TURNER BROADCASTING SYSTEM, INC., ET AL. v.
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.
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.
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.
market as possible-gave multiple system operators centralized control over more local markets. The reasonableness of the congressional judgment is confirmed by evidence assembled on remand that clearly establishes the importance of cable to broadcast stations and suggests that expansion in the cable industry was harming broadcasting. Although the record also contains evidence to support a contrary conclusion, the question is not whether Congress was correct as an objective matter, but whether the legislative conclusion was reasonable and supported by substantial evidence. Turner, supra, at 665-666. Where, as here, that standard is satisfied, summary judgment is appropriate regardless of whether the evidence is in conflict. Cf., e. g., American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 523. pp. 208-213.
ators to set aside channels for both broadcasters and cable programmers to use at a regulated price; subsidies for broadcasters; and a system of antitrust enforcement or an administrative complaint procedure-reveals that none of them is an adequate alternative to must-carry for achieving the Government's aims. Because it has received only the most glancing attention from the District Court and the parties, prudence dictates that this Court not reach appellants' challenge to the Cable Act provision requiring carriage of low power stations in certain circumstances. Pp. 213-225.
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE SOUTER, and by JUSTICE BREYER in part, concluded in Part II-A-l that the expanded record contains substantial evidence to support Congress' conclusion that enactment of must-carry was justified by a real threat to local broadcasting's economic health. The harm Congress feared was that broadcast stations dropped or denied cable carriage would be at a serious risk of financial difficulty, see Turner, 512 U. S., at 667, and would deteriorate to a substantial degree or fail altogether, id., at 666. The evidence before Congress, as supplemented on remand, indicated, inter alia, that: cable operators had considerable and growing market power over local video programming markets in 1992; the industry's expanding horizontal and vertical integration would give cable operators increasing ability and incentive to drop, or reposition to less-viewed channels, independent local broadcast stations, which competed with the operators for audiences and advertisers; significant numbers of local broadcasters had already been dropped; and, absent must-carry, additional stations would be deleted, repositioned, or not carried in an attempt to capture their local advertising revenues to offset waning cable subscription growth. The reasonableness of Congress' predictive judgment is also supported by additional evidence, developed on remand, indicating that the percentage of local broadcasters not carried on the typical cable system is increasing, and that the growth of cable systems' market power has proceeded apace, better enabling them to sell their own reach to potential advertisers, and to deny broadcast competitors access to all or substantially all the cable homes in a market area. Pp. 196-208.
JUSTICE BREYER, although agreeing that the statute satisfies the intermediate scrutiny standard set forth in United States v. O'Brien, 391 U. S. 367, 377, rested his conclusion not upon the principal opinion's analysis of the statute's efforts to promote fair competition, but rather upon its discussion of the statute's other two objectives. He therefore joined the opinion of the Court except insofar as Part II-A-l relies on an anticompetitive rationale. Pp. 225-229.
KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court, except as to a portion of Part II-A-l. REHNQUIST, C. J., and STEVENS and SOUTER, JJ., joined that opinion in full, and BREYER, J., joined except insofar as Part II-A-1 relied on an anticompetitive rationale. STEVENS, J., filed a concurring opinion, post, p. 225. BREYER, J., filed an opinion concurring in part, post, p. 225. O'CONNOR, J., filed a dissenting opinion, in which SCALIA, THOMAS, and GINSBURG, JJ., joined, post, p. 229.
H. Bartow Farr III argued the cause for appellants.
With him on the briefs for appellant National Cable Television Association, Inc., were Richard G. Taranto, Daniel L. Brenner, Neal M. Goldberg, and Diane B. Burstein. Bruce D. Sokler, Christopher A. Holt, Bertram W Carp, Bruce D. Collins, Neal S. Grabell, and James H. Johnson filed a brief for appellants Turner Broadcasting System, Inc., et al. Albert G. Lauber, Jr., Peter Van N. Lockwood, Judith A. McHale, and Diane L. Hofbauer filed a brief for appellants Discovery Communications, Inc., et al. Robert D. Joffe, Stuart W Gold, Rowan D. Wilson, Brian Conboy, and Theodore Case Whitehouse filed a brief for appellant Time Warner Entertainment Co.
Acting Solicitor General Dellinger argued the cause for appellees. With him on the briefs for the federal appellees were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, Paul R. Q. Wolfson, Douglas N. Letter, Bruce G. Forrest, William E. Kennard, and Christopher J. Wright. Bruce J. Ennis, Jr., argued the cause and filed a brief for appellees National Association of Broadcasters et al. With him on the brief were Kit A. Pierson, Donald B. Verrilli, Jr., Thomas J. Perrelli, Jack N. Goodman, Benjamin F. P. Ivins, Kathleen M. Sullivan, and James J. Popham. Carolyn F. Corwin, Mark H. Lynch, Marilyn Mohrman-Gillis, and Paula A. Jameson filed a brief for appellees Association of America's Public Television Stations et al. Andrew Jay Schwartzman, Gigi B. Sohn, and Elliot M. Mincberg filed a brief for appellees Consumer Federation of America et al.
JUSTICE KENNEDY delivered the opinion of the Court, except as to a portion of Part II-A-l.
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 socalled "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.
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 intervenordefendants. A majority of the court sustained the mustcarry provisions under the intermediate standard of scrutiny set forth in United States v. O'Brien, supra, concluding the must-carry provisions were content-neutral "industryspecific 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 (1993).
