Turner Broadcasting v. Federal Communications Commission

910 F. Supp. 734, 2 Communications Reg. (P&F) 1, 1995 U.S. Dist. LEXIS 18611

• Court: District Court, District of Columbia
• Decided: December 12, 1995
• Docket: Civ. A. 92-2247, 92-2494, 92-2495, 92-2292 and 92-2558
• Status: Published

Opinions

MEMORANDUM AND ORDER

SPORKIN, District Judge.

This matter comes before this three-judge District Court¹ on remand from the Supreme Court of the United States. The central question before the Court is whether the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of 1992 (“1992 Cable Act”) violate the First Amendment.²

When the case was originally before the three-judge District Court, the District Court, in a divided opinion, granted summary judgment in favor of the Government and the other intervenor-defendants, ruling that the “must-carry” provisions challenged by the Plaintiffs (consisting of both cable operators and cable programmers) survived under the intermediate standard of scrutiny set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Turner Broadcasting System, Inc. v. F.C.C., 819 F.Supp. 32 (D.D.C.1993) (Williams, J., dissenting; Sporkin, J., concurring).

The Supreme Court, while upholding the majority’s decision that the content-neutral “must-carry” provisions should be subjected to the intermediate level of scrutiny under the First Amendment, remanded the case to the District Court for further development of the factual record. Pursuant to that remand order, the case now comes before the Court on cross-motions for summary judgment.

THE REMAND

Under the intermediate level of scrutiny set forth in O’Brien, a content-neutral regulation will survive a First Amendment challenge if

it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Turner Broadcasting System, Inc. v. F.C.C., — U.S.-, -, 114 S.Ct. 2445, 2469,129 L.Ed.2d 497 (1994) (quoting O’Brien at 377, 88 S.Ct. at 1679).

In enacting the must-carry provisions, Congress found that the viability of the local broadcast industry would be “seriously jeopardized” without the protections afforded by the provisions. 1992 Cable Act § 2(a)(16). Congress asserted that three important government interests were being served by the rules: 1) preserving the benefits of free, over-the-air local broadcast television; 2) promoting the widespread dissemination of information from a multiplicity of sources; and 3) promoting fair competition in the market for television programming. Turner, at -, 114 S.Ct. at 2469, (citing S.Rep.No. 102-92, p. 58, (1991); H.R.Rep. No. 102-628, 63 (1992) U.S.Code Cong. & Admin.News 1992, pp. 1133, 1191; 1992 Cable Act, §§ 2(a)(8), (9), and (10).

The Supreme Court recognized that the government’s asserted interests are unrelated to the suppression of free expression and are indeed important. Id. at -, 114 S.Ct. at 2469. The Court held that the government must still show that the must-carry provisions designed to protect local over-the-air broadcasters will “in fact advance those interests.” Id. at -, 114 S.Ct. at 2470. In defending a regulation, the government “must do more than simply ‘posit the existence of the disease sought to be cured.’ It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. (citations omitted).

The Supreme Court found that in order for the government to meet its burden that the viability of the local broadcast industry would be jeopardized in the absence of “must-carry” rules the government needed to develop the factual record on two points: “1) that unless cable operators are compelled to carry broadcast stations, significant numbers of broadcast stations will be refused carriage on cable systems; and 2) that the broadcast stations denied carriage will either deteriorate to a substantial degree or fail altogether.” Id. at -, 114 S.Ct. at 2471.

With respect to the narrow tailoring step of the O’Brien test, the Court also found factual gaps in the record. In order to determine whether the must-carry rules “burden substantially more speech than is necessary to further the government’s legitimate interests,” the Court found that the factual record needed to be supplemented with respect to “the extent to which the must-carry provisions in fact interfere with protected speech”. Id. at -, 114 S.Ct. at 2472 (quoting Ward, 491 U.S. at 799, 109 S.Ct. at 2758). In addition, the Court held that further findings were necessary concerning the availability and efficacy of “constitutionally acceptable less restrictive means of achieving the government’s asserted interests.” Id. at -, 114 S.Ct. at 2472 (quoting Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 129, 109 S.Ct. 2829, 2838, 106 L.Ed.2d 93 (1989)).

The Supreme Court indicated that this Court’s inquiry is not limited to the record before Congress at the time that it enacted the 1992 Cable Act. This Court is entitled to consider “additional evidence” that bears on the factual issues presented by this case. Id. at -, 114 S.Ct. at 2472 (“a more substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied or the introduction of some additional evidence” on the harm to local broadcasters in the absence of the must-carry provisions is necessary to a determination of the Constitutional challenge).

STANDARD OF REVIEW

The Supreme Court clearly dictated that this Court is to employ a deferential standard of review in analyzing the constitutionality of the “must-carry” provisions. Turner, at -, 114 S.Ct. at 2471 (“We agree that courts must accord substantial deference to the predictive judgments of Congress.”) Congress’ judgments “should not be ignored” just because the “ ‘[appellants] cas[t] [their] claims under the umbrella of the First Amendment.’ ” Id. (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103, 93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973)). This Court is not “to reweigh the evidence de novo, or to replace Congress’ factual predictions with [its] own.” Id. This Court’s role is limited to assuring “that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” Id. (citing Century Communications Corp. v. FCC, 835 F.2d 292, 304 (D.C.Cir.1987)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

Not only does the Constitution’s separation of powers doctrine underlying this nation’s success dictate that the review be deferential, but practical considerations also necessitate such review. As the Supreme Court recognized, “As an institution ... Congress is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon an issue as complex and dynamic as that presented here.” Id. (citations omitted).³ “Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable.” Id. at -, 114 S.Ct. at 2471.⁴

This Court’s initial role in considering the cross-motions for summary judgment is to determine whether there are any genuine issues of material fact which would necessitate a trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no dispute among the parties that there was conflicting testimony and evidence before Congress on the need for and the efficacy of the must-carry provisions.

Given the reams of paper submitted to this Court, there can be no doubt but that the parties’ experts disagree about the facts underlying Congress’ predictive judgment that the broadcast industry was in jeopardy. For example, experts disagree regarding (1) whether in the absence of must-carry, significant numbers of broadcast stations would be refused carriage, (2) whether broadcast stations denied carriage would either deteriorate to a substantial degree or fail altogether, and (3) the accuracy of Congress’ predictive judgments on the actual effects of the must-carry provisions on the cable industry. Moreover, there is disagreement over Congress’ judgments on the availability and efficacy of “constitutionally acceptable less restrictive means” of achieving the Government’s asserted interest. Turner at -, 114 S.Ct. at 2472. One would expect that experts would disagree where predictive judgments are being made regarding the effects of competition among segments of a large industry and regarding the effects of prophylactic measures.

