COMMENTS

Turner Broadcasting System, Inc. v. FCC: The Supreme Court Positions Cable Television on the First Amendment Spectrum

  Introduction

In the late-1940s, citizens residing in the mountain communities of Pennsylvania were unable to receive television reception.⁽¹⁾ Accordingly, in an attempt to sell more television sets, local television dealers and service-people offered these residents a method of receiving a clear signal.⁽²⁾ They developed a system that would link all of the residents, by cable, to an antenna that received clear reception.⁽³⁾ This invention, known today as cable television (CATV), has exceeded expectations, and now services almost sixty percent of all television households in the United States.⁽⁴⁾

As cable television began to grow, so did the number of federal regulations governing the cable industry.⁽⁵⁾ In the beginning, these regulations focused primarily on the installation of wires in order to facilitate service to cable subscribers.⁽⁶⁾ However, as the cable industry continued to expand, the Federal Communications Commission (FCC or Commission) became concerned that cable would eliminate local broadcast television stations.⁽⁷⁾ The FCC's solution to the problem often came in the form of "must-carry" regulations.⁽⁸⁾ These regulations require cable operators to devote a certain number of available channels for the carriage of local broadcast stations.⁽⁹⁾

Early on, cable operators unsuccessfully challenged the must-carry provisions as a violation of their First Amendment rights.⁽¹⁰⁾ In recent years, however, the courts have been more sympathetic to the arguments of the cable industry.⁽¹¹⁾ Although the courts have invalidated the must-carry provisions, they have failed to decide on the appropriate level of First Amendment protection that should be afforded cable operators.⁽¹²⁾

This Comment examines the Turner Broadcasting System, Inc. v. FCC case⁽¹³⁾ in which the United States Supreme Court decided the appropriate standard of review to be applied to regulations controlling the cable industry.⁽¹⁴⁾ Part II consists of a historical background of the federal regulation of cable.⁽¹⁵⁾ Part III focuses on the Turner decision, including the facts giving rise to the controversy and an analysis of the Supreme Court's opinion.⁽¹⁶⁾ In Part IV, the majority opinion is analyzed and critiqued.⁽¹⁷⁾ This Comment suggests that the majority failed to apply the appropriate standard of review.⁽¹⁸⁾ Furthermore, this Comment discusses recent technological and statutory developments that undermine the Turner Court's economic justifications for the must-carry provisions.⁽¹⁹⁾ Finally, Part V consists of a brief conclusion to the Comment.⁽²⁰⁾

  Background

A.  History of the Federal Regulation of Cable

When cable television was first introduced, it primarily served smaller communities that were unable to receive reception from local broadcast stations.⁽²¹⁾ However, as the cable industry began to grow, cable systems moved into larger metropolitan markets with pre-existing television outlets.⁽²²⁾ Cable operators offered these citizens better picture quality and a mechanism to receive the same local stations, as well as stations from distant towns.⁽²³⁾ Broadcast television stations, however, depend on advertising revenues for survival.⁽²⁴⁾ Advertising fees are set according to the number of viewers watching a particular station.⁽²⁵⁾ If the advent of cable causes fewer people to watch broadcast stations, then advertisers would pay less per unit of air time.⁽²⁶⁾ Thus, "[c]able was moving from a beneficial, or at least benign, adjunct to television toward a competitive threat which, in turn, prompted broadcasters to begin considering legal protections of their financial interests."⁽²⁷⁾

Beginning in 1956, broadcasters attempted to persuade the FCC to assert jurisdiction over cable television and take measures to diminish the economic threat.⁽²⁸⁾ These early attempts, however, were denied by the FCC because the Commission had yet to be granted explicit statutory authority to regulate the cable industry.⁽²⁹⁾ While the Federal Communications Act of 1934⁽³⁰⁾ granted the Commission authority to regulate broadcasting and common carrier systems,⁽³¹⁾ it had been given no authority to regulate cable television.⁽³²⁾

In 1959, after conducting its own inquiry, the FCC issued a report regarding cable television's impact "on the development of television broadcasting."⁽³³⁾ At that time, the FCC found insufficient evidence to substantiate the broadcasters' economic concerns.⁽³⁴⁾ Therefore, while the Commission refused to construct restrictions on cable operators' entry into a given community, it suggested that Congress consider the adoption of "retransmission consent" provisions.⁽³⁵⁾ Retransmission consent provisions require that a cable operator obtain consent from a broadcast station "from whom the cable system took its program."⁽³⁶⁾ In essence, these regulations were a copyright matter, and would provide the broadcasters with the opportunity to collect greater royalties.⁽³⁷⁾ However, after conducting additional studies on the regulations' impact, the FCC concluded that implementation of the retransmission consent provisions would restrict competition and decrease the diversity of programming that would reach the viewing public.⁽³⁸⁾ Thus, on the advice of the FCC, the Senate rejected a number of proposed bills that called for the adoption of retransmission consent.⁽³⁹⁾

In the early-1960s, the cable television industry and its revenues began to grow at a proportionally greater rate than the broadcast television industry.⁽⁴⁰⁾ Thus, beginning in 1961, the FCC manifested its concern for the survival of over-the-air broadcasting.⁽⁴¹⁾ In Carter Mountain Transmission Corp. v. FCC⁽⁴²⁾ the FCC had denied a microwave⁽⁴³⁾ license to a cable operator, on the grounds that issuance of the license would result in economic disaster for a local television station.⁽⁴⁴⁾ The United States Court of Appeals for the District of Columbia (D.C. Circuit), upheld the jurisdiction of the FCC to deny a microwave license to Carter Mountain Transmission Corporation.⁽⁴⁵⁾ The court held that the decision was within the FCC's control as there was a public interest in ensuring the continued existence of the local station.⁽⁴⁶⁾

Following the Carter decision, the FCC concluded that it would be more efficient to establish stringent guidelines for cable television than to regulate on a case-by-case basis.⁽⁴⁷⁾ In 1965, after conducting lengthy hearings, the FCC issued its first report on the growth of cable and its effect on broadcast television.⁽⁴⁸⁾ Although the FCC acknowledged its inability to predict the potential growth of cable television "with reliability,"⁽⁴⁹⁾ it concluded in the First Report and Order that the growth of cable could threaten the economic viability of local broadcast stations.⁽⁵⁰⁾ Thus, the FCC adopted must-carry provisions to ensure that cable would supplement, but not replace, over-the-air broadcasting.⁽⁵¹⁾

Under the provisions of the First Report and Order, cable owners had to agree to carry the signal, upon request, of every local broadcast station within sixty miles in order to receive an FCC license to operate.⁽⁵²⁾ Furthermore, in order to receive a microwave license to transmit signals to a cable system, the cable operator had to make "a clear and full showing that in the particular case a grant would not pose a substantial threat to the development of independent UHF [Ultra High Frequency]⁽⁵³⁾ service in the area."⁽⁵⁴⁾ However, in keeping with the limited jurisdiction upheld in Carter,⁽⁵⁵⁾ these mandatory carriage and distant signal requirements applied only to those cable systems relying on a microwave feed.⁽⁵⁶⁾

Despite the initial reforms, the broadcasting industry remained unsatisfied.⁽⁵⁷⁾ Although the FCC had taken measures to regulate cable operators who were relying on microwave feeds, cable systems that did not utilize microwave communication were beginning to emerge in the major metropolitan markets.⁽⁵⁸⁾ Thus, in response to the increased pressure from the National Association of Broadcasters (NAB), the FCC asserted jurisdiction over all cable television operations in its 1966 Second Report and Order.⁽⁵⁹⁾ In addition, the provisions of the Second Report and Order increased the prior geographic scope of the mandatory carriage requirements.⁽⁶⁰⁾ It directed cable operators to carry the signal of all local stations within the Grade B Contour of the cable system.⁽⁶¹⁾ The Grade B Contour is a boundary line which represents "the service area in which a good picture is available 90 percent of the time at 50 percent of the receiver locations."⁽⁶²⁾ In addition, the rules imposed "distant signal requirements," restricting the transmission of a local broadcast station beyond its Grade B Contours in the one-hundred major markets.⁽⁶³⁾ Within a year, cable operators challenged the FCC's jurisdiction to regulate cable and the constitutionality of both the distant-signal and must-carry provisions.⁽⁶⁴⁾

B.  Judicial History of Must-Carry Regulations

When the FCC first introduced the distant signal and must-carry provisions, the federal courts were willing to uphold the regulations. In Buckeye Cablevision v. FCC,⁽⁶⁵⁾ the D.C. Circuit rejected a cable operator's claim that the distant-signal rules violated the First Amendment.⁽⁶⁶⁾ Buckeye Cablevision, an Ohio cable operator, argued that cable operators transmit programs carrying a diversity of information.⁽⁶⁷⁾ Thus, by restricting the signals that could be carried, Buckeye Cablevision claimed, the government had interfered with the operator's freedom of speech.⁽⁶⁸⁾ However, the court held that despite the free speech violation claims, "the restraint imposed by the rules [was] no more than [was] reasonably required to effectuate the public interest" in protecting local stations.⁽⁶⁹⁾

The following year, the Court of Appeals for the Eighth Circuit heard a similar First Amendment challenge to the must-carry portions of both the First Report and Order⁽⁷⁰⁾ and the Second Report and Order.⁽⁷¹⁾ In Black Hills Video Corp. v. FCC,⁽⁷²⁾ cable operators argued that the must-carry rules violated their free speech right.⁽⁷³⁾ The court, however, refused to recognize a First Amendment right to use radio or television frequencies.⁽⁷⁴⁾ The court concluded that cable operators are entitled to minimal First Amendment protection and should receive the same free speech rights afforded to broadcast radio and television.⁽⁷⁵⁾ The decreased protection for radio and television, which was based upon the scarce nature of radio and television frequencies, was developed in Red Lion Broadcasting Co. v. FCC.⁽⁷⁶⁾ Red Lion mandated a relaxed First Amendment scrutiny of all regulations affecting the radio and television industry.⁽⁷⁷⁾

While the court in Black Hills noted that cable operators do not use air waves to distribute signals to their customers, the court recognized that "[t]he crucial consideration is that they do use radio signals and that they have a unique impact upon, and relationship with, the television broadcast service."⁽⁷⁸⁾ The court determined that the scarcity rationale should apply to cable as it applied to broadcast radio and television.⁽⁷⁹⁾ Therefore, the court upheld the must-carry provisions and concluded that there was a legitimate public interest in the survival of broadcast service that outweighed cable operators' First Amendment rights.⁽⁸⁰⁾

The status quo of affording cable operators the same protection as broadcast television continued for over fifteen years.⁽⁸¹⁾ However, in the mid-1970s, the first sign of change emerged in Home Box Office, Inc. v. FCC.⁽⁸²⁾ Although Home Box Office did not involve must-carry provisions, the decision had an impact on how all cable regulations were to be analyzed.⁽⁸³⁾ The D.C. Circuit rejected the decision in Black Hills to apply Red Lion's "scarcity principle" to cable television.⁽⁸⁴⁾ Because of the large number of channels available, the court found no "physical scarcity"⁽⁸⁵⁾ in relation to the number of individuals seeking access to cable.⁽⁸⁶⁾ The court concluded that the "pay cable" regulations had a mere incidental burden on speech and applied the test announced in United States v. O'Brien.⁽⁸⁷⁾ The O'Brien decision, which established the appropriate standard for content-neutral regulations having an incidental burden on speech, held that a government regulation that incidentally burdens First Amendment rights "is sufficiently justified . . . if it furthers an important or substantial governmental interest . . . unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."⁽⁸⁸⁾ In Home Box Office, the D.C. Circuit concluded that the disputed regulation failed the first prong of the O'Brien analysis because the FCC was unable to prove whether the threat to broadcast television was "real or merely . . . fanciful."⁽⁸⁹⁾ In addition, the cable regulations failed the second prong of O'Brien because they indiscriminately limited the programming of cable systems regardless of whether they furthered the governmental interests.⁽⁹⁰⁾

