OCTOBER TERM, 1996
Syllabus
TURNER BROADCASTING SYSTEM, INC., ET AL.
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 95-992. Argued October 7, 1996-Decided March 31, 1997
Sections 4 and 5 of the Cable Television Consumer Protection and
Competition Act of 1992 (Cable Act) require cable television
systems to dedicate some of their channels to local broadcast
television stations. In
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622 (Turner), this Court held these so-called
"must-carry" provisions to be subject to intermediate First
Amendment scrutiny under
United States v.
O'Brien,
391 U. S. 367,
377, whereby a content-neutral regulation will be sustained if it
advances important governmental interests unrelated to the
suppression of free speech and does not burden substantially more
speech than necessary to further those interests. However, because
a plurality considered the record as then developed insufficient to
determine whether the provisions would in fact alleviate real harms
in a direct and material way and would not burden substantially
more speech than necessary, the Court remanded the case. After 18
months of additional factfinding, the District Court granted
summary judgment for the Government and other appellees, concluding
that the expanded record contained substantial evidence supporting
Congress' predictive judgment that the must-carry provisions
further important governmental interests in preserving cable
carriage of local broadcast stations, and that the provisions are
narrowly tailored to promote those interests. This direct appeal
followed.
Held: The judgment is affirmed. 910 F. Supp. 734,
affirmed.
JUSTICE KENNEDY delivered the opinion of the Court with respect
to all but a portion of Part II-A-l, concluding that the must-carry
provisions are consistent with the First Amendment:
1. The record as it now stands supports Congress' predictive
judgment that the must-carry provisions further important
governmental interests. Pp. 189-196, 208-213.
(a) This Court decided in
Turner, 512 U. S., at 662, and
now reaffirms, that must-carry was designed to serve three
interrelated, important governmental interests: (1) preserving the
benefits of free, over-the-air local broadcast television, (2)
promoting the widespread
181
dissemination of information from a multiplicity of sources, and
(3) promoting fair competition in the television programming
market. Protecting noncable households from loss of regular
broadcasting service due to competition from cable systems is
important because 40 percent of American households still rely on
over-the-air signals for television programming. See,
e.
g., id., at 663. Moreover, there is a corresponding
governmental purpose of the highest order in ensuring public access
to a multiplicity of information sources,
ibid., and the
Government has an interest in eliminating restraints on fair
competition even when the regulated parties are engaged in
protected expressive activity,
ibid. The parties' attempts
to recast these interests in forms more readily proved-i.
e., the Government's claim that the loss of even a few
broadcast stations is critically important and appellants'
assertions that Congress' interest in preserving broadcasting is
not implicated absent a showing that the entire industry would
fail, and that its interest in assuring a multiplicity of
information sources extends only as far as preserving a minimum
amount of broadcast service-are inconsistent with Congress' stated
interests in enacting must-carry. Pp. 189-194.
(b) Even in the realm of First Amendment questions where
Congress must base its conclusions upon substantial evidence,
courts must accord deference to its findings as to the harm to be
avoided and to the remedial measures adopted for that end, lest the
traditional legislative authority to make predictive judgments when
enacting nationwide regulatory policy be infringed. See,
e. g.,
Turner, 512 U. S., at 665 (pluralityopinion). The courts' sole
obligation is to assure that, in formulating its judgments,
Congress has drawn reasonable inferences based on substantial
evidence.
Id., at 666. Pp. 195-196.
(c) The must-carry provisions serve important governmental
interests "in a direct and effective way."
Ward v.
Rock
Against Racism, 491 U. S. 781, 800.
Congress could reasonably conclude from the substantial body of
evidence before it that attaining cable carriage would be of
increasing importance to ensuring broadcasters' economic viability,
and that, absent legislative action, the free local off-air
broadcast system was endangered. Such evidence amply indicated
that: a broadcast station's viability depends to a material extent
on its ability to secure cable carriage and thereby to increase its
audience size and revenues; broadcast stations had fallen into
bankruptcy, curtailed their operations, and suffered serious
reductions in operating revenues as a result of adverse carriage
decisions by cable systems; stations without carriage encountered
severe difficulties obtaining financing for operations; and the
potentially adverse impact of losing carriage was increasing as the
growth of "clustering"-i.
e., the acquisition of as many
cable systems in a given
182
market as possible-gave multiple system operators centralized
control over more local markets. The reasonableness of the
congressional judgment is confirmed by evidence assembled on remand
that clearly establishes the importance of cable to broadcast
stations and suggests that expansion in the cable industry was
harming broadcasting. Although the record also contains evidence to
support a contrary conclusion, the question is not whether Congress
was correct as an objective matter, but whether the legislative
conclusion was reasonable and supported by substantial evidence.
Turner, supra, at 665-666. Where, as here, that standard is
satisfied, summary judgment is appropriate regardless of whether
the evidence is in conflict. Cf.,
e. g., American
Textile Mfrs. Institute, Inc. v.
Donovan, 452 U. S. 490, 523. pp.
208-213.
2. The must-carry provisions do not burden substantially more
speech than is necessary to further the governmental interests they
promote. See,
e. g., Turner, supra, at 662. Appellants say
must-carry's burden is great, but significant evidence adduced on
remand indicates the vast majority of cable operators have not been
affected in a significant manner. This includes evidence that: such
operators have satisfied their must-carry obligations 87 percent of
the time using previously unused channel capacity; 94.5 percent of
the cable systems nationwide have not had to drop any programming;
the remaining 5.5 percent have had to drop an average of only 1.22
services from their programming; operators nationwide carry 99.8
percent of the programming they carried before must-carry; and
broadcast stations gained carriage on only 5,880 cable channels as
a result of must-carry. The burden imposed by must-carry is
congruent to the benefits it affords because, as appellants
concede, most of those 5,880 stations would be dropped in its
absence. Mustcarry therefore is narrowly tailored to preserve a
multiplicity of broadcast stations for the 40 percent of American
households without cable. Cf.,
e. g., Ward, supra, at 799,
n. 7. The possibilities that must-carry will prohibit dropping a
broadcaster even if the cable operator has no anticompetitive
motives or if the broadcaster would survive without cable access
are not so prevalent that they render must-carry substantially
overbroad. This Court's precedents establish that it will not
invalidate the preferred remedial scheme merely because some
alternative solution is marginally less intrusive on a speaker's
First Amendment interests. In any event, a careful examination of
each of appellants' suggestions-a more limited set of must-carry
obligations modeled on those earlier used by the Federal
Communications Commission; use of so-called
AIB switches,
giving consumers a choice of both cable and broadcast signals; a
leased-access regime requiring cable oper-
183
ators to set aside channels for both broadcasters and cable
programmers to use at a regulated price; subsidies for
broadcasters; and a system of antitrust enforcement or an
administrative complaint procedure-reveals that none of them is an
adequate alternative to must-carry for achieving the Government's
aims. Because it has received only the most glancing attention from
the District Court and the parties, prudence dictates that this
Court not reach appellants' challenge to the Cable Act provision
requiring carriage of low power stations in certain circumstances.
Pp. 213-225.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE STEVENS,
and JUSTICE SOUTER, and by JUSTICE BREYER in part, concluded in
Part II-A-l that the expanded record contains substantial evidence
to support Congress' conclusion that enactment of must-carry was
justified by a real threat to local broadcasting's economic health.
The harm Congress feared was that broadcast stations dropped or
denied cable carriage would be at a serious risk of financial
difficulty, see
Turner, 512 U. S., at 667, and would
deteriorate to a substantial degree or fail altogether,
id.,
at 666. The evidence before Congress, as supplemented on remand,
indicated,
inter alia, that: cable operators had
considerable and growing market power over local video programming
markets in 1992; the industry's expanding horizontal and vertical
integration would give cable operators increasing ability and
incentive to drop, or reposition to less-viewed channels,
independent local broadcast stations, which competed with the
operators for audiences and advertisers; significant numbers of
local broadcasters had already been dropped; and, absent
must-carry, additional stations would be deleted, repositioned, or
not carried in an attempt to capture their local advertising
revenues to offset waning cable subscription growth. The
reasonableness of Congress' predictive judgment is also supported
by additional evidence, developed on remand, indicating that the
percentage of local broadcasters not carried on the typical cable
system is increasing, and that the growth of cable systems' market
power has proceeded apace, better enabling them to sell their own
reach to potential advertisers, and to deny broadcast competitors
access to all or substantially all the cable homes in a market
area. Pp. 196-208.
JUSTICE BREYER, although agreeing that the statute satisfies the
intermediate scrutiny standard set forth in
United States v.
O'Brien, 391 U. S. 367, 377, rested his conclusion not upon
the principal opinion's analysis of the statute's efforts to
promote fair competition, but rather upon its discussion of the
statute's other two objectives. He therefore joined the opinion of
the Court except insofar as Part II-A-l relies on an
anticompetitive rationale. Pp. 225-229.
184
KENNEDY, J., announced the judgment of the Court and delivered
the opinion of the Court, except as to a portion of Part II-A-l.
REHNQUIST, C. J., and STEVENS and SOUTER, JJ., joined that opinion
in full, and BREYER, J., joined except insofar as Part II-A-1
relied on an anticompetitive rationale. STEVENS, J., filed a
concurring opinion,
post, p. 225. BREYER, J., filed an
opinion concurring in part,
post, p. 225. O'CONNOR, J.,
filed a dissenting opinion, in which SCALIA, THOMAS, and GINSBURG,
JJ., joined,
post, p. 229.
H. Bartow Farr III argued the cause for appellants.
With him on the briefs for appellant National Cable Television
Association, Inc., were Richard G. Taranto, Daniel L. Brenner, Neal
M. Goldberg, and Diane B. Burstein. Bruce D. Sokler, Christopher A.
Holt, Bertram W Carp, Bruce D. Collins, Neal S. Grabell, and James
H. Johnson filed a brief for appellants Turner Broadcasting System,
Inc., et al.
Albert G. Lauber, Jr., Peter Van N. Lockwood,
Judith A. McHale, and Diane L. Hofbauer filed a brief for
appellants Discovery Communications, Inc., et al. Robert D. Joffe,
Stuart W Gold, Rowan D. Wilson, Brian Conboy, and Theodore Case
Whitehouse filed a brief for appellant Time Warner Entertainment
Co.
Acting Solicitor General Dellinger argued the cause for
appellees. With him on the briefs for the federal appellees were
Solicitor General Days, Assistant Attorney General Hunger, Deputy
Solicitor General Wallace, Paul R.
Q. Wolfson, Douglas N.
Letter, Bruce G. Forrest, William E. Kennard, and Christopher
J. Wright. Bruce
J. Ennis, Jr., argued the cause and
filed a brief for appellees National Association of Broadcasters et
al. With him on the brief were Kit A. Pierson, Donald B. Verrilli,
Jr., Thomas J. Perrelli, Jack N. Goodman, Benjamin F. P. Ivins,
Kathleen M. Sullivan, and James
J. Popham. Carolyn F.
Corwin, Mark H. Lynch, Marilyn Mohrman-Gillis, and Paula A. Jameson
filed a brief for appellees Association of America's Public
Television Stations et al. Andrew Jay Schwartzman, Gigi B. Sohn,
and Elliot M. Mincberg filed a brief for appellees Consumer
Federation of America et al.
185
JUSTICE KENNEDY delivered the opinion of the Court, except as to
a portion of Part II-A-l.
Sections 4 and 5 of the Cable Television Consumer Protection and
Competition Act of 1992 require cable television systems to
dedicate some of their channels to local broadcast television
stations. Earlier in this case, we held the socalled "must-carry"
provisions to be content-neutral restrictions on speech, subject to
intermediate First Amendment scrutiny under
United States v.
O'Brien, 391
U. S. 367, 377 (1968). A plurality of the Court considered the
record as then developed insufficient to determine whether the
provisions were narrowly tailored to further important governmental
interests, and we remanded the case to the District Court for the
District of Columbia for additional factfinding.
On appeal from the District Court's grant of summary judgment
for appellees, the case now presents the two questions left open
during the first appeal: First, whether the record as it now stands
supports Congress' predictive judgment that the must-carry
provisions further important governmental interests; and second,
whether the provisions do not burden substantially more speech than
necessary to further those interests. We answer both questions in
the affirmative, and conclude the must-carry provisions are
consistent with the First Amendment.
I
An outline of the Cable Act, Congress' purposes in adopting it,
and the facts of the case are set out in detail in our first
opinion, see
Turner Broadcasting System, Inc. v.
FCC,
512 U. S. 622
(1994)
(Turner), and a more abbreviated summary will suffice
here. Soon after Congress enacted the Cable Television Consumer
Protection and Competition Act of 1992 (Cable Act), Pub. L.
102-385, 106 Stat. 1460, appellants brought suit against the United
States and the Federal Communications Commission (FCC) (both
referred to here as the Government) in the United States District
Court for
186
the District of Columbia, challenging the constitutionality of
the must-carry provisions under the First Amendment. The
three-judge District Court, in a divided opinion, granted summary
judgment for the Government and intervenordefendants. A majority of
the court sustained the mustcarry provisions under the intermediate
standard of scrutiny set forth in
United States v.
O'Brien, supra, concluding the must-carry provisions were
content-neutral "industryspecific antitrust and fair trade"
legislation narrowly tailored to preserve local broadcasting beset
by monopoly power in most cable systems, growing concentration in
the cable industry, and concomitant risks of programming decisions
driven by anticompetitive policies. 819 F. Supp. 32, 40, 45-47
(1993).
On appeal, we agreed with the District Court that mustcarry does
not "distinguish favored speech from disfavored speech on the basis
of the ideas or views expressed," 512 U. S., at 643, but is a
content-neutral regulation designed "to prevent cable operators
from exploiting their economic power to the detriment of
broadcasters," and "to ensure that all Americans, especially those
unable to subscribe to cable, have access to free television
programming-whatever its content."
Id., at 649. We held
that, under the intermediate level of scrutiny applicable to
content-neutral regulations, must-carry would be sustained if it
were shown to further an important or substantial governmental
interest unrelated to the suppression of free speech, provided the
incidental restrictions did not" 'burden substantially more speech
than is necessary to further'" those interests.
Id., at 662
(quoting
Ward v.
Rock Against Racism, 491 U. S. 781, 799
(1989)). Although we "ha[d] no difficulty concluding" the interests
must-carry was designed to serve were important in the abstract,
512 U. S., at 663, a four-Justice plurality concluded genuine
issues of material fact remained regarding whether "the economic
health of local broadcasting is in genuine jeopardy and in need of
the protections afforded by must-carry,"
187
and whether must-carry "'burden[s] substantially more speech
than is necessary to further the government's legitimate
interests.'"
Id., at 665 (quoting
Ward, supra, at
799). JUSTICE STEVENS would have found the statute valid on the
record then before us; he agreed to remand the case to ensure a
judgment of the Court, and the case was returned to the District
Court for further proceedings. 512 U. S., at 673-674 (opinion
concurring in part and concurring in judgment);
id., at
667-668.
The District Court oversaw another 18 months of factual
development on remand "yielding a record of tens of thousands of
pages" of evidence,
Turner Broadcasting v.
FCC, 910
F. Supp. 734, 755 (1995), comprised of materials acquired during
Congress' three years of pre-enactment hearings, see
Turner,
supra, at 632-634, as well as additional expert submissions,
sworn declarations and testimony, and industry documents obtained
on remand. Upon consideration of the expanded record, a divided
panel of the District Court again granted summary judgment to
appellees. 910 F. Supp., at 751. The majority determined "Congress
drew reasonable inferences" from substantial evidence before it to
conclude that "in the absence of must-carry rules, 'significant'
numbers of broadcast stations would be refused carriage."
Id., at 742. The court found Congress drew on studies and
anecdotal evidence indicating "cable operators had already dropped,
refused to carry, or adversely repositioned significant numbers of
local broadcasters," and suggesting that in the vast majority of
cases the broadcasters were not restored to carriage in their prior
position.
Ibid. Noting evidence in the record before
Congress and the testimony of experts on remand,
id., at
743, the court decided the noncarriage problem would grow worse
without must-carry because cable operators had refrained from
dropping broadcast stations during Congress' investigation and the
pendency of this litigation,
id., at 742-743, and possessed
increasing incentives to use their growing economic power to
188
capture broadcasters' advertising revenues and promote
affiliated cable programmers,
ibid. The court concluded
"substantial evidence before Congress" supported the predictive
judgment that a local broadcaster denied carriage "would suffer
financial harm and possible ruin."
Id., at 743-744. It cited
evidence that adverse carriage actions decrease broadcasters'
revenues by reducing audience levels,
id., at 744-745, and
evidence that the invalidation of the FCC's prior mustcarry
regulations had contributed to declining growth in the broadcast
industry,
id., at 744, and n. 34.
The court held must-carry to be narrowly tailored to promote the
Government's legitimate interests. It found the effects of
must-carry on cable operators to be minimal, noting evidence that:
most cable systems had not been required to add any broadcast
stations since the rules were adopted; only 1.2 percent of all
cable channels had been devoted to broadcast stations added because
of must-carry; and the burden was likely to diminish as channel
capacity expanded in the future.
Id., at 746-747. The court
proceeded to consider a number of alternatives to must-carry that
appellants had proposed, including: a leased-access regime, under
which cable operators would be required to set aside channels for
both broadcasters and cable programmers to use at a regulated
price; use of so-called
A/B switches, giving consumers a
choice of both cable and broadcast signals; a more limited set of
must-carry obligations modeled on those earlier used by the FCC;
and subsidies for broadcasters. The court rejected each in turn,
concluding that "even assuming that [the alternatives] would be
less burdensome" on cable operators' First Amendment interests,
they "are not in any respect as effective in achieving the
government's [interests]."