However, given the standard of review this Court is to employ, such a “battle of experts” does not preclude summary judgment. Rather, the battle supports the rendering of summary judgment for the government — it suggests that there was “substantial evidence” before Congress (or substantial “additional evidence”) from which it drew a “reasonable inference” that the must-carry provisions are necessary to protect the local broadcast industry and do not burden “substantially more speech ... than necessary.” The Court’s role is not to determine whether an inference is “correct” or whether a given inference is more reasonable — it is not to substitute its opinion for that of Congress. As long as there is no material dispute that there is substantial evidence from which Congress could have drawn a reasonable inference, then the government is entitled to summary judgment.

In the following pages, the substantial evidence before Congress, as well as additional evidence produced in the remand proceedings, from which they could have drawn reasonable inferences will be discussed pursuant to the Supreme Court’s remand order.⁵ The Court is convinced that there is substantial evidence in the more than 18,000 page record ⁶ which Congress compiled over 3 years of hearings from which Congress could draw reasonable inferences that the must-carry rules are necessary to protect the viability of the broadcast industry and do not burden “substantially more speech than ... necessary.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758. The Court further finds that there is substantial additional evidence which confirms Congress’ findings.

ANALYSIS

Although this ease pits expert against expert, there is no dispute about several fundamental facts. Cable systems and “over-the-air broadcasters” are “in direct competition” as an “independent source of television programming.” Turner at -, 114 S.Ct. at 2451. And cable systems are winning the competition, with over 60% of the “television households” currently subscribing to cable systems.⁷ The market power of cable systems is expected to increase.⁸ Once a television household has subscribed to cable, then the cable operator has “monopoly power”— the “physical connection between the television set and the cable network gives the cable operator ... gatekeeper [ ] control over most (if not all) of the television programming that is channeled into the subscriber’s home.” Turner at -, -, 114 S.Ct. at 2466, 2468. This gatekeeper control, which has been conferred upon the cable medium by local and federal regulation,⁹ allows the cable operator to “silence the voice of competing speakers.” Id. at -, 114 S.Ct. at 2466.

There is also no dispute that these monopolists face virtually no competition from other monopolists because the vast majority of television communities are served by only one cable system.¹⁰ Accordingly, local broadcasters cannot look to other cable systems for recourse when they are denied carriage on the one cable system in their area.

Finally, the cable industry has become increasingly horizontally concentrated and vertically integrated. Power has been concentrated in the hands of fewer and fewer operators (horizontal concentration), which has led to increased vertical integration as the largest operators have begun to demand ownership interests in cable programming networks.

A The Need for Mush-Carry

Given the cable industry’s undisputed market power, the question becomes whether Congress made reasonable inferences based on substantial evidence that its market power would be wielded to harm local broadcasting and that the must-carry provisions are neeessary to protect the economic health of local broadcasting.¹¹

i. Evidence regarding Adverse Carriage Decisions

There was substantial evidence from which Congress could reasonably conclude that cable systems had significant and increasing incentives to deny carriage or reposition local broadcasting stations in order to: 1) increase their advertising revenues, the “cable industry’s hottest and brightest area of growth;”¹² and 2) favor cable programming in which they had an equity interest.

As to advertising revenues, there was substantial testimony before Congress that advances in technology were making it easier for cable companies to insert advertising into their networks¹³ and that the cable industry was increasingly looking to advertising as a source of revenue.¹⁴ Common sense dictates, and the evidence before Congress substantiated, that cable systems would have every incentive to drop or reposition their advertising competitors in the absence of regulations.

For example, testimony before Congress indicated that “as cable advertising spot sales grow, local cable operators will have an increased incentive to block out or severely burden local broadcast stations which represent competition for advertising revenues”, and that it is “economic reality” that “[c]able operators, if allowed total control over their competitors’ [broadcast] signals, can be expected to utilize it to their own advantage.”¹⁵ Moreover, the FCC reported to Congress that “‘[c]able operators’ incentive’ to deny carriage or provide disadvantageous carriage” was “particularly great as against local broadcasters,” because of competition for local advertising.¹⁶

Similarly, cable operators with equity interests in cable programmers would have every reason to discriminate against broadcast stations competing with their own programmers. Preston Padden, President of the Association of Independent Television Stations, Inc., so testified before Congress:

You don’t need a Ph.D. in Economics to figure out that the guy who controls a monopoly conduit is in a unique position to control the flow of programming traffic to the advantage of the program services in which he has an equity investment and/or in which he is selling advertising availabilities, and to the disadvantage of those services, including local independent broad-easting stations, in which he does not have an equity position.

S.Rep. No. 102-92 at 26 (1992) U.S.Code Cong. & Admin.News 1992, pp. 1133, 1159.

Besides the cable operators’ incentives to wield their market power to the detriment of the broadcast industry, Congress also had evidence that cable operators had already dropped, refused to carry, or adversely repositioned significant numbers of local broadcasters. In 1988, the FCC conducted a study which reported that by 1988 two hundred and eighty out of the 912 responding broadcasting stations had indicated that they had been denied carriage in some 1,533 instances.¹⁷ Three hundred and thirteen of the responding stations reported that by 1988 they had been repositioned in 1,274 instances.¹⁸

Moreover, the Association of America’s Public Television Stations’ 1987 study indicated that public television stations had been dropped in 74 instances, with only 16 being restored at a later time. Of the 128 reported channel repositionings in the 1987 study, only 30 public television stations were later restored to their prior position.¹⁹ In addition to various studies, Congress received voluminous evidence of adverse carriage decisions by the cable industry directly from the harmed broadcast stations. See Defendants’ Joint Statement of Evidence Before Congress (JSCR) ¶¶ 291-467 and Pub. Br.Supp.St. ¶¶ 89-116. Commissioner Quello of the FCC reported to Congress that “[t]he record before the Commission in its must carry proceeding demonstrated that cable won’t hesitate to drop local broadcast signals.”²⁰

