Cite as: 520 U. S. 180 (1997)
O'Connor, J., dissenting
gional Office of the Federal Trade Commission, p. 3 (Nov. 26, 1991) (App. 163); see also Declaration of Stanley M. Besen (Besen Declaration) (App. 808, 818); Second Declaration of Stanley M. Besen (App. 1812) (presenting data that (1) the typical cable subscriber was served by a cable system carrying local broadcast stations accounting for 97 percent of viewing in noncable households; and (2) the typical cable subscriber was served by a cable system carrying 90 percent of all local broadcast stations with any reportable ratings and 30 percent of all local broadcast stations with no reportable ratings).
Appellees claim there are various methodological flaws in each study, including appellants' expert's reliance on Nielsen data to measure viewership shares. A protective order entered by the District Court in this case prevents the parties from contesting the accuracy of such data. App. 321. But appellees—who bear the burden of proof in this case—offer no alternative measure of the viewership in noncable households of stations dropped or denied carriage. Instead, appellees and their experts repeatedly emphasize the importance of preserving "vulnerable" or "marginal" independent stations serving "relatively small" audiences. Brief for Federal Appellees 14, 17, 25, n. 14; NAB Brief 31; see also Deposition of James N. Dertouzos (App. 381) (describing broadcast stations affected by carriage denials as "[s]tations on the margin of cable operator decisionmaking now and in the future"); Deposition of Roger G. Noll (App. 446) (cable operators' advertising incentives will operate "at the margin" and affect "weaker stations, UHF independent stations"); id., at 450 (stations dropped will be "[t]hose that have the lowest audience ratings combined with the absence of a specific target audience"); Deposition of Harry Shooshan III (App. 477) (must-carry has benefited "stations that were not as strong, that were marginal"); Reply Declaration of Roger G. Noll ¶ 19 (App. 2009) ("While frequently . . . the stations not carried by cable systems have low ratings, the point is
243
Page: Index Previous 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 NextLast modified: October 4, 2007