View source for Turner Broadcasting System, Inc. v. FCC

{{Use mdy dates|date=September 2023}}
{{Infobox SCOTUS case
| Litigants = Turner Broadcasting v. Federal Communications Commission
| ArgueDate = October 7
| ArgueYear = 1996
| DecideDate = March 31
| DecideYear = 1997
| FullName = Turner Broadcasting System, Incorporated, et al., Appellants v. Federal Communications Commission, et al.
| USVol = 520
| USPage = 180
| ParallelCitations = 
| Prior = ''Turner Broadcasting v. FCC'', 910 F. Supp. 734 (D.D.C., 1995); ''Turner Broadcasting v. FCC'', 512 U.S. 622 (1994); ''Turner Broadcasting v. FCC'', 819 F. Supp. 32 (D.D.C., 1993).
| Subsequent = 
| Holding = [[Must-carry]] regulations are not a violation of the [[First Amendment to the United States Constitution|First Amendment]] rights of cable television companies.
| Majority = Kennedy
| JoinMajority = Rehnquist, Stevens, Souter; and Breyer (in part)
| Concurrence = Stevens
| JoinConcurrence = 
| Concurrence2 = 
| Concurrence3 = 
| Concurrence/Dissent = Breyer (in part)
| JoinConcurrence/Dissent = 
| Concurrence/Dissent2 = 
| Dissent = O'Connor
| JoinDissent = Scalia, Thomas, and Ginsburg
| LawsApplied = [[First Amendment to the United States Constitution|First Amendment]], [[Cable Television Consumer Protection and Competition Act]]
}}

'''''Turner Broadcasting System, Inc. v. FCC''''' is the general title of two rulings of the [[Supreme Court of the United States|United States Supreme Court]] on the constitutionality of [[must-carry]] regulations enforced by the [[Federal Communications Commission]] on [[cable television]] operators. In the first ruling, known colloquially as '''''Turner I''''', 512 U.S. 622 (1994), the Supreme Court held that cable television companies were [[First Amendment to the United States Constitution|First Amendment]] speakers who enjoyed [[Freedom of speech in the United States|free speech]] rights when determining what channels and content to carry on their networks, but demurred on whether the must-carry rules at issue were restrictions of those rights.<ref name=":0">''Turner Broadcasting System, Inc. v. FCC'', [https://scholar.google.com/scholar_case?case=5334675097720961353&q=512+U.S.+622&hl=en&as_sdt=6,39 512 U.S. 622] (1994).</ref> After a [[Remand (court procedure)|remand]] to a lower court for fact-finding on the economic effects of the [[Cable Television Consumer Protection and Competition Act of 1992]], the dispute returned to the Supreme Court. In '''''Turner II''''', 520 U.S. 180 (1997), the Supreme Court held that must-carry rules for cable television companies were not restrictions of their free speech rights because the U.S. government had a [[Government interest|compelling interest]] in enabling the distribution of media content from multiple sources and in preserving local television.<ref name=":2">''Turner Broadcasting System, Inc. v. FCC'', [https://scholar.google.com/scholar_case?case=11296061782551033984&q=520+U.S.+180&hl=en&as_sdt=6,39 520 U.S. 180] (1997).</ref>

== Background ==
When American consumers widely migrated to [[cable television]] in the 1980s, regulators became concerned about the viability of older [[Terrestrial television|terrestrial]] and [[Local programming|local television]] stations, which could not compete with cable TV but which were essential for delivering local news and other essential information. Additionally, consumers who had signed up for cable service would have no further need for their antennas, which were previously the only means to pick up local TV stations.<ref name=":0" />