And there was reason to believe that cable systems were on “good behavior” while Congress conducted its investigation as to whether must-carry rules were necessary. It would certainly have been against the cable industry’s self-interest to behave “abusively” towards the broadcast industry while it was in the “spotlight.” Commissioner Quello of the FCC informed Congress that

the abuses occurring today are just the ‘tip of the iceberg.’ These activities come at a time when the cable industry is just beginning to recognize the importance of local advertising. In addition, the leaders of the industry have been statesmen in attempting to keep the industry from abusing its new found power. Experience tells me that the natural competitive incentives will not be restrained forever. As soon as the political spotlight shifts from the cable industry, its unbridled power will be brought to bear.²¹

Based on the record before it, Congress drew reasonable inferences that in the absence of must-carry rules, “significant” numbers of broadcast stations would be refused carriage. The reasonableness of Congress’ judgment that significant numbers of broadcast stations would be harmed is also underscored by the “small” burden to the cable industry caused by the must-carry provisions, as discussed infra. The question of the “significance” of the harm to the broadcast industry cannot be completely separated from the question of the burden to the cable industry.²²

Additional evidence outside the Congressional record supports the reasonableness of Congress’ predictive judgment. Obviously, this case itself confirms that the cable industry would drop broadcast stations if the must-carry rules were not in place. And it would be logical to conclude that the cable industry has exercised self-restraint due to this litigation. It would not be in the cable industry’s best interests to force broadcast stations to opt for their must-carry rights in order to obtain carriage.

The cable industry itself recognizes that for the time being it should be careful not to engage in behavior that would be self-defeating. Viacom’s CEO stated that no broadcast station should be dropped or repositioned without his approval “so that we do not become an example of demonstrated abuse and . thereby the justification for reregulation.”²³ In addition, Storer Communications issued a memorandum admonishing its operators not to “rock the boat,” because “we do not wish to be involved in a wholesale dislocation of broadcast signals until such time as our legal position is clarified.”²⁴

The government has also provided a slew of notable experts who testified to the reasonableness of Congress’ conclusion that cable operators had and have substantial and increasing incentives to act adversely to local broadcast stations (Dr. Roger Noll²⁵, Dr. John Haring²⁶, Dr. James Dertouzos²⁷) and that the operators had acted and would act in accordance with those incentives in the absence of must-carry rules (Dr. John Haring, Tom Meek²⁸, Richard Feldman²⁹).

ii. Evidence Regarding Harm if Denied Carriage

That a broadcast station that was denied access to the cable system in its local market would suffer financial harm and possible ruin seems to be an obvious conclusion. See Turner, — U.S. at - — -, 114 S.Ct. at 2474 (Stevens, J., concurring) (“Because 60% of American households have cable, and because most cable subscribers rely solely on that medium to receive video signals, it is a practical certainty that a broadcaster dropped from the local cable system would suffer substantial economic harm.”) Not surprisingly, this conclusion is supported by substantial evidence before Congress. If a station is denied access to a cable network or is adversely repositioned, the size of the audience it can reach will be restricted. A reduced audience decreases a commercial station’s attractiveness to advertisers, which causes advertising revenues to decline.³⁰ Similarly, a reduced audience decreases a public station’s ability to get viewer contributions. When the revenue declines, the station’s ability to provide quality programming is hampered, further decreasing the viewing audience and creating a vicious cycle of declining financial stability and health.³¹

One indication of the necessity of carriage to the financial stability of broadcast stations is the difficulty stations encounter in obtaining financing if unable to secure carriage.³² In addition, Congress had evidence that the growth of the broadcast industry had been negatively impacted by the demise of the FCC’s 1986 must-carry rules (referred to as the Century must-carry rules)³³ in 1987.³⁴

The Defendants’ experts have submitted additional evidence which supports the importance of cable carriage to insure the viability and health of the broadcast industry. See Declarations of David Schütz³⁵, Dr. Roger Noll, Dr. John Haring, Dr. Jeffrey Rohlfs³⁶, Jonathan Abbott³⁷, Dr. James Dertouzos. The cable industry recognizes that “[w]ith cable penetration now exceeding 70% in many markets, the ability of a broadcast television station to reach its audience through cable television is crucial____ The loss of cable carriage could cause a significant decrease in a station’s ratings and a resulting loss in advertising revenues.”³⁸

Based on the foregoing, the Court finds that the government has met its burden of showing that there was substantial evidence that “the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry.” Turner at -, 114 S.Ct. at 2470.

B. Narrow Tailoring

The government also bears the burden of showing that the must-carry provisions do not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Turner at -, 114 S.Ct. at 2470, citing Ward, 491 U.S. at 799, 109 S.Ct. at 2758. The intermediate scrutiny analysis must begin with the “actual effects” of the law on the cable industry. Turner at -, 114 S.Ct. at 2472. The Supreme Court stated that a determination on the tailoring question cannot be made “unless we know the extent to which the must-carry provisions in fact interfere with protected speech.” Id. The answers to the following questions are critical — “the extent to which cable operators will, in fact be forced to make changes in their current or anticipated programming selections; the degree to which cable programmers will be dropped from cable systems to make room for local broadcasters; and the extent to which cable operators can satisfy their must-carry obligations by devoting previously unused channel capacity to the carriage of local broadcasters.” Id.

i. Actual Effects

There was substantial evidence before Congress from which it could have drawn a reasonable inference that the burden to the cable industry as a consequence of the must-carry provisions would not be substantial. There is no doubt that the evidence before Congress indicated that in 1992 the cable industry was healthy and expanding. The cable industry itself provided evidence that technological developments would soon vastly increase the channel capacity of cable systems. The National Cable Television Association (“NCTA”) reported that the development of fiber optic cable meant that “[t]he existing coaxial cable to every home is theoretically capable of carrying 100-200 channels.”³⁹ The Association further reported that “all of the twenty largest multiple system operators (MSOs) already ha[d] begun installation of fiber within their systems, with the amount of fiber installed by these companies increasing 400 percent since 1988.”⁴⁰ The Association predicted that “consumers who today can choose from dozens of cable channels soon will have a video menu of well over 100 options.”⁴¹

Additional evidence from Plaintiffs’ own expert further confirms Congress’ prediction. According to Dr. Peter Shapiro, there are approximately 11,628 cable systems nationwide. The average cable system has a capacity of 43 channels, which means that the cable industry’s total channel capacity is over 500,000 channels. Five thousand eight hundred and eighty local broadcast stations were added to cable systems as a result of the must-carry rules. Based on these numbers, it becomes apparent that only 1.2 percent of the cable channel capacity is occupied by broadcast stations added to cable systems as a result of the must-carry rules.⁴² At least 69% of the cable systems have not been required to add any broadcast station since the rules were adopted. Accordingly, cable operators have not been “forced to make” substantial “changes in their current or anticipated programming selections” as a result of the must-carry rules. Turner at -, 114 S.Ct. at 2472.