Id., at 747. Judge Jackson would
have preferred a trial to summary judgment, but concurred in the
judgment of the court.
Id., at 751-754.
Judge Williams dissented. His review of the record, and
particularly evidence concerning growth in the number of
189
broadcasters, industry advertising revenues, and per-station
profits during the period without must-carry, led him to conclude
the broadcast industry as a whole would not be "'seriously
jeopardized'" in the absence of must-carry.
Id., at 759-767.
Judge Williams acknowledged the Government had a legitimate
interest in preventing anticompetitive behavior, and accepted that
cable operators have incentives to discriminate against
broadcasters in favor of their own vertically integrated cable
programming.
Id., at 772, 775, 779. He would have granted
summary judgment for appellants nonetheless on the ground
must-carry is not narrowly tailored. In his view, must-carry
constitutes a significant (though "diminish[ing],"
id., at
782) burden on cable operators' and programmers' rights,
ibid., and the Cable Act's must-carry provisions suppress
more speech than necessary because "less-restrictive" alternatives
exist to accomplish the Government's legitimate objectives,
id., at 782-789.
This direct appeal followed. See 47 U. S. C. §555(c)(1); 28 U.
S. C. § 1253. We noted probable jurisdiction, 516 U. S. 1110
(1996), and we now affirm.
II
We begin where the plurality ended in
Turner, applying
the standards for intermediate scrutiny enunciated in
O'Brien. A content-neutral regulation will be sustained
under the First Amendment if it advances important governmental
interests unrelated to the suppression of free speech and does not
burden substantially more speech than necessary to further those
interests.
O'Brien, 391 U. S., at 377. As noted in
Turner, must-carry was designed to serve "three interrelated
interests: (1) preserving the benefits of free, over-the-air local
broadcast television, (2) promoting the widespread dissemination of
information from a multiplicity of sources, and (3) promoting fair
competition in the market for television programming." 512 U. S.,
at 662. We decided then, and now reaffirm, that each of those is an
important
190
governmental interest. We have been most explicit in holding
that" 'protecting noncable households from loss of regular
television broadcasting service due to competition from cable
systems' is an important federal interest."
Id., at 663
(quoting
Capital Cities Cable, Inc. v.
Crisp,
467 U. S. 691,
714 (1984)). Forty percent of American households continue to rely
on over-the-air signals for television programming. Despite the
growing importance of cable television and alternative
technologies, "'broadcasting is demonstrably a principal source of
information and entertainment for a great part of the Nation's
population.'"
Turner, supra, at 663 (quoting
United
States v.
Southwestern Cable Co., 392 U. S. 157, 177
(1968)). We have identified a corresponding "governmental purpose
of the highest order" in ensuring public access to "a multiplicity
of information sources," 512 U. S., at 663. And it is undisputed
the Government has an interest in "eliminating restraints on fair
competition ... , even when the individuals or entities subject to
particular regulations are engaged in expressive activity protected
by the First Amendment."
Id., at 664.
On remand, and again before this Court, both sides have advanced
new interpretations of these interests in an attempt to recast them
in forms "more readily proven." 910 F. Supp., at 759 (Williams, J.,
dissenting). The Government downplays the importance of showing a
risk to the broadcast industry as a whole and suggests the loss of
even a few broadcast stations "is a matter of critical importance."
Tr. of Oral Arg. 23. Taking the opposite approach, appellants argue
Congress' interest in preserving broadcasting is not implicated
unless it is shown the industry as a whole would fail without
must-carry, Brief for Appellant National Cable Television
Association, Inc. 18-23 (NCTA Brief); Brief for Appellant Time
Warner Entertainment Co., L. P. 8-10 (Time Warner Brief), and
suggest Congress' legitimate interest in "assuring that the public
has access to a multiplicity of information sources,"
Turner,
supra, at 663, extends only as far
191
as preserving "a minimum amount of television broadcast
service," Time Warner Brief 28; NCTA Brief 40; Reply Brief for
Appellant NCTA 12.
These alternative formulations are inconsistent with Congress'
stated interests in enacting must-carry. The congressional findings
do not reflect concern that, absent must-carry, "a few voices," Tr.
of Oral Arg. 23, would be lost from the television marketplace. In
explicit factual findings, Congress expressed clear concern that
the "marked shift in market share from broadcast television to
cable television services," Cable Act § 2(a)(13), note following 47
U. S. C. § 521, resulting from increasing market penetration by
cable services, as well as the expanding horizontal concentration
and vertical integration of cable operators, combined to give cable
systems the incentive and ability to delete, reposition, or decline
carriage to local broadcasters in an attempt to favor affiliated
cable programmers. §§ 2a(2)-(5), (15). Congress predicted that
"absent the reimposition of [must-carry], additional local
broadcast signals will be deleted, repositioned, or not carried," §
2(a)(15); see also § 2(a)(8)(D), with the end result that "the
economic viability of free local broadcast television and its
ability to originate quality local programming will be seriously
jeopardized," § 2(a)(16).
At the same time, Congress was under no illusion that there
would be a complete disappearance of broadcast television
nationwide in the absence of must-carry. Congress recognized
broadcast programming (and network programming in particular)
"remains the most popular programming on cable systems," §
2(a)(19). Indeed, reflecting the popularity and strength of some
broadcasters, Congress included in the Cable Act a provision
permitting broadcasters to charge cable systems for carriage of the
broadcasters' signals. See § 6, codified at 47 U. S. C. § 325.
Congress was concerned not that broadcast television would
disappear in its entirety without must-carry, but that without it,
"significant numbers of broadcast stations will be refused carriage
on cable sys-
192
tems," and those "broadcast stations denied carriage will either
deteriorate to a substantial degree or fail altogether." 512 U. S.,
at 666. See,
e. g., H. R. Rep. No. 102-628, p. 51
(1992) (House Report) (the absence of must-carry "will result in a
weakening of the over-the-air television industry and a reduction
in competition");
id., at 64 ("The Committee wishes to make
clear that its concerns are not limited to a situation where
stations are dropped wholesale by large numbers of cable systems");
S. Rep. No. 102-92, p. 62 (1991) (Senate Report) ("Without
congressional action, ... the role of local television broadcasting
in our system of communications will steadily decline ... "); see
also Brief for Federal Appellees in
Turner Broadcasting System,
Inc. v.
FCC, No. 93-44, p. 32, n. 22 (the question is
not whether "the evidence shows that broadcast television is likely
to be totally eliminated" but "whether the broadcast services
available to viewers [without cable] are likely to be reduced to a
significant extent, because of either loss of some stations
altogether or curtailment of services by others").
Nor do the congressional findings support appellants' suggestion
that legitimate legislative goals would be satisfied by the
preservation of a rump broadcasting industry providing a minimum of
broadcast service to Americans without cable. We have noted that"
'it has long been a basic tenet of national communications policy
that "the widest possible dissemination of information from diverse
and antagonistic sources is essential to the welfare of the
public."'"
Turner, 512 U. S., at 663-664 (quoting
United
States v.
Midwest Video Corp., 406 U. S. 649, 668, n. 27
(1972) (plurality opinion), in turn quoting
Associated Press
v.
United States, 326 U. S. 1, 20 (1945)); see also
FCC v.
WNCN Listeners Guild, 450 U. S. 582, 594
(1981). " '[I]ncreasing the number of outlets for community
self-expression'" represents a "'longestablished regulatory goa[l]
in the field of television broadcasting.'"
United States v.
Midwest Video Corp., supra, at
193
667-668 (plurality opinion). Consistent with this objective, the
Cable Act's findings reflect a concern that congressional action
was necessary to prevent "a reduction in the number of media voices
available to consumers." § 2(a)(4). Congress identified a specific
interest in "ensuring [the] continuation" of "the local origination
of [broadcast] programming," § 2(a)(10), an interest consistent
with its larger purpose of promoting multiple types of media, §
2(a)(6), and found must-carry necessary "to serve the goals" of the
original Communications Act of 1934 of "providing a fair,
efficient, and equitable distribution of broadcast services," §
2(a)(9). In short, Congress enacted must-carry to "preserve the
existing structure of the Nation's broadcast television medium
while permitting the concomitant expansion and development of cable
television." 512 U. S., at 652.
Although Congress set no definite number of broadcast stations
sufficient for these purposes, the Cable Act's requirement that all
cable operators with more than 12 channels set aside one-third of
their channel capacity for local broadcasters, § 4, 47 U. S. C. §
534(b)(1)(B), refutes the notion that Congress contemplated
preserving only a bare minimum of stations. Congress' evident
interest in "preserv[ing] the existing structure," 512 U. S., at
652, of the broadcast industry discloses a purpose to prevent any
significant reduction in the multiplicity of broadcast programming
sources available to noncable households. To the extent the
appellants question the substantiality of the Government's interest
in preserving something more than a minimum number of stations in
each community, their position is meritless. It is for Congress to
decide how much local broadcast television should be preserved for
noncable households, and the validity of its determination "'does
not turn on a judge's agreement with the responsible decisionmaker
concerning' ... the degree to which [the Government's] interests
should be promoted."
Ward, 491 U. S., at 800 (quoting
United States v.
194
Albertini, 472 U. S. 675, 689
(1985)); accord,
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288, 299 (1984) ("We do not believe ... [that]
United
States v.
O'Brien ... endow[s] the judiciary with the
competence to judge how much protection of park lands is
wise").
The dissent proceeds on the assumption that must-carry is
designed solely to be (and can only be justified as) a measure to
protect broadcasters from cable operators' anticompetitive
behavior. See
post, at 251, 253, 258. Federal policy,
however, has long favored preserving a multiplicity of broadcast
outlets regardless of whether the conduct that threatens it is
motivated by anticompetitive animus or rises to the level of an
antitrust violation. See
Capital Cities Cable, Inc. v.
Crisp, 467 U. S., at 714;
United States v.
Midwest
Video Corp., supra, at 665 (plurality opinion) (FCC regulations
"were ... avowedly designed to guard broadcast services from being
undermined by unregulated [cable] growth");
National
Broadcasting Co. v.
United States, 319 U. S. 190, 223224
(1943) (" 'While many of the network practices raise serious
questions under the antitrust laws, ... [i]t is not [the FCC's]
function to apply the antitrust laws as such'" (quoting FCC Report
on Chain Broadcasting Regulations (1941))). Broadcast television is
an important source of information to many Americans. Though it is
but one of many means for communication, by tradition and use for
decades now it has been an essential part of the national discourse
on subjects across the whole broad spectrum of speech, thought, and
expression. See
Turner, supra, at 663;
FCC v.
National Citizens Comm. for Broadcasting, 436 U. S. 775, 783 (1978)
(referring to studies "showing the dominant role of television
stations ... as sources of local news and other information").
Congress has an independent interest in preserving a multiplicity
of broadcasters to ensure that all households have access to
information and entertainment on an equal footing with those who
subscribe to cable.
195
A
On our earlier review, we were constrained by the state of the
record to assessing the importance of the Government's asserted
interests when "viewed in the abstract,"
Turner, 512 U. S.,
at 663. The expanded record now permits us to consider whether the
must-carry provisions were designed to address a real harm, and
whether those provisions will alleviate it in a material way.
Id., at 663-664. We turn first to the harm or risk which
prompted Congress to act. The Government's assertion that "the
economic health of local broadcasting is in genuine jeopardy and in
need of the protections afforded by must-carry,"
id., at
664-665, rests on two component propositions: First, "significant
numbers of broadcast stations will be refused carriage on cable
systems" absent must-carry,
id., at 666. Second, "the
broadcast stations denied carriage will either deteriorate to a
substantial degree or fail altogether."
Ibid.
In reviewing the constitutionality of a statute, "courts must
accord substantial deference to the predictive judgments of
Congress."
Id., at 665. Our sole obligation is "to assure
that, in formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence."
Id., at 666. As
noted in the first appeal, substantiality is to be measured in this
context by a standard more deferential than we accord to judgments
of an administrative agency. See
id., at 666-667;
id., at 670, n. 1 (STEVENS, J., concurring in part and
concurring in judgment). We owe Congress' findings deference in
part because the institution "is far better equipped than the
judiciary to 'amass and evaluate the vast amounts of data' bearing
upon" legislative questions.
Turner, supra, at 665-666
(plurality opinion) (quoting
Walters v.
National Assn. of
Radiation Survivors, 473 U. S. 305, 331, n. 12
(1985));
Ward, supra, at 800;
Rostker v.
Goldberg, 453
U. S. 57, 83 (1981) (courts must perform "appropriately
deferential examination of
Congress' evaluation of thee]
evi-
196
dence");
Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S. 94, 103 (1973).
This principle has special significance in cases, like this one,
involving congressional judgments concerning regulatory schemes of
inherent complexity and assessments about the likely interaction of
industries undergoing rapid economic and technological change.
Though different in degree, the deference to Congress is in one
respect akin to deference owed to administrative agencies because
of their expertise. See
FCC v.
National Citizens Comm.
for Broadcasting, supra, at 814 ("[C]omplete factual support in
the record for the [FCC's] judgment or prediction is not possible
or required; 'a forecast of the direction in which future public
interest lies necessarily involves deductions based on the expert
knowledge of the agency' ");
United States v.
Midwest
Video Corp., 406 U. S., at 674 (it was "beyond the competence
of the Court of Appeals itself to assess the relative risks and
benefits" of FCC policy, so long as that policy was based on
findings supported by evidence). This is not the sum of the matter,
however. We owe Congress' findings an additional measure of
deference out of respect for its authority to exercise the
legislative power. Even in the realm of First Amendment questions
where Congress must base its conclusions upon substantial evidence,
deference must be accorded to its findings as to the harm to be
avoided and to the remedial measures adopted for that end, lest we
infringe on traditional legislative authority to make predictive
judgments when enacting nationwide regulatory policy.
1
We have no difficulty in finding a substantial basis to support
Congress' conclusion that a real threat justified enactment of the
must-carry provisions. We examine first the evidence before
Congress and then the further evidence presented to the District
Court on remand to supplement the congressional determination.
197
As to the evidence before Congress, there was specific support
for its conclusion that cable operators had considerable and
growing market power over local video programming markets. Cable
served at least 60 percent of American households in 1992, see
Cable Act § 2(a)(3), and evidence indicated cable market
penetration was projected to grow beyond 70 percent. See Cable TV
Consumer Protection Act of 1991: Hearing on S. 12 before the
Subcommittee on Communications of the Senate Committee on Commerce,
Science, and Transportation, 102d Cong., 1st Sess., 259 (1991)
(statement of Edward O. Fritts) (App. 1253); see also Defendants'
Joint Statement of Evidence Before Congress "9, 10 (JSCR) (App.
1252-1253). As Congress noted, § 2(a)(2), cable operators possess a
local monopoly over cable households. Only one percent of
communities are served by more than one cable system, JSCR "31-40
(App. 1262-1266). Even in communities with two or more cable
systems, in the typical case each system has a local monopoly over
its subscribers. See Comments of NAB before the FCC on MM Docket
No. 85-349, , 47 (Apr. 25, 1986) (App. 26). Cable operators thus
exercise "control over most (if not all) of the television
programming that is channeled into the subscriber's home [and] can
thus silence the voice of competing speakers with a mere flick of
the switch."
Turner, 512 U. S., at 656.
Evidence indicated the structure of the cable industry would
give cable operators increasing ability and incentive to drop local
broadcast stations from their systems, or reposition them to a
less-viewed channel. Horizontal concentration was increasing as a
small number of multiple system operators (MSO's) acquired large
numbers of cable systems nationwide. § 2(a)(4). The trend was
accelerating, giving the MSO's increasing market power. In 1985,
the 10 largest MSO's controlled cable systems serving slightly less
than 42 percent of all cable subscribers; by 1989, the figure was
nearly 54 percent. JSCR , 77 (App. 1282); Competitive
198
Problems in the Cable Television Industry, Hearing before the
Subcommittee on Antitrust, Monopolies and Business Rights of the
Senate Committee on the Judiciary, 101st Cong., 1st Sess., 74
(1990) (Hearing on Competitive Problems in the Cable Television
Industry) (statement of Gene Kimmelman and Dr. Mark N. Cooper).
Vertical integration in the industry also was increasing.
As Congress was aware, many MSO's owned or had affiliation
agreements with cable programmers. § 2(a)(5); Senate Report, at
24-29. Evidence indicated that before 1984 cable operators had
equity interests in 38 percent of cable programming networks. In
the late 1980's, 64 percent of new cable programmers were held in
vertical ownership. JSCR , 197 (App. 1332-1333). Congress concluded
that "vertical integration gives cable operators the incentive and
ability to favor their affiliated programming services," § 2(a)(5);
Senate Report, at 25, a conclusion that even Judge Williams'
dissent conceded to be reasonable. See 910 F. Supp., at 775.
Extensive testimony indicated that cable operators would have an
incentive to drop local broadcasters and to favor affiliated
programmers. See,
e. g., Competitive Issues in the
Cable Television Industry: Hearing before the Subcommittee on
Antitrust, Monopolies and Business Rights of the Senate Committee
on the Judiciary, 100th Cong., 2d Sess., 546 (1988) (Hearing on
Competitive Issues) (statement of Milton Maltz); Cable Television
Regulation: Hearings on H. R. 1303 and H. R. 2546 before the
Subcommittee on Telecommunications and Finance of the House
Committee on Energy and Commerce, 102d Cong., 1st Sess., 869-870,
878-879 (1992) (Hearings on Cable Television Regulation) (statement
of James B. Hedlund);
id., at 752 (statement of Edward O.
