turner broadcasting system et al federal communications commission et argued october decided march held judgment affirmed supp affirmed justice kennedy delivered opinion respect portion part concluding must carry provisions consistent first amendment record stands supports congress predictive judgment must carry provisions important governmental interests pp decided turner reaffirms must carry designed serve three interrelated important governmental interests preserving benefits free air local broadcast television promoting widespread dissemination information multiplicity sources promoting fair competition television programming market protecting noncable households loss regular broadcasting service due competition cable systems important percent american households still rely air signals television programming see moreover corresponding governmental purpose highest order ensuring public access multiplicity information sources government interest eliminating restraints fair competition even regulated parties engaged protected expressive activity ibid parties attempts recast interests forms readily proved government claim loss even broadcast stations critically important appellants assertions congress interest preserving broadcasting implicated absent showing entire industry fail interest assuring multiplicity information sources extends far preserving minimum amount broadcast service inconsistent congress stated interests enacting must carry pp even realm first amendment questions congress must base conclusions upon substantial evidence courts must accord deference findings harm avoided remedial measures adopted end lest traditional legislative authority make predictive judgments enacting nationwide regulatory policy infringed see turner plurality opinion courts sole obligation assure formulating judgments congress drawn reasonable inferences based substantial evidence pp must carry provisions serve important governmental interests direct effective way ward rock racism congress reasonably conclude substantial body evidence attaining cable carriage increasing importance ensuring broadcasters economic viability absent legislative action free local air broadcast system endangered evidence amply indicated broadcast station viability depends material extent ability secure cable carriage thereby increase audience size revenues broadcast stations fallen bankruptcy curtailed operations suffered serious reductions operating revenues result adverse carriage decisions cable systems stations without carriage encountered severe difficulties obtaining financing operations potentially adverse impact losing carriage increasing growth clustering acquisition many cable systems given market possible gave multiple system operators centralized control local markets reasonableness congressional judgment confirmed evidence assembled remand clearly establishes importance cable broadcast stations suggests expansion cable industry harming broadcasting although record also contains evidence support contrary conclusion question whether congress correct objective matter whether legislative conclusion reasonable supported substantial evidence turner supra standard satisfied summary judgment appropriate regardless whether evidence conflict american textile mfrs institute donovan pp must carry provisions burden substantially speech necessary governmental interests promote see turner supra appellants say must carry burden great significant evidence adduced remand indicates vast majority cable operators affected significant manner includes evidence operators satisfied must carry obligations percent time using previously unused channel capacity percent cable systems nationwide drop programming remaining percent drop average services programming operators nationwide carry percent programming carried must carry broadcast stations gained carriage cable channels result must carry burden imposed must carry congruent benefits affords appellants concede stations dropped absence must carry therefore narrowly tailored preserve multiplicity broadcast stations percent american households without cable ward possibilities must carry prohibit dropping broadcaster even cable operator anticompetitive motives broadcaster survive without cable access prevalent render must carry substantially overbroad precedents establish invalidate preferred remedial scheme merely alternative solution marginally less intrusive speaker first amendment interests event careful examination appellants suggestions morelimited set must carry obligations modeled earlier used federal communications commission use called switches giving consumers choice cable broadcast signals leased access regime requiring cable operators set aside channels broadcasters cable programmers use regulated price subsidies broadcasters system antitrust enforcement administrative complaint procedure reveals none adequate alternative must carry achieving government aims received glancing attention district parties prudence dictates reach appellants challenge cable act provision requiring carriage low power stations certain circumstances pp justice kennedy joined chief justice justice stevens justice souter justice breyer part concluded part expanded record contains substantial evidence support congress conclusion enactment must carry justified real threat local broadcasting economic health harm congress feared broadcast stations dropped denied cable carriage serious risk financial difficulty see turner deteriorate substantial degree fail altogether evidence congress supplemented remand indicated inter alia cable operators considerable growing market power local video programming markets industry expanding horizontal vertical integration give cable operators increasing ability incentive drop reposition less viewed channels independent local broadcast stations competed operators audiences advertisers significant numbers local broadcasters already dropped absent must carry additional stations deleted repositioned carried attempt capture local advertising revenues offset waning cable subscription growth reasonableness congress predictive judgment also supported additional evidence developed remand indicating percentage local broadcasters carried typical cable system increasing growth cable systems market power proceeded apace better enabling sell reach potential advertisers deny broadcast competitors access substantially cable homes market area pp justice breyer although agreeing statute satisfies intermediate scrutiny standard set forth rested conclusion upon principal opinion analysis statute efforts promote fair competition rather upon discussion statute two objectives therefore joined opinion except insofar part relies anticompetitive rationale pp kennedy announced judgment delivered opinion except portion part rehnquist stevens souter joined opinion full breyer joined except insofar part relied anticompetitive rationale stevens filed concurring opinion breyer filed opinion concurring part filed dissenting opinion scalia thomas ginsburg joined notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions wash ington typographical formal errors order corrections may made preliminary print goes press turner broadcasting system et appellants federal communications commission et al appeal district district columbia march justice kennedy delivered opinion sections cable television consumer protection competition act require cable television systems dedicate channels local broadcast television stations earlier case held called must carry provisions content neutral restrictions speech subject intermediate first amendment scrutiny plurality considered record developed insufficient determine whether provisions narrowly tailored important governmental interests remanded case district district columbia additional factfinding appeal district grant summary judgment appellees case presents two questions left open first appeal first whether record stands supports congress predictive judgment must carry provisions important governmental interests second whether provisions burden substantially speech necessary interests answer questions affirmative concludethe must carry provisions consistent first amendment outline cable act congress purposes adopting facts case set detail first opinion see turner broadcasting system fcc turner abbreviated summary suffice soon congress enacted cable television consumer protection competition act pub stat cable act appellants brought suit federal communications commission referred government district district columbia challenging constitutionality must carry provisions first amendment three judge district divided opinion granted summary judgment government intervenor defendants majority sustained must carry provisions intermediate standard scrutiny set forth supra concluding must carry provisions content neutral industry specific antitrust fair trade legislation narrowly tailored preserve local broadcasting beset monopoly power cable systems growing concentration cable industry concomitant risks programming decisions driven anticompetitive policies supp dc appeal agreed district must carry distinguish favored speech disfavored speech basis ideas views expressed content neutral regulation designed prevent cable operators exploiting economic power detriment broadcasters ensure americans especially unable subscribe cable access free television programming whatever content held intermediate level scrutiny applicable content neutral regulations must carry sustained shown important substantial governmental interest unrelated suppression free speech provided incidental restrictions burden substantially speech necessary interests quoting ward rock racism although ha difficulty concluding interests must carry designed serve important abstract four justice plurality concluded genuine issues material fact remained regarding whether economic health local broadcasting genuine jeopardy need protections afforded must carry whether must carry burden substantially speech necessary government legitimate interests quoting ward supra justice stevens found statute valid record us agreed remand case ensure judgment case returned district proceedings stevens concurring part concurring judgment district oversaw another months factual development remand yielding record tens thousands pages evidence turner broadcasting fcc supp dc comprised materials acquired congress three years pre enactment hearings see turner supra well additional expert submissions sworn declarations testimony industry documents obtained remand upon consideration expanded record divided panel district grantedsummary judgment appellees majority determined congress drew reasonable inferences substantial evidence conclude absence must carry rules significant numbers broadcast stations refused carriage found congress drew studies anecdotal evidence indicating cable operators already dropped refused carry adversely repositioned significant numbers local broadcasters suggesting vast majority cases broadcasters restored carriage prior position ibid noting evidence record congress testimony experts remand decided noncarriage problem grow worse without must carry cable operators refrained dropping broadcast stations congress investigation pendency litigation possessed increasing incentives use growing economic power capture broadcasters advertising revenues promote affiliated cable programmers ibid concluded substantial evidence congress supported predictive judgment local broadcaster denied carriage suffer financial harm possible ruin cited evidence adverse carriage actions decrease broadcasters revenues reducing audience levels evidence invalidation fcc prior must carry regulations contributed declining growth broadcast industry held must carry narrowly tailored promote government legitimate interests found effects must carry cable operators minimal noting evidence cable systems required add broadcast stations since rules adopted percent cable channels devoted broadcast stations addedbecause must carry burden likely diminish channel capacity expanded future proceeded consider number alternatives must carry appellants proposed including leased access regime cable operators required set aside channels broadcasters cable programmers use regulated price use called switches giving consumers choice cable broadcast signals limited set must carry obligations modeled earlier used fcc subsidies broadcasters rejected turn concluding even assuming alternatives less burdensome cable operators first amendment interests respect effective achieving government interests judge jackson preferred trial summary judgment concurred judgment judge williams dissented review record particularly evidence concerning growth number broadcasters industry advertising revenues per station profits period without must carry led conclude broadcast industry whole seriously jeopardized absence must carry judge williams acknowledged government legitimate interest preventing anticompetitive behavior accepted cable operators incentives discriminate broadcasters favor vertically integrated cable programming granted summary judgment appellants nonetheless ground must carry narrowly tailored view must carry constitutes significant though diminish ing burden cable operators programmers rights cable act must carry provisions suppress morespeech necessary less restrictive alternatives exist accomplish government legitimate objectives direct appeal followed see noted probable jurisdiction affirm begin plurality ended turner applying standards intermediate scrutiny enunciated content neutral