signal quality in totality but as i read it it says minimum technical standards regarding signal quality so the seems to be at least an interpretive question as to whether a requirement that the signal quality that is the programming is received in must be transmitted in that same signal quality to the extent that child already has that capacity because it's doing it for other channels it's not obvious to me that that is implicating the provision that talks about minimal technical standards for signal quality could you address that s or so i guess three points in response to that st the fact that it's as minimal minimal in technical standards for signal quality this supreme court was quite clear in the city of new york case that that does not give states and localities the right to sue regulate sort of on top of those minimum technical standards back to technical standards but the question here is is this main requirement that you simply transmit the tro gram you get from the p e g in the same signal quality you receive it and if you're using that signal quality for broadcast channels how is that a technical standard of signal quality at all as opposed to just a regulation with respect to signal quality which is a different phrase than is used in the cable act itself yes your honor so i think on its face what the main act refers to is signal quality and if the and again i want to point the court to you know the main wasn't shy about what it was doing here it was trying to place paid channels on an equal footing with broadcast channels but now i can counsel you seem to be missing the thrust of the question so if you are r t providing high definition regular out forgotten the term or it and if the peg channel is providing you with a high definition so you've already worked out signal quality issues what's wrong with the state saying if it comes to you and hide a finish and yada broadcast it and high definition if you can do it already because you're doing it for other channels it's not as if they lacked h d quality capacity well your honor on the  with respect to pay they do in fact lack that because there have to be because of the transmission from the paid facilities to the cable providers head in and it would require actually significant upgrades of equipment in order to carry things in even if it's received in age d by the cable operator and even if the cable operator otherwise is able to broadcast channels it receives an h d and send out an h d in order to send out p e g i age deprogramming it would i'm sorry for i forty three dollars b seven just says each cable operator of a cable system shall provide subscribers especially available basic tier and then it says on that basic year there have to be g channels the d c circuit seems to have read that provision as if when it says each cable operator of a cable system is implicitly talking exclusively not about each cable of an operator cable system but only about those operators of cable systems that are not subject to effect of competition and that seems to be a premise of your reading as well is that right i think that's right your honor i think yes that is i mean it's  d where that coming come because just textually i'm not seeing anything the act that says that in the text would seem to say that the basic tier for each cable operator cable system has to include the pig channel which seems quite the opposite of how you're thinking about it but i take it the d c did read that as if it has this implicit limitation to those cable system cable operators that are not subject to effective competition but if you could i just don't see anything in the text is supporting that i'm i'm missing something well your honor the what what what congress intended in in the act was that once competition took a fact that that whole the whole system set forth in fi way to figure out what the intent is look at what they said so is there anything that they said that supports this notion of their intention well it's five hundred and forty three dollars b seven and then it's the provision that says that once cable operators are no are subject to effect let me check your honor or i can certainly come back on rebuttal and point your point your honor to that provision here is it is both requiring courage on the basic theory even though it's undisputed sorry because i see that with respect to rate regulation i just didn't see the provision in the text that talks about it with respect to what's on the basic one minute thank you judgement with respect to the line extension requirement we simply wanted to to reiterate that the reason that it is facially invalid is because mainly is stepping into the shoes essentially of the franchising authority and dictating a substantive franchise provision of fifteen homes per mile without it's undisputed that there are new findings at all that it is in fact justified to meet community needs in light of costs and so effectively all of the existing franchises that as they come up for renewal will have to be denied and let's they include this provision and so that is why we think this provision is preempted on its face questions suppose we think that the state of maine is simply not precluded by the cable act from imposing regulations that require franchise soars the city is in towns to comply with certain state requirements so long as the franchise orders are not themselves preclude did preempted from doing so are right your argument seems to be that in every single case that will come up in the future under these new line extension provisions necessarily there will be no consideration of cost vs benefit whereas it's very hard for us to see now why that is necessarily the case and that tends to suggest that there could be as apply challenges in the future as opposed to a facial invalidation right now well your honor what i think maine is trying to do here is to flip the bird during the renewal process is the local franchising authorities responsibility to show that what they are requiring of the cable operator is justified to meet community needs in light of costs and so just to play this out as a renewable comes up if n c t a member in maine says fifteen dollars homes per mile is not justified to meet community needs in light of cost the cable operator or the local franchising authorities answer tough that's what state law requires so what the state well the state well is mandatory it's not it does not say for example that state fred heard local