[ Kennedy ]
[ Stevens ]
|Syllabus ||Dissent |
[ O'Connor ]
[ Breyer ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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
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 First Amendment scrutiny under United States v. O'Brien, 391 U.S. 367, 377 (1968). A plurality of the Court considered the record as then developed 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: First, whether the record as it now stands supports Congress' predictive judgment that the must carry provisions further important governmental interests; and second, whether the provisions do not burden substantially more speech than necessary to further those interests. We answer both questions in the affirmative, and conclude the must carry provisions are consistent with the First Amendment.
An outline of the Cable Act, Congress' purposes in adopting it, and the facts of the case are set out in detail in our first opinion, see Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner), and a more abbreviated summary will suffice here. Soon after Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460 (Cable Act), appellants brought suit against the United States and the Federal 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 First Amendment. The three judge District Court, in a divided opinion, granted summary judgment for the Government and intervenor defendants. A majority of the court sustained the must carry provisions under the intermediate standard of scrutiny set forth in United States v. O'Brien, supra, concluding the must carry provisions were content neutral "industry specific antitrust and fair trade" legislation narrowly tailored to preserve local broadcasting beset by monopoly power in most cable systems, growing concentration in the cable industry, and concomitant risks of programming decisions driven by anticompetitive policies. 819 F. Supp. 32, 40, 45-47 (DC 1993).
On appeal, we agreed with the District Court that must carry does not "distinguish favored speech from disfavored speech on the basis of the ideas or views expressed," 512 U. S., at 643, but is a content neutral regulation designed "to prevent cable operators from exploiting their economic power to the detriment of broadcasters," and "to ensure that all Americans, especially those unable to subscribe to cable, have access to free television programming--whatever its content." Id., at 649. We held that, under the intermediate level of scrutiny applicable to content neutral regulations, must carry would be sustained if it were shown to further an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions did not "burden substantially more speech than is necessary to further" those interests. Id., at 662 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). Although we "ha[d] no difficulty concluding" the interests must carry was designed to serve were important in the abstract, 512 U. S., at 663, a four Justice plurality concluded genuine issues of material fact remained regarding whether "the economic health of local 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). Justice Stevens would have found the statute valid on the record then before us; he agreed to remand the case to ensure a judgment of the Court, and the case was returned to the District Court for further proceedings. 512 U. S., at 673-674 (Stevens, J., concurring in part and concurring in judgment); id., at 667-668.
The District Court oversaw another 18 months of factual development on remand "yielding a record of tens of thousands of pages" of evidence, Turner Broadcasting v. FCC, 910 F. Supp. 734, 755 (DC 1995), comprised of materials acquired during Congress' three years of pre-enactment hearings, see Turner, supra, at 632-634, as well as additional expert submissions, sworn declarations and testimony, and industry documents obtained on remand. Upon consideration of the expanded record, a divided panel of the District Court again granted summary judgment to appellees. 910 F. Supp., at 751. The majority determined "Congress drew reasonable inferences" from substantial evidence before it to conclude that "in the absence of must carry rules, `significant' numbers of broadcast stations would be refused carriage." Id., at 742. The court found Congress drew on studies and anecdotal evidence indicating "cable operators had already dropped, refused to carry, or adversely repositioned significant numbers of local broadcasters," and suggesting that in the vast majority of cases the broadcasters were not restored to carriage in their prior position. Ibid. Noting evidence in the record before Congress and the testimony of experts on remand, id., at 743, the court decided the noncarriage problem would grow worse without must carry because cable operators had refrained from dropping broadcast stations during Congress' investigation and the pendency of this litigation, id., at 742-743, and possessed increasing incentives to use their growing economic power to capture broadcasters' advertising revenues and promote affiliated cable programmers. Ibid. The court concluded "substantial evidence before Congress" supported the predictive judgment that a local broadcaster denied carriage "would suffer financial harm and possible ruin." Id., at 743-744. It cited evidence that adverse carriage actions decrease broadcasters' revenues by reducing audience levels, id., at 744-745, and evidence that the invalidation of the FCC's prior must carry regulations had contributed to declining growth in the broadcast industry. Id., at 744, and n. 34.
The court held must carry to be narrowly tailored to promote the Government's legitimate interests. It found the effects of must carry on cable operators to be minimal, noting evidence that: most cable systems had not been required to add any broadcast stations since the rules were adopted; only 1.2 percent of all cable channels had been devoted to broadcast stations added because of must carry; and the burden was likely to diminish as channel capacity expanded in the future. Id., at 746-747. The court proceeded to consider a number of alternatives to must carry that appellants had proposed, including: a leased access regime, under which cable operators would be required to set aside channels for both broadcasters and cable programmers to use at a regulated price; use of so called A/B switches, giving consumers a choice of both cable and broadcast signals; a more limited set of must carry obligations modeled on those earlier used by the FCC; and subsidies for broadcasters. The court rejected each in turn, concluding that "even assuming that [the alternatives] would be less burdensome" on cable operators' First Amendment interests, they "are not in any respect as effective in achieving the government's [interests]." Id., at 747. Judge Jackson would have preferred a trial to summary judgment, but concurred in the judgment of the court. Id., at 751-754.
Judge Williams dissented. His review of the record, and particularly evidence concerning growth in the number of broadcasters, industry advertising revenues, and per station profits during the period without must carry, led him to conclude the broadcast industry as a whole would not be " `seriously jeopardized' " in the absence of must carry. Id., at 759-767. Judge Williams acknowledged the Government had a legitimate interest in preventing anticompetitive behavior, and accepted that cable operators have incentives to discriminate against broadcasters in favor of their own vertically integrated cable programming. Id., at 772, 775, 779. He would have granted summary judgment for appellants nonetheless on the ground must carry is not narrowly tailored. In his view, must carry constitutes a significant (though "diminish[ing]," id., at 782) burden on cable operators' and programmers' rights, ibid., and the Cable Act's must carry provisions suppress more speech than necessary because "less restrictive" alternatives exist to accomplish the Government's legitimate objectives. Id., at 782-789.
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 First Amendment 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: (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." 512 U. S., at 662. We decided then, and now reaffirm, that each of those is an important governmental interest. We have been most explicit in holding that " `protecting noncable households from loss of regular television broadcasting service due to competition from cable systems' is an important federal interest." Id., at 663 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984)). Forty percent of American households continue to rely on over the air signals for television programming. Despite the growing importance of cable television and alternative technologies, " `broadcasting is demonstrably a principal source of information and entertainment for a great part of the Nation's population.' " Turner, supra, at 663 (quoting United States v. Southwestern Cable Co., 392 U.S. 157, 177 (1968)). We have identified a corresponding "governmental purpose of the highest order" in ensuring public access to "a multiplicity of information sources," 512 U. S., at 663. And it is undisputed the Government has an interest in "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. The congressional findings do not reflect concern that, absent must carry, "a few voices," Tr. of Oral Arg. 23, would be lost from the television marketplace. In explicit factual findings, Congress expressed clear concern that the "marked shift in market share from broadcast television to cable television services," Cable Act §2(a)(13), note following 47 U.S.C. § 521 resulting from increasing market penetration by cable services, as well as the expanding horizontal concentration and vertical integration of cable operators, combined to give cable systems the incentive and ability to delete, reposition, or decline carriage to local broadcasters in an attempt to favor affiliated cable programmers. §§2a(2) (5), (15). Congress predicted that "absent the reimposition of [must carry], additional local broadcast signals will be deleted, repositioned, or not carried" (§2(a)(15); see also §2(a)(8)(D)), with the end result that "the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized." §2(a)(16).
