95-992.ZD Dissenting
cou...@usenet.ins.cwru.edu
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 O'Connor, with whom Justice Scalia,
Justice Thomas, and Justice Ginsburg join, dissenting.
In sustaining the must-carry provisions of the Cable
Television Protection and Competition Act of 1992, Pub.
L. 102-385, 4-5, 106 Stat. 1460 (Cable Act), against
a First Amendment challenge by cable system operators
and cable programmers, the Court errs in two crucial
respects. First, the Court disregards one of the princi-
pal defenses of the statute urged by appellees on
remand: that it serves a substantial interest in preserv-
ing -diverse,- -quality- programming that is -responsive-
to the needs of the local community. The course of this
litigation on remand and the proffered defense strongly
reinforce my view that the Court adopted the wrong
analytic framework in the prior phase of this case. See
Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622,
643-651 (1994) (Turner); id., at 675-680 (O'Connor, J.,
concurring in part and dissenting in part). Second, the
Court misapplies the -intermediate scrutiny- framework
it adopts. Although we owe deference to Congress'
predictive judgments and its evaluation of complex
economic questions, we have an independent duty to
identify with care the Government interests supporting
the scheme, to inquire into the reasonableness of
congressional findings regarding its necessity, and to
examine the fit between its goals and its consequences.
Edenfield v. Fane, 507 U. S. 761, 770-771 (1993); Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 129
(1989); Los Angeles v. Preferred Communications, Inc.,
476 U. S. 488, 496 (1986); Landmark Communications,
Inc. v. Virginia, 435 U. S. 829, 843 (1978). The Court
fails to discharge its duty here.
I
I did not join those portions of the principal opinion in
Turner holding that the must-carry provisions of the
Cable Act are content neutral and therefore subject to
intermediate First Amendment scrutiny. 512 U. S., at
643-651. The Court there referred to the -unusually
detailed statutory findings- accompanying the Act, in
which Congress recognized the importance of preserving
sources of local news, public affairs, and educational
programming. Id., at 646; see id., at 632-634, 648.
Nevertheless, the Court minimized the significance of
these findings, suggesting that they merely reflected
Congress' view of the -intrinsic value- of broadcast
programming generally, rather than a congressional
preference for programming with local, educational, or
informational content. Id., at 648.
In Turner, the Court drew upon Senate and House
reports to identify three -interests- that the must-carry
provisions were designed to serve: -(1) preserving the
benefits of free, over-the-air local broadcast television,
(2) promoting the widespread dissemination of informa-
tion from a multiplicity of sources, and (3) promoting
fair competition in the market for television program-
ming.- Id., at 662 (citing S. Rep. No. 102-92, p. 58
(1991); H. R. Rep. No. 102-628, p. 63 (1992)). The
Court reiterates these interests here, ante, at 6, but
neither the principal opinion nor the partial concurrence
ever explains the relationship between them with any
clarity.
Much of the principal opinion treats the must-carry
provisions as a species of antitrust regulation enacted by
Congress in response to a perceived threat that cable
system operators would otherwise engage in various
forms of anticompetitive conduct resulting in harm to
broadcasters. E.g., ante, at 7-8, 13-25. The Court
recognizes that appellees cannot show an anticompetitive
threat to broadcast television simply by demonstrating
that -a few- broadcast stations would be forced off the
air in the absence of must-carry. Ante, at 7; see Brief
for Federal Appellees 14, 17, 18. No party has ever
questioned that adverse carriage decisions by cable
operators will threaten some broadcasters in some
markets. The notion that Congress premised the must-
carry provisions upon a far graver threat to the struc-
ture of the local broadcast system than the loss of -a
few- stations runs through virtually every passage in the
principal Turner opinion that discusses the Government
interests the provisions were designed to serve. See,
e.g., 512 U. S., at 647 (recognizing substantiality of
interest in -`protecting noncable households from loss of
regular television broadcasting service due to competition
from cable systems'- (quoting Capital Cities Cable, Inc.
v. Crisp, 467 U. S. 691, 714 (1984) (emphasis added)));
512 U. S., at 652 (-Congress sought to preserve the
existing structure of the Nation's broadcast television
medium, . . . and, in particular, to ensure that broadcast
television remains available as a source of video pro-
gramming for those without cable- (emphasis added));
id., at 663 (recognizing interest in -maintaining the local
broadcasting structure-); id., at 664-665 (plurality
opinion) (characterizing inquiry as whether Government
-has adequately shown that the economic health of local
broadcasting is in genuine jeopardy- (emphasis added));
id., at 665 (noting Government's reliance on Congress'
finding that -absent mandatory carriage rules, the
continued viability of local broadcast television would be
`seriously jeopardized'- (quoting Cable Act, 2(a)(16)
(emphasis added))); id., at 666 (recognizing Government's
assertion that -the must-carry rules are necessary to
protect the viability of broadcast television- (emphasis
added)). Ostensibly adopting this framework, the Court
now asks whether Congress could reasonably have
thought the must-carry regime necessary to prevent a
-significant reduction in the multiplicity of broadcast
programming sources available to noncable households.-
Ante, at 10 (emphasis added).
I fully agree that promoting fair competition is a
legitimate and substantial Government goal. But the
Court nowhere examines whether the breadth of the
must-carry provisions comports with a goal of preventing
anticompetitive harms. Instead, in the course of its
inquiry into whether the must-carry provisions are
-narrowly tailored,- the principal opinion simply assumes
that most adverse carriage decisions are anticompeti-
tively motivated, and that must-carry is therefore a
measured response to a problem of anticompetitive
behavior. Ante, at 35. We ordinarily do not substitute
unstated and untested assumptions for our independent
evaluation of the facts bearing upon an issue of constitu-
tional law. See Schaumburg v. Citizens for a Better
Environment, 444 U. S. 620, 636 (1980).
Perhaps because of the difficulty of defending the
must-carry provisions as a measured response to
anticompetitive behavior, the Court asserts an -inde-
pendent- interest in preserving a -multiplicity- of broad-
cast programming sources. Ante, at 11; ante, at 1-3
(Breyer, J., concurring in part). In doing so, the Court
posits existence of -conduct that threatens- the availabil-
ity of broadcast television outlets, quite apart from
anticompetitive conduct. Ante, at 11. We are left to
wonder what precisely that conduct might be. Moreover,
when separated from anticompetitive conduct, this
interest in preserving a -multiplicity of broadcast
programming sources- becomes poorly defined. Neither
the principal opinion nor the partial concurrence offers
any guidance on what might constitute a -significant
reduction- in the availability of broadcast programming.
