[ Kennedy ]
[ Stevens ]
|Syllabus ||Dissent |
[ O'Connor ]
[ Breyer ]
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
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 principal defenses of the statute urged by appellees on remand: that it serves a substantial interest in preserving "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 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 information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming." Id., at 662 (citing S. Rep. No. 102-92, p. 58 (1991); H. R. Rep. No. 102-628, p. 63 (1992)). The Court reiterates these interests here, ante, at 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 structure 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 programming 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 anticompetitively 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 constitutional law. See Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636 (1980).
Perhaps because of the difficulty of defending the must carry provisions as a measured response to anticompetitive behavior, the Court asserts an "independent" interest in preserving a "multiplicity" of broadcast programming sources. Ante, at 11; ante, at 1-3 (Breyer, J., concurring in part). In doing so, the Court posits existence of "conduct that threatens" the availability of broadcast television outlets, quite apart from anticompetitive conduct. Ante, at 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 programming 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 anticompetitive conduct, threatens the "multiplicity" of broadcast programming sources. Indeed, the only justification advanced by the parties for furthering this interest is heavily content based. It is undisputed that the broadcast stations protected by must carry are the "marginal" stations within a given market, see infra, at 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. Undoubtedly, 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 " `community self expression' " and the " `local origination of broadcast programming,' " ante, at 9 (brackets omitted), reveals a content based preference for broadcast programming. 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 governmental interest in preventing anticompetitive behavior; and that five Justices of this Court do see the significance of the content of over the air programming to the Government's and appellees' efforts to defend the law. Under these circumstances, the must carry provisions should be subject to strict scrutiny, which they surely fail.
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 determination whether the must carry provisions satisfy intermediate scrutiny under United States v. O'Brien, 391 U.S. 367 (1968). Under that standard, appellees must demonstrate that the must carry provisions (1) "furthe[r] an important or substantial government interest"; and (2) burden speech no more "than is essential to the furtherance of that interest." Id., at 377; see also Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). The Turner plurality found that genuine issues of material fact remained as to both parts of the O'Brien analysis. On whether must carry furthers a substantial governmental interest, the Turner Court remanded the case to test two essential and unproven propositions: "(1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and (2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." 512 U. S., at 666 (emphasis added). As for whether must carry restricts no more speech than essential to further Congress' asserted purpose, the Turner plurality found evidence lacking on the extent of the burden that the must carry provisions would place on cable operators and cable programmers. Id., at 667-668.
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.
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 "reasonable 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 economic 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.
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 affiliated 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 Industry: Hearing before the Subcommittee on Antitrust, Monopolies and Business Rights of the Senate Committee 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 Association of Local Television Stations, Inc.) (Record, Defendants' 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, Congress has already limited the number of channels on a cable system that can be occupied by affiliated programmers. 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 broadcasters 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 described 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 revenues freed by dropping a broadcast station will flow to cable operators rather than to other broadcasters.
Under the standard articulated by the Turner plurality, the conclusion that must carry serves a substantial governmental interest depends upon the "essential propositio[n]" that, without must carry, "significant numbers of broadcast stations will be refused carriage on cable systems." 512 U. S., at 666. In analyzing whether this undefined standard is satisfied, the Court focuses almost exclusively on raw numbers of stations denied carriage or "repositioned"--that is, shifted out of their traditional channel positions.
The Court begins its discussion of evidence of adverse carriage decisions with the 1988 study sponsored by the Federal Communications Commission. 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 underestimated 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 Declaration) (App. 623). Two thirds of the "subscriber instances" 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 Declaration, Attachment C (Record, Defendants' Joint Submission 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 additional 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 households. By disregarding the distribution and viewership of stations not carried on cable, the Court upholds the must carry provisions without addressing the interests of the over the air television viewers that Congress purportedly seeks to protect. See Turner, 512 U. S., at 647 (describing interest in "protecting noncable households from loss of regular television broadcasting service" (emphasis added; internal quotation marks omitted)); id., at 652 (describing interest in ensuring that broadcast television remains available as a source of video programming for those without cable (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 noncarriage involved "relatively remote (and duplicated) network stations, or local stations that few viewers watch." Carriage of Television Broadcast Signals by Cable Television Systems, Reply Comment of the Staff of the Bureau of Economics and the San Francisco 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 viewership in noncable households of stations dropped or denied carriage. Instead, appellees and their experts repeatedly emphasize the importance of preserving "vulnerable" or "marginal" independent stations serving "relatively small" audiences. Brief for Federal Appellees 14, 17, 25, n. 14; NAB Brief 31; see also Deposition of James N. Dertouzos (App. 381) (describing broadcast stations affected by carriage denials as "[s]tations on the margin of cable operator decisionmaking now and in the future"); Deposition of Roger G. Noll (App. 446) (cable operators' advertising incentives will operate "at the margin" and affect "weaker stations, UHF independent stations"); id., at 450 (stations dropped will be "[t]hose that have the lowest audience ratings combined with the absence of a specific target audience"); Deposition of Harry Shooshan III (App. 477) (must carry has benefitted "stations that were not as strong, that were marginal"); Reply Declaration of Roger G. Noll ¶19 (App. 2009) ("While frequently . . . , the stations not carried by cable systems have low ratings, the point is 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 programming. When appellees are pressed to explain the Government's "substantial interest" in preserving noncable viewers' access to "vulnerable" or "marginal" stations with "relatively small" audiences, it becomes evident that the interest has nothing to do with anticompetitive 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).
