Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)

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appeal from the united states district court for the district of columbia

No. 93-44. Argued January 12, 1994—Decided June 27, 1994

Concerned that a competitive imbalance between cable television and over-the-air broadcasters was endangering the broadcasters' ability to compete for a viewing audience and thus for necessary operating revenues, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 of the Act require cable television systems to devote a specified portion of their channels to the transmission of local commercial and public broadcast stations. Soon after the Act became law, appellants, numerous cable programmers and operators, challenged the constitutionality of the must-carry provisions. The District Court granted the United States and intervenor-defendants summary judgment, ruling that the provisions are consistent with the First Amendment. The court rejected appellants' argument that the provisions warrant strict scrutiny as a content-based regulation and sustained them under the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U. S. 367, concluding that they are sufficiently tailored to serve the important governmental interest in the preservation of local broadcasting.

Held: The judgment is vacated, and the case is remanded. 819 F. Supp. 32, vacated and remanded.

Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, and III-A, concluding that the appropriate standard by which to evaluate the constitutionality of the must-carry provisions is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. Pp. 636-664. (a) Because the must-carry provisions impose special obligations upon cable operators and special burdens upon cable programmers, heightened First Amendment scrutiny is demanded. The less rigorous standard of scrutiny now reserved for broadcast regulation, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, should not be extended to cable regulation, since the rationale for such review—the dual problems of spectrum scarcity and signal interference—does not apply in the context of cable. Nor is the mere assertion of dysfunction or failure in the cable market, without more, sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media.

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