regulation sustained first amendment advances important governmental interests unrelated suppression free speech burden substantially speech necessary interests noted turner must carry designed serve three interrelated interests preserving benefits free air local broadcast television promoting widespread dissemination information multiplicity sources promoting fair competition market television programming decided reaffirm important governmental interest explicit holding protecting noncable households loss regular television broadcasting service due competition cable systems important federal interest quoting capital cities cable crisp forty percent american households continue rely air signals television programming despite growing importance cable television alternative technologies broadcasting demonstrably principal source information entertainment great part nation population turner supra quoting southwestern cable identified acorresponding governmental purpose highest order ensuring public access multiplicity information sources undisputed government interest eliminating restraints fair competition even individuals entities subject particular regulations engaged expressive activity protected first amendment ibid remand sides advanced new interpretations interests attempt recast forms readily proven williams dissenting government downplays importance showing risk broadcast industry whole suggests loss even broadcast stations matter critical importance tr oral arg taking opposite approach appellants argue congress interest preserving broadcasting implicated unless shown industry whole fail without must carry brief appellant national cable television association ncta brief brief appellant time warner entertainment time warner brief suggest congress legitimate interest assuring public access multiplicity information sources turner supra extends far preserving minimum amount television broadcast service time warner brief ncta brief reply brief appellant ncta alternative formulations inconsistent congress stated interests enacting must carry congressional findings reflect concern absent must carry voices tr oral arg lost television marketplace explicit factual findings congress expressed clear concern marked shift market share broadcast television cable television services cable act note following resulting increasingmarket penetration cable services well expanding horizontal concentration vertical integration cable operators combined give cable systems incentive ability delete reposition decline carriage local broadcasters attempt favor affiliated cable programmers congress predicted absent reimposition must carry additional local broadcast signals deleted repositioned carried see also end result economic viability free local broadcast television ability originate quality local programming seriously jeopardized time congress illusion complete disappearance broadcast television nationwide absence must carry congress recognized broadcast programming network programming particular remains popular programming cable systems indeed reflecting popularity strength broadcasters congress included cable act provision permitting broadcasters charge cable systems carriage broadcasters signals see codified congress concerned broadcast television disappear entirety without must carry without significant numbers broadcast stations refused carriage cable systems broadcast stations denied carriage either deteriorate substantial degree fail altogether see house report absence must carry result weakening air television industry reduction competition committee wishes make clear concerns limited situation stations dropped wholesale large numbers cable systems senate report without congressional action role local television broadcasting system communications steadily decline see also brief federal appellees turner broadcasting system fcc question whether evidence shows broadcast television likely totally eliminated whether broadcast services available viewers without cable likely reduced significant extent either loss stations altogether curtailment services others congressional findings support appellants suggestion legitimate legislative goals satisfied preservation rump broadcasting industry providing minimum broadcast service americans without cable noted long basic tenet national communications policy widest possible dissemination information diverse antagonistic sources essential welfare public turner quoting midwest video plurality opinion quoting associated press see also fcc wncn listeners guild ncreasing number outlets community self expression represents long established regulatory goa field television broadcasting midwest video supra plurality opinion consistent objective cable act findings reflect concern congressional action necessary prevent reduction number media voices available consumers congress identified specific interest ensuring continuation local origination broadcast programming interest consistent larger purpose promoting multiple types media found must carry necessary serve goals original communications act providing fair efficient equitable distribution broadcast services short congress enacted must carry preserve existing structure nation broadcast television medium permitting concomitant expansion development cable television although congress set definite number broadcast stations sufficient purposes cable act requirement cable operators channels set aside one third channel capacity local broadcasters refutes notion congress contemplated preserving bare minimum stations congress evident interest preserv ing existing structure broadcast industry discloses purpose prevent significant reduction multiplicity broadcast programming sources available noncable households extent appellants question substantiality government interest preserving something minimum number stations community position meritless congress decide much local broadcast television preserved noncable households validity determination turn judge agreement responsible decisionmaker concerning degree government interests promoted ward quoting albertini accord clark community creative non violence believe endow judiciary competence judge much protection park lands wise dissent proceeds assumption must carry designed solely justifiedas measure protect broadcasters cable operators anticompetitive behavior see post federal policy however long favored preserving multiplicity broadcast outlets regardless whether conduct threatens motivated anticompetitive animus rises level antitrust violation see capital cities cable crisp midwest video supra plurality opinion fcc regulations avowedly designed guard broadcast services undermined unregulated cable growth national broadcasting many network practices raise serious questions antitrust laws fcc function apply antitrust laws quoting fcc report chain broadcasting regulations broadcast television important source information many americans though one many means communication tradition use decades essential part national discourse subjects across whole broad spectrum speech thought expression see turner supra fcc national citizens committee broadcasting referring studies showing dominant role television stations sources local news information congress independent interest preserving multiplicity broadcasters ensure households access information entertainment equal footing subscribe cable earlier review constrained state record assessing importance government asserted interests viewed abstract turner expandedrecord permits us consider whether must carry provisions designed address real harm whether provisions alleviate material way turn first harm risk prompted congress act government assertion economic health local broadcasting genuine jeopardy need protections afforded must carry rests two component propositions first significant numbers broadcast stations refused carriage cable systems absent second broadcast stations denied carriage either deteriorate substantial degree fail altogether ibid reviewing constitutionality statute courts must accord substantial deference predictive judgments congress sole obligation assure formulating judgments congress drawn reasonable inferences based substantial evidence noted first appeal substantiality measured context standard deferential accord judgments administrative agency see stevens concurring part concurring judgment owe congress findings deference part institution far better equipped judiciary amass evaluate vast amounts data bearing upon legislative questions turner supra plurality opinion quoting walters national assn radiation survivors ward rostker goldberg courts must perform appropriately deferential examination congress evaluation th evidence columbia broadcasting system democratic national committee principle special significance cases like one involving congressionaljudgments concerning regulatory schemes inherent complexity assessments likely interaction industries undergoing rapid economic technological change though different degree deference congress one respect akin deference owed administrative agencies expertise see fcc national citizens comm broadcasting omplete factual support record fcc judgment prediction possible required forecast direction future public interest lies necessarily involves deductions based expert knowledge agency midwest video beyond competence appeals assess relative risk benefits fcc policy long policy based findings supported evidence sum matter however owe congress findings additional measure deference respect authority exercise legislative power even realm first amendment questions congress must base conclusions upon substantial evidence deference must accorded findings harm avoided remedial measures adopted end lest infringe traditional legislative authority make predictive judgments enacting nationwide regulatory policy difficulty finding substantial basis support congress conclusion real threat justified enactment must carry provisions examine first evidence congress evidence presented district remand supplement congressional determination evidence congress specific support conclusion cable operators hadconsiderable growing market power local video programming markets cable served least percent american households see cable act evidence indicated cable market penetration projected grow beyond percent see cable tv consumer protection act hearing subcommittee communications senate committee commerce science transportation statement edward fritts app see also defendants joint statement evidence congress jscr app congress noted cable operators possess local monopoly cable households one percent communities served one cable system jscr app even communities two cable systems typical case system local monopoly subscribers see comments nab fcc mm docket april app cable operators thus exercise control television programming channeled subscriber home thus silence voice competing speakers mere flick switch turner evidence indicated structure cable industry give cable operators increasing ability incentive drop local broadcast stations systems reposition less viewed channel horizontal concentration increasing small number multiple system operators mso acquired large numbers cable systems nationwide trend accelerating giving mso increasing market power largest mso controlled cable systems serving slightly less percent cable subscribers figure nearly percent jscr app competitive problemsin cable television industry hearing subcommittee antitrust monopolies business rights senate committee judiciary hearing competitive problems cable television industry statement gene kimmelman mark cooper vertical integration industry also increasing congress aware many mso owned affiliation agreements cable programmers senate report evidence indicated cable operators equity interests percent cable programming networks late percent new cable programmers held vertical ownership jscr app congress concluded vertical integration gives cable operators incentive ability favor affiliated programming services senate report conclusion even judge williams dissent conceded reasonable see extensive testimony indicated cable operators incentive drop local broadcasters favor affiliated programmers see competitive issues cable television industry hearing subcommittee antitrust monopolies business rights senate committee judiciary hearing competitive issues statement milton maltz cable television regulation hearings subcommittee telecommunications finance house committee energy commerce hearings cable television regulation statement james hedlund statement edward fritts statement gene kimmelman cable television regulation part hearings subcommittee telecommunications finance house committee energy commerce hearings cable television regulation part statement robert picard app see also jscr app though dissent criticizes reliance evidence provided congress parties private appellees post argument displays lack regard congress factfinding function nature legislative process consider submissions parties affected legislation appellants sent representatives congress try persuade side debate see hearing competitive problems cable television industry statement james mooney president ceo appellant ncta hearings cable television regulation statement decker anstrom executive vice president appellant ncta cable tv consumer protection act hearing subcommittee communications senate committee commerce science transportation statement ted turner president appellant turner broadcasting system hearing years testimony reviewing volumes documentary evidence studies offered sides