TURNER BROADCASTING SYSTEM, INC., ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL.
No. 95-992
SUPREME COURT OF THE UNITED STATES
March 31, 1997
Argued October 7, 1996
520 U.S. 180
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.
Sections 4 and 5 of the
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
I
An outline of the
On appeal, we agreed with the District Court that must-carry 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,”
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
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
This direct appeal followed. See
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
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
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,”
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,”
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 “long-established regulatory goa[l] in the field of television broadcasting.” United States v. Midwest Video Corp., supra, at
Although Congress set no definite number of broadcast stations sufficient for these purposes, the
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, 223-224 (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.
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 th[e] evi-
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.
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.
Vertical integration in the industry also was increasing. As Congress was aware, many MSO‘s owned or had affiliation agreements with cable programmers.
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, 707-708, 712 (statement of Gene Kimmelman).
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, 1368-1370), 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
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 programmers—even unaffiliated ones—less likely to compete with them for
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 subscribership, 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. 2003-2004); 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 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. I.Z, Exh. 140, pp. CR 15297-15298, 15306-15307.
Substantial evidence demonstrated that absent must-carry the already “serious,” Senate Report, at 43, problem of non-carriage would grow worse because “additional local broadcast signals will be deleted, repositioned, or not carried,”
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 non-commercial 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-
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 must-carry “are generally higher than that achieved . . . by their equivalent cable counterparts“); Meek Declaration ¶ 21, at 11-12 (Record, DAE Vol. II.A, 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. 1505-1509) (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-
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, 7819-7820, ¶ 79 (1995), a figure projected to have risen to 85 percent by the end of 1996. DAE Vol. VII.D, 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. VII.K, 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. VII.K, Exh. 235) (discussing “huge growth on the horizon” for spot adver-
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.”
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-
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. 1553-1555). 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 ¶¶ 16, 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 ¶¶ 150-153 (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
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. II.A (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-
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
Despite the considerable evidence before Congress and adduced on remand indicating that the significant numbers of
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
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 Shooshan 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. 694-695). 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., ¶ 11(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
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 must-carry. 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
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 25-26. 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
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
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
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 A/B 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.”
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
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
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 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. 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
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,
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
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 II-A-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. 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 over-the-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
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
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
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
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
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 must-carry 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
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, 227-228 (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
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-the-air 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.
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.
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).
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.,
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
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
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,
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 must-carry 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-
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
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
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 H1, col. 3.
In the Cable Act, Congress rejected the wisdom of any “substantial societal investment” in developing input selector switch technology.
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. I.C, 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
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
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
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
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 215-216, 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 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 “speech-restricting and speech-enhancing consequences” of must-carry). 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
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-restrictive-means requirement in cases involving intermediate First Amendment scrutiny. Ward, supra, at 798 (time, place, and manner restriction); Clark v. Community for Creative Non-Violence, 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
As shown supra, at 251-252 and this page, in this case it is plain without reference to any alternatives that the must-carry 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-
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
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,
In declining to address the rules requiring carriage of low power stations, the Court appears to question whether the
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
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 approach makes it impossible to discern whether Congress was addressing a problem that is “real, not merely conjectural,” and whether must-carry 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.