236
O'Connor, J., dissenting
The District Court resolved this case on cross-motions for summary judgment. As the Court recognizes, ante, at 211, the fact that the evidence before Congress might have been in conflict will not necessarily preclude summary judgment upholding the must-carry scheme. The question, rather, is what the undisputed facts show about the reasonableness of Congress' conclusions. We are not, however, at liberty to substitute speculation for evidence or to ignore factual disputes that call the reasonableness of Congress' findings into question. The evidence on remand demonstrates that appellants, not appellees, are entitled to summary judgment.
A
The principal opinion devotes substantial discussion to the structure of the cable industry, see ante, at 197, 206-207, a matter that was uncontroversial in Turner. See, e. g., 512 U. S., at 627-628, 632-633, 639-640; id., at 684 (O'Connor, J., concurring in part and dissenting in part). As of 1992, cable already served 60 percent of American households. I agree with the observation that Congress could reasonably predict an increase in cable penetration of the local video programming market. Ante, at 197. Local franchising requirements and the expense of constructing a cable system to serve a particular area make it possible for cable franchisees to exercise a monopoly over cable service. 512 U. S., at 633. Nor was it ever disputed that some cable system operators own large numbers of systems nationwide, or that some cable systems are affiliated with cable programmers. Turner Broadcasting v. FCC, 819 F. Supp. 32, 39-40 (DC 1993) (opinion of Jackson, J.); id., at 57 (Williams, J., dissenting); Plaintiffs' Response to NAB's Statement of Material Facts ¶ 4 (Feb. 12, 1993) (App. in Turner, O. T. 1993, No. 93-44, p. 186); Plaintiff Time Warner's Statement of Material Facts as to Which There Is No Genuine Issue ¶¶ 5, 12 (App. in Turner, O. T. 1993, supra, at 198, 199).
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