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April 8, 1993


The opinion of the court was delivered by: THOMAS PENFIELD JACKSON



 Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (to be codified at 47 U.S.C. §§ 534 & 535) ("the 1992 Cable Act" or "the Act") require cable television system operators to carry the video signals of certain commercial and non-commercial educational television broadcast stations requesting that their signals be carried. The plaintiffs in these five consolidated lawsuits contend that these mandatory carriage (or "must-carry") provisions violate their First Amendment rights. Upon consideration of the entire record, *fn1" the Court holds that sections 4 and 5 of the 1992 Cable Act do not violate the plaintiffs' First Amendment rights.


 On October 5, 1992, Congress overrode a Presidential veto to enact the 1992 Cable Act. The Act subjects the cable industry to extensive regulation. Among other things, it subjects certain cable system operators to rate regulation by the FCC and by municipal franchising authorities; it imposes restrictions on distributors of cable programming that are affiliated with cable operators; and it directs the FCC to promulgate regulations imposing minimum technical standards for operators of cable systems.

 Sections 4, 5, and 6 of the Act limit the freedom of cable operators to refuse to carry the signals of local broadcast stations, and, as a corollary, prevent cable operators from carrying broadcast signals without a broadcaster's consent. *fn2" The plaintiffs' constitutional challenge to these three sections is the matter presently to be addressed by this opinion.

 Section 4 of the Act requires all cable system operators with more than 12 channels to carry, upon request, the signals of licensed "local" commercial broadcast television stations whose signal is received over-the-air in the same television market as the cable system. *fn3" The operator need not devote more than one-third of its active useable channels to deliver local broadcast signals, but if there are not enough local broadcast stations to fill the one-third set-aside, the operator must carry the signal of one or two "qualified" low power broadcast stations. *fn4" Cable systems with 12 or fewer channels must deliver the signals of at least three local commercial broadcast stations unless the cable system has 300 or fewer subscribers, in which case it is not subject to the requirements of section 4 at all. An operator must carry the entire programming schedule of each commercial station it is required to carry, and it may not accept or request payment for doing so. Every commercial broadcast station having a right to mandatory carriage must be carried by the cable operator, at the station's election, on its current over-the-air channel position, at the channel position it occupied on July 19, 1985, or at the channel position it occupied on January 1, 1992.

 Section 5 of the Act requires operators of cable systems able to deliver signals on more than 36 channels to carry the signals of every local non-commercial educational broadcast television station requesting carriage, *fn5" unless the educational station's programing substantially duplicates that of another station carried by the system. Systems with 12 or fewer channels must carry one qualified non-commercial station, and systems having 12 to 36 channels must carry between one and three such stations. Section 5, like section 4, directs cable system operators to carry the entire programming schedule of the broadcast stations they are required to carry, and similarly prohibits operators from accepting payment in exchange for carriage. Each non-commercial station having a mandatory carriage right must be carried, at its election, on its current over-the-air channel position or on its channel position as of July 19, 1985.

 Section 6 of the Act, which becomes effective on October 5, 1993, prohibits cable operators from retransmitting the signals of any commercial broadcasting station without obtaining the station's consent. In conjunction with section 4, section 6 provides local broadcasters with an option to request mandatory (but uncompensated) carriage on a system or to negotiate a carriage agreement with the operator. (Presumably, cable operators will want to carry the signals of larger, viewer-popular broadcasters and will pay for the privilege; *fn6" less popular broadcasters will be able to force their carriage by making a carriage demand under section 4.).

 On the same day that the 1992 Cable Act became law, Turner Broadcasting System, Inc., the owner of several cable programming operations, brought this case against the FCC and the United States, challenging sections 4, 5, and 6 as unconstitutional under the First Amendment, asking for declaratory and injunctive relief. *fn7" Within the ensuing five weeks, four other plaintiff groups -- comprised of cable system operators and programmers -- brought similar suits seeking similar relief. *fn8" In addition to challenging sections 4, 5 and 6 of the Act, two of these plaintiff groups brought First Amendment challenges to multiple other provisions of the 1992 Act and to certain provisions of the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2782 ("the 1984 Act"). *fn9" This three-judge U.S. District Court ("the Court" or "this Court") was convened pursuant to § 23 of the 1992 Cable Act, which commands that a three-judge court hear "any civil action challenging the constitutionality of section [4] or [5]" of the 1992 Act.

 On November 23, 1992, this Court consolidated these five cases for the "purpose of determining issues related to the constitutionality of sections 4 and 5 of the [Act], and any matters determined to be ancillary thereto." Turner Broadcasting Sys., Inc. v. FCC, CA No. 92-2247, order at 2 (D.D.C. Nov. 23, 1992) (three-judge court). Four of the five plaintiff groups filed comprehensive preliminary injunction motions, but a hearing on those motions as to the must-carry provisions was postponed indefinitely upon the Court's approval of the parties' assent to a "standstill order" proposed by the parties. See id., standstill order (D.D.C. Dec. 9, 1992) (three-judge court). On December 15, 1992, this Court declined to exercise jurisdiction over any claim other than the must-carry claims, see Turner Broadcasting Sys., Inc. v. FCC, 810 F. Supp. 1308 (D.D.C. 1992) (three-judge court). *fn10"

 The matter, i.e., the constitutionality of sections 4 and 5, is now before the Court on the motions for summary judgment of all five plaintiff groups; on the cross-motions for summary judgment of several intervenor-defendants; on the federal defendants' cross-motion to dismiss; on an intervenor-plaintiff's motion for preliminary injunction of sections 4 and 5 on "religion clause" grounds; and on an intervenor-defendant's motion for summary judgment on a cross-claim.