At the same time, Congress was under no illusion that there would be a complete disappearance of broadcast television nationwide in the absence of must carry. Congress recognized broadcast programming (and network programming in particular) "remains the most popular programming on cable systems," §2(a)(19). Indeed, reflecting the popularity and strength of some broadcasters, Congress included in the Cable Act a provision permitting broadcasters to charge cable systems for carriage of the broadcasters' signals. See §6, codified at 47 U.S.C. § 325. Congress was concerned not that broadcast television would disappear in its entirety without must carry, but that without it, "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." 512 U. S., at 666. See, e.g., H. R. Rep. No. 102-628, p. 51 (1992) (House Report) (the absence of must carry "will result in a weakening of the over the air television industry and a reduction in competition"); id., at 64 ("The Committee wishes to make clear that its concerns are not limited to a situation where stations are dropped wholesale by large numbers of cable systems"); S. Rep. No. 102-92, p. 62 (1991) (Senate Report) ("Without congressional action, . . . the role of local television broadcasting in our system of communications will steadily decline . . ."); see also Brief for Federal Appellees in Turner Broadcasting System, Inc. v. FCC, No. 93-44, p. 32, n. 22 (the question is not whether "the evidence shows that broadcast television is likely to be totally eliminated" but "whether the broadcast services available to viewers [without cable] . . . are likely to be reduced to a significant extent, because of either loss of some stations altogether or curtailment of services by others").
Nor do the congressional findings support appellants' suggestion that legitimate legislative goals would be satisfied by the preservation of a rump broadcasting industry providing a minimum of broadcast service to Americans without cable. We have noted that " `it has long been a basic tenet of national communications policy that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." ' " Turner, 512 U. S., at 663-664 (quoting United States v. Midwest Video Corp., 406 U.S. 649, 668, n. 27 (1972) (plurality opinion) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)); see also FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981). " `[I]ncreasing the number of outlets for community self expression' " represents a " `long established regulatory goa[l] in the field of television broadcasting.' " United States v. Midwest Video Corp., supra, at 667-668 (plurality opinion). Consistent with this objective, the Cable Act's findings reflect a concern that congressional action was necessary to prevent "a reduction in the number of media voices available to consumers." §2(a)(4). Congress identified a specific interest in "ensuring [the] continuation" of "the local origination of [broadcast] programming," §2(a)(10), an interest consistent with its larger purpose of promoting multiple types of media, §2(a)(6), and found must carry necessary "to serve the goals" of the original Communications Act of 1934 of "providing a fair, efficient, and equitable distribution of broadcast services" (§2(a)(9)). In short, Congress enacted must carry to "preserve the existing structure of the Nation's broadcast television medium while permitting the concomitant expansion and development of cable television." 512 U. S., at 652.
Although Congress set no definite number of broadcast stations sufficient for these purposes, the Cable Act's requirement that all cable operators with more than 12 channels set aside one third of their channel capacity for local broadcasters, §4, 47 U.S.C. § 534(b)(1)(B), refutes the notion that Congress contemplated preserving only a bare minimum of stations. Congress' evident interest in "preserv[ing] the existing structure," 512 U. S., at 652, of the broadcast industry discloses a purpose to prevent any significant reduction in the multiplicity of broadcast programming sources available to noncable households. To the extent the appellants question the substantiality of the Government's interest in preserving something more than a minimum number of stations in each community, their position is meritless. It is for Congress to decide how much local broadcast television should be preserved for noncable households, and the validity of its determination " `does not turn on a judge's agreement with the responsible decisionmaker concerning' . . . the degree to which [the Government's] interests should be promoted." Ward, 491 U. S., at 800 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)); accord, Clark v. Community for Creative Non Violence, 468 U.S. 288, 299 (1984) ("We do not believe . . . [that] United States v. O'Brien . . . endow[s] the judiciary with the competence to judge how much protection of park lands is wise").
The dissent proceeds on the assumption that must carry is designed solely to be (and can only be justified as) a measure to protect broadcasters from cable operators' anticompetitive behavior. See post, at 24, 26, 32. Federal policy, however, has long favored preserving a multiplicity of broadcast outlets regardless of whether the conduct that threatens it is motivated by anticompetitive animus or rises to the level of an antitrust violation. See Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 714; United States v. Midwest Video Corp., supra, at 665 (plurality opinion) (FCC regulations "were . . . avowedly designed to guard broadcast services from being undermined by unregulated [cable] growth"); National Broadcasting Co. v. United States, 319 U.S. 190, 223-224 (1943) (" `While many of the network practices raise serious questions under the antitrust laws, . . . [i]t is not [the FCC's] function to apply the antitrust laws as such' ") (quoting FCC Report on Chain Broadcasting Regulations (1941)). Broadcast television is an important source of information to many 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. See Turner, supra, at 663; FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 783 (1978) (referring to studies "showing the dominant role of television stations . . . as sources of local news and other information"). Congress has an independent interest in preserving a multiplicity of broadcasters to ensure that all households have access to information and entertainment on an equal footing with those who subscribe to cable.
On our earlier review, we were constrained by the state of the record to assessing the importance of the Government's asserted interests when "viewed in the abstract," Turner, 512 U. S., at 663. The expanded record now permits us to consider whether the must carry provisions were designed to address a real harm, and whether those provisions will alleviate it in a material way. Id., at 663-664. We turn first to the harm or risk which prompted Congress to act. The Government's assertion that "the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must carry," id., at 664-665, rests on two component propositions: First, "significant numbers of broadcast stations will be refused carriage on cable systems" absent must-carry, id., at 666. Second, "the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." Ibid.
In reviewing the constitutionality of a statute, "courts must accord substantial deference to the predictive judgments of Congress." Id., at 665. Our sole obligation is "to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id., at 666. As noted in the first appeal, substantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency. See id., at 666-667; id., at 670, n. 1 (Stevens, J., concurring in part and concurring in judgment). We owe Congress' findings deference in part because the institution "is far better equipped than the judiciary to `amass and evaluate the vast amounts of data' bearing upon" legislative questions. Turner, supra, at 665-666 (plurality opinion) (quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 331, n. 12 (1985)); Ward, 491 U. S., at 800; Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (courts must perform "appropriately deferential examination of Congress' evaluation of th[e] evidence"); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103 (1973). This principle has special significance in cases, like this one, involving congressional judgments concerning regulatory schemes of inherent complexity and assessments about the likely interaction of industries undergoing rapid economic and technological change. Though different in degree, the deference to Congress is in one respect akin to deference owed to administrative agencies because of their expertise. See FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 814 (1978) ("[C]omplete factual support in the record for the [FCC's] judgment or prediction is not possible or required; `a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency' "); United States v. Midwest Video Corp., 406 U. S., at 674 (it was "beyond the competence of the Court of Appeals itself to assess the relative risk and benefits" of FCC policy, so long as that policy was based on findings supported by evidence). This is not the sum of the matter, however. We owe Congress' findings an additional measure of deference out of respect for its authority to exercise the legislative power. Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.
We have no difficulty in finding a substantial basis to support Congress' conclusion that a real threat justified enactment of the must carry provisions. We examine first the evidence before Congress and then the further evidence presented to the District Court on remand to supplement the congressional determination.
