Turner Broadcasting v. FCC, Civ. A. No. 92-2247

Decision Date12 December 1995
Docket Number92-2495,92-2494,Civ. A. No. 92-2247,92-2292 and 92-2558.
Citation910 F. Supp. 734
PartiesTURNER BROADCASTING, et al., Plaintiff, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendant.
CourtU.S. District Court — District of Columbia

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Bruce Douglas Sokler, Mintz, Levin, Cohn, Ferris, Washington, DC, James R. Miller, Jr., Miller, Miller & Canby, Rockville, MD, for Turner Broadcasting Systems, Inc., Arts & Entertainment Network, Black Entertainment Television, Inc., E! Entertainment Television, Inc., Hearst/ABE-Viacom Entertainment Services, International Family Entertainment, Inc., National Cable Satellite Corp., QVC Network, Inc., The Travel Channel, Inc., USA Networks in No. 92-2247.

Theodore C. Hirt, Michael Sitcov, John Russell Tyler, U.S. Department of Justice, Civil Division, Washington, DC, for Federal Communications Commission, U.S. in Nos. 92-2247, 92-2558, and 92-2992.

Allan Abbot Tuttle, Patton & Boggs, L.L.P., Washington, DC, Peter Van N. Lockwood, Caplin & Drysdale, Washington, DC, for Discovery Communications, Inc., The Learning Channel, Inc. in No. 92-2558.

H. Bartow Farr, III, Klein, Farr, Smith & Taranto, Washington, DC, for National Cable Television Association, Inc., National Cable Television Association, Inc.

John Russell Tyler, U.S. Department of Justice, Civil Division, Washington, DC, for Federal Communications Commission, U.S. in No. 92-2495.

Theodore Case Whitehouse, Brian Conboy, Willkie, Farr & Gallagher, Washington, DC, Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Time Warner Entertainment Company, L.P. in No. 92-2494.

Theodore C. Hirt, John Russell Tyler, U.S. Department of Justice, Civil Division, Washington, DC, for Federal Communications Commission, U.S. in No. 92-2494.

John Pope Cole, Jr., Cole, Raywid & Braverman, Washington, DC, for Daniels Cablevision, Inc.

MEMORANDUM AND ORDER

SPORKIN, District Judge.

This matter comes before this three-judge District Court1 on remand from the Supreme Court of the United States. The central question before the Court is whether the "must-carry" provisions of the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act") violate the First Amendment.2

When the case was originally before the three-judge District Court, the District Court, in a divided opinion, granted summary judgment in favor of the Government and the other intervenor-defendants, ruling that the "must-carry" provisions challenged by the Plaintiffs (consisting of both cable operators and cable programmers) survived under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Turner Broadcasting System, Inc. v. F.C.C., 819 F.Supp. 32 (D.D.C.1993) (Williams, J., dissenting; Sporkin, J., concurring).

The Supreme Court, while upholding the majority's decision that the content-neutral "must-carry" provisions should be subjected to the intermediate level of scrutiny under the First Amendment, remanded the case to the District Court for further development of the factual record. Pursuant to that remand order, the case now comes before the Court on cross-motions for summary judgment.

THE REMAND

Under the intermediate level of scrutiny set forth in O'Brien, a content-neutral regulation will survive a First Amendment challenge 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.
Turner Broadcasting System, Inc. v. F.C.C., ___ U.S. ___, ___, 114 S.Ct. 2445, 2469, 129 L.Ed.2d 497 (1994) (quoting O'Brien at 377, 88 S.Ct. at 1679).

In enacting the must-carry provisions, Congress found that the viability of the local broadcast industry would be "seriously jeopardized" without the protections afforded by the provisions. 1992 Cable Act § 2(a)(16). Congress asserted that three important government interests were being served by the rules: 1) preserving the benefits of free, over-the-air local broadcast television; 2) promoting the widespread dissemination of information from a multiplicity of sources; and 3) promoting fair competition in the market for television programming. Turner, at ___, 114 S.Ct. at 2469, (citing S.Rep.No. 102-92, p. 58, (1991); H.R.Rep. No. 102-628, 63 (1992) U.S.Code Cong. & Admin.News 1992, pp. 1133, 1191; 1992 Cable Act, §§ 2(a)(8), (9), and (10).

The Supreme Court recognized that the government's asserted interests are unrelated to the suppression of free expression and are indeed important. Id. at ___, 114 S.Ct. at 2469. The Court held that the government must still show that the must-carry provisions designed to protect local over-the-air broadcasters will "in fact advance those interests." Id. at ___, 114 S.Ct. at 2470. In defending a regulation, the government "must do more than simply `posit the existence of the disease sought to be cured.' It 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." Id. (citations omitted).

The Supreme Court found that in order for the government to meet its burden that the viability of the local broadcast industry would be jeopardized in the absence of "must-carry" rules the government needed to develop the factual record on two points: "1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and 2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether." Id. at ___, 114 S.Ct. at 2471.

With respect to the narrow tailoring step of the O'Brien test, the Court also found factual gaps in the record. In order to determine whether the must-carry rules "burden substantially more speech than is necessary to further the government's legitimate interests," the Court found that the factual record needed to be supplemented with respect to "the extent to which the must-carry provisions in fact interfere with protected speech". Id. at ___, 114 S.Ct. at 2472 (quoting Ward, 491 U.S. at 799, 109 S.Ct. at 2758). In addition, the Court held that further findings were necessary concerning the availability and efficacy of "constitutionally acceptable less restrictive means of achieving the government's asserted interests." Id. at ___, 114 S.Ct. at 2472 (quoting Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 129, 109 S.Ct. 2829, 2838, 106 L.Ed.2d 93 (1989)).

The Supreme Court indicated that this Court's inquiry is not limited to the record before Congress at the time that it enacted the 1992 Cable Act. This Court is entitled to consider "additional evidence" that bears on the factual issues presented by this case. Id. at ___, 114 S.Ct. at 2472 ("a more substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied or the introduction of some additional evidence" on the harm to local broadcasters in the absence of the must-carry provisions is necessary to a determination of the Constitutional challenge).

STANDARD OF REVIEW

The Supreme Court clearly dictated that this Court is to employ a deferential standard of review in analyzing the constitutionality of the "must-carry" provisions. Turner, at ___, 114 S.Ct. at 2471 ("We agree that courts must accord substantial deference to the predictive judgments of Congress.") Congress' judgments "should not be ignored" just because the "`appellants cast their claims under the umbrella of the First Amendment.'" Id. (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103, 93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973)). This Court is not "to reweigh the evidence de novo, or to replace Congress' factual predictions with its own." Id. This Court's role is limited to assuring "that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. (citing Century Communications Corp. v. FCC, 835 F.2d 292, 304 (D.C.Cir.1987)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

Not only does the Constitution's separation of powers doctrine underlying this nation's success dictate that the review be deferential, but practical considerations also necessitate such review. As the Supreme Court recognized, "As an institution ... Congress is far better equipped than the judiciary to `amass and evaluate the vast amounts of data' bearing upon an issue as complex and dynamic as that presented here." Id. (citations omitted).3 "Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable." Id. at ___, 114 S.Ct. at 2471.4

This Court's initial role in considering the cross-motions for summary judgment is to determine whether there are any genuine issues of material fact which would necessitate a trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no dispute among the parties that there was conflicting testimony and evidence before Congress on the need for and the efficacy of the must-carry provisions.

Given the reams of paper submitted to this Court, there can be no doubt but that the parties' experts disagree about the facts underlying Congress' predictive judgment that the broadcast industry was in jeopardy. For example, experts disagree...

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