Typically, cable television network operators voluntarily carried local stations because they were popular with consumers, but those channels took up space on the cable network that could be dedicated to more profitable channels.<ref>{{Cite book |last=Parsons |first=Patrick R. |title=Blue Skies: A History of Cable Television |publisher=Temple University Press |year=2008 |isbn=978-1-59213-287-4 |location=Philadelphia, PA |publication-date=2008 |pages=480–542}}</ref> The [[Cable Television Consumer Protection and Competition Act of 1992|Cable Television Consumer Protection and Competition Act]] of 1992, via a group of provisions that became known as [[must-carry]] regulations, required cable operators to include all relevant local broadcast stations in their offerings to an area's consumers, and to dedicate up to one-third of their channels for this purpose if necessary. This was done to promote localism in television content as required by the [[Communications Act of 1934]] and to maintain the viability of local broadcasters. The rules were to be enforced by the [[Federal Communications Commission]] (FCC).<ref>{{Cite journal |last=Frieden |first=Rob |date=Spring 2006 |title=Analog and Digital Must-Carry Obligations of Cable and Satellite Television Operators in the United States |journal=Media Law & Policy |volume=15 |issue=2 |pages=230–246 |via=HeinOnline}}</ref>

Soon after the statute's passage, various cable television companies, represented by [[Turner Broadcasting System]], filed suit in the [[United States District Court for the District of Columbia|US District Court for the District of Columbia]]. The companies alleged that they exercised free speech via their content delivery choices, and the must-carry rules requiring them to provide television channels that they would not otherwise carry were a form of unconstitutional [[compelled speech]]. Furthermore, the companies argued that the must-carry rules were a type of content-based regulation that required a [[strict scrutiny]] analysis to determine if the government's interest in molding the television marketplace outweighed the companies' [[First Amendment to the United States Constitution|First Amendment]] rights.<ref name=":1">''Turner Broadcasting System, Inc. v. FCC'', [https://scholar.google.com/scholar_case?case=9989596547149301616&q=819+F.Supp.+32&hl=en&as_sdt=6,39 819 F. Supp. 32] (D.D.C., 1993).</ref> In 1993, the District Court rejected those arguments and held that the must-carry rules were a type of economic regulation in which Congress employed "its regulatory powers over the economy to impose order upon a market in dysfunction." Under a less demanding [[intermediate scrutiny]] analysis for non-content-based regulations, the District Court held that the preservation of local broadcasting was an important governmental interest, and that the must-carry provisions were acceptably tailored to serve that interest.<ref name=":1" /> 

Turner Broadcasting System appealed that decision. Statutory provisions for cases involving federal regulations allowed a direct appeal to the [[Supreme Court of the United States|U.S. Supreme Court]], which granted ''[[certiorari]]'' in 1994.<ref name=":0" />

== ''Turner I'' ruling ==
In the Supreme Court's first review of the must-carry rules, now known as the ''Turner I'' ruling, the court focused primarily on whether the rules were a content-based regulation requiring a strict scrutiny analysis to determine if [[Freedom of speech in the United States|freedom of speech]] or [[Freedom of the press in the United States|freedom of the press]] had been violated.<ref name=":0" /> This would demand a complex examination of whether requiring a cable company to carry a TV station against its will was a type of [[compelled speech]]. Government attempts to require a media outlet to publish content against its will were deemed unconstitutional under the [[First Amendment to the United States Constitution|First Amendment]] in [[Miami Herald Publishing Co. v. Tornillo|''Miami Herald v. Tornillo'']] (1974).<ref>''Miami Herald Publishing Co. v. Tornillo'', [https://scholar.google.com/scholar_case?case=3261378222094247847&q=512+U.S.+622&hl=en&as_sdt=6,39 418 U.S. 241] (1974).</ref> However, that case involved newspapers, and the Supreme Court had also ruled in ''[[Red Lion Broadcasting Co. v. FCC]]'' (1969) that the FCC had greater economic authority over television due to the [[scarcity]] of broadcast frequencies and the [[Pervasiveness doctrine|pervasiveness]] of mass media content.<ref>''Red Lion Broadcasting Co. v. FCC'', [https://scholar.google.com/scholar_case?case=7640733876913500692&q=512+U.S.+622&hl=en&as_sdt=6,39 395 U.S. 367] (1969).</ref> Furthermore, courts had also determined that cable television operators had obligations to local communities due to the burdens of building network infrastructure.<ref name=":0" />   

