246
O'Connor, J., dissenting
Finance of the House Committee on Energy and Commerce, 101st Cong., 2d Sess. (May 16, 1990)) (CR Vol. I.L, Exh. 22, at CR 08828); JSCR ¶¶ 759-760 (App. 1629-1630) (citing Comments of INTV in MM Docket No. 85-349, at 73 (Jan. 29, 1986)) (CR Vol. I.BB, Exh. 162, at CR 15901-15902); JSCR
¶ 758 (App. 1628) (citing Comments of NAB in MM Docket No. 85-349, at 23-24 (Jan. 29, 1986)) (CR Vol. I.BB, Exh. 165, at CR 16183-16184); JSCR ¶¶ 718, 724, 751-752, 754-755, 761-762 (App. 1605-1607, 1609-1610, 1624-1627, 1630-1631) (citing Joint Petition for Reconsideration in MM Docket No. 85-349 (Dec. 17, 1986)) (CR Vol. I.DD, Exh. 183, at CR 16726-16839); JSCR ¶¶ 738-739, 764, 767 (App. 1617-1618, 1632-1634) (citing Petition for Reconsideration by Adelphia Communications Corp. et al. in MM Docket No. 85-349, at 27-32 (Jan. 12, 1987)) (CR Vol. I.DD, Exh. 184, at CR 16892- 16897). The Court notes the importance of deferring to congressional judgments about the "interaction of industries undergoing rapid economic and technological change." Ante, at 196. But this principle does not require wholesale deference to judgments about rapidly changing technologies that are based on unquestionably outdated information.
The Court concludes that the evidence on remand meets the threshold of harm established in Turner. The Court begins with the "[c]onsiderable evidence" that broadcast stations denied carriage have fallen into bankruptcy. Ante, at 209. The analysis, however, does not focus on features of the market in which these stations were located or on the size of the audience they commanded. The "considerable evidence" relied on by the Court consists of repeated references to the bankruptcies of the same 23 commercial independent stations—apparently, new stations. See JSCR
¶¶ 659, 671-672, 676, 681 (App. 1576, 1581-1582, 1584, 1587); Hearing on Competitive Issues, at 548 (statement of Milton Maltz) (CR Vol. I.C, Exh. 8, at CR 01887). Because the must-carry provisions have never been justified as a means of enhancing broadcast television, I do not understand the
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