On appeal, we agreed with the District Court that mustcarry 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 in 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 (opinion concurring in part and concurring in judgment); id., at 667-668.
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 mustcarry 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.
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.
This direct appeal followed. See 47 U. S. C. §555(c)(1); 28 U. S. C. § 1253. We noted probable jurisdiction, 516 U. S. 1110 (1996), and we now affirm.
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." Id., at 664.
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).
tems," 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").
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 251, 253, 258. 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, 223224 (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 Comm. 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.
dence"); 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, supra, at 814 ("[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 risks 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 (Apr. 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.
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.
ment of Robert G. Picard) (App. 1339-1341); see also JSCR "168-170,278-280 (App. 1320-1321, 1370-1371).
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 195-196. 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, 707708, 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. VILH, Exh. 170, p. 1749 (DAE) (cable industry memo stating: "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. 10091013); Declaration of James Dertouzos' 6a (Dertouzos Declaration) (App. 959).
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).
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 238, 252, 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 239. 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. 20032004); see also Declaration of John R. Haring , 37 (Haring Declaration) (App. 1106).
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. LZ, Exh. 140, pp. CR 15297-15298, 15306-15307.
local broadcasters." Id.,' 155 (App. 1313). 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." App. 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).
lees 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).
Carry TV Broadcast Stations, Table II-4 (Apr. 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.
tising 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. VILK, Exh. 266); see also JSCR "199,204 (App. 1334, 1336). The FTC study the dissent cites, post, at 242, 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 broadcast 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.
"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).
vertising] 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. 15531555). 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 "150153 (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.
"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).
tarily 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 "reweigh 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)).
(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) ("[T]he number of stations going dark began to escalate" after 1988) (emphasis deleted); 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" 5-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: "[W]e 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.
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 241; about the broadcast markets in which adverse decisions take place, ibid.; and about the features of the markets in which bankrupt broadcast stations were located prior to their demise, post, at 246. 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, supra, 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 regulation,'" and does not" 'burden substantially more speech than is necessary to further' " that interest. Turner, 512 U. S., 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 Shoo shan 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. 694695). 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., , l1(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.
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 twothirds 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 mustcarry. 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.
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 ("[T]he essence of narrow tailoring" is "focus[ing] on the source of 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 toward 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).
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 3536, and n. 49, a number insufficient to render must-carry "substantially broader than necessary to achieve the government's interest," Ward, supra, 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 NonViolence, supra, at 299.
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, 491 U. S., 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.
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 mustcarry 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 Cable TV: Inc. v. FCC, 768 F.2d 1434 (CADC 1985), 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, supra. 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.
receive broadcast signals, JSCR" 724,725,768 (App. 16091610, 1634); A/B switches suffered from technical flaws, id., "718, 721, 738-739, 751-755, 761 (App. 1606, 1608, 16171618, 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, 758767 (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).
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).
riage 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 mustcarry. 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.
adequate 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. ILA, 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 had to prove facts establishing an antitrust violation.
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.).
these circumstances the First Amendment requires nothing more. The judgment of the District Court is affirmed.
As JUSTICE KENNEDY clearly explains, the policy judgments made by Congress in the enactment of legislation that is intended to forestall the abuse of monopoly power are entitled to substantial deference. Ante, at 195-196, 224 and this page. That is true even when the attempt to protect an economic market imposes burdens on communication. Cf. United States v. Radio Corp. of America, 358 U. S. 334 (1959); FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411, 428, n. 12 (1990) (" 'This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association'" (quoting NAACP v. Claiborne Hardware Co., 458 U. S. 886, 912 (1982))). If this statute regulated the content of speech rather than the structure of the market, our task would be quite different. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 669, n. 2 (1994) (STEVENS, J., concurring in part and concurring in judgment). Cf. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 129 (1989); Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843 (1978). Though I write to emphasize this important point, I fully concur in the Court's thorough opinion.
I join the opinion of the Court except insofar as Part IIA-1 relies on an anticompetitive rationale. I agree with the majority that the statute must 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." Ante, at 189 (citing United States v.
O'Brien, 391 U. S. 367, 377 (1968)). I also agree that the statute satisfies this standard. My conclusion rests, however, not upon the principal opinion's analysis of the statute's efforts to "promot[e] fair competition," see post, at 230-232, 237-240, but rather upon its discussion of the statute's other objectives, namely, "'(1) preserving the benefits of free, over-the-air local broadcast television,'" and" '(2) promoting the widespread dissemination of information from a multiplicity of sources,'" ante, at 189 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (Turner)). Whether or not the statute does or does not sensibly compensate for some significant market defect, it undoubtedly seeks to provide over-the-air viewers who lack cable with a rich mix of over-the-air programming by guaranteeing the overthe-air stations that provide such programming with the extra dollars that an additional cable audience will generate. I believe that this purpose-to assure the over-the-air public "access to a multiplicity of information sources," id., at 663-provides sufficient basis for rejecting appellants' First Amendment claim.
