No. 95-992.ZS Summary
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(Bench Opinion)
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TURNER BROADCASTING SYSTEM, INC., et al. v.
FEDERAL COMMUNICATIONS COMMISSION et al.
appeal from the united states district court for
the district of columbia
No. 95-992. Argued October 7, 1996-Decided March 31, 1997
Sections 4 and 5 of the Cable Television Consumer Protection and
Competition Act of 1992 (Cable Act) require cable television systems
to dedicate some of their channels to local broadcast television sta-
tions. In Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622
(Turner), this Court held these so-called -must-carry- provisions to be
subject to intermediate First Amendment scrutiny under United States
v. O'Brien, 391 U. S. 367, 377, whereby a content-neutral regulation
will be sustained if it advances important governmental interests
unrelated to the suppression of free speech and does not burden
substantially more speech than necessary to further those interests.
However, because a plurality considered the record as then developed
insufficient to determine whether the provisions would in fact alleviate
real harms in a direct and material way and would not burden sub-
stantially more speech than necessary, the Court remanded the case.
After 18 months of additional factfinding, the District Court granted
summary judgment for the Government and other appellees, conclud-
ing that the expanded record contained substantial evidence support-
ing Congress' predictive judgment that the must-carry provisions
further important governmental interests in preserving cable carriage
of local broadcast stations, and that the provisions are narrowly
tailored to promote those interests. This direct appeal followed.
Held: The judgment is affirmed.
910 F. Supp. 734, affirmed.
Justice Kennedy delivered the opinion of the Court with respect
to all but a portion of Part II-A-1, concluding that the must-carry
provisions are consistent with the First Amendment:
1. The record as it now stands supports Congress' predictive judg-
ment that the must-carry provisions further important governmental
interests. Pp. 6-13, 25-31.
(a) This Court decided in Turner, 512 U. S., at 662, and now
reaffirms, that must-carry was designed to serve three interrelated,
important governmental interests: (1) preserving the benefits of free,
over-the-air local broadcast television, (2) promoting the widespread
dissemination of information from a multiplicity of sources, and (3)
promoting fair competition in the television programming market.
Protecting noncable households from loss of regular broadcasting
service due to competition from cable systems is important because
40 percent of American households still rely on over-the-air signals
for television programming. See, e.g., id., at 663. Moreover, there
is a corresponding governmental purpose of the highest order in
ensuring public access to a multiplicity of information sources, ibid.,
and the Government has an interest in eliminating restraints on fair
competition even when the regulated parties are engaged in protected
expressive activity, ibid. The parties' attempts to recast these inter-
ests in forms more readily proved-i.e., the Government's claim that
the loss of even a few broadcast stations is critically important and
appellants' assertions that Congress' interest in preserving broadcast-
ing is not implicated absent a showing that the entire industry would
fail, and that its interest in assuring a multiplicity of information
sources extends only as far as preserving a minimum amount of
broadcast service-are inconsistent with Congress' stated interests in
enacting must-carry. Pp. 6-11.
(b) Even in the realm of First Amendment questions where
Congress must base its conclusions upon substantial evidence, courts
must accord deference to its findings as to the harm to be avoided and
to the remedial measures adopted for that end, lest the traditional
legislative authority to make predictive judgments when enacting
nationwide regulatory policy be infringed. See, e.g., Turner, 512 U. S.,
at 665 (plurality opinion). The courts' sole obligation is to assure that,
in formulating its judgments, Congress has drawn reasonable infer-
ences based on substantial evidence. Id., at 666. Pp. 11-13.
(c) The must-carry provisions serve important governmental
interests -in a direct and effective way.- Ward v. Rock Against
Racism, 491 U. S. 781, 800. Congress could reasonably conclude from
the substantial body of evidence before it that attaining cable carriage
would be of increasing importance to ensuring broadcasters' economic
viability, and that, absent legislative action, the free local off-air
broadcast system was endangered. Such evidence amply indicated
that: a broadcast station's viability depends to a material extent on
its ability to secure cable carriage and thereby to increase its audience
size and revenues; broadcast stations had fallen into bankruptcy,
curtailed their operations, and suffered serious reductions in operating
revenues as a result of adverse carriage decisions by cable systems;
stations without carriage encountered severe difficulties obtaining
financing for operations; and the potentially adverse impact of losing
carriage was increasing as the growth of -clustering--i.e., the acquisi-
tion of as many cable systems in a given market as possible-gave
multiple system operators centralized control over more local markets.
The reasonableness of the congressional judgment is confirmed by
evidence assembled on remand that clearly establishes the importance
of cable to broadcast stations and suggests that expansion in the cable
industry was harming broadcasting. Although the record also con-
tains evidence to support a contrary conclusion, the question is not
whether Congress was correct as an objective matter, but whether the
legislative conclusion was reasonable and supported by substantial
evidence. Turner, supra, at 665-666. Where, as here, that standard
is satisfied, summary judgment is appropriate regardless of whether
the evidence is in conflict. Cf., e.g., American Textile Mfrs. Institute,
Inc. v. Donovan, 452 U. S. 490, 523. Pp. 25-31.
