company to control the survival of any particular programmer. Thus, Congress could guarantee at least two owners but the court indicated serious constitutional doubts about a rule that assured at least A second holding in Time Warner, although not directly concerned with concentration, illustrates this developing approach to structural regulation. At the direction of Congress, the FCC prohibited a cable operator from using over 40% of its first 75 channels for programming owned by the cable operator or its affiliates By guaranteeing opportunities for unaffiliated programming, this requirement partially responds to potential anti-competitive effects of vertical integration-the combination of delivery and programming. The rule assures that audiences will receive programming created by more independent voices. In Times Warner, the court held the FCC had not meet first amendment requirements in justifying this rule. The first amendment problem is that the rule"restricts [cable companies']editorial control over a portion of the content they transmit "and, the court concludes, this"burden[s] substantially more speech than necessary. On similar grounds, another court found that a local regulation that required local cable operators to provide carriage facilities to Id at 1131 4ld.at1135 4247USC.§533(a1)B) 43Idat1139 ld.atl1291139 Baker-11/06/02
Baker - 11/06/02 - 19 - company to control the survival of any particular programmer.40 Thus, Congress could guarantee at least two owners but the court indicated serious constitutional doubts about a rule that assured at least four.41 A second holding in Time Warner, although not directly concerned with concentration, illustrates this developing approach to structural regulation. At the direction of Congress,42 the FCC prohibited a cable operator from using over 40% of its first 75 channels for programming owned by the cable operator or its affiliates. By guaranteeing opportunities for unaffiliated programming, this requirement partially responds to potential anti-competitive effects of vertical integration – the combination of delivery and programming. The rule assures that audiences will receive programming created by more independent voices. In Times Warner, the court held the FCC had not meet first amendment requirements in justifying this rule.43 The first amendment problem is that the rule “restricts [cable companies’] editorial control over a portion of the content they transmit” and, the court concludes, this “burden[s] substantially more speech than necessary.”44 On similar grounds, another court found that a local regulation that required local cable operators to provide carriage facilities to 40 Id. at 1131. 41 Id. at 1135. 42 47 U.S.C. § 533(f)(a)(1)(B). 43 Id at 1139. 44 Id. at 1129, 1139
competing broadband Internet Service Providers violated the cable operators First Amendment rights These decisions seem directly contrary to prior suggestions by the Supreme Court. The Court in Turner Broadcasting upheld must carry requirements, essentially the same type of intrusion into cable company's authority as involved in these cases Of course, the Court was closely divided in the Turner cases- but the divisive issue is whether the must carry rules should be considered content- based. In these two subsequent lowercases there is less reason to view the rules as content-based Rather, by merely requiring that the cable operator carry unidentified independent programming, the rules operated much like a common carrier requirement. But even in the major dissent in Turner, JusticeO Connor suggested that the government could impose on cable operators, in an analogy with telephone companies, a common carriage duty in respect to at least some of their channels precisely the requirement that the lower court in Time Warner struck down. Curiously, despite heavy reliance on Turner, the court in Time Warner made no reference either to O' Connor's approval of precisely this type of restriction or to the majoritys actual holding in Turner that the government could require the cable company to carry(specific)channels unaffiliated with the cable operator Comcast Cablevision of Broward County v Broward County, 124 F Supp 2d 665(2000) Turner Broadcasting 1, 512 U.S. 622, Turner Broadcasting 11, 520 U.S. 180(1997) 47512US.at684 Baker-11/06/02
Baker - 11/06/02 - 20 - competing broadband Internet Service Providers violated the cable operators’ First Amendment rights.45 These decisions seem directly contrary to prior suggestions by the Supreme Court. The Court in Turner Broadcasting upheld must carry requirements, essentially the same type of intrusion into cable company’s authority as involved in these cases.46 Of course, the Court was closely divided in the Turner cases – but the divisive issue is whether the must carry rules should be considered contentbased. In these two subsequent lowercases, there is less reason to view the rules as content-based. Rather, by merely requiring that the cable operator carry unidentified independent programming, the rules operated much like a common carrier requirement. But even in the major dissent in Turner, Justice O’Connor suggested that the government could impose on cable operators, in an analogy with telephone companies, a common carriage duty in respect to at least some of their channels47 – precisely the requirement that the lower court in Time Warner struck down. Curiously, despite heavy reliance on Turner, the court in Time Warner made no reference either to O’Connor’s approval of precisely this type of restriction or to the majority’s actual holding in Turner that the government could require the cable company to carry (specific) channels unaffiliated with the cable operator. 45 Comcast Cablevision of Broward County v Broward County, 124 F.Supp. 2d 665 (2000). 46 Turner Broadcasting I, 512 U.S. 622; Turner Broadcasting II, 520 U.S. 180 (1997). 47512 U.S. at 684