Fritts);
id., at 699 (statement of Gene Kimmelman); Cable
Television Regulation (Part 2): Hearings before the Subcommittee on
Telecommunications and Finance of the House Committee on Energy and
Commerce, 101st Cong., 2d Sess., 261 (1990) (Hearings on Cable
Television Regulation (Part 2)) (state-
199
ment of Robert G. Picard) (App. 1339-1341); see also JSCR
"168-170,278-280 (App. 1320-1321, 1370-1371).
Though the dissent criticizes our reliance on evidence provided
to Congress by parties that are private appellees here,
post, at 237-238, that argument displays a lack of regard
for Congress' factfinding function. It is the nature of the
legislative process to consider the submissions of the parties most
affected by legislation. Appellants, too, sent representatives
before Congress to try to persuade them of their side of the
debate. See,
e. g., Hearing on Competitive Problems
in the Cable Television Industry, at 228-241 (statement of James P.
Mooney, president and CEO of appellant NCTA); Hearings on Cable
Television Regulation, at 575-582 (statement of Decker S. Anstrom,
executive vice president of appellant NCTA); Cable TV Consumer
Protection Act of 1991:
Hearing on S. 12 before the Subcommittee on Communications of
the Senate Committee on Commerce, Science, and Transportation, 102d
Cong., 1st Sess., 173-180 (1991) (statement of Ted Turner,
president of appellant Turner Broadcasting System). After hearing
years of testimony, and reviewing volumes of documentary evidence
and studies offered by both sides, Congress concluded that the
cable industry posed a threat to broadcast television. The
Constitution gives to Congress the role of weighing conflicting
evidence in the legislative process. Even when the resulting
regulation touches on First Amendment concerns, we must give
considerable deference, in examining the evidence, to Congress'
findings and conclusions, including its findings and conclusions
with respect to conflicting economic predictions. See
supra,
at 195-196. Furthermore, much of the testimony, though offered by
interested parties, was supported by verifiable information and
citation to independent sources. See,
e. g., Hearings
on Cable Television Regulation, at 869-870, 878-879 (statement of
James B. Hedlund);
id., at 705, 707708, 712 (statement of
Gene Kimmelman).
200
The reasonableness of Congress' conclusion was borne out by the
evidence on remand, which also reflected cable industry favoritism
for integrated programmers. See,
e. g., Record,
Defendants' Additional Evidence, Vol. VILH, Exh. 170, p. 1749 (DAE)
(cable industry memo stating: "All [of an MSO's] systems must
launch Starz [an integrated programmer] 2/94. Word from corporate:
if you don't have free channels ... make one free"); Third
Declaration of Tom Meek' 44 (Third Meek Declaration) (App.
2071-2072); see also Declaration of Roger G. Noll " 18-22 (Noll
Declaration) (App. 10091013); Declaration of James Dertouzos' 6a
(Dertouzos Declaration) (App. 959).
In addition, evidence before Congress, supplemented on remand,
indicated that cable systems would have incentives to drop local
broadcasters in favor of other programmers less likely to compete
with them for audience and advertisers. Independent local
broadcasters tend to be the closest substitutes for cable programs,
because their programming tends to be similar, see JSCR "269, 274,
276 (App. 1367, 13681370), and because both primarily target the
same type of advertiser: those interested in cheaper (and more
frequent) ad spots than are typically available on network
affiliates. Second Declaration of Tom Meek' 32 (Second Meek
Declaration) (App. 1866); Reply Declaration of James N. Dertouzos ,
26 (App. 2023); Carriage of Television Broadcast Signals by Cable
Television Systems, Reply Comment of the Staff of the Bureau of
Economics and the San Francisco Regional Office of the Federal
Trade Commission, p. 19 (Nov. 26, 1991) (Reply Comment of FTC)
(App. 176). The ability of broadcast stations to compete for
advertising is greatly increased by cable carriage, which increases
viewership substantially. See Second Meek Declaration , 34 (App.
1866-1867). With expanded viewership, broadcast presents a more
competitive medium for television advertising. Empirical studies
indicate that cable-carried broadcasters so enhance competition for
advertising that even modest increases in the numbers of
201
broadcast stations carried on cable are correlated with
significant decreases in advertising revenue to cable systems.
Dertouzos Declaration "20, 25-28 (App. 966, 969-971); see also
Reply Comment of FTC, at 18 (App. 175). Empirical evidence also
indicates that demand for premium cable services (such as
pay-per-view) is reduced when a cable system carries more
independent broadcasters. Hearing on Competitive Problems in the
Cable Television Industry, at 323 (statement of Michael O. Wirth).
Thus, operators stand to benefit by dropping broadcast stations.
Dertouzos Declaration , 6b (App. 959).
Cable systems also have more systemic reasons for seeking to
disadvantage broadcast stations: Simply stated, cable has little
interest in assisting, through carriage, a competing medium of
communication. As one cable-industry executive put it, "'our job is
to promote cable television, not broadcast television.'" Hearing on
Competitive Issues, at 658 (quoting Multichannel News, Channel
Realignments: United Cable Eyes Plan to Bump Network Affils to
Upper Channels, Nov. 3, 1986, p. 39); see also Hearing on
Competitive Issues, at 661 (" 'Shouldn't we give more ... shelf
space to cable? Why have people trained to view UHF?''') (vice
president of operations at Comcast, an MSO, quoted in Multichannel
News, Cable Operators begin to Shuffle Channel Lineups, Sept. 8,
1986, p. 38). The incentive to subscribe to cable is lower in
markets with many over-the-air viewing options. See JSCR , 275
(App. 1369); Dertouzos Declaration "27, 32 (App. 970, 972).
Evidence adduced on remand indicated cable systems have little
incentive to carry, and a significant incentive to drop, broadcast
stations that will only be strengthened by access to the 60 percent
of the television market that cable typically controls. Dertouzos
Declaration "29, 35 (App. 971, 973); Noll Declaration' 43 (App.
1029). Congress could therefore reasonably conclude that cable
systems would drop broadcasters in favor of programmerseven
unaffiliated ones-less likely to compete with them for
202
audience and advertisers. The cap on carriage of affiliates
included in the Cable Act, 47 U. S. C. § 533(f)(1)(B); 47 CFR §
76.504 (1995), and relied on by the dissent,
post, at 238,
252, is of limited utility in protecting broadcasters.
The dissent contends Congress could not reasonably conclude
cable systems would engage in such predation because cable
operators, whose primary source of revenue is subscriptions, would
not risk dropping a widely viewed broadcast station in order to
capture advertising revenues.
Post, at 239. However, if
viewers are faced with the choice of sacrificing a handful of
broadcast stations to gain access to dozens of cable channels (plus
network affiliates), it is likely they would still subscribe to
cable even if they would prefer the dropped television stations to
the cable programming that replaced them. Substantial evidence
introduced on remand bears this out: With the exception of a
handful of very popular broadcast stations (typically network
affiliates), a cable system's choice between carrying a cable
programmer or broadcast station has little or no effect on cable
subscriptions, and subscribership thus typically does not bear on
carriage decisions. Noll Declaration' 29 (App. 1018-1019); Rebuttal
Declaration of Roger G. Noll' 20 (App. 1798); Reply Declaration of
Roger G. Noll "3-4, and n. 3 (App. 20032004); see also Declaration
of John R. Haring , 37 (Haring Declaration) (App. 1106).
It was more than a theoretical possibility in 1992 that cable
operators would take actions adverse to local broadcasters; indeed,
significant numbers of broadcasters had already been dropped. The
record before Congress contained extensive anecdotal evidence about
scores of adverse carriage decisions against broadcast stations.
See JSCR "291-467,664 (App. 1376-1489, 1579). Congress considered
an FCC-sponsored study detailing cable system carriage practices in
the wake of decisions by the United States Court of Appeals for the
District of Columbia Circuit striking down prior must-carry
regulations. See
Quincy Cable TV:
Inc. v.
FCC,
768 F. 2d
203
1434 (1985), cert. denied, 476 U. S. 1169 (1986);
Century
Communications Corp. v.
FCC, 835 F.2d
292 (1987), cert. denied, 486 U. S. 1032 (1988). It indicated
that in 1988, 280 out of 912 responding broadcast stations had been
dropped or denied carriage in 1,533 instances. App. 47. Even
assuming that every station dropped or denied coverage responded to
the survey, it would indicate that nearly a quarter (21 percent) of
the approximately 1,356 broadcast stations then in existence,
id., at 40, had been denied carriage. The same study
reported 869 of 4,303 reporting cable systems had denied carriage
to 704 broadcast stations in 1,820 instances,
id., at 48,
and 279 of those stations had qualified for carriage under the
prior must-carry rules,
id., at 49. A contemporaneous study
of public television stations indicated that in the vast majority
of cases, dropped stations were not restored to the cable service.
Record, CR Vol. LZ, Exh. 140, pp. CR 15297-15298, 15306-15307.
Substantial evidence demonstrated that absent must-carry the
already "serious," Senate Report, at 43, problem of noncarriage
would grow worse because "additional local broadcast signals will
be deleted, repositioned, or not carried," § 2(a)(15). The record
included anecdotal evidence showing the cable industry was acting
with restraint in dropping broadcast stations in an effort to
discourage reregulation. See Hearings on Cable Television
Regulation, at 900, n. 81 (statement of James B. Hedlund); Hearings
on Cable Television Regulation (Part 2), at 242-243 (statement of
James P. Mooney) (App. 1519); JSCR "524-534 (App. 1515-1519). There
was also substantial evidence that advertising revenue would be of
increasing importance to cable operators as subscribership growth
began to flatten, providing a steady, increasing incentive to deny
carriage to local broadcasters in an effort to capture their
advertising revenue.
Id.," 124142,154-166 (App. 1301-1308,
1313-1319). A contemporaneous FCC report noted that "[c]able
operators' incentive to deny carriage ... appears to be
particularly great as against
204
local broadcasters."
Id.,' 155 (App. 1313). FCC
Commissioner James Quello warned Congress that the carriage
problems "occurring today are just the 'tip of the iceberg.' These
activities come at a time when the cable industry is just beginning
to recognize the importance of local advertising." Cable
Television, Hearings before the Subcommittee on Telecommunications
and Finance of the House Committee on Energy and Commerce, 100th
Cong., 2d Sess., 322 (1988) (App. 1515). Quello continued: "As
[cable] systems mature and penetration levels off, systems will
turn increasingly to advertising for revenues. The incentive to
deny carriage to local stations is a logical, rational and, without
must carry, a legal business strategy." App. A to Testimony of
James B. Hedlund before the Subcommittee on Telecommunications and
Finance of the House Committee on Energy & Commerce 18 (1990)
(statement of James H. Quello) (App. 1315). The FCC advised
Congress the "diversity in broadcast television service ... will be
jeopardized if this situation continues unredressed."
In re
Competition, Rate Regulation, and Provision of Cable Television
Service, 5 FCC Rcd 4962, 5040, , 149 (1990).
Additional evidence developed on remand supports the
reasonableness of Congress' predictive judgment. Approximately 11
percent of local broadcasters were not carried on the typical cable
system in 1989. See Reply Comment of FTC, at 9-10 (App. 168-169).
The figure had grown to even more significant proportions by 1992.
According to one of appellants' own experts, between 19 and 31
percent of all local broadcast stations, including network
affiliates, were not carried by the typical cable system. See
Declaration of Stanley Besen, Exhs. C-2, C-3 (App. 907-908). Based
on the same data, another expert concluded that 47 percent of local
independent commercial stations, and 36 percent of noncommercial
stations, were not carried by the typical cable system. The rate of
noncarriage was even higher for new stations. Third Meek
Declaration , 4 (App. 2054). Appel-
205
lees introduced evidence drawn from an empirical study
concluding the 1988 FCC survey substantially underestimated the
actual number of drops (Declaration of Tom Meek "5, 25, 36 (Meek
Declaration) (App. 619, 625, 626)), and the noncarriage problem
grew steadily worse during the period without must-carry. By the
time the Cable Act was passed, 1,261 broadcast stations had been
dropped for at least one year, in a total of 7,945 incidents.
Id.," 12, 15 (App. 621, 622).
The dissent cites evidence indicating that many dropped
broadcasters were stations few viewers watch,
post, at 242,
and it suggests that must-carry thwarts noncable viewers'
preferences,
ibid. Undoubtedly, viewers without cable-the
immediate, though not sole, beneficiaries of efforts to preserve
broadcast television-would have a strong preference for carriage of
any broadcast program over any cable program, for the simple reason
that it helps to preserve a medium to which they have access. The
methodological flaws in the cited evidence are of concern. See
post, at 243. Even aside from that, the evidence overlooks
that the broadcasters added by must-carry had ratings greater than
or equal to the cable programs they replaced. Second Meek
Declaration , 23 (App. 1863) (ratings of broadcasters added by
mustcarry "are generally higher than that achieved ... by their
equivalent cable counterparts"); Meek Declaration , 21, at 11-12
(Record, DAE Vol. ILA, Exh. 2); see also Hearings on Cable
Television Regulation, at 880 (statement of James Hedlund) ("[I]n
virtually every instance, the local [broadcast] stations shifted
are more popular ... than the cable program services that replace
them"); JSCR "497-510 (App. 15051509) (stations dropped before
must-carry generally more popular than cable services that replaced
them). (Indeed, in the vast majority of cases, cable systems were
able to fulfill their must-carry obligations using spare channels,
and did not displace cable programmers. See Report to Counsel for
National Cable Television Association Carriage of Must-
206
Carry TV Broadcast Stations, Table II-4 (Apr. 1995) (App. 678).)
On average, even the lowest rated station added pursuant to
must-carry had ratings better than or equal to at least nine basic
cable program services carried on the system. Third Meek
Declaration' 20, and n. 5 (App. 2061). If cable systems refused to
carry certain local broadcast stations because of their
subscribers' preferences for the cable services carried in their
place, one would expect that all cable programming services would
have ratings exceeding those of broadcasters not carried. That is
simply not the case.
The evidence on remand also indicated that the growth of cable
systems' market power proceeded apace. The trend toward greater
horizontal concentration continued, driven by "[e]nhanced growth
prospects for advertising sales." Paul Kagan Assocs., Inc., Cable
TV Advertising 1 (Sept. 30, 1994) (App. 301). By 1994, the 10
largest MSO's controlled 63 percent of cable systems, Notice of
Inquiry,
In re Annual Assessment of the Status of Competition in
the Market for Delivery of Video Programming, 10 FCC Rcd 7805,
78197820, , 79 (1995), a figure projected to have risen to 85
percent by the end of 1996. DAE Vol. VILD, Exh. 80, at 1 (Turner
Broadcasting memo); Noll Declaration' 26 (App. 1017). MSO's began
to gain control of as many cable systems in a given market as they
could, in a trend known as "clustering." JSCR "150-153 (App.
1311-1313). Cable systems looked increasingly to advertising (and
especially local advertising) for revenue growth, see,
e.
g., Paul Kagan Associates, Inc., Cable TV Advertising 1
(July 28, 1993) (App. 251); 1 R. Bilotti, D. Hansen, & R.
MacDonald, The Cable Television Industry 94-97 (Mar. 8, 1993) (DAE
Vol. VILK, Exh. 232, at 94-97) ("Local advertising revenue is an
exceptional incremental revenue opportunity for the cable
television industry"); Memo from Arts & Entertainment Network,
dated Oct. 26, 1992, p. 2 (DAE Vol. VILK, Exh. 235) (discussing
"huge growth on the horizon" for spot adver-
207
tising revenue), and cable systems had increasing incentives to
drop local broadcasters in favor of cable programmers (whether
affiliated or not). See Noll Declaration "29-31 (App. 1018-1020).
The vertical integration of the cable industry also continued, so
by 1994, MSO's serving about 70 percent of the Nation's cable
subscribers held equity interests in cable programmers. See
In
re Implementation of Section 19
of Cable Television
Protection and Competition Act of 1992,
First Report, 9
FCC Rcd 7442, 7526, , 167, and nn. 455, 457 (1994);
id.,
App. G, Tables 9-10; Top 100 MSO's as of October 1, 1994 (DAE Vol.
VILK, Exh. 266); see also JSCR "199,204 (App. 1334, 1336). The FTC
study the dissent cites,
post, at 242, takes a skeptical
view of the potential for cable systems to engage in
anticompetitive behavior, but concedes the risk of anticompetitive
carriage denials is "most plausible" when "the cable system's
franchise area is large relative to the local area served by the
affected broadcast station," Reply Comment of FTC, at 20 (App.
177), and when "a system's penetration rate is both high and
relatively unresponsive to the system's carriage decisions,"
id., at 18 (App. 175). That describes "precisely what is
happening" as large cable operators expand their control over
individual markets through clustering. Second Meek Declaration , 35
(App. 1867). As they do so, they are better able to sell their own
reach to potential advertisers, and to limit the access of
broadcast competitors by denying them access to all or
substantially all the cable homes in the market area.
Ibid.;
accord, Noll Declaration' 24 (App. 1015).
This is not a case in which we are called upon to give our best
judgment as to the likely economic consequences of certain
financial arrangements or business structures, or to assess
competing economic theories and predictive judgments, as we would
in a case arising, say, under the antitrust laws. "Statutes
frequently require courts to make policy judgments. The Sherman
Act, for example, requires courts to delve deeply into the theory
of economic organization."
208
See
Holder v.
Hall, 512 U. S. 874, 966 (1994)
(separate opinion of STEVENS, J.). The issue before us is whether,
given conflicting views of the probable development of the
television industry, Congress had substantial evidence for making
the judgment that it did. We need not put our imprimatur on
Congress' economic theory in order to validate the reasonableness
of its judgment.
