Cite as: 520 U. S. 180 (1997)
Syllabus
ators to set aside channels for both broadcasters and cable programmers to use at a regulated price; subsidies for broadcasters; and a system of antitrust enforcement or an administrative complaint procedure—reveals that none of them is an adequate alternative to must-carry for achieving the Government's aims. Because it has received only the most glancing attention from the District Court and the parties, prudence dictates that this Court not reach appellants' challenge to the Cable Act provision requiring carriage of low power stations in certain circumstances. Pp. 213-225.
Justice Kennedy, joined by The Chief Justice, Justice Stevens, and Justice Souter, and by Justice Breyer in part, concluded in Part II-A-1 that the expanded record contains substantial evidence to support Congress' conclusion that enactment of must-carry was justified by a real threat to local broadcasting's economic health. The harm Congress feared was that broadcast stations dropped or denied cable carriage would be at a serious risk of financial difficulty, see Turner, 512 U. S., at 667, and would deteriorate to a substantial degree or fail altogether, id., at 666. The evidence before Congress, as supplemented on remand, indicated, inter alia, that: cable operators had considerable and growing market power over local video programming markets in 1992; the industry's expanding horizontal and vertical integration would give cable operators increasing ability and incentive to drop, or reposition to less-viewed channels, independent local broadcast stations, which competed with the operators for audiences and advertisers; significant numbers of local broadcasters had already been dropped; and, absent must-carry, additional stations would be deleted, repositioned, or not carried in an attempt to capture their local advertising revenues to offset waning cable subscription growth. The reasonableness of Congress' predictive judgment is also supported by additional evidence, developed on remand, indicating that the percentage of local broadcasters not carried on the typical cable system is increasing, and that the growth of cable systems' market power has proceeded apace, better enabling them to sell their own reach to potential advertisers, and to deny broadcast competitors access to all or substantially all the cable homes in a market area. Pp. 196-208.
Justice Breyer, although agreeing that the statute satisfies the intermediate scrutiny standard set forth in United States v. O'Brien, 391 U. S. 367, 377, rested his conclusion not upon the principal opinion's analysis of the statute's efforts to promote fair competition, but rather upon its discussion of the statute's other two objectives. He therefore joined the opinion of the Court except insofar as Part II-A-1 relies on an anticompetitive rationale. Pp. 225-229.
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