franchising authority shall include a fifteen homes per mile requirement so long as they show that it is justified to meet community needs in light of costs i think if you provision said something like that we wouldn't be here instead it's a mandatory provision if that's your argument and it's right if it were right wouldn't that independently be a basis for saying that all of the pig requirements are also preempt the yes your honor we did make that argument that in there also independently preempted by the five hundred and forty six renewa because there's been no finding that they're justified in light of cost the district court completely sort of if you heard all of that because it started from the premise that these were all consumer protection regulations so it could impose them on existing franchises lightly surprising feature of this argument is that all of these cases that i've read dealing with all these different regulations like all the d c circuit cases about the basic deregulation none of those state requirements seem to have this upfront reasonability constraint imposed on them and yet under your view a lot of people wasting a lot of time going through these various provisions of the cable act to see if they're preemptive because that we could have looked at the face of it and seeing what you didn't have a built in upfront reasonable  limitation their ports are magically preem and since that doesn't seem to be how anybody's been regulating these things or thinking about it it's just a little surprising that hidden there all along was this prohibition against any upfront regulation by any frien or your state that didn't already have in it it required for them to show that it would be reasonable in our case rather than the idea that you could impose the regulation and then it would be subject to the reasonable you terminations renewal well and i'd like to start when with some of the questions that judge lynch was asking at the very beginning of the argument relating to the district court's reference to something in one of the senate reports or i guess it was the house report about requiring certain provisions to be reflected in franchises there's actually an ellipse as in the district court's decision and she actually left out what i think is a pretty important phrase so what in fact the report says and this  phrase is is is the one that was that was left out in the districts decision it says if under a charter for one o three or any state law or requirement imposed upon a cable operator must be reflected in a franchise the state may exercise its authority over people either by establishing a state franchising authority or placing conditions on a local government's grant of a cable franchise and then there's the language about how it has to be in inserted when it comes up for  renewal r r r mr choudary do us a favor send us a letter afterwards giving us the precise language you want us to focus on ok think as judge karen was pointing out what it actually says is a french izing authority may establish requirements with respect to the designation or use of gentlemen i'm sorry why are the main page requirements in your view it for governmental use one for educational use and then and then the use of the capacity is sort of the use by a rd party but i think what's what's really significant is you're asking us to say with respect to your saying is not related to right we're same with respect to means that that it's a requirement that has to do with with with with a designation of yeah that ok but i think i think cable operator are you saying that that is not a limitation on the st sentence yes we think that any requirement regarding the providing or use of telecom pass to the and then the including is is just an identification of a specific area that is going to fall within that ok but any requirement would seem to refer to  franchise agreement itself and non of these franchise agreements include any of the state of maine spag provisions so i  fundamental difference between us and the apology is that i think that the appellant's view is is whenever we do something that relates to keep all television we have to look for some authority to do that in the cable left and our point is is that that's not true that th state has retained its inherent police powers and it can regulate cable television just like any other matter so long as it's not preempted by the cable act so that would mean that you have to look at the cable act and of course like one of the  issues is is a consumer protection or isn't that because there's two different preemption provisions but what our view is that we don't need to find some affirmative source in the cable act to show that we have the authority to to do this nick has to show that there's something in act that would conflict with what we're doing or that would specifically preempt what we're doing and the issue of sort of excuse me you know one of the frustrations and this case is reference to broad policies as opposed to the text of the act and so i don't think those statements at vance the cause very much they have provided  essay which talks about how a franchising authority can only establish requirements with respect to the designation or use of channel capacity if it set forth in that in that section as i said as i argued before our view is that the peg requirements don't relate to the to well your honor i think even agrees that used means rd party use because this issue came up in the oral argument with respect to another section to section five hundred and thirty one p and in this this was a question that the district court judge asked me because she looked at five hundred and one b and a franchise authority may require rules and procedures for the use of the channel capacity does it need it pursuant to the section and she said it seems to me this is a slam dunk for you because this relates to cause if it's with respect to use spies rd parties just about every one of these provisions this seems to be with respect to use spy subscribers well i think i think the point is that the district court judge was suggesting that that use is very broad and so use would mean for example that something has and you have to show them in each the with would be a use of the pick channel a postage stamp television station that is you know in the eight thousand dollars range and is going to be shown in black and white so there has to be and it would be ridiculous that congress thought