The proper analysis, in my view, necessarily turns on
the present distribution of broadcast stations among the
local broadcast markets that make up the national
broadcast -system.- Whether cable poses a -significant-
threat to a local broadcast market depends first on how
many broadcast stations in that market will, in the
absence of must-carry, remain available to viewers in
noncable households. It also depends on whether
viewers actually watch the stations that are dropped or
denied carriage. The Court provides some raw data on
adverse carriage decisions, but it never connects that
data to markets and viewership. Instead, the Court
proceeds from the assumptions that adverse carriage
decisions nationwide will affect broadcast markets in
proportion to their size; and that all broadcast program-
ming is watched by viewers. Neither assumption is
logical or has any factual basis in the record.
Appellees bear the burden of demonstrating that the
provisions of the Cable Act restricting expressive activity
survive constitutional scrutiny. See Turner, supra, at
664. As discussed below, the must-carry provisions
cannot be justified as a narrowly tailored means of
addressing anticompetitive behavior. See infra, at 7-29;
ante, at 1, 3 (Breyer, J., concurring in part). As a
result, the Court's inquiry into whether must-carry
would prevent a -significant reduction in the multiplicity
of broadcast programming sources- collapses into an
analysis of an ill-defined and generalized interest in
maintaining broadcast stations, wherever they might be
threatened and whatever their viewership. Neither the
principal opinion nor the partial concurrence ever
explains what kind of conduct, apart from anticompeti-
tive conduct, threatens the -multiplicity- of broadcast
programming sources. Indeed, the only justification
advanced by the parties for furthering this interest is
heavily content based. It is undisputed that the broad-
cast stations protected by must-carry are the -marginal-
stations within a given market, see infra, at 16; the
record on remand reveals that any broader threat to the
broadcast system was entirely mythical. Pressed to
explain the importance of preserving noncable viewers'
access to -vulnerable- broadcast stations, appellees
emphasize that the must-carry rules are necessary to
ensure that broadcast stations maintain -diverse,-
-quality- programming that is -responsive- to the needs
of the local community. Brief for Federal Appellees 13,
30; see Brief for Appellees National Association of
Broadcasters et al. 36-37 (NAB Brief); Tr. of Oral Arg.
29, 42; see also ante, at 2 (Breyer, J., concurring in
part) (justifying must-carry as a means of preventing a
decline in -quality and quantity of programming choice-).
Must-carry is thus justified as a way of preserving
viewers' access to a Spanish or Chinese language station
or of preventing an independent station from adopting
a home-shopping format. NAB Brief 28, 33; Brief for
Federal Appellees 31; Tr. of Oral Arg. 32-33. Undoubt-
edly, such goals are reasonable and important, and the
stations in question may well be worthwhile targets of
Government subsidies. But appellees' characterization
of must-carry as a means of protecting these stations,
like the Court's explicit concern for promoting -`commu-
nity self-expression'- and the -`local origination of broad-
cast programming,'- ante, at 9 (brackets omitted),
reveals a content-based preference for broadcast pro-
gramming. This justification of the regulatory scheme
is, in my view, wholly at odds with the Turner Court's
premise that must-carry is a means of preserving -access
to free television programming-whatever its content,-
512 U. S., at 649 (emphasis added).
I do not read Justice Breyer's opinion-which
analyzes the must-carry rules in part as a -speech-
enhancing- measure designed to ensure a -rich mix- of
over-the-air programming, see ante, at 2, 3-to treat the
content of over-the-air programming as irrelevant to
whether the Government's interest in promoting it is an
important one. The net result appears to be that five
Justices of this Court do not view must-carry as a
narrowly tailored means of serving a substantial govern-
mental interest in preventing anticompetitive behavior;
and that five Justices of this Court do see the signifi-
cance of the content of over-the-air programming to the
Government's and appellees' efforts to defend the law.
Under these circumstances, the must-carry provisions
should be subject to strict scrutiny, which they surely
fail.
II
The principal opinion goes to great lengths to avoid
acknowledging that preferences for -quality,- -diverse,-
and -responsive- local programming underlie the must-
carry scheme, although the partial concurrence's reliance
on such preferences is explicit. See ante, at 2 (Breyer,
J., concurring in part). I take the principal opinion at
its word and evaluate the claim that the threat of
anticompetitive behavior by cable operators supplies a
content-neutral basis for sustaining the statute. It does
not.
The Turner Court remanded the case for a determina-
tion whether the must-carry provisions satisfy intermedi-
ate scrutiny under United States v. O'Brien, 391 U. S.
367 (1968). Under that standard, appellees must
demonstrate that the must-carry provisions (1) -furthe[r]
an important or substantial government interest-; and
(2) burden speech no more -than is essential to the
furtherance of that interest.- Id., at 377; see also Ward
v. Rock Against Racism, 491 U. S. 781, 799 (1989). The
Turner plurality found that genuine issues of material
fact remained as to both parts of the O'Brien analysis.
On whether must-carry furthers a substantial govern-
mental interest, the Turner Court remanded the case to
test two essential and unproven propositions: -(1) that
unless cable operators are compelled to carry broadcast
stations, significant numbers of broadcast stations will
be refused carriage on cable systems; and (2) that the
broadcast stations denied carriage will either deteriorate
to a substantial degree or fail altogether.- 512 U. S., at
666 (emphasis added). As for whether must-carry
restricts no more speech than essential to further
Congress' asserted purpose, the Turner plurality found
evidence lacking on the extent of the burden that the
must-carry provisions would place on cable operators and
cable programmers. Id., at 667-668.
The District Court resolved this case on cross-motions
for summary judgment. As the Court recognizes, ante,
at 29, the fact that the evidence before Congress might
have been in conflict will not necessarily preclude
summary judgment upholding the must-carry scheme.
The question, rather, is what the undisputed facts show
about the reasonableness of Congress' conclusions. We
are not, however, at liberty to substitute speculation for
evidence or to ignore factual disputes that call the
reasonableness of Congress' findings into question. The
evidence on remand demonstrates that appellants, not
appellees, are entitled to summary judgment.
A
The principal opinion devotes substantial discussion to
the structure of the cable industry, see ante, at 13-14,
23-25, a matter that was uncontroversial in Turner.
See, e.g., 512 U. S., at 627-628, 632-633, 639-640; id.,
at 684 (O'Connor, J., concurring in part and dissenting
in part). As of 1992, cable already served 60 percent of
American households. I agree with the observation that
Congress could reasonably predict an increase in cable
penetration of the local video programming market.
