668
Opinion of Kennedy, J.
must-carry on the speech of cable operators and cable programmers—i. e., the extent to which cable operators will, in fact, be forced to make changes in their current or anticipated programming selections; the degree to which cable programmers will be dropped from cable systems to make room for local broadcasters; and the extent to which cable operators can satisfy their must-carry obligations by devoting previously unused channel capacity to the carriage of local broadcasters. The answers to these and perhaps other questions are critical to the narrow tailoring step of the O'Brien analysis, for unless we know the extent to which the must-carry provisions in fact interfere with protected speech, we cannot say whether they suppress "substantially more speech than . . . necessary" to ensure the viability of broadcast television. Ward, 491 U. S., at 799. Finally, the record fails to provide any judicial findings concerning the availability and efficacy of "constitutionally acceptable less restrictive means" of achieving the Government's asserted interests. See Sable Communications, supra, at 129.
In sum, because there are genuine issues of material fact still to be resolved on this record, we hold that the District Court erred in granting summary judgment in favor of the Government. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250 (1986). Because of the unresolved factual questions, the importance of the issues to the broadcast and cable industries, and the conflicting conclusions that the parties contend are to be drawn from the statistics and other evidence presented, we think it necessary to permit the parties to develop a more thorough factual record, and to allow the District Court to resolve any factual disputes remaining, before passing upon the constitutional validity of the challenged provisions.
The judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
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