congress concluded cable industry posed threat broadcast television constitution gives congress role weighing conflicting evidence legislative process even resulting regulation touches first amendment concerns must give considerable deference examining evidence congress findings conclusions including findings conclusions respect conflicting economic predictions see supra furthermore much testimony though offered interested parties supported verifiable information citation independent sources see hearings cabletelevision regulation statement james hedlund statement gene kimmelman reasonableness congress conclusion borne evidence remand also reflected cable industry favoritism integrated programmers see record defendants additional evidence vol exh dae cable industry memo stating mso systems must launch starz integrated programmer word corporate free channels make one free third declaration tom meek third meek declaration app see also declaration roger noll noll declaration app declaration james dertouzos dertouzos declaration app addition evidence congress supplemented remand indicated cable systems incentives drop local broadcasters favor programmers less likely compete audience advertisers independent local broadcasters tend closest substitutes cable programs programming tends similar see jscr app primarily target type advertiser interested cheaper frequent ad spots typically available network affiliates second declaration tom meek second meek declaration app reply declaration james dertouzos app carriage television broadcast signals cable television systems reply comment staff bureau economics san francisco regional office federal trade commission reply comment ftc app ability broadcast stations compete advertising greatly increased cable carriage increases viewership substantially seesecond meek declaration app expanded viewership broadcast presents competitive medium television advertising empirical studies indicate cable carried broadcasters enhance competition advertising even modest increases numbers broadcast stations carried cable correlated significant decreases advertising revenue cable systems dertouzos declaration app see also reply comment ftc app empirical evidence also indicates demand premium cable services pay per view reduced cable system carries independent broadcasters hearing competitive problems cable television industry statement michael wirth thus operators stand benefit dropping broadcast stations dertouzos declaration app cable systems also systemic reasons seeking disadvantage broadcast stations simply stated cable little interest assisting carriage competing medium communication one cable industry executive put job promote cable television broadcast television hearing competitive issues quoting multichannel news channel realignments cable eyes plan bump network affils upper channels see also give shelf space cable people trained view uhf vice president operations comcast mso quoted multichannel news cable operators begin shuffle channel lineups incentive subscribe cable lower markets many air viewing options see jscr app dertouzos declaration app evidence adduced remand indicated cable systems little incentive carry significant incentive drop broadcast stations bestrengthened access television market cable typically controls dertouzos declaration app noll declaration app congress therefore reasonably conclude cable systems drop broadcasters favor programmers even unaffiliated ones less likely compete audience advertisers cap carriage affiliates included cable act cfr relied dissent post limited utility protecting broadcasters dissent contends congress reasonably conclude cable systems engage predation cable operators whose primary source revenue subscriptions risk dropping widely viewed broadcast station order capture advertising revenues post however viewers faced choice sacrificing handful broadcast stations gain access dozens cable channels plus network affiliates likely still subscribe cable even prefer dropped television stations cable programming replaced substantial evidence introduced remand bears exception handful popular broadcast stations typically network affiliates cable system choice carrying cable programmer broadcast station little effect cable subscriptions subscribership thus typically bear carriage decisions noll declaration app rebuttal declaration roger noll app reply declaration roger noll app see also declaration john haring haring declaration app theoretical possibility cable operators take actions adverse local broadcasters indeed significant numbers broadcastershad already dropped record congress contained extensive anecdotal evidence scores adverse carriage decisions broadcast stations see jscr app congress considered fcc sponsored study detailing cable system carriage practices wake decisions appeals district columbia circuit striking prior must carry regulations see quincy cable tv fcc cert denied century communications fcc cert denied indicated responding broadcast stations dropped denied carriage instances app even assuming every station dropped denied coverage responded survey indicate nearly quarter percent approximately broadcast stations existence denied carriage study reported reporting cable systems denied carriage broadcast stations instances stations qualified carriage prior must carry rules contemporaneous study public television stations indicated vast majority cases dropped stations restored cable service record cr vol exh pp cr substantial evidence demonstrated absent must carry already serious senate report problem noncarriage grow worse additional local broadcast signals deleted repositioned carried record included anecdotal evidence showing cable industry acting restraint dropping broadcast stations effort discourage reregulation see hearings cable television regulation statement ofjames hedlund hearings cable television regulation part statement james mooney app jscr app also substantial evidence advertising revenue increasing importance cable operators subscribership growth began flatten providing steady increasing incentive deny carriage local broadcasters effort capture advertising revenue app contemporaneous fcc report noted able operators incentive deny carriage appears particularly great local broadcasters app fcc commissioner james quello warned congress carriage problems occurring today tip iceberg activities come time cable industry beginning recognize importance local advertising cable television hearings subcommittee telecommunications finance house committee energy commerce app quello continued cable systems mature penetration levels systems turn increasingly advertising revenues incentive deny carriage local stations logical rational without must carry legal business strategy appendix testimony james hedlund subcommittee telecommunications finance house committee energy commerce statement james quello app fcc advised congress diversity broadcast television service jeopardized situation continues unredressed competition rate regulation provision cable television service fcc rcd additional evidence developed remand supports reasonableness congress predictive judgment approximately percent local broadcasters carried typical cable system see reply comment ftc pp app figure grown even significant proportions according one appellants experts percent local broadcast stations including network affiliates carried typical cable system see declaration stanley besen exhs app based data another expert concluded percent local independent commercial stations percent noncommercial stations carried typical cable system rate noncarriage even higher new stations third meek declaration app appellees introduced evidence drawn empirical study concluding fcc survey substantially underestimated actual number drops declaration tom meek meek declaration app noncarriage problem grew steadily worse period without must carry time cable act passed broadcast stations dropped least one year total incidents app dissent cites evidence indicating many dropped broadcasters stations viewers watch post suggests must carry thwarts noncable viewers preferences ibid undoubtedly viewers without cable immediate though sole beneficiaries efforts preserve broadcast television strong preference carriage broadcast program cable program simple reason helps preserve medium access methodological flaws cited evidence concern see post even aside evidence overlooks broadcasters added must carry ratings greater equal cable programs replaced second meekdeclaration app ratings broadcasters added must carry generally higher achieved equivalent cable counterparts meek declaration record dae vol exh see also hearings cable television regulation statement james hedlund virtually every instance local broadcast stations shifted popular cable program services replace jscr app stations dropped must carry generally popular cable services replaced indeed vast majority cases cable systems able fulfill must carry obligations using spare channels displace cable programmers see report counsel national cable television association carriage must carry tv broadcast stations table april app average even lowest rated station added pursuant must carry ratings better equal least nine basic cable program services carried system third meek declaration app cable systems refused carry certain local broadcast stations subscribers preferences cable services carried place one expect cable programming services ratings exceeding broadcasters carried simply case evidence remand also indicated growth cable systems market power proceeded apace trend towards greater horizontal concentration continued driven nhanced growth prospects advertising sales paul kagan inc cable tv advertising app largest mso controlled percent cable systems notice inquiry annual assessment status competition market delivery video programming fcc rcd figure projected risen percent end dae vol exh turner broadcasting memo noll declaration app mso began gain control many cable systems given market trend known clustering jscr app cable systems looked increasingly advertising especially local advertising revenue growth see paul kagan associates cable tv advertising july app bilotti hansen macdonald cable television industry mar dae vol exh local advertising revenue exceptional incremental revenue opportunity cable television industry memo arts entertainment network dated dae vol exh discussing huge growth horizon spot advertising revenue cable systems increasing incentives drop local broadcasters favor cable programmers whether affiliated see noll declaration app vertical integration cable industry also continued mso serving percent nation cable subscribers held equity interests cable programmers see implementation section cable television protection competition act first report fcc rcd nn app tables top mso october dae vol exh see also jscr app ftc study dissent cites post takes skeptical view potential cable systems engage anticompetitive behavior concedes risk anticompetitive carriage denials plausible cable system franchise area large relative local area served affected broadcast station reply comment ftc app system penetration rate highand relatively unresponsive system carriage decisions app describes precisely happening large cable operators expand control individual markets clustering second meek declaration app better able sell reach potential advertisers limit access broad cast competitors denying access substantially cable homes market area ibid accord noll declaration app case called upon give best judgment likely economic consequences certain financial arrangements business structures assess competing economic theories predictive judgments case arising say antitrust laws statutes frequently require courts make policy judgments sherman act example requires courts delve deeply theory economic organization see holder hall separate opinion stevens issue us whether given conflicting views probable development television industry congress substantial evidence making judgment need put imprimatur congress economic theory order validate reasonableness judgment harm congress feared stations dropped denied carriage serious risk financial difficulty deteriorate substantial degree fail altogether congress substantial evidence support conclusion congress advised viability broadcast station depends material extent ability secure cable carriage jscr app one broadcast industry executive explained way simply put television station audience size directly translates revenue large audiences attract larger revenues sale advertising time station carried cable thereby loses substantial portion audience lose revenue less revenue station serve community well station less money invest equipment programming attractiveness programming lessen audience revenues continue decline cycle repeat hearing competitive issues statement gary chapman app considerable evidence consisting statements compiled dozens broadcasters testified congress fcc confirmed broadcast stations fallen bankruptcy see app curtailed broadcast operations see app suffered serious reductions operating revenues result adverse carriage decisions cable systems see app record also reflected substantial evidence stations without cable carriage encountered severe difficulties obtaining financing operations reflecting financial markets judgment prospects poor forbroadcasters unable secure carriage see app see also declaration david schutz app noll declaration app haring declaration app second meek declaration app declaration jeffrey rohlfs app evidence congress suggested potential adverse