 The plaintiff cable system operators and programmers contend that the must-carry provisions are, on their face, violative of their First Amendment rights to freedom of speech. The primary evil of those provisions, they assert, is that they force cable system operators to devote a portion of their finite signal-carrying capacity to deliver the signals of a privileged class of competing "speakers," i.e., over-the-air broadcasters, thus diminishing the number of channels remaining available to them for other programming they might prefer to carry. Must-carry also violates the First Amendment rights of the operators, they say, because it inhibits the operators' "editorial discretion" to determine what programming messages to provide to their subscribers, *fn11" compelling them perforce to deliver some programming they might otherwise choose not to carry. And the programmers argue that must-carry exalts broadcasters to preferred status as "speakers" by awarding them favored cable channel positions the programmers covet.

 The concept of governmentally ordained mandatory carriage of broadcast signals is not a novel threat to the cable industry. The FCC first began to experiment with must-carry rules in the early 1960s. *fn12" The perceived need for must-carry today is based on the same premise that gave rise to it then: that local broadcast stations, unable to secure carriage on cable systems serving the same viewer markets, will, over time, lose their audiences and perish. Compare 1992 Cable Act § 2(a)(15) and S. Rep. No. 92, 102d Cong., 1st Sess. 42-46 and H.R. Rep. No. 628, 102d Cong., 2d Sess. 50-57 with Rules Re Microwave-Served CATV, Dockets Nos. 14895 and 15233, 38 F.C.C. 683 P. 58-82 (1965). As the audiences of broadcasting stations decline, so the reasoning goes, their advertising revenues will decrease correspondingly. Local over-the-air broadcasting operations, once they become unprofitable, will expire. Cable carriage of local broadcasting was then and is still now thought by its proponents to be essential not merely to ensure the continuing availability of programming with a "local" flavor to cable system subscribers, but also to preserve the vitality of a free source of over-the-air programming to television viewers unwilling or unable to obtain a cable connection.

 Not surprisingly, the parties have expended considerable effort and resources arguing over the level of First Amendment scrutiny to be applied to speech regulation in the cable context. The plaintiffs contend that the must-carry provisions must be subjected to exacting First Amendment scrutiny; if they are not per se unconstitutional, they are assuredly permissible only if found to have been precisely drawn to serve a compelling government interest, and to go no further. See, e.g., Sable Communications v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983). The defendants respond that if the First Amendment is implicated at all in this case, the must-carry provisions need only be judged by the interest-balancing traditionally applied to content-neutral speech regulation or legislation ostensibly unrelated to expression that is discovered to impose incidental burdens on speech. The nature of this inquiry, originating in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), and refined in Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989), is to uphold such regulation when shown to promote a significant government interest and not to burden substantially more speech than necessary to vindicate that interest. Rock Against Racism, 491 U.S. at 799.


 In 1989, Congress began the first in a series of several hearings to assess the video programming distribution landscape in light of the 1984 Cable Act. *fn13" After an exhaustive factfinding process including hearings held over three years, *fn14" the 1992 Act was passed. *fn15" Congress' principal finding was that, for a variety of reasons, concentration of economic power in the cable industry was preventing non-cable programmers from effectively competing for the attention of a television audience. See 1992 Cable Act §§ 2(a)(2), (4), & (15). See generally 1992 Cable Act § 2(a); 1991 S. Rep. No. 92; 1992 H.R. Rep. No. 628, 102d Cong., 2d Sess. (1992); H.R. Rep. No. 862 (conference report).

 Congress specifically found that cable had become the "dominant nationwide video medium." 1992 Cable Act § 2(a)(3); see 1991 S. Rep. No. 92 at 3. Almost 56,000,000 households -- 60 percent of the households with televisions -- receive cable television, 1992 Cable Act § 2(a)(3), and cable service is available to almost 90% of the nation, 1991 S. Rep. No. 92 at 3. In those homes receiving video signals by cable, cable has all but supplanted over-the-air broadcast television reception. 1992 Cable Act § 2(a)(17).

 Congress also found that despite the dominance of cable, there is insufficient competition within the cable industry. First, there is little competition between cable operators. For many reasons "including local franchising requirements and the extraordinary expense of constructing more than one cable television system to serve a particular geographic area," most regions of the country are served by one cable operator only. 1992 Cable Act § 2(a)(2). *fn16" Second, the industry has become horizontally concentrated -- many operators share common ownership. See 1992 Cable Act § 2(a)(4). *fn17" Third, the industry is becoming vertically integrated. 1992 Cable Act § 2(a)(5). Many large entities that operate cable franchises also own and operate programming enterprises. Id.; see also FCC Report, supra note 16, at PP 77-80.