I do not deny that the compulsory carriage that creates the "guarantee" extracts a serious First Amendment price. It interferes with the protected interests of the cable operators to choose their own programming; it prevents displaced cable program providers from obtaining an audience; and it will sometimes prevent some cable viewers from watching what, in its absence, would have been their preferred set of programs. Ante, at 214; post, at 250. This "price" amounts to a "suppression of speech."
widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Turner, supra, at 663 (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) (internal quotation marks omitted)); see also FCC v. WNCN Listeners Guild, 450 U. S. 582, 594 (1981). That policy, in turn, seeks to facilitate the public discussion and informed deliberation, which, as Justice Brandeis pointed out many years ago, democratic government presupposes and the First Amendment seeks to achieve. Whitney v. California, 274 U. S. 357, 375-376 (1927) (concurring opinion). See also New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Associated Press v. United States, supra, at 20. Indeed, Turner rested in part upon the proposition that "assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment." 512 U. S., at 663.
With important First Amendment interests on both sides of the equation, the key question becomes one of proper fit. That question, in my view, requires a reviewing court to determine both whether there are significantly less restrictive ways to achieve Congress' over-the-air programming objectives, and also to decide whether the statute, in its effort to achieve those objectives, strikes a reasonable balance between potentially speech-restricting and speech-enhancing consequences. Ward v. Rock Against Racism, 491 U. S. 781, 799-800 (1989); ante, at 217-218. The majority's opinion analyzes and evaluates those consequences, and I agree with its conclusions in respect to both of these matters. Ante, at 213-224.
tleneck that controls the range of viewer choice (whether or not it uses any consequent economic power for economically predatory purposes), and that some degree-at least a limited degree-of governmental intervention and control through regulation can prove appropriate when justified under O'Brien (at least when not "content based"). Ante, at 197,208-213; see also Defendants' Joint Statement of Evidence before Congress "12-21, 31-59 (App. 1254-1258, 1262-1274) (JSCR); Cable Television Consumer Protection and Competition Act of 1992, § 2(a)(2), P. L. 102-385, 106 Stat. 1460. Cf. Red Lion, supra, at 377-378, 387-401; 47 CFR §§ 73.123, 73.300, 73.598, 73.679 (1969) (Federal Communications Commission regulations upheld in Red Lion); United Broadcasting Co., 10 F. C. C. 515 (1945); New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). I also agree that, without the statute, cable systems would likely carry significantly fewer over-the-air stations, ante, at 191, 202205, that station revenues would therefore decline, ante, at 208-213, and that the quality of over-the-air programming on such stations would almost inevitably suffer, e. g., JSCR "596,704-706 (App. 1544, 1600-1601); Rebuttal Declaration of Roger G. Noll" 5,11,34,38 (App. 1790, 1793, 1804-1805, 1806). I agree further that the burden the statute imposes upon the cable system, potential cable programmers, and cable viewers is limited and will diminish as typical cable system capacity grows over time.
less profitable. In these circumstances, I do not believe the First Amendment dictates a result that favors the cable viewers' interests.
These and other similar factors discussed by the majority lead me to agree that the statute survives "intermediate scrutiny," whether or not the statute is properly tailored to Congress' purely economic objectives.
JUSTICE O'CONNOR, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE GINSBURG join, dissenting.
Communications, Inc. v. Virginia, 435 U. S. 829, 843 (1978). The Court fails to discharge its duty here.
I did not join those portions of the principal opinion in Turner holding that the must-carry provisions of the Cable Act are content neutral and therefore subject to intermediate First Amendment scrutiny. 512 U. S., at 643-651. The Court there referred to the "unusually detailed statutory findings" accompanying the Cable Act, in which Congress recognized the importance of preserving sources of local news, public affairs, and educational programming. Id., at 646; see id., at 632-634, 648. Nevertheless, the Court minimized the significance of these findings, suggesting that they merely reflected Congress' view of the "intrinsic value" of broadcast programming generally, rather than a congressional preference for programming with local, educational, or informational content. Id., at 648.
In Turner, the Court drew upon Senate and House Reports to identify three "interests" that the must-carry provisions were designed to serve: "(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming." Id., at 662 (citing S. Rep. No. 102-92, p. 58 (1991); H. R. Rep. No. 102-628, p. 63 (1992)). The Court reiterates these interests here, ante, at 189-190, but neither the principal opinion nor the partial concurrence ever explains the relationship between them with any clarity.
cast programming sources available to noncable households." Ante, at 193 (emphasis added).
I fully agree that promoting fair competition is a legitimate and substantial Government goal. But the Court nowhere examines whether the breadth of the must-carry provisions comports with a goal of preventing anticompetitive harms. Instead, in the course of its inquiry into whether the must-carry provisions are "narrowly tailored," the principal opinion simply assumes that most adverse carriage decisions are anticompetitively motivated, and that must-carry is therefore a measured response to a problem of anticompetitive behavior. Ante, at 216-217. We ordinarily do not substitute unstated and untested assumptions for our independent evaluation of the facts bearing upon an issue of constitutional law. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 636 (1980).
that market will, in the absence of must-carry, remain available to viewers in noncable households. It also depends on whether viewers actually watch the stations that are dropped or denied carriage. The Court provides some raw data on adverse carriage decisions, but it never connects those data to markets and viewership. Instead, the Court proceeds from the assumptions that adverse carriage decisions nationwide will affect broadcast markets in proportion to their size; and that all broadcast programming is watched by viewers. N either assumption is logical or has any factual basis in the record.