In light of the changes brought about by Home Box Office, cable operators once again challenged the constitutionality of the must-carry provisions. In 1985, the Quincy Cable TV, Inc. v. FCC⁽⁹¹⁾ court struck down the FCC must-carry rules as violative of the First Amendment.⁽⁹²⁾ In this case, the D.C. Circuit again rejected the FCC's argument that the scarcity rationale warrants tighter control on the cable industry.⁽⁹³⁾ The court recognized that for all forms of media, including cable, there is a distinction between incidental burdens on speech--those regulations that promote a governmental interest unrelated to the content of the message--and government restrictions that are intended to curtail expression.⁽⁹⁴⁾ The court suggested that the challenged regulations had more than an incidental burden on speech.⁽⁹⁵⁾ However, the court failed to decide whether the must-carry rules "warrant a more exacting level of First Amendment scrutiny," as the rules "clearly fail[ed]" to survive even the less demanding test set forth in O'Brien.⁽⁹⁶⁾ Because the FCC failed to produce evidence that over-the-air broadcasting would not survive without must-carry provisions, the court concluded that the burden on free speech outweighed the government's interest.⁽⁹⁷⁾ Furthermore, the court held that the regulations failed the second prong of O'Brien as it was over-inclusive and not narrowly tailored to meet the FCC's goals.⁽⁹⁸⁾

Within months of the Quincy decision, the FCC began to formulate new must-carry provisions aimed at passing the O'Brien standard.⁽⁹⁹⁾ Relying on the concerns raised in Quincy,⁽¹⁰⁰⁾ the FCC changed its stated purpose for the must-carry rules.⁽¹⁰¹⁾ Rather than arguing that must-carry provisions were necessary to ensure the survival of broadcast television, the FCC argued that the rules were needed to guarantee access for a short transition period to enable viewers to learn about the A/B switching device.⁽¹⁰²⁾ These small devices would enable a viewer to select between the programming offered by his or her cable system and that of local broadcast television.⁽¹⁰³⁾ In addition to this new justification, the Commission also changed the scope of the rules, making carriage directly dependent upon the channel capacity of a cable operator.⁽¹⁰⁴⁾

Despite their more limited scope, the new regulations were immediately challenged in Century Communications Corp. v. FCC.⁽¹⁰⁵⁾ In Century, the court again declined to establish the appropriate standard of review for must-carry provisions.⁽¹⁰⁶⁾ As in Quincy, cable operators argued that the rules posed more than an incidental burden on speech.⁽¹⁰⁷⁾ However, the court found it unnecessary to resolve this issue as the rules again failed under the less stringent O'Brien analysis.⁽¹⁰⁸⁾ The court found that the FCC's justifications were based on mere assumptions.⁽¹⁰⁹⁾ There were no concrete findings to demonstrate that without the FCC regulations, consumers would choose not to install A/B switches and television antennas on their own.⁽¹¹⁰⁾ Thus, the court concluded that the alleged harm posed by cable entities to local stations was unsubstantiated.⁽¹¹¹⁾ Without empirical evidence, the court refused to accept the FCC's arguments that the transition period was needed to advance a substantial governmental interest.⁽¹¹²⁾

Although the Court of Appeals for the District of Columbia rejected the specific regulations at issue, it expressly concluded that the must-carry rules were not, per se, unconstitutional.⁽¹¹³⁾ The court suggested that if the FCC could provide empirical support for its measures, it may regulate the cable industry in order to further substantial governmental interests.⁽¹¹⁴⁾ Accordingly, the Century decision paved the way for the congressional passage of the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act).⁽¹¹⁵⁾ This Act was yet another attempt at must-carry, and ultimately led to the Supreme Court decision in Turner Broadcasting System, Inc. v. FCC.⁽¹¹⁶⁾

  Turner Broadcasting System, Inc. v. FCC

A. Facts

Following the rejection of the must-carry provisions in Quincy and Century, the FCC was reluctant to implement the provisions a third time.⁽¹¹⁷⁾ Faced with increased pressure from broadcasters and complaints from consumers,⁽¹¹⁸⁾ Congress itself conducted hearings on the structure and operation of the cable television industry.⁽¹¹⁹⁾ At the hearings, Congress relied heavily on the results of a comprehensive survey conducted by the FCC.⁽¹²⁰⁾ Completed by half of the nation's cable systems, the survey showed that a significant number of cable operators refused to carry the programming of local broadcast stations.⁽¹²¹⁾ In addition, the survey alleged that cable operators were in the practice of positioning local broadcast stations to "less desirable" channels.⁽¹²²⁾ By placing a local broadcast station in a less desirable position, cable operators could sell the more desirable channel number to a cable programmer and receive its own advertising revenues.⁽¹²³⁾ Based on these findings, Congress concluded that cable operators have the incentive, and apparent willingness, to threaten the economic viability of broadcast television.⁽¹²⁴⁾ Congress also predicted that cable operators would win the competition for advertising dollars and put local stations out of business unless appropriate action was taken.⁽¹²⁵⁾

Congress asserted that, in addition to the economic justifications behind the must-carry regulations, there was a governmental interest in the survival of broadcast television: to ensure that American citizens receive a diversity of views.⁽¹²⁶⁾ Congress believed that without the must-carry regulations, citizens would be deprived of the variety of local programming provided by broadcast television.⁽¹²⁷⁾ As a result, on October 5, 1992, Congress overrode a presidential veto and passed the Cable Act of 1992.⁽¹²⁸⁾ Sections Four and Five of the Cable Act include must-carry provisions which the cable parties believe are even more sweeping than those rejected in Century.⁽¹²⁹⁾ These provisions are at issue in Turner Broadcasting System, Inc. v. FCC.⁽¹³⁰⁾

B.  Procedure

Immediately following passage of the Cable Act of 1992, a number of cable operators and programmers filed separate actions against the federal government in the United States District Court for the District of Columbia.⁽¹³¹⁾ Once again, the cable entities challenged the constitutionality of the must-carry provisions.⁽¹³²⁾ A three-judge district court consolidated the actions into one case.⁽¹³³⁾

The district court granted summary judgment in favor of the government,⁽¹³⁴⁾ holding that the must-carry provisions were merely economic legislation aimed at controlling cable operators' monopoly power.⁽¹³⁵⁾ The court rejected the arguments set forth by the cable operators and programmers that because the must-carry provisions were content-based regulations, they warranted a strict scrutiny analysis.⁽¹³⁶⁾ The court rejected this argument and held that the regulations were content neutral on their faces, with a mere incidental burden on speech.⁽¹³⁷⁾ The court upheld the must-carry provisions under the O'Brien standard.⁽¹³⁸⁾ It held that the preservation of local broadcasting was an important governmental interest and that the provisions were sufficiently tailored to serve that interest.⁽¹³⁹⁾ In a dissenting opinion, Justice Williams⁽¹⁴⁰⁾ argued that the must-carry rules were content based.⁽¹⁴¹⁾ By requiring cable operators to carry a particular station, Justice Williams maintained, Congress was interfering with operators' exercise of editorial discretion.⁽¹⁴²⁾ Relying on the Supreme Court's decision in Miami Herald Publishing Co. v. Tornillo,⁽¹⁴³⁾ Justice Williams argued in his dissent that strict scrutiny was the appropriate standard of review.⁽¹⁴⁴⁾ Under his strict scrutiny analysis, sections Four and Five of the Cable Act of 1992 were considered unenforceable because protecting localism and a diversity of views was not a "compelling" interest.⁽¹⁴⁵⁾ In addition, Justice Williams noted, "far less restrictive means [were] readily available" to further the state's interests.⁽¹⁴⁶⁾ Finally, with regard to the state's interest in protecting local broadcast television, Judge Williams found no evidence in the record to warrant the recognition of a valid state interest in protecting local broadcast television.⁽¹⁴⁷⁾

Following the district court decision, the cable operators and programmers appealed to the United States Supreme Court,⁽¹⁴⁸⁾ and the Court noted probable jurisdiction.⁽¹⁴⁹⁾

C.  Arguments Advanced

1.  Cable Operators and Programmers

The thrust of the cable entities' argument was that the must-carry provisions violated the First Amendment's ban on government regulations that discriminate on the basis of content.⁽¹⁵⁰⁾ Cable programmers argued that the must-carry provisions distinguish favored speech (that of local broadcast stations) from disfavored speech (that of cable programmers) based on content, and, therefore, should be subject to strict scrutiny.⁽¹⁵¹⁾ In particular, programmers pointed to specific legislative findings associating government interests with the promotion of local affairs.⁽¹⁵²⁾ Furthermore, the cable programmers argued that the content of a local station's programming played a decisive role in the mechanism that decided whether a local station could assert must-carry rights.⁽¹⁵³⁾

The cable parties advanced three additional arguments to support their view that the must-carry provisions should be subject to a strict scrutiny analysis. First, cable operators contended that the regulation compelled them to transmit speech not of their choosing.⁽¹⁵⁴⁾ Since there were a limited number of channels, cable operators maintained that they would be forced to drop channels they preferred in order to provide carriage of local broadcast stations.⁽¹⁵⁵⁾ Relying primarily on Miami Herald Publishing Co. v. Tornillo,⁽¹⁵⁶⁾ the cable operators argued that this intruded on their editorial control and, thus, should be subject to strict scrutiny review.⁽¹⁵⁷⁾

Second, relying on the Supreme Court decision in Buckley v. Valeo,⁽¹⁵⁸⁾ the cable programmers argued that strict scrutiny should be applied when a government regulation favors one set of speakers over another.⁽¹⁵⁹⁾ The cable programmers alleged that the must-carry provisions, like the spending regulations invalidated in Buckley, favored one set of speakers (local broadcast programmers) over another (cable programmers).⁽¹⁶⁰⁾ Because of a limited channel capacity, some cable programmers who would have obtained carriage without must-carry provisions were excluded by cable operators.⁽¹⁶¹⁾ Thus, cable programmers maintained that strict scrutiny was mandated by the speaker preference which favored broadcasters over cable programmers.⁽¹⁶²⁾

Finally, the cable operators alleged that the must-carry provisions singled out certain members of the press (cable operators), for disfavored treatment.⁽¹⁶³⁾ Although the Cable Act required cable operators to carry the signals of local stations, there was no such requirement for other video delivery systems, such as multi-channel multipoint distribution systems (MDS)⁽¹⁶⁴⁾ and satellite master antenna television (SMATV)⁽¹⁶⁵⁾ programs.⁽¹⁶⁶⁾ Cable operators argued that such deferential treatment could ultimately lead to governmental abuse.⁽¹⁶⁷⁾

2.  The FCC's Response

In defending the must-carry provisions, proponents advanced three principal arguments to support the constitutionality of the legislation. First, the government argued that cable television should be subjected to the same First Amendment analysis as broadcast television, because the concerns announced and justified by the Supreme Court in Red Lion Broadcasting Co. v. FCC⁽¹⁶⁸⁾ were also applicable to cable television.⁽¹⁶⁹⁾ The government further maintained that the Court decided on the relaxed standard in Red Lion to control the "market dysfunction" that characterizes the broadcast market.⁽¹⁷⁰⁾ The government argued that the cable market, due to similar market dysfunctions, needed tighter governmental control and warranted the same standard of review.⁽¹⁷¹⁾