impact losing carriage increasing growth clustering gave mso centralized control local markets see jscr app congress thus ample basis conclude attaining cable carriage increasing importance ensuring station viability hold congress conclude substantial body evidence absent legislative action free local air broadcast system endangered senate report evidence assembled remand confirms reasonableness congressional judgment documents produced remand reflect internal cable industry studies clearly establis importance cable television broadcast television stations viewership equates ratings turn ratings equate revenues unlikely broadcast stations afford cable system line extended period time memorandum lopez baxter adlink presentations retransmission consent dated june app sure record also contains evidence support contrary conclusion appellants dissent district make much fact number broadcast stations advertising revenue continued grow period without must carry albeit diminished rate evidence introduced remand indicated broadcast stations actually went dark period without must carry one failed tornado destroyed transmitter period new stations signed air meek declaration app new evidence appellants produced remand indicates average cable system voluntarily carried local broadcast stations accounting percent television ratings noncable households declaration stanley besen part app appellants well dissent district contend light evidence clear must carry law necessary assure economic viability broadcast system whole ncta brief assertion misapprehends relevant inquiry question whether congress objective matter correct determine must carry necessary prevent substantial number broadcast stationsfrom losing cable carriage suffering significant financial hardship rather question whether legislative conclusion reasonable supported substantial evidence record congress turner making determination weigh evidence de novo replace congress factual predictions rather simply determine standard satisfied summary judgment defendants appellees appropriate regardless whether evidence conflict noted another context involving less deferential review issue possibility drawing two inconsistent conclusions evidence prevent finding supported substantial evidence american textile mfrs institute donovan citation omitted quoting consolo federal maritime although evidence continuing growth broadcast supported opposite conclusion reasonable interpretation expansion cable industry causing harm broadcasting growth continued rate growth fell considerable extent period without must carry percent percent appeared tapering jscr app meek declaration app app time almost unprecedented development fcc stations began fail increasing numbers meek declaration app number stations going dark began escalate emphasis omitted jscr app broadcast advertising revenues declined real terms percent period cable real advertising revenues nearly doubled see app phenomena thought stem factors quite separate increasing market power cable example recession congress determine better explanation liberty substitute judgment reasonable conclusion legislative body see turner supra true number bankruptcies among local broadcasters small congress forecast continuance unprecedented five year downward trend conclude station failures commissioner quello warned tip iceberg fundamental principle legislation congress obligation wait entire harm occurs may act prevent industry need death throes congress may act protect economic harm threatened monopoly turner supra stevens concurring part concurring judgment senate committee noted report cable act need wait widespread harm occurred system local broadcasting competition video market taking action forestall consequences congress allowed make rational predication consequences inaction effects regulation furthering governmental interests senate report despite considerable evidence congress adduced remand indicating significant numbers broadcast stations risk dissent believes yet required congress act demands information dropped broadcast stations still qualify mandatory carriage post broadcast markets adverse decisions take place post features markets bankrupt broadcast stations located prior demise post level detail factfinding required dissent improper burden courts impose legislative branch amount detail unreasonable legislative context constitutionally unwarranted congress obligated enacting statutes make record type administrative agency accommodate judicial review turner plurality opinion think apparent must carry serves government interests direct effective way ward must carry ensures number local broadcasters retain cable carriage concomitant audience access advertising revenues needed support multiplicity stations appellants contend even must carry broader necessary accomplish goals turn question second portion inquiry concerns fit asserted interests means chosen advance content neutral regulations pose inherent dangers free expression turner supra content based regulations thus subject less rigorous analysis affords government latitude designing regulatory solution see ward intermediate scrutiny government may employ means choosing long regulation promotes substantial governmental interest achieved less effectively absent regulation burden substantially speech necessary interest turner supra quoting ward supra must carry provisions potential interfere protected speech two ways first theprovisions restrain cable operators editorial discretion creating programming packages reduc ing number channels exercise unfettered control turner second rules render difficult cable programmers compete carriage limited channels remaining ibid appellants say burden must carry great evidence adduced remand indicates actual effects modest significant evidence indicates vast majority cable operators affected significant manner must carry cable operators able satisfy must carry obligations percent time using previously unused channel capacity declaration harry shooshan iii app percent cable systems nationwide drop programming order fulfill must carry obligations remaining percent drop average services programming app cable operators nationwide carry percent programming carried enactment must carry app appellees note percent approximately cable channels nationwide devoted channels added must carry see app weighted subscribership figure percent williams dissenting appellees contend burdens must carry soon diminish cable channel capacity increases occurring nationwide nab brief see also understand appellants dispute fundamental way accuracy figures significance see ncta brief time warner brief turner brief note national averages fail account greatercrowding certain especially urban cable systems see time warner brief turner brief contend half cable systems serving two thirds cable subscribers available capacity ncta brief turner brief time warner brief appellants argue rate growth cable programming outstrips cable operators creation new channel space rate cable growth lower claimed turner brief must carry infringes first amendment rights irrespective future growth turner brief reply brief appellants turner broadcasting system et al finally say regardless percentage channels occupied must carry still represents thousands real individual infringements speech time warner brief parties evidence susceptible varying interpretations definite conclusions drawn burdens must carry undisputed broadcast stations gained carriage channels result must carry broadcast stations occupy another cable channels nationwide carriage represent significant first amendment harm either system operators cable programmers stations carried voluntarily even appellants represent tr oral arg vast majority channels continue carried absence legal obligation see turner supra stevens concurring part concurring judgment channels occupied added broadcasters represent actual burden regulatory scheme appellants concede stations dropped absence must carry tr oral arg figure approximates benefits must carry well burden imposed must carry congruent benefits affords conclude must carry isnarrowly tailored preserve multiplicity broadcast stations percent american households without cable cf ward essence narrow tailoring focus sing evils government seeks eliminate without significantly restricting substantial quantity speech create evils community creative non violence none regulation provisions appears unrelated ends designed congress took steps confine breadth burden regulatory scheme example popular stations appellants concede carried anyway likely opt paid cable carriage retransmission consent provision cable act stations nonetheless counted towards systems must carry obligations congress exempted systems fewer channels limited must carry obligation larger systems one third capacity see also allowed cable operators discretion choosing competing qualified signals carried permitted operators carry public stations unused public educational governmental channels circumstances appellants say must carry provisions overbroad require carriage instances government interests implicated must carry rules prohibit cable system operator dropping broadcaster even operator anticompetitive motives even broadcaster dropped survive without cable access dissenting see also ncta brief persuaded either possibility prevalent must carry substantially overbroad discussed supra cable systems serving percent subscribers vertically integrated cable programmers anticompetitive motives may implicated majority systems decisions carry broadcasters broadcasters opt must carry although suffer serious financial harm absence see time warner brief broadcasters stronger finances tend however popular ones ordinarily seek payment cable systems transmission reliance must carry minimal appears example hundred cable channels nationwide occupied network affiliates opting must carry see time warner brief number insufficient render must carry substantially broader necessary achieve government interest ward even doubtful assumption narrower still practicable must carry rule drafted exclude instances government interests implicated cases establish content neutral regulations invalid simply imaginable alternative might less burdensome speech albertini accord ward supra community creative non violence supra appellants posit number alternatives effort demonstrate less restrictive means achieve government aims ask us effect sif available imagined alternative means regulating cable television order determine whether government solution least intrusive means achieving desired end approach rejected ward rock racism less restrictive alternative analysis never part inquiry validity content neutral regulations speech ibid quoting regan time plurality opinion ellipses original precedents establish evaluating content neutral regulation whichincidentally burdens speech invalidate preferred remedial scheme alternative solution marginally less intrusive speaker first amendment interests long means chosen substantially broader necessary achieve government interest regulation invalid simply concludes government interest adequately served less speech restrictive alternative ward supra see generally ibid holding regulation valid although appeals identified less restrictive alternative regulatory methods controlling volume concerts albertini supra upholding validity order barring person military base although excluding barred person essential preserving security less speech restrictive means attaining end community creative non violence supra overnight camping ban upheld although less speech restrictive alternatives satisfying interest preserving park lands members city council los angeles taxpayers vincent stating although making exceptions ban posting signs public property less severe effect expressive activity constitutionally mandated well established regulation validity turn judge agreement responsible decisionmaker concerning appropriate method promoting significant government interests albertini supra event careful examination alternatives suggested appellants conclude adequate alternative must carry promoting government legitimate interests first among appellants suggested alternatives proposal revive limited set must carry rules known century rules courtdecision striking see century communications fcc rules included minimum viewership standard eligibility limited must carry obligation percent channel capacity parties agree percent broadcasters added cable systems cable act eligible carriage century rules see turner brief brief federal appellees nab brief see also declaration gregory klein app century rules part require carriage stations system carry without statutory compulsion acknowledge appellants criticism rationale better scheme question place limitless must carry obligations cable system operators final analysis alternative represents nothing appellants dis agreement responsible decisionmaker concerning degree government interests promoted ward supra quoting albertini supra community creative non violence congress legislated shadow quincy century communications deliberations reflect awareness must carry rules issue cases senate report indeed drafting must carry provisions cable act congress made specific comparisons rules struck quincy cable tv inc fcc see house report senate report record reflects deliberate congressional choice adopt present levels protection must defer second alternative appellants urge use input selector switches combination antennas permit viewers switch cable broadcast input allowing cable subscribers watch broadcast programs