As to the evidence before Congress, there was specific support for its conclusion that cable operators had considerable and growing market power over local video programming markets. Cable served at least 60 percent of American households in 1992, see Cable Act §2(a)(3), and evidence indicated cable market penetration was projected to grow beyond 70 percent. See Cable TV Consumer Protection Act of 1991: Hearing on S. 12 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 102d Cong., 1st Sess., 259 (1991) (statement of Edward O. Fritts) (App. 1253); see also Defendants' Joint Statement of Evidence Before Congress ¶¶9, 10 (JSCR) (App. 1252-1253). As Congress noted (§2(a)(2)), cable operators possess a local monopoly over cable households. Only one percent of communities are served by more than one cable system, JSCR ¶¶31-40 (App. 1262-1266). Even in communities with two or more cable systems, in the typical case each system has a local monopoly over its subscribers. See Comments of NAB before the FCC on MM Docket No. 85-349, ¶47 (April 25, 1986) (App. 26). Cable operators thus exercise "control over most (if not all) of the television programming that is channeled into the subscriber's home. . . . [and] can thus silence the voice of competing speakers with a mere flick of the switch." Turner, 512 U. S., at 656.
Evidence indicated the structure of the cable industry would give cable operators increasing ability and incentive to drop local broadcast stations from their systems, or reposition them to a less viewed channel. Horizontal concentration was increasing as a small number of multiple system operators (MSO's) acquired large numbers of cable systems nationwide. §2(a)(4). The trend was accelerating, giving the MSO's increasing market power. In 1985, the 10 largest MSO's controlled cable systems serving slightly less than 42 percent of all cable subscribers; by 1989, the figure was nearly 54 percent. JSCR ¶77 (App. 1282); Competitive Problems in the Cable Television Industry, Hearing before the Subcommittee on Antitrust, Monopolies and Business Rights of the Senate Committee on the Judiciary, 101st Cong., 1st Sess., 74 (1990) (Hearing on Competitive Problems in the Cable Television Industry) (statement of Gene Kimmelman and Dr. Mark N. Cooper).
Vertical integration in the industry also was increasing. As Congress was aware, many MSO's owned or had affiliation agreements with cable programmers. §2(a)(5); Senate Report, at 24-29. Evidence indicated that before 1984 cable operators had equity interests in 38 percent of cable programming networks. In the late 1980's, 64 percent of new cable programmers were held in vertical ownership. JSCR ¶197 (App. 1332-1333). Congress concluded that "vertical integration gives cable operators the incentive and ability to favor their affiliated programming services" (§2(a)(5); Senate Report, at 25) a conclusion that even Judge Williams' dissent conceded to be reasonable. See 910 F. Supp., at 775. Extensive testimony indicated that cable operators would have an incentive to drop local broadcasters and to favor affiliated programmers. See, e.g., 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., 546 (1988) (Hearing on Competitive Issues) (statement of Milton Maltz); Cable Television Regulation: Hearings on H. R. 1303 and H. R. 2546 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 102d Cong., 1st Sess., 869-870, 878-879 (Hearings on Cable Television Regulation) (statement of James B. Hedlund); id., at 752 (statement of Edward O. Fritts); id., at 699 (statement of Gene Kimmelman); Cable Television Regulation (Part 2): Hearings before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 2d Sess., 261 (1990) (Hearings on Cable Television Regulation (Part 2)) (statement of Robert G. Picard) (App. 1339-1341); see also JSCR ¶¶168-170, 278-280 (App. 1320-1321, 1370-1371).
Though the dissent criticizes our reliance on evidence provided to Congress by parties that are private 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. See, e.g., Hearing on Competitive Problems in the Cable Television Industry, at 228-241 (statement of James P. Mooney, president and CEO of appellant NCTA); Hearings on Cable Television Regulation, at 575-582 (statement of Decker S. Anstrom, executive vice president of appellant NCTA); Cable TV Consumer Protection Act of 1991: Hearing on S. 12 before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 102d Cong., 1st Sess., 173-180 (1991) (statement of Ted Turner, president of appellant Turner Broadcasting System). After hearing years of testimony, and reviewing volumes of documentary evidence and studies offered by both sides, Congress concluded that the cable industry posed a threat to broadcast television. The Constitution gives to Congress the role of weighing conflicting evidence in the legislative process. Even when the resulting regulation touches on First Amendment concerns, we must give considerable deference, in examining the evidence, to Congress' findings and conclusions, including its findings and conclusions with respect to conflicting economic predictions. See supra, at ". Furthermore, much of the testimony, though offered by interested parties, was supported by verifiable information and citation to independent sources. See, e.g., Hearings on Cable Television Regulation, at 869-870, 878-879 (statement of James B. Hedlund); id., at 705, 707-708, 712 (statement of Gene Kimmelman).
The reasonableness of Congress' conclusion was borne out by the evidence on remand, which also reflected cable industry favoritism for integrated programmers. See, e.g., Record, Defendants' Additional Evidence, Vol. VII. H, Exh. 170, p. 1749 (DAE) (cable industry memo stating that "All [of an MSO's] systems must launch Starz [an integrated programmer] 2/94. Word from corporate: if you don't have free channels . . . make one free"); Third Declaration of Tom Meek ¶44 (Third Meek Declaration) (App. 2071-2072); see also Declaration of Roger G. Noll ¶¶18-22 (Noll Declaration) (App. 1009-1013); Declaration of James Dertouzos ¶6a (Dertouzos Declaration) (App. 959).
In addition, evidence before Congress, supplemented on remand, indicated that cable systems would have incentives to drop local broadcasters in favor of other programmers less likely to compete with them for audience and advertisers. Independent local broadcasters tend to be the closest substitutes for cable programs, because their programming tends to be similar, see JSCR ¶¶269, 274, 276 (App. 1367, 1368-1370), and because both primarily target the same type of advertiser: those interested in cheaper (and more frequent) ad spots than are typically available on network affiliates. Second Declaration of Tom Meek ¶32 (Second Meek Declaration) (App. 1866); Reply Declaration of James N. Dertouzos ¶26 (App. 2023); Carriage of Television Broadcast Signals by Cable Television Systems, Reply Comment of the Staff of the Bureau of Economics and the San Francisco Regional Office of the Federal Trade Commission, p. 19 (Nov. 26, 1991) (Reply Comment of FTC) (App. 176). The ability of broadcast stations to compete for advertising is greatly increased by cable carriage, which increases viewership substantially. See Second Meek Declaration ¶34 (App. 1866-1867). With expanded viewership, broadcast presents a more competitive medium for television advertising. Empirical studies indicate that cable carried broadcasters so enhance competition for advertising that even modest increases in the numbers of broadcast stations carried on cable are correlated with significant decreases in advertising revenue to cable systems. Dertouzos Declaration ¶20, 25-28 (App. 966, 969-971); see also Reply Comment of FTC, at 18 (App. 175). Empirical evidence also indicates that demand for premium cable services (such as pay per view) is reduced when a cable system carries more independent broadcasters. Hearing on Competitive Problems in the Cable Television Industry, at 323 (statement of Michael O. Wirth). Thus, operators stand to benefit by dropping broadcast stations. Dertouzos Declaration ¶6b (App. 959).