Second, the National Association of Broadcasters (NAB) maintained that the must-carry provisions were content neutral.⁽¹⁷²⁾ The NAB argued that the principal inquiry in freedom of speech cases was not whether the law mentioned a type of speech or speakers,⁽¹⁷³⁾ but "`whether the government [had] adopted a regulation of speech because of disagreement with the message it conveys.'"⁽¹⁷⁴⁾ Thus, the NAB argued, the purpose behind the enactment of the legislation should play a pivotal role in deciding the appropriate level of First Amendment scrutiny.⁽¹⁷⁵⁾ The NAB rejected the cable operator's contentions that the must-carry provisions were enacted to suppress or encourage a particular type of programming.⁽¹⁷⁶⁾ On the contrary, the NAB argued that the governmental purpose of the must-carry provisions was to preserve the economic viability of broadcast television.⁽¹⁷⁷⁾ The broadcasters referred to a series of FCC findings that showed the potential harm that cable operators may have on local broadcast television.⁽¹⁷⁸⁾ The NAB maintained that any effect that the must-carry provisions had on the programming carried was merely incidental.⁽¹⁷⁹⁾ Thus, according to the NAB, the intermediate standard set forth in O'Brien should apply.⁽¹⁸⁰⁾

Finally, the broadcasters maintained, assuming the Court were to apply the O'Brien standard, the must-carry provisions would pass the judicial muster of that standard.⁽¹⁸¹⁾ With respect to the first prong, the NAB argued that there was a substantial interest in protecting non-cable households from the loss of over-the-air broadcast television.⁽¹⁸²⁾ The broadcasters also alleged that there was an important and substantial interest in preventing anticompetitive conduct and promoting a diversity of expression.⁽¹⁸³⁾ The NAB maintained that the must-carry provisions furthered these asserted interests by preventing the "anticompetitive exclusion" of broadcast television from the cable conduit.⁽¹⁸⁴⁾ The broadcasters also argued that because Congress had made findings and predictions regarding the future of broadcast television,⁽¹⁸⁵⁾ the courts had a duty to defer to legislative findings.⁽¹⁸⁶⁾ The NAB maintained that Congress, as opposed to the courts, was a better forum to decide the need for government regulation and that Congress's "judgment that remedial legislation is necessary should not be disturbed."⁽¹⁸⁷⁾

Furthermore, the broadcasters argued that the must-carry provisions passed the third prong of the O'Brien analysis.⁽¹⁸⁸⁾ In O'Brien, this prong originally required that the incidental restriction on speech be "no greater than is essential to the furtherance of [the] interest."⁽¹⁸⁹⁾ However, the element was further defined thirty years after the establishment of the O'Brien test in Ward v. Rock Against Racism.⁽¹⁹⁰⁾ The Supreme Court in Ward held that "the requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'"⁽¹⁹¹⁾ In line with this definition, the NAB argued that without must-carry, Congress would be less effective in ensuring the existence of free broadcast television.⁽¹⁹²⁾ The NAB maintained that the provisions were sufficiently tailored to pass the O'Brien standard, regardless of whether the cable operators could imagine another possible alternative.⁽¹⁹³⁾

D.  The Court's Opinion

1.  The Majority Opinion

a.  The Content-Neutral/Content-Based Analysis

Writing for the majority, Justice Kennedy began by addressing the standard of review that would be applied to the must-carry regulations.⁽¹⁹⁴⁾ At the outset, the Court acknowledged that cable operators and programmers engage in speech and, therefore, are entitled to some degree of First Amendment protection.⁽¹⁹⁵⁾ However, the Court concluded that the must-carry provisions in sections Four and Five were content neutral, and, thus, were not subject to strict scrutiny.⁽¹⁹⁶⁾ The majority held that the provisions were content neutral on their faces because "[a]lthough the provisions interfere with cable operators' editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations, the extent of the interference does not depend upon the content of the cable operators' programming."⁽¹⁹⁷⁾ Furthermore, while the Court acknowledged that the must-carry provisions burden cable programmers by reducing the number of available channels for which to compete, the Court maintained that the regulations distinguished between speakers (cable programmers and local broadcast stations) based solely upon the manner in which their messages were conveyed, not upon the content of the messages.⁽¹⁹⁸⁾

After concluding that the must-carry rules were facially neutral, the Court examined whether the purpose of the regulations was to regulate speech because of the message it conveyed.⁽¹⁹⁹⁾ The majority rejected the cable parties' argument that the underlying purpose behind the provisions was to promote speech of a favored content.⁽²⁰⁰⁾ The Court held that Congress's objective was not to favor one form of programming over another, but, rather, to implement remedial measures to ensure the survival of free broadcast television to the forty percent of Americans without cable.⁽²⁰¹⁾ The Court rejected the claim that Congress regarded broadcast programming to be more valuable than cable.⁽²⁰²⁾ The Court insisted that Congress had an interest in preserving the diversity of views that local television stations provide to the public.⁽²⁰³⁾

In addition to rejecting the content-based speech arguments, the cable operators and programmers failed to convince the Court that there were other speech restrictions in the legislation that warranted strict scrutiny.⁽²⁰⁴⁾ First, the Court dismissed the cable operators' attempts to analogize the must-carry provisions to the "right of reply" statutes at issue in the Tornillo⁽²⁰⁵⁾ case.⁽²⁰⁶⁾ Unlike the right of reply statutes, the Court noted, sections Four and Five did not intrude on the editorial functions of cable operators by forcing them to alter the messages they carried.⁽²⁰⁷⁾ The must-carry rules, according to the Court, were applied in a content-neutral manner, whereas the right of reply statutes conferred a benefit based upon the subject matter of the message being conveyed.⁽²⁰⁸⁾ The Court further distinguished the two statutes by pointing to the technological differences between newspapers and cable television.⁽²⁰⁹⁾ Although both a newspaper and a cable operator maintain a monopoly in a given locale, the Court claimed that a newspaper "does not possess the power to obstruct readers' access to other competing publications . . . ."⁽²¹⁰⁾

Second, the majority rejected the argument that the must-carry provisions triggered strict scrutiny due to Congress's preference for broadcast stations over cable operators.⁽²¹¹⁾ According to the Court, the Buckley⁽²¹²⁾ case demanded strict scrutiny only when the legislature's speaker preference reflects a content preference.⁽²¹³⁾ Strict scrutiny was not warranted in Turner because the preference was not based on the content of the programming.⁽²¹⁴⁾ Rather, according to the Court, it was based upon the belief that without such a preference, broadcast television outlets would not survive.⁽²¹⁵⁾

Finally, the majority rejected the cable operators' argument that the provisions singled out certain members of the press (cable operators) for disfavored treatment, and, thus, warranted a strict scrutiny review.⁽²¹⁶⁾ Although the Court recognized that some laws of this type may warrant strict scrutiny, it concluded that "laws of this nature are `constitutionally suspect only in certain circumstances.'"<sup>(217)</sup> In particular, the Court noted, laws favoring one medium over another will be subject to the most exacting scrutiny only when there is a "suspicion" that the objective is to suppress certain ideas.<sup>(218)</sup> The Court held that such a regulation will not be subject to heightened scrutiny when the differential treatment is "`justified by some special characteristic of' the particular medium being regulated."⁽²¹⁹⁾ The Court concluded that the deferential treatment was justified by the special characteristics of the cable medium.⁽²²⁰⁾ Cable operators, the Court held, unlike other video deliverers,⁽²²¹⁾ maintain "bottleneck monopoly power."⁽²²²⁾ This power, according to the Court, allows cable operators to prevent, "with a mere flick of the switch," their subscribers from obtaining access to certain programming.⁽²²³⁾ The Court concluded that cable television's potential for abuse warrants the deferential treatment brought about through the must-carry provisions.⁽²²⁴⁾

2.  Standard for Must-Carry Provisions

Although the Court rejected the cable parties' call for strict scrutiny, it also rejected the government's argument to apply Red Lion's less rigorous standard to cable regulations.⁽²²⁵⁾ As in the past,⁽²²⁶⁾ the Court refused to apply the Red Lion standard because of the technological differences between broadcast and cable television.⁽²²⁷⁾ The Court noted that unlike the scarce nature of broadcast frequencies, cable operators would soon have the technology to deliver an unlimited number of channels.⁽²²⁸⁾ The Court also rejected the government's argument that the relaxed standard of review in Red Lion had been based partially on economic considerations.⁽²²⁹⁾ The Court concluded that the physical characteristics of broadcast television, not the market dysfunction in the broadcast market, was the determinative factor in constructing the relaxed broadcast standard.⁽²³⁰⁾

After rejecting the call for strict scrutiny and finding the must-carry provisions content neutral, the Turner Court expressly resolved a question that had been left unanswered in prior must-carry challenges.⁽²³¹⁾ According to the Court, because must-carry provisions have a mere incidental burden on speech, the O'Brien intermediate level of scrutiny was the appropriate standard of review.⁽²³²⁾ Under this standard, "a content-neutral regulation will be sustained if `it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'"⁽²³³⁾

3.  Must-Carry Faces the O'Brien Analysis

Applying the above standard, the Court held that the first prong of O'Brien was met, as all three of the governmental interests asserted were important.⁽²³⁴⁾ First, the majority recognized the importance of preserving the benefits provided by free over-the-air broadcasting.⁽²³⁵⁾ Although cable has grown beyond all expectations, close to forty percent of Americans still rely on broadcast television.⁽²³⁶⁾ Thus, the Court concluded that "`protecting noncable households from loss of regular television broadcasting service due to competition from cable systems' is an important federal interest."<sup>(237)</sup> Second, the majority concluded that there is an important governmental interest in ensuring that American citizens are offered a diversity of viewpoints.<sup>(238)</sup> According to the Court, "assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment."<sup>(239)</sup> The Court believed that the communication policy of our country is premised on the foundation that "`"the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public."'"⁽²⁴⁰⁾ Finally, the Court reviewed the government's interest in promoting fair competition in the television programming industry.⁽²⁴¹⁾ The majority held that there was always an important governmental interest in promoting fair competition.⁽²⁴²⁾ This was true, according to the Court, even when the regulated entities were engaging in activities protected by the First Amendment.⁽²⁴³⁾

Although the majority concluded that the government's interests were important, it noted that must-carry rules do not necessarily further those interests.⁽²⁴⁴⁾ In particular, the Court maintained, the government's demonstration of intent to redress past harms or prevent future harms was not sufficient reason to defend a regulation of speech.⁽²⁴⁵⁾ The government, according to the Court, "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."⁽²⁴⁶⁾ The Court held that the government needed to prove two elements in order to pass the second prong of the O'Brien analysis.⁽²⁴⁷⁾ First, as a preliminary foundation, the government needed to demonstrate that the economic viability of broadcast television was in danger and in need of the must-carry protections.⁽²⁴⁸⁾ If this danger could be established, then the majority would apply Ward v. Rock Against Racism's⁽²⁴⁹⁾ narrow tailoring refinement to the O'Brien analysis.⁽²⁵⁰⁾ Under Ward's addition to the incidental burden test, the government had to prove that the regulation does not "`burden substantially more speech than is necessary to further the government's legitimate interests.'"⁽²⁵¹⁾

The majority concluded that Congress had failed to provide sufficient evidence that the harms posed by cable were "real," or that must-carry provisions would even alleviate such harms.⁽²⁵²⁾ Although the majority recognized that legislative predictions should be given substantial deference, it concluded that such findings should be subject to judicial review, especially in First Amendment cases.⁽²⁵³⁾ The Court proceeded to review the findings and specified three areas that required further elaboration.⁽²⁵⁴⁾ First, the FCC surveys⁽²⁵⁵⁾ failed to demonstrate that local broadcast stations would suffer financial difficulties in the absence of must-carry.⁽²⁵⁶⁾ Second, the Court held that the record failed to indicate the provision's effect on the speech of cable operators and programmers.⁽²⁵⁷⁾ Finally, the record failed to indicate any judicial findings regarding "`constitutionally acceptable less restrictive means'" to achieve the government's objectives.⁽²⁵⁸⁾