Ante, at 14. Local franchising requirements and the
expense of constructing a cable system to serve a
particular area make it possible for cable franchisees to
exercise a monopoly over cable service. 512 U. S., at
633. Nor was it ever disputed that some cable system
operators own large numbers of systems nationwide, or
that some cable systems are affiliated with cable
programmers. Turner Broadcasting v. FCC, 819
F. Supp. 32, 39-40 (DC 1993) (opinion of Jackson, J.);
id., at 57 (Williams, J., dissenting); Plaintiffs' Response
to NAB's Statement of Material Facts -4 (Feb. 12, 1993)
(App. in Turner, O. T. 1993, No. 93-44, p. 186); Plaintiff
Time Warner's Statement of Material Facts as to Which
There Is No Genuine Issue --5, 12 (App. in Turner,
O. T. 1993, No. 93-44, pp. 198, 199).
What was not resolved in Turner was whether -rea-
sonable inferences based on substantial evidence,- 512
U. S., at 666 (plurality opinion), supported Congress'
judgment that the must-carry provisions were necessary
-to prevent cable operators from exploiting their eco-
nomic power to the detriment of broadcasters,- id., at
649. Because I remain convinced that the statute is not
a measured response to congressional concerns about
monopoly power, see infra, at 23-29, in my view the
principal opinion's discussion on this point is irrelevant.
But even if it were relevant, it is incorrect.
1
The Turner plurality recognized that Congress' interest
in curtailing anticompetitive behavior is substantial -in
the abstract.- 512 U. S., at 664. The principal opinion
now concludes that substantial evidence supports the
congressional judgment that cable operators have
incentives to engage in significant anticompetitive
behavior. It appears to accept two related arguments on
this point: first, that vertically integrated cable operators
prefer programming produced by their affiliated cable
programming networks to broadcast programming, ante,
at 15-16, 17; and second, that potential advertising
revenues supply cable system operators, whether af-
filiated with programmers or not, with incentives to
prefer cable programming to broadcast programming.
Ante, at 17-19.
To support the first proposition, the principal opinion
states that -[e]xtensive testimony- before Congress
showed that in fact operators do have incentives to favor
vertically integrated programmers. Ante, at 15. This
testimony, noteworthy as it may be, is primarily that of
persons appearing before Congress on behalf of the
private appellees in this case. Compare ante, at 15-16,
with Competitive Issues in the Cable Television Indus-
try: Hearing before the Subcommittee on Antitrust,
Monopolies and Business Rights of the Senate Commit-
tee on the Judiciary, 100th Cong., 2d Sess., 543 (1988)
(Hearing on Competitive Issues) (statement of Milton
Maltz, representative of Association of Independent
Television Stations, Inc. (INTV), now appellee Associa-
tion of Local Television Stations, Inc.) (Record, Defend-
ants' Joint Submission of Congressional Record (CR) Vol.
I.C, Exh. 8, p. CR 01882); Cable Television Regulation:
Hearings on H. R. 1303 and H. R. 2546 before the
Subcommittee on Telecommunications and Finance of the
House Committee on Energy and Commerce, 102d Cong.,
1st Sess., 858 (1992) (statement of James B. Hedlund,
president of INTV) (CR Vol. I.J, Exh. 18, p. CR 07862);
id., at 752 (statement of Edward O. Fritts, president of
appellee NAB) (CR Vol. I.J, Exh. 18, p. CR 07756); id.,
at 701 (statement of Gene Kimmelman, legislative
director of appellee Consumer Federation of America)
(CR Vol. I.J., Exh. 18, p. CR 07706). It is appropriate
to regard the testimony of interested persons with a
degree of skepticism when our task is to engage in
-`independent judgment of the facts bearing on an issue
of constitutional law.'- Turner, supra, at 666 (plurality
opinion) (quoting Sable Communications of Cal., Inc. v.
FCC, 492 U. S., at 129). Moreover, even accepting as
reasonable Congress' conclusion that cable operators
have incentives to favor affiliated programmers, Con-
gress has already limited the number of channels on a
cable system that can be occupied by affiliated program-
mers. 47 U. S. C. 533(f)(1)(B); 47 CFR 76.504 (1995).
Once a cable system operator reaches that cap, it can no
longer bump a broadcaster in favor of an affiliated
programmer. If Congress were concerned that broadcast-
ers favored too many affiliated programmers, it could
simply adjust the cap. Must-carry simply cannot be
justified as a response to the allegedly -substantial-
problem of vertical integration.
The second argument, that the quest for advertising
revenue will supply cable operators with incentives to
drop local broadcasters, takes two forms. First, some
cable programmers offer blank slots within a program
into which a cable operator can insert advertisements;
appellees argue that -[t]he opportunity to sell such
advertising gives cable programmers an additional value
to operators above broadcast stations . . . .- Brief for
Federal Appellees 24. But that -additional value- arises
only because the must-carry provisions require cable
operators to carry broadcast signals without alteration.
47 U. S. C. 534(b)(3). Judge Williams was correct in
noting that the Government cannot have -a `substantial
interest' in remedying a competitive distortion that
arises entirely out of a detail in its own purportedly
remedial legislation.- 910 F. Supp. 734, 777 (DC 1995)
(Williams, J., dissenting). Second, appellees claim that
since cable operators compete directly with broadcasters
for some advertising revenue, operators will profit if
they can drive broadcasters out of the market and
capture their advertising revenue. Even if the record
before Congress included substantial evidence that
-advertising revenue would be of increasing importance
to cable operators as subscribership growth began to
flatten,- ante, at 21, it does not necessarily follow that
Congress could reasonably find that the quest for
advertising revenues supplies cable operators with
incentives to engage in predatory behavior, or that must-
carry is a reasonable response to such incentives. There
is no dispute that a cable system depends primarily
upon its subscriber base for revenue. A cable operator
is therefore unlikely to drop a widely viewed station in
order to capture advertising revenues-which, according
to the figures of appellees' expert, account for between
one and five percent of the total revenues of most large
cable systems. Declaration of James N. Dertouzos - 22
(App. 967). In doing so, it would risk losing subscribers.
Nevertheless, appellees contend that cable operators will
drop some broadcast stations in spite of, and not
because of, viewer preferences. The principal opinion
suggests that viewers are likely subscribe to cable even
though they prefer certain over-the-air programming to
cable programming, because they would be willing to
trade access to their preferred channel for access to
dozens of cable channels. Ante, at 19. Even assuming
that, at the margin, advertising revenues would drive
cable systems to drop some stations-invariably de-
scribed as -vulnerable- or -smaller- independents, see
NAB Brief 22; Brief for Federal Appellees 25, and
n. 14-the strategy's success would depend upon the
additional untested premise that the advertising reve-
nues freed by dropping a broadcast station will flow to
cable operators rather than to other broadcasters.