carried cable congress examined use switches alternative must carry concluded enduring feasible method distribution public interest data showed many households lacked adequate antennas receive broadcast signals jscr app switches suffered technical flaws app viewers might required reset channel settings repeatedly order view uhf cable channels house report installation use switch common video equipment videocassette recorders cumbersome impossible senate report nn house report nn see also jscr app even cable industry trade association one appellants determined switch workable solution carriage problem senate report house report group engineering committee likewise concluded switches suffered technical problems solution appear ed imminent joint petition reconsideration mm docket pp app see also senate report house report must carry hearing subcommittee communications senate committee commerce science transportation statement preston padden app hearings cable television regulation statement james hedlund app congress also considerable evidence including two empirical studies rare cable subscribers ever switch receive air signal senate report house report study demonstrated even afterseveral years government mandated program providing switches consumers simultaneous education program use nab switch availability use app fcc mandated technical improvements switch app percent cable connected television sets attached antenna switch small number households possessing switch even smaller number percent ever used ibid see house report nn congress decision use switches real alternative must carry reasonable one based substantial evidence technical shortcomings lack consumer acceptance reasonableness judgment confirmed additional evidence remand switches create signal interference add complexity video systems factors discouraging use see declaration eldon haakinson app supplemental declaration eldon haakinson app memorandum cicora yaeger et dated june channels may reset every time switch used app appellants also suggest leased access regime broadcasters cable programmers equal access cable channels regulated rates turner brief appellants specify kind regime propose operate making alternative difficult compare must carry rules whatever virtues proposal might otherwise reduce number cable channels cable systems control manner must carry alternative aimed solely addressing bottleneck control cable operators effective achieving congress goal ensuring significantprogramming remains available percent american households without cable indeed unless number channels set aside local broadcast stations decrease sacrificing congress interest preserving multiplicity broadcasters additional channels set aside cable programmers reducing channels systems control furthermore congress specific noting requiring payment cable carriage inimical interests pursuing burden impose small broadcasters see house report senate report congress specifically prohibited payments cable act appellants next suggest system subsidies financially weak stations appellants proposed particular subsidy scheme difficult determine whether option presents feasible means achieving government interests let alone one preferable must carry first amendment begin system subsidies serve different purpose must carry must carry intended guarantee financial health broadcasters ensure base number broadcasters survive provide service noncable households must carry simpler administer less likely involve government making content based determinations programming must carry rules distinguish categories speakers based solely technology used communicate rules acknowledge cable systems expertise according discretion determine broadcasters carry reserved channels within cable act strictures allow choose broadcasters view offering program choices appealing local subscribers appellants proposal require government develop criteria giving subsidiesand establish potentially elaborate administrative structure make subsidy determinations appellants also suggest system antitrust enforcement administrative complaint procedure protect broadcasters cable operators anticompetitive conduct see turner brief congress conclude however considerable expense delay inherent antitrust litigation great disparities wealth sophistication average independent broadcast station average cable system operator make remedies inadequate substitutes guaranteed carriage record suggests independent broadcasters simply position engage complex antitrust litigation involves extensive discovery significant motions practice appeals payment high legal fees throughout see jscr app meek declaration record defendants joint submission expert affidavits reports support motion summary judgment vol exh administrative complaint procedure although less burdensome still require stations incur considerable expense delay enforcing rights public stations forced limited resources forgo pursuing administrative complaints cable act obtain carriage see declaration carolyn lewis app declaration john beabout app problems compounded instead proving entitlement must carry station instead prove facts establishing antitrust violation final argument made appellants reach appellant time warner entertainment raises brief separate first amendment challenge subsection cable act requires carriage unfilled must carry channels low power broadcast stations fcc determines thatthe station programming address local news informational needs adequately served full power television broadcast stations geographic distance full power stations low power station community license earlier reserved question invited district address remand see turner question received glancing attention district parties information operation justifications low power broadcast provisions base informed determination earlier appeal district primary opinion disposed question perfunctory discussion dissent explicitly declined reach question issue received even less attention parties addressed jurisdictional statement motions affirm appellants oppositions motions affirm pages merits briefs parties devoted total four paragraphs two relegated footnotes conclusory argumentation subject largely concerning merits question whether even properly us state record insufficient basis make informed judgment discrete issue even issue fairly included broadly worded question presented tangential main issue prudence dictates decide question based scant argumentation see socialist labor party gilligan teamsters denver milk producers per curiam see also carducci regan cadc scalia judgments competing economic interests reconciled complex fast changing field television congress make judgments ignored undervalued simply appellants cas claims umbrella first amendment columbia broadcasting democratic national committee appellants challenges must carry reflect little disagreement level protection broadcast stations afforded protection attained displace congress judgment respecting content neutral regulations long policy grounded reasonable factual findings supported evidence substantial legislative determination requirements met case circumstances first amendment requires nothing judgment district affirmed ordered turner broadcasting system et appellants federal communications commission et al appeal district district columbia march justice stevens concurring justice kennedy clearly explains policy judgments made congress enactment legislation intended forestall abuse monopoly power entitled substantial deference ante true even attempt protect economic market imposes burdens communication cf radio america ftc superior trial lawyers recognized strong governmental interest certain forms economic regulation even though regulation may incidental effect rights speech association quoting naacp claiborne hardware stat ute regulated content speech rather structure market task quite different see turner broadcasting system fcc stevens concurring part concurring judgment cf sable communications fcc landmark communications virginia though write emphasize important point fully concur thorough opinion turner broadcasting system et appellants federal communications commission et al appeal district district columbia march justice breyer concurring part join opinion except insofar part relies anticompetitive rationale agree majority statute must sustained first amendment advances important governmental interests unrelated suppression free speech burden substantially speech necessary interests ante citing also agree statute satisfies standard conclusion rests however upon principal opinion analysis statute efforts promot fair competition see post rather upon discussion statute objectives namely preserving benefits free air local broadcast television promoting widespread dissemination information multiplicity sources ante quoting turner broadcasting system fcc turner whether statute sensibly compensate significant market defect undoubtedly seeks provide air viewers lack cable rich mix air programming guaranteeing air stationsthat provide programming extra dollars additional cable audience generate believe purpose assure air public access multiplicity information sources provides sufficient basis rejecting appellants first amendment claim deny compulsory carriage creates guarantee extracts serious first amendment price interferes protected interests cable operators choose programming prevents displaced cable program providers obtaining audience sometimes prevent cable viewers watching absence preferred set programs ante post price amounts suppression speech important first amendment interests side well statute basic noneconomic purpose prevent precipitous decline quality quantity programming choice ever shrinking non cable subscribing segment public ante purpose reflects long basic tenet national communications policy namely widest possible dissemination information diverse antagonistic sources essential welfare public turner supra quoting midwest video plurality opinion quoting associated press internal quotation marks omitted see also fcc wncn listeners guild policy turn seeks facilitate public discussion informed deliberation justice brandeis pointed many years ago democratic government presupposes first amendment seeks achieve whitney california brandeis concurring see also new york times sullivan red lion broadcasting fcc associated press supra indeed turner rested part upon proposition assuring public access multiplicity information sources governmental purpose highest order promotes values central first amendment important first amendment interests sides equation key question becomes one proper fit question view requires reviewing determine whether significantly less restrictive ways achieve congress air programming objectives also decide whether statute effort achieve objectives strikes reasonable balance potentially speech restricting speech enhancing consequences ward rock racism ante majority opinion analyzes evaluates consequences agree conclusions respect matters ante particular note agree cable system physically dependent upon availability space along city streets present perhaps less future typically faces little competition therefore constitutes kind bottleneck controls range viewer choice whether uses consequent economic power economically predatory purposes degree least limited degree governmental intervention control regulation prove appropriate justified least content based ante see also defendants joint statement evidence congress app jscr cable act stat cf red lion supra fcc regulations upheld red lion broadcasting new broadcasting radio reg also agree without statute cable systems likely carry significantly fewer air stations ante station revenues therefore decline ante quality air programming stations almost inevitably suffer jscr app rebuttal declaration roger noll app agree burden statute imposes upon cable system potential cable programmers cable viewers limited diminish typical cable system capacity grows time finally believe congress reasonably conclude statute help typical air viewer maintaining expanded range choice hurt typical cable subscriber restricting cable slots otherwise available preferred programming latter cable choices many varied range choice rapidly increasing former air choice restricted cable becomes popular may well become still restricted insofar air market shrinks thereby becomes less profitable circumstances believe first amendment dictates result favors cable viewers interests similar factors discussed majority lead agree statute survives intermediate scrutiny whether statute properly tailored congress purely economic objectives turner broadcasting system et appellants federal communications commission et al appeal district district columbia march justice justice scalia sustaining must carry provisions cable television protection competition act pub stat cable act first amendment challenge cable system operators cable programmers errs two crucial respects first disregards one principal defenses statute urged appellees remand serves substantial interest preserving diverse quality programming responsive needs local community course litigation remand proffered defense strongly reinforce view adopted wrong analytic framework prior phase case see turner broadcasting system fcc turner concurring part dissenting part second misapplies intermediate scrutiny framework adopts although owe deference congress predictive judgments evaluation complex economic questions independent duty identify care government interests supporting scheme inquire reasonableness ofcongressional findings