that that franchise the parties say something about how these stations are going to be be things so channel capacity is just how many channels are are there going to be facilities and things like what kind of equipment or you know broadcast studios are you going to require the cable operator to provide and financial support is you know are you going to have some money to the  can do and what a steep can do congress clearly knew how to distinguish between the federal government franchise authorities in the state when it drafted the people like because it's a different provisions sometimes it'll say neither the state nor franchise authority can do something other times statute say you know if the locals can't do it the state can't do it either at the preemption extends that far and what's wrong with that reading well i issues than this yeah and and i think i think the problem with that is and i don't know how to say it any differently is that if you just look at the cable act for example the provision that relates to the content or provision of people services i think it's five hundred and forty six that one says the federal government can't do it the state can't do it and the franchise authority can't do it there's some other provision that talk about the state can't the franchise authority can if if congress had wanted to say that that a state can't do something you knew how to do it and it would have included it whenever it was referring to what a franchise authority can do so i just don't think you can come on i mean yeah but it doesn't make sense to me that congress and candid for this state as a matter  east they themselves can be franchise authorities but i thought i suspect that congress thought it was important to preserve state authority and that's apparent from the two preemption provisions and so i think you are really wanted to to stop a state from doing something it would do it through the franchise already there is a contracting quality to it whereas if you do it outside the footprint as authority it's a regulatory exercise which has a different political dynamic and so you might have thought they were trying to distinguish between x says of contracting power and regulatory i think that's exactly right your honor and also to be fair i mean i think a lot of french authorities and especially in maine i mean they're very small very local i think congress may not have wanted to give  that keep suggesting that h d and s t are signal quality but there's there's no support for that in the record in the statutes in the f c c regulation and if we disagreed with you on that and if we thought that it would be a problem if they had required p g channels to go out under h d even for cable operators that didn't have any h d channels at all is there some argument that none the less this type of regulation does not implicate a technical standard a minimum technical standard for h d quality when it applies only to those cable operators that do have h d capacity and are putting out programming that they receive in h d signal quality true because there is a technical difficulty in receiving the eight signal from a steep signal programming from the p g operator to the cable operator yes so so this is going to involve me going a little bit outside the record because this is this is an issue that came up in sort of discussions with nick discounts full when we were trying to reach a resolution of injunctive an injunction pending appeal and so i don't think you'll see this in in the record but i don't think and certainly if my opponent wants to correct me when she gets up again she can but the way that the main statute is designed is it's supposed to say you don't have to you don't have to help these paid providers produce their programs in h d it's just if they're putting it out in h d and it's coming to you in h d then you're going to pass it along in h d without degrading it as it turns out and i think this is something that maybe we weren't aware of when we initially believed the case below i mean what we read in the district court is that the table companies have installed the equipment at the pegs studios and so the feed goes into the equipment at any age the at the pick studio but then it's if the cable operators equipment which is located in the studio that then sends it to the head then as as my opponent explained so we think this is an issue that may have to get litigated separately because the issue is if it's if it's your equipment in the studio and it's coming to that equipment in h d then argue that you have to send along an aged i think maybe the cable operators ar know just because we supply that equipment and i think they might supply it under the terms of the various franchise agreements we don't have to upgrade the equipment but again our view is it's their equipment that's causing the problem and if they have to upgrade their equipment to get to the studio that's their responsibility and ask you that question but i don't i have a i have a fact question there did the cable operators not have a problem there but they have a problem with that it's well i mean that that's a great question and i can tell you what i think the record really reflects which is is what i mean cable operators by law have to provide peg stations but they don't like them and i think they even acknowledge that in their complaint where they say we would prefer to price other content because they don't make direct money off the peg stations so they have to carry them you know in name only and so what they've done is they've done everything possible to minimize them to make them so no one wants to watch them and so eventually maybe they want to carry them anymore so you know they refused to show them in h d even though over three hundred other channels that they have are on h d their argument they don't have th e band with doesn't pass the straight face test they move them to this range of stations which no one ever goes to and they actually claim this was done to help people find the stations that it's much easier to find them when when they're moved to these places and then have made it a different argument on that one or earn additional argument you know certainly at least one federal court has interpreted that as saying that only only cable systems that are subject to a to effective competition are subject to this to this tier provision but you know i do see the argument that there's nothing in the statute that actually