I turn now to the evidence of harm to broadcasters denied carriage or repositioned. The Court remanded for a determination whether broadcast stations denied carriage would be at " `serious risk of financial difficulty' " and would " `deteriorate to a substantial degree or fail altogether.' " Ante, at 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 reduction 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 judgment 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 conclusion 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 Competition 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 Commerce, 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 congressional judgments about the "interaction of industries undergoing rapid economic and technological change." Ante, at 13. But this principle does not require wholesale 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 bankruptcies of the same 23 commercial independent stations--apparently, new stations. See JSCR ¶¶659, 671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587); Hearing on Competitive Issues, at 548 (statement of Milton Maltz) (CR Vol. I.C, Exh. 8, 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 experienced 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 necessarily preclude summary judgment in appellees' favor. Nevertheless, in the course of our independent review, we cannot ignore sharp conflicts in the record that call into question the reasonableness of Congress' findings.
Moreover, unlike other aspects of the record onremand, the station specific accounts cited by the Court do permit an evaluation of trends in the various broadcast markets, or "areas of dominant influence," in which carriage denials allegedly caused harm. The Court does not conduct this sort 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 dominant 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 influence experienced a reduction in the number of noncommercial broadcast stations operating between 1987 and 1992. Besen Declaration, Exh. 11 (App. 871-880).
In sum, appellees are not entitled to summary judgment on whether Congress could conclude, based on reasonable inferences drawn from substantial evidence, that " `absent legislative action, the free local off air broadcast system is endangered.' " Ante, at 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 measurable viewership in noncable households. Ante, at 28. But the Court dismisses such evidence, emphasizing that the question is not whether Congress correctly determined that must carry is necessary to prevent significant 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 Amendment 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.
I turn now to the second portion of the O'Brien inquiry, which concerns the fit between the Government's asserted interests and the means chosen to advance them. The Court observes that "broadcast stations gained carriage on 5,880 channels as a result of must carry," and recognizes that this forced carriage imposes a burden on cable system operators and cable programmers. Ante, at 33. But the Court also concludes 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 requirements 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 "represent 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--requiring cable operators to add 5,880 stations--with the governmental interest sought to be served. The Court's citation of Ward v. Rock Against Racism, 491 U.S. 781(1989), reveals the true nature of the interest at stake. The "evi[l] the Government seeks to eliminate," id., at 799, n. 7, is not the failure of cable operators to carry these 5,880 stations. Rather, to read the first half of the principal opinion, the "evil" is anticompetitive behavior by cable operators. As a factual matter, we do not know whether these stations were not carried because of anticompetitive impulses. Positing the effect of a statute as the governmental interest "can sidestep judicial review of almost any statute, because it makes all statutes look narrowly tailored." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 120 (1991). Without a sense whether most adverse carriage decisions are anticompetitively motivated, it is improper to conclude that the statute is narrowly tailored simply because it prevents some adverse carriage decisions. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989) (scope of law must be "in proportion to the interest served") (internal quotation marks omitted).
In my view, the statute is not narrowly tailored to serve a substantial interest in preventing anticompetitive conduct. I do not understand Justice Breyer to disagree with this conclusion. Ante, at 1, 3 (examining fit between "speech restricting and speech enhancing consequences" of must carry). Congress has commandeered up to one third of each cable system's channel capacity for the benefit of local broadcasters, without any regard for whether doing so advances the statute's alleged goals. To the extent that Congress was concerned that anticompetitive impulses would lead vertically integrated operators to prefer those programmers in which the operators have an ownership stake, the Cable Act is overbroad, since it does not impose its requirements solely on such operators. An integrated cable operator cannot satisfy its must carry obligations by allocating a channel to an unaffiliated cable programmer. And must carry blocks an operator's access to up to one third of the channels on the system, even if its affiliated programmer provides programming for only a single channel. The Court rejects this logic, finding the possibility that the must carry regime would require reversal of a benign carriage decision not "so prevalent that must carry is substantially overbroad." Ante, at 34. The principal opinion reasons that "cable systems serving 70 percent of subscribers are vertically integrated with cable programmers, so anticompetitive motives may be implicated in a majority of systems' decisions not to carry broadcasters." Ante, at 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 programmer and which are affiliated with five cable programmers. 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 inadequate or explain why, once a system reaches the limit, its remaining carriage decisions would also be anticompetitively 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 decisionmaker 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. Accordingly, to the extent that leased access would address problems of anticompetitive behavior, I fail to understand 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 programmers 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 broadcasters" forced to pay for access, subsidies would eliminate the problem.
Subsidies would not, of course, eliminate anticompetitive behavior by cable system operators--a problem that Congress could address directly or through a leased access scheme. Appellees defend the must carry provisions, however, not only as a means of preventing anticompetitive 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 explicitly, 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 guarantee 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" measure 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 straightforward 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 television 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.
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 Communications Commission determines that the station's programming "would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." §534(h)(2)(B). 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 programmers--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 viewpoint neutral is irrelevant to the question whether it is also content-neutral. See R. A. V. v. St. Paul, 505 U.S. 377, 430 (1992) (Stevens, J., concurring in judgment); Turner, supra, at 685 (Ginsburg, J., concurring in part and dissenting in part).
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 extraordinary 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.