95-992.ZO Opinion

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SUPREME COURT OF THE UNITED STATES
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No. 95-992
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TURNER BROADCASTING SYSTEM, INC., et al.,
APPELLANTS v. FEDERAL COMMUNICATIONS
COMMISSION et al.
on appeal from the united states district court
for the district of columbia
[March 31, 1997]

Justice Kennedy delivered the opinion of the Court,
except as to a portion of Part II-A-1.
Sections 4 and 5 of the Cable Television Consumer
Protection and Competition Act of 1992 require cable
television systems to dedicate some of their channels to
local broadcast television stations. Earlier in this case,
we held the so-called -must-carry- provisions to be
content-neutral restrictions on speech, subject to inter-
mediate First Amendment scrutiny under United States
v. O'Brien, 391 U. S. 367, 377 (1968). A plurality of the
Court considered the record as then developed insuffi-
cient to determine whether the provisions were narrowly
tailored to further important governmental interests, and
we remanded the case to the District Court for the
District of Columbia for additional factfinding.
On appeal from the District Court's grant of summary
judgment for appellees, the case now presents the two
questions left open during the first appeal: First,
whether the record as it now stands supports Congress'
predictive judgment that the must-carry provisions
further important governmental interests; and second,
whether the provisions do not burden substantially more
speech than necessary to further those interests. We
answer both questions in the affirmative, and conclude
the must-carry provisions are consistent with the First
Amendment.

I
An outline of the Cable Act, Congress' purposes in
adopting it, and the facts of the case are set out in
detail in our first opinion, see Turner Broadcasting
System, Inc. v. FCC, 512 U. S. 622 (1994) (Turner), and
a more abbreviated summary will suffice here. Soon
after Congress enacted the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L.
102-385, 106 Stat. 1460 (Cable Act), appellants brought
suit against the United States and the Federal Commu-
nications Commission (both referred to here as the
Government) in the United States District Court for the
District of Columbia, challenging the constitutionality of
the must-carry provisions under the First Amendment.
The three-judge District Court, in a divided opinion,
granted summary judgment for the Government and
intervenor-defendants. A majority of the court sustained
the must-carry provisions under the intermediate
standard of scrutiny set forth in United States v.
O'Brien, supra, concluding the must-carry provisions
were content-neutral -industry-specific antitrust and fair
trade- legislation narrowly tailored to preserve local
broadcasting beset by monopoly power in most cable
systems, growing concentration in the cable industry,
and concomitant risks of programming decisions driven
by anticompetitive policies. 819 F. Supp. 32, 40, 45-47
(DC 1993).
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 broad-
casting is in genuine jeopardy and need of the
protections afforded by must-carry,- and whether must-
carry -`burden[s] substantially more speech than is
necessary to further the government's legitimate inter-
ests.'- Id., at 665 (quoting Ward, supra, at 799).
Justice Stevens would have found the statute valid on
the record then before us; he agreed to remand the case
to ensure a judgment of the Court, and the case was
returned to the District Court for further proceedings.
512 U. S., at 673-674 (Stevens, J., concurring in part
and concurring in judgment); id., at 667-668.
The District Court oversaw another 18 months of
factual development on remand -yielding a record of tens
of thousands of pages- of evidence, Turner Broadcasting
v. FCC, 910 F. Supp. 734, 755 (DC 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 Con-
gress 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 increas-
ing incentives to use their growing economic power to
capture broadcasters' advertising revenues and promote
affiliated cable programmers. Ibid. The court concluded
-substantial evidence before Congress- supported the
predictive judgment that a local broadcaster denied
carriage -would suffer financial harm and possible ruin.-
Id., at 743-744. It cited evidence that adverse carriage
actions decrease broadcasters' revenues by reducing
audience levels, id., at 744-745, and evidence that the
invalidation of the FCC's prior must-carry regulations
had contributed to declining growth in the broadcast
industry. Id., at 744, and n. 34.
The court held must-carry to be narrowly tailored to
promote the Government's legitimate interests. It found
the effects of must-carry on cable operators to be
minimal, noting evidence that: most cable systems had
not been required to add any broadcast stations since
the rules were adopted; only 1.2 percent of all cable
channels had been devoted to broadcast stations added
because of must-carry; and the burden was likely to
diminish as channel capacity expanded in the future.
Id., at 746-747. The court proceeded to consider a
number of alternatives to must-carry that appellants had
proposed, including: a leased-access regime, under which
cable operators would be required to set aside channels
for both broadcasters and cable programmers to use at
a regulated price; use of so-called A/B switches, giving
consumers a choice of both cable and broadcast signals;
a more limited set of must-carry obligations modeled on
those earlier used by the FCC; and subsidies for broad-
casters. 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 broadcasters, industry advertising revenues,
and per-station profits during the period without must-
carry, led him to conclude the broadcast industry as a
whole would not be -`seriously jeopardized'- in the
absence of must-carry. Id., at 759-767. Judge Williams
acknowledged the Government had a legitimate interest
in preventing anticompetitive behavior, and accepted
that cable operators have incentives to discriminate
against broadcasters in favor of their own vertically
integrated cable programming. Id., at 772, 775, 779.
He would have granted summary judgment for appel-
lants nonetheless on the ground must-carry is not
narrowly tailored. In his view, must-carry constitutes a
significant (though -diminish[ing],- id., at 782) burden
on cable operators' and programmers' rights, ibid., and
the Cable Act's must-carry provisions suppress more
speech than necessary because -less-restrictive- alterna-
tives exist to accomplish the Government's legitimate
objectives. Id., at 782-789.
This direct appeal followed. See 47 U. S. C.
555(c)(1); 28 U. S. C. 1253. We noted probable
jurisdiction, 516 U. S. ___ (1996), and we now affirm.

II
We begin where the plurality ended in Turner,
applying the standards for intermediate scrutiny enunci-
ated in O'Brien. A content-neutral regulation will be
sustained under the First Amendment if it advances
important governmental interests unrelated to the
suppression of free speech and does not burden substan-
tially more speech than necessary to further those
interests. O'Brien, 391 U. S., at 377. As noted in
Turner, must-carry was designed to serve -three interre-
lated interests: (1) preserving the benefits of free, over-
the-air local broadcast television, (2) promoting the
widespread dissemination of information from a multi-
plicity of sources, and (3) promoting fair competition in
the market for television programming.- 512 U. S., at
662. We decided then, and now reaffirm, that each of
those is an important governmental interest. We have
been most explicit in holding that -`protecting noncable
households from loss of regular television broadcasting
service due to competition from cable systems' is an
important federal interest.- Id., at 663 (quoting Capital
Cities Cable, Inc. v. Crisp, 467 U. S. 691, 714 (1984)).
