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SUPREME COURT OF THE UNITED STATES
No.
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
[
Justice
As Justice Kennedy has ably explained, the "overriding congressional purpose" of the challenged must carry provisions of the 1992 Cable Act is to "guarantee the survival of a medium that has become a vital part of the Nation's communication system," a purpose that is "unrelated to the content of expression." Ante, at 22. The public interests in protecting access to television for the millions of homes without cable and in assuring the availability of "a multiplicity of information sources" are unquestionably substantial. Ante, at 39-40. The must carry provisions are amply "justified by special characteristics of the cable medium," namely, "the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television." Ante, at 37. Cable operators' control of essential facilities provides a basis for intrusive regulation that would be inappropriate and perhaps impermissible for other communicative media.
While I agree with most of Justice Kennedy's reasoning, and join Parts I, II(C), II(D), and III(A) of his opinion, I part ways with him on the appropriate disposition of this case. In my view the District Court'sjudgment sustaining the must carry provisions should be affirmed. The District Court majority evaluated §§4and 5 as content neutral regulations of protected speech according to the same standard that Justice Kennedy's opinion instructs it to apply on remand. In my view, the District Court reached the correct result the first time around. Economic measures are always subject to second guessing; they rest on inevitably provisional and uncertain forecasts about the future effect of legal rules in complex conditions. Whether Congress might have accomplished its goals more efficiently through other means; whether it correctly interpreted emerging trends in the protean communications industry; and indeed whether must carry is actually imprudent as a matter of policy will remain matters of debate long after the 1992 Act has been repealed or replaced by successor legislation. But the question for us is merely whether Congress could fairly conclude that cable operators' monopoly position threatens the continued viability of broadcast television and that must carry is an appropriate means of minimizing that risk. [n.1]
As Justice Kennedy recognizes, ante, at 41-42, findings by the Congress, particularly those emerging from such sustained deliberations, merit special respect from this Court. [n.2] Accorded proper deference, thefindings in §2 are sufficient to sustain the must carry provisions against facial attack. Congress's conclusion, for example, that broadcasters who are denied carriage on cable systems will suffer serious and potentially terminal economic harm, see §2(a)(16), requires no "further demonstration." See id., at 44. Because 60% of American households have cable, and because most cable subscribers rely solely on that medium to receive video signals, it is a practical certainty that a broadcaster dropped from the local cable system would suffer substantial economic harm. It is also clear that cable operators--particularly (but not exclusively) those affiliated with cable programmers--have both the ability and the economic incentive to exploit their gatekeeper status to the detriment of broadcasters. Thus, even if Congress had had before it no historical evidence that terminations or refusals of carriage had already occurred, [n.3] it could reasonably infer that cable operators' bottleneck control, together with the already high degree of vertical integration in the industry, would moti vate such conduct in the near future. [n.4] Indeed, themain thrust of the most pertinent congressional findings is not that cable carriers have already eliminated broadcast competition on a grand scale, but that given their market power they may soon do so. [n.5]
An industry need not be in its death throes before Congress may act to protect it from economic harm threatened by a monopoly. The mandatory access mechanism that Congress fashioned in §§4 and 5 of the 1992 Act is a simple and direct means of dealing with the dangers posed by cable operators' exclusive control of what is fast becoming the preeminent means of transferring video signals to homes. The must carry mechanism is analogous to the relief that might be appropriate for a threatened violation of the antitrust laws; one need only refer to undisputed facts concerning the structure of the cable and broadcast industries to agree that that threat is at least plausible. Moreover, Congress did not have to find that all broadcasters were at risk before acting to protect vulnerable ones, for the interest in preserving access to free television is valid throughout the Nation. Indeed, the Act is well tailored to assist those broadcasters who are most in jeopardy. Because thriving commercial broadcasters will likely avail themselves of the remunerative "retransmissionconsent" procedure of §6, those broadcasters who gain access via the §4 must carry route are apt to be the most economically vulnerable ones. Precisely how often broadcasters will secure carriage through §6 rather than §4 will depend upon future developments; the very unpredictability of this and other effects of the new regulatory scheme militates in favor of allowing the scheme to proceed rather than requiring a perfectly documented or entirely complete ex ante justification.