tain "diverse," "quality" programming that is "responsive" to the needs of the local community. Brief for Federal Appellees 13, 30; see Brief for Appellees National Association of Broadcasters et al. 36-37 (NAB Brief); Tr. of Oral Arg. 29, 42; see also ante, at 226 (BREYER, J., concurring in part) (justifying must-carry as a means of preventing a decline in "quality and quantity of programming choice"). Must-carry is thus justified as a way of preserving viewers' access to a Spanish or Chinese language station or of preventing an independent station from adopting a home-shopping format. NAB Brief 28,33; Brief for Federal Appellees 31; Tr. of Oral Arg.32-33. Undoubtedly, such goals are reasonable and important, and the stations in question may well be worthwhile targets of Government subsidies. But appellees' characterization of must-carry as a means of protecting these stations, like the Court's explicit concern for promoting" 'community self-expression'" and the" 'local origination of broadcast programming,'" ante, at 192, 193 (brackets omitted), reveals a content-based preference for broadcast programming. This justification of the regulatory scheme is, in my view, wholly at odds with the Turner Court's premise that must-carry is a means of preserving "access to free television programming-whatever its content," 512 U. S., at 649 (emphasis added).
I do not read JUSTICE BREYER'S opinion-which analyzes the must-carry rules in part as a "speech-enhancing" measure designed to ensure a "rich mix" of over-the-air programming, see ante, at 226, 227-to treat the content of over-theair programming as irrelevant to whether the Government's interest in promoting it is an important one. The net result appears to be that five Justices of this Court do not view must-carry as a narrowly tailored means of serving a substantial governmental interest in preventing anticompetitive behavior; and that five Justices of this Court do see the significance of the content of over-the-air programming to the Government's and appellees' efforts to defend the law.
Under these circumstances, the must-carry provisions should be subject to strict scrutiny, which they surely fail.
The principal opinion goes to great lengths to avoid acknowledging that preferences for "quality," "diverse," and "responsive" local programming underlie the must-carry scheme, although the partial concurrence's reliance on such preferences is explicit. See ante, at 226 (opinion of BREYER, J.). I take the principal opinion at its word and evaluate the claim that the threat of anticompetitive behavior by cable operators supplies a content-neutral basis for sustaining the statute. It does not.
The Turner Court remanded the case for a determination whether the must-carry provisions satisfy intermediate scrutiny under United States v. O'Brien, 391 U. S. 367 (1968). Under that standard, appellees must demonstrate that the must-carry provisions (1) "furthe[r] an important or substantial government interest"; and (2) burden speech no more "than is essential to the furtherance of that interest." Id., at 377; see also Ward v. Rock Against Racism, 491 U. S. 781, 799 (1989). The Turner plurality found that genuine issues of material fact remained as to both parts of the O'Brien analysis. On whether must-carry furthers a substantial governmental interest, the Turner Court remanded the case to test two essential and unproven propositions: "(1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and (2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." 512 U. S., at 666 (emphasis added). As for whether must-carry restricts no more speech than essential to further Congress' asserted purpose, the Turner plurality found evidence lacking on the extent of the burden that the must-carry provisions would place on cable operators and cable programmers. Id., at 667-668.
The District Court resolved this case on cross-motions for summary judgment. As the Court recognizes, ante, at 211, the fact that the evidence before Congress might have been in conflict will not necessarily preclude summary judgment upholding the must-carry scheme. The question, rather, is what the undisputed facts show about the reasonableness of Congress' conclusions. We are not, however, at liberty to substitute speculation for evidence or to ignore factual disputes that call the reasonableness of Congress' findings into question. The evidence on remand demonstrates that appellants, not appellees, are entitled to summary judgment.
The principal opinion devotes substantial discussion to the structure of the cable industry, see ante, at 197, 206-207, a matter that was uncontroversial in Turner. See, e. g., 512 U. S., at 627-628, 632-633, 639-640; id., at 684 (O'CONNOR, J., concurring in part and dissenting in part). As of 1992, cable already served 60 percent of American households. I agree with the observation that Congress could reasonably predict an increase in cable penetration of the local video programming market. Ante, at 197. Local franchising requirements and the expense of constructing a cable system to serve a particular area make it possible for cable franchisees to exercise a monopoly over cable service. 512 U. S., at 633. Nor was it ever disputed that some cable system operators own large numbers of systems nationwide, or that some cable systems are affiliated with cable programmers. Turner Broadcasting v. FCC, 819 F. Supp. 32, 39-40 (DC 1993) (opinion of Jackson, J.); id., at 57 (Williams, J., dissenting); Plaintiffs' Response to NAB's Statement of Material Facts , 4 (Feb. 12, 1993) (App. in Turner, O. T. 1993, No. 93-44, p. 186); Plaintiff Time Warner's Statement of Material Facts as to Which There Is No Genuine Issue " 5, 12 (App. in Turner, O. T. 1993, supra, at 198, 199).
What was not resolved in Turner was whether "reasonable inferences based on substantial evidence," 512 U. S., at 666 (plurality opinion), supported Congress' judgment that the must-carry provisions were necessary "to prevent cable operators from exploiting their economic power to the detriment of broadcasters," id., at 649. Because I remain convinced that the statute is not a measured response to congressional concerns about monopoly power, see infra, at 249-256, in my view the principal opinion's discussion on this point is irrelevant. But even if it were relevant, it is incorrect.