Forty percent of American households continue to rely
on over-the-air signals for television programming.
Despite the growing importance of cable television and
alternative technologies, -`broadcasting is demonstrably
a principal source of information and entertainment for
a great part of the Nation's population.'- Turner, supra,
at 663 (quoting United States v. Southwestern Cable Co.,
392 U. S. 157, 177 (1968)). We have identified a
corresponding -governmental purpose of the highest
order- in ensuring public access to -a multiplicity of
information sources,- 512 U. S., at 663. And it is
undisputed the Government has an interest in -eliminat-
ing restraints on fair competition . . ., even when the
individuals or entities subject to particular regulations
are engaged in expressive activity protected by the First
Amendment.- Ibid.
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 as preserving -a minimum amount of
television broadcast service.- Time Warner Brief 28;
NCTA Brief 40; Reply Brief for Appellant NCTA 12.
These alternative formulations are inconsistent with
Congress' stated interests in enacting must-carry. The
congressional findings do not reflect concern that, absent
must-carry, -a few voices,- Tr. of Oral Arg. 23, would be
lost from the television marketplace. In explicit factual
findings, Congress expressed clear concern that the
-marked shift in market share from broadcast television
to cable television services,- Cable Act 2(a)(13), note
following 47 U. S. C. 521, resulting from increasing
market penetration by cable services, as well as the
expanding horizontal concentration and vertical integra-
tion of cable operators, combined to give cable systems
the incentive and ability to delete, reposition, or decline
carriage to local broadcasters in an attempt to favor
affiliated cable programmers. 2a(2)-(5), (15). Congress
predicted that -absent the reimposition of [must-carry],
additional local broadcast signals will be deleted,
repositioned, or not carried- (2(a)(15); see also
2(a)(8)(D)), with the end result that -the economic
viability of free local broadcast television and its ability
to originate quality local programming will be seriously
jeopardized.- 2(a)(16).
At the same time, Congress was under no illusion that
there would be a complete disappearance of broadcast
television nationwide in the absence of must-carry.
Congress recognized broadcast programming (and
network programming in particular) -remains the most
popular programming on cable systems,- 2(a)(19).
Indeed, reflecting the popularity and strength of some
broadcasters, Congress included in the Cable Act a
provision permitting broadcasters to charge cable
systems for carriage of the broadcasters' signals. See 6,
codified at 47 U. S. C. 325. Congress was concerned
not that broadcast television would disappear in its
entirety without must-carry, but that without it, -signifi-
cant numbers of broadcast stations will be refused
carriage on cable systems,- and those -broadcast stations
denied carriage will either deteriorate to a substantial
degree or fail altogether.- 512 U. S., at 666. See, e.g.,
H. R. Rep. No. 102-628, p. 51 (1992) (House Report)
(the absence of must-carry -will result in a weakening
of the over-the-air television industry and a reduction in
competition-); id., at 64 (-The Committee wishes to make
clear that its concerns are not limited to a situation
where stations are dropped wholesale by large numbers
of cable systems-); S. Rep. No. 102-92, p. 62 (1991)
(Senate Report) (-Without congressional action, . . . the
role of local television broadcasting in our system of
communications will steadily decline . . .-); see also Brief
for Federal Appellees in Turner Broadcasting System,
Inc. v. FCC, No. 93-44, p. 32, n. 22 (the question is not
whether -the evidence shows that broadcast television is
likely to be totally eliminated- but -whether the broad-
cast services available to viewers [without cable] . . . are
likely to be reduced to a significant extent, because of
either loss of some stations altogether or curtailment of
services by others-).
Nor do the congressional findings support appellants'
suggestion that legitimate legislative goals would be
satisfied by the preservation of a rump broadcasting
industry providing a minimum of broadcast service to
Americans without cable. We have noted that -`it has
long been a basic tenet of national communications
policy that -the widest possible dissemination of informa-
tion 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)
(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 televi-
sion broadcasting.'- United States v. Midwest Video
Corp., supra, at 667-668 (plurality opinion). Consistent
with this objective, the Cable Act's findings reflect a
concern that congressional action was necessary to
prevent -a reduction in the number of media voices
available to consumers.- 2(a)(4). Congress identified
a specific interest in -ensuring [the] continuation- of -the
local origination of [broadcast] programming,- 2(a)(10),
an interest consistent with its larger purpose of promot-
ing multiple types of media, 2(a)(6), and found must-
carry necessary -to serve the goals- of the original
Communications Act of 1934 of -providing a fair,
efficient, and equitable distribution of broadcast services-
(2(a)(9)). In short, Congress enacted must-carry to
-preserve the existing structure of the Nation's broadcast
television medium while permitting the concomitant
expansion and development of cable television.- 512
U. S., at 652.
Although Congress set no definite number of broadcast
stations sufficient for these purposes, the Cable Act's
requirement that all cable operators with more than 12
channels set aside one-third of their channel capacity for
local broadcasters, 4, 47 U. S. C. 534(b)(1)(B), refutes
the notion that Congress contemplated preserving only
a bare minimum of stations. Congress' evident interest
in -preserv[ing] the existing structure,- 512 U. S., at
652, of the broadcast industry discloses a purpose to
prevent any significant reduction in the multiplicity of
broadcast programming sources available to noncable
households. To the extent the appellants question the
substantiality of the Government's interest in preserving
something more than a minimum number of stations in
each community, their position is meritless. It is for
Congress to decide how much local broadcast television
should be preserved for noncable households, and the
validity of its determination -`does not turn on a judge's
agreement with the responsible decisionmaker con-
cerning' . . . the degree to which [the Government's]
interests should be promoted.- Ward, 491 U. S., at 800
(quoting United States v. Albertini, 472 U. S. 675, 689
(1985)); accord, Clark v. Community for Creative Non-
Violence, 468 U. S. 288, 299 (1984) (-We do not believe
. . . [that] United States v. O'Brien . . . endow[s] the
judiciary with the competence to judge how much protec-
tion of park lands is wise-).
The dissent proceeds on the assumption that must-
carry is designed solely to be (and can only be justified
as) a measure to protect broadcasters from cable
operators' anticompetitive behavior. See post, at 24, 26,
32. 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 Ameri-
cans. Though it is but one of many means for communi-
cation, 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 Committee 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.

