Opinion for the Court filed by Circuit Judge GINSBURG.
The Time Warner Entertainment Company and the United States appeal from portions of the judgment in
Daniels Cablevision, Inc. v. United States,
I. Background
Time Warner and other owners of cable television systems challenged the constitutionality of the subscriber limits, the channel occupancy, and various other provisions of the 1992 Cable Act in
Daniels Cablevision.
Upon cross-motions for summary judgment, the district court held that the subscriber limits provision is unconstitutional,
see
We consolidated both appeals with Time Warner’s petition to this court for review of the regulations the Commission had promulgated to implement the two provisions.
See Time Warner Entertainment Co., L.P. v. Federal Communications Comm’n (Time
Warner),
II. Analysis
We review
de novo
the district court’s grant of summary judgment.
See, e.g., Aka v. Washington Hospital Center,
A. The Subscriber Limits Provision
1. The Standard of Review
Time Warner argues that the subscriber limits provision is a content-based restriction of its ability to communicate with its audience, and as such is subject to strict scrutiny.
See urner Broadcasting System, Inc. v. Federal Communications Comm’n (Turner
I),
In order to determine the applicable standard of review, then, we must decide whether the subscriber limits provision is content-based. In general, the “principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.”
Id.
(quoting
Ward v. Rock Against Racism,
As a cable operator, Time Warner exercises editorial discretion in selecting the programming it will make available to its subscribers. Time Warner argues that the Congress limitеd its ability to speak by restricting the number of subscribers— and therefore potential viewers—it may reach with the programming it has selected. That this limitation is content-based, according to Time Warner, is evident from the Senate Report that accompanied the final version of the 1992 Cable Act. See H.R. Conf. Rep. No. 102-862, at 81-82 (1992), reprinted in 1992 U.S.C.C.A.N. 1133, 1133, 1263-64 (adopting provisions of Senate Bill, as described in Senate Report, S.Rep. No. 102-92, at 32 (1991) [hereinafter S. Rep.] ).
That Report indicated the Congress was concerned about increasing concentration of ownership and control in the cable industry:
... First, there are special concerns about concentration of the media in the hands of a few who may control the dissemination of information. The concern is that the media gatekeepers will (1) slant information according to their own biases, or (2) provide no outlet for unorthodox or unpopular speech because it does not sell well, or both....
The second concern about horizontal concentration is that it can be the basis of anticompetitive acts. For example, a market that is dominated by one buyer of a product, a monopsonist, does not give the seller any of the benefits of competition....
S. Rep. at 32-33, 1992 U.S.C.C.A.N. at 1165-66.
Time Warner contends that the Congress’s concern that media gatekeepers would “slant” information or fail to provide
*1317
outlets for “unorthodox” speech reflects a preference for one type of content and an intent to suppress another, namely, the speech of cable operators. The Company likens the Congress’s efforts to limit its speech to the restraints the Supreme Court held unconstitutional in
Buckley v. Valeo,
The expenditure limit at issue in
Buckley,
like the prohibition at issue in
Bellotti,
was content-based because it “was concerned with the communicative impact of the regulated speech.”
Turner I,
According to Time Warner, the subscriber limits provision expresses a hostility to the content of large cable operators’ speech that did not underlie the must-carry obligation: The subscriber limits are meant to restrict large cable operators from presenting information in accord with their own “biases,” in order thereby to promote a diversity of views in cable programming. Increasing the diversity of programming is not, Time Warner argues, among the ends the Supreme Court deemed content-neutral in Turner I.
Time Warner is correct that the Court’s acceptance of the must-carry obligation as content-neutral rested in large part upon the Court’s understanding that the purpose of the statute was to maintain the availability of broadcast television for those without cable; that does not render
Turner I
wholly inapplicable, however. The Court also identified the “bottleneck monopoly power” of the cable operator, arising out of the operator’s “control over most (if not all) of the television programming that is channeled into the subscriber’s home,” as the threat to broadcast television.
Finally, Time Warner argues that the subscriber limits provision improperly singles out for regulation the cable medium, as opposed to other video programmers such as Direct Broadcast Satellite (DBS) operators. Here it refers us to
Turner I,
In
Turner I,
however, the Court rejected Turner Broadcasting’s claim of discrimination, stating that “[i]t would be error to conclude ... that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others.”
Id.
at 660,
In sum, upon examination of the statute, the Senate Report that accompanied it, and the Supreme Court’s analysis of the must-carry provision at issue in
Turner I,
we conclude that the subscriber limits provision is not content-based. In order to determine whether it is constitutional, therefore, we apply intermediate, rather than strict scrutiny.