2
The harm Congress feared was that stations dropped or denied
carriage would be at a "serious risk of financial difficulty," 512
U. S., at 667, and would "deteriorate to a substantial degree or
fail altogether,"
id., at 666. Congress had before it
substantial evidence to support its conclusion. Congress was
advised the viability of a broadcast station depends to a material
extent on its ability to secure cable carriage. JSCR" 597-617,
667-670, 673 (App. 1544-1553, 1580-1581, 1582-1583). One broadcast
industry executive explained it this way:
"Simply put, a television station's audience size directly
translates into revenue-large audiences attract larger revenues,
through the sale of advertising time. If a station is not carried
on cable, and thereby loses a substantial portion of its audience,
it will lose revenue. With less revenue, the station can not serve
its community as well. The station will have less money to invest
in equipment and programming. The attractiveness of its programming
will lessen, as will its audience. Revenues will continue to
decline, and the cycle will repeat." Hearing on Competitive Issues,
at 526-527 (statement of Gary Chapman) (App. 1600).
See also JSCR "589-591 (App. 1542-1543);
id., "625-633,
636, 638-640 (App. 1555-1563) (repositioning). Empirical research
in the record before Congress confirmed the "'direct correlation
[between] size in audience and station [ad-
209
vertising] revenues,'"
id., , 591 (App. 1543), and that
viewership was in turn heavily dependent on cable carriage, see
id., "589-596 (App. 1542-1544).
Considerable evidence, consisting of statements compiled from
dozens of broadcasters who testified before Congress and the FCC,
confirmed that broadcast stations had fallen into bankruptcy, see
id., "659, 661, 669, 671-672, 676, 681 (App. 1576, 1578,
1581-1582, 1584, 1587), curtailed their broadcast operations, see
id., "589, 692, 695, 697, 703-704 (App. 1542, 1591-1600),
and suffered serious reductions in operating revenues as a result
of adverse carriage decisions by cable systems, see
id.,
"618-620, 622-623 (App. 15531555). The record also reflected
substantial evidence that stations without cable carriage
encountered severe difficulties obtaining financing for operations,
reflecting the financial markets' judgment that the prospects are
poor for broadcasters unable to secure carriage. See,
e.
g., id., "302, 304, 581, 643-658 (App. 1382-1383, 1538-1539,
1564-1576); see also Declaration of David Schutz "6, 15-16, 18, 43
(App. 640-641, 644-646, 654); Noll Declaration "36-42 (App.
1024-1029); Haring Declaration "21-26 (App. 1099-1102); Second Meek
Declaration' 11 (App. 1858); Declaration of Jeffrey Rohlfs' 6 (App.
1157-1158). Evidence before Congress suggested the potential
adverse impact of losing carriage was increasing as the growth of
clustering gave MSO's centralized control over more local markets.
See JSCR "150153 (App. 1311-1313). Congress thus had ample basis to
conclude that attaining cable carriage would be of increasing
importance to ensuring a station's viability. We hold Congress
could conclude from the substantial body of evidence before it that
"absent legislative action, the free local off-air broadcast system
is endangered." Senate Report, at 42.
The evidence assembled on remand confirms the reasonableness of
the congressional judgment. Documents produced on remand reflect
that internal cable industry studies
210
"clearly establis[h] the importance of cable television to
broadcast television stations. Because viewership equates to
ratings and in turn ratings equate to revenues, it is unlikely that
broadcast stations could afford to be off the cable system's
line-up for any extended period of time." Memorandum from F. Lopez
to T. Baxter re: Adlink's Presentations on Retransmission Consent,
dated June 14, 1993 (App. 2118).
Another study prepared by a large MSO in 1993 concluded that
"[w]ith cable penetration now exceeding 70% in many markets, the
ability of a broadcast television station to easily reach its
audience through cable television is crucial." Exh. B to Haring
Declaration, DAE Vol. ILA (App. 2147). The study acknowledged that
even in a market with significantly below-average cable
penetration, "[t]he loss of cable carriage could cause a
significant decrease in a station's ratings and a resulting loss in
advertising revenues."
Ibid. (App. 2147). For an average
market "the impact would be even greater."
Ibid. (App.
2149). The study determined that for a popular station in a major
television market, even modest reductions in carriage could result
in sizeable reductions in revenue. A 5 percent reduction in cable
viewers, for example, would result in a $1.48 million reduction in
gross revenue for the station. (App. 2156.)
To be sure, the record also contains evidence to support a
contrary conclusion. Appellants (and the dissent in the District
Court) make much of the fact that the number of broadcast stations
and their advertising revenue continued to grow during the period
without must-carry, albeit at a diminished rate. Evidence
introduced on remand indicated that only 31 broadcast stations
actually went dark during the period without must-carry (one of
which failed after a tornado destroyed its transmitter), and during
the same period some 263 new stations signed on the air. Meek
Declaration "76-77 (App. 627-628). New evidence appellants produced
on remand indicates the average cable system volun-
211
tarily carried local broadcast stations accounting for about 97
percent of television ratings in noncable households. Declaration
of Stanley Besen, Part III-D (App. 808). Appellants, as well as the
dissent in the District Court, contend that in light of such
evidence, it is clear "the must-carry law is not necessary to
assure the economic viability of the broadcast system as a whole."
NCTA Brief 18.
This assertion misapprehends the relevant inquiry. The question
is not whether Congress, as an objective matter, was correct to
determine must-carry is necessary to prevent a substantial number
of broadcast stations from losing cable carriage and suffering
significant financial hardship. Rather, the question is whether the
legislative conclusion was reasonable and supported by substantial
evidence in the record before Congress.
Turner, 512 U. S.,
at 665-666. In making that determination, we are not to "reweigh
the evidence
de novo, or to replace Congress' factual
predictions with our own."
Id., at 666. Rather, we are
simply to determine if the standard is satisfied. If it is, summary
judgment for defendants-appellees is appropriate regardless of
whether the evidence is in conflict. We have noted in another
context, involving less deferential review than is at issue here,
that" 'the possibility of drawing two inconsistent conclusions from
the evidence does not prevent ... [a] finding from being supported
by substantial evidence.'"
American Textile Mfrs. Institute,
Inc. v.
Donovan, 452 U. S. 490, 523 (1981)
(citation omitted) (quoting
Consolo v.
Federal Maritime
Comm'n, 383 U. S.
607, 620 (1966)).
Although evidence of continuing growth in broadcast could have
supported the opposite conclusion, a reasonable interpretation is
that expansion in the cable industry was causing harm to
broadcasting. Growth continued, but the rate of growth fell to a
considerable extent during the period without must-carry (from 4.5
percent in 1986 to 1.7 percent by 1992), and appeared to be
tapering off further. JSCR "577-584 (App. 1537-1540); Meek
Declaration "74-82
212
(App. 626-631); 910 F. Supp., at 790, App. 2. At the same time,
"in an almost unprecedented development," 5 FCC Rcd, at 5041,
"153-154, stations began to fail in increasing numbers. Meek
Declaration' 78 (App. 628) ("[T]he number of stations going dark
began to escalate" after 1988) (emphasis deleted); JSCR "659, 661,
669, 671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587).
Broadcast advertising revenues declined in real terms by 11 percent
between 1986 and 1991, during a period in which cable's real
advertising revenues nearly doubled. See 910 F. Supp., at 790, App.
1. While these phenomena could be thought to stem from factors
quite separate from the increasing market power of cable (for
example, a recession in 1990-1992), it was for Congress to
determine the better explanation. We are not at liberty to
substitute our judgment for the reasonable conclusion of a
legislative body. See
Turner, supra, at 665-666. It is true
the number of bankruptcies among local broadcasters was small; but
Congress could forecast continuance of the "unprecedented" 5-year
downward trend and conclude the station failures of 1985-1992 were,
as Commissioner Quello warned, the tip of the iceberg. A
fundamental principle of legislation is that Congress is under no
obligation to wait until the entire harm occurs but may act to
prevent it. "An industry need not be in its death throes before
Congress may act to protect it from economic harm threatened by a
monopoly."
Turner, supra, at 672 (STEVENS, J., concurring in
part and concurring in judgment). As a Senate Committee noted in a
Report on the Cable Act: "[W]e need not wait until widespread
further harm has occurred to the system of local broadcasting or to
competition in the video market before taking action to forestall
such consequences. Congress is allowed to make a rational
predication of the consequences of inaction and of the effects of
regulation in furthering governmental interests." Senate Report, at
60.
Despite the considerable evidence before Congress and adduced on
remand indicating that the significant numbers of
213
broadcast stations are at risk, the dissent believes yet more is
required before Congress could act. It demands more information
about which of the dropped broadcast stations still qualify for
mandatory carriage,
post, at 241; about the broadcast
markets in which adverse decisions take place,
ibid.; and
about the features of the markets in which bankrupt broadcast
stations were located prior to their demise,
post, at 246.
The level of detail in factfinding required by the dissent would be
an improper burden for courts to impose on the Legislative Branch.
That amount of detail is as unreasonable in the legislative context
as it is constitutionally unwarranted. "Congress is not obligated,
when enacting its statutes, to make a record of the type that an
administrative agency or court does to accommodate judicial
review."
Turner, supra, at 666 (plurality opinion).
We think it apparent must-carry serves the Government's
interests "in a direct and effective way."
Ward, 491 U. S.,
at 800. Must-carry ensures that a number of local broadcasters
retain cable carriage, with the concomitant audience access and
advertising revenues needed to support a multiplicity of stations.
Appellants contend that even were this so, must-carry is broader
than necessary to accomplish its goals. We turn to this
question.
B
The second portion of the
O'Brien inquiry concerns the
fit between the asserted interests and the means chosen to advance
them. Content-neutral regulations do not pose the same "inherent
dangers to free expression,"
Turner, supra, at 661, that
content-based regulations do, and thus are subject to a less
rigorous analysis, which affords the Government latitude in
designing a regulatory solution. See,
e. g., Ward,
supra, at 798-799, n. 6. Under intermediate scrutiny, the
Government may employ the means of its choosing" 'so long as the
... regulation promotes a substantial governmental interest that
would be achieved less effectively absent
214
the regulation,'" and does not" 'burden substantially more
speech than is necessary to further' " that interest.
Turner, 512 U. S., at 662 (quoting
Ward, supra, at
799).
The must-carry provisions have the potential to interfere with
protected speech in two ways. First, the provisions restrain cable
operators' editorial discretion in creating programming packages by
"reduc[ing] the number of channels over which [they] exercise
unfettered control."
Turner, 512 U. S., at 637. Second, the
rules "render it more difficult for cable programmers to compete
for carriage on the limited channels remaining."
Ibid.
Appellants say the burden of must-carry is great, but the
evidence adduced on remand indicates the actual effects are modest.
Significant evidence indicates the vast majority of cable operators
have not been affected in a significant manner by must-carry. Cable
operators have been able to satisfy their must-carry obligations 87
percent of the time using previously unused channel capacity,
Declaration of Harry Shoo shan III, , 14 (App. 692); 94.5 percent
of the 11,628 cable systems nationwide have not had to drop any
programming in order to fulfill their must-carry obligations; the
remaining 5.5 percent have had to drop an average of only 1.22
services from their programming,
id., , 15 (App. 692); and
cable operators nationwide carry 99.8 percent of the programming
they carried before enactment of must-carry,
id., , 21 (App.
694695). Appellees note that only 1.18 percent of the approximately
500,000 cable channels nationwide is devoted to channels added
because of must-carry, see
id., , l1(b) (App. 688-689);
weighted for subscribership, the figure is 2.4 percent, 910 F.
Supp., at 780 (Williams, J., dissenting). Appellees contend the
burdens of must-carry will soon diminish as cable channel capacity
increases, as is occurring nationwide. NAB Brief 45; see also 910
F. Supp., at 746-747.
We do not understand appellants to dispute in any fundamental
way the accuracy of those figures, only their significance. See
NCTA Brief 46;
id., at 44-49; Time Warner Brief
215
38-45; Turner Brief 33-42. They note national averages fail to
account for greater crowding on certain (especially urban) cable
systems, see Time Warner Brief 41, 43; Turner Brief 41, and contend
that half of all cable systems, serving twothirds of all cable
subscribers, have no available capacity, NCTA Brief 45; Turner
Brief 34; Time Warner Brief 42, n. 58. Appellants argue that the
rate of growth in cable programming outstrips cable operators'
creation of new channel space, that the rate of cable growth is
lower than claimed, Turner Brief 39, and that must-carry infringes
First Amendment rights now irrespective of future growth, Turner
Brief 40; Reply Brief for Appellants Turner Broadcasting System,
Inc., et al. 12-13. Finally, they say that regardless of the
percentage of channels occupied, must-carry still represents
"thousands of real and individual infringements of speech." Time
Warner Brief 44.
While the parties' evidence is susceptible of varying
interpretations, a few definite conclusions can be drawn about the
burdens of must-carry. It is undisputed that broadcast stations
gained carriage on 5,880 channels as a result of mustcarry. While
broadcast stations occupy another 30,006 cable channels nationwide,
this carriage does not represent a significant First Amendment harm
to either system operators or cable programmers because those
stations were carried voluntarily before 1992, and even appellants
represent, Tr. of Oral Arg. 6, that the vast majority of those
channels would continue to be carried in the absence of any legal
obligation to do so. See
Turner, supra, at 673, n. 6
(STEVENS, J., concurring in part and concurring in judgment). The
5,880 channels occupied by added broadcasters represent the actual
burden of the regulatory scheme. Appellants concede most of those
stations would be dropped in the absence of must-carry, Tr. of Oral
Arg. 6, so the figure approximates the benefits of must-carry as
well.
Because the burden imposed by must-carry is congruent to the
benefits it affords, we conclude must-carry is narrowly
216
tailored to preserve a multiplicity of broadcast stations for
the 40 percent of American households without cable. Cf.
Ward, 491 U. S., at 799, n. 7 ("[T]he essence of narrow
tailoring" is "focus[ing] on the source of the evils the
[Government] seeks to eliminate [without] significantly restricting
a substantial quantity of speech that does not create the same
evils");
Community for Creative Non-Violence, 468 U. S., at
297 ("None of [the regulation's] provisions appears unrelated to
the ends that it was designed to serve"). Congress took steps to
confine the breadth and burden of the regulatory scheme. For
example, the more popular stations (which appellants concede would
be carried anyway) will likely opt to be paid for cable carriage
under the "retransmission consent" provision of the Cable Act;
those stations will nonetheless be counted toward systems'
must-carry obligations. Congress exempted systems of 12 or fewer
channels, and limited the must-carry obligation of larger systems
to one-third of capacity, 47 U. S. C. § 534(b)(1); see also §§
535(b)(2)-(3); allowed cable operators discretion in choosing which
competing and qualified signals would be carried, § 534(b)(2); and
permitted operators to carry public stations on unused public,
educational, and governmental channels in some circumstances, §
535(d).
Appellants say the must-carry provisions are overbroad because
they require carriage in some instances when the Government's
interests are not implicated: The must-carry rules prohibit a cable
system operator from dropping a broadcaster "even if the operator
has no anticompetitive motives, and even if the broadcaster that
would have to be dropped ... would survive without cable access."
512 U. S., at 683 (O'CONNOR, J., dissenting). See also NCTA Brief
2526. We are not persuaded that either possibility is so prevalent
that must-carry is substantially overbroad. As discussed
supra, at 201-202, cable systems serving 70 percent of
subscribers are vertically integrated with cable programmers, so
anticompetitive motives may be implicated in a
217
majority of systems' decisions not to carry broadcasters. Some
broadcasters will opt for must-carry although they would not suffer
serious financial harm in its absence. See Time Warner Brief 35-36,
and n. 49. Broadcasters with stronger finances tend, however, to be
popular ones that ordinarily seek payment from cable systems for
transmission, so their reliance on must-carry should be minimal. It
appears, for example, that no more than a few hundred of the
500,000 cable channels nationwide are occupied by network
affiliates opting for must-carry, see Time Warner Brief 3536, and
n. 49, a number insufficient to render must-carry "substantially
broader than necessary to achieve the government's interest,"
Ward, supra, at 800. Even on the doubtful assumption that a
narrower but still practicable must-carry rule could be drafted to
exclude all instances in which the Government's interests are not
implicated, our cases establish that content-neutral regulations
are not "invalid simply because there is some imaginable
alternative that might be less burdensome on speech."
Albertini, 472 U. S., at 689; accord,
Ward, supra, at
797;
Community for Creative NonViolence, supra, at 299.
Appellants posit a number of alternatives in an effort to
demonstrate a less restrictive means to achieve the Government's
aims. They ask us, in effect, to "sif[t] through all the available
or imagined alternative means of regulating [cable television] in
order to determine whether the [Government's] solution was 'the
least intrusive means' of achieving the desired end," an approach
we rejected in
Ward, 491 U. S., at 797. This"
'less-restrictive-alternative analysis ... has never been a part of
the inquiry into the validity'" of content-neutral regulations on
speech.
Ibid. (quoting
Regan v.
Time, Inc.,
468 U. S. 641,
657 (1984) (plurality opinion) (ellipses in original)). Our
precedents establish that when evaluating a content-neutral
regulation which incidentally burdens speech, we will not
invalidate the preferred remedial scheme because some alternative
solution is marginally
218
less intrusive on a speaker's First Amendment interests. "So
long as the means chosen are not substantially broader than
necessary to achieve the government's interest, ... the regulation
will not be invalid simply because a court concludes that the
government's interest could be adequately served by some
less-speech-restrictive alternative."
Ward, 491 U. S., at
800. See generally
ibid. (holding regulation valid although
Court of Appeals had identified less restrictive "alternative
regulatory methods" of controlling volume at concerts);
Albertini, supra, at 689 (upholding validity of order
barring a person from a military base, although excluding barred
person was not "essential" to preserving security and there were
less speech-restrictive means of attaining that end);
Community
for Creative Non-Violence, supra, at 299 (overnight camping ban
upheld although "there [were] less speech-restrictive alternatives"
of satisfying interest in preserving park lands);
Members of
City Council of Los Angeles v.