 Congress determined that geographic monopolization, horizontal concentration and vertical integration have created barriers to entry for non-cable programmers, primarily broadcasters, attempting to obtain carriage on cable. Vertical integration contributes to this cable "bottleneck" by providing cable operators with economic incentive to grant affiliated programmers access to their systems while denying it to others. 1992 Cable Act § 2(a)(5). Similarly, horizontal concentration and the absence of effective competition among operators have obstructed broadcaster access by creating a climate conducive to another anti-competitive operator practice. Cable operators compete with broadcasters for advertising revenue. Id. at § 2(a)(14). Consequently, operators have an economic incentive to refuse carriage of broadcasters' signals to reduce broadcast viewership, thus attracting advertising dollars that otherwise would go to broadcasters. Id. at § 2(a)(15).

 In summary, Congress concluded that the economic forces at work and the market conditions they had already produced had placed free local broadcast television in serious jeopardy. Id. at § 2(a)(16). It determined that mandatory carriage was necessary to remedy unfair trade practices, to preserve local broadcasting for those who do not receive cable television, id. § 2(a)(12), as well as those who do, id. at § 2(a)(7), and to ensure that the public will continue to have access to a wide diversity of sources of video programming, id. at § 2(a)(6)-(11).

 This Court is of the opinion that, in enacting the 1992 Cable Act, Congress employed its regulatory powers over the economy to impose order upon a market in dysfunction, but a market in a commercial commodity nevertheless; not a market in "speech." The commodity Congress undertook to regulate is the means of delivery of video signals to individual receivers. It is not the information the video signals may be used to impart. That the video signals can only be used to convey a message is of no particular significance. The same is true of printing presses, or broadcast transmitters; loudspeakers, or movie projectors. Yet no one doubts that Congress could regulate a market in those commodities in danger of chaos or capture without being accused of attempting to infringe the First Amendment freedoms of those by whom they will be used to express protected "speech." The Cable Act of 1992 is simply industry-specific antitrust and fair trade practice regulatory legislation: to the extent First Amendment speech is affected at all, it is simply a byproduct of the fact that video signals have no other function than to convey information.

 In other words, the Court holds that the must-carry provisions are essentially economic regulation designed to create competitive balance in the video industry as a whole, and to redress the effects of cable operators' anti-competitive practices. The regulation is justified by the existing structure of the cable business itself, and by the market peculiarities resulting from the technological differences in the manner in which different video signal distributors deliver their products to their viewers' receivers. So perceived, the Court concludes that the must-carry provisions are, in intent as well as form, unrelated (in all but the most recondite sense) to the content of any messages that these embattled cable operators, broadcasters, and programmers have in contemplation to deliver.


 That the First Amendment is to some extent implicated whenever a government endeavors to regulate a cable industry component, however, is a proposition now too well-established to reconsider. *fn18" But although many courts have considered the application of the First Amendment to various laws regulating cable, *fn19" the question of the First Amendment standard to be applied to compulsory signal-carriage requirements has yet to be definitively answered. Despite twice confronting the issue, the D.C. Circuit has avoided its resolution. See Century Communications Corp. v. FCC, 266 U.S. App. D.C. 228, 835 F.2d 292 (D.C. Cir. 1987), clarified, 837 F.2d 517 (D.C. Cir.), cert. denied, 486 U.S. 1032 (1988); Quincy Cable TV, Inc. v. FCC, 248 U.S. App. D.C. 1, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169, 90 L. Ed. 2d 977, 106 S. Ct. 2889 (1986). *fn20"

 It appears to this Court that the must-carry provisions of the 1992 Cable Act squarely present this fundamental issue, and these cases demand that it be resolved. The Court today holds that the government need not demonstrate that it has used the least restrictive means to accomplish what is, primarily and essentially, economic regulation of an industry in the business of delivering video signals. The Court concludes that sections 4 and 5 of the 1992 Act will pass constitutional muster if they satisfy the criteria established in O'Brien and its progeny.

 To be sure, in Quincy and Century, the D.C. Circuit held FCC rules requiring cable operators to carry the signals of local broadcasters to be unconstitutional. Neither case, however, is controlling here; the court of appeals was careful, in both opinions, to note that must-carry rules are not per se unconstitutional. Century, 835 F.2d at 304; Quincy, 768 F.2d at 1463. The court of appeals simply held, in both cases, that the FCC had failed to make a record demonstrating the existence of a governmental interest of sufficient moment -- whether "compelling" or merely "significant" -- to warrant such First Amendment burdens as were imposed by its regulations, or to demonstrate that the means it had chosen to employ to its putative end were necessary at all.

 The record in support of the 1992 Cable Act, in contrast, was made by Congress. Federal courts do not ordinarily review the adequacy of the record before Congress to support the laws it enacts.


 All parties agree (at least, the plaintiffs concede) that the must-carry provisions are not viewpoint-based; must-carry rights are conferred upon all full-power local broadcasters, and the obligations upon most cable operators, regardless of any views expressed in the programming of either. The provisions do not compel the carriage of any particular messages nor do they impose any burden on operators or programmers on the basis of the messages they or the broadcasters propose to transmit. Nevertheless, a law need not be viewpoint-based to be subject to strict First Amendment scrutiny. It may, for example, be considered content-based and subjected to strict scrutiny if it purports to restrict a particular type or character of speech, irrespective of the position taken on any issue. Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980) (public policy leaflets accompanying utility bills); Boos v. Barry, 485 U.S. 312, 319, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988) (placards embarrassing to or disparaging of a foreign government) (plurality opinion).