A
On our earlier review, we were constrained by the
state of the record to assessing the importance of the
Government's asserted interests when -viewed in the
abstract,- Turner, 512 U. S., at 663. The expanded
record now permits us to consider whether the must-
carry provisions were designed to address a real harm,
and whether those provisions will alleviate it in a
material way. Id., at 663-664. We turn first to the
harm or risk which prompted Congress to act. The
Government's assertion that -the economic health of
local broadcasting is in genuine jeopardy and in need of
the protections afforded by must-carry,- id., at 664-665,
rests on two component propositions: First, -significant
numbers of broadcast stations will be refused carriage
on cable systems- absent must-carry, id., at 666.
Second, -the broadcast stations denied carriage will
either deteriorate to a substantial degree or fail alto-
gether.- 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, Con-
gress has drawn reasonable inferences based on substan-
tial 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, 491 U. S., at 800; Rostker v.
Goldberg, 453 U. S. 57, 83 (1981) (courts must perform
-appropriately deferential examination of Congress'
evaluation of th[e] evidence-); Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412
U. S. 94, 103 (1973). This principle has special signifi-
cance in cases, like this one, involving congressional
judgments concerning regulatory schemes of inherent
complexity and assessments about the likely interaction
of industries undergoing rapid economic and techno-
logical change. Though different in degree, the defer-
ence to Congress is in one respect akin to deference
owed to administrative agencies because of their exper-
tise. See FCC v. National Citizens Comm. for Broad-
casting, 436 U. S. 775, 814 (1978) (-[C]omplete factual
support in the record for the [FCC's] judgment or
prediction is not possible or required; `a forecast of the
direction in which future public interest lies necessarily
involves deductions based on the expert knowledge of
the agency'-); United States v. Midwest Video Corp., 406
U. S., at 674 (it was -beyond the competence of the
Court of Appeals itself to assess the relative risk and
benefits- of FCC policy, so long as that policy was based
on findings supported by evidence). This is not the sum
of the matter, however. We owe Congress' findings an
additional measure of deference out of respect for its
authority to exercise the legislative power. Even in the
realm of First Amendment questions where Congress
must base its conclusions upon substantial evidence,
deference must be accorded to its findings as to the
harm to be avoided and to the remedial measures
adopted for that end, lest we infringe on traditional
legislative authority to make predictive judgments when
enacting nationwide regulatory policy.

1
We have no difficulty in finding a substantial basis to
support Congress' conclusion that a real threat justified
enactment of the must-carry provisions. We examine
first the evidence before Congress and then the further
evidence presented to the District Court on remand to
supplement the congressional determination.
As to the evidence before Congress, there was specific
support for its conclusion that cable operators had
considerable and growing market power over local video
programming markets. Cable served at least 60 percent
of American households in 1992, see Cable Act 2(a)(3),
and evidence indicated cable market penetration was
projected to grow beyond 70 percent. See Cable TV
Consumer Protection Act of 1991: Hearing on S. 12
before the Subcommittee on Communications of the
Senate Committee on Commerce, Science, and Transpor-
tation, 102d Cong., 1st Sess., 259 (1991) (statement of
Edward O. Fritts) (App. 1253); see also Defendants'
Joint Statement of Evidence Before Congress --9, 10
(JSCR) (App. 1252-1253). As Congress noted (2(a)(2)),
cable operators possess a local monopoly over cable
households. Only one percent of communities are served
by more than one cable system, JSCR --31-40 (App.
1262-1266). Even in communities with two or more
cable systems, in the typical case each system has a
local monopoly over its subscribers. See Comments of
NAB before the FCC on MM Docket No. 85-349, -47
(April 25, 1986) (App. 26). Cable operators thus exercise
-control over most (if not all) of the television program-
ming that is channeled into the subscriber's home. . . .
[and] can thus silence the voice of competing speakers
with a mere flick of the switch.- Turner, 512 U. S., at
656.
Evidence indicated the structure of the cable industry
would give cable operators increasing ability and
incentive to drop local broadcast stations from their
systems, or reposition them to a less-viewed channel.
Horizontal concentration was increasing as a small
number of multiple system operators (MSO's) acquired
large numbers of cable systems nationwide. 2(a)(4).
The trend was accelerating, giving the MSO's increasing
market power. In 1985, the 10 largest MSO's controlled
cable systems serving slightly less than 42 percent of all
cable subscribers; by 1989, the figure was nearly 54
percent. JSCR -77 (App. 1282); Competitive Problems
in the Cable Television Industry, Hearing before the
Subcommittee on Antitrust, Monopolies and Business
Rights of the Senate Committee on the Judiciary, 101st
Cong., 1st Sess., 74 (1990) (Hearing on Competitive
Problems in the Cable Television Industry) (statement of
Gene Kimmelman and Dr. Mark N. Cooper).
Vertical integration in the industry also was increas-
ing. As Congress was aware, many MSO's owned or had
affiliation agreements with cable programmers. 2(a)(5);
Senate Report, at 24-29. Evidence indicated that before
1984 cable operators had equity interests in 38 percent
of cable programming networks. In the late 1980's, 64
percent of new cable programmers were held in vertical
ownership. JSCR -197 (App. 1332-1333). Congress
concluded that -vertical integration gives cable operators
the incentive and ability to favor their affiliated pro-
gramming services- (2(a)(5); Senate Report, at 25) a
conclusion that even Judge Williams' dissent conceded to
be reasonable. See 910 F. Supp., at 775. Extensive
testimony indicated that cable operators would have an
incentive to drop local broadcasters and to favor affili-
ated programmers. See, e.g., Competitive Issues in the
Cable Television Industry: Hearing before the Subcom-
mittee on Antitrust, Monopolies and Business Rights of
the Senate Committee on the Judiciary, 100th Cong., 2d
Sess., 546 (1988) (Hearing on Competitive Issues)
(statement of Milton Maltz); Cable Television Regulation:
Hearings on H. R. 1303 and H. R. 2546 before the
Subcommittee on Telecommunications and Finance of the
House Committee on Energy and Commerce, 102d Cong.,
1st Sess., 869-870, 878-879 (Hearings on Cable Televi-
sion Regulation) (statement of James B. Hedlund); id.,
at 752 (statement of Edward O. Fritts); id., at 699
(statement of Gene Kimmelman); Cable Television
Regulation (Part 2): Hearings before the Subcommittee
on Telecommunications and Finance of the House
Committee on Energy and Commerce, 101st Cong., 2d
Sess., 261 (1990) (Hearings on Cable Television Regula-
tion (Part 2)) (statement of Robert G. Picard) (App.
1339-1341); see also JSCR --168-170, 278-280 (App.