4.  Case Remanded for Factual Determinations

Without the answers to these questions, the majority held that it was impossible to determine whether the must-carry provisions "suppress `substantially more speech than . . . necessary' to ensure the viability of broadcast television."⁽²⁵⁹⁾ Because there was insufficient evidence from which to assess whether the regulations were "narrowly tailored," the Court vacated the lower court's judgment.⁽²⁶⁰⁾ The case was remanded for further proceedings in order for the district court to make a more thorough analysis of the factual record.⁽²⁶¹⁾

E.  The Dissenting Opinion

Writing for the dissent, Justice O'Connor explicitly rejected the conclusion that the must-carry provisions were content neutral.⁽²⁶²⁾ The dissent argued that the congressional findings within the text of the Act made explicit reference to content.⁽²⁶³⁾ Since it was rare for congressional findings to be included in the text of the Act itself,⁽²⁶⁴⁾ when they did appear, the dissent maintained that it was fair to construe them as justifications for passing the legislation.⁽²⁶⁵⁾

The dissent acknowledged that Congress may not have intended to suppress a form of speech.⁽²⁶⁶⁾ However, it concluded that such "benign motivation" was not enough to escape strict scrutiny of content-based regulations.⁽²⁶⁷⁾ Despite the economic justifications for must-carry provisions, and the alleged purpose behind the provision, the dissent refused to ignore the Act's explicit references to content: "[w]hen a content-based justification appears on the statute's face, we cannot ignore it because another, content-neutral justification is present."⁽²⁶⁸⁾

After concluding that the must-carry regulations were content based, the dissent subjected them to a strict scrutiny analysis.⁽²⁶⁹⁾ Although the dissenters acknowledged that the government's interest in promoting localism may have been "legitimate," or even "important," it did not rise to the requisite level of "`compelling.'"⁽²⁷⁰⁾ Furthermore, according to the dissent, the regulations were not sufficiently tailored.⁽²⁷¹⁾ The dissent also noted that implementation of the Act may force cable operators to drop programmers, such as CNN or the Discovery Channel, that provide an equal amount of "valuable" programming as local educational stations.⁽²⁷²⁾ By requiring cable operators to carry one form of programming over another, the dissent maintained, the must-carry regulations interfered with editorial discretion and were, therefore, unconstitutional.⁽²⁷³⁾

Finally, assuming arguendo that the regulations were content neutral, the dissent concluded that sections Four and Five were not sufficiently tailored, even under the intermediate standard of review.⁽²⁷⁴⁾ The regulations, according to the dissent, were overbroad because they restricted the access of cable programmers, even if a particular cable operator did not engage in anticompetitive practices.⁽²⁷⁵⁾ Thus, the dissent suggested, Congress could develop less burdensome methods to further its interests.⁽²⁷⁶⁾ The dissent concluded that "Congress can to some extent restrict . . . the speech of cable operators and cable programmers. But it must do so in compliance with the constitutional requirements . . . ."⁽²⁷⁷⁾

  Analysis

A.  The Content-Neutrality Analysis

The Turner Court rejected a number of arguments which called for the application of strict scrutiny to the must-carry provisions.⁽²⁷⁸⁾ The primary justification, however, was based on a determination that the regulations were content neutral.⁽²⁷⁹⁾

The Court held that the regulations, on their faces, did not distinguish between cable operators and local broadcast stations based on their views, and thus were facially content neutral.⁽²⁸⁰⁾ Although the rules compelled cable operators to carry the signal of local stations, the Court found it dispositive that the mandatory carriage requirements were imposed regardless of the content of the cable operator's programming.⁽²⁸¹⁾ The Court maintained that the number of channels that a cable operator must reserve depended only upon the size of the cable system, and not upon the programming carried by a particular station.⁽²⁸²⁾ Furthermore, the Court acknowledged that cable programmers were burdened by the must-carry provisions because there were fewer channels for which they could compete.⁽²⁸³⁾ Nevertheless, the Court found the regulations to be facially content neutral because the burden to compete for a reduced number of channels was placed on all cable programmers, regardless of their programming.⁽²⁸⁴⁾

Although the Court found the regulations to be content neutral on their faces, further inquiry was required to determine their constitutionality.⁽²⁸⁵⁾ The Court noted that even a regulation which is neutral on its face may be content based if its manifest purpose is to regulate speech because of the message the speech conveys.⁽²⁸⁶⁾ The majority, however, found that the congressional purpose was not to favor one form of programming over another, but rather to preserve the economic viability of free over-the-air broadcasting.⁽²⁸⁷⁾ Citing a number of pertinent sections, the Court relied on statutory findings to conclude that absent must-carry provisions, the survival of free broadcast television would be in jeopardy.⁽²⁸⁸⁾ Thus, according to the Court, Congress had an "`important and substantial'" interest in protecting against the demise of broadcast television.⁽²⁸⁹⁾ The must-carry provisions, which, in the opinion of the Court, promoted this purpose, were found to be unrelated to the content of the speech.⁽²⁹⁰⁾

While the Court devoted much attention to the economic purposes for must-carry, it failed to afford sufficient weight to the content-related findings behind the must-carry provisions. A statute will not be upheld, despite a content-neutral justification (such as the survival of broadcast television), if there are also impermissible content-based justifications present.⁽²⁹¹⁾ One need not look any further than the congressional findings of the 1992 Cable Act to discover such content-based justifications.⁽²⁹²⁾ As stated in the text of the Act itself, Congress found "a substantial governmental and First Amendment interest in promoting a diversity of views through multiple technology media."⁽²⁹³⁾ Further, congressional findings in the Act make it clear that Congress's purpose in imposing mandatory carriage, at least in part, was based on the content of local broadcast programming.⁽²⁹⁴⁾ Local broadcast stations, according to these findings, are "an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate."⁽²⁹⁵⁾ In addition, the legislative history of the must-carry provisions indicate that Congress was concerned with promoting certain types of programming based upon content.⁽²⁹⁶⁾

Other subsections of the Act require the FCC to consider the content of a local broadcast station when determining whether the station is eligible for must-carry protection.⁽²⁹⁷⁾ The Act requires the Commission to consider "whether the television station provides coverage or other local service to such community."⁽²⁹⁸⁾ The Commission must also consider whether there are other eligible stations in the community that provide "coverage of sporting and other events of interest to the community."⁽²⁹⁹⁾

As noted in Justice O'Connor's dissent, such preferences for diversity of viewpoint and programming of a local nature all make reference to content.⁽³⁰⁰⁾ While the majority maintains that the references to content merely reflect that broadcast television has "some intrinsic value,"⁽³⁰¹⁾ the findings reflect a preference for a particular content.⁽³⁰²⁾ As Justice O'Connor noted:

"It is rare enough that Congress states, in the body of the statute itself, the findings underlying its decision. When it does, it is fair to assume that those findings reflect the basis for the legislative decision, especially when the thrust of the findings is further reflected in the rest of the statute."⁽³⁰³⁾

B.  The "Incidental Burden" of Must-Carry

After holding that the must-carry provisions mandate conduct in a manner unrelated to content, the majority concluded that application of the restrictions have an incidental burden on speech.⁽³⁰⁴⁾ Therefore, the Court determined, O'Brien's intermediate standard of review would apply.⁽³⁰⁵⁾ However, within the majority opinion itself, the following judicial findings contradict the ultimate conclusion that the burden was merely incidental.⁽³⁰⁶⁾ The Court acknowledged that the must-carry rules regulate cable speech in two respects.⁽³⁰⁷⁾ First, according to the Court, the rules interfered with cable operators' editorial discretion.⁽³⁰⁸⁾ That is, the Court maintained, by requiring cable operators to set aside a portion of their channels for local broadcasters, cable operators would be left with fewer available channels to offer programming than they may prefer.⁽³⁰⁹⁾ Second, the Court held, the rules reduced the number of available channels for which a cable programmer could compete.⁽³¹⁰⁾ The Court held that such a requirement discriminated against cable programmers while giving a clear preference to broadcast stations.⁽³¹¹⁾ However, because the preference was unrelated to content, the Court maintained that any resulting effect was purely incidental, and applied O'Brien's intermediate level of scrutiny.⁽³¹²⁾ These must-carry provisions, however, are distinguishable from the regulations in O'Brien, as well as from those which the Court has previously reviewed using the O'Brien standard.⁽³¹³⁾

In O'Brien, the Supreme Court reviewed the constitutionality of a federal statute that prohibited the burning of selective service cards.⁽³¹⁴⁾ The Court determined that the statute, on its face, did not restrict one's freedom of speech.⁽³¹⁵⁾ The Court acknowledged, however, that the First Amendment protects individuals from government regulations that are content neutral, but that have an incidental burden on speech when applied.⁽³¹⁶⁾ The O'Brien Court found the statute to have such an effect.⁽³¹⁷⁾ When applied, according to the Court, the statute had the incidental effect of suppressing O'Brien's ability to demonstrate against the war and against the draft.⁽³¹⁸⁾

Quincy and Century Communications suggested that must-carry regulations may have more than an incidental burden on speech.⁽³¹⁹⁾ Although the regulations in Turner were not identical, the following principle remains the same: mandatory carriage requirements are content based because they force cable operators to carry messages not of their choosing.⁽³²⁰⁾ The preference for broadcast programming is in the text of the Act itself, finding local programming to serve an "important" interest in the community--namely, a forum for diverse viewpoints.⁽³²¹⁾ Furthermore, the criteria for instituting must-carry make direct reference to the content of the local broadcast.⁽³²²⁾ Thus, the restrictions on cable operators and cable programmers create more than an incidental burden on speech. Unlike the draft card statute in O'Brien, these restrictions directly mandate which messages cable operators may transmit and, due to the limited channel capacity, which ones may not.⁽³²³⁾ Therefore, the O'Brien analysis is inappropriate for must-carry provisions. O'Brien applies to laws that regulate "conduct" where the laws have an incidental burden on expression in their application.⁽³²⁴⁾ It should not be applied to a content-based regulation merely because the government asserts a content neutrality justification.⁽³²⁵⁾

On the other hand, the must-carry provisions are more in line with the regulations in Riley v. National Federation of the Blind,⁽³²⁶⁾ in which the Supreme Court distinguished a direct burden from an incidental burden on speech.⁽³²⁷⁾ Riley involved a challenge to a North Carolina statute that limited the amount of money that a professional fundraiser could charge a charity.⁽³²⁸⁾ The statute also required fundraising companies to disclose to potential donors the actual percentages of contributions that were turned over to charity.⁽³²⁹⁾ Both the professional fundraisers and the charities challenged the Act as a violation of their First Amendment rights.⁽³³⁰⁾ Because the statute mandated professional fundraisers to speak in a way they may not have otherwise chosen, the Court held that the regulation altered the content of their speech.⁽³³¹⁾ The Court concluded that the burden on speech was more than incidental because it "regulat[ed] how a speaker may speak."⁽³³²⁾ Thus, the Court treated the statute as content based and applied a strict scrutiny analysis.⁽³³³⁾