regarding necessity examine fit goals consequences edenfield fane sable communications fcc los angeles preferred communications landmark communications virginia fails discharge duty join portions principal opinion turner holding must carry provisions cable act content neutral therefore subject intermediate first amendment scrutiny referred unusually detailed statutory findings accompanying act congress recognized importance preserving sources local news public affairs educational programming see nevertheless minimized significance findings suggesting merely reflected congress view intrinsic value broadcast programming generally rather congressional preference programming local educational informational content turner drew upon senate house reports identify three interests must carry provisions designed serve preserving benefits free air local broadcast television promoting widespread dissemination information multiplicity sources promoting fair competition market television programming citing reiterates interests ante neither principal opinion partial concurrence ever explains relationship anyclarity much principal opinion treats must carry provisions species antitrust regulation enacted congress response perceived threat cable system operators otherwise engage various forms anticompetitive conduct resulting harm broadcasters ante recognizes appellees show anticompetitive threat broadcast television simply demonstrating broadcast stations forced air absence must carry ante see brief federal appellees party ever questioned adverse carriage decisions cable operators threaten broadcasters markets notion congress premised must carry provisions upon far graver threat structure local broadcast system loss stations runs virtually every passage principal turner opinion discusses government interests provisions designed serve see recognizing substantiality interest protecting noncable households loss regular television broadcasting service due competition cable systems quoting capital cities cable crisp emphasis added congress sought preserve existing structure nation broadcast television medium particular ensure broadcast television remains available source video programming without cable emphasis added recognizing interest maintaining local broadcasting structure plurality opinion characterizing inquiry whether government adequately shown economic health local broadcasting genuine jeopardy emphasis added noting government reliance congress finding absent mandatory carriage rules thecontinued viability local broadcast television seriously jeopardized quoting cable act emphasis added recognizing government assertion must carry rules necessary protect viability broadcast television emphasis added ostensibly adopting framework asks whether congress reasonably thought must carry regime necessary prevent significant reduction multiplicity broadcast programming sources available noncable households ante emphasis added fully agree promoting fair competition legitimate substantial government goal nowhere examines whether breadth must carry provisions comports goal preventing anticompetitive harms instead course inquiry whether must carry provisions narrowly tailored principal opinion simply assumes adverse carriage decisions anticompetitively motivated must carry therefore measured response problem anticompetitive behavior ante ordinarily substitute unstated untested assumptions independent evaluation facts bearing upon issue constitutional law see schaumburg citizens better environment perhaps difficulty defending must carry provisions measured response anticompetitive behavior asserts independent interest preserving multiplicity broadcast programming sources ante ante breyer concurring part posits existence conduct threatens availability broadcast television outlets quite apart anticompetitive conduct ante left wonder precisely conduct might moreover separated anticompetitive conduct thisinterest preserving multiplicity broadcast programming sources becomes poorly defined neither principal opinion partial concurrence offers guidance might constitute significant reduction availability broadcast programming proper analysis view necessarily turns present distribution broadcast stations among local broadcast markets make national broadcast system whether cable poses significant threat local broadcast market depends first many broadcast stations market absence must carry remain available viewers noncable households also depends whether viewers actually watch stations dropped denied carriage provides raw data adverse carriage decisions never connects data markets viewership instead proceeds assumptions adverse carriage decisions nationwide affect broadcast markets proportion size broadcast programming watched viewers neither assumption logical factual basis record appellees bear burden demonstrating provisions cable act restricting expressive activity survive constitutional scrutiny see turner supra discussed must carry provisions justified narrowly tailored means addressing anticompetitive behavior see infra ante breyer concurring part result inquiry whether must carry prevent significant reduction multiplicity broadcast programming sources collapses analysis ill defined generalized interest maintaining broadcast stations wherever might threatened whatever viewership neither principal opinion partial concurrence ever explains kind conduct apart anticompetitive conduct threatens multiplicity broadcast programming sources indeed justification advanced parties furthering interest heavily content based undisputed broadcast stations protected must carry marginal stations within given market see infra record remand reveals broader threat broadcast system entirely mythical pressed explain importance preserving noncable viewers access vulnerable broadcast stations appellees emphasize must carry rules necessary ensure broadcast stations maintain diverse quality programming responsive needs local community brief federal appellees see brief appellees national association broadcasters et al nab brief tr oral arg see also ante breyer concurring part justifying must carry means preventing decline quality quantity programming choice must carry thus justified way preserving viewers access spanish chinese language station preventing independent station adopting home shopping format nab brief brief federal appellees tr oral arg undoubtedly goals reasonable important stations question may well worthwhile targets government subsidies appellees characterization must carry means protecting stations like explicit concern promoting community self expression local origination broadcast programming ante brackets omitted reveals content based preference broadcast programming justification regulatory scheme view wholly odds turner premise must carry means preserving access free television programming whatever content emphasis added read justice breyer opinion analyzes must carry rules part speech enhancing measure designed ensure rich mix air programming see ante treat content air programming irrelevant whether government interest promoting important one net result appears five justices view must carry narrowly tailored means serving substantial governmental interest preventing anticompetitive behavior five justices see significance content air programming government appellees efforts defend law circumstances must carry provisions subject strict scrutiny surely fail principal opinion goes great lengths avoid acknowledging preferences quality diverse responsive local programming underlie must carry scheme although partial concurrence reliance preferences explicit see ante breyer concurring part take principal opinion word evaluate claim threat anticompetitive behavior cable operators supplies content neutral basis sustaining statute turner remanded case determination whether must carry provisions satisfy intermediate scrutiny standard appellees must demonstrate must carry provisions furthe important substantial government interest burden speech essential furtherance interest see also ward rock racism theturner plurality found genuine issues material fact remained parts analysis whether must carry furthers substantial governmental interest turner remanded case test two essential unproven propositions unless cable operators compelled carry broadcast stations significant numbers broadcast stations refused carriage cable systems broadcast stations denied carriage either deteriorate substantial degree fail altogether emphasis added whether must carry restricts speech essential congress asserted purpose turner plurality found evidence lacking extent burden must carry provisions place cable operators cable programmers district resolved case cross motions summary judgment recognizes ante fact evidence congress might conflict necessarily preclude summary judgment upholding must carry scheme question rather undisputed facts show reasonableness congress conclusions however liberty substitute speculation evidence ignore factual disputes call reasonableness congress findings question evidence remand demonstrates appellants appellees entitled summary judgment principal opinion devotes substantial discussion structure cable industry see ante matter uncontroversial turner see concurring part dissenting part cable already served percent american households agree observation thatcongress reasonably predict increase cable penetration local video programming market ante local franchising requirements expense constructing cable system serve particular area make possible cable franchisees exercise monopoly cable service ever disputed cable system operators large numbers systems nationwide cable systems affiliated cable programmers turner broadcasting fcc supp dc opinion jackson williams dissenting plaintiffs response nab statement material facts app turner plaintiff time warner statement material facts genuine issue app turner pp resolved turner whether reasonable inferences based substantial evidence plurality opinion supported congress judgment must carry provisions necessary prevent cable operators exploiting economic power detriment broadcasters remain convinced statute measured response congressional concerns monopoly power see infra view principal opinion discussion point irrelevant even relevant incorrect turner plurality recognized congress interest curtailing anticompetitive behavior substantial abstract principal opinion concludes substantial evidence supports congressional judgment cable operators incentives engage significant anticompetitive behavior appears accept two related arguments onthis point first vertically integrated cable operators prefer programming produced affiliated cable programming networks broadcast programming ante second potential advertising revenues supply cable system operators whether affiliated programmers incentives prefer cable programming broadcast programming ante support first proposition principal opinion xtensive testimony congress showed fact operators incentives favor vertically integrated programmers ante testimony noteworthy may primarily persons appearing congress behalf private appellees case compare ante competitive issues cable television industry hearing subcommittee antitrust monopolies business rights senate committee judiciary hearing competitive issues statement milton maltz representative association independent television stations intv appellee association local television stations record defendants joint submission congressional record cr vol exh cr cable television regulation hearings subcommittee telecommunications finance house committee energy commerce statement james hedlund president intv cr vol exh cr statement edward fritts president appellee nab cr vol exh cr statement gene kimmelman legislative director appellee consumer federation america cr vol exh cr appropriate regard testimony interested persons degree skepticism task engage independent judgment facts bearing issue constitutional law turner supra plurality opinion quoting sable communications fcc moreover even accepting reasonable congress conclusion cable operators incentives favor affiliated programmers congress already limited number channels cable system occupied affiliated programmers cfr cable system operator reaches cap longer bump broadcaster favor affiliated programmer congress concerned broadcasters favored many affiliated programmers simply adjust cap must carry simply justified response allegedly substantial problem vertical integration second argument quest advertising revenue supply cable operators incentives drop local broadcasters takes two forms first cable programmers offer blank slots within program cable operator insert advertisements appellees argue opportunity sell advertising gives cable programmers additional value operators broadcast stations brief federal appellees additional value arises must carry provisions require cable operators carry broadcast signals without alteration judge williams correct noting government substantial interest remedying competitive distortion arises entirely detail purportedly remedial legislation supp dc williams dissenting second appellees claim since cable operators compete directly broadcasters advertising revenue operators profit drive broadcasters market capture advertising revenue even recordbefore congress included substantial evidence advertising revenue increasing importance cable operators subscribership growth began flatten ante necessarily follow congress reasonably find quest advertising revenues supplies cable operators incentives engage predatory behavior must carry reasonable response