1320-1321, 1370-1371).
Though the dissent criticizes our reliance on evidence
provided to Congress by parties that are private appel-
lees here, post, at 10, that argument displays a lack of
regard for Congress' factfinding function. It is the
nature of the legislative process to consider the submis-
sions of the parties most affected by legislation. Appel-
lants 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 Televi-
sion 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 presi-
dent of appellant NCTA); Cable TV Consumer Protection
Act of 1991: Hearing on S. 12 before the Subcommittee
on Communications of the Senate Committee on Com-
merce, Science, and Transportation, 102d Cong., 1st
Sess., 173-180 (1991) (statement of Ted Turner, presi-
dent 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 -. 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 (state-
ment of Gene Kimmelman).
The reasonableness of Congress' conclusion was borne
out by the evidence on remand, which also reflected
cable industry favoritism for integrated programmers.
See, e.g., Record, Defendants' Additional Evidence, Vol.
VII.H, Exh. 170, p. 1749 (DAE) (cable industry memo
stating that -All [of an MSO's] systems must launch
Starz [an integrated programmer] 2/94. Word from
corporate: if you don't have free channels . . . make one
free-); Third Declaration of Tom Meek -44 (Third Meek
Declaration) (App. 2071-2072); see also Declaration of
Roger G. Noll --18-22 (Noll Declaration) (App.
1009-1013); Declaration of James Dertouzos -6a
(Dertouzos Declaration) (App. 959).
In addition, evidence before Congress, supplemented on
remand, indicated that cable systems would have
incentives to drop local broadcasters in favor of other
programmers less likely to compete with them for audi-
ence 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 adver-
tiser: 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 competi-
tive medium for television advertising. Empirical
studies indicate that cable-carried broadcasters so
enhance competition for advertising that even modest
increases in the numbers of broadcast stations carried
on cable are correlated with significant decreases in
advertising revenue to cable systems. Dertouzos Decla-
ration -20, 25-28 (App. 966, 969-971); see also Reply
Comment of FTC, at 18 (App. 175). Empirical evidence
also indicates that demand for premium cable services
(such as pay-per-view) is reduced when a cable system
carries more independent broadcasters. Hearing on
Competitive Problems in the Cable Television Industry,
at 323 (statement of Michael O. Wirth). Thus, operators
stand to benefit by dropping broadcast stations.
Dertouzos Declaration -6b (App. 959).
Cable systems also have more systemic reasons for
seeking to disadvantage broadcast stations: Simply
stated, cable has little interest in assisting, through
carriage, a competing medium of communication. As one
cable-industry executive put it, -`our job is to promote
cable television, not broadcast television.'- Hearing on
Competitive Issues, at 658 (quoting Multichannel News,
Channel Realignments: United Cable Eyes Plan to Bump
Network Affils to Upper Channels, Nov. 3, 1986, p. 39);
see also id., 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% of the television
market that cable typically controls. Dertouzos Declara-
tion -- 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 audience and advertisers. The
cap on carriage of affiliates included in the Cable Act,
47 U. S. C. 533(f)(1)(B); 47 CFR 76.504) (1995), and
relied on by the dissent, post, at 11, 25, is of limited
utility in protecting broadcasters.
The dissent contends Congress could not reasonably
conclude cable systems would engage in such predation
because cable operators, whose primary source of
revenue is subscriptions, would not risk dropping a
widely viewed broadcast station in order to capture
advertising revenues. Post, at 12. However, if viewers
are faced with the choice of sacrificing a handful of
broadcast stations to gain access to dozens of cable
channels (plus network affiliates), it is likely they would
still subscribe to cable even if they would prefer the
dropped television stations to the cable programming
that replaced them. Substantial evidence introduced on
remand bears this out: With the exception of a handful
of very popular broadcast stations (typically network
affiliates), a cable system's choice between carrying a
cable programmer or broadcast station has little or no
effect on cable subscriptions, and subscribership thus
typically does not bear on carriage decisions. Noll
Declaration -29 (App. 1018-1019); Rebuttal Declaration
of Roger G. Noll -20 (App. 1798); Reply Declaration of
Roger G. Noll --3-4, and n. 3 (App. 2003-2004); see
also Declaration of John R. Haring -37 (Haring Declara-
tion) (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 regula-
tions. 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 noncarriage would grow worse because
-additional local broadcast signals will be deleted,
repositioned, or not carried,- 2(a)(15). The record
included anecdotal evidence showing the cable industry
was acting with restraint in dropping broadcast stations
in an effort to discourage reregulation. See Hearings on
Cable Television Regulation, at 900, n. 81 (statement of
James B. Hedlund); Hearings on Cable Television
Regulation (Part 2), at 242-243 (statement of James P.
Mooney) (App. 1519); JSCR --524-534 (App.
1515-1519)). There was also substantial evidence that
advertising revenue would be of increasing importance
to cable operators as subscribership growth began to
flatten, providing a steady, increasing incentive to deny
carriage to local broadcasters in an effort to capture
their advertising revenue. Id., --124-142, 154-166
(App. 1301-1308, 1313-1319). A contemporaneous FCC
report noted that -[c]able operators' incentive to deny
carriage . . . appears to be particularly great as against
local broadcasters.- Id., -155 (App. 1313). Then-FCC
Commissioner James Quello warned Congress that the
carriage problems -occurring today are just the `tip of
the iceberg.' These activities come at a time when the
cable industry is just beginning to recognize the impor-
tance of local advertising.- Cable Television, Hearings
before the Subcommittee on Telecommunications and
Finance of the House Committee on Energy and Com-
merce, 100th Cong., 2d Sess., 322 (1988) (App. 1515).
Quello continued: -As [cable] systems mature and
penetration levels off, systems will turn increasingly to
advertising for revenues. The incentive to deny carriage
to local stations is a logical, rational and, without must
carry, a legal business strategy.- Appendix A to Testi-
mony of James B. Hedlund before the Subcommittee on
Telecommunications and Finance of the House Commit-
tee on Energy & Commerce, 18 (1990) (statement of
James H. Quello) (App. 1315). The FCC advised Con-
gress the -diversity in broadcast television service . . .
will be jeopardized if this situation continues unre-
dressed.- In re Competition, Rate Regulation, and
Provision of Cable Television Service, 5 FCC Rcd 4962,
5040, -149 (1990).
Additional evidence developed on remand supports the
reasonableness of Congress' predictive judgment.
Approximately 11 percent of local broadcasters were not
carried on the typical cable system in 1989. See Reply
Comment of FTC, pp. 9-10 (App. 168-169). The figure
had grown to even more significant proportions by 1992.