2
Under the standard articulated by the Turner plural-
ity, the conclusion that must-carry serves a substantial
governmental interest depends upon the -essential
propositio[n]- that, without must-carry, -significant
numbers of broadcast stations will be refused carriage
on cable systems.- 512 U. S., at 666. In analyzing
whether this undefined standard is satisfied, the Court
focuses almost exclusively on raw numbers of stations
denied carriage or -repositioned--that is, shifted out of
their traditional channel positions.
The Court begins its discussion of evidence of adverse
carriage decisions with the 1988 study sponsored by the
Federal Communications Commission. Ante, at 20; see
Cable System Broadcast Signal Carriage Survey, Staff
Report by the Policy and Rules Division, Mass Media
Bureau (Sept. 1, 1988) (App. 37). But in Turner, the
plurality criticized this very study, noting that it did not
indicate the time frame within which carriage denials
occurred or whether the stations were later restored to
their positions. 512 U. S., at 667. As for the evidence
in the record before Congress, these gaps persist; the
Court relies on a study of public television stations to
support the proposition that -in the vast majority of
cases, dropped stations were not restored to the cable
service.- Ante, at 20.
In canvassing the additional evidence offered on
remand, the Court focuses on the suggestion of one of
appellees' experts that the 1988 FCC survey underesti-
mated the number of drops of broadcast stations in the
non-must-carry era. The data do not indicate which of
these stations would now qualify for mandatory carriage.
Appellees' expert frames the relevant drop statistic as
-subscriber instances--that is, the number of drop
instances multiplied by the number of cable subscribers
affected. Declaration of Tom Meek -17 (Meek Declara-
tion) (App. 623). Two-thirds of the -subscriber in-
stances- of drops existing as of mid-1992 remained
uncured as of mid-1994, fully 19 months after the
present must-carry rules went into effect. Meek Decla-
ration, Attachment C (Record, Defendants' Joint Submis-
sion of Expert Affidavits and Reports in Support of
Motion for Summary Judgment, Vol. II.A, Exh. 2). The
Court discounts the importance of whether dropped
stations now qualify for mandatory carriage, on the
ground that requiring any such showing places an
-improper burden- on the Legislative Branch. Ante, at
31. It seems obvious, however, that if the must-carry
rules will not reverse those adverse carriage decisions on
which appellees rely to illustrate the Government
-interest- supporting the rules, then a significant
question remains as to whether the rules in fact serve
the articulated interest. Without some further analysis,
I do not see how the Court can, in the course of its
independent scrutiny on a question of constitutional law,
deem Congress' judgment -reasonable.-
In any event, the larger problem with the Court's
approach is that neither the FCC study nor the addi-
tional evidence on remand canvassed by the Court, ante,
at 21-25, says anything about the broadcast markets in
which adverse carriage decisions take place. The Court
accepts Congress' stated concern about preserving the
availability of a -multiplicity- of broadcast stations, but
apparently thinks it sufficient to evaluate that concern
in the abstract, without considering how much local
service is already available in a given broadcast market.
Ante, at 30; see also ante, at 1-3 (Breyer, J., concurring
in part). I address this gap in the Court's discussion at
greater length below, infra, at 19-22, by examining the
reasonableness of Congress' prediction that adverse
carriage decisions will inflict severe harm on broadcast
stations.
Nor can we evaluate whether must-carry is necessary
to serve an interest in preserving broadcast stations
without examining the value of the stations protected by
the must-carry scheme to viewers in noncable house-
holds. By disregarding the distribution and viewership
of stations not carried on cable, the Court upholds the
must-carry provisions without addressing the interests
of the over-the-air television viewers that Congress
purportedly seeks to protect. See Turner, 512 U. S., at
647 (describing interest in -protecting noncable house-
holds from loss of regular television broadcasting service-
(emphasis added; internal quotation marks omitted)); id.,
at 652 (describing interest in ensuring that broadcast
television remains available as a source of video pro-
gramming for those without cable (emphasis added));
ante, at 10 (describing interest in preventing -any
significant reduction in the multiplicity of broadcast
programming sources available to noncable households-
(emphasis added)). The Court relies on analyses
suggesting that, as of 1992, the typical independent
commercial broadcaster was being denied carriage on
cable systems serving 47 percent of subscribers in its
local market, and the typical noncommercial station was
denied carriage on cable systems serving 36 percent of
subscribers in its local market. Ante, at 22. The only
analysis in the record of the relationship between
carriage and noncable viewership favors the appellants.
A 1991 study by Federal Trade Commission staff
concluded that most cable systems voluntarily carried
broadcast stations with any reportable ratings in
noncable households and that most instances of noncar-
riage involved -relatively remote (and duplicated)
network stations, or local stations that few viewers
watch.- Carriage of Television Broadcast Signals by
Cable Television Systems, Reply Comment of the Staff
of the Bureau of Economics and the San Francisco
Regional Office of the Federal Trade Commission, p. 3
(Nov. 26, 1991) (App. 163); see also Declaration of
Stanley M. Besen (Besen Declaration) (App. 808, 818);
Second Declaration of Stanley M. Besen (App. 1812)
(presenting data that (1) the typical cable subscriber was
served by a cable system carrying local broadcast
stations accounting for 97 percent of viewing in noncable
households; and (2) the typical cable subscriber was
served by a cable system carrying 90 percent of all local
broadcast stations with any reportable ratings and 30
percent of all local broadcast stations with no reportable
ratings).
Appellees claim there are various methodological flaws
in each study, including appellants' expert's reliance on
Nielsen data to measure viewership shares. A protective
order entered by the District Court in this case prevents
the parties from contesting the accuracy of such data.
App. 321. But appellees-who bear the burden of proof
in this case-offer no alternative measure of the viewer-
ship in noncable households of stations dropped or
denied carriage. Instead, appellees and their experts
repeatedly emphasize the importance of preserving
-vulnerable- or -marginal- independent stations serving
-relatively small- audiences. Brief for Federal Appellees
14, 17, 25, n. 14; NAB Brief 31; see also Deposition of
James N. Dertouzos (App. 381) (describing broadcast
stations affected by carriage denials as -[s]tations on the
margin of cable operator decisionmaking now and in the
future-); Deposition of Roger G. Noll (App. 446) (cable
operators' advertising incentives will operate -at the
margin- and affect -weaker stations, UHF independent
stations-); id., at 450 (stations dropped will be -[t]hose
that have the lowest audience ratings combined with the
absence of a specific target audience-); Deposition of
Harry Shooshan III (App. 477) (must-carry has benefit-
ted -stations that were not as strong, that were margin-
al-); Reply Declaration of Roger G. Noll -19 (App. 2009)
(-While frequently . . . , the stations not carried by cable
systems have low ratings, the point is this: even the
lowest rated commercial stations attract viewers, and the
lowest rated noncommercial stations attract members-).