Cable systems also have more systemic reasons for seeking to disadvantage broadcast stations: Simply stated, cable has little interest in assisting, through carriage, a competing medium of communication. As one cable industry executive put it, " `our job is to promote cable television, not broadcast television.' " Hearing on Competitive Issues, at 658 (quoting Multichannel News, Channel Realignments: United Cable Eyes Plan to Bump Network Affils to Upper Channels, Nov. 3, 1986, p. 39); see also id., at 661 (" `Shouldn't we give more . . . shelf space to cable? Why have people trained to view UHF?' ") (vice president of operations at Comcast, an MSO, quoted in Multichannel News, Cable Operators begin to Shuffle Channel Lineups, Sept. 8, 1986, p. 38)). The incentive to subscribe to cable is lower in markets with many over the air viewing options. See JSCR ¶275 (App. 1369); Dertouzos Declaration ¶¶27, 32 (App. 970, 972). Evidence adduced on remand indicated cable systems have little incentive to carry, and a significant incentive to drop, broadcast stations that will only be strengthened by access to the 60% of the television market that cable typically controls. Dertouzos Declaration ¶¶ 29, 35 (App. 971, 973); Noll Declaration ¶43 (App. 1029). Congress could therefore reasonably conclude that cable systems would drop broadcasters in favor of programmers--even unaffiliated ones--less likely to compete with them for audience and advertisers. The cap on carriage of affiliates included in the Cable Act, 47 U.S.C. § 533(f)(1)(B); 47 CFR § 76.504) (1995), and relied on by the dissent, post, at 11, 25, is of limited utility in protecting broadcasters.
The dissent contends Congress could not reasonably conclude cable systems would engage in such predation because cable operators, whose primary source of revenue is subscriptions, would not risk dropping a widely viewed broadcast station in order to capture advertising revenues. Post, at 12. However, if viewers are faced with the choice of sacrificing a handful of broadcast stations to gain access to dozens of cable channels (plus network affiliates), it is likely they would still subscribe to cable even if they would prefer the dropped television stations to the cable programming that replaced them. Substantial evidence introduced on remand bears this out: With the exception of a handful of very popular broadcast stations (typically network affiliates), a cable system's choice between carrying a cable programmer or broadcast station has little or no effect on cable subscriptions, and subscribership thus typically does not bear on carriage decisions. Noll Declaration ¶29 (App. 1018-1019); Rebuttal Declaration of Roger G. Noll ¶20 (App. 1798); Reply Declaration of Roger G. Noll ¶¶3-4, and n. 3 (App. 2003-2004); see also Declaration of John R. Haring ¶37 (Haring Declaration) (App. 1106).
It was more than a theoretical possibility in 1992 that cable operators would take actions adverse to local broadcasters; indeed, significant numbers of broadcasters had already been dropped. The record before Congress contained extensive anecdotal evidence about scores of adverse carriage decisions against broadcast stations. See JSCR ¶¶291-467, 664 (App. 1376-1489, 1579). Congress considered an FCC sponsored study detailing cable system carriage practices in the wake of decisions by the United States Court of Appeals for the District of Columbia Circuit striking down prior must carry regulations. See Quincy Cable TV, Inc. v. FCC, 768 F. 2d 1434 (1985), cert. denied, 476 U.S. 1169 (1986); Century Communications Corp. v. FCC, 835 F. 2d 292 (1987), cert. denied, 486 U.S. 1032 (1988). It indicated that in 1988, 280 out of 912 responding broadcast stations had been dropped or denied carriage in 1,533 instances. App. 47. Even assuming that every station dropped or denied coverage responded to the survey, it would indicate that nearly a quarter (21 percent) of the approximately 1,356 broadcast stations then in existence, id., at 40, had been denied carriage. The same study reported 869 of 4,303 reporting cable systems had denied carriage to 704 broadcast stations in 1,820 instances, id., at 48, and 279 of those stations had qualified for carriage under the prior must carry rules. Id., at 49. A contemporaneous study of public television stations indicated that in the vast majority of cases, dropped stations were not restored to the cable service. Record, CR Vol. I.Z., Exh. 140, pp. CR 15297-15298, 15306-15307.
Substantial evidence demonstrated that absent must carry the already "serious," Senate Report, at 43, problem of noncarriage would grow worse because "additional local broadcast signals will be deleted, repositioned, or not carried," §2(a)(15). The record included anecdotal evidence showing the cable industry was acting with restraint in dropping broadcast stations in an effort to discourage reregulation. See Hearings on Cable Television Regulation, at 900, n. 81 (statement of James B. Hedlund); Hearings on Cable Television Regulation (Part 2), at 242-243 (statement of James P. Mooney) (App. 1519); JSCR ¶¶524-534 (App. 1515-1519)). There was also substantial evidence that advertising revenue would be of increasing importance to cable operators as subscribership growth began to flatten, providing a steady, increasing incentive to deny carriage to local broadcasters in an effort to capture their advertising revenue. Id., ¶¶124-142, 154-166 (App. 1301-1308, 1313-1319). A contemporaneous FCC report noted that "[c]able operators' incentive to deny carriage . . . appears to be particularly great as against local broadcasters." Id., ¶155 (App. 1313). Then FCC Commissioner James Quello warned Congress that the carriage problems "occurring today are just the `tip of the iceberg.' These activities come at a time when the cable industry is just beginning to recognize the importance of local advertising." Cable Television, Hearings before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 100th Cong., 2d Sess., 322 (1988) (App. 1515). Quello continued: "As [cable] systems mature and penetration levels off, systems will turn increasingly to advertising for revenues. The incentive to deny carriage to local stations is a logical, rational and, without must carry, a legal business strategy." Appendix A to Testimony of James B. Hedlund before the Subcommittee on Telecommunications and Finance of the House Committee on Energy & Commerce, 18 (1990) (statement of James H. Quello) (App. 1315). The FCC advised Congress the "diversity in broadcast television service . . . will be jeopardized if this situation continues unredressed." In re Competition, Rate Regulation, and Provision of Cable Television Service, 5 FCC Rcd 4962, 5040, ¶149 (1990).
Additional evidence developed on remand supports the reasonableness of Congress' predictive judgment. Approximately 11 percent of local broadcasters were not carried on the typical cable system in 1989. See Reply Comment of FTC, pp. 9-10 (App. 168-169). The figure had grown to even more significant proportions by 1992. According to one of appellants' own experts, between 19 and 31 percent of all local broadcast stations, including network affiliates, were not carried by the typical cable system. See Declaration of Stanley Besen, Exhs. C-2, C-3 (App. 907-908). Based on the same data, another expert concluded that 47 percent of local independent commercial stations, and 36 percent of noncommercial stations, were not carried by the typical cable system. The rate of noncarriage was even higher for new stations. Third Meek Declaration ¶4 (App. 2054). Appellees introduced evidence drawn from an empirical study concluding the 1988 FCC survey substantially underestimated the actual number of drops (Declaration of Tom Meek ¶¶5, 25, 36 (Meek Declaration) (App. 619, 625, 626)), and the noncarriage problem grew steadily worse during the period without must carry. By the time the Cable Act was passed, 1,261 broadcast stations had been dropped for at least one year, in a total of 7,945 incidents. Id., ¶¶12, 15 (App. 621, 622).