 The plaintiffs contend that strict scrutiny applies because the must-carry provisions compel an operator to utter "speech" not of its choosing; because they alter an operator's editorial decision-making about what to say; and because they favor the speech of broadcasters over that of operators and programmers. But none of the epithets invoked by the plaintiffs -- "compelled speech," or "editorial discretion," or "speaker-partiality" -- are talismans automatically necessitating strict scrutiny. Strict scrutiny applies only if governmental regulation is overtly content-based or presents an opportunity for official censorship. A compulsory speech requirement, or one imposing upon the discretion of a speaker to say only what he wishes, it appears, is to be strictly scrutinized only if it appears that the government has prescribed the content -- either the message or the subject matter -- of the speech to be spoken. *fn21" Examined carefully, all of the compelled speech and editorial discretion cases cited by the plaintiffs can be seen to have involved regulation telling the speaker what to say or at least what to talk about. See Riley v. National Fed'n of the Blind, 487 U.S. 781, 101 L. Ed. 2d 669, 108 S. Ct. 2667 (1988) (state law requiring charitable fundraisers to disclose percentage of receipts actually devoted to good works); Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1, 10-11 & n.7, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986) (plurality opinion) (state regulation requiring utility to mail fundraising appeals of its rate-making opponents); Wooley v. Maynard, 430 U.S. 705, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977) (state law requiring motorist to display bellicose state motto on license plates); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 214 (1974) (state law requiring newspaper to carry replies of political candidates it had opposed editorially).

 These cases stand in sharp contrast to PruneYard Shopping Center v. Robins, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980), in which the Supreme Court upheld a California constitutional provision interpreted to protect speech and petitioning at a privately owned shopping center. Significantly, the speaker's right to speak on the objecting owner's property upheld in PruneYard had nothing to do with the content or subject matter of his speech, and there was no danger that, in affording the speaker access to his shopping center, the owner would be affected to any degree in his ability to speak his own piece.

 "Speaker-partial" regulations, or those that purportedly favor one group of speakers at the expense of others, similarly are not subject to strict scrutiny unless they are content-based. Walsh v. Brady, 288 U.S. App. D.C. 374, 927 F.2d 1229, 1236 (D.C. Cir. 1991); see id. at 1238-39 (Williams, J., concurring). Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), the principal speaker-partiality case cited by the plaintiffs, is not to the contrary. In Buckley, the Supreme Court struck down a statutory provision imposing a $ 1,000 limit on the amount which an individual could spend to support a particular political candidate. The government sought to justify the provision on the ground that it was necessary to provide those of modest means with an opportunity to participate in the political process equal to that of the wealthy. Id. at 48. Implicit in this reasoning, of course, was a Congressional judgment that the speech of those spending over $ 1,000 was not only "louder" than those spending less than $ 1,000, but was also different and, more importantly, more sinister. See id. at 16-17. Buckley is thus a case in which the government sought, in effect, to suppress the expression of a meretricious idea. Speaker partiality alone, however, absent evidence that the government's distinction between groups of speakers is related to what the speakers are saying, is insufficient to trigger strict scrutiny. *fn22"

 A regulation is deemed to be content-neutral if it is addressed to ends unrelated to the content of expression upon which it may have an effect. Ward v. Rock Against Racism, 491 U.S. at 791; Texas v. Johnson, 491 U.S. 397, 407, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989). As the Court has previously noted, because the record indicates that Congress' primary purpose in enacting must-carry was to restore competitive balance and assure a functional market in the distribution of video signals, whatever might be said with those signals, the must-carry provisions appear to be unrelated to the content of the expression they will affect.


 The plaintiffs argue that the government's asserted interest in "promoting widespread dissemination of information from diverse sources," Federal Defendant's Memorandum at 33, betrays a content-based purpose. That Congress has found it necessary to preserve local broadcast television to promote "diversity," even for those who receive cable television, they contend, indicates that Congress perceives some content difference between the messages of "local" broadcasters and cable programmers. *fn23"

  But if the must-carry provisions are content-related at all, they are only marginally so, to the point of de minimis. Congress may have presumed, on a very non-specific (and unarticulated) level, that there would be some content differences between the subject matter and/or emphasis of the video signals emitted by local broadcasters and those produced by cable programmers. It appears to the Court, however, that Congress' solicitousness for local broadcasters' material simply rests on its assumption that they have as much to say of interest or value as the cable programmers who service a given geographic market audience, not on any recognition that there is a discrete "local" subject-matter. So viewed, the must-carry provisions hardly evince the type of nefarious governmental activity guarded against by the First Amendment generally and the strict scrutiny standard in particular.

 Moreover, even if a "local" versus "non-local" dichotomy of message exists, and can be said to be content-related in some abstract way, the cable medium exhibits certain characteristics unique to the way the industry has evolved and is presently structured, and of equally "local" dimensions having nothing whatsoever to do with message. Cable operators have prevailed upon "local" public authorities to license their use of public rights-of-way over which to string their coaxial cable networks, and there are manifestly limits to the number of such licenses likely to be issued. They vie with broadcasters for "local" advertisers. Cable operators have also historically enjoyed the right to retransmit "local" broadcast programming when and to the extent they wished subject only to administratively set royalty fees. The technology they employ enables a single cable operator to transmit a video signal superior to that of conventional over-the-air transmitters, and to deliver at a "local" television receiver a vastly greater number of channels to watch than all local broadcasters combined. There is, moreover, little competition among "local" cable operators themselves. In short, the term "local" as applied to the cable industry has many implications other than as a synonym for "provincial" as an adjective applied to programming and all were within the contemplation of Congress when it enacted must-carry.