says that it says all all cable systems have to provide peg on the basic tier and so i think i think one way of looking at the statute is to say what congress is doing is it was sort of starting out with this is what the basic theory is going to be for everyone and then it was saying and then this is how we're going to regulate the rates for that basic tier of the up front and honest we cannot make that argument in our brief we just sort of assumed programming guide in the judgment a judge rules may want to ask about information services part of it but i understand there's a dispute about whether it's covered but can you explain to me why it's not the regulation of the content of the cable service i'm to to make sure that nothing the states now the federal government or franchise support is rejected what kind of programs or channels were going to be were going to be offered or not offered but could you just how would you read the text to draw the following distinction presumably you cannot as a grandchild's authority or as a state mandate that on the electronic programming  set forth a lab reviews of how good the programs are because that would be the regulation of the content of a cable service even though it's a channel guide so that being the case how am i supposed to read the word content that would nonetheless allow the regulation of this particular type of content so i think one way to do that your honor would be to say that and i think those are two issues because there's there's st lease just putting the name of the paying station on the guide right because right now they just say local and that's it so i think at the very least i don't see how anyone can say that just saying portland w c b t six i don't think that's content i mean that's just that's just an index entry in a database essentially so i think that's clearly not content and then you know also saying just what the name of the show is that's playing particular time we would say that's not anything content either again that's just just one step down from from an index of what i mean certainly we can't tell them that when you're on the football game you have to you know describe you know what happened the last time the teams met or who the main players are anything like that but certainly just just giving the basic information we dislike you know people can't find stations without the program i mean this would be like like a library deciding that they don't want people looking at a particular category of books and just taking those books out of the car catalogue  t in just having people have to hunt through the shelves to look for the books so one last turn on this is just if the card catalogue is the equivalent of the cable service then saying what is on the cards in the catalog is the regulation of the say that that the books in the library are are the content and the current catalogue is just a way of finding them so far which is the cardinal itself is not the content but the other point i want to make is that when it comes to peg stat egos that we can't also regulate that they be you know that there be an entry in the program saying what's being shown mr taleb you are not going to be surprised by this c operates in practice we haven't talked about above or something we'd be willing to to think about for sure but well it's not unheard of for this court to ask a government agency some expertise to bear but i think in these issues i really think that that the court can interpret the statutes just as well as the f c c can well gosh that's sort of being complimented with the left your your response to that to the i know there's a particular issue of the line authority but i really think it's a global claim about how to understand the act which is that all regulations by franchise or states imposing them must come in the form of a limitation that they not impose unreasonable cost otherwise they'd be preempted and if you could just respond that just to set it up make it a little sharper than yours that i suppose the force of that argument is relates to the burden shifting point and there is a certain oddity that if we know that the renewal can be  cannot be denied if you can show that the regulation that you are not complying with was imposing on reasonable cost what is the sense in allowing the regulations that upfront don't even attempt to assess whether they would be imposing reasonable costs or so just if you could suggest that said ok i will answer that question or i just want to say it at st that when it comes to line extension we actually think and we said this in our brief that that franchise parties are entitled to do universal line access if they want to and i think that the case and the f c c the rules that the that the that the that make deciding to they are dealing with a different provision which talks about giving a franchise to a nd entrant into the market so i just want to want to put that out there but to answer your question or i think that the st point is that is that this line extension requirement inherently has a reasonable requirement built into it because it talks about the build out in terms of homes per per mile fifty homes per mile so that means that a very rural franchise area may not impose any kind of line extension because it doesn't meet that limit where as you know more dense area that is going to apply there so it sort of by definition is going to be tailored to how many customers or you can end up being able to bring  line if you extend one more mile of the cable service but i think and this goes to sort of the burden of proof which is that agrees that franchise authorities can put mine extension requirements in their franchise agreements and they agree that states can mandate that they put certain line extension requirements in their in their franchise agreements but they seem to say that the state can't impose just a one size fits all requirement that has to somehow be tailored well again we think ours is tailored because we're not saying you know  we're hurt we're tailor it based based on how many people are going to end up being served but but the other point is that i think if there are meant was going to prevail they'd have to show that this is unreasonable in at least some context i mean the district court said she kind of flipped it and so they have to show that it would never be a reasonable requirement but if they're going to say that on our line buildout is is improper they should have to at least