Justice Kennedy asks the three judge panel to take additional evidence on such matters as whether the must carry provisions really respond to threatened harms to broadcasters, whether §§4-5 "will in fact alleviate these harms in a direct and material way," ante, at 41, and "the extent to which cable operators will, in fact, be forced to make changes in their current or anticipated programming selections," id, at 44. While additional evidence might cast further light on the efficacy and wisdom of the must carry provisions, additional evidence is not necessary to resolve the question of their facial constitutionality. [n.6]
To predicate the facial validity of the must carry provisions upon forecasts of the ultimate consequences of their implementation is to ask the District Court to address questions that are not at present susceptible of reliable answers. Some of the matters the lead opinion singles out for further review--for example, "thedegree to which cable programmers will be dropped fromcable systems to make room for local broadcasters," ante, at 44--depend upon predictions about the future voluntary actions of entities who are parties to this case. At best, a remand for consideration of such factors will require the District Court to engage in speculation; it may actually invite the parties to adjust their conduct in an effort to affect the result of this litigation (perhaps by opting to drop cable programs rather than seeking to increase total channel capacity). The must carry provisions may ultimately prove an ineffective or needlessly meddlesome means of achieving Congress' legitimate goals. However, such a conclusion could be confidently drawn, if ever, only after the must carry scheme has been tested by experience. On its face, that scheme is rationally calculated to redress the dangers that Congress discerned after its lengthy investigation of the relationship between the cable and broadcasting industries.
It is thus my view that we should affirm the judgment of the District Court. Were I to vote to affirm, however, no disposition of this appeal would command thesupport of a majority of the Court. An accommo dation is therefore necessary. See Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result). Accordingly, because I am in substantial agreement with Justice Kennedy's analysis of the case, I concur in the judgment vacating and remanding for further proceedings.
Notes
1 I have no quarrel with Justice Kennedy's general statement that the question for the reviewing court in a case of this kind is merely whether "Congress has drawn reasonable inferences based on substantial evidence," given his caveat that Congress need not compile or restrict itself to a formal record in the manner required of a judicial or administrative factfinder. Ante, at 42-43. In my view, however, application of that standard would require affirmance here.
2 As Justice Kennedy observes, ante, at 42-43, we cannot abdicate our responsibility to decide whether a restriction on speech violates the First Amendment. But the factual findings accompanying economic measures that are enacted by Congress itself and that have only incidental effects on speech merit greater deference thanthose supporting content based restrictions on speech, see Sable Communications v. FCC, 492 U.S. 115, 129 (1989); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978) (both cited ante, at 42), or restrictions imposed by administrative agencies, see, e.g., Century Communications Corp. v. FCC, 835 F. 2d 292, 304 (1987) (cited ante, at 42-43).
3 But see H.R. Rep. No. 628, 102 Cong., 2d Sess. 50-57 (1992); Sen. Rep. No. 92, 102d Cong., 1st Sess. 43-44 (1991).
4 As Judge Jackson put it in his opinion for district court:
%[E]ven if the state of the broadcasting industry is not now as parlous as the defendants contend, the Court finds it indisputable that cable operators have attained a position of dominance in the video signal distribution market, and can henceforth exercise the attendant market power. The Court does not find improbable Congress' conclusion that this market power provides cable operators with both incentive and present ability to block non cable
programmers' access to the bulk of any prospective viewing audience; unconstrained, cable holds the future of local broadcasting at its mercy. In light of the considerable body of evidence amassed by Congress, and the deference this Court should accord to the factfinding abilities of the nation's legislature, . . . the Court must conclude that the danger perceived by Congress is real and substantial." Turner Broadcasting System, Inc. v. F. C. C., 819 F. Supp. 32, 46 (D.C. 1993) (citations omitted).
5 See §2(a)(16) ("As a result of the economic incentive that cable systems have to delete, reposition, or not carry local broadcast signals, the economic viability of free local broadcast television and its ability to originate quality local programming will be seriously jeopardized."); see also §2(a)(15), §2(a)(17).
6 The must carry obligations may be broader than necessary to protect vulnerable broadcasters, but that would not alone be enough to demonstrate that they violate the First Amendment. Thus, for instance, to the extent that §§4 and 5 obligate cable operators to carry broadcasters they would have carried even in the absence of a statutory obligation, any impairment of operators' freedom of choice, or on cable programmers' ability to secure carriage, would be negligible.