The Court suggests that it is appropriate to disregard
the low noncable viewership of stations denied carriage,
because in some instances cable viewers preferred the
dropped broadcast channels to the cable channels that
replaced them. Ante, at 22. The viewership statistics
in question, as well as their significance, are sharply
disputed, but they are also irrelevant. The issue is
whether the Government can demonstrate a substantial
interest in forced carriage of certain broadcast stations,
for the benefit of viewers who lack access to cable. That
inquiry is not advanced by an analysis of relative cable
household viewership of broadcast and cable program-
ming. When appellees are pressed to explain the
Government's -substantial interest- in preserving non-
cable viewers' access to -vulnerable- or -marginal- sta-
tions with -relatively small- audiences, it becomes
evident that the interest has nothing to do with anti-
competitive behavior, but has everything to do with
content-preserving -quality- local programming that is
-responsive- to community needs. Brief for Federal
Appellees 13, 30. Indeed, Justice Breyer expressly
declines to accept the anticompetitive rationale for the
must-carry rules embraced by the principal opinion, and
instead explicitly relies on a need to preserve a -rich
mix- of -quality- programming. Ante, at 1, 2 (Breyer,
J., concurring in part).
3
I turn now to the evidence of harm to broadcasters
denied carriage or repositioned. The Court remanded for
a determination whether broadcast stations denied car-
riage would be at -`serious risk of financial difficulty'-
and would -`deteriorate to a substantial degree or fail
altogether.'- Ante, at 25 (quoting Turner, supra, at 667,
666). The Turner plurality noted that there was no
evidence that -local broadcast stations have fallen into
bankruptcy, turned in their broadcast licenses, curtailed
their broadcast operations, or suffered a serious reduc-
tion in operating revenues- because of adverse carriage
decisions. 512 U. S., at 667. The record on remand
does not permit the conclusion, at the summary judg-
ment stage, that Congress could reasonably have
predicted serious harm to a significant number of
stations in the absence of must-carry.
The purported link between an adverse carriage
decision and severe harm to a station depends on yet
another untested premise. Even accepting the conclu-
sion that a cable system operator has a monopoly over
cable services to the home, supra, at 9, it does not
necessarily follow that the operator also has a monopoly
over all video services to cabled households. Cable
subscribers using an input selector switch and an
antenna can receive broadcast signals. Widespread use
of such switches would completely eliminate any cable
system -monopoly- over sources of video input. See 910
F. Supp., at 786 (Williams, J., dissenting). Growing use
of direct-broadcast satellite television also tends to
undercut the notion that cable operators have an
inevitable monopoly over video services entering cable
households. See, e.g., Farhi, Dishing Out the Competi-
tion to Cable TV, Washington Post, Oct. 12, 1996, p. H1,
col. 3.
In the Cable Act, Congress rejected the wisdom of any
-substantial societal investment- in developing input
selector switch technology. 2(a)(18). In defending this
choice, the Court purports to identify -substantial
evidence of technological shortcomings- that prevent
widespread, efficient use of such devices. But nearly all
of the -data- in question are drawn from sources pre-
dating the enactment of must-carry by roughly six years.
Compare ante, at 38 with Defendants' Joint Statement
of Evidence Before Congress -725 (JSCR) (citing ELRA
Group, Inc., Outdoor Antennas, Reception of Local
Television Signals and Cable Television i-ii (Jan. 28,
1986), App. H to NAB Testimony in Cable Legislation
before the Subcommittee on Telecommunications and
Finance of the House Committee on Energy and Com-
merce, 101st Cong., 2d Sess. (May 16, 1990)) (CR Vol.
I.L, Exh. 22, p. CR 08828); JSCR --759-760 (App.
1629-1630) (citing Comments of INTV in MM Docket
No. 85-349, p. 73 (Jan. 29, 1986)) (CR Vol. I.BB, Exh.
162, p. CR 15901-15902); JSCR -758 (App. 1628) (citing
Comments of NAB in MM Docket No. 85-349, pp. 23-24
(Jan. 29, 1986)) (CR Vol. I.BB, Exh. 165, pp. CR
16183-16184); JSCR --718, 724, 751-752, 754-755,
761-762 (App. 1605-1607, 1609-1610, 1624-1627,
1630-1631) (citing Joint Petition for Reconsideration in
MM Docket No. 85-349 (Dec. 17, 1986)) (CR Vol. I.DD,
Exh. 183, pp. CR 16726-16839); JSCR --738-739, 764,
767 (App. 1617-1618, 1632-1634) (citing Petition for
Reconsideration by Adelphia Communications Corp. et
al., in MM Docket No. 85-349, pp. 27-32 (Jan. 12,
1987)) (CR Vol. I.DD, Exh. 184, pp. CR 16892-16897).
The Court notes the importance of deferring to congres-
sional judgments about the -interaction of industries
undergoing rapid economic and technological change.-
Ante, at 13. But this principle does not require whole-
sale deference to judgments about rapidly changing
technologies that are based on unquestionably outdated
information.
The Court concludes that the evidence on remand
meets the threshold of harm established in Turner. The
Court begins with the -[c]onsiderable evidence- that
broadcast stations denied carriage have fallen into
bankruptcy. Ante, at 26. The analysis, however, does
not focus on features of the market in which these
stations were located or on the size of the audience they
commanded. The -considerable evidence- relied on by
the Court consists of repeated references to the bank-
ruptcies of the same 23 commercial independent sta-
tions-apparently, new stations. See JSCR --659,
671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587);
Hearing on Competitive Issues, at 548 (statement of
Milton Maltz) (CR Vol. I.C, Exh. 8, p. CR 01887).
Because the must-carry provisions have never been
justified as a means of enhancing broadcast television,
I do not understand the relevance of this evidence, or of
the evidence concerning the difficulties encountered by
new stations seeking financing. See ante, at 26-27
(citing JSCR --643-658 (App. 1564-1576)).
The Court also claims that the record on remand
reflects -considerable evidence- of stations curtailing
their broadcast operations or suffering reductions in
operating revenues. Most of the anecdotal accounts of
harm on which the Court relies are sharply disputed.
Compare JSCR --618, 619, 622, 623, 692 (App.