After a consistent sixty year history of Supreme Court acceptance of structural media regulation, these lower court decisions striking down ownership limits (i.e, the cross-ownership rule limiting telephone companies ownership of local cable systems and the rule limiting concentration in the cable industry) and striking down requirements that cable companies carry others' programming over their facilities should come as a surprise. I suggest that conceptually, these decisions represent two signinicant concep First, these cases explicitly apply a scrutiny analysis that, in the structural media arena goes back to Turner I+ Thus, in court in Times Warner repeatedly cited Turner /& Il, but for the scrutiny test and how to apply it, not the cases holding, which involved virtually the same issue requiring the cable system to carry outside channels-as in Times Warner's second holding in Times The great foundational media cases- such as miami Herald and Red Lion-made no mention of rutin. After toying with the issue in Preferred CommunicationS, the Court in Turner Broadcastin System v. FCC, 512 U.S. 622(1994), emphasized using scrutiny tests, purportedly to evaluate the constitutionality of media regulations, they majority continually invoked the idea of scrutiny, mentioning it on fifteen separate pages of its opinion. The issue of scrutiny has plagued the Court since. In Denver Area Educational Telecom Consortium v. FCC, 518 U.S. 727(1996), in an opinion discussing different scrutiny analyses but refusing to settle on one, the Court properly struck down portions of a law requiring suppression or giving cable systems authority to suppress indecency. Despite the governments in many respects plausible claim that the law was merely a structural regulation of cable, to the extent the decision invalidated the statute, it should be applauded for identifying as a constitutional evil the statutes aim of suppressing particular content. Clearer scrutiny analysis, however, would not have aided but only further confused the Courts reasoning Baker-11/06/02
Baker - 11/06/02 - 21 - After a consistent sixty year history of Supreme Court acceptance of structural media regulation, these lower court decisions striking down ownership limits (i.e., the cross-ownership rule limiting telephone companies ownership of local cable systems and the rule limiting concentration in the cable industry) and striking down requirements that cable companies carry others’ programming over their facilities should come as a surprise. I suggest that conceptually, these decisions represent two significant conceptual changes. First, these cases explicitly apply a scrutiny analysis that, in the structural media arena goes back to Turner I. 48 Thus, in court in Times Warner repeatedly cited Turner I & II, but for the scrutiny test and how to apply it, not the cases’ holding, which involved virtually the same issue – requiring the cable system to carry outside channels – as in Times Warner’s second holding in Times 48 The great foundational media cases – such as Miami Herald and Red Lion – made no mention of scrutiny. After toying with the issue in Preferred Communications, the Court in Turner Broadcasting System v. FCC, 512 U.S. 622 (1994), emphasized using scrutiny tests, purportedly to evaluate the constitutionality of media regulations; they majority continually invoked the idea of scrutiny, mentioning it on fifteen separate pages of its opinion. The issue of scrutiny has plagued the Court since. In Denver Area Educational Telecom. Consortium v. FCC, 518 U.S. 727 (1996), in an opinion discussing different scrutiny analyses but refusing to settle on one, the Court properly struck down portions of a law requiring suppression or giving cable systems authority to suppress indecency. Despite the government’s in many respects plausible claim that the law was merely a structural regulation of cable, to the extent the decision invalidated the statute, it should be applauded for identifying as a constitutional evil the statute’s aim of suppressing particular content. Clearer scrutiny analysis, however, would not have aided but only further confused the Court’s reasoning
Warner. Imposition of this justificatory burden on the government was new in Turner careful thought should be given as to whether it is justified. Historically, the Court, in approving tructural regulations merely looked to see if it could identify a justification for the law in terms of improving the communications order and, finding one, approved the law. For example, there was no attempt to see whether a cross-ownership rules or limit of seven on the number of television stations that an entity could own was closely tailored or did not regulate more speech than necessary to serve some government interest. Essentially, unlike the prior approach, the scrutiny analysis creates room for any activist court to manipulate its characterization of the government interests to find them inadequately served and, thus, strike down any structuring provision of which it does not approve The court cited the Turner cases over a dozen times, almost all dealing with how to apply scrutiny, but interestingly all in the first part of the decision dealing with ownership. It did not bother with Turner explicitly (presumably because it had already established how to apply the test)in the portion of the opinion dealing with the issue that was virtually identical to Turner's-the use of channel capacity by outsiders So In most respects, Justice's Stevens opinion in turner represents the more traditional deference to Congressional structural regulation SI Although agreeing with the result, both I have previously criticized both the scrutiny analysis and the content-discrimination analysis of the Court in Turner. Baker, supra note 29 United States v. Storer Broadcasting Co, 351 U.S. 192(1956). Cf FCC v National Citizens Committee for Broadcasting, 436 U.S. 775(1978) Baker-11/06/02