The dissent cites evidence indicating that many dropped broadcasters were stations few viewers watch, post, at 15, and it suggests that must carry thwarts noncable viewers' preferences. Ibid. Undoubtedly, viewers without cable--the immediate, though not sole, beneficiaries of efforts to preserve broadcast television--would have a strong preference for carriage of any broadcast program over any cable program, for the simple reason that it helps to preserve a medium to which they have access. The methodological flaws in the cited evidence are of concern. See post, at 16. Even aside from that, the evidence overlooks that the broadcasters added by must carry had ratings greater than or equal to the cable programs they replaced. Second Meek Declaration ¶23 (App. 1863) (ratings of broadcasters added by must carry "are generally higher than that achieved . . . by their equivalent cable counterparts"); Meek Declaration ¶21, at 11-12 (Record, DAE, Vol. II.A., Exh. 2); see also Hearings on Cable Television Regulation, at 880 (statement of James Hedlund) ("in virtually every instance, the local [broadcast] stations shifted are more popular . . . than the cable program services that replace them"); JSCR ¶¶ 497-510 (App. 1505-1509) (stations dropped before must carry generally more popular than cable services that replaced them). (Indeed, in the vast majority of cases, cable systems were able to fulfill their must carry obligations using spare channels, and did not displace cable programmers. See Report to Counsel for National Cable Television Association Carriage of Must Carry TV Broadcast Stations, Table II-4 (April 1995) (App. 678).) On average, even the lowest rated station added pursuant to must carry had ratings better than or equal to at least nine basic cable program services carried on the system. Third Meek Declaration ¶20, and n. 5 (App. 2061). If cable systems refused to carry certain local broadcast stations because of their subscribers' preferences for the cable services carried in their place, one would expect that all cable programming services would have ratings exceeding those of broadcasters not carried. That is simply not the case.
The evidence on remand also indicated that the growth of cable systems' market power proceeded apace. The trend towards greater horizontal concentration continued, driven by "[e]nhanced growth prospects for advertising sales." Paul Kagan Assocs., Inc, Cable TV Advertising 1 (Sept. 30, 1994) (App. 301). By 1994, the 10 largest MSO's controlled 63 percent of cable systems, Notice of Inquiry, In re Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, 10 FCC Rcd. 7805, 7819-7820, ¶79 (1995),a figure projected to have risen to 85 percent by the end of 1996. DAE Vol. VII.D, Exh. 80, at 1 (Turner Broadcasting memo); Noll Declaration ¶26 (App. 1017). MSO's began to gain control of as many cable systems in a given market as they could, in a trend known as "clustering." JSCR ¶¶150-153 (App. 1311-1313). Cable systems looked increasingly to advertising (and especially local advertising) for revenue growth, see, e.g., Paul Kagan Associates, Inc., Cable TV Advertising 1 (July 28, 1993) (App. 251); 1 R. Bilotti, D. Hansen, & R. MacDonald, The Cable Television Industry 94-97 (Mar. 8, 1993) (DAE Vol. VII.K, Exh. 232, at 94-97) ("Local advertising revenue is an exceptional incremental revenue opportunity for the cable television industry") Memo from Arts & Entertainment Network, dated Oct. 26, 1992, p. 2 (DAE Vol. VII.K, Exh. 235) (discussing "huge growth on the horizon" for spot advertising revenue), and cable systems had increasing incentives to drop local broadcasters in favor of cable programmers (whether affiliated or not). See Noll Declaration ¶¶29-31 (App. 1018-1020). The vertical integration of the cable industry also continued, so by 1994, MSO's serving about 70 percent of the Nation's cable subscribers held equity interests in cable programmers. See In re Implementation of Section 19 of Cable Television Protection and Competition Act of 1992, First Report, 9 FCC Rcd 7442, 7526, ¶167, and nn. 455, 457 (1994); id., app. G, tables 9-10; Top 100 MSO's as of October 1, 1994 (DAE Vol. VII.K, Exh. 266); see also JSCR ¶¶199, 204 (App. 1334, 1336). The FTC study the dissent cites, post, at 15, takes a skeptical view of the potential for cable systems to engage in anticompetitive behavior, but concedes the risk of anticompetitive carriage denials is "most plausible" when "the cable system's franchise area is large relative to the local area served by the affected broadcast station," Reply Comment of FTC, at 20 (App. 177), and when "a system's penetration rate is both high and relatively unresponsive to the system's carriage decisions," id., at 18 (App. 175). That describes "precisely what is happening" as large cable operators expand their control over individual markets through clustering. Second Meek Declaration ¶35 (App. 1867). As they do so, they are better able to sell their own reach to potential advertisers, and to limit the access of broad cast competitors by denying them access to all or substantially all the cable homes in the market area. Ibid.; accord Noll Declaration ¶24 (App. 1015).
This is not a case in which we are called upon to give our best judgment as to the likely economic consequences of certain financial arrangements or business structures, or to assess competing economic theories and predictive judgments, as we would in a case arising, say, under the antitrust laws. "Statutes frequently require courts to make policy judgments. The Sherman Act, for example, requires courts to delve deeply into the theory of economic organization." See Holder v. Hall, 512 U.S. 874, 966 (1994) (separate opinion of Stevens, J.). The issue before us is whether, given conflicting views of the probable development of the television industry, 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. Congress was advised the viability of a broadcast station depends to a material extent on its ability to secure cable carriage. JSCR ¶¶597-617, 667-670, 673 (App. 1544-1553, 1580-1581, 1582-1583). One broadcast industry executive explained it this way:
"Simply put, a television station's audience size directly translates into revenue--large audiences attract larger revenues, through the sale of advertising time. If a station is not carried on cable, and thereby loses a substantial portion of its audience, it will lose revenue. With less revenue, the station can not serve its community as well. The station will have less money to invest in equipment and programming. The attractiveness of its programming will lessen, as will its audience. Revenues will continue to decline, and the cycle will repeat." Hearing on Competitive Issues, at 526-527 (statement of Gary Chapman) (App. 1600).
See also JSCR ¶¶589-591 (App. 1542-1543); id., ¶625-633, 636, 638-640 (App. 1555-1563) (repositioning). Empirical research in the record before Congress confirmed the " `direct correlation [between] size in audience and station [advertising] revenues,' " id., ¶591 (App. 1543)), and that viewership was in turn heavily dependent on cable carriage. See id., ¶¶589-596 (App. 1542-1544).
Considerable evidence, consisting of statements compiled from dozens of broadcasters who testified before Congress and the FCC, confirmed that broadcast stations had fallen into bankruptcy, see id., ¶¶659, 661, 669, 671-672, 676, 681 (App. 1576, 1578, 1581-1582, 1584, 1587), curtailed their broadcast operations, see id., ¶¶589, 692, 695, 697, 703-704 (App. 1542, 1591-1600), and suffered serious reductions in operating revenues as a result of adverse carriage decisions by cable systems. See id., ¶¶618-620, 622-623) (App. 1553-1555). The record also reflected substantial evidence that stations without cable carriage encountered severe difficulties obtaining financing for operations, reflecting the financial markets' judgment that the prospects are poor for broadcasters unable to secure carriage. See, e.g., id., ¶¶302, 304, 581, 643-658 (App. 1382-1383, 1538-1539, 1564-1576); see also Declaration of David Schutz ¶¶6, 15-16, 18, 43 (App. 640-641, 644-646, 654); Noll Declaration ¶¶36-42 (App. 1024-1029); Haring Declaration ¶¶21-26 (App. 1099-1102); Second Meek Declaration ¶11 (App. 1858); Declaration of Jeffrey Rohlfs ¶6 (App. 1157-1158). Evidence before Congress suggested the potential adverse impact of losing carriage was increasing as the growth of clustering gave MSO's centralized control over more local markets. See JSCR ¶¶150-153 (App. 1311-1313). Congress thus had ample basis to conclude that attaining cable carriage would be of increasing importance to ensuring a station's viability. We hold Congress could conclude from the substantial body of evidence before it that "absent legislative action, the free local off air broadcast system is endangered." Senate Report, at 42.
The evidence assembled on remand confirms the reasonableness of the congressional judgment. 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." Memorandum from F. Lopez to T. Baxter re: Adlink's Presentations on Retransmission Consent, dated June 14, 1993 (App. 2118).