 The Supreme Court has observed that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." *fn24" Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975); see Quincy, 768 F.2d at 1448. Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969) with Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730, 94 S. Ct. 2831. Cable has achieved its present market dominance, in large part, due to such "local" factors -- artifacts of a sort of the industry's evolution -- not because it has delivered an intrinsically better message. Similar factors, benign in themselves, perhaps, and characteristic of many successful industries having supplanted older rivals, have nevertheless lead to regulation of such industries for economic reasons when their market powers have reached dangerous proportions.

 Absent an indication of a Congressional purpose, whether avowed or covert, to effect a degree of content-control by mandating carriage of "local" broadcasters' signals, the First Amendment should not unduly inhibit Congress in what clearly appears on its face to be an effort to level the economic playing field in the television industry, at large, even if in doing so it may coincidentally inhibit some freedom of choice of the cable operators as to whose signals are to be carried and under what conditions. The Court accordingly concludes that O'Brien and Rock Against Racism provide the appropriate standard for determining the constitutionality of Congress' mandatory carriage provisions. *fn25"


 The inquiry to be made under the O'Brien-Rock Against Racism formulation is to ascertain whether the must-carry provisions further a significant government interest, O'Brien, 391 U.S. at 377; Rock Against Racism, 491 U.S. at 798-99; see also Quincy, 768 F.2d at 1454, and whether they are "narrowly tailored" to serve that interest, O'Brien, 391 U.S. at 377; Rock Against Racism, 491 U.S. at 798. The narrow tailoring requirement is satisfied if the government's regulation will effectively remedy the condition that the government has identified as in need of correction, and if it does not burden substantially more speech than necessary in doing so. Rock Against Racism, 491 U.S. at 799.

 Congress' objective in enacting the mandatory carriage requirements, it has declared, was to promote fair competition among video "speakers" in order to assure the survival of local broadcasting for the benefit of both those who subscribe to a cable service and for those who do not. See 1991 S. Rep. No. 92 at 58; Federal Defendant's Memorandum at 33. Although the D.C. Circuit declined an invitation to rule on whether this is a governmental goal of sufficient significance for O'Brien purposes, see Quincy, 768 F.2d at 1454, other cases establish that the importance of broadcasting generally, and in particular local broadcasting, to the American public is now beyond dispute. *fn26" See United States v. Southwestern Cable Co., 392 U.S. 157, 172-73, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 & nn. 38 & 39 (1968); National Ass'n of Broadcasters v. FCC, 239 U.S. App. D.C. 87, 740 F.2d 1190, 1198 (D.C. Cir. 1984); see also Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714, 81 L. Ed. 2d 580, 104 S. Ct. 2694 (1984); *fn27" cf. Metro Broadcasting, 497 U.S. at 566-68, 572-73. See generally Communications Act of 1934, § 307(b), 48 Stat. 1083.

 The plaintiffs submit that even if averting the demise of local broadcasting is deemed an important governmental goal, the factual premise on which the must-carry provisions are based, viz., that local broadcasting is in peril, is incorrect. Citing their own statistics, the plaintiffs contend that broadcasting is alive and well, and has actually grown since the FCC's must-carry rules were struck down in Quincy. Oppressive artifices such as must-carry, they say, are unnecessary.

 Congress, however, did not agree, and in sharp contrast with the meager record before the FCC when the court of appeals struck down the must-carry provisions in Quincy and Century, the current must-carry provisions are based on a substantial record assembled by Congress itself. See generally 1991 S. Rep. No. 92 at 42-46 (citing Federal Communications Commission, Policy and Rules Division, Mass Media Bureau, Cable System Broadcast Signal Carriage Survey (1988) (staff report)); 1992 H.R. Rep. No. 628 at 50-57 (same). Congress received evidence demonstrating, to its satisfaction, that cable operators, in significant numbers, are denying carriage to local broadcasters, are attaching onerous conditions to their agreements to carry broadcasters, and are exiling broadcasters being carried to remote channel positions. 1991 S. Rep. No. 92 at 42-43; 1992 H.R. Rep. No. 628 at 51. Congress also apparently credited evidence indicating that this unfavorable treatment of broadcasters is the result of the cable operators' attempts to obtain a competitive advantage, not a function of consumer demand. 1992 Cable Act § 2(a)(12)-(15); 1991 S. Rep. No. 92 at 44. *fn28" Congress determined that refusal to carry, termination of carriage, and channel repositioning artificially diminish the audiences of local broadcasters, and, in turn, decrease their revenues. 1992 Cable Act § 2(a)(11)-(15); 1991 S. Rep. No. 92 at 44-45, 59; 1992 H.R. Rep. No. 628 at 50-51. In light of all of the evidence, Congress concluded that local broadcast television is not flourishing; it is in serious jeopardy. 1992 Cable Act § 2(a)(16); 1991 S. Rep. No. 92 at 59.