1553-1555, 1591) with Time Warner Entertainment
Company, L. P.'s Broadcast Station Rebuttal -8 (TWE
Rebuttal) (App. 2299) (ABC affiliate claiming harm from
denial of carriage experienced $3.8 million net revenue
increase between 1986 and 1992); TWE Rebuttal -111
(App. 2403) (Home Shopping Network affiliate did not
report to Congress that it was harmed by cable operator
conduct between 1986 and 1992); TWE Rebuttal -83
(App. 2372-2373) (station alleged to have lost half of its
cable carriage in fact obtained carriage on systems
serving 80 percent of total cable subscribers within area
of dominant influence); TWE Rebuttal -94 (App. 2385)
(station claiming harm from denial of carriage experi-
enced a $1.13 million net revenue increase between 1986
and 1993); TWE Rebuttal -30 (App. 2318) (some systems
on which station claimed anticompetitive carriage denials
were precluded from carrying station due to signal
strength and quality problems). Congress' reasonable
conclusions are entitled to deference, and for that reason
the fact that the evidence is in conflict will not necessar-
ily preclude summary judgment in appellees' favor.
Nevertheless, in the course of our independent review,
we cannot ignore sharp conflicts in the record that call
into question the reasonableness of Congress' findings.
Moreover, unlike other aspects of the record on
remand, the station-specific accounts cited by the Court
do permit an evaluation of trends in the various broad-
cast markets, or -areas of dominant influence,- in which
carriage denials allegedly caused harm. The Court does
not conduct this sort of analysis. Were it to do so, the
Court would have to recognize that all but one of the
commercial broadcast stations cited as claiming a
curtailment in operations or a decline in revenue was
broadcasting within an area of dominant influence that
experienced net growth, or at least no net reduction, in
the number of commercial broadcast stations operating
during the non-must-carry era. See Besen Declaration,
Exh. 11 (App. 861-869); cf. JSCR -618 (App. 1553)
(station claiming harm within Cedar Rapids market,
with four commercial broadcast stations in 1987 and five
in 1992); JSCR -620 (App. 1554) (station claiming harm
within Tulsa market, with seven commercial broadcast
stations in 1987 and 1992); JSCR -623 (App. 1554)
(station claiming harm within New York City market,
with 14 commercial broadcast stations in 1987 and
1992); JSCR -692 (App. 1591) (station claiming harm
within Salt Lake City market, with five commercial
broadcast stations in 1987 and eight in 1992); JSCR
-695 (App. 1593-1594) (station claiming harm within
Honolulu market, with seven commercial broadcast
stations in 1987 and nine in 1992); JSCR -703 (App.
1599) (station claiming harm within Grand Rapids
market, with seven commercial broadcast stations in
1987 and 1992). Indeed, in 499 of 504 areas of domi-
nant influence nationwide, the number of commercial
broadcast stations operating in 1992 equaled or exceeded
the number operating in 1987. Besen Declaration, Exh.
11 (App. 861-869). Only two areas of dominant influ-
ence experienced a reduction in the number of noncom-
mercial broadcast stations operating between 1987 and
1992. Besen Declaration, Exh. 11 (App. 871-880).
In sum, appellees are not entitled to summary judg-
ment on whether Congress could conclude, based on
reasonable inferences drawn from substantial evidence,
that -`absent legislative action, the free local off-air
broadcast system is endangered.'- Ante, at 27 (quoting
S. Rep. No. 102-92, at 42). The Court acknowledges
that the record contains much evidence of the health of
the broadcast industry, including evidence that 263 new
broadcast stations signed on the air in the period
without must-carry rules, evidence of growth in stations'
advertising revenue, and evidence of voluntary carriage
of broadcast stations accounting for virtually all measur-
able viewership in noncable households. Ante, at 28.
But the Court dismisses such evidence, emphasizing that
the question is not whether Congress correctly deter-
mined that must-carry is necessary to prevent signifi-
cant financial hardship to a substantial number of
stations, but whether -the legislative conclusion was
reasonable and supported by substantial evidence in the
record before Congress.- Ante, at 29. Even accepting
the Court's articulation of the relevant standard, it is
not properly applied here. The principal opinion
disavows a need to closely scrutinize the logic of the
regulatory scheme at issue on the ground that it -need
not put [its] imprimatur on Congress' economic theory in
order to validate the reasonableness of its judgment.-
Ante, at 25. That approach trivializes the First Amend-
ment issue at stake in this case. A highly dubious
economic theory has been advanced as the -substantial
interest- supporting a First Amendment burden on cable
operators and cable programmers. In finding that must-
carry serves a substantial interest, the principal opinion
necessarily accepts that theory. The partial concurrence
does not, but neither does it articulate what threat to
the availability of a -multiplicity- of broadcast stations
would exist in a perfectly competitive market.
B
I turn now to the second portion of the O'Brien
inquiry, which concerns the fit between the Govern-
ment's asserted interests and the means chosen to
advance them. The Court observes that -broadcast
stations gained carriage on 5,880 channels as a result of
must-carry,- and recognizes that this forced carriage
imposes a burden on cable system operators and cable
programmers. Ante, at 33. But the Court also con-
cludes that the other 30,006 cable channels occupied by
broadcast stations are irrelevant to measuring the
burden of the must-carry scheme. The must-carry rules
prevent operators from dropping these broadcast stations
should other more desirable cable programming become
available, even though operators have carried these
stations voluntarily in the past. The must-carry require-
ments thus burden an operator's First Amendment
freedom to exercise unfettered control over a number of
channels in its system, whether or not the operator's
present choice is aligned with that of the Government.
Even assuming that the Court is correct that the
5,880 channels occupied by added broadcasters -repre-
sent the actual burden of the regulatory scheme,- ante,
at 33, the Court's leap to the conclusion that must-carry
-is narrowly tailored to preserve a multiplicity of
broadcast stations,- ante, at 33-34, is nothing short of
astounding. The Court's logic is circular. Surmising
that most of the 5,880 channels added by the regulatory
scheme would be dropped in its absence, the Court
concludes that the figure also approximates the -benefit-
of must-carry. Finding the scheme's burden -congruent-
to the benefit it affords, the Court declares the statute
narrowly tailored. The Court achieves this result,
however, only by equating the effect of the statute-re-
quiring cable operators to add 5,880 stations-with the
governmental interest sought to be served. The Court's
citation of Ward v. Rock Against Racism, 491 U. S. 781
(1989), reveals the true nature of the interest at stake.
The -evi[l] the Government seeks to eliminate,- id., at
799, n. 7, is not the failure of cable operators to carry
these 5,880 stations. Rather, to read the first half of the
principal opinion, the -evil- is anticompetitive behavior
by cable operators. As a factual matter, we do not know
whether these stations were not carried because of
anticompetitive impulses. Positing the effect of a statute
as the governmental interest -can sidestep judicial
review of almost any statute, because it makes all
statutes look narrowly tailored.- Simon & Schuster, Inc.
v. Members of N. Y. State Crime Victims Bd., 502 U. S.
