248
O'Connor, J., dissenting
of analysis. Were it to do so, the Court would have to recognize that all but one of the commercial broadcast stations cited as claiming a curtailment in operations or a decline in revenue was broadcasting within an area of dominant influence that experienced net growth, or at least no net reduction, in the number of commercial broadcast stations operating during the non-must-carry era. See Besen Declaration, Exh. 11 (App. 861-869); cf. JSCR ¶ 618 (App. 1553) (station claiming harm within Cedar Rapids market, with four commercial broadcast stations in 1987 and five in 1992); id., ¶ 620 (App. 1554) (station claiming harm within Tulsa market, with seven commercial broadcast stations in 1987 and 1992); id.,
¶ 623 (App. 1554) (station claiming harm within New York City market, with 14 commercial broadcast stations in 1987 and 1992); id., ¶ 692 (App. 1591) (station claiming harm within Salt Lake City market, with five commercial broadcast stations in 1987 and eight in 1992); id., ¶ 695 (App. 1593- 1594) (station claiming harm within Honolulu market, with seven commercial broadcast stations in 1987 and nine in 1992); id., ¶ 703 (App. 1599) (station claiming harm within Grand Rapids market, with seven commercial broadcast stations in 1987 and 1992). Indeed, in 499 of 504 areas of dominant influence nationwide, the number of commercial broadcast stations operating in 1992 equaled or exceeded the number operating in 1987. Besen Declaration, Exh. 11 (App. 861-869). Only two areas of dominant influence experienced a reduction in the number of noncommercial broadcast stations operating between 1987 and 1992. Ibid. (App. 871-880).
In sum, appellees are not entitled to summary judgment on whether Congress could conclude, based on reasonable inferences drawn from substantial evidence, that " 'absent legislative action, the free local off-air broadcast system is endangered.' " Ante, at 209 (quoting S. Rep. No. 102-92, at 42). The Court acknowledges that the record contains much evidence of the health of the broadcast industry, including
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