 Furthermore, even if the state of the broadcasting industry is not now as parlous as the defendants contend, the Court finds it to be indisputable on this record that cable operators have attained a position of dominance in the video signal distribution market, and can henceforth exercise the attendant market power. The Court does not find improbable Congress' conclusion that this market power provides cable operators with both incentive and present ability to block non-cable programmers' access to the bulk of any prospective viewing audience; unconstrained, cable holds the future of local broadcasting at its mercy. In light of the considerable body of evidence amassed by Congress, and the deference this Court should accord to the factfinding abilities of the nation's legislature, see Metro Broadcasting, 457 U.S. at 569; Columbia Broadcasting Sys., 412 U.S. at 103, the Court must conclude that the danger perceived by Congress is real and substantial.

  The plaintiffs also contend that the must-carry provisions are not "narrowly tailored" to accomplish their objective. There seems to be little doubt that the must-carry provisions will be effective in sustaining local broadcasting for the present. Rather than dispute their effectiveness as a means to the end, therefore, the plaintiffs' complaint is that they are overly so; being excessive, they burden speech in instances in which governmental intrusion is unnecessary.

 First, they argue that Congress' goal can be achieved by the use of rudimentary technology, (a selector switch, for example), enabling broadcast and cable signals to be equally accessible to cable subscribers who want to watch them; viewer preference will then determine the victor in an idealized "marketplace of ideas." Second, they contend that mandatory cable carriage of all local broadcasters is too much of a good thing; it may require an operator to carry signals of broadcasters it would not otherwise carry in a market in which there is actually a surfeit of "local" programming on cable as well as over-the-air. The Court concludes, however, that the must-carry provisions are sufficiently, if not surgically, tailored to Congress' larger economic market-adjusting objective.

 It is, of course, conceivable that there are less restrictive alternatives that Congress could have employed in its attempt to preserve the vitality of local broadcasting. Importantly, however, under O'Brien, the government is not required to settle for means that serve its interests less effectively merely because an alternative might be less burdensome. Rock Against Racism, 491 U.S. at 799 (citing United States v. Albertini, 472 U.S. 675, 689, 86 L. Ed. 2d 536, 105 S. Ct. 2897 (1985)). Congress actually found that input-selector switches were ineffective simply because viewers tended not to use them (a function, perhaps, of viewer inertia as much as viewer preference). See 1991 S. Rep. No. 92 at 44-45; 1992 H.R. Rep. No. 628 at 54; see also 1992 Cable Act § 2(a)(17). Of more significance, however, is that Congress further found that prophylactic measures were necessary to combat the operators' tendencies toward anticompetitive treatment of broadcasters generally. See 1991 S. Rep. No. 92 at 41-46; 1992 H.R. Rep. No. 628 at 50-58. Once again, the Court is unwilling to second-guess Congress' determination that the must-carry provisions are necessary to accomplish its objective. Provoking a popularity contest between broadcast and cable programmers was not what it had in mind. See FEC v. National Right to Work Comm., 459 U.S. 197, 207-11, 74 L. Ed. 2d 364, 103 S. Ct. 552 (1982).

 Finally, the Court concludes that the must-carry provisions do not unnecessarily burden a substantial amount of the plaintiffs' own speech. Operators retain complete discretion over much the greater proportion of the channel spectrum on their systems, and non-broadcast programmers are free to compete for access to those channels not dedicated. Under no circumstances will an operator be required, under section 4, to devote more than one-third of its channel capacity to local broadcast use. *fn29" Similarly, under section 5, operators with less than 36 useable channels need not carry more than 3 non-educational channels, and no operator must carry duplicative non-educational programming. Thus, although the must-carry regulations may reduce the overall quantity of cable operator and programmer speech "opportunities," as it were, it leaves open adequate -- in fact, plentiful -- alternative, intra-medium channels of communication for cable speakers to deliver whatever messages they choose. The Constitution requires no more. Compare Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981) with Community for Creative Non-Violence v. Turner, 282 U.S. App. D.C. 238, 893 F.2d 1387, 1393 (D.C. Cir. 1990).


 The 1992 Cable Act represents a major congressional effort to bring order and stability to an industry that significantly, and often profoundly, touches American lives. It is not the province of this Court to pass judgment upon the wisdom of the policies the national legislature has chosen to pursue in such endeavors. That, of course, is a task our system of government commits to the electoral and political processes, and the Court's power in that regard is not enlarged merely because it is invoked in the name of the First Amendment. Simply put, the governmental intention evinced by the must-carry provisions is economic, not ideologic, and raises no suspicion of the type of ominous government interference with speech against which the First Amendment protects.


 National Interfaith Cable Coalition ("NICC") seeks to enjoin enforcement of sections 4 and 5 of the 1992 Cable Act on another First Amendment ground, namely, that the provisions violate the Free Exercise and Establishment of Religion Clauses of the First Amendment. NICC's motion is opposed by the federal defendants, who have filed a motion to dismiss, and by several intervenor-defendants, many of whom have filed dispositive motions. The Court concludes that sections 4 and 5 do not violate the Religion Clauses of the First Amendment.