Taxpayers for Vincent,
466 U. S. 789,
815-817 (1984) (stating that although making exceptions to ban on
posting signs on public property "would have had a less severe
effect on expressive activity," they were not "constitutionally
mandated"). It is well established a regulation's validity "does
not turn on a judge's agreement with the responsible decisionmaker
concerning the most appropriate method for promoting significant
government interests."
Albertini, supra, at 689.
In any event, after careful examination of each of the
alternatives suggested by appellants, we cannot conclude that any
of them is an adequate alternative to must-carry for promoting the
Government's legitimate interests. First among appellants'
suggested alternatives is a proposal to revive a more limited set
of must-carry rules, known as the
"Century rules" after the
1987 court decision striking them down, see
Century
Communications Corp. v.
FCC, 835 F.2d
292 (CADC). Those rules included a minimum viewership standard
for eligibility and limited the must-carry obligation
219
to 25 percent of channel capacity. The parties agree only 14
percent of broadcasters added to cable systems under the Cable Act
would be eligible for carriage under the
Century rules. See
Turner Brief 45; Brief for Federal Appellees 45; NAB Brief 49; see
also Declaration of Gregory Klein "21-25 (App. 1141-1143). The
Century rules, for the most part, would require carriage of
the same stations a system would carry without statutory
compulsion. While we acknowledge appellants' criticism of any
rationale that more is better, the scheme in question does not
place limitless mustcarry obligations on cable system operators. In
the final analysis this alternative represents nothing more than
appellants' "'[dis]agreement with the responsible decisionmaker
concerning' ... the degree to which [the Government's] interests
should be promoted."
Ward, supra, at 800 (quoting
Albertini, supra, at 689);
Community for Creative Non-
Violence, 468 U. S., at 299. Congress legislated in the shadow
of
Quincy Cable TV:
Inc. v.
FCC, 768 F.2d
1434 (CADC 1985), and
Century Communications. Its
deliberations reflect awareness of the must-carry rules at issue in
those cases, Senate Report, at 39-41, 62; indeed, in drafting the
must-carry provisions of the Cable Act, Congress made specific
comparisons to the rules struck down in
Quincy, supra. See
House Report, at 65-66; Senate Report, at 61. The record reflects a
deliberate congressional choice to adopt the present levels of
protection, to which this Court must defer.
The second alternative appellants urge is the use of input
selector or
"A/B" switches, which, in combination with
antennas, would permit viewers to switch between cable and
broadcast input, allowing cable subscribers to watch broadcast
programs not carried on cable. Congress examined the use of
AIB switches as an alternative to must-carry and concluded
it was "not an enduring or feasible method of distribution and ...
not in the public interest." § 2(a)(18). The data showed that: many
households lacked adequate antennas to
220
receive broadcast signals, JSCR" 724,725,768 (App. 16091610,
1634);
A/B switches suffered from technical flaws,
id., "718, 721, 738-739, 751-755, 761 (App. 1606, 1608,
16171618, 1624-1626, 1630); viewers might be required to reset
channel settings repeatedly in order to view both UHF and cable
channels, House Report, at 54; and installation and use of the
switch with other common video equipment (such as videocassette
recorders) could be "cumbersome or impossible," Senate Report, at
45, and nn. 115-116; House Report, at 54, and nn. 60-61; see also
JSCR "746, 750, 758767 (App. 1622, 1623, 1629-1634). Even the cable
industry trade association (one of appellants here) determined that
"the
A/B switch is not a workable solution to the carriage
problem." Senate Report, at 45; House Report, at 54. The group's
engineering committee likewise concluded the switches suffered from
technical problems and that no solution "appear[ed] imminent."
Joint Petition for Reconsideration in MM Docket No. 85-349, pp. 6-8
(Dec. 17, 1986) (App. 1606-1607); see also Senate Report, at 45,
and n. 115; House Report, at 54, and n. 60; Must Carry, Hearing
before the Subcommittee on Communications of the Senate Committee
on Commerce, Science, and Transportation, 100th Cong., 1st Sess.,
80 (1989) (statement of Preston Padden) (App. 1608); Hearings on
Cable Television Regulation, at 901, n. 84 (statement of James B.
Hedlund) (App. 1608).
Congress also had before it "considerable evidence," including
two empirical studies, that "it is rare for [cable subscribers]
ever to switch to receive an over-the-air signal," Senate Report,
at 45; House Report, at 54, and n. 62. A 1991 study demonstrated
that even "after several years of a government mandated program of
providing A-B switches [to] consumers and a simultaneous education
program on their use," NAB, A-B Switch Availability and Use (Sept.
23, 1991) (App. 132), and after FCC-mandated technical improvements
to the switch, App. 129, only 11.7 percent of all cable-connected
television sets were attached to an antenna
221
and had an
A/B switch,
id., at 131. Of the small
number of households possessing the switch, an even smaller number
(only 38 percent) had ever used it.
Ibid. See House Report,
at 54, and nn. 62-63. Congress' decision that use of
A/B
switches was not a real alternative to must-carry was a reasonable
one based on substantial evidence of technical shortcomings and
lack of consumer acceptance. The reasonableness of its judgment was
confirmed by additional evidence on remand that
A/B switches
can create signal interference and add complexity to video systems,
factors discouraging their use. See Declaration of Eldon Haakinson
"45-54 (App. 602-609); Supplemental Declaration of Eldon Haakinson
"8-10 (App. 2025-2026); Memorandum from W. Cicora to L. Yaeger et
al., dated June 25, 1993, p. 5 (channels may have to be reset every
time
A/B switch is used) (App. 246).
Appellants also suggest a leased-access regime, under which both
broadcasters and cable programmers would have equal access to cable
channels at regulated rates. Turner Brief 46-47. Appellants do not
specify what kind of regime they would propose, or how it would
operate, making this alternative difficult to compare to the
must-carry rules. Whatever virtues the proposal might otherwise
have, it would reduce the number of cable channels under cable
systems' control in the same manner as must-carry. Because this
alternative is aimed solely at addressing the bottleneck control of
cable operators, it would not be as effective in achieving
Congress' further goal of ensuring that significant programming
remains available for the 40 percent of American households without
cable. Indeed, unless the number of channels set aside for local
broadcast stations were to decrease (sacrificing Congress' interest
in preserving a multiplicity of broadcasters), additional channels
would have to be set aside for cable programmers, further reducing
the channels under the systems' control. Furthermore, Congress was
specific in noting that requiring payment for cable car-
222
riage was inimical to the interests it was pursuing, because of
the burden it would impose on small broadcasters. See House Report,
at 51; Senate Report, at 43, 45. Congress specifically prohibited
such payments under the Cable Act. 47 U. S. C. §§ 534(b)(10),
535(i).
Appellants next suggest a system of subsidies for financially
weak stations. Appellants have not proposed any particular subsidy
scheme, so it is difficult to determine whether this option
presents a feasible means of achieving the Government's interests,
let alone one preferable to must-carry under the First Amendment.
To begin with, a system of subsidies would serve a very different
purpose than mustcarry. Must-carry is intended not to guarantee the
financial health of all broadcasters, but to ensure a base number
of broadcasters survive to provide service to noncable households.
Must-carry is simpler to administer and less likely to involve the
Government in making content-based determinations about
programming. The must-carry rules distinguish between categories of
speakers based solely on the technology used to communicate. The
rules acknowledge cable systems' expertise by according them
discretion to determine which broadcasters to carry on reserved
channels, and (within the Cable Act's strictures) allow them to
choose broadcasters with a view to offering program choices
appealing to local subscribers. Appellants' proposal would require
the Government to develop other criteria for giving subsidies and
to establish a potentially elaborate administrative structure to
make subsidy determinations.
Appellants also suggest a system of antitrust enforcement or an
administrative complaint procedure to protect broadcasters from
cable operators' anticompetitive conduct. See Turner Brief 47-48.
Congress could conclude, however, that the considerable expense and
delay inherent in antitrust litigation, and the great disparities
in wealth and sophistication between the average independent
broadcast station and average cable system operator, would make
these remedies in-
223
adequate substitutes for guaranteed carriage. The record
suggests independent broadcasters simply are not in a position to
engage in complex antitrust litigation, which involves extensive
discovery, significant motions practice, appeals, and the payment
of high legal fees throughout. See JSCR "556-576 (App. 1528-1537);
Meek Declaration' 58 (Record, Defendants' Joint Submission of
Expert Affidavits and Reports in Support of Motion for Summary
Judgment, Vol. ILA, Exh. 2). An administrative complaint procedure,
although less burdensome, would still require stations to incur
considerable expense and delay before enforcing their rights. As it
is, some public stations have been forced by limited resources to
forgo pursuing administrative complaints under the Cable Act to
obtain carriage. See Declaration of Carolyn Lewis' 13 (App.
548-549); Declaration of John Beabout , 11 (App. 526-527). Those
problems would be compounded if instead of proving entitlement
under must-carry, the station had to prove facts establishing an
antitrust violation.
There is a final argument made by appellants that we do not
reach. Appellant Time Warner Entertainment raises in its brief a
separate First Amendment challenge to a subsection of the Cable
Act, 47 U. S. C. § 534(c), that requires carriage on unfilled
must-carry channels of low power broadcast stations if the FCC
determines that the station's programming "would address local news
and informational needs which are not being adequately served by
full power television broadcast stations because of the geographic
distance of such full power stations from the low power station's
community of license." § 534(h)(2)(B). We earlier reserved this
question and invited the District Court to address it on remand.
See
Turner, 512 U. S., at 643-644, n. 6. Because this
question has received "only the most glancing" attention,
ibid., from the District Court and the parties, we have no
more information about "the operation of, and justifications for,
the low-power broadcast provisions,"
ibid., on which to base
an informed determination than we did on the
224
earlier appeal. The District Court's primary opinion disposed of
the question in a perfunctory discussion, 910 F. Supp., at 750-751;
and the dissent explicitly declined to reach the question,
id., at 789. The issue has received even less attention from
the parties. It was not addressed in the jurisdictional statement,
the motions to affirm, or the appellants' oppositions to the
motions to affirm. In over 400 pages of merits briefs, the parties
devoted a total of four paragraphs (two of which were relegated to
footnotes) to conclusory argumentation on this subject, largely
concerning not the merits of the question but whether it was even
properly before us. On this state of the record we have
insufficient basis to make an informed judgment on this discrete
issue. Even if the issue is "fairly included" in the broadly worded
question presented, it is tangential to the main issue, and
prudence dictates that we not decide this question based on such
scant argumentation. See
Socialist Labor Party v.
Gilligan, 406
U. S. 583, 588-589, n. 2 (1972);
Teamsters v.
Denver
Milk Producers, Inc., 334 U. S. 809 (1948)
(per curiam);
see also
Carducci v.
Regan, 714
F.2d 171, 177 (CADC 1983) (Scalia, J.).
III
Judgments about how competing economic interests are to be
reconciled in the complex and fast-changing field of television are
for Congress to make. Those judgments "cannot be ignored or
undervalued simply because [appellants] cas[t] [their] claims under
the umbrella of the First Amendment."
Columbia Broadcasting
v.
Democratic National Committee, 412 U. S., at 103.
Appellants' challenges to must-carry reflect little more than
disagreement over the level of protection broadcast stations are to
be afforded and how protection is to be attained. We cannot
displace Congress' judgment respecting content-neutral regulations
with our own, so long as its policy is grounded on reasonable
factual findings supported by evidence that is substantial for a
legislative determination. Those requirements were met in this
case, and in
225
these circumstances the First Amendment requires nothing more.
The judgment of the District Court is affirmed.
It is so ordered.
JUSTICE STEVENS, concurring.
As JUSTICE KENNEDY clearly explains, the policy judgments made
by Congress in the enactment of legislation that is intended to
forestall the abuse of monopoly power are entitled to substantial
deference.
Ante, at 195-196, 224 and this page. That is true
even when the attempt to protect an economic market imposes burdens
on communication. Cf.
United States v.
Radio Corp. of
America, 358 U.
S. 334 (1959); FTC v.
Superior Court Trial Lawyers
Assn., 493 U. S. 411, 428, n. 12 (1990) (" 'This Court has
recognized the strong governmental interest in certain forms of
economic regulation, even though such regulation may have an
incidental effect on rights of speech and association'" (quoting
NAACP v.
Claiborne Hardware Co., 458 U. S. 886, 912
(1982))). If this statute regulated the content of speech rather
than the structure of the market, our task would be quite
different. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 669, n. 2 (1994) (STEVENS, J., concurring in part and
concurring in judgment). Cf.
Sable Communications of Cal.,
Inc. v.
FCC, 492 U. S. 115, 129
(1989);
Landmark Communications, Inc. v.
Virginia,
435 U. S. 829,
843 (1978). Though I write to emphasize this important point, I
fully concur in the Court's thorough opinion.
JUSTICE BREYER, concurring in part.
I join the opinion of the Court except insofar as Part IIA-1
relies on an anticompetitive rationale. I agree with the majority
that the statute must be "sustained under the First Amendment if it
advances important governmental interests unrelated to the
suppression of free speech and does not burden substantially more
speech than necessary to further those interests."
Ante, at
189 (citing
United States v.
226
O'Brien, 391 U. S. 367, 377
(1968)). I also agree that the statute satisfies this standard. My
conclusion rests, however, not upon the principal opinion's
analysis of the statute's efforts to "promot[e] fair competition,"
see
post, at 230-232, 237-240, but rather upon its
discussion of the statute's other objectives, namely, "'(1)
preserving the benefits of free, over-the-air local broadcast
television,'" and" '(2) promoting the widespread dissemination of
information from a multiplicity of sources,'"
ante, at 189
(quoting
Turner Broadcasting System, Inc. v.
FCC,
512 U. S. 622,
662 (1994)
(Turner)). Whether or not the statute does or
does not sensibly compensate for some significant market defect, it
undoubtedly seeks to provide over-the-air viewers who
lack
cable with a rich mix of over-the-air programming by guaranteeing
the overthe-air stations that provide such programming with the
extra dollars that an additional cable audience will generate. I
believe that this purpose-to assure the over-the-air public "access
to a multiplicity of information sources,"
id., at
663-provides sufficient basis for rejecting appellants' First
Amendment claim.
I do not deny that the compulsory carriage that creates the
"guarantee" extracts a serious First Amendment price. It interferes
with the protected interests of the cable operators to choose their
own programming; it prevents displaced cable program providers from
obtaining an audience; and it will sometimes prevent some cable
viewers from watching what, in its absence, would have been their
preferred set of programs.
Ante, at 214;
post, at
250. This "price" amounts to a "suppression of speech."
But there are important First Amendment interests on the other
side as well. The statute's basic noneconomic purpose is to prevent
too precipitous a decline in the quality and quantity of
programming choice for an ever-shrinking non-cable-subscribing
segment of the public.
Ante, at 190, 191-194. This purpose
reflects what "has long been a basic tenet of national
communications policy," namely, that "the
227
widest possible dissemination of information from diverse and
antagonistic sources is essential to the welfare of the public."
Turner, supra, at 663 (quoting
United States v.
Midwest Video Corp., 406 U. S. 649, 668, n. 27
(1972) (plurality opinion) (quoting
Associated Press v.
United States, 326 U. S. 1, 20 (1945) (internal quotation
marks omitted)); see also
FCC v.
WNCN Listeners
Guild, 450 U. S.
582, 594 (1981). That policy, in turn, seeks to facilitate the
public discussion and informed deliberation, which, as Justice
Brandeis pointed out many years ago, democratic government
presupposes and the First Amendment seeks to achieve.
Whitney v.
California, 274 U. S. 357, 375-376
(1927) (concurring opinion). See also
New York Times Co. v.
Sullivan, 376
U. S. 254, 270 (1964);
Red Lion Broadcasting Co. v.
FCC, 395 U. S.
367, 390 (1969);
Associated Press v.
United States,
supra, at 20. Indeed,
Turner rested in part upon the
proposition that "assuring that the public has access to a
multiplicity of information sources is a governmental purpose of
the highest order, for it promotes values central to the First
Amendment." 512 U. S., at 663.
With important First Amendment interests on both sides of the
equation, the key question becomes one of proper fit. That
question, in my view, requires a reviewing court to determine both
whether there are significantly less restrictive ways to achieve
Congress' over-the-air programming objectives, and also to decide
whether the statute, in its effort to achieve those objectives,
strikes a reasonable balance between potentially speech-restricting
and speech-enhancing consequences.
Ward v.
Rock Against
Racism, 491 U. S.
781, 799-800 (1989);
ante, at 217-218. The majority's
opinion analyzes and evaluates those consequences, and I agree with
its conclusions in respect to both of these matters.
Ante,
at 213-224.
In particular, I note (and agree) that a cable system,
physically dependent upon the availability of space along city
streets, at present (perhaps less in the future) typically faces
little competition, that it therefore constitutes a kind of
bot-
228
tleneck that controls the range of viewer choice (whether or not
it uses any consequent economic power for economically predatory
purposes), and that
some degree-at least a limited degree-of
governmental intervention and control through regulation can prove
appropriate when justified under
O'Brien (at least when not
"content based").
Ante, at 197,208-213; see also Defendants'
Joint Statement of Evidence before Congress "12-21, 31-59 (App.
1254-1258, 1262-1274) (JSCR); Cable Television Consumer Protection
and Competition Act of 1992, § 2(a)(2), P. L. 102-385, 106 Stat.
