244
O'Connor, J., dissenting
this: even the lowest rated commercial stations attract viewers, and the lowest rated noncommercial stations attract members"). The Court suggests that it is appropriate to disregard the low noncable viewership of stations denied carriage, because in some instances cable viewers preferred the dropped broadcast channels to the cable channels that replaced them. Ante, at 206. The viewership statistics in question, as well as their significance, are sharply disputed, but they are also irrelevant. The issue is whether the Government can demonstrate a substantial interest in forced carriage of certain broadcast stations, for the benefit of viewers who lack access to cable. That inquiry is not advanced by an analysis of relative cable household viewership of broadcast and cable programming. When appellees are pressed to explain the Government's "substantial interest" in preserving noncable viewers' access to "vulnerable" or "marginal" stations with "relatively small" audiences, it becomes evident that the interest has nothing to do with anticompetitive behavior, but has everything to do with content—preserving "quality" local programming that is "responsive" to community needs. Brief for Federal Appellees 13, 30. Indeed, Justice Breyer expressly declines to accept the anticompetitive rationale for the must-carry rules embraced by the principal opinion, and instead explicitly relies on a need to preserve a "rich mix" of "quality" programming. Ante, at 226 (opinion concurring in part).
3
I turn now to the evidence of harm to broadcasters denied carriage or repositioned. The Court remanded for a determination whether broadcast stations denied carriage would be at " 'serious risk of financial difficulty' " and would " 'deteriorate to a substantial degree or fail altogether.' " Ante, at 208 (quoting Turner, 512 U. S., at 667, 666). The Turner plurality noted that there was no evidence that "local broadcast stations have fallen into bankruptcy, turned in their
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