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Opinion of O'Connor, J.
review—for example, "the degree to which cable programmers will be dropped from cable systems to make room for local broadcasters," ibid.—depend upon predictions about the future voluntary actions of entities who are parties to this case. At best, a remand for consideration of such factors will require the District Court to engage in speculation; it may actually invite the parties to adjust their conduct in an effort to affect the result of this litigation (perhaps by opting to drop cable programs rather than seeking to increase total channel capacity). The must-carry provisions may ultimately prove an ineffective or needlessly meddle-some means of achieving Congress' legitimate goals. However, such a conclusion could be confidently drawn, if ever, only after the must-carry scheme has been tested by experience. On its face, that scheme is rationally calculated to redress the dangers that Congress discerned after its lengthy investigation of the relationship between the cable and broadcasting industries.
It is thus my view that we should affirm the judgment of the District Court. Were I to vote to affirm, however, no disposition of this appeal would command the support of a majority of the Court. An accommodation is therefore necessary. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Accordingly, because I am in substantial agreement with Justice Kennedy's analysis of the case, I concur in the judgment vacating and remanding for further proceedings.
Justice O'Connor, with whom Justice Scalia and Justice Ginsburg join, and with whom Justice Thomas joins as to Parts I and III, concurring in part and dissenting in part.
There are only so many channels that any cable system can carry. If there are fewer channels than programmers who want to use the system, some programmers will have to be dropped. In the must-carry provisions of the Cable
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