According to one of appellants' own experts, between 19
and 31 percent of all local broadcast stations, including
network affiliates, were not carried by the typical cable
system. See Declaration of Stanley Besen, Exhs. C-2,
C-3 (App. 907-908). Based on the same data, another
expert concluded that 47 percent of local independent
commercial stations, and 36 percent of noncommercial
stations, were not carried by the typical cable system.
The rate of noncarriage was even higher for new
stations. Third Meek Declaration -4 (App. 2054).
Appellees introduced evidence drawn from an empirical
study concluding the 1988 FCC survey substantially
underestimated the actual number of drops (Declaration
of Tom Meek --5, 25, 36 (Meek Declaration) (App. 619,
625, 626)), and the noncarriage problem grew steadily
worse during the period without must-carry. By the
time the Cable Act was passed, 1,261 broadcast stations
had been dropped for at least one year, in a total of
7,945 incidents. Id., --12, 15 (App. 621, 622).
The dissent cites evidence indicating that many
dropped broadcasters were stations few viewers watch,
post, at 15, 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 televi-
sion-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 16. Even
aside from that, the evidence overlooks that the broad-
casters 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 Regula-
tion, at 880 (statement of James Hedlund) (-in 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-Carry TV Broadcast
Stations, Table II-4 (April 1995) (App. 678).) On aver-
age, even the lowest-rated station added pursuant to
must-carry had ratings better than or equal to at least
nine basic cable program services carried on the system.
Third Meek Declaration -20, and n. 5 (App. 2061). If
cable systems refused to carry certain local broadcast
stations because of their subscribers' preferences for the
cable services carried in their place, one would expect
that all cable programming services would have ratings
exceeding those of broadcasters not carried. That is
simply not the case.
The evidence on remand also indicated that the
growth of cable systems' market power proceeded apace.
The trend towards 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 Broad-
casting 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 -clus-
tering.- JSCR --150-153 (App. 1311-1313). Cable sys-
tems 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 advertising
revenue), and cable systems had increasing incentives to
drop local broadcasters in favor of cable programmers
(whether affiliated or not). See Noll Declaration
--29-31 (App. 1018-1020). The vertical integration of
the cable industry also continued, so by 1994, MSO's
serving about 70 percent of the Nation's cable subscrib-
ers held equity interests in cable programmers. See In
re Implementation of Section 19 of Cable Television
Protection and Competition Act of 1992, First Report, 9
FCC Rcd 7442, 7526, -167, and nn. 455, 457 (1994); id.,
app. G, tables 9-10; Top 100 MSO's as of October 1,
1994 (DAE Vol. VII.K, Exh. 266); see also JSCR --199,
204 (App. 1334, 1336). The FTC study the dissent cites,
post, at 15, takes a skeptical view of the potential for
cable systems to engage in anticompetitive behavior, but
concedes the risk of anticompetitive carriage denials is
-most plausible- when -the cable system's franchise area
is large relative to the local area served by the affected
broadcast station,- Reply Comment of FTC, at 20 (App.
177), and when -a system's penetration rate is both high
and relatively unresponsive to the system's carriage deci-
sions,- id., at 18 (App. 175). That describes -precisely
what is happening- as large cable operators expand their
control over individual markets through clustering.
Second Meek Declaration -35 (App. 1867). As they do
so, they are better able to sell their own reach to
potential advertisers, and to limit the access of broad-
cast competitors by denying them access to all or sub-
stantially all the cable homes in the market area. Ibid.;
accord Noll Declaration -24 (App. 1015).
This is not a case in which we are called upon to give
our best judgment as to the likely economic consequences
of certain financial arrangements or business structures,
or to assess competing economic theories and predictive
judgments, as we would in a case arising, say, under the
antitrust laws. -Statutes frequently require courts to
make policy judgments. The Sherman Act, for example,
requires courts to delve deeply into the theory of
economic organization.- See Holder v. Hall, 512 U. S.
874, 966 (1994) (separate opinion of Stevens, J.). The
issue before us is whether, given conflicting views of the
probable development of the television industry, Con-
gress had substantial evidence for making the judgment
that it did. We need not put our imprimatur on
Congress' economic theory in order to validate the
reasonableness of its judgment.

2
The harm Congress feared was that stations dropped
or denied carriage would be at a -serious risk of finan-
cial 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 advertis-
ing 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 program-
ming will lessen, as will its audience. Revenues will
continue to decline, and the cycle will repeat.-
Hearing on Competitive Issues, at 526-527 (state-
ment 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 [advertising] revenues,'- id., -591
(App. 1543)), and that viewership was in turn heavily
dependent on cable carriage. See id., --589-596 (App.
1542-1544).
Considerable evidence, consisting of statements
compiled from dozens of broadcasters who testified
before Congress and the FCC, confirmed that broadcast
stations had fallen into bankruptcy, see id., --659, 661,
669, 671-672, 676, 681 (App. 1576, 1578, 1581-1582,
1584, 1587), curtailed their broadcast operations, see id.,
--589, 692, 695, 697, 703-704 (App. 1542, 1591-1600),
and suffered serious reductions in operating revenues as
a result of adverse carriage decisions by cable systems.
See id., --618-620, 622-623) (App. 1553-1555). The
record also reflected substantial evidence that stations
without cable carriage encountered severe difficulties
obtaining financing for operations, reflecting the finan-
cial markets' judgment that the prospects are poor for
broadcasters unable to secure carriage. See, e.g., id.,
--302, 304, 581, 643-658 (App. 1382-1383, 1538-1539,
1564-1576); see also Declaration of David Schutz --6,
15-16, 18, 43 (App. 640-641, 644-646, 654); Noll
Declaration --36-42 (App. 1024-1029); Haring Declara-
tion --21-26 (App. 1099-1102); Second Meek Declara-
tion -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. Docu-
ments produced on remand reflect that internal cable
industry studies
-clearly establis[h] the importance of cable television
to broadcast television stations. Because viewership
equates to ratings and in turn ratings equate to
revenues, it is unlikely that broadcast stations could
afford to be off the cable system's line-up for any
extended period of time.- Memorandum from F.
Lopez to T. Baxter re: Adlink's Presentations on
Retransmission Consent, dated June 14, 1993 (App.
2118).
Another study prepared by a large MSO in 1993 con-
cluded 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.- Exhibit 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 advertis-
ing 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
voluntarily carried local broadcast stations accounting for
about 97 percent of television ratings in noncable
households. Declaration of Stanley Besen, Part III-D
(App. 808). Appellants, as well as the dissent in the
District Court, contend that in light of such evidence, it
is clear -the must-carry law is not necessary to assure
the economic viability of the broadcast system as a
whole.- NCTA Brief 18.