Id.
at 662,
2. The Merits
A content-neutral regulation of speech “will be sustained under the First Amendment if it [1] advances important governmental interests unrelated to the suppression of free speech and [2] does not burden substantially more speech than necessary to further those interests.”
Turner Broadcasting System, Inc. v. Federal Communications Comm’n (Turner II),
As to advancing an important governmental interest, the Congress enacted the subscriber limits based upon two stated concerns: that cable operators would impose their own biases upon the information they disseminate, and that a few dominant cable operators might preclude new programming services from attaining the critical mass audience necessary to survive.
See
S. Rep. at 32-33. Time Warner does not argue that the Congress failed to identify an important governmental interest, but rather faults the Congress for having acted without having made findings, and without having evidence upon which it could have made findings, that either of these problems is a real one.
See, e.g., Reno v. American Civil Liberties Union,
According to Time Warner, cable operators in fact can neither bias the flow of information nor obstruct the expression of unpopular speech because other statutory ■provisions require them to carry independent programming, including public, educational, and governmental (PEG) programming, and the programming on leased access channels and local broadcast stations. See 47 U.S.C. §§ 531, 532, 534 & 535. As for the concern that cable operators might erect barriers to the entry of new programming services, Time Warner argues that the Congress did not establish either that cable operators have attempted to exclude new cable programmers, or that they have an incentive to do so.
The Government responds that the promotion of diversity in ideas and speech, as well as the preservation of competition, are important governmental interests, and that the Congress reasonably viewed increased concentration in the cable industry as a threat to both diversity and competition. The Government acknowledges that the 1992 Cable Act requires cable operators to carry PEG and several other types of local programming, but argues that these requirements were not meant directly to preserve competition, nor do they promote diversity in the sources of cable programming at the national level.
The Senate Report accompanying the 1992 Cable Act noted that concentration of ownership had increased dramatically: By 1990, the five largest cable operators served nearly half the country’s cable subscribers. S. Rep. at 32. Witnesses testified that as a result of this increase in concentration “the large MSOs [multiple system operators] have the market power to determine what programming services can ‘make it’ on cable.” S. Rep. at 33,1992 U.S.C.C.A.N. at 1167. Based upon this and related evidence, the Congress found that “[t]he potential effects of ... concentration [in the cable industry] are barriers to entry for new programmers and a reduction in the number of media voices available to consumers.” 47 U.S.C. § 521(a)(4). It also found that “[t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media.”
Id.
§ 521(a)(6). We conclude that the Congress drew reasonable inferences, based upon substantial ev
*1320
idence, that increases in the concentration of cable operators threatened diversity and competition in the cable industry.
See Turner II,
As to burdening more speech than necessary, Time Warner argues that subscriber limits will not increase the diversity of information sources available to the public in any locale. Nor, we are told, are subscriber limits necessary in order to promote competition; the antitrust laws, as well as the antidiscrimination provision of the 1992 Cable Act, see 47 U.S.C. § 536(a)(3), provide a sufficient check upon any potentially anticompetitive conduct by cable operators.
Although we cannot say that a national ownership cap will surely increase the diversity of programming available at the local level, neither are we required to do so in order to uphold the statute as constitutional.
See, e.g., United States v. Albertini,
Nor is it a fatal flaw that the subscriber limits provision focuses upon behavior already arguably proscribed by other laws. In the subscriber limits provision the Congress took a structural approach to the regulation of cable operators, whereas the antidiscrimination provision of the 1992 Cable Act and the antitrust laws are behavioral prohibitions. As a structural limitation, the subscriber limits provision adds a prophylaxis to the law and avoids the burden of individual proceedings to remedy particular instances of anticompetitive behavior.
Cf. Turner II,
B. The Channel Occupancy Provision
1. The Standard of Review
The channel occupancy provision requires the Commission to establish limits upon “the number of channels on a cable system that can be occupied by a video programmer in which a cable operator has an attributable interest.” 47 U.S.C. § 533(f)(1)(B). Time Warner likens this provision to “a law prohibiting newspapers from devoting more than a fraction of their columns to editorial content of their own.” That this restriction is content-based, it argues, is evident from the Senate Report:
Vertical integration in the cable industry .... gives cable operators the incentive and ability to favor their affiliated programming services. For example, the cable operator might give its affiliated programmer a more desirable chаnnel position than another programmer, or even refuse to carry other programmers.
*1321 [The channel occupancy provision] is designed to increase the diversity of voices available to the public. Some [MSOs] own many programming services. It would be unreasonable for them to occupy a large percentage of channels on a cable system.
