228
Breyer, J., concurring in part
tleneck that controls the range of viewer choice (whether or not it uses any consequent economic power for economically predatory purposes), and that some degree—at least a limited degree—of governmental intervention and control through regulation can prove appropriate when justified under O'Brien (at least when not "content based"). Ante, at 197, 208-213; see also Defendants' Joint Statement of Evidence before Congress ¶¶ 12-21, 31-59 (App. 1254-1258, 1262-1274) (JSCR); Cable Television Consumer Protection and Competition Act of 1992, § 2(a)(2), P. L. 102-385, 106 Stat. 1460. Cf. Red Lion, supra, at 377-378, 387-401; 47 CFR §§ 73.123, 73.300, 73.598, 73.679 (1969) (Federal Communications Commission regulations upheld in Red Lion); United Broadcasting Co., 10 F. C. C. 515 (1945); New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). I also agree that, without the statute, cable systems would likely carry significantly fewer over-the-air stations, ante, at 191, 202- 205, that station revenues would therefore decline, ante, at 208-213, and that the quality of over-the-air programming on such stations would almost inevitably suffer, e. g., JSCR
¶¶ 596, 704-706 (App. 1544, 1600-1601); Rebuttal Declaration of Roger G. Noll ¶¶ 5, 11, 34, 38 (App. 1790, 1793, 1804-1805, 1806). I agree further that the burden the statute imposes upon the cable system, potential cable programmers, and cable viewers is limited and will diminish as typical cable system capacity grows over time.
Finally, I believe that Congress could reasonably conclude that the statute will help the typical over-the-air viewer (by maintaining an expanded range of choice) more than it will hurt the typical cable subscriber (by restricting cable slots otherwise available for preferred programming). The latter's cable choices are many and varied, and the range of choice is rapidly increasing. The former's over-the-air choice is more restricted; and, as cable becomes more popular, it may well become still more restricted insofar as the over-the-air market shrinks and thereby, by itself, becomes
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