incentives dispute cable system depends primarily upon subscriber base revenue cable operator therefore unlikely drop widely viewed station order capture advertising revenues according figures appellees expert account one five percent total revenues large cable systems declaration james dertouzos app risk losing subscribers nevertheless appellees contend cable operators drop broadcast stations spite viewer preferences principal opinion suggests viewers likely subscribe cable even though prefer certain air programming cable programming willing trade access preferred channel access dozens cable channels ante even assuming margin advertising revenues drive cable systems drop stations invariably described vulnerable smaller independents see nab brief brief federal appellees strategy success depend upon additional untested premise advertising revenues freed dropping broadcast station flow cable operators rather broadcasters standard articulated turner plurality conclusion must carry serves substantial governmental interest depends upon essentialpropositio without must carry significant numbers broadcast stations refused carriage cable systems analyzing whether undefined standard satisfied focuses almost exclusively raw numbers stations denied carriage repositioned shifted traditional channel positions begins discussion evidence adverse carriage decisions study sponsored federal communications commission ante see cable system broadcast signal carriage survey staff report policy rules division mass media bureau app turner plurality criticized study noting indicate time frame within carriage denials occurred whether stations later restored positions evidence record congress gaps persist relies study public television stations support proposition vast majority cases dropped stations restored cable service ante canvassing additional evidence offered remand focuses suggestion one appellees experts fcc survey underestimated number drops broadcast stations non must carry era data indicate stations qualify mandatory carriage appellees expert frames relevant drop statistic subscriber instances number drop instances multiplied number cable subscribers affected declaration tom meek meek declaration app two thirds subscriber instances drops existing mid remained uncured mid fully months present must carry rules went effect meek declaration attachment record defendants joint submission expert affidavits reports support motion summary judgment vol exh discounts importance whether dropped stations qualify mandatory carriage ground requiring showing places improper burden legislative branch ante seems obvious however must carry rules reverse adverse carriage decisions appellees rely illustrate government interest supporting rules significant question remains whether rules fact serve articulated interest without analysis see course independent scrutiny question constitutional law deem congress judgment reasonable event larger problem approach neither fcc study additional evidence remand canvassed ante says anything broadcast markets adverse carriage decisions take place accepts congress stated concern preserving availability multiplicity broadcast stations apparently thinks sufficient evaluate concern abstract without considering much local service already available given broadcast market ante see also ante breyer concurring part address gap discussion greater length infra examining reasonableness congress prediction adverse carriage decisions inflict severe harm broadcast stations evaluate whether must carry necessary serve interest preserving broadcast stations without examining value stations protected must carry scheme viewers noncable households disregarding distribution viewership stations carried cable upholds themust carry provisions without addressing interests air television viewers congress purportedly seeks protect see turner describing interest protecting noncable households loss regular television broadcasting service emphasis added internal quotation marks omitted describing interest ensuring broadcast television remains available source video programming without cable emphasis added ante describing interest preventing significant reduction multiplicity broadcast programming sources available noncable households emphasis added relies analyses suggesting typical independent commercial broadcaster denied carriage cable systems serving percent subscribers local market typical noncommercial station denied carriage cable systems serving percent subscribers local market ante analysis record relationship carriage noncable viewership favors appellants study federal trade commission staff concluded cable systems voluntarily carried broadcast stations reportable ratings noncable households instances noncarriage involved relatively remote duplicated network stations local stations viewers watch carriage television broadcast signals cable television systems reply comment staff bureau economics san francisco regional office federal trade commission app see also declaration stanley besen besen declaration app second declaration stanley besen app presenting data typical cable subscriber served cable system carrying local broadcast stations accounting percent viewing noncablehouseholds typical cable subscriber served cable system carrying percent local broadcast stations reportable ratings percent local broadcast stations reportable ratings appellees claim various methodological flaws study including appellants expert reliance nielsen data measure viewership shares protective order entered district case prevents parties contesting accuracy data app appellees bear burden proof case offer alternative measure viewership noncable households stations dropped denied carriage instead appellees experts repeatedly emphasize importance preserving vulnerable marginal independent stations serving relatively small audiences brief federal appellees nab brief see also deposition james dertouzos app describing broadcast stations affected carriage denials tations margin cable operator decisionmaking future deposition roger noll app cable operators advertising incentives operate margin affect weaker stations uhf independent stations stations dropped hose lowest audience ratings combined absence specific target audience deposition harry shooshan iii app must carry benefitted stations strong marginal reply declaration roger noll app frequently stations carried cable systems low ratings point even lowest rated commercial stations attract viewers lowest rated noncommercial stations attract members suggests appropriate disregard low noncable viewership stations denied carriage instances cable viewers preferred thedropped broadcast channels cable channels replaced ante viewership statistics question well significance sharply disputed also irrelevant issue whether government demonstrate substantial interest forced carriage certain broadcast stations benefit viewers lack access cable inquiry advanced analysis relative cable household viewership broadcast cable programming appellees pressed explain government substantial interest preserving noncable viewers access vulnerable marginal stations relatively small audiences becomes evident interest nothing anticompetitive behavior everything content preserving quality local programming responsive community needs brief federal appellees indeed justice breyer expressly declines accept anticompetitive rationale must carry rules embraced principal opinion instead explicitly relies need preserve rich mix quality programming ante breyer concurring part turn evidence harm broadcasters denied carriage repositioned remanded determination whether broadcast stations denied carriage serious risk financial difficulty deteriorate substantial degree fail altogether ante quoting turner supra turner plurality noted evidence local broadcast stations fallen bankruptcy turned broadcast licenses curtailed broadcast operations suffered serious reduction operating revenues adverse carriage decisions record remanddoes permit conclusion summary judgment stage congress reasonably predicted serious harm significant number stations absence must carry purported link adverse carriage decision severe harm station depends yet another untested premise even accepting conclusion cable system operator monopoly cable services home supra necessarily follow operator also monopoly video services cabled households cable subscribers using input selector switch antenna receive broadcast signals widespread use switches completely eliminate cable system monopoly sources video input see williams dissenting growing use direct broadcast satellite television also tends undercut notion cable operators inevitable monopoly video services entering cable households see farhi dishing competition cable tv washington post cable act congress rejected wisdom substantial societal investment developing input selector switch technology defending choice purports identify substantial evidence technological shortcomings prevent widespread efficient use devices nearly data question drawn sources pre dating enactment must carry roughly six years compare ante defendants joint statement evidence congress jscr citing elra group outdoor antennas reception local television signals cable television app nab testimony cable legislation subcommittee telecommunications finance house committee energy commerce sess may cr vol exh cr jscr app citing comments intv mm docket cr vol exh cr jscr app citing comments nab mm docket pp cr vol exh pp cr jscr app citing joint petition reconsideration mm docket cr vol exh pp cr jscr app citing petition reconsideration adelphia communications et mm docket pp cr vol exh pp cr notes importance deferring congressional judgments interaction industries undergoing rapid economic technological change ante principle require wholesale deference judgments rapidly changing technologies based unquestionably outdated information concludes evidence remand meets threshold harm established turner begins onsiderable evidence broadcast stations denied carriage fallen bankruptcy ante analysis however focus features market stations located size audience commanded considerable evidence relied consists repeated references bankruptcies commercial independent stations apparently new stations see jscr app hearing competitive issues statement milton maltz cr vol exh cr must carry provisions never justified means enhancing broadcast television understand relevance evidence evidence concerning difficulties encountered new stations seeking financing see ante citing jscr app also claims record remand reflects considerable evidence stations curtailing broadcast operations suffering reductions operating revenues anecdotal accounts harm relies sharply disputed compare jscr app time warner entertainment company broadcast station rebuttal twe rebuttal app abc affiliate claiming harm denial carriage experienced million net revenue increase twe rebuttal app home shopping network affiliate report congress harmed cable operator conduct twe rebuttal app station alleged lost half cable carriage fact obtained carriage systems serving percent total cable subscribers within area dominant influence twe rebuttal app station claiming harm denial carriage experienced million net revenue increase twe rebuttal app systems station claimed anticompetitive carriage denials precluded carrying station due signal strength quality problems congress reasonable conclusions entitled deference reason fact evidence conflict necessarily preclude summary judgment appellees favor nevertheless course independent review ignore sharp conflicts record call question reasonableness congress findings moreover unlike aspects record onremand station specific accounts cited permit evaluation trends various broadcast markets areas dominant influence carriage denials allegedly caused harm conduct sort analysis recognize one commercial broadcast stations cited claiming curtailment operations decline revenue broadcasting within area dominant influence experienced net growth least net reduction number commercial broadcast stations operating non must carry era see besen declaration exh app cf jscr app station claiming harm within cedar rapids market four commercial broadcast stations five jscr app station claiming harm within tulsa market seven commercial broadcast stations jscr app station claiming harm within new york city market commercial broadcast stations jscr app station claiming harm within salt lake city market five commercial broadcast stations eight jscr app station claiming harm within honolulu market seven commercial broadcast stations nine jscr app station claiming harm within grand rapids market seven commercial broadcast stations indeed areas dominant influence nationwide number commercial broadcast stations operating equaled exceeded number operating besen declaration exh app two areas dominant influence experienced reduction number noncommercial broadcast stations operating besen declaration exh app sum appellees entitled summary judgment whether congress conclude based reasonable inferences drawn substantial evidence absent legislative action free local air broadcast system endangered ante quoting acknowledges record contains much evidence health broadcast industry including evidence new broadcast stations signed air period without must carry rules evidence growth stations advertising revenue evidence voluntary carriage broadcast stations accounting virtually measurable viewership noncable households ante dismisses evidence emphasizing question whether congress correctly determined must carry necessary