The intent of this provision is to place reasonable limits on the number of channels that can be occupied by each MSO’s programming services.
S. Rep. at 25, 80, 1992 U.S.C.C.A.N. at 1158,1213.
Time Warner argues that because thе Congress expressed concern that cable operators might favor their affiliated programming services the legislature’s “stated design was to suppress cable operators’ speech,” and to advance the speech of no-naffiliated programmers. Again analogizing itself to a newspaper publisher,
see Miami Herald Publishing Co. v. Tomillo,
A cable operator is unlike a newspaper publisher, however, in the one respect crucial to the Congress’s reason for enacting the channel occupancy provision: A newspaper publisher does not have the ability to exclude competing publications from its subscribers’ homes. The cable operator’s bottleneck monopoly is a physical and economic barrier to such intra-medium competition. The channel occupancy provision responds in kind, without regard to the сontent of either the cable operator’s speech or that of the unaffiliated programmer for which it secures an outlet.
See Turner I,
Nor does the Congress’s wanting to ensure a multiplicity of voices on cable inherently bespeak a preference for or a bias against the content of any speech. That is why, in
Time Warner,
we upheld under intermediate scrutiny the “leased access provision” of the 1992 Cable Act. That provision requires cable operators to set aside a percentage of their channels for commercial use by unaffiliated prоgrammers in order both to bring “the widest possible diversity of information sources” to cable subscribers and “to promote competition in the delivery of diverse sources of video programming.”
Time Warner now argues that whereas the objective of the leased access provision was to promote speech from various sources without regard to content, the channel occupancy provision is meant to limit speech from a particular type of source and therefore necessarily imposes a content-based restriction. Here it refers us to the statement in the Senate Report that cable operators may have “the incentive and ability to favor” their own or an affiliate’s speech. S. Rep. at 25, 1992 U.S.C.C.A.N. at 1158. In rеsponse, the Government explains, and we agree, that the legislative concern was not with the speech of a particular source but solely with promoting diversity and competition in the cable industry. Like the leased access provision, that is, the focus of the channel occupancy provision is upon the source of speech, not its content.
See Time Warner,
We recognize, of course, the possibility that a seemingly neutral limitation may have been crafted in such a way as to single out for regulation the speech of some group that the legislature finds objectionable.
See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue,
2. The Merits
In applying intermediate scrutiny, we inquire “not whether Congress, as an objective matter, was correct” that the channel occupancy provision is necessary to increase the diversity of voices available to the public via cable, but rather “whether thе legislative conclusion was reasonable and supported by substantial evidence in the record before Congress.”
Turner II,
Nothing in these protestations demonstrates that the Congress’s legislative conclusion was either unreasonable or unsupported by substantial evidence.
See Turner II,
The cable industry has become vertically integrated; cable operators and cable programmers often have common ownership. As a result, cable operators have the incentive and ability to favor their affiliated programmers. This could make it more difficult for nonca-ble-affiliated programmers to secure carriage on cable systems. Vertically integrated program suppliers also have the incentive and ability to favor their affiliated cable operators over nonaffili-ated cable оperators and programming distributors using other technologies.
47 U.S.C. § 521(a)(5). The Senate Report accompanying the Act discusses the evidence upon which the Congress based these conclusions. Time Warner is of course correct that a cable operator has an incentive to offer an attractive package of programs to consumers, but the company does not deny that a cable operator also has an incentive to favor its affiliated programmers; where the two forces are in conflict, the operator may, as a rational profit-maximizer, compromise the consumers’ interests. Hence, the concern of the Congress is well grounded in the evidence and a bit of economic common sense.
Finally, Time Warner argues that the channel occupancy provision is unnecessary in light of the anti-discrimination provision of the 1992 Cable Act as well as the antitrust laws. As we noted earlier, however, a prophylactic, structural limitation is not rendered unnecessary merely because preexisting statutes impose behavioral
*1323
norms and
ex post
remedies.
Cf. Turner II,
III. Conclusion
For the foregoing reasons, we conсlude that the subscriber limits and channel occupancy provisions do not run afoul of the first amendment. The judgment of the district court is reversed insofar as it held that the subscriber limits provision is unconstitutional, and affirmed insofar as it held that the channel occupancy provision is constitutional.
So ordered.
Notes
The district court at least appears to have found the channel occupancy provision constitutional on its face. The court noted in a footnote that "[l]ike the other vertical integration restrictions, the channel occupancy limits appear unrelated to content. Whether or not the regulations ultimately promulgated by the Commission will pass constitutional muster under [intermediate scrutiny] is, of course, at this point unclear.”