Despite the justifications of content neutrality behind the statute in Riley (the prevention of fraud), the Court held that economic legislation would still be subject to First Amendment review.⁽³³⁴⁾ Similarly, as was argued by the cable programmers, the economic justifications behind must-carry provisions cannot protect the legislation from a strict scrutiny analysis.⁽³³⁵⁾ Like the fundraising statute in Riley, the must-carry provisions impose more than an incidental burden on speech.⁽³³⁶⁾ These provisions place the same type of restriction on cable operators that was placed on the professional fundraising companies.⁽³³⁷⁾ Both mandate an individual to speak in a way that he or she might not prefer, which is a direct regulation on speech.⁽³³⁸⁾ Therefore, application of the O'Brien analysis is inappropriate when reviewing must-carry provisions.⁽³³⁹⁾ Such provisions are content-based regulations that should be subject to the most exacting standard of review.⁽³⁴⁰⁾

C.  The Appropriate Standard of Review: The Tornillo Decision

Irrespective of whether the regulations are deemed content based, strict scrutiny should be applied because the must-carry provisions interfere with the editorial discretion of cable operators. In Miami Herald Publishing Co. v. Tornillo,⁽³⁴¹⁾ the Supreme Court unanimously held that a statute intruding on the editorial activity of the press should be subject to strict scrutiny review.⁽³⁴²⁾ In Tornillo, newspaper editors challenged Florida's "right of reply" statute.⁽³⁴³⁾ The statute required any newspaper that attacked a political candidate to provide the candidate with a right to reply to the accusations, free of charge.⁽³⁴⁴⁾ Pursuant to the statute, a newspaper could be charged with a first degree misdemeanor for failure to comply.⁽³⁴⁵⁾ The Miami Herald Publishing Company, a Florida news publisher, argued that the right of reply statute was unconstitutional on its face because it regulated the content of a newspaper.⁽³⁴⁶⁾ In particular, because the statute required the newspapers to print a candidate's reply, Miami Herald argued that the mandate interfered with its editorial discretion, in violation of the First Amendment.⁽³⁴⁷⁾ The State of Florida, on the other hand, along with other proponents of the right of reply statute, maintained that the "mandatory access" was justified.⁽³⁴⁸⁾

Proponents of the right of reply statute alleged that the government had an interest in providing a diversity of viewpoints.⁽³⁴⁹⁾ They maintained that the changes emerging in the newspaper industry in the 1970s were making it difficult to ensure that a wide variety of views would reach the public.⁽³⁵⁰⁾ In particular, the proponents argued that the elimination of competing newspapers in most large cities, and the combined ownership of newspapers by radio and television stations, had resulted in the power to publish being placed in a few select hands.⁽³⁵¹⁾ Because the cost to produce a newspaper was so substantial, the state feared that this "monopoly of the means of communication" effectively eliminated the public's ability to disseminate its viewpoints or to respond to those of the newspapers.⁽³⁵²⁾ Thus, the state alleged that the right of reply statute was the only solution to curb this monopoly of power and to provide fair access to the public.⁽³⁵³⁾

Despite the state's concerns, the Supreme Court struck down the right of reply statute.⁽³⁵⁴⁾ The Court was particularly troubled with the imposition of a penalty for failure to comply with the regulation.⁽³⁵⁵⁾ This penalty to the newspapers came in the form of printing, time, material costs, and the advertising space that was lost in order to comply with the statutory requirements.⁽³⁵⁶⁾ The Court was concerned that editors would choose the "safe course" and avoid printing articles that might trigger the statute as a result of these potential penalties.⁽³⁵⁷⁾ The Court feared that this ultimately could lead to the suppression of speech and a direct intrusion into the function of editors.⁽³⁵⁸⁾ Thus, concluding that the regulations exacted a penalty on the basis of content, the Court rejected the Florida statute.⁽³⁵⁹⁾

Cable operators engage in activity that is virtually identical to that of newspaper editors.⁽³⁶⁰⁾ The Supreme Court has acknowledged that "[c]able television provides to its subscribers news, information, and entertainment. It is engaged in `speech' under the First Amendment, and is, in much of its operation, part of the `press.'"⁽³⁶¹⁾ The Court has also stated that cable operators communicate ideas in the same fashion as traditional newspapers, book publishers, and pamphleteers.⁽³⁶²⁾ Thus, the Supreme Court's press standard, as developed in Tornillo, should not be limited solely to newspapers. Absent a well-justified exception, there is no basis for granting less protection to the cable medium.

Although there are a few theories that justify a reduction in First Amendment protection afforded the press, none are applicable to cable television.⁽³⁶³⁾ First and foremost, the Supreme Court has rejected the notion that the "scarcity rationale" developed in Red Lion Broadcasting Co. v. FCC⁽³⁶⁴⁾ is applicable to cable operators.⁽³⁶⁵⁾ The Turner Court noted that cable television does not operate on a spectrum as do radio and television; therefore, there is no need for increased governmental control.⁽³⁶⁶⁾ Furthermore, the Court has dismissed the notion that the "scarcity rationale" was developed to control the economic conditions in the radio and television market.⁽³⁶⁷⁾ The Court has explicitly stated that mere "market dysfunction" will not justify a reduction in free speech protection.⁽³⁶⁸⁾

In addition to the scarcity rationale, the Supreme Court has recognized other limited exceptions that allow for increased governmental intrusion. These include regulations that have an impact on national security⁽³⁶⁹⁾ or public safety,⁽³⁷⁰⁾ and restrictions that are necessary to preserve a fundamental right of another.⁽³⁷¹⁾ With respect to the first category of "unprotected" speech, cable messages do not put the United States in any "grave and immediate danger."⁽³⁷²⁾ Similarly, the cable regulations neither mandate nor prohibit speech that has been categorically deemed unprotected--for example obscenity and fighting words--and thus subject to a less than strict scrutiny review.⁽³⁷³⁾ Finally, the messages conveyed via cable television do not implicate a co-equal constitutional interest that warrants increased restrictions on speech.⁽³⁷⁴⁾ Cable television, and the various messages cable operators choose to convey, do not pose such a threat to society that justifies a diminishment in protection.⁽³⁷⁵⁾

The status of protection guaranteed by the First Amendment can be best summarized by Supreme Court Justice Anthony Kennedy:

"[Where] a law is directed to speech alone [and] where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm [such law exceeds the] substantive power [of the Government and is presumptively unconstitutional]."⁽³⁷⁶⁾

Cable television does not fall under any of the above-mentioned classes of recognized exceptions.⁽³⁷⁷⁾ Thus, cable speech should not receive diminished protection and restrictions on it should be treated in the same manner as any other restriction on speech.⁽³⁷⁸⁾ Cable television is a segment of the press⁽³⁷⁹⁾ and should be treated as such pursuant to the Tornillo decision. Despite these well-recognized principles of First Amendment jurisprudence, the Turner Court failed to follow the Tornillo decision and grant cable operators the same protection as newspaper editors.⁽³⁸⁰⁾ The similarities between the must-carry regulations and the right of reply statutes in Tornillo make the Supreme Court's decision even more perplexing. Although the cases clearly dealt with different mediums, both statutes required private entities to devote space for speakers not of their choosing.⁽³⁸¹⁾ According to the Turner Court, because of the limited capacity, cable operators, like newspaper editors, must provide coverage of a local station over other cable programming they may prefer.⁽³⁸²⁾ This requirement, the Court maintained, reduces the number of available channels for which a cable programmer can compete.⁽³⁸³⁾ Therefore, the must-carry provisions exact a penalty on not only the cable operators, but the programmers as well.⁽³⁸⁴⁾

In an apparent attempt to distinguish Turner from Tornillo, the Turner majority concluded that the must-carry provisions lacked a content-based penalty.⁽³⁸⁵⁾ The Court stated that "[n]othing in the Act imposes a restriction, penalty, or burden by reason of the views, programs, or stations the cable operator has selected or will select."⁽³⁸⁶⁾ However, this conclusion is contradicted by the terms of the Act itself.⁽³⁸⁷⁾ Although cable operators may not be penalized for the programming they have selected, they will be penalized if they fail to comply with the must-carry provisions.⁽³⁸⁸⁾ Furthermore, like the newspaper editors in Tornillo, the cable operators lose potential advertising revenues because they are required to provide a number of channels to local stations.⁽³⁸⁹⁾

Finally, the Court attempted to distinguish Tornillo by pointing to the technological differences between cable television and newspapers.⁽³⁹⁰⁾ The Court was concerned that because cable operators have control over which programming is transmitted, they may "prevent [their] subscribers from obtaining access to programming [they choose] to exclude."⁽³⁹¹⁾ However, this is no different from a particular newspaper editor refusing to print a particular story or advertisement.⁽³⁹²⁾ "The channels of a cable system are not premises on which people come and go but--like the pages of a newspaper . . . --are the very means by which the cable operator conveys its chosen speech to the public."⁽³⁹³⁾

The Supreme Court in Turner failed to sufficiently distinguish between the editorial function of cable operators, and that of newspaper editors.⁽³⁹⁴⁾ Both involve the editorial control of content, either through privately-owned coaxial cable or via the printing press.⁽³⁹⁵⁾ As one commentator aptly stated: "[s]peech is `speech' and press is `press.' And the particular means by which one engages in the expressive activity, so long as it is lawful, is not a consideration material or relevant to the question of the protection constitutionally due the communicator, the communication, or the mass-media consumer."⁽³⁹⁶⁾ Despite the Court's prior analogies of cable television to the press, the Turner Court nevertheless strayed from the traditional press analysis.⁽³⁹⁷⁾

D.  What Ever Happened to Wooley?

The Turner majority also failed to recognize the 1977 Supreme Court decision in Wooley v. Maynard.⁽³⁹⁸⁾ Although the case is unrelated to television or media, the underlying First Amendment issues are analogous to those in Turner.⁽³⁹⁹⁾ Wooley involved a challenge to a New Hampshire law that required non-commercial vehicles to bear license plates embossed with the state motto, "Live Free or Die."⁽⁴⁰⁰⁾ The law was challenged by followers of the Jehova's Witness faith.⁽⁴⁰¹⁾ They claimed that the motto was against their religious, moral, and political beliefs, and that the state law--that required them to display an ideological message on their private property (their automobile)--violated their First Amendment right to refrain from speaking.⁽⁴⁰²⁾

The State of New Hampshire, on the other hand, advanced two interests for requiring the motto.⁽⁴⁰³⁾ First, the state argued that the display assists law enforcement officers in distinguishing New Hampshire plates from those of other states.⁽⁴⁰⁴⁾ Second, and more pertinent to this analysis, the motto "promotes appreciation of history, individualism, and state pride."⁽⁴⁰⁵⁾

The Supreme Court rejected both of the state interests and struck down the New Hampshire law.⁽⁴⁰⁶⁾ The Court described the First Amendment right to speak and the right to refrain from speaking as "complementary."⁽⁴⁰⁷⁾ Therefore, according to the Court, a state law that forces an individual to display an ideological point of view "`invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.'"⁽⁴⁰⁸⁾ In determining whether the statute regulated content, the Wooley Court, like the Tornillo Court, found the imposition of a penalty to be significant.⁽⁴⁰⁹⁾ Because the statute imposed a penalty for refusing to foster a message "important" to the State of New Hampshire, the regulation constituted a governmental restriction on speech, and thus was subjected to strict scrutiny.⁽⁴¹⁰⁾

The Supreme Court held that neither of the New Hampshire's asserted interests passed the strict scrutiny analysis.⁽⁴¹¹⁾ The first interest--the use of a motto to make identification easier for law enforcement officials--failed the "narrowly tailored" portion of the test.⁽⁴¹²⁾ The second justification--the interest in promoting history, state pride, and individualism--was not sufficiently compelling, according to the Court.⁽⁴¹³⁾ The Court noted that "the State's interest . . . to disseminate an ideology, no matter how acceptable to some, . . . cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message."⁽⁴¹⁴⁾