Moreover, evidence from Dr. Shapiro, Plaintiffs’ expert, indicates that the degree to which cable programmers have been dropped from or repositioned by cable systems to make room for local broadcasters has been limited. Dr. Shapiro reports that only 640 out of 11,628 cable systems have had to drop even a single programmer from their line-ups due to the addition of broadcast stations as a result of the must-carry provisions. He estimated that the total number of drops occasioned by the must-carry rules is 780 and that only 530 of these drops have been drops of cable programmers. The President of Telecommunications, Inc. (TCI), the largest multiple-cable system operator (MSO) in the country, testified that TCI has been able to add programming which was dropped as a result of the must-carry rules as the channel capacity of its cable systems has increased. DAE Vol. VI.A, Exh. 2, Clouston Dep. at 63-64. As to repositioning, Dr. Shapiro reported that only 1,350 cable systems reported that they had repositioned any programming as a result of must-carry. These systems indicated that they had repositioned a total of 1,740 programmers, 1,385 of which were cable programmers.⁴³

The statistics cited by Dr. Shapiro indicate that cable operators have been able to satisfy their must-carry obligations 87% of the time by devoting previously unused channel capacity to the carriage of local broadcasters. Dr. Shapiro indicated that in order to carry the 5,880 broadcast stations added as a result of the must-carry rules, 640 cable systems had to drop only 780 programming services. DAE H.A., Exh. 5, Shooshan Deel. ¶14.⁴⁴

Not only does the Plaintiffs’ evidence indicate that the burden due to the must-carry rules has been small, but also the evidence demonstrates that this burden is likely to diminish as the channel capacity increases. The Supreme Court itself recognized that “given the rapid advances in fiber optics and digital compression technology, soon there may be no practical limitation on the number of speakers who may use the cable medium.” Turner at -, 114 S.Ct. at 2457. Paul Kagan Associates, Inc., which the parties have stipulated is “a widely respected source of data and information concerning the cable and television industries,” made the following predictions regarding the increasing number of cable channels which would become available to the average television household:

1996: 59

1997: 69

1998: 80

1999: 93

2000: 111

2001: 135

2002: 157

2003: 180

DAE Yol. U.A., Exh. 5, Shooshan Aff., Exh. T (The Kagan Media Index, Sept. 30, 1994). The introduction of digital compression technology is expected to fuel the expansion of channel capacity. See generally The Cable Television Industry: New Technologies, New Opportunities and New Competition, March 8, 1993 (DAE Vol., VII.R., Exh. 426) at 42-43. As this Court noted in its last opinion, “At some point, technological innovation will enable cable systems to accommodate all broadcasters requesting carriage, thereby rendering ‘must-carry’ a problem of the past.” 819 F.Supp. at 54, n. 5.

ii Tailoring

Having determined that the burden to the cable industry is quite small and is expected to diminish, the question becomes whether the burden on protected speech is “substantially more .. than is necessary to achieve the government’s legitimate interests.” Turner at -, 114 S.Ct. at 2469 (citing Ward, 491 U.S. at 799, 109 S.Ct. at 2758). Under intermediate scrutiny, there need not be a perfect fit between the means and the ends as with strict scrutiny analysis.

While the “[government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals,” a regulation under the intermediate standard of scrutiny “will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Ward at 799-800, 109 S.Ct. at 2758. The narrow tailoring standard is satisfied “ ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Id. (citing United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)). Under this standard, “the government is not required to settle for means that serve its interests less effectively merely because an alternative might be less burdensome.” Turner, 819 F.Supp. at 47.

Plaintiffs assert that the must-carry rules fail the narrow tailoring test because there are less-restrictive means of achieving the government’s purpose. Specifically, the Plaintiffs contend that there were some five less restrictive alternatives. These are: 1) adoption of the Century Rules;⁴⁵ 2) use of A/B switches which allow viewers to switch from receiving cable reception to receiving over-the-air broadcast reception; 3) direct governmental subsidies to local disadvantaged, over-the-air broadcasters; 4) imposition of charges for carriage; and 5) policing of cable operators’ alleged abuses of power through antitrust and FCC enforcement. But even assuming that they would be less burdensome, it is clear they are not in any respect as effective in achieving the government’s important objectives — 1) promoting fair competition in the market for television programming; 2) preserving the benefits of free, over-the-air local broadcast television; and 3) promoting the widespread dissemination of information from a multiplicity of sources.

i. Century Rules

The Century cable rules, which were imposed by the FCC, clearly would not come close to providing the same coverage as that provided by the 1992 Cable Act rules. Plaintiff Turner readily admitted that “86% of the must carry broadcast stations that were added under the Cable Act rules would not have been required to be added under the Century rules.” Turner Memo, at 55 (emphasis in original). The stations opting for carriage under the must-carry provisions of the Cable Act are the very stations that would in all likelihood be dropped in the absence of such rules.

ii. A/B Switches

With respect to “A/B” switches, there was substantial evidence before Congress from which it could reasonably conclude that these switches do not represent an equally effective alternative. The then President and Chief Executive Officer of Plaintiff National Cable Television Association (“NCTA”), James P. Mooney, testified before Congress that by using the A/B switch

“the subscriber would lose the picture-improvement feature of the cable antenna service. In addition, all but a handful of hand-held remote control units now in use would be rendered partially or altogether ineffective. Predictably, consumers would be puzzled, and many angered, by the ‘switched signals.’ ”⁴⁶

The “risk of signal degradation and signal leakage” were also problems of which Congress was apprised by Adelphia Communications, a multiple system operator (“MSO”).⁴⁷

The NCTA’s Committee on Engineering concluded that the costs entailed by A/B switches “far outweigh the benefits” because “of the inconvenience that they will cause the subscriber” and “because the subscriber will not have a VHF antenna capable of receiving off-air [broadcast] signals.”⁴⁸ Congress also had before it the results of a 1991 consumer survey which found that

consumers are not willing to use A/B switches. Four years after the FCC began a mandatory consumer education program about A/B switches, of all sets connected to a cable system, less than 12 percent also were connected to an antenna and an A/B switch. Only half of those households could recall ever using the A/B switch. Consumers appear unwilling to bear the expense of subscribing to cable and of maintaining an adequate antenna for off-the-air reception ...