Another study prepared by a large MSO in 1993 concluded that "[w]ith cable penetration now exceeding 70% in many markets, the ability of a broadcast television station to easily reach its audience through cable television is crucial." Exhibit B to Haring Declaration, DAE Vol II.A (App. 2147). The study acknowledged that even in a market with significantly below average cable penetration, "[t]he loss of cable carriage could cause a significant decrease in a station's ratings and a resulting loss in advertising revenues." Ibid. (App. 2147). For an average market "the impact would be even greater." Ibid. (App. 2149). The study determined that for a popular station in a major television market, even modest reductions in carriage could result in sizeable reductions in revenue. A 5 percent reduction in cable viewers, for example, would result in a $1.48 million reduction in gross revenue for the station. (App. 2156).
To be sure, the record also contains evidence to support a contrary conclusion. Appellants (and the dissent in the District Court) make much of the fact that the number of broadcast stations and their advertising revenue continued to grow during the period without must carry, albeit at a diminished rate. Evidence introduced on remand indicated that only 31 broadcast stations actually went dark during the period without must carry (one of which failed after a tornado destroyed its transmitter), and during the same period some 263 new stations signed on the air. Meek Declaration ¶¶76-77 (App. 627-628). New evidence appellants produced on remand indicates the average cable system voluntarily carried local broadcast stations accounting for about 97 percent of television ratings in noncable households. Declaration of Stanley Besen, Part III-D (App. 808). Appellants, as well as the dissent in the District Court, contend that in light of such evidence, it is clear "the must carry law is not necessary to assure the economic viability of the broadcast system as a whole." NCTA Brief 18.
This assertion misapprehends the relevant inquiry. The question is not whether Congress, as an objective matter, was correct to determine must carry is necessary to prevent a substantial number of broadcast stations from losing cable carriage and suffering significant financial hardship. Rather, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress. Turner, 512 U. S., at 665-666. In making that determination, we are not to "re weigh the evidence de novo, or to replace Congress' factual predictions with our own." Id., at 666. Rather, we are simply to determine if the standard is satisfied. If it is, summary judgment for defendants appellees is appropriate regardless of whether the evidence is in conflict. We have noted in another context, involving less deferential review than is at issue here, that "`the possibility of drawing two inconsistent conclusions from the evidence does not prevent . . . [a] finding from being supported by substantial evidence.' " American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 523 (1981) (citation omitted) (quoting Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966)).
Although evidence of continuing growth in broadcast could have supported the opposite conclusion, a reasonable interpretation is that expansion in the cable industry was causing harm to broadcasting. Growth continued, but the rate of growth fell to a considerable extent during the period without must carry (from 4.5 percent in 1986 to 1.7 percent by 1992), and appeared to be tapering off further. JSCR ¶¶577-584 (App. 1537-1540); Meek Declaration ¶¶74-82 (App. 626-631); 910 F. Supp., at 790, App. 2. At the same time, "in an almost unprecedented development," 5 FCC Rcd., at 5041, ¶¶153-154, stations began to fail in increasing numbers. Meek Declaration ¶78 (App. 628) ("the number of stations going dark began to escalate" after 1988) (emphasis omitted); JSCR ¶¶659, 661, 669, 671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587). Broadcast advertising revenues declined in real terms by 11 percent between 1986 and 1991, during a period in which cable's real advertising revenues nearly doubled. See 910 F. Supp., at 790, app. 1. While these phenomena could be thought to stem from factors quite separate from the increasing market power of cable (for example, a recession in 1990-1992), it was for Congress to determine the better explanation. We are not at liberty to substitute our judgment for the reasonable conclusion of a legislative body. See Turner, supra, at 665-666. It is true the number of bankruptcies among local broadcasters was small; but Congress could forecast continuance of the "unprecedented" five year downward trend and conclude the station failures of 1985-1992 were, as Commissioner Quello warned, the tip of the iceberg. A fundamental principle of legislation is that Congress is under no obligation to wait until the entire harm occurs but may act to prevent it. "An industry need not be in its death throes before Congress may act to protect it from economic harm threatened by a monopoly." Turner, supra, at 672 (Stevens, J., concurring in part and concurring in judgment). As a Senate Committee noted in a Report on the Cable Act, "we need not wait until widespread further harm has occurred to the system of local broadcasting or to competition in the video market before taking action to forestall such consequences. Congress is allowed to make a rational predication of the consequences of inaction and of the effects of regulation in furthering governmental interests." Senate Report, at 60.
Despite the considerable evidence before Congress and adduced on remand indicating that the significant numbers of broadcast stations are at risk, the dissent believes yet more is required before Congress could act. It demands more information about which of the dropped broadcast stations still qualify for mandatory carriage, post, at 13; about the broadcast markets in which adverse decisions take place, post, at 14; and about the features of the markets in which bankrupt broadcast stations were located prior to their demise. Post, at 19. The level of detail in factfinding required by the dissent would be an improper burden for courts to impose on the Legislative Branch. That amount of detail is as unreasonable in the legislative context as it is constitutionally unwarranted. "Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review." Turner, 512 U. S., at 666 (plurality opinion).
We think it apparent must carry serves the Government's interests "in a direct and effective way." Ward, 491 U. S., at 800. Must carry ensures that a number of local broadcasters retain cable carriage, with the concomitant audience access and advertising revenues needed to support a multiplicity of stations. Appellants contend that even were this so, must carry is broader than necessary to accomplish its goals. We turn to this question.
The second portion of the O'Brien inquiry concerns the fit between the asserted interests and the means chosen to advance them. Content neutral regulations do not pose the same "inherent dangers to free expression," Turner, supra, at 661, that content based regulations do, and thus are subject to a less rigorous analysis, which affords the Government latitude in designing a regulatory solution. See, e.g., Ward, 491 U. S., at 798-799, n. 6. Under intermediate scrutiny, the Government may employ the means of its choosing " `so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation,' " and does not " `burden substantially more speech than is necessary to further' " that interest. Turner, supra, at 662 (quoting Ward, supra, at 799).
The must carry provisions have the potential to interfere with protected speech in two ways. First, the provisions restrain cable operators' editorial discretion in creating programming packages by "reduc[ing] the number of channels over which [they] exercise unfettered control." Turner, 512 U. S., at 637. Second, the rules "render it more difficult for cable programmers to compete for carriage on the limited channels remaining." Ibid.
Appellants say the burden of must carry is great, but the evidence adduced on remand indicates the actual effects are modest. Significant evidence indicates the vast majority of cable operators have not been affected in a significant manner by must carry. Cable operators have been able to satisfy their must carry obligations 87 percent of the time using previously unused channel capacity (Declaration of Harry Shooshan III, ¶14 (App. 692)); 94.5 percent of the 11,628 cable systems nationwide have not had to drop any programming in order to fulfill their must carry obligations; the remaining 5.5 percent have had to drop an average of only 1.22 services from their programming, id., ¶15 (App. 692); and cable operators nationwide carry 99.8 percent of the programming they carried before enactment of must carry. Id., ¶21 (App. 694-695). Appellees note that only 1.18 percent of the approximately 500,000 cable channels nationwide is devoted to channels added because of must carry, see id., ¶11(b) (App. 688-689); weighted for subscribership, the figure is 2.4 percent. 910 F. Supp., at 780 (Williams, J., dissenting). Appellees contend the burdens of must carry will soon diminish as cable channel capacity increases, as is occurring nationwide. NAB Brief 45; see also 910 F. Supp., at 746-747.
