Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 76 (1997)

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Cite as: 520 U. S. 180 (1997)

O'Connor, J., dissenting

behavior, but also as a means of protecting "marginal" or "vulnerable" stations, even if they are not threatened by anticompetitive behavior. The principal opinion chooses not to acknowledge this interest explicitly, although Justice Breyer does. Even if this interest were content neutral— which it is not—subsidies would address it directly. The Court adopts appellees' position that subsidies would serve a "very different purpose than must-carry. Must-carry is intended not to guarantee the financial health of all broadcasters, but to ensure a base number of broadcasters survive to provide service to noncable households." Ante, at 222; see Brief for Federal Appellees 47. To the extent that Justice Breyer sees must-carry as a "speech-enhancing" measure designed to guarantee over-the-air broadcasters "extra dollars," ante, at 226, it is unclear why subsidies would not fully serve that interest. In any event, I take appellees' concern to be that subsidies, unlike must-carry, would save some broadcasters that would not survive even with cable carriage. There is a straightforward solution to this problem. If the Government is indeed worried that imprecision in allocation of subsidies would prop up stations that would not survive even with cable carriage, then it could tie subsidies to a percentage of stations' advertising revenues (or, for public stations, member contributions), determined by stations' access to viewers. For example, in a broadcast market where 50 percent of television-viewing households subscribe to cable, a broadcaster has access to all households without cable as well as to those households served by cable systems on which the broadcaster has secured carriage. If a broadcaster is carried on cable systems serving only 20 percent of cable households (i. e., 10 percent of all television-viewing households in the broadcast market), the broadcaster has access to 60 percent of the television-viewing households. If the Government provided a subsidy to compensate for the loss in advertising revenue or member contributions that a station would sustain by virtue of its

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