Cable Television Consumer Protection and Competition Act of 1992, H.R.Rep. No. 628, 102d Cong., 2d Sess. (June 29, 1992) at 54, CR 00433.

The evidence produced subsequent to the remand also confirms that A/B switches would not be effective. Defendants’ expert, Mr. Eldon Haakinson, stated that switching between broadcast and cable reception “by using an A/B switch may involve substantial equipment complexity, viewer inconvenience, and a compromised ability to use many features of the home entertainment system.”⁴⁹ A 1993 survey conducted by TCI found that 68% of consumers find A/B switches “fairly or very inconvenient.”⁵⁰

Hi. Subsidies

It is extremely difficult to analyze whether direct government subsidies represent a viable alternative, let alone an equally viable alternative to the must-carry provisions of the Cable Act, given that the structure of the subsidies has not yet been set forth by either the Plaintiffs or Congress. Several problems come to mind with respect to a subsidy program.

First, fiscal realities could render the alternative a nullity. Present and future budget restraints might reduce the enactment of subsidy legislation. See Time Warner Entertainment Co., L.P. v. F.C.C., 56 F.3d 151, 186 (D.C.Cir.1995) (Randolph, J.) (under intermediate standard of scrutiny analysis of FCC’s rate regulation of cable television operators, D.C. Circuit found that alternative remedy would be “unworkable”). Second, Congress would have to make the complex determinations as to who to subsidize, how much the subsidy would be and when the subsidy would end. In deciding who to subsidize, Congress would have to steer away from content decisions because of First Amendment concerns. If the subsidy were too large, Congress would be guaranteeing the continued existence of a broadcast station which would not otherwise have been able to survive. The must-carry rules simply ensure that a broadcast station will have equal access to the viewers — they do not guarantee the financial viability of the broadcast industry or any of its members.

The Court is simply unable to make an informed analysis of this proposed alternative to which the Plaintiffs have attached no significant details. Certainly, it is not this Court’s role to engage experts to develop a proposed subsidy alternative which might be equally viable but less burdensome to protected speech. Plaintiffs have not suggested an alternative which this Court can test.

iv. Leased Access

The expansion of leased access carriage also does not represent an equally effective alternative. Congress specifically prohibited cable operators from charging stations for carriage under the must-carry provisions. Many of the stations invoking the must-carry protections are economically vulnerable and would not be able to pay a carriage charge or would have to reduce the expenditures on their programming in order to pay the fee. As such, the quantity and quality of programming available to non-cable households would be diminished.

v. Antitrust Remedies/ Ad Hoc Complaint Procedures

Antitrust remedies and ad hoc complaint procedures also fail the equally effective test. The problems to be cured by the must-carry provisions are not susceptible to regulation by the antitrust laws. What is more, even if it could accomplish Congress’ objective, antitrust litigation is very time-consuming, cumbersome and expensive. As Robert Schmidt of the Wireless Cable Association testified, “it is not a very satisfactory solution to expect individual, entrepreneurial, start-up companies, who are relatively less well funded, to take on some of the country’s largest [cable] companies on a case-by-case, market-by-market basis in antitrust litigation.”⁵¹

Plaintiffs suggest that a complaint procedure could be established before the FCC in which the “FCC ... would resolve in individual cases, whether noncarriage of a local broadcast station[ ] reflects a reasonable business decision of the cable operator or one tainted by anti-competitive incentives.” TW Memo, at 81. Such a procedure — regulation by exception — would necessarily create an enormous administrative burden. See Time Warner Entertainment Co., L.P. v. F.C.C., 56 F.3d 151 (D.C.Cir.1995) (Randolph, J.) (rejected holding a cost-of-service proceeding for each regulated cable system as a viable alternative because the alternative “would also cause operators to incur expenses and would in any event be unworkable in light of administrative burdens.”)

C. Other Matters

There are three remaining ancillary claims raised by the Plaintiffs, namely: (1) that the must-carry provisions constitute an unlawful taking of private property; (2) that the must-carry provisions are invalid as applied to “predominantly religious television stations;” and (3) that provisions regarding low power stations are not content neutral and are violative of the First Amendment.

With respect to the takings issue, the Court does not believe the issue is one to be decided on summary judgment at this stage of the proceedings. The parties did not argue this issue on appeal and have given it only limited treatment on remand. Indeed, there is some question whether the Plaintiffs’ failure to raise their Fifth Amendment takings claim before the Supreme Court results in a waiver of that claim.

Even if not waived, a takings claim seems out of place in this litigation which seeks declaratory and injunctive relief, a remedy rarely available for takings claims. See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Obviously, if it is determined that sections 4 and 5 do effect a taking — an issue the Court is not here deciding — a payment of just compensation would cure any constitutional infirmity. Although a takings claim invokes the Fifth Amendment, such a claim if sustained would not necessarily invalidate the 1992 Cable Act in its totality. As such, a takings claim does not appear to be the type of challenge which 47 U.S.C. § 555(c)(1) requires be litigated before a three judge panel. These claims, because they pertain to specific property interests, are best dealt with on a case-by-case basis. An appropriate forum for such determinations would be the United States Court of Federal Claims. 28 U.S.C. § 1491(a)(1). Perhaps more important, we do not want to dilute the issues the Supreme Court has asked us to address with consideration of ancillary matters not expressly remanded to us.

Accordingly, we will dismiss the takings claim without prejudice. After the constitutionality of sections 4 and 5 are definitively resolved, Plaintiffs may reassert their takings claim before the appropriate forum. All parties will preserve all procedural and substantive rights.

The Court also has been presented with a religious challenge to the must-carry provisions. Specifically, Plaintiff-intervenor Atlanta Interfaith Broadcasting (“AIB”) moves for partial summary judgment and a declaration that sections 4 and 5 of the 1992 Cable Act violate the Establishment and Free Exercise Clauses of the First Amendment.

We believe this issue was properly dealt with by this Court’s earlier majority opinion, which held that the must-carry provisions were consistent with both the Establishment and the Free Exercise Clauses of the First Amendment. Turner, 819 F.Supp. at 49. Since the Supreme Court did not disturb this holding, the Court will treat this issue as having been decided.