We do not understand appellants to dispute in any fundamental way the accuracy of those figures, only their significance. See NCTA Brief 46; id., at 44-49; Time Warner Brief 38-45; Turner Brief 33-42. They note national averages fail to account for greater crowding on certain (especially urban) cable systems, see Time Warner Brief 41, 43; Turner Brief 41, and contend that half of all cable systems, serving two thirds of all cable subscribers, have no available capacity, NCTA Brief 45; Turner Brief 34; Time Warner Brief 42, n. 58. Appellants argue that the rate of growth in cable programming outstrips cable operators' creation of new channel space, that the rate of cable growth is lower than claimed, Turner Brief 39, and that must carry infringes First Amendment rights now irrespective of future growth. Turner Brief 40; Reply Brief for Appellants Turner Broadcasting System, Inc., et al. 12-13. Finally, they say that regardless of the percentage of channels occupied, must carry still represents "thousands of real and individual infringements of speech." Time Warner Brief 44.
While the parties' evidence is susceptible of varying interpretations, a few definite conclusions can be drawn about the burdens of must carry. It is undisputed that broadcast stations gained carriage on 5,880 channels as a result of must carry. While broadcast stations occupy another 30,006 cable channels nationwide, this carriage does not represent a significant First Amendment harm to either system operators or cable programmers because those stations were carried voluntarily before 1992, and even appellants represent, Tr. of Oral Arg. 6, that the vast majority of those channels would continue to be carried in the absence of any legal obligation to do so. See Turner, supra, at 673, n. 6 (Stevens, J., concurring in part and concurring in judgment). The 5,880 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. Cf. Ward, 491 U. S., at 799, n. 7 ("the essence of narrow tailoring" is "focus[sing] on the evils the [Government] seeks to eliminate . . . [without] significantly restricting a substantial quantity of speech that does not create the same evils"); Community for Creative Non Violence, 468 U. S., at 297 ("None of [the regulation's] provisions appears unrelated to the ends that it was designed to serve."). Congress took steps to confine the breadth and burden of the regulatory scheme. For example, the more popular stations (which appellants concede would be carried anyway) will likely opt to be paid for cable carriage under the "retransmission consent" provision of the Cable Act; those stations will nonetheless be counted towards systems' must carry obligations. Congress exempted systems of 12 or fewer channels, and limited the must carry obligation of larger systems to one third of capacity, 47 U.S.C. § 534(b)(1); see also §§535(b)(2)%(3); allowed cable operators discretion in choosing which competing and qualified signals would be carried, §534(b)(2); and permitted operators to carry public stations on unused public, educational, and governmental channels in some circumstances, §535(d).
Appellants say the must carry provisions are overbroad because they require carriage in some instances when the Government's interests are not implicated: the must carry rules prohibit a cable system operator from 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." 512 U. S., at 683 (O'Connor, J., dissenting). See also NCTA Brief 25-26. We are not persuaded that either possibility is so prevalent that must carry is substantially overbroad. As discussed supra, at 18, cable systems serving 70 percent of subscribers are vertically integrated with cable programmers, so anticompetitive motives may be implicated in a majority of systems' decisions not to carry broadcasters. Some broadcasters will opt for must carry although they would not suffer serious financial harm in its absence. See Time Warner Brief 35-36, and n. 49. Broadcasters with stronger finances tend, however, to be popular ones that ordinarily seek payment from cable systems for transmission, so their reliance on must carry should be minimal. It appears, for example, that no more than a few hundred of the 500,000 cable channels nationwide are occupied by network affiliates opting for must carry (see Time Warner Brief 35-36, and n. 49), a number insufficient to render must carry "substantially broader than necessary to achieve the government's interest." Ward, 491 U. S., at 800. Even on the doubtful assumption that a narrower but still practicable must carry rule could be drafted to exclude all instances in which the Government's interests are not implicated, our cases establish that content neutral regulations are not "invalid simply because there is some imaginable alternative that might be less burdensome on speech." Albertini, 472 U. S., at 689; accord Ward, supra, at 797; Community for Creative Non Violence, supra, at 299.
Appellants posit a number of alternatives in an effort to demonstrate a less restrictive means to achieve the Government's aims. They ask us, in effect, to "sif[t] through all the available or imagined alternative means of regulating [cable television] in order to determine whether the [Government's] solution was `the least 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. Ibid. (quoting Regan v. Time, Inc., 468 U.S. 641, 657 (1984) (plurality opinion) (ellipses in original)). Our precedents establish that when evaluating a content neutral regulation which incidentally burdens speech, we will not invalidate the preferred remedial scheme because some alternative solution is marginally less intrusive on a speaker's First Amendment interests. "So long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less speech restrictive alternative." Ward, supra, at 800. See generally ibid. (holding regulation valid although Court of Appeals had identified less restrictive "alternative regulatory methods" of controlling volume at concerts); Albertini, supra, at 689 (upholding validity of order barring a person from a military base, although excluding barred person was not "essential" to preserving security and there were less speech restrictive means of attaining that end); Community for Creative Non Violence, supra, at 299 (overnight camping ban upheld although "there [were] less speech restrictive alternatives" of satisfying interest in preserving park lands); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 815-817 (1984) (stating that although making exceptions to ban on posting signs on public property "would have had a less severe effect on expressive activity," they were not "constitutionally mandated"). It is well established a regulation's validity "does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests." Albertini, supra, at 689.
In any event, after careful examination of each of the alternatives suggested by appellants, we cannot conclude that any of them is an adequate alternative to must carry for promoting the Government's legitimate 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 parties agree only 14 percent of broadcasters added to cable systems under the Cable Act would be eligible for carriage under the Century rules. See Turner Brief 45; Brief for Federal Appellees 45; NAB Brief 49; see also Declaration of Gregory Klein ¶¶21-25 (App. 1141-1143). The Century rules, for the most part, would require carriage of the same stations a system would carry without statutory compulsion. While we acknowledge appellants' criticism of any rationale that more is better, the scheme in question does not place limitless must carry obligations on cable system operators. In the final analysis this alternative represents nothing more than appellants' " `[dis]agreement with the responsible decisionmaker concerning' . . . the degree to which [the Government's] interests should be promoted." Ward, supra, at 800 (quoting Albertini, supra, at 689); Community for Creative Non Violence, 468 U. S., at 299. Congress legislated in the shadow of Quincy and Century Communications. Its deliberations reflect awareness of the must carry rules at issue in those cases (Senate Report, at 39-41, 62); indeed, in drafting the must carry provisions of the Cable Act, Congress made specific comparisons to the rules struck down in Quincy Cable TV, Inc v. FCC, 768 F. 2d 1434 (1985). See House Report, at 65-66; Senate Report, at 61. The record reflects a deliberate congressional choice to adopt the present levels of protection, to which this Court must defer.