The New Hampshire statute rejected in Wooley is analogous to the must-carry regulations at issue in Turner.⁽⁴¹⁵⁾ Although the mediums are clearly different, both require a private individual to act as a "billboard" for a state's ideological message.⁽⁴¹⁶⁾ In Wooley, the must-carry provision was the requirement to display a state motto to promote an appreciation of history, individualism, and state pride.⁽⁴¹⁷⁾ This is virtually indistinguishable from the Cable Act's must-carry provision requiring a cable operator to carry local broadcast stations in order to promote localism, educational programming, news, and public affairs.⁽⁴¹⁸⁾ Furthermore, the presence of a penalty for failure to carry the message is present in both Wooley and Turner.⁽⁴¹⁹⁾ For these reasons, the Supreme Court found the statute in Wooley to be content based and invalidated the law.⁽⁴²⁰⁾ The Wooley decision is controlling precedent and should have been followed in the Turner analysis.⁽⁴²¹⁾ Both cases involve the issue of "whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public."⁽⁴²²⁾ If the Turner Court had chosen to apply Wooley, the must-carry rules would likely have failed the strict scrutiny analysis. The interests asserted by the State of New Hampshire in Wooley--to promote history and state pride⁽⁴²³⁾--are very similar to those that were advanced on behalf of must-carry. The FCC developed must-carry to ensure that broadcast television would survive.⁽⁴²⁴⁾ The Commission believed that broadcast television is necessary to ensure that a diverse array of "valuable" information reaches the viewing public.⁽⁴²⁵⁾ However, the similar interests raised in Wooley did not rise to the level of "compelling."⁽⁴²⁶⁾

E.  Future Applications of Must-Carry

The Turner Court placed significant emphasis on the "gatekeeper" role of cable operators.⁽⁴²⁷⁾ The Court was concerned that the growing monopoly powers of cable operators could lead to the demise of free broadcast television.⁽⁴²⁸⁾ However, recent developments in well-established law, and the advent of new technology, have brought about increased competition in the cable television market.⁽⁴²⁹⁾ Thus, the economic justification for imposing must-carry on cable operators is quickly becoming moot.

Beginning in 1970, the FCC established a rule that barred telephone common carriers⁽⁴³⁰⁾ from providing self-created "video programming"⁽⁴³¹⁾ to the viewing public in their operating area.⁽⁴³²⁾ Congress codified this rule in rule 6.2 § 533(b) of the 1984 Cable Act.⁽⁴³³⁾ The prohibition was enacted for fear that telephone companies would use their monopoly power to put local cable companies out of business.⁽⁴³⁴⁾ In particular, since the telephone companies had control of the pole lines required for the operation of cable television, the FCC was concerned that telephone companies would deny unaffiliated cable operators access to the poles.⁽⁴³⁵⁾ In addition, the FCC feared that telephone companies with cable affiliates could subsidize the affiliates with telephone revenues.⁽⁴³⁶⁾ The FCC claimed that this would eliminate all competition in the video programming market.⁽⁴³⁷⁾

In recent years, however, there have been a number of court decisions which suggest that phone companies will soon enter the cable market and will provide service to local customers.⁽⁴³⁸⁾ In Chesapeake & Potomac Telephone Co. v. United States⁽⁴³⁹⁾ local telephone companies argued that the selection mechanism for determining what constitutes video programming is content based and, thus, should be struck down under the strict scrutiny analysis.⁽⁴⁴⁰⁾ However, the court concluded that the selection mechanism is not content based because it does not regulate speech differently based upon its content.⁽⁴⁴¹⁾ Thus, the court resorted to O'Brien's intermediate standard for content-neutral regulations with an incidental burden on speech.⁽⁴⁴²⁾ Applying this standard, the court held that the restriction placed on common carriers was not sufficiently tailored to further the government's interest in preventing anticompetitive conduct.⁽⁴⁴³⁾ In particular, the court was troubled by the existence of an "obvious less-burdensome alternative."⁽⁴⁴⁴⁾ Thus, the Fourth Circuit held that the restriction violated a telephone company's freedom of speech and freedom of press under the First Amendment.⁽⁴⁴⁵⁾ The government appealed the decision to the Supreme Court, and the petition for writ of certiorari was granted and then vacated and remanded.⁽⁴⁴⁶⁾ However, recent legislation may render the entire controversy moot. Congress has passed a telecommunications bill that allows telephone companies to provide television service.⁽⁴⁴⁷⁾

In addition to the telephone company's entrance, new technology is already increasing the level of competition in the cable television market. Television consumers now have the ability to receive programming via their own satellite receivers.⁽⁴⁴⁸⁾ The "direct-broadcast satellite,"⁽⁴⁴⁹⁾ which offers subscribers up to one-hundred and fifty channels, will provide almost all of the same programming carried by cable operators.⁽⁴⁵⁰⁾ The system is particularly attractive in rural areas where it is too costly or impractical to run cable wires.⁽⁴⁵¹⁾ Provisions in the 1992 Cable Act, restricting cable operators' access to programming, will allow the DBS and other systems to compete more effectively with cable.⁽⁴⁵²⁾ The provisions prohibit cable operators from attempting to influence the decision of video programmers on whether to sell their programming to these new competitors.⁽⁴⁵³⁾ In the past, influence exerted on the part of cable operators had led these programmers to stray away from DBS and the like.⁽⁴⁵⁴⁾

As a result of recent technological and judicial developments, DBS operators and their telephone counterparts are slowly eroding the monopoly power with which the Turner Court was so concerned.⁽⁴⁵⁵⁾

  Conclusion

Since the introduction of cable television, the FCC has struggled to balance the growth of the cable industry with its concerns for the survival of free broadcast television. The "[m]ust carry rules in various forms have been major tools in this campaign to protect local broadcasting from cable."⁽⁴⁵⁶⁾ However, since the first application of the mandatory carriage requirements in 1965, the cable industry has challenged the constitutionality of these regulations. For over thirty years, until the recent Supreme Court decision in Turner, the courts failed to establish the appropriate standard of review for analyzing the must-carry rules. The Turner decision resolved the issue of where cable television will fit on the media's sliding scale of First Amendment protections. While regulations effecting broadcast television have traditionally received relaxed judicial scrutiny,⁽⁴⁵⁷⁾ and regulations effecting newspapers the most exacting form of review,⁽⁴⁵⁸⁾ the Turner majority has determined that cable's must-carry provisions should be somewhere in the middle.⁽⁴⁵⁹⁾ Thus, finding the current must-carry provisions to be content neutral, the Supreme Court concluded that the O'Brien intermediate standard will be used to review the regulations.⁽⁴⁶⁰⁾ However, although Turner resolved this heavily- debated issue, it failed to decide whether the provisions passed constitutional muster and remanded the case back for further proceedings.⁽⁴⁶¹⁾

Although the Supreme Court has determined that these particular must-carry provisions are content neutral, it is likely that other regulatory measures will be seen in the future. With new technology developing, and telephone companies racing to enter the cable market, the forty percent of Americans without cable or comparable service will decrease. The ability of Americans to take advantage of this emerging technology, however, is directly linked to the level of analysis applied by the courts.⁽⁴⁶²⁾ If the courts continue to apply the O'Brien standard to governmental restrictions on technology, rather than follow the traditional press standard in Tornillo, the speed at which Americans can enjoy this technology will be affected.⁽⁴⁶³⁾ This restriction on the freedoms of speech and press is unwarranted, and runs contrary to the principles behind the First Amendment.⁽⁴⁶⁴⁾

James A. Bello^*

1. Patrick Parsons, Cable Television and the First Amendment 12 (1987). The first commercial cable television system is believed to have originated in the town of Lansford, Pennsylvania. Id.

2. Id.

3. Id.

4. 47 U.S.C. § 521(a)(3) (Supp. V 1993).

5. George H. Shapiro et al., Cablespeech: The Case for First Amendment Protection 13-14 (1983).

6. Id. at 13.

7. Parsons, supra note 1, at 14-15.

8. Shapiro et al., supra note 5, at 138.

9. Id. at 137-38.

10. Id. at 139-41. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." U.S. Const. amend. I; see also Black Hills Video Corp. v. FCC, 399 F.2d 65, 69 (8th Cir. 1968) (upholding the constitutionality of the must-carry provisions and concluding that the interest in the survival of broadcast service outweighed cable operators' First Amendment rights).

11. See, e.g., Century Communications Corp. v. FCC, 835 F.2d 292, 298 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988); Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1454 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986).

12. Century, 835 F.2d at 298; Quincy, 768 F.2d at 1454.

13. Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).

14. See infra notes 225-33 and accompanying text.

15. See infra notes 21-116 and accompanying text.

16. See infra notes 117-277 and accompanying text.

17. See infra notes 278-455 and accompanying text.

18. See infra notes 278-426 and accompanying text.

19. See infra notes 427-55 and accompanying text.

20. See infra notes 456-64 and accompanying text.

21. Parsons, supra note 1, at 13.

22. Id.

23. Id.

24. Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1441 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986).

25. Id.

26. Id.

27. Parsons, supra note 1, at 13.

28. Id. (citing Frontier Broadcasting v. Collier, 24 F.C.C. 251 (1958)).

29. Id. at 14.

30. Federal Communications Act of 1934, 47 U.S.C. § 307(b) (1988). The Act defined the primary purpose of the FCC: "to provide a fair, efficient, and equitable distribution of radio service[s]" to the states and their communities. Id.

31. Section 3(h) of the Act defines common carrier as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy." 47 U.S.C. § 153(h) (1988). While the above definition does not include a specific test for what constitutes a common carrier under the Act,

[f]undamental to the concept of a communications common carrier is that such a carrier holds itself out or makes a public offering to provide facilities by wire or radio whereby all members of the public who chose to employ such facilities and to compensate the carrier therefor may communicate or transmit intelligence of their own design and choosing between points on the system of that carrier and other carriers connecting with it.Frontier, 24 F.C.C. at 254 (footnote omitted).

32. Parsons, supra note 1, at 14.

33. Morton I. Hamburg, All About Cable § 1.04 (rev. ed. 1981) (citing In re Inquiry into the Impact of Community Antenna Sys., TV Translators, TV "Satellite" Station and TV "Repeaters" on the Orderly Dev. of Television Broadcasting, 18 Rad. Reg. (P & F) 1573 (FCC 1959) [hereinafter In re TV Translators]).

34. Id. § 1.04.

35. Id. (citing In re TV Translators, supra note 33, at 1604).

36. Id. (citing In re TV Translators, supra note 33, at 1604).

37. Id. § 6.03[3]-[4].

38. Hamburg, supra note 33, § 6.03[4] (footnote omitted).

39. Id.

40. Id. § 1.04. In 1962, there were 527 broadcast television stations servicing 47 million homes, producing approximately $1.5 billion in revenue. Id. In 1965, these figures grew to 569 stations servicing 52.7 million homes with $2.1 billion in revenue. Id. In comparison, in 1961 there were 700 cable systems servicing 700,000 homes, producing $35 million in revenue. Id. By 1965, outpacing the growth of broadcast television, these figures grew to 1,325 cable systems covering 1.5 million homes and generating $125 million in revenue. Id. (footnote omitted).

41. Id. § 1.05.

42. Carter Mountain Transmission Corp. v. FCC, 321 F.2d 359, 361 (D.C. Cir. 1962), cert. denied, 375 U.S. 951 (1963).

43. Microwaves are super-high frequency radio waves that are transmitted in a narrow beam on relatively straight paths from one relay station to another. Edwards v. Bardwell, 632 F. Supp. 584, 588 (M.D. La. 1986).