The final matter before this Court is the issue of the content-neutrality of the 1992 Cable Act provisions relating to low power stations. Under certain circumstances, the must-carry provisions require carriage of one or more qualified low power stations. 47 U.S.C. § 534(c). A low power station is qualified for carriage if the FCC determines, among other things, that the station’s programming “would address local news and informational needs which are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station’s community of license.” § 534(h)(2)(B). In addition, the FCC may qualify for must-carry privileges an otherwise ineligible low power station, depending in part on whether the requesting station provides coverage of news, sports or other items “of interest to the community.” § 534(h)(l)(C)(ii)(III).⁵²

Noting that this Court in its earlier opinion did not address whether these particular provisions are content-based, the Supreme Court remanded the issue for us to consider the “content-neutral or content-based character” of the provisions. Turner, — U.S. at -, n. 6, 114 S.Ct. at 2460, n. 6.

Although the provisions at issue here are very close to content-based legislation triggering strict scrutiny, we do not believe that they cross the line. As noted in this Court’s earlier opinion, the low power stations provisions are viewpoint-neutral. Moreover, nothing in the record suggests in any manner that the provisions were motivated by a desire to promote or discourage broadcast of certain messages. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (noting that the “principal inquiry in determining content-neutrality ... is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys”). Indeed, we note that the government’s interest in ensuring the viability of “over-the-air broadcasting” seems to be especially on point here, as the low power stations are the ones that are particularly economically sensitive to cable’s increasing market power. Applying the standard of intermediate scrutiny, we do not believe these provisions run afoul of the Supreme Court’s admonitions regarding First Amendment protections.

It is far from clear that the Plaintiffs have asserted a potential injury sufficient to grant them standing with respect to this claim. Were the statute to make all low power stations qualified for must-carry, the provisions would withstand First Amendment scrutiny for the reasons stated with respect to their full power counterparts. To the extent the provisions, as passed, exclude certain low power stations from must-cany eligibility, the challenged provisions limit the number of stations for which the Plaintiffs could be required to provide carriage. In doing so, the provisions potentially ameliorate the impact of the must-carry provisions on the Plaintiffs. Even if Plaintiffs could articulate a basis for vindicating the rights of those low power stations excluded from the protections of the must-carry provisions, there is nothing in the statute which precludes the cable companies from voluntarily granting carriage to any low power station, whether or not it is entitled to qualified status.

Finally, it must be remembered that this is an action essentially for declaratory relief. Nothing in this opinion would prevent any cable company, or indeed any low power station, from seeking relief or raising a First Amendment argument should a specific application of these provisions cause a clear injury.

CONCLUSION

After three long years of hearings and investigation, Congress made the judgment that the broadcast industry was in need of the protections afforded by the must-carry provisions in order to promote fair competition, preserve free, over-the-air local broadcast television and promote the widespread dissemination of information from a multiplicity of sources. Congress enacted comprehensive, prophylactic measures to avert a storm that it saw gathering on the horizon. By its actions, Congress sought to “neutralize the adverse effects of cable companies’ monopolistic behavior.” Id. at 54.

As stated by the Supreme Court in its opinion, courts are compelled to accord substantial deference to Congress’ predictive judgments. In the extensive record compiled by Congress, there is substantial evidence from which Congress could have drawn reasonable inferences that the must-carry regulations were necessary to protect the economic health of the broadcast industry and that the burden to cable industry imposed by the regulations would not be substantial. Additional evidence produced during the remand proceedings confirms Congress’ judgments.⁵³

The means which Congress chose to avert the evil which it had identified satisfy the narrow tailoring test. Intermediate scrutiny does not require a perfect fit, and none of the alternatives suggested would be as equally effective in promoting Congress’ goals. In this case, Congress conducted a comprehensive investigation and engaged in thoughtful analysis. The laws which it enacted are appropriate and do not offend the Constitution.

Based on the foregoing analysis, the Court finds that sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 survive the “intermediate level of scrutiny applicable to content-neutral restrictions that impose only an incidental burden on speech” as set forth in O’Brien. Turner at -, 114 S.Ct. at 2469. Accordingly, the Court grants the Defendants’ motions for summary judgment and denies the Plaintiffs’ motions for summary judgment.

For the foregoing reasons, it is, this 1 day of December, 1995,

ORDERED that plaintiffs’ claim that the must-carry provisions constitute an unconstitutional taking without just compensation is DISMISSED WITHOUT PREJUDICE; and it is,

FURTHER ORDERED, that,'with respect to all remaining issues, Plaintiffs’ motions for summary judgment are DENIED, and Defendants’ motions for summary judgment are GRANTED.

1 . A three-judge District Court was convened pursuant to 28 U.S.C. § 2284 as required by the Cable Television Consumer Protection and Competition Act of 1992 § 23, 47 U.S.C. § 555(c)(1).

2 . The "must-carry” provisions are found in sections 4 and 5 of the 1992 Cable Act. 47 U.S.C. §§ 534-535.

3 . Before enacting the 1992 Cable Act, Congress held three years of hearings on the structure and operation of the cable television industry. Turner at -, 114 S.Ct. at 2454 (citing S.Rep. No. 102-92, pp. 3-4 (1991) (describing hearings); H.R.Rep. No. 102-628, p. 74 (1992) U.S.Code Cong. & Admin.News 1992, pp. 1133, 1135, 1136 (same)).

4 . The Plaintiffs do not question the right of Congress to make predictive judgments and pass prophylactic measures. Congress must not wait to act until the "storm” is in full force.

5 . As mentioned supra, the Supreme Court indicated that this Court could consider additional evidence since the passage of the Act. Logic dictates that the same deferential standard of review be applied to the additional evidence as is applied to the evidence which Congress could weigh. The Court cannot weigh the additional evidence de novo and substitute its views for that of Congress. Rather, this Court can determine if there is substantial additional evidence which lends support to Congress' judgments.

6 . CR Vol. I.GG., Exh. 211.

7 . It is interesting to note that substantial additional evidence indicates that cable systems now control 64% of the market. See Tom Meek Declaration, ¶ 112.

8 . There was evidence before Congress that "[b]y the end of this decade, cable penetration could climb to over 70%.” CR Vol. I.Q., Exh. 75, CR 11256 — "Broadcast Television in a Multichannel Marketplace,” OPP Working Paper Series, June 1991, p. 73, Table 16.

9 . This Judge noted in his concurring opinion in the case below that “local and federal government regulation played an important role in allowing cable to achieve the position it has today ...” 819 F.Supp. at 53. The Supreme Court recognized that "the cable medium may depend for its very existence upon express permission from local governing authorities.” Turner at -, 114 S.Ct. at 2452.