The Turner plurality recognized that Congress' interest in curtailing anticompetitive behavior is substantial "in the abstract." 512 U. S., at 664. The principal opinion now concludes that substantial evidence supports the congressional judgment that cable operators have incentives to engage in significant anticompetitive behavior. It appears to accept two related arguments on this point: first, that vertically integrated cable operators prefer programming produced by their affiliated cable programming networks to broadcast programming, ante, at 198-199, 200; and second, that potential advertising revenues supply cable system operators, whether affiliated with programmers or not, with incentives to prefer cable programming to broadcast programming, ante, at 200-202.
543 (1988) (Hearing on Competitive Issues) (statement of Milton Maltz, representative of Association of Independent Television Stations, Inc. (INTV), now appellee Association of Local Television Stations, Inc.) (Record, Defendants' Joint Submission of Congressional Record (CR) Vol. LC, Exh. 8, p. CR 01882); Cable Television Regulation: Hearings on H. R. 1303 and H. R. 2546 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 102d Cong., 1st Sess., 858 (1992) (statement of James B. Hedlund, president of INTV) (CR Vol. LJ, Exh. 18, at CR 07862); id., at 752 (statement of Edward O. Fritts, president of appellee NAB) (CR Vol. LJ, Exh. 18, at CR 07756); id., at 701 (statement of Gene Kimmelman, legislative director of appellee Consumer Federation of America) (CR Vol. LJ, Exh. 18, at CR 07706). It is appropriate to regard the testimony of interested persons with a degree of skepticism when our task is to engage in "'independent judgment of the facts bearing on an issue of constitutional law.'" Turner, supra, at 666 (plurality opinion) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S., at 129). Moreover, even accepting as reasonable Congress' conclusion that cable operators have incentives to favor affiliated programmers, Congress has already limited the number of channels on a cable system that can be occupied by affiliated programmers. 47 U. S. C. § 533(f)(1)(B); 47 CFR § 76.504 (1995). Once a cable system operator reaches that cap, it can no longer bump a broadcaster in favor of an affiliated programmer. If Congress were concerned that broadcasters favored too many affiliated programmers, it could simply adjust the cap. Must-carry simply cannot be justified as a response to the allegedly "substantial" problem of vertical integration.
channels. Ante, at 202. Even assuming that, at the margin, advertising revenues would drive cable systems to drop some stations-invariably described as "vulnerable" or "smaller" independents, see NAB Brief 22; Brief for Federal Appellees 25, and n. 14-the strategy's success would depend upon the additional untested premise that the advertising revenues freed by dropping a broadcast station will flow to cable operators rather than to other broadcasters.
Under the standard articulated by the Turner plurality, the conclusion that must-carry serves a substantial governmental interest depends upon the "essential propositio[n]" that, without must-carry, "significant numbers of broadcast stations will be refused carriage on cable systems." 512 U. S., at 666. In analyzing whether this undefined standard is satisfied, the Court focuses almost exclusively on raw numbers of stations denied carriage or "repositioned"-that is, shifted out of their traditional channel positions.
The Court begins its discussion of evidence of adverse carriage decisions with the 1988 study sponsored by the Federal Communications Commission (FCC). Ante, at 202-203; see Cable System Broadcast Signal Carriage Survey, Staff Report by the Policy and Rules Division, Mass Media Bureau (Sept. 1, 1988) (App. 37). But in Turner, the plurality criticized this very study, noting that it did not indicate the timeframe within which carriage denials occurred or whether the stations were later restored to their positions. 512 U. S., at 667. As for the evidence in the record before Congress, these gaps persist; the Court relies on a study of public television stations to support the proposition that "in the vast majority of cases, dropped stations were not restored to the cable service." Ante, at 203.
of drops of broadcast stations in the non-must-carry era. The data do not indicate which of these stations would now qualify for mandatory carriage. Appellees' expert frames the relevant drop statistic as "subscriber instances"-that is, the number of drop instances multiplied by the number of cable subscribers affected. Declaration of Tom Meek , 17 (Meek Declaration) (App. 623). Two-thirds of the "subscriber instances" of drops existing as of mid-1992 remained uncured as of mid-1994, fully 19 months after the present must-carry rules went into effect. Meek Declaration, Attachment C (Record, Defendants' Joint Submission of Expert Affidavits and Reports in Support of Motion for Summary Judgment, Vol. ILA, Exh. 2). The Court discounts the importance of whether dropped stations now qualify for mandatory carriage, on the ground that requiring any such showing places an "improper burden" on the Legislative Branch. Ante, at 213. It seems obvious, however, that if the mustcarry rules will not reverse those adverse carriage decisions on which appellees rely to illustrate the Government "interest" supporting the rules, then a significant question remains as to whether the rules in fact serve the articulated interest. Without some further analysis, I do not see how the Court can, in the course of its independent scrutiny on a question of constitutional law, deem Congress' judgment "reasonable."
by exammmg the reasonableness of Congress' prediction that adverse carriage decisions will inflict severe harm on broadcast stations.
gional Office of the Federal Trade Commission, p. 3 (Nov. 26, 1991) (App. 163); see also Declaration of Stanley M. Besen (Besen Declaration) (App. 808, 818); Second Declaration of Stanley M. Besen (App. 1812) (presenting data that (1) the typical cable subscriber was served by a cable system carrying local broadcast stations accounting for 97 percent of viewing in noncable households; and (2) the typical cable subscriber was served by a cable system carrying 90 percent of all local broadcast stations with any reportable ratings and 30 percent of all local broadcast stations with no reportable ratings).
