Turner Broadcasting System, Inc. v. Federal Communications Commission
137 L. Ed. 2d 369, 117 S. Ct. 1174 (1997)
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Rule of Law:
Content-neutral regulations that require cable television systems to carry local broadcast stations are constitutional under intermediate scrutiny if they further important governmental interests and do not burden substantially more speech than necessary, with courts giving substantial deference to Congress's predictive judgments based on reasonable inferences from substantial evidence.
Facts:
- In the early 1990s, Congress found that the cable television industry exercised significant market power, with most communities served by a single cable operator.
- This market structure created a bottleneck, giving cable operators control over the television programming that reached subscribers' homes.
- Congress observed increasing horizontal concentration (a few large companies owning many systems) and vertical integration (cable operators owning programming networks) in the cable industry.
- These industry trends gave cable operators the economic incentive and ability to refuse to carry, or adversely reposition, local broadcast stations in order to favor their own affiliated programmers.
- Congress found that without regulatory intervention, the economic viability of free, over-the-air local broadcast television—a primary source of information for the 40% of Americans without cable—would be seriously jeopardized.
- In response, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992, which contained 'must-carry' provisions.
- These provisions required cable operators with more than 12 channels to set aside up to one-third of their channel capacity for local commercial and noncommercial broadcast stations.
Procedural Posture:
- Turner Broadcasting System, Inc. and other cable industry plaintiffs sued the FCC and the United States in the U.S. District Court for the District of Columbia, a special three-judge court of first instance.
- The plaintiffs sought to enjoin enforcement of the must-carry provisions of the 1992 Cable Act, arguing they violated the First Amendment.
- The District Court granted summary judgment for the Government (appellees).
- The plaintiffs (appellants) took a direct appeal to the U.S. Supreme Court.
- In Turner Broadcasting v. FCC (1994) ('Turner I'), the Supreme Court affirmed that the provisions were content-neutral and subject to intermediate scrutiny, but vacated the lower court's judgment.
- The Supreme Court remanded the case to the District Court for further evidentiary development on whether the government's asserted interests were real and whether the regulations were narrowly tailored.
- On remand, following extensive fact-finding, the three-judge District Court again granted summary judgment for the Government (appellees).
- The plaintiffs (appellants) again filed a direct appeal to the U.S. Supreme Court.
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Issue:
Do the 'must-carry' provisions of the Cable Television Consumer Protection and Competition Act of 1992, which require cable systems to dedicate a portion of their channels to local broadcast stations, violate the First Amendment free speech rights of cable operators and programmers?
Opinions:
Majority - Justice Kennedy
No. The must-carry provisions do not violate the First Amendment because they are a content-neutral regulation narrowly tailored to serve important governmental interests. The Court identified three such 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 television programming. The Court must accord 'substantial deference' to the predictive judgments of Congress. Here, Congress drew reasonable inferences from substantial evidence that, absent the must-carry rules, cable operators' market power would lead to a significant number of broadcast stations being dropped, thereby jeopardizing the broadcast system. The law is narrowly tailored because its burden on cable operators' speech is congruent with the benefit it provides by ensuring the survival of local broadcasting, and Congress reasonably rejected less restrictive alternatives like A/B switches or subsidies as less effective.
Dissenting - Justice O'Connor
Yes. The must-carry provisions violate the First Amendment. The majority gives unwarranted deference to Congress and misapplies intermediate scrutiny. The law's true purpose is to preserve 'quality' and 'diverse' local programming, which is a content-based goal that should trigger strict scrutiny, a test the law would fail. Even under intermediate scrutiny, the law fails because the threat to broadcasting was not severe or widespread enough to justify such a broad speech restriction. The law is not narrowly tailored because it is overbroad, applying to all cable operators regardless of whether they pose an anticompetitive threat, and less-restrictive alternatives like a leased-access regime or subsidies would have been more effective and proportionate to the alleged harm.
Concurring - Justice Stevens
No. The provisions are constitutional. Justice Stevens fully concurred with the majority, writing separately to emphasize that the policy judgments made by Congress to forestall the abuse of monopoly power are entitled to substantial deference, even when such economic regulation has incidental effects on communication.
Concurring - Justice Breyer
No. The provisions are constitutional, but not primarily for the anticompetitive rationale. The statute is justified by its goal of preserving free, over-the-air broadcast television and promoting a multiplicity of information sources for the benefit of non-cable viewers. While the law imposes a First Amendment burden on cable operators, it also serves significant First Amendment interests by ensuring the public has access to a 'rich mix' of programming. The law strikes a reasonable balance between its speech-restricting and speech-enhancing consequences and is therefore constitutional.
Analysis:
This decision solidifies the high level of deference courts must give to Congressional fact-finding and predictive judgments in complex, rapidly-changing industries like telecommunications, even when First Amendment rights are at stake. By upholding the must-carry rules under intermediate scrutiny, the Court affirmed Congress's power to enact structural regulations on media markets to promote viewpoint diversity and protect older technologies from the market power of newer ones. The case establishes a significant precedent for balancing the editorial rights of media distributors against the public's interest in having access to a multiplicity of information sources, suggesting that government intervention to ensure this access can be constitutional.
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