Turner Broadcasting System v. Federal Communications Commission

Appellant
Turner Broadcasting System, Inc., et al.
Appellee
Federal Communications Commission, et al.
Appellant's Claim
That the Federal Communications Commission was violating the First Amendmentrights of cable operators by requiring them to broadcast local channels.
Chief Lawyer for Appellant
H. Bartow Farr III
Chief Lawyer for Appellee
Bruce Ennis
Justices for the Court
Stephen Breyer, Anthony M. Kennedy (writing for the Court), William H. Rehnquist, David H. Souter, John Paul Stevens
Justices Dissenting
Ruth Bader Ginsburg, Sandra Day O'Connor, Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
31 March 1997
Decision
Requiring cable systems to broadcast local stations was a "content neutral" decision and therefore did not violate the First Amendment rights of the systems.
Significance
The Court furthered the concept of content-neutrality in this case which hasand will set the standard for future First Amendment cases involving newer forms of communication such as the Internet.
The History of Cable Television
In 1948, cable television was created as a way to access homes too remote fornormal signals to reach. By setting antennas up on mountaintops and connecting homes to them, systems were able to provide television service for those who might not otherwise have it. In the late 1950s, these systems found that by offering their subscribers signals from other areas, rather than just localones, they increased interest in their service. By 1962 850,000 subscriberswere being served by about 800 systems.
Not surprisingly, local television stations viewed these services as competition. In response, the Federal Communications Commission (FCC) expanded its area of responsibility to include these systems and regulated their ability toaccess these distant signals. With the growth of satellite technology and increasing efforts by the cable industry, regulations throughout the 1970s lessened. The first pay network, Home Box Office (HBO) along with the emergence ofa local television station that began using the new technology, WTBS, turnedthe home entertainment industry upside down. By the end of the 1970s nearly15 million homes subscribed to cable television.
The 1984 Cable Act deregulated the cable industry, allowing business to beginto experiment with newer technologies and programming. According to the National Cable Television Association (NCTA), the industry spent an unprecedented$15 million "on program development," the "largest private construction project since World War II." In the following decade, cable networks began to market themselves to small focus group. For instance, networks would show programs that they thought would be interesting to women, or would only broadcast music-oriented shows or only sports. By 1998 seven in ten households who had televisions, subscribed to cable.
Regulation Begins
As systems began to carry more and more stations, they began to set up subscriber "tiers." The lowest and least expensive tier usually offers subscribersa compliment of local broadcast stations plus a selection of specialty networks chosen by the cable system. For a higher monthly fee, the subscriber getsa larger and more diverse selection of cable stations.
In 1992, overriding the veto of President George Bush, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. The act allowed the FCC to regulate the cable industry and set minimum technical standardsfor broadcast, prohibited an area from allowing cable franchise monopolies,imposed restrictions of programmers who are affiliated with cable operations,and required operators to carry a minimum number of local broadcast stations. This so-called "must-carry" provision required, for example, that a cable system with more than 12 channels and more than 300 subscribers, set aside upto one-third of the channel space for any local broadcast station that requested it. Any station that did not make an official request did not have to beconsidered and if more than the required number asked for space, the cable system could choose those stations that it wanted to air. Any station that it did choose to carry however, needed to be placed on the same numerical channelthat they would be on if they were broadcasting. Similar rules were enactedregarding public television and educational broadcast channels.
This act was approved after three years of hearings during which Congress determined that the superior technical quality and financial strength of cable systems allowed the possibility that local stations were in danger of being economically ruined. Congress found that

most subscribers to cabletelevision systems do not or cannot maintain antennas to receive broadcast television services, do not have input selector switches to convert from a cable to antenna reception system, or cannot otherwise receive broadcast television services . . . The result is undue market power for the cable operator ascompared to that of consumers and video programmers.

Also at issue was advertising revenue. The more subscribers a system has, thehigher their advertising rates. If everyone has cable and they are not carrying local channels, then advertisers have no motivation to advertise on thoselocal channels which will put them out of business.
Very quickly, many cable programmers and operators filed suit in the U.S. District Court of the District of Columbia against the United States and the FCCon the grounds that the must-carry rules were a violation of the systems' free speech as stated in the First Amendment. In a summary judgement the systems lost. The Court found that these regulations kept competition in the industry balanced and that local broadcasters were realistically in danger of beingrun out of business. The Court's dissenting opinion was on the grounds thatin telling the systems that they had to carry local stations, the governmentwas potentially forcing the systems to broadcast stations with content that they did not support and would otherwise not carry. There was also the argument made that this act might work to the detriment of the local stations.

. . . because cable operators `now carry the vast majority of local stations' and thus, to the extent that the rules have any effect at all, `it will be only to replace the mix chosen by cablecasters--whose livelihoods depend largely on satisfying audience demand--with a mix derived from congressional dictate.

Cable operators felt the same way and lodged an appeal with the Federal Supreme Court. Justice Kennedy, writing for the majority who voted against the cable operators, agreed that cable systems were due some amount of First Amendment protection in light of their business of carrying speech. He admitted that

. . . the must carry rules regulate cable speech in two respects: the rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for cable programmersto compete for carriage on the limited channels remaining. He went on to explain, however, that not every "interference" with free speech is contrary tothe First Amendment.

The issue of content was at the heart of the Court's decision. The basic ideain the center of the First Amendment is that speech is free. One can chooseto publish, broadcast or otherwise disseminate more or less whatever they choose as an individual. An entire government-regulated industry however can either print or not, broadcast or not. They can only discriminate due to contentwithin very small parameters. "Laws that compel speakers to utter or distribute speech bearing a particular message are subject" to rigorous scrutiny whereas "regulations that are unrelated to the content of speech are subject toan intermediate level of scrutiny . . . because in most cases they pose a less substantial risk of excising certain ideas of viewpoints from the public dialogue."
The Court's first order of business then, became to determine whether the issues were based on content. As explained in the decision, laws can either be content-specific, such as those which ban individuals from handing out political statements too close to polling booths during elections although they would be free to hand out statements of other sorts, or content-neutral such as those prohibiting the posting of signs on public property regardless of what they say. Contrary to what cable operators thought, the court ruled that must-carry laws were content-neutral. "Nothing 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. The number of channels a cable operator must set aside depends only on the operator's channel capacity." Likewise, thelaw says that every local channel has the opportunity to request to be carried, regardless of what the channel's message is or if it even has one.
The Court's findings went on to determine that "Congress' overriding objective in enacting must-carry was not to favor programming of a particular subjectmatter, viewpoint, or format, but rather to preserve access to free television programming for the 40 percent of Americans without cable." There was alsothe advertising revenue issue and in this too, the Court found that it wouldbe too easy for cable operators to eliminate a major segment of their competition by simply not carrying local channels. The Court found that "the provisions are designed to guarantee the survival of a medium that has become a vital part of the Nation's communication system, and to ensure that every individual with a television set can obtain access to free television programming."It is important to note, that in his decision, Justice Kennedy noted that hedid not feel that cable had been in the marketplace long enough to clearly judge the issue.
Back to District Court
Having found the legislation legal by a 5-4 vote, the Supreme Court sent thecase back to the district court to see if they could determine whether the must-carry regulations "advanced an important governmental interest." The district court remained divided but ruled by a majority that Congress had enough information to come to the conclusion on 31 March 1997 that without the must-carry regulations that local broadcasters would be put in dire danger of losing their livelihoods.
Related Cases

• United States v. O'Brien, 391 U.S. 367 (1968).
  
• Red Lion Broadcasting, Co. v. FCC, 395 U.S. 367 (1969).
  
• Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974).