This assertion misapprehends the relevant inquiry.
The question is not whether Congress, as an objective
matter, was correct to determine must-carry is necessary
to prevent a substantial number of broadcast stations
from losing cable carriage and suffering significant
financial hardship. Rather, the question is whether the
legislative conclusion was reasonable and supported by
substantial evidence in the record before Congress.
Turner, 512 U. S., at 665-666. In making that determi-
nation, we are not to -re-weigh 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 reason-
able 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 (App. 626-631);
910 F. Supp., at 790, App. 2. At the same time, -in an
almost unprecedented development,- 5 FCC Rcd., at
5041, --153-154, stations began to fail in increasing
numbers. Meek Declaration -78 (App. 628) (-the
number of stations going dark began to escalate- after
1988) (emphasis omitted); JSCR --659, 661, 669,
671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587).
Broadcast advertising revenues declined in real terms by
11 percent between 1986 and 1991, during a period in
which cable's real advertising revenues nearly doubled.
See 910 F. Supp., at 790, app. 1. While these phenomena
could be thought to stem from factors quite separate
from the increasing market power of cable (for example,
a recession in 1990-1992), it was for Congress to deter-
mine the better explanation. We are not at liberty to
substitute our judgment for the reasonable conclusion of
a legislative body. See Turner, supra, at 665-666. It
is true the number of bankruptcies among local broad-
casters was small; but Congress could forecast continu-
ance of the -unprecedented- five-year downward trend
and conclude the station failures of 1985-1992 were, as
Commissioner Quello warned, the tip of the iceberg. A
fundamental principle of legislation is that Congress is
under no obligation to wait until the entire harm occurs
but may act to prevent it. -An industry need not be in
its death throes before Congress may act to protect it
from economic harm threatened by a monopoly.- Turner,
supra, at 672 (Stevens, J., concurring in part and
concurring in judgment). As a Senate Committee noted
in a Report on the Cable Act, -we need not wait until
widespread further harm has occurred to the system of
local broadcasting or to competition in the video market
before taking action to forestall such consequences.
Congress is allowed to make a rational predication of
the consequences of inaction and of the effects of
regulation in furthering governmental interests.- Senate
Report, at 60.
Despite the considerable evidence before Congress and
adduced on remand indicating that the significant
numbers of broadcast stations are at risk, the dissent
believes yet more is required before Congress could act.
It demands more information about which of the dropped
broadcast stations still qualify for mandatory carriage,
post, at 13; about the broadcast markets in which
adverse decisions take place, post, at 14; and about the
features of the markets in which bankrupt broadcast
stations were located prior to their demise. Post, at 19.
The level of detail in factfinding required by the dissent
would be an improper burden for courts to impose on
the Legislative Branch. That amount of detail is as
unreasonable in the legislative context as it is constitu-
tionally unwarranted. -Congress is not obligated, when
enacting its statutes, to make a record of the type that
an administrative agency or court does to accommodate
judicial review.- Turner, 512 U. S., at 666 (plurality
opinion).
We think it apparent must-carry serves the Govern-
ment'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 regula-
tory solution. See, e.g., Ward, 491 U. S., 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
regulation,'- and does not -`burden substantially more
speech than is necessary to further'- that interest.
Turner, supra, at 662 (quoting Ward, supra, at 799).
The must-carry provisions have the potential to
interfere with protected speech in two ways. First, the
provisions restrain cable operators' editorial discretion in
creating programming packages by -reduc[ing] the
number of channels over which [they] exercise unfettered
control.- Turner, 512 U. S., at 637. Second, the rules
-render it more difficult for cable programmers to
compete for carriage on the limited channels remaining.-
Ibid.
Appellants say the burden of must-carry is great, but
the evidence adduced on remand indicates the actual
effects are modest. Significant evidence indicates the
vast majority of cable operators have not been affected
in a significant manner by must-carry. Cable operators
have been able to satisfy their must-carry obligations 87
percent of the time using previously unused channel
capacity (Declaration of Harry Shooshan III, -14 (App.
692)); 94.5 percent of the 11,628 cable systems nation-
wide 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). Appel-
lees contend the burdens of must-carry will soon dimin-
ish 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 38-45; Turner Brief 33-42. They
note national averages fail to account for greater
crowding on certain (especially urban) cable systems, see
Time Warner Brief 41, 43; Turner Brief 41, and contend
that half of all cable systems, serving two-thirds of all
cable subscribers, have no available capacity, NCTA
Brief 45; Turner Brief 34; Time Warner Brief 42, n. 58.
Appellants argue that the rate of growth in cable
programming outstrips cable operators' creation of new
channel space, that the rate of cable growth is lower
than claimed, Turner Brief 39, and that must-carry
infringes First Amendment rights now irrespective of
future growth. Turner Brief 40; Reply Brief for Appel-
lants Turner Broadcasting System, Inc., et al. 12-13.
Finally, they say that regardless of the percentage of
channels occupied, must-carry still represents -thousands
of real and individual infringements of speech.- Time
Warner Brief 44.
While the parties' evidence is susceptible of varying
interpretations, a few definite conclusions can be drawn
about the burdens of must-carry. It is undisputed that
broadcast stations gained carriage on 5,880 channels as
a result of 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 chan-
nels 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 approxi-
mates the benefits of must-carry as well.
Because the burden imposed by must-carry is congru-
ent to the benefits it affords, we conclude must-carry is
narrowly tailored to preserve a multiplicity of broadcast
stations for the 40 percent of American households
without cable. Cf. Ward, 491 U. S., at 799, n. 7 (-the
essence of narrow tailoring- is -focus[sing] on the evils
the [Government] seeks to eliminate . . . [without]
significantly restricting a substantial quantity of speech
that does not create the same evils-); Community for
Creative Non-Violence, 468 U. S., at 297 (-None of [the
regulation's] provisions appears unrelated to the ends
that it was designed to serve.-). Congress took steps to
confine the breadth and burden of the regulatory
scheme. For example, the more popular stations (which
appellants concede would be carried anyway) will likely
opt to be paid for cable carriage under the -retransmis-
sion consent- provision of the Cable Act; those stations
will nonetheless be counted towards systems' must-carry
obligations. Congress exempted systems of 12 or fewer
channels, and limited the must-carry obligation of larger
systems to one-third of capacity, 47 U. S. C. 534(b)(1);
see also 535(b)(2)-(3); allowed cable operators discre-
tion in choosing which competing and qualified signals
would be carried, 534(b)(2); and permitted operators to
carry public stations on unused public, educational, and
governmental channels in some circumstances, 535(d).
