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SUPREME COURT OF THE UNITED STATES TURNER BROADCASTING SYSTEM v. FCC, ____ U.S. ____ (1997) No. 95-992
Full Text: FindLaw Justice Kennedy delivered the opinion of the Court, 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 intermediate scrutiny under United States v. O'Brien, , 377 (1968). A plurality of the Court considered the record as then developed insufficient 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:
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, (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 Communications 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 .... 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, , 799 (1989))....[A] four Justice plurality concluded genuine issues of material fact remained regarding whether "the economic health of local broadcasting 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 interests.' " Id., at 665 (quoting Ward, supra, at 799).... [T]he case was returned to the District Court for further proceedings. 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."...
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 addedbecause of must carry; and the burden was likely to diminish as channel capacity expanded in the future.
We begin where the plurality ended in Turner, applying the standards for intermediate scrutiny enunciated in O'Brien. A content neutral regulation will be sustained under the 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. O'Brien, 391 U. S., at 377. As noted in Turner, must carry was designed to serve "three interrelated interests:
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, , 714 (1984)).... 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., , 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 "eliminating 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....Congress predicted that "absent the reimposition of [must carry], additional local broadcast signals will be deleted, repositioned, or not carried"... 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." 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 was concerned not that broadcast television would disappear in its entirety without must carry, but that without it, "significant 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."... Nor do the congressional findings support appellants' suggestion that legitimate legislative goals would be satisfied by the preservation of a rump broadcasting industry providing a minimum of broadcast service to Americans without cable. We have noted that " `it has long been a basic tenet of national communications policy that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."... 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."...
The dissent proceeds on the assumption that must carry is designed solely to be (and can only be justifiedas) 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.... Broadcast television is an important source of information to many Americans. Though it is but one of many means for communication, by tradition and use for decades now it has been an essential part of the national discourse on subjects across the whole broad spectrum of speech, thought, and expression.... 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.
The...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....We turn first to the harm or risk which prompted Congress to act. The Government's assertion that "the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must carry," id., at 664-665, rests on two component propositions: First, "significant numbers of broadcast stations will be refused carriage on cable systems" absent must-carry, id., at 666. Second, "the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." Ibid. In reviewing the constitutionality of a statute, "courts must accord substantial deference to the predictive judgments of Congress."... This principle has special significance in cases, like this one, involving congressionaljudgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change.... Even in the realm of 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. We have no difficulty in finding a substantial basis to support Congress' conclusion that a real threat justified enactment of the must carry provisions....
Though the dissent criticizes our reliance on evidence provided to Congress by parties that are private appellees 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 submissions of the parties most affected by legislation. Appellants too sent representatives before Congress to try to persuade them of their side of the debate.... 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.... The reasonableness of Congress' conclusion was borne out by the evidence on remand, which also reflected cable industry favoritism for integrated programmers.... In addition, evidence before Congress, supplemented on remand, indicated that cable systems would have incentives to drop local broadcasters in favor of other programmers less likely to compete with them for audience and advertisers.... 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.... 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.... 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.... It was more than a theoretical possibility in 1992 that cable operators would take actions adverse to local broadcasters; indeed, significant numbers of broadcastershad already been dropped. The record before Congress contained extensive anecdotal evidence about scores of adverse carriage decisions against broadcast stations.... Additional evidence developed on remand supports the reasonableness of Congress' predictive judgment.... The dissent cites evidence indicating that many dropped broadcasters were stations few viewers watch, and it suggests that must carry thwarts noncable viewers' preferences.... That is simply not the case. The evidence on remand also indicated that the growth of cable systems' market power proceeded apace....
The issue before us is whether, given conflicting views of the probable development of the television industry, Congress 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.
The harm Congress feared was that stations dropped or denied carriage would be at a "serious risk of financial difficulty," 512 U. S., at 667, and would "deteriorate to a substantial degree or fail altogether." Id., at 666. Congress had before it substantial evidence to support its conclusion.... The evidence assembled on remand confirms the reasonableness of the congressional judgment. Documents 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."... To be sure, the record also contains evidence to support a contrary conclusion. Appellants (and the dissent in the District Court) make much of the fact that the number of broadcast stations and their advertising revenue continued to grow during the period without must carry, albeit at a diminished rate.... 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 stationsfrom 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.... Although evidence of continuing growth in broadcast could have supported the opposite conclusion, a reasonable interpretation is that expansion in the cable industry was causing harm to broadcasting.... 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.... The level of detail in factfinding required by the dissent would be an improper burden for courts to impose on the Legislative Branch....
We think it apparent must carry serves the Government's interests "in a direct and effective way." ...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.
The second portion of the O'Brien inquiry concerns the fit between the asserted interests and the means chosen to advance them.... The must carry provisions have the potential to interfere with protected speech in two ways.
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.... 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 harm to either system operators or cable programmers because those stations were carried voluntarily before 1992, and even appellants represent, Tr. of Oral Arg. 6, that the vast majority of those channels would continue to be carried in the absence of any legal obligation to do so. See Turner, supra, at 673, n. 6 (Stevens, J., concurring in part and concurring in judgment). The 5,880 channels occupied by added broadcasters represent the actual burden of the regulatory scheme. Appellants concede most of those stations would be dropped in the absence of must carry, Tr. of Oral Arg. 6, so the figure approximates the benefits of must carry as well. Because the burden imposed by must carry is congruent to the benefits it affords, we conclude must carry is narrowly tailored to preserve a multiplicity of broadcast stations for the 40 percent of American households without cable.... Appellants say the must carry provisions are overbroad because they require carriage in some instances when the Government's interests are not implicated: the must carry rules prohibit a cable system operator from dropping a broadcaster "even if the operator has no anticompetitive motives, and even if the broadcaster that would have to be dropped . . . would survive without cable access."... We are not persuaded that either possibility is so prevalent that must carry is substantially overbroad.... Appellants posit a number of alternatives in an effort to demonstrate a less restrictive means to achieve the Government's aims. They ask us, in effect, to "sif[t] through all the available or imagined alternative means of regulating [cable television] in order to determine whether the [Government's] solution was `the least intrusive means' of achieving the desired end," an approach we rejected in Ward 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.... 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.... In any event, after careful examination of each of the alternatives suggested by appellants, we cannot conclude that any of them is an adequate alternative to must carry for promoting the Government's legitimate interests. First among appellants' suggested alternatives is a proposal to revive a more limited set of must carry rules, known as the "Century rules" after the 1987 court decision striking them down, see Century Communications Corp. v. FCC, 835 F. 2d 292. Those rules included a minimum viewership standard for eligibility and limited the must carry obligation to 25 percent of channel capacity.... 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.... Appellants also suggest a leased access regime, under which both broadcasters and cable programmers would have equal access to cable channels at regulated rates.... Appellants next suggest a system of subsidies for financially weak stations.... Appellants also suggest a system of antitrust enforcement or an administrative complaint procedure to protect broadcasters from cable operators' anticompetitive conduct.... 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 ." Columbia Broadcasting v. Democratic National Committee, 412 U. S., at 103. Appellants' challenges to must carry reflect little more than disagreement over the level of protection broadcast stations are to be afforded and how protection is to be attained. We cannot displace Congress' judgment respecting content neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination. Those requirements were met in this case, and in these circumstances the requires nothing more. The judgment of the District Court is affirmed.
It is so ordered.
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