These conflicting precedents necessitated an updated analysis of whether [[must-carry]] rules were benefits to local communities and whether they were burdensome for cable TV operators, with the assumption that those operators have free speech rights as well. The Supreme Court found the analysis of these matters, both by the District Court and Congress when writing the [[Cable Television Consumer Protection and Competition Act of 1992|Cable Television Consumer Protection and Competition Act]], to be deficient. Thus, the Supreme Court [[Vacated judgment|vacated]] the 1993 District Court ruling that upheld the must-carry rules and [[Remand (court procedure)|remanded]] the case to that court for further fact-finding on the economic and speech implications of the statute.<ref name=":0" />  

The case landed back at the D.C. District Court in 1995 for further investigation of impacts on consumers and cable companies. That court then reached the same conclusion that it had in 1993, finding that the must-carry regulations had a purely economic impact with no significant burden on content or the free speech rights of cable companies. Again exercising a less demanding [[intermediate scrutiny]] analysis for non-content-based regulations, the District Court held that the government had an important interest in preserving local broadcast TV channels.<ref>''Turner Broadcasting v. FCC'', [https://scholar.google.com/scholar_case?case=6597585522377819861&q=910+F.Supp.+734&hl=en&as_sdt=6,39 910 F. Supp. 734] (D.D.C., 1995).</ref> Turner Broadcasting System once again appealed to the Supreme Court with a compelled speech argument against the evidence compiled by the District Court.<ref name=":2" />
== ''Turner II'' ruling ==
The Supreme Court heard the updated case, now known as ''Turner II'', in October 1996. Acknowledging the cable companies' [[compelled speech]] argument, the Supreme Court analyzed the must-carry regulations under the more demanding [[strict scrutiny]] analysis to determine if the companies' free speech rights were violated. In a majority opinion written by Associate Justice [[Anthony Kennedy]], the Supreme Court ruled in favor of the government. However, the portion of Kennedy's opinion upholding the must-carry regulations as furthering the [[government interest]] of promoting fair competition was only joined by three other justices, demoting the rationale to a [[plurality decision]]. In the majority's view, the regulations were [[Narrow tailoring|narrowly-tailored]] by only requiring those stations to be added to an existing cable network that likely had space available, and allowing consumer choice on which channels to watch was not unduly restrictive for cable operators. Therefore, the must-carry regulations were constitutional and did not infringe on the [[First Amendment to the United States Constitution|First Amendment]] rights of cable television companies.<ref name=":2" />

Associate Justice [[Stephen Breyer]] provided the majority with its fifth vote to uphold the must-carry regulations, but he wrote a partial concurrence that rejected Kennedy's antitrust rationale. Instead, Breyer believed the compelling government interest was the preservation of local television to widely disseminate information from many sources.<ref>{{Cite book |last=Breyer |first=Stephen |author-link=Stephen Breyer |title=The Authority of the Court and the Peril of Politics |date=2021 |publisher=[[Harvard University Press]] |isbn=9780674269361 |location=[[Cambridge, Massachusetts]] |pages=82-83}}</ref> 

== Impact ==
After the Supreme Court's final ruling in 1997 on the constitutionality of must-carry cable regulations, the enforcement of such regulations by the FCC was deemed essential in prolonging the viability of local television channels in an unfavorable media landscape. The rapid expansion of cable networks quickly reduced the technological burden of carrying local channels.<ref>{{Cite journal |last=Valcke |first=Peggy |date=Spring 2006 |title=The Future of Must-Carry: From Must-Carry to a Concept of Universal Service in the Info-Communications Sector |journal=Media Law & Policy |volume=15 |issue=2 |pages=247–265 |via=HeinLone}}</ref> These developments were particularly important for the viability of [[Public broadcasting|public television]] in the United States, which was unlikely to be financially viable in the cable-dominated marketplace.<ref>{{Cite journal |last=Brown |first=Justin |date=Fall 2005 |title=Digital Must-Carry & the Case for Public Television |journal=Cornell Journal of Law and Public Polic |volume=15 |issue=1 |pages=73–110 |via=HeinOnline}}</ref>     