this: even the lowest rated commercial stations attract viewers, and the lowest rated noncommercial stations attract members"). The Court suggests that it is appropriate to disregard the low noncable viewership of stations denied carriage, because in some instances cable viewers preferred the dropped broadcast channels to the cable channels that replaced them. Ante, at 206. The viewership statistics in question, as well as their significance, are sharply disputed, but they are also irrelevant. The issue is whether the Government can demonstrate a substantial interest in forced carriage of certain broadcast stations, for the benefit of viewers who lack access to cable. That inquiry is not advanced by an analysis of relative cable household viewership of broadcast and cable programming. When appellees are pressed to explain the Government's "substantial interest" in preserving noncable viewers' access to "vulnerable" or "marginal" stations with "relatively small" audiences, it becomes evident that the interest has nothing to do with anticompetitive behavior, but has everything to do with content-preserving "quality" local programming that is "responsive" to community needs. Brief for Federal Appellees 13, 30. Indeed, JUSTICE BREYER expressly declines to accept the anticompetitive rationale for the must-carry rules embraced by the principal opinion, and instead explicitly relies on a need to preserve a "rich mix" of "quality" programming. Ante, at 226 (opinion concurring in part).
broadcast licenses, curtailed their broadcast operations, or suffered a serious reduction in operating revenues" because of adverse carriage decisions. Id., at 667. The record on remand does not permit the conclusion, at the summary judgment stage, that Congress could reasonably have predicted serious harm to a significant number of stations in the absence of must-carry.
The purported link between an adverse carriage decision and severe harm to a station depends on yet another untested premise. Even accepting the conclusion that a cable system operator has a monopoly over cable services to the home, supra, at 237, it does not necessarily follow that the operator also has a monopoly over all video services to cabled households. Cable subscribers using an input selector switch and an antenna can receive broadcast signals. Widespread use of such switches would completely eliminate any cable system "monopoly" over sources of video input. See 910 F. Supp., at 786 (Williams, J., dissenting). Growing use of direct-broadcast satellite television also tends to undercut the notion that cable operators have an inevitable monopoly over video services entering cable households. See, e. g., Farhi, Dishing Out the Competition to Cable TV; Washington Post, Oct. 12, 1996, at Hi, col. 3.
Finance of the House Committee on Energy and Commerce, 101st Cong., 2d Sess. (May 16, 1990)) (CR Vol. LL, Exh. 22, at CR 08828); JSCR "759-760 (App. 1629-1630) (citing Comments of INTV in MM Docket No. 85-349, at 73 (Jan. 29,1986)) (CR Vol. LBB, Exh. 162, at CR 15901-15902); JSCR , 758 (App. 1628) (citing Comments of NAB in MM Docket No. 85-349, at 23-24 (Jan. 29, 1986)) (CR Vol. LBB, Exh. 165, at CR 16183-16184); JSCR "718,724,751-752,754-755, 761-762 (App. 1605-1607, 1609-1610, 1624-1627, 1630-1631) (citing Joint Petition for Reconsideration in MM Docket No. 85-349 (Dec. 17, 1986)) (CR Vol. LDD, Exh. 183, at CR 16726-16839); JSCR "738-739, 764, 767 (App. 1617-1618, 1632-1634) (citing Petition for Reconsideration by Adelphia Communications Corp. et al. in MM Docket No. 85-349, at 27-32 (Jan. 12, 1987)) (CR Vol. LDD, Exh. 184, at CR 1689216897). The Court notes the importance of deferring to congressional judgments about the "interaction of industries undergoing rapid economic and technological change." Ante, at 196. But this principle does not require wholesale deference to judgments about rapidly changing technologies that are based on unquestionably outdated information.
relevance of this evidence, or of the evidence concerning the difficulties encountered by new stations seeking financing. See ante, at 209 (citing JSCR "643-658 (App. 1564-1576)).
The Court also claims that the record on remand reflects "considerable evidence" of stations curtailing their broadcast operations or suffering reductions in operating revenues. Ante, at 209. Most of the anecdotal accounts of harm on which the Court relies are sharply disputed. Compare JSCR "618, 619, 622, 623, 692 (App. 1553-1555, 1591), with Time Warner Entertainment Company, L. P.'s Broadcast Station Rebuttal , 8 (App. 2299) (ABC affiliate claiming harm from denial of carriage experienced $3.8 million net revenue increase between 1986 and 1992); id., , 111 (App. 2403) (Home Shopping Network affiliate did not report to Congress that it was harmed by cable operator conduct between 1986 and 1992); id., , 83 (App. 2372-2373) (station alleged to have lost half of its cable carriage in fact obtained carriage on systems serving 80 percent of total cable subscribers within area of dominant influence); id., , 94 (App. 2385) (station claiming harm from denial of carriage experienced a $1.13 million net revenue increase between 1986 and 1993); id., , 30 (App. 2318) (some systems on which station claimed anticompetitive carriage denials were precluded from carrying station due to signal strength and quality problems). Congress' reasonable conclusions are entitled to deference, and for that reason the fact that the evidence is in conflict will not necessarily preclude summary judgment in appellees' favor. Nevertheless, in the course of our independent review, we cannot ignore sharp conflicts in the record that call into question the reasonableness of Congress' findings.