105, 120 (1991). Without a sense whether most adverse
carriage decisions are anticompetitively motivated, it is
improper to conclude that the statute is narrowly
tailored simply because it prevents some adverse
carriage decisions. See Board of Trustees of State Univ.
of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (scope of law
must be -in proportion to the interest served-) (internal
quotation marks omitted).
In my view, the statute is not narrowly tailored to
serve a substantial interest in preventing anticompetitive
conduct. I do not understand Justice Breyer to
disagree with this conclusion. Ante, at 1, 3 (examining
fit between -speech-restricting and speech-enhancing
consequences- of must-carry). Congress has comman-
deered up to one third of each cable system's channel
capacity for the benefit of local broadcasters, without
any regard for whether doing so advances the statute's
alleged goals. To the extent that Congress was con-
cerned that anticompetitive impulses would lead verti-
cally integrated operators to prefer those programmers
in which the operators have an ownership stake, the
Cable Act is overbroad, since it does not impose its
requirements solely on such operators. An integrated
cable operator cannot satisfy its must-carry obligations
by allocating a channel to an unaffiliated cable program-
mer. And must-carry blocks an operator's access to up
to one third of the channels on the system, even if its
affiliated programmer provides programming for only a
single channel. The Court rejects this logic, finding the
possibility that the must-carry regime would require
reversal of a benign carriage decision not -so prevalent
that must-carry is substantially overbroad.- Ante, at 34.
The principal opinion reasons that -cable systems serv-
ing 70 percent of subscribers are vertically integrated
with cable programmers, so anticompetitive motives may
be implicated in a majority of systems' decisions not to
carry broadcasters.- Ante, at 34-35 (emphasis added).
It is unclear whether the principal opinion means that
anticompetitive motives may be implicated in a majority
of decisions, or in decisions by a majority of systems. In
either case, the principal opinion's conclusion is wholly
speculative. We do not know which of these vertically
integrated systems are affiliated with one cable program-
mer and which are affiliated with five cable program-
mers. Moreover, Congress has placed limits upon the
number of channels that can be used for affiliated
programming. 47 U. S. C. 533(f)(1)(B). The principal
opinion does not suggest why these limits are inade-
quate or explain why, once a system reaches the limit,
its remaining carriage decisions would also be anticom-
petitively motivated. Even if the channel limits are
insufficient, the principal opinion does not explain why
requiring carriage of broadcast stations on one third of
the system's channels is a measured response to the
problem.
Finally, I note my disagreement with the Court's
suggestion that the availability of less-speech-restrictive
alternatives is never relevant to O'Brien's narrow
tailoring inquiry. Ante, at 35-36. The Turner Court
remanded this case in part because a plurality concluded
that -judicial findings concerning the availability and
efficacy of constitutionally acceptable less restrictive
means of achieving the Government's asserted interests-
were lacking in the original record. 512 U. S., at 668
(internal quotation marks omitted). The Court's present
position on this issue is puzzling.
Our cases suggest only that we have not interpreted
the narrow tailoring inquiry to -require elimination of
all less restrictive alternatives.- Fox, supra, at 478.
Put another way, we have refrained from imposing a
least-restrictive-means requirement in cases involving
intermediate First Amendment scrutiny. Ward, 491
U. S., at 798 (time, place, and manner restriction); Clark
v. Community for Creative Non-Violence, 468 U. S. 288,
293 (1984) (same); Fox, supra, at 478 (commercial
speech). It is one thing to say that a regulation need
not be the least-speech-restrictive means of serving an
important governmental objective. It is quite another to
suggest, as I read the majority to do here, that the
availability of less-speech-restrictive alternatives cannot
establish or confirm that a regulation is substantially
broader than necessary to achieve the Government's
goals. While the validity of a Government regulation
subject to intermediate First Amendment scrutiny does
not turn on our -agreement with the responsible deci-
sionmaker concerning the most appropriate method for
promoting significant government interests,- United
States v. Albertini, 472 U. S. 675, 689 (1985), the
availability of less intrusive approaches to a problem
serves as a benchmark for assessing the reasonableness
of the fit between Congress' articulated goals and the
means chosen to pursue them. Rubin v. Coors Brewing
Co., 514 U. S. 476, 490-491 (1995).
As shown above, supra, at 23-25, in this case it is
plain without reference to any alternatives that the
must-carry scheme is -substantially broader than
necessary,- Ward, supra, at 800, to serve the only
governmental interest that the principal opinion fully
explains-preventing unfair competition. If Congress
truly sought to address anticompetitive behavior by cable
system operators, it passed the wrong law. See Turner,
supra, at 682 (O'Connor, J., concurring in part and
dissenting in part) (-That some speech within a broad
category causes harm . . . does not justify restricting the
whole category-). Nevertheless, the availability of less
restrictive alternatives-a leased-access regime and
subsidies-reinforces my conclusion that the must-carry
provisions are overbroad.
Consider first appellants' proposed leased-access
scheme, under which a cable system operator would be
required to make a specified proportion of the system's
channels available to broadcasters and independent cable
programmers alike at regulated rates. Leased access
would directly address both vertical integration and
predatory behavior, by placing broadcasters and cable
programmers on a level playing field for access to cable.
The principal opinion never explicitly identifies any
threat to the availability of broadcast television to
noncable households other than anticompetitive conduct,
nor does Justice Breyer's partial concurrence. Accord-
ingly, to the extent that leased access would address
problems of anticompetitive behavior, I fail to under-
stand why it would not achieve the goal of -ensuring
that significant programming remains available- for
noncable households. Ante, at 39-40. The Court
observes that a leased access regime would, like must-
carry, -reduce the number of cable channels under cable
systems' control in the same manner as must-carry.-
Ante, at 39. No leased access scheme is currently before
the Court, and I intimate no view on whether leased
access, like must-carry, imposes unacceptable burdens on
cable operators' free speech interests. It is important to
note, however, that the Court's observation that a leased
access scheme may, like must-carry, impose First
Amendment burdens does not dispose of the narrow
tailoring inquiry in this case. As noted, a leased access
regime would respond directly to problems of vertical
integration and problems of predatory behavior. Must-
carry quite clearly does not respond to the problem of
vertical integration. Supra, at 23-25. In addition, the
must-carry scheme burdens the rights of cable program-
mers and cable operators; there is no suggestion here
that leased access would burden cable programmers in
the same way as must-carry does. In both of these
respects, leased access is a more narrowly tailored guard
against anticompetitive behavior. Finally, if, as the
Court suggests, Congress were concerned that a leased
access scheme would impose a burden on -small broad-
casters- forced to pay for access, subsidies would
eliminate the problem.