However, many legal commentators were unconvinced by the Supreme Court's stance that [[must-carry]] regulations were not [[compelled speech]] or a [[Fifth Amendment to the United States Constitution|taking of property]],<ref>{{Cite journal |last=Lung |first=Albert N. |date=November 2000 |title=Must-Carry Rules in the Transition to Digital Television: A Delicate Constitutional Balance |journal=Cardozo Law Review |volume=22 |issue=1 |pages=151–222 |via=HeinOnline}}</ref><ref>{{Cite journal |last1=Laughner |first1=Nissa |last2=Brown |first2=Justin |date=April 2006 |title=Cable Operators' Fifth Amendment Claims Applied to Digital Must-Carry |journal=Federal Communications Law Journal |volume=58 |issue=2 |pages=281–320 |via=HeinOnline}}</ref> and others found the court's examination of the economic impacts on local and national media markets to be insufficient.<ref name=":3">{{Cite journal |last=Hazlett |first=Thomas W. |date=2000 |title=Digitizing 'Must-Carry' under Turner Broadcasting v. FCC |journal=Supreme Court Economic Review |volume=8 |pages=141–207|doi=10.1086/scer.8.1147074 }}</ref><ref>{{Cite journal |last1=Lopatka |first1=John E |last2=Vita |first2=Michael G. |date=1998 |title=The Must-Carry Decisions: Bad Law, Bad Economics |journal=Supreme Court Economic Review |volume=6 |pages=61–122 |doi=10.1086/scer.6.1147103 |via=HeinOnline}}</ref> The case was influential throughout the era in which [[Cable television|cable]] was the dominant format for consumer television, but its applicability for later digital and [[Streaming media|streaming]] systems is uncertain.<ref name=":3" /><ref>{{Cite journal |last=Aaron |first=Harris J. |date=June 2000 |title=I Want My MTV: The Debate over Digital Must-Carry |journal=[[Boston University Law Review]] |volume=80 |issue=2 |pages=885–906 |via=[[HeinOnline]]}}</ref>  

==See also==
* [[List of United States Supreme Court cases, volume 520]]
* [[List of United States Supreme Court cases by the Rehnquist Court]]
* [[United States free speech exceptions]]

==References==
{{reflist}}

==External links==
*{{caselaw source
 | case =Turner Broadcasting v. Federal Communications Commission, {{ussc|512|622|1994|el=no}}
 | cornell =https://www.law.cornell.edu/supremecourt/text/512/622
 | courtlistener =https://www.courtlistener.com/opinion/117869/turner-broadcasting-system-inc-v-fcc/
 | findlaw = https://caselaw.findlaw.com/us-supreme-court/512/622.html
 | googlescholar = https://scholar.google.com/scholar_case?case=5334675097720961353
 | justia =http://supreme.justia.com/us/512/622/case.html
 | loc =http://cdn.loc.gov/service/ll/usrep/usrep512/usrep512622/usrep512622.pdf
 | oyez =https://www.oyez.org/cases/1993/93-44
 }}

{{US1stAmendment Freedom of the Press Clause Supreme Court case law}}
{{Federal Communications Commission}}

{{DEFAULTSORT:Turner Broadcasting V. Federal Communications Commission}}
[[Category:United States Supreme Court cases]]
[[Category:United States Supreme Court cases of the Rehnquist Court]]
[[Category:United States Free Speech Clause case law]]
[[Category:Broadcast case law]]
[[Category:1994 in United States case law]]
[[Category:Federal Communications Commission litigation]]
[[Category:Turner Broadcasting System]]