of analysis. Were it to do SO, the Court would have to recognize that all but one of the commercial broadcast stations cited as claiming a curtailment in operations or a decline in revenue was broadcasting within an area of dominant influence that experienced net growth, or at least no net reduction, in the number of commercial broadcast stations operating during the non-must-carry era. See Besen Declaration, Exh. 11 (App. 861-869); cf. JSCR , 618 (App. 1553) (station claiming harm within Cedar Rapids market, with four commercial broadcast stations in 1987 and five in 1992); id., , 620 (App. 1554) (station claiming harm within Tulsa market, with seven commercial broadcast stations in 1987 and 1992); id., , 623 (App. 1554) (station claiming harm within New York City market, with 14 commercial broadcast stations in 1987 and 1992); id., , 692 (App. 1591) (station claiming harm within Salt Lake City market, with five commercial broadcast stations in 1987 and eight in 1992); id., , 695 (App. 15931594) (station claiming harm within Honolulu market, with seven commercial broadcast stations in 1987 and nine in 1992); id., , 703 (App. 1599) (station claiming harm within Grand Rapids market, with seven commercial broadcast stations in 1987 and 1992). Indeed, in 499 of 504 areas of dominant influence nationwide, the number of commercial broadcast stations operating in 1992 equaled or exceeded the number operating in 1987. Besen Declaration, Exh. 11 (App.861-869). Only two areas of dominant influence experienced a reduction in the number of noncommercial broadcast stations operating between 1987 and 1992. Ibid. (App. 871-880).
evidence that 263 new broadcast stations signed on the air in the period without must-carry rules, evidence of growth in stations' advertising revenue, and evidence of voluntary carriage of broadcast stations accounting for virtually all measurable viewership in noncable households. Ante, at 210-211. But the Court dismisses such evidence, emphasizing that the question is not whether Congress correctly determined that must-carry is necessary to prevent significant financial hardship to a substantial number of stations, but whether "the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress." Ante, at 211. Even accepting the Court's articulation of the relevant standard, it is not properly applied here. The principal opinion disavows a need to closely scrutinize the logic of the regulatory scheme at issue on the ground that it "need not put [its] imprimatur on Congress' economic theory in order to validate the reasonableness of its judgment." Ante, at 208. That approach trivializes the First Amendment issue at stake in this case. A highly dubious economic theory has been advanced as the "substantial interest" supporting a First Amendment burden on cable operators and cable programmers. In finding that must-carry serves a substantial interest, the principal opinion necessarily accepts that theory. The partial concurrence does not, but neither does it articulate what threat to the availability of a "multiplicity" of broadcast stations would exist in a perfectly competitive market.
by broadcast stations are irrelevant to measuring the burden of the must-carry scheme. The must-carry rules prevent operators from dropping these broadcast stations should other more desirable cable programming become available, even though operators have carried these stations voluntarily in the past. The must-carry requirements thus burden an operator's First Amendment freedom to exercise unfettered control over a number of channels in its system, whether or not the operator's present choice is aligned with that of the Government.
N. Y. State Crime Victims Bd., 502 U. S. 105, 120 (1991). Without a sense whether most adverse carriage decisions are anticompetitively motivated, it is improper to conclude that the statute is narrowly tailored simply because it prevents some adverse carriage decisions. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (scope of law must be "in proportion to the interest served") (internal quotation marks omitted).
motives may be implicated in a majority of decisions, or in decisions by a majority of systems. In either case, the principal opinion's conclusion is wholly speculative. We do not know which of these vertically integrated systems are affiliated with one cable programmer and which are affiliated with five cable programmers. Moreover, Congress has placed limits upon the number of channels that can be used for affiliated programming. 47 U. s. C. § 533(f)(1)(B). The principal opinion does not suggest why these limits are inadequate or explain why, once a system reaches the limit, its remaining carriage decisions would also be anticompetitively motivated. Even if the channel limits are insufficient, the principal opinion does not explain why requiring carriage of broadcast stations on one-third of the system's channels is a measured response to the problem.
Finally, I note my disagreement with the Court's suggestion that the availability of less-speech-restrictive alternatives is never relevant to O'Brien's narrow tailoring inquiry. Ante, at 217-218. The Turner Court remanded this case in part because a plurality concluded that "judicial findings concerning the availability and efficacy of constitutionally acceptable less restrictive means of achieving the Government's asserted interests" were lacking in the original record. 512 U. S., at 668 (internal quotation marks omitted). The Court's present position on this issue is puzzling.
suggest, as I read the majority to do here, that the availability of less-speech-restrictive alternatives cannot establish or confirm that a regulation is substantially broader than necessary to achieve the Government's goals. While the validity of a Government regulation subject to intermediate First Amendment scrutiny does not turn on our "agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests," United States v. Albertini, 472 U. S. 675, 689 (1985), the availability of less intrusive approaches to a problem serves as a benchmark for assessing the reasonableness of the fit between Congress' articulated goals and the means chosen to pursue them, Rubin v. Coors Brewing Co., 514 U. S. 476, 490-491 (1995).