Appellants say the must-carry provisions are overbroad
because they require carriage in some instances when
the Government's interests are not implicated: the must-
carry rules prohibit a cable system operator from drop-
ping a broadcaster -even if the operator has no anticom-
petitive 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 18,
cable systems serving 70 percent of subscribers are
vertically integrated with cable programmers, so anti-
competitive motives may be implicated in a majority of
systems' decisions not to carry broadcasters. Some
broadcasters will opt for must-carry although they would
not suffer serious financial harm in its absence. See
Time Warner Brief 35-36, and n. 49. Broadcasters with
stronger finances tend, however, to be popular ones that
ordinarily seek payment from cable systems for trans-
mission, so their reliance on must-carry should be
minimal. It appears, for example, that no more than a
few hundred of the 500,000 cable channels nationwide
are occupied by network affiliates opting for must-carry
(see Time Warner Brief 35-36, and n. 49), a number
insufficient to render must-carry -substantially broader
than necessary to achieve the government's interest.-
Ward, 491 U. S., at 800. Even on the doubtful assump-
tion that a narrower but still practicable must-carry rule
could be drafted to exclude all instances in which the
Government's interests are not implicated, our cases
establish that content-neutral regulations are not
-invalid simply because there is some imaginable
alternative that might be less burdensome on speech.-
Albertini, 472 U. S., at 689; accord Ward, supra, at 797;
Community for Creative Non-Violence, supra, at 299.
Appellants posit a number of alternatives in an effort
to demonstrate a less-restrictive means to achieve the
Government's aims. They ask us, in effect, to -sif[t]
through all the available or imagined alternative means
of regulating [cable television] in order to determine
whether the [Government's] solution was `the least intru-
sive means' of achieving the desired end,- an approach
we rejected in Ward v. Rock Against Racism, 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 less intrusive on a speaker's First
Amendment interests. -So long as the means chosen are
not substantially broader than necessary to achieve the
government's interest, . . . the regulation will not be
invalid simply because a court concludes that the
government's interest could be adequately served by
some less-speech-restrictive alternative.- Ward, supra,
at 800. See generally ibid. (holding regulation valid
although Court of Appeals had identified less restrictive
-alternative regulatory methods- of controlling volume at
concerts); Albertini, supra, at 689 (upholding validity of
order barring a person from a military base, although
excluding barred person was not -essential- to preserving
security and there were less speech-restrictive means of
attaining that end); Community for Creative Non-Vio-
lence, supra, at 299 (overnight camping ban upheld
although -there [were] less speech-restrictive alterna-
tives- of satisfying interest in preserving park lands);
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789, 815-817 (1984) (stating that
although making exceptions to ban on posting signs on
public property -would have had a less severe effect on
expressive activity,- they were not -constitutionally
mandated-). It is well established a regulation's validity
-does not turn on a judge's agreement with the responsi-
ble decisionmaker concerning the most appropriate
method for promoting significant government interests.-
Albertini, supra, at 689.
In any event, after careful examination of each of the
alternatives suggested by appellants, we cannot conclude
that any of them is an adequate alternative to must-
carry for promoting the Government's legitimate inter-
ests. 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 Communica-
tions Corp. v. FCC, 835 F. 2d 292. Those rules included
a minimum viewership standard for eligibility and
limited the must-carry obligation to 25 percent of
channel capacity. The parties agree only 14 percent of
broadcasters added to cable systems under the Cable Act
would be eligible for carriage under the Century rules.
See Turner Brief 45; Brief for Federal Appellees 45;
NAB Brief 49; see also Declaration of Gregory Klein
--21-25 (App. 1141-1143). The Century rules, for the
most part, would require carriage of the same stations
a system would carry without statutory compulsion.
While we acknowledge appellants' criticism of any
rationale that more is better, the scheme in question
does not place limitless must-carry obligations on cable
system operators. In the final analysis this alternative
represents nothing more than appellants' -`[dis]agree-
ment with the responsible decisionmaker concerning' . . .
the degree to which [the Government's] interests should
be promoted.- Ward, supra, at 800 (quoting Albertini,
supra, at 689); Community for Creative Non-Violence,
468 U. S., at 299. Congress legislated in the shadow of
Quincy and Century Communications. Its deliberations
reflect awareness of the must-carry rules at issue in
those cases (Senate Report, at 39-41, 62); indeed, in
drafting the must-carry provisions of the Cable Act,
Congress made specific comparisons to the rules struck
down in Quincy Cable TV, Inc v. FCC, 768 F. 2d 1434
(1985). See House Report, at 65-66; Senate Report, at
61. The record reflects a deliberate congressional choice
to adopt the present levels of protection, to which this
Court must defer.
The second alternative appellants urge is the use of
input selector or -A/B- switches, which, in combination
with antennas, would permit viewers to switch between
cable and broadcast input, allowing cable subscribers to
watch broadcast programs not carried on cable. Con-
gress examined the use of A/B switches as an alterna-
tive to must-carry and concluded it was -not an endur-
ing or feasible method of distribution and . . . not in the
public interest.- 2(a)(18). The data showed that: many
households lacked adequate antennas to receive broad-
cast signals, JSCR -- 724, 725, 768 (App. 1609-1610,
1634); A/B switches suffered from technical flaws, id.,
--718, 721, 738-739, 751-755, 761 (App. 1606, 1608,
1617-1618, 1624-1626, 1630); viewers might be required
to reset channel settings repeatedly in order to view
both UHF and cable channels, House Report, at 54; and
installation and use of the switch with other common
video equipment (such as videocassette recorders) could
be -cumbersome or impossible.- Senate Report, at 45,
and nn. 115-116; House Report, at 54, and nn. 60-61;
see also JSCR --746, 750, 758-767 (App. 1622, 1623,
1629-1634). Even the cable industry trade association
(one of appellants here) determined that -the A/B switch
is not a workable solution to the carriage problem.-
Senate Report, at 45, House Report, at 54. The group's
engineering committee likewise concluded the switches
suffered from technical problems and that no solution
-appear[ed] imminent.- Joint Petition for Reconsidera-
tion in MM Docket No. 85-349, pp. 6-8 (Dec. 17, 1986)
(App. 1606-1607); see also Senate Report, at 45, and
n. 115; House Report, at 54, and n. 60; Must Carry,
Hearing before the Subcommittee on Communications of
the Senate Committee on Commerce, Science, and
Transportation, 100th Cong., 1st Sess., 80 (1989)
(statement of Preston Padden) (App. 1608); Hearings on
Cable Television Regulation, at 901, n. 84 (statement of
James B. Hedlund) (App. 1608).