Subsidies would not, of course, eliminate anticompeti-
tive behavior by cable system operators-a problem that
Congress could address directly or through a leased-
access scheme. Appellees defend the must-carry provi-
sions, however, not only as a means of preventing anti-
competitive behavior, but also as a means of protecting
-marginal- or -vulnerable- stations, even if they are not
threatened by anticompetitive behavior. The principal
opinion chooses not to acknowledge this interest explicit-
ly, although Justice Breyer does. Even if this interest
were content neutral-which it is not-subsidies would
address it directly. The Court adopts appellees' position
that subsidies would serve a -very different purpose
than must-carry. Must-carry is intended not to guaran-
tee the financial health of all broadcasters, but to ensure
a base number of broadcasters survive to provide service
to noncable households.- Ante, at 40; see Brief for
Federal Appellees 47. To the extent that Justice
Breyer sees must-carry as a -speech-enhancing- mea-
sure designed to guarantee over-the-air broadcasters
-extra dollars,- ante, at 2, it is unclear why subsidies
would not fully serve that interest. In any event, I take
appellees' concern to be that subsidies, unlike must-
carry, would save some broadcasters that would not
survive even with cable carriage. There is a straight-
forward solution to this problem. If the Government is
indeed worried that imprecision in allocation of subsidies
would prop up stations that would not survive even with
cable carriage, then it could tie subsidies to a percentage
of stations' advertising revenues (or, for public stations,
member contributions), determined by stations' access to
viewers. For example, in a broadcast market where 50
percent of television-viewing households subscribe to
cable, a broadcaster has access to all households without
cable as well as to those households served by cable
systems on which the broadcaster has secured carriage.
If a broadcaster is carried on cable systems serving only
20 percent of cable households (i.e., 10 percent of all
television-viewing households in the broadcast market),
the broadcaster has access to 60 percent of the televi-
sion-viewing households. If the Government provided a
subsidy to compensate for the loss in advertising
revenue or member contributions that a station would
sustain by virtue of its failure to reach 40 percent of its
potential audience, it could ensure that its allocation
would do no more than protect those broadcasters that
would survive with full access to television-viewing
households. In sum, the alleged barrier to a precise
allocation of subsidies is not insurmountable. The Court
also suggests that a subsidy scheme would involve the
Government in making -content-based determinations
about programming.- Ante, at 40. Even if that is so, it
does not distinguish subsidies from the must-carry
provisions. In light of the principal opinion's steadfast
adherence to the position that a preference for -diverse-
or local-content broadcasting is not a content-based
preference, the argument is ironic indeed.
III
Finally, I note my disagreement with the Court's
decision to sidestep a question reserved in Turner, see
512 U. S., at 643-644, n. 6; addressed by the District
Court below, 910 F. Supp., at 750 (Sporkin, J.); fairly
included within the question presented here; and argued
by one of the appellants: whether the must-carry rules
requiring carriage of low power stations, 47 U. S. C.
534(c), survive constitutional scrutiny. A low power
station qualifies for carriage only if the Federal Commu-
nications Commission determines that the station's
programming -would address local news and informa-
tional needs which are not being adequately served by
full power television broadcast stations because of the
geographic distance of such full power stations from the
low power station's community of license.- 534(h)(2)(B).
As the Turner Court noted, -this aspect of 4 appears to
single out certain low-power broadcasters for special
benefits on the basis of content.- 512 U. S., at 644,
n. 6. Because I believe that the must-carry provisions
fail even intermediate scrutiny, it is clear that they
would fail scrutiny under a stricter content-based
standard.
In declining to address the rules requiring carriage
of low-power stations, the Court appears to question
whether the issue was fairly included within the
question presented or properly preserved by the parties.
Ante, at 42. This position is somewhat perplexing. The
Court in Turner apparently found the issue both fairly
included within the strikingly similar question presented
there, compare Brief for Federal Appellees in Turner,
O. T. 1993, No. 93-44, p. I, with Brief for Federal
Appellees I, and properly preserved despite the lack of
specific argumentation devoted to this subsection of the
challenged statute in the jurisdictional statement there,
see Juris. Statement in Turner, O. T. 1993, No. 93-44,
pp. 11-28. The Court's focus on the quantity of briefing
devoted to the subject, ante, at 42, ignores the fact that
there are two groups of appellants challenging the
judgment below-cable operators and cable program-
mers-and that the issue is of more interest to the
former than to the latter. It also seems to suggest that
a party defending a judgment can defeat this Court's
review of a question simply by ignoring its adversary's
position on the merits.
In any event, the Court lets stand the District Court's
seriously flawed legal reasoning on the point. The
District Court concluded that the provisions -are very
close to content-based legislation triggering strict
scrutiny,- but held that they do not -cross the line.-
910 F. Supp., at 750. That conclusion appears to have
been based on the fact that the low power provisions are
viewpoint-neutral. Ibid. Whether a provision is view-
point-neutral is irrelevant to the question whether it is
also content-neutral. See R. A. V. v. St. Paul, 505 U. S.
377, 430 (1992) (Stevens, J., concurring in judgment);
Turner, supra, at 685 (Ginsburg, J., concurring in part
and dissenting in part).
IV
In sustaining the must-carry provisions of the Cable
Act, the Court ignores the main justification of the
statute urged by appellees and subjects restrictions on
expressive activity to an inappropriately lenient level of
scrutiny. The principal opinion then misapplies the
analytic framework it chooses, exhibiting an extraordi-
nary and unwarranted deference for congressional
judgments, a profound fear of delving into complex
economic matters, and a willingness to substitute
untested assumptions for evidence. In light of gaps in
logic and evidence, it is improper to conclude, at the
summary judgment stage, that the must-carry scheme
serves a significant governmental interest -in a direct
and effective way.- Ward, 491 U. S., at 800. Moreover,
because the undisputed facts demonstrate that the must-
carry scheme is plainly not narrowly tailored to serving
the only governmental interest the principal opinion
fully explains and embraces-preventing anticompetitive
behavior-appellants are entitled to summary judgment
in their favor.
Justice Breyer disavows the principal opinion's
position on anticompetitive behavior, and instead treats
the must-carry rules as a -speech-enhancing- measure
designed to ensure access to -quality- programming for
noncable households. Neither the principal opinion nor
the partial concurrence explains the nature of the
alleged threat to the availability of a -multiplicity of
broadcast programming sources,- if that threat does not
arise from cable operators' anticompetitive conduct.
Such an approach makes it impossible to discern
whether Congress was addressing a problem that is
-real, not merely conjectural,- and whether must-carry
addresses the problem in a -direct and material way.-
Turner, supra, at 664 (plurality opinion).
I therefore respectfully dissent, and would reverse the
judgment below.