The second alternative appellants urge is the use of input selector or "A/B" switches, which, in combination with antennas, would permit viewers to switch between cable and broadcast input, allowing cable subscribers to watch broadcast programs not carried on cable. Congress examined the use of A/B switches as an alternative to must carry and concluded it was "not an enduring or feasible method of distribution and . . . not in the public interest." §2(a)(18). The data showed that: many households lacked adequate antennas to receive broadcast signals, JSCR ¶¶ 724, 725, 768 (App. 1609-1610, 1634); A/B switches suffered from technical flaws, id., ¶¶718, 721, 738-739, 751-755, 761 (App. 1606, 1608, 1617-1618, 1624-1626, 1630); viewers might be required to reset channel settings repeatedly in order to view both UHF and cable channels, House Report, at 54; and installation and use of the switch with other common video equipment (such as videocassette recorders) could be "cumbersome or impossible." Senate Report, at 45, and nn. 115-116; House Report, at 54, and nn. 60-61; see also JSCR ¶¶746, 750, 758-767 (App. 1622, 1623, 1629-1634). Even the cable industry trade association (one of appellants here) determined that "the A/B switch is not a workable solution to the carriage problem." Senate Report, at 45, House Report, at 54. The group's engineering committee likewise concluded the switches suffered from technical problems and that no solution "appear[ed] imminent." Joint Petition for Reconsideration in MM Docket No. 85-349, pp. 6-8 (Dec. 17, 1986) (App. 1606-1607); see also Senate Report, at 45, and n. 115; House Report, at 54, and n. 60; Must Carry, Hearing before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 100th Cong., 1st Sess., 80 (1989) (statement of Preston Padden) (App. 1608); Hearings on Cable Television Regulation, at 901, n. 84 (statement of James B. Hedlund) (App. 1608).
Congress also had before it "considerable evidence," including two empirical studies, that "it is rare for [cable subscribers] ever to switch to receive an over the air signal," Senate Report, at 45; House Report, at 54, and n. 62. A 1991 study demonstrated that even "after several years of a government mandated program of providing A-B switches [to] consumers and a simultaneous education program on their use," NAB, A-B Switch Availability and Use (Sept. 23, 1991) (App. 132) and after FCC mandated technical improvements to the switch, App. 129, only 11.7 percent of all cable connected television sets were attached to an antenna and had an A/B switch. Id., at 131. Of the small number of households possessing the switch, an even smaller number (only 38 percent) had ever used it. Ibid. See House Report, at 54, and nn. 62-63. Congress' decision that use of A/B switches was not a real alternative to must carry was a reasonable one based on substantial evidence of technical shortcomings and lack of consumer acceptance. The reasonableness of its judgment was confirmed by additional evidence on remand that A/B switches can create signal interference and add complexity to video systems, factors discouraging their use. See Declaration of Eldon Haakinson ¶¶45-54 (App. 602-609); Supplemental Declaration of Eldon Haakinson ¶¶8-10 (App. 2025-2026); Memorandum from W. Cicora to L. Yaeger et al., dated June 25, 1993, p. 5 (channels may have to be reset every time A/B switch is used) (App. 246).
Appellants also suggest a leased access regime, under which both broadcasters and cable programmers would have equal access to cable channels at regulated rates. Turner Brief 46-47. Appellants do not specify what kind of regime they would propose, or how it would operate, making this alternative difficult to compare to the must carry rules. Whatever virtues the proposal might otherwise have, it would reduce the number of cable channels under cable systems' control in the same manner as must carry. Because this alternative is aimed solely at addressing the bottleneck control of cable operators, it would not be as effective in achieving Congress' further goal of ensuring that significant programming remains available for the 40 percent of American households without cable. Indeed, unless the number of channels set aside for local broadcast stations were to decrease (sacrificing Congress' interest in preserving a multiplicity of broadcasters), additional channels would have to be set aside for cable programmers, further reducing the channels under the systems' control. Furthermore, Congress was specific in noting that requiring payment for cable carriage was inimical to the interests it was pursuing, because of the burden it would impose on small broadcasters. See House Report, at 51; Senate Report, at 43, 45. Congress specifically prohibited such payments under the Cable Act. 47 U.S.C. §§ 534(b)(10), 535(i).
Appellants next suggest a system of subsidies for financially weak stations. Appellants have not proposed any particular subsidy scheme, so it is difficult to determine whether this option presents a feasible means of achieving the Government's interests, let alone one preferable to must carry under the First Amendment. To begin with, a system of subsidies would serve a very different purpose than must carry. Must carry is intended not to guarantee the financial health of all broadcasters, but to ensure a base number of broadcasters survive to provide service to noncable households. Must carry is simpler to administer and less likely to involve the Government in making content based determinations about programming. The must carry rules distinguish between categories of speakers based solely on the technology used to communicate. The rules acknowledge cable systems' expertise by according them discretion to determine which broadcasters to carry on reserved channels, and (within the Cable Act's strictures) allow them to choose broadcasters with a view to offering program choices appealing to local subscribers. Appellants' proposal would require the Government to develop other criteria for giving subsidies and to establish a potentially elaborate administrative structure to make subsidy determinations.
Appellants also suggest a system of antitrust enforcement or an administrative complaint procedure to protect broadcasters from cable operators' anticompetitive conduct. See Turner Brief 47-48. Congress could conclude, however, that the considerable expense and delay inherent in antitrust litigation, and the great disparities in wealth and sophistication between the average independent broadcast station and average cable system operator, would make these remedies inadequate substitutes for guaranteed carriage. The record suggests independent broadcasters simply are not in a position to engage in complex antitrust litigation, which involves extensive discovery, significant motions practice, appeals, and the payment of high legal fees throughout. See JSCR ¶¶556-576 (App. 1528-1537); Meek Declaration ¶58 (Record, Defendants' Joint Submission of Expert Affidavits and Reports in Support of Motion for Summary Judgment, Vol. II.A, Exh. 2). An administrative complaint procedure, although less burdensome, would still require stations to incur considerable expense and delay before enforcing their rights. As it is, some public stations have been forced by limited resources to forgo pursuing administrative complaints under the Cable Act to obtain carriage. See Declaration of Carolyn Lewis ¶13 (App. 548-549); Declaration of John Beabout ¶11 (App. 526-527). Those problems would be compounded if instead of proving entitlement under must carry, the station instead had to prove facts establishing an antitrust violation.
There is a final argument made by appellants that we do not reach. Appellant Time Warner Entertainment raises in its brief a separate First Amendment challenge to a subsection of the Cable Act, 47 U.S.C. § 534(c), that requires carriage on unfilled must carry channels of low power broadcast stations if the FCC determines that the station's programming "would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station's community of license." §534(h)(2)(B). We earlier reserved this question and invited the District Court to address it on remand. See Turner, 512 U. S., at 643-644, n. 6. Because this question has received "only the most glancing" attention, ibid., from the District Court and the parties, we have no more information about "the operation of, and justifications for, the low power broadcast provisions," ibid., on which to base an informed determination than we did on the earlier appeal. The District Court's primary opinion disposed of the question in a perfunctory discussion, 910 F. Supp., at 750-751; and the dissent explicitly declined to reach the question. Id., at 789. The issue has received even less attention from the parties. It was not addressed in the jurisdictional statement, the motions to affirm, or the appellants' oppositions to the motions to affirm. In over 400 pages of merits briefs, the parties devoted a total of four paragraphs (two of which were relegated to footnotes) to conclusory argumentation on this subject, largely concerning not the merits of the question but whether it was even properly before us. On this state of the record we have insufficient basis to make an informed judgment on this discrete issue. Even if the issue is "fairly included" in the broadly worded question presented, it is tangential to the main issue, and prudence dictates that we not decide this question based on such scant argumentation. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 588-589 n. 2 (1972); Teamsters v. Denver Milk Producers, Inc., 334 U.S. 809 (1948) (per curiam); see also Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (Scalia, J.).
Judgments about how competing economic interests are to be reconciled in the complex and fast changing field of television are for Congress to make. Those judgments "cannot be ignored or undervalued simply because [appellants] cas[t] [their] claims under the umbrella of the First Amendment." Columbia 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 First Amendment requires nothing more. The judgment of the District Court is affirmed.
It is so ordered.