Baker - 11/06/02 - 22 - Warner.49 Imposition of this justificatory burden on the government was new in Turner50 – and careful thought should be given as to whether it is justified.51 Historically, the Court, in approving structural regulations merely looked to see if it could identify a justification for the law in terms of improving the communications order and, finding one, approved the law. For example, there was no attempt to see whether a cross-ownership rules or limit of seven on the number of television stations that an entity could own was closely tailored or did not regulate more speech than necessary to serve some government interest.52 Essentially, unlike the prior approach, the scrutiny analysis creates room for any activist court to manipulate its characterization of the government interests to find them inadequately served and, thus, strike down any structuring provision of which it does not approve. 49 The court cited the Turner cases over a dozen times, almost all dealing with how to apply scrutiny, but interestingly all in the first part of the decision dealing with ownership. It did not bother with Turner explicitly (presumably because it had already established how to apply the test) in the portion of the opinion dealing with the issue that was virtually identical to Turner’s – the use of channel capacity by outsiders. 50 In most respects, Justice’s Stevens opinion in Turner represents the more traditional deference to Congressional structural regulation. 51 Although agreeing with the result, both I have previously criticized both the scrutiny analysis and the content-discrimination analysis of the Court in Turner. Baker, supra note 29. 52 United States v. Storer Broadcasting Co., 351 U.S. 192 (1956). Cf. FCC v National Citizens Committee for Broadcasting, 436 U.S. 775 (1978)
In contrast, not only will this scrutiny test allow invalidating legitimate structural regulations, it is not evident that the test would identify laws that, historically, the Court has struck. In miami Heraldthe one significant case where the Court did strike down a media law that is sometimes seen as structural, the Court did not consider how closely the right of reply law served the state interest or how important or compelling the state interest was-although the fit seemed close and the interest important. Rather, whether because it invaded editorial control, a common interpretation now implicitly repudiated by the Court in Turner;, or because it penalized the papers initial speech, the interpretation emphasized in Turner, Miami Herald involved the Court directly finding an abridgement of protected speech and, without more, holding it unconstitutional. This approach followed the practice of many great First Amendment cases protecting speech- such as in Brandenburg v Ohio, New York Times v. Sullivan, and Hustler Magazine v. Falvell. In each of these cases and in Miami Herald, the results would likely change under the scrutiny analysis. In each, the government interest involved could be considered very important and it is unclear that any other means would serve the interest as well. The Court however, neither balanced nor applied scrutiny analysis 3418US.241(1974) s4 In many European countries, for example, the interest has constitutional status. See supra, note 15 5595US.444(1969) 376US.254(1964) 57485US.46(1988) Baker-11/06/02
Baker - 11/06/02 - 23 - In contrast, not only will this scrutiny test allow invalidating legitimate structural regulations, it is not evident that the test would identify laws that, historically, the Court has struck. In Miami Herald,53 the one significant case where the Court did strike down a media law that is sometimes seen as structural, the Court did not consider how closely the right of reply law served the state interest or how important or compelling the state interest was – although the fit seemed close and the interest important.54 Rather, whether because it invaded editorial control, a common interpretation now implicitly repudiated by the Court in Turner, or because it penalized the paper’s initial speech, the interpretation emphasized in Turner, Miami Herald involved the Court directly finding an abridgement of protected speech and, without more, holding it unconstitutional. This approach followed the practice of many great First Amendment cases protecting speech – such as in Brandenburg v. Ohio, 55 New York Times v. Sullivan,56 and Hustler Magazine v. Falwell.57 In each of these cases and in Miami Herald, the results would likely change under the scrutiny analysis. In each, the government interest involved could be considered very important and it is unclear that any other means would serve the interest as well. The Court, however, neither balanced nor applied scrutiny analysis. 53 418 U.S. 241 (1974). 54 In many European countries, for example, the interest has constitutional status. See supra, note 15. 55 395 U.S. 444 (1969). 56 376 U.S. 254 (1964). 57 485 U.S. 46 (1988)