2. The must-carry provisions do not burden substantially more
speech than is necessary to further the governmental interests they
promote. See e.g., Turner, supra, at 662. Appellants say must-carry's
burden is great, but significant evidence adduced on remand indicates
the vast majority of cable operators have not been affected in a
significant manner. This includes evidence that: such operators have
satisfied their must-carry obligations 87 percent of the time using
previously unused channel capacity; 94.5 percent of the cable systems
nationwide have not had to drop any programming; the remaining 5.5
percent have had to drop an average of only 1.22 services from their
programming; operators nationwide carry 99.8 percent of the program-
ming they carried before must-carry; and broadcast stations gained
carriage on only 5,880 cable channels as a result of must-carry. The
burden imposed by must-carry is congruent to the benefits it affords
because, as appellants concede, most of those 5,880 stations would be
dropped in its absence. Must-carry therefore is narrowly tailored to
preserve a multiplicity of broadcast stations for the 40 percent of
American households without cable. Cf., e.g., Ward, 491 U. S., at 799,
n. 7. The possibilities that must-carry will prohibit dropping a broad-
caster even if the cable operator has no anticompetitive motives or if
the broadcaster would survive without cable access are not so preva-
lent that they render must-carry substantially overbroad. This Court's
precedents establish that it will not invalidate the preferred remedial
scheme merely because some alternative solution is marginally less
intrusive on a speaker's First Amendment interests. In any event,
a careful examination of each of appellants' suggestions-a more
limited set of must-carry obligations modeled on those earlier used by
the Federal Communications Commission; use of so-called A/B
switches, giving consumers a choice of both cable and broadcast
signals; a leased-access regime requiring cable operators to set aside
channels for both broadcasters and cable programmers to use at a
regulated price; subsidies for broadcasters; and a system of antitrust
enforcement or an administrative complaint procedure-reveals that
none of them is an adequate alternative to must-carry for achieving
the Government's aims. Because it has received only the most glanc-
ing attention from the District Court and the parties, prudence dic-
tates that this Court not reach appellants' challenge to the Cable Act
provision requiring carriage of low-power stations in certain circum-
stances. Pp. 31-42.
Justice Kennedy, joined by The Chief Justice, Justice Stevens,
and Justice Souter, and by Justice Breyer in part, concluded in
Part II-A-1 that the expanded record contains substantial evidence
to support Congress' conclusion that enactment of must-carry was
justified by a real threat to local broadcasting's economic health. The
harm Congress feared was that broadcast stations dropped or denied
cable carriage would be at a serious risk of financial difficulty, see
Turner, 512 U. S., at 667, and would deteriorate to a substantial
degree or fail altogether, id., at 666. The evidence before Congress,
as supplemented on remand, indicated, inter alia, that: cable operators
had considerable and growing market power over local video program-
ming markets in 1992; the industry's expanding horizontal and verti-
cal integration would give cable operators increasing ability and
incentive to drop, or reposition to less-viewed channels, independent
local broadcast stations, which competed with the operators for audi-
ences and advertisers; significant numbers of local broadcasters had
already been dropped; and, absent must-carry, additional stations
would be deleted, repositioned, or not carried in an attempt to capture
their local advertising revenues to offset waning cable subscription
growth. The reasonableness of Congress' predictive judgment is also
supported by additional evidence, developed on remand, indicating
that the percentage of local broadcasters not carried on the typical
cable system is increasing, and that the growth of cable systems'
market power has proceeded apace, better enabling them to sell their
own reach to potential advertisers, and to deny broadcast competitors
access to all or substantially all the cable homes in a market area.
Pp. 13-25.
Justice Breyer, although agreeing that the statute satisfies the
intermediate scrutiny standard set forth in United States v. O'Brien,
391 U. S. 367, 377, rested his conclusion not upon the principal
opinion's analysis of the statute's efforts to promote fair competition,
but rather upon its discussion of the statute's other two objectives.
He therefore joined the opinion of the Court except insofar as Part
II-A-1 relies on an anticompetitive rationale. Pp. 1-4.
Kennedy, J., announced the judgment of the Court and delivered the
opinion of the Court, except as to a portion of Part II-A-1. Rehn-
quist, C. J., and Stevens and Souter, JJ., joined that opinion in full,
and Breyer, J., joined except insofar as Part II-A-1 relied on an
anticompetitive rationale. Stevens, J., filed a concurring opinion.
Breyer, J., filed an opinion concurring in part. O'Connor, J., filed a
dissenting opinion, in which Scalia, Thomas, and Ginsburg, JJ.,
joined.