1460. Cf.
Red Lion, supra, at 377-378, 387-401; 47 CFR §§
73.123, 73.300, 73.598, 73.679 (1969) (Federal Communications
Commission regulations upheld in
Red Lion); United Broadcasting
Co., 10 F. C. C. 515 (1945);
New Broadcasting Co., 6 P
& F Radio Reg. 258 (1950). I also agree that, without the
statute, cable systems would likely carry significantly fewer
over-the-air stations,
ante, at 191, 202205, that station
revenues would therefore decline,
ante, at 208-213, and that
the quality of over-the-air programming on such stations would
almost inevitably suffer,
e. g., JSCR "596,704-706
(App. 1544, 1600-1601); Rebuttal Declaration of Roger G. Noll"
5,11,34,38 (App. 1790, 1793, 1804-1805, 1806). I agree further that
the burden the statute imposes upon the cable system, potential
cable programmers, and cable viewers is limited and will diminish
as typical cable system capacity grows over time.
Finally, I believe that Congress could reasonably conclude that
the statute will help the typical over-the-air viewer (by
maintaining an expanded range of choice) more than it will hurt the
typical cable subscriber (by restricting cable slots otherwise
available for preferred programming). The latter's cable choices
are many and varied, and the range of choice is rapidly increasing.
The former's over-the-air choice is more restricted; and, as cable
becomes more popular, it may well become still more restricted
insofar as the over-the-air market shrinks and thereby, by itself,
becomes
229
less profitable. In these circumstances, I do not believe the
First Amendment dictates a result that favors the cable viewers'
interests.
These and other similar factors discussed by the majority lead
me to agree that the statute survives "intermediate scrutiny,"
whether or not the statute is properly tailored to Congress' purely
economic objectives.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA, JUSTICE THOMAS, and
JUSTICE GINSBURG join, dissenting.
In sustaining the must-carry provisions of the Cable Television
Protection and Competition Act of 1992 (Cable Act), Pub. L.
102-385, §§4-5, 106 Stat. 1460, against a First Amendment challenge
by cable system operators and cable programmers, the Court errs in
two crucial respects. First, the Court disregards one of the
principal defenses of the statute urged by appellees on remand:
that it serves a substantial interest in preserving "diverse,"
"quality" programming that is "responsive" to the needs of the
local community. The course of this litigation on remand and the
proffered defense strongly reinforce my view that the Court adopted
the wrong analytic framework in the prior phase of this case. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 643-651
(1994)
(Turner); id., at 675-680 (O'CONNOR, J., concurring
in part and dissenting in part). Second, the Court misapplies the
"intermediate scrutiny" framework it adopts. Although we owe
deference to Congress' predictive judgments and its evaluation of
complex economic questions, we have an independent duty to identify
with care the Government interests supporting the scheme, to
inquire into the reasonableness of congressional findings regarding
its necessity, and to examine the fit between its goals and its
consequences.
Edenfield v.
Fane, 507 U. S. 761, 770-771
(1993);
Sable Communications of Cal., Inc. v.
FCC,
492 U. S. 115,
129 (1989);
Los Angeles v.
Preferred Communications,
Inc., 476 U. S.
488, 496 (1986);
Landmark
230
Communications, Inc. v.
Virginia, 435 U. S. 829, 843
(1978). The Court fails to discharge its duty here.
I
I did not join those portions of the principal opinion in
Turner holding that the must-carry provisions of the Cable
Act are content neutral and therefore subject to intermediate First
Amendment scrutiny. 512 U. S., at 643-651. The Court there referred
to the "unusually detailed statutory findings" accompanying the
Cable Act, in which Congress recognized the importance of
preserving sources of local news, public affairs, and educational
programming.
Id., at 646; see
id., at 632-634, 648.
Nevertheless, the Court minimized the significance of these
findings, suggesting that they merely reflected Congress' view of
the "intrinsic value" of broadcast programming generally, rather
than a congressional preference for programming with local,
educational, or informational content.
Id., at 648.
In
Turner, the Court drew upon Senate and House Reports
to identify three "interests" that the must-carry provisions were
designed to serve: "(1) preserving the benefits of free,
over-the-air local broadcast television, (2) promoting the
widespread dissemination of information from a multiplicity of
sources, and (3) promoting fair competition in the market for
television programming."
Id., at 662 (citing S. Rep. No.
102-92, p. 58 (1991); H. R. Rep. No. 102-628, p. 63 (1992)). The
Court reiterates these interests here,
ante, at 189-190, but
neither the principal opinion nor the partial concurrence ever
explains the relationship between them with any clarity.
Much of the principal opinion treats the must-carry provisions
as a species of antitrust regulation enacted by Congress in
response to a perceived threat that cable system operators would
otherwise engage in various forms of anticompetitive conduct
resulting in harm to broadcasters.
E. g., ante, at 191,
196-208. The Court recognizes that ap-
231
pellees cannot show an anticompetitive threat to broadcast
television simply by demonstrating that "a few" broadcast stations
would be forced off the air in the absence of mustcarry.
Ante, at 191; see Brief for Federal Appellees 14, 17, 18. No
party has ever questioned that adverse carriage decisions by cable
operators will threaten some broadcasters in some markets. The
notion that Congress premised the must-carry provisions upon a far
graver threat to the structure of the local broadcast system than
the loss of "a few" stations runs through virtually every passage
in the principal
Turner opinion that discusses the
Government interests the provisions were designed to serve. See,
e. g., 512 U. S., at 647 (recognizing substantiality
of interest in "'protecting non cable households from loss of
regular television broadcasting service due to competition
from cable systems'" (quoting
Capital Cities Cable, Inc. v.
Crisp, 467 U.
S. 691, 714 (1984) (emphasis added))); 512 U. S., at 652
("Congress sought to preserve the existing structure of the
Nation's broadcast television medium, ... and, in particular, to
ensure that broadcast television
remains available as a
source of video programming for those without cable" (emphasis
added));
id., at 663 (recognizing interest in "maintaining
the local broadcasting structure");
id., at 664-665
(plurality opinion) (characterizing inquiry as whether Government
"has adequately shown that the economic health of local
broadcasting is in
genuine jeopardy" (emphasis added));
id., at 665 (noting Government's reliance on Congress'
finding that "absent mandatory carriage rules, the continued
viability of local broadcast television would be 'seriously
jeopardized'" (quoting Cable Act, § 2(a)(16) (emphasis added)));
id., at 666 (recognizing Government's assertion that "the
must-carry rules are necessary to protect the
viability of
broadcast television" (emphasis added)). Ostensibly adopting this
framework, the Court now asks whether Congress could reasonably
have thought the must-carry regime necessary to prevent a
"significant reduction in the multiplicity of broad-
232
cast programming sources available to noncable households."
Ante, at 193 (emphasis added).
I fully agree that promoting fair competition is a legitimate
and substantial Government goal. But the Court nowhere examines
whether the breadth of the must-carry provisions comports with a
goal of preventing anticompetitive harms. Instead, in the course of
its inquiry into whether the must-carry provisions are "narrowly
tailored," the principal opinion simply assumes that most adverse
carriage decisions are anticompetitively motivated, and that
must-carry is therefore a measured response to a problem of
anticompetitive behavior.
Ante, at 216-217. We ordinarily do
not substitute unstated and untested assumptions for our
independent evaluation of the facts bearing upon an issue of
constitutional law. See
Schaumburg v.
Citizens for a
Better Environment, 444 U. S. 620, 636
(1980).
Perhaps because of the difficulty of defending the mustcarry
provisions as a measured response to anticompetitive behavior, the
Court asserts an "independent" interest in preserving a
"multiplicity" of broadcast programming sources.
Ante, at
194;
ante, at 226-227 (BREYER, J., concurring in part). In
doing so, the Court posits existence of "conduct that threatens"
the availability of broadcast television outlets, quite apart from
anticompetitive conduct.
Ante, at 194. We are left to wonder
what precisely that conduct might be. Moreover, when separated from
anticompetitive conduct, this interest in preserving a
"multiplicity of broadcast programming sources" becomes poorly
defined. Neither the principal opinion nor the partial concurrence
offers any guidance on what might constitute a "significant
reduction" in the availability of broadcast programming. The proper
analysis, in my view, necessarily turns on the present
distribution of broadcast stations among the local broadcast
markets that make up the national broadcast "system." Whether cable
poses a "significant" threat to a local broadcast market depends
first on how many broadcast stations in
233
that market will, in the absence of must-carry, remain available
to viewers in noncable households. It also depends on whether
viewers actually watch the stations that are dropped or denied
carriage. The Court provides some raw data on adverse carriage
decisions, but it never connects those data to markets and
viewership. Instead, the Court proceeds from the assumptions that
adverse carriage decisions nationwide will affect broadcast markets
in proportion to their size; and that all broadcast programming is
watched by viewers. N either assumption is logical or has any
factual basis in the record.
Appellees bear the burden of demonstrating that the provisions
of the Cable Act restricting expressive activity survive
constitutional scrutiny. See
Turner, supra, at 664. As
discussed below, the must-carry provisions cannot be justified as a
narrowly tailored means of addressing anticompetitive behavior. See
infra, at 235-257;
ante, at 225, 226, 227228 (BREYER,
J., concurring in part). As a result, the Court's inquiry into
whether must-carry would prevent a "significant reduction in the
multiplicity of broadcast programming sources" collapses into an
analysis of an ill-defined and generalized interest in maintaining
broadcast stations, wherever they might be threatened and whatever
their viewership. Neither the principal opinion nor the partial
concurrence ever explains what kind of conduct, apart from
anticompetitive conduct, threatens the "multiplicity" of broadcast
programming sources. Indeed, the only justification advanced by the
parties for furthering this interest is heavily content based. It
is undisputed that the broadcast stations protected by must-carry
are the "marginal" stations within a given market, see
infra, at 244; the record on remand reveals that any broader
threat to the broadcast system was entirely mythical. Pressed to
explain the importance of preserving noncable viewers' access to
"vulnerable" broadcast stations, appellees emphasize that the
must-carry rules are necessary to ensure that broadcast stations
main-
234
tain "diverse," "quality" programming that is "responsive" to
the needs of the local community. Brief for Federal Appellees 13,
30; see Brief for Appellees National Association of Broadcasters et
al. 36-37 (NAB Brief); Tr. of Oral Arg. 29, 42; see also
ante, at 226 (BREYER, J., concurring in part) (justifying
must-carry as a means of preventing a decline in "quality and
quantity of programming choice"). Must-carry is thus justified as a
way of preserving viewers' access to a Spanish or Chinese language
station or of preventing an independent station from adopting a
home-shopping format. NAB Brief 28,33; Brief for Federal Appellees
31; Tr. of Oral Arg.32-33. Undoubtedly, such goals are reasonable
and important, and the stations in question may well be worthwhile
targets of Government subsidies. But appellees' characterization of
must-carry as a means of protecting these stations, like the
Court's explicit concern for promoting" 'community
self-expression'" and the" 'local origination of broadcast
programming,'"
ante, at 192, 193 (brackets omitted), reveals
a content-based preference for broadcast programming. This
justification of the regulatory scheme is, in my view, wholly at
odds with the
Turner Court's premise that must-carry is a
means of preserving "access to free television
program
ming-whatever its content," 512 U. S., at 649
(emphasis added).
I do not read JUSTICE BREYER'S opinion-which analyzes the
must-carry rules in part as a "speech-enhancing" measure designed
to ensure a "rich mix" of over-the-air programming, see
ante, at 226, 227-to treat the content of over-theair
programming as irrelevant to whether the Government's interest in
promoting it is an important one. The net result appears to be that
five Justices of this Court
do not view must-carry as a
narrowly tailored means of serving a substantial governmental
interest in preventing anticompetitive behavior; and that five
Justices of this Court
do see the significance of the
content of over-the-air programming to the Government's and
appellees' efforts to defend the law.
235
Under these circumstances, the must-carry provisions should be
subject to strict scrutiny, which they surely fail.
II
The principal opinion goes to great lengths to avoid
acknowledging that preferences for "quality," "diverse," and
"responsive" local programming underlie the must-carry scheme,
although the partial concurrence's reliance on such preferences is
explicit. See
ante, at 226 (opinion of BREYER, J.). I take
the principal opinion at its word and evaluate the claim that the
threat of anticompetitive behavior by cable operators supplies a
content-neutral basis for sustaining the statute. It does not.
The
Turner Court remanded the case for a determination
whether the must-carry provisions satisfy intermediate scrutiny
under
United States v.
O'Brien, 391 U. S. 367 (1968).
Under that standard, appellees must demonstrate that the must-carry
provisions (1) "furthe[r] an important or substantial government
interest"; and (2) burden speech no more "than is essential to the
furtherance of that interest."
Id., at 377; see also
Ward v.
Rock Against Racism, 491 U. S. 781, 799
(1989). The
Turner plurality found that genuine issues of
material fact remained as to both parts of the
O'Brien
analysis. On whether must-carry furthers a substantial governmental
interest, the
Turner Court remanded the case to test two
essential and unproven propositions: "(1) that unless cable
operators are compelled to carry broadcast stations,
significant
numbers of broadcast stations will be refused carriage on cable
systems; and (2) that the broadcast stations denied carriage will
either
deteriorate to a substantial degree or fail
altogether." 512 U. S., at 666 (emphasis added). As for whether
must-carry restricts no more speech than essential to further
Congress' asserted purpose, the
Turner plurality found
evidence lacking on the extent of the burden that the must-carry
provisions would place on cable operators and cable programmers.
Id., at 667-668.
236
The District Court resolved this case on cross-motions for
summary judgment. As the Court recognizes,
ante, at 211, the
fact that the evidence before Congress might have been in conflict
will not necessarily preclude summary judgment upholding the
must-carry scheme. The question, rather, is what the undisputed
facts show about the reasonableness of Congress' conclusions. We
are not, however, at liberty to substitute speculation for evidence
or to ignore factual disputes that call the reasonableness of
Congress' findings into question. The evidence on remand
demonstrates that appellants, not appellees, are entitled to
summary judgment.
A
The principal opinion devotes substantial discussion to the
structure of the cable industry, see
ante, at 197, 206-207,
a matter that was uncontroversial in
Turner. See,
e.
g., 512 U. S., at 627-628, 632-633, 639-640;
id., at 684
(O'CONNOR, J., concurring in part and dissenting in part). As of
1992, cable already served 60 percent of American households. I
agree with the observation that Congress could reasonably predict
an increase in cable penetration of the local video programming
market.
Ante, at 197. Local franchising requirements and the
expense of constructing a cable system to serve a particular area
make it possible for cable franchisees to exercise a monopoly over
cable service. 512 U. S., at 633. Nor was it ever disputed that
some cable system operators own large numbers of systems
nationwide, or that some cable systems are affiliated with cable
programmers.
Turner Broadcasting v.
FCC, 819 F. Supp.
32, 39-40 (DC 1993) (opinion of Jackson, J.);
id., at 57
(Williams, J., dissenting); Plaintiffs' Response to NAB's Statement
of Material Facts , 4 (Feb. 12, 1993) (App. in
Turner, O. T.
1993, No. 93-44, p. 186); Plaintiff Time Warner's Statement of
Material Facts as to Which There Is No Genuine Issue " 5, 12 (App.
in
Turner, O. T. 1993,
supra, at 198, 199).
237
What was not resolved in
Turner was whether "reasonable
inferences based on substantial evidence," 512 U. S., at 666
(plurality opinion), supported Congress' judgment that the
must-carry provisions were necessary "to prevent cable operators
from exploiting their economic power to the detriment of
broadcasters,"
id., at 649. Because I remain convinced that
the statute is not a measured response to congressional concerns
about monopoly power, see
infra, at 249-256, in my view the
principal opinion's discussion on this point is irrelevant. But
even if it were relevant, it is incorrect.
1
The
Turner plurality recognized that Congress' interest
in curtailing anticompetitive behavior is substantial "in the
abstract." 512 U. S., at 664. The principal opinion now concludes
that substantial evidence supports the congressional judgment that
cable operators have incentives to engage in significant
anticompetitive behavior. It appears to accept two related
arguments on this point: first, that vertically integrated cable
operators prefer programming produced by their affiliated cable
programming networks to broadcast programming,
ante, at
198-199, 200; and second, that potential advertising revenues
supply cable system operators, whether affiliated with programmers
or not, with incentives to prefer cable programming to broadcast
programming,
ante, at 200-202.
To support the first proposition, the principal opinion states
that "[e]xtensive testimony" before Congress showed that in fact
operators do have incentives to favor vertically integrated
programmers.
Ante, at 198. This testimony, noteworthy as it
may be, is primarily that of persons appearing before Congress on
behalf of the private appellees in this case. Compare
ante,
at 198-199, with Competitive Issues in the Cable Television
Industry: Hearing before the Subcommittee on Antitrust, Monopolies
and Business Rights of the Senate Committee on the Judiciary, 100th
Cong., 2d Sess.,
238
543 (1988) (Hearing on Competitive Issues) (statement of Milton
Maltz, representative of Association of Independent Television
Stations, Inc. (INTV), now appellee Association of Local Television
Stations, Inc.) (Record, Defendants' Joint Submission of
Congressional Record (CR) Vol. LC, Exh. 8, p. CR 01882); Cable
Television Regulation: Hearings on H. R. 1303 and H. R. 2546 before
the Subcommittee on Telecommunications and Finance of the House
Committee on Energy and Commerce, 102d Cong., 1st Sess., 858 (1992)
(statement of James B. Hedlund, president of INTV) (CR Vol. LJ,
Exh. 18, at CR 07862);
id., at 752 (statement of Edward O.
Fritts, president of appellee NAB) (CR Vol. LJ, Exh. 18, at CR
07756); id., at 701 (statement of Gene Kimmelman,
legislative director of appellee Consumer Federation of America)
(CR Vol. LJ, Exh. 18, at CR 07706). It is appropriate to regard the
testimony of interested persons with a degree of skepticism when
our task is to engage in "'independent judgment of the facts
bearing on an issue of constitutional law.'"