 NICC is an "interfaith consortium" of several Judeo-Christian religious groups in the United States. NICC disseminates its messages through the Vision Interfaith Satellite Network ("VISN"), a cable programming operation which competes for carriage on the many cable systems across the country. Like the other programmers, NICC objects to the must-carry provisions because the provisions will reduce the number of cable television channel positions available for use by non-broadcast programmers. By mandating carriage of the religious programming of local broadcasters, the provisions represent a special danger to NICC: it fears that cable operators forced to carry some broadcast religious programming will resist voluntary carriage of additional religious fare.

 NICC's Religion Clause challenges center on the premise that the religious programming of local broadcasters is different in kind from NICC's programming. NICC contends that most local religious broadcasters tend to present fundamentalist religious views and are often critical of other viewpoints, while NICC transmits messages that are more "mainstream" and "religiously balanced." NICC argues that the must-carry provisions, by granting preferential treatment to local religious broadcasters, create an illicit liaison between the federal government and particular sectarian interests in violation of the Establishment Clause, and by impeding NICC from reaching its audience and delivering its own religious message, the provisions violate the Free Exercise Clause.

 To comport with the Constitution under the now familiar Establishment Clause test, government action must "(1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion." Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 2654 (1992) (citing Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) and Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973)). Even if the Court were to accept NICC's major premise -- that the must-carry provisions disproportionately favor the speech of certain types of religious speakers over others -- the provisions do not violate the Establishment Clause. There is no evidence that the must-carry provisions were intended to be anything but religion -- as well as content-neutral; they do not involve the government in religious affairs; and there is no basis for concluding that they will be perceived to represent governmental endorsement of particular religious views or religion in general.

 The provisions clearly reflect a secular purpose, as discussed above. There is nothing in the record to indicate that Congress was even aware of any difference in the religious messages of broadcasters and programmers, much less to indicate that must-carry represents a deliberate attempt to favor or disfavor any religious views or practices.

  Similarly, the must-carry provisions have a primary effect that neither advances nor inhibits religion. A law does not violate the Establishment Clause merely because it benefits or burdens religious institutions in some way. Mueller v. Allen, 463 U.S. 388, 393, 398-402, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (1983); see Walz v. Tax Comm'n, 397 U.S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). "Incidental" burdens and benefits on religious institutions do not violate the Establishment Clause's primary effect inquiry. See Widmar v. Vincent, 454 U.S. 263, 273-74, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981). Central to the primary effect inquiry is whether a reasonable observer would interpret the governmental action to be religion-preferential, County of Allegheny v. ACLU, 492 U.S. 573, 592-93, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989); see Widmar, 454 U.S. at 274, and there is little danger of such a perception if a law applies to a broad range of entities, both religious and secular. Widmar, 454 U.S. at 274-74. *fn30" Compare Mueller, 463 U.S. 388, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (upholding state law providing income tax deduction for tuition, textbook and transportation expenses for parents of children in public as well as parochial schools) with Nyquist, 413 U.S. 756, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1983) (holding unconstitutional public assistance grants to parents of children in nonpublic schools only). The must-carry provisions apply to all broadcasters, without regard to whether their programming contains any religious fare at all. Accordingly, the Court cannot conclude that the primary effect of the provisions is to advance the religious message of local broadcasters or suppress the religious messages of cable programmers.

 Nor can the Court conclude that the must-carry provisions foster excessive governmental entanglement with religion. Regulatory legislation creates excessive entanglement only if there is "detailed monitoring and close administrative contact" between the government and sectarian organizations or affairs. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696-97 (1989); see Mueller, 463 U.S. at 403. There is no basis on which to conclude that the federal government will, in implementing must-carry, become involved in any activity in the nature of religious oversight. To be eligible for mandatory carriage, a broadcaster must meet two basic requirements only; it must be licensed by the FCC and it must operate within a cable operator's television market. 1992 Cable Act § 4. The must-carry provisions accordingly present no danger of entanglement beyond that created by the FCC's broadcast license scheme itself. It is well-settled that "routine regulatory interaction which involves no inquiries into religious doctrine" creates no Establishment Clause infirmity. Hernandez, 490 U.S. at 697.

 NICC contends that the must-carry provisions violate the Free Exercise Clause because they prevent NICC from effectively disseminating its religious message. Any burden imposed on NICC's religious practice, however, is merely the incidental effect of a facially religion-neutral law that is generally applicable to all operators, programmers, and broadcasters. Such laws do not violate the Free Exercise Clause. Employment Div. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). The must-carry provisions do not, in any way, foreclose dissemination of any religious message or abridge any religious practice.


 The Local Community Broadcasters ("LCB"), an intervenor-defendant in these consolidated cases, argues that section 4 of the 1992 Act violates the First Amendment rights to free speech and equal protection rights of low power television ("LPTV") stations. By way or relief, LCB asks this Court to require the FCC to provide expansive mandatory carriage rights, similar to those provided to full power broadcasters, to LPTV. Even assuming this Court has the power to provide such a remedy, a dubious proposition, the Court finds that section 4 does not abridge LCB's constitutional rights.

