Turner Broadcasting Sys., Inc. v. FCC (Turner I), 512 U.S. 622 (1994); 520 U.S. 180 (1997) (Turner II)

From its humble origins as ‘‘community antenna television,’’ a technological bridge for extending broadcast television signals into remote or mountainous communities, cable television came to pose a formidable competitive threat to FCC policies favoring free, local, over-the-air broadcasting. The 1968 case of United States v. Southwestern Cable Co. upheld the FCC’s authority to regulate cable as a form of ‘‘interstate [or] foreign communication by wire or radio.’’ In the ensuing decades, the FCC made multiple efforts to protect local television stations, especially UHF and educational stations, against market erosion attributable to the rise of the cable industry. Most of these efforts—rules concerning the mandatory origination of programs by cable operators, the reservation of access channels on cable systems, distant signal and program exclusivity, and the ‘‘siphoning off’’ of premium feature films and sports events— became the subject of fierce litigation in the federal courts throughout the 1970s and 1980s.

Congress intervened in these disputes by passing the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 of the 1992 Act imposed a ‘‘must-carry’’ regime that entitled local broadcast television stations to carriage on cable systems operating within their local markets. Upon request, a cable operator was required to carry the signal of a local broadcast station. The Act required most cable systems to set aside as much as a third of their channel capacity for the benefit of broadcast stations invoking their must-carry rights.

The constitutional question posed by this mandatory access scheme was whether the must-carry rules would be reviewed under the withering standard of Miami Herald Publishing Co. v. Tornillo (418 U.S. 241, 1974), which invalidated a right-of-reply statute as applied to a newspaper, or the more deferential standard of Red Lion Broadcasting Co. v. FCC (395 U.S. 367, 1969), which upheld the FCC’s fairness doctrine, a right-of-reply system governing conventional radio and television broadcasters. As of 1994, no court had definitively determined whether cable operators should be treated like print journalists or like over-the-air broadcasters for First Amendment purposes.

In a pair of cases styled Turner Broadcasting System, Inc. v. FCC, the Supreme Court upheld the mustcarry scheme. In Turner Broadcasting I, decided in 1994, the Court distinguished cable from broadcasting. Writing for the majority, Justice Anthony Kennedy reasoned that cable ‘‘does not suffer from the inherent limitations that characterize the broadcast medium,’’ especially in light of ‘‘rapid advances in fiber optics and digital compression technology’’ and the minimal ‘‘danger of physical interference between two cable speakers attempting to share the same channel.’’

Turner I nevertheless rejected strict scrutiny. Two factors served to distinguish cable from print journalism, the medium historically associated with the most robust form of constitutional protection for free speech. First, ‘‘cable’s long history of serving as a conduit for broadcast signals’’ minimized the danger ‘‘that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator.’’ Second, whereas a ‘‘daily newspaper ... does not possess the power to obstruct readers’ access to competing publications,’’ cable operators enjoy a substantial degree of ‘‘bottleneck, or gatekeeper, control’’ over the flow of television programming into subscribers’ homes. The Court thereupon prescribed the intermediate scrutiny test of United States v. O’Brien (391 U.S. 367, 1968) which upholds governmental regulation of speech in furtherance of important or substantial non-speech-related interests, with no greater restriction on expression than is essential to the accomplishment of the government’s objective.

In Turner II, decided in 1997, the Supreme Court applied the O’Brien test to a more complete factual record detailing Congress’s motivation in enacting the must-carry scheme. Speaking again through Justice Kennedy, the Court found that Congress had garnered ‘‘specific support for its conclusion that cable operators had considerable and growing market power over local video programming markets.’’ The must-carry regime, Turner II concluded, ensures that vulnerable local broadcasters would retain their audiences and their advertising revenues by virtue of being carried on the dominant cable systems within their markets.

In concert, Turner I and Turner II provide significant support for governmental efforts to structure mass media markets according to the presumed link between the ownership or operation of communicative facilities (such as cable systems and broadcast networks) and the diversity of viewpoints expressed on those facilities. When coupled with parallel cases such as the 1978 case of FCC v. National Citizens Committee for Broadcasting (436 U.S. 775 1978) which upheld an FCC ban on the common ownership of a radio or television broadcast station and a daily newspaper in the same market, the Turner cases strongly inform ongoing controversies over the ‘‘carry one, carry all’’ scheme for direct broadcast satellite, national media cross-ownership restrictions, and the battery of FCC rules governing horizontal and vertical integration within the cable industry.

JIM CHEN

References and Further Reading

• Benjamin, Stuart Minor, Proactive Legislation and the First Amendment, Mich. L. Rev. 99 (2000): 281.
• Chen, Jim., The Last Picture Show (on the Twilight of Federal Mass Communications Regulation), Minn. L. Rev. 80 (1996): 1415.
• ———, Conduit-Based Regulation of Speech, Duke L. J. 54. Yoo, Christopher S., Vertical Integration and Media Regulation in the New Economy, Yale J. on Reg. 19 (2002): 171.
• ———, The Rise and Demise of the Technology-Specific Approach to the First Amendment, Geo. L. J. 91 (2003): 245.

Cases and Statutes Cited

• FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978)
• Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)
• Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)
• United States v. O’Brien, 391 U.S. 367 (1968)
• United States v. Southwestern Cable Co., 392 U.S. 157 (1968)

See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); United States v. O’Brien, 391 U.S. 367 (1968)