Turner, supra,
at 666 (plurality opinion) (quoting
Sable Communications of
Cal., Inc. v.
FCC, 492 U. S., at 129). Moreover, even
accepting as reasonable Congress' conclusion that cable operators
have incentives to favor affiliated programmers, Congress has
already limited the number of channels on a cable system that can
be occupied by affiliated programmers. 47 U. S. C. § 533(f)(1)(B);
47 CFR § 76.504 (1995). Once a cable system operator reaches that
cap, it can no longer bump a broadcaster in favor of an affiliated
programmer. If Congress were concerned that broadcasters favored
too many affiliated programmers, it could simply adjust the cap.
Must-carry simply cannot be justified as a response to the
allegedly "substantial" problem of vertical integration.
The second argument, that the quest for advertising revenue will
supply cable operators with incentives to drop local broadcasters,
takes two forms. First, some cable programmers offer blank slots
within a program into which a cable operator can insert
advertisements; appellees argue that
239
"[t]he opportunity to sell such advertising gives cable
programmers an additional value to operators above broadcast
stations .... " Brief for Federal Appellees 24. But that
"additional value" arises only because the must-carry provisions
require cable operators to carry broadcast signals without
alteration. 47 U. S. C. § 534(b)(3). Judge Williams was correct in
noting that the Government cannot have "a 'substantial interest' in
remedying a competitive distortion that arises entirely out of a
detail in its own purportedly remedial legislation." 910 F. Supp.
734, 777 (DC 1995) (dissenting opinion). Second, appellees claim
that since cable operators compete directly with broadcasters for
some advertising revenue, operators will profit if they can drive
broadcasters out of the market and capture their advertising
revenue. Even if the record before Congress included substantial
evidence that "advertising revenue would be of increasing
importance to cable operators as subscribership growth began to
flatten,"
ante, at 203, it does not necessarily follow that
Congress could reasonably find that the quest for advertising
revenues supplies cable operators with incentives to engage in
predatory behavior, or that must-carry is a reasonable response to
such incentives. There is no dispute that a cable system depends
primarily upon its subscriber base for revenue. A cable operator is
therefore unlikely to drop a widely viewed station in order to
capture advertising revenueswhich, according to the figures of
appellees' expert, account for between one and five percent of the
total revenues of most large cable systems. Declaration of James N.
Dertouzos , 22 (App. 967). In doing so, it would risk losing
subscribers. Nevertheless, appellees contend that cable operators
will drop some broadcast stations in spite of, and not because of,
viewer preferences. The principal opinion suggests that viewers are
likely to subscribe to cable even though they prefer certain
over-the-air programming to cable programming, because they would
be willing to trade access to their preferred channel for access to
dozens of cable
240
channels.
Ante, at 202. Even assuming that, at the
margin, advertising revenues would drive cable systems to drop some
stations-invariably described as "vulnerable" or "smaller"
independents, see NAB Brief 22; Brief for Federal Appellees 25, and
n. 14-the strategy's success would depend upon the additional
untested premise that the advertising revenues freed by dropping a
broadcast station will flow to cable operators rather than to
other broadcasters.
2
Under the standard articulated by the
Turner plurality,
the conclusion that must-carry serves a substantial governmental
interest depends upon the "essential propositio[n]" that, without
must-carry, "significant numbers of broadcast stations will be
refused carriage on cable systems." 512 U. S., at 666. In analyzing
whether this undefined standard is satisfied, the Court focuses
almost exclusively on raw numbers of stations denied carriage or
"repositioned"-that is, shifted out of their traditional channel
positions.
The Court begins its discussion of evidence of adverse carriage
decisions with the 1988 study sponsored by the Federal
Communications Commission (FCC).
Ante, at 202-203; see Cable
System Broadcast Signal Carriage Survey, Staff Report by the Policy
and Rules Division, Mass Media Bureau (Sept. 1, 1988) (App. 37).
But in
Turner, the plurality criticized this very study,
noting that it did not indicate the timeframe within which carriage
denials occurred or whether the stations were later restored to
their positions. 512 U. S., at 667. As for the evidence in the
record before Congress, these gaps persist; the Court relies on a
study of
public television stations to support the
proposition that "in the vast majority of cases, dropped stations
were not restored to the cable service."
Ante, at 203.
In canvassing the additional evidence offered on remand, the
Court focuses on the suggestion of one of appellees' experts that
the 1988 FCC survey underestimated the number
241
of drops of broadcast stations in the non-must-carry era. The
data do not indicate which of these stations would now qualify for
mandatory carriage. Appellees' expert frames the relevant drop
statistic as "subscriber instances"-that is, the number of drop
instances multiplied by the number of cable subscribers affected.
Declaration of Tom Meek , 17 (Meek Declaration) (App. 623).
Two-thirds of the "subscriber instances" of drops existing as of
mid-1992 remained uncured as of mid-1994, fully 19 months after the
present must-carry rules went into effect. Meek Declaration,
Attachment C (Record, Defendants' Joint Submission of Expert
Affidavits and Reports in Support of Motion for Summary Judgment,
Vol. ILA, Exh. 2). The Court discounts the importance of whether
dropped stations now qualify for mandatory carriage, on the ground
that requiring any such showing places an "improper burden" on the
Legislative Branch.
Ante, at 213. It seems obvious, however,
that if the mustcarry rules will not reverse those adverse carriage
decisions on which appellees rely to illustrate the Government
"interest" supporting the rules, then a significant question
remains as to whether the rules in fact serve the articulated
interest. Without some further analysis, I do not see how the Court
can, in the course of its independent scrutiny on a question of
constitutional law, deem Congress' judgment "reasonable."
In any event, the larger problem with the Court's approach is
that neither the FCC study nor the additional evidence on remand
canvassed by the Court,
ante, at 204-207, says anything
about the broadcast markets in which adverse carriage decisions
take place. The Court accepts Congress' stated concern about
preserving the availability of a "multiplicity" of broadcast
stations, but apparently thinks it sufficient to evaluate that
concern in the abstract, without considering how much local service
is already available in a given broadcast market.
Ante, at
212-213; see also
ante, at 226-227 (BREYER, J., concurring
in part). I address this gap in the Court's discussion at greater
length below,
infra, at 247-250,
242
by exammmg the reasonableness of Congress' prediction that
adverse carriage decisions will inflict severe harm on broadcast
stations.
Nor can we evaluate whether must-carry is necessary to serve an
interest in preserving broadcast stations without examining the
value of the stations protected by the mustcarry scheme to viewers
in noncable households. By disregarding the distribution and
viewership of stations not carried on cable, the Court upholds the
must-carry provisions without addressing the interests of the
over-the-air television viewers that Congress purportedly seeks to
protect. See
Turner, 512 U. S., at 647 (describing interest
in "protecting
noncable households from loss of regular
television broadcasting service" (emphasis added; internal
quotation marks omitted));
id., at 652 (describing interest
in ensuring that broadcast television remains available as a source
of video programming
for those without cable); ante, at 193
(describing interest in preventing "any significant reduction in
the multiplicity of broadcast programming sources available to
noncable households" (emphasis added)). The Court relies on
analyses suggesting that, as of 1992, the typical independent
commercial broadcaster was being denied carriage on cable systems
serving 47 percent of subscribers in its local market, and the
typical noncommercial station was denied carriage on cable systems
serving 36 percent of subscribers in its local market.
Ante,
at 204. The
only analysis in the record of the relationship
between carriage and noncable viewership favors the appellants. A
1991 study by Federal Trade Commission staff concluded that most
cable systems voluntarily carried broadcast stations with any
reportable ratings in noncable households and that most instances
of noncarriage involved "relatively remote (and duplicated) network
stations, or local stations that few viewers watch." Carriage of
Television Broadcast Signals by Cable Television Systems, Reply
Comment of the Staff of the Bureau of Economics and the San
Francisco Re-
243
gional Office of the Federal Trade Commission, p. 3 (Nov. 26,
1991) (App. 163); see also Declaration of Stanley M. Besen (Besen
Declaration) (App. 808, 818); Second Declaration of Stanley M.
Besen (App. 1812) (presenting data that (1) the typical cable
subscriber was served by a cable system carrying local broadcast
stations accounting for 97 percent of viewing in noncable
households; and (2) the typical cable subscriber was served by a
cable system carrying 90 percent of all local broadcast stations
with any reportable ratings and 30 percent of all local broadcast
stations with no reportable ratings).
Appellees claim there are various methodological flaws in each
study, including appellants' expert's reliance on Nielsen data to
measure viewership shares. A protective order entered by the
District Court in this case prevents the parties from contesting
the accuracy of such data. App. 321. But appellees-who bear the
burden of proof in this case-offer no alternative measure of the
viewership in noncable households of stations dropped or denied
carriage. Instead, appellees and their experts repeatedly emphasize
the importance of preserving "vulnerable" or "marginal" independent
stations serving "relatively small" audiences. Brief for Federal
Appellees 14, 17, 25, n. 14; NAB Brief 31; see also Deposition of
James N. Dertouzos (App. 381) (describing broadcast stations
affected by carriage denials as "[s]tations on the margin of cable
operator decisionmaking now and in the future"); Deposition of
Roger G. Noll (App. 446) (cable operators' advertising incentives
will operate "at the margin" and affect "weaker stations, UHF
independent stations");
id., at 450 (stations dropped will
be "[t]hose that have the lowest audience ratings combined with the
absence of a specific target audience"); Deposition of Harry
Shooshan III (App. 477) (must-carry has benefited "stations that
were not as strong, that were marginal"); Reply Declaration of
Roger G. Noll' 19 (App. 2009) ("While frequently ... the stations
not carried by cable systems have low ratings, the point is
244
this: even the lowest rated commercial stations attract viewers,
and the lowest rated noncommercial stations attract members"). The
Court suggests that it is appropriate to disregard the low noncable
viewership of stations denied carriage, because in some instances
cable viewers preferred the dropped broadcast channels to
the cable channels that replaced them.
Ante, at 206. The
viewership statistics in question, as well as their significance,
are sharply disputed, but they are also irrelevant. The issue is
whether the Government can demonstrate a substantial interest in
forced carriage of certain
broadcast stations, for the
benefit of viewers who lack access to cable. That inquiry is not
advanced by an analysis of relative
cable household
viewership of broadcast and cable programming. When appellees are
pressed to explain the Government's "substantial interest" in
preserving noncable viewers' access to "vulnerable" or "marginal"
stations with "relatively small" audiences, it becomes evident that
the interest has nothing to do with anticompetitive behavior, but
has everything to do with content-preserving "quality" local
programming that is "responsive" to community needs. Brief for
Federal Appellees 13, 30. Indeed, JUSTICE BREYER expressly declines
to accept the anticompetitive rationale for the must-carry rules
embraced by the principal opinion, and instead explicitly relies on
a need to preserve a "rich mix" of "quality" programming.
Ante, at 226 (opinion concurring in part).
3
I turn now to the evidence of harm to broadcasters denied
carriage or repositioned. The Court remanded for a determination
whether broadcast stations denied carriage would be at " 'serious
risk of financial difficulty'" and would "'deteriorate to a
substantial degree or fail altogether.'"
Ante, at 208
(quoting
Turner, 512 U. S., at 667, 666). The
Turner
plurality noted that there was no evidence that "local broadcast
stations have fallen into bankruptcy, turned in their
245
broadcast licenses, curtailed their broadcast operations, or
suffered a serious reduction in operating revenues" because of
adverse carriage decisions.
Id., at 667. The record on
remand does not permit the conclusion, at the summary judgment
stage, that Congress could reasonably have predicted serious harm
to a significant number of stations in the absence of
must-carry.
The purported link between an adverse carriage decision and
severe harm to a station depends on yet another untested premise.
Even accepting the conclusion that a cable system operator has a
monopoly over
cable services to the home,
supra, at
237, it does not necessarily follow that the operator also has a
monopoly over all
video services to cabled households. Cable
subscribers using an input selector switch and an antenna can
receive broadcast signals. Widespread use of such switches would
completely eliminate any cable system "monopoly" over sources of
video input. See 910 F. Supp., at 786 (Williams, J., dissenting).
Growing use of direct-broadcast satellite television also tends to
undercut the notion that cable operators have an inevitable
monopoly over video services entering cable households. See,
e. g., Farhi, Dishing Out the Competition to Cable
TV; Washington Post, Oct. 12, 1996, at Hi, col. 3.
In the Cable Act, Congress rejected the wisdom of any
"substantial societal investment" in developing input selector
switch technology. § 2(a)(18). In defending this choice, the Court
purports to identify "substantial evidence of technological
shortcomings" that prevent widespread, efficient use of such
devices. But nearly all of the "data" in question are drawn from
sources predating the enactment of must-carry by roughly six years.
Compare
ante, at 219-220, with Defendants' Joint Statement
of Evidence Before Congress' 725 (JSCR) (citing ELRA Group, Inc.,
Outdoor Antennas, Reception of Local Television Signals and Cable
Television i-ii (Jan. 28, 1986), App. H to NAB Testimony in Cable
Legislation before the Subcommittee on Telecommunications and
246
Finance of the House Committee on Energy and Commerce, 101st
Cong., 2d Sess. (May 16, 1990)) (CR Vol. LL, Exh. 22, at CR 08828);
JSCR "759-760 (App. 1629-1630) (citing Comments of INTV in MM
Docket No. 85-349, at 73 (Jan. 29,1986)) (CR Vol. LBB, Exh. 162, at
CR 15901-15902); JSCR , 758 (App. 1628) (citing Comments of NAB in
MM Docket No. 85-349, at 23-24 (Jan. 29, 1986)) (CR Vol. LBB, Exh.
165, at CR 16183-16184); JSCR "718,724,751-752,754-755, 761-762
(App. 1605-1607, 1609-1610, 1624-1627, 1630-1631) (citing Joint
Petition for Reconsideration in MM Docket No. 85-349 (Dec. 17,
1986)) (CR Vol. LDD, Exh. 183, at CR 16726-16839); JSCR "738-739,
764, 767 (App. 1617-1618, 1632-1634) (citing Petition for
Reconsideration by Adelphia Communications Corp. et al. in MM
Docket No. 85-349, at 27-32 (Jan. 12, 1987)) (CR Vol. LDD, Exh.
184, at CR 1689216897). The Court notes the importance of deferring
to congressional judgments about the "interaction of industries
undergoing rapid economic and technological change."
Ante,
at 196. But this principle does not require wholesale deference to
judgments about rapidly changing technologies that are based on
unquestionably outdated information.
The Court concludes that the evidence on remand meets the
threshold of harm established in
Turner. The Court begins
with the "[c]onsiderable evidence" that broadcast stations denied
carriage have fallen into bankruptcy.
Ante, at 209. The
analysis, however, does not focus on features of the market in
which these stations were located or on the size of the audience
they commanded. The "considerable evidence" relied on by the Court
consists of repeated references to the bankruptcies of the same 23
commercial independent stations-apparently, new stations. See JSCR
"659, 671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587); Hearing
on Competitive Issues, at 548 (statement of Milton Maltz) (CR Vol.
LC, Exh. 8, at CR 01887). Because the must-carry provisions have
never been justified as a means of
enhancing broadcast
television, I do not understand the
247
relevance of this evidence, or of the evidence concerning the
difficulties encountered by
new stations seeking financing.
See
ante, at 209 (citing JSCR "643-658 (App.
1564-1576)).
The Court also claims that the record on remand reflects
"considerable evidence" of stations curtailing their broadcast
operations or suffering reductions in operating revenues.
Ante, at 209. Most of the anecdotal accounts of harm on
which the Court relies are sharply disputed. Compare JSCR "618,
619, 622, 623, 692 (App. 1553-1555, 1591), with Time Warner
Entertainment Company, L. P.'s Broadcast Station Rebuttal , 8 (App.
2299) (ABC affiliate claiming harm from denial of carriage
experienced $3.8 million net revenue increase between 1986 and
1992);
id., , 111 (App. 2403) (Home Shopping Network
affiliate did not report to Congress that it was harmed by cable
operator conduct between 1986 and 1992);
id., , 83 (App.
2372-2373) (station alleged to have lost half of its cable carriage
in fact obtained carriage on systems serving 80 percent of total
cable subscribers within area of dominant influence);
id., ,
94 (App. 2385) (station claiming harm from denial of carriage
experienced a $1.13 million net revenue increase between 1986 and
1993); id., , 30 (App. 2318) (some systems on which station
claimed anticompetitive carriage denials were precluded from
carrying station due to signal strength and quality problems).
Congress' reasonable conclusions are entitled to deference, and for
that reason the fact that the evidence is in conflict will not
necessarily preclude summary judgment in appellees' favor.
Nevertheless, in the course of our independent review, we cannot
ignore sharp conflicts in the record that call into question the
reasonableness of Congress' findings.
Moreover, unlike other aspects of the record on remand, the
station-specific accounts cited by the Court do permit an
evaluation of trends in the various broadcast markets, or "areas of
dominant influence," in which carriage denials allegedly caused
harm. The Court does not conduct this sort
248
of analysis. Were it to do SO, the Court would have to recognize
that all but
one of the commercial broadcast stations cited
as claiming a curtailment in operations or a decline in revenue was
broadcasting within an area of dominant influence that experienced
net growth, or at least no net reduction, in the number of
commercial broadcast stations operating during the non-must-carry
era. See Besen Declaration, Exh. 11 (App. 861-869); cf. JSCR , 618
(App. 1553) (station claiming harm within Cedar Rapids market, with
four commercial broadcast stations in 1987 and five in 1992);
id., , 620 (App. 1554) (station claiming harm within Tulsa
market, with seven commercial broadcast stations in 1987 and 1992);
id., , 623 (App. 1554) (station claiming harm within New
York City market, with 14 commercial broadcast stations in 1987 and
1992);
id., , 692 (App. 1591) (station claiming harm within
Salt Lake City market, with five commercial broadcast stations in
1987 and eight in 1992);
id., , 695 (App. 15931594) (station
claiming harm within Honolulu market, with seven commercial
broadcast stations in 1987 and nine in
1992); id., , 703
(App. 1599) (station claiming harm within Grand Rapids market, with
seven commercial broadcast stations in 1987 and 1992). Indeed, in
499 of 504 areas of dominant influence nationwide, the number of
commercial broadcast stations operating in 1992 equaled or exceeded
the number operating in 1987. Besen Declaration, Exh. 11
(App.861-869). Only two areas of dominant influence experienced a
reduction in the number of noncommercial broadcast stations
operating between 1987 and 1992.