offer some evidence that in some circumstance it's not going to be a reasonable  requirement and they have offered zero evidence on that and that is the final point is if it turns out that there is some area where fifty homes from are out for some reason is unreasonable there is a process for that as the district court set out which is to attorneys have if you could meet your device this time an attorney bring evanson please thank you and i'd like to just start quickly with where mr howard left off which was the mine extension requirement and his contention and there's no evidence that it's unreasonable in fact all of the contacts franchises in maine and the vast majority of charters franchises and mean currently include mine extension requirements that are that are not nearly as onerous as the fifteen rooms permanently extension requirement so there's evidence in the record that the vast majority of franchises in maine would be subject to denial at renewal because they can t non conforming line can for line extension policies to the state of maine in fact the court said that the state could regulate completely outside of those provisions because it was acting as a state and not as franchising a party and that sort of interpretation of the cable act would would threaten the entire foundations of the act and just to should look at how the court applied the five hundred and fifty six dollars e inconsistent preemption provision in the liberty cablevision case that was a provision that applied only to franchising authorities and the court didn't say well although the franchising of art is limited to a five percent franchising fee this prison doesn't say anything about what municipalities can do so municipalities are free to impose a field on top of that that's essentially what the what the state is arguing that it is allowed to do here so you're not making the argument this is unclear who somehow did some but maybe you are making this argument you're not making the argument that states are prohibited from doing things that franchises authorities are allowed to do no your honor we're not making that argument we're not taking issue with the fact that a state has a choice it can act and there is a franchising authority or it can impose conditions on a franchise in a very but it has to always act consistent with the act that i can think is on your preemption argument that arises from the reasonable most language in the renewal if you're right then how provision ever come into play because the restriction to not be preempted would itself have to satisfy the renewal standard there was any gap between the two you would say the restriction up front was already preempted that doesn't make nice now well your honor but what we're saying is simply that when franchising authority imposes a requirement to keep a lot greater it has to be cost justified in light of something i'm afraid i'm not following your honor's question so you're saying that if if the line extension that the renewal provision is sort of an independent preemption authority that i don't think that's what we're arguing your honor we're simply saying that distinction based start with a fifteen persons per model the more rural areas will not meet that the more urban areas would and there is no evidence and this record that adds to that fifteen number that it is and the heroin only cost ineffective as opposed to community benefit and the  absence of such evidence you can't mount a facial attack so what what's the response to that your honor evidence is as we stated that every one of comcast franchise in maine and the vast majority of charters franchises in maine currently include line extension policies that are less onerous than fifteen homes per mile every one of those would have to be denied when they come out from her new all based on the state s provision with no finding about whether a fifty homes per mile requirement is justified in light of community needs that district court said you could have some as applied challenges at that point yes your honor but we think that's not that's not what the provision intends the burden is on the franchising authority to show that that's what the provision contemplates is that the franchising authority must show that if it's imposing a requirement on cable operators that requirement is justified by community needs in light of cost here the district court put the burden and said that in every instance it's going to be the cable operator who has to break that battle ok everything existing franchises i think some of what you that would make sense to use was rod is that right or not i'm sorry i didn't hear that that is that because you would be used broadly to encompass these type of peg requirement use can both help you in creating preemption but then it becomes narrow with respect to authorization rules and procedures that doesn't make sense to me yet no your honor and so i just want to be clear that the state has not and neither the state nor the district were ever attempted can't he says it doesn't matter because the content prohibition does not apply to peg well your honor we we do think that it is both the provision and provision or content of cable service so it's regulating both the provision and content of cable service and i just do want to point out that mr todd seemed to say well look what it is still bad to just make them put the the  station name there but that's not what the act requires what the act requires is that they be displayed a nd and ways exactly the same as broadcast ations and as as we put in the record that actually requires a lot of expense because of the hyper localized nature of peg so you would have to have different programming guides in every different franchise in a party as opposed to most of the other parts of the guide which are state wide or at least regional in nature so what that's not what the guy requires and more importantly it's not what that's not what the provision person more probably that's not what congress required so we don't have to that are given to broadcast channels into five hundred and thirty one for pay and we don't think that's allowed if the court has no further questions we would ask the court to reverse the district court a further question oh thank you thank you both thank you that concludes the arguments for today this session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america at this honorable court counsel you may disconnect from the meeting