10 . There was evidence before Congress that 99% of the television communities were served by only one cable system. CR Vol. LX, Exh. 119, CR 14120 — Reply Comments of the National Association of Broadcasters, Appendices A through C to Davis Wright Tremaine.

11 . Plaintiffs suggest that when assessing whether there was substantial evidence from which Congress could draw a reasonable inference that local broadcasting was in jeopardy the Court should examine the broadcasting industry as a whole. According to Plaintiffs, Defendants’ own experts concede that the economic health of the broadcasting industry as a whole is not in genuine jeopardy. However, Plaintiffs mischaracterize the relevant inquiry. The relevant inquiry is whether the health of those broadcasters protected by the must-carry provisions would be in jeopardy without the provisions. The Supreme Court never really questioned Congress’ decision that the group of broadcasters covered by the must-carry provisions are entitled to the protections afforded by those provisions if they are in genuine jeopardy, so long as the regulations meet the narrow tailoring requirements.

12 . Paul Kagan & Associates, Cable TV Advertising, in MM Docket No. 85-349 at 1 (Feb. 28, 1986); CR Vol. I.GG, Exh. 209, CR 18280.

13 . Edward Fritts, President and CEO of the National Association of Broadcasters, testified, “For local advertising, cable systems in many areas have developed the ability to interconnect so that advertising can be sold across several systems, allowing coverage roughly comparable to that of local broadcasters.” CR Vol. I.H., Exh. 15, CR 5744-45.

14 . For example, Congress heard testimony that

cable advertising generally is the fastest-growing segment of the video advertising market, with a potential for substantial growth whether or not there are further increases in penetration or cable viewing. As growth in cable penetration peaks and levels off, efforts of cable operators to exploit advertising opportunities will increase. The incentive of cable operators to pursue advertising opportunities will intensify even further if growth in subscription revenues is curtailed by regulation of cable subscription rates.

CR Vol. I.Q., Exh. 74, CR 11235, Comments of Chris-Craft Industries, Inc.

15 . CR Vol. I.J., Exh. 18, CR 7237, 7238 — Statement of the Association of National Advertisers, Inc.

16 . FCC Report, “In the Matter of Competition, Rate Deregulation and the Commissions Policies Relating to the Provision of Cable Television Service,” MM Docket No. 89-600 at ¶ 11-12 (July 31, 1990); CR Vol. I.L, Exh. 23, CR 08984.

17 ."Hearings on Competitive Problems" at 385 (Table 1); CR Vol. I.H., Exh. 14, CR 05318. The 1988 FCC “Cable System Broadcast Signal Carriage Survey Report” was undertaken at Congress’ request in order to study the "signal carriage practices of cable systems with respect to broadcast television stations in the absence of mandatory carriage.” See CR Vol. X.P., Ex. 52, CR 10648. Survey forms were sent to 1,356 broadcast stations and 8,504 cable systems. The broadcast stations, who would have been entitled to the pre-July 19, 1985 must carry rules, were asked, among other questions, whether adverse carriage actions were taken against them after July 19, 1985 when the must-carry rules that had been in effect were invalidated in Quincy Cable TV Inc. v. FCC, 768 F.2d 1434 (D.C.Cir.1985). Id.

18 . "Hearings on Competitive Problems” at 394 (Table 9); CR Vol. I.H., Exh. 14, CR 05327.

19 . CR Vol. I.Z., Exh. 140, CR 15297 — 15298, 15306-07.

20 . "Hearings on Cable Television” at 321 (Statement of James H. Quello); CR Vol. I.D., Exh. 9, CR 02407.

21 . "Hearings on Cable Television” at 322 (Statement of James H. Quello); CR Vol. I.D., Exh. 9, CR 02408.

22 . In fact, if the burden to the cable industry were much smaller, then the First Amendment would not even be implicated.

23 . Defendants' Additional Evidence ("DAE”) Vol. VII.N, Exh. 344.

24 . DAE Vol. VII.N, Exh. 345.

25 . Dr. Noll is the Morris M. Doyle Professor of Public Policy in the Department of Economics at Stanford University. He received a Ph.D. in economics from Harvard University and has a B.S. in mathematics from the California Institute of Technology. His primary Held in economics is industrial organization and regulation, with an emphasis on communications policy.

26 . Dr. Haring is a Principal of Strategic Policy Research, Inc., an economics and public policy consulting firm, where he provides consulting services to a variety of clients in the mass media and telecommunications industries. He has a M.Ph. and Ph.D. in economics from Yale University. Between 1983 and 1990, he worked at the Federal Communications Commission, where he was the Chief of the Office of Plans and Policy, and then the Chief Economist.

27 . Dr. Dertouzos is employed as a public policy analyst by the RAND Corporation. He received a Ph.D. in economics from Stanford University in 1979 and has conducted research on a variety of topics, including the economics of advertising, cable television, newspaper markets, and other mass media industries.

28 . Mr. Meek has been involved in the television broadcasting business since 1973, and has worked in a variety of roles at stations affiliated with Fox, NBC, ABC and PBS as well as independent stations. Over the past ten years, he has served as a consultant and adviser to numerous television, cable and other interests on a variety of issues generally concerning the carriage of broadcast stations by cable systems, ratings research, and other broadcast issues. He has a Bachelor of Science in Broadcasting from the University of Florida.

29 . Mr. Feldman is a Senior Vice President and General Manager of Norman Hecht Research, Inc. (“Norman Hecht”), a research, management, and marketing services firm specializing in the provision of ratings, programming, revenue and market analysis and consulting to firms in the cable and broadcast television industries. He has a Master of Science degree from MIT and has been employed in the media research business for ten years.

30 . The Association of Independent Television Stations, Inc. provided testimony that "[t]he single most significant factor in the amount a television station can charge for advertising on the station is the size of its audience.” CR Vol. I.Q., Exh. 73, CR 11116-17. Accordingly, "[a] decrease in a television station's audience ... produces a like decrease in revenue.” Id.

31 . According to the National Association of Broadcasters (NAB), programming costs are a significant expense for local broadcast stations. For example, the NAB reported that in 1984, stations spent on average 47.7 percent of their revenues upon program production and acquisition. CR Vol I.BB, Exh. 165, CR 16192. Buffalo Broadcasting Co., Inc. reported, "When revenues decrease, items necessary to improve the quality of local news — mobile satellite dishes, electronic news gathering equipment, mobile radios, travel budget for news staff — must be cut back or eliminated.” CR Vol. I.GG., Exh. 211, CR 18289. Harvey E. Cohen, President and General Manager of WDZL, Channel 39, Miami, FI. stated that "when his station cannot reach viewers because of adverse channel positioning '[t]his will ultimately affect my ability to air quality programming’ that serves the public's interest." CR Vol. I.R., Exh. 85, CR 11505.