Ibid. (App. 871-880).
In sum, appellees are not entitled to summary judgment on
whether Congress could conclude, based on reasonable inferences
drawn from substantial evidence, that "'absent legislative action,
the free local off-air broadcast system is endangered.'"
Ante, at 209 (quoting S. Rep. No. 102-92, at 42). The Court
acknowledges that the record contains much evidence of the health
of the broadcast industry, including
249
evidence that 263 new broadcast stations signed on the air in
the period without must-carry rules, evidence of growth in
stations' advertising revenue, and evidence of voluntary carriage
of broadcast stations accounting for virtually all measurable
viewership in noncable households.
Ante, at 210-211. But the
Court dismisses such evidence, emphasizing that the question is not
whether Congress correctly determined that must-carry is necessary
to prevent significant financial hardship to a substantial number
of stations, but whether "the legislative conclusion was reasonable
and supported by substantial evidence in the record before
Congress."
Ante, at 211. Even accepting the Court's
articulation of the relevant standard, it is not properly applied
here. The principal opinion disavows a need to closely scrutinize
the logic of the regulatory scheme at issue on the ground that it
"need not put [its] imprimatur on Congress' economic theory in
order to validate the reasonableness of its judgment."
Ante,
at 208. That approach trivializes the First Amendment issue at
stake in this case. A highly dubious economic theory has been
advanced as the "substantial interest" supporting a First Amendment
burden on cable operators and cable programmers. In finding that
must-carry serves a substantial interest, the principal opinion
necessarily accepts that theory. The partial concurrence does not,
but neither does it articulate what threat to the availability of a
"multiplicity" of broadcast stations would exist in a perfectly
competitive market.
B
I turn now to the second portion of the
O'Brien inquiry,
which concerns the fit between the Government's asserted interests
and the means chosen to advance them. The Court observes that
"broadcast stations gained carriage on 5,880 channels as a result
of must-carry," and recognizes that this forced carriage imposes a
burden on cable system operators and cable programmers.
Ante, at 215. But the Court also concludes that the other
30,006 cable channels occupied
250
by broadcast stations are irrelevant to measuring the burden of
the must-carry scheme. The must-carry rules prevent operators from
dropping these broadcast stations should other more desirable cable
programming become available, even though operators have carried
these stations voluntarily in the past. The must-carry requirements
thus burden an operator's First Amendment freedom to exercise
unfettered control over a number of channels in its system, whether
or not the operator's present choice is aligned with that of the
Government.
Even assuming that the Court is correct that the 5,880 channels
occupied by added broadcasters "represent the actual burden of the
regulatory scheme,"
ibid., the Court's leap to the
conclusion that must-carry "is narrowly tailored to preserve a
multiplicity of broadcast stations,"
ante, at 215216, is
nothing short of astounding. The Court's logic is circular.
Surmising that most of the 5,880 channels added by the regulatory
scheme would be dropped in its absence, the Court concludes that
the figure also approximates the "benefit" of must-carry. Finding
the scheme's burden "congruent" to the benefit it affords, the
Court declares the statute narrowly tailored. The Court achieves
this result, however, only by equating the
effect of the
statute-requiring cable operators to add 5,880 stations-with the
governmental
interest sought to be served. The Court's
citation of
Ward v.
Rock Against Racism, 491 U. S. 781 (1989),
reveals the true nature of the interest at stake. The "evi[l] the
Government seeks to eliminate,"
id., at 799, n. 7, is not
the failure of cable operators to carry
these 5,880
stations. Rather, to read the first half of the principal
opinion, the "evil" is
anticompetitive behavior by cable
operators. As a factual matter, we do not know whether these
stations were not carried because of anticompetitive impulses.
Positing the effect of a statute as the governmental interest "can
sidestep judicial review of almost any statute, because it makes
all statutes look narrowly tailored."
Simon &
Schuster, Inc. v.
Members of
251
N.
Y. State Crime Victims Bd., 502 U. S. 105, 120
(1991). Without a sense whether
most adverse carriage
decisions are anticompetitively motivated, it is improper to
conclude that the statute is narrowly tailored simply because it
prevents
some adverse carriage decisions. See
Board of
Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 480 (1989)
(scope of law must be "in proportion to the interest served")
(internal quotation marks omitted).
In my view, the statute is not narrowly tailored to serve a
substantial interest in preventing anticompetitive conduct. I do
not understand JUSTICE BREYER to disagree with this conclusion.
Ante, at 227 (examining fit between "speechrestricting and
speech-enhancing consequences" of mustcarry). Congress has
commandeered up to one-third of each cable system's channel
capacity for the benefit of local broadcasters, without any regard
for whether doing so advances the statute's alleged goals. To the
extent that Congress was concerned that anticompetitive impulses
would lead vertically integrated operators to prefer those
programmers in which the operators have an ownership stake, the
Cable Act is overbroad, since it does not impose its requirements
solely on such operators. An integrated cable operator cannot
satisfy its must-carry obligations by allocating a channel to an
unaffiliated cable programmer. And must-carry blocks an operator's
access to up to one-third of the channels on the system, even if
its affiliated programmer provides programming for only a single
channel. The Court rejects this logic, finding the possibility that
the must-carry regime would require reversal of a benign carriage
decision not "so prevalent that must-carry is substantially
overbroad."
Ante, at 216. The principal opinion reasons that
"cable systems serving 70 percent of subscribers are vertically
integrated with cable programmers,
so anticompetitive motives
may be implicated in a majority of systems' decisions not to carry
broadcasters." Ante, at 216-217 (emphasis added). It is unclear
whether the principal opinion means that anticompetitive
252
motives may be implicated in a majority of
decisions, or
in decisions by a majority of
systems. In either case, the
principal opinion's conclusion is wholly speculative. We do not
know which of these vertically integrated systems are affiliated
with one cable programmer and which are affiliated with five cable
programmers. Moreover, Congress has placed limits upon the number
of channels that can be used for affiliated programming. 47 U. s.
C. § 533(f)(1)(B). The principal opinion does not suggest why these
limits are inadequate or explain why, once a system reaches the
limit, its remaining carriage decisions would also be
anticompetitively motivated. Even if the channel limits are
insufficient, the principal opinion does not explain why requiring
carriage of
broadcast stations on
one-third of the
system's channels is a measured response to the problem.
Finally, I note my disagreement with the Court's suggestion that
the availability of less-speech-restrictive alternatives is never
relevant to
O'Brien's narrow tailoring inquiry.
Ante,
at 217-218. The
Turner Court remanded this case in part
because a plurality concluded that "judicial findings concerning
the availability and efficacy of constitutionally acceptable less
restrictive means of achieving the Government's asserted interests"
were lacking in the original record. 512 U. S., at 668 (internal
quotation marks omitted). The Court's present position on this
issue is puzzling.
Our cases suggest only that we have not interpreted the narrow
tailoring inquiry to "require elimination of
all less
restrictive alternatives."
Fox, supra, at 478. Put another
way, we have refrained from imposing a
least-restrictivemeans requirement in cases involving
intermediate First Amendment scrutiny.
Ward, supra, at 798
(time, place, and manner restriction);
Clark v.
Community
for Creative NonViolence, 468 U. S. 288, 293 (1984)
(same);
Fox, supra, at 478 (commercial speech). It is one
thing to say that a regulation need not be the
least-speech-restrictive means of serving an important governmental
objective. It is quite another to
253
suggest, as I read the majority to do here, that the
availability of less-speech-restrictive alternatives cannot
establish or confirm that a regulation is substantially broader
than necessary to achieve the Government's goals. While the
validity of a Government regulation subject to intermediate First
Amendment scrutiny does not turn on our "agreement with the
responsible decisionmaker concerning the most appropriate method
for promoting significant government interests,"
United
States v.
Albertini, 472 U. S. 675, 689
(1985), the availability of less intrusive approaches to a problem
serves as a benchmark for assessing the reasonableness of the fit
between Congress' articulated goals and the means chosen to pursue
them,
Rubin v.
Coors Brewing Co., 514 U. S. 476, 490-491
(1995).
As shown
supra, at 251-252 and this page, in this case it
is plain without reference to any alternatives that the mustcarry
scheme is "substantially broader than necessary,"
Ward, 491
U. S., at 800, to serve the only governmental interest that the
principal opinion fully explains-preventing unfair competition. If
Congress truly sought to address anticompetitive behavior by cable
system operators, it passed the wrong law. See
Turner,
supra, at 682 (O'CONNOR, J., concurring in part and dissenting
in part) ("That some speech within a broad category causes harm ...
does not justify restricting the whole category"). Nevertheless,
the availability of less restrictive alternatives-a leased access
regime and subsidies-reinforces my conclusion that the must-carry
provisions are overbroad.
Consider first appellants' proposed leased access scheme, under
which a cable system operator would be required to make a specified
proportion of the system's channels available to broadcasters and
independent cable programmers alike at regulated rates. Leased
access would directly address both vertical integration and
predatory behavior, by placing broadcasters and cable programmers
on a level playing field for access to cable. The principal opinion
never ex-
254
plicitly identifies any threat to the availability of broadcast
television to noncable households
other than anticompetitive
conduct, nor does JUSTICE BREYER'S partial concurrence.
Accordingly, to the extent that leased access would address
problems of anticompetitive behavior, I fail to understand why it
would not achieve the goal of "ensuring that significant
programming remains available" for noncable households.
Ante, at 221. The Court observes that a leased access regime
would, like must-carry, "reduce the number of cable channels under
cable systems' control in the same manner as must-carry."
Ibid. No leased access scheme is currently before the Court,
and I intimate no view on whether leased access, like must-carry,
imposes unacceptable burdens on cable operators' free speech
interests. It is important to note, however, that the Court's
observation that a leased access scheme may, like must-carry,
impose First Amendment burdens does not dispose of the narrow
tailoring inquiry in this case. As noted, a leased access regime
would respond directly to problems of vertical integration and
problems of predatory behavior. Must-carry quite clearly does not
respond to the problem of vertical integration.
Supra, at
251253. In addition, the must-carry scheme burdens the rights of
cable programmers
and cable operators; there is no
suggestion here that leased access would burden cable
programmers in the same way as must-carry does. In both of
these respects, leased access is a more narrowly tailored guard
against anticompetitive behavior. Finally, if, as the Court
suggests, Congress were concerned that a leased access scheme would
impose a burden on "small broadcasters" forced to pay for access,
subsidies would eliminate the problem.
Subsidies would not, of course, eliminate anticompetitive
behavior by cable system operators-a problem that Congress could
address directly or through a leased-access scheme. Appellees
defend the must-carry provisions, however, not only as a means of
preventing anticompetitive
255
behavior, but also as a means of protecting "marginal" or
"vulnerable" stations, even if they are
not threatened by
anticompetitive behavior. The principal opinion chooses not to
acknowledge this interest explicitly, although JUSTICE BREYER does.
Even if this interest were content neutralwhich it is not-subsidies
would address it directly. The Court adopts appellees' position
that subsidies would serve a "very different purpose than
must-carry. Must-carry is intended not to guarantee the financial
health of all broadcasters, but to ensure a base number of
broadcasters survive to provide service to noncable households."
Ante, at 222; see Brief for Federal Appellees 47. To the
extent that JUSTICE BREYER sees must-carry as a "speech-enhancing"
measure designed to guarantee over-the-air broadcasters "extra
dollars,"
ante, at 226, it is unclear why subsidies would
not fully serve that interest. In any event, I take appellees'
concern to be that subsidies, unlike must-carry, would save some
broadcasters that would not survive even
with cable
carriage. There is a straightforward solution to this problem. If
the Government is indeed worried that imprecision in allocation of
subsidies would prop up stations that would not survive even with
cable carriage, then it could tie subsidies to a percentage of
stations' advertising revenues (or, for public stations, member
contributions), determined by stations' access to viewers. For
example, in a broadcast market where 50 percent of
television-viewing households subscribe to cable, a broadcaster has
access to all households without cable as well as to those
households served by cable systems on which the broadcaster has
secured carriage. If a broadcaster is carried on cable systems
serving only 20 percent of cable households (i.
e., 10
percent of all television-viewing households in the broadcast
market), the broadcaster has access to 60 percent of the
televisionviewing households. If the Government provided a subsidy
to compensate for the loss in advertising revenue or member
contributions that a station would sustain by virtue of its
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failure to reach 40 percent of its potential audience, it could
ensure that its allocation would do no more than protect those
broadcasters that would survive with full access to
television-viewing households. In sum, the alleged barrier to a
precise allocation of subsidies is not insurmountable. The Court
also suggests that a subsidy scheme would "involve the Government
in making content-based determinations about programming."
Ante, at 222. Even if that is so, it does not distinguish
subsidies from the must-carry provisions. In light of the principal
opinion's steadfast adherence to the position that a preference for
"diverse" or local-content broadcasting is not a content-based
preference, the argument is ironic indeed.
III
Finally, I note my disagreement with the Court's decision to
sidestep a question reserved in
Turner, see 512 U. S., at
643-644, n. 6; addressed by the District Court below, 910 F. Supp.,
at 750 (Sporkin, J.); fairly included within the question presented
here; and argued by one of the appellants: whether the must-carry
rules requiring carriage of low power stations, 47 U. S. C. §
534(c), survive constitutional scrutiny. A low power station
qualifies for carriage only if the FCC determines that the
station's programming "would address local news and informational
needs which are not being adequately served by full power
television broadcast stations because of the geographic distance of
such full power stations from the low power station's community of
license." § 534(h)(2)(B). As the
Turner Court noted, "this
aspect of § 4 appears to single out certain low-power broadcasters
for special benefits on the basis of content." 512 U. S., at 644,
n. 6. Because I believe that the must-carry provisions fail even
intermediate scrutiny, it is clear that they would fail scrutiny
under a stricter content-based standard.
In declining to address the rules requiring carriage of low
power stations, the Court appears to question whether the
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issue was fairly included within the question presented or
properly preserved by the parties.
Ante, at 224. This
position is somewhat perplexing. The Court in
Turner
apparently found the issue both fairly included within the
strikingly similar question presented there, compare Brief for
Federal Appellees in
Turner, O. T. 1993, No. 93-44, p. I,
with Brief for Federal Appellees I, and properly preserved despite
the lack of specific argumentation devoted to this subsection of
the challenged statute in the jurisdictional statement there, see
Juris. Statement in
Turner, O. T. 1993, No. 93-44, pp.
11-28. The Court's focus on the quantity of briefing devoted to the
subject,
ante, at 224, ignores the fact that there are two
groups of appellants challenging the judgment below-cable operators
and cable programmers-and that the issue is of more interest to the
former than to the latter. It also seems to suggest that a party
defending a judgment can defeat this Court's review of a question
simply by ignoring its adversary's position on the merits.
In any event, the Court lets stand the District Court's
seriously flawed legal reasoning on the point. The District Court
concluded that the provisions "are very close to content-based
legislation triggering strict scrutiny," but held that they do not
"cross the line." 910 F. Supp., at 750. That conclusion appears to
have been based on the fact that the low power provisions are
viewpoint neutral.
Ibid. Whether a provision is
viewpoint neutral is irrelevant to the question whether it is also
content neutral. See
R. A. v: v.
St. Paul,
505 U. S. 377,
430 (1992) (STEVENS, J., concurring in judgment);
Turner,
supra, at 685 (GINSBURG, J., concurring in part and dissenting
in part).
IV
In sustaining the must-carry provisions of the Cable Act, the
Court ignores the main justification of the statute urged by
appellees and subjects restrictions on expressive activity to an
inappropriately lenient level of scrutiny. The principal
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opinion then misapplies the analytic framework it chooses,
exhibiting an extraordinary and unwarranted deference for
congressional judgments, a profound fear of delving into complex
economic matters, and a willingness to substitute untested
assumptions for evidence. In light of gaps in logic and evidence,
it is improper to conclude, at the summary judgment stage, that the
must-carry scheme serves a significant governmental interest "in a
direct and effective way."
Ward, 491 U. S., at 800.
Moreover, because the undisputed facts demonstrate that the
must-carry scheme is plainly not narrowly tailored to serving the
only governmental interest the principal opinion fully explains and
embraces-preventing anticompetitive behavior-appellants are
entitled to summary judgment in their favor.
JUSTICE BREYER disavows the principal opinion's position on
anticompetitive behavior, and instead treats the must-carry rules
as a "speech-enhancing" measure designed to ensure access to
"quality" programming for noncable households. Neither the
principal opinion nor the partial concurrence explains the nature
of the alleged threat to the availability of a "multiplicity of
broadcast programming sources," if that threat does not arise from
cable operators' anticompetitive conduct. Such an approach makes it
impossible to discern whether Congress was addressing a problem
that is "real, not merely conjectural," and whether mustcarry
addresses the problem in a "direct and material way."
Turner,
supra, at 664 (plurality opinion).
I therefore respectfully dissent, and would reverse the judgment
below.
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