Cite as: 520 U. S. 180 (1997)
Opinion of Kennedy, J.
lees introduced evidence drawn from an empirical study concluding the 1988 FCC survey substantially underestimated the actual number of drops (Declaration of Tom Meek ¶¶ 5, 25, 36 (Meek Declaration) (App. 619, 625, 626)), and the non-carriage problem grew steadily worse during the period without must-carry. By the time the Cable Act was passed, 1,261 broadcast stations had been dropped for at least one year, in a total of 7,945 incidents. Id., ¶¶ 12, 15 (App. 621, 622).
The dissent cites evidence indicating that many dropped broadcasters were stations few viewers watch, post, at 242, and it suggests that must-carry thwarts noncable viewers' preferences, ibid. Undoubtedly, viewers without cable—the immediate, though not sole, beneficiaries of efforts to preserve broadcast television—would have a strong preference for carriage of any broadcast program over any cable program, for the simple reason that it helps to preserve a medium to which they have access. The methodological flaws in the cited evidence are of concern. See post, at 243. Even aside from that, the evidence overlooks that the broadcasters added by must-carry had ratings greater than or equal to the cable programs they replaced. Second Meek Declaration
¶ 23 (App. 1863) (ratings of broadcasters added by must-carry "are generally higher than that achieved . . . by their equivalent cable counterparts"); Meek Declaration ¶ 21, at 11-12 (Record, DAE Vol. II.A, Exh. 2); see also Hearings on Cable Television Regulation, at 880 (statement of James Hedlund) ("[I]n virtually every instance, the local [broadcast] stations shifted are more popular . . . than the cable program services that replace them"); JSCR ¶¶ 497-510 (App. 1505- 1509) (stations dropped before must-carry generally more popular than cable services that replaced them). (Indeed, in the vast majority of cases, cable systems were able to fulfill their must-carry obligations using spare channels, and did not displace cable programmers. See Report to Counsel for National Cable Television Association Carriage of Must-
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