TURNER BROADCASTING SYSTEM, INC. v. FCC 512 U.S. 622 (1994)

The development of the cable television industry has revolutionized the way most Americans watch television. Until the 1960s, television signals were broadcast through the air into people's homes and picked up by receivers in their television sets. Such signals used the electromagnetic spectrum, which has limited frequencies, and could only travel relatively short distances. Because of these technological limitations, Congress, through the Federal Communications Commission, claimed the power to regulate broadcasting in order to license and control the use of the limited number of frequencies or "channels" and to impose certain content restrictions and public interest obligations on the broadcasters given those licenses. In a 1969 case, red lion broadcasting co. v. fcc, the Supreme Court rejected a first amendment challenge to those restrictions. The Court reasoned that the law was designed to expand, not restrict, the diversity of programming and was thus consistent with freedom of speech principles.

Because of the short range of broadcast signals, however, viewers could only receive programs transmitted by local broadcasting "stations," and people in remote areas often received very poor signal reception. Cable television revolutionized this system. First, cable transmits video signals through fiberoptic cables, not electromagnetic frequencies, and thus has the capacity to carry or "broadcast" dozens, if not hundreds, of different channels at one time. Second, cable facilities can easily send their programs to distant places because they transmit their signals through cable wires, rather than through the air.

Initially, cable was primarily used to improve reception of broadcast stations in crowded urban or remote rural areas. But because of the large number of channels a cable system could transmit, the cable industry developed many new sources of programming. Because of better reception and broader programming, cable soon became the source of transmission of programming to approximately 60 percent of the households in America, although, unlike broadcasting, subscribers had to pay a monthly fee for the cable service.

Broadcasters felt threatened by this new source of programming and, more importantly, by the control that cable operators had over the broadcasters' ability to reach their audience. The broadcasters were dependent on cable operators to carry their programs, yet, they were in competition with the cable industry over channels and programming. Cable operators had a "chokehold" over broadcasters and television programming, threatening the future of "free T.V."

At the urging of the broadcast industry and others, Congress sought to address such concerns in the Cable Television Consumer Protection and Competition Act of 1992. That law mandated that all cable operators had to carry a reasonable number or percentage of "local commercial television stations" and local "noncommercial educational television stations" among the channels on their cable systems. The larger the number of channels, the more broadcast stations the system had to carry. Overall, the result was that approximately one-third of the channels on any cable system had to be made available for use by local commercial or noncommercial broadcast stations.

This " must carry " law was promptly challenged by cable system operators and cable channel programmers as violating their free speech rights. The cable operators claimed they were being forced by government to carry programming against their will. The programmers claimed that, as a consequence, there would be fewer cable channels available for their programming. In Turner Broadcasting System v. FCC, the Supreme Court held that those "must carry" rules passed constitutional muster. The Solomon-like decision contained something for both sides of the debate.

First, the Court gave the cable industry an important victory by clearly holding that the First Amendment broadly protects cable operators and programmers and affords them powerful rights of speech and press. In doing so, the Court rejected the government's contention that the permissible regulation of cable should be measured by the same deferential approach that marked the Red Lion framework for assessing the rights of broadcasters. The Court reasoned that greater deference to governmental regulation is premised on the spectrum scarcity that uniquely affects broadcasting and which does not obtain in cable technology. Accordingly, normal First Amendment standards apply in deciding whether the restrictions and requirements of the "must carry" law are constitutional.

Nevertheless, under those standards, the strictest judicial scrutiny is reserved for those rules that are content-based, rather than content-neutral. Here, the regulation was premised on the medium, not the message. Congress required cable operators to carry commercial and noncommercial broadcast stations not because of any favored content communicated by those media, but to insure that those media remain healthy and diverse in order to serve the 40 percent of American households that, by necessity or choice, prefer to rely on free television as their source of programming. Nor did the Court find any persuasive evidence that Congress was trying to discriminate against the viewpoints allegedly associated with cable programming or in favor of the viewpoints purportedly associated with broadcasting. Rather, Congress was validly concerned with the "chokehold" capacity of cable operators to shut out broadcasters. (The dissenters, however, contended that Congress did see content differences between the two separate media and was impermissibly preferring one set of viewpoints over another.)

As a result, said the Court, the content-neutral, "must carry" rules would be judged by an intermediate standard of First Amendment review, with the critical question being whether those requirements were important to protecting broadcasting strength and diversity. On this point, the Justices concluded that more evidence was necessary on how vulnerable the broadcast industry really was and whether the special protections afforded it were justified. Accordingly, the Court sent the matter back to the lower courts for the development of a more complete record on those issues. In 1997, the case returned to the Court. The majority ruled that the justifications for the law were valid and survived the standard of intermediate scrutiny; the four dissenters, however, insisted that strict scrutiny was warranted by the law's content-based purposes and that, even under intermediate scrutiny, the government had failed to demonstrate threats to the broadcast industry that would be cured by the "must carry" rules.

Joel M. Gora
(2000)

Bibliography

Maseth, Michael W. 1995 Comment: The Erosion of First Amendment Protections of Speech and Press: The "Must Carry" Provisions of the 1992 Cable Act. Capital University Law Review 24:423–456.

Meyerson, Michael I. 1995 Authors, Editors, and Uncommon Carriers: Identifying the "Speaker" Within the New Media. Notre Dame Law Review 71:79–125.

Symposium 1997 Telecommunications Law: Unscrambling the Signals, Unbundling the Laws. Columbia Law Review 97:819–1201.