FCC Commissioner Quello commented with respect to the impact of drops on public television stations,

The dropping of a public television station can have enormous impact on a station's revenues ... Given current uncertainties surrounding the levels of government funding for public broadcasting, declines in revenues from being dropped by cable operators can be devastating. Moreover, some advertiser supported cable networks compete with public television for programming. Increased cable revenues combined with decreases in funding place public television in a form of double jeopardy.

CR Vol. I.D., Exh. 9, CR 2409-10.

32 . Before Congress was Dr. Michael Wirlh’s article, "The Economic Impact of Cable on Broadcasting," in which he stated, "[fjailure to arrange for adequate carriage usually means that no financing is forthcoming.” CR I.H., Exh. 14, CR 5266. See also, JSCR ¶¶ 643-658.

33 . See footnote 45, infra, on Century Rules.

34 . The Association of Independent Television Stations, Inc. provided the following evidence:

Lack of assured carriage also has stifled construction of authorized facilities. Since December 11, 1987, when the must carry rules were held unconstitutional, 116 construction permits have been granted for new broadcast television stations. However, only 33 have commenced operation, and one of those already has ceased operating. Applications are pending for 42 channels, and 223 channels remain vacant.

The same trend is evident in the number of pending applications for new television stations. Among communities in which applications are still pending, applications for 11 communities were filed in 1987, but for only six in 1988, for seven in 1989, for nine in 1990 and for three in 1991.

CR Vol. I.Q., Exh. 81, CR 11378.

35 . Mr. Schütz is a broadcast financial consultant and Vice President of Hoffman-Schutz Media Capital, Inc. In the past 23 years, he has conducted over 600 economic/financial studies dealing with different aspects of commercial radio and television stations in the United States. He has a B.S. degree from Ithaca Collage and a M.B.A. from American University.

36 . Dr. Rohlfs is Principal of Strategic Policy Research, Inc., an economics and consulting firm. He received a Ph.D. in economics from M.I.T. and an A.B. degree in economics from Amherst College. He provides consulting services to a variety of clients in the communications industries, including cable and mass media.

37 . Mr. Abbott is Senior Vice President of Development and Corporate Relations of the Public Broadcasting Service. He has a M.B.A. from Stanford University and a B.A. from Columbia University.

38 . “Broadcast TV Study,” DAE Vol. II.A, Exh. 1, Haring Decl. at Attachment B.

39 . "Hearings on Cable Television Regulation,” at 555-56 (Testimony of Decker Anstrom); CR Vol. I.J., Exh. 18, CR 07560.

40 . Cable-Instructional TV and Communications Competitiveness and Infrastructure Modernization Act of 1991: Hearings on S. 1200 Before the Subcommittee on Communications of the Committee on Commerce, Science, and Transportation, 102d Cong., 2d Sess. at 122 (Feb. 28, 1992) (Statement of Philip L. Verveer of National Cable Television Association); CR Vol. I.K., Exh. 19, CR 08174.

41 . “Hearings on Cable Television Regulation” at 596 (Statement of Decker S. Anstrom); CR Vol. I.J., Exh. 18, CR 07601.

42 .In addition to the local broadcast stations “added” to cable systems as a restdt of the must-carry rules, there are other "must-cany” broadcast stations which the cable systems were already carrying prior to the rules. According to Dr. Shapiro, "Apart from the TV stations that were added to comply with must-carry rules, cable systems carried approximately 74,540 other TV broadcast stations ... that had must-carry status or were being carried under retransmission consent agreements.” Shapiro Must-Carry Report at 16.

43 . To the extent that cable programmers have been denied carriage, these programmers have cited several reasons for such denials in addition to the must-carry rules: 1) the FCC’s rate regulation; and 2) cable operators’ retransmission consent obligations. DAE Vol. VII.C., Exh. 73 at 3; TWE Statement of Material Fact ¶¶ 232, 237.

44 . Harry M. Shooshan III is a Principal of Strategic Planning Research, Inc., an economics and public policy consulting firm.

45 . The Century Rules were a more modest version of the 1992 law. These rules were found to be unconstitutional by the D.C. Circuit in Century Communications Corp. v. FCC, 835 F.2d 292 (D.C.Cir.1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988).

46 . Cable TV Consumer Protection Act of 1989, Hearings before the Subcommittee on Communications, S.Hearing 101-702, 101st Cong., 2d Sess., 74 (March 29, and April 4, 1990), CR Vol. I.H, Exh. 15, CR 05648 (Statement of James P. Mooney).

47 . Petition for Reconsideration by Adelphia Communications Coip., et al., 32-33, MM Docket No. 85-349 (Jan. 12, 1987) (CR Vol. I.DD., Exh. 184, CR 16897).

48 . Appendix A, Joint Petition for Reconsideration, MM Docket No. 85-349 (Dec. 17, 1986) (CR Vol. I.DD., Exh. 183, CR 16742).

49 . DAE Vol. II.B, Exh. 7, Haakinson Deck ¶43. Mr. Haakinson is Acting Chief, Telecommunications Planning and Analysis Services Group, Institute for Telecommunications Sciences (ITS), the research branch of the National Telecommunications and Information Administration in the U.S. Dept, of Commerce.

50 . DAE Vol. VII.N., Exh. 291, at TCI-R-0009398.

51 . Cable TV Consumer Protection Act of 1991, Hearings before the Subcommittee on Communications, S. Hrg. 132, 102d Cong., 1st Sess. 306 (Statement of Robert L. Schmidt) (CR Vol. I.I., Exh. 17, CR 06764).

52 . At this juncture, any specific constitutional challenge could be raised.

53 . The House and Senate have recently reaffirmed their belief that the "must-carry” provisions are necessary to protect the viability of local broadcasting. Bills passed by both the Senate and House during the first session of the 104th Congress, which promote competition and reduce regulation in the cable and telecommunications industry, contain "must-carry" provisions. See H.R. 1555, 104th Cong., 1st Sess. § 656(b) (1995); S. 652, 104th Cong., 1st Sess. § 202(c) (1995).