 In the late 1970s and early 1980s, the FCC began to implement a program for providing low power television service to viewers across the nation. LPTV operates on the same technological principles as broadcast television, but within a minimal geographic range. In addition, LPTV stations are licensed by the FCC on a secondary basis; they may not interfere with the signals of licensed full power stations, and they must give way to any full power station attempting to use the same frequency. See generally 47 C.F.R. §§ 74.701-74.781 (1992); 1982 LPTV Inquiry, supra note 4. The Commission envisioned LPTV as a less costly alternative for those seeking to enter the television broadcast industry, *fn31" and saw LPTV as enhancing diversity in the television market, especially for minority broadcasters. *fn32"

 The 1992 Cable Act provides very limited mandatory carriage rights to LPTV. Under section 4, a cable operator is only required to carry a low power station if there are not enough full power commercial broadcasters to fill the one-third channel set-aside imposed by the section. Furthermore, a low power station is eligible for mandatory carriage only if it serves a rural area without full power service. Cable operators with fewer than 36 channels are required to carry one qualified LPTV station, and those with 36 channels or more need only to carry two qualified LPTV stations.

 LCB's constitutional claims are similar to those made by the programmers. LCB claims that because the must-carry provisions favor local full power broadcasters by providing them with scarce channel positions and fail to provide similar rights to many rural and all non-rural LPTV stations, the provisions impede the ability of LPTV stations to reach their audiences. LCB also claims that like the programmers, LPTV operators need must-carry to defend themselves against anti-competitive cable operator practices.

 Although LCB's claims are similar to those of the programmers, the relief they seek is entirely different. LCB asks this Court to order the FCC to provide LPTV broadcasters with mandatory carriage rights similar to those enjoyed by full power stations. The success of LCB's claim accordingly rests on the untenable position that the must-carry provisions do not violate the constitutional rights of programmers, but do violate the constitutional rights of LCB's members. Furthermore, comparison of the relief sought by LCB and that sought by the programmers makes clear that LCB is not challenging the must-carry provisions on the grounds that they interfere with First Amendment rights; it is, instead, claiming that they have been disparately treated. *fn33"

 Unless viewpoint-based, disparate governmental treatment of different speakers, unlike governmental imposition of burdens on expression, does not implicate either O'Brien balancing or strict scrutiny. Message-neutral government decisions to provide benefits to one group of speakers but not others are constitutional if there are rational legislative reasons for distinguishing between groups. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985); Regan v. Taxation with Representation, 461 U.S. 540, 545-46, 76 L. Ed. 2d 129, 103 S. Ct. 1997 ; accord id. at 548-51 (governmental distinctions between groups of speakers subject only to rational basis review under equal protection component of Fifth Amendment unless they are aimed at the suppression of ideas); Walsh, 927 F.2d at 1235-37 (same); id. at 1238-39 (Williams. J., concurring) (same). *fn34"

 LPTV was conceived and created as a secondary service, and has never enjoyed rights coextensive with full power television. See 1982 LPTV Inquiry, supra note 4. Congress's treatment of LPTV is consistent with the government's treatment of LPTV since its inception. Once again, in the absence of any reason to suspect Congress of message-regulation, the Court must uphold Congress' decision not to equalize the free speech rights of LPTV with full power broadcasting unless it is irrational. Regan, 461 U.S. at 548. Nothing at all appears to be irrational about a legislative policy judgment to treat LPTV as a lesser player in the television market, as it has always been, no matter how innovative, imaginative, or deserving the Court might find LPTV to be.

 For the foregoing reasons, it is, this 8th day of April, 1993,

 ORDERED, that the plaintiffs' motions for summary judgment on the must-carry claims are denied; and it is,

 FURTHER ORDERED, that the federal defendants' motion to dismiss the must-carry claims are granted; and it is,

 FURTHER ORDERED, that the motion of intervenor-defendant Local Community Broadcasters for summary judgment on a cross-claim is denied; and it is

 FURTHER ORDERED, that the complaints of the plaintiffs and the intervenor-plaintiffs, insofar as they challenge as unconstitutional sections 4 and 5 of the 1992 Cable Act, are dismissed with prejudice; and it is

 FURTHER ORDERED, that the complaints of the plaintiffs, insofar as they challenge section 6 of the 1992 Cable Act as not severable from purportedly unconstitutional provisions of that Act, are dismissed with prejudice; and it is

 FURTHER ORDERED, that the cross-claim of intervenor-defendant Local Community Broadcasters is dismissed with prejudice; and it is

 FURTHER ORDERED, that all other pending motions relating to the constitutionality of sections 4 and 5 of the 1992 Cable Act are denied and dismissed as moot.

 Thomas Penfield Jackson

 U.S. District Judge

 Stanley Sporkin

 U.S. District Judge

 ORDER - April 8, 1993, Filed

 Upon consideration of the several motions for intervention herein, it appearing to the Court that all motions are unopposed, it is, this 8th day of April, 1993,

 ORDERED, that all pending motions for intervention herein, insofar as the applicants seek to challenge or defend sections 4 or 5 of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460, are granted pursuant to Fed. R. Civ. P. 24(b), and it is

 FURTHER ORDERED, that all pending motions for intervention herein, insofar as the applicants seek to challenge or defend any statutory provisions other than sections 4 or 5 of the 1992 Cable Act, shall remain in abeyance.

 Thomas Penfield Jackson

 U.S. District Judge

 ORDER - April 8, 1993, Filed

 It is, this 8th day of April, 1992,

 ORDERED, that all pending motions for leave to file post-argument memoranda herein are granted, and it is

 FURTHER ORDERED, that all pending motions for the Court to take judicial notice of administrative agency action are granted.

  Thomas Penfield Jackson

  U.S. District Judge

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