Congress also had before it -considerable evidence,-
including two empirical studies, that -it is rare for [cable
subscribers] ever to switch to receive an over-the-air
signal,- Senate Report, at 45; House Report, at 54, and
n. 62. A 1991 study demonstrated that even -after
several years of a government mandated program of
providing A-B switches [to] consumers and a simulta-
neous 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 and had an
A/B switch. Id., at 131. Of the small number of
households possessing the switch, an even smaller
number (only 38 percent) had ever used it. Ibid. See
House Report, at 54, and nn. 62-63. Congress' decision
that use of A/B switches was not a real alternative to
must-carry was a reasonable one based on substantial
evidence of technical shortcomings and lack of consumer
acceptance. The reasonableness of its judgment was
confirmed by additional evidence on remand that A/B
switches can create signal interference and add complex-
ity to video systems, factors discouraging their use. See
Declaration of Eldon Haakinson --45-54 (App. 602-609);
Supplemental Declaration of Eldon Haakinson --8-10
(App. 2025-2026); Memorandum from W. Cicora to L.
Yaeger et al., dated June 25, 1993, p. 5 (channels may
have to be reset every time A/B switch is used) (App.
246).
Appellants also suggest a leased-access regime, under
which both broadcasters and cable programmers would
have equal access to cable channels at regulated rates.
Turner Brief 46-47. Appellants do not specify what
kind of regime they would propose, or how it would
operate, making this alternative difficult to compare to
the must-carry rules. Whatever virtues the proposal
might otherwise have, it would reduce the number of
cable channels under cable systems' control in the same
manner as must-carry. Because this alternative is
aimed solely at addressing the bottleneck control of cable
operators, it would not be as effective in achieving
Congress' further goal of ensuring that significant
programming remains available for the 40 percent of
American households without cable. Indeed, unless the
number of channels set aside for local broadcast stations
were to decrease (sacrificing Congress' interest in
preserving a multiplicity of broadcasters), additional
channels would have to be set aside for cable program-
mers, further reducing the channels under the systems'
control. Furthermore, Congress was specific in noting
that requiring payment for cable carriage was inimical
to the interests it was pursuing, because of the burden
it would impose on small broadcasters. See House
Report, at 51; Senate Report, at 43, 45. Congress
specifically prohibited such payments under the Cable
Act. 47 U. S. C. 534(b)(10), 535(i).
Appellants next suggest a system of subsidies for
financially weak stations. Appellants have not proposed
any particular subsidy scheme, so it is difficult to
determine whether this option presents a feasible means
of achieving the Government's interests, let alone one
preferable to must-carry under the First Amendment.
To begin with, a system of subsidies would serve a very
different purpose than must-carry. Must-carry is
intended not to guarantee the financial health of all
broadcasters, but to ensure a base number of broadcast-
ers 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 enforce-
ment or an administrative complaint procedure to
protect broadcasters from cable operators' anticompetitive
conduct. See Turner Brief 47-48. Congress could con-
clude, 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 inadequate
substitutes for guaranteed carriage. The record suggests
independent broadcasters simply are not in a position to
engage in complex antitrust litigation, which involves
extensive discovery, significant motions practice, appeals,
and the payment of high legal fees throughout. See
JSCR --556-576 (App. 1528-1537); Meek Declaration
-58 (Record, Defendants' Joint Submission of Expert
Affidavits and Reports in Support of Motion for Sum-
mary Judgment, Vol. II.A, Exh. 2). An administrative
complaint procedure, although less burdensome, would
still require stations to incur considerable expense and
delay before enforcing their rights. As it is, some public
stations have been forced by limited resources to forgo
pursuing administrative complaints under the Cable Act
to obtain carriage. See Declaration of Carolyn Lewis
-13 (App. 548-549); Declaration of John Beabout -11
(App. 526-527). Those problems would be compounded
if instead of proving entitlement under must-carry, the
station instead had to prove facts establishing an
antitrust violation.
There is a final argument made by appellants that we
do not reach. Appellant Time Warner Entertainment
raises in its brief a separate First Amendment challenge
to a subsection of the Cable Act, 47 U. S. C. 534(c),
that requires carriage on unfilled must-carry channels of
low power broadcast stations if the FCC determines that
the station's programming -would address local news
and informational needs which are not being adequately
served by full power television broadcast stations
because of the geographic distance of such full power
stations from the low power station's community of
license.- 534(h)(2)(B). We earlier reserved this
question and invited the District Court to address it on
remand. See Turner, 512 U. S., at 643-644, n. 6.
Because this question has received -only the most
glancing- attention, ibid., from the District Court and
the parties, we have no more information about -the
operation of, and justifications for, the low-power
broadcast provisions,- ibid., on which to base an in-
formed determination than we did on the earlier appeal.
The District Court's primary opinion disposed of the
question in a perfunctory discussion, 910 F. Supp., at
750-751; and the dissent explicitly declined to reach the
question. Id., at 789. The issue has received even less
attention from the parties. It was not addressed in the
jurisdictional statement, the motions to affirm, or the
appellants' oppositions to the motions to affirm. In over
400 pages of merits briefs, the parties devoted a total of
four paragraphs (two of which were relegated to foot-
notes) to conclusory argumentation on this subject,
largely concerning not the merits of the question but
whether it was even properly before us. On this state
of the record we have insufficient basis to make an
informed judgment on this discrete issue. Even if the
issue is -fairly included- in the broadly worded question
presented, it is tangential to the main issue, and
prudence dictates that we not decide this question based
on such scant argumentation. See Socialist Labor Party
v. Gilligan, 406 U. S. 583, 588-589 n. 2 (1972);
Teamsters v. Denver Milk Producers, Inc., 334 U. S. 809
(1948) (per curiam); see also Carducci v. Regan, 714
F. 2d 171, 177 (CADC 1983) (Scalia, J.).

III
Judgments about how competing economic interests
are to be reconciled in the complex and fast-changing
field of television are for Congress to make. Those
judgments -cannot be ignored or undervalued simply
because [appellants] cas[t] [their] claims under the
umbrella of the First Amendment.- Columbia Broad-
casting 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' judg-
ment 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 these circumstances the
First Amendment requires nothing more. The judgment
of the District Court is affirmed.

It is so ordered.

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