As shown supra, at 251-252 and this page, in this case it is plain without reference to any alternatives that the mustcarry scheme is "substantially broader than necessary," Ward, 491 U. S., at 800, to serve the only governmental interest that the principal opinion fully explains-preventing unfair competition. If Congress truly sought to address anticompetitive behavior by cable system operators, it passed the wrong law. See Turner, supra, at 682 (O'CONNOR, J., concurring in part and dissenting in part) ("That some speech within a broad category causes harm ... does not justify restricting the whole category"). Nevertheless, the availability of less restrictive alternatives-a leased access regime and subsidies-reinforces my conclusion that the must-carry provisions are overbroad.
plicitly identifies any threat to the availability of broadcast television to noncable households other than anticompetitive conduct, nor does JUSTICE BREYER'S partial concurrence. Accordingly, to the extent that leased access would address problems of anticompetitive behavior, I fail to understand why it would not achieve the goal of "ensuring that significant programming remains available" for noncable households. Ante, at 221. The Court observes that a leased access regime would, like must-carry, "reduce the number of cable channels under cable systems' control in the same manner as must-carry." Ibid. No leased access scheme is currently before the Court, and I intimate no view on whether leased access, like must-carry, imposes unacceptable burdens on cable operators' free speech interests. It is important to note, however, that the Court's observation that a leased access scheme may, like must-carry, impose First Amendment burdens does not dispose of the narrow tailoring inquiry in this case. As noted, a leased access regime would respond directly to problems of vertical integration and problems of predatory behavior. Must-carry quite clearly does not respond to the problem of vertical integration. Supra, at 251253. In addition, the must-carry scheme burdens the rights of cable programmers and cable operators; there is no suggestion here that leased access would burden cable programmers in the same way as must-carry does. In both of these respects, leased access is a more narrowly tailored guard against anticompetitive behavior. Finally, if, as the Court suggests, Congress were concerned that a leased access scheme would impose a burden on "small broadcasters" forced to pay for access, subsidies would eliminate the problem.
failure to reach 40 percent of its potential audience, it could ensure that its allocation would do no more than protect those broadcasters that would survive with full access to television-viewing households. In sum, the alleged barrier to a precise allocation of subsidies is not insurmountable. The Court also suggests that a subsidy scheme would "involve the Government in making content-based determinations about programming." Ante, at 222. Even if that is so, it does not distinguish subsidies from the must-carry provisions. In light of the principal opinion's steadfast adherence to the position that a preference for "diverse" or local-content broadcasting is not a content-based preference, the argument is ironic indeed.
Finally, I note my disagreement with the Court's decision to sidestep a question reserved in Turner, see 512 U. S., at 643-644, n. 6; addressed by the District Court below, 910 F. Supp., at 750 (Sporkin, J.); fairly included within the question presented here; and argued by one of the appellants: whether the must-carry rules requiring carriage of low power stations, 47 U. S. C. § 534(c), survive constitutional scrutiny. A low power station qualifies for carriage only if the 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). As the Turner Court noted, "this aspect of § 4 appears to single out certain low-power broadcasters for special benefits on the basis of content." 512 U. S., at 644, n. 6. Because I believe that the must-carry provisions fail even intermediate scrutiny, it is clear that they would fail scrutiny under a stricter content-based standard.
issue was fairly included within the question presented or properly preserved by the parties. Ante, at 224. This position is somewhat perplexing. The Court in Turner apparently found the issue both fairly included within the strikingly similar question presented there, compare Brief for Federal Appellees in Turner, O. T. 1993, No. 93-44, p. I, with Brief for Federal Appellees I, and properly preserved despite the lack of specific argumentation devoted to this subsection of the challenged statute in the jurisdictional statement there, see Juris. Statement in Turner, O. T. 1993, No. 93-44, pp. 11-28. The Court's focus on the quantity of briefing devoted to the subject, ante, at 224, ignores the fact that there are two groups of appellants challenging the judgment below-cable operators and cable programmers-and that the issue is of more interest to the former than to the latter. It also seems to suggest that a party defending a judgment can defeat this Court's review of a question simply by ignoring its adversary's position on the merits.
In any event, the Court lets stand the District Court's seriously flawed legal reasoning on the point. The District Court concluded that the provisions "are very close to content-based legislation triggering strict scrutiny," but held that they do not "cross the line." 910 F. Supp., at 750. That conclusion appears to have been based on the fact that the low power provisions are viewpoint neutral. Ibid. Whether a provision is viewpoint neutral is irrelevant to the question whether it is also content neutral. See R. A. v: v. St. Paul, 505 U. S. 377, 430 (1992) (STEVENS, J., concurring in judgment); Turner, supra, at 685 (GINSBURG, J., concurring in part and dissenting in part).
opinion then misapplies the analytic framework it chooses, exhibiting an extraordinary and unwarranted deference for congressional judgments, a profound fear of delving into complex economic matters, and a willingness to substitute untested assumptions for evidence. In light of gaps in logic and evidence, it is improper to conclude, at the summary judgment stage, that the must-carry scheme serves a significant governmental interest "in a direct and effective way." Ward, 491 U. S., at 800. Moreover, because the undisputed facts demonstrate that the must-carry scheme is plainly not narrowly tailored to serving the only governmental interest the principal opinion fully explains and embraces-preventing anticompetitive behavior-appellants are entitled to summary judgment in their favor.
JUSTICE BREYER disavows the principal opinion's position on anticompetitive behavior, and instead treats the must-carry rules as a "speech-enhancing" measure designed to ensure access to "quality" programming for noncable households. Neither the principal opinion nor the partial concurrence explains the nature of the alleged threat to the availability of a "multiplicity of broadcast programming sources," if that threat does not arise from cable operators' anticompetitive conduct. Such an approach makes it impossible to discern whether Congress was addressing a problem that is "real, not merely conjectural," and whether mustcarry addresses the problem in a "direct and material way." Turner, supra, at 664 (plurality opinion).