44. Carter, 321 F.2d at 361. Carter Mountain Transmission Corporation had applied for a license to construct microwave radio communications systems to transmit signals to be used on its cable system. Id. In order for a microwave license to be granted, the cable operator had to agree to two conditions: (1) not to import television signals that duplicate local programming, and (2) to carry the signals of local broadcast stations. Id.

45. Id. at 365-66.

46. Id. In particular, the court was concerned that the closing of the local station would result in the loss of community programming. Id. at 365. Furthermore, according to the court, cable would have been unable to enter certain rural areas. Id. Therefore, the court maintained, if the local station were to go out of business, more than half of the population would be without any television service. Id.

47. Parsons, supra note 1, at 15.

48. Id. (citing Rules re Microwave-Served Television, First Report and Order, 38 F.C.C. 683 (1965) [hereinafter First Report and Order]).

49. Id. at 711.

50. Id. at 703.

51. Shapiro et al., supra note 5, at 139 (citing First Report and Order, supra note 48, at 701-06).

52. Id. at 138.

53. UHF television stations consist of those stations occupying channels 14 through 67 on the television dial while, conversely, Very High Frequency (VHF) channels consist of stations 2 to 13. William K. Jones, Cases and Materials on Electronic Mass Media 4 (2d ed. 1979). Because UHF stations are not able to produce as high a quality picture as VHF channels, most UHF stations have suffered from low audiences and financial difficulties. Malrite T.V. of New York v. FCC, 652 F.2d 1140, 1143 (2d Cir. 1981).

54. Hamburg, supra note 33, § 1.07 (quoting In re Amendment of Section 73.606, Table of Assignments, Television Broadcast Stations, 1 F.C.C.2d 496, 500 (1965)).

55. See Carter, 321 F.2d at 363; supra notes 42-46 and accompanying text.

56. Parsons, supra note 1, at 15.

57. Id.

58. Id.

59. Id. (citing Rules re Microwave-Served Television, Second Report and Order, 2 F.C.C.2d 725 (1966) [hereinafter Second Report and Order]).

60. Second Report and Order, supra note 59, at 752. In addition to the must-carry component, the Second Report and Order also prevented cable systems from importing signals into the top 100 television markets. Parsons, supra note 1, at 15.

61. Second Report and Order, supra note 59, at 752.

62. Buckeye Cablevision, Inc. v. FCC, 387 F.2d 220, 222 n.3 (D.C. Cir. 1967). The reception measurements also include a Grade A Contour in which a good picture is available 90 percent of the time at 70 percent of receiver locations. Id.

63. Second Report and Order, supra note 59, at 782. The signal could be transmitted beyond the Grade B Contour if the cable system could show, at an evidentiary hearing, "that such operation would be consistent with the public interest, and particularly the establishment and healthy maintenance of UHF television broadcast service." Id.

64. See Black Hills Video Corp. v. FCC, 399 F.2d 65 (8th Cir. 1968); Buckeye Cablevision v. FCC, 387 F.2d 220 (D.C. Cir. 1967).

65. Buckeye Cablevision v. FCC, 387 F.2d 220 (D.C. Cir. 1967).

66. Id. at 225. Buckeye Cablevision was a cable operator in Toledo, Ohio. Id. at 222. Prior to May 27, 1966, it supplied its viewers with the signals of nine stations, including WJIM-TV, Lansing, Michigan. Id. Buckeye Cablevision challenged the FCC's distant-signal rules, which required Buckeye Cablevision to drop the signal of WJIM because it was outside its "Grade B Contour." Id. at 222-23.

67. Id. at 225.

68. Id.

69. Id. (footnote omitted). The court found the regulations to restrain no more speech than was necessary to serve the public interest in protecting local stations. Id.

70. Black Hills Video Corp. v. FCC, 399 F.2d 65, 66-67 (8th Cir. 1968) (citing First Report and Order, supra note 48, at 683).

71. Id. (citing Second Report and Order, supra note 59, at 725).

72. Black Hills Video Corp. v. FCC, 399 F.2d 65 (8th Cir. 1968).

73. Id. at 69. Black Hills Video Corporation (Black Hills) was a cable operator relying on microwave feeds to receive programming. Id. at 67. Black Hills, along with seven other CATV systems, filed a petition pursuant to the Communications Act of 1934, to seek judicial review of the First Report and Order and the Second Report and Order. Id.

74. Id. at 69. "`The right of free speech does not include . . . the right to use the facilities of radio without a license . . . . Denial of a station license on [public interest] ground[s], if valid under the Act, is not a denial of free speech.'" Id. (quoting National Broadcasting Co. v. United States, 319 U.S. 190, 227 (1943)).

75. Id.

76. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). In Red Lion, the Supreme Court upheld an FCC regulation that required broadcasters to provide an individual who was personally attacked in a television broadcast, a reasonable opportunity to respond. Id. at 372-73. This FCC policy is known as the "Fairness Doctrine." Id. at 373. The Court ruled that broadcast frequencies constitute a scarce resource requiring strict governmental regulation. Id. at 376. Without such regulation, according to the Court, the competition for space on the broadcast frequencies could result in some speakers restricting the free expression of others. Id. at 388-89. Therefore, under this "scarcity rationale," the Court held that television and radio should not be afforded the same First Amendment protections as most entities: "Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Id. at 388.

77. Id. at 388; see also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799 (1978).

78. Black Hills, 399 F.2d at 69.

79. Id.

80. Id. ("Indiscriminate CATV development, feeding upon the broadcast service, is capable of destroying large parts of it. The public interest in preventing such a development is manifest.").

81. Shapiro et al., supra note 5, at 141.

82. Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1976), cert. denied, 434 U.S. 829 (1977). Home Box Office involved a challenge to the FCC's "pay cable" rules, which prohibited cable operators from presenting feature film and sports programming if a separate charge is made for the material. Id. at 18-19.

83. Shapiro et al., supra note 5, at 141.

84. Home Box Office, 567 F.2d at 44-45. The Red Lion analysis "cannot be directly applied to cable television since an essential precondition of that theory--physical interference and scarcity requiring an umpiring role for government--is absent." Id. (footnote omitted); see also supra note 76 and accompanying text.

85. See supra notes 75-77 and accompanying text.

86. Home Box Office, 567 F.2d at 45.

87. United States v. O'Brien, 391 U.S. 367 (1968). For a discussion of the O'Brien decision, see infra notes 314-18 and accompanying text.

88. O'Brien, 391 U.S. at 377. Today, the O'Brien test has been further refined by the 1989 Supreme Court decision in Ward v. Rock Against Racism, 491 U.S. 781 (1989). See infra note 190.

89. Home Box Office, 567 F.2d at 50.

90. Id. at 50-51.

91. Quincy Cable TV, Inc., v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986).

92. Id. at 1438. The must-carry rules challenged in Quincy were similar in format to those rules upheld in Black Hills Video Corp. v. FCC, 399 F.2d 65, 69 (8th Cir. 1968). See supra notes 72-74 and accompanying text.

93. Quincy, 768 F.2d at 1448-50. The court noted the differences between broadcast and cable television. Id. at 1448. While the electromagnetic spectrum limits the number of broadcast signals that may be carried, cable operators have the ability to carry more than 200 channels via coaxial cable. Id. This "distinction is of fundamental significance in light of the Supreme Court's oft-repeated suggestion that the First Amendment tolerates far more intrusive regulation of broadcasters than of other media precisely because of the inescapable physical limitations on the number of voices that can simultaneously be carried over the electromagnetic spectrum." Id. (citing FCC v. League of Women Voters of California, 468 U.S. 364, 377 (1984); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1403 (1983)). Accordingly, the court held that the "scarcity rationale" should not be considered when evaluating government regulation of cable. Id. at 1449.

94. Id. at 1450.

95. Id. at 1451 ("[T]he Commission's objective is a far cry from the sort of interests that typically have been viewed as imposing a merely `incidental' burden on speech."). The court found the regulations to have three effects on the cable operator's First Amendment rights. Id. at 1453. First, the rules promote a governmentally-favored class of speakers (local broadcasters) at the expense of others (cable programmers). Id. at 1451 (citing Home Box Office, 567 F.2d at 48). Second, the must-carry regulations intrude on the cable operator's editorial discretion in choosing which programming to carry. Id. at 1452 (citing FCC v. Midwest Video Corp., 440 U.S. 689, 707-08 n.17 (1979)). Third, the rules prevent cable programmers from reaching their intended audience even if such a result goes against the preference of cable subscribers. Id. at 1453. "This conscious disregard of subscribers' viewing preferences is difficult, if not impossible, to reconcile with the Supreme Court's repeated admonition that the interests of viewers should be considered `paramount' in the First Amendment calculus." Id. (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969)).

96. Id. at 1448.

97. Id. at 1459.

98. Quincy, 768 F.2d at 1460.

99. In re Amendment of Part 76 of the Commission's Rules Concerning Carriage of Television Broadcast Signals by Cable Television Sys., 1 F.C.C.R. 864, ¶ 75, at 874 (1986) [hereinafter Rules Concerning Carriage], modified, 2 F.C.C.R. 3593, ¶ 155, at 3618 (1987) [hereinafter Modified Rules Concerning Carriage]. "[I]t was necessary and appropriate to tailor the interim must carry rules such that they will withstand judicial scrutiny." Modified Rules Concerning Carriage, supra, ¶ 155, at 3618.

100. See supra notes 97-98 and accompanying text.

101. Modified Rules Concerning Carriage, supra note 99, ¶ 69.

102. Id. ¶ 75. The FCC estimated that it would take about five years for viewers to become accustomed to the A/B switches. Id. After such time, the must-carry rules were to be phased out. Id.

103. Century Communications Corp. v. FCC, 835 F.2d 292, 296 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988).

104. Rules Concerning Carriage, supra note 99, ¶¶ 134-135. Unlike this version of the rules, the must-carry rules rejected in Quincy required all cable operators, regardless of size, to carry the signal of local stations. See Quincy, 768 F.2d at 1437 (citing 47 C.F.R. §§ 76.57-76.71 (1984)).

105. Century Communications Corp. v. FCC, 835 F.2d 292, 293 (D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988).

106. Id. at 298.

107. Id.

108. Id. at 298-99. "We hold simply that . . . the FCC's reimposition of must-carry rules on a five-year basis neither clearly furthers a substantial governmental interest nor is of brief enough duration to be considered narrowly tailored so as to satisfy the O'Brien test for incidental restrictions on speech." Id. at 304.

109. Id. at 300.

110. Century, 835 F.2d at 300.

111. Id.

112. Id. at 302. "The Commission relies heavily on its assumption that in the absence of must-carry rules, cable companies would drop local broadcasts. Experience belies that assertion." Id. at 303.

113. Id. at 304 ("We do not suggest that must-carry rules are per se unconstitutional . . . .").

114. Id.

115. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (codified in scattered sections of 47 U.S.C.) [hereinafter Cable Act of 1992].

116. Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).

117. Brief for Appellants Turner Broadcasting System, Inc. et al. at 12, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994) (No. 93-44).

118. Id. at 12. Congress received numerous complaints regarding the increase in monthly bills. Id.

119. Three years of congressional hearings were held, and the results of Congress's fact-finding were placed in the text of the Cable Act itself. See 47 U.S.C. § 521(a)(1)-(21) (Supp. V 1993). Of importance to Turner, Congress concluded that the physical characteristics of cable television were endangering the ability of over-the-air broadcasters to compete for viewers who generate operating revenues. Id. § 521(a)(2) (Supp. V 1993). Furthermore, because of local franchising agreements and the cost of constructing more than one cable system, most cable television subscribers did not have the opportunity to choose between competing cable operators. Id. Without the presence of competition, Congress was concerned that cable operators would maintain undue "market power . . . as compared to that of consumers and video programmers." Id. In light of these conditions, Congress concluded that unless cable operators were required to carry the signals of local stations, "the economic viability of free local broadcast television and its ability to originate quality local programming [would] be seriously jeopardized." Id. § 521(2)(a)(16).

