Turner Broad. Sys. v. FCC

Opinion

 [****9]  [***508]  [*626]  [**2451]     JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court, except as to Part III-B.

 Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations. This case presents the question whether these provisions abridge the freedom of speech or of the press, in violation of the First Amendment.

 The United States District Court for the District of Columbia granted summary judgment for the United States,  [*627]  holding that the challenged provisions are consistent with the First Amendment. Because issues of material fact remain unresolved in the record as developed thus far, we vacate the District Court's judgment and remand the case for further proceedings.

The role of cable television in the Nation's communications system has undergone dramatic change over the past 45 years. Given the pace of technological advancement and the increasing convergence between cable and other electronic media, the cable industry today stands at the center of an ongoing telecommunications revolution with still undefined potential [****10]  to affect the way we communicate and develop our intellectual resources.

The earliest cable systems were built in the late 1940's to bring clear broadcast television signals to remote or mountainous communities. The purpose was not to replace broadcast television but to enhance it. See United States v. Southwestern Cable Co., 392 U.S. 157, 161-164, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 (1968); D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video § 1.02 (1992); M. Hamburg, All About Cable, ch. 1 (1979). Modern cable systems do much more than enhance the reception of nearby broadcast television stations. With the capacity to carry dozens of channels and import distant programming signals via satellite or microwave relay, today's cable systems are in direct competition with over-the-air broadcasters as an independent source of television programming.

Broadcast and cable television are distinguished by the different technologies through which they reach viewers. Broadcast stations radiate electromagnetic signals from a central transmitting antenna. These signals can be captured, in turn, by any  [****11]  television set within the antenna's range. Cable systems, by contrast, rely upon a physical, point-to-point  [*628]   [***509]  connection between a transmission facility and the television sets of individual subscribers. Cable systems make this connection much like telephone companies, using cable or optical fibers strung aboveground or buried in ducts to reach the homes or businesses  [**2452]  of subscribers. The construction of this physical infrastructure entails the use of public rights-of-way and easements and often results in the disruption of traffic on streets and other public property. As a result, the cable medium may depend for its very existence upon express permission from local governing authorities. See generally Community Communications Co.  v. Boulder, 660 F.2d 1370, 1377-1378 (CA10 1981).

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