RESPONDENT: Federal Communications Commission
LOCATION: Camp Newfound Owatonna
DOCKET NO.: 95-992
DECIDED BY: Rehnquist Court (1986-2005)
CITATION: 520 US 180 (1997)
ARGUED: Oct 07, 1996
DECIDED: Mar 31, 1997
Bruce J. Ennis, Jr. - Argued the cause for the private appellees
H. Bartow Farr, III - Argued the cause for the appellants
Walter E. Dellinger, III - Argued the cause for the federal appellees
Facts of the case
The 1992 Cable Television Consumer Protection and Competition Act required cable television systems to set aside some of their channels for local broadcast television. In 1994, the Supreme Court held that these must-carry provisions pass constitutional muster. (See Turner Broadcasting v. FCC, decided June 27, 1994). The Court then remanded the case to determine whether Congress had adequate factual support for its conclusion that the must-carry provision is necessary. A special three-judge district court held that there was sufficient evidence that the must-carry provision furthered important governmental objectives and that the provision was narrowly tailored to promote those interests. The broadcasters appealed directly to the Supreme Court.
Is the 1992 "must carry" law an unconstitutional intrusion on cable operators' editorial autonomy, a form of Government-compelled speech that violates the First Amendment?
Media for Turner Broadcasting System, Inc. v. Federal Communications Commission
Audio Transcription for Oral Argument - October 07, 1996 in Turner Broadcasting System, Inc. v. Federal Communications Commission
William H. Rehnquist:
We'll hear argument now in Number 95-992, the Turner Broadcasting System v. The Federal Communications Commission.
H. Bartow Farr, III:
Thank you, Mr. Chief Justice, and may it please the Court:
At the outset, if I may, I would like to explain briefly why we think that neither of the interests now asserted by the Government to support the must-carry law justifies the burdens that it imposes on speech.
The first argument, that the law merely regulates anticompetitive conduct, fails for two reasons.
First, just as the Government can't ban all fund-raising on the ground that some of it might be fraudulent, here the Government can't forbid the sort of protected activity at issue, choosing what speech to offer, unless it shows at a minimum that those decisions are generally anticompetitive acts and thus fall outside the scope of the First Amendment, otherwise, the law is reaching too far into protected activity in an effort to get at unprotected activity.
The record, however, shows that cable operators voluntarily carry the vast majority of broadcast stations, those accounting for some 98 percent of actual viewing, and it is wholly implausible to presume that, were it not for some sort of anticompetitive bias, the cable systems would carry every broadcast station regardless of how minimal the viewership, in preference to the 150 or so other programmers that are also seeking access.
Anthony M. Kennedy:
Well, at some point during the argument... maybe now if it's convenient... would you just explain this to me, Mr. Farr.
I've always had this difficulty with the case.
The cable operators say, this is so terribly burdensome.
We have to cancel out programmers whom we'd rather have.
And then on the other hand it says in its brief, well, we're not really cancelling the broadcasters.
All this is unnecessary.
It seems to me you can't have it both ways.
H. Bartow Farr, III:
Well, I think there are two different questions that are involved.
First of all, there can be a burden on rights that is substantial, even though as a mathematical matter the burden on speech itself is not particularly substantial, but I don't even think that is the case here.
I mean, there are across the country not only stations that in the past have been dropped and were restored by must-carry, but many stations that are locked in, and as the record shows now in the case, two out of every three subscribers is served by a system that is channel-blocked, that is, it has no available channels at all for programming, and the other third of subscribers are served by systems that will be channel-blocked at some point.
The Government's expert concedes that no cable system actually builds in excess capacity for permanent use.
Anthony M. Kennedy:
Well, can we conclude from your argument that if you prevail on this case a large number of broadcasters will be dropped?
H. Bartow Farr, III:
Well, I guess it depends on what the term large number of broadcasters means.
What the record shows, and I think this is consistent with essentially the Government's interpretation of it as well, is that the cable operators in the past, without must-carry, voluntarily carried virtually all network affiliates, they carried virtually all VHF independent stations, they carried a considerable majority of UHF stations, about 80 percent of educational stations, and even one out of three of every station that did not command even a measurable viewership.
Now, if one looks at that pattern, what that shows... and then groups that with stations community by community.
What that effectively shows is that in communities with relatively small numbers of stations, four, five, six, which tends to be more the norm, the cable system tends to carry... not always, but tends to carry all of the stations, or most of the stations.
Then as you get into markets where there are more and more stations, 10, 12, 14, those tend to be the stations that cable systems do not regularly carry.
The question then depends on whether those stations, even though they have very low viewership, tend to add something to the overall package that a cable operator is trying to provide to its subscribers, and many of those stations do.
That's why they're carried.
But the fact is, cable operators will not carry all of the very lightly viewed stations if they believe there is other programming that will provide a better fit in the package that it's offering to subscribers.
I don't think there's any way to put an exact number on that, but we know from the history that the number was not... in terms of must-carry ads was only 6,000 in the past, and I assume some of those would still be carried, and then of the 30,000, some number of those would not be carried even though they were before.
David H. Souter:
How do you think we ought to assess the significance of the fact... I take it's a fact... that the brunt of the decisions not to carry tends to fall on the new stations?
I think the figures were that in the absence of must-carry about 50 percent of the new public broadcasting channels did not get carried, and something I think in the neighborhood of a third of the new nonpublic channels did not get carried, so the brunt of the decisions not to carry by the cable operators tends to fall on the new stations.