120. Brief of Appellee National Association of Broadcasters (NAB) at 10-12, Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994) (No. 93-44) (citing Cable System Broadcast Signal Carriage Survey, Staff Report by the Policy and Rules Division, Mass Media Bureau, Sept. 1, 1988 [hereinafter FCC Survey]).

121. Id. at 11. The FCC survey showed that in more than 1800 instances, 869 cable operators admitted refusing carriage to a total of 704 local broadcast stations. Id. (citing FCC Survey, supra note 120, table 8). In addition, in 241 instances, cable operators had denied carriage to three or more local stations, and 133 cable operators had denied carriage to four or more local stations. Id. In a number of these instances, the replacement for the dropped local station was a cable program in which the cable operator received advertising revenues. Id.

122. Studies indicate that viewers are less likely to watch the higher-numbered channels offered on a cable system. Id. at 11 n.27 (citations omitted). The FCC surveys showed that in more than 3000 instances, 974 cable operators repositioned local broadcast stations from their over-the-air positions to less desirable channels. Id. at 11.

123. Id. at 11 ("`In almost every instance, the stations shifted have been replaced by a cable program in which the system operator is selling advertising or in which the operator has an equity interest or both.'" (quoting S. Rep. No. 92, 102d Cong., 1st Sess. 44 (1991), reprinted in 1992 U.S.C.C.A.N. 1133, 1177)).

124. Id. at 12.

125. Brief of Appellee NAB at 12-13, Turner (No. 93-44).

126. 47 U.S.C. § 521(a)(6) (Supp. V 1993). The congressional findings listed in the text of the Act state that "[t]here is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." Id.

127. 47 U.S.C. § 521(a)(11) (Supp. V 1993). The text of the Act describes the importance that Congress places on the role of broadcast television: "Broadcast television stations continue to be an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate." Id.

128. See supra note 115 and accompanying text. The Cable Act imposed a number of regulations on the cable industry, including: rate regulation by the FCC and municipal franchising authorities; prohibition on awarding exclusive franchises to cable operators; various restrictions on cable programmers associated with cable operators; and directives to the FCC to develop minimum technical standards for cable operators. Turner, 114 S. Ct. at 2453.

129. Brief for Appellants Turner Broadcasting System, Inc. et al. at 12, Turner (No. 93-44). According to the cable challengers, the 1992 "provisions appropriate a greater portion of cable system capacity for the benefit of broadcasters than did the Century rules . . . ." Id. In addition, "unlike the earlier rules, [they] contain no mechanism whatsoever for taking viewer interests and preferences into account." Id. The provisions of the 1992 Cable Act, unlike the rules challenged in Century, do not advocate the use of an A/B or similar switching device. See Century, 835 F.2d at 296.

Section Four of the Cable Act of 1992 requires cable operators with more than 12 channels, and more than 300 subscribers, to devote up to one-third of their channel capacity to "local commercial television stations." Cable Act of 1992, supra note 115, § 4 (codified at 47 U.S.C. § 534(b)(1)(A)-(B) (Supp. V 1993)). Cable systems with fewer than twelve channels, but more than 300 subscribers, are required to carry the signals of at least three local commercial television stations. Id. (codified at 47 U.S.C. § 534(b)(1)(A)-(B) (Supp. V 1993)). In addition, the broadcast station must be placed in the same numerical channel as the station would be when broadcast over the air. Id. § 4 (codified at 47 U.S.C. § 534(b)(6) (Supp. V 1993)).

Section Five of the Act mandates carriage of "noncommercial educational television stations," in addition to the channels put aside under Section Four. Id. § 5 (codified at 47 U.S.C. § 535(a) (Supp. V 1993)). Although the number of channels varies with the capacity of the cable operator, the larger systems must carry each local public broadcast station requesting carriage. Id. § 5 (codified at 47 U.S.C. § 535(b)(2)(A), (b)(3)(A), (b)(3)(D) (Supp. V 1993)). As with Section Four, the cable operators are required to place the public broadcast station in the same numerical position. Id. § 5 (codified at 47 U.S.C. § 535(g)(5) (Supp. V 1993)).

Under the terms of the Act, cable operators are prohibited from soliciting or accepting payment from local stations. Id. § 4 (codified at 47 U.S.C. § 534(b)(10) (Supp. V 1993)). In addition, Section Six of the Act provides for the adoption of "retransmission consent." Id. (codified at § 325(b)(1) (1988 & Supp. V 1995)). Cable systems are now prohibited from carrying the signal of local stations without express permission, unless the stations assert their must-carry privilege. Id. (codified at 47 U.S.C. § 325(b)(1) (1988 & Supp. V 1995)). In essence, the Cable Act of 1992 allows the more popular stations to elect retransmission consent and demand payment, while the smaller, less popular stations are guaranteed coverage via must-carry provisions.

130. Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445 (1994).

131. Turner Broadcasting Sys., Inc. v. FCC, 819 F. Supp. 32, 37 (D.D.C.) (footnote omitted), prob. juris. noted, 114 S. Ct. 38 (1993), vacated, 114 S. Ct. 2445, reh'g denied, 115 S. Ct. 30 (1994), on remand to 910 F. Supp. 734 (D.D.C. 1995), prob. juris. noted, 116 S. Ct. 907 (1996).

132. Turner, 819 F. Supp. at 37.

133. Id.

134. Id. at 51.

135. Id. at 40. The court maintained: "Congress employed its regulatory powers over the economy to impose order upon a market in dysfunction . . . ." Id. It concluded that "the must-carry provisions are essentially economic regulation designed to create competitive balance in the video industry as a whole, and to redress the effects of cable operators' anti-competitive practices." Id.

136. Id. The court held that "the must-carry provisions are, in intent as well as form, unrelated (in all but the most recondite sense) to the content of any messages that [the] . . . cable operators, broadcasters, and programmers have in contemplation to deliver." Id.

137. Turner, 819 F. Supp. at 40.

138. Id. at 45-47.

139. Id.

140. Justice Stephen F. Williams has been a Circuit Judge on the Court of Appeals for the District of Columbia since his 1986 appointment by former President Ronald Reagan. Marie T. Finn, The American Bench 93 (8th ed. 1995-96).

141. Turner, 819 F. Supp. at 57-67 (Williams, J., dissenting).

142. Id. at 59 (Williams, J., dissenting).

143. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); see also infra note 154 and accompanying text.

144. Turner, 819 F. Supp. at 60-61 (Williams, J., dissenting).

145. Id. at 61-62 (Williams, J., dissenting).

146. Id. at 62 (Williams, J., dissenting).

147. Id. at 63 (Williams, J., dissenting).

148. The Cable Act contains an express provision pertaining to judicial review. Cable Act of 1992, supra note 115, § 3 (codified at 47 U.S.C. § 555(c)(2) (Supp. V 1993)). If a district court finds any provision of Section Four or Five unconstitutional, the matter may be directly appealed to the Supreme Court. Id.

149. Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 38 (1993).

150. Brief for Appellants Turner Broadcasting System, Inc. et al. at 23-24, Turner (No. 93-44).

151. Id. at 24-55. The cable operators and programmers argued that distinguishing between certain types of speech based on content required a strict scrutiny analysis. Id. at 23 (citing Burson v. Freeman, 504 U.S. 191, 207 (1992)).

152. Id. at 24. The appellants cited a number of legislative findings from the Cable Act of 1992 which they termed "governmental interests." Id. These include the following:

[D]istributing "unique noncommercial educational programming" [47 U.S.C. § 521(a)(7) (Supp. V 1993)]; providing "programming that is responsive to the needs and interests of the local community" [47 U.S.C. § 521(a)(8)(B) (Supp. V 1993)]; supporting "local origination of programming" [47 U.S.C. § 521(a)(10) (Supp. V 1993)]; and, ensuring that broadcast television stations "continue to be an important source of local news and public affairs programming" [47 U.S.C. § 521(a)(11) (Supp. V 1993)].Id.

153. Id. at 24. According to the Cable Act of 1992, in considering a request for carriage by a local broadcaster, the FCC shall determine "whether the [television] station `provides coverage or other local service to such community' and whether other stations `provide[] news coverage of issues of concern to such community or provide[] . . . coverage of sporting and other events of interest to the community.'" Id. (alterations in original) (footnote omitted) (quoting 47 U.S.C. § 534(h)(1)(C)(ii) (Supp. V 1993)).

154. Brief for Appellant Time Warner Entertainment Co., L.P. at 30, Turner (No. 93-44). Cable operators contended that cable operators, like the print press, engage in editorializing by choosing the programming they decide to carry. Id. at 24 (citing City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)). In Preferred Communications, the Supreme Court held that cable operators engage in editorial discretion by selecting which programming to offer their subscribers. Preferred Communications, 476 U.S. at 494.

155. Brief for Appellant Time Warner Entertainment Co., L.P. at 24-25, Turner (No. 93-44).

156. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Tornillo, a Miami newspaper challenged a Florida statute that required any newspaper that assailed a political candidate's character to print, upon request and free of charge, any reply the candidate may make. Id. at 245. The Supreme Court struck down the "right of reply" statute on First Amendment grounds because it intruded on the editorial control of the newspapers. Id. at 258.

157. Brief for Appellant Time Warner Entertainment Co., L.P. at 24-25, Turner (No. 93-44).

158. Buckley v. Valeo, 424 U.S. 1 (1976).

159. Brief for Appellants Turner Broadcasting System, Inc. et al. at 27-28, Turner (No. 93-44). The cable programmers relied principally on the case of Buckley v. Valeo, 424 U.S. 1 (1976). Brief for Appellants Turner Broadcasting System, Inc. et al. at 27-28, Turner (No. 93-44). In Buckley, the Supreme Court invalidated a federal law that prohibited individuals from spending more than $1000 per year to support or oppose a particular political candidate. Buckley, 424 U.S. at 48-49. The Court held that the regulation was invalid under the First Amendment because the government may not "`restrict the speech of some elements of our society in order to enhance the relative voice of others.'" Brief for Appellants Turner Broadcasting System, Inc. et al. at 27, Turner (No. 93-44) (quoting Buckley, 424 U.S. at 48-49).

160. Brief for Appellants Turner Broadcasting System, Inc. et al. at 27-28, Turner (No. 93-44).

161. Turner, 114 S. Ct. at 2466.

162. Brief for Appellants Turner Broadcasting System, Inc. et al. at 28, Turner (No. 93-44). Cable programmers argued that even if the government did not intend to favor one form of speech over another, the First Amendment prohibits Congress from creating such a "hierarchy" based on its assessment as to the importance of a particular type of speech. Id.

163. Brief for Appellant Time Warner Entertainment Co., L.P. at 28-30, Turner (No. 93-44).

164. Shapiro et al., supra note 5, at 5-6. Multipoint distribution systems (MDS) transmit signals via microwave frequencies to either individual homes or to master antennas. Id. Like cable, MDS systems provide programming to consumers for a fee. Id.

165. Id. at 6 n.17. Satellite master antenna television (SMATV) systems use a main antenna to receive programming from a satellite. Id. The signal is then distributed to buildings and homes near the main antenna via coaxial cable. Id. With approximately 500,000 subscribers in 1982, SMATV operators formed their ow