prevent signifi cant financial hardship substantial number stations whether legislative conclusion reasonable supported substantial evidence record congress ante even accepting articulation relevant standard properly applied principal opinion disavows need closely scrutinize logic regulatory scheme issue ground need put imprimatur congress economic theory order validate reasonableness judgment ante approach trivializes first amendment issue stake case highly dubious economic theory advanced substantial interest supporting first amendment burden cable operators cable programmers finding must carry serves substantial interest principal opinion necessarily accepts theory partial concurrence neither articulate threat availability multiplicity broadcast stations exist perfectly competitive market turn second portion inquiry concerns fit government asserted interests means chosen advance observes broadcast stations gained carriage channels result must carry recognizes forced carriage imposes burden cable system operators cable programmers ante also concludes cable channels occupied broadcast stations irrelevant measuring burden must carry scheme must carry rules prevent operators dropping broadcast stations desirable cable programming become available even though operators carried stations voluntarily past must carry requirements thus burden operator first amendment freedom exercise unfettered control number channels system whether operator present choice aligned government even assuming correct channels occupied added broadcasters represent actual burden regulatory scheme ante leap conclusion must carry narrowly tailored preserve multiplicity broadcast stations ante nothing short astounding logic circular surmising channels added regulatory scheme dropped absence concludes figure also approximates benefit must carry finding scheme burden congruent benefit affords declares statute narrowly tailored achieves result however equating effect statute requiring cable operators add stations governmental interest sought served citation ward rock racism reveals true nature interest stake evi government seeks eliminate failure cable operators carry stations rather read first half principal opinion evil anticompetitive behavior cable operators factual matter know whether stations carried anticompetitive impulses positing effect statute governmental interest sidestep judicial review almost statute makes statutes look narrowly tailored simon schuster members state crime victims without sense whether adverse carriage decisions anticompetitively motivated improper conclude statute narrowly tailored simply prevents adverse carriage decisions see board trustees state univ fox scope law must proportion interest served internal quotation marks omitted view statute narrowly tailored serve substantial interest preventing anticompetitive conduct understand justice breyer disagree conclusion ante examining fit speech restricting speech enhancing consequences must carry congress commandeered one third cable system channel capacity benefit local broadcasters without regard whether advances statute alleged goals extent congress concerned anticompetitive impulses lead vertically integrated operators prefer programmers operators ownership stake cable act overbroad since impose requirements solely operators integrated cable operator satisfy must carry obligations allocating channel unaffiliated cable programmer must carry blocks operator access one third channels system even affiliated programmer provides programming single channel rejects logic finding possibility must carry regime require reversal benign carriage decision prevalent must carry substantially overbroad ante principal opinion reasons cable systems serving percent subscribers vertically integrated cable programmers anticompetitive motives may implicated majority systems decisions carry broadcasters ante emphasis added unclear whether principal opinion means anticompetitive motives may implicated majority decisions decisions majority systems either case principal opinion conclusion wholly speculative know vertically integrated systems affiliated one cable programmer affiliated five cable programmers moreover congress placed limits upon number channels used affiliated programming principal opinion suggest limits inadequate explain system reaches limit remaining carriage decisions also anticompetitively motivated even channel limits insufficient principal opinion explain requiring carriage broadcast stations one third system channels measured response problem finally note disagreement suggestion availability less speech restrictive alternatives never relevant narrow tailoring inquiry ante turner remanded case part plurality concluded judicial findings concerning availability efficacy constitutionally acceptable less restrictivemeans achieving government asserted interests lacking original record internal quotation marks omitted present position issue puzzling cases suggest interpreted narrow tailoring inquiry require elimination less restrictive alternatives fox supra put another way refrained imposing least restrictive means requirement cases involving intermediate first amendment scrutiny ward time place manner restriction clark community creative non violence fox supra commercial speech one thing say regulation need least speech restrictive means serving important governmental objective quite another suggest read majority availability less speech restrictive alternatives establish confirm regulation substantially broader necessary achieve government goals validity government regulation subject intermediate first amendment scrutiny turn agreement responsible decisionmaker concerning appropriate method promoting significant government interests albertini availability less intrusive approaches problem serves benchmark assessing reasonableness fit congress articulated goals means chosen pursue rubin coors brewing shown supra case plain without reference alternatives must carry scheme substantially broader necessary ward supra serve governmental interest principal opinion fully explains preventing unfair competition congresstruly sought address anticompetitive behavior cable system operators passed wrong law see turner supra concurring part dissenting part speech within broad category causes harm justify restricting whole category nevertheless availability less restrictive alternatives leased access regime subsidies reinforces conclusion must carry provisions overbroad consider first appellants proposed leased access scheme cable system operator required make specified proportion system channels available broadcasters independent cable programmers alike regulated rates leased access directly address vertical integration predatory behavior placing broadcasters cable programmers level playing field access cable principal opinion never explicitly identifies threat availability broadcast television noncable households anticompetitive conduct justice breyer partial concurrence accordingly extent leased access address problems anticompetitive behavior fail understand achieve goal ensuring significant programming remains available noncable households ante observes leased access regime like must carry reduce number cable channels cable systems control manner must carry ante leased access scheme currently intimate view whether leased access like must carry imposes unacceptable burdens cable operators free speech interests important note however observation leased access scheme may like must carry impose first amendment burdens dispose narrow tailoring inquiry case noted leased accessregime respond directly problems vertical integration problems predatory behavior must carry quite clearly respond problem vertical integration supra addition must carry scheme burdens rights cable programmers cable operators suggestion leased access burden cable programmers way must carry respects leased access narrowly tailored guard anticompetitive behavior finally suggests congress concerned leased access scheme impose burden small broadcasters forced pay access subsidies eliminate problem subsidies course eliminate anticompetitive behavior cable system operators problem congress address directly leased access scheme appellees defend must carry provisions however means preventing anticompetitive behavior also means protecting marginal vulnerable stations even threatened anticompetitive behavior principal opinion chooses acknowledge interest explicitly although justice breyer even interest content neutral subsidies address directly adopts appellees position subsidies serve different purpose must carry must carry intended guarantee financial health broadcasters ensure base number broadcasters survive provide service noncable households ante see brief federal appellees extent justice breyer sees must carry speech enhancing measure designed guarantee air broadcasters extra dollars ante unclear subsidies fully serve interest event take appellees concern subsidies unlike must carry save broadcasters survive even cable carriage straightforward solution problem government indeed worried imprecision allocation subsidies prop stations survive even cable carriage tie subsidies percentage stations advertising revenues public stations member contributions determined stations access viewers example broadcast market percent television viewing households subscribe cable broadcaster access households without cable well households served cable systems broadcaster secured carriage broadcaster carried cable systems serving percent cable households percent television viewing households broadcast market broadcaster access percent television viewing households government provided subsidy compensate loss advertising revenue member contributions station sustain virtue failure reach percent potential audience ensure allocation protect broadcasters survive full access television viewing households sum alleged barrier precise allocation subsidies insurmountable also suggests subsidy scheme involve government making content based determinations programming ante even distinguish subsidies must carry provisions light principal opinion steadfast adherence position preference diverse local content broadcasting content based preference argument ironic indeed finally note disagreement decision sidestep question reserved turner see addressed district sporkin fairly included within question presented argued one appellants whether must carry rules requiring carriage low power stations survive constitutional scrutiny low power station qualifies carriage federal communications commission determines station programming address local news informational needs adequately served full power television broadcast stations geographic distance full power stations low power station community license turner noted aspect appears single certain low power broadcasters special benefits basis content believe must carry provisions fail even intermediate scrutiny clear fail scrutiny stricter content based standard declining address rules requiring carriage low power stations appears question whether issue fairly included within question presented properly preserved parties ante position somewhat perplexing turner apparently found issue fairly included within strikingly similar question presented compare brief federal appellees turner brief federal appellees properly preserved despite lack specific argumentation devoted subsection challenged statute jurisdictional statement see juris statement turner pp focus quantity briefingdevoted subject ante ignores fact two groups appellants challenging judgment cable operators cable programmers issue interest former latter also seems suggest party defending judgment defeat review question simply ignoring adversary position merits event lets stand district seriously flawed legal reasoning point district concluded provisions close content based legislation triggering strict scrutiny held cross line conclusion appears based fact low power provisions viewpoint neutral ibid whether provision viewpoint neutral irrelevant question whether also content neutral see paul stevens concurring judgment turner supra ginsburg concurring part dissenting part sustaining must carry provisions cable act ignores main justification statute urged appellees subjects restrictions expressive activity inappropriately lenient level scrutiny principal opinion misapplies analytic framework chooses exhibiting extraordinary unwarranted deference congressional judgments profound fear delving complex economic matters willingness substitute untested assumptions evidence light gaps logic evidence improper conclude summary judgment stage must carry scheme serves significant governmental interest direct effective way ward moreover undisputed facts demonstrate must carry scheme plainly narrowly tailored serving governmental interest principal opinion fully explains embraces preventing anticompetitive behavior appellants entitled summary judgment favor justice breyer disavows principal opinion position anticompetitive behavior instead treats must carry rules speech enhancing measure designed ensure access quality programming noncable households neither principal opinion partial concurrence explains nature alleged threat availability multiplicity broadcast programming sources threat arise cable operators anticompetitive conduct approach makes impossible discern whether congress addressing problem real merely conjectural whether must carry addresses problem direct material way turner supra plurality opinion therefore respectfully dissent reverse judgment footnotes