Turner Broadcasting System, Inc. v. FCC
520 U.S. 180 (1997)

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No. 95-992. Argued October 7, 1996-Decided March 31, 1997

Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act) require cable television systems to dedicate some of their channels to local broadcast television stations. In Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622(Turner), this Court held these so-called "must-carry" provisions to be subject to intermediate First Amendment scrutiny under United States v. O'Brien, 391 U. S. 367, 377, whereby a content-neutral regulation will be sustained if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. However, because a plurality considered the record as then developed insufficient to determine whether the provisions would in fact alleviate real harms in a direct and material way and would not burden substantially more speech than necessary, the Court remanded the case. Mter 18 months of additional factfinding, the District Court granted summary judgment for the Government and other appellees, concluding that the expanded record contained substantial evidence supporting Congress' predictive judgment that the must-carry provisions further important governmental interests in preserving cable carriage of local broadcast stations, and that the provisions are narrowly tailored to promote those interests. This direct appeal followed.

Held: The judgment is affirmed. 910 F. Supp. 734, affirmed.

JUSTICE KENNEDY delivered the opinion of the Court with respect to all but a portion of Part II-A-l, concluding that the must-carry provisions are consistent with the First Amendment:

1. The record as it now stands supports Congress' predictive judgment that the must-carry provisions further important governmental interests. Pp. 189-196, 208-213.

(a) This Court decided in Turner, 512 U. S., at 662, and now reaffirms, that must-carry was designed to serve three interrelated, important governmental interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread


dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the television programming market. Protecting noncable households from loss of regular broadcasting service due to competition from cable systems is important because 40 percent of American households still rely on over-the-air signals for television programming. See, e. g., id., at 663. Moreover, there is a corresponding governmental purpose of the highest order in ensuring public access to a multiplicity of information sources, ibid., and the Government has an interest in eliminating restraints on fair competition even when the regulated parties are engaged in protected expressive activity, ibid. The parties' attempts to recast these interests in forms more readily proved-i. e., the Government's claim that the loss of even a few broadcast stations is critically important and appellants' assertions that Congress' interest in preserving broadcasting is not implicated absent a showing that the entire industry would fail, and that its interest in assuring a multiplicity of information sources extends only as far as preserving a minimum amount of broadcast service-are inconsistent with Congress' stated interests in enacting must-carry. Pp. 189-194.

(b) Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, courts must accord deference to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest the traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy be infringed. See, e. g., Turner, 512 U. S., at 665 (pluralityopinion). The courts' sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence. Id., at 666. Pp. 195-196.

(c) The must-carry provisions serve important governmental interests "in a direct and effective way." Ward v. Rock Against Racism, 491 U. S. 781, 800. Congress could reasonably conclude from the substantial body of evidence before it that attaining cable carriage would be of increasing importance to ensuring broadcasters' economic viability, and that, absent legislative action, the free local off-air broadcast system was endangered. Such evidence amply indicated that: a broadcast station's viability depends to a material extent on its ability to secure cable carriage and thereby to increase its audience size and revenues; broadcast stations had fallen into bankruptcy, curtailed their operations, and suffered serious reductions in operating revenues as a result of adverse carriage decisions by cable systems; stations without carriage encountered severe difficulties obtaining financing for operations; and the potentially adverse impact of losing carriage was increasing as the growth of "clustering"-i. e., the acquisition of as many cable systems in a given

Full Text of Opinion

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